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LEGAL REALITY (Part 1)

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5HANSARD 8-3-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
QUOTE Mr. ISAACS.-
We want a people’s Constitution, not a lawyers’ Constitution
END QUOTE
10.

QUOTE Edwin Hale v. William Henkel, 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652 (1906)
The individual may stand upon his Constitutional Rights as a citizen.
He is entitled to carry on his private business in his own way. ..His Rights
15 are such as existed by the ‘law of the land’ [Common Law] long antecedent
to the organization of the State, and can only be taken away from him by
due process of law, and in accordance with the Constitution. He owes nothing
to the public so long as he does not trespass upon their Rights.
QUOTE
20

It is known that "The Law of the Land" means "The Common Law.", Justice O'Neal
speaking for the Court; Taylor v. Porter, 4 Hill, 140 at 146 (1843); Webster's definition of
"The Law of the Land" at Dartmouth, 4 Wheaton 518 at 581, 582. (Tenn. Const. Art. I,
25sec. 8, "law of the Land" clause.)

U.S. Supreme Court


Olcott v. The Supervisors, 83 U.S. 16 Wall. 678 678 (1872)
30QUOTE
Page 83 U. S. 693
"The legislature cannot create a public debt, or levy a tax, or authorize a municipal corporation to
do so, in order to raise funds for a mere private purpose. It cannot, in the form of a tax, take the
money of the citizen and give it to an individual, the public interest or welfare being in no way
35 connected with the transaction. The objects for which the money is raised by taxation must be
public, and such as subserve the common interest and wellbeing of the community required to
contribute. . . . To justify the court in arresting the proceedings and declaring the tax void, the
absence of all possible public interest in the purposes for which the funds are raised must be
clear and palpable; so clear and palpable as to be perceptible by every mind AT THE FIRST
40 BLUSH."
END QUOTE
.
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=
%22thi+act+and+all+law+made+by+the+parliament%22#fn50
45QUOTE
Constitutional interpretation
The starting point for a principled interpretation of the Constitution is the
search for the intention of its makers[51].
END QUOTE
50
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HANSARD 1-2-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
QUOTE Mr. OCONNOR (New South Wales).-
Because, as has been said before, it is [start page 357] necessary not only that the
5 administration of justice should be pure and above suspicion, but that it should be
beyond the possibility of suspicion
END QUOTE
.
HANSARD 1-2-1898 Constitution Convention Debates
10QUOTE Mr. HIGGENS:
I think it is advisable that private people should not be put to the expense of having
important questions of constitutional law decided out of their own pockets.
END QUOTE
.
15The 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
QUOTE Mr. CLARK.-
for the protection of certain fundamental rights and liberties which every individual
20 citizen is entitled to claim that the federal government shall take under its protection and
secure to him.
END QUOTE
.
HANSARD 27-1-1898 Constitution Convention Debates
25QUOTE
Mr. Barton.- Our civil rights are not in the hands of any government, but the rights of
the Crown in prosecuting criminals are.
END QUOTE
.
30HANSARD 18-2-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
QUOTE Mr. ISAACS.-
The right of a citizen of this great country, protected by the implied guarantees of its
Constitution,
35END QUOTE
.
Hansard 25-1-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
This convinces me that power must be given to the federal authority not to acquire
40 lands compulsorily, but to legislate upon the subject as I have suggested in the sub-
section.
END QUOTE
.
It must be clear that the terminology used by the Framers of the Constitution are; “British
45subject”, “to make persons subjects of the British Empire.”, “with the consent of the
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 the
dual 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

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by endorsing a substitute Constitution! The question is if the judges of the High Court of
Australia committed TREASON?
.
QUOTE Thomas Jefferson:
5 "The germ of destruction of our nation is in the power of the judiciary, an
irresponsible 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 over
the field of jurisdiction, until all shall render powerless the checks of one
branch over the other and will become as venal and oppressive as the
10 government 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]
15NSWSC 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 be
clearly manifested by clear and unmistakable language: Coco v The Queen [1994] HCA 15;
20 (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 individual
privacy, although also recognising that the value of privacy can be over-ridden where it
25 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 doubt
30 should be resolved in favour of a narrow, rather than a broad construction of the statutory
authorisation."
END QUOTE
.
Hansard 8-2-1898 Constitution Convention Debates
35QUOTE
Mr. TRENWITH (Victoria).-It seems to me that this clause is altogether unnecessary. It
seems to me that everything which can be acquired by it is obtained in clause 101. There
we declare that the law of a state which conflicts with a law of the Commonwealth has no
effect. Now, when the Federal Parliament has legislated upon any point in connexion
40 with citizenship, the states cannot legislate in conflict with that federal law. That seems
to me all that is required. Take the question of naturalization, which is probably a question
about which a difference would arise. As a separate state, a colony naturalizes an alien, and
when he leaves that colony he has to be naturalized in the colony be goes to. When we have
created a Commonwealth, we shall have a Commonwealth citizenship, and when aliens
45 are naturalized, they will be naturalized as citizens of the Commonwealth. But if a
state desires to make some restrictions with reference to some class within its
territory, and there is no objection to it on the part of the Commonwealth, it seems
unwise that we should put here a bar.
END QUOTE
50.
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Hansard 8-2-1898 Constitution Convention Debates
QUOTE Mr OCONNOR
The only possible differences or disabilities in the states now, as affecting different classes
of citizens, are those which exist in regard to aliens and coloured races. But already in
5 clause 52 we have agreed to the insertion of a sub-section which enables the
Commonwealth to deal with that matter, and there can be no question about it that in
course of time the different laws that exist in the states dealing with such coloured
races will be similar, and that such races will be dealt with uniformly, so that
whatever privileges [start page 673] or disabilities exist in one state with regard to
10 these people will exist in another state. There is only one portion of the Tasmanian
amendment which I think should be preserved, and I prefer it in the form in which it stands
as submitted by the Legislative Assembly of Tasmania. I think that the only portion of it
which it is necessary to preserve is this-altering the wording slightly so as to make it read as
I think it should read-
15 A state shall not deprive any person of life, liberty, or property without due process
of law, or deny to any person within its jurisdiction the equal protection of its laws.
So that any citizen of any portion of the Commonwealth would have the guarantee of
liberty and safety in regard to the processes of law, and also would have a guarantee of the
equal administration of the law as it exists. I think Mr. Isaacs will bear me out, that in
20 the United States it has been decided that the title to equal treatment under the law
does not mean that you cannot make a law which differentiates one class of the
community from another; but, as has been decided, it means that in the
administration of the laws you have made, all the citizens shall be treated equally. And
that should be so.
25END QUOTE
.
Hansard 8-2-1898 Constitution Convention Debates
QUOTE
Mr. TRENWITH (Victoria).-It seems to me that this clause is altogether unnecessary. It
30 seems to me that everything which can be acquired by it is obtained in clause 101. There
we declare that the law of a state which conflicts with a law of the Commonwealth has no
effect. Now, when the Federal Parliament has legislated upon any point in connexion
with citizenship, the states cannot legislate in conflict with that federal law. That seems
to me all that is required. Take the question of naturalization, which is probably a question
35 about which a difference would arise. As a separate state, a colony naturalizes an alien, and
when he leaves that colony he has to be naturalized in the colony be goes to. When we have
created a Commonwealth, we shall have a Commonwealth citizenship, and when aliens
are naturalized, they will be naturalized as citizens of the Commonwealth. But if a
state desires to make some restrictions with reference to some class within its
40 territory, and there is no objection to it on the part of the Commonwealth, it seems
unwise that we should put here a bar. If there turns out to be an objection on the part of
the Commonwealth, beyond doubt the Federal Parliament will legislate on that subject, and
then the state law, if it conflicts with the federal law, will have no effect.
END QUOTE
45.
Hansard 8-2-1898 Constitution Convention Debates
QUOTE
Mr. ISAACS.-Yes, it is very much better than the others, but I do not know that it is
wanted at all. And when one recollects how the 14th amendment came into the American
50 Constitution, one is a little surprised to think that it is necessary to put such a clause in this
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Bill. It was put in the American Constitution immediately after the Civil War, because
the Southern States refused to concede to persons of African descent the rights of
citizenship. The object of the amendment was purely to insure to the black population that
they should not be deprived of the suffrage and various rights of citizenship in the
5 Southern States. It provides who should be citizens, not of the states, but of the United
States. I will read the words of the amendment:-
All persons born or naturalized in the United States, and subject to the jurisdiction
thereof-
The words "and subject to the jurisdiction thereof" were put in so as to exempt the
10 Ministers of State of foreign countries, and their children, and so on.
are citizens of the United States, and of the state wherein they reside.
It started by defining who a citizen was.
Mr. KINGSTON.-What is the definition?
Mr. ISAACS.-It is as follows:-
15 No state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States, nor shall any state deprive any person of life, liberty, or
property without due process of law, nor deny to any person within its jurisdiction the
equal protection of the law.
Sir EDWARD BRADDON.-That is the Tasmanian amendment.
20 Mr. ISAACS.-Yes, it has been adapted by than Tasmanian Assembly to suit our altered
circumstances but I want to point out that it only became necessary to pass that 14th
amendment in the United States in order to provide in the Constitution for the change that
was wrought by the Civil War. The rights of citizenship for the blacks and the abolition of
slavery had been won by hard fighting, and this Article 14 had to be rammed down the
25 throats of the Southern States by the military provision which I referred, to in Sydney. This,
together with the 15th article, which goes with it, had to be passed. The object of it was as I
have stated, and that was recognised by the United States courts in the case of Strauder v.
West Virginia, 100 United States Reports, page 303. We can understand that a Constitution
should say who shall be citizens of the United States or citizens of the Commonwealth. We
30 can also understand that having constituted a citizenship of the nation, no state should
be permitted to abridge that citizenship, and take away any of the privileges or
immunities pertaining to citizens. What are these privileges and immunities? That very
question was dealt with in what are known as the Slaughter House cases in 1872,16
Wallace, 36, and in certain other cases. This is what the court said-
35 The right of a citizen of this great country, protected by the implied guarantees of its
Constitution, to come to the seat of government to assert any claim he may have upon the
Government, to transact any business he may have with it, to seek its protection, to share its
offices, to engage in administering its functions, free access to its sea ports through which
all operations of foreign commerce are conducted, also to the sub-treasuries, land offices,
40 and courts of justice of the several states. Another privilege of a citizen of the United States
is to demand the care and protection of the Federal Government for his life, liberty, and
property when on the high seas, or within the jurisdiction of a foreign country; the right to
peaceably assemble and petition for redress of grievances; the privilege of the writ of
habeas corpus; the right to use the navigable waters of the United States, however they
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may penetrate the territory of the several states, and all rights secured to our citizens by
treaties with foreign nations; and the right of a citizen of the United States of his own
volition to become a citizen of any state of the Union by bona fide residence therein.
[start page 669]
5 Mr. GORDON.-That covers a great deal more than the question of the coloured races.
Mr. ISAACS.-It was intended to protect the blacks. Nobody denied these rights to the
whites.
Mr. GORDON.-A large number of decisions which do not touch the question of the
coloured races have arisen under that clause.
10 Mr. ISAACS.-For 70 or 80 years, as long as the whites only were concerned, nobody
found the necessity of such a clause, but, when the blacks were concerned, the
Southern States refused to allow them to vote. They do that at the present time to a
large extent contrary to the law, and this provision was made to secure to the blacks
the rights of citizenship. While they were about it they put it in language quite large
15 enough to cover a great deal more, than the African citizens of America. Mr. Hare, in his
volume on Constitutional Law, says, on page 517, in dealing with the question of the
blacks:-
The main object of this amendment is clear. It was to render all persons born or
naturalized in the United States, and especially the recently emancipated negroes,
20 citizens of the United States and of the state wherein they reside, endowed with the
rights incident to that two-fold relation, including those conferred by the second
section of the Fourth Article, and also to afford the possessors of such citizenship an
effectual guaranty against arbitrary or unequal legislation on the part of the several
states.
25END QUOTE
.
Hansard 8-2-1898 Constitution Convention Debates
QUOTE Mr. OCONNOR.-
The only possible differences or disabilities in the states now, as affecting different classes
30 of citizens, are those which exist in regard to aliens and coloured races. But already in
clause 52 we have agreed to the insertion of a sub-section which enables the
Commonwealth to deal with that matter, and there can be no question about it that in
course of time the different laws that exist in the states dealing with such coloured
races will be similar, and that such races will be dealt with uniformly, so that
35 whatever privileges [start page 673] or disabilities exist in one state with regard to
these people will exist in another state. There is only one portion of the Tasmanian
amendment which I think should be preserved, and I prefer it in the form in which it stands
as submitted by the Legislative Assembly of Tasmania. I think that the only portion of it
which it is necessary to preserve is this-altering the wording slightly so as to make it read as
40 I think it should read-
A state shall not deprive any person of life, liberty, or property without due process
of law, or deny to any person within its jurisdiction the equal protection of its laws.
So that any citizen of any portion of the Commonwealth would have the guarantee of
liberty and safety in regard to the processes of law, and also would have a guarantee of the
45 equal administration of the law as it exists. I think Mr. Isaacs will bear me out, that in the
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United States it has been decided that the title to equal treatment under the law does not
mean that you cannot make a law which differentiates one class of the community from
another; but, as has been decided, it means that in the administration of the laws you have
made, all the citizens shall be treated equally. And that should be so. Whatever privilege
5 we give to our citizens, the administration of the law should be equal to all, whatever
their colour. The case I refer to is one of the Chinese cases-I forget the name of it.
Mr. ISAACS.-The case of Yick Wo v. Hopkins.
END QUOTE

