§ [SECOND READING.]
§ Order of the Day for the Second Reading read.
§ THE UNDER SECRETARY OF STATE FOR THE COLONIES (The Earl of SELBORNE)
My Lords, I would especially invite your attention to the unique; 9 circumstances under which the movement for federation in Australia, which has ended in the Bill now before your Lordships for consideration, has had its origin, and brought its history, I hope, almost to the point of fulfilment. The Constitution of the United States of America was born of a struggle for national independence. The Constitution of the Dominion of Canada was accepted as the solution of internal political troubles constantly recurring over a course of many years, and sometimes acute. The consolidation of the German Empire was rendered possible toy the victories of a great war. It has been reserved for the people and the statesmen of Australia alone to determine to federate out of what I may call pure reason. They, and they alone, have looked to the future, and, as custodians of the interest of their descendants, have determined to consolidate the colonies of Australia in one great commonwealth. The fact that this movement has existed and the work has been completed under no special pressure calls, I think, for a tribute of admiration from us, because it must have greatly added to the difficulties of the statesmen who had the task in hand. They had to reconcile six different States, each with divergent interests, each with its own separate local conditions and its own separate history, and in each of which had arisen the usual growth of vested interests; and to have completed the work of federation without any very great pressure is a most remarkable performance, and one that will place the statesmen of Australia on a level with those statesmen who have been admired by the world for the Constitutions they gave to America and the Dominion of Canada. I would ask you, my Lords, before you read this Bill a second time, to take note of some very remarkable features in the Constitution embodied in the Bill. First of all, there are the provisions for a change in the Constitution in the future, if necessary. Any law for altering this Constitution must be passed by an absolute majority of each House of Parliament, that is, the Senate and House of Representatives. When so passed it must be submitted to the vote of the electors in each State who are qualified to vote for the election of members in the House of Representatives. If in a majority of the States a majority of the electors who vote are in favour of the proposed law, and if 10 a majority of all the electors voting in all the States are also in favour of the proposed law, it passes, and must then be presented to the Governor General for the Queen's assent. I think I ought to assure my noble and learned friend Lord James of Hereford, that in those colonies where there is womanhood suffrage as well as manhood suffrage, only half the number of votes are allowed to count. I would ask your Lordships to observe that no proposed alteration of the Constitution the object of which is, either (1) to diminish the proportionate representation of any State in the Senate or House of Representatives, or (2) to diminish the minimum number of representatives, or (3) to alter in any way the limits of a State, or (4) to affect the provisions of the Constitution in relation to any particular State, may become law unless it is approved by the majority of the electors voting in the State which will be affected by the proposed alteration. I would ask you to compare those provisions for a change of the Constitution with the provisions that obtain in the United States of America. You will notice that in the case of the Commonwealth of Australia a proposed change must not only be passed by a majority of the people in a majority of the States, but also by a total majority of those voting in all the States on the question. In the Constitution of the United States there are two methods of effecting a change of the Constitution, but I will only mention one which, I believe, has been invariably used in all the changes of the Constitution which have taken place. Congress, i.e., the Senate and the House of Representatives, may, by a two-thirds vote in each House, prepare and propose Amendments. Those Amendments, when so prepared and proposed by Congress, must then be submitted to the Legislatures of the States, and they are only passed if the Legislatures of three-fourths of the States ratify them. I think your Lordships will see that in one point, at any rate, those two processes are likely to have the same effect. In neither case is it probable that any Amendment of the Constitution can be made to which a majority of the people are opposed. If you come to consider the converse proposition, whether it is possible or likely that a change in the Constitution, which the majority of the people really desire, may not be effected owing to the process which the Constitution 11 enjoins, then I must say I think the advantage lies with the Constitution of the Commonwealth of Australia. It is obviously more difficult to make a change in the Constitution of the United States than it would be in the Constitution of the Commonwealth of Australia. The only comment I would make upon that is that it seems to me that the proposals in the Commonwealth Bill are more truly democratic than those of the United States. I use that term with its ordinary grammatical meaning and without any attribution of merit or demerit Under this Bill the final arbiters on a question of a change of the Constitution are the people—the voters. The next provision to which I would call your Lordships' especial attention, one of very peculiar interest for this House, is the provision against a deadlock between the two Houses. Section 57 runs as follows—When the House of Representatives has passed a law which the Senate rejects or fails to pass, or amends in a way to which the House of Representatives will not agree, the House of Representatives may, if it wishes to force matters to a conclusion, again pass the law with or without any amendments emanating from the Senate, after an interval of three months. If the Senate again rejects it or omits to pass it, or amends it as above, the Governor-General may dissolve both Houses simultaneously, but such dissolution must not take place within six months of the natural date of dissolution of the House of Representatives.I may say here, in passing, that the House of Representatives must be re-elected every three years, but the Senate as a body is never dissolved, except under the provision which I have just quoted. A member of the Senate is elected for six years. Half of the first Senate will be elected for only three years, and after that a half will be elected every three years. So you will see this is a very special provision for a dissolution of the whole Senate in the case of a deadlock. The section continues—If after dissolution the new House of Representatives again passes the law with or without any amendments emanating from the Senate, and the Senate again rejects it, or fails to pass it, or amends it as above, the Governor-General may convene a joint sitting of the members of both Houses. The joint sitting may deliberate together on the proposed law, and on any amendments as to which the two Houses have disagreed. After deliberation the next step is to vote on the law. This they must do together, and if the law itself, with or without Amendments, is carried 12 by an absolute majority of the total number of: members of the two Houses, the law as passed by the joint sitting will be regarded as duly passed by both Houses.Your Lordships will observe that the terms all through are permissive and not obligatory. "The Governor-General may dissolve both Houses." That is, of course, the Governor-General acting on the advice of his Ministers. "The Governor-General may convene a joint sitting of the two Houses." He is not obliged to do so, but may do so on the advice of his Ministers. But when once this meeting of the two Houses is convened then the vote—the final vote—must be given by the two Houses sitting as one House, though the deliberations which take place previous to the vote may, if they like, in each case be separate. There is a variation to which I would draw your Lordships' attention in those cases where the disagreement is as to a change in the Constitution. In the case of an ordinary disagreement this process is only applicable if the Bill on which the dispute has occurred has emanated from the House of Representatives. There is no corresponding privilege to the Senate in the case of a Bill which has emanated from the Senate. But if the Bill as to which disagreement exists is a Bill proposing a change in the Constitution, then the same privilege obtains in the case of both Houses. My Lords, the observations that I would make to you as regards this process are two-fold. In the first place, I believe it is the very first time that in an Anglo-Saxon Constitution any attempt has been made to provide for a solution of a deadlock between the two Houses. There is no such provision in the Constitution of the United States of America; there is no such provision in the Constitution of the Dominion of Canada. The second observation I would make is that the plan in this Bill has this merit: that it goes to the root of the whole matter and refers the final decision to the electorate—it does not leave the decision to one of the two Houses which are parties to the dispute. Therefore, whatever decision is arrived at is one that must be accepted as final and conclusive by all parties. I would briefly point out to your Lordships the provisions for the election of the two Houses. The Senate is devised specially as a representative Chamber of the States as States. Each original State has six 13 Senators, no matter what its area or population may be. The electors for the Senate are the same as those for the House of Representatives, and in the absence of any provision to be made by Parliament in the future the electors vote in each State as one electorate. The election, as I have already mentioned, is for six years. In the case of the Senators first elected, half of them are chosen by lot to go out at the end of throe years. The House of Representatives is to have a total number of Members which is to be double the total of the Members of the Senate, and which are to be allotted to each State in proportion to their respective populations. The States are to be divided into constituencies for the purpose of this election by their own State Parliaments if they wish. In default of such legislation the electors will vote as one electorate. The electorate for the Commonwealth Parliament is in each State; to be the same as the electorate for its own Chamber. And here I must commiserate with my noble and learned friend whom I congratulated just now, on the fact that the rights of women voters in those States where womanhood suffrage prevails are carefully guarded by Section 41 of the Bill. The election of the House of Representatives is to be triennial, and each member is to get a remuneration of £400 per annum. No man can sit in both Houses. The feature of this Constitution which seems to me to most differentiate it from the American Constitution is that throughout it strictly follows the English plan of uniting the Legislature to the Executive, and in taking care that the Government of the day is armed with the full authority of the people who elect the majority in the Chamber. Your Lordships will appreciate the reason why I lay stress upon that if I remind you what the condition of affairs is under the Constitution of the United States of America. There the President is elected once in every four years. The House of Representatives is elected once in every two years, and one-third of the Senate is elected every two years. The result is that, although all authority in the United States necessarily and exclusively emanates from the people, yet it never so emanates at one moment. The will of the people of to-day is constantly influenced by the will of the people of yesterday and to-morrow. 