The Australian Colonies Under the Common wealth.

New Zealand Illustrated Magazine, Volume 1, Issue 12, 1 September 1900, Unnumbered Page

The Australian Colonies Under the Common wealth.

By Sir Robert Stout, K.C.M.G., Chief Justice

ipjljiHE main political question that for OTI ML twenty-live years divided political /ill Ujr parties in this colony was that of tfSjJ Provincialism. From the earliest days of a representative government in New Zealand until the session of 1876, when the attempt to repeal the Abolition of Provinces Act proved hopeless, there was always a Provincial party straggling against the all - enveloping centralism, to which it is said this colony was a prey. The Australian Commonwealth Bill has passed, aud it seems to me that, in the near future, there will arise a States Rights party, as opposed to those who are in favour of a Unitary or Central Government, as we termed it in New Zealand. What guarantee is there for the maintenance of a Federal system in Australia ? New Zealanders can, I hope, look at the question as impartially as if they were viewing the dynastic struggle of China, or following the party fights of the Democrats and Republicans in the United States of America. The first thing to be noted about the Australian Commonwealth Act is that it does not purport to be a Constitution for all the governments of Australia and Tasmania. It only creates Federal government. The Constitutions of the States are left intact. In this respect it differs considerably from the constitution of the Dominion of Canada. In the British North American Act there were provisions dealing with the legislativepowers of the various colonies in British North Vol. I.— No. 12.— ©3.

America that are wanting in the Australian Commonwealth Act. The legislative powers granted to tho Commonwealth are limited. There are forty-three subjects on which the Federal Parliament can legislate, and it can logislato only on these subjects. Tho contrast with our New Zealand Constitution is hero most marked. The Commonwealth Act declares that, " the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to" (then are enumerated thirty-nine subjects). In tho next section three more subjects are mentioned, and in section 120, one subject more. The New Zealand Constitution Act (section 53) declares that " It shall be competent to the said General Assembly (except subject as hereinafter mentioned) to make laws for tho peace, order and good government of New Zealand, provided that no such laws bo repugnant to the law of England ; and the laws, so to be made by tho said General Assembly, shall control and supersede any law or ordinance, in any wise repugnant thereto, which may have been made or ordained prior thereto by any Provincial Council ; and any law or ordinance made and ordained by any Provincial Council in pursuance of the authority hereby conferred upon it, and on any subject whatever, under such authority as aforesaid, it is entitled to legislate, shall, so far as the same is repugnant to or inconsistent with any Act passed

by the General Assembly, be null and void."

There was therefore in the New Zealand Constitution Act a clear and express provision that in all matters the legislative power of the central legislature was supreme. Reading sections 51 and 52 of the Commonwealth Bill it would appear that the legislative powers of the Parliament of the Commonwealth were limited to forty-two subjects. The only doubt that may arise as to the relative power of the Central Parliament and the States Parliaments is created by section 109. It says, " Where, a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." I presumo this will be read as meaning " a law of a State " in regard to any of the forty-three subjects, of which exclusive legislative power is given to the Parliament of the Commonwealth. To read it otherwise would reduce the State laws to mere municipal bye-laws, and there would have been no need to enumerate foi^ty-thi'ee subjects mentioned in the Act as belonging exclusively to the Central Commonwealth Parliament. The subjects on which the Central Parliament can legislate are: — " (i.) Trade and Commerce with other countries and among the States; (ii.) Taxation (this includes Customs and Excise, but so as not to discriminate between States and parts of States) ; (iii.) Bounties on tbe production or export of food, but so that such bounties shall be uniform throughout the Commonwealth ; (iv.) Borrowing money on the public credit by the Commonwealth; (v.) Postal telev;graphio, telephonic and other like services ; (vi.) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth ; (vii.) Lighthouses, light-ships, beacons and buoys; (viii.) Astronomical and meteorological observations ; (ix.) Quarantine ; (x.) Fisheries in Australian -waters beyond territorial limits ; (xi.) Census and Statistics ; (xii.) Currency, coinage and legal tender; (xiii.) Banking, other than State

