HC Deb 21 June 1900 vol 84 cc638-58

Considered in Committee.

(In the Committee.)

[Mr. J. W. LOWTHER (Cumberland, Penrith) in the Chair.]

Clause 5:—

Amendment again proposed— 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 again proposed, "That the words proposed to be left out stand part of the clause."


I have to ask the permission of the House to make a correction of a statement which I made on Monday last in dealing with this Amendment. I then said, or I am reported to have said, that I had received no official communication from the Government of the four States of Australia in reference to the proceedings which had taken place since the introduction of this Bill, and that, up to the present, I was not officially made aware of the opinions of the Governments of the four States. I find that that was a mistake. It would have been more correct to say that I had no public official statement, but I have been reminded by my hon. friend Mr. Barton of a matter which escaped my memory at the time—namely, that after the first arrangement was come to with the delegates I received on 25th May from the Government of New South Wales a telegram, which I thought then was confidential but which I am now told was not intended to be confidential, to the effect that the Prime Ministers of the four States of Victoria, New South Wales, Tasmania, and South Australia agreed to the arrangement which had been come to between the delegates and myself. I desire to state this, because the previous statement might have led to a misunderstanding and to the supposition that the delegates were acting without the authority of their Governments. Of course, I did not in the least intend to convey that; but I admit that my words were open to that construction, and I have to apologise to the Committee and to the delegates for the slip. It has, however, no particular relevance to the present Amendment. When we adjourned on the last occasion I had informed the Committee that I had communicated with the Governments of the different colonies in order to ascertain, if possible, what their views were with regard to the new arrangement which had been come to. At that time I had no complete account of their opinions. I have since received telegrams which' I think I had better read to the Committee. The first is from Lord Beauchamp, New South Wales, received 20th June:— The Premier informs me that Victoria, Tasmania, and Queensland agree to the com-promise in connection with Clause 74. New South Wales Parliament, now sitting, has-expressed wish that altered clause should be submitted to it. The next is a telegram from Lord Tennyson, South Australia, dated 20th June— Ministers reply as follows to your telegram 19th June:—They do not think that any difficulty will be caused if Imperial Parliament resolves to amend Bill as now proposed. Lord Gormanston sent a telegram on 19th June as follows— Your telegram of 16th June received. My Government are quite satisfied with the clause set forth therein as the best under all the circumstances of the case. With regard to Queensland, I have received a letter from Mr. Dickson, dated 19th June, in which he says— Sir,—Referring to my letter of the 15th inst. and to our later interview of Saturday afternoon, I now beg to inform you that I have since received from my Government the following cablegram:—Full text of new Clause 74 sent through. Tennyson to Australian Governors received. Consider it great. improvement on previous Amendment, and request you will not offer any objection to it.' Consequently I will now accept on behalf of the Government of Queensland the new Clause 74 as presented to the House of Commons yesterday, and trust it may be passed unaltered. I desire, however, to record on behalf of my Government and of myself that we should have greatly preferred to have had the Bill as introduced by you passed without Amendment. May I suggest that further consideration be directed to the bearing of the words 'final and conclusive' in Clause 73, page 16, lines 27-28, in connection with new Clause 74? I cannot conclude without expressing to you my gratitude for the clear, straightforward manner in which you placed my attitude: before Parliament in your speech of yesterday evening, and tendering you, on behalf of the Government of, Queensland, our fullest appreciation of the great patience, care, and courtesy with which you have endeavoured successfully to reconcile views at first sight-irreconcilable; trusting also that these long negotiations may now be considered as satisfactorily concluded. Lastly, I received from the officer concerned in administering the government. of Victoria a telegram dated the 21st of June, as follows— Ministers entirely approve clause now offered, and I am desired by them to convey their cordial thanks to you for your great trouble and kindly interest in our Australian matters, and to express our congratulations to you on having arrived at a successful settlement. Now I think I may say that I have very great satisfaction in once more pressing for the Amendment which has been laid before the Committee. I do not myself regret in the least the time that has been spent in what I have heard described in some quarters as "muddling negotiations," but which have resulted in bringing absolutely into line the colony of Queensland, which was in favour of plenary appeal, and the colony of South Australia as representing the extreme views with regard to the restriction of the right of appeal. So far as four out of five of the federated States are concerned, the proposed arrangement has been accepted by all the delegates, thoroughly and cordially accepted. So far as New South Wales is concerned, we have still to wait for an expression of opinion on behalf of that colony, but in any case four out of five of the colonies have expressed their opinion, and, if I may venture to advise the Committee on the subject, I should say that, looking at the reports we have received from non-official sources, there can be very little doubt that they are equally acceptable to the vast majority of the people of New South Wales. They are equally acceptable to Her Majesty's Government. By this arrangement we have obtained everything for which we thought it our duty to contend, speaking on behalf of Imperial interests that are non-Australian. I have to repeat, after the most careful consideration, that we have secured in connection with the Australian federation precisely the same powers and rights of appeal which exist in the case of the great Dominion of Canada, with this trifling exception, which I am almost inclined to think is an improvement, that in certain rare cases the leave to appeal will be granted by the High Court in Australia, and not by the Privy Council. I have said that I think that that may possibly be an improvement, for this reason—that where the leave to appeal is to be given by the Privy Council it involves two applications to that body, which necessitates two sets of costs. The appellant has first to ask for leave; and, leave having been given, the merits of the case have to be tried. In this case leave will be settled by the local Court without the necessity of appealing. This Court, I imagine, will be considerably less expensive, and only the merits of the case will be tried by the Privy Council. I do not think I need refer to anything else except to say this—that my hon. and learned friend the Member for Haddingtonshire took me by surprise, in fact he astounded me, when he endeavoured to put forward the argument that either of these arrangements which we have recommended to the Committee as distinct from the original proposals of the Bill was really more restrictive of the right of appeal than the original Bill. I do not intend to argue with my hon. and learned friend, but what I have to say perfectly clearly is that the whole of Australia differs from him. Queensland— which, as I have said, was in favour of the plenary right of appeal—and the other colonies are in favour of a restricted right of appeal, but all of them have accepted the arrangement with the understanding that it very much enlarges the right of appeal which was conceded by the original Bill, and apparently they are now satisfied to accept the arrangement proposed by Her Majesty's Government as being in the interest of Australia as well as in the interests of this country.

