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Nr. 13134. AUSTRALISCHE KOLONIEN. Die Delegierten der

Kolonien in London an den Kolonialminister Denkschrift zur Begründung des Verfassungsentwurfs.

As a preliminary to a further interview with the Right Honourable the Secretary of State for the Colonies, the Delegates appointed in pursuance of his invitation and under resolutions of the Conference of Premiers (copy appended, marked A) held in Sydney in January last, deem i it well to put in writing some of the reasons which, in their opinion, justify them in strongly urging that the Commonwealth of Australia Constitution Bill“ may be introduced and passed into law in the form in i which it was affirmed last year by large majorities of the electors of the Colonies of New South Wales, Victoria, Queensland, South Australia and Tasmania. They are further impelled to this course by the force with which the Law Officers of the Crown have explained the views which, as they believe, render it desirable that some alterations should be made. The Delegates are also encouraged in this fuller expression of their views by the great kindness with which their representations have been invited and received. || While it is open to them to defend by argument the provisions in which it seems to be contemplated to propose alterations, the Delegates are necessarily precluded by the vote of the Australian majority from even appearing to treat with acquiescence the suggestion that any amendment is necessary. Seeing that they are directly instructed by unanimous resolution of the Premiers of their several Colonies to act together in expressing the earnest objection of the Australian people to any alteration of that which a vote so great and so emphatic has ratified, they are bound at the outset to make it an urgent though respectful request to the Secretary of State that the measure as a whole may be submitted to Parliament in the form in which it was transmitted by the five Legislatures immediately concerned, covered by loyal addresses from each of them praying that Her Majesty might be pleased to cause it to be so submitted. They conceive that the only complete assent which can be given to the addresses mentioned is to leave the text of the Bill intact both at and after its introduction. It is the Bill as it now stands, and no other, under which, as the preamble truthfully recites, the people of five loyal Colonies have agreed to unite. That recital would not be justified if something or anything were either introduced or passed to which those Colonies have not agreed. It is that agreement of the people which is the root of the tree of union, and anything which

strikes at the root endangers the whole tree. The Delegates therefore submit that the federating Colonies are morally entitled to have the whole Bill laid before Parliament in the very form in which it stood when the votes of the people, affirming it, constituted it the Australian agreement. ! The Delegates have been asked whether, assuming that Imperial alterations are nevertheless to be embodied in this Australian agreement before its presentation to Parliament, it is in their opinion preferable that such changes should find place in the portion of the Bill colloquially called the „covering clauses“ or in the portion proposed to be called „the Schedule“. If their answer were to be read by those whom they represent as in any way an acquiescence in amendments, it is obvious that they would have no authority from Australia to answer such a question. But knowing that the question is not for a moment intended to produce any such impression, they would reply that they recognise that an alteration may, so far as its sense is concerned, be just as well placed in one part of the measure as another, inasmuch as the covering clauses and the Schedule must necessarily be read together. No doubt it would – in appearance – be the less objectionable method to place such alterations in the covering clauses. The result, however, of leaving the Schedule intact, while altering the covering clauses, would be the same, as the meaning and effect of the instrument would still be changed, and the substance of the objection would remain. But the question appears to the Delegates to be significant. If there is hesitation to place alterations in the Schedule rather than in another part of that whole which is the Agreement recited at the very outset, is it not because the change of meaning involved appears less striking in the one part of the instrument than in the other? Surely the question of alteration ought not to depend on such a consideration when the result in each case is identical. The Delegates submit with equal confidence and respect that it is quite clear on examination how vitally the provisions of the Schedule may be, and are likely to be, altered by amendments placed in the „covering clauses“: and therefore that the agreement is none the less altered although the place chosen for the alteration shews the greatest disposition to treat the parties to the agreement with all courtesy and kindness, - a disposition which it is scarcely necessary to say will be highly appreciated, but which the Queen's subjects in Australia will consider much less satisfactory than the holding sacred here of a compact held sacred there. || Copies of the appended paper (marked B) have been handed to the Delegates to indicate the amendments which are foreshadowed as possibly to be embodied by Her Majesty's Govern

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Staatsarchiv LXIX.


ment in the „covering clauses“. | Taking first, for reasons of convenience, the proposal to declare the laws of the Commonwealth to be „Colonial Laws" within the meaning of the Colonial Laws Validity Act of 1865 (28 & 29 Vict. c. 63), the Delegates may be permitted to say that they agree in the opinion that a declaratory amendment of this kind relating to an Imperial Act would be looked for rather in the covering clauses than in the Schedule. But they are asked further whether it is in their view to be preferred that this declaration should be made by separate enactment or that it should, as indicated by the annexure, appear in the Bill? Guarding themselves as before against possible misapprehension elsewhere, they would reply, without admitting the necessity of any amendment, that a separate enactment appears to be a better vehicle for such a declaration than the measure itself. They cannot, however, refrain from expressing the view that the meaning of the Bill is clear without any such legislative explanation. The doubt expressed by the law advisers of the Crown arises, as they have explained, from the presence in Clause VI. of the words „Colony shall mean any Colony or Province“. It is submitted that this definition is framed simply for the purpose of clearly including South Australia in the Bill, and can in no wise exclude the definition of „Colony“ in the Colonial Laws Validity Act from applying to the Commonwealth in relation to its laws. The definition in the Commonwealth Bill arises from the fact that South Australia las from time to time been variously designated in legislation as a Colony and as a Province. For instance, in the Imperial Statutes 4 & 5 Wm.

