002-Hansard Quotations Reference by G. H. Schorel-Hlavka

8/14/2019 002-Hansard Quotations Reference by G. H. Schorel-Hlavka

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This list of quotations has been compiled by Mr G. H. Schorel-Hlavka Author of books in

the INSPECTOR-RIKATI series on certain constitutional and other legal issues as a

handy reference for those wanted to do so research.It is not intended that this reference is relied upon as one always should check back to the

Hansard records and read the debates in its entirety as then and only then you may just5

understand/comprehend that regardless that the Framers of the constitution are long death thereality is they created a constitution that is today as valid as it was then. After all, if it werent

then the electors could have amended the sections if they pleased to do so!

.

LEGAL REALITY (Part 1)10

.

Hansard 2-2-1898 Constitution Convention DebatesQUOTE Mr. DEAKIN (Victoria).-

The record of these debates may fairly be expected to be widely read, and the15

observations to which I allude might otherwise lead to a certain amount of

misconception.END QUOTE

.HANSARD 14-4-1897 Constitution Convention Debates (Official Record of the Debates of20

the National Australasian Convention)QUOTE

Mr. REID: If it appeared on the face of the Bill, we have to assume first that theGovernment would bring in a Bill which on the face of it was illegal, and that there

would not be one pure soul in the House to call attention to it, and that even the25

immaculate Senate would not contain an angelic mind that would do its duty to the

Constitution. Heaven help the Constitution if it is to be run on these lines! The Upper

House will not allow its rights to be violated if they are put in the Constitution, andthe object of the amendment is simply to prevent an unfortunate accident, which

would happen over and over again in Acts of Parliament, from rendering an Act after30it has received the Royal assent, and which might be, perhaps, the deliberate policy of

the country, accepted by vast majorities in both Houses, invalid. I would not have

proposed this amendment in face of the serious debate it has provoked. I proposed, ifno member of the Convention has a previous amendment:

END QUOTE35

.HANSARD 22-4-1897 Constitution Convention Debates (Official Record of the Debates of

the National Australasian Convention)

QUOTE

Mr. BARTON: Let this speech do for the referendum also.40

Mr. TRENWITH: I say with these evidences of the desire on the part of the people

for more freedom, for greater facilities for giving effect to the popular will, we oughtto make provision in this Constitution by which the will of the people can become law.

If we do that we shall be doing something which will make it more certain that this

Constitution will be adopted by the people .45

END QUOTE.

Hansard 1-2-1898 Constitution Convention Debates (Official Record of the Debates of the

National Australasian Convention),


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QUOTE Mr. OCONNER (New South Wales).-

Because, as has been said before, it is [start page 357] necessary not only that the

administration of justice should be pure and above suspicion, but that it should bebeyond the possibility of suspicion;

END QUOTE5

The following will also make clear that the Framers of the Constitution intended to have CIVIL

RIGHTS and LIBERTIES principles embedded in the Constitution;

HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of10

the National Australasian Convention)QUOTE Mr. CLARK.-

for the protection of certain fundamental rights and liberties which every individual

citizen is entitled to claim that the federal government shall take under its protection and

secure to him.15

END QUOTE.

Hansard 20-4-1897Constitution Convention Debates

QUOTE Mr. HIGGINS:I think it is advisable that private people should not be put to the expense of having20

important questions of constitutional law decided out of their own pockets.END QUOTE

.

HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of

the National Australasian Convention)25

QUOTE Mr. ISAACS.-

The right of a citizen of this great country, protected by the implied guarantees of itsConstitution,

END QUOTE

.30Hansard 8-2-1898 Constitution Convention DebatesQUOTE Mr. OCONNOR (New South Wales).-

But it is for us to consider, looking at the history and reasons for these provisions in the

Constitution of the United States, whether they are in any way applicable; and I quite agree

with my honorable and learned friend (Mr. Carruthers) that we should be very careful of35

every word that we put in this Constitution, and that we should have no word in it which

we do not see some reason for. Because there can be no question that in time to come,when this Constitution has to be interpreted, every word will be weighed and an

interpretation given to it; and by the use now of what I may describe as idle words which

we have no use for, we may be giving a direction to the Constitution which none of us now40

contemplate. Therefore, it is incumbent upon us to see that there is some reason for every

clause and every word that goes into this Constitution.

END QUOTE

And

QUOTE45

Surely every person who has the suffrage-the right to vote within the Commonwealth-

and who lives within the Commonwealth, is a citizen of the Commonwealth, andentitled to all its privileges, including the right to take part as the Commonwealth

provides in the framing of the laws.


3/43





END QUOTE

.

It must be clear that the terminology used by the Framers of the Constitution are; British

subject, to make persons subjects of the British Empire., with the consent of the5

Imperial authority, What is meant is a dual citizenship in Mr. Trenwith and myself. That

is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is thedual citizenship., we are all alike subjects of the British Crown. We have a High Court of

Australia that appears to me being political motivated to try to alter the Constitution by stealth

by endorsing a substitute Constitution! The question is if the judges of the High Court of10

Australia committed TREASON?.

Thomas Jefferson:.

QUOTE15

"The germ of destruction of our nation is in the power of the judiciary, anirresponsible body - working like gravity by night and by day, gaining a little

today and a little tomorrow, and advancing its noiseless step like a thief overthe field of jurisdiction, until all shall render powerless the checks of one

branch over the other and will become as venal and oppressive as the20government from which we separated.".

END QUOTE

.

Director of Public Prosecutions v Serratore Nos. Ca 40642/95 and Crd 72680/95 Criminal

Law and Procedure - Statutes - Human Rights - Telecommunications - Law Reform [1995]25

NSWSC 154 (14 November 1995)QUOTE

"It is well established that the Court should not impute to the legislature an intention to

interfere with fundamental rights, freedoms or immunities; such an intention must beclearly manifested by clear and unmistakable language: Coco v The Queen [1994] HCA 15;30

(1994) 179 CLR 427 at 436-437. ... The close link between the fundamental right to be

secure against trespass and the right to privacy is illustrated by the observations by Lord

Scarman in Morris v Beardmore (1981) AC 446 ... Parliament itself has ... recognised, in

the context of telecommunications, the fundamental importance of protecting individualprivacy, although also recognising that the value of privacy can be over-ridden where it35

conflicts with other significant community values, provided that detailed safeguards are

observed. The recognition and protection of privacy in the Intercept Act, in my view,

justifies a restrictive approach to the construction of the statutory exceptions to the

prohibitions on interception. ... where there is a genuine doubt as to whether the statutory

language authorises the use of intercept information for a particular purpose, that doubt40should be resolved in favour of a narrow, rather than a broad construction of the statutory

authorisation."

END QUOTE

.

Hansard 19-4-1897Constitution Convention Debates45QUOTE

Mr. CARRUTHERS:

This is a Constitution which the unlettered people of the community ought to be able

to understand.END QUOTE50


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.

