§ Considered in Committee.
§ (In the Committee.)
§ [Mr. J. W. LOWTHER (Cumberland, Penrith) in the Chair.]
§ Clauses 1, 2, 3, and 4 agreed to.
§ Clause 5:—
§ THE SECRETARY OF STATE FOR THE COLONIES (Mr. J. CHAMBERLAIN,) Birmingham, W.
The Amendment which stands first in my name, as well as some other Amendments in my name, are all closely connected. They are all placed 334 on the Paper in connection with the arrangement which, as I stated to the House, had been made with the delegates of the different colonies with regard to the question of appeal. The earlier Amendments are purely verbal, consequential on what is really the only substantial Amendment, that to Clause 74. But as, of course, if the Committee were disinclined to pass the Amendment to Clause 74, these earlier Amendments would be unnecessary, I think it would be convenient that I should take this opportunity of stating our position in the matter. I also think it would be convenient, if there is to be a discussion on the principle-which I rather hope may not be the case-that it should take place on this formal Amendment. I think the question is one of some difficulty and complexity, and, therefore, even at the risk of repetition, I will venture to remind the Committee of what has already passed. The Bill which was sent to us from Australia dealt with the question of appeal in rather a drastic fashion. It practically abolished the ancient appeal to the Privy Council in constitutional cases, except where the public interests of any part of Her Majesty's dominions were concerned. To their proposal the Government, acting as trustees for the Empire, took serious exception. We stated from the first that it would be quite impossible for us to assent to it. We explained that we held it to be our duty to maintain this right of appeal wherever any interests outside Australia were concerned. We stated however, at the same time, that where questions arose which were purely of Australian concern, whatever opinion we might ourselves entertain as to the wisdom of the proposals that were made by the Australian people, we should not think it our duty to interfere or to insist upon any Amendments. We were unable at that time to come to any agreement 335 with the delegates who had been appointed by the five federating States. They were in a somewhat exceptional position, because they had at that time only received a special mandate to carry the Bill exactly in the form in which it was passed by the Australian people. They did not feel themselves competent, therefore, to discuss with us any form of amendment. Accordingly Her Majesty's Government introduced a Bill with our own Amendments. On our own responsibility we restored the right of appeal as it had previously existed. But after we had introduced the Bill in that form, and between the First and Second Readings, we had further communications with the delegates from Australia. Those communications, though not confined to the delegates of the eastern States, were chiefly with them, because the delegate from Queensland had already agreed to our proposal. It was the delegates from the four eastern States who still desired either that the original Bill should be passed in its original form or that some arrangement should be come to as to the Amendments we proposed. The result of those communications with the four delegates was that we came to an arrangement. I have observed that that arrangement is frequently spoken of as a compromise. I think that is altogether an inaccurate expression. As I understand it, a compromise is an amicable understanding between parties who have differed, according to which each party gives up something in order to secure unanimity. But in the present instance I should describe our understanding as an arrangement in which neither party gives up anything to which they attach importance, which I think is a more satisfactory state of things. We, on behalf of Her Majesty's Government at any rate, desired only that the right of appeal should be maintained in all cases in which other than Australian interests were concerned, and that was absolutely conceded to us by the four delegates concerned. They on their part, I will not say exclusively, but at all events mainly, desired that certain constitutional questions which might hereafter arise as to the limits inter se of the powers of the States and of the Federal Parliament should be finally decided by the High Court, and that also was secured to them by the agreement at. which we arrived. Having arrived at that agree- 336 ment, we had to communicate it to Queensland, and the Queensland delegate and his Government both objected to the arrangement, as they were prepared to go much further in the direction which indeed commended itself to Her Majesty's Government, although we did not think it our duty to force it on the Australian colonies. I wish the Committee to bear in mind the extraordinary difficulty of the negotiations in which I have been engaged. In the first place I have had to deal with five separate interests, not to speak of the interests of Western Australia and New Zealand, which, not being federating colonies, may be put, perhaps, in the second rank as regards this question. I have had to deal with five separate interests represented with five different colonies. The first difficulty was to ascertain the opinion of those five separate colonies. How was I to ascertain it? I was blamed, rather roughly I think, by the right hon. Gentleman the Leader of the Opposition for, as he said, going behind the delegates in this matter. am glad to think that they, at any rate, did not take offence at anything which I did; and I think that what has happened since has fully justified my attempt to ascertain from other respectable and influential sources the opinion of the Australian people as well as the opinions of the delegates and the Governments. But if I were to accept the opinions of the delegates as representative of the five Australian colonies, am met with this difficulty—that the Australian delegates themselves agree in stating that they had no credentials for such a purpose; that they came here with a limited mandate. If, however, I try to get the opinions of the Governments who appointed them I am met with this difficulty—that those Governments, for whatever reasons I am totally unable to divine, have refrained from first to last from giving me any official indication of their opinions. Up to the present day I am still without any official communication whatever in regard to the various proposals which have been under consideration. I say, then, that the position has been one necessarily of some difficulty. The agreement to which I have referred removed all difficulty so far as the Imperial Government was concerned. We have got by that agreement everything that we desire. There remains the necessity, if possible, of satisfying in any 337 final settlement the whole of the five colonies concerned, and in regard to that our position is really a Ministerial one. We have only to ascertain what the wishes of the Australian colonies are, and when we have ascertained them we have to carry them out. To us it is really of no consequence, so far as those Imperial interests go with which we were chiefly concerned, what the decision of the colonies may be. At the time I last addressed the House the position was this. Four colonies out of the five, by the mouths of their delegates, had approved of the agreement at which we had arrived. Therefore I placed on the Paper Amendments to carry out the decision which, although not unanimous, was at all events the decision of the majority of those concerned. Since then, through the usual channels of information—not by virtue of any official communication from any of the Governments concerned —I have learned that the arrangement to which we came is objected to on two grounds. In the first place, the colonies, perhaps with the exception of South Australia—and when I speak of the colonies I am speaking of the Governments of the colonies—appeared to consider that it would limit the right of appeal from the State Courts more than was done by the original Bill. It appears that there is some difficulty in ascertaining what would have been the exact effect of the original Bill. There is some difference of opinion amongst legal authorities in regard to this matter. Some assert that under the original Bill it would have been open to litigants, even where constitutional questions involving the powers of the States were concerned, at their option either to appeal to the Privy Council or to the High Court. Other authorities, on the contrary, say that in regard to those constitutional questions the appeal would only lie to the High Court, and this would be final. I do not pretend to settle that matter. I only say it is not as clear to me as it might be that the original Bill did allow of such an appeal. But at all events, it is clear to me that the general opinion in Australia at the present time is in favour of such an appeal—is in favour, that is to say, of a possible appeal to the Privy Council in cases which arise in the first instance in the State Courts. The second objection taken was that we had provided no 338 appeal should lie from the High Court in such cases, unless the consent of the Governments of the two States or of the State and the Federal Government respectively concerned had been obtained to such an appeal. That appeal would have been by the leave of the Governments concerned who were interested in the settlement of the constitutional question. A serious objection has been taken to that by very distinguished legal authorities in the colonies, and it appears to be supported by the Governments, that it was introducing the executive into judicial questions. That would be a most unfortunate result. As soon as these objections were clearly stated Her Majesty's Government endeavoured to see whether some other changes might not be made which would, as we hoped, secure unanimity, including Queensland as well as the other four colonies, and would satisfy the particular objections that had been taken. We were assisted in our inquiries by the opinion that came to us from Chief Justice Griffiths, in which he suggested certain amendments of the proposed agreement to carry out these objects, and I am glad to say that we have now again, after communication this time with all the five delegates, arrived at a further proposal which does, at any rate, absolutely meet the two objections to which I have referred, and I am not aware of any other objections that have been taken. We propose in the new form of the clause which appears on the White Paper to-day, and which I shall propose at a later stage, that the right of appeal shall be restricted only in a single case—only in the case of a constitutional question arising as to the powers inter se between the States or the States and the Federal Government, and arising in the High Court. We strike out altogether all reference to the State Courts, leaving the state of the law on the question of appeal exactly where it was before, and we deal only with exceptional cases arising in the High Court. If I may express in arithmetical terms my own idea of what has happened it is this. Whereas in the original Bill as it was presented to us by the Australians in nine cases out of ten the right of appeal to the Queen in Council would have been restricted, and whereas by an agreement which we came to before the Second Reading, and before the delegates of the eastern States were 339 heard, that right of appeal would have been restricted in perhaps five cases out of ten, now by the new arrangement it will only be restricted in one case out of ten. I do not put that before the Committee as an absolutely accurate statement, but I put it as representing my own view of the changes that have been made. As to one point, however, there can be no doubt whatever, and that is each successive change has been in the direction of the view entertained from the first by Her Majesty's Government. Our rights in the matter lapsed when we got the concession which secured the right of appeal in all cases which were external to purely Australian interests. But our interests in the matter remained because in our conviction it was to the advantage of Australia that it should maintain in the fullest degree this right of appeal, and that they should have thoroughly impartial and authoritative Courts to go to, as Canada can go and as Australia has hitherto gone. One other change has been made, which is also of great importance. We have now, with the consent of the five delegates concerned, substituted the leave of the Court for the leave of the Government. It is now, therefore, a purely judicial affair. In any case, even in a very limited class of cases in which constitutional questions arise—in which purely Australian constitutional questions arise in the High Court— the High Court may give leave to appeal; and, having regard to the unanimous opinion of the highest legal authorities in Australia as to this right of appeal, and apparently to the general conviction on the part of the majority, at any rate, of the legal profession and the majority of the commercial classes, I cannot doubt that in cases of real importance such leave would certainly be given. I have communicated to the whole of the Governments the proposals at which we have arrived. I have also communicated to them the fact that these proposals are recommended unanimously by the delegates in this country, but I have not had up to the present time any official reply from these Governments.
