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The Pamphlet Collection of Sir Robert Stout: Volume 58

Federation enabling Act: a speech ... in the Legislative Assembly, New South Wales, September 10th, 1885

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Federation Enabling Act.

W. E. Smith, Printer, Sydney 28 & 30 Bridge Street 1885.

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My excuse for publishing this short speech is the hope I have that its perusal may induce a careful examination of the Federal Enabling Act before its adoption.

R. B. Wilkinson.

Sydney, 24th September, 1885,
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The Federation Enabling Act.



Sir,—I am very glad to see that the Government are giving lion, members an opportunity of expressing their views on the Federation Enabling Act, for in my opinion the prospects of not only Australasian but Imperial federation depend in no small degree on the course the colonies may adopt in regard to this Act. I will not now go into the question of the authority of the Convention to deal with so important a matter, and I do not intend to occupy the time of the House by discussing the various clauses of the Act, neither will I dwell on the proportionate representation of the colonies, or go into the question as to whether that representation should be on a population basis, or on the basis provided by the Act; but I would remind those who bring forward the Senate of the United States as a precedent, that that Senate is only one branch of a Legislature, and it has to work with the House of Representatives, which, as we all know, is elected on a population basis. The same may be said of the Senate of the Dominion of Canada, and of other Federal States. I would also draw the attention of hon. members to the constitution of the Council as provided in clause 5, which reads as follows :—

Each colony shall be represented in the Council by two members, except in the case of Crown colonies, which shall be represented by one member each. Her Majesty, at the request of the Legislatures of the colonies, may by order in council from time to time increase the number of representatives for each colony.

Thus, Tasmania, with its area of 26,375 square miles and population of 130,541, has as much voice in the Council as Victoria, with an area of 87,884 square miles and population of a million, or New South Wales, with her area of 309,175 square miles, and population also of about a million. Then clause 13 provides that a majority of members shall form a quorum; and as the total number of representatives will be fourteen, the quorum will be eight; and as five is the majority of eight, it follows that it is possible that Fiji, Tasmania, and South Australia may enact laws to bind all Australasia. But perhaps these difficulties might be overcome if the powers of the Council were strictly limited and defined, or, in other words, if the Act carried out what I take to have been the intention of the Convention. In trying to arrive at what this intention was, it is to be regretted that the press was not allowed to be present and report its proceedings, and in the absence of those reports we can only judge of the intention of the Convention by the resolutions it arrived at, and by the speeches of the various Premiers in submitting those resolutions to their Parliaments.

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On referring to the report of the proceedings of the Convention, we find that on 3rd December a committee was appointed "to consider and report upon the best mode of constituting a Federal Australasian Council, and the definition of its functions and authority."On the following day we find that "Mr. Dalley, as chairman of the committee appointed to prepare resolutions to form a basis constituting a Federal Council of Australasia, brought up the report of such committee, which was ordered to be printed and circulated."Up to this point we hear of "resolutions"only, but the next day we find that "the Convention proceeded to consider the report of the committee to which was referred the preparing of resolutions to form a basis for constituting a Federal Council of Australasia"; then "the question that the report be received' was adopted, and, on the motion of Mr. Dalley, the Convention resolved itself into a committee of the whole for the purpose of considering the Bill prepared by the committee."This is the first we heard of a "Bill."On the 6th this Bill was further considered, and on the 7th—that is, in four days from its inception,—after amendment, it was adopted, and on the motion of Mr. Griffith the following resolution was agreed to :—

That this Convention, recognising that the time has not yet arrived at which a complete federal union of the Australasian colonies can be attained; but, considering that there are many matters of general interest with respect to which united action would be advantageous, adopts the accompanying draft bill for the constitution of a Federal Council, as defining the matters upon which in its opinion such united action is both desirable and practicable at the present time, and as embodying the provisions best adapted to secure that object, so far as it is now capable of attainment.