Hansard 22-2-1898 Constitution Convention Debates

QUOTE Mr. SYMON (South Australia).-

That this is not like an Act of Parliament which we are passing. It is not in the position

which Mr. Barton has described, of choosing or setting up a code of laws to interpret the5

common law of England. This Constitution we are framing is not yet passed. It has to

be handed over not to a Convention similar to this, not to a small select body of

legislators, but to the whole body of the people for their acceptance or rejection. It isthe whole body of the people whose understanding you have to bring to bear upon it,

and it is the whole body of the people, the more or less instructed body of the people,10

who have to understand clearly everything in the Constitution, which affects them for

weal or woe during the whole time of the existence of this Commonwealth. We cannot

have on the platform, when this Constitution is commended to the people, lawyers onboth sides, drawing subtle distinctions, which may or may not be appreciated by the

people.15

END QUOTE

.

Hansard 22-9-1897Constitution Convention DebatesQUOTE

The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the20

commonwealth exercises the power, the states must retire from that field of

legislation.END QUOTE

.

Hansard 30-3-1897Constitution Convention Debates25

QUOTE Mr. REID:

We must make it clear that the moment the Federal Parliament legislates on one of

those points enumerated in clause 52, that instant the whole State law on the subject is

dead. There cannot be two laws, one Federal and one State, on the same subject. Butthat I merely mention as almost a verbal criticism, because there is no doubt,30

whatever that the intention of the framers was not to propose any complication of the

kind.END QUOTE

QUOTE35

The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load

the commonwealth with any more duties than are absolutely necessary. Although it is

quite true that this power is permissive, you will always find that if once power isgiven to the commonwealth to legislate on a particular question, there will be

continual pressure brought to bear on the commonwealth to exercise that power. The40

moment the commonwealth exercises the power, the states must retire from that field

of legislation.END QUOTE

.

Hansard 2-3-1898 Constitution Convention Debates45

QUOTE

Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power , and there isno doubt that it will be exercised.

QUOTE

.50


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HANSARD 11-03-1891 Constitution Convention DebatesQUOTE

Mr. CLARK: What we want is a separate federal judiciary, allowing the statejudiciaries to remain under their own governments.

END QUOTE5

.HANSARD 1-3-1898 Constitution Convention Debates

QUOTE Mr. SYMON.-

Then, I think myself, some confusion may arise in consequence of the reference to the state

in the words "Proceedings to be taken against the Commonwealth or a state in all cases10

within the limits of the judicial power." Now, it does not appear to me that we ought to

interfere in any way with the functions of a state to regulate the proceedings which it,

as a quasi-independent political entity, may prescribe for the regulation of its ownlegal proceedings.

END QUOTE15

.Hansard 9-9-1897 Constitution Convention Debates

QUOTE

Mr. GLYNN ( South Australia )[12.35]: I have not the Federal Council Bill before me;but I believe that that bill contained the words "sailing between the ports of the colonies."20

The bill was sent home with those words in it; but her Majesty's advisers at homedeliberately changed the wording of the measure so as to give the Council wider

jurisdiction. There was a limitation in the bill which does not appear in the act, and the

Imperial authorities must have made this alteration for some specific purpose. They

could not have accidentally inserted the words "port of clearance, or ." There is no danger25

of conflict between the laws of the commonwealth and the Imperial law. The moment

a new act is passed in England which conflicts with any legislation passed by the

commonwealth, that act will to the extent of the difference abrogate the legislationunder the constitution of Australia .

END QUOTE30.

Hansard 1-3-1898 Constitution Convention DebatesQUOTE

Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other

power?35

Mr. GORDON.-There will be more than one sentry. In the case of a federal

law, every member of a state Parliament will be a sentry, and, every constituent

of a state Parliament will be a sentry. As regards a law passed by a state, everyman in the Federal Parliament will be a sentry, and the whole constituency

behind the Federal Parliament will be a sentry.40

END QUOTE

.Sorell v Smith (1925) Lord Dunedin in the House of Lords

QUOTE

In an action against a set person in combination, a conspiracy to injure, followed by actual45

injury, will give good cause for action, and motive or instant where the act itself is not illegal is

of the essence of the conspiracy.END QUOTE

.



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QUOTE Mr. BARTON.-

Under a Constitution like this, the withholding of a power from the

Commonwealth is a prohibition against the exercise of such a power..


QUOTE

Mr. HIGGINS.-The particular danger is this: That we do not want to give to

the Commonwealth powers which ought to be left to the states. The point is thatwe are not going to make the Commonwealth a kind of social and religious power

over us.10

END QUOTE.

HANSARD 1-3-1898 Constitution Convention DebatesQUOTE Mr. GORDON.-

The court may say-"It is a good law, but as it technically infringes on15

the Constitution we will have to wipe it out."END QUOTE

And

QUOTE Mr. BARTON.-The position with regard to this Constitution is that it has no legislative20

power, except that which is actually given to it in express terms or which is

necessary or incidental to a power given.END QUOTE

.


QUOTEstart page 1020] I think that we ought to be satisfied on these points, and satisfied that

if we leave the clause as it now stands there will, at any rate, be some proviso insertedwhich will safeguard the states in the carrying out of any of their state laws over

which the states are to be supreme even under federation.30END QUOTE.

Hansard 3-3-1897 Constitution Convention Debates (Official Record of the Debates of the

National Australasian Convention) (Chapter 33 of the CD)

QUOTE35

Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I wouldlike to draw the Drafting Committee's attention to the fact that in clause 52, sub-section (2),

there has been [start page 1856] a considerable change. Two matters in that sub-section

seem to me to deserve attention. First, it is provided that all taxation shall be uniform

throughout the Commonwealth. That means direct as well as indirect taxation, and40

the object I apprehend is that there shall be no discrimination between the states; thatan income tax or land tax shall not be made higher in one state than in another. I

should like the Drafting Committee to consider whether saying the tax shall be uniform

would not prevent a graduated tax of any kind? A tax is said to be uniform that falls with

the same weight on the same class of property, wherever it is found. It affects all kinds of45

direct taxation. I am extremely afraid, that if we are not very careful, we shall get into adifficulty. It might not touch the question of exemption; but any direct tax sought to

be imposed might be held to be unconstitutional, or, in other words, illegal, if it werenot absolutely uniform.

END QUOTE50

Again;


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QUOTE

It might not touch the question of exemption; but any direct tax sought to be imposed

might be held to be unconstitutional, or, in other words, illegal, if it were notabsolutely uniform.

END QUOTE5

And again;QUOTE

It might not touch the question of exemption; but any direct tax sought to be imposedmight be held to be unconstitutional, or, in other words, illegal, if it were not

absolutely uniform.10

END QUOTE.

QUOTE

Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be

necessary for the Federal Parliament to make them commence at a certain amount at once.15

We have pretty heavy duties in Victoria, and if the uniform tariff largely reduces them atonce it may do serious injury to the colony. The Federal Parliament will have power to

fix the uniform tariff, and if any reductions made are on a sliding scale great injury

will be avoided.END QUOTE20

.


Mr. ISAACS.-The court would not consider whether it was an oversight or not.

They would take the law and ask whether it complied with the Constitution. If it did25

not, they would say that it was invalid. They would not go into the question of what wasin the minds of the Members of Parliament when the law was passed. That would be a

political question which it would be impossible for the court to determine.

END QUOTE

And30QUOTE

Mr. BARTON.-Are not the annual services the annual expenditure proper to the publicservice?