§ MR. J. CHAMBERLAIN
On Saturday. There has been time for a reply, because one or two Governments have 340 communicated, but they have not dealt definitely with this matter. If, however, one may draw a conclusion from other sources, from what has appeared in the newspapers and in reports from Australia, it would seem that the new proposals are likely to give general satisfaction. There is one further remark which I think I ought to make. I owe it to Mr. Dickson to say that while he has joined in recommending this proposal he has stated very fairly that neither he nor I is a lawyer, and that we may as laymen have misapprehended the effect of the proposals. I hope that that is not the case, and I am confirmed I think, in my opinion, as to the effect of these proposals by the stronger and much more valuable opinion of the Attorney General. I think it right to say that Mr. Dickson put forward a caveat, that if it should be found that the effect of the new clause is not as I have stated it he would not feel himself bound by the recommendations he has made. I will only add that I think the Committee will understand that while we rejoice very much that the Australians have voluntarily come so far in what we believe is the direction of their true interests in this matter, we desire nothing but to carry out their wishes, whatever they are. Therefore, if it should happen, as it may— although I have no reason to anticipate it —that in the interval between now and the report stage they should unanimously or by a majority desire any further change, always provided it does not interfere with the Imperial interests already guarded, I shall be prepared to propose such change to the Committee. I am not, therefore, binding myself to an absolutely final arrangement. That is a matter which, in my opinion, rests with the Australian colonies. I only ask the Committee now to pass in the form in which I put them forward the Amendments before the House, believing at all events they will go a long way in the direction of satisfying all the interests concerned.
In page 2, line 14, to leave out from the word 'Notwithstanding,' to the word 'State,' in line 18, both inclusive."—(Mr. Secretary Chamberlain.)
§ Question proposed, "That the words proposed to be left out stand part of the clause."341
§ *MR. HALDANE (Haddingtonshire)
The right hon. Gentleman has quite reasonably proposed to take the discussion on the new proposal of the Government at this moment, although it comes long before we reach Clause 74. When the right hon. Gentleman went on to suggest, as I understood him, that in this proposal there was really nothing calling for a prolonged discussion, I, for one, am unable to agree with him. Looking at the clause which he now proposes, it seems to me that the position which he takes up is widely different from the position he took up upon the First Reading. I feel all the more encouraged to call the attention of the Committee to this fact, because we are placed in a most extraordinary position by the course adopted by the right hon. Gentleman. What is that position? The clause which we are now called upon to debate is one which most of us have seen only within the last few hours. It was not on the Blue Paper, for on that Paper there appears a clause which has been printed, and which has been there for upwards of three weeks. Therefore, we have all been entitled to assume that that was the clause which indicated the proposition of the right hon. Gentleman, and we have been encouraged in that belief because it remained there and was circulated as late as Saturday morning last, notwithstanding the storm of adverse criticism by which it was received by almost every Government in Australia.
§ MR. J. CHAMBERLAIN
I do not wish to interrupt the hon. Gentleman, but I ask him to bear in mind that we have yet had no official criticism from any of the Governments to which he alludes.
§ *MR. HALDANE
I know that the right hon. Gentleman himself has rather an affection for newspaper reports and telegrams, and I collected a considerable bundle of opinions and criticisms on this subject which appeared in The Times and other newspapers, as telegraphed from Australia, and which certainly did indicate very great dissatisfaction with the clause as it appeared on the Blue Paper. I believed until a very recent time—for it so happens that I had information in advance—that the clause as it appeared on the Blue Paper was the clause which we were going to discuss. But within the last few hours there has been 342 circulated another Paper containing a totally different clause, and one which falls very far short of what the right hon. Gentleman laid down as his standard in the discussion on the First Reading of the Bill. I say at once that I enter upon this discussion with the strong desire that this should not be made in any sense a contentious Bill. We all wish to get it through, and I will simply remind the Committee how most of those hon. Members who are with me regard this Bill as a whole. We felt that, so far as Australia was concerned, it was for the Australians to shape the measure in their own fashion. We felt that with regard to the question of the right of appeal it was an important question, which ought not to have been allowed to rise, and would not have arisen if, two years ago, when this question first came forward, the Government had been a little more in earnest about creating an Imperial Court of Appeal. Had this been done we should probably not have had these difficulties with which we are face to face at this moment. My contention is that the Amendment now brought forward is more objectionable, as affecting Imperial interests and the scope and power of the Privy Council, than the clause as it originally stood. I desire to put it in as simple language as possible. Let me remind the House what the various stages of this matter have been. Clause 74, as it was brought forward by the Delegates, provided that no appeal should be permitted in regard to any question of the interpretation of the Constitution unless that question involved the public interest of Her Majesty's dominions outside Australia. In other words, where the public interest of Her Majesty's dominions outside Australia are concerned it was proposed that there should be an appeal to the Privy Council. My chief complaint against the new clause is that the right hon. Gentleman has dropped out of this question all reference to questions of public interest in Her Majesty's dominions outside Australia, and has substituted a definition which does not cover the same field, and which precludes from the review of the Privy Council a number of questions which may be of very great Imperial moment, and for which no provision is made in the words of the right hon. Gentleman's new clause. The first Amendment which the right hon. Gentleman made was after the 343 debate on the Second Reading. In the debate on the First Reading the right hon. Gentleman had laid down his position very plainly. He said on the 14th of May last—What I say 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.Some of us thought that was going too far, but on the 21st of May last he announced for the first time his compromise, and he said—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 interests of some portion of Her Majesty's dominions out-side Australia were concerned, in the clause as we now propose to insert it, an appeal will lie in every case except in these eases in which Australian interests alone are concerned. That, I think, gets rid of practically every one of the difficulties I anticipated when I referred to the original clause in introducing the Bill.Now my right hon friend the Member for East Fife, who followed the right hon. Gentleman in that debate, naturally received the right hon. Gentleman's explanation with some reserve, although we were all glad to know that something in the nature of a compromise had been arrived at. But what we have here is not a compromise. I agree with the right hon. Gentleman that a compromise is a transaction between parties who have differed and in which something is given up by each party in order to secure unanimity. In this case the right hon. Gentleman not only gives up that which is claimed, but he also gives up something which was not asked for. The right hon. Gentleman's proposal gives up now the exception of public interest—which was conceded by the delegates—affecting the Queen's dominions outside Australia, an exception which never was in controversy, and he has introduced a clause excluding this right. Both under the clause which the right hon. Gentleman first proposed, and under the clause which he now proposes, he excludes from the Privy Council important questions which would have been included in the proposals as originally drafted by the delegates. The first proposal of the right hon. Gentleman declared that no question—as to