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whole of her passage between Commonwealth ports. While, then, the power is less than that conceded to the Federal Council, and never abused, it is larger than that conceded by the Merchant Shipping Act, but larger only for the most beneficial purposes. The reasonableness of the right claimed appears the more clearly when it is considered that one of the most useful purposes of the Constitution is the facilitation of trade between the several Colonies to an extent not hitherto possible, with a clear tendency towards obliterating in respect of commerce those arbitrary lines between Colony and Colony, which in the past have been productive of so much friction and hindrance. || There remain for explanation the enactments relating to appeals to the Judicial Committee of the Privy Council. The most important of these is to be found in the first part of Clause 74. It has been suggested that it ought to be nullified, first by striking out from the second covering Clause the words „this Act shall bind the Crown“, and adding a consequent amendment in that Clause, and next by appending to covering Clause V. the following words „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". The meaning of Clause 74 would be entirely changed if the alteration suggested were made, and the effect of the reading together of the covering Clauses and the Schedule would be that the Schedule itself would be something materially different from that which the people of the five Colonies have made their Agreement. Such a result would, in the view of the great majority of the Australian people, be nothing short of a calamity to Australian self-government. || Turning to Clause 74 itself, the discussion of which is forced on them by the suggestion, the Delegates would point out that the effect of the Clause is by no means so far-reaching as has been supposed in many quarters. 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. || Judicial knowledge of local conditions, invaluable always, is indispensable in the interpretation of Constitutions. || 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: are not English Appeals heard in the House of Lords?
Few parts of the Bill were more keenly discussed at the several Sessions of the Convention than those which have been termed, for bre
vity, the Privy Council Clauses. A mere reference to the index of the Debates will show how numerous and varied were the proposals discussed in the Convention. These discussions were conducted with absolute publicity, and before the provisions finally took their present shape there had been two lengthy adjournments of the Convention, during which the press and the public had closely debated the matter, and during which also the several Legislatures of the Federating; Colonies, with the exception of Quensland (which had not been represented at the Convention), but which affirmed the Bill as framed, had made their varying suggestions for the amendment of this as well as the other parts of the Bill, including the covering Clauses. As the result of the discussions during the earlier sessions of the Convention and during its adjournments,
and of strongly sustained debates in the final session at Melbourne, Clause 74 took the following, which is its present, form. „No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution or of the Constitution of a State, unless the public interests of some part of Her Majesty's Dominions, other than the Commonwealth or a State, are involved. Except as provided in this Section, this Constitution shall not impair any right which the Queen may be pleased to exercise, by virtue of her Royal prerogative, to grant special leave to appeal from the High Court to Her Majesty in Council. But the Parliament may make laws limiting matters in which such leave may be asked.“ The concluding sentence of the Clause, it is conceived, confers on the Commonwealth a right to do that which each State at present has power to do, subject to reservation of the Bill as effecting the prerogative, in accordance with the ordinary vice-regal Instructions. See Instructions to Australian Governors, dated July, 1892, Clause VIII., paragraph 7, under which the Governor is to reserve for the signification of the Royal pleasure „any Bill of an extraordinary nature and importance, whereby Our prerogative, or the rights and property of Our subjects not residing in the Colony, or the trade and shipping of the United Kingdom and its dependencies may be prejudiced“. The framers of the Instructions clearly appear to have considered that the Colonies had full rights of legislation in such matters as paragraph 7, just quoted, sets forth, subject only to reservation for the Royal pleasure; and then only when previous instructions upon the particular Bill had not been obtained through one of the principal Secretaries of State, or when the Bill did not contain a Clause suspending its operation until the signification of the Royal pleasure. The last sentence of the Clause, therefore, seems merely to confer on the Federation that legislative power
which has long been possessed by each of the constituent States. || The second part of Clause 74, beginning with the words „except as provided in this Section“, makes no mention of appeals to the Queen in Council from the Courts of the States or Colonies, and it is submitted that the appeal which now lies to Her Majesty in Council from those Courts is not taken away by the Bill as it stands, since the proposed enactment deals only with appeals to Her Majesty in Council from the High Court, for which appeals it was necessary for the Constitution to make provision. The immediately preceding Clause, 73, merely gives jurisdiction to the High Court with respect to appeals. It does not abolish appeals to the Queen in Council with respect to State Courts, and as there is no enactment elsewhere that appeals from them are to cease, the prerogative remains, and the appellant may take his case either to the High Court or to the Privy Council. But when, and only when, he goes to the High Court in one of the limited class of cases set forth in the first part of Clause 74, he must abide by the decision of that Court. Further, it will be remembered that the public interests of any part of Her Majesty's Dominions other than the Commonwealth or a State of the Commonwealth cannot in any case remain the subject of a final decision by the High Court, even where the interpretation of this measure or of a State Constitution is involved.