Mr. ISAACS.-Supposing that some compensation were being paid to a discharged public

servant. That would not come within the ordinary annual services.[start page 2003] It35

would not be proper to the public service of the Commonwealth. It would not be apayment for services rendered in the future, but for services in the past.

END QUOTE

And

QUOTE40Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no

special court, but the general courts would undoubtedly protect the states. What Mr. Isaacs

seeks to do is to prevent the question of ultra vires arising after a law has been passed.

[start page 2004]

Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be45

invalid.

END QUOTE

And


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QUOTE Sir JOHN DOWNER.-No one is more in favour of that than I am. But, at the same time, it is said-"Let the Houses

of Parliament act capriciously and variously from day to day-allow this 'tacking' to go on if

the Houses choose to agree to it-let the Houses do one thing one day and another the next,

and do not bother about altering the Constitution, but trust the Parliament." Of course; but5

Parliament must only be trusted when it is within the Constitution. The Senate of to-day and the House of Representatives must not be put in a position superior to the

Constitution.

END QUOTE

.10

Hansard 8-3-1898 Constitution Convention DebatesQUOTE Mr. DEAKIN.-

. The arguments of the Hon. Mr. Carruthers appear to have fallen on deaf ears, but, [start

page 2042] as he pointed out, if there be embedded in the Constitution a direct enactment

that no proposed laws for taxation including more than the one subject of taxation, and no15

proposed Appropriation Bill going outside the ordinary services of the year, can be legally

dealt with, both the Speaker of the House of Representatives and the President of the

Senate would not only be authorized, but would be imperatively required, in the

discharge of their duty, to rule such a measure out of order at any stage of itsexistence.20

END QUOTEAnd

QUOTE

Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people

and the states on terms that are just to both.25

Mr. DEAKIN.-It is made for the lawyers under this clause.

Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," no

Constitution is required at all ; it can simply be provided that a certain number ofgentlemen shall be elected, and meet together, and, without limitation, do what they like.

Victoria would not agree to that. But there is a desire to draw the very life-blood of the30

Constitution, so far as the states are concerned, by this insidious amendment, which would

give the Houses authority from time to time to put different constructions on this mostimportant part of the Constitution. I hope we will do as we have done in many instances

before, in matters that have been much debated-adhere to the decision we have already

arrived at.35

END QUOTEAnd

QUOTE Mr. HOLDER.-

Surely there would be at least one representative out of the whole Senate and one

member of the House of Representatives, who would have individuality enough, and40

strength enough, to get up and challenge the order of any particular measure which

might be disorderly under this clause of the Constitution.

Mr. ISAACS.-They would not all sit on the same side of the House.

Mr. HOLDER.-I should think not. They would not all be Ministerialists, or all members

of the Opposition, or all members of any particular party; and I cannot believe that any Bill45

which contained anything objectionable at all could pass through both Houses of the

Federal Legislature without finding some one member of either of the two Houses who


9/43





would rise to a point of order, and have such a Bill laid aside of necessity as being out oforder under this provision.

END QUOTE

And

QUOTE5

Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a

proposed law has to go through, and the opportunity afforded to a member of either House

or a member of the Executive to call attention to any infraction or infringement of theConstitution. It does not require a majority of the members of the House of Representatives

to insist that the Constitution shall be obeyed in the matter of procedure; it only requires10

one solitary member to rise to a point of order , and the Speaker has to give a legal

interpretation of the rules of procedure. It only requires one member of the Senate to call

the attention of the President to the fact that a Bill is introduced contrary to theConstitution for that proposed law to be ruled out of order. It does not require a

majority of the states to insist that the Constitution shall be obeyed, because a15

majority of the states cannot by resolution infringe the Constitution. Neither House

could pass the standing order which would give the majority power to dissent from theSpeaker's or President's ruling. The standing orders only confer certain explicit power.

They give no power to either House to pass an order which would enable its members toamend the Constitution.20

END QUOTE

AndQUOTE

Mr. OCONNOR (New South Wales).-I quite agree with Mr. Trenwith that the object of

the provision is to protect the [start page 2010] Senate from being coerced by the House25

which has the power of the purse primarily. But the question between us is not whether youshould take away that protection, but whether you should allow the Senate itself to give up,

whether by accident or design, on any particular occasion, the protection which the

Constitution has implanted there for its benefit. The protection of this Constitution is given,

not for the Senate for the time being, but for the people of the states whom the Senate30

represents. The question really is whether, for the purposes for which this provision isdesigned, that is to say, the protection of the people of the states, as states, it is necessary

that this provision should stand which makes a Bill illegal if these provisions are not

complied with, or whether it should be made merely a matter of parliamentary order

between the two Houses?35

.Mr. OCONNOR.-That is begging the question. Even under the circumstances mentioned

by the honorable and learned gentleman, if the rights we are giving under this Constitution

to the House which represents the states are to be of any value at all, we should not put it

into the power of a majority in the House of Representatives or in the Senate to40bargain them away, or to give them away at their will.

END QUOTE

And

QUOTE Mr. OCONNOR.-

But these difficulties can be overcome by the proper consideration of the terms of the45

Constitution. I submit that the question raised here is a very much more important onethan it seems to be thought by some honorable members. I think it is the very essence of the

Constitution that we should preserve the form which has been adopted here, and that we

should make the necessity of its adoption imperative upon the Government and the


10/43


11/43





AndQUOTE Mr. BARTON.-

Let us examine the matter a little. Is it right that there should be tacking? There is not an

honorable member in the Convention who will not say that it is wrong. This clause in itself

is a clause to prevent tacking, therefore, it is a clause to do right-for whom?-for the people5

themselves. What is the good of our arguing this question on the basis of the rights,

inter se, of the two Chambers, when the whole life of both these Chambers is that theyare servants of the public? For whom are these protections in clause 55 introduced? Is it

for the Senate they are introduced? No, it is for the public.

END QUOTE10

AndQUOTE Mr. BARTON.-

It is not a fact that clause 54 is a clause solely for the protection of the House ofRepresentatives. It confers corresponding rights. The argument fails there, because as

to clause 54 there are rights given to the Senate with reference to certain classes of15

Bills appropriating or imposing fines, or demanding or appropriating licence-fees or

fees for service.

Mr. ISAACS.-They are only exceptions, though.

Mr. BARTON.-They import a right. My honorable friend cannot get out of it in that

way. He cannot say, because it reads as an exception it does not also [start page 2017]20

confer a right. The test of that is this: Let the Senate originate a law which contains a

provision for imposing or appropriating fines or penalties, or which enables a demand

or appropriation of fees for licences or fees for services, and that law is valid withinthe Constitution. The Senate has a right to originate the law, and therefore this

provision conveys a right. Now, there is a further provision there. While the Senate is25

prohibited from amending laws imposing a tax or appropriating money for the annualservices of the Government, sub-section (4) gives the Senate the right to make suggestions,

so that while there are rights given here to the House of Representatives to originate Taxand annual Appropriation Bills, while the Senate may not amend those two classes of Bills,

there are certain other classes of Bills which it can originate, there are certain other classes30

of Bills which it can amend, and besides that, under sub-section (5):-

Except as provided in this section the Senate shall have equal power with the House ofRepresentatives in respect of all proposed laws.