*MR. HALDANE (Haddingtonshire)

I wish to make one or two observations in reference to what has fallen from the right hon. Gentleman. It is quite true, as he said, that the Australian colonies have accepted this arrangement, but our contention was not in relation to anything which the Australian colonies were fighting for; our contention was that that should be preserved which the Australian colonies had already conceded. Our point was made in the interests of the Queen's dominions outside Australia, including those of New Zealand. The right hon. Gentleman was no doubt correct when he said that he had satisfied the Australian colonies with this clause. He has done so; but these colonies have been willing to concede something more than the right hon. Gentleman has got— namely, that where the interests of someone else outside themselves were in ques- tion the validity of those interests should be subject to appeal to the Privy Council. The right hon. Gentleman has said he has obtained everything which the Canadian Constitution gives with a trifling exception. What is that trifling exception? It is that there can be no appeal whatever to the Privy Council, except with the leave of the new High Court of Australia. Something like that question arose when the Canadian Constitution was under consideration, and the Canadian Supreme Court showed a tendency to take the view that it was the proper court to dispose of all questions of constitutional controversy, and that the Privy Council was not the place to appeal to. The Supreme Court of Canada conceived that its decisions should lay down the law finally as to questions arising between the Dominion and the provinces. What would have been the position of the provinces to-day if it had been left to the Supreme Court of Canada to say whether or not there should be an appeal? Does anyone imagine they would over have got leave to appeal? I take it the Supreme Court, taking the view that it was properly the final court of appeal, would have refused leave. We do not want to run that risk here. The right ton. Gentleman talks of having settled with the Australian colonies, but there are other places to be dealt with besides the Australian colonies; New Zealand, for instance, which has large interests in this matter. The following letter, dated 19th June, 1900, deals with this matter. It was addressed to the Under Secretary for the Colonies by the Agent General of New Zealand. Sir,—I have the honour to further address you on the subject of the Commonwealth of Australia Constitution Act. I have not had the opportunity of perusing any authenticated copy of the Amendment of Clause 74 which it is now proposed to insert in the Bill. Assuming, however, that the version published in The Times newspaper of this morning is correct, it appears to me that under it the position of outside States which may become involved in litigation with the Commonwealth or one of its provinces is open to doubt, I have read with attention the speech of the Attorney General, Sir Robert Finlay, but there seems to be at least a difference of opinion as to whether the right of appeal to the Privy Council may not be taken away in cases which involve at once the constitutional position of the Commonwealth in regard to its provinces and also the interests of some outside community. It is the earnest desire and request of the New Zealand Government that the present rights which our colony and colonists enjoy of appealing to the Privy Council may not be taken away, diminished, or left in any doubt whatever. I have, therefore, the honour to ask that her Majesty's Government may be pleased—if the point before referred to seems, on reflection, to admit of doubt—to insert in the clause such language as may put the matter beyond the possibility of controversy. My Government confidently believes that it is not the intention of the right hon. the Secretary of State for the Colonies to allow the existing rights of any of Her Majesty's subjects outside the proposd Commonwealth to be impaired or abridged. The Australians themselves have never set up any claim to do this, and the request of the New Zealand Government would, therefore, seem to be in accordance with the manifest wishes of all parties. I am, etc., W. P. REEVES. That seems to represent the exact position, and reference to the Bill will show that in many respects the interests of New Zealand are likely to be vitally affected in the matter of trade, commerce, fisheries, etc. What objection can there possibly be to introducing this safeguard? Why not add words to the end of Clause 74—words which will restore the position of things before the unfortunate Amendment was made? To make the position of New Zealand clear I propose, when we come to Clause 74, to move to add words to provide that with respect to any question affecting the public interest of any part of the Queen's dominions outside the Commonwealth, the Privy Council may give leave to appeal. That seems to me to be most important, because New Zealand will not have any representative in the first instance at all in the High Court, certainly not before federation, and it would undoubtedly prevent the friction which did arise in the case of Canada. I can see no possible reason why the right hon. Gentleman should not, at any rate, consider these words, thereby giving that reasonable satisfaction to the people of New Zealand to which they are entitled.


May I ask the right hon. Gentleman whether Western Australia has been considered?


Yes, Sir, I have communicated with Western Australia. It must be borne in mind that in the first instance we can only recognise directly the federating States. The opinion of others interested is important, but we cannot guide our decision by those outside the Commonwealth. I have received the following communication from the officer administrating the government of Western Australia (received June 20th)— Ministers of opinion last proposal as to appeal of Privy Council preferable to proposal to allow Executive Government decide question. But Ministers strongly of opinion appeal from High Court should be by right and not by permission. Ministers think Federal Parliament should not have power to limit matters of appeal and that it should be made quite clear that existing right of appeal to Privy Council is maintained. That is to say, Western Australia, like Queensland, and perhaps others who have not been communicated with in this matter, is in favour of my original proposal; but the arrangement which we have come to, and by which all are brought into line, is accepted.

MR. MACLEAN (Cardiff)

I am sure both sides of the House will receive with a great deal of satisfaction the announcement made by the right hon. Gentleman that this prolonged quarrel has been now brought to a close, and that we may pass the Bill with the assurance that it will be satisfactory to the people of Australia. The right hon. Gentleman says that the delegates are satisfied with his latest arrangement, and he also says that it is perfectly satisfactory to Her Majesty's Government. I am rather surprised about that latter statement, because it seems to me that the right of appeal with the restrictions imposed by the present Act will become quite illusory. The appeals to this country have been very few, and not on matters of public interest to Australia. They will become fewer and more rare in the future, and in the natural course of things they will disappear altogether. There are very few eases at all likely to come to this country which are of interest to the public of Australia. It is said that certain questions affecting foreign affairs may be brought up and referred to the Judicial Committee of the Privy Council — appeals, for instance, in regard to New Caledonia and the islands possessed by Germany—but questions of that kind would never come into court. They would be brought to the notice of the Executive Government of the day. For instance, we have heard of cases with regard to the French shore of Newfoundland. No one would suggest that a question of that sort should be referred to the Judicial Committee of the Privy Council. It is always a matter for negotiations between the French and British Governments. I think that this right of appeal will very soon, under the Act, fall into disuse, and I am perfectly convinced that that is the best thing which can happen to it.