14 That is not our English plan, and the Constitution of Australia strictly follows the English plan. There can be no doubt that under it the Government of the Commonwealth of the day will represent the opinion of the Australian people at the moment of the last election. Of course, one of the most difficult class of questions that meets the framers of a Constitution like this is the principle on which the separation of power between the Federal Parliament and the local or State Parliaments is to be devised. The principle of this Bill is very simple. Section 52 defines the very few subjects in respect to which the Commonwealth Parliament is to have exclusive authority. There is a catalogue in Section 51 of the subjects with which the Federal Parliament may deal concurrently with the State Parliaments. The only powers, in fact, in matters of legislation which are taken away from the State Parliaments are those referred to in Section 52. The Commonwealth Parliament may extend its legislative horizon and deal with other matters if referred to it by the State Parliaments, and these provisions give that general character of elasticity to the Constitution which, I think, is its most prominent feature. The framers have made a deliberate choice between what I will call the rigidity of the American Constitution and the flexibility of the English Constitution, and although not able to allow that flexibility which has been of such great advantage in this country, yet the Constitution is framed on lines of flexibility rather than on lines of rigidity, and I do not think that any of your Lordships will doubt that in making this choice the framers of the Bill have followed a true instinct of the British race. It is in strict accordance with the political instincts of our race that our machinery should be of such a kind that it can be changed and developed as the times and conditions alter, and that we should not now attempt to stereotype a particular machinery which our descendants may not be able to change or alter, however much the condition of the country required it. There is one subject which I have not yet touched upon. I have referred to these matters because their importance has been rather obscured in the other House of Parliament by the attention which has been devoted to Clause 74. That is the clause, as your Lordships are well aware, which deals with the question of appeal to the Privy 15 Council. Considerable controversies have centred upon that clause—controversies which your Lordships on both sides of the House will be glad have ended so happily. What I wish to explain briefly is the exact position of the matter as it has been left by, I will not say the compromise, but by the solution arrived at with the consent of all parties. The position of the Dominion of Canada with respect to appeals to the Privy Council has been generally adopted as a model for our admiration. Now, in what respect will the right of appeal in Australia differ from the right of appeal in Canada? In Canada an appeal may be taken by a litigant from one of the inferior courts direct to the Supreme Court of Canada, or to the Privy Council. Under this Bill an Australian litigant will have the same privilege. In Canada, if a litigant has chosen to go to the Supreme Court of Canada, he may appeal from the decision of that; court to the Privy Council with and by leave of the Privy Council. In Australia a litigant will have the same privilege, except in one special class of cases where the question which has arisen is the limits inter se of the powers of any State, qua the Commonwealth, or of one State qua another State. In those cases litigants may still have the liberty of appeal to the Privy Council from the High Court of Australia, only the leave for that appeal is to be given not by the Privy Council, but by the High Court from which the appeal is to be carried. That is a very slight variation. It has been contended, I know, that its effect in questions involving constitutional issues is to make the High Court of Australia a coordinate court with the Privy Council. I speak with great diffidence in the presence of legal authorities, being no legal authority myself, but I understand that there is a strict precedent in the law of this country. At the present moment there are appeals in questions of bankruptcy from the Divisional Court to the Court of Appeal; and it is not the Court of Appeal but the Divisional Court which gives the leave to appeal, and no one will argue that the power of the Divisional Court to give leave to appeal constitutes it ipso facto a co-ordinate authority with the court to which it gives leave to appeal. If any doubt should remain in any of your Lordships' minds as to whether this settlement has obtained the full concurrence of the Australian colonies 16 and people, perhaps you will allow me to read a few communications which have reached us since such communications as we had received had been laid before Parliament. The present Agent General of Victoria, Sir Andrew Clarke, writes under date 21st June—I have pleasure in communicating to you the following telegram, which I have received from my Government: 'Commonwealth Bill. Inform Secretary of State for Colonies Victoria approves Clause as now altered, and hopes speedy passage of Bill. Thank Secretary of State for Colonies for great trouble, kindly interest, and congratulate him on successful settlement.'Earl Beauchamp telegraphs from Sydney—Resolution passed by Legislative Assembly preferring Clause 74 in Bill as submitted by Australian Colonies, but, failing that, desiring compromise mentioned in your telegram of 16th instant. Telegram sent to New South Wales delegate late last night asking him to convey decision to you.Lord Tennyson telegraphs from South Australia—Cabinet Ministers cordially acknowledge your continued efforts and of Imperial Government to reconcile what appeared to be to them the conflicting interests of Australia and Empire in connection with appeal clauses of Commonwealth Bill, and rejoice at prospect of early accomplishment of Federal union.Viscount Gormanston telegraphs from Tasmania—Referring to your telegram of 21st June Ministers request me to send you following message:—'Begins: They desire to express gratification that whilst safeguarding British interests you have given to Australian colonies wider scope for the development of national life, and to express gratitude for patience and tact exercised by you throughout the conduct of deliberations and negotiations.'Lord Lamington sends the following telegram from Queensland—On behalf of my Ministers and myself I desire to offer you my hearty congratulations on the successful manner in which you have overcome the difficulties arising out of earlier proposals for amendment of Clause 74, Commonwealth Bill, and to express appreciation of satisfactory nature of the compromise in the clause as now passed.The result of those communications is to show that while the Governments referred to would have preferred Clause 74 as brought from Australia to this country, yet they accept the arrangement proposed, and I think it is not unfair to say that all the other colonies concerned are completely satisfied with the clause as 17 now framed, including those who were supposed to be most strongly in favour of the original form of Clause 74. I believe the solution arrived at is one which not only commends itself to the Australian people, but one which will be found to work well in practice; and I will only conclude by asking your Lordships to read the Bill a second time, and to join with me in offering the heartiest congratulations of this House to the Statesmen and the people of Australia.
§ Moved, "That the Bill now be read a second time."—(The Earl of Selborne).
§ EARL CARRINGTON
My Lords, the House has listened, with the attention that it deserves, to the very clever, remarkable, and interesting speech which has just been made by the noble Earl the Under Secretary of State for the Colonies. It was an interesting speech, because, for the first time, we have some idea of what the real intentions of Her Majesty's Government have been in regard to this measure, which, up to the present time, have been both confused and confusing; it was remarkable for its omissions as well as for the paucity of its admissions; and it was extraordinary for the cleverness with which the noble Earl skated over the thinnest of ice, threw difficulties behind him as if they never existed, and almost made the House believe that there had never been any crisis on this question at all. Indeed, so dexterous was his way of dealing with the subject, that while he was speaking I could not help thinking that I was in one of the Parliament Houses at Cape Town, where, as your Lordships know, the custom is that the same Minister can bring in a Bill in both Houses, though he can only vote in one. The noble Earl's work was so skilfully done that I thought the same skilful hand that piloted the Bill through the other House was now starting it on its passage through your Lordships' House. Verily, though the voice was the voice of Jacob, the hand was the hand of the well-known and astute political Esau. The noble Earl did not say one single word as to the manner in which this great question originated, and I hope your Lordships will bear with me for a few minutes while I refer to it. The Federation of Australia first came within the range of practical politics in the month of October, 1889, when Sir Henry 18 Parkes, to the great amazement of the colonies, and without having said a word to the Cabinet, made a great speech in which he said that the time had come for the federation of the Australian colonies. The idea ran like wildfire all over the great Continent of Australia, and in the early part of the following year, 1890, in spite of the difficulties of the Federal Council—which, as your Lordships will remember, was a Council of the different States of Australia, with the exception of the Free Trade State of New South Wales—-which were eventually got over—a Convention was held, I think, at Melbourne, at which Lord Hopetoun, who for five years was the representative of the Queen in the great colony of Victoria, made his first appearance in public. The toast of "United Australia" was responded to by Sir Henry Parkes, who made a speech worthy of the man and of the occasion. I need not weary your Lordships by mentioning the difficulties that arose. There were the Free Trade and Protection difficulty, the military difficulty, and, of course, there was the great question as to whether the capital was to be Melbourne or Sydney. There were many disappointments and many delays, but all these difficulties were successfully overcome, and at the end of last year a Bill was piloted through all the different Houses of Parliament, and submitted to a referendum of the Australian Colonies, and carried by a majority of nearly three to one. I want the House to remember—it was a point carefully omitted by the noble Earl—that during the whole of the ten years over which those negotiations extended, the British Government, who wore kept well informed of everything that was going on, and knew every detail of the Bill as well as they knew that largo quantities of arms were being smuggled into the Transvaal in piano cases, ladies' bonnet-cases, etc., took no more notice of them than they did of the importations of the arms to which I have referred. It was therefore thought that when the Bill came over to this country there would be no possible objection to it, and it was not at first thought necessary to send delegates. Thank goodness, wiser counsels did prevail, and five delegates came to England to explain the provisions of this self-made compact of the Australian people. Those delegates had not the smallest 19 right, power, or authority to accept one single word of amendment or alteration in the Bill. They came over solely for the object of explaining the clauses of the Bill. They were very hospitably entertained when they reached London in the early part of this year, but the man in the street, who somehow or another seems to know a great deal more than the Ministers of the Crown, said there was a rift in the lute, and that there were some objections to some of the provisions of the Bill. And then it came out that Mr. Chamberlain had put his back against the wall. In another place the right hon. Gentleman made a public announcement as to the intentions of the Government with regard to the Bill, and before he did so he made a remark which I think your Lordships will have noticed that every English Englishman—by that I mean a man who has never visited the colonies—always makes