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The Pamphlet Collection of Sir Robert Stout: Volume 50

Affairs in the Pacific Islands-Resumption of Debate

Affairs in the Pacific Islands-Resumption of Debate.

On the following order of the day being called:—" Adjourned debate on question proposed yesterday—that an address be presented to the Governor of Tasmania, praying that His Excellency will be pleased to communicate the foregoing resolution, by telegraph, to Her Majesty, and cause to be laid upon the table of this Council such information as may be received by His Excellency,"

Mr. Dodds said: Mr. President,—At the request of hon. members yesterday, I moved the adjournment of this debate, in order that some further time might be given to the consideration of the question, upon which there appeared to be a difference of opinion in the minds of some hon. members. The hon. member for Western Australia expressed an opinion that any resolution of this Council should be transmitted direct from its President to Her Majesty's Secretary of State in England. I understood the hon. member for Victoria (Mr. Berry) to agree in that view, and to say that the Governor of Tasmania has really no special standing in reference to the Federal Council. I am unable to agree with either of these views. I think, as I intimated yesterday, that there is only one medium of communication between a legislative body, constituted as this is, and the Throne and person of Her Majesty, and that is the well-recognised one of the Governor of the colony in which the session of the Council is held. It is in order that no misunderstanding may arise in reference to this question that hon. members are desirous of having the practice now settled. I at once assume, that both my hon. friends have merely raised the point for the purpose of getting it determined. I at once acquit them of any desire to show discourtesy to Her Majesty's representative in this or any other colony. (Hear, hear.) I assume that they are actuated solely by the desire to have our form of procedure as correct, and as closely allied to constitutional usage and practice as it is possible to be. From that point of view I desire to offer some observations, inasmuch as it appears to me that by the wisdom of the course we now lay down for ourselves we may hope to create that influence which is so much to be desired, and to extend it throughout the colonies of Australasia, and I think we should not depart from those well-recognised modes of procedure and practice, and from those old landmarks of constitutionalism which have guided the deliberations of assemblies and Parliaments such as this for many years past. I consider, Mr. President, that if only on the ground of courtesy to Her Majesty's representative in this colony—for he is still Her Majesty's representative, notwithstanding the extended powers that are given to this Council—we should show our loyalty to the throne and person of Her Majesty, by recognising to the fullest possible extent the functions and position of her representative. I see no difference between the position occupied by the Governor in relation to this Council and that occupied by him in relation to the local legislature, excepting in the form of procedure. Although he does not initiate, on the advice of his responsible advisers, the measures to be submitted to the deliberations of the Council, he has still to exercise the functions of Her Majesty's representative in this colony. He has to give or to withhold the Royal assent to the measures we pass. He summons us together, opens our session, and closes it when our deliberations are concluded. In those respects he is in the most intimate relation with the Council—he represents Her Majesty in this Parliament. I use the word Parliament advisedly, because I think this Council is justly entitled to such an appellation; indeed the term may be more fitly applied to it than to any other local legislature at present constituted in the colonies. The fact that Her Majesty has given us the power to legislate over a wider area, and on matters which are not permitted to local legislatures, does certainly not detract from the position that Her Majesty's representative occupies in this colony, or in any other colony, where the session of the Council may be held.

Mr. Griffith: It rather exalts the position.

Mr. Dodds: Certainly it does. It has been said by writers on constitutional practice, such as Merivale, Lord Elgin, Sir William Fox, and others, that he is the only political link which connects the colonies with the. Mother Country. Shall we sever that link by departing from a well-recognised practice? Is it not desirable that we should, so far as we can, strengthen the relations which at present exist between these Colonies and the Mother Country? Do not the proceedings we adopted at the opening of the session tend to show that we cherish that feeling and desire that it should be maintained? Have page 34 we not informally agreed amongst ourselves that our session should be opened by Her Majesty's representative? Did we not also informally agree that we are Her Majesty's loyal and devoted servants, and at a subsequent period resolve by a formal resolution that an address to that effect should be transmitted to Her Majesty through Her Majesty's representative? If we consult authorities on this point there will be no difficulty in finding proof upon proof that this is the course that should be taken. I will mention one instance that must be pretty well known to hon. members—the address that was presented by the Commons of the Dominion of Canada on the occasion of the refusal of honours to Mr. Gait, in, I think, May, 1868. On that occasion the Commons House resolved that an address should be presented to Her Majesty, and the address was presented through the Governor-General of Canada. It may, I am aware, be argued that he is an integral portion of the Government; but such is the case here. The result of our deliberations as a Legislature cannot become law without the assent of Her Majesty, and that assent is communicated by Her Majesty's representative in the colony in which the session is held. It may be also said that these colonies are to a great extent emancipated from Imperial control; but on this point I will read what Todd says in his well-known work on "Parliamentary Government in the Colonies." That eminent authority writes, in reviewing the position and functions of a Governor:—