The Delegates have thus summarised what appears to them to be the effect of the provisions in the Schedule, and consideration is asked whether the clauses are of such a nature as to justify alarm, and whether it is worth while to incur the risk of serious dissatisfaction in Australia for the sake of preserving the small degree of prerogative affected. || The Clauses are framed with relation to things as they exist, and even if the Sovereign Power of Parliament is ever to be exercised over the heads of the Australian people, we submit most earnestly that the present is pre-eniinently a measure in respect of which that power should not be exercised. || The Delegates would here refer to the action of the Imperial Government in respect of the Federal Council Bill in 1985. In his circular despatch informing the Governors of the several Colonies of the passage of that measure, the then Secretary of State for the Colonies, having remarked that it had passed the House of Lords and was awaiting its second reading in the House of Commons when fresh advisers of Her Majesty had assumed office, said that „it would have been inexpedient to make any avoidable alterations in the Draft“ prepared by the Convention at Sydney, „unless such alterations could be previously considered by the same or a similar Convention“. Now that the popular approval has been invoked and given, to submit proposed amendments to the „same“ Convention is impossible, because its legal existence has ended, and to submit them to a „similar Convention“ would be insufficient unless the Convention were popularly elected and its decisions popularly ratified. But the submission of amendments to a third referendum at this late stage would be regarded by the public in Australia as harassing, even if its vote were called for without a previous discussion of the amendments by another elected Convention. Apart from the expense of such proceeding, the delay would be most vexatious and unpopular, and beyond and above such considerations, the distrust of their previous decisions so manifested would be resented by the electors, whose agreement has been arrived at only after many years of agitation and controversy. The Delegates are unable to see that any fresh tangible facts have intervened since the referendum of 1899, to justify the expectation that the well-considered vote of that year would be reversed in respect of the matters in question. The feel that there are strong grounds for anticipating that the Governments of the several Colonies would emphatically protest against the expense, the delay, the turmoil, and the disturbance of normal conditions which would accompany a third referendum on, perhaps, a single point. But they admit at the
a same time that the logical result of the attempt to make any alteration of substance is to appeal a third time to a constituency containing nine teen-twentieths of the population of the Australian continent, and spread over more than two millions of square miles, that is to say, over an area almost two-thirds as large as the Continent of Europe. All this at an enormous expense, and merely for the purpose of ascertaining whether Australians who have twice decided that the makers of laws are in their opinion fit to interpret them, are prepared to reverse that decision in derogation of their own competency. It is not to be supposed that such a burden could be laid upon the people without awaking among them a feeling that they are seriously aggrieved. If, on the other hand, alterations were forced on them without their consent, some thing which is not their agreement, and for which they have never asked, would thus be forced on them, and the sense of injustice would be equally strong. It is respectfully urged that the granting of this constitution without amendment is the only way out of such a dilemma. When the Federal Council Bill was before the House of Commons in August, 1885, a right honourable gentleman, respected by all parties as a high constitutional authority, directed attention to several points in relation to that Bill which discover marked differences between its bistory and character and those of the present measure. He remarked that
there was no evidence to show that the Bill then presented had really been satisfactorily discussed and considered in the Colonies themselves. He said that it emanated, in the first instance, from a small coterie of Prime Ministers. He declared that the Bill would have come before the House with greater autority if they had reason to believe that proper pains had been bestowed upon it, and that proper efforts had been made to obtain full publicity and discussion for it in the Australian Colonies themselves. He condemned it as a very scanty, fragmentary and imperfect sketch of a Federal Constitution. Nevertheless, he was content that the House should pass the Bill in the form in which the Colonies had asked it to do so, and as a matter of favour to them, but the responsibility of its formation would rest substantially more with the Colonies than with Parliament. The action of both Houses confirmed this view.
. In comparison, how irresistible is the present case! || Emanating in the first instance from the Australian electors, through specially chosen representatives, moulded by these with infinite pains, framed in full publicity, and then discussed for nearly 12 months in the Debates of the Convention, the columns of the Press, and the meetings of the people, the measure now to be submitted to the Imperial Parliament differs in every one of these respects, and radically differs, from the Feneral Council Bill. For the „scanty, fragmentary, and imperfect sketch“ of Federal Union presented in 1885 there has now been substituted a Constitution which may without presumption be characterised as complete in all its parts, and, after most anxious consideration of previous Federal Charters, approved and accepted by the Parliaments and the people of the federating Colonies. If British statesmen were content, as they showed that they were content, to pass the former measure in the shape given to it by Executive Governments alone, how much stronger is now the appeal of Australia to the sense of justice and of generosity of Government and Parliament when they are asked to confirm the Constitution of her Commonwealth, framed by the chosen of her people and solemnly agreed to by that people themselves. || In the speech from which extracts have already been taken, it was justly said that the responsibility for the Fcderal Council would rest with the Colonies themselves. Five Australian Colonies, by an aggregate majority of nearly three to one of their people, have affirmed with the utmost emphasis that they are prepared to take the responsibility of their own Constitution. They are of British stock; they are fellow countrymen of the people of this Kingdom; they have no more confidence in themselves and in their power to work out their own destiny than is right and just in men of their blood; that