END QUOTE

And35

QUOTE Mr. HOLDER (South Australia).-

In an Appropriation Act we should have so many hundred thousand pounds for this,

and so many hundred thousand pounds for that, and other items; but we should haveno detail whatever. In no Appropriation Act passed by any Parliament is there given

small details of the amounts appropriated. An Appropriation Act would often include40

amounts of 10,000, 15,000, 20,000, and larger sums, the details of which would belost altogether in the mass of votes included in the Act . Therefore, it is quite impossible

for any court to tell from the mere construction of an Appropriation Act whether the items

do comprise moneys required for the ordinary annual services of the Government, even if

that phrase "ordinary annual services of the Government" were beyond dispute. Personally,45

I do not know what the phrase means, and I do not suppose it is possible for anybodydefinitely to say what it means.


12/43





Mr. REID.-With a new Government it will be a very difficult matter to know what are"ordinary annual services."

Mr. HOLDER.-Yes; but every item must be an annual expenditure, not one which

comes on specially. Now, we all know that all sorts of special emergencies arise in

every country, and that special provision has to be made for every such emergency.5

Mr. ISAACS.-Would 50,000 for contingencies be regarded by the court as money

appropriated for the ordinary annual services of the Government?

Mr. REID.-That would be a nice question for the High Court to determine.

END QUOTE

And10

QUOTE

Mr. ISAACS.-Suppose you had in the Appropriation Bill, a grant of 500 payable to

John Brown, and it was not one of the ordinary annual services of the Government:could not the court, under this sub section, set the whole law aside?

Mr. BARTON.-There i s no doubt that I might be tempted to return the same answer to15

that question which a speaker on a memorable occasion returned.

Mr. ISAACS.-It is a very good reason for not having the clause in the Bill.

Mr. BARTON.-It is no reason for not having the clause in the Bill. If my learned friend

thinks that the words as they stand are liable to confusion, if he thinks that the

ordinary annual services. of the Government do not sufficiently define the ordinary20

annual Appropriation Bill -an Act which the Government must pass to carry on its

own existence-let him suggest some better form of words. Let him make the clauseclearer, and by so much as he makes it [start page 2019] clearer he loses the whole

point and effect of his own argument. If the court were to decide that this grant of money

to John Brown is part of the ordinary annual services of the Government, let it be so; but if25it is not to decide the question we will soon find that out, and it can be rectified in sixhours.

Mr. TRENWITH.-But in the meantime the whole Bill goes.

Mr. ISAACS.-The whole law goes.

Mr. BARTON.-In the meantime the whole Bill need not go. We know very well that the30

whole Bill does not go under these circumstances, and I am astonished that some of myhonorable friends have not sufficient recollection of Victorian history not to tell us that.

Mr. ISAACS.-We have too vivid a recollection of Victorian history to allow this to pass.

Mr. BARTON.-Well, summing up, if the argument is that the sub-section should be

made clearer, let us have suggestions for the clearing of the sub-section, and, in proportion35

as those suggestions are good, the necessity for my learned friend's amendment diminishes;but I submit that where a law bears on its face the evidence of an infraction of the

Constitution, we should be entitled not to allow the process of that law to be regulated by

mere methods of procedure, but to submit them to the determination of the court, because

of the evil which appears on their faces. Then, as regards the objections taken to clause 54,40

I submit that under that clause the rights of the Senate and the House of Representatives arecorrelative rights, but that we are not here to confer rights on Chambers, except by


13/43





way of making them instruments of the rights of the people-that so far as we assume todo that we do that sufficiently under clause 54, a clause relating to procedure, without

invoking a judicial tribunal to interfere with mere matters of procedure; but that where the

matters are not only procedure, but go beyond procedure, so as to be matters which carry

on their face the evidence of distinct infractions of the Constitution, then, as we do under5

clause 55, we do right to submit those matters to the judicial tribunal.

END QUOTE

AndQUOTE

Mr. HIGGINS.-Supposing that an Appropriation Bill is brought up from the House10

of Representatives providing for the ordinary annual services, and providing,

amongst other things, for the payment of light-house keepers, the Senate might thinkthat this provision for the payment of the light-house keepers should not be carried unless a

provision was also inserted dealing with the light-house keepers who had been dispensed

with.15

Mr. DOBSON.-We should put them in a separate Bill.

END QUOTEAnd

QUOTE

Sir JOHN DOWNER.-20

It is said we have sought to establish a Constitution by analogy to the House of Lords

and the House of Commons in England. But we know that there is no analogy, or, if

there were an analogy, we should have to consider what would be a very solemn andserious question-whether we should have federation or a general amalgamation.

Mr. MOORE.-Unification.25

Sir JOHN DOWNER.-I hate the word "unification," and will not use it. I have said

before that there is much to be said for amalgamation. I can understand that theremight be an immense amount of money saved by amalgamation in the way of carryingon the government of the country, and there might be an immense amount of force

from the head of the Commonwealth which you cannot get from the partial30

disintegration which is involved even in federation. But it is not our mission to

establish an amalgamation of these colonies. We are here under Bills passed by our

various colonies, and there is a claim for federation, and not a claim for merging thecolonies in one common concern.

END QUOTE35

AndQUOTE

Mr. ISAACS.-I should hope that the expenditure caused by a bush fire would not be

part of an annual service.

Mr. MCMILLAN.-Would it not into the Appropriation Bill?40

Mr. ISAACS.-Yes; but not as an annual service.

Mr. MCMILLAN.-The annual services of the Government are those which we

distinguish from special grants and from loan services. The difficulty is that we havegot rid of the phraseology to which we are accustomed, and instead of the words

Appropriation Bill, we are using the word law.45


14/43


15/43


16/43





bankruptcy, or state insolvency, we do not mean to impute that any state of theCommonwealth, under any set of circumstances, is likely to repudiate its obligations.

Mr. ISAACS.-Such a thing is absolutely impossible.

Mr. SYMON.-Therefore, while we use the terms "bankruptcy" and "insolvency" as

applying to a possible state of things which we wish to avert, it is not to be imagined5

for a moment that we contemplate that such a state of things is going to exist, but we

mean that a state may be in such a condition of strait, or the Treasurer of that statemaybe in such a condition of administrative embarrassment, that it may be necessaryto have re-course to the Commonwealth for assistance in some shape or other. Now, I

also desire to say that I do not think it is necessary to determine, and it will be10

impossible for this Convention to determine, whether or not this implied power exists

in the Constitution. There might be, and no doubt would be, a strong difference of

opinion upon the subject, and even if we, assembled here, were unanimous on thesubject, that fact would not assist the final determination of the question when the

exigency arose. But I agree with Mr. O'Connor that undoubtedly in the distribution of15

the surplus, and in dealing with the financial condition of the states, the

Commonwealth would be animated by a desire to see that the states were placed in a

position to meet all their engagements. The difficulty which Mr. Henry sees, and towhich he directs his amendment, is as to the condition of things during the five years'

interval-during the bookkeeping period-when there is an express appropriation of the20

surplus moneys. During that time Mr. Henry fears it is possible, without mentioning any

particular colony, that the Treasurer of one of the states might be unable to see his way tomeet his public engagements.