"Finally, inasmuch as all local Parliaments or provincial Legislatures in the Empire are, within their assigned jurisdiction, absolute and supreme, save only as respects the constitutional powers of the Crown, it follows that the Governor in every colony or province is, within the limits of his commission and delegation, entitled to be accredited with similar rights, privileges and responsibilities, to those which appertain to the Sovereign in the present state."

And the words which follow seem to me to be applicable to the present condition of things:—

"Moreover, the necessary and lawful functions of a Governor, who is the representative and personal embodiment of the monarchical principle in a British colony under Parliamentary Government, and who administers the authority of the Crown within the same, are neither diminished nor restrained by reason of the gradual emancipation of the colony from Imperial control in the management of its internal affairs."

Can it be argued tor a moment that, because Her Majesty has been pleased to confer upon us extended powers and extended jurisdiction, we should therefore detract or take away from the proper functions which the Governor of any colony exercises as Her Majesty's representative? An extension of power to us does not necessarily mean any detraction from the functions which are exercised by that official. It would be unwise on our part to set up such an argument. We have to look far beyond the mere local considerations of the moment We hope to make the influence of this Council felt not only in the participating but in the non-participating colonies, and to obtain that moral support so necessary to us as a Council, and our proceedings should be characterised by foresight, wisdom, and moderation to command the respect of those who are watching us so keenly. We do not exalt our dignity, extend our influence, or increase our power by departing from recognised forms of constitutional procedure and practice and initiating new ones; it is from that point of view that I would urge hon. members to accept the motion in the form proposed. I regret exceedingly not having had an opportunity of speaking generally on the question of federation on the occasion of our opening proceedings. By a slight misunderstanding I was deprived of that opportunity, and the limits of this discussion do not permit me to do so now. But I feel constrained to remark that I have no sympathy whatever with the views that are supposed to be held by my hon. colleague. I say supposed to be held, because I do not think the interpretation that has been put on his remarks is at all warranted. At all events it was not what was intended by him. I suppose that if any one were to say seriously to my colleague, Mr. Douglas, that the tone of his remarks meant separation from the Mother Country, he would be the first to repudiate such a notion. You, yourself, sir, are an illustration of how the utterances of a public man may be misunderstood on this very question. I think my colleague has been misunderstood in this matter. It is possible that those who contemplate the advancement and the resources of the Australian colonies and their past history, and consider the expressions of opinion of such men as Sir Hercules Robinson, who estimated that the future population of Australasia would be something like thirty millions at the end of the first half of the next century, that when Australia shall be a nation of itself, and the members of this Federal Council are Australian born—none of us can claim that honour now—may think that such a nation will desire to be independent, and cast off the Imperial control. But I do not think that the creating of this Council must of necessity bring about such a result I desire, and my colleague desires to bring into closer union the various colonies, and to enact wise legislation of general application that will be beneficial to the colonies. I do not desire separation, and I am not aware how it can be argued with any reason that, because we are desirous of uniting ourselves that that means separation from the Mother Country. We are strongly allied by the tics of kindred and interest, and it is the desire on our part to draw closer those tics that actuate us in proposing and carrying out such a movement as this. I believe in the catholic spirit that characterised the remarks of the hon. member for Queensland when he said that we are not representatives of single colonies, but are the representatives of a United Australia, and if we recognise our responsibility—our personal and collective responsibility to the federated colonies of Australasia—let that responsibility be ever present to our minds in carrying out the functions for which we are elected. There need be no cry of separation, and I should at once disclaim anything of the sort on behalf of the Premier, myself, or the people of this colony, who are as loyal and page 35 devote to the throne as ever they were before the question of federation was mooted. We enjoy as free a constitution as any given by a republic, and we do not desire separation from the grand old land from which we sprung. If such sentiments as these prevail in our councils, we shall hear little of the question of separation. My colleague intended to convey the idea that separation may come in the distant future, but it will not be brought about by force, nor against the wishes of the Imperial Throne. In reference to the resolution, I should just like to add that I trust in future in similar cases it will not be considered necessary to insert an instruction that it be sent through the Governor, but that it should be taken as a matter of course that any resolution to be transmitted to Her Majesty will be forwarded through the only recognised and proper channel, namely, the Governor of the colony in which the session is held.

