australian federation: colonial court of appeal : an australian privy council

Australian federation: Colonial Court of Appeal : An Australian Privy CouncilAuthor(s): Wrenfordsley, Henry T.Source: Foreign and Commonwealth Office Collection, (1894)Published by: The University of Manchester, The John Rylands University LibraryStable URL: http://www.jstor.org/stable/60229122 .

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AUSTRALIAN FEDERATION

COLONIAL COURT OF APPEAL

Reprinted from ' The Times,' December 29, 1894)

An Australian Privy Council

To the Editor of The Times

Sir,—I have just read in The Times a very clear resume of Australian political affairs, and I notice that your correspondent refers more particularly to the pending question of intercolonial federation, a subject which, it is expected, will be reconsidered under the influence of Mr. Eeid, the present Premier of New South Wales.

As The Times seems to recognise the impor¬ tance of colonial affairs -in connection with the

permanent interests of the mother country, perhaps you will allow me to refer to what took place at.

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the Intercolonial Conference held at Sydney in

1881, and which had special reference to the same

subject. Perhaps I may be also permitted to refer

to some exceptional knowledge of the questions

involved, seeing that I had the honour to attend

that conference as a delegate to represent the

then Crown Colony of Western Australia. In

those days Sir Henry Parkes was Premier of New

South Wales, and Mr. Berry, now Sir Graham

Berry, was Premier of Victoria. It was, in every

sense, an important meeting, as its primary object

was the consideration of federal questions. The

vexed question of intercolonial defence was one of

the matters brought before the conference, and, as

evidence of the feeling which was then present

to the minds of the several representatives, the

following resolution was agreed to :— ' That, in the opinion of this conference, con¬

sidering the large Imperial interests involved, the

naval defence of these colonies should continue to

be the exclusive charge of the Imperial Govern¬

ment, and that the strength of the Australian

squadron should be increased. That the members

of the conference pledge themselves to use all

legitimate endeavours to procure the efficient

fortification and land defence of the several ports

of the Australian Colonies, at the cost of the several

colonies interested.' As a result, a practical result, the colonies

were thus, to a certain extent, prepared to con¬

sider the proposals which were subsequently

formulated and submitted to them, with so much

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success, b)r the late lamented Admiral Sir George Tryon. Minor questions were also discussed, as, for instance, Australian interests in the Western Pacific ; and, with a view to still further advance the cause of intercolonial federation, it was agreed that an ' Australian Court of Appeal' should be established. To that end a sub-committee was

named, and it became a part of my duty to assist in the preparation of a draft Bill, which, it was further agreed, should be submitted for approval to the Governments of the respective colonies. At that time Sir Henry Parkes, who is far too cautious a statesman to adopt any marked line of

policy without sufficient grounds, appeared to be rather influenced against the idea of any attempt at immediate federation, but he went so far as to

present a well considered memorandum to the convention. I think his paper embodied the first

practical outlines of any suggestion made in Australasia for establishing a federal council for the Australian Colonies, taking them as a group. After much discussion, Sir Graham Berry moved, and I seconded, a resolution to the effect that the memorandum should be inserted in the minutes of the proceedings, to form the basis of farther action.

It was assumed, in the words of Sir Henry Parkes, that certain positions in favour of the

proposals were hardljr open to debate; but the second paragraph is one to which, by your leave, I should like to refer : ' That the time is come when a number of matters of much concern to all



X

the colonies might be dealt with more effectually

by some federal authority than by the colonies

separately.' This was a truism which seems to hold good

still, but it may be said that this memorandum

was prepared more than twelve years ago, and

that in the case of fast-growing colonies time

obliterates necessity. From a political point of

view, however, Australasia has made no very marked advance; at all events, none within the

experience of her existing statesmen, and Mr. Eeid, who is comparatively a young man, may like at

the outset of his administration to hold a conven¬

tion of all the sister colonies. But, like previous

meetings of the kind, the pending convention will

not lead to any practical result unless he is pre¬

pared beforehand to submit something more than ' his views

' on a question of such magnitude. If

so, his proposed conference for 1895 will of

necessity have relation back to the lines of action

indicated, as I have said, by the conference of

1881. The proposals then recommended to the

consideration of the respective colonies have yet to be disposed of, and, what is of still greater certainty, the veteran politician Sir Henry Parkes

