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they have no less, events have proved. Not arrogantly, but with the pride of their race, they ask to be accounted fit for those responsibilities which men of that race have never shirked and seldom abused. If they are given what they now ask, they will know that they have received a trust which their fellow subjects in this Kingdom will find them able to fulfil. In placing that trust in their hands the mother country will bind her Colonies to her with something stronger than words upon paper; with the high confidence which justice engenders, and the affection which gratitude evokes and perpetuates.
C. C. Kingston.
P. 0. Fysh.
A. Resolution passed at the Conference of the Premiers of the
Australasian Colonies on the 25th January, 1900. „That in compliance with the request contained in the despatch received from the Secretary of State for the Colonies, that Delegates from the Australian Colonies should be sent to England to explain and give assistance when the Australian Commonwealth Bill comes before the Imperial Parliament, this Conference is of opinion that each Colony should appoint a Delegate, and that such Delegates when appointed should represent all the Federating Colonies in unitedly urging the passage of the Bill through the Imperial Parliament without amendment, and in explaining any legal or constitutional questions that may arise.“
Draft of a Bill. To Constitute the Commonwealth of Australia. Whereas the people of (here name the Colonies whieh have adopted the Constitution), humbly relying on the blessing of Almighty God, liave agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established: And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen: Be it therefore enacted by the Queen's
Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, and by the authority of the same, as follows: – || 1. This Act may be cited as „The Commonwealth of Australia Constitution Act“. || II. (This Act shall bind the Crown, and its) The provisions of this Act and of the Constitution set fort in the Schedule to this Act referring to the Queen shall extend to Her Majesty's Heirs and Successors in the Sovereignty of the United Kingdom. || III. It shall be lawful for the Queen, with the advice of the Privy Council, to declare by Proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of [here name the Colonies which hare adopted the Constitution] shall be united in a Federal Commonwealth under the name of „The Commonwealth of Australian“. But the Queen may, at any time after the Proclamation, appoint a Governor-General for the Commonwealth. || IV. The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several Colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act. || V. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the Courts, Judges, and people of every state, and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be Colonial Laws within the meaning of the Colonial Laws Validity Act, 1865, (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).
Nothing in this Act or in the Schedule set forth as the Schedule to this Act shall affect any prerogative of the Crown to grant special leave to appeal to Her Majesty in Council. || VI. „The Commonwealth“ shall mean the Commonwealth of Australia as established under this Act. || „Colony“ shall mean any Colony or Province. || „The States“ shall mean such of the Colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the Northern Territory of South Australia, as for the time being are parts of the Commonwealth, and such Colonies or Territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called a „State“. || „Original States“ shall mean such States as are parts of the Commonwealth at its establishment. VII. The Federal Council of Australasia Act, 1885“, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth. Any such law may be repealed as to any State by the Parliament of the Commonwealth, or to any Colony not being a State by the Parliament thereof. || VIII. After the passing of this Act the „Colonial Boumdaries Act, 1895“, shall not apply to any Colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing Colony for the purposes of that Act. || IX. The Constitution of the Commonwealth shall be as [follows:) set forth in the Schedule to this Act
Schedule (wie in Nr. 13132).
Nr. 13135. GROSSBRITANNIEN. Denk schrift des Kolonial
a mts über den Verfassungsentwurf. Kritik einzelner Bestimmungen insbesondere von Kap. 74.
