§ THE SECRETARY OF STATE FOR THE COLONIES (Mr. J. CHAMBERLAIN,) Birmingham, W.
I have no doubt there are many Members of the House who will be inclined to envy me the privilege that has fallen to my lot in introducing this Bill for the federation of some of our greatest colonies—a Bill which marks an era in the history of Australia, and is a great and important step towards the organisation of the British Empire. This Bill, which is the result of the careful and prolonged labours of the ablest states-| men in Australia, enables that great island continent to enter at once the widening circle of English-speaking nations. No longer will she be a congeries of States, each of them separate from and entirely independent of the others, a position which anyone will see might possibly in the future, through the natural consequences of competition, become a source of danger and lead, at any rate, to friction and to weakness. But, if this Bill passes, in future Australia will be, in the words of the preamble of the Bill which I am about to introduce, "an indissoluble federal Commonwealth firmly united for many of the most important functions of government." After it has been passed there will be for Australia under one Administration a uniform postal and telegraphic service, and provision is made making it possible hereafter for railway communication to be under similar control. In the meantime everything which has to do with the exterior relations of the six colonies concerned will be a matter for the Commonwealth, and not for the individual Governments; a common tariff will be established for all the colonies; there will be at the same time inter-colonial free trade, and what is perhaps more important than all, in future there will be a common form and a common control of national defences. Now, this is a consummation long expected and earnestly hoped for by the people of this country. We believe that it is in the interest of Australia, and that has always been with us the first consideration. But we recognise that it is 47 also in our interest as well; we believe the relations between ourselves and these colonies will be simplified, will be more frequent and unrestricted, and, if it be possible, though I hardly think it is, will be more cordial when we have to deal with a single central authority instead of having severally to consult six independent Governments. Whatever is good for Australia is good for the whole British Empire. Therefore, we all of us —independently altogether of party, whether at home or in any other portion of the Empire—rejoice at this proposal, welcome the new birth of which we are witnesses, and anticipate for those great free and progressive communities a future even more prosperous than their past, and an honourable and important position in the history of the Anglo-Saxon race. I hope the House will not think I am taking up its time unnecessarily if, in a few brief words, I give some account of the history of this great movement. The House is aware that the first colonisation of Australia took place in New South Wales in 1788, and that for nearly a generation after that time, as other settlements were made at vast distances along the coast, they all came in some measure under the control of what I may call the central Administration which existed at Sydney. But it will be readily seen that, as these settlements gradually became more populous and of greater importance, the difficulty of such a system of central administration became almost intolerable; and accordingly in 1825 what was then known as Van Dieman's Land became a separate colony under the name of Tasmania, and the example of Tasmania was followed in succession by Western Australia, South Australia, Victoria, and lastly by Queensland in 1859. Victoria, which was then known as the Port Philip Settlement, was separated from New South Wales by Act of Parliament in 1850, but in 1847, when giving assent to this proposal, Earl Grey, to whom we all must feel we owe most of the principles by which our colonial policy is guided, laid down the views then entertained by him and Her Majesty's Government of the time in reference to the ultimate necessity for some central authority in Australia. He said—It is necessary while providing for local management of local interests we should not omit to provide for the central management of all interests not local. Questions having a 48 bearing on the interests of the Empire may be left appropriately to the Imperial Parliament; but there are questions which though local to Australia collectively are not merely local in relation to one colony, though each may have part in a common interest, and in regard to which it may be essential to the welfare of all to have a single authority, and they may more appropriately and effectually be decided by a single authority in Australia than by the more remote, less accessible, and, in truth, less competent authority of Parliament.It will be seen that Earl Grey foresaw that in the future, at any rate, this necessity would arise. He was a little before his time, for when, in 1850, he introduced proposals for constituting such central authority, his proposals met with no general support, and the Bill, when it became an Act, was confined to the establishment of the colony of Victoria, separating it from the older colony of New South Wales. But from this time, and continuously down to the present day, the subject of some closer union between the separate Australian provinces or States has attracted the attention of all far-seeing and patriotic statesmen, especially in Australia. And among those who laboured in this movement I think it would be ungrateful not to mention the name of Sir Henry Parkes. Sir Henry Parkes was certainly a most remarkable individuality; he had his peculiarities, as most of us have, but no one would deny that he was a man of great capacity, of great power of work, of great resource, and of intense local patriotism; and I think that to-day, when the consummation of the work for which he laboured so long is clearly within sight, we may well bear his memory in respectful regard. In 1867 the Dominion of Canada was established. This gave to Sir Henry Parkes an opportunity which he was not slow to seize, and, although he had raised the question before, he now again emphatically urged his fellow-Australians to follow the example of the Dominion of Canada. Still, however, no progress was made. A little later the somewhat sinister activity of certain foreign Powers in the Pacific brought the matter home in a clearer degree to the majority of the Australian people; and in 1883, accordingly, a conference was called, again at the instance of Sir Henry Parkes, of all the colonies, which resulted in certain recommendations, in the adoption of certain general principles, which led almost immediately to the establishment of what is known as the Federal Council. The 49 Federal Council, however, although very wisely designed as an experimental step at a time when there was still much to be done before the colonies themselves could see the necessity of a closer union—the Federal Council was not a very effective instrument; it had no legislative power, no executive power, it was neither more nor less than an advisory council, and under the circumstances it did not excite any warm popularity in Australia. The great colony of New South Wales refused from the first to attend its deliberations; South Australia subsequently withdrew from them; and now, having served its turn, this Federal Council will be abolished by the Bill which I am about to introduce. Then, again, after the establishment of the Federal Council, and coming down to 1890, a good deal of uneasiness, the result, I think, largely of what was known as the Russian scare, was felt in Australia as to the state of Australian defences, and accordingly another conference was then held in Melbourne. It was followed by a convention in Sydney in 1891, when the first great advance towards a federal union was at last made, because the convention of Sydney in 1891 produced a draft of a Commonwealth Bill which has been the foundation for all subsequent discussion. Those who are acquainted with this draft, which has, of course, very many points of resemblance with the present measure, will, I am sure, recognise the great constructive skill with which it was framed; and they may be interested to know that its great qualities are largely, if not chiefly, due to the labour given to it by Sir Samuel Griffith, the present Chief Justice of Queensland, and by Mr. Barton, who was then Attorney General in Sir George Gipp's Government, and who is now the distinguished representative of New South Wales among the delegates who have recently been our guests. Well, this draft was then submitted to the local Parliaments, but still, although quiet progress had been made, there was not sufficient popular force behind the movement to secure the Bill being brought into operation; and it was evident to those who were interested in the movement, and particularly I think to my hon. friend Mr. Barton, that the next step must be to educate the people of Australia themselves to the necessity and the importance of this movement. Accordingly, I believe it is to him that we owe the formation of 50 what is known as the Federal League, which went up and down the country throughout Australia informing the people of the nature of their proposal, explaining the draft, and urging the desirability of its adoption. And so successful was this educational movement that in 1895 the Premiers, meeting again, agreed to bring forward enabling Bills in their several Parliaments for providing a convention of delegates which should be instructed and empowered to frame a constitution. This constitution was then to be submitted to the separate Parliaments sitting in Grand Committee—in Committee of the whole House—and the amendments which might be made in the several Parliaments were then to be referred back to another meeting of the convention and considered by them, and a final draft after such consideration was then to be submitted to the people of the several States in the shape of a general referendum. The convention, accordingly, was held at Adelaide in March, 1897; and certainly, I think, any one who reads the history of the debates which took place then will agree with me that it would have been absolutely impossible to have collected together more capable, more able, more efficient representatives of Australian feeling than met in that convention. I say that, but I must make one exception. Owing to circumstances on which I need not dwell, the Government of Queensland refused to pass an enabling Bill, and consequently at this convention Queensland was not represented, but the other colonies were all present. The convention went to work in that businesslike spirit which we flatter ourselves distinguishes British proceedings throughout the world. In the first instance they considered and passed resolutions settling the principle upon which they would proceed; then these resolutions were divided amongst a number of committees, and considered by them, and the result was afterwards discussed and finally settled in the whole convention. The draft so prepared went to the different Parliaments, and was returned by them to the Sydney convention in 1897 with their amendments. That convention adjourned to Melbourne in 1898, and the final draft—as it was submitted to Her Majesty's Government the other day by the Parliaments of the five colonies who may be described as the federating colonies— the draft as then 51 submitted was finally passed by the convention. It had still to go through the ordeal of a, referendum. The first referendum showed 219,000 votes for and 108,000 against the Bill. Unfortunately, or as it may be considered fortunately, the New South Wales majority, although there was a majority in favour of the Bill, did not reach the amount of 80,000 votes which had been fixed as the minimum to justify the adoption of the measure. Accordingly on that occasion the Bill was not passed by that colony. New South Wales then took the opportunity of proposing further amendments. These amendments were considered in a friendly spirit by another meeting of the Premiers, and they were to some extent adopted, the proceedings being, perhaps, rather in the nature of a compromise. But still I think in substance the wishes of New South Wales were complied with, and arrangements were then made for a second referendum. On this occasion the referendum took place in the five colonies—I should have said that previous to the first referendum taking place there were only four colonies, Queensland and Western Australia being excluded—but in the second and last referendum Queensland took part for the first time, and the results were 377,600 votes for the Bill and 141,500 against. Western Australia did not join in this decision, but pressed for certain further amendments, which, however, the Premiers decided it was too late for them to consider. And so the Bill is presented to us. It comes with the authority behind it of five federating colonies, and it is this Bill, with a few alterations, but substantially this Bill, with 128 clauses, and dealing with a vast number, probably with hundreds, or even thousands, of separate propositions of the greatest importance, which I have to ask leave to introduce. I think it will be admitted that this Bill is a Bill worthy of all the care and the labour which has been bestowed upon it. I think I may describe it as, and it certainly is, a monument of legislative competency. Of course, the framers of the Bill themselves are perfectly ready to admit that it may not be perfect, that amendments may ultimately be required in it, and that experience may show that something has been omitted, or that something has been placed within its four corners which might with advantage have been left out. But 52 provision has been made for any such amendment in the Bill itself; and, considering the magnitude and the variety of the interests that we are to deal with, the intricacy and the importance of the subjects with which the Bill has to deal, I think that no praise can be too high for those whose moderation, patience, skill, mutual consideration, and patriotism have been able to produce so great a result. It would be absolutely impossible for me, within anything like a reasonable time, to refer to the multifarious details of this great measure, nor do I think it necessary to do so, because I cannot conceive that the House will be inclined to discuss these details in any critical spirit; but I might be allowed, and it would interest the House, I think, if I call attention to the general scope of the measure and to some of its most striking features. I think it is true to say that, on the whole, this new Constitution, although it is in important respects unlike every other constitution at present existing, still in the main, and more than any other, follows the Constitution of the United States of America. But it would be, perhaps, more interesting to us to contrast it with the Constitution of our own colony of Canada. The differences between the Constitution of the Dominion and the Constitution of the new Commonwealth arc, I think, to be explained in a certain fundamental diversity in the position of the two colonies, and also in the methods by which the Constitution has been brought into existence. In the case of Canada, the delegates came here and the Constitution was settled here in conference with Her Majesty's Government, and was the result, to some extent at any rate, of their advice and suggestion. In the case of Australia, the people of Australia, through their representatives, have worked alone, without either inviting or desiring any assistance from outside. In Australia, it must also be remembered, the separate States have enjoyed for a much longer period than had the provinces of Canada complete independent self-governing existence, and, accordingly, while in Canada the people had before them at the time that the Constitution was decided upon the warning, I might almost say, afforded by the civil war in America of the danger of exaggerating State rights, and while the special provinces had no | desire to put forward those rights in too i emphatic a manner, in Australia there 53 was no such example to fear, and the separate colonies had enjoyed for so long such great powers that they were naturally unwilling to part with them to anything like the same extent. Accordingly, while in Canada the result of the Constitution was substantially to amalgamate the provinces into one Dominion, the Constitution of Australia creates a federation for distinctly definite and limited objects of a number of independent States, and State rights have throughout been jealously preserved. In Canada everything that was not given expressly to the provinces went to the Central Government. In Australia the Central Government has only powers over matters which are expressly stated and defined in the Constitution. In Canada the Senate was a body which represented particular provinces substantially in proportion to their population. In Australia the Senate consists of six members from all the States—that is to say, an equal number, whatever may be the size or the population; and the mode of the election of the Senate is also different from that of Canada, and, I believe, entirely novel. In Canada the Senate was nominated for life on the advice of the Ministers. In the United States, as we all know, the Senate is elected by the Legislatures of the several States. In Australia the Senate is to be elected at the same election as the Lower House, but each State is to vote, not in the separate constituencies into which it is divided for the purposes of the Lower House, but as one constituency—a scrutin de liste, in fact, as the French call it— except in the case of Queensland, where there are to be two divisions. The Upper House is to serve for six years instead of three; but those are the only differences which separate it in composition, qualification, or constitution from the composition of the Lower House. The Lower House is to be elected according to the electoral laws of the several States, but according to population, and a very ingenious device has been resorted to in order to prevent the numbers of the Lower House from ever becoming excessive. It is provided by the Constitution that the Members of the Lower House shall, as far as possible, be exactly double the numbers of the Upper House or Senate. I should add, perhaps, that the Members of both Houses will he paid, and paid the same salary. 