Mr. Berry: Mr. President. With the leave of the Council I would like to make a few remarks in reply to the honourable and learned member who has just resumed his seat. The hon. member was quite right in saying, as he did at the commencement of his speech, that he acquits those members of the Council who differ from him as to the mode which the Council should adopt for communicating with the Secretary of State of any intention to be discourteous to the Governor of this colony. That goes without saying. I am sure that no intention of being discourteous to the Governor ever entered the mind of any hon. member. But I think it is very desirable that, in a matter of this land, when we are going to exercise for the first time important functions that are bestowed upon us by the Imperial Parliament, we should have a clear idea of our position, the objects which we have in view, and the best mode of attaining those objects. I would have no objection—not the slightest—to the form of the motion proposed by the hon, member for Queensland (Mr. Griffith), if it was recognised in the Act under which we are constituted, or by instructions from the Secretary of State, that the most convenient mode for the Council to approach Her Majesty is through the Governor of the colony in which the sittings of the Council are held for the time being; but honourable members will see that the functions of the Governor of the colony in which the Council holds its sittings are not wholly the same in regard to the Council as they are in relation to the local Legislature. Certain functions are conferred by the Enabling Act on the Governor of the colony in which the session of the Federal Council is held; and I take it that the Governor might, if he thought fit, decline to do anything outside the particular functions which are specified in the Act. Supposing that the Council agreed to the motion now under consideration, and asked the Governor to communicate to Her Majesty the Queen the resolution which we have already adopted, His Excellency—being under no obligation to carry out the wishes of the Council in any other matters than those specified in the Enabling Act—might decline to comply with our request. To have our request refused would hardly be a dignified position for this Council to be placed in; and therefore, I think, there are sufficient grounds why we should at least carefully consider the step which we are now asked to take, and realise what may possibly be the effect of it. I would point out that no other Legislature in this part of the world has had conferred upon it powers similar to those conferred upon the Federal Council by the 29th section of the Imperial Act. The Legislatures of the different colonies have power, by the respective Acts under which they are constituted, to make laws for their own people; but the 29th section of the Federal Enabling Act gives to the Federal Council the right and power to make representations to Her Majesty "with respect to any matters of general Australasian interest, or to the relations of Her Majesty's possessions in Australasia with the possessions of foreign powers." It is very desirable, as I am sure hon. members will admit, that there shall be some settled and recognised mode in which the Council, in the exercise of these functions, shall approach Her Majesty. I said yesterday, and I am prepared to repeat to-day that I think perhaps the most convenient course on the present occasion will be to adopt the motion of the hon. member for Queensland. It is important that we should communicate with the Secretary of State—it is important that we should have the information we seek as early as possible—and therefore I am disposed to think that, without regarding the question of procedure as absolutely and finally settled, the Council would do well to pass the motion now before it. That the adoption of the motion should preclude us, or our successors, from th future consideration of the question of the proper mode for the Council to approach Her Majesty would certainly not be desirable. It is, I believe, within the knowledge of the hon. member who has just spoken that a difference of opinion has arisen in high quarters with respect to the position which the Governor of this colony holds in relation to this Council. Surely that position will require to be more accurately defined before we can agree that the course proposed by the motion shall be permanently adopted. It will be within the knowledge of hon. members that there was a difference—a very marked difference—in the proceedings at the opening of this Council from what takes place at the commencement of a session in any of the local Legislatures, and I think I shall be borne out when I say that there was a strong disposition in certain quarters to keep within the four corners of the Enabling Act—not to assume any function, or any authority or power, that is not expressly laid down in that Act. I say that, if only in order that there may be no mistake as to it being obligatory on the Governor of the colony in which the session of the Federal Council is being held to carry out the wishes of the Council even in this direction, something more definite than we have at present is necessary. I refer to this matter now chiefly in order that it may be dealt with hereafter. I admit that the course now proposed appears to be convenient for the present occasion, and that it has all the advantages which the hon. and learned member for Tasmania (Mr. Dodds says that it has. It is the recognised mode, and the only mode, which the local Legislatures have of approaching Her Majesty. The obligation upon the Governor of a colony to comply with a request of the page 36 local Legislature to communicate with Her Majesty on their behalf is undoubted; but I scarcely think it can be said that it is equally undoubted that it is obligatory upon the Governor of the colony in which a session of the Federal Council for the time being is held that he should respond to a similar request made by the Council. From this point of view, therefore, it is desirable that the question of procedure should be carefully considered before it is definitely and finally determined. Under any circumstances I think that the functions of the Council embodied in the 29th section of the Enabling Act are so important, are fraught with so much of deep interest that the Council should be more concerned in having a mode which will bring that section into practical operation as speedily and effectively as possible than in following any of the prescribed forms for local Legislatures, or adopting any method of procedure that would be likely to cause delay in eliciting any information that we may be desirous of gaining. The object of this Council should be to perform its functions with the greatest promptitude and as effectively as possible. If we had a definite understanding that the representations of the Council would be promptly considered and responded to by our adopting the course now proposed, no member of the present or of any future Council, I take it, could have the slightest objection to the adoption of that course; but if there is any more effective way which can be taken—any way in which the Council can be brought as it were more en rapport with the power that could redress grievances, or could attend to the representations which we may make—I think that we would be justified in securing, if possible, that prompter and more effective method of communication. However, I do not press the matter now; but after the speech of the honourable and learned member who preceded me, and who seemed to assume that there cannot be two sides to this question, I have felt it desirable to point out that there are two sides to it.