in speaking about them. The right hon. Gentleman said that the links between this country and the colonies at the present time were so slight that almost a touch would break them. After the way in which the colonies had unanimously rallied to the support of the mother country, when British territory in South Africa was in- varied, and invaded under circumstances of preparation for defence which would probably have delighted the heart of Ethelred the Unready, it was astonishing that such a statement should have been made. If there ever was a time when the links between the mother country and the colonies were stronger than ever, it is, I should have thought, the present time, when all parts of the Empire have rallied together in its defence. Having delivered himself of that pious opinion, the right hon. Gentleman proceeded to do what a child of ten would have been able to tell him was the very thing to break these links, if they could be broken, which I deny. He put the Colonial Office finger in the Australian pie, and announced the two great objections which Her Majesty's Government entertained to the Australian Commonwealth Bill, neither of which was mentioned in the noble Earl's speech. The first objection was that the definition of a colony raised a doubt whether the legislation of the new Commonwealth Parliament would or would not come under the provisions of the Colonial Laws Validity Act. There is that old 20 question of definition again, which seems to knock all Colonial legislation on the head. It seems to me that one reason why Her Majesty's Government seem destined once in every ten days to plunge Up to their necks in some dreadful difficulty in their Colonial policy is their absolute inability to call a spade a spade. It was said, "You cannot have such an easily mistaken and difficult word as 'Colony' in the Bill; it cannot be allowed. Why put the word 'Colony' in the Bill at all?" The Australian delegates were asked their opinion as to the proposed great change, and they agreed to it with a twinkle in their eye, with gratitude in. their hearts, and with their tongues in their cheek. Mr. Chamberlain had triumphed, and Australia breathed again. The second objection—the real lion in the path—was as regards Clause 74, but the noble Earl absolutely omitted to tell us what Clause 74 in its original shape and form was. Clause 74 was simply this, that in all matters relating to Australia, and Australia alone, in which the public interest of any other part of the British Empire was not concerned, the final decision should rest with the High Court, and that there should be no appeal to Downing Street. That was the practical and logical conclusion of Home Rule. It was Home Rule in its best, simplest, and fairest form. But the right hon. Gentleman said to himself, "Am I not a Unionist?" and he kicked the clause as high as Diamond Jubilee did his heels when he went down the course before winning the last Derby. The contention of the Secretary for the Colonies that Clause 74 would destroy one of the most important ties connecting the different parts of the Empire is, at any rate, a logical position, whether one agrees with it or not. That may be the idea of English Englishmen, but is it the idea of the great majority of the Colonists throughout this great Empire? I venture to think not. To get out of the difficulty about the right of appeal the right hon. Gentleman put forward what seems to me, since the Imperial Zollverein, one of the most madcap schemes that was ever devised for tying the tails of the Australian kangaroo and the British lion together in an impossible sailor's knot. He proposed to put a certain number of coronets on the heads of illustrious Colonial Judges, and put £6,000 or £7,000 a year in their pockets 21 for a period of seven years. What would happen to them afterwards? He does not make them life Peers—they are to have a lease only of a Peerage; and when the seven years expire I presume they would have to return their robes into store in the same way as a servant who only stays a very short time in a nobleman's family does his plush breeches and liveries. Having succeeded in forming this great judicial body, the right hon. Gentleman took a Palmerstonian attitude, and, putting himself on a pedestal, made a civis Romanus sum and soda-water kind of speech, in which he said that he never would be a party to doing anything which would put an end to the right of every British citizen all over the Empire to lay his grievance at the foot of the Throne, and he was very strongly backed up. That was a perfectly legitimate position, but a dangerous one from the point of view of those who desired to see the expressed wishes of the majority of the Australian people respected. I am speak-under correction, but I believe I am right in saying that the right hon. Gentleman thought he had "four by trumps" in his own hand. He was acting under the aegis and with the advice of the eminent, powerful, noble, and learned Lord who sits on the Woolsack as Lord High Chancellor of England. That, I believe, was well known. He also had the support of the Chief Justices of four of the colonies—men of light and leading, and men of the highest possible honour, whose opinions ought to be very much respected. He had the great advantage of being backed up by The Times, the Melbourne Argus, and the Brisbane Courier, and he had the support of the Member for Australia, Mr. J. Henniker Heaton. He had the additional advantage of publishing a controversial despatch from a Constitutional Governor—it seems to me that Her Majesty's Government have a sort of mania for publishing despatches—and he had the hearty good wishes of the conscientious and honourable opponents of the Australian Federation Bill, who looked upon the right hon. Gentleman's interference with great hope that it would result in the Bill being subjected to a referendum, which, plus British interference, might be the means of staving off the measure for five, ten, fifteen, and perhaps twenty years. The question at that period had assumed an acute phase, and the imminence of the peril and the 22 greatness of the danger afforded the only ground of hope. The future of Australia practically lay in the hands of one man—a man who, unlike all the rest of his colleagues, has two most wonderful characteristics. The first characteristic of the right hon. Gentleman seems to me to be his ability to make himself believe anything he likes at any particular moment. Was he not the man who, throwing aside the Spartan simplicity of his earlier life, was so overcome with the glamour of twenty-five minutes conversation with ah Emperor, that he announced to astonished Europe and the amazed Secretary of State for Foreign Affairs, that an alliance had been concluded between England, the great Empire of Germany, and the United. States? Was he not the man who was so easily able to look at both sides of the question at once, that he openly and publicly, in his place in Parliament, defended the man who was responsible for the greatest mistake of modern times, the unsuccessful invasion of a friendly State by 400 armed men? Was he not the man who at that time used language which threw away the honour and the good name of his country? In the hands of that single man lay the future of Australia. The crisis was a great one. So anxious was the time that the health of one of the delegates, Mr. Deakin, one of the finest representatives of Australian manhood, broke down absolutely, and he had to return to his own country. The only chance lay in the possibility of the right hon. Gentleman finding some way to get round what he had said, and to extricate himself from the dilemma in which he was placed, and, fortunately, that chance came off. The next time the right hon. Gentleman had an opportunity of explaining his position it was evident that he had thrown up the sponge. If the light hon. Gentleman had come forward before the House and acknowledged that he had made a mistake, not one word would have been said on this side of the House or by any Liberal in the whole country. But he did a very different thing. One of those extraordinary transformation scenes took place with which, unfortunately, we have of late become so familiar. The Secretary for the Colonies got off his pedestal, threw off the toga of the Roman citizen and the Palmerstonian frock-coat, and now, being the man who took up a perfectly illogical position which would have emasculated and 23 mutilated the Bill, he stands before the country as one of the creators and champions of Home Rule, or rather rule at home, all over the world. I should like to read to the House what the right hon. Gentleman proposes to do. He said—Clause 74 will be exactly reversed. Whereas in the original clause the appeal was to cease in all cases where the public interest of some portion of Her Majesty's Dominions was concerned, in the clause as we now propose to insert it, the appeal will lie in every case except the case where Australian interests alone are concerned.Does the House of Lords understand that any more than the House of Commons did? It seems to me a distinction with-out a difference. Punch's Kangaroo remarked—Well, I suppose I've got what I wanted; but I'm hanged if I know what I've got.The right hon. Gentleman performed a most extraordinary feat of political legerdemain. He took up this 74th Clause, which, he said, was doing away with the ties which connect the Empire, threw it up into the air and caught it again, turned it inside out, and then handed it across the Table as the Chamberlain compromise. It was done so rapidly that it took the House of Commons in, and especially Mr. Asquith, who got up and congratulated the right hon. Gentleman on having arrived at a solution which was honourable to both sides. The House of Commons apparently went home thinking that such an agreement had been arrived at. But there is a French proverb which says, La nuit porte conseil, and when the Members of the House of Commons came down to breakfast and read their Times they found there was no agreement at all, but a surrender. As the critic of The Times newspaper said—To all appearances the Colonies were ready to acquiesce in the original decision of the home Government. But time may, perhaps, show that here the sacrifice has been excessive and unwise.It was no longer an agreement, but a sacrifice. Men went forth to their labours. They read the Daily News, the Daily Chronicle, and the Westminster Gazette, and the scales fell from their eyes. They discovered that this so-called agreement was a surrender, a surrender, I admit, of an impossible and dangerous position, and a position that never ought to have been taken up, but a surrender as complete and as unconditional as that 24 of the Boer commander Cronje to the soldier-statesman Lord Roberts. I should like to ask what is the position of those men who so loyally supported the right hon. Gentleman when he decided to knock out the 74th clause and to retain the Privy Council? What shall we hear from noble Lords who supported this action of Mr. Chamberlain? Shall we hear that they have changed their mind with the Secretary of State, and that they agree with this unconditional capitulation? I have but one word more to say. I hope the House will put its foot down on the doctrine which has been assiduously preached in some places, that Australian nationalism and federation is a Tory discovery, and that the friendship and support of the colonies are of Tory creation. This has been preached in the country by people who ought to know better, and I hope that both sides of the House will stand shoulder to shoulder in their determination to stamp out any attempt to make political capital out of Australian federation. I have to apologise for having made such a lengthy speech, but I must say, in conclusion, that we unitedly hail the wise and patriotic action of Australia as a step towards that still larger federation of equal rights and common citizenship under the Crown, and towards that dual allotment of responsibility in all dealings with other nations which must give permanent security to our Empire at large. A united House of Lords offers its congratulations to the delegates on the victory they have so deservedly won, and a united Empire will congratulate your Lordships' historical and hereditary House on unanimously passing the Second Reading of the Australian Commonwealth Bill.