54 There is also an example which I cannot help thinking might be wisely imitated by ourselves. Ministers on taking office do not vacate their seats. Then there is a most ingenious and complicated provision to prevent a possible deadlock between the two Houses; for although they are, as I have said, elected practically by the same constituency, I think it is evident that the differences in the manner of election may sometimes result in a diversity of opinion between the two chambers. In that case—and here, also, I cannot help thinking that hon. Members who are interested in the subject may find many useful suggestions—the course of the operation is this. Measures may be twice rejected by the Senate, as I understand, in two separate sessions of Parliament. After that the Government may dissolve both Houses. Both Houses will be re-elected at the same time. If after that re-election the Senate should again—a third time—reject a measure, then there is to be a joint sitting of both Houses, and a decision is to be taken by a simple majority of both Houses. That applies to the case of ordinary measures, but, if the question between the two Houses is an amendment of the Constitution, then a somewhat different course is followed. The proposed amendment may be twice rejected by the Senate, and if after that the Houses do not come to an agreement, then the amendment will be settled by moans of a referendum, and is to be decided by the majority of votes in a majority of the States. Now, to this new Parliament so constituted thirty-nine distinct subjects have been expressly referred. Amongst them are the tariff, post office, and telegraph services, defence, currency, bankruptcy, marriage and divorce, and old-age pensions, and also the following matters—to which I call special attention because they involve interest outside Australia as well as locally—first, the fisheries in Australian waters, beyond the territorial limits of Australia; secondly, copyright: thirdly, legislation dealing with the people of any race not being natives of either of the States (I think that has in view legislation in regard to Asiatics); fourthly, "external affairs," a phrase of great breadth and vagueness, which, unless interpreted and controlled by some other provision, might easily, it will be seen, give rise to serious difficulties; and, fifthly, the relations with the islands, 55 of the Pacific, which also involves, of course, many questions in which foreign nations are concerned. It will be seen that almost all the points to which I have thus called special attention are matters in which the Imperial Government may have to deal with foreign countries. It is important, therefore—I say this in passing, although I shall deal with it more at length—it is important that measures of this kind, which may involve the Imperial Government in the most serious responsibility, should be interpreted by a tribunal in which all parties have confidence. There are also in the Bill some complicated provisions for dealing with the division of the receipts from Customs among the several States, for the imposition of new duties, and the division of old ones. I have mentioned, at all events, the most important and the most interesting matters which are raised by this Bill, and I think it is evident from even this very brief and inadequate résumé that there are a great number of propositions in the Bill which, if it were a case of freely discussing a Constitution of our own, would arouse much difference of opinion. If we had been invited to frame a Constitution, or if we had been consulted after the Constitution had been framed, it is quite possible—I do not say it would have been so—it is quite possible we might have had many suggestions to make and some amendments to offer. But that is not the position. The Bill has been prepared without reference to us. It represents substantially and in most of its features the general opinion of the Australian people; and although I differ totally from those who have said that the Australian people do not desire that this great measure, the result of the labour of their representatives, should receive in the Imperial Parliament the fullest consideration and even the fullest discussion; although I deny altogether that the Australian people have ever considered, or shown that they consider, the Imperial Parliament as merely a Court for the registration of their decrees; and although I am convinced that the Australian people will be neither offended nor insulted if we alter here a word or there a word, or even a clause, in this Bill, I think, on the other hand, they do expect that we shall have a reasonable regard to the labours which they have already expended upon this measure, and to the 56 general feeling of the Australian people; wherever it has been really and conclusively shown, and to those rights of self-government of which they have made so magnificent a use and which we have so freely and gladly conceded. Now, it is therefore on these main principles that the Government have proceeded in dealing with this Bill. On the one hand, we have accepted without demur, and we shall ask the House of Commons to accept, every point in this Bill, every word, every line, every clause, which deals exclusively with the interests of Australia. We may be vain enough to think that we might have made improvements for the advantage of Australia, but we recognise that they are the best judges in their own case, and we are quite content that the views of their representatives should be in those matters accepted as final; and the result of that is that the Bill which I hope to present to the House to-night is, so far as ninety - nine hundredths of it, I think I might almost say 999-thousandths of it is concerned— as regards the vast proportion of the Bill —exactly the same as that which passed the referendum of the Australian people. But the second principle which I ask the House to assent to, and to which we have given application by certain amendments we have made in the Bill, is that wherever the Bill touches the interests of the Empire as a whole, or the interests of Her Majesty's subjects, or of Her Majesty's possessions outside Australia, the Imperial Parliament occupies a position of trust which it is not the desire of the Empire, and which I do not believe for a moment it is the desire of Australia, that we should fulfil in any perfunctory or formal manner. As I say, we have applied these principles in dealing with the Bill. Two colonies — Western Australia and New Zealand— appealed to Her Majesty's Government, and were represented here by special delegates, and asked us to interfere to secure for them certain amendments in the Bill. I may say Her Majesty's Government were inclined to sympathise with the desire of both these colonies. Her Majesty's Government would have been very glad indeed could their wishes have been complied with; but, as we considered that it was an entirely Australian question, as it was a difference of opinion arising between the Australian colonies, in which neither the Empire nor 57 the mother country were themselves directly concerned, we felt we were not justified in pressing these claims, or in insisting upon securing their adoption as against the majority of the colonies in Australia. Western Australia asked for the right to come in as an original State, on terms slightly different from those provided in the Constitution. The differences arose as to the question of tariffs; and undoubtedly it was admitted by the five federating colonies, that, owing to the peculiar position of Western Australia, she was entitled to some period of interval before she adopted the common tariff of the Commonwealth; and accordingly five years were allowed her for that purpose, subject to the condition that each year one-fifth of any difference that might exist between the tariff of Western Australia and the tariff of the Commonwealth should be reduced. I confess that it seemed to me that a condition of that kind imposed, and I still think it imposes, on the financial system of Western Australia a very considerable strain. I do not envy the position of the Chancellor of the Exchequer who is beforehand tied down by a statutory and Constitutional law to reduce his tariff by one-fifth in every successive year for five years to come. It is perfectly evident that that must interfere to a considerable extent with the production of his annual budget. But, as I have said, having appealed to the Premiers, and having put forward the views of Western Australia, and having received from them the statement that they did not feel justified in assenting to any amendments, we reported the result of our inquiries to Sir John Forrest, the highly-respected Premier of Western Australia; and we ventured—although it was perhaps hardly our business—in the interest, as we believed, of Australia as a whole and even of Western Australia, to press upon him that his Government should now reconsider their position, and that in spite of the arrangements of which they complained they should seek to enter the Federation as an original State. I am very happy to say—as will be seen by the Blue-book which I have laid upon the table—that Sir John Forrest and his Government have assented to our request to take this step. Their Parliament will be shortly called together; and I hope the result will be that the Constitution 58 will be submitted to the people of Western Australia, and that Her Majesty's Government will be able to proclaim the whole of the six colonies of Australia as taking part in this great scheme. The colony of New Zealand made several requests to us. Two of these were, I think, of minor importance. They were that they should have access to the Supreme Court of the new Federation, and that some arrangement should be made at once for common defence. We considered that there would be no difficulty in dealing with these very important questions as between New Zealand and the Federated Commonwealth after it was formed, and that it was unnecessary to delay the Commonwealth during the discussion of matters which, no doubt, would require a considerable amount of time. The third proposal was that New Zealand should be allowed to enter as an original State at any time within the next seven years—I do not know that the period of seven years was a definite part of the proposition; but, at all events, a considerable period was to be given to them to make their choice. I confess that here also I should have been very glad if the Premiers had seen their way to accept the suggestion. The delegates, however, who were representing the five federating colonies explained, very ably, the difficulties that would arise from such a state of things. They pointed out that great inconvenience might be suffered, especially with regard to the establishment of a tariff, if the federating colonies were under a sort of compulsion to accept another partner at any time during a long period. I felt this decision the more particularly, because I do not hesitate to say that Her Majesty's Government and the people of this country are under special obligations to the Government and people of New Zealand. Of all the colonies, all the possessions of Her Majesty, including Canada and all the colonies of Australia—I am excluding the colonies in South Africa—New Zealand, in proportion to her population, supplied the largest contingent to Her Majesty's forces, and made the greatest sacrifices. I mentioned this matter in the House a few days ago; but I find I under-estimated what New Zealand has done. I am told that, according to population, the New Zealand contingent in South Africa is equivalent to an army sent from this country of 107,000 men. I do think that 59 is a most extraordinary proof of what shall I say?—of affection and regard for the mother country; and if this point of difference had been between the mother country and New Zealand I feel quite certain the House would be inclined to make almost any concession that could be asked. But as it was exclusively a matter between New Zealand and the federating colonies, and as the Premiers again put in a non possumus and stated that they had no authority to consent at this period to any further amendments, we have had no course open to us but to accept, although we regret, that decision. We could not, I think, fairly press the opinion of a single colony against the unanimous opinion of five. I now come to the points upon which we think amendment to be necessary. Substantially there is only one point of importance, but in order that I may be perfectly accurate I will mention others, as to which, I think, there will probably be very little debate or opposition. In the first place, there was a blank left in the draft Constitution Bill which it was intended we should fill up as soon as it was known whether Western Australia had joined. We have applied for the figures requisite to fill up the blank, and, having received them from the Australian colonies, we shall insert them at their request. Then, there are certain drafting alterations which are desirable, if not absolutely necessary, in consequence of the probability of the admission of Western Australia as an original State. We have submitted these amendments to the delegates, and, so far as I know at present, no objection of any kind is taken to their insertion. Then, in the third place, there is a matter of more importance, though I am happy to say it is one on which there is no division of opinion. We propose to make clear in the Bill the application of the Colonial Laws Validity Act to the Commonwealth. Doubts have been expressed in the course of the discussion whether the Commonwealth is a colony within the meaning of the Act. The Act, as lawyers in the House are no doubt perfectly well aware, provides, among other things, that where a colonial Act is repugnant to an Imperial statute it shall not be wholly void, but shall only be void so far as repugnancy extends. It was intended as an enabling Act to prevent what otherwise might have occurred —the whole of the colonial statute being 60 rendered void in consequence of its being repugnant on some one point to Imperial legislation. The Act is one of great importance, because it defines the extent to which the paramountcy of Imperial legislation goes. The fact that Imperial legislation is paramount has always been admitted by the colonies, although the use of the constitutional power has, of course, been extremely rare. The kind of cases in which that paramountcy becomes of importance are such cases as those of the Foreign Enlistment Act and the Merchant Shipping Act. In both of these cases I think it will be admitted to be desirable that there should be legislation for the whole Empire and not conflicting legislation in different parts of the Empire. In the memorandum presented by the delegates on 23rd March they argue that this amendment is altogether unnecessary. They say the Commonwealth appears to the delegates to be clearly a colony and the Federal Parliament to be a legislature within the meaning of the Act; and they cannot think that the larger meaning given to the word colony in Clause 6 can be held to take away the protection of the Act of 1885 for any law passed by the Federal Parliament. Now, I think that the House will feel that there is no difference of opinion as to the merits between us and the delegates. The only point is that they think the amendment is a work of supererogation, but we feel that the matter, involving as it does our foreign relations, is of such vast importance that we ought not to leave a shadow of doubt on the question. It is fair to say—and I wish to call the attention of the House to the fact—that in the last memorandum which was presented by the delegates only a day or two ago they raised for the first time a very very important question— namely, whether the Colonial Laws Validity Act as it stands is law properly applicable to a great Commonwealth like the Dominion of Canada and the new Commonwealth of Australia. Her Majesty's Government admit the importance of that question. They admit that it is a very fair point to raise. But, if there is to be any change in regard to the matter, which, as I have said, is of such infinite importance, the greatest care will have to be taken and very considerable delay must necessarily occur. We should have to consult Canada and other colonies before any Amendment of that 61 Act could be adopted. I do not object on behalf of Her Majesty's Government that the matter is not worthy of consideration. All I say is we have to deal with a provisional period. We cannot delay the passing of the Federation Act in order to discuss this matter. We must have a proper understanding before any change is made; but it will be open to the Federation of Australia and the Dominion of Canada, if they see fit, to raise the matter at a subsequent period, and no doubt, in that case, any views they may express will receive the most careful consideration by Her Majesty's Government. Now I come to what I have described as the substantial point of alteration, which of course is the point affecting the question of appeal. This is the only point I think on which there can possibly be any important subject of controversy or difference of opinion between ourselves and the Australian representatives. Sir, I wish at the outset to repudiate in the strongest and clearest terms the possibility that any difference of opinion upon what is a great constitutional point, which has hitherto been discussed by the delegates with ourselves in the most friendly and cordial spirit, can, by any possibility, be a matter of serious conflict between ourselves and the colonies of Australia. I saw with regret a speech made only a few days ago by the right hon. Gentleman the Member for East Fife, at Colchester, and I must say that I think he was a little premature. He certainly prejudged this question without having heard one single word of the case which Her Majesty's Government had to put before the House; and he seemed to be speaking from a brief which was supplied, of course, by a single one of the parties.