10Hansard 19-4-1897 Constitution Convention Debates


QUOTE
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able
to understand.
15END QUOTE
.
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
20 which Mr. Barton has described, of choosing or setting up a code of laws to interpret the
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 is
the whole body of the people whose understanding you have to bring to bear upon it,
25 and it is the whole body of the people, the more or less instructed body of the people,
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 on
both sides, drawing subtle distinctions, which may or may not be appreciated by the
30 people.
END QUOTE
.
Hansard 22-9-1897 Constitution Convention Debates
QUOTE
35 The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the
commonwealth exercises the power, the states must retire from that field of
legislation.
END QUOTE
.
40Hansard 22-9-1897 Constitution Convention Debates
QUOTE
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 is
45 given to the commonwealth to legislate on a particular question, there will be
continual pressure brought to bear on the commonwealth to exercise that power. The
moment the commonwealth exercises the power, the states must retire from that field
of legislation.
END QUOTE
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.
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is
5 no doubt that it will be exercised.
QUOTE
.
HANSARD 11-03-1891 Constitution Convention Debates
QUOTE
10 Mr. CLARK: What we want is a separate federal judiciary, allowing the state
judiciaries to remain under their own governments.
END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
15QUOTE 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 cases
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,
20 as a quasi-independent political entity, may prescribe for the regulation of its own
legal proceedings.
END QUOTE
.
Hansard 9-9-1897 Constitution Convention Debates
25QUOTE
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."
The bill was sent home with those words in it; but her Majesty's advisers at home
deliberately changed the wording of the measure so as to give the Council wider
30 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 danger
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
35 commonwealth, that act will to the extent of the difference abrogate the legislation
under the constitution of Australia .
END QUOTE
.
Hansard 1-3-1898 Constitution Convention Debates
40QUOTE
Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other
power?
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
45 of a state Parliament will be a sentry. As regards a law passed by a state, every
man in the Federal Parliament will be a sentry, and the whole constituency
behind the Federal Parliament will be a sentry.
END QUOTE
.
50Sorell v Smith (1925) Lord Dunedin in the House of Lords
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QUOTE
In an action against a set person in combination, a conspiracy to injure, followed by actual
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.”
5END QUOTE
.
Hansard 8-2-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
Under a Constitution like this, the withholding of a power from the
10 Commonwealth is a prohibition against the exercise of such a power.
END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
15 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 that
we are not going to make the Commonwealth a kind of social and religious power
over us.
END QUOTE
20.
HANSARD 1-3-1898 Constitution Convention Debates
QUOTE 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."
25END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
Mr. BARTON.-
QUOTE
30 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.
END QUOTE
.
35Hansard 16-2-1898 Constitution Convention Debates
QUOTE
start 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 inserted
which will safeguard the states in the carrying out of any of their state laws over
40 which the states are to be supreme even under federation.
END QUOTE
.
Hansard 3-3-1897 Constitution Convention Debates
QUOTE
45 Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would
like 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, and
50 the object I apprehend is that there shall be no discrimination between the states; that
an income tax or land tax shall not be made higher in one state than in another. I
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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 of
direct taxation. I am extremely afraid, that if we are not very careful, we shall get into a
5 difficulty. 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
not absolutely uniform.
END QUOTE
Again;
10Hansard 3-3-1897 Constitution Convention Debates
QUOTE Mr. ISAACS (Victoria).-
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 not
absolutely uniform.
15END 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.
20 We have pretty heavy duties in Victoria, and if the uniform tariff largely reduces them at
once 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 QUOTE
25.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
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 did
30 not, they would say that it was invalid. They would not go into the question of what was
in 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
.
35Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-Are not the annual services the annual expenditure proper to the public
service?
Mr. ISAACS.-Supposing that some compensation were being paid to a discharged public
40 servant. That would not come within the ordinary annual services.[start page 2003] It
would not be proper to the public service of the Commonwealth. It would not be a
payment for services rendered in the future, but for services in the past.
END QUOTE
.
45Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. 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.

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[start page 2004]
Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be
invalid.
END QUOTE
5.
Hansard 8-3-1898 Constitution Convention Debates
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
10 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; but
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.
15END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE Mr. DEAKIN.-
. The arguments of the Hon. Mr. Carruthers appear to have fallen on deaf ears, but, [start
20 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 no
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
25 discharge of their duty, to rule such a measure out of order at any stage of its
existence.
END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates
30QUOTE
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.
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
35 Constitution is required at all; it can simply be provided that a certain number of
gentlemen 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 the
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 most
40 important 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.
END QUOTE
.
45Hansard 8-3-1898 Constitution Convention Debates
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, and
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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
5 of the Opposition, or all members of any particular party; and I cannot believe that any Bill
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
would rise to a point of order, and have such a Bill laid aside of necessity as being out of
order under this provision.
10END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a
15 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 the
Constitution. 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 requires
one solitary member to rise to a point of order, and the Speaker has to give a legal
20 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 the
Constitution 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 a
majority of the states cannot by resolution infringe the Constitution. Neither House
25 could pass the standing order which would give the majority power to dissent from the
Speaker'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 to
amend the Constitution.
END QUOTE
30.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
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 House
35 which has the power of the purse primarily. But the question between us is not whether you
should 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 Senate
40 represents. The question really is whether, for the purposes for which this provision is
designed, 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?
45.
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

