the whole of this enactment the ,,draft Bill" is the measure which is to be put to the vote, and the term "Constitution" is defined as the draft of a Federal Constitution set out in the 3rd Schedule", turning to which we find it to contain the draft Bill,,,covering clauses" and all. It was this draft Bill which was submitted to the final vote, and that is why the whole of it is send forward with the Parliamentary Addresses as ,,the accompanying Constitution", the enactment of which is prayed. || The Convention, then, did not act ultra vires of the Enabling Acts in preparing and submitting the covering clauses. The same consideration was given to them as to the rest of the Bill. They are part of the Constitution as defined in those Acts, in compliance with which they were submitted to the people. The Enabling Acts were passed, within their legislative powers, by the Parliaments of the several Colonies, and assented to by Her Majesty's Representatives, and no attempt has ever been made to disallow any of them. || It is quite true that there are ways in which the covering clauses could be altered without changing the meaning of the Schedule, but that is not the case with regard to the suggested alterations as to Privy Council Appeals, which is avowedly intended so to operate as to practically nullify clause 74. No Delegate and no Australian Minister has ever admitted, or even suggested, that it would be a preservation of the intercolonial compact of the electors to make such an alteration as this. There is no utterance of Mr. Barton's, nor is there any inference to be drawn from any words of his, which can point to any acquiescence on his part in anything amounting to an amendment of the Schedule headed,,The Constitution". The very passage quoted on p. 2 of the Memorandum of Her Majesty's Government from a speech of his at the Sydney meeting of the Convention in 1897 is an expression of his confidence, that the provisions of the Constitution" itself would not be altered, and cannot be cited to show that he would acquiesce in amendments of its simply because they were made through the covering clauses. But the Delegates would remark that the question now under discussion should be considered in relation rather to the conclusions of the Convention and afterwards of the Premiers, as ratified by the electors, than to the expressions of individual representatives in debate. It may here be made clear, if, indeed, it is not so already, that the Delegates do not put forward on the part of Australia any claim to have a final voice in respect of matters which are not purely Australian". They believe, and with confidence, that there is no desire to prevent Australians from managing their own affairs, so long as in so doing they make no attempt to manage the affairs of other countries. They do not presume to doubt

that Her Majesty's Government, and the Parliament of the United Kingdom, being in a sense trustees for the whole of Her Majesty's dominions, regard it as their duty to see that no one part of the Empire exercises its self-governing powers in derogation of the rights of other parts of the Empire. On the other hand, if an extension of self-government is sought under circumstances which do not injuriously affect other parts of Her Majesty's dominions, the Australian people believe themselves to be entitled to such an extension. This is merely an assertion of the ordinary rights of British citizenship among Her Majesty's free white subjects.

The substantial questions then are 1. Whether clause 74 derogates from the rights of other parts of the Empire? and || 2. Even if it appears technically to do so, whether the clause would in its operation injuriously affect other parts of Her Majesty's dominions? || The Delegates confess their inability to see that an affirmative answer can be given to either of these questions. As to the first question, the clause expressly reserves the rights, or, to use its own words, the public interests" of every part of Her Majesty's dominions outside the limits of the Federation. It is said that ,,public interests" need legal definition. If the expression has no technical meaning, it must be construed in its ordinary and common-sense signification, and there ought to be no difficulty on the part of the average citizen in understanding the meaning of a term which he reads every day in his newspaper, and frequently employs in his speech. Where the question at issue concerns the legislative powers given by the Constitution to the Federal Parliament, or those conserved to a State, the „public interests" of another part of the Empire will be involved where it becomes necessary to define the extent to which, if at all, the exercise of such powers has impinged on those exercised by the Crown, or by the Imperial Parliament, or by the Legislature of any other part of the Queen's dominions. It is evident that this consideration meets most of the difficulties suggested in the Memorandum of the Government, inasmuch as in this class of cases the path of appeal to Her Majesty in Council cannot be barred by the clause. If, for instance, questions arise,whether legislation under any of the powers mentioned in paragraphs 1, 9, 10, 19, 20, 26, 27, 28, 29, 30, 37, and 38 of Article 51 of the Constitution is or is not ultra vires", and the legislation involves matters,,affecting foreigners and foreign ships in Australia and in Australian waters, and their Treaty rights", clause 74 will not take away the right of appeal, for the public interests of Her Majesty's dominions outside Australia would be involved. Any other conclusion