is still in the field. I ventured to think at the time that Sir Henry

Parkes was right when I supported the resolution

to which I have referred, and I still think that

effectual power may be given to a federal council

within prescribed limits, without impairing the

legislative authority of the colonies. In other V

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words, that, having regard to all local circum¬

stances, a form of federation can be obtained which will not disturb the existing political status of each colony. To return, a Bill which had been

prepared for the purpose was then submitted to the

conference, and its provisions were ultimately agreed to, but subject to further action on the

part of the representatives of the self-governing colonies. The colony which I represented, being in those days a Crown Colony, was of course

excepted from the obligation of further action. The time, however, has now arrived when the six

large self-governing colonies are free to formulate a federal form of intercolonial government, and without the assistance of the Imperial Government, save a formal Enabling Act, which, no doubt, would be passed by the Imperial Parliament almost without observation. The historian of the

period will probably treat hereafter of this privilege on the part of these great colonies as an event of marked importance to the Imperial kingdom. They have already been emancipated from the control of the parent State, and it is only a matter of time and arrangement when they will become united for all the purposes of internal and external

government. It was also suggested (1881) that a federal

council should be appointed, to consist of not more than three Ministers of the Crown, to be

appointed by the Governor of each represented colony, and on conditions applicable to change of

government. I thought at the time that this mode



X of nomination would not prove acceptable, and it

ultimately wrecked the Bill. A federal council to be effective should be the result of the popular vote, and this proposed form of selection would simply ^ constitute a third council, while its deliberations would be at all times subject to political change. It seems to me, with all respect to the present statesmen of Australasia, that the federal council of the future should be in effect the Privy Council of the group ; and that only in this way can they obtain finality in the proceedings of the council. It is of the utmost importance to gain this finality. For instance, if, after the meeting of such a council as the one proposed by Sir Henry Parkes in 1881, it would be needed to submit its conclusions piece¬ meal to the Government of each colony either for confirmation or adoption, in such a case agree¬ ment, ultimate agreement, would become almost

hopeless. And yet such a council might have to be summoned to discuss, on very short notice, questions of no less importance than those relating to local defence—or material assistance to the

parent State. It was about the time to which this letter •

refers that Lord Augustus Loftus, who was then Governor of New South Wales, suggested the formation of a sort of Privy Council for the Colo¬

nies, which should sit in London. I may not do full justice to the proposal, but the idea was never considered by practical politicians in Australia. It was openly said that the Australians were going in the future to govern themselves; and with such '

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a feeling existing in the minds of the general

public any proposal of that kind, coming, as might be supposed, from Whitehall, would have been at

once rejected. I question if public opinion in

Australasia has changed since then. A Premier

advocating the constitution of a London board of

advice would have but a small chance of remaining in office.

The subsequent conference held at Sydney in

1883 did not advance matters. Mr. Service was

then Premier of Victoria, and the late Sir Alexander

Stuart was Premier of New South Wales. Queens¬

land was well represented by its then Premier, Sir Samuel Griffith, the present Chief Justice of

that colony. On the whole, with such men to

be added to the list as the late Sir John Bray and

the late much-respected Mr. Justice Giblin, of

Tasmania, the interests of Australasia were well

represented. Before the close of the conference, Sir Samuel Griffith proposed the following resolu-.

tion, which 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.'

This brings me to the consideration of one or



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two provisions in the draft Bill which was then

prepared. The object of the Bill was defined to constitute a federal council for Australasia. It re¬ tained the mistake which, as I have pointed out, f. was to be found in the Bill of 1881. It was pro¬ posed that each colony should be represented in the council by two members. There was a neces¬

sary exception made in favour of the existing Crown Colony. The Legislature of each colony might define the mode of appointment; saving her

Majesty's prerogative, the legislative authority as claimed by the Bill did not differ from the special matter to which I have referred.

