FURTHER PAPERS RELATING TO THE FEDERATION OF THE AUSTRALIAN COLONIES. (In continuation of [Cd. 124] April, 1900.) SIR, No. 1. SIR R. C. BAKER to COLONIAL OFFICE. (Received February 13, 1900.) President's Office, Adelaide, January 8, 1900. I HAD the honour to forward to you, in February, 1898, copies of the proceedings and debates of the Federal Convention of Australia. I venture to think that a statement of the somewhat peculiar procedure adopted by the Convention may facilitate the explanation of the Bill, and that the history of those clauses, on which there may be a difference of opinion, may be of value. I, therefore, take the liberty of sending you two memoranda-one relating to procedure generally, and the other explaining the history of the clauses relating to an appeal to the Privy Council from the decision of the High Court, concerning which I am informed that it is probable amendments may be moved. I have, &c., R. C. BAKER, Chairman of Committees of the Federal Convention. Enclosure in No. 1. THE AUSTRALIAN FEDERAL CONVENTION, 1897-98. THE COMMONWEALTH BILL. Epitome of history of the Clauses referring to an Appeal from the High Court to the The Clauses referring to this subject, as presented to the Adelaide sitting of the sometimes "The High Court shall have jurisdiction, with such exceptions and subject to such 72 (after-. "Until the Parliament otherwise provides, the conditions and restrictions on • Not printed. 73 (afterwards sometimes 74 or 75). "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." In order to enlarge the power of the Queen to grant leave to appeal, Sir George Turner (page 968, Adelaide Hansard) moved to leave out the words in Clause 73 " may in any matter in which the public interests of the Commonwealth or of any State or of any other part of Her Majesty's dominions are concerned." Sir George Turner stated that if this amendment were carried he would move the insertion of other words to also give the High Court the right to give leave to appeal to the Privy Council, so that leave to appeal could be granted either by Her Majesty the Queen or by the High Court. The amendment was negatived by 17 to 14, and there was then a long debate (on the motion that the clause stand part of the Bill) as to the policy of restricting the right to appeal to the Privy Council. The clause, however, was carried by 22 to 12 (page 989). So that so far as the question under consideration is concerned, the clauses were not amended at the Adelaide sitting. During the recess between the Adelaide and Sydney sitting the following amendments were suggested (but were not considered until the Melbourne sitting, January and March, 1898). (a.) By the House of Assembly of New South Wales. That the High Court should have jurisdiction only by consent of the parties to the cause, and Clause 75 should be struck out. These two suggested amendments taken together meant that by consent there should be an appeal from the Supreme Courts of various Colonies, and that on such consent being given the decision of the High Court should be final and conclusive, but that if no such consent was given the High Court should have no jurisdiction. This was negatived without a division (31st January, 1898, Melbourne Hansard, page 321). (b.) By the Legislative Council of New South Wales and by the Legislative Council of Victoria. That the judgment of the High Court should not be final and conclusive; id est, that there should be an appeal from the High Court to the Privy Council. This was negatived without a division (page 333) on the understanding that a motion was to be moved, giving to Her Majesty the Queen the right to grant an appeal. Sir George Turner accordingly moved an amendment to that effect, which was amended on the motion of Mr. Wise and negatived by 22 to 14 (page 347). (c.) By the Legislative Council of Victoria. Consequent on the words "and the judgment of the High Court shall in all cases be final and conclusive" being struck out, to insert words in lieu thereof, giving the right to appeal to either the High Court or the Privy Council. As the words were not struck out this amendment could not be put. (d.) By the Assembly of Tasmania. To further restrict the right of Her Majesty the Queen to grant leave to appeal to those cases only in which "the public interests of parts of Her Majesty's dominions other than the Commonwealth are concerned." As this was in substance inconsistent with decisions arrived at by the Committee, it was not put. (e.) By the Council of Tasmania. That Clause 75 (originally Clause 73) should be struck out (which would leave the right of appeal to the Privy Council the same as in Canada). This was negatived on the motion that the clause stand part of the Bill. N.B. The House of Assembly of New South Wales also suggested that this clause should be struck out, but this suggestion must be considered in conjunction with suggestion (a.). On the 31st January, 1898, Mr. Wise moved that the following words be added after the words "final and conclusive" in the 74th Clause: "saving any rights which Her Majesty may be pleased to exercise by virtue of Her Royal Prerogative." This was negatived by 22 to 14 (page 347). The Bill having been gone through was then ordered to be reconsidered, and on such reconsideration, on the 11th March, Sir Joseph Abbott moved (page 2286) that the words formerly rejected by 22 to 14, viz. : "saving any right that Her Majesty may be pleased to exercise by virtue of Her Royal Prerogative" be inserted in Clause 74 (formerly 72). The object of Sir Joseph Abbott's amendment was to grant an appeal to the Privy Council not as a matter of course, but if the Privy Council considered there were good prima facie grounds. This was carried by 20 to 19 (page 2323). Mr. Symon then moved to add a proviso : "Provided also that the right saved is that of granting leave to appeal, and shall continue only until Parliament otherwise provides" (page 2325). This was agreed to without a division. Clause 75 (originally 