Banking ,also State Banking extending beyond the limits of the State concerned, the Corporation of Banks and the issue of paper money ; (xiv.) Insurance, other than State Insurance extending beyond the limits of the State concerned ; (xv.) Weights and Measures ; (xvi.) Bills of Exchange and Promissory Notes ; (xvii.) Bankruptcy and Insolvency ; (xviii.) Copyrights, Patent of Inventions and Designs and Trademai-ks ; (xix.) Naturalization and Aliens ; (xx.) Foreign Corporations and Trading or Financial Corporations formed within the limits of the Commonwealth ; (xxi.) Marriage ; (xxii.) Divorce and matrimonial causes, and in relation thereto, parental rights and the custody and guardianship of infants ; (xxiii.) Invalid and Old Age Pensions ; (xxiv.) The Service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the Courts of the States; (xxv.) The recognition throughout the Commonwealth of the Law, the Public Acts and Records, and the judicial proceedings of the States ; (xxvi.) The people of any race other than the Aboriginal race in any State, for whom it is deemed necessary to make special laws; (xxvii.) Immigration and emigration ; (xxiii.) The influx of criminals ; (xxix.) External affairs; (xxx.) The relations of the Commonwealth with the Islands of the Pacific ; (xxxi.) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament had power to make laws ; (xxxii.) The control of railways with respect to transport for the naval and military purposes of the Commonwealth; (xxxiii.) The acquisition with the consent of a State of any railways of the State on terms arranged between the Commonwealth and the State ; (xxxiv.) Railway construction and extension in any State with the consent of that State ; (xxxv.) Conciliation and Arbitration for the preservation and settlement of industrial disputes extending beyond the limits of any State ; (xxxvi.) Matters in respect of which this Constitution makes provision until the Parliament

otherwise provides ; (xxxvii.) Matters referred to the Parliament of the Commouwealth by the Parliament or -Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law; (xxxviii.) The exercise within the Commonwealth at the request, or with the concurrence of the Parliaments of all the States directly concerned, of any powers which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom, or by the Federal Council of Australasia ; (xxxix.) Matters incidental to the execution of any powers vested by this Constitution in the Parliament, or in either House thereof, or in the government of the Commouwealth, or in the Federal judicature, or in any department, or office of the Commonwealth. In the 52nd section there are three additional powers granted, viz., with respect to, (i.) The seat of government of the Commonwealth aud all places acquired by the Co rnmon wealth for public purposes ; (ii.) Matters relating to any department of the public service, the control of which is by this Constitution transferred to the Executive Government of the Commonwealth ; (iii.) Other mattei'S declared by this Constitution to be within the exclusive powers of the Parliament. Section 120, after providing that the State shall make provision for the detention in its prisons of accused and convicted persons against the laws of the Commonwealth, adds, " and the Parliament of the Commonwealth may make laws to give effect to this provision." S.ubject, however, to the matters mentioned, the present legislative powers of the States in the colonies are left intact. They can, for example, legislate as to Crimes, as to Land holding, as to Lunacy, as to Transfer of land, as to Agriculture, as to Prisons, as to Police, as to Public Banks, as to Mining, as to their own Local Government, as to Education, etc., etc. Perhaps a better way of obtaining an idea of the legislative powers left to a State, would be to take the Acts passed by the New Zealand

Parliament last year, and soe what Acts our Legislature could not have passed if it had been one of the states of the Australian Commonwealth. Sixty - four Acts were passed in 1899 by the Parliament of Now Zealand ; of the sixty-four statutes, thirtythree were general, twenty-eight local and personal, and three private. Of the gonoral Acts, only three dealt with any Acts that would come under the powers of the- Fcdoral Parliament, namely, Immigration Restriction, Pacific Cable Authorization, and Shipping and Seaman's. All the other legislative work of the New Zealand Parliament would not have been affected by its being a State of the Australian Commonwealth. In case it might bo said that 1899 was exceptional, 1898 may be taken,and there were only four Acts that would have been necessary to have been enacted by the Parliament of the Commonwealth, namely, the Divorce, Industrial Conciliation, and Old Age Pensions Acts, and the Bank New Act, as the Bank of New Zealand carried on business beyond New Zealand. And in 1898 the New Zealand Legislature passed forty-two General Acts, twenty-six Local and Personal Acts, and two Private Acts. In 1897 only one Act, the Patents Designs and Tradesmarkb Act Amendment Act would have been required to bo enacted by the Commonwealth. The States thorcforo will surrender very little of their legislative powers. The matters in which there may ariso friction between those who will side with the States — Provincialists we might call them — and those who look to the maintenance of a Unitary rather than a Federal Government — Centralists — wo used to call them — are perhaps those of Trade and Commerce, Taxation, and Bounties on the production of goods. It does not appear that on the other matters left to the Federal Parliament there can arise much conflict — that is, assuming my suggested interpretation of section 109 is correct. If lam right, the Commonwealth Bill will be a truly Federal Constitution, for it will leave the States sovereign, save where their powers and