*SIR WILLIAM ANSON (Oxford University)

I have very great diffidence in rising to attempt to controvert the arguments of the hon. and learned Gentleman the Member for Haddingtonshire. I think, however, that the hon. and learned Gentleman has not sufficiently distinguished between the character of the constitution proposed in this Bill and the Canadian constitution. In the latter the Dominion and Provincial Legislatures have mutually exclusive powers of legislation. Here each State in the Commonwealth will have the fullest powers of legislation, affected only by the Colonial Laws Validity Act and the power of reservation and the ultimate power of disallowance. The Commonwealth will have limited powers of legislation, and therefore there can be no question of difficulty as to the limits inter se of the constitutional powers of the Commonwealth and the States.


Will the hon. Gentleman permit me? He has over looked Clause 109, which states that when the law of the State is inconsistent with the law of the Commonwealth, the latter should prevail.


I have not overlooked that clause. As long as the Commonwealth Parliament does not exceed its powers its legislation would countervail any legislation of a State; if it exceeds those powers the question becomes an Imperial one. I venture to think that difficulties are not likely to arise in matters of legislation, but rather in matters of executive action, and it is in that direction we have to look mainly, if not entirely, for the questions which may come to be decided, as between the Commonwealth and the States, by the High Court. If that is so I venture to think the hon. and learned Gentleman's fears are unfounded, and that the com- promise, or the arrangement, or whatever else it may be, may be accepted by this House without any fear of trenching on Imperial interests or the interests of the colonies.

MR. ASQUITH (Fifeshire, E.)

I express no opinion on the controversy between my hon. and learned friend and the hon. Gentleman opposite. I rise for the purpose of saying that we are in a much more favourable position for dealing with this question now than we were on Monday last. In the interval the right hon. Gentleman the Secretary for the Colonies has had an opportunity of ascertaining the views of the colonies concerned, and even if this clause were open to more criticism than is the case, I think the general opinion of the Committee now is that having received the assent and approval of the colonies concerned, it ought to be carried into effect.


