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4-414 (Text)

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Speaker:
author,male,Barton, Edmund,42 addressee
ns1:discourse_type
Oratory
Word Count :
5893
Plaint Text :
ns1:register
Speech Based
ns1:texttype
Minutes
ns1:localityName
http://dbpedia.org/resource/New_South_Wales
Created:
1891
Identifier
4-414
Source
Federation Debates Sydney, March 17
pages
409-18
Document metadata
Extent:
32979
Identifier
4-414-plain.txt
Title
4-414#Text
Type
Text

4-414-plain.txt — 32 KB

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Mr. BARTON: 
I was much struck by the quotations from Mr. Gladstone made by the President the other day. Speaking of the English Constitution, the President quoted him as saying:
More, it must admitted, than any other, it leaves open doors which lead into blind alleys, for it presumes more boldly than my other the good sense and the good faith of these who work it.
Sir Henry Parkes went on to say: 
The success of any constitution framed by man, the success of every constitution, call it what you may, must depend upon the good sense, self restraint, and good faith of those who work it.  That is the interpretation-it is, of course, the only fair interpretation-which the President has put on the words of Mr. Gladstone. That quotation struck me when I read it. I did not hear the address, but I read it as soon as possible afterwards. In relation to this question of the powers of the senate, that quotation has appeared to me to be an argument which applies with singular force to the whole of the views which are held on each side of this question. If the British Constitution itself, so elastic as it is, is only a workable and smoothly working machine, in proportion as those who work it are self-reliant, self-restraining, and discreet, of course it is not to be expected that any other constitution labouring, as any subsequent constitution must labour, under the misfortune of being partly written, will work with thorough satisfaction unless subject to the same-shall I call them-lubricating influences. But I take it that there is a great deal more than that in the meaning of this quotation, because, turning again to what the President said:Whichever way we frame our constitution the rule of discretion and good sense that guides us must inevitably be the same.Although the argument appeared to be put forward mainly in laudation of the British Constitution and to a certain extent in disparagement of the propositions that have been made-that is, which had been then made in debate and which have now taken a more specific form in this Committee-still the force of the argument ought to be the same whichever way we frame our constitution, and the words themselves uttered, I think I may fairly say, the strongest rebuke to all those, whichever place they may come from, who have made threats that they will leave as in our deliberations. Surely if that is the rule under which constitutions are to be worked, it is the rule under which they are to be made. According to the prescience which the experience of Mr. Gladstone, as here denoted, gives us, it is with that prescience we know that, however we may err in allotting too much or too little power to this or that body, we still have the good sense of an English-born race to carry us through, and we ought, at any rate, to exhibit that amount of good faith in each other which should forbid us from saying if you do not accept this or that proposition we will leave the Convention. It does seem to be scarcely a worthy, and scarcely a dignified, position for any body of representatives, sent here for the purpose of assisting to frame a constitution, to take up, to resent, as some appeared to resent, the investigation of their arguments. Surely it is for the investigation of arguments that we are here before we decide. And when gentlemen tell us, when we investigate their arguments somewhat more closely than is agreeable to them, that the next thing we shall have to investigate will be the appearance of their carpet bags, it does seem that they are, not making too large a demand on our patience; but exhibiting a spirit at variance with that spirit of compromise which they have all professed to have so much at heart.
Colonel SMITH: 
The compromise is all on one side!
Mr. BARTON: 
It is like the Irishman's reciprocity-it is all on one side.
Colonel SMITH: 
We are to do all the compromising!
