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SIR,

No. 243.

(AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

Royal Courts of Justice,

December 21, 1899. We were honoured with your commands, signified in Mr. H. Bertram Cox's letter of the 10th ultimo, stating that he was directed by you to invite our attention to the Bill for the Federation of Australia which had recently been adopted by the Colonies of New South Wales, Victoria, South Australia, Queensland, and Tasmania.

That you desired Mr. Bertram Cox to lay before us a statement (1) of the negotiations between the Colonies which led up to the adoption of the Bill, and (2) of the views entertained of the measure at its different stages by you and of your present attitude with regard to legislation by Parliament.

That the present Bill originated in a Conference of the Prime Ministers of all the six Australian Colonies held at Hobart, in January, 1895. That they agreed upon the procedure to be adopted for approaching Federation, and adopted a draft Federal Enabling Bill to provide for the election by each Colony of ten delegates, who were to be charged with the preparation of a detailed scheme of Federation. That the Bill was subsequently adopted with slight variations by the l'arliaments of New South Wales, Victoria, South Australia, and Tasmania, and in a modified form by Western Australia.

That delegates were duly elected and assembled in Convention at Adelaide in March, 1897, for the purpose of drafting a Constitution Bill. That they prepared the draft Bill marked (B.) and adjourned in April, with the intention of re-assembling at Sydney later in the year, after the draft Bill had been considered by the Parliaments of the Colonies concerned as provided by the several Enabling Acts. That the draft was accordingly submitted to the local Legislatures, and various amendments were suggested by those bodies.

That the draft Bill, with the suggested amendments, was further considered by the delegates at the Sydney Session in September, 1897, and a long discussion took place on various proposals submitted for settling questions of difference between the two Houses of the Federal Legislature to be created. That considerable progress was made with the re-consideration of the rest of the measure, but that the work of revision was not completed and the Convention adjourne 1, partly in the hope of meeting delegates from Queensland at the final discussion. That that hope was not realised, as the Queensland Legislature, for the second time, shelved the Enabling Bill.

That the delegates re-assembled at Melbourne in January, 1898, and, remaining in Session till March, completed their revision of the measure. That the Bill thus adopted- B (2)—was, in accordance with the Federation Enabling Acts, submitted to the popular vote in four Colonies for acceptance or rejection. That it was accepted by the vote of the people in Victoria, South Australia, and Tasmania. But that in New South Wales, though there was a majority for acceptance, the minimum number of votes required by the Enabling Acts of that Colony was not obtained. That in Western Australia no vote was taken in view of the result of the poll in New South Wales.

That a further conference of the Prime Ministers of the six Australian Colonies was held at Melbourne, in January and February of the present year, to consider the objections of New South Wales. That an agreement was come to after a few days' discussion and signed by all the Prime Ministers' on the 3rd of February. That it was arranged at the Conference that after the Commonwealth Bill, as amended, had passed through the Parliament of New South Wales, it should be referred to the electors of that Colony, and, if accepted by them, should then be considered in the other Colonies. That South Australia, however, for purposes of local convenience, was to be at liberty to take the referendum upon the Bill on the occasion of the General Election, without waiting for New South Wales.

That in South Australia accordingly an Act to amend the Federal Enabling Act of 1895 was passed in March last, and that the vote was taken on the 29th April, resulting in a large majority for the amended Commonwealth Bill.

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That in New South Wales, after a conflict between the two Houses of the Legislature, which was ended by the addition of 12 new members to the Upper House, the amended Federal Enabling Act was passed in April without alteration of the arrangements agreed upon by the Premiers except the additional provision that eight weeks should elapse before the referendum was taken. That on the 20th June the amended Commonwealth Bill was submitted to the popular vote and accepted by a large majority.

That in the course of the summer Victoria and Tasmania passed Acts amending the Enabling Acts of 1896, and the Commonwealth Bill was accepted by over- whelming majorities of the electors. That in Queensland, where no legislative action had previously been completed, an Enabling Act was passed in June, and, on the referendum being taken, the amended Commonwealth Bill was accepted by a majority of the electors.

That in Western Australia the matter was under the consideration of the Legislature, the Western Australia Enabling Act of 1896 having provided that the Commonwealth Billas finally adopted by the delegates—should be approved by Parliament before submission to the electors.

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That Addresses to Her Majesty praying that the Commonwealth Bill might be passed into law by the Imperial Parliament had been received from Victoria, South Australia, and New South Wales (in the first case a joint Address from both Houses, and in the latter cases separate Addresses from cach House), and had been laid before the Queen.

That the above being the history of the measure in Australia, Mr. H. Bertram Cox's was to state the criticisms passed upon the Bill by you in consultation with your advisers and brought to the notice of the Colonies in 1897, and the views which you now entertained with regard to the amended Bill.

That when the Adelaide draft was examined in the Colonial Office it appeared that there were many points upon which amendment was desirable and other points which suggested criticism. That Memoranda Parliamentary Counsel in consultation with your department showing (1) the amend- were accordingly prepared by the ments suggested, (2) notes on the amendments and (3) criticisms on the Bill of a general character. That of those Memoranda (1) and (2) dealt with points that might be held to affect the Royal Prerogative, the rights of the Imperial Parliament, or the unity and interests of the Empire, whilst (3) contained suggestions for repairing omissions, improving the machinery of the Constitution, &c. That the Memoranda were communi- cated privately to Mr. Reid, then I'rime Minister of New South Wales, in 1897, as there was reason to believe that the amendments desired would have a better chance of being accepted if they appeared to proceed spontaneously from a prominent member of the Convention than if they were put forward officially.

