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In this article, I present the results of a study into the extent to which property figured as a constitutional and political concept in the drafting of the Constitution at the Australasian Federal Conventions of the 1890s. Property is a fundamental concept of western legal orders and a powerful political and rhetorical tool. Accordingly, it is important to understand both how it affected the drafting of the Constitution and how it is reflected in it. In Section I, I outline the process by which the Constitution was drafted by the Australasian Federal Conventions in the 1890s. In Section II, I identify the constitutional provisions in which 'property' and some related terms appear and assess the extent to which the Conventions shed light on the meaning of those provisions. In Section III, I discuss the striking ways in which property, as a political concept, influenced debate at the Conventions on constitutional provisions that do not themselves deal with property. In the final section, Section IV, I attempt an overall assessment of the significance of the concept of property at the Conventions.
The Australian Constitution was drafted at a series of meetings during the 1890s (I refer to these variously titled meetings as 'the Conventions' and the delegates to the Conventions as 'the Framers').
There is no space here to record all the details of the Convention process.[1] It is sufficient to note that, ultimately, the draft Constitution Bill produced by the 1897–98 Convention (amended somewhat by the colonial premiers) was adopted at referenda in each of the States and was enacted by the Imperial Parliament (again after some mostly minor amendments). It came into effect on 1 January 1901.
The records of the debates at the Conventions ('the Debates') and the draft Constitution Bills produced by the Conventions were published in six volumes during the 1890s.[2] They form an important record of the federation movement (at least in its public and official manifestations) and of the Constitution it produced.
The Debates and the draft Constitution Bills also have a legal significance. The High Court has confirmed that they may be used in a limited way,[3] along with other historical materials, in interpreting the Constitution:
Reference to the history of [constitutional provisions] may be made, not for the purpose of substituting for the meaning of the words used the scope and effect – if such could be established – which the founding fathers subjectively intended the [provisions] to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged.[4]
Accordingly, there is a rich and growing legal scholarship that focuses on the Debates and assesses the extent to which they can assist in resolving current constitutional problems.[5]
It is important to recognise, however, that the Conventions and the Debates are not coterminous with the federation movement and that they offer no more than one slice of federation history. However, for constitutional scholars, it is an important slice. In practice if not in strict theory, the Debates and the draft Constitution Bills have had greater interpretive significance than most other aspects of federation history. It is debatable whether they identify any more clearly than other sources 'the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged'.[6] But they are more like the lawyers' familiar tool of a text that is complete, canonical and authoritative. That is, the Debates are complete in that they encompass all of the matters dealt with in the Constitution and substantially all of its text; they are canonical in that their form and content was fixed in the 1890s by the shorthand notetakers and the publishers; and they derive authority from the statutory foundations of the Conventions, their (mostly) democratic and charismatic make-up and their substantial authorship of the text ultimately adopted by the people and enacted by the Imperial Parliament. Although lawyers must deal with the internal contradictions and inconsistencies of the Debates, those difficulties may appear less significant than the open-endedness and multiplicity of the wider historical record. Moreover, as an historical resource, the Debates are a useful record of the intellectual milieu that produced the text of the Constitution, if not of the whole federation movement. For these reasons they are a worthwhile object of study.
Accordingly, it is against this background that I turn to consider the historical and legal significance of property as it was discussed at the Conventions.
In this Part, I identify the constitutional provisions in which 'property' and some related terms appear, in preparation for Parts IIC, IID and IIE, which assess the extent to which the Conventions shed light on the meaning of those provisions.
Five sections of the Constitution refer expressly to 'property'. The two sections of greatest significance today are ss 51(xxxi) and 114.
The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.
A State shall not, without the consent of the Parliament of the Commonwealth ... impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.
Three other provisions are of limited significance today:
Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States.
The Inter-State Commission does not exist (it was abolished for the second time in 1989) and therefore s 104 also has no continuing operation.[7]
As well as the direct references to 'property', the Constitution also contains four linked provisions that together deal with the related concepts of 'land' or 'territory'.
The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney.
Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor.
The Parliament shall sit at Melbourne until it meet at the seat of Government.
The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.
The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes.
In short, of the provisions which remain in operation or are of current interest:
I discuss the provisions in this order in the following Parts, after first considering one place in the Constitution where property is not mentioned.
Section 51 enumerates the powers of the Commonwealth Parliament. It contains no general provision with respect to property, civil rights, land law or public lands. As a result, regulation of these subjects remains largely a state responsibility.[9]
It was not inevitable that the States retain responsibility for property or land law after federation. For one thing, one of the models on which the Australian framers drew, the Canadian Constitution of 1867, gave the central legislature the power to make uniform laws with respect to property and civil rights for three provinces.[10] For another, in 1857, a Victorian Parliamentary Select Committee had concluded that there was 'but one opinion' on 'the ultimate necessity of a federal union' and specifically drew attention to the need for uniform 'land systems'.[11]
Nonetheless, the Conventions rejected, without debate, the option of enabling the Commonwealth Parliament to make uniform property laws. Sir Samuel Griffith, perhaps the dominant figure of the 1891 Convention,[12] baldly stated that under Federation the States would retain their legislative autonomy in relation to a list of subjects including 'all the laws relating to property and civil rights, the whole subject of public lands and mines [and] registration of titles'.[13] Giving the Commonwealth Parliament power with respect to property and civil rights simply was not considered seriously; neither was giving the Commonwealth power with respect to the colonies' public lands.[14]
Moreover, when it was suggested that other Commonwealth powers might have had an incidental effect on public lands, property and civil rights, Griffith and Barton, among others, argued and assured the Conventions that these powers should not, and sometimes could not, have this effect.[15] And as founding members of the High Court they were able to ensure that this remained the constitutional orthodoxy until the Engineers Case in 1920.[16]
At one level it is clear why the Conventions took this view and the Framers did not include property as a federal legislative subject-matter in the Constitution. Most of the Framers desired a relatively small Federal government that had power only with respect to matters 'properly federal'.[17] They sought a 'federal union of sovereign states' rather than a 'national government'.[18] Throughout the Debates and the contemporary material, there is an assumption that the colonies would remain significant political entities as States of the Commonwealth. In particular, they would retain their sovereignty[19] and not be reduced to mere municipal governments.[20]
The link with property arises because power to regulate land and land use appears to have been an important part of the then contemporary vision of States as significant political entities. Without this power, they would be 'mere municipal governments' (I develop this point in Part IIE below.) Accordingly, it was virtually beyond question that the states would retain responsibility for property, civil rights, land law and public lands if they were to remain the significant political entities the Framers anticipated.
