COMMONWEALTH OF AUSTRALIA CONSTITUTION BILL
[introduction]
14th May 1900 House of Commons Hansard. Vol 1900 P 46.
THE SECRETARY OF STATE FOR THE COLONIES ( Mr J Chamberlain Birmingham W.) I have no doubt there are many members of the House who will be inclined to envy me the privilege that has fallen my lot in introducing this Bill for the federation of some of our greatest colonies--- A Bill which marks an era in the history of Australia, and is a great and important step in the organization of the British empire. This bill which is the result of the prolonged and careful labours of the ablest statesmen in Australia , enables that great island continent to enter at once the widening circle of English speaking nations. No longer will She be a congeries of States , each of them separate from, and entirely independent of the others, a position which anyone will see might possibly in the future, through the natural consequences of competition , become a source of danger and lead at any rate to friction and to weakness. But if this bill passes, in future Australia will be, in the words of the preamble to the Bill which I am about to introduce " an indissoluble Commonwealth firmly united for many of the most important functions of government.' After it has agreed there will be for Australia under one Administration, a uniform postal and telegraphic service, and provision is made making it possible for railway communication to be under similar control. In the meantime, everything that has to do with the exterior relations of the six colonies concerned will be a matter for the Commonwealth, and not for the individual Governments; a common tariff will be established for all of the colonies. There will at the same time be intercolonial free trade.
And what is more important there will be a common form and a common control of national defences, Now this is a consummation of a long expected and earnestly hoped for by the people of this country. We believe that it is in the interests of Australia and that has always been with us the first consideration. But we recognize that it is also in our interest as well; we believe the relations between ourselves and these colonies will be simplified , will be more frequent and unrestricted and if it be possible, though I hardly think it is , will be more cordial when we have to deal with a single central authority instead of having severally to consult six independent governments. Whatever is good for Australia is good for the whole British Empire. Therefore we, all of us ---- independently of party, whether at home or in any other portion of the Empire---- rejoice at this proposal, welcome the new birth of which we are witnesses , and anticipate for these great free and progressive communities a future even more prosperous than their past, and an honourable and important position in the history of the Anglo -Saxon race. I hope the House will not think I am taking up its time unnecessarily if, in a few brief words, I give some account of the history of this great movement. The House is aware that the first colonization of Australia took place in 1788, and that for nearly a generation after that time, as other settlement were made at vast distances along the coast, they call came in some measure under the control of what I may call the central administration which existed in Sydney.
But it will be readily seen that that, as these settlements gradually became more populous and of greater importance, the , the difficulty of a central administration became almost intolerable, and accordingly, in 1825, what was then known as Van Diemans Land became a separate colony under the name of Tasmania. , and the example of Tasmania was followed in succession by Western Australia , South Australia, Victoria and lastly by Queensland in 1859. Victoria which was then known as the Port Philip Settlement was separated from New South Wales by Act of Parliament in 1850, but in 1847, when giving assent to this proposal, Earl Grey to whom we must feel we owe most of the principles by which our colonial policy is guided, laid down the views then entertained by him and HER MAJESTY'S GOVERNMENT of the time in reference to the need for some central authority in Australia. ( p48)
He said: " It is necessary while providing for local management of local interests we should not omit to provide for the central management of all interests not local. Questions having a bearing on the interests of the Empire may be left appropriately to the Imperial Parliament But there are questions which though local to Australia collectively are not merely local in relation to one colony, though each may have part in a common interest and in regard to which it mat be essential to the welfare of all to have a single authority , and they may more appropriately and effectually be decided by a single authority in Australia than in a remote , less accessible and in truth, less competent authority of Parliament.
It will be seen that Earl Grey, in particular foresaw that in the future, at any rate, this necessity would arise. He was a little before his time when for when in 1850, he introduced proposals for constituting such central authority, his proposals met with no general support, and the Bill when it became an Act was confined to the establishment of the Colony of Victoria., separating it from the older Colony of New South Wales. But from this time, and continuously down to the present day, the subject of a closer union between the separate Australian provinces or States has attracted the attention of all far-seeing and patriotic statesmen, especially in Australia. And among those who have laboured in this movement I think it would be ungrateful not to mention Sir Henry Parkes. Sir Henry Parkes was certainly the most remarkable individuality.: he had his peculiarities as most of us have, but no one would deny he was a man of great capacity, of great power of work, of great resource, and of intense local patriotism; and I think that today, when the work for which he laboured so long is clearly within sight, we may well bear his memory in respectful regard.
In 1867 the Dominion of Canada was established. This gave to Sir Henry Parkes
an opportunity which he was not slow to seize, and, although he had raised
the question before, he now emphatically urged his fellow-Australians to follow
the example of the Dominion of Canada . Still however no progress was made.
A little later the somewhat sinister activity of certain foreign powers in
the Pacific brought the matter home in a clearer degree to the majority of
the Australian people; and in 1883 accordingly, a conference was called, again
at the instance of Sir Henry Parkes, of all the colonies which resulted in
certain general principles which led almost immediately to the establishment
of what is known as the Federal Council.(49) The Federal Council, however
, although wisely designed as an experimental step at a time when there was
still much to be done before the colonies themselves could see the necessity
of a closer union. --- The Federal Council was not a very effective instrument;
it had no legislative power, no executive power, it was neither more nor less
than an advisory council, and under the circumstances it did nor excite any
warm popularity in Australia. The Great Colony of New South Wales from the
first to attend its deliberations. South Australia subsequently withdrew from
them.; and now having served its turn, this Federal council will be abolished
by the Bill which I am about to introduce. Then again, after the establishment
of the Federal council, and coming down to 1890, a great deal of uneasiness
the result, I think , of the Russian scare, was felt in Australia as to the
state of Australian defences, and accordingly another conference was then
held in Melbourne. It was followed by a convention in Sydney in 1891, when
the first great advance toward a federal union was at last made, because the
convention of Sydney in 1891 produced a draft of a Commonwealth Bill which
has been the foundation for all subsequent discussion. Those who are acquainted
with this draft , which has, of course , very many points of resemblance with
the present measure, will, I am sure, recognize the great constructive skill
with which it was framed, and they may be interested to know that its great
qualities are largely, if not chiefly due to the labour given to it by Sir
Samuel Griffith, the present Chief Justice of Queensland, and by Mr Barton,
who was then Attorney General in Sir George Gipp's government , and who is
now the distinguished representative of New South Wales among the delegates
who have recently been our guests. Well this draft was then submitted to the
local parliaments, but still although quiet progress had been made, there
was not sufficient popular force behind the movement to secure the bill being
brought into operation; and it was evident to those who were interested in
the movement, and particularly to my Hon friend Mr Barton that the next step
must be what is known as the Federal League., which went up and down the country
throughout Australia informing the people of the nature of their proposal,
explaining the draft, and urging the desirability of its adoption. And so
successful was this educational movement that in 1895, the Premiers meeting
again agreed to bring forward enabling bills in their several parliaments
for providing a convention of delegates which should be instructed and empowered
to frame a Constitution. This Constitution was then to be submitted to the
separate parliaments sitting in Grand Committee-in Committee of the Whole
House- and the amendments which might be made in the several parliaments were
then to be referred back to another meeting of the convention and considered
by them,. And a final draft after such consideration was to be submitted to
the people of the States in the shape of a general referendum. The convention
was accordingly held in Adelaide in March 1897; and anyone who reads the history
of the debates which took place then will agree with me that it would have
been absolutely impossible to have collected together more capable, more able,
more efficient representatives of Australian feeling than met in that convention.
I say that but I must take one exception. Owing to circumstances on which
I need not dwell, the Government of Queensland refused to pass an enabling
Bill, and consequently at this convention Queensland was not represented,
but the other colonies were all present. The convention went to work with
that businesslike spirit which we pride ourselves distinguishes British proceedings
throughout the world. In the first instance they considered and passed resolutions
settling the principle upon which they would proceed. Then these resolutions
were divided among a number of committees, and considered by them and the
result was afterwards discussed and finally settled in the whole convention.