Mr. BARTON: 
The hon. member says he does all the compromising. I do not think that is so; but he may have compromised his case to some extent yesterday by his speech with which I will deal presently. Any other idea of compromise does not seem to have entered his head. If we are to start on what has been called the do ut des, or give-and-take principle in forming our constitution, I venture to say to this Convention we are beginning to  make threats a great deal too early, and I, for one, having the great confidence that I have in our hon. friends from Victoria, and other hon. members from elsewhere, have not the least expectation, until the Convention has done its labours, of seeing the pattern of their portmanteaux. Now, there was another portion of the President's address which seemed to me to throw a good deal of light upon the manner in which the adjustment of the powers of the two houses of the general government should be proceeded with. The President told us that in the senatewe seek to create as lofty, as dignified, an upper chamber as we can, and we seek to create it as nearly on the British model as we can.Whether the latter portion be entirely accurate or not, I shall not undertake to say for the moment, because I see certain amendments on the business-paper as to which I may have to express an opinion at a later stage, and which may throw some doubt on the statement. We are also told that a senate ought to possess the "elements of a moral and just conservatism," and the President interpreted those elements in this way. He said that they werethose elements arising from experience, from matured judgment, from public probity, from steadfastness of purpose, and from the trust which is imposed in certain individuals as the growth of time.That is a collocation of a large number of the very highest attributes that could repose in legislators, and it being the high ideal which our President has, what struck me as being, at any rate, the subject of some speculation, was this: Why, after having created such a body as this for the avowed object of conserving state interests among other things, should we propose to degrade this body by refusing them in the greatest emergencies the right to stand by those very interests? If you do this, you will have either an altogether degraded senate-a senate which will not be the object of any man's ambition-or, if you call to that senate, if you succeed in getting into it men such as the President has so worthily and eloquently described, what will be the result? If they are a body of mature judgment and experience, if they are a lofty and dignified body, is it a spectacle for a free constitution that we should at any time see them sitting with folded arms while the interests which they were elected to guard are passing away for ever? Surely it is not making a constitution if we proceed in that way. If we proceed to work up to and to realise an idea of this kind, and then having created almost the summum bonum of legislative power, knock the very power out of its hands by a couple of words in a federal constitution, surely we rather mock than make a constitution. That is the view which struck me as one which was, at any rate, tenable from the remarks made by the President. After all, it comes back to the quotation from Mr. Gladstone. The working of any constitution will depend upon the discretion and good sense of those who frame it, and live under it, and it is not because that discretion and good sense have had to be invoked countless times for the preservation of a constitution-I use the term with the utmost reverence-of the loose character of the English Constitution, that we are to argue, that when we make a constitution of a more defined character that good sense will fly away if you import a federal government. Surely that is not a good deduction from a knowledge of the race to which we belong, or from the work which we ourselves have done in the making of constitutions. But we are told that we are now attempting to create two houses having an equal power to deal with money bills as they think fit. I venture to say, however, that none of us are in any way seeking to confer with  respect to money bills, an equal power on the two houses. Those who have been strongest in their advocacy of this conservation of state interests to the mutual satisfaction of the parties to this compact have admitted all along that there is an ultimate power which will vest in the hands of the people. They begin with the power of origination, which in itself, as any one's experience of parliamentary procedure will tell him, as a sole power involves practically the ultimate control. But it has not been contended by the strongest advocate of state rights here that under all circumstances and in all events the veto which the senate may impose in whole or in part is to be immovable and unchangeable.
Mr. MUNRO: 
Yes!
Mr. MOORE: 
No!
Mr. BARTON: 
It has not been contended.
Mr. MUNRO: 
Yes, by everyone on that side!
Mr. BARTON: 
I say that it has not been contended-at least that is my view. Every one of the speakers, so far as I can understand his meaning, seemed to couple his strong assertion of the necessity of guarding these interests with the allowance that when matters came to a deadlock or a crisis, there must be some mode of settlement, and most of them concurred in saying that in the ultimate resort there must be some method provided by which the people could decide either directly or otherwise.
Mr. WRIXON: 
That was said only by the hon. member, Sir John Bray!
