AUSTRALIAN NATIVES' ASSOCIATION.

VICTORIAN BOARD OF DIRECTORS.

AUSTRALIAN :

LECTURE ON

The Constitution of the of Bill,

AS ADOPTED BY

THE NATIONAL AUSTRALASIAN CONVENTION AT ,

9th April, 1891.

Jr. H- TvL«,.J (1*PJ

F. W. Niven & Co., Printers, &c., and Ballarat. AUSTRALIAN FEDERATION.

THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA.

Although now brought within the range of practical politics for the first time, the Federation of Australia is no new subject. Indeed one is surprised on going through the records of Australian politics to find how old it is. It appears almost simultaneously ^vith the foundation in Australia of other colonies than . For just as clearly as the early colonists saw that the division of our island continent into separate self-governing colonies was absolutely necessary for the proper development of the material resources of its vast territory, so clearly did they see that the re-union of these separate colonies under a federation, wherebjr they would be united under one national Government without their separate administrations, legislatures, and local patriotisms being extinguished, would be as necessary for the full development of the national life of their people. The first move in the matter was in 1849, when a committee of the British Privy Council, appointed at the instance of Earl Grey, reported on the subject. At that time there were only jthree colonies on the mainland, viz., New South Wales, , and . The report of the committee was adopted by Earl Grey, and a bill to give effect thereto was introduced into the British Parliament in the following year, but meeting with was abandoned. The subject was subsequently con­ sidered by the legislatures of New South Wales and in 1853, and by the legislatures of New South Wales, Victoria, South Australia, and , between 1857 and I860. Although, however, there was a general unanimity of opinion as to the expediency of federation there was so little desire for action that nothing came of their labors, no definite step being taken to give practical effect to the federal idea till the establish­ ment of the Federal Council in 1883. In the meantime the subject Extract from Annual Report of the Victorian Board of Directors of the Australian Natives’ Association, adopted by the Annual Conference, March 14, 1893 :—

“The Board desires to express its great satisfaction at the action of •citizens on the several borders of the Australian Colonies in forming feder­ ation leagues. This movement appears to have been taken up in a hearty manner, and it is a pleasure to be able to record the fact that the native- born are playing a leading part in bringing these efforts to a successful issue. The formation, of leagues on the imaginary border-lines is one of the most gratifying events which have occurred in connection with this momentous •question during the past year. The Board now recommends that it should be an instruction from the Conference to branches that in each of them the question of Federation should be dealt with in a thorough manner. It is recommended that each branch should set aside two nights in the coming year for the discussion of a federal constitution, as well as the constitutions governing various other confederations ; and that as a means of assisting branches to carry this out, the Board of Directors for the ensuing year should take upon itself the responsibility of arranging for gentlemen to visit branches and lecture or otherwise deal with the subject. The information of this Board is that there are many of our leading orators and public men anxious to assist the Association in this connection in every possible way.”

With a view of assisting the members of the Association in the discussion above referred to, the Board has decided to circulate •a lecture on the Bill to constitute the Commonwealth of Australia, adopted by the National Australasian Convention at Sydney, on '9th April, 1891, which was delivered by Mr. G. H. Wise, then President of the Association, at Sale, on July 2nd, 1891, and subsequently at Warragul, Castlemaine, Kyneton, and Cobram. 4 was allowed to fall into the background of Australian politics, the aims and efforts of Australian statesmen being directed to the development of the resources, and the political and social advancement of their individual colonies. This naturally resulted in a feeling of rivalry springing up between the people of the separate colonies, causing a provincial spirit to be cultivated, and tending more and more to the development of a jealous and bitter rivalry. Had this feeling and spirit been allowed to take firm possession of the minds of the rising generation, it would, without doubt, have been attended with results disastrous to the welfare of Australia. In order to check this the A.N.A. was founded in Victoria in 1871, just when the first generation, so to speak of the native-born Victorians were attaining their majority. The avowed object of the Association was to wipe out all provin­ cial and hostile feeling between the native-born of the various colonies, to make them realise the fact that they all possessed the same native land, Australia, that their interests (no matter in what part of Australia they were born) were identical, and that their destiny was to found not a series of petty wrangling foreign states, but one great united Australian nation, which would com­ mand the Southern Seas—an aspiration worthy to inspire their lives—a field upon which they could exercise a legitimate and noble ambition. Having this object in view it was a necessary consequence that the Association’s watchword should be “ Feder­ ation,” and that that should be its favorite theme. For the last 20 years, accordingly, this Association (and it is the only organisa­ tion that I know of whose purpose was to bring about Australian Federation), has instilled into the minds of its members and their fellow , the sentiment of their common Australian nationality, and the necessity of federation. At our branch meetings, at our banquets, at our entertainments, and at public meetings throughout the length and breadth of Victoria has the subject of Australian Federation been discussed by our Associa­ tion, while in South Australia, , Western Australia, and New South Wales, kindred or semi-kindred associations of our fellow Australians have carried on the federal cause in those colonies. We have not only urged the subject upon the members of our Association, but owing to our meetings being always open to the public, and on the whole fairly well reported by the press, we claim to have familiarised the general public with it, and we think it is no vain boast to say that it is principally owing to the work of the A.N. A. that the question of Australian Federation has now been brought into the domain of practical politics throughout Aus­ tralia. Our work in the cause is not, however, done; indeed, the Most important part of it is now before us, that of achieving the practical result of our labor. 5

