The next phase in the movement originated in Victoria upon the

initiative of Mr. (now Sir Charles) Gavan Duffy, who, in 1857, induced

the Legislative Assembly to appoint a committee to consider the

advisability of federal union. Upon their recommendation that an

inter-provincial conference should be held, communications were

addressed to New South Wales, South Australia, and Tasmania, which,

though separated from the mainland of Australia, has always identified

itself closely with Australian affairs. The proposal was in each case

favourably received, as also, a little later, by Queensland, which had

been erected into a separate Province in 1859; and Tasmania actually

appointed its delegates. But there the matter was allowed to rest;

and, although occasional conferences were held at which a uniform

tariff, the immigration of the Chinese, and other subjects were

discussed, no practical steps were taken until 1883, when external

questions impressed {215} Australian statesmen with the necessity for

the creation of some body which would voice the opinions of Australia.

Germany was reputed to have designs upon New Guinea, France upon the

New Hebrides; while the latter country also gave offence by the penal

settlement in New Caledonia. In the spring of that year Sir T.

M'Ilwraith, the Premier of Queensland, which from its position has the

greatest interest in New Guinea, had hoisted the British flag on the

Island and taken formal possession of that part of it which was not

under the control of the Dutch; but his action had been disavowed by

the Imperial Government. A convention, attended by representatives

from the five Australian Provinces, Tasmania, New Zealand, and Fiji,

was accordingly held at Sydney, at which a decision was arrived at as

to the main principles which were embodied in the Federal Council Act

of 1885, the first legislative recognition of the Unity of Australia.

Under this Act it was provided that a Federal Council, containing two

representatives from a self-governing Province and one from a Crown

Colony, should come into existence as soon as four of the Australasian

Provinces had expressed their willingness to join it, and should

thenceforward hold biennial sessions. The motive which had called the

Council into existence was shown clearly in the principal power

delegated to it, that of legislating, subject to Imperial approval, in

regard to the relations of Australasia with the Islands of the {216}

Pacific. It was also authorised to deal, among other subjects, with

the fisheries in Australasian waters beyond territorial limits and

certain aspects of civil and criminal jurisdiction, upon which it could

pass enactments which would bind the Provinces represented upon it; and

with questions such as general defences, quarantine, copyright,

uniformity of weights and measures, and others which might be referred

to it by the Legislatures of two or more Provinces, and any other

matters of general Australasian interest on which the Legislatures can

legislate within their own limits, but as to which it is deemed

desirable that there should be a law of general application. Such

legislation, however, was to take effect only in the Provinces that

requested the Council to act, and in any others that might subsequently

adopt it. It will thus be seen that the measure is of a purely

permissive character, as each Province decides for itself whether it

will be represented on the Council. New South Wales, mainly under the

influence of the late Sir Henry Parkes, and New Zealand have never

taken part in the deliberations, and South Australia has only been

represented on a single occasion. The abstention of New Zealand is of

smaller importance, from her geographical position and her intention

not to identify herself at present with any scheme of Australian

federation; but the hostility of New South Wales and the apathy of

South Australia have placed great obstacles in the way of Queensland,

{217} Victoria, Western Australia, and Tasmania, which, and especially

Victoria, have attempted to turn the Council to the best account.

Other causes have combined to minimise its utility; it has neither an

Executive to carry out, nor a judiciary to enforce its decisions; it

has no control over public funds; and, as has recently been pointed

out, "it transacts its business without a Ministry or a department,

without a leader or an Opposition, without a party or a programme;

there is no necessary continuity of representation, or similarity in

the mode of appointment of representatives, or fixed area within which

its legislation has force; it is vagrant in domicile and without a roof

to shelter it, without a foot of territory to rest upon, without a ship

or a soldier to protect it, without a single man in its service, or a

shilling of its own to pay one."[1] But, in spite of these drawbacks,

the Council has done practical work: it has paved the way for a system

of national defence by the establishment of federal garrisons at King

George's Sound and Thursday Island; it has regulated the pearl-shell

and beche-de-mer fisheries on the coasts of Queensland and Western

Australia, and it has interested itself actively in the promotion of

the proposed Pacific cable. More would have been done, particularly in

the consideration of the matters referred to it by Provincial

Legislatures, had {218} it not been hoped that by the postponement of

action the Council would be enabled, through the adhesion of South

Australia and New South Wales, to legislate for the whole of Australia.