Mr. BARTON: 
It is the impression which I have gained from the debates, and I think that if the hon. member, Mr. Munro, had listened to and read these debates with, perhaps, a little less of the idea that hon. gentlemen opposite were attempting to make some fixed and immovable thing which would be as hard to get rid of as one of Cleopatra's Needles, if he thought for a moment that those who were opposed to him were nearly one and all conceding that there must be at any rate some means of removing friction and terminating deadlocks, I think we should not have had this recourse to carpet bags instead of argument. It is a very great mistake to say that we are attempting to constitute two co-equal houses. There is no one here whose remarks I can interpret in that sense at all. Certainly, strongly as I endeavoured to express myself on the subject, I have no consciousness of having attempted to assert that any such unalterable position should be taken up, nor have I gathered the same from the remarks of any one else who has taken part in the debate. And now I would ask those who have given utterance to something like extreme intentions on a supposition such as I have described, to pause a minute to see, whether there is not amongst us some means of arriving at a reasonable conclusion which will not be all giving on one side or all taking on the other. It is not, as it has been described, a newfangled proposal that has been made. It is not, as it has been described, something entirely un-English and utterly opposed to the development of constitutional government, because, although I, for one, agree with the President in saying that we are not here to make any mere transcript of the American Constitution, I think that we must concede that it was a highly English population which framed the American Senate; and we must all concede that that constitution was framed with an intimate knowledge of the constitutional history of the country from which its authors had sprung and with, so far as it might be, a desire in what they considered safe limits to imitate the model that existed for their emulation and their wonder. But it is not proposed to set up the American Senate as part of the constitution now to be framed. The American Senate has powers very much wider and  very much larger than any that are attempted to be given by any proposal that has been made in this Convention. To begin with, the limitation of the coordinate rights of the American Senate is purely with regard to bills for raising revenue, that is to say, taxation bills; and with regard to bills of appropriation of the expenditure-as far as the Constitution is concerned, there is absolutely no limit upon their originating or co-ordinate powers. That has never been proposed or suggested for a moment, nor has it been suggested that the senate should be the depository of these very large powers which accompany its existence in the American Constitution. I refer to certain rights with regard to impeachment, and to certain other executive rights which here there is no intention and no dream of conferring upon such a body. But it is sought to be shown that where the citizen has to be represented, first through the national assembly, and next through another chamber, that where, his representation in those two bodies is the sum total of his representation, to take away any portion of that full sum of representation is not in furtherance of the spirit of democracy, but it is a lopping down of the representation to which the democracy ought not to consent. That is the position-and it is not an "extremely conservative" position-which those who contend for a fair measure of power in the senate are now occupying. If a citizen is to be represented-and we have it on high authority-the authority quoted the other day, of Sir William Jones-that the only men who can constitute a state are high-minded men, who can see their rights, and, having a just conception of them, dare maintain them-if that is the definition of a state, then the representatives of such a state are representatives of such men, and if the representatives of the state in the senate are the representatives of such men, and such a body as the President has described them, then it is wresting some of the citizen's power of representation out of his hands to say, "As much as the house of representatives may do anywhere else, it shall do and may do here; but, as much as under any other federal constitution you know of the other chamber may do, it shall not do." That is not giving his full sum of representation; it is taking something away; so that after all, the whole process that is proposed has nothing un-English about it, because it is an attempt to center a full measure of representation, instead of taking any of it away. That also lets some light upon another branch of the question, because it has been said that there is some analogy between the senate proposed and other upper chambers; and my hon. friend, Mr. Deakin, said something about the experience of constitutions in British countries. Now, the experience of constitutions in British countries, with the exception of Canada, is not the experience of federation at all, and so far as it applies to Canada there are provisions in the Canadian Constitution which tend at present, and may tend strongly ultimately, to convert that constitution more into an amalgamation than a federation, to minimise the powers of the states, and to exalt those of the general body. Now, it seems to be an accepted concession on all hands that the powers to be given to the federal body by this Convention, so far as it can induce the concurrence of the respective parliaments, are to be, without speaking of the American or Canadian system at all, rather those powers which are expressed as necessary and incidental to the purposes of federation, and not those which come within the large range of powers included in such a clause as exists in constitutions giving the residuary power to the general body. If that is the intention, you cannot carry it out without giving adequate power to both your houses, because, by so much as