rights are invaded by the Common wealth Act. (See art. 1 chap. 1 Swiss Constitution) . The essential features of a Federal Constitution, as distinguished from a Unitary Government, are stated by Professor Dicey in his " Introduction to the Study of the Constitution," and condensed by Professor Jenks as follows : — ■ (A) A written supreme Constitution in order to prevent disputes between the jurisdictions of its Federal and State authorities. (B) A distribution of powers between the Central or Federal Government and the Governments of the several States which comprise the Union, and probably also among the various parts of the Federal Government. (C) A Supreme Court charged with the duty of interpreting the Constitution, and enforcing obedience to it by the organs both of the Federal and States Governments, and absolutely free from the influence of both. The Commonwealth Bill carries out the idea of what a Federal Constitution should be. There is no express power given to the High Court to set aside laws of the Parliament of the Commonwealth as being uncon-, stitutional, but it may be assumed that such power is implied. In this connection, however, it should not be overlooked that some colonial judges have held that the Courts of a colony have no power to say that a colonial statute is unconstitutional. A written Constitution should have made this power plain. The struggle between the States Rights and Central Parties will come in later years. The Centralists will strive to have the powers and functions of the Commonwealth enlarged, whilst the States Rights Party will fight for the maintenance of the privileges of the States. As we must apparently have parties under any system of government, it may not be a cause of regret that this question shall divide political combatants. The struggle may probably arise over alterations of the Constitution. Before any alterations can be made the proposed alteration must pass both Houses by an absolute majority of each House, then not less than

two, nor more than six months thereafter, it must be submitted to a Referendum of the electors of each State, and before it can be passed there must be («) a majority of the States, and (b) a majority of the total electors in all the States approving of it. This is, no doubt, a great safeguard, though some Federalists would not have desired to see a mere majority alter the Federal Constitution. In the United States, State Rights are better conserved. Article V. of the Constitution provides for amendments in it as follows : — "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the Legislatures of the several States, shall call a Convention for proposing amendments which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when satisfied by the Legislatures of three-fourths thereof, or the one or the other mode of ratification may be proposed by the Congress ; provided that no amendment which may be made prior to the year one thousand nine hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article, and that no State, without its consent, shall he deprived of its equal suffrage in the Senate." The Commonwealth Act conforms to the Swiss Constitution. Article 121, of that Constitution, says : " The Amended Federal Constitution shall be in force when it has been adopted by the majority of Swiss citizens who take part in the vote thereon, and of a majority of the States." The Senate is to consist of six Senators from each State, and if the number is increased , the equal representation of the " several original States " shall be maintained. Original States mean such States "as are part of the Commonwealth at its establishment." It would seem, therefore, that if New Zealand joined the Commonwealth at some future time, she would not be an original State, nor would she be entitled to the advantage of the provision regarding Senators.

In the United States there is a considorable outcry about the representation of States in the Senate being by States, and not by population ; and it has been urged that it is not democratic or fair to have the same number of Senators from Vermont as from New York. The Senate in the United States is mo^e powerful than the House of Representatives. So far, however, the States Rights Party have been able to maintain the equality of State representation in the Senate, and its maintenance is the bulwark of States Rights. Perhaps in the days to come there will be a struggle in the Commonwealth over State representation in the Senate. Already there is a demand being made for a Federal University, and in this there is a Swiss precedent. There are four Universities in Switzerland — Zurich, Berne, Basel and Geneva, and they are all Cantonal institutions. The Constitution of 1848, however, authorised the Federal Government to found a Polytechnic School and a University. The Polytechnic School was founded in 1855, and has been very successful. In 1874 the Amended Constitution authorised a University and other institutions of Higher Education, and large sums are now spent by the Federal Government for Higher Education, for Agricultural Education and for the promotion of Fine Arts. The latest statistics I have, give a sum of about £45,000 per year spent by the Federal

Government on these objects. It has to bo rememborod that in the Cantonal Universities for about three millions of people, there are three hundred professors and lecturers. New Zealaud has, with a fourth of tho population, only fifty ! But it is not uocessary to point out how far behind wo are in this colony as far as regards Higher Education. I have mentioned this agitation for a Federal University as a typo of thoso questions that will bo raised, and that will separate Federalists from Centralists. We in New Zealand, though wo havo neither part nor lot in Australian Federation, cannot be uninterested in this governmental experiment that will be tried across the Tasmau Sea. The birth of the now nation has, I am sure, our best wishes, and wo hope that the new mode of governing themselves that has been committed to oar Australian and Tasmanian cousins will not tend to drive us farther apart from them, but that we shall ever remain on terms of tho greatest amity and good fellowship with them. Perhaps an acquaintance with their Commonwealth Act, with tho difforonco between it and our lost semi-federal constitution, may enable us to watch their various political contests with a' deep interest and a friendly feeling. My object in writing this brief sketch has been to acquaint those who have not read the Commonwealth Act, with its provisions from a Federal point of

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