Several of the Provinces, notably Western Australia and Queensland,

which have shown little eagerness for the immediate realisation of a

closer union, believed that the Council would, by a gradual process of

development, be transformed into a Federal Parliament, and were

prepared to allow events to take their natural course; but in other

quarters a strong feeling arose, which was strengthened by the report

of Imperial officers on the condition of the Provincial Defences, that

the time had arrived when an attempt should be made to draft a Federal

Constitution Bill which should be submitted to the various Provinces,

and, if approved by them, to the Imperial Authorities. As the result

of correspondence between the Premiers, delegates from the whole of

Australasia, with the exception of Fiji, met at Melbourne in 1890, and

passed resolutions which led to the convocation at Sydney in the

following year of a constituent convention, which was attended by

Parliamentary representatives from the seven Provinces. The convention

sat for several weeks, under the presidency of Sir Henry Parkes, and

drew up a Bill "to constitute the commonwealth of Australia," which

formed the basis of the discussions at the recent Federal Convention.

{219}

The legislative powers of the Commonwealth are, under the provisions of

the Bill, vested in a Governor-General, appointed by the Queen, a

Senate, and a House of Representatives. The laws passed by the

Parliament are to be presented to the Governor-General, who may assent

to them in the Queen's name, reserve them for the signification of her

pleasure, withhold his assent, or return them to the Parliament with

any amendments that he may recommend. Laws assented to by the

Governor-General may be disallowed within two years by the Queen in

Council, and laws that have been reserved shall not come into force

unless within the same period they have received the assent of the

Queen in Council. The Members of the Convention did not deem it

necessary that any class of Bills should be reserved, but understood

that, as they proposed that the Commonwealth should be able to

legislate on several matters affecting the relations of Australia with

foreign nations, the Constitution would not be acceptable to the

Imperial Authorities unless a considerable power of intervention were

reserved to them.

The Senate is to be composed of eight members for each Province, which

is henceforth to be called a State, of whom one-half retire

triennially, directly chosen by the Houses of Parliament of the several

States for a period of six years. Senators are subject to no property

qualification, but must be of {220} the age of thirty years, have

resided for five years within the limits of the Commonwealth, be

entitled to vote for a member of the House of Representatives, and if

not British subjects by birth, have been naturalised for at least five

years before the time of their election. Bankrupts, criminals, and

Government contractors are specially disqualified. Similar provisions

and disqualifications apply to members of the House of Representatives,

except that the minimum age is reduced to twenty-one years, and that

the periods of residence and naturalisation are reduced from five years

to three. They are to be chosen, in constituencies of thirty thousand

inhabitants, by electors whose qualification shall be that prescribed

by each State as the qualification for electors of its more numerous

House of Parliament. The members of both Houses are to be paid at the

rate of L500 a year, and are precluded from sitting in a State

Parliament. The Parliament of the Commonwealth is to have authority to

deal with "external affairs and treaties," to take over the powers of

the Federal Council, which will cease to exist from the date of its

establishment, and to have the exclusive right to legislate in regard

to the affairs of the people of any race, not being Australian

aboriginals or Maoris of New Zealand, with respect to whom it is deemed

desirable to make laws not applicable to the general community; the

seat of the Federal Government and any places required {221} for

Federal purposes; and the provisional administration of any territory

surrendered by any State, and accepted by the Commonwealth, or any

territory in the Pacific placed by the Queen under the authority of and

accepted by the Commonwealth. The framers of the Constitution

doubtless had in view the Northern Territory, which, as it forms a

heavy burden upon its resources, South Australia might be glad to hand

over to the Federation. The Federal Parliament is also to deal

exclusively with the postal and telegraphic services, military and

naval defences and munitions of war, ocean beacons and lighthouses,

quarantine, and, as soon as a uniform tariff has been imposed, with

foreign and internal trade, bounties and duties of customs and excise.