The Federal Convention. Recently, as you are all aware, the leading statesmen of the several Australian legislatures met together in Sydney and framed such a Federal Constitution as they considered their individual colonies could safely accept and federate under. That constitution is shortly to be submitted to the people of these colonies for their acceptance or rejection, and it behoves everyone who has the future of this great country at heart, and most certainly every member of this Association, to study that Con­ stitution Bill most carefully, to discuss it with his neighbours, to see that its provisions are fully understood, and the effect thereof deliberately weighed, and then to endeavour by all laudable means to secure its acceptance by the people of this colony. At the last quarterly meeting of the Board of Directors of our Asso­ ciation, held a week ago,* it was unanimously resolved to approve generally of that draft Federal Constitution Bill, and all the branches were directed to take every possible opportunity of publicly discussing the provisions, in order that the members of the Association and the public generally might be fully informed thereof, with a view to its acceptance by the public of this colony when submitted to them. In compliance with that resolution, we have assembled this evening under the auspices of the Sale Branch of the Association, to consider that measure. I accord­ ingly now invite your attention for a little, while I give you a general outline of the Federal Constitution Bill, with such brief explanatory remarks and comments on its provisions as the time at our disposal will permit. In doing so, let me say that I make liberal use of the arguments and language of the delegates in the convention debates.

The Federal Constitution Bill. The bill is a document complete in itself, having been framed as a bill ready to be introduced into the Parliament of the United Kingdom, constituting the Commonwealth, and declaring the constitution, which stands as a schedule or separate part of the bill. Its structure and language are concise, clear, and simplicity itself, and its draughtsman, Sir S. Griffith, well deserves the unqualified praise which has been bestowed by friend and foe upon him for it. It empowers the Queen with the advice of the Privy Council to declare by proclamation that the colonies which had adopted the constitution (and which it will be remem­ bered the convention resolved must not be less than three), and which were thereafter to be called “States” in lieu of “Colonies,” should be united in one Federal Commonwealth under the con-

\Tune, 1891. Grey) that he should be elected, and although Sir George had only two supporters on the division in the convention, on an amendment to give effect to his views, we are told he had a great many more actual sympathisers in that body. Now, I must con­ fess I cannot follow Sir in this matter. It appears to me that as the Governor-General is to be the Crown’s repre­ sentative, the Crown must have the right of appointment to the office. Furthermore, under the system of , which is embodied in this constitution, the office of Governor- General is not one to which the people of Australia are likely to aspire, because, as was pointed out by Mr. Deakin and Sir , it is that of a merely nominal head with little substantial authority, and partakes very much of the character of ceremonials; in short, in the words of the former, it is in the opinion of many “ a glittering and gaudy toy.” His salary is to be fixed by the Federal Parliament, but it is not to be less than ,£10,000 per annum. I sincerely trust it will never be more. We want no vice-regal court, with its vain pomp and etiquette, established in this new and democratic land, to cultivate “ slavish obsequiousness and lip-deep adulations,” and as the President of the United States of America as the responsible head of that great nation of 60 millions can maintain not only the dignity of his great office, but also social relations with his people, which Mr. James Bryce, in his famous work on the American Commonwealth, describes as eminently refreshing to a European observer, most certainly a Governor-General as the nominal head of a section of four or five millions of a nation, should be able to maintain the dignity of his much less important office for the same sum.

The Federal Parliament.

ITS CONSTITUTION. The Parliament, as I have mentioned, is to consist of two Houses, called the Senate and the House of Representatives, and there is to be a session of Parliament once at least every year. The Senate is to consist of eight members for each State, who are to be directly elected by the legislatures of the several States, and to hold office for six years, one half of each State’s Senators retiring every three years. The only qualifications re­ quired of a Senator are— (1) He must be over thirty years of age; (2) Must, when chosen, be an elector entitled to vote in some State at the election of members of the House of Representatives; (3) Must have been for five years at least a resident of the Commonwealth, and (4) must be a natural born or naturalised (for five years) British subject. These conditions are surely liberal enough. No property qualification at all is required. Any 6 stitution thereby established, and under the name of “ The Commonwealth of Australia.” Objection has been taken to this name, and when it was proposed in the convention an attempt was made to alter it, but it was adopted by the large majority of twenty-six to thirteen—exactly two to one., It has been objected to by some who appear to revere the monarchial form of govern­ ment, irrespective of how it may be administered, and who say the name Commonwealth savors of republicanism, and recalls to mind that it was the term applied to Britain during the time of Cromwell, when the head of the nation was called Protector instead of King, It was very clearly shown in the convention that it did not necessarily mean a republic at all; while as to its recalling the period of Cromwell’s rule being an objection, I should rather have thought that was a recommendation, for it recalls to mind a glorious period of British history, when the nation’s foreign affairs were administered with vigor and enter­ prise, and when at home the law was to every man the great rule of conduct and behaviour. The name is indeed an inspiring one, and as many leading delegates said, the more one thinks over the matter the more one likes the word. I am certainly surprised that while the name of the federation was shuddered at by some of our lip loyalists, lest it hinted at separation, they raised no objection to the abolition of the word “ colonies ” and the much more significant substitution of the independent name of “ states ” being bestowed upon the colonies forming the federa­ tion. Coming now to the Constitution itself, we find it is divided into eight chapters, dealing with—(1) The Parliament; (2) The Executive Government; (3) The Federal Judicature; (4) Finance and Trade; (5) The States; (6) New States; (7) Miscellaneous; (8) Amendment of the Constitution. The delegates had princi­ pally three federal constitutions before them to guide them in the framing of this measure, viz., the American, Canadian, and Swiss, but they did not literally copy any of them. They most nearly, however, followed the constitution of the United States of America. Indeed, this constitution may be said to be the American constitution amended so as to include the Crown and the system of responsible government. It provides for the government of the Commonwealth by a Governor-General repre­ senting the Crown, a Parliament of two Houses (the Senate and House of liepresentatives), and a Federal Executive or Ministry.