Mr. Douglas: Not a bit of it.

Mr. Berry: There must be two sides to the question when there is a difference of opinion upon it. There may be said to be two objections to the course now proposed being permanently adopted as the mode in which the Federal Council should communicate with Her Majesty the Queen. One, perhaps, is formal, and the other is practical. The formal objection is that the function of being the medium of communication has not, by the Enabling Act, devolved upon the Governor of the colony in which the session of the Council is held. That may be regarded as merely formal, because it could be overcome by instructions from the Secretary of State making it obligatory upon the Governor, instead of it being left optional, to communicate with the Secretary of State when requested to do so by the Council. The other objection, which is the practical objection, to the permanent adoption of the course now proposed is, that the Council has the right, in the interests of its constituents, to secure the most effective and prompt mode of having its representations forwarded to the proper quarter and replied to. I rose simply to indicate the views that I entertain on this question, and which I know are held by some other members of the Council, and not to offer any opposition to the motion now before us, which I think proposes the proper course, and the only course, that we ought to take on this occasion.

Mr. Douglas: I scarcely can understand the reason why the hon. member for Victoria has on this occasion made such a speech, because he had made it more clear just now that the Governor is the only medium of communication between this Council and Her Majesty the Queen. It is very evident that His Excellency the Governor is the beginning and end of this Council, because he called it together and he has to prorogue it. Why the Governor should not be the means of communication between the Council and Her Majesty during the progress of this session I cannot understand, and the matter can only be brought into question when the Governor takes upon himself to refuse to send a message. The words of the 29th section are "The Council may make such representations or recommendations to Her Majesty as it may think fit with respect to any matters of general Australasian interest, or to the relations of Her Majesty's possessions in Australasia with the possessions of other Powers." I take it that this Council is just in the same position as any local Legislature, and that all matters must be remitted to Her Majesty through the recognised authority, and I am of opinion that if the advice of the Secretary of State was taken upon the point, he would decide that the ordinary procedure should be adopted. The Question was easy enough of solution, because if: a Governor does not send a message it will be quite time enough to take this matter into consideration, and look to approaching Her Majesty in some other way. I think the hon. member is quite right to accept this resolution that the messages be sent through Her Majesty's recognised representative, and in my opinion it would be one of the most extraordinary proceedings I ever heard of if it were proposed otherwise, and while my views have been very well commented on, this would be the beginning of the end of federation, and would be treating Her Majesty's representative with a great amount of discourtesy. As regards anything like a proceeding of separation from the Mother Country, it was far distant from my thoughts, and I fear it would first emanate from some representative from the other side. They have been in a revolutionary state at times, which this colony has never been—(laughter)—and I have always been, and always will be, a loyal subject-When I made the statement I did, I was looking at the far distant future, and I have no hesitation in saying that it is not alone my own opinions that I was expressing. The opinion has been expressed over and over again.