the limits inter se of the constitutional powers of the Commonwealth and those 344 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 such question unless by the consent of the Executive Government or Governments concerned, to be signified in writing.That is the clause which was so fiercely assailed in Australia. In the first place it has been said that there was there an objectionable provision in regard to the introduction of the Executive Governments into matters of judicial concern. I do not wonder that that proposal raised a storm of hostiie criticism in Australia. But there is another point, and it is in regard to the expression "final decision." It was pointed out that this clause applied not only to public controversies between Governments, but that it applied also to private litigation, and that if the clause passed, a private litigant might find himself in this position; he had fought his case and been unsuccessful, and his opponent had taken him to the Privy Council or he had taken his opponent there. There somebody raises the contention that there is a question of the limits, inter se, of the legislative powers of the two Governments and the validity of the Colonial Act may be questioned. In such a case the Privy Council would have been bound to say, under the wording of the clause, "we cannot listen to you, for we are precluded from hearing the case, and we are bound to send it to the High Court." That was felt to be a clause which was altogether intolerable, and it has been made the subject of severe criticism. Now that obnoxious expression "final decision" has been got rid of, I am glad to say, and now we are face to face with a new clause which has appeared on the Paper for the first time to-day.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, j unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.It is quite true that there is a class of question which was excluded by the original clause of the delegates which this clause permits. For instance, suppose there arises a question under 345 the power to make laws for the peace, order, and good government extended by the specific provisions of Clause 51 outside the region of Australia, and outside territorial limits—the question would arise as to whether legislation in the colony would be ultra vires. Now under the proposal made by the right hon. Gentleman that would be appealable which could not have been so under the original clause. But this is a very rare case. I have had some experience in these matters in Canada, and during an observation extending over fifteen years I do not know a single instance of such a question arising. I know of an instance arising in the case of one of the Australasian colonies as to a bigamy law which was said to have been passed in such terms as to extend to an offence committed outside the limits of Australia, and the Privy Council held that the effective scope of the statute did not extend outside those limits. But not one question is a hundred which arise will be of this nature, but questions of another class will arise constantly. Let me take a concrete case which arose within my own knowledge with regard to British Columbia. Litigation arose there in reference to the employment of Chinese labour in a colliery. A Bill had been brought before the legislature for the prohibition of female and child labour in mines, and someone moved an amendment to add the words "and Chinamen" to this prohibition. The shareholders, finding that Chinamen were being employed, brought the question before the court, applying for an injunction. When this litigation arose some ingenious person in the case raised the objection that power to legislate for aliens was reserved exclusively to the Dominion Parliament, and that the legislation of British Columbia was ultra vires. The point was one of importance because there was a treaty between Her Majesty and the Emperor of China which gave the most-favoured-nation treatment to Chinese subjects, and there was a question as to whether this was not affected by the legislation alluded to. This was a question affecting the Queen's dominions outside Canada, and the matter came before the Privy Council, and they declared that the legislation was ultra vires, and in that way they got rid of the matter. I will take another illustration. There was a great case about eighteen 346 months ago between Ontario and Quebec and the Dominion Government, which arose in regard to the control over the great lakes and the great rivers in Canada. That was a matter in which the Imperial Government were interested, because it was a question in which the rights of the American as well as the Canadian fishermen were involved. It was felt that the matter should not be left in the hands of the provincial Government, having regard to the complications which might arise. The matter came before the Privy Council, and it was ultimately decided that it was not within the power of any Province of Canada to deal with this matter at all. I give these illustrations because they are cases which arose undoubtedly as to the limits inter se of the constitutional powers in the Dominion of Canada. I think the Committee will appreciate the reason why I do this. These were cases where the public interest of the Queen's dominions outside Canada were vitally concerned, and in which there was a right of appeal under the Constitution. Such cases may arise in relation to Australia, and in such an emergency there would have been a right of appeal under the Bill which the delegates introduced, but there will be no such appeal under the clause which the right hon. Gentleman has presented to the House. That seems to me to be a consideration which, at all events, should entitle us at this stage to ask for a little more time than we have had to consider a clause which hardly one of us saw before a few hours ago, and which now comes before us for discussion practically for the first time. It is quite true that the clause of the right hon. Gentleman has some advantages—for example, it makes it clear that there can be an appeal from the State Court even upon a constitutional question to the Privy Council. I think that was probably not so under the, Bill as it originally stood, but what an extraordinary provision it is. The clause provides that if you have litigation in the State upon a constitutional question you may appeal either to the Privy Council or the High Court. If you appeal to the High Court the decision is to be final unless the High Court gives you leave to appeal to the Privy Council. It is, in other words, a court of final jurisdiction upon this matter. Supposing a litigant takes his case first to the Privy Council and succeeds, his opponent may, in 347 another case, raising the same point, take him up to the High Court to get round the difficulty, which he can do because the proposal of the right hon. Gentleman gives him a right of appeal. But that is a totally different appeal to the one in Canada, because there the Supreme Court is not a court of final jurisdiction. As the clause makes the High Court of Australia a court of final jurisdiction, there may well be conflicting decisions between the High Court and the Privy Council. I do not think that is an academic matter. I for one protest against pronouncing an opinion upon this question with only a few hours consideration, and without an opportunity of anything like full discussion, It may be said that these matters are more or less technical; but, after all, what is there in this measure about which there is any controversy except this right of appeal to the Privy Council? I am not one of! those who ever have insisted upon that right. I am quite prepared to say that the views of the delegates are entitled to great weight, and I am prepared to allow the people of Australia to prefer the decision of the Australian Courts upon questions affecting the interpretation of the Constitution. But what I do protest against is the right hon. Gentleman coming here and taking a high constitutional attitude and telling us that the right of appeal was to remain as it stood, and then coming down here with a clause which gives away more than the delegates ever asked for. It seems to me that what we have got here is not a compromise at all. Surely we ought to have a little more time to consider these matters more fully than is possible at the present moment. There are vital questions involved in this Bill which concern not merely the Government of Australia but they affect Imperial interests as well, and we ought to be allowed sufficient time to make up our minds in a satisfactory manner. I am aware that the right hon. Gentleman has had a most difficult task in negotiating this matter, but I protest against the way in which the right hon. Gentleman is asking Parliament to come to a decision in this matter, just as if the issue was a comparatively simple one.