The draft so prepared went to the different Parliaments, and was returned
by them to the Sydney Convention in 1897 with their amendments. That convention
adjourned to Melbourne in 1898, and the final draft -as it was submitted was
finally passed by the convention. It still had to go through the ordeal of
a referendum. The first referendum showed 219,000 votes for and 108,000 against
the Bill. Unfortunately, or as it may be considered fortunately, the New South
Wales majority, although there was a majority in favour of the Bill, did not
reach 80,000 which had been fixed as the minimum to justify the adoption of
the measure. Accordingly on that occasion the Bill was not passed by that
colony. New South Wales then took the opportunity of proposing further amendments
These amendment were considered in a friendly spirit by another meeting of
the Premiers and they were to some extent adopted, the proceedings being,
perhaps, somewhat in the nature of a compromise. But I still think in substance
the wishes of New South Wales were complied with, and arrangements were then
made for a second referendum. On this occasion the referendum took place in
the five colonies. I should have added that on the first occasion there were
only four colonies, Queensland and Western Australia being excluded-- but
in the second and last referendum Queensland took part for the first time,
and the results were 377,600 for and 141,500 against. Western Australia did
not join in this decision, but pressed for further amendments , which however
the Premiers decided it was too late for them to consider. And So the Bill
is presented to us. It comes with the authority behind it of five federating
colonies , and it is this bill, with a few alterations, but substantially
this bill with 128 clauses and dealing with a vast number, probably with hundreds,
or even thousands of separate propositions of the greatest importance , which
I have to ask leave to introduce. I think it will be admitted that this Bill
is a bill worthy of all the care and the labour which has been bestowed upon
it. I think I may describe it as, and it certainly is, a monument of legislative
competency. Of course, the framers of the Bill themselves are perfectly ready
to admit it may not be perfect, that amendments may have to be made and that
experience may show that something has been omitted, or that something has
been placed within its four corners which might, with advantage have been
left out but (p52) provision has been made for any such amendment in the Bill
itself; and considering the magnitude and the variety of the interests that
we are to deal with, the intricacy and importance of subjects with which the
bill has to deal, I think that no praise can be too high for those whose moderation,
patience, skill, mutual consideration, and patriotism have been able to produce
so great a result. It would be absolutely impossible for me within anything
like a reasonable time to refer to the multifarious details of this great
measure, nor do I think it necessary to do so , because I cannot conceive
the House will be inclined to discuss these details in any critical spirit;
but it would interest the House, I think, if I call attention to the general
scope of the measure and to some of its most striking features. I think it
is true to say that, on the whole, this new Constitution, although it is in
important respects unlike any other constitution at present existing, still
in the main, and more than any other follows the Constitution of the United
States of America. But it would be, perhaps, more interesting to us to contrast
it with the Constitution of our own colony of Canada. The differences between
the constitution of the Dominion and the Constitution of the new Commonwealth
are , I think, to be explained in a certain fundamental diversity in the position
of the two colonies, and also by the method the Constitution has been brought
into existence. In the case of Canada the delegates came here and the Constitution
was settled here in conference with Her Majesty/s government. , and was the
result , to some extent at any rate, of their advice and suggestion. In the
case of Australia , the people of Australia through their representatives
, have worked alone, without either inviting or desiring any assistance from
outside. In Australia it must be remembered the separate states have enjoyed
for a much longer period than had the provinces of Canada complete independent
self governing existence, and, accordingly, while in Canada the people had
before them at the time the Constitution was decided upon the warning, I might
almost say afforded by the civil war in America of the danger of exaggerating
States rights , and while the special provinces had no desire to put forward
those rights in too emphatic a manner there p53) was no such example of fear,
and the separate colonies had enjoyed for so long such great powers that they
were naturally unwilling to part with them to anything like the same extent.
Accordingly, while in Canada the result of the Constitution was substantially
to amalgamate the provinces into one Dominion, the Constitution of Australia
creates a federation of distinctly definite and limited objects of a number
of independent States and States Rights have throughout been jealously preserved.
In Canada everything that was not given expressly to the provinces, went to
the Central Government. In Australia the Central Government has only powers
over matters which are expressly stated and defined in the Constitution. In
Canada the Senate was a body which represented particular provinces substantially
in proportion to their population. In Australia the senate consist of six
members from all the States . That is to say , an equal number, whatever may
be the size or the population; and the mode of election of the Senate is also
different from that of Canada, and, I believe entirely novel. In Canada the
Senate was nominated for life on the advice of the Ministers. In the United
States as we all know, the Senate is elected by the legislatures of the several
states. In Australia the Senate is to be elected at the same election as the
lower house, but each State is to vote , not in the separate constituencies
as is provided for the Lower house but as one constituency--- a scrutin de
liste , in fact as the French call it. - except in the case of Queensland,
where there are to be two divisions. The upper House is to serve for Six years
instead of three; but those are the only differences which separate it in
composition, qualification, or constitution, from the lower House. The lower
house is to be elected according to the electoral laws of the several States,
but according to population, and a very ingenious device has been resorted
to in order to prevent the numbers of the Lower House from ever becoming excessive,
it is provided by the Constitution that the members of the Lower house shall,
as far as possible be exactly double the numbers of the upper house or senate.
I should add perhaps that the members of both houses will be paid the same
salary. p54.) There is also an example which I cannot help thinking might
be wisely imitated by ourselves. Ministers on taking office do not vacate
their seats. There is a most ingenious and complicated provision to prevent
a possible deadlock between the two Houses; for although as I have said, elected
by practically the same constituency, I think it is evident that the differences
in the manner of election may sometimes result in a diversity of opinion between
the two chambers. In that case- and here also I cannot help thinking that
the hon. members who are interested in the subject may find many a useful
suggestions- the course of operation is this. Measures may be twice rejected
in the Senate, as I understand in two separate sessions of Parliament. After
that the Government may dissolve the both houses. If after re-election the
Senate should again- a third time- reject a measure, then there is to be a
joint sitting of both houses and a decision is to be taken by a simple majority
of both Houses. That applies to the case of ordinary measures, but if a question
between the two houses is an amendment of the Constitution , then a somewhat
different course is followed. The proposed amendment may be twice rejected
by the Senate , and if after that the houses do not come to an agreement ,
then the amendment will be settled by a referendum, and is to be decided by
a majority of votes in a majority of States. Now to this new Parliament so
constituted thirty five distinct subjects have been expressly referred. Among
them are the tariff, post office and telegraph services, defence, currency,
bankruptcy, marriage and divorce, and old age pensions. And also the following
matters - to which I call special attention. Because they involve matters
outside Australia as well as locally- first the fisheries in Australian waters,
beyond the territorial limits of Australia, secondly; copyright; thirdly;
legislation dealing with the people of any race not being natives of either
of the States ( I think that has in view legislation in relation to Asiatics.);
fourthly external affairs, a phrase of great breadth and vagueness, unless
interpreted and controlled by some other provision might, easily it will be
seen, give rise to serious difficulties: and fifthly the relations with the
islands 55) of the Pacific which also involves of course, many questions in
which foreign nations are concerned. It will be seen that almost all the points
to which I have thus called special attention are matters in which the Imperial
Government may have to deal with foreign countries. It is important therefore
-I say this in passing although I shall deal with it in more length- it is
important that measures of this kind, which may involve the Imperial Government
in the most serious responsibility, should be interpreted by a tribunal in
which all parties have confidence. There are also in the Bill some complicated
provisions for dealing with the receipts from Customs among the several States
, for the imposition of new duties, and the division of old ones. I have mentioned
at all events the most important and most interesting matters which are raised
by this Bill, and I think it is evident from even this very brief and inadequate
resume that there are a great number of propositions in the Bill which, if
it were a case of freely discussing a Constitution of our own, would arouse
much difference of opinion. If we had been invited to frame a Constitution
, or if we had been consulted after the Constitution had been framed, it is
quite possible-I do not say it would have been so- it is quite possible we
may have had many suggestions to make and some amendments to offer. But that
is not the position. The Bill has been prepared without reference to us. It
represents substantially and in most of its features the general opinion of
the Australian people; and although I differ totally from those who say that
the Australian people do not desire this great measure, the result of the
labour of their representatives, , should receive the fullest consideration,
and even the fullest discussion; although I deny altogether that the Australian
people have ever considered, or shown that they consider, the Imperial Parliament
as merely a Court for the registration of their decrees. And although I am
convinced the Australian people will be neither offended nor insulted if we
alter here a word, or even a clause in the Bill, I think on the other hand,
they do expect that we shall have a reasonable regards to the labours which
they have already expended upon this measure, and to the 56) general feeling
of the Australian people, wherever it has been really and conclusively shown,
and to those rights of self -government of which they have made so magnificent
a use, and which we have so gladly conceded. Now it is on these main principles