The President: I hope the hon. gentleman will confine himself to the terms of the motion. We now seem to be going a little beyond it.

Mr. Douglas: I am dealing with the question of loyalty and endeavouring to show that it would be unloyal to ignore Her Majesty's representative, but I also desire to say there is no man in Her Majesty's page 37 dominions who is more loyal than myself. It is strange that such an idea should have got hold of the public mind, that I, in any shape or form was disloyal as a British subject. I will say no more on this subject, beyond this fact, that I cannot conceive for one moment how anything can go from this Council to Her Majesty except through Her Majesty's representative. When the time comes that any Governor thinks he is justified in refusing, it will be time to make representations to Her Majesty. (Hoar, hear.)

Dr. Macgregor: The matter that has occupied the attention of the Council appears to me to be a very simple one, and I would not say a word at all on the question were it not that expressions have been used by one or two gentlemen to show that there is a difference of opinion on this question among the members of the Council. My own opinion is so clear on the point, that I should not like to allow the occasion to pass without making a short statement. I look on the Governor of a colony, no matter what the colony is, as the representative of the Crown, and it appears to be thoroughly established by long practice and custom that all official communications, no matter whence emanating, if meant for the Crown, should proceed direct to the Governor of the colony. The reasons, as far as I have been able to gather, that have been raised to justify a departure from the ordinary method, are that the dignity of this Council require it, and that there is no obligation on His Excellency the Governor to act for this Council in presenting to Her Majesty any address or petition emanating from the Council. It has also been suggested that the despatch of business might be facilitated by the President of the Council having direct communication with the Secretary of State. So far as the dignity of the Council is concerned, it appears to me it will better consult its own dignity by setting an example in obeying the laws of the country in which it may happen to be, whether it is the law of legislative enactment or common usage, and although this Council has powers conferred upon it which, in some respects, are very much greater than the powers of any local legislature, I consider that the Council will best consult its own dignity by taking the usual course in regard to the subject under discussion. The question of obligation is not one for us, it will be a matter entirely for the Governor himself to decide upon. Should he say that it is not compatible with his instructions or position to act for the Council in that capacity, the course of the Council will be clear, and no further question or difference of opinion could arise on the subject. The suggestion as to the prompter despatch of business by direct communication, is not quite so clear. I am inclined to think that in many instances it would be necessary for the Council to make application to the Governor of the colony where the session might be held for papers or state documents required, that could only be obtained through the Governor, and it would therefore appear that communications of this nature must be made to him. Very little time, so far as I can see, would be lost in making communications through the Governor to the Secretary of State, and any gain that would be secured by communicating direct with the Secretary of State would be more than counterbalanced were the Council not to procure from the Governor state and official papers it will constantly require. I am quite unable to express any sympathy with the opinion that the President of the Council should communicate with Her Majesty otherwise than through the Governor of the colony in which the Council may happen to be sitting.