The Governor-General. The Governor-General is to represent the Crown, and be appointed by it as our present Governors are. Considerable difference of opinion existed as to the manner of his appointment, some contending warmly (notably that grand old man, Sir George 8 one in this colony possessing an elector’s right, who has been in Australia for five years, and is over thirty years of age and is a British subject, is eligible to become a Senator. The requirement of residence (although I think the period of five years too short) is sound in principle, and will be some guarantee of Australian knowledge and sympathy on the part of the Senator. Each Senator, including the President, is to have one vote, and if the voting is equal, the question is to be deemed lost, there being no casting vote. The House of Representatives is to consist of mem­ bers chosen every three years by the people of the several States, according to their respective numbers, and until the Common­ wealth Parliament otherwise provides, each State is to have a member for every 30,000 of its people, but none of the present colonies is to have less than four representatives, this being a direct concession to colonies with small populations. A census is to be taken every ten years, and a fresh apportionment of the representatives to the States is to be made thereon. The electors are to be the same persons as the electors of the Lower Houses in the respective States. In this colony, therefore, our representa­ tives for the Lower House of the Commonwealth would be elected by manhood suffrage. Each State is to fix its own electoral divisions for the purpose of returning members to the House of Representatives. The qualifications of a member of the House of Representatives are somewhat similar to those of a Senator. (1) He must be over 21 years of age ; (2) An elector entitled to vote for a member of the House of Representatives ; (3) A resident for three years in the Commonwealth, and (4) a natural born or naturalised three years’ British subject. Anyone there­ fore in Victoria who possesses an elector’s right, and has resided in Australia for three years, and is a British subject, is eligible to become a member of the Lower House of the Commonwealth. The House of Representatives will last for three years, subject to being dissolved at any time by the Governor-General, exactly similar to our own Legislative Assembly. Each member has one vote excepting the Speaker, who will only have a casting vote. The members of both Houses are to receive an annual allowance for their services, which, until the Commonwealth Parliament otherwise provides, is to be ,£500 a year. Provision is, of course, made for members of either House losing their seats on being disqualified by insolvency, conviction of crime, accepting an office of profit under the Crown, and such like. You will have observed that the Senate, like the American Senate, represents the several colonies as States, while the House of Representatives, as in America, represents the general population of the Federation. Each State, large or small, as in America, returns the same num­ ber of members to the Senate, while the number of members each 9

State has in the House of Representatives depends on the population, excepting that no State is to return less than four. You wiJl also observe that each State, as in America, is left to fix its own qualification for its electors for the House of Representa­ tives, provided that it is the same as the qualification for the electors of the Lower House of its own State legislature. Yery considerable discussion took place before this was agreed to, many contending that there should be one uniform qualification through­ out the Commonwealth, namely, manhood suffrage. It was, how­ ever, considered by the majority of the delegates that it would be interfering too much in detail with the States if the. Constitution or the Federal Parliament were to decide on what basis each State should elect its representatives, and that it was sufficient and safer on the whole to say that the electors should be the same as the electors for the Legislative Assembly in each State.

ITS POWERS. We now come to the very important question of the powers of the Federal Parliament. It is to be empowered to make such laws as it considers necessary with respect to the following matters :—(1) The regulation of Trade and Commerce with other Countries, and among the several States; (2) Customs and Excise and bounties, but so that duties of Customs and Excise and boun­ ties shall be uniform throughout the Commonwealth, and that no tax or duty shall be imposed on any goods exported from one State to another ; (3) Raising money by any other mode or system of tax­ ation; but so that all such taxation shall be uniform throughout the Commonwealth ; (4) Borrowing money on the public credit of the Commonwealth; (5) Postal and Telegraphic Services; (6) Mili­ tary and Naval Defence of the Commonwealth and the several States, and the calling out of theForces to execute and maintain the laws of the Commonwealth, or of any State or part of the Common­ wealth ; (7) Munitions of War ; (8) Navigation and Shipping ; (9) Ocean Beacons and Buoys, and Ocean Lighthouses and Lightships; (10) Quarantine ; (11) Fisheries in Australian waters beyond terri­ torial limits; (12) Census and Statistics; (13) Currency, Coinage, and Legal Tender ; (14) Banking, the Incorporation of Banks, and the Issue of Paper Money; (15) Weights and Measures ; (16) Bills of Exchange and Promissory Notes; (17) Bankruptcy and Insol-1 vency; (18) Copyrights and Patents of Inventions, Designs, arid Trade Marks ; (19) Naturalization and Aliens ; (20) The Status in the Commonwealth of Foreign Corporations, and of Corporations formed in any State or part of the Commonwealth ; (21.) Marriage and Divorce ; (22) The Service and Execution throughout the Commonwealth of the Civil and Criminal Processes and Judgments of the Courts of the States • (23) The recognition throughout the 10