§ THE ATTORNEY GENERAL (Sir ROBERT FINLAY,) Inverness Burghs
I was very glad to hear the hon. and learned Gentleman urge that this Bill should not 348 be treated as a contentious Bill, and I am quite sure it will not be so regarded. At the same time I was a little bewildered by the hon. and learned Gentleman's attitude on this Amendment. The hon. and learned Gentleman says that this clause gives the delegates more than they ever asked for—that so far from being a compromise it gives them all they originally asked for and something more. That is the proposition of the hon. and learned Gentleman.
§ MR. HALDANE
I did not say all, but I quite admit that something has been added, although it is very small.
§ SIR ROBERT FINLAY
I am glad to hear that qualification, although the statement in the hon. and learned Gentleman's speech was that the clause was not a compromise, and that it gave the delegates all that they asked for and something more. I am satisfied that not only is the view propounded by the hon. and learned Gentleman absolutely novel, but that it is one which will not commend itself to anyone who has studied the matter at all. I would remind the hon. and learned Member that when this Bill, in the form in which it came from Australia, was under consideration in the House the hon. and learned Member suggested that it should be accepted in the form in which it came from Australia. I am not going to occupy the time of the Committee with technical matters, but a reference to the broad features of the Bill will show that the hon. and learned Member's view with regard to the comparative effect of the Amendment before the Committee is really without any substantial foundation. It is not of very much use to appeal in this matter to experience gathered in other fields, because in this Bill we have to deal with enactments of a very peculiar and very special kind. I will ask the Committee to refer to the terms of the Constitution. They confer upon the Parliament of the Commonwealth power to make laws with regard to a great many matters, and I will direct attention to two or three of them, as showing the class of questions which might arise. Under Head 10 power is given to make laws as to fisheries in Australian waters beyond the territorial limits. Head 29 refers to external affairs, and Head 30 to the relations of the Commonwealth with the Islands of 349 the Pacific. There are several others which I might mention, but these are sufficient for my purpose. With regard to every one of these heads, questions of very great gravity might arise as to the extent of the powers which have been conferred upon the Parliament of the Commonwealth. Take the question of the power to deal with Australian fisheries beyond territorial limits. The question might arise, what are Australian fisheries not within the territorial limits? What are the powers to be exercised with regard to the persons who may frequent these fisheries? With regard to external affairs it is unnecessary to point out the wide scope that might be attributed to words of that kind, In connection with all these heads questions of very great importance as to the extent of the delegation to be conferred on the Parliament of the Commonwealth might arise. I cannot at all agree with my hon. and learned friend that only in very exceptional cases questions as to the extent of those powers would arise. I venture to say that they would arise in nine cases out of ten. What I desire to draw the attention of the Committee to is this—that the question of what powers have been delegated to the Australian legislatures, whether the legislatures in common or the legislature in each State, may be matter of grave Imperial concern; but how these powers, having been delegated, are to be distributed as between the central and the local legislatures will be almost invariably a matter of Australian concern. It may be of the utmost possible importance to determine accurately what is the extent of the powers delegated under Article 51. But the question whether a certain power is to be exercised by the central legislature or the local legislature is a question of Australian importance and almost entirely of Australian importance. My hon. and learned friend says the Bill as it came from Australia provided that in matters affecting the public interest of some other part of Her Majesty's dominions an appeal would be allowed. That is perfectly true. I do not intend to comment upon the extreme vagueness of such language as "the public interest of some other part of Her Majesty's dominions," but it is language which would introduce uncertainty into a class of cases where certainty is eminently desirable. No one 350 would know what was covered by that assumption, but when my hon. and learned friend looks back with regret to these words which appear in the Bill as it came from Australia he forgets altogether that there was an exception engrafted on the prohibition of the right to appeal. The prohibition of the right of appeal extended to all constitutional questions. It was provided by Article 74 as it came from Australia that no appeal on any question affecting the construction of the Constitution would lie except where the public interest of some other part of Her Majesty's dominions was concerned. Now we, by this clause, eliminate altogether the prohibition of appeal on constitutional questions generally, and we confine the prohibition to the one case of conflict as between a State and the Commonwealth or as between two States, as to by which of them the power conferred should be exercised. If the question is whether the power is to be delegated at all, then an appeal would lie subject to leave from Her Majesty. But if the question is not one of delegation, but merely of distribution, and as to whether, the powers having been con-ceiled, they are to be exercised by the central or the local legislature, then there is no appeal from the decision of the High Court, unless the High Court thinks fit for special reasons to certify an appeal. My hon. and learned friend put a case which I confess rather surprised me. He said, and it is the case, that this clause as it now stands leaves absolutely unfettered the right of appeal to the Privy Council. As the Bill stands any litigant may take any point including constitutional questions of this kind straight from the Supreme Court of the State to the Privy Council. There is no doubt about that at all. Then my hon. and learned friend asks what would happen, suppose a litigant takes a point of that kind to the Privy Council and it is decided, and that the same point arises in another case and is taken to the High Court. In that case, of course, the High Court will follow, and would be bound to follow the decision given by the Privy Council.
§ SIR ROBERT FINLAY
Certainly not, because it is not usual for the 351 Appelate Court to follow the Court below. The very clause which my hon. and learned friend has been criticising pro-vides that, should the High Court think fit to certify that the case is one proper to be heard on appeal, then the case may go to the Privy Council. I do ask the Committee whether a more extraordinary proposition was ever put forward than that, after the Privy Council, to which the High Court was allowed to appeal, had decided a particular point in one way, the High Court should decide the same point in another way and refuse leave to appeal to the Privy Council. I venture to say that a graver observation touching the constitution of a Court never was made. If there were any special circumstances which led the High Court to think that the decision of the Privy Council in the first case was not altogether applicable in the second case, they would of course under those circumstances grant leave to appeal, and the matter would come before the Privy Council. This clause shows that the Privy Council is recognised as the ultimate Appellate Court, altogether in deference to Australian feeling, only for special reasons, and that the High Court is to certify before there can be an appeal. I venture to think that the case quoted by my hon. and learned friend is a perfectly impossible one, and that something in the nature of apology is due to the prospective High Court from him. Then my hon. and learned friend put a very interesting case of legislation with respect to Chinese labour as a case of conflict between a local and central authority in which it would be important that there should be an appeal. I would remind my hon. and learned friend that in the Bill as it came from Australia, it was very far indeed from being clear that there would have been an appeal in such a case. I doubt whether it could have been held that "the public interest of some other part of Her Majesty's dominions was concerned," or that the case would be considered as coming within the exception giving the right of appeal. The case, however, is one of the most exceptional character. I venture to think that we have dealt with nine-tenths of the cases which will arise under the constitution. As to how the powers delegated are to be distributed in Australia the Imperial Government is, as a rule, not concerned. My hon. and learned friend also said that there ought to 352 be time to consider the effect of this clause. I recognise the weight of any suggestion from my hon. and learned friend, but I would remind him, and I would remind the Committee, that there is a very strong desire it Australia that there should be no further delay in the prosecution of this measure. I would also remind the Committee that there will be a further opportunity, after this Bill has passed through Committee, of discussing questions of importance on Report.
§ MR. HALDANE
I understand that the Australian States have not expressed any opinion on this Amendment. It was only drafted on Saturday and cabled out on Saturday night, and now, on Monday, we are asked to accept it.
§ SIR ROBERT FINLAY
I would ask my hon. and learned friend not to forget that there is a very great desire in Australia that this Bill should be passed with reasonable expedition. What that expedition is will be for the Committee to decide. One observation before I sit down. I much regret that my hon. and learned friend seems to be under the impression that this Amendment put on the Paper by the right hon. Gentleman introduces an alternative appeal to the Privy Council or the High Court.
§ SIR ROBERT FINLAY
It is embodied in this Amendment, and was introduced in the last Amendment as well.