I desire to say a very few words in explanation of the effect of this clause, by way of removing the apprehensions expressed by the hon. and learned Gentleman the Member for Haddingtonshire. I cannot but feel that these apprehensions are based on some failure to appreciate the true effect of the clause as it now stands. The first thing I wish to make perfectly clear to all concerned is this—that it will rest with the Privy Council to determine whether or not a particular matter falls within the restriction of this particular clause. The High Court will have no power to settle whether a particular matter falls within the restriction. On application to the Queen in Council the Judicial Committee would look into the whole matter, and if they were of opinion that it did not fall within the restriction, leave to appeal would be given whatever the opinion of the High Court might be. I cannot help thinking that the apprehensions expressed by the hon. and learned Gentleman with reference to New Zealand are based on some misapprehension as to the essential differences between the Australian Bill and the British North America Act. It is perfectly true that Article 51 of this Constitution confers many powers on the Parliament of the Commonwealth which are almost identical in terms with those enumerated in Section 91 of the British North America Act. But in addition to the powers there enumerated there are certain most important powers not now enjoyed at all by any of the Australian colonies, such as powers with reference to foreign affairs, to fisheries beyond the territorial limits, and other matters of that kind. These powers are newly conferred on the Commonwealth, and with regard to them it will not be a question as between the Commonwealth and the States as to their distribution, because the States will possess, at all events, the most important of these new powers, including those in respect to which controversy is likely to arise. It will be a question not of distribution, but as to whether certain powers in respect to these matters have or have not been delegated to the Parliament and Government of the Commonwealth. So that there is absolutely no restriction by this clause as to an appeal to the Privy Council as to whether or not these powers have been so delegated. As the Bill came from Australia it might exclude absolutely any appeal whatever to Her Majesty in Council in these matters. The peculiar condition contained in the clause as it came from Australia—namely, if "the public interest in any other part of Her Majesty's dominions" was concerned—is now set at rest by the settlement arrived at, and the right of appeal to Her Majesty in Council is introduced as regards these new powers not hitherto enjoyed by any of the colonies. Now we come to another aspect of the case to which the hon. and learned Gentleman referred—that is, where a State has enjoyed certain powers, and where powers in respect of those matters have been conferred by this Bill upon the Parliament and the Government of the Commonwealth. Now, what I would direct the attention of my hon. and learned friend to is this: the scheme of this Bill is essentially different from the Canadian Bill. The Canadian Bill conferred, in respect of certain matters, exclusive powers upon the Parliament of the Dominion; in respect of certain other matters, exclusive powers upon the Legislatures of the Provinces; so that the form of the question which arose was this—whether or not the one or the other Parliament would be acting ultra vires if it meddled with a matter exclusively assigned to the other. That is not the scheme of this Bill at all. What has been done is this: on the Parliament of the Commonwealth are conferred, in respect of a number of matters, concurrent powers with those which have been enjoyed, and will still be enjoyed, by the Parliaments and the Governments of the States. The States in respect of these matters will still retain their powers, and the only question which can arise is as to whether any Act of the State Legislature will be ultra vires. In regard to Article 51 no controversy can arise as to any power having been taken away from the State Legislatures, because the States will retain all the powers they have enjoyed. The question that will arise is a totally different question. In the immense majority of cases it would not be whether the Commonwealth Parliament or the State Parliament had power to legislate on the matter, because both undoubtedly had. The scheme of the Bill is