For all practical purposes this draft Bill became a dead letter. It is to be observed that the present so-called federal council, which has since met at Hobart, has not proved a success. It does not even give light to the subject. >

I was in Tasmania acting for a short time, by ^V permission of the Colonial Office, as a Judge of the Supreme Court, when the council met for the first time ; and I am not aware that its labours have made any lasting addition to the legislation of the colonies. It meets at a convenient time of the year, and is suggestive of a form of holiday for the Ministers who can spare time to enjoy the benefits to be derived from a good climate in its summer season. In my humble opinion, the fifth clause of the draft Bill defeated the object of the convention. Two selected members from the

Legislature of each colony would carry no weight; and I question if the proposal was even considered y



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by the respective colonies. It may have been

mentioned, but it was never adbpted. At most, such a proposal would only constitute a sort of sub-committee composed of a few selected members. It would be, in short, a hybrid com¬ mittee composed of a few nominated members with very limited powers.

I still think, however, a solution of the diffi¬

culty is possible, and, in the event of a conference

being held, I would respectfully ask the present able leaders of political affairs in Australasia to consider if it might not be possible to find excel¬ lent materials for the formation of a federal council in the existing Legislative Councils. I was about to refer to that part of the existing Constitution in each colony as the '

Upper Chamber,' but I fear the term would not be understood, at all events in Australasia. It is true that there is no present desire on the part of the Australian Colonies, democratic as they may be, to do away with the

good offices of these ' Upper Houses

' of Parlia¬

ment ; but the term, as it may be applied to the

respective classes of the people, is hardly appli¬ cable. In other words, the collective wisdom of

the several Legislative Councils is not at present

questioned. They possess certain distinctive

modes of action, but they seem to perform their duties. They are not composed of any of the '

upper classes,' as the expression is sought to be

known in England, but as a rule by a class of men

who, having made their ' pile,' are not likely to

favour hasty legislation. A 3



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There are other advantages, and some that the

thrifty classes will appreciate. The expenditure for a first experiment would not be much ; and

the trial, or test of its expediency, could take place without delay. In new countries, and certainly in

self-governing colonies, time is always a great con¬

sideration, and details should always be of the

simplest character. A central place of meeting would be needed, and it would be well to avoid

any ground for jealousy as between New South Wales and Victoria. It could, for instance, be left to her Majesty, as in the case, I believe, of

Canada, to select, or name, the favoured spot. In 1881 AlbajHy was mentioned, and, no doubt, that

town, situated as it is on the borderland of the two

colonies, would be convenient; the more so as it

already possesses complete railway communication with all parts of the vast continent of Australia.

Butlventure to think that the leading advantage of this arrangement consists in the fact that the

present political status of Australian statesmen would not be disturbed. There is much danger, as we say in the tropics, in disturbing new soil, and I recollect a leading Melbourne man telling me once that 'old birds like old nests.' It was that feeling (somewhat roughly expressed, perhaps) which threw cold water on the labours of the

Sydney conferences of 1881-83. And, further, the existing departmental machinery of govern¬ ment need not be varied. Bills of local concern could »till be referred to the Legislative Councils as at present constituted ; while Bills of an inter-

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colonial character could be marked 'Federal

Privy Council,' and stand referred to that Assembly. The chief expense would consist in the appoint¬ ment of distinct officers as clerks of federal council. As regards the payment of members, they could

receive an allowance in respect of their actual

attendance. It may be said that a Chamber to be composed

of the full number of members, elected to the re¬

spective Legislative Councils, would prove too

numerous. But let it be remembered that the first

object in view is to obtain a Chamber free from the ' ebb and flow' of party government; that, if its

decisions are to be useful, they must be final. The

decisions, to be useful, may be subject to review, but

certainly not subject to appeal. Let us see, how¬

ever, how these councils stand with regard to

numbers. Queensland returns 39 members to the

Legislative Council; South Australia, 24; Tas¬

mania, 18 ; Victoria, 48 ; Western Australia, 15 ; New South Wales, 69—in all, say, 213. The total

number of members elected to the respective

Legislative Assemblies is 428. Something more,

however, is needed to complete the representative

strength as a Federal Privy Council. If its decisions

are to be made, or held to be, final, provision must

be made for party or local political feeling. To

this end, the Ministers in office for the time

being of the several colonies should be consenting

parties to all intercolonial measures. If so, there

are five members from each colony to be added to

the list of 213, bringing up a total to, say, 243. I



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assume that for each colony it would be required to add the Premier, Chief Secretary, the Attorney- General, Treasurer, and the Minister of De¬

fence. It is to be observed that in some instances

Ministers may have been taken from the Legislative Council, in which case no addition would be made

to the original number. The Attorney-General in

the representative colonies has wider powers than

with us. In England he is an executive officer.

