industrial undertaking formed, say, in the United Kingdom, to carry on some great commercial enterprise in Australia-or is it confined to cases in which the interests affected are only those of the government of other parts of Her Majesty's dominions? If the latter is the true meaning, the proviso would have little or no operation. If the former, no task can be conceived more difficult than that of deciding whether or not the condition of the Article has been satisfied. The view taken in the Memorandum of the Delegates is that the prerogative of granting leave to appeal to the Privy Council from the Supreme Courts of the several Colonies is unaffected, and that Article 74 only applies to appeals from the High Court of the Commonwealth. This is very doubtful, and is only one of the many difficult questions of construction which would arise upon this Article. The Article appears to have been framed under the impression that the only appeal from the Supreme Courts of the Colonies was to be to the High Court of the Commonwealth, and its effect upon the right of Her Majesty to grant leave to appeal to the Privy Council from the Judgments of Supreme Courts of the Colonies is problematical. If, however, the view taken by the Delegates on this point be correct, the result will be that in a Constitutional case a litigant defeated in the Supreme Court of a State might appeal at his option either to the High Court of the Commonwealth or to the Privy Council. The successful party might prefer the latter, but would have no choice. Again, if the Delegates' view as to the construction of the Article is correct in the case of a decision by a Superior Court with which neither litigant is satisfied, there may be cross appeals, one by one party to the High Court, and the other by the other party to the Privy Council. The decisions of both of these Courts may be final, and if they happen to disagree, it is difficult to see what will be the consequence. Further, under Article 74, it would in many cases be possible for a litigant to present a Petition to the Queen in Council for special leave to appeal, on the ground either that the question at issue did not involve the interpretation of the Constitution, or that public interests were involved, and on this Petition there would be a preliminary argument on either or both of these points. To pass this Article in its present form would be to introduce confusion and uncertainty in a matter in which it is desirable above all others that there should be clearness and certainty. The difficulty of construing it forms an insuperable obstacle to its adoption by the Imperial Parliament without modification or some overriding clause in the Bill to control its operation. But there are other and graver objections to the Article. From the proceedings of the Convention, it would appear to have originated to some extent in objections to the present constitution and working of the Judicial Committee of the Privy Council. The administration of justice by that Tribunal has been, on the whole, such as to command the confidence of the Empire. But apart from this consideration, the time is specially inopportune for any proposal to curtail its jurisdiction. Proposals are under consideration for securing a permanent and effective representation of the great Colonies on the Judicial Committee, and for amalgamating the Judicial Committee with the House of Lords, so as to constitute a Court of Appeal from the whole British Empire. It would be very unfortunate if Australia should choose this moment to take from the Imperial Tribunal the cognizance of the class of cases of greatest importance, and often of greatest difficulty. Article 74 proposes to withdraw from the Queen in Council matters involving the interpretation of the Constitution. It is precisely on questions of this kind that the Queen in Council has been able to render most valuable service to the administration of law in the Colonies, and questions of this kind, which may sometimes involve a good deal of local feeling, are the last that should be withdrawn from a Tribunal of appeal with regard to which there could not be even a suspicion of prepossession. Questions as to the constitution of the Commonwealth or of a State may be such as to raise a great deal of public excitement as to the definition of the boundaries between the powers of the Commonwealth Parliament and the powers of the State Parliaments. It can hardly be satisfactory to the people of Australia that in such cases, however important and far-reaching in their consequences, the decision of the High Court should be absolutely final. Before long the necessity for altering the Constitution in this respect would be felt, and it is better that the Constitution should be enacted in such a form as to render unnecessary the somewhat elaborate proceedings which would be required to amend it. Adelaide Debates, p. 986. But it must be further observed that matters involving the interpretation of the Constitution may raise questions of the utmost gravity, not only between the Commonwealth and the separate States, but also as between the Commonwealth and the States on the one hand, and other parts of Her Majesty's dominions or foreign countries on the other. Among the matters on which the Parliament may make laws for the Government of the Commonwealth is comprised (Article 51, paragraph 10) fisheries in Australian waters beyond