§ MR. J. CHAMBERLAIN
Well, speaking from information—I do not know that the right hon. Gentleman will take exception to that word—speaking from information that came from one side only. Now that is what I complain of; and I think I ought to persuade the right hon. Gentleman to withdraw his speech on this subject. I regret his allusion in connection with this matter that the revolutionary war in America is a warning to us. Sir, what connection does 62 the right hon. Gentleman suppose there can be between the two cases? Then, in another part of his speech, he referred to Canada as being exemplar and model. Well, I do not ask for anything more than Canada and South Africa have already most willingly granted.
§ * MR. ASQUITH
As far as my memory goes—I have not got the speech with me —my reference to the revolution was in a totally different connection. It had nothing whatever to do with this question of the appeal.
§ MR. J. CHAMBERLAIN
I am extremely glad to have elicited that statement from the right hon. Gentleman. The report which I saw, I confess, was a condensed report.
§ MR. J. CHAMBERLAIN
I understood him to refer to the revolution in connection with this difference of opinion, which as I say must under no circumstances be exaggerated. It is important, of course, but it must be discussed by all parties, and it will be discussed by Australia as well as by ourselves, in a perfectly friendly spirit. I am going very much further than I have done hitherto. We have got to a point in our relations with our self-governing colonies in which I think we recognise, once for all, that these relations depend entirely on their free will and absolute consent. The links between us and them at the present time are very slender. Almost a touch might snap them. But, slender as they are, and slight as they are, although we wish, although I hope, that they will become stronger, still if they are felt irksome by any one of our great colonies, we shall not attempt to force them to wear them. One of these ancient links is precisely this right of appeal by every subject of Her Majesty to the Queen in Council. The Bill weakens that—there is no doubt about that—and thereby there opens up, as I shall show, a prospect of causes of friction and irritation between the colonies and ourselves which, in my opinion, would be more numerous and more serious than anything that is likely to result if the right of appeal is retained. Well, how shall we deal with this question? I am sure the House will feel that there is no man in the House who is more anxious 63 to maintain the good feeling between ourselves and our colonies than I am. Ever since I have been in office that has been my chief desire. Sir, in a case of this kind nothing is more easy than to concede; nothing is more difficult than to refuse. At the same time, believing firmly, as the Government do, that what is asked for in this Bill, as it originally came to us, is not only injurious to the best interests of Australia, but that it would lead to complications which might be destructive of good relations and prejudicial to the unity of the Empire, we feel that we are bound to ask the House to reconsider it. Sir, we believe further— and this is an important point—that opinion has not yet been definitely formed on the subject in Australia, and before, therefore, assenting to a change which may have such serious results, we hold it will be our duty to be quite certain that the demand is a demand that has behind it the whole force of Australian opinion. Now, the new clause, Clause 74, as submitted, would allow no appeal in any matter involving the Federal Constitution, or the constitution of a State, unless the "public interests" of some part of Her Majesty's dominions other than Australia are involved; and it further provides—a matter to which sufficient attention has not been directed—that the Federal Parliament may in the future make laws limiting further the matters on which appeal is to lie. Now, the right hon. Gentleman the Member for East Fife, unless he has been again misrepresented, said that the Bill did not take away any right already existing. He will find that that is a mistake. It does take away the right of appeal from a State where the State Constitution is in question; and that right exists at the present time. And further, as I have pointed out, by a proposal in this solemn instrument expressly to authorise the newly created Parliament to further limit the right of appeal, it almost makes it impossible for Her Majesty in future, in reference to this subject, to exercise the right of veto which, of course, is inherent in the prerogative.
§ * MR. ASQUITH
Only as regards appeals from the new High Court. The Parliament can limit no other right of appeal.
§ MR. J. CHAMBERLAIN
Pardon me. Surely an appeal from a State might very 64 likely come to the High Court, and then no appeal would lie to Her Majesty in Council. I will not argue the legal point with my right hon. friend, but I think it will be found that, inasmuch as any appeal may come from the Supreme Court of a State to the High Court, there will be a very considerable limitation of the right of appeal, because there would be no appeal from the High Court to the Judicial Committee of the Privy Council. I go on to another point to which I wish to call attention. Although this Bill does not in direct terms limit the right of veto, which is a right, although undoubtedly reserved to the Crown, which must, nevertheless, always be exercised with the most scrupulous care and consideration—although it does not take away that right, it would make it almost a stultification on the part of Her Majesty if the Crown were advised to exercise that right in a matter which we had expressly referred and delegated to the new Parliament. Now, these are the proposals. What are the main objections to these proposals? The matter was under discussion in the convention at Adelaide. When the Australian Premiers were here in the Jubilee year in 1897, I had the honour of discussing the subject with them, to which some public reference was made in Papers presented to this House. The conversations were as a rule in the nature of private discussions, but at the request of Mr. Reid, who was, as it were, the Dean of the representatives from Australia—being the Prime Minister of New South Wales, the mother colony —I handed to him a memorandum on the part of Her Majesty's Government of the amendments on the draft proposal, which we had seen, which we thought were desirable; and I specially called his attention to the probability that the Imperial Parliament would think it its duty to interfere if there were any limitation of the right of appeal. In this memorandum I quoted a passage from a memorandum of the Privy Council, which gave in very succinct terms the main objections to any proposal of the kind. In 1871 it appears a question was raised at the instigation of some of the Australian colonies, and then the Privy Council in their memorandum said—The appellate jurisdiction of Her Majesty in Council exists for the benefit of the colonies, and not for that of the mother country; but 65 it is impossible to overlook the fact that this jurisdiction is part of Her Majesty's prerogative, and which has been exercised for the benefit of the colonies since the date of their settlement. It is still a powerful link between the colonies and the Crown of Great Britain, and secures to every subject throughout the Empire the right to claim redress from the Throne. It provides a remedy in many cases not falling within the jurisdiction of the ordinary courts of justice. it removes causes from the influence of local prepossession; it affords the means of maintaining the uniformity of the law of England and her colonies which derive a great body of their laws from Great Britain, and enables them, if they think lit, to obtain a decision in the last resort, from the highest judicial authority, composed of men of the greatest legal capacity existing in the metropolis.The Australian colonies in 1871 recognised the validity of these reasons, and the matter was allowed to drop. It was raised again in 1875, by the passing of the Act by which the Dominion of Canada was created; and again the Privy Council pointed out that—this power had been exercised for centuries over all the dependancies of the Empire by the Sovereign of the mother country sitting in Council. By this institution, common to all parts of the Empire beyond the seas, all matters whatever requiring a judical solution may be brought to the cognisance of one Court in which all have a voice. To abolish this controlling power and abandon each colony and dependency to a separate Court of Appeal of its own, would obviously destroy one of the most important ties connecting all parts of the Empire in common obedience to the courts of law, and to renounce the last and most essential mode of exercising the authority of the Crown over its possessions abroad.There are other reasons, besides these which are stated by the Privy Council, which we have now to bear in mind. This Constitution is to be an Imperial Act, and it is, in substance, the delegation of powers to an authority which is created by the Imperial Parliament. Is it reasonable that when questions arise, as they certainly will arise, as to the interpretation of the powers of the clause by which this authority is delegated, the Imperial power which made the delegation shall not be represented upon the Court which is to give a decision? Then, Sir, there is another point. The terms of the clause are such as certainly to introduce confusion where uniformity is most desired. No appeal is to lie except where the "public interests" of a portion of Her Majesty's dominions outside Australia are concerned. The advice which I have received on the subject goes to show that there may be endless litigation as to the precise nature 66 of the cases in which public interests will arise. I believe there is no, legal authoritative definition of what constitutes public interest. I believe it to be extremely difficult to say whether in the case of a number of individuals, subjects of Her Majesty but not, of course, constituting in themselves part of Her Majesty's possessions, whether in that case it would be held that the public interests of Her Majesty's possessions were involved. And if I am rightly informed, therefore, a clause of this kind, instead of lessening litigation, would increase it, and would bring up to the Judicial Committee of the Privy Council for its decision case after case in which it was a question whether or not the public interests of Her Majesty's possessions were or were not involved. But there is something still more serious than that. I am not going to dwell upon it, because it is so exclusively legal that I would rather leave it to my hon. friend the Attorney General to explain later in the discussion. But I am told that under this proposal, as it stands, it is almost certain that in the confusion of appeals there might be conflict of authority between the now High Court and the Judicial Committee of the Privy Council. Can there be anything worse than two co-equal Courts concurrently giving diverse decisions in matters of the greatest importance that may be submitted to them affecting the British Empire? Lastly, there is also the question, to which I have already referred, that the Constitution empowers the new Parliament to deal with maritime jurisdiction, with the Pacific islands, with foreign enlistments, and with external affairs. The responsibility for the action of the Parliament of Australia and its legislation rests with us. We may be brought into a hostile position in regard to any foreign country in consequence of the action of the Colonial Court. Is it reasonable that while we still undertake to cooperate with the colonies in their defence, while the whole strength of the Empire would be brought to bear in order to protect the interests of the colonies— is it reasonable that the question whether or not their Parliament has gone beyond the powers delegated to it, in some matter in which a foreign country—not one of Her Majesty's possessions—is concerned, should be settled without an appeal to the Privy Council? For these and other reasons—-but I have stated the principal 67 ones—Her Majesty's Government, as soon as they obtained the Bill from the Premiers, were desirous of making some amendments. There were several points in regard to which we desired to make changes, but this was the principal one; and we cordially invited the Governments of the federating colonies to send delegates to this country to represent them, to give the necessary explanations and to assist us with information in the course of the passage of this Bill through the House. We must joyfully acknowledge that the Australian colonies could not have paid us a greater compliment than to send us gentlemen so able and so representative as those who constitute the delegation; and I am delighted to say that, whatever differences may have arisen upon such points as this to which I have have been referring, our personal relations, ever since their arrival, have been of the most cordial and friendly description. Now, most unfortunately, as we think, when the delegates arrived in this country we found that they held themselves precluded by their mandate— by the fact that the referendum had been taken on the Bill, and that, as they contended, public opinion had been expressed —from accepting any amendments at all. They argued, and they have argued since, that the result of the referendum upon the question whether this Bill should or should not pass, whether there should be federation or should not, did in fact imply agreement with every line and every word of the Bill. Of course, holding that view, it became impossible that we should come to a full agreement. It is true that in the first instance the delegates used language which filled our minds with hope, because they said that they interpreted their mandate as one to get this Bill passed intact if they could, and, if not, with the slightest amendment possible. But unfortunately they have not been able to tell us that the slight amendments which they had in view included anything so important as the amendment which we have thought it our duty to make. In these circumstances the next stop was to ask the Governments of the federating colonies to enlarge the instructions of their delegates, and that was done in a Paper which has been presented to the House. The reply of the Premiers is also in the possession of the House. It is interpreted by the delegates as a confirmation 68 and approval of the attitude which they have taken up. Of course, everyone must be allowed to offer his own opinion upon this matter. I confess that to me it does not seem to go as far as the delegates think. It is not, in effect, so irreconcilable, because while it does undoubtedly indicate the desire of the Premiers that the Bill should pass as it stands, while it does undoubtedly indicate their opinion that they have no authority to accept the amendment, it does not seem to me to imply that if Her Majesty's Government, upon its own responsibility, were to make the particular amendment suggested there would be any strong feeling in Australia, but that the people and Governments of Australia would be prepared in ail good feeling to accept the suggestion. We are called upon therefore to make our decision. It has been recognised by none more strongly or more eloquently than by the delegates themselves that the position of the Imperial Parliament is that of trustee for the Empire, and that although the policy of reconstruction may be a different matter, the right of reconstruction undoubtedly rests with us. If, therefore, it were a fact that Australia as a whole was absolutely united on this question, if the clause exactly as it stands had been taken as the irrevocable and final decision of the Governments and the people of Australia, our position would no doubt be a very delicate and very difficult one, because, as I have already pointed out, we recognise fully the unwisdom—I had almost said the impossibility—of pressing views on great self-governing communities to which they are absolutely opposed. However great we might think the mistake that they are making, and however great we might think the injury to the Empire, still we should have to set against that the danger of interfering with those rights which they regard as their undoubted palladium. I do not know to what conclusion we should have come if that had been the position. We should have had to consider not the wishes of Australia alone. We should have had to consider also that, if we accept their view as to right of appeal, our decision will react