§ SIR ROBERT FINLAY
That is not the point. The point is that my hon. and learned friend says that an alternative appeal is introduced, and he drew a ghastly picture of what might result from a litigant going from one Court to another. But my hon. and learned friend must remember that the Bill as it came from Australia provided for that alternative appeal.
§ MR. HALDANE
I said so, because there was an appeal in all cases, except constitutional cases, in the Bill as it came 353 from Australia. But you have now taken away the right of the Privy Council to give leave to appeal, and you make the High Court the supreme court in constitutional questions.
§ SIR ROBERT FINLAY
I do not think that my hon. and learned friend appreciates my point. He put it that the evil of an alternative appeal was the result of something done by my right hon. friend the Secretary for the Colonies. The alternative appeal was in the Bill as it came from Australia. Under that Bill a litigant might go from the Supreme Court of the State straight to the Privy Council on any constitutional question, or instead of going to the Privy Council might go straight to the High Court, but there was this most objectionable state of things under that provision, that unless the matter fell within the exception namely as a constitutional matter affecting public grounds, the decision of the High Court was absolutely final. Under the Bill as it came from Australia it might well have been said that the High Court and the Privy Council were courts of co-ordinate jurisdiction and that the High Court had leave to go its own way. So far from having introduced that evil, what my hon. friend has done as the result of negotiations has been to remove all objectionable results from it, because it is now provided that the High Court may for special reasons grant leave to appeal even in the very limited class of cases in which the decision of the High Court is promulgated as one not the subject of appeal to the Privy Council. I do not claim to have converted my hon. and learned friend on this subject, but I hope I have satisfied the Committee that the sacrifice of these words which he so much laments, "unless the public interest in some other part of Her Majesty's dominions is concerned," is not one to be regretted at all. We have reserved the right of appeal in nine-tenths of the cases which may arise, and all we have done is to provide for no appeal except by special leave in a very limited class of cases—in which 999 out of every 1,000 would not be affected—relating to purely Australian matters.
§ SIR R. T. REID (Dumfriesshire)
I think it is much to be regretted in regard to this debate that it should have ever 354 been necessary. We recognise the difficulties the Colonial Secretary has had to contend with, but the more we think over the matter the more we must regret that it was thought necessary in any degree to interfere with the measure as it was sent from Australia. Let us see for a single moment how the matter stands. There was very great difficulty in the Australian colonies in coming to a concordance upon terms. A long time was lost and a great deal of labour and ingenuity was spent, and at last the colonies came to an agreement. The result of that agreement was sent over to this country. The right hon. Gentleman the Secretary for the Colonies unfortunately considered that it was necessary to make an alteration with regard to one subject, and that was the matter of appeal to the Privy Council. With the aid of the most expert legal advice, with the goodwill and assistance of the delegates from Australia, we have proceeded from one suggestion to a second, and then to a third, and at last we have to-day a still further alteration proposed to us, without being able to claim the assent of the Australian Governments or the Australian colonies to anything except what was originally proposed. It has been considered apparently by the legal advisers of the Government that some alteration was necessary in order to preserve the right of appeal to the Privy Council. I want the Committee to consider for a moment what is the real importance of appeal to the Privy Council. I think it is a very desirable thing to retain if we can, but I think it ought never to be imposed on the colonies, unless they wished it. I do not attach any great Imperial or constitutional importance to the preservation of the right of appeal by private individuals in matters of private importance to them. It is only when matters of public importance arise that any significance attaches to the right of appeal. What is the difference between the present proposals of the Government and the proposals made in the original Bill as sent over from Australia? According to the original Bill, in every private case — and these would be the great majority—unless a question as to the interpretation of the constitution arose, the right of appeal was preserved. That is to say, that the right of appeal was proposed by the Australians themselves to be reserved in eighteen out of twenty, and even ninety-nine out 355 of every hundred cases in any way likely to come over to this country, and the only restriction proposed upon the right of appeal was when questions of constitutional interpretation arose under the Act, which must be comparatively rare. But it was thought by the Australians that the right of finally deciding the interpretation of their own Constitution should rest upon themselves. They also made the concession that if the public interest of any other part of Her Majesty's dominions was involved there might be the right of appeal. That was to be a question for the Privy Council to deter-mine. I do not at all doubt that strong legal advice was pressed upon the right hon. Gentleman by very eminent authorities, but it seems to me that the restriction on the right of appeal as originally proposed by the Australians themselves must only affect and could only apply in a few cases. However, unfortunately, the view of the Government was otherwise, and they commenced to make alterations. As the Committee is aware, we have had not much notice of the last alteration, but we will have an opportunity of discussing and considering it again on the Report stage. From the time when the original proposals were first made to the present there has been nothing but difference—friendly and respectful I quite admit—between the Government on the one side and one section or another of Australian opinion on the other. There has been, unfortunately, differences between the Australian colonies themselves in regard to what, after all, are very small matters in comparison with the enormous interests dealt with by this Bill. I would wish to point out to the Committee how comparatively small the real difference is between what was originally proposed in the Australian Bill and what is now suggested by the right hon. Gentleman. There was no restriction at all under the Australian Bill except in cases of constitutional interpretation, and even then there was no restriction if the public interest in any other part of Her Majesty's dominions was concerned. What have we got instead of that? I think myself that the difference is so small as not to justify all the trouble that has been taken and the risk which has been run of losing the Bill. The proposal now is that on questions of constitutional interpretation there shall be no appeal unless the High Court 356 certifies an appeal. That is a difference which it seems to the ought not to occasion any difficulty. If I were an Australian I would very likely consider it a very proper clause; but I think it is a great pity that it was ever proposed here. The right hon. Gentleman says that he does not now know whether the Australian Governments are in favour of his proposal, and that he may learn between now and Report that some other scheme will be satisfactory to them, in which case he says— and most wisely says—that he will instantly lay it before the House provided it docs not interfere with his views as to the duty of the Imperial Government as trustees for the whole Empire. I most heartily hope that some proposal will be made—nothing could be more eminently satisfactory, from my point of view, than that some proposal should be made—to put an end to this difference—a difference which I think is very trifling—on a very important Bill, and which has given a great deal more trouble than it need have done. But if not, I think the Australian colonies would be very well advised if they accepted the proposal of the light hon. Gentleman. It will do no harm, I believe, to their Constitution, and certainly it contains no element of injustice or unfairness. But if they do not do so, and continue to express, what exists to a considerable extent in Australia, a decided preference for the form of the Bill to which they all agreed in the first instance, I would express the hope that the Government even now, after having done their best according to their own view of their duty, will revert to the Australian view, which I think is perfectly harmless and cannot in any degree inter-fore with Imperial interests.