territorial limits. The interpretation to be put on the Constitution in this matter may most seriously affect British vessels, and particularly vessels from New Zealand. Grave questions may arise as to what fisheries beyond territorial limits are to be deemed to be Australian fisheries, and as to the class or classes of persons on whom the laws of the Commonwealth as to this matter will be binding. It is hardly reasonable to expect that inhabitants of other parts of the Empire should be finally concluded in such matters by the decision of the Australian Court. Another head on which the Parliament of the Commonwealth has power to legislate is that of external affairs (Article 51, paragraph 29). As has already been pointed out, a law might be passed by the l'arliament of Australia with reference to the subject of foreign enlistment. The consequences of such legislation might involve the Empire in difficulties with foreign Powers. It is not reasonable to withdraw from the Imperial Tribunal the right of deciding whether a measure of this class is or is not invalid as being in contravention of Imperial legislation, or as to its true construction. The legislation of the Parliament of the Commonwealth may affect British shipping coming from the United Kingdom or British possessions. The Merchant Shipping Act, 1894, makes (sections 735-736) special provision for legislation in a British possession with regard to vessels there registered, and with regard to the coasting trade in British possessions. Having regard to the interests which may be affected by legislation under this head, it appears essential that there should be the possibility of an appeal to the Queen in Council. The question of the right of appeal must also be looked at from the point of view of the very large class of persons interested in Australian securities, or Australian undertakings, who are domiciled in the United Kingdom. Nothing could be more prejudicial to Australia than to diminish the security felt by capitalists who desire to invest their money there. One element in the security which at present exists is, that there is the possibility of an ultimate appeal to the Queen in Council, and there is very strong feeling against its abolition. Cases affecting the rights of such persons may often involve questions of the interpretation of the Constitution. But, apart from this consideration, the last sentence of Article 74 of the Constitution provides in express terms that the Parliament of the Commonwealth may make laws limiting the matters in respect of which leave may be asked to appeal. So that it is evident that the possibility of appeal in certain cases left by Article 74 as it now stands may be indefinitely curtailed in the future. A brief examination of the history of Article 74 may be desirable before proceeding to discuss the arguments of the Delegates against its amendment. In the draft of the Constitution prepared at the Adelaide meeting of the Federal Convention the Article was as follows: "No appeal shall be allowed to the Queen in Council from any Court of any State, or from the High Court or any other Federal Court, except that the Queen may in any matter in which the public interests of the Commonwealth, or of any State, or of any other part of her dominions are concerned, grant leave to appeal to the Queen in Council from the High Court." The meaning of this Article was explained in the discussion on the 20th April, 1897, by Mr. Higgins, who was a member of the Judiciary Committee, as follows :— "I feel a misapprehension has grown up that we are trying to do something new. The object of this clause is simply to stereotype in the Act what has already existed in Canada, where there is a general right of appeal reserved to Her Majesty in Council on a decision of the Privy Council; but that right of appeal is not allowed unless the cases are of public interest. Therefore the effect of clause 73 is simply to put in plain English what is the law now in Canada." Mr. Barton endorsed this explanation, saying: "That is the whole "That is the whole purpose and object of the clause; my honourable friend has saved me the trouble of explaining it." The phrase "public interest" was used by Mr. Higgins as defining the class of cases in which special leave is granted to appeal from a decision of the Supreme Court of Canada. The rules laid down by the Privy Council as regards such appeals are set forth in the case of Prince v. Gagnon (8 App., Cas. 103) :— "Their Lordships are not prepared to advise Her Majesty to exercise her prerogative by admitting an appeal to Her Majesty in Council from the Supreme Court of the Dominion, save where the case is of gravity, involving matter of public interest, or some important question of law, or affecting property of considerable amount, or where the case is otherwise of some public importance or of a very substantial character." The language of the Article then under consideration hardly carried out the purpose with which it had been framed, as explained to the Convention by Mr. Higgins and Mr. Barton, namely, that it was only intended to stereotype and fix, in regard to the High Court of Australia, the practice of the Privy Council, as declared by that body itself, in regard to the Supreme Court of the Dominion of Canada; but their declarations are conclusive, as showing the sense in which the Article was adopted by the Convention at the