I want hon. members to particularly note the wording of this resolution, because I shall presently invite their attention to the manner in which the Act carries out this defining process; but meanwhile we will see what light the Premiers throw on the subject. Mr. Service, in his speech introducing the resolutions to his Parliament, quoted the following from Sir Henry Parkes' memorandum of 1881. Sir Henry Parkes said:—

That an organisation which would lead men to think in the direction of federation and accustom the public mind to federal ideas would be the best preparation for the foundation of federal government. The bill has been prepared to carry out the idea of a mixed body, partly legislative and partly administrative, as the forerunner of a more matured system of federal government. Care has been taken throughout to give effective power to the proposed council within prescribed limits, without impairing the authority of the colonics represented in that body.

No attempt has been made to constitute the proposed council on any historical model, but the object has been to meet the circumstances of the present Australian situation, and to pave the way for a complete federal organisation hereafter.

Of this, Mr. Service said:—

More suitable language could not be employed at the present moment. Our desire is that we should unite on those subjects on which we can unite, and on which it is most desirable that we should unite, and leave it to time—and that time, I venture to predict, will speedily come—for these colonies to seek for an extension of the powers sought to be conferred upon them by the lines of this bill.

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In another part of his speech, Mr. Service said:—

I will add that it is not intended or expected that the Imperial Government will ask the Imperial Parliament to enact the bill exactly in the shape in which it will be sent to them for their consideration . . . . . . . Unless the various colonies indicate in some degree their wishes, the Imperial Government will not know on what lines we want to go.

And further on he said:—

Some people may say—it has been said in other places, if not here—that the bill does not go far enough, and that no such measure could go far enough, unless it embraced other subjects, such as that of an Australasian tariff . . . . . Under the existing Imperial law, any two colonies have power to enter into a compact on fiscal matters if they think proper; but for us under the present circumstances to have introduced this question of tariff at the Convention, or to have proposed it in connection with the Federal Council Bill, would have been the very height of absurdity.

Mr. Woods: It would have capsized the whole lot.

Mr. Service: Yes; we made up our minds before the Convention met that the question of common tariff was a question that must be religiously tabooed, and it was tabooed; it was not mentioned by a single member of the Convention.

Major Smith: What is to prevent two colonies from assimilating their tariffs?

Mr. Service: Nothing at all. They could do so tomorrow under the existing Imperial statute; and now we are going for another Imperial statute to enable us to do other things.

Mr. Griffith, Premier of Queensland, in discussing the matter, said:—

The resolution by which this bill was adopted indicated exactly the scope of the action which the members of the Convention thought was needed.

And after reading the resolution, which I have already read, goes on to say :—

That resolution exactly expresses the position which I think the colonies may adopt at the present time.

And he also said :—

The whole scheme is tentative.

Mr. Dalley and Mr. Dibbs, as hon. members will recollect, spoke to the same effect. Now, what could the House gather from the resolutions of the Convention, and from the explanations of the Premiers, but that the intention of the Convention was to establish a Council, whose powers should be most strictly limited to certain matters, and, as Mr. Griffith said, of an entirely tentative nature? And, to use Mr. Kerferd's words:—

The proposals of the Convention were only put in the form of a bill because that was the form in which what was proposed could be most conveniently conveyed. The draft bill was not a bill in any other sense of the word, therefore all the House would be asked to commit itself to would be the leading features embodied in the bill.

If we examine clause 15, which is supposed to define the powers of the Council, we shall see how this intention is carried out. That clause says:—
Saving Her Majesty's prerogative, and subject to the provisions herein contained with respect to the operation of this Act, the council shall have legislative authority in respect to the several matters following:—
(a)The relations of Australasia with the Islands of the Pacific.
(b)Prevention of the influx of criminals.page 6
(c)Fisheries in Australasian waters beyond territorial limits.
(d)The service of civil process of the courts of any colony within Her Majesty's possessions in Australasia out of the jurisdiction of the colony in which it is issued.
(e)The enforcement of judgments of courts of law of any colony beyond the limits of the colony.
(f)The enforcement of criminal process beyond the limits of the colony in which it is issued, and the extradition of offenders (including deserters of wives and children and deserters from the Imperial or Colonial Naval or Military Forces).
(g)The custody of offenders on board ships belonging to Her Majesty's Colonial Governments beyond territorial limits.
(h)Any matter which, at the request of the legislatures of the colonies, Her Majesty by order in council shall think fit to refer to the council.
So far, it is definite, and we know what we are doing, and this may be called the basis of the federation. We will now go on to the subsection (i) which reads as follows:—

Such of the following matters as may be referred to the Council by the Legislature of any two or more colonies, that is to say : General defences, quarantine, patents of invention and discovery, copyright, bills of exchange and promissory notes, uniformity of weights and measures, recognition in other colonies of any marriage or divorce duly solemnized or decreed in any colony, naturalisation of aliens, status of corporations and joint-stock companies in other colonies than that in which they have been constituted.