§ *SIR WILLIAM ANSON (Oxford University)
The right hon. the Colonial Secretary said he hoped that any discussion that took place this evening would be on this particular clause, but as my criticism will rather point to a suggestion of a slight increase in the legislative power given in the clause, I hope I shall not be out of order in making some general remarks on the subject. I do not wish to go into the question of the delegation or distribution of powers. I followed the difficulties and the subtle-tics of the hon. and learned Member for East Lothian, and was painfully convinced 357 by the arguments of the Attorney General that his fears were unfounded. I, however, pass from that, and will venture, in spite of all that has been said as to the propriety of our leaving the matter entirely to the Australians, to express, what I hope is not improper, some interest in the working of this Constitution as we expect it to develop in the future history of the colonies. The Appeal clause in the Bill originally submitted by the colonies to the Government was extremely difficult to allow in the form in which it was drawn, because it was so complicated and obscure that it was likely to lead to bickering and difficulty between the home Government and the colonies. I preferred the clause which was submitted to us shortly after the Bill was introduced, though it appeared to me to have some defects which, if it were before us now, I should have pointed out as a source of danger. The present clause seems to me to confine the matters on which there is to be no review of the Privy Council to very distinct and reasonable limits, and I only regret that the Government departed from what I still think was a counsel of perfection when they first presented the Bill to the House—the retention of the right of appeal as it exists, I believe, for the Dominion of Canada. I wish to impress on this House that we are throwing upon this High Court the decision without review of questions which are very likely to impair its character and its utility in the Australian colonies. The questions that will come before it are questions as to the distribution of power between the Federal Government and the States, and anyone who has followed the history of the Supreme Court in America must know that these are the questions which have most tried the firmness, and have even to some extent impaired the character, of that Court. The cases which will come before the High Court under this clause without doubt will be cases in which the Federal Legislature or the Executive will be alleged to have exceeded its powers as against some one of the States; and, therefore, the issue will be to some extent a political issue. They are the more likely, to arise because it must be remembered that the Australian colonies are not going into this federation from any external pressure, but of their own initiative, and because they believe that their voice will 358 sound with greater force and volume in the affairs of the Empire as a Commonwealth than as separate colonies. The cases which will come before the High Court will be cases in which the Legislature or the Executive of the Commonwealth will be one of the litigants, and a State or States will be the other. But it must be borne in mind that the appointment of the judges of the High Court will rest with the Executive of the Commonwealth; and there is no limit to the number constituting the High Court. Thus it is conceivable that when some great political issue as to the federal power is before the Court, or is likely to come before it, it may happen—as I believe it has happened in the United States—that the members of the Court would be gradually increased or diminished according to the wish of the Executive, so that a particular decision or course of policy of a certain character may be determined and arrived at in a certain way. This consideration points to the desirableness of securing the High Court from any possible imputation on its character by granting an appeal to the Privy Council; and if this were done no conceivable motive or reason for affecting the composition of the Court could arise. Though it seems paradoxical to say so, the very fact that the decisions were subject to appeal, and were not to be final, would, I believe, increase the finality of their character—that is to say, they would be accepted without hesitation because they would be above suspicion, inasmuch as the ultimate decision would lie with the Privy Council. I wish it were possible to go back to the original decision of the Government to retain the right of appeal in all cases; but as this is no longer possible I venture to suggest that the Federal Legislature should have power, without an amendment of the Constitution, to restore the right of appeal in those political and constitutional cases which were defined in the amending clause. If, after a term of years, it is found that the character of the High Court is suffering, it might well be that the Commonwealth Parliament might desire to restore the right of appeal to the Privy Council, but it could not do so without the very cumbersome process of amending the Constitution. If, however, the delegates were agreed on that subject a few amending words would give the Commonwealth Parliament the power I suggest. That would be of the greatest ad- 359 vantage. I know that it is risky to prophesy regarding the working of a Constitution, because no Constitution ever worked out as its authors or students ever expected; but I think that my suggestion would be an assistance in the working out of the Australian Constitution, and might be found useful for preventing any possible diminution in the respect which we all hope will be granted to the High Court of the Commonwealth. I do not think that in making this suggestion I can be accused of giving any cause of offence. It seems to me not to be friendly or hardly altogether respectful to the colonies to say, "Take your Constitution if you want it, so long as it does not interfere with Imperial concerns, and make the best of it." We are all interested in the character and conditions of this Australian Constitution; and we are all desirous to see the stones of the fabric laid on the surest foundation, and to promote the ultimate prosperity of these great colonies in which we are so much concerned; and it is for that reason I have ventured to make the suggestion.
§ *MR. ASQUITH
I think the Committee will realise that we are approaching the consideration of a question of the highest importance under conditions of grave embarrassment. We are, on both sides of the House, I believe, equally impressed with the desire to put no obstacle of any kind in the way of the speedy attainment by our Australian fellow-subjects of a scheme of federation, but I think we might be well advised in the circumstances of the case in asking you, Sir, to report progress and to ask leave to sit again. The House has heard the speech of my hon. and learned friend the Member for Haddingtonshire and the reply of the Attorney General. My hon. and learned friend is of opinion that the clause in the form it has at present assumed does not safeguard the interests of the rest of the Empire as distinguished from Australia with the same clearness and efficiency as the clause which came from Australia The Attorney General is of a different opinion. Again, my hon. and learned friend contends that you may have under this clause two irreconcilable decisions, one by the Privy Council and the other by the High Court in Australia, in reference to the same subject matter in the same State. The Attorney General thinks, I do not know 360 upon what ground, that the High Court would be bound to defer to the Privy Council. I do not wish to pronounce any opinion upon either of these contentions, but when we are asked to pass a clause which did not appear in print until four o'clock this afternoon, and in regard to the interpretation of which these high authorities are in complete antagonism, it is surely placing a very great tax upon the confidence of the House. Even if we had been considering a Private Bill, and not a Constitution, we should have had an opportunity of careful deliberation and of arriving at an opinion which would then be, possibly, of some value. I hope I shall not be accused by anyone of wishing to delay the passage of this Bill or of disrespect either to the Imperial Government or the delegates who have been concerned in these negotiations if I refer to the history of this clause as not creditable to our way of doing business. What does it consist of? The Bill in its original shape, as it was brought from Australia, was submitted to the whole of the Australian people, after prolonged deliberations in their various Legislatures. The Imperial Government, as we now know, took no effective means of conveying to the Australian people what, a moment after the Bill arrived here, they discovered to be a matter of Imperial concern and a real danger to the unity of the Empire. The Australian people having passed the Bill in the shape in which it was passed without any warning whatsoever that apprehensions of that kind had been or were about to be entertained upon this side of the water, the delegates came over here with a restricted mandate, having no power to do anything, as it appeared, but to agree to pass the Bill in the form in which it was assented to by the Australian people. That is the first stage of the matter. Then we come to the First Beading of the Bill in this House, when the right hon. Gentleman the Colonial Secretary devoted a very large part of his speech to showing that the Australian delegates were not authentic exponents of the opinion of Australia, that that opinion could be better collected from other sources, which he specified, and that that opinion was hostile to the clause as it was passed upon referendum to the Australian people, and was in favour of an unrestricted right of appeal. The Bill as it was presented to 361 this House on the First Reading gave an absolutely unrestricted right of appeal. That was the second stage. A week later came the Second Reading, when the matter assumed a third and totally different aspect. The delegates, who had had a restricted mandate which did not authorise them to alter a single comma in the Bill, appear to have agreed with the right hon. Gentleman to a form of clause which was totally inconsistent with the position taken up by him on the First Reading of the Bill, and imposed on the right of appeal those very restrictions which he had declared to be fatal or dangerous to the unity of the Empire or to the interests of the Empire. The House will remember the speech the right hon. Gentleman delivered.
§ MR. J. CHAMBERLAIN
I think the right hon. Gentleman misunderstands me. I never said that the restrictions on the right of appeal in purely Australian cases would affect the interests of the Empire, and it is to that we have now absolutely confined this Bill.