that the Government have proceeded in dealing with this Bill. On the one hand,
we have accepted without demur, and we shall ask the House of Commons to accept,
every point in this Bill, every word, every line, every clause, which deals
exclusively with the interests of Australia. We may be vain enough to think
that we might have made improvements for the advantage of Australia, but we
recognize that they are the best judges in their own case, and we are quite
content that the views of their representatives should be in these matters
accepted as final; and the result of that is the bill which I hope to present
to the House tonight is so far as ninety-nine hundredths of it, I think I
might say 999-thousandths of it- is concerned- as regards the vast proportion
of the Bill, is --- exactly the same as that which passed the referendum of
the Australian people. But the second principle to which I ask the House to
assent to, and to which we have given application by certain amendments we
have made in the Bill, is that wherever the Bill touches the interests of
the Empire as a whole, or the interests of Her majesty's subjects, or of Her
Majesty's possessions outside Australia , the Imperial Parliament occupies
a position of trust which it is not the desire of the Empire, and which I
do believe for a moment it is the desire of Australia , that we should fulfil
in any perfunctionary or formal manner. As I say, we have applied these principles
in dealing with the Bill. Two colonies, Western Australia and New Zealand
appealed to Her Majesty's Government and were represented here by special
delegates , and asked us to interfere to secure for them certain amendments
in the Bill. I may say Her Majesty's Government were inclined to sympathise
with the desire of both these colonies. Her Majesty's Government would have
been very glad indeed could their wishes have been complied with; but as we
considered that it was an entirely Australian question, as it was a difference
of opinion arising between the Australian colonies, in which neither the Empire
nor p57) the mother country were themselves directly concerned , we felt we
were not justified in pressing these claims; or insisting upon securing their
adoption as against the majority of the colonies in Australia. Western Australia
asked for the right to come in as an original State, on terms slightly different
from those provided in the Constitution. The differences arose as to the question
of tariffs; and undoubtedly it was admitted by the five federating colonies,
that, owing to the peculiar position of Western Australia, she was entitled
to some period of interval before she adopted the common tariff of the Commonwealth;
and accordingly five years was allowed her for that purpose, subject to the
condition that each year one fifth of any difference that might exist between
the tariff of Western Australia and the tariff of the Commonwealth should
be reduced. I confess that it seemed to me that a condition of that kind imposed,
and I still think it imposes, on the financial system of Western Australia
a very considerable strain. I do not envy the position of the Chancellor of
the Exchequer who is tied down by a statutory and Constitutional law to reduce
his tariff by one fifth in every successive year for five years to come. It
is perfectly evidence that that must interfere to a considerable extent with
the production of his annual budget. But as I have said, having appealed to
the Premiers, and having put forward the views of Western Australia, and having
received from them a statement that they did not feel justified in assenting
to any amendments, we reported the result of our enquiries to Sir John Forrest,
the highly respected Premier of Western Australia; and we ventured-although
it was hardly our business-in the interest as we believed- of Australia as
a whole and even of Western Australia, to press upon him that his government
should now reconsider their position, and that in spite of the arrangements
of which they complained, they should seek to enter the federation as an original
State. I am very happy to say, as will be seen by the Bluebook, which I have
laid upon the table that Sir John Forrest and his government have assented
to our request to take this step; Their parliament will shortly be called
together; and I hope the result will be that the Constitution p58) will be
submitted to the people of Western Australia, and that Her Majesty's Government
will be able to proclaim the whole of the six colonies of Australia as taking
part in this great scheme. The colony of New Zealand made several requests
to us. Two of these were, I think, of minor importance. They were that they
should have access to the Supreme Court of the new Federation, and that some
arrangement should be made at once for common defence. We considered that
there would be no difficulty in dealing with these very important questions
as between New Zealand and the Federated Commonwealth after it was formed,
and it was unnecessary to delay the Commonwealth during the discussion of
matters, which no doubt, would require a considerable amount of time. The
third matter was that New Zealand should be allowed to enter as an original
State at any time within the next seven years-I do not know that seven years
was a definite part of the proposition but ; but at all events, a considerable
period was to be given to them to make their choice. I confess that here also
I would have been very glad if the Premiers had seen their way clear to accept
the suggestion. The delegates, however, who were representing the five federating
colonies explained, very ably, the difficulties that would arise from such
a state of things. They pointed out that great inconvenience might be suffered
, especially with regard to the establishment of a tariff, if the federating
colonies were under a compulsion to accept another partner at any time during
a long period. I felt this decision, more particularly, because I do not hesitate
to say that Her Majesty's Government and the people of this country are under
special obligations to the Government and people of New Zealand. Of all the
colonies, all the possessions of Her majesty, including Canada and all the
colonies of Australia--- I am excluding the colonies in South Africa-New Zealand
in proportion to her population , supplied the largest contingent to Her Majesty's
forces, and made the greatest sacrifices . I mentioned this matter in the
house a few days ago; but I find I under-estimated what New Zealand has done.
I am told that according to population the New Zealand contingent in South
Africa is equivalent to an army sent from this country of 107,000 men. I do
not think that 59) is a most extraordinary proof of - what shall I say? ---of
affection and regard for the mother country; and if this point of difference
had been between the mother country and New Zealand I feel quite certain the
House would be inclined to make almost any concession that could be asked.
But as it was exclusively a matter between New Zealand and the federating
colonies, and as the Premiers again put in a non possumus-and stated that
they had no authority to consent at this period to any further amendments
, we have had no course open to us but to accept, though we regret, that decision.
We could not I think fairly press the opinion of a single colony against the
unanimous opinion of five. I now come to the points in which we think amendment
to be necessary. Substantially there is only one point of importance, but
in order that I may be perfectly accurate, I will mention others to which
I think there will be very little debate or opposition. In the first place
there was a blank left in the draft Constitution Bill which it was intended
we should fill up as soon as it was known whether Western Australia had joined.
We have applied for the figures requisite to fill up the blank, and , having
received them from the Australian Colonies , we shall insert them at their
request. Then there are certain drafting alterations which are desirable,
if not absolutely necessary, in consequence of the probability of the admission
of Western Australia as an original State. We have submitted these amendments
to the delegates , and , so far as I know at present, there is no objection
of any kind taken to their insertion. Then in the third place there is a matter
of more importance, though I am happy to say it is one on which there is no
division of opinion. We propose to make clear in the Bill the application
of the Colonial Laws Validity Act to the Commonwealth. Doubts have been expressed
in the course of discussion whether the Commonwealth is a colony within the
,meaning of the Act. The Act, as lawyers in the house are perfectly well aware,
provides among other things, that where a colonial Act is repugnant to an
Imperial Statute , it shall not be wholly void, but shall only be void so
far as repugnancy extends. It was intended as an enabling Act to pre-vent
what might have otherwise might have occurred. The whole colonial statute
being. P 60) rendered void in consequence of it being repugnant on some one
point to Imperial Legislation. The Act is one of great importance because
it defines the extent to which the paramountcy of Imperial legislation goes.
The fact that Imperial legislation is paramount has always been admitted by
the colonies, although the use of the constitutional power has, of course
been extremely rare. The kind of cases in which that paramountcy becomes of
importance are such cases as those of the Foreign Enlistment Act and the Merchant
Shipping Act. In both those cases I think it should be desirable that there
should be legislation for the whole Empire and not conflicting legislation
in different parts of the Empire. In the memorandum presented by the delegates
on the 23rd March they argue that the amendment is altogether unnecessary.
They say the Commonwealth appears to the delegates to be clearly a colony,
and the Federal Parliament to be clearly a legislature within the meaning
of that Act; They do not think that the larger meaning given to the word in
Clause 6 can be held to take away the protection of the Act of 1865 for any
law passed by the Federal Parliament. Now I think the House will feel there
is no difference of opinion as to the merits as between us and the delegates.
The only point is they think the amendment is a work of supererogation , but
we feel that the matter involving as it does our foreign relations, is of
such vast importance that we ought not to leave a shadow of doubt on the question.
It is fair to say, and I wish to call the attention of the house to the fact---
that in the last memorandum which was presented to the delegates only a day
or two ago, they raised for the first time a very important question-namely
whether the Colonial Laws Validity Act as it stands is a law properly applicable
to a great Commonwealth like the Dominion of Canada and the Commonwealth of
Australia. Her Majesty's Government admit the importance of the question.
They admit it is a very fair point to raise. But if there is to be any change
in regard to the matter, which as I have said is of such infinite importance,
the greatest care will have to be taken and very considerable delay must necessarily
occur.
We…………………………………………p
62) Act could be adopted I do not object on behalf of Her Majesty's Government
that the matter is not worthy of consideration. All I can say is we have to
deal with a provisional period. We cannot delay the passing of the Federation
Act in order to discuss this matter. We must have a proper understanding before
any change is made; but it will be open to the Federation of Australia and
the dominion of Canada , if they see fit, to raise the matter at a subsequent
period, and no doubt, in that case, any views they may express will receive
the most serious consideration by Her Majesty's Government.