Commonwealth of the Laws, the Public Acts and Records, and the Judicial Proceedings, of the States ; (24) Immigration and Emigration; (25) The influx of Criminals; (26) External affairs and Treaties ; (27) The relations of the Commonwealth to the Islands of the Pacific ; (28) River Navigation with respect to the common purposes of two or more States, or parts of the Common­ wealth ; (29) The control of Railways with respect to transport for the purposes of the Commonwealth ; (30) Matters referred to the Parliament of the Commonwealth by the Parliament or Parlia­ ments of any State or States, but so that the Law shall extend only to the State or States by whose Parliament or Parliaments the matter was referred, and to such other States as may after­ wards adopt the Law; (31) The exercise within the Common­ wealth, at the request or with the concurrence of the Parliaments of all the States concerned, of any Legislative powers with respect to the affairs of the territory of the Commonwealth, or any part of it, which can at the date of the establishment of this Constitu­ tion be exercised only by the Parliament of the United Kindgom or by the Eederal Council of ; (32) Any matters necessary or incidental for carrying into execution the foregoing powers and any other powers vested by this Constitution in the Parliament or Executive Government of the Commonwealth, or in any department or officer thereof. Over the foregoing subjects the Eederal Parliament will have paramount, but not exclusive juris­ diction. That is to say until the Federal Parliament exercises its powers the existing laws will remain in force, and until it makes laws to the contrary the State Legislatures may go on exercising their existing powers. When, however, the Eederal Parliament decides that it is necessary for it to make laws on any of the fore­ going subjects, then the powers of the States will be excluded, but only to the extent to which the Eederal Legislature chooses to exercise its functions. In addition to these provisions the Eederal Parliament is to have exclusive power to deal with the following subjects :—(1) The affairs of people of any race with respect to whom it is deemed necessary to make special laws not applicable to the rest of the community ; (2) The government of any territory which may become the seat of government of the Commonwealth, and of all places acquired with the consent of the State Parliament for defence purposes, quarantine, or any other purposes of general concern • (3) Matters relating to the departments of the public service taken over by the Commonwealth; (4) Any other matter declared by the Constitution to be within the exclusive powers of the Federal Parliament. The subjects thus enumerated in sections 52 and 53, chapter i., are the only ones the Eederal Parliament can deal with; everything else is left to the State Legislatures. You will thus see, to quote Sir S, Griffith, that it is not proposed 11 to transfer from a State Parliament to tlie Parliament of the Commonwealth any power which can be better exercised by the State Parliament or the exercise of which by the Parliament of the Commonwealth is not necessary for its good order and govern­ ment. This is the proper place to point out the exact position of the Federal Parliament. It is not like the British Parliament, an omnipotent body, but like the American Congress and all Federal Parliaments, it is bound by the constitution. It can only make laws for certain purposes specified in the constitution, and in legislating for these purposes it must not transgress any provision of the constitution itself. If it should do so—if it should pass some law intentionally or inadvertently beyond the powers given to it by the constitution, that law will be treated by the federal courts as ultra vires and invalid, just in the same way as a by-law made by a municipal council outside its powers, would be held by our Supreme Court to be invalid. The Federal Supreme Court will, therefore, play as important a part in our Commonwealth as the Federal Court has done in America; and may a favouring providence give Australia, to preside over that court, such a special gift as Mr. Bryce tells us the Americans have been wont to regard John Marshall, their Chief Justice from 1801 to 1835. The important question of Money Bills is provided for separately. This question, as you are all aware, proved the lion in the path of the delegates, and was the one upon which the larger question of State Rights was raised. Some of the delegates (the majority) desired that both houses should have equal powers with respect to these bills as they had on other subjects, while others (who were in the minority), notably our own Lower House delegates and the Premiers of New South Wales and South Australia, insisted most strongly that the Senate should not be allowed to amend such bills. So hot did the war wage on this question, that at one time the convention came very near breaking up over it. A com­ promise, however, was finally agreed to by the acceptance of the practice adopted in regard to Money Bills by the South Australian Legislature, that is to say the Senate, like our Legislative Council, is to have the power to reject, but not amend in detail bills for the annual appropriation of revenue, and for the imposition of taxes. They may, however, as in South Australia, point out to the Hpuse of Representatives any objectionable items, and the latter will then have an opportunity of omitting them if they think fit. If they refuse to strike them out, then the Senate will either have to pass them, or take the responsibility of rejecting the whole bill. In order that the Senate may not be unfairly coerced careful provision is made against tacking, that is the putting of a special provision into a bill dealing with the general subjects of appropriation or taxation. It is provided that a bill dealing with taxation shall, excepting as 12

regards custom or import duties, deal with one subject of taxation only, and that any extraordinary expenditure shall not be in­ cluded in the ordinary appropriation bill. Of course the House of Representatives has the sole power of originating money or taxation bills. THE ROYAL ASSENT. Bills, after being passed by the Parliament, are to be pre­ sented to the Governor-General for the Queen’s assent, and he must either assent or withhold his assent, or reserve it for the Queen’s pleasure to be made known. Power is also given to the Governor-General to return a bill to Parliament, and to trans­ mit therewith any amendments he may desire to be made therein, and the Parliament may deal with such proposed amendments as it thinks fit. It is also provided that the Queen-in-Council may, within two years after any bill has been assented to by the Governor-General, disallow it. Any bill reserved for the Queen’s assent will lapse .unless assented to within two years. I should not have thought it necessary to mention these very formal provisions respecting the Royal assent had not a leading politician in New South Wales thought fit to condemn some of them— notably that respecting the Governor-General’s power to return a bill with suggested amendments—as dangerous innovations. As a matter of fact, exactly the same powers are embodied in our own Constitution, and have been in force in this colony for over 30 years. Read literally, these provisions would be most object­ ionable, but they, like the rest of the bill, must be read and con­ strued in the light of the constitutional principles surrounding responsible government. For instance, theoretically the Queen has the power of vetoing any proposed law, but practically that power has ceased to exist. It has never been exercised so far as the legislation of the British Parliament is concerned since the days of William III., excepting once in the time of Queen Anne under special circumstances, and could not now be exercised without producing little short of a revolution. It has, it is true, been occasionally exercised by the present Sovereign on the advice of the British Ministry as regards colonial legislation, causing, how­ ever, on each occasion the relations between the colony and the mother country to be considerably strained ; but I feel satisfied that it will never be exercised or even attempted to be exercised with respect to the Parliament of the Commonwealth of .Aust­ ralia, and if attempted will most certainly not be tolerated.