upon other colonies just as much entitled to consideration as the great colonies of Australia—on Canada, on South Africa, on New Zealand. I read the other day a statement attributed to a distinguished man—to Sir Henry de 69 Villiers, Chief Justice of the Cape, and recently appointed member of the Judicial Committee of the Privy Council. Sir Henry de Villiers deprecated any change in the existing right of appeal. He went on to say that if such a change were made it would be impossible, or it would be unlikely, that either South Africa or other parts of the British Empire would rest content without a similar, or some equal, change being made in reference to their position also. What would be the result? The result would be the weakening and, probably, ultimately the destruction of the Court of Appeal for the Empire, and this Court of Appeal, whatever defects it may have possessed, has, at all events, worked well in the past. It has been acknowledged to have been of importance and value to the great colonies, and it has within it the germs of a still greater, a still more important, and a still more beneficent institution. Now I come to what is perhaps the most pleasant portion of my task. Fortunately, Her Majesty's Government are not placed in this difficult position. We have not to choose between what we firmly believe to be the interests of the Empire on the one hand and the united and absolutely convinced opinion of Australia on the other. For my part, I do not understand at all that in assenting to the Bill by a referendum the majority who voted for it intended to preclude the Imperial Parliament from considering the Bill and from making amendments. On the contrary, I have information from some of the Governments that their intention was exactly the reverse, and that they always believed that this great mother of Parliaments, as a proof of its goodwill, would give its best consideration to this important matter, and, if it saw fit, would suggest amendments and changes. It is putting too great a strain on the principle of the referendum to say that a referendum on a Bill like this, which contains such an enormous number of difficult and different propositions, carries with it assent to every one of those propositions. To say anything of the sort would be directly contrary to the argument used by some of the representatives themselves by which the referendum was carried. The people of Australia were told—" It is not so much your duty at the present moment to look to the individual parts of the Bill, to this clause or to that section of a clause to which you may possibly 70 take exception. You have got to consider this great work as a whole, and if as a whole you agree to it and are willing to accept it, then vote for the referendum." That is the argument, but that is an argument entirely inconsistent with the present view that the referendum carries with it absolute agreement with every line of the Bill. That that is so is proved also by the action of the great colony of Queensland. Queensland accepted the referendum. Queensland, by one of the largest majorities, accepted this Bill. And yet the delegate of Queensland, the Government of Queensland, the Ministers of Queensland, and the people of Queens land are at the present time urging, with all the strength in their power, that Her Majesty's Government shall restore the right of appeal. Queensland, one of the five original federating States; Queens land, represented by one of the Premier; who refused the other day to enlarge the power of the delegate; Queensland, who has sent to us a delegate in common with the other colonies, is entirely opposed to the view taken by four of the delegates and is strongly in favour of the line which Her Majesty's Government venture to recommend to the House. go much further. It is not merely a question of Queensland. Since this matter has been discussed here, this particular question of appeal—not the Bill as a whole—has been raised in Australia as well as in this country. It has beer raised as a point for separate discussion and decision; and, while I do not want to exaggerate my own case, I can conclusively show to the House that there it no such unanimity among the four colonies of Australia whose delegates are pressing this change as would justify us in sacrificing the interests of the Empire to the views which are formulated in the Bill. The clause was introduced after lengthened discussions in convention after convention, in the coarse of which different conclusions were arrived at at different times. The final decision was arrived at by comparatively small majorities. I think only thirty-six members were present out of a convention of nearly sixty members. I do not doubt, however, that it represented the view of the convention at that time, but I may point out that Queensland was then absent, and that if the Queensland delegates, twelve in number, had been present, the decision of the Confer- 71 ence would have been reversed. Australasia has seven colonies. Six of them are federating now. One of them is contemplating the possibility of federation. Of those seven colonies the Governments of three are strongly in favour of our view. The proportion of opinion as represented by the public statements of the Governments concerned in Australasia is as three to four. But that is not all. The Premier of Queensland declares that the Government and the people of Queensland are strongly in favour of the alteration. In Western Australia the Ministers are unanimously in favour of the amendment of Clause 74. They are of opinion—that by the possession of one Court of Appeal for the whole British race, whose decisions are final and binding on all the Courts of the Empire, there is constituted a bond between all British people which should be maintained inviolate as the keystone of Imperial unity.The Government of New Zealand say that—in the best interests of the Empire the right of appeal on constitutional grounds is one of the strongest links binding us to the mother country.That is sufficient, I think, to show the character of the opinion in three out of the seven colonies. But what about the remainder? What about New South Wales? New South Wales is the mother colony. When the Constitution was submitted to the Legislature of New South Wales both Houses passed resolutions urging amendments to maintain the right of appeal. They were subsequently outvoted in the convention, but their opinion remains, and I think it is also the opinion of the majority of the people. Yesterday I received a telegram in which it is stated that the Prime Minister is reported by the newspapers to have made a speech in which he emphasised his loyalty to federation — at one time, I believe, he was opposed to federation—and declared that at the recent conference of Premiers at Melbourne the Premiers took a constitutional course; that they also intimated that they did not think the alteration suggested by me would jeopardise the Bill; that Her Majesty's Government would probably amend the Bill if only on account of the desirability of making the appeal uniform in all British colonies, without which uniformity the rights of 72 British subjects would differ in different places; and that they hoped Her Majesty's Government would not amend the Bill in any other clause, as, if any other changes wore attempted, it would be a source of great danger to the rest. That, of course, is a condensed report, and I give it for what it is worth, but certainly the implication of that report is that if the changes were confined to the particular change I am advocating there would be no serious objection on the part of New South Wales. Then I come to a remarkable expression of opinion, that of the Chief Justices for the Colonies in Australasia. The seven Chief Justices are unanimously in favour of the maintenance of the right of appeal. In the newspapers this morning I saw a letter from my right hon. friend Mr. Kingston, the delegate from South Australia, in which there were expressions which I very much regret and which I am inclined to hope he himself will regret having rather hastily used. He suggests that the Chief Justices of Australia are moved in the opinion they have given by the hope of being appointed to the new Court of Appeal which may hereafter be created. [Laughter and cheers.] Let me remind my right hon. friend and also those Members of the House who are inclined to cheer that statement that one of the arguments most eloquently pressed on us by the delegates in their memorandum is that the Bench in Australasia is as pure, as high-minded, and has as great judicial capacity as can be found anywhere in the British dominions. We have welcomed that assertion. We agree with that assertion, but then you cannot, at the same time, apply to this self-same Bench the sordid and unworthy motive which has been suggested. I do not believe there is any motive at all, either in the opinion which has been given by the Chief Justices, or in the opinion which has been given on the other side by lawyers who possibly may profit by retaining the appeal at home. In neither case do I believe that either party has been moved in the slightest degree by any feeling other than a desire that the best interests of Australia should be considered. I say it is a most remarkable and a very strong feature in my case that the Chief Justices, who are all men of the highest capacity, who have enjoyed the greatest respect and popularity in Australia, and who are recog- 73 nised here as most distinguished men, should be unanimously in favour of the alteration. I inquired about newspaper opinion. I knew no other way of getting at popular opinion; and what do I find? I find that the enormous preponderance of newspaper opinion is in favour of the repeal of this clause. Just before I entered this House I received a telegram from Victoria, the other great colony, next in population to New South Wales. This telegram, which is from the officer administering the Government, says—The amendment of Section 74 of the Federation Bill is vigorously supported in all the newspapers of Victoria to-day. I have ascertained the opinion of as many trustworthy persona of all classes as possible, I have not met one opposed to your amendment. If the amendment is substantially confined to Section 74 you will be enthusiastically approved throughout all Victoria.The Chambers of Commerce of Sydney, Adelaide, and Brisbane have all communicated through the Prime Ministers of these colonies urging the maintenance of the appeal; public bodies like the Melbourne Metropolitan Board of Works, representatives of trade in public meetings, representatives of the Bar, the banks, insurance corporations, and others —representative bodies whose interests are, of course, largely concerned in this matter—all are unanimously in favour of maintaining the appeal, and, to the best of my knowledge and belief, there has not been held one single meeting throughout Australia against the proposal. I do not wish to attach too much importance to what may be one-sided opinion. I do not deny, in fact, I most readily admit, that there is a strong opinion in favour of the Bill which is not represented by any of the quotations I have read to the House, and which has not come to me in the course of these discussions except from the statements of the delegates who are in this country. I admit that there is a strong, and I have no doubt an equally patriotic, opinion; but what I say, and what I think the House will be absolutely convinced of, is that there is no such unanimity as should make us hesitate in a matter of this vast importance, at all events to take time, and for the present, at any rate, retain the right of appeal as it now exists. It is under these circumstances that I have no hesitation in recommending the amendments—very small in point of extent, involving the alteration of only a few words or a few 74 lines, but no doubt substantial in importance—-which will preserve for Australia | precisely the same right of appeal as is now enjoyed by Canada, South Africa, and India. I believe that it is called for by the interests of the Empire, and I trust and believe that it will be accepted by the people of Australia as made in a spirit of co-operation and not at all of antagonism, and in full belief in our sincere interest in and approval of the great work which they have carried out.
§ MR. J. CHAMBERLAIN
No; but I think they are substantially the same. There is only one other point to which I wish to call the attention of the House. In the conferences which Her Majesty's Government held with the delegates from Australia allusion was made to a desire which has long been entertained by Her Majesty's Government to reconsider the constitution of the Supreme Court of the Empire. What the Lord Chancellor, as representing specially the Government in this matter, has had in view has been an amalgamation of the Judicial Committee of the Privy Council with the appeal jurisdiction of the House of Lords. But the House will readily see—the legal Members perhaps more readily than others—that this would be a very great change, involving very difficult and important constitutional questions, about which it would be of the highest importance to consult Canada and the other colonies and dependencies interested. Therefore, in this matter, as in the matter I previously referred to of the interpretation of colonial laws within the Act, we have to provide for the immediate future without prejudice to what may be done hereafter. I would remind the House that the present position is not satisfactory. When we came into office, we found a Bill prepared by my predecessor by which it was proposed to call to the Privy Council one representative of Canada, South Africa, and Australia to assist in the deliberations of the Privy Council. I found that scheme in the pigeon-holes of the Colonial Office. Her Majesty's Government adopted it because, although they thought it was not satisfactory, still it was a tentative step which would give us some experience, and seemed to meet the wish, already ex- 75 pressed, of the colonies. That was passed in the first session of the present Parliament. The result has been as we expected. It made no proposal for paying these gentlemen. The Australian colonies and the other colonies concerned—I am not quite certain about Canada—did not propose to pay themselves, and that confined the selection, and the gentlemen actually selected were Judges of high distinction, but who were still engaged in judicial functions in the several colonies. The result was that they could not be here permanently to deal with colonial cases in which they were interested. Another subsidiary result was that, when they were here and a colonial case came up, it might be one with which they had already dealt in their judicial capacity in the colonies. Practically, therefore, although some of these Judges—I believe all of them—have taken their seats and have assisted in the deliberations of the Judicial Committee, we have not secured, by means of that Act, such a permanent constitution of the Judicial Committee as would make it certain that on every occasion when a colonial case was involved there was a colonial Judge with full knowledge of local conditions well qualified to advise his colleagues. Therefore, what we propose, pending further consideration which must be given to any greater scheme, is to appoint for seven years a representative from each of these colonies and India, to be members of the Privy Council, who shall also act during that period as Lords of Appeal, and upon whom will be conferred life peerages, so that they may continue to sit in the House of Lords, although they will not act as Judges after the term of their service has expired. It may be that those services will be renewed, and provision may be taken to renew them if thought desirable. The Judges so appointed will be paid the same salaries as the Lords of Appeal are now paid, and payment will be made at the cost of the Imperial Parliament. Sir, that is the proposal which I hope will be submitted to the other House of Parliament in a very few days, and which I hope will be approved by Parliament as a whole. I feel I ought to apologise to the House. I have travelled over a great number of subjects in the course of this long review of an intricate subject. I have now only to ask the House to consent to the introduction of this Bill. I 76 hope they will be content subsequently to pass it exactly as it has been introduced. I am quite certain that no more important measure of legislation has ever been presented to Parliament, and that nothing throughout the whole course of the Queen's reign will be a more beneficent feature in that long and glorious history.