I think it will be agreed that most of these are also legitimate subjects for federal action; but what shall we say of this ?—

And any other matter of general Australasian interest, with respect to which the Legislatures of the several colonies can legislate within their own limits, and as to which it is deemed desirable that there should be a law of general application.

And this is what is called defining and limiting the powers of the Council. I would ask hon. members whether and words can have a wider or more unlimited scope ? Why, it embraces even the question of tariffs, which Mr. Service says was altogether tabooed at the Convention, a subject not to be mentioned, and Mr. Griffith says does not come within the scope of the Act. But, I would ask, is it not a question of Australasian interest ? Then, what is to prevent any two or more colonies bringing it before the Council, and having the policy of the majority present at the time made the Act of the Federal Council on the subject. Under this clause there is no limit to the powers of this Council of 14. Of course, there is the proviso giving the option of adoption, but I look on this as a delusion and a snare, for in many cases there would be no option whatever. The absurdity is that the Convention unanimously resolved that the time had not arrived for a complete federal union, but this sub-section puts it in the power of a majority of the Council to say when that time has arrived in relation to any subject. Would the people's representatives have agreed to this if they had been consulted ? According to this sub-section, the scope and constitution of the Council can be altered at the pleasure of any two or more colonies who happen at the time to have a majority in the Council. We might as well give a majority of the members of the Legislative Council, on the motion of any two of them, permission to give themselves power to deal with page 7 money bills. In this Council the majority at the time passes an Act which, we will say, suits and is adopted by some of the colonies. It is then the Act of the Federal Council on that subject, and the colonies which that Act does not suit must stand out until they can muster a majority to repeal or amend that Act to suit themselves, for there cannot be two Acts of general application on the same subject; and when we consider the prestige which will attach to an Act of the Federal Council, we will realise the competition there will be amongst the colonies to have their particular policies at the time made Acts of Federal Council. After a time we shall find ourselves in this position—that some of the colonies will be members of the confederation on some subjects, others on other subjects, each group having an Act of Federal Council to suit itself, and all being bound for all time on other subjects, their own Legislatures having no power in the matter, whether they remain in the confederation or not. In time, a colony would find itself entangled in such a network of unlooked-for Federal Acts adopted by the other colonies, and many of them having a direct or indirect effect on its own federal and local legislation, that to get out of the difficulty and to save its own autonomy, it would be forced to retire from the federation. But, even in retiring, it is still bound for ever by the Acts of the Federal Council to which it had been a party, its own Legislature being utterly powerless either to amend or repeal those Acts, or touch them in any way. I ask hon. members whether any British colony would remain long in such a position, even if it had to fight its way out of it. Again, clause 29 gives the majority power to make representations to Her Majesty on any subject, no matter what. Of course, the dissenting colonies can make their counter representations, but what force will they have against the representations of the Federal Council ? We have had an instance of this lately, when, even with all our Soudan prestige, we have been snubbed for asking such amendments in the recommendation of a Convention as would save us from being obliged to stand out of the federation. Do we not see what a field this opens out for over-reaching and scheming for majorities in the Council, and what a chance for the display of ambassadorial talents which have lately had no opportunity for action ? What confidence can any colony have in adopting such an act as this, which may begin in federation, but leads, God knows where ? Sir, I cannot understand any body of men who have read the Act being so utterly lost to the solemn trust reposed in them as to sacrifice their constituents' birthright for such a mess of pottage as this.