Her Majesty's Government have had under their careful consideration the question how far it is possible to pass through the Imperial Parlia. ment the Bill which has been submitted by the five Colonies of Australia, they desire to acknowledge the assistance they have received from the Memorandum prepared by the Australian Delegates, and they appreciate the friendly spirit in which the questions raised have been discussed. I Her Majesty's Government are most anxious that the Bill should be passed, and speedily passed, in a form which shall give to the Australian Colonies the Federation which they so earnestly desire; but, at the same time, it is their bounden duty to protect the interests of the United Kingdom and of other parts of the Empire which are also committed to their charge. || The points of difference are few in number, and involve a minimum of alteration. Her Majesty's Government observe that the Memorandum of the Delegates abstains from discussing any of the suggested alterations on their merits, and consists almost entirely of an appeal to Her Majesty's Government to accept without alteration the proposed Bill, as embodying the wishes of the people of Australia. | Her Majesty's Government feel it their duty to place on record some of the reasons which make it impossible for them to accede to this request, much as they would desire to do so. || The Memorandum of the Delegates requests that the whole of the draft Bill as received from the Colonies may be submitted to Parliament and passed into law. The distinction
which was drawn in the discussions of the Federal Convention between the „covering clauses“ and the „Constitution“ is no longer recognized, and it is contended that the whole Bill, covering clauses and Constitution alike, ought to be passed by the Imperial Parliament without alteration, on the ground that it embodies the Agreement at which the people of the Colonies have arrived. || While there is every desire to give effect, as far as is possible, to the wishes of the people of Australia, it must be pointed out that the enabling Acts under which the Referendum was taken formally referred to the „Constitution“ only, and the Addresses from the Parliaments pray that the „Constitutions may be submitted to the Imperial Parliament and passed into law. || The distinction between the covering clauses and the Constitution was clearly pointed out by Mr. Barton on several occasions in the course of the debates. Speaking Vr at Adelaide at the sitting of the 14th April, 1897, on clause 5, with reference to the provision as to the operation of the laws of the Commonwealth on British ships: „This appears to be a concession to Australia, and the best thing to do is to let the Imperial authorities deal with it." In the course of the debates at the Sydney meeting of the Convention in 1990, Mr. Barton again expressed himself more fully to the same effect. „We do not expect," he said, „that the Imperial Legislature will amend the provisions which are in the Constitution itself, although they are an endeavour to extend our autonomy; but these covering clauses are suggestions to the Imperial Legislature, and it would be absurd to expect that, as regards these clauses, the Imperial Legislature will not make sach amendments as they please." || It is clear therefore that the covering clauses were not regarded as a part of the Agreement between the Australian Colonies as to the Constitution under which they are prepared to unite, but rather as suggestions as to the terms of the Agreement between the Colonies and the Mother Country.
An examination of the covering clauses shows that they deal with matters in which Australia, being a part only of Her Majesty's dominions, could not properly claim to have a final voice. They affect in important respects the prerogative of the Crown and the powers and privileges of the Imperial Parliament and of the Legislature of other parts of the Empire. In regard to these matters, the Imperial Parliament and Government are in the position of trustees for the whole of Her Majesty's dominions, and the responsibility attaching to that trust makes it incumbent on them to examine with the utinost care any proposal which would in any degree affect their power to discharge the trust efficiently. They cannot relieve themselves of responsibility to those for whom they
are trustees by divesting themselves of their powers by delegation. In putting the provisions of the draft Bill which affect these powers in the form of suggestions, and not as an integral and essential part of the Federal Constitution, the Statesmen who framed that instrument and the Parliaments and peoples who have indorsed it have fully recognized this principle. || The alterations suggested, as shown in the copy of the draft Bill handed to the Delegates, were limited to those which appeared essential for the safeguarding of the powers intrusted to the Imperial Parliament and Government for the protection of those common interests and the discharge of those common duties which form the peculiar sphere of the central authority of the Empire. || Taking them in the order in which they are discussed in the Memorandum of the Delegates, the first is the proposal to declare the Laws of the Commonwealth to be „Colonial Laws“ within the meaning of „The Colonial Laws Validity Act, 1865“. The Memorandum maintains that the doubts entertained by the Law Officers as to the application of that Statute to the enactments of the Commonwealth Parliament are unfounded, and that any amendment is therefore unnecessary; but that, if it is considered important to remove doubts on the subject, a separate enactment would be a better vehicle for such a declaration than the measure itself. It is to be observed in this connection that the Honourable R. E. O'Connor, one of the members of the drafting Committee, at the meeting of the 9th September, 1897, stated that the Colonial Laws Validity Act would have no application to the Laws of the Commonwealth, and it is important, in the interests of the Commonwealth as well as of the rest of the Empire, that any possibility of misapprehension as to the validity of Commonwealth Laws or as to the supremacy of Imperial legislation should be removed. That there is room for such misapprehension is clear, not only from the language of clause 6 of the covering clauses, but also from Article 51, paragraph 38, of the Constitution, which confers on the Commonwealth Parliament „the exercise within the Commonwealth, at the request or with the concurrence of the Parliament of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia". Sub-section 29 of the same clause of the Constitution, moreover, empowers the Commonwealth Parliament to legislate in regard to „external affairs“, and, consequently, under these provisions it might be claimed that the Parliament of the Commonwealth had power to pass legislation inconsistent with Imperial legislation dealing with such subjects as those dealt with by the Foreign Enlistment Act. The respon