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into the power of a majority in the House of Representatives or in the Senate to
bargain them away, or to give them away at their will.
END QUOTE
.
5Hansard 8-3-1898 Constitution Convention Debates
QUOTE Mr. OCONNOR.-
But these difficulties can be overcome by the proper consideration of the terms of the
Constitution. I submit that the question raised here is a very much more important one
than it seems to be thought by some honorable members. I think it is the very essence of the
10 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
Parliament, subject to the liability of their acts being declared invalid by the Supreme Court
in the event of the directions of the Constitution not being followed.
END QUOTE
15.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. REID.-My answer is, how could the House of Representatives put more than one
subject of taxation into a proposed law? If it will be possible for the House of
20 Representatives to put two subjects of taxation into a proposed law, in spite of the
clear words of the Constitution, it will be equally possible for a Taxation Bill to be
originated in the Senate without any one taking any notice of it.
END QUOTE
.
25Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON (New South Wales).-I wish to make a few observations with regard to the
objection, not, I hope, in [start page 2014] any captious spirit. I quite see the stand-point
from which Mr. Isaacs and others have addressed themselves to the question. But it seems
30 to me that the argument which has been raised by Mr. Isaacs as to this last sub-section of
clause 55, is really an argument for greater clearness in the Constitution; because it seems
to be admitted that if the words of the Constitution are placed beyond dispute, then the
confusion to which my honorable and learned friend alludes cannot arise. Consequently,
the real meaning of the argument is this-"I could not say what I have said if your
35 Constitution were absolutely clear." This is an objection to the form in which the
provision stands, and an objection to form only, and not to substance, because it is admitted
that these matters can only arise by way of confusion, and consequently it must be admitted
that they can only arise where there is room for confusion in the Constitution.
.
40 Mr. BARTON.-There is thus upon the face of the law the important material which
is appropriated for the decision of the court-the very transgression beyond legal
provision, the very matter which the court can take in hand, and with regard to which
it may say-"This must stop, it is illegal." But if the Senate were to originate a Tax Bill,
or to amend an Appropriation Act or Tax Bill, and that Bill were to be passed into an
45 Act; if the Senate were to pass a Bill imposing a burden on the people, and that Bill
were to be passed-in either of these cases it would be impossible for any legal tribunal
to say, upon the face of the law, whether any such infringement of the Constitution
had taken place.
Mr. REID.-So that confusion that can be covered up need not be provided against?
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Mr. BARTON.-That is not so at all. I do not see the slightest relevancy in that remark, or
any approach to relevancy. So that it becomes perfectly clear that one matter is a matter of
procedure and that to give a legal tribunal the power of interfering with regard to that which
is inherently a matter of procedure would be an unwarrantable power of interference with
5 Parliament to give to any court. I am astonished at it being claimed that anything should be
done which would give the court power to instigate an investigation of mere parliamentary
procedure. But those matters which happen under clause 55 do not turn on questions of
procedure, inasmuch as if an infraction of the Constitution occurs, it is apparent upon
the face of the Bill which makes the infraction, and the material is there for judicial
10 determination. That is the difference between the two clauses, and it is of no use trying to
mix up matters of procedure with matters of actual inviolability apparent on the face of the
laws, and to say that you are to apply the same conditions to one as to the other.
END QUOTE
.
15Hansard 8-3-1898 Constitution Convention Debates
QUOTE 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 people
20 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 they
are 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 QUOTE
25.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
It is not a fact that clause 54 is a clause solely for the protection of the House of
Representatives. It confers corresponding rights. The argument fails there, because as
30 to clause 54 there are rights given to the Senate with reference to certain classes of
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
35 way. He cannot say, because it reads as an exception it does not also [start page 2017]
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 within
the Constitution. The Senate has a right to originate the law, and therefore this
40 provision conveys a right. Now, there is a further provision there. While the Senate is
prohibited from amending laws imposing a tax or appropriating money for the annual
services 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 Tax
and annual Appropriation Bills, while the Senate may not amend those two classes of Bills,
45 there are certain other classes of Bills which it can originate, there are certain other classes
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 of
Representatives in respect of all proposed laws.
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END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE Mr. HOLDER (South Australia).-
5 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 have
no detail whatever. In no Appropriation Act passed by any Parliament is there given
small details of the amounts appropriated. An Appropriation Act would often include
amounts of £10,000, £15,000, £20,000, and larger sums, the details of which would be
10 lost 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,
I do not know what the phrase means, and I do not suppose it is possible for anybody
15 definitely to say what it means.
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
20 every country, and that special provision has to be made for every such emergency.
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
25.
Hansard 8-3-1898 Constitution Convention Debates
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:
30 could not the court, under this sub section, set the whole law aside?
Mr. BARTON.-There is no doubt that I might be tempted to return the same answer to
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
35 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 ordinary
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 clause
clearer, and by so much as he makes it [start page 2019] clearer he loses the whole
40 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 if
it is not to decide the question we will soon find that out, and it can be rectified in six
hours.
Mr. TRENWITH.-But in the meantime the whole Bill goes.
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Mr. ISAACS.-The whole law goes.
Mr. BARTON.-In the meantime the whole Bill need not go. We know very well that the
whole Bill does not go under these circumstances, and I am astonished that some of my
honorable friends have not sufficient recollection of Victorian history not to tell us that.
5 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 proportion
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
10 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,
I submit that under that clause the rights of the Senate and the House of Representatives are
correlative rights, but that we are not here to confer rights on Chambers, except by
15 way of making them instruments of the rights of the people-that so far as we assume to
do 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 under
20 clause 55, we do right to submit those matters to the judicial tribunal.
END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
25 Mr. HIGGINS.-Supposing that an Appropriation Bill is brought up from the House
of Representatives providing for the ordinary annual services, and providing,
amongst other things, for the payment of light-house keepers, the Senate might think
that 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
30 with.
Mr. DOBSON.-We should put them in a separate Bill.
END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates
35QUOTE
Sir JOHN DOWNER.-
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 and
40 serious question-whether we should have federation or a general amalgamation.
Mr. MOORE.-Unification.
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 there
might be an immense amount of money saved by amalgamation in the way of carrying
45 on 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 partial
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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 the
colonies in one common concern.
5END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. ISAACS.-I should hope that the expenditure caused by a bush fire would not be
10 part of an annual service.
Mr. MCMILLAN.-Would it not into the Appropriation Bill?
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 have
15 got rid of the phraseology to which we are accustomed, and instead of the words
Appropriation Bill, we are using the word law.
Mr. ISAACS.-A difficulty arises in connexion with the honorable members proposal
to place expenditure incurred for bush fires in the ordinary, it would not be annual,
and it would not be a service.
20END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. ISAACS.-Higher up in the clause you will see that it says that, whatever is taken
25 over, the state is to "indemnify the Commonwealth."
Mr. HOLDER.-If the words I have quoted have the meaning which Mr. Reid says they
have, it disposes of my first point. My next point is that in clause 52, it is provided that the
Federal Parliament shall have the power of "borrowing money on the public credit of the
Commonwealth"; and there is no provision anywhere that I know of in this Constitution to
30 limit the expenditure of money so borrowed. There are limits to the expenditure of
revenue. It would be quite impossible during the five years to render special aid to, any
state under the clause we have agreed to to-day, because the revenue is appropriated. But
the provision I have quoted deals with borrowed money, and I know [start page 1114] of
nothing in this Constitution which would limit or control the expenditure of borrowed
35 money except the Loan Act of the Federal Parliament which authorizes the loan.
Mr. ISAACS.-You are referring to paragraph (4) of clause 52?
Mr. HOLDER.-Yes.
Mr. OCONNOR.-But that money could not be spent upon any object the Federal
Parliament thought fit.
40 Mr. HOLDER.-I want an expression of opinion which shall be authoritative on the
point. I see that, according to the provision I have quoted, there is power given to the
Federal Parliament to borrow money on the credit of the Commonwealth, and I say again
that I do not know of any limitation of the expenditure of that money except the limitation
which would be specified in the Loan Act authorizing the borrowing of the money. Of
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course, these words cover the raising of the money for the building of railways for instance,
and in such a case the limitation would be the terms of the Loan Act. But is there anything
anywhere to prevent a Loan Act being passed by the Federal Parliament authorizing the
raising of a certain sum of money, the proceeds of which loan might be divided according
5 to the terms of the Act among the states according to their needs, or upon some other
principle?
Mr. GLYNN.-The first three lines of clause 52 affect that point.
Mr. ISAACS.-The money must be expended with regard to "the peace, order, and
good government of the Commonwealth," not of the states.
10 Mr. HOLDER.-The passage to which Mr. Glynn refers me is as follows:-
The Parliament shall, subject to the provisions of this Constitution, have full power and
authority to make laws for the peace, order, and good government of the Commonwealth,
with respect to all or any of the matters following.
Well, that includes the borrowing of money.
15 Mr. ISAACS.-It is the Commonwealth as distinguished from the state that is to borrow;
the money is only to be borrowed for the purposes of the Commonwealth.
Mr. REID.-Look at clause 81, where it is clearly set out that-
All revenues raised or received by the Executive Government of the Commonwealth,
under the authority of this Constitution, shall form one Consolidated Revenue Fund,
20 to be appropriated for the public service of the Commonwealth in the manner and
subject to the charges provided by this Constitution.
Mr. HOLDER.-With all due respect, I do not think that that clause applies.
Mr. REID.-Yes; it covers every appropriation issued from the Treasury.
Mr. HOLDER.-I do not think so. I think clause 81 deals with revenue.
25 Mr. REID.-You receive revenue, and you appropriate money for expenditure.
Mr. HOLDER.-I do not suppose it is intended that the term "Consolidated Revenue
Fund," used in clause 81, shall include both revenue and loan money. We are surely
going to keep these two separate.
Mr. REID.-There is no provision of that sort.
30 Mr. HOLDER.-Then I would suggest that words should be inserted in order to provide
that loan money and revenue shall be kept separate. I hope we shall have a Loan Account
and a Consolidated Revenue Account, and by no means mix up the two. I take it that
clause 81 does not refer to any loan fund at all, but simply to revenue. The term
"Consolidated Revenue Fund" defines it clearly. Of course, I am not expressing a legal
35 opinion in a chamber of lawyers such as this is. I should be unwilling to do that. I simply
rose with the object of putting forward these points with a view of obtaining a statement of
authoritative opinion in regard to them. It appears to me that the clauses I have mentioned
imply the possibility of some assistance being rendered to a state in difficulties. It
seems to me that, as no assistance could be rendered out of revenue, some assistance
40 might be rendered out of loans, or there might be a guarantee of a loan, [start page
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1115] or some other way of rendering financial aid to a state that might be devised.
But I hope Mr. Henry will withdraw his motion, because to state the matter so
broadly as that the Commonwealth shall come to the aid of a state might, I am afraid,
lead to very serious reckless financing on the part of some states under some possible
5 conditions.
Mr. SYMON (South Australia).-My honorable friend (Mr. Holder) has put the matter
with his usual clearness, and has very convincingly shown that at any rate there is very
considerable doubt as to the question which has been exercising our minds, as to whether it
would be an implied power in the Commonwealth to come to the assistance of a state in
10 financial straits. And, therefore, if the existence of the power is involved in doubt, it would
be exceedingly desirable that some provision-I do not say the provision moved by my
honorable friend, who is not wedded to the particular words of his amendment, or any
other-should be inserted, so as to make it clear that that power exists. Now, I was very glad
to hear Mr. Isaacs express his desire to eliminate from this discussion, although we may use
15 the word "insolvency," all idea of its being suggested that we contemplate the actual
insolvency of any particular state. We cannot discuss a subject like this without using
the common words "bankruptcy" and "insolvency," and if we have to speak of state
bankruptcy, or state insolvency, we do not mean to impute that any state of the
Commonwealth, under any set of circumstances, is likely to repudiate its obligations.
20 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 imagined
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 state
25 maybe in such a condition of administrative embarrassment, that it may be necessary
to 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 be
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
30 opinion upon the subject, and even if we, assembled here, were unanimous on the
subject, 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 of
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
35 position to meet all their engagements. The difficulty which Mr. Henry sees, and to
which 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 the
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 to
40 meet 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 the
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 of
45 capitalizing 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 the
condition of things after the expiration of the five years, is absolutely without force as
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applied 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 the
5 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, it
seems 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 Federal
10 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 the
possibilities 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 with
15 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 clearly
expressed in the Constitution, to enable the Federal Parliament to give that assistance
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
20 things has arisen. But again, I say, I do not believe that such a condition of things
would 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,
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
25 it not be infinitely better that the Commonwealth should exercise a power of that kind
than 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 its
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
30 maintain the existence, the integrity, and the solvency of every state. And I do say that
that is the function of the Commonwealth.
Mr. REID.-Then it had better be put in the Bill, and let the people know what they
are doing. If they are going to enter into a contract of that sort, the people had better
know it.
35END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Dr. COCKBURN.-The whole proposal is foreign to the spirit of the Constitution.
40 The Constitution lays it down that the Commonwealth is to deal equally with all the
states 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 handed
over to any one colony. The thing will not bear a moment's investigation, and I hope the
45 honorable member will not press his proposal to a division. It is a pity that the amendment
has 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 the
present time. On the contrary, I believe that their financial position, good as it is now, will
be infinitely improved.