73) was then considered, and Sir Joseph Abbott moved to strike out the words: "in which the public interests of the Commonwealth of any State or of any other part of Her Majesty's dominions are concerned." This was carried without a division (page 2326). Mr. Symon then moved to insert in lieu of the words struck out the words "not involving the interpretation of the Constitution of the Commonwealth or of a State.' It was submitted by Sir Joseph Abbott that the amendment could not be put because it was a direct negative of the amendment carried by him on the preceding clause. On the other hand, Mr. Barton and Mr. G. Reid submitted that the amendment was only a qualification of the proposition granting the Privy Council the power to give leave to appeal, and fell short of a negative. The Chairman said: "I do not think I can rule the proposed amendment out of order. Every clause or nearly every clause of a Bill in some way qualifies the preceding clauses. In some instances they extend, in others they limit, the operation of these clauses. This is not a direct negative.' Mr. Barton moved as a qualification of Mr. Symon's amendment to add to the words proposed to be inserted by Mr. Symon the words: "nor in any matter involving the interests of any other part of Her Majesty's dominions." This was agreed to (page 2333) without a division, and then Mr. Symon's amendment, as amended by Mr. Barton, was inserted by 21 to 17 (page 2335). A further amendment was then proposed by Mr. Symon, which was challenged on a point of order and withdrawn. Another amendment was then moved, "Provided that no appellant to the High Court shall afterwards appeal to the Privy Council in the matter of the same appeal." This was also withdrawn (page 2340). A division on the retention of the Clause 75 resulted, Ayes 21, Noes 17. The Bill having been gone through was reported a third time, and inter alia Clauses 74 and 75 were ordered to be reconsidered. The consideration of Clause 74 (now section 73) was postponed, and Clause 75 was: struck out on the motion of Mr. Barton, who moved to insert a new clause the same as the clause struck out, with the substitution of the word "unless" instead of "or." The effect of the alteration was that the prerogative right of appeal in cases involving the public interests of any other part of Her Majesty's dominions, and also in cases involving the interpretation of the Federal Constitution, of the constitution of a State when such public interests were concerned, was kept intact. Mr. Glynn moved to strike out "not," with a view of giving Her Majesty the Queen the right to grant appeal in cases involving the interpretation of the Federal or of a State constitution. The amendment was negatived by 21 to 18 (page 2419). The new clause was then agreed to (this is the Section 74 in the Bill except as to some small drafting amendments). Clause 74 was then reconsidered, and Mr. Symon moved to strike out the words "Saving any right which Her Majesty may be pleased to exercise in virtue of Her Royal Prerogative," inserted on 11th March on Sir Joseph Abbott's motion (page 2419). ,༞་ It being apparent, however, that the majority in favour of the retention of these words (see page 2421) would be increased if a division were called for, the amendment was withdrawn. An examination of the Bill as finally adopted will shew that the wording of clauses 73 and 74 is different (although the meaning is the same) from the clauses as framed in the Convention. This is accounted for by the fact that after the Bill had been gone through a third time, the drafting committee suggested some few hundred drafting alterations-these were passed in toto, having been certified to as correct by Mr. Barton and the Chairman. The effect of the Bill as it now stands is as follows: (1.) The appeal from a State Court to the Privy Council still remains-an (3.) The Commonwealth Parliament may still further limit the matters concerning MR. J. W. KIRWAN, the proprietor of the "Kalgoorlie Miner" and a leader in the West Australian federal movement, has written to me enclosing a rough draft of the petition to be presented to Her Majesty in reference to the great disabilities which many of her loyal subjects have to endure in the Eastern Division of the Colony. He has asked me to privately use any political influence I may have on behalf of the Separation League of West Australia. The word "separation" is not one to conjure with in Conservative circles, but I can fully endorse all that is put forward on behalf of the residents of the Eastern Goldfields of West Australia. Living as I did for some time on the fields, I know the grievances of the mining population to be very real. The manner in which the Premier, Sir John Forrest, has treated West Australia in the matter of Federation has caused a great feeling against him in all political circles in the Eastern Colonies of Australia. The separation movement is assuming almost irresistible force, and if some settlement is not come to I greatly fear that the exasperation of the miners will be intensified. At the eleventh hour the West Australian Government may yield, but its leaders have given proof of great obstinacy and want of tact. The imposition of Federation on West Australia by the Imperial Parliament would settle the matter, though I think that if separation were likely to be granted by the Imperial Authorities the Forrest Government would quickly yield to the just and reasonable demands of the mining community. I enclose some West Australian newspaper cuttings, and also extracts from the Melbourne newspapers. I hope you will forgive me troubling you at this very trying time, but the question seems to me a very urgent one, and delay will intensify the difficulty. The men who have made West Australia what she is deserve every consideration, and I feel assured that they may safely leave their case in the hands of Her Majesty's Government. The Right Honourable Arthur Balfour, M.P. I beg, &c., SIDWELL SHOTTON. Not reprinted. |