different. The question that would arise is this:—Under the 109th article of the Constitution, if the law of the Commonwealth and the laws of the State were in conflict, the law of the Commonwealth prevailed. The question would not be as to the relative powers of the Commonwealth and the States inter se, for in a question of the construction of the Commonwealth statute with the State statute, if they bore on the same subject, the Commonwealth law prevails. That is not a question which will be affected by the terms of the arrangement now arrived at. An appeal on the question of the construction of a statute will be absolutely free as at present. That is to say, if Her Majesty in Council thought fit to grant leave of appeal there would be no conflict. My hon. and learned friend referred to a very interesting case affecting a Chinaman, and he asked whether the State Legislature had not acted ultra vires in legislating on that subject. In Australia that question cannot arise, because no jurisdiction is conferred on the Commonwealth Parliament to legislate with regard to aliens, yet the State Legislature would retain all its powers, because the powers are concurrent In regard to the other case mentioned by my hon. and learned friend as to rivers and lakes, the great rivers and lakes of America concern another Power than the Dominion of Canada; but no such question could, of course, arise in Australia and therefore it could not lead to complication. I would point out, moreover that the Amendment as proposed does not bear on an appeal in any class of cases whatever. As the Bill came from Australia, in certain classes of cases resting on the interpretation of some doubtful and obscure words there was no authority or power to give leave to appeal from the High Court to the Privy Council. There could be no appeal from the High Court to the Privy Council on any constitutional question unless it related to the public interests of some other part of Her Majesty's dominions. Now the effect of that was that in an excepted class of cases they set up two Courts with coordinate jurisdiction, and as to that particular class of case the High Court and the Privy Council are co-ordinate with no possibility of appeal from the one to the other. It might have been argued on the Bill as it came from Australia that the High Court in these cases would not have been bound by the decision of the Privy Council. No such contention can possibly be raised under the clause as it is now settled, because there is the power of appeal to Her Majesty in Council in every case. The only difference is that while in the immense majority of cases leave to appeal is to be granted as heretofore by application to Her Majesty in Council, such special leave in one small class of cases—which affect Australian interests almost exclusively — is to be granted from the High Court, and the Privy Council is recognised as the Appellate Court. It has been asked, if this leave is to be got from the High Court, on what principles will the High Court act in granting or refusing the application? I confess that I have some confidence in the action of the High Court. It has been the glory of our race all over the world, that the Judges in every part of the United Kingdom and in every British Colony have acted absolutely independently of political considerations. As these Judges have acted in the past I believe they will act in the future, and I think it will be found that there is no ground for any distrust or apprehension as to the way in which the High Court will exercise the powers with which it is entrusted in this very small and special class of cases as to whether there shall be an appeal to the Privy Council if the interests of any other part of Her Majesty's dominions are affected. It is very difficult indeed to see how a question of the distribution of powers between two Australian States could affect the interests of another part of Her Majesty's dominions. But if by any human possibility such a case should arise, that is a special reason for allowing an appeal, and it is much better to have a provision in this elastic form instead of trying to find a form which will stand for all time without any power on the part of any Court to vary it. I would suggest to the Committee, and all those interested in the matter, that it may be left in the shape which it has now assumed—a shape that has given satisfaction alike to all those in Australia who approved of a limited appeal, and those who asked for an unrestricted appeal.