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END QUOTE
.
Hansard 17-2-1898 Constitution Convention Debates
QUOTE
5 Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52
we find these governing words on the very forefront of that clause-
That Parliament shall, subject to the provisions of this Constitution, have full power
and authority to make laws for the peace, order, and good government of the
Commonwealth.
10 We see there that the Commonwealth is named as distinguished from the states. We
have 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 as
the executive rights and jurisdiction of the states.
END QUOTE
15.
HANSARD 26-3-1897 Constitution Convention Debates
QUOTE
Mr. ISAACS: There is a line up to which concession may become at any moment a
sacred duty, but to pass that line would be treason; and therefore, when we are asked
20 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 the
liberties of our people-then,
END QUOTE
25.
HANSARD 5-3-1891 Constitution Convention Debates
QUOTE Mr. MUNRO:
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
30 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 union
should be an early one-that is, that we should remove all difficulties in the way in order that
the union should take place at as early a date as possible. Third, that it should be under
35 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 is
laid down by our various parliaments.
END QUOTE
40.
HANSARD 17-4-1897 Constitution Convention
QUOTE Mr. DEAKIN:
They both desire to retain for their Several States for all time the privilege of
controlling industrial disputes within their own borders.
45END QUOTE
.
HANSARD 19-4-1897 Constitution Convention
QUOTE Mr. CARRUTHERS:

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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. When
once that Constitution is framed we cannot get behind it.
END QUOTE
5.
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE Mr. SYMON.-
The relations between the parties are determined by the contract in the place where it
occurs.
10END QUOTE
.
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE Sir EDWARD BRADDON (Tasmania).-
We have heard to-day something about the fixing of a rate of wage by the federal
15 authority. That would be an absolute impossibility in the different states.
END QUOTE
.
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
20 Mr. BARTON: If they arise in a particular State they must be determined by the
laws of the place where the contract was made.
END QUOTE
.
HANSARD 27-1-1898 Constitution Convention Debates
25QUOTE
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 QUOTE
.
30HANSARD 27-1-1898 Constitution Convention Debates
QUOTE Sir JOHN DOWNER.-
The people of the various states make their own contracts amongst themselves, and if
in 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.
35END QUOTE
.
Hansard 27-1-1898 Constitution Convention Debates
QUOTE
Mr. SYMON.-Why should you interfere with the laws in the different colonies
40 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 federal
authority?
END QUOTE
.
45HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
Mr. SYMON.-My honorable friend will hand that over to the Federal Parliament. I do
not 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
50 their own questions of industrialism. I do not want to enter into a discussion as to the
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modes of carrying out this proposal; that will be a matter for the Federal Parliament if we
decide 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 South
5 Australia enters into the colony of Victoria, so that Victoria shall be put under some kind
of martial law?
Mr. ISAACS.-It is a question of fact, like anything else.
END QUOTE
.
10HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
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 domestic
concern. We do not want to interfere with the domestic life, or with industrial life, except
15 in the last resort. If you are going to introduce such a thing as this it must be the Federal
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.
20END QUOTE
.
HANSARD 31-1-1898 Constitution Convention Debates
QUOTE
Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection
25 of our interests, but also for the just interpretation of the Constitution:
END QUOTE
.
HANSARD 8-2-1898 Constitution Convention Debates
QUOTE
30 Mr. 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.
END QUOTE
35.
Osborne v Commonwealth [1911] HCA 19; (1911) 12 CLR 321 (31 May 1911)
QUOTE
The principles to be applied in considering such a ground of invalidity are laid down in
Barger's Case[17]; it is unnecessary to repeat them here. It is sufficient, I think, to say that
40 the effect and consequences of an Act, even the motives of the legislature in passing it, are
immaterial, if the Act itself, according to the fair construction of its provisions, is an
exercise of the power conferred.
END QUOTE
.
45HANSARD 17-2-1898 Constitution Convention Debates
QUOTE Mr. OCONNOR.-
We must remember that in any legislation of the Commonwealth we are dealing with the
Constitution. Our own Parliaments do as they think fit almost within any limits. In this

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case the Constitution will be above Parliament, and Parliament will have to conform
to it.
END QUOTE
.
5HANSARD 1-3-1898 Constitution Convention Debates
QUOTE
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 QUOTE
10.
HANSARD 1-3-1898 Constitution Convention Debates
QUOTE 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
15 to a power given.
END QUOTE
.
HANSARD 9-2-1898 Constitution Convention Debates
QUOTE
20 Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
END QUOTE
.
HANSARD 2-3-1898 Constitution Convention Debates
QUOTE Dr. QUICK (Victoria).-
25 If under a Constitution in which no such words as these appear such legislation has
been carried, what further danger will arise from inserting the words in our
Constitution? 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 Almighty
30 God" could be subscribed to not only by Roman Catholics and Protestants, but also
by Jews, Gentiles, and even by Mahomedans. The words are most universal, and are
not necessarily applicable only to Christians.
END QUOTE
.
35Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-No; because you do not give any power with regard to punishing
crime 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
40 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 not
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 the
45 Commonwealth 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 the
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-

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Mr. SYMON.-It is part of the unwritten law of the Constitution that a religion shall not
be established.
END QUOTE
.
5Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. REID.-I suppose that money could not be paid to any church under this
Constitution?
Mr. BARTON.-No; you have only two powers of spending money, and a church
10 could not receive the funds of the Commonwealth under either of them.
[start page 1773]
END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates
15QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is
no 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.
20END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. SYMON.-The honorable and learned member is now dealing with another matter.
25 Would not the provision which is now before us confer upon the Federal Parliament the
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 is
asked 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
30 the Union. I am not going to put that in the power of any one, and if it is put in the power of
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 the
Commonwealth is to run the risk-it may be a small risk-of having that taken away or
35 diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am
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.
END QUOTE
40.
Hansard 8-2-1898 Constitution Convention Debates
QUOTE
Mr. SYMON (South Australia).-I think the honorable member (Mr. Wise) has expanded
the spirit of federation far beyond anything any of us has hitherto contemplated. He has
45 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.

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We are not here for unification, but for federation, and the dual citizenship must be
recognised as lying at the very basis of this Constitution.
END QUOTE
.
5Hansard 27-1-1898 Constitution Convention Debates
QUOTE
Mr. KINGSTON.-Section 100 preserves the existing legislation.
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
10 shall, to the extent of the inconsistency, be invalid.
END QUOTE
.
In Macleod Lord Halsbury L.C. quoted (at p 458) the remarks of Parke B. in Jefferys v. Boosey
(at p 926 of HLC (p 725 of ER)):
15QUOTE
(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 QUOTE
.
20Then consider Hansard2-3-1898 Constitution Convention Debates;
QUOTE
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 foreign
countries, in the same way as Canada has negotiated for such treaties. These treaties could
25 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 for
and on behalf of its citizens.
END QUOTE
.
30Hansard 6-3-1891 Constitution Convention Debates
QUOTE 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 be
either legally immutable or else capable of being changed only by some authority
35 above and beyond the ordinary legislative bodies, whether federal or state
legislatures, existing under the constitution.
END QUOTE
.
Hansard 6-3-1891 Constitution Convention Debates
40QUOTE Mr. THYNNE:
The constitution of this federation will not be charged with the duty of resisting
privileged classes, for the whole power will be vested in the people themselves. They
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
45 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,
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and the royal prerogative exercised, in their interest and for their benefit, by the advice of
their ministers will be practically vested in them. They will exercise the sovereignty of the
states, 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
5 the necessary powers for their proper management and existence. Each assembly, each
legislature, whether state or federal existing under this constitution, will be as Dicey
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.
10END QUOTE
.
Hansard 18-3-1891 Constitution Convention Debates
QUOTE
Sir GEORGE GREY: I beg to propose that the following resolution stand as resolution
15 No. 5:-
The inhabitants of each of the states of federated Australasia ought to be allowed to
choose, and if they see fit from time to time to vary, the form of state government under
which 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
20 majority of voters, their own form of state constitution.
Question proposed.
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 here
25 for 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 dealt
with under the commission in virtue of which we have come here.
END QUOTE
.
30Hansard 18-3-1891 Constitution Convention Debates
QUOTE
Dr. COCKBURN: I think we have nothing whatever to do with deciding the details
of the state constitutions. On the other hand, I think it appertains to the functions of this
Convention to decide that the power of framing a constitution shall be in the hands of the
35 several states. At present the legislatures of the various colonies can only be altered
with 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 federal
legislature, is it intended that the state legislatures shall have the power of altering their
constitutions at will or not? From that point of view I think the proposition put forward by
40 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 own
constitutions according to the will of the majority of the people of those states.
END QUOTE
45.
Again (RE Section 123);
Hansard 18-3-1891 Constitution Convention Debates
QUOTE
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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.
END QUOTE
5.
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 power
which you have given to the Federal Parliament to make laws regulating immigration
10 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 any
person from entering any part of the Commonwealth, you have also the power to
prevent any person from becoming a member of the Commonwealth community.
There is no territorial entity coincident with the Commonwealth. Every part of the
15 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 any
political 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 in
exactly the same position.
20END QUOTE

HANSARD 9-9-1897 Constitutional Convention


QUOTE Mr. HIGGINS (Victoria)
There will, of course, be no funds in the commonwealth at that stage; but I apprehend
25 that the governor-general will act in the hope of being recouped any expenses
afterwards to which he may be put.
END QUOTE
.
ESTOPPEL against wrongful enforcement of what was objected against.
30http://online.ceb.com/calcases/C3/3C3d462.htm
CITY OF LONG BEACH v. MANSELL (1970) 3 C3d 462
QUOTE
A similar statement of the doctrine has appeared in the statutes of California since 1872
(former Code Civ. Proc., § 1962, subd. 3), and section 623 of the Evidence Code now
35 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."
END QUOTE
40.
Hansard 24-3-1897 Constitution Convention Debates
QUOTE
Sir GEORGE TURNER: It would never do to allow in this Federal Parliament that
those representatives who are elected upon the most liberal franchise possible should be
45 outvoted by those who would be elected by a very limited franchise indeed. As this may
fairly 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 have
given the right of voting to those who have not that right in other colonies, it would be
50 unfair and inequitable to take from any who have the right, and therefore whatever
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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 the
length of saying that everyone who has the right in the various colonies, if they desire to
5 exercise their franchise, should have the opportunity of doing so.