sitting of the 20th April, 1897. All that Her Majesty's Government desire upon this point is that effect should be given to the expressed intention of the framers of the clause, that it should embody the practice of the Privy Council upon Canadian appeals. After the Bill had been settled at Adelaide, it was discussed at length by the several Parliaments of the Federating Colonies, and several amendments were proposed in favour of extending the right of appeal as left in the Adelaide draft, but none apparently in favour of further restriction. The question was not discussed at the Sydney meeting, nor until January 1898, when an effort was made by those members who were in favour of the appeal to obtain the insertion of a provision saving the prerogative. The attempt was defeated by 22 votes against 14. The question was again brought up on the 11th March, when, on the motion of Sir Joseph Abbott, a clause saving the prerogative to grant special leave to appeal was carried by one vote in a House of thirty-nine Members. This was followed by an amendment, moved by Mr. Symon, excepting cases involving the interpretation of the constitution of the Commonwealth or of a State, which was carried by 21 votes to 17. The original draft of the Adelaide Session, therefore, which abolished appeals from all lower Australian Courts, and except by special leave from decisions of the High Court in matters involving the public interests of the Commonwealth, &c., was completely departed from, and the question of the appeal was left in the position summarized on page 7 of the Delegates' Memorandum. If the provision in the Adelaide draft had carried out the declared intention of those who framed it, and left only the special appeal from the High Court in the cases in which appeals are allowed from the Supreme Court of the Dominion, it would have been entirely satisfactory to Her Majesty's Government, but the exception introduced at the last moment on the motion of Mr. Symon leaves the question in a very unsatisfactory and anomalous position. That exception had not been discussed in the several Parliaments when the measure was before them for detailed consideration, and can hardly be said to have received adequate discussion. The Delegates urge that "the contention for the finality of the Judgments of their High Court is based by Australians on the argument that if they are fit, as is conceded, to make a Constitution for themselves, they are fit also to say what that Constitution means, and for that purpose they should be allowed to rely on the decisions of their High Court, that "judicial knowledge of local conditions invaluable always is indispensable in the interpretation of Constitutions," and "that Her Majesty's Judges, Australian as well as British, will ever be men of conspicuous ability and integrity, whose impartiality will not be prejudiced by their domicile." The answer is that in many cases the construction of the Constitution of such a country as Australia cannot be regarded as affecting Australian interests alone. That cases would come before the Imperial Court of Appeal with the advantage of a full knowledge of local conditions relevant to the case as they would have been explained in the Judgments of the Australian Court, and that while the high standing and ability of Australian Judges is recognized to the fullest degree, it would be of great assistance to them that, in exceptional cases, there should be the possibility of having their decisions on constitutional questions reviewed by a Tribunal which, even if party feeling ran high on the question in dispute, could not possibly be charged with being under its influence. In conclusion, it should be remembered that the question must be looked at from a still wider point of view. The retention of the prerogative to allow an appeal to Her Majesty in Council would accomplish the great desire of Her Majesty's subjects both in England and Australia, that the bonds which now unite them may be strengthened rather than severed, and, by insuring uniform interpretation of the law throughout the Empire, facilitate that unity of action for the common interests which will lead to a real Federation of the Empire. The object of every one at present should be to draw closer together all parts of the Empire. The existence of the right of appeal, subject to the leave of the Privy Council, has been a link effectively binding together every part of Her Majesty's dominions: the weakening of this tie would seriously lessen the value of even so great and beneficent a result as the Federation of Australia. If the Bill were passed in its present form, while it would mark a step in advance as far as the Federation of Australia is concerned, it would be a retrograde measure so far as it affects the larger question of Imperial Federation. March 29, 1900. SIR, No. 10. DR. E. PAGET THURSTON to COLONIAL OFFICE. (Received March 29, 1900.) To the Right Hon. Joseph Chamberlain, M.P. As delegates from all parts of Australia are about to address you on the subject of Federation, I venture, as a taxpayer of Western Australia, to appeal to you in this letter. We have here a Boer and Outlander question almost parallel to that in the Transvaal. As an Outlander, I appeal to you. The vast majority of the people in this Colony are unrepresented in Parliament, while the Metropolitan Press is entirely in the hands of the Boer party. The old