§ THE LORD CHANCELLOR (The Earl of HALSBURY)
My Lords, I have listened with amazement and the greatest possible pain to the oration which has just been made. The noble Lord lays down the dogmatic proposition that it is undesirable to make political capital out of this Bill. Yet he has given an extraordinary and distinguished example of the wish to do it himself. I should like to know very much what is the attitude of the Liberal party in respect of this Bill. Do they admire it and desire it to be passed, or not? Judging from the conclusion of the noble Lord's observations, he desired that both sides of the House 25 unanimously and with great applause should pass this Bill. May I ask, if that was the meaning of his oration, what was the object and purpose of that oration? In what one respect beyond his concluding sentence has he said anything to induce you to pass it with that applause, beyond a very violent and, if he will forgive me for saying so, I think a very inappropriate attack upon the Secretary for the Colonies, in which not only his conduct in respect of this particular Bill (as to which I shall say a word presently), but in respect of his whole political career has been the subject of a most violent attack? May I suggest to him that it is very easy to say hard things of persons who are not present to defend themselves? Mr. Chamberlain, I can assure him, is quite able to answer for himself, and if in the House in which he sits and speaks this oration had been made, I am sure he would have had a good answer to each of the gibes the noble Lord has indulged in. What are we dealing with?—a Bill that has been approved of by the Australian people and by the House of Commons (on both sides) in its present form; and I do not understand what the noble Lord means by his suggestion that after the House had approved of it they woke up next morning and found they had been deluded. What evidence is there of that? I am not aware that the House of Commons has retracted the approval it gave, or was so confused that it did not know what it was doing. Upon what authority docs the noble Lord say that the Liberal party retracted their approval, and is he put up here to say that the Liberal party, if they dared, would refuse to accept this Bill? If not, what is the meaning of the statement that the House of Commons had changed its mind and did not know what it was doing? I am afraid the noble Lord is intoxicated by his own eloquence. What is the objection to what has been done with great care, assiduity, and skill? My right hon. friend the Colonial Secretary welcomed the views of the delegates, listened to their objections, and pointed out the extent to which he was not able to meet their views. When, after consultation with the various Prime Minister's of the various colonies, they came round to what has been called a fair and intelligible compromise, the House of Commons unanimously, I may say, approved of and admired the skill with which that com- 26 promise had been effected. What are we discussing? What does the noble Lord object to? What is there now in the Bill which can justify his extraordinary attack on Mr. Chamberlain? I am not aware that the noble Lord has pointed out anything that is wrong. Is this speech to be quoted in Australia as the opinion of noble Lords on the Liberal side of this House in respect to this measure? The legal, commercial, and all the other elements which constitute Australia's greatness have approved of this Bill, and it is received in this House by a speech in which every gibe which ingenuity and fluent rhetoric could suggest was levelled at the Colonial Secretary for accepting that view. I do not know what is supposed to be the object of this speech, but it appears to me that it is calculated to do great mischief and is calculated to spoil the harmony and the unanimity with which this country accepted this Bill. It certainly will give rise to the suspicion that, though the Liberal party in the House of Commons accepted this Bill in the spirit in which they did accept it, it was sorely against their will to do so, and if they had had the chance they would have rejected it. I hope that that is not the case, though it is what the noble Earl's attack on Mr. Chamberlain would lead one to suppose. I do not descend to argue what has not been argued at all, but what has been thrown out as a mere suggestion. I rise solely for the purpose of making this protest against what is, to my mind, a most mischievous speech, calculated to give great offence and to do no possible good that any human being can suggest.
§ *LORD DAVEY
My Lords, I regret that the noble and learned Lord on the Woolsack has not given any explanation as to some of the clauses of this Bill which have been referred to. I shall not, of course, follow the Lord Chancellor in the remarks he made upon the speech of the noble Earl below me, but shall confine myself to a few criticisms of the Bill. I do so, not with any hostile intention towards the Bill, but because this is the only opportunity one will have of offering such criticisms. In the concluding words of the speech of the noble Earl who moved the Second Reading I am sure every one of your Lordships will concur—namely, in congratulating the people of Australia on having brought this great project to so 27 successful an issue. I am disposed to go further and to say that I feel sure those of your Lordships who have studied this Bill, including those who take part in the judicial business of this House, must have been struck by the care, pains, and skill with which this Bill has been constructed. It is not humanly possible to so frame a Bill of this kind as to avoid giving loophooles for litigation, but I have never seen any Bill drawn more skilfully and with greater cave than this one. I would like to draw your Lordships' attention for one moment to Clause 51. That is a very remarkable clause, because, differing from the analogy of the Constitution of the great Dominion of Canada, it does not propose to give exclusive powers to the Parliament of the Commonwealth, but names a number of subjects on which the latter will have concurrent jurisdiction, as the noble Earl said, with the Parliaments of the different States which compose the Commonwealth. In that way you will avoid many questions which have arisen between the provinces and the Dominion of Canada as to the limits of their legislation. But, on the other hand, I am afraid the Australian people will find that they will fall into another class of difficulty—namely, the difficulty of reconciling the Acts passed by the Commonwealth Parliament with the Acts passed by the different Parliaments of the different States on the same subjects. There will, in short, inevitably be considerable overlapping. Those of your Lordships who have looked through the numerous subjects included in Section 51 must have been struck by their generality. That is no fault of the Bill, because in a Bill of this kind you cannot foresee the detailed manner in which these questions will arise, and all you can do is to lay down general principles regulating the legislative limits of the Parliament. But the generality with which this clause is expressed will, of course, give rise to many questions. Undoubtedly many questions of a Constitutional character will crop up both as to the limits of the legislative powers of the Commonwealth and of the States, and also as to the reconciling of Acts passed by both the States and the Commonwealth under their co-ordinate powers. During my practice, which was spread over a great many years, before the Judicial Committee, and since I have had the honour of a seat on that body, I have made the 28 personal acquaintance of many of the gentlemen who have been and are judges of the Australian Courts, and I have had an opportunity of seeing their ability and the impartiality and integrity with which the judicial work in Australia is carried on. I have no doubt that the Judges of the Australian Courts will approach the consideration of these constitutional questions in a large and statesmanlike spirit, and will treat this Act as it ought to be treated, more in the nature of a treaty for the purpose of reconciling conflicting interests. The fact that it must inevitably load to a great many difficult questions lends all the more importance to the consideration of the clause which was referred to by the noble Earl, and which has been so much discussed, not only in Parliament, but in the public press and in the country—namely, Clause 74. That clause has gone through, I think, four transformations. As it originally appeared it provided that no appeal should be permitted to the Queen in Council on any matter involving an interpretation of the Constitution unless the public interest of some part of Her Majesty's dominions other than the Commonwealth or the States was concerned. But as regards matters not involving any constitutional question, the appeal would lie from the High Court to Her Majesty in Council by the leave of Her Majesty in Council. The first proposal made by the Government, as I understand it, was that the appeal to Her Majesty in Council should be maintained intact. That was found impossible. The second proposal was, I think, of a rather extraordinary character. It was that an appeal should be allowed with the consent of the States involved. That amounted to saying that a defeated litigant should not be allowed to appeal except with the leave of his victorious opponent, and that could not be maintained for a single moment. Next we have the clause as it is at present, and it is most important to consider in what way it differs from the clause as it originally stood. In the first place, I have an old-fashioned prejudice in favour of the English language in a British Act of Parliament, and I do not see why Latin words should be introduced when English words would do just as well. But that is rather a small criticism. I should like to know what is the