END QUOTE
Again
Hansard 24-3-1897 Constitution Convention Debates
10QUOTE
At 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 be
15 deprived of exercising that right, even so far as the elections to the Federal
Parliament are concerned.
END QUOTE
And
QUOTE
20 I would go the length of saying that everyone who has the right in the various colonies, if
they 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.
Hansard 6-3-1891 Constitution Convention Debates
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 central
30 federal parliament certain limited powers and reserves to the other parliaments all other
powers. 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 QUOTE
40.
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."
45 The bill was sent home with those words in it; but her Majesty's advisers at home
deliberately 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 danger of
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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 legislation
under the constitution of Australia.
5 .
Barton J, the parliament cannot give the word a meaning not warranted by s73 of
the Constitution.
END QUOTE

10Commonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272.

.
Hansard 17-4-1897 Constitution Convention Debates
QUOTE Mr. SYMON:
15 There can be no doubt as to the position taken up by Mr. Carruthers, and that many
of the rules of the common law and rules of international comity in other countries
cannot be justly applied here.
END QUOTE
.
20Hansard 8-2-1898 Constitution Convention Debates
QUOTE
Mr. SYMON.-Yes. Mr. Wise asked why should New South Wales or Victoria-to take a
case which is extremely unlikely to occur-prohibit a citizen of the neighbouring colony
from acquiring property in the legislating colony, or only allow him to acquire it under
25 adverse conditions? But why not? The whole control of the lands of the state is left in that
state. The state can impose what conditions it pleases-conditions of residence, or
anything else-and I am not aware that a state has surrendered the control of the
particular administration of its own lands, or of anything that is left to it for the
exercise of its power and the administration of its affairs. I would much prefer, if there
30 is to be a clause introduced, to have the amendment suggested by Tasmania, subject to one
modification, omitting the words-"and all other persons owing allegiance to the Queen."
That would re-open the whole question as to whether an alien, not admitted to the
citizenship here-a person who, under the provisions with regard to immigration, is
prohibited from entering our territory, or is only allowed to enter it under certain
35 conditions-would be given the same privileges and immunities as a citizen of the
Commonwealth. Those words, it seems to me, should come out, and we should confine the
operation of this amendment so as to secure the rights of citizenship to the citizens of the
Commonwealth. I think, therefore, that with some modification the amendment suggested
by Tasmania would be a proper one to adopt.
40END QUOTE
.
HANSARD 8-2-1898 Constitution Convention Debates
QUOTE
Dr. COCKBURN.-We do not want to imitate that example. We do not want a clause in
45 our 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 of
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

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according to the legal limits of the Constitution, I do not think we should pay it the
compliment of imitating it here.
END QUOTE
.
5Hansard 22-4-1897 Constitution Convention Debates
QUOTE 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 of
the Sabbath, in the rubrics of our guilds and social orders, in the anthem through
10 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 in
the time-honored motto of the nation.
END QUOTE
.
15Hansard 2-4-1891 Constitution Convention Debates
QUOTE 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 becoming
senators until they have been resident in the commonwealth for a certain period? No
20 such prohibition is placed upon Australians residing in the old country. Any
Australian, 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 the
legislature of one of the colonies desired his appointment.
25END QUOTE
.
Hansard 1-4-1891 Constitution Convention Debates
QUOTE
Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that
30 the only laws which can apply are laws for the peace, order, and good government of
the commonwealth.
END QUOTE
.
Hansard 2-4-1891 Constitution Convention Debates
35QUOTE Sir SAMUEL GRIFFITH:
The practice in England has been that when the House of Commons is dissolved, the
Gazette 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 are
appointed to be returned on that day.
40END QUOTE
.
Hansard 2-4-1891 Constitution Convention Debates
QUOTE Sir SAMUEL GRIFFITH:
According to the English practice there is always a parliament either summoned or
45 prorogued. Coincident with the dissolution of the old parliament is the proclamation
calling the new parliament.
END QUOTE
.
Hansard 2-4-1891 Constitution Convention Debates
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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 lives
5 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 three
years, 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 shall
10 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 30-3-1897 Constitution Convention Debates
15QUOTE Mr. DEAKIN:
It appears to me that the representatives of the less populous States decline to distinguish
sufficiently 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 it
20 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 the
courts to be established under that Constitution.
END QUOTE
.
25Hansard 1-3-1898 Constitution Convention Debates
QUOTE
Mr. 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, because
30 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 no
one 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 colonies
35 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 a
few minutes in discussing it.
END QUOTE
40.
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. SYMON ( South Australia ).-
In the preamble honorable members will find that what we desire to do is to unite in one
45 indissoluble Federal Commonwealth -that is the political Union-"under the Crown of the
United Kingdom of Great Britain and Ireland , and under the Constitution hereby
established." 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
50 to create under that Union . The second part of the preamble goes on to say that it is
expedient to make provision for the admission of other colonies into the Commonwealth.
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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 QUOTE
5.
Hansard 1-3-1898 Constitution Convention Debates
QUOTE 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 the
10 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 QUOTE
15.
Hansard 7-3-1898 Constitution Convention Debates
QUOTE 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 give
20 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 the
Federal 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 Federal
25 Parliament 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 manhood
and 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 support
30 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 age
be 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 towards a fund out
of which provision would be made for his old age. That is another reason why the federal
35 authority should take it instead of the state, because within the bounds of Federated
Australia a law can be enacted compelling that individual who is to receive the benefit to
contribute to the fund in which he is to participate in old age. I have much pleasure in
bringing forward this motion again, because I am assured that those who reluctantly voted
against me before will vote with me on this occasion.
40END QUOTE
.
Hansard 17-2-1898 Constitution Convention Debates
QUOTE
Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52
45 we find these governing words on the very forefront of that clause-
That Parliament shall, subject to the provisions of this Constitution, have full power
and authority to make laws for the peace, order, and good government of the
Commonwealth.
We see there that the Commonwealth is named as distinguished from the states.
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END QUOTE
.
Hansard 21-1-1898 Constitution Convention Debates
QUOTE The Hon. J.H. HOWE:
5 As he said-"This inadequate provision for old age is a disgrace to the nation, and a
danger to all social order." I have given this subject considerable study, and I have come
to the conclusion that any system to be effective must be compulsory. We are met
sometimes by people who dearly love liberty-and no one loves liberty more than I do
myself-who say that it would be an encroachment upon the liberty of the subject if we
10 compelled people to contribute to an old-age pension fund. All direct taxation, however,
is compulsory, and I presume direct taxation is necessary for the good government of
the country.
END QUOTE
.
15Hansard 17-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
Providing, as this Constitution does, for a free people to elect a free Parliament-giving
that people through their Parliament the power of the purse-laying at their mercy
from day to day the existence of any Ministry which dares by corruption, or drifts
20 through ignorance into, the commission of any act which is unfavorable to the people
having this security, it must in its very essence be a free Constitution. Whatever any
one may say to the contrary that is secured in the very way in which the freedom of
the British Constitution is secured. It is secured by vesting in the people, through their
representatives, the power of the purse, and I venture [start page 2477] to say there is
25 no other way of securing absolute freedom to a people than that, unless you make a
different kind of Executive than that which we contemplate, and then overload your
Constitution with legislative provisions to protect the citizen from interference. Under
this Constitution he is saved from every kind of interference. Under this Constitution
he has his voice not only in the, daily government of the country, but in the daily
30 determination of the question of whom is the Government to consist. There is the
guarantee of freedom in this Constitution. There is the guarantee which none of us
have sought to remove, but every one has sought to strengthen. How we or our work
can be accused of not providing for the popular liberty is something which I hope the
critics will now venture to explain, and I think I have made their work difficult for
35 them. Having provided in that way for a free Constitution, we have provided for an
Executive which is charged with the duty of maintaining the provisions of that
Constitution; and, therefore, it can only act as the agents of the people. We have
provided for a Judiciary, which will determine questions arising under this
Constitution, and with all other questions which should be dealt with by a Federal
40 Judiciary and it will also be a High Court of Appeal for all courts in the states that
choose to resort to it. In doing these things, have we not provided, first, that our
Constitution shall be free: next, that its government shall be by the will of the people,
which is the just result of their freedom: thirdly, that the Constitution shall not, nor shall
any of its provisions, be twisted or perverted, inasmuch as a court appointed by their
45 own Executive, but acting independently, is to decide what is a perversion of its
provisions? We can have every faith in the constitution of that tribunal. It is appointed as
the arbiter of the Constitution. It is appointed not to be above the Constitution, for no
citizen is above it, but under it; but it is appointed for the purpose of saying that those
who are the instruments of the Constitution-the Government and the Parliament of
50 the day-shall not become the masters of those whom, as to the Constitution, they are
bound to serve. What I mean is this: That if you, after making a Constitution of this
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kind, enable any Government or any Parliament to twist or infringe its provisions,
then by slow degrees you may have that Constitution-if not altered in terms-so
whittled away in operation that the guarantees of freedom which it gives your people
will not be maintained; and so, in the highest sense, the court you are creating here,
5 which is to be the final interpreter of that Constitution, will be such a tribunal as will
preserve the popular liberty in all these regards, and will prevent, under any pretext
of constitutional action, the Commonwealth from dominating the states, or the states
from usurping the sphere of the Commonwealth. Having provided for all these things,
I think this Convention has done well.
10END QUOTE
.
HANSARD 24-1-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
QUOTE
15 Mr. BARTON.-It would be the same as federalizing our lands.
Mr. OCONNOR.-It would, because the value of the land is inextricably mixed up
with the value of the water supply to it.
Mr. HIGGINS.-All conditions would apply to lands; all circumstances affect their value.
END QUOTE
20.
The Constitution Convention Debates makes clear that WATER that falls on a property belongs
to the owner of that property. However, the usage of the WATER must be in such manner that it
does not interfere with the rights of others. More over, that by federation. it means that riparian
rights are applicable.
25I understand that the Commonwealth with agreement of the States has discontinued the Inter-
State Commission, but no such powers existed for the Commonwealth and the State to do so and
hence the Commonwealth of Australia itself is clearly at fault in that regard also, as are the
States.
QUOTE
30 Commission obligatory.
END QUOTE
And
QUOTE
Mr. HIGGINS.-But the Inter-State Commission must be absolutely independent of
35 Parliament.
END QUOTE
.
HANSARD 26-3-1897 Constitution Convention Debates
QUOTE
40 Mr. HOLDER: We want something which shall have two parts, which shall be
democratic in the fact that it is based on the people's will, and that in it every personal unit
of the population shall be recognised and his individuality preserved, and that, on the other
hand, shall be a true Federation, in that each State unit shall also have its individuality
preserved and its independence assured. I do not think we can afford to dispense with either
45 of these two things. We cannot afford to dispense with the guarantee of the personal
individual rights of every citizen of the Commonwealth, nor, on the other hand, can we
afford to dispense with the individual or separate rights or interests of each of the separate
States-if my hon. friend Mr. O'Connor prefers that term. We cannot neglect to provide for
their due recognition. The next principle I shall lay down is this: That in dealing with this
50 federal authority we should confer on it no powers which it cannot exercise more
wisely and well and effectively than the States can exercise those powers. I would even
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go a step further, and lay down as the principle which should govern our conduct: To the
States all that is local and relating to one State, to the Federal authority all that is national
and inter-State. I wonder whether I can secure the absolute adherence, no matter where it
may lead us, of a majority of this Convention to that principle: To the State everything that
5 is local and relating to one State, to the Federal power everything that is national and of
inter-State importance. I pass from these two general principles to a discussion of the only
other preliminary I shall have to touch, and that is the question of the appointment of the
representative of the British Crown in the person of the Governor-General. I do not take it
that the words of the Enabling Act requiring us to frame a Constitution for a Federation
10 "under the Crown" bind us in the matter of whether or not we shall elect our own
Governor-General, because I take it that the legal bonds which bind us to the mother-
country, to the great British Empire, are chiefly, first the right of veto which the Imperial
authorities have over any Acts our local Legislature may pass, and which the Federal
Legislature may pass, and next the right of the Imperial Legislature at any time to pass
15 legislation which may affect us, or which may revoke any legislation affecting us. These
are the great legal bonds which bind us to the British Empire. But above all this, the
greater and wider, and, to my mind, much more important [start page 145] bonds than the
legal bonds are those of kinship, of language, and of sympathy that must always bind us to
the motherland. The mere appointment by the Crown of the Governor-General is not a real
20 bond. That this is so is recognised to-day in that we have presiding, now and again, in the
position of Acting-Governor of one or other of these colonies, gentlemen who so preside by
virtue of their position upon the legal bench. In the appointment of the Governor we have
only one link, and that link is again and again missing when gentlemen, owing to their legal
position, temporarily occupy the office.
25 Mr. SYMON: By vice-regal appointment.
Mr. HOLDER: Yes, of course; the Commission from Her Majesty lies dormant until it
is actually called into existence by the absence of the Governor; but we can at this moment,
if the necessity arises, appoint a new occupant to the Supreme Court Bench, and that would
qualify him to fill the office of Acting-Governor if need required it. Therefore I think it is
30 clear that to that extent it lessens the argument that the main link that binds us to the
mother-country is the appointment of the Governor, and shows that it is an argument which
has not half so much weight as some of the speakers would have us believe. But I take a
very strong position against the election of the Governor-General by the Federation, not
because I believe it would mean losing a link which binds us to England, but that we should
35 have a man of such power and authority, derived directly from the people, that he would
certainly clash with the other powers and authorities we propose to set up under this
Constitution.
END QUOTE
.
40HANSARD 26-3-1897 Constitution Convention Debates
QUOTE Mr. LYNE:
First of all, he raised the question of the appointment of the Governor-General for the
Federal Executive. Now, I think there is no desire on the part of any large section of
this community to take what I may term the first step towards a severance from the
45 mother-country, but the first step would be in the election of the Governor-General
instead of allowing his appointment to be made by the Home Government. It is but a
small connecting link between the Australasian colonies-between a Federated
Australia and the mother-country-to allow the appointment to be made by the Home
Government; and I should like to know what power that Government would have
50 over any Governor-General elected in the manner desired.
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END QUOTE
.
Hansard 11-3-1898 Constitution Convention Debates
QUOTE
5 The CHAIRMAN.-I do not think I can rule this proposed amendment out of order.
Every clause, or nearly every clause, in a Bill in some way qualifies the preceding
clauses. They extend the operation of those clauses, and, in some instances they limit
the operation of the clauses. This is not a distinct negative, and I think it would be unduly
curtailing the power of the committee to arrive at such a conclusion as they may think fit if
10 I ruled this out of order.
END QUOTE
.
Hansard 17-3-1898 Constitution Convention Debates
QUOTE Sir EDWARD BRADDON.-
15 When we consider how vast the importance is that every word of the Constitution
should be correct, that every clause should fit into every other clause; when we
consider the great amount of time, trouble, and expense it would take to make any
alteration, and that, if we have not made our intentions clear, we shall undoubtedly
have laid the foundation of lawsuits of a most extensive nature, which will harass the
20 people of United Australia and create dissatisfaction with our work, it must be evident
that too much care has not been exercised.
END QUOTE
.
Hansard 8-2-1898 Constitution Convention Debates
25QUOTE
Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs)
is I think correct in the history of this clause that he has given, and this is [start page 672]
one of those instances which should make us very careful of following too slavishly the
provisions of the United States Constitution, or any other Constitution. No doubt in putting
30 together the draft of this Bill, those who were responsible for doing so used the material
they found in every Constitution before it, and probably they felt that they would be
incurring a great deal of responsibility in leaving out provisions which might be in the least
degree applicable. 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;
35 and I quite agree with my honorable and learned friend (Mr. Carruthers) that we should be
very careful of 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
40 which we have no use for, we may be giving a direction to the Constitution which none of
us now 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
.
45Hansard 2-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON.