West Australians openly speak as if the Colony were theirs and we were interlopers who have no course open to us but to leave the Colony if we are dissatisfied. Our contention is that the Colonies were acquired as the result of England's great wars, that, instead of claiming the land as a set-off against the National Debt, Great Britain gave it to such of her sons as chose to go and live there, and that consequently we have just the same rights as the older residents. Only three terminations are possible to the policy of the present Ministry. (1) Separation of the Gold Fields. This would be only fair to the Gold Fields; but thousands of Outlanders have settled in the other parts of the Colony, and this step would not redress their wrongs. The practical result of this step would be prosperity for the Gold Fields, but almost ruin for the rest of the Colony. (2) Revolution. I fear this is much more probable than is generally thought. Unless a material change takes place quickly there will be bloodshed in this Colony. (3) General depression, practically equivalent to bankruptcy. (a) Taking the income of last January, it would be equivalent to over seven hundred millions per annum from the population of Great Britain. I ask you, Sir, whether any party in England would venture to impose the half of this burden for one year-to pay for the Boer War, for instance? We have been carrying this load for a long while. (b) The great bulk of the taxation is levied through duties on food and drink. As the Boer party includes all the agricultural producers, and the Outlanders include the great bulk of the consumers, this acts injuriously on us in two ways. It puts a frightful load on the Outlander taxpayer, and enables the Boer producer to command a very high price for his food-stuffs. Owing to the limitation of the market by excessive protection, many articles of common use reach famine prices at times. In the three years I have been here, for instance, potatoes have been £22 10s. a ton; apples, 2s. 6d. a pound; oranges, 5s. a dozen; new laid eggs, 4s. a dozen (at the time of writing, 3s. 6d.). Fresh butter is practically unobtainable for ten months in the year, and common country wine (such as I used to buy for 3d. and 4d. a bottle in the Canary Islands) is here 2s. a bottle. I ask you, Sir, whether any other place in Her Majesty's Empire (not physically inaccessible) can show prices one half as high during the past three years? What makes it still harder is that in the other parts of Australia most of the above articles are almost unsaleable through superabundance. (c) Debt has been piled up to such an extent that in like ratio in England it would amount to two thousand five hundred and thirty-two millions sterling. By the time the Coolgardie Water Works and Fremantle Harbour have been finished and paid for, the debt will be equivalent to three thousand two hundred and fifty-five millions. Even granting that the assets, the railway, harbour, and water works might, in like ratio, be regarded as a set-off of a thousand millions, the debt remains at the stupendous figure of two thousand two hundred and fifty-five millions, beside which the debts of England, or even France, fade into insignificance. That the country is being crushed by the burden is shown in many ways. Probably one shop in three in the principal part of Hay Street has changed hands since I have been here. Most of the stores in the suburbs have closed. The most significant point is that the departures from the Colony in the past three years must number between 50,000 and 60,000. Potent as is the attraction of the word "Gold," the departures actually exceeded the arrivals during ten months of 1898-9. It is in your power, Sir, to remedy this state of affairs, by showing Sir John Forrest's representative that you strongly disapprove of the treatment of the Outlanders in this Colony, and especially of their being taxed without being represented, and by expressing your determination to throw your influence into the Separation scale unless all this is changed. I feel sure the pressure of public opinion at home, and in the rest of Australia, would be strong enough to compel the Boer party to grant justice. It is the fear I have that a continuance of the present injustice and oppression will lead to a revolution that impels me to the boldness of writing you this letter. I am, &c., E. PAGET THURSTON, M.D., B.A. CANTAB. Enclosure in No. 10. The data on which the foregoing calculations are based are as follows: The population of Western Australia is taken at ... ... 170,000 41,000,000 The total debt is estimated at £10,500,000. The last authentic figure available was as remote as June, 1898. The Public Debt of Western Australia was then £9,203,738 6s. 11d. No. 11. The AGENT-GENERAL FOR NEW ZEALAND to COLONIAL OFFICE. (Received March 31, 1900.) [Answered by No. 25.] Westminster Chambers, 13, Victoria Street, SIR, The amendments are three in number. There is a fourth point upon which I may have to touch, but as it is not likely to be my duty to do more than express my opinion concerning it, I have not referred to it in the enclosed memorandum. I propose to mention it verbally to you, if possible in the presence of the Delegates from Australia. I may add here that my Government emphasises the desire of New Zealand for a friendly understanding with the five federating Colonies. New Zealand desires to ask |