would need for its support the somewhat embarrassing contention that in such instances there is no conflict of public interests. || If the interests of investors in Australian securities, or of shareholders in „industrial undertakings formed in the United Kingdom to carry on some great commercial enterprise in Australia", are touched as the result of Federal legislation, they can be equally touched now under those Constitutions which give the several Colonies the right to legislate for the peace, order and good government of those Colonies in all cases whatsoever“. These are powers in the every-day possession of each of the Colonies composing the Australian Federation: powers which are not grudged to them singly, but which are supposed to be dangerous in the hands of the Commonwealth they are about to form, and especially dangerous when the legal mind expresses itself judicially in Australia instead of at Westminster. Is this the time for such mistrust? || But assuming that the interests of these classes of subjects are not „public interests" of the parts of the Empire in which the subjects live, how can it be said that Imperial interests are affected by the subjection of enterprises in Australia to Australian laws, for the mere reason that these laws are to be interpreted by Her Majesty's Judges in Australia. British investors are content to lay out their money in other parts of the world under alien laws, interpreted by alien tribunals. Australians will be prone to doubt that such investors can be seriously alarmed at the prospect of having afforded to their investments in Australia the security of British laws administered by British Judges, a security which will never be questioned. The Memorandum refers to the high standing and ability of Australian Judges, although the basis of the Memorandum appears to imply a want of confidence in their trustworthiness. The capacity and impartiality of Judges drawn from Australia have lately been recognized by making them eligible to seats on the Judicial Committee of the Privy Council. Surely their possession of these qualities is not doubted because they sit in Australia, and admitted only when they are associated in their labours with Imperial Judges? Or can it be supposed that they are unable to discharge their duties adequately or without bias except on the opposite side of the world to that in which the cause of action. arose? Our Judges are now appointed to hear the very class of causes in which it is suggested that they would prove unreliable if they heard them in Australia. || The Delegates fail to understand how the interpretation given to the Federal Constitution, or to the Constitution of an Australian State, is likely to derogate from the rights, or to injure the public interests of, for example, Hong Kong or Vancouver. The principles

of statutory interpretation are the same throughout the Empire, and when those principles are applied in Australia to extract the meaning of a clause or a phrase, the process is scarcely likely to diminish the security of life, liberty, or property elsewhere. If a controversy is finally decided by the High Court of Australia the decision will, of course, be a guide, but in Australia only, to the settlement of subsequent controversies in similar cases; but that is to-day the fact with respect to the decisions of the Superior Courts, in all parts of the Empire, when not appealed from; and however closely those decisions may be followed in the Courts which give them, it will scarcely be contended that they injuriously affect the rights of litigants in other parts of the Empire, or shake the principles upon which those rights are upheld. || It is, however, generally contended, in opposition to clause 74, that its operation would ,,tend to destroy uniformity of decision on constitutional questions", and would in this way raise confusion and uncertainty, which would be against the interests of the rest of the Empire. The principles of the interpretation of Statutes are so well understood that any lack of uniformity in that regard is out of the question. But in their application to the words of an Australian Constitution, the occasion for uniformity of the decisions with those given on the meaning of other Constitutions does not even arise. The decisions of the particular Court would be consistent, one with another, whether pronounced by the High Court or by the Privy Council; since the same Court does not usually give inconsistent judgments; but the questions which may be raised as to the construction of the Constitution must themselves differ so completely from questions affecitng Constitutions of different design, that uniformity of decision is in this respect as unattainable as it is undesirable. The Constitution of Canada is entirely different from the Commonwealth Bill in many points, but especially as regards the reservation of residuary powers affected by the enumeration in clause 5, and by the express reservations of clauses 106, 107 and 108. Uniformity of decisions in questions such as these would be an attempt to bring two differing Constitutions into line, with the result of confusion and disaster. || Judicial knowledge of local conditions is an essential to true interpretation which, nevertheless, differs with the conditions; and where the structural methods of two Constitutions are as widely apart as the countries to which they apply, and where also the local conditions are as far asunder as the methods or the countries, to strain after uniformity of decision is to grasp at peril with both hands. If uniformity of legislation in widely separate parts of the Empire is unattainable, as it will be so long as

men of British race are free, it cannot be said to be so important as to be essential to Imperial interests that there should be uniformity in the interpretation of dissimilar Constitutions. Moreover, sensible business people do not resort to lawyers at a distance from a country to find out what the law of that country is. If a merchant in London wants to know the Australian law affecting his interests he seeks the advice of competent counsel in Australia; he does not prefer the opinion on such questions of even the most eminent of English lawyers. Why is this? Clearly because his common sense tells him that an intimate knowledge of local laws and conditions is of the highest importance in the formation of a sound opinion. Suppose, then, that the leading counsel in Australia and the eminent jurist in England are both promoted to the Bench, will it follow that the promoted Englishman will understand the local law as well as his promoted brother in Australia, to whom a superior knowledge of that law was accorded in practice before his promotion? || Her Majesty's Judges in Her Australian Courts may be as fairly trusted to abstain from infringing the rights of Her subjects residing elsewhere as any Judges in any other of Her Courts. Justice is administered in the name of the Queen. The Courts, wherever situated, are constitutionally Hers, and the Judges are constitutionally Her selection, nor has it been found difficult to give Australian Judges the status of Privy Councillors. Her Advisers in Australia are, and will be, as responsible for wrong guidance as are Ministers in this Kingdom, and Australians are not so un-British as to admit that 4 000 000 of them cannot properly conduct their own affairs, or properly choose Judges who can say, better than any authority elsewhere, what those Australians mean in their Constitutions. It may, of course, be said that the Commonwealth Bill will be an Imperial Act. Nevertheless, it is an instrument of Government framed by chosen Australians and ratified by those who chose them. If the Australians had not made it the occasion for this discussion would never have arisen.

In discussing the first of the questions which they take to be involved, the Delegates have found it impossible to avoid touching the second; but probably it will be opposite to the second question to remark briefly on the contention, that to reserve to Her Majesty's Judges in Australia the final decision of a few Australian questions will shatter, or at least weaken, a link of Empire". The Delegates reflect with pride that there are sentiments which will constitute eternal links of Empire", but are quite unable to understand how there can ever be the least hope that we can merely, „by insuring uniform interpretation of the law throughout