Now I come to what I have described as the substantial point of alteration, which of course is the point affecting the question of appeal. This is the only point I think on which there can possibly be any important subject of controversy or difference between ourselves and the Australian representatives. Sir, I wish at the outset to repudiate in the strongest and clearest terms the possibility that any difference of opinion upon what is a great Constitutional point, which has hitherto been discussed by the delegates with ourselves in a most cordial spirit, can, by any possibility be a matter of serious conflict between us and the colonies of Australia. I say with regret a speech made only a few days ago by the right hon. Gentleman the member for East Fife, at Colchester, and I must say that I think he was a little premature. He certainly prejudged the question without having heard one single word of the case which Her Majesty's Government had to put before the House. And he seemed to be speaking from a brief, which was supplied by a single one of the parties. …….
*Mr Asquith ( Fifeshire East) No, No.
Mr J Chamberlain: Well speaking from information - I do not know that the right honourable Gentleman will take exception to that word--- speaking from information that came from one side only. Now that is what I complain of; and I think I ought to persuade the right hon. Gentleman to withdraw his speech on this subject. I regret his allusion in connection with this matter that the revolutionary war in America is a warning to us, Sir, what connection does P 62) the right hon. Gentleman suppose there can be between the two cases. Then in another part of his speech he referred to Canada as exemplar and model. Well I do not ask for anything more than South Africa and Canada have already most willingly granted.
*Mr Asquith: as far as my memory goes - I have not got the speech with me--- my reference to the revolution was in a totally different connection. It had nothing whatever to do with the question of the appeal.
Mr J Chamberlain: I am extremely glad to have elicited that statement from the right hon. Gentleman, the report I saw , I must admit was a condensed report.
*Mr Asquith: It was a condensed report.
Mr J Chamberlain: I understood him to refer to the revolution in connection with this difference of opinion, which I must say must under no circumstances be exaggerated. It is important that it must be discussed by all parties, and it will be discussed by Australia as well as by ourselves , in a perfectly friendly spirit. I am going very much further than I have done hitherto. We have got to the point in our relations with our self governing colonies that I think we recognize, once and for all that these relations depend on their free will and absolute consent. The links between us and them at the present time are very slender. Almost a touch might snap them. But slender as they are and slight as they are, although we wish, although I hope they will become stronger , still if they are felt irksome by any one of our great colonies, we shall not attempt to force them to wear them. One of these ancient links is the right of appeal by every subject to the Queen in Council. The Bill weakens that, --there is no doubt about that-- and thereby opens up as I shall show, a prospect of causes of friction and irritation between the colonies and ourselves which, in my opinion would be more numerous and more serious than anything that is likely to result if the right of appeal is retained. Well how shall we deal with this question? I am sure the House will feel that there is no man in the house who is more anxious p63) to maintain the good feeling between ourselves and our colonies as I am. Ever since I have been in office that has been my chief desire. Sir, in a case of this kind nothing is more easy than to concede; nothing is more difficult than to refuse. At the same time, believing firmly, as the Government do, that what is asked for in this Bill , as it originally came to us, is not only injurious to the best interests of Australia , but that it would lead to complications which might be destructive of good relations , and prejudicial to the unity of the empire, we feel we are bound to ask the house to reconsider it. Sir, we believe further---- and this is an important point--- that opinion has not yet been definitely formed on the subject in Australia. And before therefore assenting to a change which may have such serious results, we hold it will be our duty to be quite certain that the demand is a demand that has behind it the whole force of Australian opinion. Now the new clause. Clause 74, as submitted, would allow no appeal to the in any matter involving the Federal constitution, or the Constitution of a State unless the "public interests" of some part of Her Majesty's dominions other than Australia are involved; and it further provides- a matter to which sufficient attention has not been directed- that the Federal parliament may make laws limiting further matters on which appeal is to lie. Now the right hon. Gentleman the Member for East Fife, unless he has again been misrepresented said that the bill did take away any right existing. He will find that is a mistake. It does take away the right of appeal from a State where the State Constitution is in question; and that right exists at the present time. And further, as I have pointed out , by a proposal in this solemn instrument expressly to authorize the newly created Parliament to further limit the right to appeal, it almost makes it impossible for Her Majesty, in future in reference to this subject, to exercise the right of veto which, of course is inherent in the prerogative.
*Mr Asquith: Only as regards appeals from the new High Court. The Parliament can limit no other right of appeal.
Mr Chamberlain: Surely an appeal from a State might very p64) likely come to the High Court and then no appeal would lie to Her Majesty in Council. I would not argue the legal point with my right hon. friend, but I think it will be found inasmuch as any appeal may come from the supreme Court of a State to the High court there will be a very considerable limitation on the right of appeal , because there would be no appeal from the High Court to the judicial committee of the Privy Council. I go on to another point to which I wish to call attention. Although in direct terms this bill does not limit the right of veto, which is a right although undoubtedly reserved to the Crown, which must , nevertheless be exercised with the most scrupulous care and consideration. ---- although it does not take away that right, it would make it almost a stultification on the part of Her majesty, if the if the Crown were advised to exercise the right in a matter which we had expressly referred and delegated to the new Parliament. Now these are the proposals. What are the main objections to these proposals? The matter was under discussion in the convention at Adelaide. When the Australian Premiers were here in the Jubilee year in 1897, I had the honour of discussing the subject with them, to which some public reference was made in Papers presented to this house. The discussions were as a rule in the nature of private discussions, but at the request of Mr Reid, who was , as it were the Dean of the Representatives from Australia, being the Prime Minister of New South Wales the mother colony-I handed to him a memorandum on the part of Her Majesty's Government of the amendments on the draft proposal, which we had seen , which we thought were desirable; and I specially called his attention to the probability that the Imperial Parliament would think it its duty to interfere if there were any limitation on the right of appeal. In this passage I quoted a passage from a memorandum from the Privy council, which gave in very succinct terms the main objections to any proposals of this kind In 1871 it appears a question was raised at the instigation of some of the Australian colonies, and then the Privy Council in their memorandum .p 65)
The appellate jurisdiction of Her Majesty in Council exists for the benefit of the colonies, and not for that of the mother country, but it is impossible to overlook the fact that this jurisdiction is part of Her Majesty's prerogative, and which has been exercised for the benefit of the colonies since the date of their settlement. It is still a powerful link between the colonies and the Crown of Great Britain, and secures to every subject throughout the Empire the right to claim redress from the Throne. It provides a remedy in many cases not falling within the jurisdiction of the ordinary courts of justice. It removes causes from the influences of local prepossession; it affords the means of maintaining the uniformity of the law of England and her colonies which derive a great body of their laws from Great Britain, and enables them, if they think fit, to obtain a decision in the last resort, from the highest judicial authority, composed of men of the greatest legal capacity existing in the metropolis.
The Australian colonies in 1871 realised the validity of these reasons, and the matter was allowed to drop. It was raised again in 1875, by the passing of the Act by which the Dominion of Canada was created; and again the Privy Council pointed out that----
"this power has been exercised for centuries over all the dependencies of the Empire by the Sovereign of the Mother country sitting in council. By this institution, common to all parts of the Empire beyond the seas, all matters whatever requiring a judicial solution may be brought to the cognisance of one Court in which all have a voice. To abolish this controlling power and abandon each colony and dependency to a Separate Court of Appeal of its own, would obviously destroy one of the most important ties connecting all parts of the Empire in common obedience to the courts of law, and to renounce the last and most essential mode of exercising the authority of the Crown over its possessions abroad.