In the meanwhile, the duties are to be collected by Federal officials,

but will be those that are, or may be, imposed by the Parliaments of

the several States. Upon the enactment of a uniform Federal tariff,

all such State laws will thereby be repealed and "trade and intercourse

throughout the Commonwealth, whether by means of internal carriage or

ocean navigation, shall be absolutely free." The expenditure of the

Commonwealth is to be charged to the several States in proportion to

the numbers of their people, and any surplus of revenue over

expenditure is to be returned to them in proportion to the amount of

revenue raised therein respectively, subject to certain reservations

and to the right of the Federal Parliament, after {222} the imposition

of a uniform tariff, to prescribe the method of its disposal. The

Federal revenue is to consist of customs and excise duties and of

moneys raised by any other mode or system of taxation, but so that all

such taxation shall be uniform through the Commonwealth. The Federal

Parliament may also, "with the consent of the Parliaments of all the

States, make laws for taking over and consolidating the whole or any

part of the public debt of any State or States; but so that a State

shall be liable to indemnify the Commonwealth in respect of the amount

of a debt taken over, and that the amount of interest payable in

respect of a debt shall be deducted and retained from time to time from

the share of the surplus revenue of the Commonwealth which would be

otherwise payable to the State."[2] Certain other legislative powers

are vested in the Federal Parliament, which may concurrently be

exercised by the several States, and in such cases Federal shall

supersede State legislation. All subjects not exclusively vested in

the Parliament of the Commonwealth, or withdrawn from the Parliaments

of the several States, are reserved to, and shall remain vested in, the

State Parliaments.

The authority of the Senate in regard to Money Bills formed the subject

of much discussion, and was decided by a compromise which, it was

hoped, would satisfy both those who desired to secure the {223}

financial supremacy of the House of Representatives and the inhabitants

of the smaller States, who would naturally struggle for the rights of

the Senate in which they would be on a footing of equality with their

more powerful neighbours. The views of the former were met by the

provisions that "laws appropriating any part of the public revenue, or

imposing any tax or impost, shall originate in the House of

Representatives," and that "the Senate shall have equal power with the

House of Representatives in respect to all proposed laws, except laws

imposing taxation and laws appropriating the necessary supplies for the

ordinary annual services of the Government, which the Senate may affirm

or reject, but may not amend. But the Senate may not amend any

proposed law in such a manner as to increase any proposed charge or

burden on the people." The interests of the latter were safeguarded by

the four succeeding sub-sections:

"Laws imposing taxation shall deal with the imposition of taxation only.

"Laws imposing taxation, except laws imposing duties of customs on

imports, shall deal with one subject of taxation only.

"The expenditure for services other than the ordinary annual services

of the Government shall not be authorised by the same law as that which

appropriates the supplies for such ordinary annual services, but shall

be authorised by a separate law or laws.

{224}

"In the case of a proposed law which the Senate may not amend, the

Senate may at any stage return it to the House of Representatives with

a message requesting the omission or amendment of any items or

provisions therein. And the House of Representatives may, if it thinks

fit, make such omissions or amendments, or any of them, with or without

modifications."[3]

The executive authority of the Commonwealth is to be exercised by the

Governor-General as the Queen's representative, with the aid and advice

of a Federal Executive Council. Considerable discussion took place at

the Convention as to the relations which should exist between the

Federal Executive and Legislature, some of the Representatives being in

favour of the British system, others of the direct popular election of

the head of the Government. It was finally agreed that the members of

the Council should be chosen and summoned by the Governor-General,

should hold office, during his pleasure, and should be capable of being

chosen and of sitting in either House of Parliament. They are to

execute the provisions of the Constitution and the laws of the

Commonwealth; to assume at once control of the departments of customs

and excise, posts and telegraphs, military and naval defence, ocean

lights and quarantine; and, until other provision is made by

Parliament, to appoint and remove all other officers of the Government.