He follows, if I may be allowed to say so, the in¬

stincts of the Cabinet, but he is not consulted, as

far as I am aware, as in Australasia, with respect to questions of expediency, which, I believe, some¬

times form the basis of party government. In

Australia he is not only of the Government, but a

very prominent member in the Cabinet. Let

it be borne in mind also that the deliberations

of the council under reference would probably be

confined to two classes of Bills. A few local mea¬

sures might require to come before the council, but

I take it that the real work of such an assembly would consist in the preparation of Bills relating almost exclusively to intercolonial interests. Each

Premier would come prepared to represent his own

Government with respect to the former class ; while, as regards Bills of an intercolonial character, each

colony would be represented with respect to local

feeling ; but the test of the practical use of such a

Chamber would consist in the fact that any one

colony would be bound to accept the decision of

the majority. Of course, the whole subject is of the highest Y"

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constitutional importance to the federating colo¬

nies, but, for the purpose of making a beginning, to

prevent further disjointed discussion, to save delay, I think the colonies will expedite as well as sim¬

plify matters if they would consent to make use of their respective Legislative Councils en bloc. It is true that it may be said that in Australia the re¬

spective Legislative Assemblies are more popular in their character, that they are nearer to the

popular vote, and more in touch with the social

character of a democratic form of government; but, on the other hand, the Federal Privy Council

would never reach the constitutional stage of be¬

coming a Council of Appeal. It would probably never have to concern itself with purely party questions, or seek to interfere with the past deci¬ sions of the several local governments. In short, a particular colony would only surrender its power to veto the passing of an intercolonial measure

when it was found that the measure in question had reference to the common good of the general

group. To federate at all, however, something in

the way of privilege must be surrendered, and, if

so, it would be difficult to suggest any form of con¬

stitutional change in colonial government less likely to interfere with the present status of the respective colonies of Australasia than the one now under

review. New South Wales would certainly have no cause for jealousy in respect of tariff questions. At present she stands rather aside in this respect, for, while Victoria shows signs of a marked return to a protectionist policy, New South Wales is



V 14

politically disinclined to change her present fiscal duties. A uniform tariff for the group is, there¬

fore, impossible, and nobody knows better than Sir

Henry Parkes and Mr. Eeid that their commercial

supporters would not tolerate any protectionist programme in order to secure the passing of any measure which would prove acceptable to Victoria.

Let me return for a moment to the constitution of these Legislative Councils, which, I admit, are not quite so much exposed to the criticism of

public opinion as the Legislative Assemblies. In Australia accumulated wealth marks, or rather

defines, what is called ' Society;' but it can

hardly be said to fetter the activity to be associated with political affairs. There is also this to be said in favour of the councils: the holders of seats in the Legislative Councils are not there as ' tenants for life,' but they are, as a body, always liable to be recruited by relays of new men. \*

It remains to be seen what are the alternative

proposals which may be submitted to any new convention. Are the colonies prepared to be federated under one governor, with lieutenant-

governors for sister colonies Will they accept one House of Parliament as for one community If so, are the present Ministers of the seA^eral colonies likely to vote themselves ' out of office' in order to give uniformity to a new constitution I question very much if any Premier could be found bold enough to submit such a proposal to

any Legislative Assembly. There is yet another alternative. Are the colonies, except in the case '

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of one favoured colony, prepared to advise her

Majesty that they are willing to carry on their

public business by means of a permanent Colonial

Secretary, and without the aid of any governor from home To a good many persons in Australia who are now in the '

heyday' of their prosperity ' Government House '

is a centre for those persons who are anxious to be deemed as of society. It is true that the Australian rich man can only use one vote in the Legislative Council; but the power of wealth makes itself felt in Australia as well as in England, and I do not think that Australian

society, as now represented by the pent-up wealth of two generations, will consent to limit the circle which is felt in each colony to surround Govern¬ ment House. '

My wife now waltzes and my daughters shall.'