There are other reasons besides these which are stated by the Privy Council which we have now to bear in mind. This Constitution is to be an Imperial act and it is, in substance, the delegation of powers to an authority which is created by the Imperial Parliament. Is it reasonable that when questions arise, as they will arise, as to the interpretation of the powers of the clause by which this authority is delegated, the Imperial power which made the delegation shall not be represented upon the Court which is to give a decision? Then Sir, there is another point. The terms of the clause are such as certainly to introduce confusion where uniformity is most desired. No appeal is to lie except where the " public interest" of a portion of Her Majesty's dominions outside Australia are concerned, the advice which I have received on the subject goes to show that there may be endless litigation as to the precise nature p66) of the cases in which the public interest will arise. I believe there is no legal authoritative definition of what constitutes " public interest". I believe it to be extremely difficult to say whether in the case of a number of individuals , subjects of Her majesty, but not of course constituting in themselves part of Her Majesty's possessions, whether in that case it would be held that the public interests of Her Majesty's possessions were involved. And I am rightly informed, therefore, a clause of this kind, instead of lessening litigation, would increase it, and would bring up to the Privy Council for its decision case after case in which it was a question whether or not the public interests of Her Majesty's possessions were or were not involved. But there is something still more serious than that., I am not going to dwell on it, because it is so exclusively legal that I would rather leave it to my hon. friend, the Attorney General to explain later in the discussion. But I am told that under this proposal, as it stands, it is almost certain that in the confusion of appeals there might be a conflict of authority between the new High Court and the Judicial Committee of the Privy Council. Can there be anything worse than two co-equal Courts concurrently giving diverse decisions in matters of the greatest importance that may be submitted to them affecting the British Empire? Lastly, there is the also the question, to which I have already referred that the Constitution empowers the new Parliament to deal with maritime jurisdiction, with the Pacific Islands, with foreign enlistments, and with external affairs. The responsibility for the action of the Parliament of Australia and its legislation rests with us. We may be brought into a hostile position in regard to any foreign country in consequence of the action of the colonial court. Is it reasonable that while we undertake to cooperate with the colonies in their defence, while the whole strength of the Empire would be brought to bear in order to protect the interests of the colonies--- is it reasonable that the question whether or not their Parliament has gone beyond the powers delegated to it, in some matter in which a foreign country-not one of Her majesty's possessions is concerned should be settled without an appeal to the Privy council; for these and other reasons but I have stated the principal (p 66) ones- Her Majesty's Government as soon as they obtained the Bill from the Premiers , were desirous of making some amendments. There were several points in regard to which we desired to make changes, but this was the principal one; and we cordially invited the governments of the federating colonies to send delegates to this country to represent them , to give the necessary explanations and to assist us with information in the course of the passage of this Bill through the House. We must joyfully acknowledge that the Australian colonies could not have paid us a greater compliment than to send us gentlemen so able and so representative as those who constitute the delegation; and I am delighted to say that, whatever differences may have arisen upon such points as this to which I have been referring , our personal relations, ever since their arrival have been of the most cordial and friendly description. Now, most unfortunately, as we think, when the delegates arrived in this Country we found they held themselves precluded by their mandate--- by the fact that a referendum had been taken on the bill , and that as they contended, public opinion had been expressed--- from accepting any amendments at all. They argued, and they have argued since, that the result of the referendum upon the question of this Bill should or should not pass , whether there should be a federation or should not, did in fact imply agreement with every line and every word of the bill. Of course, holding that view, it became impossible that we should come to full agreement. It is true that in the first instance the delegates used languages which filled our minds with hope, because they said that they interpreted their mandate as one to get this bill passed intact if they could, and, if not, with the slightest amendment possible. But unfortunately, they have not been able to tell us that the slight amendments which they had in view included anything so important as the amendment which we have thought it our duty to make. In these circumstances the next step was to ask the Governments of the Federating colonies to enlarge the instructions of their delegates and that was done in a paper which has been presented to the House it is interpreted by the delegates as a confirmation (.p 68) and approval of the attitude which they have taken up. Of course everyone must be allowed to offer his own opinion on the matter. I confess that to me it does not seem to go as far as the delegates think. It is not in effect so irreconcilable, because while it does undoubtedly indicate the desire of the Premiers that the bill should pass as it stands, while it does undoubtedly indicate their opinion that they have no authority to accept the amendment, it does not seem to me to imply that if Her Majesty's Government upon its own responsibility , were to make the amendment suggested there would be any strong feeling in Australia , but that the people and Governments of Australia would be prepared in all good feeling be prepared to accept the suggestion. We are called upon therefore to make our decision. It has been recognized that the position of the imperial Parliament is that of trustee of the Empire., and that although the policy of reconstruction may be a different matter, the right of reconstruction undoubtedly rests with us. If therefore it were a fact that Australia as a whole was absolutely united on this question, if the clause as it stands had been taken as the irrevocable and final decision of the Governments and people of Australia, our position would no doubt be a very delicate and very difficult one, because as I have already pointed out, we recognize fully the unwisdom, I had almost said the impossibility, of pressing views on great self governing communities to which they are absolutely opposed. However great we might think the mistake they are making, and however great we might think the injury to the Empire , still we should have to set against the danger of interfering with those rights which they regard as their undoubted palladium. I do not know to what conclusion we should have come if that had been the position. We should have had to consider not the wishes of Australia alone. We should have had to consider also that, if we accept their view as to right of appeal, our decision will react upon other colonies just as much entitled to consideration. As the great colonies of Australia-on Canada on South Africa, on New Zealand. I read a statement the other day attributed to Sir Henry de (.p69) Villiers Chief Justice of the Cape and recently appointed member of the Judicial Committee of the Privy Council. Sir Henry de Villiers deprecated any change in the existing right of appeal. He went on to say that if such a change were made it would be impossible , or it would be unlikely that either South Africa or other parts of the British Empire would rest content without a singular or some equal change being made in reference to their position also. What would be the result? The result would be the weakening and probably , ultimately the destruction of the Court of Appeal for the Empire, and this Court of Appeal , whatever defects it may have possessed , has at all events worked well in the past. It has been acknowledged to have been of importance and value to the great colonies , and it has within it the germs of a still greater, a still more important , and a still more beneficent institution. Now I come to what is perhaps the most pleasant portion of my task. Fortunately Her Majesty's Government are not placed in this difficult position. We have not to choose between what we firmly believe to be the interests of the Empire on the one hand and the united and absolutely convinced opinion of Australia on the other. For my part I do not understand at all that in assenting to the Bill by a referendum the majority who voted for it intended to preclude the Imperial Parliament from considering the bill and making amendments. On the contrary I have information from some of the Governments that their intention was exactly the reverse., and they always believed that this great mother of Parliaments , as a proof of its goodwill, would give its best consideration to this important matter and , if it saw fit, would suggest amendments and changes. It is putting too great a strain on the principle of the referendum to say that a referendum on a Bill like this , which contains such an enormous number of difficult and different propositions, carries with it assent to every one of those propositions. To say anything of the sort would be directly contrary to the argument used by some of the representatives themselves by which the referendum was carried. The people of Australia were told, "It was not so much your duty at the present moment to look at the individual parts of the Bill to this clause or to that section of a clause to which you may possibly (p69) take exception. You have got to consider this great work as a whole and if as a whole you agree to it, and are willing to accept it, then vote for the referendum". That is the argument, but that is an argument entirely inconsistent with the present view that the referendum carries with it absolute agreement with every line of the Bill. That this is so is proved by the action of the Great colony of Queensland. Queensland accepted the referendum. Queensland by one of the largest majorities accepted this bill. And yet, the delegate of Queensland, the Government of Queensland, the ministers of Queensland and the people of Queensland are at the present time urging, with all the strength in their power, that Her Majesty's Government shall restore the right of appeal. Queensland, one of the five original federating States. Queensland represented by one of the Premiers who refused the other day to enlarge the power of the delegate; Queensland who has sent us a delegate in common with the other colonies is entirely opposed to the view taken by four of the delegates, and is strongly in favour of the line which Her Majesty's Government venture to recommend to the House. I go much further. It is not merely a question of Queensland. Since this matter has been discussed here, this particular question of appeal--- not the Bill as a whole has been raised in Australia as well as in this country. It has been raised as a point for separate and decision; and while I do not want to exaggerate my own case I can conclusively show to the House that there is no such unanimity among the four colonies of Australia. whose delegates are pressing this change as would justify us in sacrificing the interests of the Empire to the views which are formulated in the Bill. The clause was introduced after lengthened discussion in convention after convention, in the course of which different conclusions were arrived at different times. The final decision was arrived at by comparatively small majorities. I think only thirty six members were present out of a convention of nearly sixty members. I do not doubt however that it represented the view of the convention at that time, but I might point out that Queensland was then absent and that if the Queensland delegates, twelve in number had been present , the decision of the conference - (p 71) would have been reversed. Australasia has even colonies. Six of them are federating now. One of them is contemplating the possibility of federation. Of those seven colonies three of them are strongly in favour of our view. The proportion of opinion as re[presented by the public statements Governments concerned as in Australasia is as three to four. But that is not all. The Premier of Queensland declares that the Government and people of Queensland are strongly in favour of the alteration. In Western Australia the ministers are unanimously in favour of the amendment of Clause 74 . They are of opinion------
That by possession of one Court of Appeal for the whole British race, whose decisions are final and binding on all the Courts of the empire , there is constituted a bond between all British people which should be maintained inviolate as the keystone of Imperial unity.