The Executive Government or Federal Ministry. The second chapter of the bill provides for the establishment of what we know as responsible government; that is to say, 13

“ responsible in name and form to the head of the State, and in substance to the Parliament of the Commonwealth, whose execu­ tive authority will be co-extensive with its legislative power.” The, Executive Government is declared to be vested in the Queen, and exercised by the Governor-General as her representative by and with the advice of an Executive Council or Ministry, appointed by him exactly as ours is by our Governor. The number of Ministers, until altered by the Eederal Parliament, is not to exceed seven, and they may be members of Parliament, but it is not compulsory. In this respect the Eederal Ministry will differ from our Victorian Ministry, as four of the latter must be members of Parliament. The American Ministers, on the other hand, are not allowed to be members of Congress. The Federal Ministry will also differ from our Ministry in the fact that a member of Parliament taking office in the Eederal Ministry will not, as in Victoria, have to go before his constituents for re-election. Although this provision is approved of by many people, I confess that, personally, I think the practice of a member accepting office having to go before his constituents for re-election, and so submitting his action in taking that important step for their approval, is a good healthy one, and keeps a member in touch with the people he represents. Until the Eederal Parliament otherwise provides, the sum of £15,000 per annum is to be allotted to the Ministry for their salaries. While this chapter of the bill was under discussion, an amendment of the most important nature and of very far reaching consequence was made in it at the instance of Mr. Wrixon and Mr. Deakin (who remembered our Supreme Court’s decision in the Ah Toy case), whereby it was provided that the Federal Ministry should be “ the Queen’s Ministers of State for the Commonwealth.” The importance of this provision cannot be overestimated. It, in the words of Mr. Wrixon, clothes the Eederal Ministry with all the vast constitutional powers which under the system of the English Government belong to the responsible Ministers of the Crown, and invests them in regard to all Australian matters with exactly the same presumptions of authority and ratification from the Crown as apply to the English Ministers with regard to English matters, and gives a Minister in Australia the same position with regard to the Crown in all matters Australian, as a Minister in England has with regard to all matters English, and, in the words of Mr. Deakin, gives us absolute power to administer the sovereignty of the State, limited only so far as it relates to the Commonwealth, as to exclude all prerogatives relating to the Empire outside the Commonwealth. The appointment and re­ moval of all civil servants until Parliament otherwise provides is vested in the Governor-General-in-Council—as was the case in 14

Victoria before the Public Service Board was appointed—and the command in chief of the forces is vested in the Governor- General as the Queen’s representative. While general matters are left to be dealt with by the Federal Legislature from time to time, as they may think fit, it is provided that the control of, and obligations respecting customs and excise, post and telegraphs, military and naval defence, ocean beacons and buoys, and ocean lighthouses and lightships and quarantine, shall be at once taken over and assumed by the Executive Government of the Common­ wealth, and the fair values of all lands, buildings, works and materials used in connection with any of those departments are to be paid for by the Commonwealth to the State from which they are taken over.

The Federal Judicature. The third chapter of the bill empowers the Commonwealth Parliament to establish a Supreme Court of Australia to consist of a Chief Justice and not less than four judges, who, like our Supreme Court judges, are to hold office during good behaviour, and be appointed by the Governor-General-in-Council, and remov­ able on an address from both Houses of Parliament. It is to have jurisdiction to entertain appeals from the Supreme Courts of the several States, and the Parliament of the Commonwealth is empowered to provide that all appeals shall be taken to that Court instead of to the Privy Council, and that its decision shall be final in all cases excepting where the public interests of the Commonwealth or of any State, or of any other part of the are concerned, when an appeal to the Queen-in­ Council may be made. The present general appeal to the Privy Council will, therefore be abolished, for there is little doubt but that the Federal Parliament will exercise the power thus given to it of making the appeal to the Supreme Court of Australia, as our National Court, final, holding with Sir John Downer, that “ we have reached a stage of national life in Australia in which we are fairly competent to manage our own concerns not merely political but judicial as well.” On this question of virtually abolishing the appeal to the Privy Council, the convention was almost equally divided, the clause being carried by a majority of two only. I think, however, that the minority were actuated more by sentiment than anything else, for there can, I think, be little doubt but that in the interests of Australia—and let us at all times remember that it is in those interests alone that the federation is proposed—it is absolutely necessary to our national life, if we wish to make Australia self-sufficing, that the supreme final authority in judicial matters should be transferred to the Australian judiciary. The Federal Parliament is empowered also 15 to establish other federal courts to administer the laws in different parts of the Commonwealth, and to give those courts jurisdiction in certain cases mentioned in section 7, chapter iii., which may be either exclusive or concurrent with that of the courts of the State. Trial by jury is preserved in all indictable offences cognisable by any federal court, and every such trial must be held in the state where the offence has been committed. It is also provided that the Commonwealth or a State cannot be sued without its consent.