a IV. c. 95, and 1 & 2 Vict. c. 60, the designation is ,,Province“, in 5 & 6 Vict c. 61 „Colony“ and „Province“ are both used for the same purpose. In 4 & 5 Vict. c. 13, in 13 & 14 Vict. c. 59, and in all Imperial Acts relating to South Australia since the passage by the Local Legislature of the Constitution Act (18 & 19 Vict. No. 2) the term „Colony“ is used. But in the Act last mentioned and in all other local legislation since its passage, South Australia has uniformly been referred to as a „Province“. Apart from legislation, the Letters Patent, Commissions and Instructions, issued in connection with the offices of Governor, LieutenantGovernor, and Administrator of the Government for South Australia, have all employed the word „Colony“ alone to designate that possession, while the Regulations and other official documents under or in consequence of Local Acts have as regularly referred to South Australia as a „Province". It was merely for the purpose of avoiding the constant repetition of the distinction between the words „Colony“, as applied to the other states, and „Province“, as applied to South Australia, that the

definition in question was placed in the Bill. Inasmuch as Imperial Legislation has so generally referred to South Australia as a Colony, it may be that excessive caution has been used by the draughtsmen in this instance. If after this explanation any doubt remains, the Delegates are of opinion that the real point of objection is in the definition itself as introducing that doubt, and if the definition is unnecessary it would not seem to be convenient to counteract any doubt by amendment elsewhere in the Bill. The Commonwealth appears to the Delegates to be clearly a „Colony", and the Federal Parliament to be a „Legislature“ within the meaning of the Colonial Laws Validity Act, and they cannot think that the larger meaning given to the word „Colony“ in Clause VI. to save words can be held to take away the protection of the Act of 1865 from any law passed by the Federal Parliament. But the Interpretation Act of 1889 (52 & 53 Vict. cap. 63) might itself be cited in support of the same contention. That Act prescribes that, „unless the contrary intention appears, the expression ,Colony in any Act passed since the 1st January, 1890, is to mean any part of Her Majesty's Dominions, exclusive of the British Islands and of British India“. The Interpretation Act goes on to require that where parts of such Dominions are under both a central and a local legislature, all parts under the Central Legislature shall, for the purpose of the definition, be deemed to be one Colony. It might be argued that this definition secures the application of the Validity Act to Colonial Statutes passed since the end of 1889, and if this be so it would be strange if the occurrence in Clause VI. of the few words quoted were held to deprive the laws of the Parliament of the Commonwealth of Australia of the same protection. It may further be observed that the Constitution of Canada contains no words similar to those proposed to be here inserted, even though that Constitution was enacted prior to 1889; yet it will not be denied that the Colonial Laws Validity Act applies to Dominion Statutes. What then is there which excludes its application to the Statutes of the Commonwealth?

The Delegates turn now to the suggested amendment of Clause V by the omission of the part of that Clause which prescribes that „laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth“. It will be observed that this provision is much more restricted than that made by Section 20 of the Federal Council Act of 1885. Under the present measure the provision is made to apply only to cases in which a British ship begins and concludes her voyage within the limits of the Commonwealth. But Section

20 of the Federal Council Act applied to every British ship which commenced her voyage in any one of the Colonies concerned, and also to every British ship which concluded her vayage in any one of them. In the former case the Federal Council Law would apply to a British ship on the whole of her voyage from Australia to a port beyond the Commonwealth: in the latter case to a British ship on the whole of her voyage from any point beyond the Commonwealth to Australia. In the present measure, so wide an application is not for a moment desired to be given to any law of the Commonwealth; yet it is now sought to further restrict in the hands of a much more competent legislature a power which 15 years ago the Imperial Parliament did not consider too wide for a much inferior body: a body neither elective nor bi-cameral, and lacking both a responsible executive and a Treasury. It has been further suggested that the matter is sufficiently provided for by the Merchant Shipping Act of 1894. If this view is correct, then the phrase objected to is at the worst a redundancy, and is therefore harmless. The Merchant Shipping Act of 1894, practically repeating the provisions in this behalf of Section 4 of the Merchant Shipping Act of 1869, gives in its 736 Section power to the Legislature of a British Possession to make laws regulating its coasting trade under conditions which need not here be set out. It is also true that the term „British Possession“, whether as defined in the Act of 1869 or in the Interpretation Act of 1889, which preceded the present Merchant Shipping Act, would include such a Possession as the Commonwealth of Australia, which under the Interpretation Act would be deemed to be one British Possession including all parts under the Central Legislature. The expression „coasting trade“ is not defined in any of the Acts cited: it may be taken to include the trade of vessels plying merely between the ports of a Possession within territorial limits. But the provision in the Commonwealth Bill, to which exception has been taken, would apply to such ships, on a voyage solely between two ports of the Commonwealth, even if they drifted or were blown outside the threemile territorial limit: the beneficial effect therefore would be, that a vessel on such a voyage would not be exposed to the anomaly of being subject to one set of laws at 28/4 miles from the coast, and to another set of laws at 3%, miles from the coast. That this should be prevented is surely not too much to ask. Moreover, the provision in the Bill removes a further anomaly by protecting a vessel which passes froin the territorial waters of one Colony into those of another from being subjected to a change of laws in that very operation, and by applying to her the uniform laws of the Commonwealth during the

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