§ *MR. ASQUITH
My argument is, of course, directed to Clause 74, which never did anything at all to restrict the right of appeal except in relation to constitutional questions. The right hon. Gentleman knows that the general right of appeal has always been unimpaired. That was the third phase. I spoke upon that occasion, and I welcomed the understanding which had been arrived at between the right hon. Gentleman and the delegates, because I thought that far too much fuss had been made over this business, and if any arrangement was come to the House might readily assent to it. Now we come to the fourth stage in the history of this transaction. The clause which represented, I will not call it the compromise, but the arrangement come to between the light hon. Gentleman and the unauthorised delegates at the time of the Second Reading, which had been on the Paper for three weeks, and which had been the subject of comment and discussion not only in Australia but in this country, completely disappeared as late as Saturday morning last; and we have had put before us this afternoon, without any notice, a clause containing an entirely different proposition. I think it is a distinct improvement, but it is an entirely new proposition, and we have never had an 362 opportunity of considering it. The right hon. Gentleman tells us that on Saturday, though he had the knowledge that the delegates had absolutely no authority to assent to this clause, he had telegraphed to the Australian Governments to know whether they had assented to it, and at this moment he is entirely without information from any one of those Governments, who alone are in a position to say whether this clause is contrary to the opinion of Australia or not. For the House, in such conditions, to seriously discuss in a Bill like this a clause of such vital importance is entirely without precedent, and if a precedent of this kind is to be made it ought not to be made without a protest in the House itself. When we get to the report stage it may turn out that the Australian Governments do not approve of the action of the delegates, and we may have put before us a fifth and different proposal. I do think that the House has hardly been treated with the respect to which it is entitled in a matter of this gravity. It would have been the easiest thing in the world, if the Colonial Secretary only made this arrangement as late as Saturday last, to have deferred the Committee on this Bill for a few days, until we had an opportunity of knowing what the opinion of Australia was, and also some opportunity of considering ourselves these difficult and legal considerations. For my part I entirely decline at this stage to commit myself to the clause as it stands. I claim for myself, and I think every Member of the House is entitled to it, complete freedom, at a later stage, to consider it upon its merits. I do not think that we should be doing our duty if we allowed this occasion to pass without making this protest against a proceeding which I think is entirely without precedent.
§ MR. J. CHAMBERLAIN
I sympathise very much with a great deal of what has fallen from the right hon. Gentleman as to a certain inconvenience attending the proceedings with regard to this Bill, and I quite agree with him that the circumstances are entirely unprecedented. I quite agree with him also that if we were dealing with a Bill of our own, and English Bill, even a Private Bill, we could not think for a moment of pressing for a conclusion this afternoon, but would readily 363 accept a suggestion coming from any quarter of the House for a further postponement. I admit all that. But how the right hon. Gentleman, who knows the circumstances of this case, and knows exactly what are the difficulties with which I have had to deal, can accuse me of want of respect to the House because I have adopted the course I have taken, I cannot possibly conceive. I have taken this course simply because I have been requested to do so by the Australian delegates. To the right hon. Gentleman that may b an insufficient authority, but for those who again and again in these proceedings have called upon us not to flout the opinion of the whole of the Australian people, not to flout their representatives, not to insult them by suggesting amendments to their Bill, to say to us that no attention whatever should have been paid to the unanimous request of the Australian delegates, even at this late period, seems to me a very inconsistent argument.
§ *MR. ASQUITH
What I said was that surely the House of Commons is entitled to have a few days to consider the proposal.
§ MR. J. CHAMBERLAIN
I entirely agree that if the House of Commons desires a postponement they must have it. Nobody would think of rejecting anything like a general desire of the House of Commons, or a desire expressed by the leaders of the Opposition, in regard to such a matter. But, of course, in that case they will understand that they are taking upon themselves the responsibility of delaying the measure. Whether that in itself is a serious matter or not is for them to consider. We press it, not because we have the slightest interest as a Government in pressing it, but because we thought it was our duty to put before the Committee the wishes of the Australian delegates in the matter. Let me say that I should not, perhaps, have made myself the channel for the expression of that wish if I had not been under the impression, which nothing the right hon. Gentleman has said has removed, that it was the general desire of the House to treat this Bill as chiefly an Australian matter. If the House proposes now to adopt a different view with regard to it, why, of course, I admit that the complication of this particular question and 364 the complication of the whole Bill justifies a much longer delay than we have thought of. I was certainly under the impression that, if I could produce to the House primâ facie evidence that an arrangement had been arrived at which on its merits we could approve and which had every prospect of commending itself, not merely to a portion of the Australian colonies, but to the Australian colonies as a whole, in that case we should have the assent of the House for taking the present step. I have to acknowledge the spirit in which the matter has been dealt with by the hon. and learned Gentleman the Member for Dumfries, but still I do venture to differ from him, because he expressed a desire that even at this late stage we should accept the original Bill as presented to us by Australia.
§ MR. J. CHAMBERLAIN
I hope we have got an agreement otherwise. But he will permit me to say that in my judgment if we were now to go back to the original Bill it would be the most unsatisfactory course that we could possibly take, that it would be the course which would meet with the most resistance in Australia. I think the House will easily see that a matter which even in our short discussions has proved to be highly technical is not one which can be considered to have been before the minds of all the Australian people when they passed the referendum on the principle of the Bill. Now that it has been discussed, it must be evident to every one that there is a very large and growing opinion in favour of retaining an unrestricted right of appeal. I own that my conviction has always been that the Australian people never intended the Bill to be taken or left by this House, to be swallowed whole or to be rejected, and that there was no alternative for our consideration. On the contrary, everything that I have heard leads me to believe that it was supposed we would give our best consideration to the Bill, and that if we found in it anything that we thought to be of sufficient importance to merit reconsideration we should not hesitate to put our views before the Australian people; and, as far as I can gather, I believe our efforts in that direction have been thoroughly 365 appreciated. The hon. and learned Gentleman said something about the possibility of exciting displeasure. I have not seen a trace of displeasure. On the contrary, there is a thorough appreciation of the spirit in which we have hitherto dealt with the matter. Our main object has been so to pass this Bill finally as to secure the practically unanimous assent of the Australian Parliaments. The recent alterations, and, as I have said, the first alteration that was proposed, gave us all that we thought it necessary to insist upon. These subsequent alterations are suggestions that have come to us from Australia, and I am not at all ashamed of proposing them again and again. I am not at all touched by the irony of the right hon. and learned Gentleman. He talked about a fourth proposal in a few weeks, and said there may be a fifth. [Mr. ASQUITH dissented.] Well, he commented upon it in what I understood was a spirit of deprecation.
§ MR. J. CHAMBERLAIN
I do not deny the possibility, and I shall not be in the least ashamed of coming again with a fifth or a sixth suggestion if it is made to me from Australia. If I have reason to believe that other alterations will still further recommend this Bill as a whole to the Australian people, it will be my duty to submit them, even one after another, to the House. As regards time for deliberation, I hope hon. and right hon. Gentlemen opposite will see fit to hasten proceedings by allowing this stage, at all events, to pass practically unquestioned. We shall be prepared to allow time for further deliberation on the Report stage, which we will postpone to a date which will be convenient to gentlemen opposite. The proposal to extend the powers of the Federal Parliament made by the hon. Member for the Oxford University is one with which I entirely agree. The Federal Parliament under the Constitution will have power to legislate for limiting the right of appeal, although any legislation of the kind will have to be reserved for Her Majesty's pleasure. My hon. friend says we might still further enlarge the legislative capacity of the Federal Parliament by allowing them to extend the right of appeal as well as to limit it. Upon that point, as 366 I have said, I agree with him; but at the same time I should not like to introduce the alteration at this stage, or without knowing whether such an increase of legislative power would be likely to be in consonance with the wishes of the Australian Governments and people. But I will take care, as far as I can, to make myself acquainted with the views of the delegates, at all events, on the subject, and if I should find they have no objection I should be very glad to introduce the change on the Report stage. I think there is only one other word I need say. I disagree from the hon. and learned Member for Dumfries, and still more from the hon. and learned Member for Haddingtonshire, as to the view they take of the respective effects of the original Bill and of the Bill as it will stand when we have amended it. The hon. and learned Member for Haddingtonshire actually puts forward the view that our Amendment restricts the right of appeal more than the original Bill. He says that upon a hasty review of the clause as now presented. Let me point out that the whole of his argument applies to the previous proposed Amendment as well as to the Amendment on the Blue Paper, and although it has been before the people of Australia for the last three months, not a single word was heard from anyone to justify that view. The hon. and learned Gentleman, as far as I know, stands absolutely and entirely alone. The hon. and learned Member for Dumfries did not go so far, but he did consider that the original Bill made a slight limitation and restriction of the right of appeal. That is absolutely contrary to the view taken unanimously by the leading judicial authorities in Australia. Whether it is right or not to make the alteration is another matter. When I am told that the Amendments which we have now made do not affect that restriction, I think I can best answer that by saying that by those Amendments we have placed the question of appeal, with one exception, in precisely the same condition in Australia as it is in Canada. The hon. and learned Gentleman approves of the condition of things with regard to appeal in Canada. Let me point out that under the new Amendments we shall be acting in precisely the same way in Australia as in Canada, except that in the limited number of cases where constitutional questions are tried in the High Court 367 leave to appeal will be given in the case of Australia by the High Court, whereas in the case of Canada leave to appeal is given by the Privy Council. That is the only difference. Having brought the right of appeal in Australia so completely or nearly in accord with the right of appeal in Canada, I think we have secured a very great result, and I am only glad to find that in doing so we have the support apparently of the Australian people.