MR. BRYCE (Aberdeen, S.)

I entirely assent to the argument addressed to the House by my right hon. and learned friend that in cases which arise as to the powers of the Commonwealth Parliament and those of the State Parliaments, the decision should be left to the Privy Council; in other words, it would be for the Privy Council to say whether the matter ought to come before it or not by way of appeal. In regard to the difference between the Canadian and this Constitution, that is not material; but I think my hon. and learned friend goes rather too far if he suggests that it is absolutely impossible that a Constitutional question involving the public interests of some other part of Her Majesty's dominions can arise, where the question is, prima facie, one between the Constitution of a State and the Constitutional powers of the Commonwealth.


I did not say absolutely impossible. I think it is extremely improbable, and that it would be dealt with by the power which the High Court has to allow appeal on cause shown.


I do not suggest that it is a probable case, but my hon. and learned friend the Member for Haddington was quite right in pointing out that this is a case that might arise, and that if it did it would have been better to have retained the words "public interests," which the original draft of the Australian Constitution contained, and which set of words had been used by the Privy Council itself in a famous decision. Probably it was from that decision that the words "public interests" in the original draft were drawn.


The words are "public interests in some other parts of Her Majesty's dominions."


It is said that these are vague words. They are wide words, and the Privy Council would have given them. a very wide interpretation. After all, there is not very much difference between us, and I pass on to enter a caveat against the last argument of my right hon. and learned friend. He suggested that under the Amendment the Committee is now discussing the High Court of the Commonwealth of Australia will not be a Court of co-ordinate jurisdiction with the Privy Council, and that it will be bound to. follow the decisions of the Privy Council. I cannot feel by any means so clear as my right hon. and learned friend on that point, because we are here making a special provision for a special case. From the general right of appeal to the Privy Council to be granted we are excepting, by statute one particular class of cases, questions involving the construction of the Constitution of the Commonwealth. Surely it will not only be within the power of, but also the duty and the right of the High Court to give full effect to that provision of the Australian Constitution, and to say, "We are in this particular matter made a final Court of Appeal. In all other matters we are undoubtedly a subordinate Court, unless in a particular matter we are made a Court of co-ordinate jurisdiction." They would say, "The only appeal is to lie. from us, where we are satisfied there is some special reason; we are bound to carry out the intention of the people of Australia and of the Imperial Parliament in not going beyond the express provision; they have given no appeal unless special reasons, in our opinion, exist." I think, therefore, that it will be open to the High Court in future to hold that in this matter they are a Court not of subordinate jurisdiction but of co-ordinate jurisdiction. I cannot assent to the argument that, because they are subject to appeal in other cases, they are subject to appeal in this case also.


They are subject to appeal in. this case also; the only question is whether that appeal should be allowed and whether a special authorisation should exist.


Excuse me; it is whether they have it in their power, if they so think fit, to depart from the position given to them of being the final Court of Appeal, and put themselves in the position of a subordinate Court. I think it necessary to enter a protest against the view the Attorney General has taken on this point. I do not suggest that that is a reason why the matter should be thrown into uncertainty again, and I have no desire to raise any difficulty if it can possibly be avoided, but I think it would have been a great deal better if we had passed the Bill as it came to us from Australia. If the words the Australians employed had been used, some difficulties and friction would have been avoided. As, however, we have now arrived at an arrangement which appears to be satisfactory to the great majority of the Australian colonies, I do not think there will be any general wish in the Committee to throw any impediment in the way of the final settlement of the matter.