\ With a fair knowledge of the whole of Aus- *r tralasia gained on the Bench, I do not see how

Australasia can be governed, except it be by its

present accepted form of responsible government. Her interests are too various, too vast, too ex¬

ceptional by climate and position, to admit of

government by central authority.

Imperial Federation

I avoid all reference to a subject better known in England than in Australasia by the term of '

Imperial Federation.' The subject comes to us either before or after the proper time for discussion.

* In any case, let us first seek to unite the self-



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governing colonies, and their sympathy, if the word can be applied to practical politics, will do the rest. Perhaps, after all, it is the state of our trade with Australia which needs the most atten¬ tion. There are many persons to be found in

England who will repeat in terms what has already been said to the colonies. ' Look out for yourselves, but give us your trade.' If so, the time is past for selfish sentiment. Sympathy, even for the mother

country, does not exist in the mind of a ready- money customer who finds himself in a dry-goods store. He looks for labour-saving productions; and, if the Americans, the French, and the Germans make it their business to find out what goods are

sought for in distant countries, let us not deceive

ourselves, the customers will go to the cheapest shop. I have lived an official life in seven of her

Majesty's colonies, and perhaps I may be pardoned if I seek to express an opinion, and, if so, let me \*

add, I fear the old country has been caught '

napping.' Let her shake off her slumbers and

sleep no more. I invite the attention of those who take an interest in the subject to consider the

present results of direct trade as between the Australian colonies and the continent of Europe. The particulars, no doubt, can only be obtained from Australia, for the goods to which I would refer do not pass even by way of agency through the English Customs. The returns on the Austra¬ lian side are available to your able local correspon¬ dent in Victoria. I fear it will be seen that we have lost trade. It is true that federation of any

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Character will not supply an immediate remedy; but your willingness to supply information on colonial subjects is a step in the right direction,

-m, and I trust that the well-known administrative

ability of Australian statesmen will solve a difficulty which is worthy of the age which is fast drawing to its close.

Colonial Court of Appeal

There is yet another subject respecting which, with your permission, I would say a few words.

I have just read your article of November 6 on the

subject of a Colonial Court of Appeal. You sup¬

port the suggestion that some change should be

made of a representative character in the present

Privy Council. The article proceeds to say: ' If

there be no remedy for this state of things, the

f^r eventual severance of the judicial system of the Y

principal colonies from that of the United Kingdom would probably be inevitable.' Again:

' The

alternative is felt to lie between this reform and

the creation of independent Supreme Courts in

each of the great groups of colonies.' Let me, from

actual experience, confirm what you say. I have

already stated that, so far back as the year 1881, I assisted in the preparation of a Bill to establish

a Court of Appeal, and that, for reasons not con¬

nected with the importance of the subject, the Bill

was not submitted to the Parliament of the respec¬ tive colonies. But later on, and while I had the

T honour of holding an acting appointment on the



18

Bench of the Supreme Court in Victoria, I attended a meeting of all the Judges of Australasia, when the question was fully considered.

The result of that meeting, so far as it embodied the views of the Judges, was forwarded to the then Lord Chancellor. The Judges, as I best

remember, expressed disapproval of the present system of appeal, but, from motives which I hope you will not fail to appreciate, they abstained from offering his Lordship any suggestions with

respect to the constitution of the Privy Council as a Court of Appeal. It may be that the present Lord Chancellor, who is known to take a sincere interest in colonial affairs, may find an opportunity by which to extend his attention to a remedy for a crying evil. It is hardly a matter for the Colo¬ nial Office, but for the Lord Chancellor. If he does so I venture to think that the great self-

governing colonies will not fail to recognise his

willingness to serve their interests.

Your faithful servant,

HENEY T. WEENFOEDSLEY.

Leeward Islands, W. I., Dec. 12, 1894.

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australian federation: colonial court of appeal : an australian privy council

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