The Government of New Zealand say that------
" in the best interest of the Empire the right of appeal on constitutional
grounds is one of the best links binding us to the mother country."
That is sufficient, I think, to show the character of the opinion in three
out of the seven colonies. But what about the remainder? What about New South
Wales? New South Wales is the mother colony. When the Constitution was submitted
to the legislature of New South Wales both houses passed resolutions urging
amendments to maintain the right of appeal. They were subsequently outvoted
in the convention, but their opinion remains and I think it is also the opinion
of the majority of the people. Yesterday I received a telegram in which it
is stated that the Prime Minister is reported by the newspapers to have made
a speech in which he emphasized his loyalty to federation ---- at one time
I believe he was opposed to federation--- and declared that at the recent
conference of Premiers in Melbourne the Premiers took a constitutional course;
that they also intimated that the alteration by me would jeopardize the Bill;
that Her Majesty's Government would probably amend the Bill if only on account
of this desirability of making the appeal uniform in all British colonies
, without which uniformity the rights of (p72) British subjects would differ
in different places ; and that they hoped Her Majesty's Government would not
amend the Bill in any other clause, as, if any other changes were attempted
, it would be a source of great danger to the rest. That of course is a condensed
report, and I give it for what it is worth, but certainly the implication
of what that report is that if the changes were confined to the particular
change I am advocating there would be no serious objection on the part of
New South Wales. Then I come to a remarkable expression of opinion, that of
the Chief Justices for the Colonies in Australasia. The seven Chief Justices
are unanimously in favour of the maintenance of the right of appeal . In the
newspapers this morning I saw a letter from my right hon. friend, Mr Kingston,
the delegate from South Australia , in which there were expressions which
I very much regret and which I am inclined to hope he himself will regret
having rather hastily used. He suggests that the chief Justices of Australasia
are moved in the opinion they have given by the hope of being appointed to
the new Court of Appeal. ( Laughter and cheers) Let me remind my right hon.
Friend and also those Members of the House who are inclined to cheer that
statement that one of the arguments most eloquently pressed on us by the delegates
in their memorandum is that the bench in Australasia is as pure , as high
minded, and has as great judicial capacity as can be found anywhere in the
British dominions. We have welcomed that assertion, but then you cannot ,
at the same time, apply to this self same Bench, the sordid and unworthy motive
which has been suggested. I do not believe there is any motive at all, either
in the opinion which has been given by the Chief Justices , or in the opinion
which has been given on the other side by the lawyers who possibly may profit
by retaining an appeal at home. In neither case do I believe that either party
has been moved in the slightest degree by any feeling other than a desire
that the best interests of Australia should be considered. I say it is a remarkable
and a very strong feature in my case ……Chief Justices who are all
men of highest capacity, who have enjoyed the greatest respect and popularity
in Australia , and who are recognized (.p 73) here as most distinguished men,
should be unanimously in favour of the alteration. I inquired about newspaper
opinion. I knew of no other way of getting at popular opinion.; and what do
I find. I find the enormous preponderance of newspaper opinion is in favour
of the repeal of this clause. Just before I entered the House I received a
telegram from Victoria, the other great colony next in population to New South
Wales . The telegram which is from the officer administering the Government
says----
"The amendment of Clause 74 of the Federation Bill is vigorously supported
in all of the newspapers of Victoria today. I have obtained the opinion of
as many trustworthy persons of all classes as possible. I have not met one
opposed to your amendment. If the amendment is confined to Section 74 you
will be enthusiastically approved throughout Victoria."
The Chambers of Commerce of Sydney, Adelaide and Brisbane have all communicated
through the Prime Ministers of these colonies urging the maintenance of the
appeal; public bodies like the Metropolitan Board of Works, representatives
of trade in public meetings, representatives of the bar, the banks, insurance
companies and others. ----- representative bodies whose interests are , of
course largely concerned in this matter---- all are unanimously in favour
of maintaining the appeal, and to the best of my knowledge and belief, there
has not been held one single meeting throughout Australia against the proposal.
I do not wish to attach too much importance to what may be a one sided opinion.
I do not deny in fact , I most readily admit that there is strong opinion
in favour of the Bill , which is not represented by any of the quotations
I have read to the house, and which has not come to me in the course of these
discussions except from the statements of the delegates who are in this country.
I admit there is a strong and I have no doubt an equally patriotic opinion,;
but what I say , and what I think the House will be absolutely convinced of,
is that there is no such unanimity as should make us hesitate in a matter
of this vast importance, at all events to take time, and for the present ,
at any rate, retain the right of appeal as it now exists . It is under these
circumstances that I have no hesitation in recommending the amendments -very
small in point of extent, involving the alteration of only a few words or
a few ( p74) lines, but has no doubt substantial in importance--- which will
preserve for Australia precisely the same right of appeal as is now enjoyed
by Canada, south Africa and India. I believe that it is called for by the
interests of the Empire, and I trust and believe that it will be accepted
by the people of Australia as made in the spirit of co-operation and not at
all of antagonism, and in full belief in our sincere interest in and approval
of the great work they have carried out.
Mr Asquith: Are the amendments set out in the Blue Book?
Mr J Chamberlain: No, but I think they are substantially the same . There
is only one other point to which I wish to call the attention of the house
. In the conferences which Her Majesty's Government held with the delegates
from Australia allusion was made to the desire which has long been entertained
by Her Majesty's Government to reconsider the constitution of the Supreme
Court of Empire. What the Lord Chancellor, as representing specially the Government
in this matter, has had in view is the amalgamation of the Privy Council with
the appeal jurisdiction of the House of Lords. But the House will readily
see---- the legal members perhaps more readily than the others----
That this would be a very great change involving very difficult and important
constitutional questions , about which it would be of the highest importance
to consult Canada and the other colonies and dependencies interested. Therefore,
in this matter, as in the matter I previously referred to of the interpretation
of colonial laws within the Act, we have to provide for the immediate future
without prejudice to what may be done hereafter. I would remind the House
that the present position is not satisfactory. When we came to office, we
found a Bill prepared by my predecessor by which it was proposed to call to
the Privy Council one representative of Canada, South Africa and Australia
to assist in the deliberations of the Privy Council. I found that scheme in
the pigeon-holes of the Colonial Office. Her Majesty's Government adopted
it because, although they thought it was not satisfactory still it was a tentative
step which would give us some experience and seemed to meet the wish, already
ex- (p 75) pressed of the colonies. That was passed in the first session of
the present Parliament. The result has been as we expected. It made no proposal
for paying these gentlemen. The Australian colonies and the other colonies
concerned ----I am not quite certain about Canada---- did not propose to pay
themselves , and that confined the selection, and the gentlemen actually selected
were Judges of high distinction, but who were still engaged in judicial functions
in the several colonies. The result was that they could not be here permanently
to deal with colonial cases in which they were interested. Another subsidiary
result was that when they were here and a colonial case came up, it might
well be one with which they had already dealt in their judicial capacity in
the colonies. Practically, therefore, although some of these Judges--- I believe
all of them-have taken their seats and have assisted in the deliberations
of the Judicial Committee, we have not secured by the means of that Act such
a permanent constitution of the Judicial Committee as would make it certain
on every occasion when a colonial case was involved there was a colonial judge
with full knowledge of local conditions well qualified to advise his colleagues.
Therefore, what we propose, pending further consideration which must be given
to any greater scheme, is to appoint for seven years a representative from
each of these colonies and India to be Members of the Privy Council, who shall
also act as Lords of Appeal , and whom will be conferred life peerages. So
that they may continue to sit in the House of Lords , though they may not
act as Judges after their term has expired. It may be that those services
will be renewed, and provision may be taken to renew them if thought desirable.
The Judges so appointed will be paid the same as the Lord of Appeal are now
paid, and the payment will be made at the cost of the Imperial Parliament.
Sir, that is the proposal which I hope will be submitted to that other House
of Parliament in a very few days and which I hope will be approved by the
Parliament as a whole. I feel I ought to apologise to the House. I have travelled
over a great number of subjects in the course of this long review of an intricate
subject. I have now only to ask the house to consent to the introduction of
this Bill. (p76) I hope they will be content subsequently to pass it exactly
as it has been introduced. I am quite certain that no more important measure
of legislation has ever been presented to the Parliament., and that nothing
throughout the whole course of the Queens reign will be a more beneficent
feature in that long and glorious history.
Motion Made and question proposed. " That leave be given to introduce
a Bill to constitute the Commonwealth of Australia" ---(Mr Secretary
Chamberlain)
________________________________________________________________________________
Commonwealth of Australia Constitution Bill Hansard p 758 21 may 1900 United Kingdom Parliament.