you  depart from that, if you give too much power to the senate, you tend to exalt the federal idea to the suppression of the national idea; and if you do the converse, as the hon. member, Mr. Deakin, I am afraid, wishes to do, you tend to exalt the national idea in the direction of unification or amalgamation, to the destruction of the federal idea. That, I am sure, is not the mandate which hon. members bear from their respective parliaments; it is not the mandate which any one of our parliaments has given us. We are told in that mandate-reading behind the words in which that mandate is couched-we are told that the kind of federation which Australia will tolerate, the kind of federation which I hope it may grow to love, is that which does not suppress or tend to minimise the powers of the several states beyond those matters which are expressly taken away from them. Then, I submit that by so much as you diminish that portion of the sum of representation of a citizen which lies in the senate, you will exalt the national and diminish the federal principle; by so much as you topple over on the other side you are doing precisely the converse. Then, what you have to do is to see that you do justice, and to do justice in this matter can never be consummated by bringing about such an engrossment of power into the hands of a national body as would result in the minimising of the states who have never given any such mandate to their representatives. On that ground we are entitled and bound to report a strong senate to our parliaments as a desirable provision in the constitution. I submit that if we take away from the senate the power of vetoing money bills, unless they veto them altogether, we shall so cripple that body, that we shall not be able to report to our parliaments that which I believe they want. It is all very well to talk about the struggles that have taken place. It has been said that the whole of the struggle in England has been "to wrest from irresponsible power the right to deal with taxation and the revenues of the country." There is no endeavour to give to an irresponsible power the right to deal with taxation and the revenues of the country. If there is anybody who doubts that I would refer him to the resolution which we are considering, and which, referring to the senate, says:So securing to the body itself a perpetual existence combined with definite responsibility to the electors.The doctrine of the denial of interference in any way with money bills springs out of the maxim that taxation and representation shall go hand in hand. Where you have two representative bodies, then to the extent of the proportion of representation which you give the second chamber, you are entitled, having faith in that maxim to give it the power of interference with money bills. Now we are told that such a provision as this cannot be grafted on to any constitution in a British land. I would ask the hon. member, Mr. Clark, what he thinks of that, because, if I remember rightly, there has been a power of amendment in the Constitution of Tasmania; and although there may have been little tiffs, as there are sometimes between married people, still, the constitution of that country on the whole has worked well There has been no deviation from the principle of responsible government, and it exists with a power in its upper chamber-too large a power, perhaps, to confer on an upper chamber under the circumstances-which has not tended to the Subversion of responsible government, and which has certainly not been any impediment to the smooth and constitutional working of it. Therefore, if we appeal to experience, we have, at any rate in this direction, one clear experience.Mr. BURGESS: 
It has been for the general good!
Mr. FYSH: 
South Australia also!  
Mr. BARTON: 
In South Australia there is a degree of experience in the same direction; but I am not going to enter into that matter. In Tasmania there is a perfectly well-defined experience in the same direction, that is, as connected with the working of responsible government, and that of itself seems to solve a great many of the difficulties which hon. gentlemen have felt when they have suggested that the giving of powers of amendment or veto in detail to a second chamber is incompatible with the working of responsible government. It cannot be so. We have proved that it is not so in the working of the matter.
Mr. MUNRO: 
Would the hon. member say that the South Australian upper house can alter the details of an appropriation bill?
Mr. BARTON: 
I was not saying anything of the kind. I was appealing to the Constitution of Tasmania which contains the power of amendment.
Sir JOHN BRAY: 
Does the hon. member say that it expressly contains the power of amendment?
Mr. BARTON: 
I believe that there is some power in that direction.
Sir JOHN BRAY: 
Does the hon. member say that the constitution expressly vests the power of amendment in the council in Tasmania?
Mr. BARTON: 
In Tasmania, if I recollect.
Mr. FYSH: 
The power is an implied one, but the practice is such!
Mr. BARTON: 
The point is not a very important one, because the question is as to the working of responsible government where the power of amendment is exercised, and if the upper chamber in Tasmania has been in the habit of exercising the power of amendment-sometimes the upper house have done it even here, and have survived, notwithstanding all they have heard by way of withering denunciation of themselves-
Colonel SMITH: 
That is the worst of it-they do survive!
Mr. BARTON: 
That is a matter of opinion. I always notice that the time of practical politicians generally comes when they have done representing such places as Ballarat, and take a seat in the nominee, or upper chamber; and we always find that on those occasions there is a singular silence on subjects of this kind.
Colonel SMITH: 
We have no nominee chamber there. It is elective!
Mr. BARTON: 
I know it is, and I recollect that a very popular leader, under whom my hon. friend served, has found occasion of late years to sigh for a nominee chamber in the interest of democracy.
Mr. MUNRO: 
I would not allow him!