That the extent to which those criticisms had been met would be shown most conveniently by a copy of the Adelaide draft altered to show the changes made subsequently (see document marked K, in which the amendments made at the Sydney and Melbourne Sessions of the Convention are shown in black ink or printed slips. The latter amend- ments, made at the Premiers' Conference in January and February last, and embodied in the Bill as submitted for enactment by the Imperial Parliament, are shown in red ink),* together with a Memorandum prepared in the Colonial Office examining the clauses of the final Bill in order.

in

That the last Memorandum embodied your views, and that you desired to submit the matter for our report, as to whether the provisions of the draft Bill (marked M.) was proper form for enactment by Parliament as a schedule to a short covering Bill of one or two clauses (following the precedent of the New South Wales Constitution Act of 1855 (18 and 19 Victoria, cap, 4), and whether any, and, if so, what alterations in it were required before its submission to Parliament.

That Mr. Cox was to add that it was highly desirable that there should be the least possible alteration in a measure which had been so exhaustively discussed in Australia, and the agreement upon which, as embodied in the draft Bill, had been arrived at only after prolonged and difficult negotiations. That if any amendment of a serious

character was deemed necessary, it was important to decide upon it at an early date in order that the Colonies might be consulted at once so as to avoid any delay in the

• In chapter IV. (Finance and Trade) the changes were too great to allow of their being shown in this manner.

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submission of the measure to Parliament at the first opportunity, in accordance with the pledge already given on behalf of Her Majesty's Government.

We were further honoured with Mr. H. Bertram Cox's letter of the 21st November, transmitting to us copies of Addresses to Her Majesty the Queen, received from the Legislative Council and House of Assembly of Tasmania, praying that the draft measure might be introduced into Parliament, and that it might be passed into law.

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We were honoured with Mr. H. Bertram Cox's letter of the 25th ultimo, enclosing copy of a Memorandum by the Parliamentary Counsel on the Bill, and stating that would be glad to be favoured with any observations which might occur to us upon that Memorandum, especially with reference to the question raised by Sir Courtenay Ilbert as to the extent to which laws passed by the Federal Legislature under clause 51 of the Bill would have extra-territorial operation. Mr. Cox added that the provisions of clause V. as to operation of Australian legislation on British ships had been referred for the consideration of the Board of Trade.

We have to acknowledge the receipt of Mr. Bertram Cox's letter of the 28th ultimo, forwarding a copy of an Address to Her Majesty from the Legislative Council and Legislative Assembly of Queensland, praying that steps might be taken for the establish- ment of an Australian Commonwealth.

We have the honour to acknowledge the receipt of Mr. Bertram Cox's letter of the 11th instant, enclosing copy of a telegram from the Governor of Western Australia reporting that the proposal to refer the Bill to the people of the Colony had been rejected by a resolution of the Legislative Council.

We have also the honour to acknowledge the receipt of Mr. Bertram Cox's further letter of the 16th instant transmitting to us copy of a despatch from the Officer Administering the Government of Queensland, offering his observations on certain provisions of the draft Bill, together with a paraphrase of the telegram which addressed to Sir S. W. Griffith in reply.

you had Mr. Cox stated that it would be observed that you had enquired confidentially through Sir S. W. Griffith whether delegates were to be appointed by the Colonies concerned to assist in the consideration of the measure, and whether they would be authorised to assent, on behalf of the Colonies, to alterations in the draft Bill should it be found necessary to make any, and, if not, in what other way the concurrence of the Colonies could be obtained.

Mr. Cox added that you anticipated that Sir S. W. Griffith's reply would be to the effect that there was no power to alter any part of the draft Bill; and that in such case you presumed that any modification of its provisions that might be necessary, on Imperial grounds or otherwise, would have to be embodied, after consulting the Colonies, in the Imperial covering Bill.

We have taken the papers into our consideration, and, in obedience to your commands, have the honour to

Report-

That the following are the suggestions that we have to make with regard to the Commonwealth of Australia Constitution Bill. We are, of course, aware that questions

of policy may render it inexpedient to press amendments at this stage, but we have not considered such questions except in so far as they are involved in the points as to which we think amendments desirable.

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1. We suggest that section 2 of the Bill should be omitted. It is at once unnecessary and unusual.

2. We think that the latter part of section 5 of the Bill should be left out. great inconvenience

Verv arise from a conflict of laws under this provision as it stands. may We suggest that sections 735 and 736 of the Merchant Shipping Act, 1894, should apply to the Commonwealth of Australia as to all other British possessions.

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3. We think it doubtful whether the Parliament of the Commonwealth of Australia would be held to be subject to the Colonial Laws very fairly be contended that having regard to the definition of “Colony

Validity Act, 1865. It might section VI. of the Bill, it was intended by the enactment of this Bill to emancipate the Parliament of the Commonwealth from the provisions of the Colonial Laws Validity Act, and from the Common Law doctrine that Acts of the Imperial Parlia- ment are paramount. The definition in section 18 (2) of the Interpretation Act, 1889, would be excluded by the terms of the Bill, and notwithstanding the wide terms in which the Colonial Laws Validity Act defines “Colony” and “ Legislature,”