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If we are going to give the Federal Parliament power to legislate as it pleases with
regard to Commonwealth citizenship, not having defined it, we may be enabling the
Parliament to pass legislation that would really defeat all the principles inserted
elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That is
5 not what is meant by the term "Trust the Federal Parliament."
END QUOTE
.
Hansard 20-4-1897 Constitution Convention Debates
QUOTE
10 Mr DEAKIN: I think my hon. friend Sir Edward Braddon somewhat mistakes the
position. If the United States plan is followed territorial delegates would simply be
entitled to enter the House of Representatives and speak there, but would not be
permitted to vote. They are only agents. The territories here would consist of parts of
Australia in which there was merely a nominal population.
15 From them persons might be privileged to enter the House of Representatives in order
to state their wishes, but these persons could not take any other part in the
proceedings.
Mr. BARTON: They are provisionally governed by the Commonwealth.
Sir EDWARD BRADDON: Representation should carry with it the right to vote.
20 Mr. DEAKIN: Under territorial representation if it follows the plan of the United
States, as it probably would, territorial representatives would be entitled to speak in
the House of Representatives, but not to vote. I think Sir Edward Braddon will see that
his alarm is not well-grounded, and that whatever determination is come to in regard to the
representation of territories must be settled by both Houses. The Senate will have an equal
25 voice with the House of Representatives in determining what representation is to be given,
when it is to be given, and how.
Mr. BROWN: I hope that Sir Edward Braddon will not insist on this amendment. It
appears to me that we are again doing as we have been doing very frequently during the
discussion of this Bill, namely, trying to put into the Constitution things which ought to be
30 dealt with hereafter by the Commonwealth. It is perfectly plain that as regards any
territory which may require to have representation in the Commonwealth, Some
special arrangement will have to be made such as that indicated by my hon. friend Mr.
Deakin. To put into this clause a condition that such territory can only be represented
under the terms and conditions to which the complete States are admitted will, I
35 apprehend, be contrary to what the Convention has in view.
Mr. BARTON: And prevent the Commonwealth from taking over any at all.
Mr. BROWN: In addition to that, it is showing a large amount of distrust of the wisdom of
Parliament. We shall all, through our representatives, have the opportunity of influencing
decisions in the future Parliament just as we have done here. Some hon. members
40 occasionally regard this Commonwealth Parliament as a sort of foreign and hostile body
which will have to be watched, and concerning which all sorts of precautions will have to
be taken to prevent it from doing mischief. Having faith in the wisdom and capacity of the
Federal Parliament, we should not load the Constitution with these unnecessary details.
Mr. BARTON: I ask the hon. member not to insist upon his amendment, which refers to
45 territories and not to new States. It would be impossible for the Commonwealth ever to
consent to the admission of territories which might be sparsely populated, and which
would, [start page 1015] according to the hon. member's proposal, be entitled to six
members in the Senate. Territories or districts which are only in a primitive state of
development are intended to be dealt with by a clause of this sort. They are in a
50 transition state, and they are governed by the Commonwealth until such time as the