meaning of the words "unless the High 29 Court shall certify that the question is one which ought to be determined by Her Majesty in Council." If it means nothing more than that no appeal shall be allowed except with the leave of the High Court, then I can understand it. But what is the meaning of "one which ought to be determined"? The clause means nothing more, I apprehend, than this, that an appeal shall not lie without the leave of the High Court, leaving the High Court to lay down the principles and conditions under which such leave shall be granted. I think it is a great pity that the ordinary well-known legal language was not used in this case. Coming to the substance of the clause, it appears to me that it is both larger and narrower than the original clause. It is larger because it gives larger jurisdiction to the High Court, those very important words to which, I understood, the Colonial Secretary attached considerable importance, having been omitted. The original clause contained the words "unless the public interest of some part of Her Majesty's dominions other than the Commonwealth is concerned." I should like to ask why those words are omitted in the clause as it at present stands. As the Bill was originally drafted there was an appeal to the Queen in Council, by leave of the Queen in Council, from the decision of the High Court on constitutional questions which affected the public interest of any other part of Her Majesty's dominions, but under the clause as it is at present worded, although the question may be one vitally affecting some other part of Her Majesty's dominions, no appeal will lie to Her Majesty in Council except by the leave of the High Court itself. I think we are entitled to some explanation why those words have been omitted. As the Bill originally stood constitutional questions were made the exclusive jurisdiction of the High Court. In that respect the clause as it at present stands differs very materially, and it also differs in this, that an appeal—and this is a matter of very considerable importance—will lie from any of the State Courts to the Privy Council, that is, to Her Majesty in Council, on any constitutional question, as well as on any other question, as it did before. As the Bill was originally framed no constitutional question, whether it came from the State Courts 30 or the High Court, could be brought by way of appeal to Her Majesty in Council, but as the Bill now stands constitutional questions may come direct from the State Courts to Her Majesty in Council. I do not hesitate to express my personal opinion that constitutional questions are exactly the class of questions which I should have thought that Australians would have wished to refer to Her Majesty in Council. And for this reason. In a question between individuals the matter may, and generally does, affect merely the interests of the individuals, but constitutional questions between two States may create a vast amount of feeling in those States. Suppose a question arose between Victoria and New South Wales. It is inevitable that a certain amount of local and State feeling would arise. At any rate, it is quite possible that friction would accrue. I do not question the absolute impartiality and integrity of the Australian Judges, but it is important, not only that they should decide the question impartially, but also that the public should believe that they would decide it impartially, and I should consider that there was a danger that the public might think, in a burning question which excited interest in two States, that the opinions of the Judges in the Australian Court had been more or less influenced by outside agitation. Do not believe for a moment that I say I think it would be so. I do not. But I say they ought to be preserved from any suspicion of that kind, and for that reason I should have thought that this was exactly the class of cases which would more fitly come to be decided by a tribunal which, whatever may be said of it, is not influenced by local or colonial agitation. I admit, in the fullest possible manner, that that is a question for Australians themselves to decide, and as they have thought fit to come to that decision—no doubt from excellent reasons and after much debate and discussion—I do not wish that the opinion of this country should override Australian opinion on the subject. It has been said that the arrangement which is at present made by Clause 74, is, in substance, that which prevails in the Dominion of Canada, and I observed that the noble Lord, in the very interesting and able speech with which he introduced tin's Bill, made an observation which had previously been made by the Attorney 31 General in another place. But it appears to me that the difference between the two is absolutely vital. In Canada, as the noble Earl justly said, a litigant can appeal straight from the Provincial Court to Her Majesty in Council, or he may, if he prefers it, appeal to the Supreme Court, and there in no appeal from the decision of the Supreme Court without the leave of Her Majesty in Council. I may here take the liberty of saying that it is an exceedingly difficult thing to obtain that leave; it is only given where a really serious question affecting not merely the interests of the litigants but of others of Her Majesty's subjects, such as the construction of an Act of Parliament or something of that kind is concerned. Permission is not usually given in cases where the Supreme Court has agreed with the Provincial Court, or unless there has been considerable difference, as there sometimes is, of judicial opinion within the Supreme Court itself. No doubt some conditions of the kind will be observed by the High Court of Australia in giving leave, when they are asked to do so, for an appeal from their decision; but, as I said just now, the difference between the two cases appears to be vital. Clause 74 as it stands is a perfect solecism in jurisprudence, and for this reason, that it creates two final coordinate courts of appeal, neither of which is bound by the decision of the other. Suppose, for instance, a question arises in one of the State Courts, and it goes by way of appeal to the High Court, and the High Court decides unanimously one way. The same question, we will suppose, arises affecting the same States or different States—it matters not much—and the defeated litigant (the State Court having followed the decision of the High Court) appeals to Her Majesty in Council, and the Judicial Committee advises Her Majesty to take a different view from that taken in the High Court, with the result that a decision is given the other way. The Judicial Committee, of course, is not bound by the decision of the High Court, nor, as I understand, is the High Court bound to follow the decisions of the Judicial Committee in matters of this kind. They may therefore each maintain their own opinion. I know that the answer that may be made to me is that the Australian Judges are men of such high principle and good sense that they will find some way of either agreeing 32 with the Judicial Committee, or of allowing the matter to be finally decided. They may; but it lies in their discretion, and unless they do so you will have two coordinate Supreme Courts of Appeal from the same Courts on the same class of subjects deciding in entirely different ways. That, I venture to think, is a solecism in jurisprudence. Just consider in what condition the State Courts would be put in that case. You would have this very curious result, that the men who were victorious in the State Courts would always be defeated ultimately; and for this reason. If a State Court followed the decision of the High Court the defeated litigant, of course, would not then go to the High Court but to Her Majesty in Council. But, on the other hand, if the State Court, not considering itself bound by the High Court, should follow the decision of the Privy Council, then the defeated litigant would, of course, go to the High Court and the High Court would maintain its own opinion and reverse the opinion of the State Court. Therefore, whoever gets the first decision in the State Court under this clause, if it is maintained in its present form, must suffer ultimate defeat. I do not think that is a very happy solution of the difficulty. The original clause was perfectly logical. It gave the High Court exclusive jurisdiction, but the present clause does not commend itself to my judgment or experience. I do not suggest that your Lordships should make any alteration in the clause. I have made these criticisms in the hope that the question may be considered by the Australian authorities, who have the power, if they think fit to exercise it, of making such modifications in the clause as will remedy the inconvenience I have pointed out. I saw in the ordinary sources of information this morning a suggestion by a gentleman who writes with some knowledge of the subject—I think one of the Australian Judges—that it should be altered in this way, that whenever the High Court disagreed with the Court below (the State Court) on a constitutional question, then there should be an appeal to Her Majesty in Council as of right. That, of course, would at once remove any inconvenience that might otherwise be felt, because then the Privy Council would continue to be the sole ultimate appeal authority. But whether any provision of 33 that kind can be adopted is, of course, as I have said, a matter entirely for the Australian statesmen and lawyers to settle for themselves. I have only to say, in conclusion, that I hope my humble contribution to the criticisms of this Bill will not be misunderstood. It is not conceived in a spirit of hostility. I have no right, in answer to the challenge of the noble and learned Lord on the Woolsack, to speak for the Liberal party, but I can only say, as a humble member of that party, that I rejoice as heartily as any of your Lordships at the introduction of this Bill.
