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Monday, 18 December 1905

Mr SPEAKER - Order ! The honorable member for Melbourne must not repeatedly address remarks to the right honorable member for East Sydney. If he had addressed himself to the Attorney-General, I should have raised no objection; but remarks across the chamber, not addressed to the honorable member in possession of the Chair, are very distressing to the speaker, and are extremely disorderly. They also prevent honorable members who are trying to listen to the debate from hearing what is being said.

Mr Maloney - - I willingly withdraw any remark I have made, but I wish the right honorable member would not interrupt the Attorney-General.

Mr Reid - The honorable member had better take his gruel quietly.

Mr Maloney - The right honorable gentleman had better take his.

Mr SPEAKER - Order ! These interjections are most disorderly, especially after I have just directed attention to the improper course that honorable members have been following. Whilst it is disorderly to interject in such a way as to distract the speaker, it is more disorderly to make remarks across the chamber, and the offence is added to when honorable members dis,obey instructions which have been given from the Chair no less than two or three times.

Mr ISAACS - The Act of 1904 does not delimit the territory. It absolutely determines one thing, namely, (that ' the Capital Site shall be within seventeen miles of Dalgety, and although it expresses a desire - that was put in at the express wish of the right honorable member for East Sydney - that the territory shall contain an area of not less than 900 square miles--

Mr Reid - My desire was, that we should express a wish instead of passing an enactment.

Mr ISAACS - Exactly. It is plain that there is no enactment in the Act as to the area of the Federal territory. I should like to point out that we have first to mark out the territory. After we have done that, and the territory has been granted or acquired, the Federal Government, acting under the powers conferred by the Constitution, may establish the Capital. The first step to be taken, however, is to mark out the territory, and the next step is to acquire it.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Then the AttorneyGeneral admits that before the Federal Parliament can fix the Capital Site it is necessary that it should have the land at its disposal?

Mr ISAACS - Yes, before the Capital is established in fact. But that is all that the Constitution- says on that point. It provides -

The Seat of the Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth.

The question is : How are we to get that territory ? The contention of my honorable friends opposite, and of the New South Wales Government, is that the State authorities must come to us. first, and say : " We shall grant you a piece of land," or that we must first acquire the land from private owners, or partly from private owners and partly, from the Crown, as the case may be. They argue, further, that, having done that, we must go to the New South Wales Parliament and ask them if they are willing that the area we have selected shall be the Federal territory. Can that position be sustained? If the Constitution had remained as it was when it was passed by the Convention, and had provided that the Commonwealth Parliament could establish the Federal Capital anywhere in Australia, it would, according to the argument of my honorable friends, be necessary for the Commonwealth Government first to obtain a grant from each of the States, and then determine which of them should be selected as the Federal territory. Is not that nonsense? The argument is that New South Wales must come to us and dictate what territory it is to give; and if it is not willing to give us any particular territory, we cannot obtain it.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - How can the AttorneyGeneral say the State will dictate to us as to what territory it is willing to give?

Mr ISAACS - If they say : " We will give you just what we like." that amounts to dictating where the Federal Capital shall be. We have already determined that the Capital shall be within seventeen miles of Dalgety, and we are going to mark out the territory in New South Wales. And New South Wales cannot stop us from getting that territory. ' It was never intended that any State should prevent the people of the Commonwealth from getting their Capital, and great as New South Wales is, and great as is the respect we pay her, our duty to the Australian people is greater still. We mark out the territory containing 900 square miles in Schedule A, and we say that that territory, subject to any addition that it may be necessary to make for the purpose of water supply, is hereby determined to be the territory within which the Seat of Government of the Commonwealth shall be. That is the first practical step. We say : " That is what we desire for the territory - not the Capital, but the territory." Then we provide that -

The Minister is empowered to obtain, and" the Governor-General is empowered to accept, on behalf of the Commonwealth for the purposes of the Seat of Government, a grant by the State of New South Wales to the Commonwealth of the territory described in Schedule A to this Act to the full extent to which the territory can be granted by the State within the meaning of section one hundred and twenty-five of the Constitution.

The words "can be granted," which have troubled the right honorable member for East Sydney, mean this: Under the law, the Crown is the ultimate owner of the land. The Crown may grant a tenancy in fee-simple, or under lease, to any one else. That has been done in regard to some of the land, but the Crown has retained its whole right as to other land. We ask that we may be empowered to obtain from New South Wales the full amount that they have to give - it may be the ownership, undiminished by any tenancy, or it may be ultimate ownership, subject to tenancy in fee-simple, or otherwise, granted to some one else. As a Commonwealth, we ask to be placed in the same position with regard to that territory as the State of New South Wales occupies to-day.

Mr Higgins - Does the Minister take the word "grant" to refer to property or jurisdiction ?

Mr ISAACS - It will refer to jurisdiction undoubtedly, and so far as Crown land is concerned, it will refer to property also, because we provide, in clause 4 -

From the day when the grant and acceptance take effect, all estates and interests held by. any person from the State of New South Wales within the territory so granted and accepted shall continue to be held from the Commonwealth, on the same terms and conditions as they are on that day held from the State.