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States have reached a condition which would entitle them to representation in the
Senate. Bryce says:
Besides these full members there are also eight territorial delegates, one from each of the
territories, regions in the West enjoying a species of self -government, but not yet formed
5 into States. These delegates sit and speak, but have no right to vote, being unrecognised by
the Constitution. They are, in fact, merely persons whom the House under a Statute admits
to its floor and permits to address it
This Constitution is on a little more liberal basis than that in this respect: the
Commonwealth in the case of the secession of a territory which is cumbersome, gives
10 power to allow the representation of it in either House of Parliament under the terms
which the Parliament thinks fit. Instead of the territories being governed in a way that
only entitles them to be represented as delegates there is power to give them a certain
degree of representation. It is quite as much as they can have the right to expect, and
this is a more liberal provision than is to be found in the American Constitution. I
15 trust we shall not have to divide on this.
Mr. DOUGLAS: Why should the words "either House of the Parliament" be there? What
is required is to strike out:
In either House of the Parliament to the extent and to insert:
And it shall be on such terms and conditions as the Parliament shall think fit.
20 Sir EDWARD BRADDON: I should not object to the clause so strenuously as I have done
if it were clearly shown that representation in this instance did not carry with it the
voting power which we generally understand accompanies representation. A
representative is as well as being a speaking machine, a voting one, and if Mr. Barton
will say in the Bill that this representative or these representatives are not to have votes,
25 then my alarm will be dispelled. This is the fact as regards the representation of
colonies under the American Constitution, but we have nothing in the clause to show
that it is to be the fact here also.
Amendment negatived.
Mr. Wise's amendment was then put
30 Mr. HIGGINS: My feeling is in sympathy with Mr. Wise's general intention, but I am
embarrassed with the proposal at this stage. There is no doubt our duty is to frame a
Constitution for Australasia, and in framing a Constitution we are giving the Federal
Parliament power to acquire territory for the purposes of the Federation.
END QUOTE
35.
Hansard 20-4-1897 Constitution Convention Debates
QUOTE
Dr. COCKBURN: We have to consider this matter simply as an ordinary landlord.
The federal authority will be the landlord of the site of the federal capital, and it is for
40 us to consider what is the best possible use to which the landlord can put the land.
This does not necessarily touch the question of land nationalisation or of methods of
land tenure. Therefore I feel compelled to vote with Mr. Wise, and in doing that I do not
admit that I agree with the hon. member in all his views. I vote for the amendment because
it establishes the general methods of a sound principle, which is applicable in the present
45 instance, and will go a long way towards settling the question I have just alluded to.
Mr. HOWE: This land question is really the basis of all public good. So fax as the land
laws of each individual State are concerned, I think they should be left entirely to the
Parliament of that State.
END QUOTE
50.
Hansard 2-3-1898 Constitution Convention Debates
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QUOTE
Clause 120-In reckoning the numbers of the people of a State or other part of the
Commonwealth aboriginal natives shall not be counted.
Dr. COCKBURN: As a general principle I think this is quite right. But in this colony,
5 and I suppose in some of the other colonies, there are a number of natives who are on
the rolls, and they ought not to be debarred from voting.
Mr. DEAKIN: This only determines the number of your representatives, and the
aboriginal population is too small to affect that in the least degree.
Mr. BARTON: It is only for the purpose of determining the quota.
10 Dr. COCKBURN: Is that perfectly clear? Even then, as a matter of principle, they
ought not to be deducted.
Mr. O'CONNOR: The amendment you have carried already preserves their votes.
Dr. COCKBURN: I think these natives ought to be preserved as component parts in
reckoning up the people. I can point out one place where 100 or 200 of these
15 aboriginals vote.
END QUOTE
.
Hansard 20-4-1897 Constitution Convention Debates
QUOTE
20 Dr. COCKBURN: I have raised this point at every opportunity. I do not wish to take up
the time of the Convention, but I certainly shall move-an amendment, because the clause is
not in accordance with the general provisions of Federation. The States composing the
Federation should have full power to deal with local affairs. Essentially, all external
relations are taken out of their jurisdiction. I do think they ought to have the power
25 themselves to say what the Constitution under which they live shall be.
END QUOTE
.
Hansard 3-3-1898 Constitution Convention Debates
QUOTE
30 Mr. SYMON.-Of course, the absolute control by a state of everything within its own
borders is retained by this Constitution, except in respect to such matters as are
expressly handed over to the Commonwealth.
END QUOTE
.
35Hansard 3-3-1898 Constitution Convention Debates
QUOTE
Mr. KINGSTON.-How would you define the word "citizen"?
Mr. SYMON.-I do not think that it is necessary to frame a definition of "citizen." A
citizen is one who is entitled to the immunities of citizenship. In short, a citizen is a
40 citizen. I do not think you require a definition, of "citizen" any more than you require
a definition of "man" or "subject."
Mr. ISAACS.-Would you include a corporation in the term "citizen"?
Mr. SYMON.-Why not?
Mr. ISAACS.-Well, in America they do not.
45 Mr. SYMON.-I do not see why a corporation existing in one colony should not have the
rights of a corporation in another colony. Otherwise you defeat the objects of this
Constitution.
[start page 1783]
Mr. ISAACS.-I agree that that ought to be so, but the word "citizen" will not include a
50 corporation.
Mr. SYMON.-Well, in my opinion it should. I
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END QUOTE
.
Hansard 3-3-1898 Constitution Convention Debates
QUOTE
5 Dr. QUICK (Victoria)-I do not propose to be as severe in my criticism of the provision of
the honorable and learned member (Mr. Symon) to-day as he was in his determined
opposition to my proposed clause yesterday. I would point out, however, two difficulties in
the way of adopting his provision. The first is that there is no definition of the status of
"citizen." The clause does not say whether a citizen is a ratepayer of a state, an adult
10 male, or any member of the population of a state-men, women, children, Chinamen,
Japanese, Hindoos, and other barbarians. Who are the citizens of a state?
Mr. SYMON.-That depends upon the law of the state upon the subject.
Dr. QUICK.-So far as I am aware, there is no law in any colony defining colonial
citizenship or state citizenship. I am merely adopting the line of argument which my
15 honorable and learned friend adopted yesterday, in taking advantage of technical
points.
Mr. SYMON.-That was not my line of argument.
END QUOTE
.
20Hansard 3-3-1898 Constitution Convention Debates
QUOTE
Sir JOHN FORREST.-What is a citizen? A British subject?
Mr. WISE.-I presume so.
Sir JOHN FORREST.-They could not take away the rights of British subjects.
25 Mr. WISE.-I do not think so. I beg to move- That the words "each state" be omitted, with
the view of inserting the words "the Commonwealth."
I apprehend the Commonwealth must have complete power to grant or refuse citizenship to
any citizen within its borders. I think my answer to Sir John Forrest was given a little too
hastily when I said that every citizen of the British Empire must be a citizen of the
30 Commonwealth. The Commonwealth will have power to determine who is a citizen. I
do not think Dr. Quick's amendment is necessary. If we do not put in a definition of
citizenship every state will have inherent power to decide who is a citizen. That was the
decision of the Privy Council in Ah Toy's case.
Sir JOHN FORREST.-He was an alien.
35 Mr. WISE.-The Privy Council decided that the Executive of any colony had an
inherent right to determine who should have the rights of citizenship within its
borders.
Mr. KINGSTON.-That it had the right of keeping him out.
.
40 Mr. BARTON.-No, but the definition of "citizen" as a natural-born or naturalized subject
of the Queen is co-extensive with the ordinary definition of a subject or citizen in
America. The moment be is under any disability imposed by the Parliament be loses
his rights.
Dr. QUICK.-That refers to special races.
45END QUOTE
.
Hansard 3-3-1898 Constitution Convention Debates
QUOTE

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Mr. SYMON.-There is no man in Australia who is more profoundly versed in
constitutional law than Mr. Isaacs, and he knows that every point and every question has
been the subject of more or less debate and discussion, and will be until the end of time.
The words "subject," "person," and "citizen" can be made subjects of controversy at
5 all times if occasion requires it. At the same time, it does not affect the principle that
there should be a definition of "citizen," either in the form suggested by Dr. Quick or
by Mr. Barton. I will be quite content. The principle is what I am contending for: The
principle that our labours will be incomplete unless we make the rights of citizens or
subjects in one state to extend to the citizens of another state who may go from one state
10 to another. There ought to be no possibility of any state imposing a disqualification on a
person in the holding of property, or in the enjoyment of any civil right, simply
because be happens to belong to another state. That would not give us the uniformity of
citizenship we all desire, and therefore I am willing that the word "citizenship" should be
defined as Dr. Quick suggests, with perhaps some modification. I also support the
15 suggestion from the Chair that the two propositions might be considered together. The
clause would do something to meet the difficulty, not perhaps finally or conclusively, as
Mr. Isaacs, said, but at any rate to a large extent and almost completely.
[start page 1788]
END QUOTE
20.
Thu, 31 Oct 2002
QUOTE
Dear Mr Schorel-Hlavka
Thank you for your letter.
25 There is no bias, any more than there would be for a woman judge sitting in a case
involving women or a male judge in a rape case.
Your views on the Constitution appear to have overlooked s 51(xxxvii) of the
Constitution. If that power were not enough, and none of the other heads of power
sufficed, it is true that an amendment of the Constitution might be required.
30 Alternatively, there are cooperative schemes for parallel legislation. Ours is a
cooperative federation, as the Constitution itself envisaged.
Sincerely, Michael Kirby
END QUOTE
.
35Hansard 2-3-1898 Constitution Convention Debates
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 that we are
not going to make the Commonwealth a kind of social and religious power over us.
40END QUOTE
.
Hansard 10-3-1891 Constitution Convention Debates
QUOTE Mr. DIBBS:
We must not, however, be unmindful of the fact that there can be no federal government
45 without, to a large extent, the sacrifice of some portion of state rights; and when the word
"provinces" is used in this debate, I ignore its existence altogether. We have been, as it
were, chaffed out of our very existence. Those of us who have spoken within the walls of
this building, or who have spoken out of doors to our constituents, and have endeavoured,
in discussing the federal question, to take a strong view of the position in regard to the
50 defence of the rights of New South Wales, have been pulled to pieces, and called
provincialists. I object, in connection with the independent state of New South Wales-a
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state as independent as any in the world, even England itself, so far as the freedom of our
position is concerned-to the word "province." There may be something more dignified in
the use of the word "state." We are not going to become provinces. I do not think we
are going to give up the individual rights and liberties which we possess, and which
5 those who have gone before us have fought for, to become mere provinces under a
federal form of government. We may take the more dignified form of "states." Whilst
we have endeavoured to put before the people of New South Wales, in these resolutions, a
sort of opiate, something assuring to their minds that in joining a federal union we give up
nothing of our territorial rights, words have been inserted in them which I shall do my
10 utmost in Committee to strike out-
except in respect to such surrenders as may be agreed upon as necessary and incidental to
the power and authority of the national federal government.
I do not know the meaning of these words, and no hon. gentleman who has yet spoken has
given any clear interpretation of them. It is sufficient for us, in enunciating a principle
15 upon which the basis of a constitution shall be prepared, to see that the territorial
rights and privileges of each colony shall be preserved to each state but when you
come to consider the condition of a surrender, and the question of the power of
enforcing such surrender is placed in the hands of the federal government, then your
provinces or your states will be no party to the proceeding.
20END QUOTE
.
HANSARD 31-1-1898 Constitution Convention Debates
QUOTE
Mr. WISE (New South Wales).-The only class of cases contemplated by this section
25 are offences committed against the criminal law of the Federal Parliament, [start page
354] and the only cases to which Mr. Higgins' amendment would apply are those in
which the criminal law of the state was in conflict with the criminal law of the
Commonwealth; in any other cases there would be no necessity to change the venue,
and select a jury of citizens of another state. Now, I do not know any power, whether in
30 modern or in ancient times, which has given more just offence to the community than the
power possessed by an Executive, always under Act of Parliament, to change the venue for
the trial of criminal offences, and I do not at all view with the same apprehension that
possesses the mind of the honorable member a state of affairs in which a jury of one state
would refuse to convict a person indicted at the instance-of the Federal Executive. It might
35 be that a law passed by the Federal Parliament was so counter to the popular feeling of a
particular state, and so calculated to injure the interests of that state, that it would become
the duty of every citizen to exercise his practical power of nullification of that law by
refusing to convict persons of offences against it. That is a means by which the public
obtains a very striking opportunity of manifesting its condemnation of a law, and a
40 method which has never been known to fail, if the law itself was originally unjust. I
think it is a measure of protection to the states and to the citizens of the states which should
be preserved, and that the Federal Government should not have the power to interfere and
prevent the citizens of a state adjudicating on the guilt or innocence of one of their fellow
citizens conferred upon it by this Constitution.
45END QUOTE
.
HANSARD 10-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON (New South Wales).-