Commonwealth of Australia Constitution Bill
(Second Reading)
THE SECRETARY OF STATE FOR THE COLONIES (Mr J Chamberlain., )
In moving the second reading of this Bill I want to call the special attention of the house to the amendments which we have embodied in the Bill., and which constitute the difference between our Bill and the bill as originally presented to us by the delegates from Australia. I mentioned in introducing the Bill that there were a certain number of drafting alterations no serious importance to which the delegates had agreed, and I do not propose to refer to them again. They are very trifling in importance. But there were two points of very considerable importance. The first was the application of the Colonial Laws Validity Act to the legislation off the Commonwealth Parliament. We considered that a doubt had been created as to whether that would apply to the work of the Commonwealth. That doubt arises entirely from the introduction into the Commonwealth bill of a definition of the word " colony" as a "colony or province" which seemed therefore, to exclude "commonwealth'. But having had the advantage of further discussions with the delegates , Her Majesty's Government and the delegates from Australia entirely agreed that the best way of meeting this difficulty and of removing any doubt will be to omit from the Bill the words defining a colony. When those words go out the doubt which they raised will cease to exist, and it will be unnecessary to make any further alteration. So far as this point is concerned we have come to a perfectly satisfactory agreement. Perhaps I should say here that when I speak in future of the delegates from Australia I refer specially to the delegates from New South Wales, Victoria, South Australia and Tasmania. It is well known that the delegate from Queensland differed from his colleagues in regard to the important point of the (p759) appeal. The question of the right of appeal is undoubtedly one of very substantial importance, and I have explained the principles upon which Her Majesty's Government proposed to deal with it. I stated in the first place , that we had come to the conclusion that, whatever our opinions might be as to the value or advantage of any particular provision in the Australian bill, so long as it dealt with Australian Interests , it would not be wise or desirable that the Imperial parliament should interfere. We might make suggestions, but if they were not accepted on behalf of the Australian Colonies we did not think it was our duty to interfere or insist on amendments against their settled convictions. On the other hand, I have also ventured to lay down as an important principle that wherever Her majesty's subjects outside Australia or of Her Majesty's possessions outside Australia or our relations with foreign countries were concerned-in those cases we were acting as trustees for the Empire and we had a right to claim that the existing power of appeal should in no way be lessened or affected. I confess that in the discussions which I have had the honour of having with the delegates I have never seen that there was a very real difference of opinion between us. It is true that Clause 74 as it stood violated the essential principle which I have laid down. It did propose to limit the right of appeal in cases in which other than Australian Interests were exclusively concerned. But even in Clause 74, as it was originally drawn there was an exception made. The clause read ----
" No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution or of the Constitution of a State unless the public interests of some part of Her Majesty's dominions other than the Commonwealth or a State are involved."
It is perfectly obvious to me from the introduction of those limiting words that the framers of the Constitution at the convention themselves recognized the distinction between matters which were Australian and matters which were extra Australian. But the distinction in that clause did not go far enough. The phrase " public interest" was so ambiguous that it rendered it uncertain whether the private interests of investors, for instance , or of any body of Her Majesty's subjects would be held to be the public interest of any portion of Her majesty's possessions, and a very large class, therefore, of British subjects interested in Australia would be shut out from their full right of appeal by the clause as it was originally drawn. I pointed out, also, what perhaps from the Imperial point of view was of even greater importance, that questions of foreign relations which might arise in many subjects which were permitted in the Federal Parliament to legislate upon would also be excluded from all possibility of appeal to the Privy Council. It seemed to me that that was a matter of so much importance to the United Kingdom especially and to the empire at large that we could not ; in consideration of the duty and responsibility imposed upon us agree to the Bill as it stood in that respect.
We endeavoured to meet these objections , which we ourselves felt, and to make what we believed was the intention of the Australian people and of their representatives more clear by amendments which have been embodied in the Bill and which are made certainly not in our interests alone, but in pursuance of that trusteeship to which I attach so much importance. I ventured to say when I was introducing the Bill that the proposal of these amendments that Her Majesty's Government was not likely to be in any way resented by the people of Australia. I repudiated altogether the notion that they would be construed as a flouting of their representatives or a rebuff to themselves. I said there was no fear whatever , in my opinion, of any serious conflict between ourselves and our kinsmen in Australia and that the discussions had been, and would be, conducted throughout in a friendly spirit. My confidence has been , I think wholly justified. These proposal of ours have been before the people of Australia now for a full week., and anyone who has taken the trouble to read the reports which have come home to us will be convinced as I am , that our proposals have been favourably considered in most cases, by the people of Australia. The evidence shows that the people of Australia recognize thoroughly the spirit in which we proposed these amendments , and that they ridicule the idea that any( p 761) insult was intended or was conveyed by these amendments.: and they have shown a willingness to give the fullest consideration of those arguments which we put forward in their support. But this treatment of the subject has not been confined , I am glad to say , been confined to the people of Australia. The delegates to whom I have referred , and who, no doubt, differed from us in the first instance in regard to this matter , have treated it subsequently in precise the same considerate spirit. They also have been willing to recognize that we have a duty thrown upon us which we cannot ignore, and they have endeavoured in every possible way to meet our wishes and to prevent any disagreement. No doubt they came to this country in the belief that they had a mandate to secure if possible, the passage of this Bill intact: and I do not doubt for a moment that they would have preferred , if we had been able to agree with them, that the bill should have been passed exactly as it was produced in Australia. ; but finding that to be impossible, they have as I have said, treated the matter in a most considerate spirit. They have discussed with us various methods of meeting the objections which we took to the original Bill. And, so far as the four delegates are concerned , I am happy now to be able to inform the House that we have come to an absolute agreement. This agreement follows exactly the principles I have laid down. That is to say it leaves Australia absolutely free to take its own course where Australian interests are solely and exclusively concerned , and it makes provision in all other cases , in which other than Australian interests are concerned that the right of appeal shall be fully maintained. The delegates pointed out to us that their desire. And what they believed to be the desire of the people of Australia , was that where differences arose as to the interpretation of the Constitution between two States or between any one State and the Federal parliament , and where therefore , Australian interests were exclusively concerned, they should have the right of dealing with such questions finally in Australia, and I at once admitted, on behalf of Her Majesty's Government that that was entirely in accordance with the principle which we had constantly laid down. -that if it could be shown that in questions of that sort Australian interests were exclusively concerned, we claimed no right whatever to interfere with their decision. Accordingly we have agreed to exclude that particular case from the clause in which an appeal lies to the Privy Council. But we asked that, inasmuch as experience has shown , in the case of Canada , that an appeal is such cases was valued by both parties and that experience might show in Australia that it would be a desirable thing to have a court free from all prepossession, to which both parties could appeal , words should be inserted giving this right of appeal in every case in which both parties consent. The effect of this understanding will be that Clause 74 will be exactly reversed: that whereas, in the original clause, appeal was to cease in all cases except where the public interest of some portion of Her Majesty's dominions outside Australia were concerned, in the clause as we now propose to insert it, an appeal will lie in every case in all cases where Australia's interests alone are concerned. That I think is a form of clause which gets rid of practically every one of the difficulties which I anticipated when I referred to the original clause in introducing the Bill. There is another point to which we took exception. It was a provision in the bill which gave the Federal parliament the right to pass laws amending or limiting the right of appeal. The delegates pointed out to us that this right is inherent in the powers of every Parliament in Australia. The Parliament of every single State in Australia has , has in its power for the peace, order and good government of the country, the power, if it pleases to make laws limiting the right of appeal, and that power is subject to the right of Her majesty to disallow or have reserved any Bill dealing with this subject. The delegates contended that as their Constitution specifically refers to the subjects which alone can be treated by the Federal parliament it was necessary to specifically to mention this subject, or the Federal parliament would have less power than the constituent States. The reasonableness of that we fully acknowledged, but we felt that if we specially gave this power by this Constitution we might be assumed to be giving away the right to reservation with regard to this subject. It appeared to be quite impossible that hereafter we might be accused of breach of faith if, when the Federal parliament had legislated, we had reserved a Bill under the powers given to us in another clause of the Constitution . The House probably aware what the power of reservation is. When an act passed by a self governing colony is reserved it is treated as a dead letter. And it does not come into operation at all unless in the course of the next two years Her majesty formally signifies Her assent. She has not however , to announce her disallowance, or to veto the Act; She has only to refrain from allowing it. Now the delegates have agreed that if the power to deal with the subject is maintained in the bill , there shall be added this proviso. ----- "Provided that in every such case such Act shall be reserved for Her Majesty's pleasure"
So that whereas all other legislation of the commonwealth comes under the general rule that it may be reserved , if the Commonwealth should deal with this specific and delicate subject then the proviso is that it must be reserved. And of Course, Her Majesty's Government for the time being will have the opportunity of considering what the nature of the legislation is, and what advice they should give to Her Majesty in regard to it. I may say at once that these discussions which have been going on entirely meet the views of Her Majesty's Government. They give us all that we have ever asked for , and they have the enormous advantage of being equally satisfactory to the delegates of the colonies concerned. I have received this morning the following letter from the four gentlemen named----
Whitehall Court May 21st
Commonwealth of Australia Bill
Sir--- In relation to our interview of last Thursday , we have no hesitation
in accepting your offer to substitute the amendments then discussed in place
of the amendments at present proposed in the bill and thus secure its passage
without further alteration. We thank you heartily for so far meeting our request
that our bill should be accepted without alteration.