§ Motion made, and Question proposed, "That leave be given to introduce a Bill to constitute the Commonwealth of Australia."—(Mr. Secretary Chamberlain.)
§ SIR H. CAMPBELL-BANNERMAN (Stirling Burghs)
The full explanation of the right hon. Gentleman who has just sat down has justified the alarm with which many of us on this side of the House contemplated the possibility of this Bill being introduced under the ton minutes Rule. It was most desirable that the right hon. Gentleman should have an opportunity of making a full declaration of his policy, and I am sure all who have listened will not only admire, but profit by the extremely clear and full account he has given of the past history of the question, and of the details of the present proposal. But I wish that on this occasion we could adopt the celebrated Rule in one portion, but not the other. I think it would best represent the public desire, and certainly the interests of the House, that the right hon. Gentleman should have, as he has had, an opportunity for this full explanation, but that the speeches which are to follow should be as few and as brief as possible. As far as I am concerned, I have no intention whatever of occupying time with any elaborate analysis of all the proposals which the right hon. Gentleman has made. The right hon. Gentleman said that no doubt many would envy him the opportunity he enjoyed of bringing in this Bill. We all reciprocate that. It is not difficult to interpret the feeling of our countrymen on the introduction of this measure. There has been a deep, almost an affectionate, interest in the efforts which have been made so long by the statesmen and people of Australia to give themselves the form and status of a nation, and it has boon with the utmost satisfaction that in the course of this great constitutional movement we have been able to discern a total absence of any shade, tinge, or trace of impatience or reluctance with regard to 77 the relations between this country and the colonies. That, indeed, was no more than might be expected. The close, and ever closer, intercommunication, and the exchange of domicile constantly going on, the community of interest between them, the mutual pride which we have in each other, all help to strengthen year by year the original tie of blood and kinship. The wise policy which has been pursued of allowing these great, vigorous, young communities what is practically complete independence to administer their affairs has had an admirable result. The freer they have been from interference or patronage on our part, the warmer has been their sentiment towards this country, and I need hardly point out, for it has been prominently before us of late, that they have again and again offered their most precious possession—the lives of their sons—whenever they thought the mother country needed them. Therefore we need not be surprised that among men of all political opinions and parties in this country there is but one common desire—that this great constitutional scheme, designed and well calculated as it is to give strength and prosperity not only to Australia, but to the British Empire, should take effect with as little delay as possible. Up to this I have spoken of satisfaction and a common feeling of joy and common interest. But there is something more. I am afraid there will be widely felt a feeling of deep regret and disappointment that the Government have felt themselves obliged not to accept the proposition in its entirety, though it had received the stamp of the approval of the whole Australian people. If what is proposed was to be done, it surely is not now it should have been done, but two or three years ago. A prudent and careful Minister would have set himself to bring about a harmonious understanding and arrangement upon the points of difference which existed. The right hon. Gentleman spoke of conferences in the Jubilee year, and quoted from a memorandum, but that is not enough. Negotiations went on in Australia, conventions were held, and the proceedings were reported at great length, draft Bills were published, different amendments were published and the arguments by which they were supported or rejected were published, and everyone knew all about it, but the Government did nothing. They reserved action until the people of Australia had committed 78 themselves by solemn plebiscite to the provisions of the Bill, and then they insist on a change, thus—in effect, though I agree not in intention—giving an open rebuff to the Australian people. ["No, no! "] In effect, not in intention, giving an open rebuff —- ["No, no!"] —and flouting the representations of the delegates of the people. ["No, no!"] Now, the right hon. Gentleman has endeavoured to make good in his speech that which he has put at considerable length into the Blue-book; he has tried to dispose of the validity, the genuineness of the authority of the opinion expressed by and on the part of the Australian people; and he has thought it right as Colonial Minister—I do not know that it has ever been done before— to go behind the appointed representatives of the people. He invites his Governors to go about picking up gossip, he extorts opinions, even in some cases from unwilling lips, he gives a number of messages from chambers of commerce, from banks, and other institutions. But what is the value of these opinions unless we know what are their opinions upon the general question, and unless we know whether those who give them are opposed to federation altogether, or are chafing under the rejection of their own views? I think many of these opinions quoted to-night are vitiated somewhat by the fact that they miss the real object at issue. We have heard of opinions in favour of retaining the appeal to the Privy Council, but the question at issue is, Are we prepared to interpret this instrument as it is interpreted by the people of Australia? Then the right hon. Gentleman quotes extracts from newspapers. Well, we know how newspaper opinion can be and has been worked, not only in this, but in other instances. We should like to know something more about these newspapers. In one colony the right hon. Gentleman is opposed by a Conservative free trade journal, but supported by the Liberal protectionist journal. The description is confusing, and we should like to be better informed as to the ground on which we stand, before we accept in bulk newspaper criticism and opinion. This gathering up of opinions behind the backs of the delegates representing the Australian people is the proceeding of some eager local political partisan, and not such as we are accustomed to see on the part of a calm British Minister dealing 79 with a great constitutional development on the part of loyal and intelligent colonists. Well, this is not the stage at which such questions can be approximately discussed. We shall have a time— those of us especially who are learned in the law and competent to take part in these debates on the ground of their legal learning—we shall have a time to consider what the right hon. Gentleman has said; but simple people, and I class myself among them, not being in the least learned in the law, will ask why should it be so dangerous to leave the interpretation of the Commonwealth Act to those best acquainted with the circumstances and the state of feeling out of which it has arisen? Surely those who have framed it, who have seen the growth of the whole question, know what was intended when the Act was passed by the Australian people, and are better able to judge of the spirit and intention than persons who, though more learned, have no such acquaintance with local feeling. It is enough for me to say in the meantime that, even if all that legal ingenuity can urge in favour of the step taken by the Government were true, there still would remain the formidable objection that, even if it were a desirable thing to accomplish, and even if there were some little prospective danger to be warded off, it is not worth the consequences that may follow from the step the Government are taking for the sake of what is, after all, a small technical point. In order to overcome a difficulty that might be otherwise met we are to break in upon a solemn instrument, which represents not only the will of the Australian people, but a covenant and contract entered into by the colonies among themselves. We, are to break in upon that and throw the whole question of federation back into the field of political agitation. Will it not involve a further appeal to the Australian people? ["No."] I am disposed to form a contrary opinion. We are to deprive our action of the grace attaching to a hearty and confident reception; we sow the seeds of complaint and dissatisfaction little favourable to lasting unity. Therefore, as far as we on this side of the House are concerned, we will not be parties to taking the line the Government and the right hon. Gentleman propose. We will at the proper time support such an Amendment as may in some measure, at all events, modify the great mistake in Imperial 80 policy which has been disclosed to us to-night.
§ * MR. FABER (York)
I must crave the indulgence of the House upon this, my first occasion of addressing it, and I must ask the pardon of the House for Venturing to speak in so important a debate, My only excuse is that the subject is not an unfamiliar one to me, inasmuch as I was the Registrar of the Privy Council for nine years, and during that time all appeals from the colonies and from India passed through my hands. As regards the question of the new Constitution for Australia, I think that all that is necessary for me to say is, that I most heartily congratulate Australia on the fact that she is about, at last, to obtain the object of her desire. But the proposed limitation of the appeal to the Privy Council falls altogether into a different category. That is a matter which concerns, not Australia alone, but Australia in relation to this country; and, more than that, concerns our whole Empire. The Privy Council appeal is the right, in the last resort, of every subject of Her Majesty's Dominions beyond the seas to petition the Sovereign for justice; it is the prerogative right of the Sovereign to hear all such matters of complaint, and to grant such redress as the Sovereign may think fit. The Sovereign delegates the hearing to the Judicial Committee of the Privy Council, who report their opinion to the Sovereign; the Sovereign confirms their Report by an Order in Council; until so confirmed the Report has no validity whatever. It has been found necessary, from time to time, to cut down and modify the right of appeal of the subject. Throughout our Empire abroad, speaking generally, the subject has no right of appeal, unless the value of the matter in issue is ,£500 or over. Otherwise, special leave to appeal must be obtained from the Privy Council before an appeal can be brought. In the case of the Supreme Court of Canada, the subject has no right of appeal to the Privy Council at all. Special leave to appeal must in every case be obtained, and until that is obtained, the subject is precluded from any appeal so far as the Privy Council is concerned. But this is the first occasion on which it has been sought to cut down the prerogative right of the Sovereign to admit any appeal whatever, as she may think fit, to her Privy Council. I 81 think we shall be all agreed, both here and in Australia, that such a course ought not to be taken without cogent reasons being shown for it. What are these reasons? The first reason which has been adduced is that the people of Australia wish it. But are we quite justified in arriving at this conclusion? I know that a Bill of 128 Clauses was submitted to five of the colonies of Australia by a referendum, and that those colonies assented to it by large majorities, but did they do anything more than say "yea" to the great question, " Shall Australia be federated?." Are we justified in assuming from their answer that they approved of the Privy Council clause in the Bill? I venture to doubt whether most of those who answered "yea" knew that there was this Privy Council clause in the Bill at all, or if they did know, whether they were aware of the meaning of it. I do not think the Privy Council question is "popular" question at all. It is a question for the experts of Australia, and the experts are deeply divided upon it. Legal opinion in Australia, so far as we know, seems to be largely in favour of retaining the Privy Council appeal. In these circumstances, are we justified in making a radical change of this kind, on the ground that it is desired by the Australian people? I do not think that we arc. Another point that is taken is that all that Australia desires is the right to interpret her own Constitution; but the latter part of Clause 74 of the Bill goes far beyond this, for it provides that the Parliament of Australia may make laws, further limiting the Royal prerogative; and under such a power, that Parliament may at any time cut away the prerogative altogether, and certainly destroy the Privy Council appeal. It is put forward, in favour of this right to interpret her own Constitution, that the Australian Courts are the best judges in such a matter, and that Australia ought to have such a right, as a matter of self-government. But is it a matter of self-government at all? The colonies of Australia have been governing themselves, in the fullest sense of the word, for years; and yet there has been all the time an appeal to the Privy Council, which has worked perfectly smoothly, and has interfered in no way with self-government, for the reason that the two move altogether on different 82 planes. Is not the Dominion of Canada self-governing? There there is the free, unrestricted prerogative of the Sovereign to admit any appeal to the Privy Council she may think fit, In 1867 the British North America Act was passed, which incorporated the various provinces of Canada into one Dominion. That Act ascribed certain topics of legislation to the Dominion legislature, and certain topics to the legislatures of the Provinces. Questions constantly arose, between the Dominion and the Provinces, as to whether a particular topic of legislation fell within the powers of the Dominion or of a Province; large questions, in which the people of Canada were deeply interested—questions of education, of liquor-licence, of boundaries, of the rights of the Indians, among many others. These questions came, in the last resort, before the Privy Council, and I think the people of Canada were glad that they did, and were well satisfied with the decisions given. I should confidently appeal to the people of Canada to-day, to say whether or no they would prefer to keep the Privy Council appeal. [feel certain that their answer would be in the affirmative. Moreover, Clause 74 of the Bill, as I understand it, will not work, and is almost sure to lead to friction between the High Court of Australia and the Privy Council. May I take, if I am not wearying the House, just two or throe cases? Suppose a case, involving the interpretation of the Constitution, is brought in the Supreme Court of the State of New South Wales, as it may be, and that the judgment of that Court satisfies neither party; suppose that each side appeals, one to the High Court of Australia, the other direct to the Privy Council, and that the two tribunals differ; both will be final in the matter, though they conflict with each other. Which is to govern? Take another similar case involving the interpretation of the Constitution, which might easily arise. An action, on a question arising on the Constitution, is brought in the Supreme Court of the State of New South Wales. An action is brought, altogether independently, in the Supreme Court of the State of Victoria, happening to involve the same point; one case is appealed to the High Court of Australia and the other to the Privy Council. The two Courts take divergent views. Again you will have judicial chaos. Take 83 another case. Clause 74 provides that there is to be no appeal to the Privy Council from the High Court of Australia in matters involving the interpretation of the Constitution. But who is to decide whether it is a matter involving the Constitution or not? The High Court of Australia may think that it is and may decide the question finally; but the party aggrieved by the decision may present a petition to the Privy Council on the ground