Mr. REID.-He could adopt Mr. Walker's proposal for capitalizing discrepancies.

Mr. SYMON.-That is one of those delightfully scientific proposals that appeal to the25

mind of the statistician and the financier more than to the mind of a humble layman, and I

am sure that if there is one member of this Convention competent to solve the problem ofcapitalizing a financial discrepancy it is Mr. Walker. However, I have pointed out what

seems to me to be the difficulty to which Mr. Henry has addressed his amendment, and I

feel that Mr. O'Connor's [start page 1116] argument, powerful as it is in reference to the30

condition of things after the expiration of the five years, is absolutely without force asapplied to the condition of things to which Mr. Henry's amendment is directed. But I go

further than that, and I take up the view which was dealt with by Mr. O'Connor on the

broad ground-and that is the position to which I wish to direct the attention of members of

the Convention-of whether it is politic or right to introduce this amendment into the35

Constitution. If this power is implied in the Constitution, then the amendment merely

asserts and makes absolutely clear a power which the Commonwealth might exercise

if the necessity arose. On the other hand, if it is not implied in the Constitution, itseems to me that it is a power that ought to be in the Constitution, so as to enable the

Commonwealth to do what I believe it would be the disposition of the Federal40

Parliament to do, namely, to come to the aid of any state which sought its interference

to protect that state from financial disaster or financial strait. I admit all thepossibilities on the two grounds put by Mr. Holder-that there is a possibility of this

provision leading to reckless financing on the part of the states, and also the other

ground that it imposes an obligation on the Commonwealth, and a difficulty with45

which the Federal Parliament and the Federal Executive may have to deal. But those

two things do not seem to me to outweigh the advantage of having this power clearlyexpressed in the Constitution, to enable the Federal Parliament to give that assistance


17/43





which might be absolutely essential to the stability and even to the existence of a

particular state. Now, I will suppose the case of a state in which such a condition of

things has arisen. But again, I say, I do not believe that such a condition of thingswould ever occur in any of the states of this Commonwealth. Still, suppose a state got

into financial embarrassment, and there was a tendency towards, or a talk of,5

repudiation, why should not the Federal Executive and the Federal Parliament, in the

interests of the Commonwealth, come to the assistance and relief of that state? Would

it not be infinitely better that the Commonwealth should exercise a power of that kindthan that it should allow a blemish to be put on the honour and good faith of the

entire Commonwealth, which would result from any one state repudiating its10

obligations? I admit that there are disadvantages and inconveniences on the one side,

but on the other there is the great principle that it is the duty of the Commonwealth to

maintain the existence, the integrity, and the solvency of every state. And I do say thatthat is the function of the Commonwealth.

Mr. REID.-Then it had better be put in the Bill, and let the people know what they15

are doing. If they are going to enter into a contract of that sort, the people had better

know it.

END QUOTEAnd

QUOTE20

Dr. COCKBURN.-The whole proposal is foreign to the spirit of the Constitution.

The Constitution lays it down that the Commonwealth is to deal equally with all thestates whether it is in the matter of taxation, of bounties, or of trade, and we may as well

strike out the provision that all taxation shall be uniform throughout the Commonwealth

if we are to contemplate that after the taxation has been raised the proceeds may be handed25

over to any one colony. The thing will not bear a moment's investigation, and I hope the

honorable member will not press his proposal to a division. It is a pity that the amendmenthas been brought forward. There is no possibility, nor does any one contemplate the

possibility, of any of the states being in a worse financial position than they are in at thepresent time. On the contrary, I believe that their financial position, good as it is now, will30

be infinitely improved.

END QUOTE

.


QUOTE35

Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52we find these governing words on the very forefront of that clause-

That Parliament shall, subject to the provisions of this Constitution, have full powerand authority to make laws for the peace, order, and good government of the

Commonwealth.40

We see there that the Commonwealth is named as distinguished from the states . Wehave our Constitution framed in this way with a Senate to guard what? The interests of the

states, so that the Commonwealth shall not intrude one inch into what is retained asthe executive rights and jurisdiction of the states.

END QUOTE45

.

HANSARD 26-3-1897Constitution Convention DebatesQUOTE


18/43





Mr. ISAACS: There is a line up to which concession may become at any moment asacred duty, but to pass that line would be treason; and therefore, when we are asked

solemnly and gravely to abandon the principle of responsible government, when we are

invited to surrender the latest-born, but, as I think, the noblest child of our constitutional

system-a system which has not only nurtured and preserved, but has strengthened the5

liberties of our people-then,END QUOTE

.

HANSARD 5-3-1891 Constitution Convention Debates

QUOTE Mr. MUNRO:10

We have come here to frame a constitution, and the instructions that were given to us,

I am happy to say, are very clearly laid down by the hon. member, Mr. Baker, in the

book which he was good enough to distribute amongst us. He puts it in this form:That it is desirable there should be a union of the Australian colonies. That is one of

the principles that has already been settled by all our parliaments. Second, that such union15

should be an early one-that is, that we should remove all difficulties in the way in order thatthe union should take place at as early a date as possible. Third, that it should be under

the Crown. Now, I am quite sure that is one of the most important conditions of all with

which we have to deal-that the union that is to take place shall be a union under the Crown.Fourth, that it should be under one legislative and executive government. That also is20

laid down by our various parliaments.END QUOTE

.

HANSARD 17-4-1897Constitution Convention

QUOTE Mr. DEAKIN:25

They both desire to retain for their Several States for all time the privilege of

controlling industrial disputes within their own borders.END QUOTE

.

HANSARD 19-4-1897Constitution Convention30QUOTE Mr. CARRUTHERS:

Mr. Barton first of all recites Dicey to show what occurs under the unwritten

Constitution of England. But here we are framing a written Constitution. Whenonce that Constitution is framed we cannot get behind it.

END QUOTE35

.

HANSARD 27-1-1898 Constitution Convention DebatesQUOTE Mr. SYMON.-

The relations between the parties are determined by the contract in the place where it

occurs.40

END QUOTEAnd

QUOTE Sir EDWARD BRADDON (Tasmania).-

We have heard to-day something about the fixing of a rate of wage by the federal

authority. That would be an absolute impossibility in the different states.45

END QUOTEAnd

QUOTE

Mr. BARTON: If they arise in a particular State they must be determined by the

laws of the place where the contract was made.50

END QUOTE


19/43





AndQUOTE

Mr. BARTON.-We do not propose to hand over contracts and civil rights to the

Federation, and they are intimately allied to this question.

END QUOTE5

AndQUOTE Sir JOHN DOWNER.-

The people of the various states make their own contracts amongst themselves, and ifin course of their contractual relations disagreements arise, and the state chooses to

legislate in respect of the subject-matter of them, it can do so.10

END QUOTE.


Mr. SYMON.-Why should you interfere with the laws in the different colonies15

affecting the relations of masters and servants, which are purely a matter of domestic

legislation? Why should you hand over that purely state function to the federalauthority?