§ MR. COURTNEY (Cornwall, Bodmin)
I do not think my right hon. friend has treated the House with any discourtesy, but he had a matter of the most difficult character to deal with. Nor do I think the House of Commons is at all discredited by the way in which this business has been conducted. I think that in this matter we should defer entirely to Australian opinion in all matters which do not touch the interests of the Empire at large. But I urge my right hon. friend to consider whether it would not be better to assent to report progress at this stage, so that we may have some time to consider the exact meaning of this Amendment which we have seen to-day for the first time.
§ SIR H. CAMPBELL-BANNERMAN (Stirling Burghs)
I wish to say a few words, not on the main question of the merits of the proposed clause, but on another point. The right hon. Gentleman has expressed a very strong opinion to the Committee. He has said that the Government will postpone for a short time further the consideration of the Bill at this stage, if the Committee desire; but he has referred to some evils—unknown evils to us—that would arise, and has implied that it would be a great disappointment and calamity if some short prorogation were allowed. I do not understand what the meaning of that may be. I remember it was on the 14th May that the Bill was read a second time, and the stage which really became the critical stage—for there was no opposition at the Second Reading—was postponed for some time. Considerable surprise was felt at the length of the interval which the right hon. Gentleman allowed, because there was nothing in the merits of the case, in the facts themselves, which made so long an interval necessary. But now, on the morning of our consenting to consider the Bill, we have this new clause put before 368 us, and we are told that it is the result of an agreement between the right hon. Gentleman and the delegates, but neither the delegates nor the Minister know what the feeling of Australia is and what the opinion of the Australian Governments is. That is prima facie a very strong case for postponing the consideration of the clause. The right hon. Gentleman adopts a tone which is, I think, entirely satisfactory to the House, when he says that, subject of course to a due regard for our interests, his great desire is to do whatever the Australian people wish—that he will change this clause again and again if he finds that it will so better suit the wishes of the Australian people. That we understand and appreciate, but that is another reason for delay. We do not know what the feeling of the Australian people is. The whole of the arguments appear to me to be in favour of some further delay—a short delay it may be—not only for our convenience, that we may prepare speeches and elaborate arguments, and for the dignity and propriety of the proceedings of this House, but for the sake of our making a good job of this matter when we undertake it. If we claim to be desirous of doing what the Australian people wish, we ought, first of all, to know what they desire. For all these reasons a short delay would not appear to be out of the question, and I am rather surprised that the Government have not themselves proposed it. On the other hand, the right hon. Gentleman was almost severe in his declaration of the great gravity and responsibility which would rest upon us if we invited this delay, and consequently I hesitate to put what is my strong opinion into the form of an actual request.
§ *MR. MACLEAN (Cardiff)
I certainly do not desire to say a word in disparagement of the skill and patience shown by the right hon. Gentleman in managing the delicate negotiations in reference to this Bill, but I think the whole drift of the debate to-night has been in favour of delay, and there does not seem to be very much weight in the arguments used by the right hon. Gentleman against delay. The right hon. Gentleman has said he wanted to do all he could to meet the wishes of the Australian delegates. But what difference would a short delay make, seeing that it is in order to ascertain the 369 opinion of those speaking for Australia? I am quite sure that after such a delay the debate on the Bill could be concluded in half an hour. Everybody in England is only too anxious that this Bill should be passed and to do anything to promote the happiness and prosperity of the people in Australia. When it was first brought forward it was with every prospect of it being passed, and, considering the splendid spirit shown by the colonists in South Africa, the people in this country should have been only too ready to show their appreciation. The Australian delegates came over boasting, as they had a right to boast, that they were the representatives of the people and Parliaments of Australia—of all the constituted authorities of Australia. Every one of them agreed as to the Bill that it ought to be passed by the House. The Colonial Secretary took up a position of complete antagonism to the measure. It was a matter for regret that the Colonial Secretary, instead of accepting the opinions of the constituted authorities of Australia, had endeavoured to obtain an opinion in Australia in favour of himself. He had adopted all the arts peculiar to the political agitator. We were told that this was the one last link in the Imperial union of the whole Empire—that it was the first step towards Imperial Federation. Anyone who had given any serious thought to the question of Imperial federation among the scattered members of the Empire of Great Britain must know that it is a perfect chimera, and that there is no colony in the Empire which to-morrow would accept the authority of any federated Assembly sitting in London to impose on them any control or any taxation whatever. The great aim of the people of Australia has been to break away from the last vestige and relic of the ill-omened domination of Downing Street in our Colonial Empire.
I would remind the hon. Member that the discussion is limited to the Amendment before the Committee.
§ *MR. MACLEAN
Perhaps I may be permitted to point out why the Australian delegates protested against the scheme of Her Majesty's Government, however it might be modified. It was that they did not think it was one suited to the genius 370 of the Australian people, and they used those eloquent and manly words which I think are strictly appropriate—The delegates reflect with pride that there are sentiments which will constitute eternal 'links of empire,' but are quite unable to understand how there can ever be the least hope that we can merely by insuring uniform interpretation of the law throughout the Empire, facilitate that unity of action for the common interests which will lead to a real federation of the Empire. The 'unity of action' and the uniform 'interpretation of the law' seem to them wholly unrelated and certain to remain so. The consciousness of kinship, the consciousness of common blood, and a consciousness of duty, the pride of their race and history, these are the links of empire, bonds which attach, not bonds which chafe.These are the sentiments which have inspired the people of Australia, and I think we may rely more upon them, and feel that in the moment of emergency or danger the Australians will come to our side animated by the common sentiments of race, religion and language, by common sympathies, and by common traditions.
§ MR. J. CHAMBERLAIN
I should not oppose a motion for the adjournment proposed from the opposite side with the authority of the right hon. Gentleman the Leader of the Opposition. I confess that, although he does not venture to make the request, I have a difficulty in distinguishing between a formal request and the language in which he conveyed his opinion on the matter.
§ MR. J. CHAMBERLAIN
I was not aware I was so terrible in your opinion. I understand it is the opinion of the right hon. Gentleman that we should not proceed further, although I very much regret that it should be his opinion. I do not feel justified in offering any opposition to reporting progress, and in that case I would suggest that we continue the discussion on Thursday next.
§ Committee report Progress, to sit again upon Thursday.