Finance and Trade. The next chapter deals with the subject of finance and trade, and provides that the Federal Legislature shall have the sole power to impose custom duties and also excise duties upon those articles upon which custom duties are collected, and to grant bounties, but that power is not to be taken away from the States until the Federal .Parliament has imposed such duties, and once uniform duties of custom are imposed for the Commonwealth then the powers of all the States to impose duties of custom or excise, or to grant bounties, are to come to an end. When a uniform tariff is imposed the duties will be collected by the Federal officers, and with the control of customs and excise will pass over the necessary property belonging to them. In the meantime the present laws will continue, but as soon as the uniform duties are imposed the trade of the Commonwealth by any means is to be absolutely free. That the tariff to be imposed will be a protectionist tariff there is not the slightest doubt. It is noteworthy, for instance, as Mr. Deakin stated a few weeks ago at a meeting of the Essendon Branch, that out of the 45 members of the Conven­ tion only five were freetraders. Victoria, South Australia, Queensland, Tasmania, and Western Australia have already protectionist tariffs, while New South Wales, the last stronghold of freetrade, has just returned a protectionist majority to their Legislative Assembly. No more mistaken idea exists than that the proposed federation is a design of the freetraders to overthrow our protective policy. On the contrary, freetraders see that pro­ tection is becoming more and more settled as the policy of all democratic countries, and that it is better to secure the reality of intercolonial freetrade than continue fighting for the shadow of general freetrade. If there was one thing in which the Convention delegates were unanimous, it was in the conviction that protection would be the Federal fiscal policy, and I would ask every pro­ tectionist who has any doubt on the subject to read the Convention debates and see what the delegates said on that subject. The revenue of the Commonwealth under these provisions will be much greater than its expenditure, and very considerable difficulty was experienced by the delegates in dealing with the disposal of the 1G annual surplus of many millions which the Commonwealth will start with. After'lengthy discussion, it was determined that the expenditure should be charged to the several States in proportion to the numbers of their people, and the surplus should, until uniform custom duties are imposed, be returned to the several States in proportion to the amount of income raised therein, sub­ ject to certain what I may call technical provisions set out in the bill. After uniform custom duties are imposed, the surplus is to be returned in the same manner and proportion until the Federal Parliament otherwise provides. There is no doubt that consider­ able difficulty will be experienced in returning the surplus, and dissatisfaction and inconvenience caused, not to speak of the dangerous temptation to wasteful expenditure that a large surplus may be to the Federal Government, and the probabilities are that the Federal Parliament and the Parliaments of all the States will at an early date exercise the power given in section 13 of this chapter, and make provision for the Commonwealth taking over and consolidating the public debts of the States on such a fair basis as will absorb all the Federal revenue. Until the Federal Parliament otherwise provides, the laws of the several States with reference to the receipt of revenue and the expenditure of money on account of the government of the colony and the review and audit of such receipt and expenditure shall apply to the receipt of revenue and the expenditure on account of the Commonwealth. Equality of trade i& secured by a provision that preference is not to be given by any law or regulation of commerce or revenue to the ports of one part of the Commonwealth over those of another part of it, and by empowering the Federal Parliament to prohibit or annul any law or regulation made by any State or by any authority constituted by any State having the effect of derogating from freedom of trade or commerce between the different parts of the Commonwealth.

The States. ' Chapter v. deals with the individual states forming part of the Commonwealth. The first clause is, as Sir S. Griffith said, a very important one, and ought to remove from everyone’s mind the impression which some have, that the proposed Federal con­ stitution is a conspiracy against the liberties of the States. That clause says :—“ All powers which at the date of the establishment of the Commonwealth are vested in the Parliaments of the several colonies, and which are not by this constitution exclusively vested in the Parliament of the Commonwealth, or withdrawn from the Parliaments of the several States, are reserved to and shall remain vested in the Parliaments of the States respectively.” That is to say all existing rights are reserved, excepting those taken away by 17