END QUOTEAnd20

QUOTE

Mr. SYMON.-My honorable friend will hand that over to the Federal Parliament. I donot want to hand over to the Federal Parliament too many of these difficulties. This, in my

view, should be solved by the local authorities themselves. They are the people to deal with

their own questions of industrialism. I do not want to enter into a discussion as to the25

modes of carrying out this proposal; that will be a matter for the Federal Parliament if wedecide to introduce this power. But I will put to my honorable friend what is a practical

question in connexion with this power. Who is to decide as to when an industrial dispute

extends beyond the limits of a state? Who is to decide when a dispute originating in SouthAustralia enters into the colony of Victoria, so that Victoria shall be put under some kind of30

martial law?

Mr. ISAACS.-It is a question of fact, like anything else.

END QUOTE

And

QUOTE35

Mr. SYMON.-What relation has this to customs duties? The industrial life of the state is

considered by all of us (subject to this exception, it may be) a thing of purely domesticconcern. We do not want to interfere with the domestic life, or with industrial life, except

in the last resort. If you are going to introduce such a thing as this it must be the Federal40

Ministry which will have to decide, subject to the Parliament, and you will introduce the

greatest complication and intensity of feeling that was ever seen.

Mr. BARTON.-We do not propose to hand over contracts and civil rights to the

Federation, and they are intimately allied to this question.

END QUOTE45

.


QUOTE


20/43





Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection

of our interests, but also for the just interpretation of the Constitution:END QUOTE

.

HANSARD 8-2-1898 Constitution Convention Debates5

QUOTEMr. HIGGINS.-I did not say that it took place under this clause, and the honorable

member is quite right in saying that it took place under the next clause; but I am trying to

point out that laws would be valid if they had one motive, while they would be invalid

if they had another motive.10

END QUOTE.


QUOTE Mr. OCONNOR.-

We must remember that in any legislation of the Commonwealth we are dealing with the15

Constitution. Our own Parliaments do as they think fit almost within any limits. In this

case the Constitution will be above Parliament, and Parliament will have to conform

to it.

END QUOTE.20

HANSARD 1-3-1898 Constitution Convention DebatesQUOTE

Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes

on the Constitution we will have to wipe it out."

END QUOTE25

AndQUOTE

Mr. BARTON.- The position with regard to this Constitution is that it has no

legislative power, except that which is actually given to it in express terms or which is

necessary or incidental to a power given.30END QUOTE.


QUOTE

Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.35

END QUOTE

.HANSARD 2-3-1898 Constitution Convention Debates

QUOTE Dr. QUICK (Victoria).-

If under a Constitution in which no such words as these appear such legislation has40

been carried, what further danger will arise from inserting the words in ourConstitution? I do not see, speaking in ordinary language, how the insertion of such

words could possibly lead to the interpretation that this is necessarily a Christian

country and not otherwise, because the words "relying upon the blessing of AlmightyGod" could be subscribed to not only by Roman Catholics and Protestants, but also45

by Jews, Gentiles, and even by Mahomedans. The words are most universal, and are

not necessarily applicable only to Christians.END QUOTE

.


QUOTE


21/43





Mr. BARTON.-No; because you do not give any power with regard to punishingcrime to the Commonwealth, but you do give power to the Commonwealth to make

special laws as to alien races; and the moment you do that the power of making such laws

does not remain in the hands of the states; and if you place in the hands of the

Commonwealth the power to prevent such practices as I have described you should not5

defeat that regulative power of the Commonwealth . I do not think that that applies at all,

however, to any power of regulating the lives and proceedings of citizens, because we

do not give any such power to the Commonwealth, whilst we do give theCommonwealth power with regard to alien races; and having given that power, we

should take care not to take away an incident of it which it may be necessary for the10

Commonwealth to use by way of regulation. I have had great hesitation about this matter,but I think I shall be prevented from voting for the first part; and as to establishing any

religion, that is so absolutely out of the question, so entirely not to be expected-

Mr. SYMON.-It is part of the unwritten law of the Constitution that a religion shall not

be established.15

END QUOTEAnd

QUOTEMr. REID.-I suppose that money could not be paid to any church under this

Constitution?20

Mr. BARTON.-No; you have only two powers of spending money, and a churchcould not receive the funds of the Commonwealth under either of them.

[start page 1773]

END QUOTE

And25

QUOTE

Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there isno doubt that it will be exercised. By putting into the Constitution words prohibiting the

Commonwealth Parliament from making certain specified laws you create the implication

that the Parliament has power to deal in other respects with religious observances.30

END QUOTEAnd

QUOTE

Mr. SYMON.-The honorable and learned member is now dealing with another matter.

Would not the provision which is now before us confer upon the Federal Parliament the35

power to take away a portion of this dual citizenship, with which the honorable and learned

member (Dr. Quick) has so eloquently dealt? If that is the case, what this Convention isasked to do is to hand over to the Federal Parliament the power, whether exercised or not,

of taking away from us that citizenship in the Commonwealth which we acquire by joining

the Union. I am not going to put that in the power of any one, and if it is put in the power of40

the Federal Parliament, then I should feel that it was a very serious blot on the Constitution,

and a very strong reason why it should not be accepted. It is not a lawyers' question ; it is a

question of whether any one of British blood who is entitled to become a citizen of theCommonwealth is to run the risk-it may be a small risk-of having that taken away or

diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am45

willing to do it in everything which concerns the working out of this Constitution, but I am

not prepared to trust the Federal Parliament or anybody to take away that which is a leading

inducement for joining the Union.


22/43





END QUOTE.


Mr. SYMON (South Australia).-I think the honorable member (Mr. Wise) has expanded5

the spirit of federation far beyond anything any of us has hitherto contemplated. He has

enlarged, with great emphasis, on the necessity of establishing and securing one

citizenship. Now, the whole purpose of this Constitution is to secure a dual citizenship .That is the very essence of a federal system. We have debated that matter again and again.

We are not here for unification, but for federation, and the dual citizenship must be10

recognised as lying at the very basis of this Constitution.

END QUOTE.


Mr. KINGSTON.-Section 100 preserves the existing legislation.15

Mr. DEAKIN.-Yes; and section 101 provides that when a law of a state is

inconsistent with a law of the Commonwealth, the latter shall prevail, and the former

shall, to the extent of the inconsistency, be invalid..

In Macleod Lord Halsbury L.C. quoted (at p 458) the remarks of Parke B. in Jefferys v. Boosey20

(at p 926 of HLC (p 725 of ER)):

QUOTE(T)he Legislature has no power over any persons except its own subjects, that is, persons

natural-born subjects, or resident, or whilst they are within the limits of the Kingdom.

END QUOTE25

.

Then consider Hansard2-3-1898 Constitution Convention Debates;QUOTE Dr. QUICK.-

The Constitution empowers the Federal Parliament to deal with certain external affairs,among which would probably be the right to negotiate for commercial treaties with foreign30

countries, in the same way as Canada has negotiated for such treaties. These treaties could

only confer rights and privileges upon the citizens of the Commonwealth, because the

Federal Government, in the exercise of its power, [start page 1753] could only act forand on behalf of its citizens.

END QUOTE35

.