*THE EARL OF JERSEY
My Lords, after what has fallen from the noble and learned Lord, the Lord Chancellor, I shall not detain your Lordships except for a few observations with regard to two points. I think the noble Lord opposite did not do justice to the speech in which the noble Earl the Under Secretary of State for the Colonies opened this debate. I thought the speech of my noble friend Lord Selborne was certainly couched in clear and distinct terms, and he brought before the House all the salient points in the Bill. We must remember that this measure has been before the public for a great many months, that it has been followed very closely, and that as it comes before the House it is the result not only of the views of the other House of Parliament but also of the views which are held by the very Colonies of Australia who are interested in the matter. There was also one other point the noble Earl mentioned. He was surprised that the Colonial Office had not interfered to express their views when this measure was being discussed in Australia. I thought it was the great glory of this Bill that it was the work of Australians for Australia, and I could imagine the indignation which would have been raised through the voice of the noble Earl opposite if the Colonial Office had taken upon themselves to tell Australia what their Commonwealth Bill should be. My Lords, my words will be very few, and my only excuse for saying anything at all is on account of the interest I must naturally take in the welfare of Australia. The Parliament and the people of this country have accepted this measure with trust and hope, and why have they done so? The gallant deeds of the Australian troops, and the enthusiasm of 34 the Australian people, have created the, greatest interest in this country, and the feeling that not only are we one by race and language, but also in spirit and sentiment. But those who have had the advantage and the honour of being associated with Australian Parliaments and Australian public men have an additional and a greater reason for their hope and trust May I, just in passing, say that I feel perfectly certain that there is no body of men who can be more trusted to do their duty free from outside pressure and free from outside excitement than the Gentlemen who fill the posts of Judges in that country. The same questions, the same problems, which we have to deal with at home are also to be met and to be dealt with in Australia. They have been dealt with hitherto with great success, and we have some reason to believe and to feel confident that, as these questions have been dealt with in the several colonies successfully, so when there is a united Parliament to deal with them they will be dealt with even still more successfully, and that if under the old régime the different colonies have advanced rapidly to success, still more rapid will be the advance of Australia when all her best councillors meet together in unison. Now consider what this measure will effect. A vast continent, almost as large as Europe, will for the first time be joined together under one directing Government. Hitherto there have been no less than six different Governments dealing with that continent, and some of them sometimes actuated, one must admit, by a spirit of jealousy, which, we trust, will for ever now disappear. The power of this united country will be something enormous. Its policy—and everyone must admit that Australia should be supreme, should be predominant, at any rate, in the Pacific Ocean—and the direction of its sentiment will be under one head, so that we may feel certain that we are creating a country which in time to come will probably do on that side of the world what we hope, not in vain, I trust, that Great Britain has done in this part. And, my Lords, can any country be started upon a fairer basis than the one which we are about to start now? Because we must remember that, by this Commonwealth Bill, United Australia in a few years will be totally different to what it has been in the past, with its separate colonies, and I certainly believe that, under Divine Providence, we 35 are about to give the most priceless gift which our generation, or almost any generation, can give to those who here after will live to enjoy the blessings of a free Constitution. My Lords, there is no doubt that a measure like this has not been arrived at without a great deal of labour and trouble; conflicting interests have been brought together; and we ought to give our meed of admiration to those who, not only in the Convention, but in addressing their fellow-citizens, have succeeded in bringing the people of Australia nearly to one mind upon this subject. I quite agree with what the noble Earl said, that men like Mr. Kingston and Mr. Barton and Mr. Deakin deserve well of the Empire also for their work, in the way in which they have shown their abilities and their common-sense in dealing with the difficult questions they have had to deal with in this country. In the future history of the Empire it is almost certain that there will be from time to time awkward questions arising, questions which can only be settled by the exercise of common-sense and goodwill upon both sides; and surely, if any man may feel satisfied with what he has done during six years it is the Colonial Secretary, notwithstanding the attack of the noble Earl opposite. If it had not been for him it is quite possible that this question would have been in a very different position now. He requires no praise from me, but, at any rate, he must have the satisfaction of knowing that the result of his labour has been that the House of Commons has passed this measure, that this House is not prepared—not one, I believe, in this House is prepared—to go against it, and that he has the support of all the five colonies interested. That must, after all, be the best answer that can be given to any attack as to whether he acted well or not. My Lords, I will say no more, except this: that we are about to set our seal upon a measure which will not only add to the power of Australia for good in the future, but which will also sensibly increase the resources and the strength of the whole Empire.
THE EARL OF KIMBERLEY
My Lords, in the first place I wish to dispel any idea that may be entertained by the noble Earl on the Woolsack or any Member of this House, that I do not regard 36 this Bill with the utmost favour taken as a whole. I regard it as a most auspicious event to the Empire. I regard it as reflecting the highest credit upon the Australian statesmen who, with much difficulty, have managed to frame what is admitted on all hands to be a most excellently drawn up Constitution for that great country. After all that has boon said it is really unnecessary to go into the matter at large, or to say anything more than that it is an auspicious occasion. We are not called upon to criticise the greater part of this Bill. That has passed without any objection whatever. The noble Earl who moved the Second Reading very properly and very clearly went through the different clauses of the Bill. I am not going to discuss these clauses, with the exception of one to which I will refer presently, because there has really been no contest whatever with regard to them. I wish to impress upon the House, turning our eyes altogether for a moment from the one disputed clause, that it is to the highest credit of those who framed this Bill that it should be a Bill which, taken generally, and even in detail, has met with the general approval of the British Parliament. I say that that is a remarkable effort in the way of drawing up a constitutional document. We have never attempted to draw up a Constitution in writing in this country, and I should have doubted myself whether we were qualified to do it. But I should change my mind now, because I should say that probably we are as well qualified as our Australian brethren, and our Australian fellow-subjects have shown us that it is quite possible for men of the English race to draw up a constitutional document of this kind with perfect success and clearness. Now, my Lords, having said that, I will not trouble the House on the subject of the Bill generally, because I think I should be occupying your time unnecessarily; but I will now refer for a moment to Clause 74, which has been the subject of considerable controversy. Of course, I am not going to attempt to discuss the legal questions involved. I must, however, say a word in reference to the remarks of my noble friend Lord Carrington upon this Clause 74, around which has raged whatever controversy there has been. It is perfectly true that there are men on this side of the House—and I am perfectly free to confess that I include myself 37 among thorn—who, however they may regard this as a non-party matter and rejoice at the establishment of this Constitution for Australia, yet do not think themselves entirely debarred from criticism as to the manner in which the controversy on Clause 74 has been conducted. I hope I am not usually ungenerous to opponents, and I certainly have not the least wish to be ungenerous towards the Colonial Secretary; but I think there is an impression—and something said by the noble Lord who has just sat down rather tends to confirm it—that there has been a desire shown to ascribe an undue amount of credit to the right hon. Gentleman for his share in bringing about the settlement of this Constitution. In point of fact, the passing of this Bill, except in regard to the 74th Clause, did not depend upon any Colonial Secretary, nor, in point of fact, did it depend on Her Majesty's Government, because it was not framed here and did not proceed from any suggestion from Her Majesty's Government; and, indeed, I think it is to the credit of Her Majesty's Government and of all parties that they did not commit the egregious error of attempting by proposals made here to induce the Australian colonies to adopt a federation. I have always held, and I am more than ever convinced of it, that all proposals for federation should emanate from the colonists themselves. Without going back upon an old subject which is present to my mind, I must say that the attempt of an old friend of mine, whom I much esteemed, though he was a political opponent, Lord Carnarvon, by active measures on the part of Her Majesty's Government to bring about federation in South Africa, was one of the most disastrous events in the history of those Colonies. Perhaps I may be allowed to say that my noble friend, after he had determined upon his action, came across to me in this House and spoke to me about it. I told him I was entirely in favour of federation, but I condemned his action and told him his attempt would end disastrously, though I promised him I would put no impediment in his way. I regret to say that my prevision turned out to be well founded. I merely mention this by the way, but again I say it is not reasonable or fair to give exclusive credit to the Minister upon whom happens to devolve the duty of carrying a measure of this kind through Parliament. 38 I do not wish to detract from the value of the service rendered by any Minister, but I do say it is not right to ascribe credit for the Bill to Mr. Chamberlain, or in fact to any one in this country. With regard to Clause 74, I cannot help thinking, reading the clause as it stands here and referring to the clause as it stood in the original draft, and without professing to have any great legal knowledge, the difference is by no means large, and T have extreme doubt whether any particular advantage has been gained by all the controversy which has been set up. The clause, as it stands is, no doubt open to criticism, as my noble friend behind me has shown. The clause as it stood protected specially, in direct terms, any interest which might be outside the Australian colonies; the clause as it stands does not give that protection. Well, I am not saying that I attach very serious importance to it, but still you must set off one thing against another, and I doubt very much indeed whether much has been gained, while undoubtedly, although the whole matter has ended happily, some considerable risk was run in the course that was taken, and considerable apprehension was roused in the minds of many who were greatly in favour of the Bill. No doubt a settlement has been arrived at; no one rejoices more than I do that that settlement has been arrived at, and that it is accepted by the colonies; but I doubt very much whether anything was gained by running the considerable risk of questioning what the colonial referendum had approved. The fact that those numerous changes were made in the proposals laid before the other House showed, in my opinion, not any very judicious apprehension of the whole matter, nor do I think it showed any particular skill in negotiation or in the managing of the Bill. However, all's well that ends well; and I am quite willing to congratulate the Colonial Secretary that this matter has ended as it has ended. The noble Lord on the Woolsack spoke very severely of my noble friend near me, and said, as I understood him, not only that he had made an attack upon Mr. Chamberlain, but also that he in point of fact had attacked the Bill. Now, I understood my noble friend to have as strong a feeling of approval of the Bill, speaking of the Bill generally, as any noble Lord in this House; and therefore the matter turns entirely upon the attack 39 which he made on Mr. Chamberlain. I think we cannot altogether exclude from our debates attacks upon statesmen in the other House, who sometimes are not very scrupulous in their attacks upon those who sit here; and, although I think I may say that I have no particular tendency that way, yet I have heard in this House, in the course of my experience here, very severe attacks indeed made upon colleagues of mine by distinguished members of the Opposition. I shall not mention their names now, because, unhappily, they are no longer Members of this House, but they were very distinguished men, of great authority—I mean the men who made the attacks—men who justly commanded admiration, not only from their own party, but, by reason of their ability, from those who opposed them: and I certainly have heard not a few attacks which have been made of a very severe character indeed upon Members of the other House. I remember one to which I myself undoubtedly took exception, very much in the way that to-night exception has been taken to the remarks of my noble friend. It is always a very convenient thing to say, "Oh, you must not make an attack in this House upon a Member of the other House." Well, for my own part, I confess that I would always rather have my opponent facing me—that would be more agreeable to me and fairer to him: but we cannot altogether exclude from our debates in this House comments upon the proceedings, the opinions, and even sometimes the character of public men who occupy high and distinguished positions in the other House, and I should protest against any doctrine that laid it down that such attacks should be altogether excluded. I say that entirely apart from the merit of the attack; each case must be judged by itself; attacks may be made which are not deserved, and attacks may be made which are deserved. My noble friend, I think, might have some ground for criticising the manner in which the negotiations were conducted, and I, myself, cannot help thinking that there was a great want of foresight in not having, during the time that these matters were under discussion in Australia, confidentially made known to the statesmen of that country, without interfering directly with them, what were the opinions held here upon 40 so important and so very difficult a matter as the question of the appeal to the Privy Council. It seems to me that that kind of assistance ought to have been given to the Australian statesmen; if they had been made aware of what was the opinion of the highest authorities in this country, which might easily have been conveyed to them two or three years ago, it might have led, not to a formal agreement embodied in despatches, but to the production of some clause which would have been accepted beforehand by all parties. I do not mean negotiations. I merely mean that they might have been made acquainted with the views of important people here in a confidential manner. My Lords, I have really nothing more to say to your Lordships, except again to repeat that I welcome this as a very great and most important measure; and I believe, with the noble Earl who has just sat down, that it will tend to the augmentation of the prosperity and the contentment of our great colonies in Australia, that it will strengthen the whole Empire, and that, as he said most justly, it will lay the foundation of such a State as we may hope may eventually prove to be one of the most important branches of this Empire—taking part in the defence of the Empire, showing to us, by experiments which they can easily try in a new community, and which we cannot so well try in an old community, what may be the best mode of dealing with the new problems which from time to time arise. And I look forward to the day when, if we continue to allow them to govern themselves in their own way, with as little interference with them as it is possible to exercise, this country will be surrounded by a number of great States, descended from us, which will form part of the Empire, but in point of fact will be close allies, bound to us not merely by ties of interest, but also by that strongest and most important tie—the tie of common kindred, common loyalty to a common Sovereign.