So that, if this Bill is carried, we shall have the ultimate sovereignty and property in all the land that has never been alienated, and we shall have jurisdiction and authority and sovereignty over all the land that has been alienated, subject to the estates already granted by New South Wales, which, however, will be held by us in the future.

Mr Reid - That is, if we get the grant.

Mr ISAACS - Yes.

Mr Reid - If the Bill were passed, what could we do beyond asking for a grant ?

Mr ISAACS - The Constitution says that the Seat of Government shall be determined by the Parliament, and shall be within territory wh]ich shall have been granted to or acquired by the Commonwealth. We do not want to say anything more than is necessary, because of the great respect in which we hold New South Wales. But I take it that once this Parliament has determined upon the territory, the duty will rest on New South Wales to make the grant. The Constitution implies that if New South Wales refuses to make the grant, and the High Court determines that New South Wales is bound to do it-

Mr Reid - Is it certain that we have the power to take an area of 900 square miles ?

Mr ISAACS - That is another matter.

Mr Reid - It is an important one.

Mr ISAACS - I grant that. But I was dealing with the matter apart' from the area. In the first place, it is the duty of New South Wales to make that grant, and it is a grant that will have to be made, so far as Crown lands are concerned, without payment.

Mr Reid - But we should study New South Wales a little bit as to the area we take.

Mr ISAACS - That is a matter for this Parliament to determine. It may be decided by the High Court that we have gone beyond our power. One of the objects of the Bill is to satisfy the desire previously expressed by the Government of New South Wales that we should put the matter in such a form that it could be tested. As the law stands, it never could be tested. We could not go to the High Court, and say, "Have we taken too much?" We cannot drive a peg in any part of the land. But if we pass this Bill, we shall have delimited the territory, and we can say to New South Wales, 1 ' We ask you to make that grant in compliance with your duty under the Constitution." If New South Wales refuses, and the High Court decides that New_ South Wales is bound to make the grant, the State will no doubt comply. I have no doubt in my own mind - whether I am right or wrong - that New South Wales cannot for ever stand in the way, and prevent this Parliament from obtaining a site for the Capital. I am sure that if the rights of the matter were determined by the High Court, no State would -be more ready than New South Wales to make the grant.

Mr Austin Chapman - What? After what has been said by Mr. Carruthers?

Mr ISAACS - I do not regard Mr. Carruthers as representing New South Wales. New South' Wales is not going to emulate the example of South Carolina, and set up an insurrection. . I am sure that Mr. Carruthers' utterances do not represent the sentiment of the people of New South Wales. We provide4. in clause 5 -

Until the Parliament otherwise provides, all the laws of the State of New South Wales in force in the territory granted and accepted shall subject to this or any Act continue in force in the territory as laws of the Commonwealth.

We also make other provisions, which are not material to the present discussion. The Bill is not so futile as the right honorable gentleman has represented. It is in strict accordance with the Constitution as we understand it, and with all honorable understandings as we have understood them, and as they have been understood and acted upon by New South Wales. It provides for a necessary step - a step taken practically at the invitation of the Government of New South Wales, in order that we may ask for' the territory, and that the New South Wales Government maybe in a position to go to the High Court and raise the question as to our powers in the matter. If we are wrong in the view we take, we shall be beaten when the matter is referred to the High Court. The contention of New South Wales is that we cannot legally determine the site of the Federal Capital and the Federal territory until we have a grant from the State. If that argument is good, nothing we can do can have any effect. New South Wales will always have it in its power to defy the Commonwealth. We do not think it has that power, but we intend to afford the New South Wales Government an opportunity to submit that question to the High Court. As to the statement of the right honorable member for East Sydney, that New South Wales has been flouted because we did not go into Committee to consider the resolutions passed by the New South Wales Parliament, I take it that we are paying the highest compliment ' to New South Wales by going into Committee, not upon a futile proposal, but to consider a Bill under which effect can be given to the wishes of that State. It is perfectly within the power of this House, and the Senate, if the numbers are forthcoming, to alter our selection of the Capital Site. I do not think that the right honorable member can get the numbers. I think that we should stand loyally by the decision at which we arrived.

Mr Watson - That decision was in the nature of a compromise, as the AttorneyGeneral ought to know, and it was not in the interests of Australia.

Mr ISAACS - That is a matter of opinion. If the contention of the right honorable member for East Sydney be correct, the best way in which he can give effect to it is by assisting us to get into Committee upon this Bill.

Mr Reid - That would not have the effect of altering the Act which is upon the statute-book.

Mr ISAACS - If the right honorable member be correct in his contention, the best thing he can do is to assist us to get into Committee upon this Bill, in order that he may carry an amendment to alter our decision. If the interests of the Commonwealth, and of New South Wales, are to be conserved, we ought to clear out of the way, a matter of considerable controversy - a matter which has blocked legislation in the past, and, which, if not dealt with, will interfere with legislation in the future. Under all the circumstances, I claim that we are justified in asking the House to deal with this Bill in the spirit in which it ought to be dealt with.

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