We have the honour to be, Sir,
Your Obedient servants
" Edmond Barton"
"Alfred Deakin"
"C.C. Kingston."
"P.O. Fysh"
I read to the house the form in which the amendment with regard to the Court of Appeal now stands, but I wish to guard myself against being supposed to be absolutely pledged to the exact words. All this business has to be conducted under a certain amount of pressure , and it may be that, by mutual agreement, we may find some alteration in a particular word may hereafter be necessary and desirable. As it is it stands as follows.
Appeal to Queen in Council
74. No question however arising (No appeal shall be permitted to the Queen in Council from a decision of the High Court ) upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, (shall be capable of final decision except by the High Court, and no appeal shall be permitted to the Queen in Council from any decision of the High Court on any question, unless by the consent of the Executive Governments concerned, to be signified in writing by the Governor General in the case of the Commonwealth and by the Governor in the case of any State.
(shall certify that the question is one which ought to be determined by Her Majesty in Council. The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave .)
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked,*13* but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure. (transcribers Bold)
I have spoken entirely to the four delegates , representing four colonies whom I have named. There are two other colonies which are concerned in this matter. One is Western Australia which has not, of course, up to the present time agreed to enter the Federation, but to whose Parliament and people the is very shortly to be put. From the Officer administering the government of Western Australia I have received the following.
In reply to your telegram from Mr Barton, forwarded to my responsible advisers through the Premier of New South Wales my responsible advisers prefer the amendments proposed by the Imperial Government to those suggested in the telegram of Mr Barton. They consider that there should be no power in the Federal parliament of limiting matters of appeal to the Queen in Council, and are of the opinion that in all matters there should be a right of final appeal to one tribunal for the whole Empire.
I communicated of course to Mr Dickson, the delegate of Queensland the proposals which have been made and which appeared to Her Majesty's Government to be satisfactory. He telegraphed accordingly to his Government and he has received from them late this afternoon the following reply----
" do not approve of modifications suggested by Mr Barton in Imperial amendments. Our great anxiety with regard to retention of the plenary appeal to the privy council has been to ensure that constitutional disputes shall be referred to an impartial tribunal free from local bias. It is out of the question that successful party in the Federal court would consent to appeal to Privy Council. Hope Secretary of State for Colonies original proposal will be given effect to. Public opinion within colony strongly in favour of it."
Of course it is evident from these two telegrams that these two colonies concerned greatly prefer our original proposal. We appreciate very much this support of the views which we expressed. We have not altered those views in the slightest degree. We think that in the interests of Australia itself the plenary right of appeal should be preserved, but we cannot in accordance with the principle to which we have committed ourselves namely- not to interfere where exclusively Australian interests are concerned - we cannot take sides with the two colonies against the four. If even yet it were still possible to persuade representatives of the four colonies to make a further concession, nothing would give greater pleasure to Her Majesty's Government. But that is a matter which, in our view, must be discussed between the colonies themselves . Probably it would be better discussed by them in Australia , and we shall be prepared to register their decision whatever it may be. I hope that after the statement which I have been able to make , the House will not think it necessary to delay the progress of this bill by any considerable discussion. Immediately the bill has passed the second reading , I propose to lay upon the table the form which the amendments will take in order to carry out this agreement. I hope that its very early passage may then be anticipated. I hope that the Bill will be passed unanimously and I firmly believe that in that case, even without any such further alteration as Queensland and Western Australia desire, the House may pass the bill with full conviction that in sanctioning the union of Australia they have in no way impaired the unity of the empire, and we shall be able to contemplate the consummation of this great achievement without the slightest drawback to the pride which we feel in the wisdom and the patriotism of our Australian kinsmen. Motion made and Question proposed, "That the bill be read a second time". Mr Secretary Chamberlain
____________________________________________________________________
The Commonwealth of Australia Constitution Bill.
The ATTORNEY GENERAL ( Sir Robert Finlay, Inverness Burghs)
Almost every speaker tonight has expressed gratification at the tone which
has characterized this debate. It is a tone which has given unmitigated satisfaction
to every part of the House, and I think I might say not a single jarring note
has been struck. I desire to express in the fullest manner my appreciation
of the way the hon. member for East fife opened the debate on the part of
the other side of the house. I am sure everyone feels there are subjects which
far transcend all the interests of party, and on which both sides of the house
are thoroughly in agreement. This debate , if that is the proper word to apply
to it, has not only given satisfaction to the House, but it will give satisfaction
throughout the whole of the British Empire and to the friends of the British
Empire in every part of the world. I think events have vindicated the wisdom
of the course that was taken by my right hon. friend the Colonial Secretary
in not intervening in the earlier stages of these negotiations. It was suggested,
in a not unfriendly spirit, that by interfering some years ago even the possibility
of diverging views might have been avoided. I would only remind friendly critics
who expressed that view that nothing could be more difficult and delicate
than to intervene at an early stage of the negotiations that were being carried
out in Australia upon points of this description. The happy result at which
we have now arrived seems to show that, whatever course might have been possible,
the right course has been taken throughout. I find myself in agreement with
a great deal that has been said by my right hon. friend, the Member for South
Aberdeen. As to the necessity for a court of undoubted authority to interpret
the constitutional power to make certain laws. He truly says that in this
country we are not familiar with such functions………..as he pointed
out, under the American Constitution , and as has been seen in regard to other
parts of the British Empire, questions are certain to arise with regard to
the authority of legislative bodies to pass certain laws. And I recognize
in the amplest terms the necessity of having a Court of Supreme authority
and influence for the determination of such momentous questions. The principle
which has guided the conclusion that has been happily so far arrived at, is
this. All that concerns Australia alone, if the Australians desire it, will
be decided in their own High Court . What concerns other parts of the Queens
dominions , or the British Empire as a whole, will be subject to an appeal
to an Imperial Court. It will be obvious to the House that the question of
delegation of powers may be an Imperial interest. It may be of the utmost
moment to the Empire to know whether a certain power has been delegated to
the Colonial legislature. On the other hand the question of how such powers
are to be distributed as between the general legislature of the Central Government
of the Australian Dominion of the queen and the legislative Governments of
the States is a matter which concerns Australia. The extent of the delegation
may be an Imperial Interest. With regard to the question of distribution,
the question as to the limits of the powers of the Commonwealth and the states
inter se , questions of the limits of the powers of the Legislative governments
of the States as between themselves - even on those questions there may be
a great desire under certain circumstances , to appeal to the Privy Council.
Her Majesty's Government have found it their duty to safeguard and secure
the possibility of a right of appeal to an Imperial tribunal in every case
where the interests of the empire hold, or the interests of Her Majesty's
subjects in any other parts of the dominion are affected. It is a matter for
congratulation that the course of events has resulted in the discussion to
which we have just listened.
THE CONSTITUTION - CHAPTER III SECT 74
Appeal to Queen in Council
74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked,*13* but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure.
*13* S. 74-See Privy Council (Limitation of Appeals) Act 1968, Privy Council
(Appeals from the High Court) Act 1975 and Kirmani v Captain Cook Cruises
Pty. Ltd (No. 2); Ex parte Attorney-General (QLD) (1985) 58 ALR 108.
THE CONSTITUTION - CHAPTER VIII SECT 128
CHAPTER VIII - ALTERATION OF THE CONSTITUTION
Mode of altering the Constitution
128.*1* This Constitution shall not be altered except in the following manner:- Paragraph altered by No. 84 1977 s 2 The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State to the electors qualified to vote for the election of members of the House of Representatives. Paragraph altered by No. 84 1977 s 2 But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.
When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails. And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent.
No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.