I am glad that the Government have come to a satisfactory settlement with so many of the Australian colonies. I gather that Queensland would still like a wider appeal, and that Western Australia and New Zealand would like the appeal to the Privy Council to stand as at present. I do not intend to propose any Amendment, but would only suggest that between now and the Report stage it should be considered whether the words which the delegates originally proposed should not be preserved as an independent clause without in any way derogating from what has been done. In that way I think the views and wishes of New Zealand, Queensland, and Western Australia might be materially assisted. The right hon. Gentleman the Attorney General has shown the few cases in Canada which cannot arise; but he has not shown the number of cases which may arise. I quite agree that the two Acts will be materially different Acts, but the right hon. Gentleman the Attorney General and the right hon. Gentleman the Colonial Secretary must remember that the cases of ultra vires under this Bill, although they will arise in a different form, will be just like the Canadian cases of ultra vires. The first form of question that will have to be decided would be, "Is the particular statute under consideration within the legislative limits?" That would raise a common form of question under the Canadian Constitution. Then there, would be other questions. Supposing the Commonwealth legislated, under this very wide power of legislating, as to fisheries and extra-territorial waters, then, I think, New Zealand may very easily have a question on which it would be right that it should have an unfettered power of appeal. The desire of New Zealand that it should have an unfettered right of appeal seems to me to be only a reasonable desire, and I suggest to the Government, respectfully but earnestly, that they should give more consideration than they have done to the question of maintaining the original words as proposed by the delegates, if necessary in a separate and independent clause. Not one word has fallen from the right hon. Gentleman or the Attorney General to lead us to think that the delegates object to their original words. As New Zealand would not object, and Queensland and Western Australia both apparently prefer some better form of the clause, the old words should still be embodied in the Bill. If they are not, the Government must take the responsibility, and I can only say that we must congratulate the Government on getting as much assent as they have got.


I do not wish to prevent my hon. and learned friend from having the honours of war, but at the same time, as he has made a further appeal to the Government, I must be permitted to point out that there appears to me still to be an absolute and entire ignorance of the wishes of those he professes to represent. His appeal to us is to insert into this clause or some other part of the Bill, or to reinsert certain words; and he appears to think that if we did that we should give satisfaction to New Zealand. Queensland, and Western Australia. I beg to say he is entirely mistaken. I do not think either of those great colonies cares one row of brass pins whether we put those words in or not. What do they care about? There is something they do care about; these colonies have not got everything they want. From the very first, as I ex- plained to the House in the introduction of this Bill, Queensland has desired that the plenary right of appeal should be maintained exactly as it exists now, and they desire that no change whatever should be made. That is the position of Western Australia; that is the position of New Zealand. But the position of four out of the five federating colonies has been different; they have desired that there should be more or less restriction of appeal, and under those circumstances we have negotiated. I find myself in a difficulty in following the argument of the hon. and learned Gentleman. What has been his object in the part he has taken in this discussion? When, on the introduction of the Bill, I explained that the Government felt that Imperial interests were so seriously concerned in this matter that they could not give way altogether to the majority of the Australian federating colonies, and that, therefore, as they had been unable to arrange any agreement, they were forced to cut out the clause and to leave the right to appeal as it was before (that is to say, when we were giving to New Zealand, Queensland, and Western Australia, for whom the hon. and learned Gentleman is anxious, all that they were wanting) then the hon. and learned Gentleman got up and said that we were wrong, that he could not agree with us, and that we were in danger of incurring the displeasure of the Australian colonies. But when we come down now and say that all difficulty that existed is now disappearing, that we have amicably come to a unanimous conclusion, which Queensland is content to accept, which all the four colonies have accepted as well, which gives us all for which we ever contended in this House or elsewhere, and which gives to the colonies in Australia all which they severally think to be of importance, then the hon. and learned Gentleman is dissatisfied, and thinks that we have insufficiently considered the rights of Queens land and New Zealand. I daresay his position is clear to himself, but I am bound to say it is not clear to me. What I wish to impress on the Committee and on all parties to this controversy is that if, as I hope i will be, the decision of New South Wale is in accordance with the decision of the other colonies, we have—thanks very much indeed to the consideration which has been given to the matter and to the friendliness of the Australian delegates, who were appointed by their Governments, thanks to the general reasonableness of all parties and the desire to secure a unanimous agreement—dealt with what undoubtedly was an extremely difficult and complicated question in a manner which, at the end, we can say was satisfactory to all the parties concerned.