that the interpretation of the Constitution of Australia is not involved, and the Privy Council may take that view and grant leave to appeal, and hear the appeal, and the decision of the Privy Council may be different to the decision of the High Court of Australia. In such a case as that you will not only have a difference of opinion, but direct conflict between the two tribunals, the High Court of Australia considering that the Privy Council has assumed jurisdiction that does not belong to it. Exactly the same case may arise in the interpretation of "public interests" of Her Majesty's Dominions outside the Commonwealth referred to by Clause 74. The High Court of Australia may decide that public interests outside the Commonwealth are not concerned, whereas the Privy Council may hold that public interests are concerned. There again you would have a direct conflict between the two tribunals. I would much sooner see the Privy Council appeal done away with altogether, and the High Court of Australia made supreme in all matters, than I would run the risk of the jurisdiction of these two tribunals so overlapping as to be almost certain to come into collision. Then there is a different objection which has been taken to the Privy Council appeal, and I allude to it because the subject has come within my own experience. It has been said that there are long delays in the Privy Council. My memory tells me that, so far as delay is concerned, in bringing a case before the Privy' Council, that criticism is scarcely justified by the facts. I know there have been long delays in cases from Australia and elsewhere, but they have generally taken place in the colony from which the appeal has come, and before the record of the proceedings has reached the Privy Council office. It frequently takes a long.; time to prepare the record in the colony, and that is where the real delay, as a rule, occurs. But when the record 84 has arrived at the Privy Council office there is no delay in bringing the matter on for hearing, unless the parties them solves delay it. If the criticism means that there is delay in delivering judgment, then I must confess that there have been delays. But I do not think that fault is confined to the Privy Council alone. I think that many of our Courts in this country, and perhaps in the colonies, are equally open to that criticism. I venture to doubt whether judges are sufficiently alive to the serious inconvenience which is caused to suitors by delaying judgment in an appeal for sometimes many months after the hearing. Another objection which has been made to the Privy Council appeal is its expense. I know that all litigation is expensive and that law is a luxury of the most expensive nature. I do not think, however, that an appeal to the Privy Council is any more expensive than an appeal to the House of Lords, and I venture to doubt whether it is any more expensive than an appeal will be to the High Court of Australia. Another objection taken—and the most serious one of all—is, that the Privy Council is not a strong enough tribunal; that, in the words of one of the Delegates, the Privy Council is not a tribunal that this country would be satisfied with. In answer to the latter part of that criticism I may say that for years past the Privy Council has been a stronger tribunal than the House of Lords, which is the final Court in this country To-day the Privy Council consists not only of all the Lords who sit judicially in House of Lords cases, but of many members besides, including three distinguished judges from Canada, Australia, and South Africa. The real trouble does not lie there, but it lies in the fact that when the Privy Council and the House of Lords sit at the same time, as they frequently do, it is very difficult to make up two strong Courts, with the result that one is apt to be sacrificed to the other. There is only one remedy for this, and that is, that there ought to be more paid judges. We have relied far too much in the past upon gratuitous assistance, which has been nobly given, and which nobody desires to criticise. But when you have paid judges you have, of course, a right to call for their services, which you have not when they are unpaid. The right hon. Gentleman the Secretary of State for the Colonies, who introduced this Bill, has 85 foreshadowed the change that is going to be made. I myself hope the Privy Council will not be incorporated in the House of Lords. I am sure such a scheme would not be agreeable to India. The natives of India set great store by the fact that their appeals are made to the Queen Empress. Nor do I think it would be agreeable to the colonies. There are many Parliaments in the British Empire, but there is only one Crown, and I think the colonies, if they had to choose between the two, would prefer a strong Privy Council, which is the Court of the Sovereign, to the House of Lords, which is a Court of our Parliament. In my view the time has now come for the establishment of a new Court altogether, which would be neither the Privy Council nor the House of Lords. What I should like to see established would be a Court entitled "Her Majesty's Supreme Court of the "British Empire." Such a Court would satisfy both the colonies and India. Let it consist of eleven paid judges at least:— the Lord Chancellor, six Lords of Appeal from this country, three Lords of Appeal from the colonies, and one from India. Divide the Court into two divisions, and let the two divisions sit at the same time. Let one take the English, Irish, and Scotch appeals, and let the other deal with Colonial and Indian appeals. Let the quorum in each case be five; in a Court of final resort, such as this, I think the parties are entitled to have their cases tried by five judges at least. I know this will cost money, but it is worth it, if it is worth keeping the appeal from the colonies to this country. Running the Empire on the cheap is an expensive process in the end. I say it is worth keeping the appeal to this country. The Privy Council appeal in the past has been the strongest bond of union between this country and the colonies. A Canadian barrister once remarked to me that it was the one link between Canada and this country. I know that the old idea of treating our colonies as encumbrances has passed away for over. We all look upon them now as a joy and a glory— aye, and in our hour of need a strong help also. Thanks to the Secretary of State for the Colonies, the Premier of Canada, Lord Strathcona, and eminent men in Australia and New Zealand, the fire of patriotism burns in our colonies with a pure clear flame which is the wonder of the world. In South 86 Africa, men from Canada, New Zealand, and Australia are fighting side by side with men from England, Ireland, and Scotland, under one flag. With the copious outpouring of their blood they are sealing our Empire together. In the words of a great orator—Their blood has flowed in the same stream and drenched the same Held; when the chill morning dawned their dead lay cold and stark together; in the same deep pit their bodies were deposited; the green corn of spring breaks from their commingled dust; the dew falls from heaven upon their union in the grave.While they in their lives and their deaths are joining our Empire together, do not let us at home be putting it asunder, as we shall be doing if we strike at the Privy Council appeal. The Privy Council, or some such Appeal Court as I have indicated, is the keystone upon which, if we work wisely, we may build up the great edifice of Imperial Federation.
§ * SIR CHARLES DILKE (Gloucestershire, Forest of Dean)
I hope the Attorney General will be able to answer a question with which I wish to begin. He probably has the amendments before him, and I wish to know whether the two main amendments placed before us by the Secretary of State for the Colonies are the only two substantial amendments. My reason for beginning with this ques-is that on page 19 of the Blue-book a third substantial amendment is foreshadowed, but has not been alluded to by the right hon. Gentleman. It concerns merchant shipping, and I wish to know whether it is to be made or not.
§ THE ATTORNEY GENERAL (Sir ROBERT FINLAY,) Inverness Burghs
The two amendments mentioned by my right hon. friend the Colonial Secretary are the only two amendments of a substantial character.
§ * SIR CHARLKS DILKE
And the words as to the Commonwealth Constitution being in force on merchant shipping from Commonwealth port to Commonwealth port are to remain in the Bill.
§ * SIR CHARLES DILKE
I am glad to hoar that. It is a very excellent thing that the grounds of difference should be narrowed down to two, which, 87 in my opinion, are substantially one, and that this question of merchant shipping is not to be raised on this occasion. The two points which the Secretary of State for the Colonies has placed before us to-night are those which he thinks so important that, while waiving smaller matters, it is necessary that we should enter into a sort of friendly conflict concerning them with the Australian people, who have pronounced in a referendum in favour of this Bill. The first of these points refers to the application of the Colonial Laws Validity Act, and the other refers to the special leave to appeal. No one denies the applicability to all the colonies of the principle of the Colonial Laws Validity Act. The Secretary of State in his introductory speech alluded to it as being thought to be unnecessary by the Australians, and he argued that it was necessary. But how in the world is it possible to attach the importance to this matter which the Government does, to enter into a conflict regarding it, and to render a reopening of the whole constitutional question in Australia necessary, when the Secretary of State for the Colonies himself tells us that all the Colonial Laws Validity Act does is to confirm the already existing law of the Empire which is the law without it, and to preserve portions of Colonial Acts which otherwise would fall to the ground. The Colonial Secretary to-night explained the meaning of the Colonial Laws Validity Act. The effect of this Act was most ably argued by the light hon. Gentleman the Member for West Monmouth in one of his letters, signed "Historicus," in The Times. The Colonial Secretary adopts his view, and says that the principle of the Colonial Laws Validity Act is that it is an enabling statute to preserve portions of colonial laws which otherwise would have fallen through by reason of conflict with our laws. Where is the necessity to enter into a conflict as regards the applicability of that Act to Australia? The principle exists, everyone admits it, and no colony can divest itself of it. It is accepted by every Court and by the representatives of every colony, and why, therefore, enter into a conflict regarding it? Is it worth while to run all the risks which an alteration of the Act would imply either with regard to the Colonial Laws Validity Act or to the whole question of appeal, both being in reality 88 closely connected? The Colonial Secretary argued that we must rely upon statute and that we must run the risk of altering the Bill as it stands, because we cannot rely on what he calls the Veto. He implied in his speech that the Veto in the case of great dominions such as the Commonwealth cannot be applied. That is not the case. I ventured to move to day for a continuation of the Return issued in 1894 on this very question. It will be seen from that Return that a considerable number of Colonial Acts have either been reserved, which was the old practice, or contained a suspensory clause providing that they should not come into force until they have been scrutinised at home. In some cases controversy arose and the Acts were dropped. My point against these changes is that they are unnecessary. It is not necessary to introduce the Colonial Laws Validity Act, because it is admitted that its principle applies to all the Colonies, and would be enforced by every Court in the Empire, and with regard to any other dangers they are amply guarded against by the power of reservation or by a suspensory clause, or else they concern the Executive Government, and are entirely outside the question of appeal. That is my case against these changes. We should be able to judge the cases likely to arise in Australia by looking at the cases which have arisen in Canada. These have been cases concerning copyright, merchant shipping, and marriage with a deceased wife's sister. i Now, as regards copyright, there has never been any conflict between us and the Australians, and there is not likely to be any conflict. It is a question not likely to arise in Australia, although it has risen frequently in Canada. The case of merchant shipping is one which has arisen in Canada and may arise in Australia, but it is amply provided for by means of the power of reservation or by a suspensory clause, as in the case of Canada. There cannot be absolute uniformity in all our merchant shipping laws. That is gone beyond recovery. We have different codes in India and in Now Zealand. In New Zealand especially there are enormous differences, as an advanced principle with regard to merchant shipping has been adopted in her laws, with reference to the Manning Scale, and the provisions with regard to rate of wage, and these have been conceded to New Zealand without any reservation of 89 the Act. Until you get uniformity of legislation in large groups of colonies, all the dangers you apprehend are amply provided against, either by reservation or a suspensory clause. Remember that under this Constitution there is power given to the Governor-General to send the Bill back to the Parliament of the Commonwealth with suggestions for amendment, and of course in such a case it is certain that such amendments would be a matter for discussion between the Home Government and the Commonwealth Government, or for greater security the Act would of course be reserved. With regard to the question of appeal, I ask why many of the arguments addressed to us to-night should have been addressed to us at all. How do they strengthen the case for the proposed amendment? On page 26 of the Blue-book the House will find two main arguments given in favour of the change. One has been mentioned to-night, namely, foreign enlistment; the other has not been mentioned, namely, the case of merchant shipping, to which I have already alluded. If, however, there is real danger in such a case as foreign enlistment, that danger and other dangers to which I have alluded will not be guarded against by a reservation of the law or by a suspensory clause. It is the danger of action by the Executive Government of the colony—that is the danger we have to deal with, and no power of appeal, nor any of the amendments proposed to this Bill, can affect that danger. We can only trust in such matters to the good sense of the people of the colonies, as we have trusted to it in the past. Two cases of such conflict have arisen. One was when two Australian colonies made a statute forbidding entrance into the colonies of time-expired or pardoned convicts. That statute was disallowed, and the Executive Government proceeded to act on the disallowed Act as if it were actually in force. That was very dangerous action on the part of the Executive Government, and one calculated to make very serious trouble. That is the real danger we have to avoid, and none of the amendments to this Bill cover such a case as that. The other case which occurred had reference to the Fenian informers who were not allowed to land, and was again the action of the Executive Government. It is argued that many of 90 these dangers may be guarded against by an appeal to the Queen in Council. I confess I cannot see how they can be guarded against in such a way. With reference to danger arising out of the Foreign Enlistment Act I think it would be far better to stop at once the dangerous clauses in any such Act rather than wait until feeling was exasperated and actual danger had arisen in the colonies. These are dangers which can be guarded against at the time, but they are not dangers which when conflict has arisen and when passion is aroused can be got rid of by an appeal to the Queen in Council. The Colonial Secretary tonight told the House that when the Colonial Prime Ministers were here at the time of the Jubilee he handed them an amended Bill showing the changes which he would like to have