{225}

The Parliament of the Commonwealth may establish a Supreme Court of

Australia, consisting of a Chief Justice and not less than four other

Justices, who shall be appointed by the Governor-General in Council,

and shall be irremovable except upon an address from both Houses of

Parliament. The Supreme Court shall be a final Court of Appeal from

any other Federal Court, which may be established by Parliament, and

from the highest Court of final resort in any State; and may be

invested by Parliament with final and conclusive jurisdiction in all

cases upon which an appeal has hitherto been allowed to the Queen in

Council, subject to the right of the Queen to grant an appeal to

herself in Council against the judgment of the Supreme Court in any

case which concerns the public interests of the Commonwealth, or of any

State, or of any other part of the British Empire. The Parliament may

also confer upon the Federal Courts, other than the Supreme Court,

jurisdiction to deal, either exclusively or concurrently with the

Courts of the States, with cases arising under the Constitution or

under any law made by the Parliament of the Commonwealth or affecting

the Representatives of Foreign Powers, and with certain other matters

including cases in which the Commonwealth is a party, or in which a

Writ of Mandamus or Prohibition is sought against an officer of the

Commonwealth.

As the powers of the State are to be substantially those which they

possess at present with the {226} exception of such as are transferred

to the Federal Legislature and Executive, it is only necessary to add

that the Governors of the States are to be appointed in the manner

which their Parliament may prescribe, but are to correspond with the

Imperial Authorities through the Governor-General: that States are not

to be subdivided nor deprived of any of their territories without the

consent of their Parliaments; and that they are forbidden explicitly to

raise or maintain any military or naval force, to coin money, or make

anything but gold and silver legal tender in payment of debts, to make

any law prohibiting the free exercise of any religion, or to make or

enforce any law abridging any privilege or immunity of citizens of

other States of the Commonwealth, or to deny to any person within their

jurisdiction the equal protection of the laws.

Finally, it is provided that any of the existing Provinces that have

not adopted the Constitution may, upon doing so, be admitted to the

Commonwealth, and that any law for the alteration of the Constitution

is not to be submitted to the Governor-General for the Royal Assent

until it has been passed by an absolute majority of both Houses of

Parliament, and has been approved by conventions of a majority of the

States representing a majority of the people of the Commonwealth.

When the Constitution Bill had been drafted, the next step should have

been its reference to the Parliaments of the Constituent Provinces; but

it was {227} not even introduced in New South Wales, Queensland,

Western Australia, or New Zealand. In Victoria it was passed by the

Assembly and forwarded to the Council, which passed it subject to

certain amendments which were never considered by the Assembly; in

South Australia it was introduced in the Assembly, and was dropped; in

Tasmania it passed the Assembly and was dropped at an early stage in

the Council. This procession of failures caused the advocates of

Federation to realise that there must be something faulty in the method

of procedure, and to ask themselves whether it was reasonable to expect

that fourteen independent Chambers, or twelve, if New Zealand be

excluded, should be able to arrive at a uniform decision on so

complicated and contentious a subject. It was felt, also, that the

Parliaments had no popular mandate to deal with the question, and that,

in the general apathy and absence of interest, the electors themselves

should be stirred up by direct participation in the movement.

Accordingly, Mr. Reid, the Premier of New South Wales, invited the

Premiers of the other Australian Provinces to meet him at Hobart in

January, 1895, taking advantage of the fact that four of them would be

there in connection with the biennial meeting of the Federal Council.