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Of such is the power to summon and dissolve Parliament, to which no one who
understood these matters would dream of adding the words "in Council." But yet
these rights can never be exercised without the advice of a responsible Minister, and if
that advice is wrongly given it is the Minister who suffers. Then, again, there is the
5 prerogative right to declare war and peace, an adjunct of which it is that the Queen
herself, or her representative, where Her Majesty is not present, holds that
prerogative. No one would ever dream of saying that the Queen would declare war or
peace without the advice of a responsible Minister. Wherefore, we all came to the
conclusion, as constitutional writers have long come to the conclusion, that the
10 prerogative is given in trust for the people, and is, therefore, only exercised at the
instance of a responsible Minister. I should like to know whether there would not be a
revolution in England if the Queen chose to declare war or to make peace without the
sanction or advice of a responsible Minister?
END QUOTE
15.
HANSARD 10-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-Yes. The Queen is the Commander-in-Chief of the British Army.
She has the sole power of making peace and war. According to constitutional
20 assumption it is her army. But who exercises the control of the Imperial Army? Is it
not the adviser of the Queen? Would there not, as I said before, be a revolution if the
Queen exercised her powers without consulting her Ministers? The honorable and
learned member (Mr. Symon) has handed me a passage from Anson's Law and Custom of
the Constitution, at volume 2, page 392. I quoted several passages upon the subject at
25 Adelaide, and I then understood that the Convention was perfectly satisfied as to the
position. It was then proposed by the Right Hon. Mr. Reid to import the principle which the
honorable and learned member (Mr. Deakin) now seeks to import, but the proposal was
negatived. The passage which I wish to read is as follows:-
Especially is the Secretary of State bound to maintain the discretionary prerogative
30 of the [start page 2256] Crown in the appointment and dismissal of officers, their
promotion or reward, or the acceptance of their resignations. This prerogative is
exercised through the Commander-in-Chief, on the responsibility of the Secretary of
State; and it is the more important that power of this sort should be in the hands of a
non-political officer, such as the Commander-in-Chief, because our army, unlike the
35 armies of other European countries, is not divorced from the political rights of
citizenship. The soldier, if duly qualified, may exercise the franchise; the officer may
sit in the House of Commons. Plainly then, the King or a Minister of the Crown might
use, or be pressed to use, the powers of appointment, promotion, or dismissal, for
political and party ends. The history of the last century attests the reality of this
40 danger. The office of Commander-in-Chief, as constituted in 1793, was intended to
meet it.
END QUOTE
.
HANSARD 9-9-1897 Constitution Convention Debates
45QUOTE
The Right Hon. G.H. REID: I strongly support the amendment for the reasons
which my hon. and learned friend has hinted at. This is an expression which would be
more in place in the United States Constitution, where treaties are dealt with by the
President and the senate, than in the constitution of a colony within the empire. The
50 treaties made by her Majesty are not binding as laws on the people of the United
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Kingdom, and there is no penalty for disobeying them. Legislation is sometimes
passed to give effect to treaties, but the treaties themselves are not laws, and indeed
nations sometimes find them inconvenient, as they neglect them very seriously without
involving any important legal consequences. The expression, I think, ought to be
5 omitted. I will deal with the other suggested amendments when the time comes.
END QUOTE
.
LEGAL REALITY (Part 2)

HANSARD 2-3-1898 Constitution Convention Debates


10QUOTE
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that
we are all alike subjects of the British Crown.
END QUOTE
.
15HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-this Constitution is to be worked under a system of responsible
government
END QUOTE
20.
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.- We have simply said that the guarantee of the liberalism of this
Constitution is responsible government, and that we decline to impair or to infect in any
25 way that guarantee.
END QUOTE
.
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
30 Mr. BARTON.- Of course it will be argued that this Constitution will have been
made by the Parliament of the United Kingdom. That will be true in one sense, but
not true in effect, because the provisions of this Constitution, the principles which it
embodies, and the details of enactment by which those principles are enforced, will all
have been the work of Australians.
35END QUOTE
.
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.- Having provided in that way for a free Constitution, we have
40 provided for an Executive which is charged with the duty of maintaining the
provisions of that Constitution; and, therefore, it can only act as the agents of the
people.
END QUOTE
.
45HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
END QUOTE
50.
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HANSARD 17-3-1898 Constitution Convention Debates
QUOTE Mr. DEAKIN.-
What a charter of liberty is embraced within this Bill-of political liberty and religious
liberty-the liberty and the means to achieve all to which men in these days can
5 reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also
a charter of peace-of peace, order, and good government for the whole of the peoples
whom it will embrace and unite.
END QUOTE
.
10HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. SYMON (South Australia).- We who are assembled in this Convention are about
to commit to the people of Australia a new charter of union and liberty; we are about
to commit this new Magna Charta for their acceptance and confirmation, and I can
15 conceive of nothing of greater magnitude in the whole history of the peoples of the
world than this question upon which we are about to invite the peoples of Australia to
vote. The Great Charter was wrung by the barons of England from a reluctant king. This
new charter is to be given by the people of Australia to themselves.
END QUOTE
20.
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed
as the arbiter of the Constitution. . It is appointed not to be above the Constitution, for
25 no citizen is above it, but under it; but it is appointed for the purpose of saying that
those who are the instruments of the Constitution-the Government and the
Parliament of the day-shall not become the masters of those whom, as to the
Constitution, they are bound to serve. What I mean is this: That if you, after making
a Constitution of this kind, enable any Government or any Parliament to twist or
30 infringe its provisions, then by slow degrees you may have that Constitution-if not
altered in terms-so whittled away in operation that the guarantees of freedom which
it gives your people will not be maintained; and so, in the highest sense, the court you
are creating here, which is to be the final interpreter of that Constitution, will be such a
tribunal as will preserve the popular liberty in all these regards, and will prevent,
35 under any pretext of constitutional action, the Commonwealth from dominating the
states, or the states from usurping the sphere of the Commonwealth.
END QUOTE
.
HANSARD 10-03-1891 Constitution Convention Debates
40QUOTE
Dr. COCKBURN: All our experience hitherto has been under the condition of
parliamentary sovereignty. Parliament has been the supreme body. But when we
embark on federation we throw parliamentary sovereignty overboard. Parliament is
no longer supreme. Our parliaments at present are not only legislative, but
45 constituent bodies. They have not only the power of legislation, but the power of
amending their constitutions. That must disappear at once on the abolition of
parliamentary sovereignty. No parliament under a federation can be a constituent
body; it will cease to have the power of changing its constitution at its own will. Again,
instead of parliament being supreme, the parliaments of a federation are coordinate
50 bodies-the main power is split up, instead of being vested in one body. More than all
that, there is this difference: When parliamentary sovereignty is dispensed with,
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instead of there being a high court of parliament, you bring into existence a powerful
judiciary which towers above all powers, legislative and executive, and which is the
sole arbiter and interpreter of the constitution.
END QUOTE
5.
Hansard 15-9-1897 Constitution Convention Debates
QUOTE
The Hon. A. DEAKIN: I say the great bulk of them are of that character, and am open to
refutation if I am wrong, I should say that the whole of the thirty-seven subjects, but,
10 indisputably, the great bulk of them, are subjects on which no question of state rights and
state interests could arise except by the merest accident. It is, as the right hon. gentleman
admitted, a grave defect in our constitution if we permit these questions to be left for all
time to be determined in a purely states house, or by a state referendum, when those
questions are not state questions-when they ought to be decided, not on state lines, but on
15 national lines, and by a national referendum.
END QUOTE
.
Hansard 20-4-1897 Constitution Convention Debates
QUOTE
20 Mr. BARTON: I do not think it is a good thing under any circumstances that a
judge under a Federal Constitution, at any rate, should have anything to hope for
from Parliament or Government.
Mr. KINGSTON: Hear, hear.
Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely the
25 interpreter of the laws as they arise, and not the guardian of a Constitution in the
same sense as a federal judge is, the same circumstances remain in part; but where you
will have a tribunal constantly charged with the maintenance of the Constitution against the
inroads which may be attempted to be made upon it by Parliament, then it is essential that
no judge shall have any temptation to act upon an unexpected weakness-for we do not
30 know exactly what they are when appointed-which may result, whether consciously or
not, in biasing his decisions in favor of movements made by the Parliament which
might be dangerous to the Constitution itself.
END QUOTE
.
35HANSARD 1-3-1898 Constitution Convention Debates
QUOTE
Mr. 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, because
40 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 no
one 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 colonies
45 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 a
few minutes in discussing it.
END QUOTE
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.
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-No; because you do not give any power with regard to punishing
5 crime 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 not
defeat that regulative power of the Commonwealth. I do not think that that applies at all,
10 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 the
Commonwealth 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 the
Commonwealth to use by way of regulation.
15END QUOTE

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