Hansard 6-3-1891 Constitution Convention DebatesQUOTE Mr. THYNNE:

I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:

One of the characteristics of a federation is that the law of the constitution must be40

either legally immutable or else capable of being changed only by some authority

above and beyond the ordinary legislative bodies, whether federal or state

legislatures, existing under the constitution.

END QUOTE

And45

QUOTE Mr. THYNNE:

The constitution of this federation will not be charged with the duty of resistingprivileged classes, for the whole power will be vested in the people themselves. They


23/43





are the complete legislative power of the whole of these colonies, and they shall be so.From [start page 106] them will rise, first of all, the federal constitution which we are

proposing to establish, and in the next place will come the legislative powers of the several

colonies. The people will be the authority above and beyond the separate legislatures,

and the royal prerogative exercised, in their interest and for their benefit, by the advice of5

their ministers will be practically vested in them. They will exercise the sovereignty of thestates, they will be charged with the full power and dignity of the state, and it is from them

that we must seek the giving to each of those bodies that will be in existence concurrently

the necessary powers for their proper management and existence. Each assembly, each

legislature, whether state or federal existing under this constitution, will be as Dicey10

again says-a merely subordinate law-making body whose laws will be valid, whilst

within the authority conferred upon it by the constitution, but invalid and

unconstitutional if they go beyond the limits of such authority.END QUOTE

.15


Sir GEORGE GREY: I beg to propose that the following resolution stand as resolution

No. 5:-

The inhabitants of each of the states of federated Australasia ought to be allowed to20

choose, and if they see fit from time to time to vary, the form of state government underwhich they desire to live. Provision should therefore be made in the federal constitution

which will [start page 478] enable the people of each state to adopt by the vote of the

majority of voters, their own form of state constitution.

Question proposed.25

Sir HENRY PARKES: I wish to raise a point of order upon this resolution, and I do

it with the utmost respect to the distinguished gentleman who has moved it. My point

of order is that the resolution goes beyond our instructions. We have been sent herefor one object and one object only, and that is, to prepare a scheme for the framing of

a federal constitution. Anything outside of these prescribed words cannot be dealt30

with under the commission in virtue of which we have come here.

END QUOTE

And

QUOTE

Dr. COCKBURN: I think we have nothing whatever to do with deciding the details35

of the state constitutions. On the other hand, I think it appertains to the functions of thisConvention to decide that the power of framing a constitution shall be in the hands of the

several states. At present the legislatures of the various colonies can only be alteredwith the consent of the Imperial Government. Is it intended that that shall remain? When

we have a federated Australasia, in which we have state legislatures and a federal40

legislature, is it intended that the state legislatures shall have the power of altering theirconstitutions at will or not? From that point of view I think the proposition put forward by

the hon. member, Sir George Grey, is decidedly within the powers of the Convention, the

power to lay down a general rule, without touching the details of any individual

constitution, that the various states should have the power of framing their own45

constitutions according to the will of the majority of the people of those states.

END QUOTE

.


24/43





Again (RE Section 123);QUOTE

Provision should therefore be made in the federal constitution which will [start page 478]

enable the people of each state to adopt by the vote of the majority of voters, their own

form of state constitution.5

END QUOTE.

HANSARD 2-3-1898 Constitutional Convention

QUOTE Mr. OCONNOR (New South Wales).-

But let us take first his position in regard to the Commonwealth. Under the power10

which you have given to the Federal Parliament to make laws regulating immigration

and aliens, you embrace every possible set of circumstances under which any person

may enter the bounds of the Commonwealth. As you have power to prevent anyperson from entering any part of the Commonwealth, you have also the power to

prevent any person from becoming a member of the Commonwealth community.15

There is no territorial entity coincident with the Commonwealth. Every part of the

Commonwealth territory is part of the state, and it is only by virtue of his citizenship

of a state that any person within the bounds of the Commonwealth will have anypolitical rights under the Constitution. Of course, when I speak of a state, I include

also any territory occupying the position of quasi-state, which, of course, stands in20

exactly the same position.

END QUOTE

HANSARD 9-9-1897Constitutional Convention

QUOTE Mr. HIGGINS (Victoria)25

There will, of course, be no funds in the commonwealth at that stage; but I apprehend

that the governor-general will act in the hope of being recouped any expenses

afterwards to which he may be put.

END QUOTE.30

ESTOPPEL against wrongful enforcement of what was objected against.

http://online.ceb.com/calcases/C3/3C3d462.htm

CITY OF LONG BEACH v. MANSELL (1970) 3 C3d 462QUOTE

A similar statement of the doctrine has appeared in the statutes of California since 187235

(former Code Civ. Proc., 1962, subd. 3), and section 623 of the Evidence Code now

provides: "Whenever a party has, by his own {Page 3 Cal.3d 489} statement or conduct,intentionally and deliberately led another to believe a particular thing true and to act upon

such belief, he is not, in any litigation arising out of such statement or conduct, permitted to

contradict it."40

END QUOTE

.


Sir GEORGE TURNER: It would never do to allow in this Federal Parliament that45

those representatives who are elected upon the most liberal franchise possible should be

outvoted by those who would be elected by a very limited franchise indeed. As this mayfairly be regarded as the National House, representing the people of the various States as a

nation, we ought to have uniformity in the franchise. We must leave it to the Federal

Parliament to say what the franchise should be. At the same time, as some colonies have50


25/43





given the right of voting to those who have not that right in other colonies, it would beunfair and inequitable to take from any who have the right, and therefore whatever

uniformity is determined upon we shall have to allow the innovation that no person,man or woman, who has the right to vote shall be deprived of exercising that right,

even so far as the elections to the Federal Parliament are concerned. I would go the5

length of saying that everyone who has the right in the various colonies, if they desire toexercise their franchise, should have the opportunity of doing so.

END QUOTE

Again10

QUOTEAt the same time, as some colonies have given the right of voting to those who have not

that right in other colonies, it would be unfair and inequitable to take from any who have

the right, and therefore whatever uniformity is determined upon we shall have to

allow the innovation that no person, man or woman, who has the right to vote shall be15

deprived of exercising that right, even so far as the elections to the Federal Parliament

are concerned.END QUOTE

AndQUOTE20

I would go the length of saying that everyone who has the right in the various colonies, ifthey desire to exercise their franchise, should have the opportunity of doing so.

END QUOTE

Desire stands for an expressed wish, option, choice, request, etc, not being

compulsory!25

.


QUOTE Mr. THYNNE:

The union of these colonies must take place in either one or two ways, namely, either by a

unification under one all-powerful parliament, or by a federation which gives to the central30

federal parliament certain limited powers and reserves to the other parliaments all otherpowers. As I think we may be in danger of overlooking some of the first principles

connected with federation, I may be pardoned if I briefly define some of the characteristics

of a federation. I shall quote from Mr. Dicey's recent work, which is very clear in its

language. He says:35

One of the characteristics of a federation is that the law of the constitution must be

either legally immutable or else capable of being changed only by some authority

above and beyond the ordinary legislative bodies, whether federal or state

legislatures, existing under the constitution.END QUOTE40

.