Mr. Griffith: As mover of the motion I should like to reply upon the question of practice that has been raised. For my own part, I entertain no doubt that the only proper mode of addressing Her Majesty is through the Governor of the colony in which the Council may happen to be sitting, whether the address is in terms addressed to Her Majesty or to him; That we have the right to address Her Majesty directly there can be no doubt, under the 29th section of the Act under which we have met, by which we are expressly empowered to make representations to Her Majesty. But it would be in the form of an address to herself, transmitted through the Governor. With respect to other matters upon which it may be necessary to address the Crown, as to matters of information which the Governor has in his possession, and which the Crown only can constitutionally give, I think the Governor of the colony should be personally addressed. Some hon. members have used the argument that we are confined within the four corners of the Act under which we meet. It is within the four corners of the Act that I find it clearly laid down, reading the Act by the light of constitutional practice, that we should communicate with Her Majesty through the Governor. A distinction has been taken between the Federal Council and other legislatures, and it has been urged that as the Governor of the colony in which we meet is not the Governor of all the colonies represented here, the constitutional rules do not apply. But there is nothing in the written constitutions of the various colonies requiring a written communication to be made to Her Majesty through the Governor. All that the written constitution says is that there shall be a legislature for each colony, and that Her Majesty, with the consent of those Legislatures, shall have power to make laws, and that there shall be a Governor, who shall be Her Majesty's representative, and who shall convene, prorogue, and dissolve Parliament. That is the whole of the written constitution. As to his making a speech at the opening of Parliament, or sending messages to the House, or the transmitting of messages to the Crown, there is nothing at all. So the Act under which we are met declares that the Crown, with the consent of this Council, may make laws, and that the Crown's representative in the colony where we meet shall be the person who convenes and prorogues the Council, and whose duty it shall be to assent in Her Majesty's name to any laws made. That covers the whole ground to be found in any written constitution of the colonies. The only difference is that this Council consists of one House instead of two. However, so does the present Legislature of Western Australia, and so at one time did the Legislatures of New South page 38 Wales, Victoria, and Tasmania; but the same constitutional rule applied to them. Reading this Act by the light of recognised constitutional practice, it seems to me that the analogy is manifest, that it is the duty of the Governor of the colony in which the Federal Council is sitting, to perform certain functions, viz., to represent Her Majesty in convening and proroguing the Council, to declare the causes of its being summoned, to be the means of communication between it and the Crown, and to assent, in Her Majesty's name, to the Acts passed by the Council; in fact, to perform the same duties which devolve upon the Governor of any colony with respect to its Parliament. It is not necessary to speculate what the result would be if the Governor of any colony should refuse to perform these duties. I cannot think any Governor would refuse to perform duties which a little reflection must show naturally devolve upon him. I thought it necessary to say these few words, as this question of practice and procedure will probably be settled by what we may say or do during the present session of the Council, unless we make any manifest error, which, I trust, we shall not do.

Mr. Lee Steere: I must also take the opportunity of addressing a few words to the Council upon this subject, as I find that what I said yesterday has been wrongly reported in this morning's paper. I stated yesterday that I thought the President should be the means of communication between this Council and the Secretary of State at Home, and I have since heard nothing which would in any way induce me to alter my opinion. I consider that the President of the Federal Council occupies a different position to the Presidents or Speakers of other Legislatures. In all other Councils or Assemblies the President or Speaker is either appointed by the Governor, or elected by the Legislature itself, and his name submitted for the approval of the Governor as the representative of Her Majesty. In our Council nothing of the kind occurs. The President is appointed by the members without any reference to the approval of the Governor, and that is where I think the President of our Council occupies a different position and one that is more independent than the presidents of other councils. Neither can I see that there is any analogy between the position of the President of this Council, and the position of the Governor-General of Canada, the illustration which was given yesterday by Mr. Griffith, the hon. member for Queensland, because the Governor-General of Canada occupies a greater integral portion of the Government of Canada than the Governor of this colony does with respect to the Federal Council. Upon looking at the whole of the circumstances of the question I agree with the suggestion made by the hon. member for Victoria, Mr. Berry, that on this occasion we should adopt the motion proposed by the hon. member for Tasmania, Mr. Dodds. So far as I am concerned, it should not be taken as a consent on my part, or as an expression of consent, to that being the form of procedure which may continue to be followed, if some other manner should in the future be considered expedient.

The resolution was then put by the President, and agreed to.