introduced into the Constitution Bill on the question of appeal. It must be remembered that the undoubted intention of Sir James Abbott, when in March, 1898, he moved amendments which placed Clause 74 in its present form, was to carry out what the Colonial Prime Ministers believed were the Colonial Secretary's wishes as mentioned at the time of the Jubilee. These amendments were made and afterwards revised by the drafting committee with the intention of meeting the views of the Colonial Secretary; but if the amendments which were then introduced did not meet his view, why did not the Colonial Secretary again correspond with the Prime Ministers and those responsible for the drafting of this Constitution and say that the amendments were not sufficient? An immense time passed, step after step was taken in Australia, but no step was taken by the Colonial Secretary from 1897 until two or three months ago. I think we must agree with what was said by the Leader of the Opposition on that point, namely, that it would have been more courteous to the colonies and wiser in the interests of the changes which the right hon. Gentleman wished to obtain if the Colonial Secretary had made some communication between the date of the Jubilee and that of the Bill reaching this country in its present form. The right hon. Gentleman said to-night that the link of the Privy Council appeal was very precious in the interests of the Empire, and though he did not go so far as to use language as strong as that which has fallen from the hon. Member 91 for York, yet he quoted from a memorandum of the Privy Council itself very strong language indeed with reference to the value of the tie. In the Blue-book the right hon. Gentleman used an argument which he has not placed before the House. On page 28 of the Blue-book he expresses the view that the Bill is a retrograde measure, on account of its provision with regard to appeal, as far as Imperial federation is concerned. I should have been glad to have heard some attempt to justify that statement. I cannot conceive it to be the case. To my mind the whole controversy in which we are now engaged has exactly the opposite effect. If there is one proposal more than another that I have advocated in this House it is that we should prepare in time of peace for what may come upon us in time of war, by cooperation between our colonies and ourselves. I believe joint action of that kind would be formed if we had been able to accept this Bill without amendment, and if there were no actual danger to the Empire in accepting this Bill it would be far better to have taken the Bill as it stands. Instead of saying that the Bill would be a retrograde step as far as Imperial Federation is concerned it would have been better if the right hon. Gentleman had pointed out some positive danger to the Empire in taking the measure as it stands. In that it seems to me the Sec-rotary of State for the Colonies has conspicuously failed to-night. The right hon. Gentleman has told us that it is for external reasons—reasons affecting other nations—that it is necessary to make this change. I confess it seems to me that the right hon. Gentleman has entirely failed to establish any necessity, on what may be called the foreign or external point of view, for making this particular change in the Bill. We have already the weapon of the reservation of the Bill and of non-assent to it, we have also the weapon of the Colonial Laws Validily Act, and I cannot conceive any case being shown where an appeal to the Privy Council would be likely to save us from a foreign danger to which otherwise we would be exposed. The Secretary of State in the latter portion of the Blue-book appeals to the opinion of the colonies, and in his speech to-night he laboured rather hard to try and convince the House that opinion in the colonies was already in a very large minority with him, and was coming round 92 to his side, if it had not actually become a majority. He quotes three colonies out of seven as agreeing with his view, and he quoted to-night the opinion of Judges and newspapers against the opinion of the delegates who have the highest responsibility in this matter. Surely they represent the feelings of the people of Australia on this question more accurately than even the Australian Parliament or the Prime Ministers, and he has quoted against their opinion that of judges and i newspapers.
§ * SIR CHARLES DILKE
They were elected to the Convention to represent their colonies in this country.
§ MR. J. CHAMBERLAIN
They were not elected as delegates, but were, of course, appointed by the responsible Governments, and I am not aware that they claim to have any special mandate on this particular question.
§ * SIR CHARLES DILKE
What I said was that these delegates represent the federal feeling of Australia. They are known as the federal leaders, and two of them led the Federal Convention, and were elected to that convention by a larger number of votes than is usually recorded in Parliamentary elections in Australia. Therefore I say they are perfectly representative of Australian feeling, not of colony by colony, but of the majority of the people of Australia. The right hon. Gentleman quotes the opinion of three colonies—Queensland, Western Australia and New Zealand. The colony of Queens-' land was late in coming into the Commonwealth, as he has shown. The four colonies which hung to the Federal movement all along were New South Wales, Victoria, South Australia, and Tasmania. Queensland was not represented in the Convention when the 74th clause was arranged; and it must be remembered that several of those who have spoken in her name were opponents of the Federal Union, and were only driven into it ultimately by the feeling of the electorate of the State. As regards Western Australia, Sir John Forrest, the Premier, to the last moment stood out from the Federal movement, and he has now been 93 driven into it by the electorate of his State against his own personal opinion. Then my right hon. friend recites Now Zealand as the third colony on his side. I can say that New Zealand was not a party to this Bill, and never will be a party to a close federation. Although it had been very willing to come in with Australia as a potential member of the Federal Council, New Zealand cannot, on account of the divergence of her interests and the enormous distance from Australia—it is as far from Australia to New Zealand as from this House to Africa— come into closer federation. That was the three colonies out of seven, while on the other side, in favour of keeping the Bill as it is, you have the opinion of the really Federal colonies which have been in the movement from the first—New South Wales, Victoria, South Australia, and Tasmania. I am very sorry that the Secretary of State should have published in Blue-book, and should have quoted here tonight, the opinion of certain colonial judges in regard to what is the opinion of Australia as a whole. And more than that, that he should have quoted the personal opinion of colonial governors of single colonies as regards the opinion of Australia as a whole. The Blue-book is full of quotations like that, and the right hon. Gentleman quoted the Governor of Queensland.
§ MR. J. CHAMBERLAIN
No, no! I certainly refrained from quoting the opinion of any English Governor.
§ * SIR CHARLES DILKE
At all events I say that it is a great pity that the right hon. Gentleman should have printed in the Blue-book the personal opinion of Lord Lamington, because it is calculated to set up the backs of the people throughout the Australian colonies. There is nothing on which these colonies are more touchy than interference of this kind, and when Lord Lamington tells us, not what is the judgment and opinion of his constitutional advisers, but what is his personal opinion, and that of Australia generally, he is going outside his functions in a way which will be bitterly resented in Australia. We have the same thing in regard to the Governor of New Zealand, when he gives his personal opinion as the opinion of Australia, although in much less strong language 94 than that of Lord Lamington. As these debates go on I think we shall find more and more that this is not a legal or a technical question. The hon. and learned Gentleman the Member for South Longford, who represented Canada in the celebrated negotiations as to the Privy Council in 1873, knows how the proposals on that occasion failed and utterly broke down. Lord Selbonie took one view, and Lord Cairns took another, and the whole of Lord Selborno's proposals fell to the ground. This matter will not be settled as a technical and legal question, but as a moral and political question. The hon. Member who spoke last said that a Canadian statesman had told him that the Privy Council appeal was the last link left between the Empire and the Colonies. But it seems to me that the Empire rests on stronger links than any Privy Council appeal. These links are the flag, respect for the institutions of the Empire as a whole, the provisions made in regard to defence, which rest mainly on a broader field, representations by the Governor General, and common service in arms, to which the hon. Gentleman himself alluded. These will always form much stronger links than any appeal to Imperial Courts. In 1885 when the Federal Council for Australia Bill was first brought before the House of Lords, in which it was introduced by the Government of which the right hon. the Secretary of State for the Colonies was a member, and again, afterwards, when it was introduced here by the incoming Conservative Government which had to pass it through this House, an argument was used by the late Lord Derby in the other House, and by the present Lord Derby in this House, of a most curious kind, which bears very closely on the present Bill. They said that that Federal Council Bill had come before Parliament with peculiar sanctity. To use the words of the late Lord Derby, "it came with this special recommendation that it was a scheme which the Australian community had devised for itself." As compared with the South African Bill of 1877, and the Canada Act of 1867, the Federal Council Bill was not prepared here, but by the Australian Parliaments. But the Bill before us is presented with an even higher sanction than the Federal Council Bill of 1885. It has passed, as no other Constitution in the British Empire has passed, through the ordeal of a reference to the whole 95 people of the country to whom it concerns. If there is any vital necessity in the interests of the British Empire, or in the interests of the sanctity of treaties, why this Parliament should pull the Bill to pieces, then no doubt this Parliament is bound to exercise its power; but it appears to me that the Colonial Secretary has failed to show the House that there is any such overwhelming necessity for dealing in that manner with it.
§ MR. VICAKY GIBBS (Hertfordshire, St. Albans)
The right hon. Gentleman the Leader of the Opposition says that the question in regard to the retention of the Privy Council appeal is a small technical point; but I do not think that any one on this side of the House will hesitate for a moment to agree with the right hon. Gentleman the Member for the Forest of Dean, that it is a political issue. It has been said that the delegates represent Australian feeling in regard to Clause 74. I hold that the delegates represent a very strong and proper feeling in Australia in favour of Federation, but nothing more. Interesting as it is, and important as it is that this Bill should have been submitted by referendum to the people of Australia, the real question asked in the reference was whether the people desired to federate or not. Each individual did not vote on every detail in the Bill. The right hon. the Loader of the Opposition said that the speeches should be short and few, but he made a speech which was certainly calculated as much as anything could, to stimulate debate. I venture to say that when he spoke of the action which the Government contemplate, and which I most heartily and cordially approve of, as being an open rebuff to the people of Australia, he was saying what is actually mischievous, and which ought not to have come from a man in his position. It is a painful commentary on part' politics that such a remark should have been made by the Leader of the Opposition. I know Australia and the Australians, and I believe they are not so silly as to be influenced by such a remark. They will have regard to the tone of the Colonial Secretary's speech, and to the proposal he has made for a new Court, and they will see the generous recognition of the part which the colonies themselves ought to play in that new Appellate Court. I cannot agree alto- 96 gether with all that my hon. friend the Member for York has said in disapproving of that tribunal. I cannot think the colonies will be influenced by a name. They will look at the facts, and that in that tribunal they themselves are to have a place. The Leader of the Opposition complained that the Colonial Secretary had referred to the newspapers, and said, "We all know how newspapers have been manipulated." Well, I do not know how newspapers are manipulated; but I do know the Australian papers well. I lived for two years in Melbourne, and you could no more manipulate the whole Victorian press to express a particular opinion than you could the whole London press. It would be absolutely impossible. Clever manipulator as the right hon. Gentleman may be, he could not undertake to make The Times, the Standard, and the Daily News all write in the same tone on some great public question unless he had public opinion behind him. No more could he manipulate the Age and the Argus, the two leading newspapers of Melbourne. Again I say it would be absolutely impossible. If the Australian newspapers are unanimous on the point it is a most remarkable thing, and a striking demonstration that the great weight of public opinion in Australia must be on the side of the Government. It was said by the Colonial Secretary that the banks and insurance companies were in favour of the Government proposal, but the right hon. Gentleman the Leader of the Opposition said, "How do we know that the banks and insurance companies were not against federation?" We do not know whether the banks or insurance companies were in favour of or against federation, because that is a question that does not concern them; but this we do know—that they, like all the commercial opinion of Australia, are in favour of the appeal to the Privy Council, because it is in the interest of men who trade in Australia. That is not gossip, but I know it as a fact by being in constant weekly communication with Australia, and it is important for the House that they should realise that fact. I have been asked whether if the 74th Clause was amended it would involve a fresh referendum. I do not myself believe that for a moment. I can quite understand that the delegates were most anxious lest they should do anything which would commit themselves 97 to a fresh referendum. They knew the anxiety and the labour they had gone through to get this length. It is important that we should leave nothing in the Bill which is liable to involve us unnecessarily in friction between us and the colonies, or friction between us and foreign Powers, and both of these risks are involved if the appeal to the Privy Council is not restored. I have had communications with men in important positions in Australia who are set on having the appeal retained. This measure has been approached in a conciliatory spirit, and every care has been taken to avoid saying anything that could be regarded as any sort of rebuff. The colonies are not so silly as to claim plenary inspiration for the Bill. They say it is a good Bill, an important measure, but they do not say it is a perfect Bill in every word. When they know that it is approached by Her Majesty's Government with absolute sincerity, and with every desire to give in to their wishes in everything that affects the colonies themselves, I say it is a monstrous thing that that should be spoken of by the Leader of the Opposition as an open rebuff, and that an attempt should be made to inflame their minds against those who desire their benefit above all things in this world. I am sure that when the right hon. Gentleman considers the matter he himself will regret to have used such words as he did.