Question put, and negatived.

Clause, as amended, agreed to.

Clause 6:—

Amendment proposed— In page 2, line 20, to leave out from the word 'Act,' to the end of line 23."—(Mr. Secretary Chamberlain.)

Question proposed, "That the words proposed to be left out stand part of the Bill."


I think we ought to have some explanation of why they were struck out. They were put in at the instance of the delegates, and perhaps the Attorney General or the Colonial Secretary will be able to tell us why now they should be struck out.


My hon. and learned friend will observe that the Bill as it came from Australia contained the definition that "the colonies" should mean "the colonies of Australia." If it had not been for that definition I should have thought there would be no doubt that the Colonial Laws Validity Act would apply to Australia as it applied to the laws of the Dominion of Canada. It must be remembered that we are dealing not with one colony, but with the legislation of an assemblage of colonies; and we found, on conferring with the delegates, that it would be more acceptable to strike out the words containing the definition, which they thought were unnecessary.

Question put, and negatived.

Remaining clauses agreed to.


Amendments made.


who had the following Amendment on the Notice Paper— In page 19, line 30, after 'exclusive,' to insert, 'Provided that any proposed laws for the granting of any such bounties shall be reserved by the Governor General for Her Majesty's pleasure,' said: I put this Amendment on the Paper not with the intention of carrying it to a division, but merely for the purpose of calling public attention to the very great change which the clause makes in the commercial policy of the Empire. Hitherto it has been accepted as the commercial policy of the Empire to have free trade in all these matters; but power is reserved to the Australian Commonwealth to grant bounties on the production and export of Australian goods. I am aware that the whole Bill must be subject to the veto of the Queen in Council; but a veto of that kind is very seldom exercised. I am aware that it would be utterly useless for us to attempt to impose any restraint upon the Australian Commonwealth in these matters. We have given to the Commonwealth everywhere perfect freedom to tax themselves and to govern themselves, and even to enter into treaties with foreign Powers, and we cannot, therefore draw a line at a matter of this kind. Personally, I have sufficient faith in the principles of free trade to leave the matter to be settled by the Australians themselves. They will go their own course rejoicing in their own freedom and strength, and we can only hope that, as in the United States, whom we have seen adopt an economic blunder and still remain a prosperous country, a similar fate may be reserved for the Australian Commonwealth. Under the circumstances I do not propose to move the Amendment of which I had given notice.


The hon. Gentleman is entirely mistaken. This does not introduce any new principle whatever. Any single colony in Australia has already power to grant bounties, and as a matter of fact some of them have exercised it.

Schedule and Preamble agreed to.

Bill reported; as amended, to be considered upon Monday next, and printed. [Bill 262.]


; Perhaps I may be allowed to ask the right hon. Gentleman when he proposes to introduce the complementary measure which we were told of more than a month ago as being ready to be introduced in a few days—I mean the measure adding certain Gentlemen to the Privy Council, and which was considered essential to the scheme.


It was not said to be essential—certainly not—but it was the desire of Her Majesty's Government, if such an arrangement could be made agreeable to the colonies, to make the arrangement I referred to on a previous occasion. But what I have to state now is that we are in communication with the Australian colonies through the Australian delegates, and we have not at present received information as to their desire on the subject. Therefore, I am really unable to give any further information. I think it is fair to say that I am led to understand that some further conference will be required in regard to this. It may be that the delay will make it impossible to bring in the Bill this session; but, at all events, the delay will not be with us. It will only be because the colonies desire a conference on the subject.