§ *LORD JAMES OF HEREFORD
My Lords, this Bill has been subjected to different degrees of criticism, and those who have been connected with it have had their actions somewhat criticised. The speech of the noble Earl opposite, Earl Carrington, I think will live in the memories of most of us—at any 41 rate, the humorous and good-natured portions of his speech; and I think we shall be disposed in the end to come to the conclusion that the noble Earl did not intend to attack very violently either the measure or the light hon. Gentleman who had charge of it in the other House. We learn from the noble Earl opposite that Lord Carrington is an enthusiastic supporter of this Bill—that he approves of it as much as the promoter of it. Why, then, the promoter of it was so attacked it is not worth while to discuss. One sentence in the speech of the noble Earl, the Leader of the Opposition, was somewhat superfluous—it was the statement that he was not in the habit of attacking his political opponents unduly, for I feel sure there is not a Member of this House who is not well aware that the noble Earl opposite is not apt to criticise political opponents unduly, and that he never makes an unfair attack upon those with whom he differs. Now may I call the attention of the House very briefly to what the criticism of the noble Earl opposite is? He does not object to the wording of the Bill; he does not object very much to the course taken by the Minister who had the principal charge of this Bill in the negotiations here; but it is rather a criticism of a negative character. Why, says the noble Earl, did not the Colonial Secretary some two or three years ago make a communication in an informal manner to those who represented the colonies, and tell them what his thoughts were upon the subject? Now I appeal to the noble Karl's fairness, the admiration for which he has so truly won from the House. He goes back to the year 1897. In 1897 the representatives of the colonies came to this country, and the Colonial Secretary made to them exactly the communication which the noble Earl now says he ought to have made. He has stated in the House of Commons that he did take that course. Now, accepting as we do the very eloquent peroration of the noble Earl that we are all agreed upon the beneficent objects of this Bill and the manner in which it has been conducted, do let it be noted that here in this Chamber the only criticism which the Leader of the Opposition has to make in respect of the Bill, or the conduct of, it is to complain that that was not done which was absolutely done in the very terms in which he says it ought to have been done. Mr. 42 Chamberlain took the very course which the noble Earl says he ought to have taken; and I hope it will go forth that the course which the member of the Government who had charge of the Bill took was the very coarse that the noble Earl with all his experience and judgment and his knowledge of the colonies—having been in the Colonial Office—says ought to have been taken by those in charge of the Bill.
THE EARL OF KIMBERLEY
Will the noble Lord allow me to say one word? The Bill was not printed, if I remember rightly, in 1898. Of course, my view was that a communication ought to have been made upon the words of the Bill as it was provisionally framed—not that before the Bill was provisionally framed the matter should have been gone into. I said two or three years ago, and I was not far out in my dates, but that was what I meant.
§ *LORD JAMES OF HEREFORD
I think the noble Earl's explanation leaves the matter as I put it; but was it not wiser for the Colonial Secretary to suggest his views and to state before the Bill was framed what his views were? If he had delayed doing so, would not the observation which fell from my noble friend Lord Jersey have come into effect—what would the colonies have said if they had been interfered with by the home Government at the very time when they were in federation trying to agree upon a Commonwealth Bill? The Colonial Secretary really took the very course which the noble Earl him- self says ought to have been taken. Now I desire to deal very briefly with some of the criticisms which fell from my noble friend Lord Davey. I am sure that here again we shall agree that all his criticisms were uttered in a spirit of good feeling towards this Bill. His first criticism was upon Clause 51. Of course that clause involves a great deal of overlapping, because there might be a conflict between the State Parliament, the Provincial Parliaments, and the Federated Parliament. Everyone has borne testimony to the way in which this Bill has been drawn in Australia. The noble Earl, Lord Carrington, said that the Secretary of State ought to have accepted the Bill in totidem verbis—that he ought not to have rejected anything.
§ *LORD DAVEY
I think my noble friend has misunderstood me. I think 43 I said expressly that the Bill excited my admiration; but I said that it was inevitable that there must be overlapping, not from any defect in the drawing of the Bill, but from the nature of the subject.
§ *LORD JAMES OF HEREFORD
The noble Lord, I understood, maintained that Clause 51 would produce that result.
§ *LORD JAMES OF HEREFORD
It is not a matter of drafting, but I think my noble friend's attention cannot have been called to the very important consideration that those who drew the Bill in Australia saw that some overlapping might occur, because in Clause 109 they deal with this very difficulty. The clause says—When the law of the State is inconsistent with a law of the Commonwealth the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.So that they saw that very point, and they made provision for it. Overlapping, as my noble friend says, was inevitable from the nature of the question, but they provide that when it does occur the law of the Commonwealth shall prevail as against the law of the province. Now, my Lords, only two other principal objections were taken by Lord Davey. I am sorry to detain your Lordships at all, and I will therefore be as brief as I possibly can. My noble friend said in the first place that there was a difference between the appeal which exists in Canada being given by the leave of the Privy Council and the appeal that was given by the leave of the High Court. That is so, but I should say that the method suggested by this Bill is the better. It is in favour of the colony. The suitor from Australia would have to come to this country and produce before the Privy Council here all his statements, in order to obtain his leave to appeal. It is easy to see what an expensive process this would be to the suitor living thousands of miles away. The High Court has all the necessary knowledge before it. It has the counsel engaged in the case, and it has full knowledge of the case, and then and there at the end of the case the application can be made, at no expense, probably, at all—at least, a very nominal expense. That is a great advantage to the colonial suitor, and is it 44 not advisable to meet the wishes of the colonies upon this point, and to give to their Court the right of giving leave to appeal, rather than bring the suitor here this long distance to obtain that leave? It is nothing to say that on a matter of procedure of this kind—not a matter of principle—there would be a difference of procedure between Canada and Australia, if the interests of the Australian suitor have been considered. Now, only one other main objection was taken by my noble friend. He pointed out that under Clause 74—and I really think that this is the substance that we have to deal with—you will have an appeal from the State Court and you will have an appeal from the High Court.