§ * MR. HALDANE (Haddingtonshire)
I do not propose to measure speculation against speculation with the hon. Member as to how the course the Government propose to take in regard to the Commonwealth Bill will be received in Australia. We shall know that in a week's time, before the Second Reading comes on for debate; and I do not think that at this period we can go into matters which, after all, we shall be much better able to discuss a few days hence. The right hon. Gentleman in the most interesting and eloquent speech in which he introduced the Bill said, and said truly, that he might be envied the position in which he found himself in bringing it in. This is the third time in which a measure of this kind has been brought before Parliament. The first was the great Bill of 1867, which Lord Carnarvon brought forward for establishing the Confederation of Canada. 98 The second was the South Africa Bill of 1877, and the third is the present Bill. Now, there was this great difference between the first and the third of these Bills and the second—a great line which separated them altogether. What happened to the second Bill for the Federation of South Africa? It fell still-born, and why? Because it was the construction of Downing Street, and not, like the present measure, the expression of the fully realised wishes of the people for whoso benefit it was introduced. The right hon. Gentleman spoke of the delegates from Canada coming over here in 1867 to confer with the Government. He might have added that before they came resolutions had been passed throughout the length and breadth of Canada, known as the Quebec resolutions, and that these formed the basis of the Bill which founded the Dominion. Here, again, we have a great scheme which is the scheme of Australia as a whole. It is a scheme brought forward by the delegates sent over to the Imperial Parliament, and I think that the Imperial Parliament ought constitutionally to treat it as a trustee of its own powers rather than exercise these powers freely. The right hon. Gentleman the Colonial Secretary spoke of this Bill as resembling in its main features the Constitution of the United States rather than the Constitution of Canada. I do not think the main features of the Australian Commonwealth will differ so materially, after all, from the Canadian Constitution of 1867. It is true that, in Canada, the general powers of legislation are reserved to the Dominion Parliament, while only specified powers are given to the Provincial Parliaments. But the latter have among those specified powers the widest capacity for dealing unrestrictedly with property and civil rights. Therefore, rather technically than in substance is there a difference between the Provincial Legislatures of Canada and those of Australia. But the difference between the Constitution which this Bill proposes to sot up and the constitution of the United States is enormous and fundamental. This Bill is permeated through and through with the spirit of the greatest institution which exists in the Empire, and which pertains to every Constitution established within the Empire—I mean the institution of responsible Government, a Government under which the Executive is directly responsible to—nay, 99 is almost the creature of—the Legislature. That is not so in America, but it is so with all the Constitutions we have granted to our self-governing colonies. On this occasion we establish a Constitution modelled on our own model, pregnant with the same spirit, and permeated with the principle of responsible Government. Therefore, what you have here is nothing akin to the Constitution of the United States except in its most superficial features. It is really a reproduction in Australia of the British Constitution upon a large and noble scale. Our Constitution at home is essentially unwritten. So it will be in Australia. The mere framework which the Bill proposes to set up will be filled in, as here, with traditions and doctrines which we have inherited, with tendencies which are not expressed in words, and with bonds which, though invisible to the legal eye, are yet binding and give the people security. And in that mass of unwritten tradition which will be interwoven within the framework of the Commonwealth Constitution will be found the reproduction of what we have at home. There is a body of common traditions, common doctrines, common tendencies, just as there is a body of common law which is the general heritage of our Empire. Therefore I, for one, approach this question of appeal —which is the substantial question at issue—from a somewhat different point of view than that taken by some of my hon. friends. I feel that it is almost inherent in a Constitution such as ours, shared by different parts of the Queen's dominions, preserving the common elements to which I have referred, that there should be some means of a common interpretation. I feel that there is implied in our Constitution, when it reaches a certain stage of development, that there should be a common tribunal which would be a real link, because it would be the property, not of one part of the Queen's dominions, nor of the people in them, but of the people throughout the Empire, wherever there are these traditions, and tendencies, and bodies of common law, and wherever the people require some medium for bringing to a common focus the general opinions and views of the Empire as a whole. I do not think that such a Court, as properly understood, is a Court which ought in the least to conflict with local jurisdiction. I, for one, take the line 100 that the expression of which in these debates we have heard so much, the "Queen's prerogative," is a mere technical phrase, and should be put aside; and I was glad that the right hon. Gentleman the Colonial Secretary did put it aside. Our self-governing dependencies have the right to set up their own Courts of Judicature if they please, and to say that these Courts are final. I do not want to see the decisions of their local Courts interfered with. I should be glad to sec the Courts of Australia finally dispose of the great mass of ordinary litigation; but I think there should, for the special and limited class of questions to which I have adverted, be a Court of yet higher consideration. I come now, in view of that, to the specific proposition, by way of amendment, to which the right hon. Gentleman has drawn our attention, and it is with regret that I differ from the right hon. Gentleman in some material particulars. I cannot help thinking that if the right hon. Gentleman had obtained his way, if he had not been hampered by the tradition of the sacredness of the judicial position of the House of Lords, which we now know for the first time is to be made a question, it must have occurred to him two years ago that the real way of averting a situation of conflict was to have made the proposal of a great Imperial Court to take the place of the House of Lords and the Privy Council, and to be shared in by the colonists just as it would be by ourselves. I am convinced that you cannot keep the House of Lords jurisdiction as it is at present, and at the same time obtain for the Privy Council the status in the eyes of the Empire which it should be able to occupy if we were contemplating the establishment of a single tribunal. We are in this country 40,000,000 of people, and enormously rich, and the result is that we have appellate business of a very important character which goes to the House of Lords. If there are two tribunals sitting for the dispatch of the same business, the one is starved in order to keep up the other, and the judicial strength inevitably gravitates towards the House of Lords, and until you make the colonials feel that the tribunal to which they come is the same as that to which you yourselves appeal, you will never got their confidence. The constitutional lawyer and the historian have watched with interest the 101 way in which first Parliament and then the House of Lords have taken away the prerogative of the Crown as the final resort of the suitor, and appropriated it to themselves; the result of that has been that, though the Privy Council is considered good enough for the colonies, it is not allowed in Great Britain and Ireland to be good enough for us. And it was curious to notice in the speech of the right hon. Gentleman that while he was ready to reform the Privy Council by the addition of four Law Lords representing the different colonies, still, he spoke of the amalgamation of the jurisdictions of the Privy Council and House of Lords as if it was a matter to be put off for some time, and he gave as the reason that the colonies were to be consulted. I can see a reason for the colonies being consulted before four Law Lords are put on the Privy Council to represent them, but I cannot see how the colonies have to be so elaborately consulted in this, which can do nothing but strengthen, and it appears to me that there is going to be considerable delay in the fusion of the two tribunals, and that this reform may not take place until perhaps the Parliament after next. I think that this is a great misfortune, and I trust that there is no settled determination in the mind of the Government on those points, because I feel sure that if you are going to get over the difficulty with Australia it would best be done by offering Australia a substitute, which would take the form not merely of a reform of the Privy Council, but of a High Court of Appeal in which they would have membership. If this offer had been made two years ago we should not have heard very much of the controversy which prevails to-day. Australia has not been treated so well as it ought to have been, and the result has been the feeling engendered against the Privy Council, due to neglect on the part of the Imperial Government. Surely the better course to follow is not to amend Clause 74, but to say that the clause will be taken and a new Court proposed. It may seem to be a matter of form, but matters of form are very important when you are dealing with a subject like this. I believe that Australia was never more in a mood to join hands with us. I believe anything of this kind properly offered would be willingly accepted. The offer should be made, but 102 not pressed. The mother of Parliaments does not coerce her children.
§ * MR. HALDANE
I say this with great sympathy for the right hon. Gentleman, because he has been at pains to put himself on the best terms with the colonies, and has a difficult matter to negotiate here. I appreciate the right hon. Gentleman's desire to keep the link of Empire. On the other hand, if the alternative course had been taken to the one which has been pursued, we should have been outside the present trouble. I hope it is not too late now to make propositions of this kind in such a form, without amendments to the Bill, which might turn out to be obnoxious to the people of Australia, as to get over this difficulty. We shall watch with anxiety what takes place between now and next Monday. If the people of Australia assent to the propositions of the Government as made, the course is easy; but if they do not assent, then to my mind it is of the greatest importance to make the people of Australia understand that we are not trying to press upon them what they do not desire, but to save for Imperial purposes only a limited right of appeal. There is quite enough appeal left by the clause as it stands to the Privy Council to preserve the existence of the Court, and I would father see this matter initiated in strict accordance with the wishes of the people of Australia, wishes arrived at after prolonged conferences which must be taken to be authoritative, than in a shape in which they do not desire it.
* MR. STANLEY LEIGHTOIN (Shropshire, Oswestry)
said the hon. Member who had just sat down appeared to be advocating the policy of waiting to see how the cat jumped. He said, "Wait until Monday and then you will see," but that was not quite the way in which to approach this question. The view of the right hon. Gentleman below the gangway who represented the Forest of Dean was also a very narrow one, consisting as it did of the argument that not a single word of the Bill ought to be altered. If 103 no word of the Bill was to be altered, why waste words discussing it? It seemed to him that it would be a most uncomplimentary thing to the Australian people if the Bill was passed without discussion, and discussion meant possible amendment. From the statesmanlike speech of the Colonial Secretary, it must have been patent to the House that there was no idea of forcing anything on colonies. It was an old axiom that it was bad policy to force the best form of law on an unwilling people, and it was gratifying to know that as at present constituted the Privy Council was not to be forced down the throats of the Australian people. The principle of appeal was not objected to, but what was objected to was the appeal to this particular Court in its present form. The hon. Member for York had made some observations with regard to the judicial proceedings of the Privy Council; but, with the exception of some gentlemen of the long robe, very few people knew what the Judicial Committee of the Privy Council was, of whom it was composed, what it did, and where it held its court. He [Mr. Stanley Leighton] had determined ten years ago to make a search and make quite sure that it not only had a name but a local habitation, and he inquired of all his friends "Where is the Privy Council?" and no one knew. He asked judges and the like and was referred to "Whitaker" and a little book entitled, " Things Not Generally Known," from neither of which could he extract the desired information. He then conceived the idea of starting at the top of Parliament Street and knocking at every door and inquiring if the Privy Council was at home, and in the course of his peregrinations he came to a door at which a policeman was standing, who, in answer to his inquiries, directed him up a small back staircase, and upon entering a small room on the second floor he found himself in the presence of the august assembly. There was no accommodation for strangers. It was not surprising that in such a position of obscurity this august Council was hardly appreciated, or even known; but who was to blame? First of all, the lawyers. When they built their palace of justice, why did not they find a home for the great Court of the Empire, a Court which throws all others into insignificance, a Court with the farthest-reaching jurisdiction in the whole world, farther-reach- 104 ing than that of the Roman Curia, and deciding the rights of millions of people and questions on the most varied law? Why was such a Court relegated to an upper chamber difficult of access? In the reign of William IV. an Act was passed for the reform of this Court, and it was provided that certain colonial as well as Indian judges should sit upon the Bench. But no colonial judge was appointed till five years ago. Ten years ago he himself pressed the necessity for further reform, with all the power a private Member possessed, upon the Government of Lord Salisbury, and he was told the matter should receive consideration; but that Government went out of power, and no consideration was given to the matter. Five years later he pressed the same consideration on the Government of Lord Rosebery, and no doubt, so far as the Colonial Office was concerned, would have received the same attention as before; but fortunately the matter was taken up by Lord Rosebery personally, who brought in a Bill limited in extent, but adding three judges from the colonies to the Judicial Committee. He agreed with the hon. Member for Haddington that if this matter had been dealt with five, or even two years previously, Clause 74 would not have appeared in this Bill. The people of Australia were to be congratulated upon having brought this matter to the attention of the Government. The Government would have allowed the matter to drag on till the Day of Judgment had not pressure been put upon them, but now there was some hope that a new, permanent, and effective colonial representation would be placed upon the Privy Council, and that we should really have a Court of Appeal for the whole Empire. For this we thank the Australian people.
§ Question put, and agreed to.
§ Bill ordered to be brought in by Mr. Secretary Chamberlain, Mr. Balfour, and Mr. Attorney General.