Mr. BARTON: 
I know that my hon. friend, Mr. Munro, would not allow him if he could help it. My hon. friend, Mr. Munro, when we were yesterday discussing, and he was saying something on the subject of those powers, said, "We have the representatives of the larger colonies joining to insist on this." Someone made an interjection with reference to the delegates of New South Wales, and his answer was, "Those others are members of the Legislative Council."
Mr. MUNRO: 
In Victoria!
Mr. BARTON: 
I thought with regard to New South Wales too.
Mr. MUNRO: 
I said nothing about New South Wales!
Mr. BARTON: 
It does not matter whether it applies to New South Wales or to Victoria. But I should like to know whether my hon. friend, Mr. Munro, is under the impression that the argument of a member of this Convention, duly sent here under powers which he recognises, is weakened by the fact that he belongs to, either a nominee or an elective upper house. If he thinks that the argument is weakened, and thinks less of it for that reason, I ask whether he imputes a motive to those who belong to nominee chambers?  
Mr. MUNRO: 
I was not talking of nominee chambers at all!
Mr. BARTON: 
I will say with regard to elective chambers. Has the hon. member found that the advocacy of the principle of representation of the states in fair strength in the federal senate is confined to members of the elective house in Victoria? Has he found that in his reading, or that the large body of authorities who have dealt ably with this question, and whom one cannot read too closely, are strongly in favour of the granting of such powers to second chambers where the federal principle prevails, and have added their own need of admiration of the ability, the vigour, and the touch kept with the people on the part of the Senate of the United States. Without talking of making any mere transcript, let us look at this one fact-that, with a people perhaps the most democratic in the world, we find that their veneration and respect for that chamber, their confidence in it, is not only as great as it is for what is called the popular chamber, but is even greater. That is a sufficient answer by itself to any argument based on the mere question of the support of a certain conviction by a member of an elective upper house. But, going back from that, I come now to what was said by my hon. friend, Colonel Smith. My hon. friend expressed a great deal of dread as to what would happen if the smaller colonies were intrusted through their representatives in the senate with the powers here claimed; and he pointed out that, with respect to other matters, he was in accord with the resolution, which offered them equal representation on the senate; but be wished to confine their powers with regard to money bills. Well, if he has confidence in their patriotism in this regard, and if he admits that under the resolution to which he has assented, or a portion of which, at any rate, may be said to have passed its second reading, they are to be representative bodies-representative of the states which send them there-why should he for a moment decline to place in there hands with regard to money legislation some modicum of the power which he would give them with regard to general legislation?
Colonel SMITH: 
A modicum, but not the whole!
Mr. BARTON: 
The hon. member is willing to give them that which is practically of no effect. I may as well point out now what is so frequently the result. I am not going to argue from what I am about to say that upper houses elsewhere should have these powers of amending or vetoing in detail money bills, because that is beside the present question. But we have found that where that power is denied the friction is greater than where the power is granted, and the necessity of the case points out why the friction is greater-because, where the power is denied, the immense probability in a large class of cases of money bills is that, where there is a matter of principle involved, affecting rights which they think should be conserved-this is a very important matter when you come to consider it with regard to a federal senate the result of confining the power of veto to veto en bloc is this: either a good measure of public policy is lost, because without rejecting it the second chamber cannot preserve the rights which it has in its keeping, or the measure of public policy is passed for the sake of its policy; and in passing it, the right or principle which should be conserved for the public safety is utterly sacrificed. That result cannot be good, for in seeking federation there would be sacrifice either of the public policy of the nation or of the interest of the state, and if there is a way out of  the difficulty by which that sacrifice need not occur, why should we not adopt it! I do not say any more than the hon. member, Sir John Bray, says, that this power of veto should be final and conclusive. Let us set our ingenuity to work; let us appoint a committee on that subject if need be, to find out some means of accommodating this conflict. But do not let us talk about packing our portmanteaux the first difficulty we see. When people see lions in the path the best thing for them is to drop their portmanteaux and not to pack them.
Colonel SMITH: 
The hon. member cannot get over the carpet bag!