The invitation was accepted, and a new scheme was devised of which the

main principles were the popular election of delegates empowered to

meet and frame a Federal Constitution; the reference of the

Constitution {228} so framed to a plebiscite of the several electorates

and its subsequent transmission for Imperial legislation. The Premiers

of New South Wales, Victoria, South Australia, and Tasmania accepted

the proposal in its entirety; the Premier of Queensland agreed to it,

except as regards the reference of the Constitution to a plebiscite;

but the Premier of Western Australia was unable to concur with the

decision of his colleagues. Sir John Forrest did not believe that

popular election would lead to the choice of the most highly trained

jurists and financiers, who could alone frame a consistent and workable

Constitution, and he regarded as absurd the assumption that the average

elector could give an intelligent opinion upon a measure of so

complicated a character. There is much force in these objections; but

it must be remembered that the former effort failed from its

dissociation from popular impulse, and that the delegates would have

the benefit of the work of their predecessors, which they would be

bound to accept as the basis of their deliberations. As regards the

plebiscite, it cannot have been expected that the vote of the bulk of

the electorate would be more than an affirmative or negative reply upon

the broadest issue; but, assuming it to be necessary that the

Constitution Bill should in some manner or other be submitted for the

judgment of each of the Provinces, the direct reference has the merit

of being expeditious and conclusive and of avoiding the quagmire of

Parliamentary discussions.

{229}

Before proceeding to note the results of the resolutions passed at the

Premiers' Conference, it may be of interest to consider to what extent

recent events have affected the status of the Federal Council. As has

already been remarked, it has pursued a policy of self-effacement, and

in spite of the increase in its numbers, it has never appealed to the

imagination of Australians. It was undoubtedly dwarfed by comparison

with the Federal Convention, which, indeed, decreed its contingent

extinction, and it has, to some extent, been supplanted by the informal

meetings of Australian Premiers which tend to become an annual

institution. At a Conference held at Sydney in January, 1896, the

urgent necessity for Federation was again emphasised, and it was

resolved that, pending its attainment, the military laws of the

Provinces should be assimilated, and a cordite factory be established

under State supervision. Resolutions were also passed in favour of a

Federal system of quarantine, the distribution of the cost of

lighthouses on the basis of population, the extension to all coloured

races of the provisions of the Chinese Restriction Acts, and

non-participation in the Anglo-Japanese Treaty. In this manner the

Premiers, instead of referring questions to the Federal Council through

their respective legislatures, decided, after personal consultation,

upon measures which each would endeavour, in the common interest, to

pass through the Parliament of his own Province. Other interprovincial

conferences also {230} are becoming more common. The precautions to be

adopted against the tick fever were discussed at Sydney in 1896, and a

few months ago, earlier, several Ministers of Agriculture met the South

Australian Minister at Adelaide and decided upon the advisability of

uniform legislation which would promote similarity of out-put in the

products of the different Provinces, such as frozen meat, butter, wine,

and fruit, for which it was hoped to create a large market in England.

It has been argued that the growing realisation of the interdependence

of the Provinces and of the material advantages accruing from combined

action, will tend to hasten the advent of Federation.

The new proposals in that direction were favourably received, and the

Legislatures of New South Wales, Victoria, South Australia, and

Tasmania passed the so-called Australasian Federation Enabling Act, in

substantially similar form, upon the lines laid down by the Premiers.

The details of their scheme may be gathered from the principal

provisions of the Victorian Act:--

"The Convention shall consist of ten Representatives of each Colony

represented.

"The Convention shall be charged with the duty of framing for

Australasia a Federal Constitution under the Crown in the form of a

Bill for enactment by the Imperial Parliament.

"Every Member and every person eligible for Membership of either House

of Parliament shall be {231} eligible for Membership of the Convention

as a Representative of Victoria. And any one hundred or more electors

duly qualified to vote for the election of a Member of the Legislative

Assembly shall be entitled in the prescribed manner to nominate any

eligible person.

"Every person duly qualified to vote for the election of a member of

the Legislative Assembly shall be qualified and entitled to vote for

the election of Representatives of Victoria.

"The voting shall be taken throughout Victoria as one electoral

district, and every voter shall vote for the full number of

Representatives required, otherwise the vote shall be rejected as

informal.

"No person shall vote or attempt to vote more than once at the same

election of Representatives of Victoria."

(A similar provision applies to the subsequent referendum.)

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