the constitution, and State legislation remains until superseded by Federal legislation, even in those matters which the Federal Par­ liament has power to deal with. If any State passes a law incon­ sistent with a law of the Commonwealth, the latter prevails, and the State law to the extent of the inconsistency is invalid. Sub­ ject to the provisions of the Federal constitution, the constitutions of the several States continue as at the date of the establishment of the Commonwealth, until altered by their own Parliaments, in accordance with the provisions of their own constitutions. Two important alterations are, however, made with respect to the State Governments. First, all references or communications re­ quired to be made by the Government of a State to the Queen, are to be made through the Governor-General, the latter being the only means of communication, so to speak, with the outer world. Such a provision was absolutely necessary, for indeed one of the very fundamental ideas of a Federation is, as was said in the Con­ vention, that so far as all outside nations are concerned, the Federation shall be one nation; that we shall be to the outside world, including Great Britain—Australia speaking with one voice, that of the Government and Parliament of the Common­ wealth, representing the whole people, and as such making a voice that will be respected throughout the world. One is greatly surprised, therefore, to find that a strong attempt was made, led by Mr. Gillies, to omit this provision, but it was defeated, and the clause carried by a majority of six. The other important alteration is the provision giving power to the Parliament of a State to make such provisions as it thinks fit for the appointment of the State Governor, his term of office and removal therefrom. This clause does not necessarily alter the present mode of appoint­ ment by the Crown, but gives each State power to alter it and provide for the election of its Governor if it thinks fit. It is a very desirable power for a State under the Federation to possess, and fortunately was carried, although only by the small majority of one. It is also provided that members of the State Legislatures shall not be members of the Federal Legislature, and vice versa. I certainly join with Sir S. Griffith and Mr Play ford, the Queens­ land and South Australian Premiers, in disagreeing with this provision. I consider it is a decided mistake, and one that for many years will act to the great detriment of the State Legis­ latures. In our own colony it will deprive us of between forty and fifty of our best public men. As these legislatures are left with very large powers, it is desirable that we should have the best men we can get in them. On the other hand, we re­ quire to return our best men as our representatives in the Federal Parliament, and I see no valid reason why the electors, if they think fit, should not be able to elect a man to both legislatures, 18 something after the manner in which a man may now be elected both to one of our local governing bodies, and to our Victorian Parliament. Other provisions respecting the States are that a State is prohibited from levying any import or export duties, ex­ cept those necessary for executing the inspection laws, any of which may be annulled by the Commonwealth Parliament. A State is also prohibited from imposing without the consent of the Parliament of the Commonwealth, any duty of tonnage, or raising or maintaining any military or naval force, or imposing any tax on the property of the Commonwealth, the latter being also pro­ hibited from taxing the property of a State. It is also provided that a State shall not coin money or make anything but gold and silver a legal tender in payment of debts, and shall not make any law prohibiting the free exercise of any religion. A State is also prohibited from making or enforcing any law abridgingthe privilege or immunity of the citizens of other States of the Commonwealth, and from denying to any person within the jurisdiction the equal protection of the law. On the other hand, the Commonwealth is bound to protect every State against invasion, and, on the appli­ cation of the State Government, against violence, that is to say the Commonwealth Government cannot interfere to put down any local riot or disorder unless the State Government asks it to do so.

New States. With respect to the admission of new States—to quote Sir S. Griffith—into the Commonwealth, it is proposed to let all the existing States which do not come in at once to come in after­ wards on the same terms, and then to allow the Parliament of the Commonwealth to admit other States, formed by the subdivision of the present colonies from time to time, and in doing so to impose conditions as to the extent of representation in either House of the Commonwealth Parliament, or otherwise, as it thinks fit. That Parliament is also empowered to make laws for the pro­ visional admission and government of any territory acquired by the Commonwealth, either in Australia or in the Pacific, which is not fit to be admitted to the full rights of a State. Power is also given with the consent of the State or States concerned to alter the limits of States, and to form a new State.

The Capital of the Commonwealth. The vexed question, although there is really very little in it, of the seat of Government or capital of the Commonwealth is left to be determined by the Federal Parliament. Until it so deter­ mines, the Parliament is to meet at such place within the Com­ monwealth as the majority of the State Governors, or in the event of their being equally divided, the Governor-General shall decide. 19

Amendment oe the Constitution. Lastly, we come to the very important question of the amend­ ment of the constitution, which is to be effected in the following manner:—The proposed amendment must be passed by an absolute majority of the Senate, that is the States’ House, and of the House of Representatives, that is the people’s House, and is then to be submitted to conventions to be elected by the electors of the House of Representatives in each State, in such manner as the Commonwealth Parliament prescribes, and who are to vote- upon the proposed amendment. If the amendment is carried by the conventions of the majority of the States, and if the people of the States whose conventions approve of the amendment are also* a majority of the people of the Commonwealth, the amendment is then to be presented for the Queen’s assent to become law. But it is expressly provided that no amendment diminishing the pro­ portionate representation of any State in either House of the Commonwealth Parliament, or the minimum , number of the representatives of a State in the House of Representatives, shall become law without the consent of the Convention of that State. You will thus see that the people, and they alone, can alter the Federal Constitution, and that to it will apply the words of' James Wilson, of Pennsylvania, when, in speaking in the Pennsyl­ vanian Convention in 1788 of the American Constitution, he said, “ The truth is, that in our Governments the supreme, absolute, and uncontrollable power remains in the people. As our constitutions • are superior to our legislatures, so the people are superior to our constitutions.” .

Concluding Remarks. Such is an outline of the draft bill to constitute the Common­ wealth of Australia, which is now* being discussed by the Par­ liaments of the Australian colonies, previous to being submitted by the-m on the recommendation of the Convention for the approval or otherwise of the people of Australia. Brief as have been my remarks thereon, I trust that those who have honoured me with their attendance this evening have acquired some slight knowledge of this all-important document, upon which we will shortly be called to express our opinion at the ballot box. And let me say that I most thoroughly concur in the hope expressed by our Board of Directors that the question will be submitted direct to the people free from all personal or party complications, and that the clear and unmistakable “Aye” or “Ho” of the indi­ vidual manhood of Victoria will be recorded thereon. It is, without exception, the most momentous vote that we have yet been called