If we look for examples, where shall we find one like this "cunning'st pattern"of a Legislature. I know of none. All the federal bodies of the world have their two Chambers, one of which is in all cases elected on a population basis. All have their powers most sharply defined, and in none can those powers be enlarged without the consent of all the contracting States. But this Act hands over everything, not excepting its own constitution, to a majority of its members, who can introduce what subjects they like, and legislate on them as they like. The other colonies can dissent or retire if they page 8 like, but they will retire hampered for all time with all the previous Acts of the Council, and they cannot free themselves. After the requests for amendment from New South Wales and New Zealand, the British Government has done a great wrong in forcing this new constitution upon us, and the want of interest displayed by the British Parliament in its discussion reminds one of the passing of the American Stamp Duties Act. God send that will be its only point of resemblance ! Mr. Forster congratulated the colonies on its passing. I wonder whether Mr. Forster would congratulate England if such an Act had been passed for Imperial Federation ? Of course, no colony is compelled to adopt this Act; but what will be the position of a colony standing out ? The Federal Council, as having been established by Act of the Imperial Parliament, will be looked on in England as the only legalised medium of joint action on the part of the colonies, and the colony standing out will be regarded as representing its own individual interests in opposition to those of Australasia generally; and it will be difficult for those at a distance to judge of the merits of the case, even if they care to inquire into them. And, as I have already pointed out, if the representations of New South Wales and New Zealand have been ignored when supposed to be opposed to the wish of a mere Convention, what can be looked for when opposed to Acts of Federal Council ? I will give place to no man in my desire to further federation, but this Act will kill federation; for, instead of promoting unity, it produces disintegration; instead of confidence, distrust. In a tentative measure such as this, the powers of the Council should be most strictly limited and defined, and should not be enlarged without the consent of all the contracting parties. As the Council gains experience and begins to realise federation and understand the real federal interests of Australasia, and by its actions gains the confidence of the colonies, its scope may be enlarged, but not without the consent of all the parties to the contract. I am quite aware that under these circumstances any one colony could prevent legislation on any matters other than those specified, but it is not likely that any one colony could standout for long against what was evidently for the good of all; but even if it did, it would be better than that the injustice should be done of the Council exercising powers which were not contemplated at the time that colony entered the federation. For it must always be borne in mind that to make federation a success it must grow up on the confidence of all the colonies. Besides, if one colony prevented any matter being brought before the Council, the other colonies could come to an agreement outside the Council on that subject; and if it proved to be for the good of Australasia, public opinion would force the other colony to join, and then the stamp of the Federal Council could be given to it. My idea is to let federation begin within safe limits, and afterwards grow up on the confidence of all the colonies; but under this Act it is difficult to say which is worse off—the colony which joins the federation, those which stand out, or those which, having once joined, have retired from the federation. Our Government has been accused of disloyalty to federation. I say page 9 it has acted with the truest loyalty; for, when it found that the Bill which took four days from its conception to its birth, when it found that this Bill, instead of limiting and defining the scope of the Council, gave that Council the widest and most unlimited powers, and when it found, besides, that without amendments this colony could never join; I say that, when the Government found all this, it would have been guilty of the grossest disloyalty to the cause of federation if it had taken any other course than the one it so tardily took. The Government is to be commended for its action—what it is to be condemned for is its inaction. It seems to me most unaccountable that any Government could have remained so long inactive under such circumstances. But if our Government is to be condemned for its inaction, what is to be said of those Governments who are forcing on this calamity, and those Parliaments who are willing to sacrifice all their rights and privileges, and prostrate themselves bound at the feet of this pretence, this shadow, this burlesque of federation ? It is said that the opposition of this colony arises from jealousy of Victoria. I have no such feeling. I spent ten years of my life in that colony, and another fifteen years amongst my constituents of Balranald, whose business relations were, till lately, nearly all with Victoria; some of my oldest and dearest friends are Victorians, and it is because I respect Victoria that, had I the chance, I would implore her to pause and consider well before she makes this fearful, this irreparable sacrifice; and for what ?—to grasp at a shadow and lose the substance. I am most assuredly convinced that the prosperity of these colonies, and particularly of my district, is bound up in federation, and it is because I hold this conviction so strongly that I now raise my voice in protest against this Act, which must retard, if it does not altogether kill, federation.

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W. E. Smith, General Printer, 28 and 30 Bridge Street.