Mr. BARTON: 
I cannot. When I have heard my genial friend, Colonel Smith, speak of his enjoyment of his stay in Sydney the idea of his taking flight in that way causes me more astonishment than I am prepared to express. There is one thing I should like to instance as throwing considerable light upon this question. Supposing that some of the threats we have heard were fulfilled. Supposing, for instance, that a jot too much power in the estimation of my hon. friend, Mr. Munro, and his colleagues, were conferred on the federal senate-that jot which was a little bit too much for them-and that this exodus did take place, and we were unable to form this federation from the want of our hon. friends. What would be the result of that? It cannot be supposed that these colonies would keep apart always. I am not going to threaten my hon. friend, Mr. Munro, as a certain other colony was threatened yesterday, with the formation of another and an outside federation. But I am going to suppose this case: that thinking better of the policy of entire isolation some five or six years hence-I hope, of course, be will still be in office, and that there will be a coalition ministry including my other two hon. friends-Victoria has always been supposed to be the colony most eager for federation; and supposing that it became again ready for federation with New South Wales, after the sudden death of the principle in its heart, after the space of five years, what would happen then? By that time, at the present rate of increase in the population of the respective colonies, the population of Victoria would be 1,250,000, and that of New South Wales, as nearly as possible, would be 1,500,000. A popular assembly, formed at the ratio of one member to every 25,000 persons, would give sixty representatives to New South Wales and fifty representatives to Victoria. Now, supposing the two colonies came to terms, and had a little convention of their own, just as we are holding our Convention to-day, but on a much smaller scale. We should then have the question of the powers of the senate taken into consideration. It would, of course, be conceded by New South Wales, as it is conceded to-day, that the representation in the senate should be equal; but if my hon. friend, Sir Henry Parkes-supposing him then still to be leading the cause of federation, as we all trust he may be if it is not accomplished in the meantime said, as he would say to-day, "Your senate may have the power of rejection. The senate in which we are equally represented may have the power of rejection; the house of representatives shall have the sole power of origination, and there shall be no power of amendment, what would be the retort of Victoria? "Your sixty representatives in the lower chamber would swamp our fifty, and where should we be?" I imagine, whether my hon. friend remained in office until then or not, we should have a very prompt recognition-not only a recognition, but a very prompt and sturdy assertion-of the principle of state rights as far as it is involved in giving the power of veto in detail.
Mr. MUNRO: 
Not a bit of it!
Mr. BARTON: 
My hon. friend thinks not. Let him wait until he comes to that  position, if be ever does. I would suggest to him that instead of raising that difficulty, be should accept a reasonable solution of this question. Let us appoint a select committee-
Mr. MUNRO: 
Let us have it!
Mr. BARTON: 
Let us inquire calmly into the matter, and let us have no more talk of catching the express in a hurry.
Mr. MUNRO: 
No one talked about that but the hon. member and the colonel!
Mr. BARTON: 
I have not the least doubt that the colonel is a remarkably faithful representative of his colleagues. I therefore submit, taking this matter as a whole, that while reasonable compromise should be acceded to, there should still be preserved that in one of these chambers which will represent the federal principle some power of dealing with money bills to such an extent as will arrest the course of legislation, if need be, in favour of state interests, and in the course of arresting it will not cause the friction, the irritation, and the jealousy which will result from the losing of large measures of policy for the sake of an amendment. I do not throw this out as a suggestion; but suppose that the power of veto in detail were not exercisable after the specific matter on which it was exercised once had been made the subject of a general election, so that after the ascertainment of the popular will a bill were sent up again involving the same matter. I do not suggest it as the best way of settling the difficulty, but it is one suggestion which no doubt will present itself to a committee. Suppose it to be accompanied also by, some provision, of this kind: That lest the non-intervention of a general election should cause continued friction there should be no veto in detail for a greater number of times than twice. I do not say that would settle the question. I do not say that, on thinking it out, it is a proposition to which I should be ready to accede. I say it is one of a number of propositions which might well engage the attention of the Committee, and that, therefore, we ought not to be keeping our backs too stiff upon this matter. Sir, we ought to entertain a reasonable probability, when we are taking this matter a step further, which we may well very soon do, that a compromise will be effected which will enable us to deal with other lions in the path, and will not force us to go back to those who have sent us here to tell them that we have falsified their hopes and met with a failure disastrous in itself, and all the more ignominious because it arose from mere irritation and jealousy.

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