*July, 1891. 20

‘upon to give, for it is fraught with good or ill not only for our colony, but for all Australia. Let us consider the matter well and thoroughly. Are we in favor of Federation ? Almost every one answers u Yes.” But it is no use saying yes if we are pre­ pared to oppose all Federal schemes except our own pet scheme. It is a good saying that those who want the end must want the means. We must remember that there are other colonies' views to be considered as well as our own, and whose interests are to be conserved. Victoria, because she is the foremost, and because she has the largest population, is not going to annex and swallow up the other colonies. She asks them, and they ask her to federate on equal terms, fair and just to all. To accomplish that, the true spirit of compromise must be displayed. No Federation was ever accomplished without it, and none will ever be. As for losses which the individual colonies will suffer by federating, we will temporarily all lose something, but the ultimate gain will be infinitely greater than anything that may be temporarily lost. And let me remind the protectionists in this colony that they must not estimate their possible losses by the past, for until recently while closely protected ourselves, we have had the run of Australia. Now the other colonies are closing their doors, and the last big door, that of New South Wales, will shortly be closed also, and we shall be shut up within ourselves.* This feature must not be forgotten. The question therefore is not, do we approve of every line of the bill ?—probably no one does, and there never will be a bill drafted that everyone will approve of line by line—but, taken as a whole, is it such a constitution as we can safely accept ? Does it, in our opinion, contain within it, as claimed by its draughtsman, a broad and just foundation upon which a Commonwealth may be established in the Southern Seas that will dominate these seas, and of which any man may be proud to be a citizen ? Speaking both in my private capacity as a Vic­ torian, holding protectionist and liberal views, hnd in the repre­ sentative capacity which I have the honour to hold as President of the Australian Natives7 Association in Victoria, I say em­ phatically yes. It contains a more democratic constitution than is possessed by any of the Australian colonies at this moment. No property qualification is required for members of either House. The House of Representatives will be elected by the electors of the Lower House in each colony, which in this, as in almost all of the colonies, means a manhood suffrage basis, restricted already in some, and before long to be so in all to the one man one vote principle. The Senate is to be elected by the legislatures in each State, the larger House in each of which is the popular chamber,

*Since this lecture was delivered, New South Wales has adopted a protectionist tariff. 21; thus giving the people a preponderating influence in the election of the second chamber of the Commonwealth. Once this constitu­ tion is passed, we will have under a strong democratic Government, a real Government of Australians, for Australians, and by Aus- tralians£fthough nominally by the Crown. We shall,.as Sir said, be out of leading strings, and going alone, free from the interference of the British Parliament, who by this constitution will have given us leave once and for all to manage by ourselves, while as regards the Executive Government, our Eederal Ministry will be the Queen’s Ministers of State for the Commonwealth, and we shall thus, to quote that statesman’s words, “ have nothing more to do with the Imperial Government, except the link of the Crown.” While above all, it contains within itself full power for the people to amend it as they desire. Remember that though federation may be delayed it is as certain to be ultimately effected as that the sun will rise to-morrow. Never, however, can circumstances be more favorable than they are now. We are at peace with the world, and there is no vexing question between the colonies. If we miss this opportunity, we may be on some future occasion hurriedly forced to federate for our common preservation in time of national danger and disaster, when our local fears and jealousies having in the meantime materially increased, the adoption of a federal constitution will be attended with enormous difficulties,, while the then pressing necessity of adopting some basis of union may cause us to accept a much less perfect and much less satisfac­ tory constitution than that which is now presented to us. One word as to suggesting amendments in the present bill. All the Parliaments claim the right to amend the present bill as they think fit. That is a proper claim, but I sincerely trust that the right will not be exercised. Remember what the present bill is. It is a compromise measure agreed upon by the leading politicians of all the colonies; such a compromise as they felt justified in accepting and recommending their colonies to accept. If, how­ ever, each or any Parliament amends the measure, there must be another convention, and how is that convention to act'? It will be composed of men sent there without any authority to compro­ mise at all, but charged with the mandate of their Parliaments and their people to insist upon the bill as amended by them. If, in face of that charge they did compromise, and went back with the draft Constitution to their own people, the same farce would be repeated again, and there would be no finality. Considering all these circumstances carefully, with a full knowledge of the steps leading up to the holding of the recent convention, which in each colony were free from all party politics, and weighing deliberately the provisions of the Constitution Bill as adopted by that convention, our association urges its members to vote for it& 99

acceptance, and to use all laudable means to induce their fellow -citizens to do likewise, and so hasten the time when— All our sundering lines with love o’ergrown, Our bounds shall be the girdling seas alone. To my fellow Australians I especially commend the'^measure and the importance of the vote they can give on this question. It really rests with them, for in this colony (and I imagine it is about the same in the others) they number over three-fourths of the population, while if we eliminate all under 21 years of age, there will still be left so large a proportion of native-born voters that they can, if they choose, carry the question at the polls. If they succeed in doing this, the Australian Natives’ Association will have proved that Mr Gillies was right four years ago when he said the Australian Natives’ Association was “ likely in future to be of more advantage to these colonies than any other organi­ sation.” I believe, however, that not merely the native-born, but the people of Australia generally, when they thoroughly understand the provisions of this constitution, and see the full effect and benefit thereof, will unhesitatingly accept it. They will, to quote the words of one of our Victorian Delegates, a member of our Association (Mr. Deakin), see in this, “the first pulse beat of their national life. They will see the possibilities of the future, which even the most sanguine will not dare to portray, opening before them. . . . They will feel that the national spirit has now a chance of embodying itself in this Commonwealth in a higher, a broader, and a wider form than has ever been possible in the past. They will see in this enlargement of their political, their social, and their commercial life, new ideals, and they will see that by taking the first step upon this path of national development they have entered upon a new course, which will promise to them in the future advantages no less great in all these departments than their independent exertions have achieved for them in the past,” ultimately “ resulting in the last instance,” to use the words of Mr. Clark, the Attorney- General of Tasmania, “in the creation of that Australian nation which will possess and accept the dignity and the responsibility of a nation among nations, and which will be worthy of its Anglo-Saxon origin to co-operate in the advancement and preser­ vation of the civilisation of the world.”

F. W. Niven & Co., Printers, &c., Melbourne and Ballarat.