Mr. GLYNN (South Australia)[12.35]: I have not the Federal Council Bill before me;

but I believe that that bill contained the words "sailing between the ports of the colonies."45

The bill was sent home with those words in it; but her Majesty's advisers at homedeliberately changed the wording of the measure so as to give the Council wider

jurisdiction. There was a limitation in the bill which does not appear in the act, and the

Imperial authorities must have made this alteration for some specific purpose. They could


26/43


27/43


28/43





QUOTE

Dr. COCKBURN.-We do not want to imitate that example. We do not want a clause inour Constitution which could only be carried in America by force [start page 686] of

arms. We cannot imagine a condition of things in which we would wish to make such an

amendment of our Constitution. I do not believe we shall ever have such a condition of5

things here as will necessitate such a clause in the Constitution. As it formed no part of the

original Constitution of America, as it was only introduced by force of arms and not

according to the legal limits of the Constitution, I do not think we should pay it thecompliment of imitating it here.

END QUOTE10

.

Hansard 22-4-1897Constitution Convention DebatesQUOTE Mr. GLYNN:

It is felt in the forms in our courts of justice, in the language of our Statutes, in the

oath that binds the sovereign to the observance of oar liberties, in the recognition of15

the Sabbath, in the rubrics of our guilds and social orders, in the anthem through

which on every public occasion we invocate a blessing on our executive head, in our

domestic observances, in the offices of courtesy at our meetings and partings, and inthe time-honored motto of the nation.

END QUOTE20

.

Hansard 2-4-1891 Constitution Convention DebatesQUOTE Mr. J. FORREST:

We propose to form a commonwealth of Australia, and are we to prohibit people of

our own race, born in other portions of the British dominions, from becoming25

senators until they have been resident in the commonwealth for a certain period? No

such prohibition is placed upon Australians residing in the old country. AnyAustralian, resident in England, can at once, if the electors desire, become a member

of the House of Commons, and I see no reason why a distinguished Englishman

coming to these colonies should not at once be eligible for the position of senator if the30

legislature of one of the colonies desired his appointment.END QUOTE

.


QUOTE35

Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that

the only laws which can apply are laws for the peace, order, and good government ofthe commonwealth.

END QUOTE

.40


QUOTE Sir SAMUEL GRIFFITH:

The practice in England has been that when the House of Commons is dissolved, theGazette which contains the proclamation, or one issued concurrently, also contains a

proclamation summoning a parliament to meet on a given day, and all the writs are45

appointed to be returned on that day.

END QUOTE

.

QUOTE Sir SAMUEL GRIFFITH:


29/43





According to the English practice there is always a parliament either summoned or

prorogued. Coincident with the dissolution of the old parliament is the proclamation

calling the new parliament.

END QUOTE

.5

. Hansard 2-4-1891 Constitution Convention Debates

QUOTE

Sir JOHN BRAY: I am very glad to hear that the committee considered the point,although I think they arrived at a very unwise decision. The hon. gentleman who last

spoke is mistaken in what I take to be the drift of all parliaments. No parliament lives10

out the full term of its existence. It is always dissolved before it actually expires, and

so it would be in this [start page 645] case. The practice almost invariably is for the

house to be dissolved, and a new house elected, before the expiration of the threeyears, the object being that there shall always be a parliament in existence. The

intention is not that the members shall be elected for three years, but that they shall15

absolutely serve for three years, and the three years ought for the sake of convenience

to date from the first meeting of parliament.END QUOTE

.Hansard 30-3-1897Constitution Convention Debates20

QUOTE Mr. DEAKIN:

It appears to me that the representatives of the less populous States decline to distinguishsufficiently between the money powers and the general powers to be conferred by a

Constitution. Now the distinction is no mere fantasy. It should be recognised in the

forefront of the Constitution. In the exercise of both powers there are instances in which it25

is possible that State interests may be put in jeopardy. State rights cannot be put in. such

jeopardy; they are enshrined and preserved under the Constitution and protected by thecourts to be established under that Constitution.

END QUOTE

.30Hansard 1-3-1898 Constitution Convention Debates

QUOTEMr. WISE.-If the Federal Parliament chose to legislate upon, say, the education

question-and the Constitution gives it no power to legislate in regard to that question-the

Ministers for the time being in each state might say-"We are favorable to this law, because35

we shall get 100,000 a year, or so much a year, from the Federal Government as a subsidy

for our schools," and thus they might wink at a violation of the Constitution, while noone could complain. If this is to be allowed, why should we have these elaborate

provisions for the amendment of the Constitution? Why should we not say that the

Constitution may be amended in any way that the Ministries of the several colonies40

may unanimously agree? Why have this provision for a referendum? Why consult the

people at all? Why not leave this matter to the Ministers of the day? But the proposal

has a more serious aspect, and for that reason only I will ask permission to occupy afew minutes in discussing it.

END QUOTE45

.


Mr. SYMON ( South Australia ).-

In the preamble honorable members will find that what we desire to do is to unite in one50

indissoluble Federal Commonwealth -that is the political Union-"under the Crown of the


30/43





United Kingdom of Great Britain and Ireland , and under the Constitution herebyestablished." Honorable members will therefore see that the application of the word

Commonwealth is to the political Union which is sought to be established. It is not intended

there to have any relation whatever to the name of the country or nation which we are going

to create under that Union . The second part of the preamble goes on to say that it is5

expedient to make provision for the admission of other colonies into the Commonwealth.

That is, for admission into this political Union, which is not a republic, which is not to

be called a dominion, kingdom, or empire, but is to be a Union by the name of"Commonwealth," and I do not propose to interfere with that in the slightest degree.

END QUOTE10

.

Hansard 1-3-1898 Constitution Convention DebatesQUOTE Sir JOHN DOWNER.-

I think we might, on the attempt to found this great Commonwealth, just advance one

step, not beyond the substance of the legislation, but beyond the form of the15

legislation, of the different colonies, and say that there shall be embedded in the

Constitution the righteous principle that the Ministers of the Crown and their officials

shall be liable for any arbitrary act or wrong they may do, in the same way as any

private person would be.END QUOTE20

.

Hansard 7-3-1898 Constitution Convention DebatesQUOTE The Hon. J.H. HOWE:

Is it to be the Premier of New South Wales or Mr. Barton who is going to introduce a

measure for old-age pensions when he has the power to do so by the Constitution we give25

to the Federal Parliament?. I do not think it is necessary for me to say any more. The words

I have quoted are better than any I could speak. My only desire is to give power to theFederal Parliament to achieve a scheme for old-age pensions if it be practicable, and if the

people require it. No power would be taken away from the states. The sub-section would

not interfere with the right of any state to act in the meantime until the Federal30Parliament took the matter in hand. I do not believe in provincialism so far as old-age

pauperism is concerned. In these colonies men are born in one state, spend their manhoodand best days in another, and then return, broken down and unfortunate, to the land of their

birth, which owes them nothing. Is it to be contended that under such circumstances the

state of the unfortunate man's birth should be compelled to support him? Surely the support35

of the aged poor could be better accomplished by a Federated Australia. Wherever a man

may roam within the boundaries of Federated Australia, he should know that in his old agebe need never fear the pauper's lot. I would compel every able bodied man, in the heyday of

youth, when he has the means, to make a compulsory contribution t

002-Hansard Quotations Reference by G. H. Schorel-Hlavka

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