§ *LORD JAMES OF HEREFORD
The objection my noble friend made is grounded entirely on this: that you will have a judgment of two co-ordinate: Courts, and that there will be no superior judgment of one Court only. If my noble friend will allow me for once to differ from him, I do not think that is so. I think that the decision of the Privy Council would prevail, and must prevail. The decision is the decision of the Queen. It is not the decision of any body of men—it is the decision of the Queen herself, the fountain of justice administering justice throughout her Empire both at home and abroad. No man delivers that judgment personally, it is delivered in the name of the Queen herself. There is an appeal from the High Court to the Privy Council, and as the Privy Council has the power of reversing the opinion of the High Court, not only by mere comity, but in fact, the decision of the Privy Council would be superior to and would affect the judgment of the High Court, and no judge of the High Court in Australia would presume to say that the judgment of that Court should prevail against the judgment of the Privy Council. This point has been fully considered by those whose judgment the Government had a right to rely upon, and 45 it is their firm belief that that is the case. This is the view that, after remission of the state of things to the advisors of the colonies by their delegates, has been arrived at as a fair solution. I hope that the spirit which the noble Earl the Leader of the Opposition has shown us, is the unanimous feeling of this House—that really there is nothing by way of criticism that ought to cast a doubt on the efficiency of this great measure, which has been placed in the position it occupies mainly by the great efforts and discretion of my right hon. friend Mr. Chamberlain.
§ *LORD RUSSELL OF KILLOWEN
My Lords, I do not propose at this hour, notwithstanding the importance of the discussion, to occupy your Lordships beyond a moment or two. I confess, having listened to the whole of this debate, there has seemed to me to be an air of unreality about it except in one respect, namely, in the concurrence—the gratifying concurrence—in all the speeches delivered on both sides of the House in rejoicing that this measure is about to receive the assent of the Imperial Parliament. I say the tone of the debate is unreal, because one cannot shut ones eyes to the fact that, recollecting the history of this Bill, the enormous labour that its preparation involved, the necessity for the assents to the very terms of the Bill of so many widely diversified and widely apart interests, no one proposes to introduce an Amendment into the Bill, but we all understand that it is to be passed in the exact form in which it left the House of Commons; therefore our discussion is of an academic character. But I cannot pass without noticing the criticism of my noble and learned friend who has just sat down upon the speech of my noble friend near me (Lord Davey). The first point which it seems to me necessary to draw attention to is the effect of the original appeal clause as it stood in the proposition of the delegates. Now, I do not agree at all with my noble friend the Earl of Carrington, who opened the debate on this side of the House, in undervaluing, or regarding as an unimportant thing, the question of an ultimate appeal to the Queen in Council. On the contrary, I should have liked to see this Bill give unrestricted rights of appeal, subject to the leave of 46 the Privy Council, and subject to regulations with reference to the importance of the subject-matter in controversy and the like, but unrestricted liberty of appeal in every question in which other than purely Australian interests were concerned. For I regard that right of appeal to the Queen in Council, not merely as an important indication of the Imperial Sovereignty of the United Kingdom, and of this Imperial Parliament as its mouthpiece, but also as a not unimportant factor operating in the direction of a uniformity of system of law between the home country and the colonies, and even a not unimportant factor, working in the direction as far as varying circumstances may properly admit, of something approaching uniformity in the law itself. Now, as the Bill was originally presented this was its effect; that appeals were allowed in all matters except certain constitutional questions there referred to, and even in those questions appeal was allowed to the Queen in Council where any public interest was involved. This is the exact effect of the original clause as it stood, which clearly recognised the Privy Council as the paramount court. What is the clause as it now is? The clause as amended is this:—No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question howsoever arising as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States or as to the limits inter se of the constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to he determined by Her Majesty in Council. The High Court may so certify if satisfied that for any special reason the certificate should he granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.Now, what is the result of that? The result of that is this—and it has not yet I think been stated to the House. The result is to do away absolutely with the exercise of the Queen's prerogative in every one of the cases coming within that exception. It cuts down the prerogative of the Queen. It is not that it leaves it open to the Queen by those who advise her to say whether any appeal shall or not be permitted, but it makes it impossible for the Queen to grant permission in such a case. You will recollect that in order to make it quite clear that this is the effect upon 47 the prerogative of the Queen, the clause goes on to say—Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council.What is the consequence of that? The first observation I make is this—and I speak upon the authority of those more conversant with the matter than I can pretend to be—that these so-called constitutional questions arise much more frequently in Canada as between the Dominion Parliament and the Parliaments of the Provinces, or between the Parliaments of the Provinces them selves than between the Dominion Parliament and the Imperial Parliament. All those questions are now cut out of appeal.
§ *LORD RUSSELL OF KILLOWEN
Yes! but leave of the High Court, not of the Privy Council. I most heartily agree in the observation of my noble and learned friend near me (Lord Davey) that one would have thought that the very class of question as to the limits of constitutional power as between the Commonwealth and the States, or as between the States inter se, were eminently the class of cases which it was desirable from every point of view should be determined by a tribunal which stood aloof and apart from all questions of local interest and local prejudice. The third and last point to which I will call attention is this. While there is no appeal according to this clause from the High Court, except by leave of that Court, in the cases mentioned, there is an appeal from the decision of the State Court to the Queen in Council, and thereupon arises the conflict to which reference has been made—which Court is to prevail? I do not seek to dogmatise upon this matter, as to which there are obviously, from what my noble and learned friend has said, different opinions; but I fail to see anything in this Bill asserting directly or indirectly that where the decision of the Privy Council conflicts with the decision of the High Court the decision of the Privy Council is to prevail. I see nothing to that effect expressed certainly, and nothing I think 48 to be implied. When I remind your Lordships that the clause expressly says that the High Court shall be the final judge in the matter unless it chooses to give leave, surely that does lay a solid and reasonable foundation for the contention that it is thereby, as regards matters so dealt with in the clause, created the final Court, and therefore coordinate with the other final Court—namely, the Privy Council. It seems to me that that is a difficulty which will very likely arise. The High Court may well say, "We are co-ordinate in this matter, for the Imperial Parliament has said to us, 'You are to deal with it finally, unless you see some reason why you should not allow it to go further.'" Let me put an illustration. The High Court has dealt with a question coming before it in favour of a particular litigant; a question of a cognate character has arisen in another State Court, and that goes to the Privy Council; the Privy Council takes a different view. I think it is very doubtful how effect is to be given to that view by the High Court or in Australia. But suppose that in the province the decision of the High Court has been acted upon, rights adjudicated upon, interests transferred under that decision, how is all that to be undone? It seems to me that the conflict is inevitable. I admit that in other cases, outside the classes of cases as to which the High Court has exclusive jurisdiction, I think there is ground for saying that the Privy Council is the paramount controlling Court; but in the case I have put I cannot help thinking that difficulty may arise. I will only trouble your Lordships with this concluding observation. As a Home Ruler, which I am—I may be allowed to profess it in these days when it is not so popular as it once was—as a Home Ruler I rejoice at this Bill; I am delighted to see that the fullest powers are given to Australia to work out its own destiny by its own methods, and I have no doubt that it will be able to work out that destiny and fulfil it in complete harmony with the great interests of the Empire.
§ *VISCOUNT KNUTSFORD
I will not detain your Lordships for more than two minutes, but as I may not be able to be present at other stages of this Bill, I would like to say one word upon it. as one who has a genuine interest in the question, and who, whether in office or out 49 of office, has constantly urged upon Australian statesmen that they should endeavour to find a solution of these difficulties. The last speaker said that in some points of view this debate is not real; but I can assure him—and I am speaking for every noble Lord present now—that as to our satisfaction at this great question having been settled the debate is very real indeed. The difficulties in arriving at a solution of the many questions were very great—indeed, perhaps they have hardly been appreciated by those in this country who have not studied colonial questions. At one time there was, no doubt, an impatience of the delay, and a fear that the difficulties might not be overcome. In one sense it is a good thing, perhaps, that there has been that delay, because it is a good omen that this great Commonwealth has been established by law in a year in which the colonies have shown their sympathy with the mother country, and their loyalty to the Empire, and it is therefore not, perhaps, to be regretted that there has been some delay and some prolonged consideration of the question. Then, my Lords, the only other observation I would make is this. We all wish God-speed to the new Commonwealth, not only in their own interests but in the interests of the Empire; and if good sense and conciliatory spirit and toleration are shown in the management of the Commonwealth as they have been shown in getting over and solving the detailed difficulties in the course of the discussions in Australia and in this country, I am quite satisfied that there can be no doubt of the success of the Commonwealth. I for one most heartily desire that that success shall be complete.
§ *LORD BRASSEY
My Lords, if I venture to add two words it is because the last Convention, to whose labours we owe the Commonwealth Bill, was held in Melbourne, and I am reluctant to allow the opportunity to pass by of bearing to your Lordships the testimony of an eyewitness to the patriotic spirit, the ability, the patience, the mutual forbearance, and the entire absence of party spirit which marked all the proceedings of that Convention.
§ On Question, agreed to. Bill read 2a accordingly, and committed to a Committee of the whole House on Tuesday next.