Moreover, by the 1890s, the concerns of the Victorian Parliamentary Select Committee in 1857 about the need for uniform land systems[21] were quite remote. From 1858, the Torrens system spread rapidly throughout Australia, producing broadly uniform land titles legislation.[22] Moreover, in 1857, Victoria and Tasmania had only recently been separated from New South Wales and, with South Australia, had just received self-governing status; Queensland would remain part of New South Wales for another two years before it too became self-governing.[23] With self-government came the power to determine land policy, including policy about the grant or sale of Crown lands.[24] The novelty of the power may have contributed to the concerns of 1857. Whatever the source of the concerns, over the next forty years, the colonial parliaments separately addressed the problems of providing secure tenures for squatters on Crown land and opening the land up for selection by others. Their policies were not always successful and they changed regularly. But by the 1890s the differences between the colonies do not appear to have been regarded as cause for concern and certainly not as requiring a national solution.[25]
Given these developments and the general pre-commitment to the states as significant political entities, it is hardly surprising property remained a state responsibility.[26]
I now turn from the omission of property as a subject of Commonwealth legislative power to consider the provisions of the Constitution that do deal with property. The first group of these provisions, ss 51(xxxi), 85 and 125, provide for the Commonwealth to acquire property from the States; s 51(xxxi) also provides for acquisitions from private persons.
The debate on what was to become s 51(xxxi) was brief and came close to the end of the Conventions. Barton moved the adoption of text equivalent to s 51(xxxi) on 25 January 1898, in response to concerns that the other provisions of the draft Constitution would not be sufficient to enable the Commonwealth to acquire the land it needed for public purposes. Barton commented that, although s 85 would allow for the transfer of parts of the State public service and s 111 would allow for the (consensual) surrender of territory by States, there was no general power of acquisition. Barton invited comments from other Framers on whether the express incidental power (now s 51(xxxix)) would fill this gap.[27] In an oblique response, Quick pointed out that the United States, Canadian and Swiss constitutions all explicitly authorised the central legislature to enact compulsory acquisition legislation, at least for the acquisition of land required for military purposes.[28] More to the point, Isaacs asserted that the express incidental power would authorise such legislation.[29] Quick (anticipating the view later expressed in his and Garran's Annotated Constitution of the Commonwealth of Australia[30]) and Glynn then insisted that it would not; accordingly they pressed for an express power authorising acquisition legislation.[31]
Typically, the debate did not resolve the point of legal principle. Rather, it focussed on three objections to Barton's proposal:
Barton answered Turner's first objection clearly enough. Without a power such as that conferred by s 51(xxxi), any acquisition would be carried out by contract and would be more expensive than a compulsory acquisition carried out under s 51(xxxi) where the compensation would be determined by arbitration or court proceedings.[36] However, Barton did not respond to Turner's second objection or to Isaacs' objection; rather, at their suggestion, he withdrew the proposed section for further discussion outside the chamber.[37]
The Debates do not reveal whether any such discussions took place and, if so, what was said. The matter returned to the chamber several days later when O'Connor moved the adoption of what eventually became s 51(xxxi).[38] O'Connor simply said:
Some question has been raised as to whether the Commonwealth has the power inherently of acquiring property under just terms of compensation; that is to say, whether it is not driven to bargain and sale only. It is quite clear that there must be a power of compulsorily taking property for the purposes of the Commonwealth.
... And this clause is framed to provide for that.[39]
In answer to a question about the terms on which acquisitions would be carried out, O'Connor said that it was not appropriate to provide in detail in the Constitution for the actual method of acquisition: that was a matter for legislation.[40] The clause was then adopted without further debate.
What can be drawn from this perfunctory discussion? Clearly enough, it provides little assistance in interpreting s 51(xxxi). The section was adopted without amendment at the last Convention, so it is not possible to trace successive drafts through the draft Constitution Bills, seeking to identify significant alterations and omissions. There is nothing in the Debates that identifies the contemporary meaning of 'property' or 'acquisition' or 'just terms'. There is little that takes the reader beyond the words of the section itself in identifying 'the subject to which [the] language' of the section 'was directed'.[41] The examples given by the speakers of the purposes for which property could be acquired under the section (military facilities,[42] a federal court-house or a federal custom-house[43] or a leper station[44]) cannot limit the generality of the purposes comprehended by the language of the provision: 'any purpose in respect of which the Parliament has power to make laws'. Nor can the speakers' apparent assumption that the property to be acquired would be land limit the generality of 'property' as the subject-matter of the section.[45] And even if their examples and assumptions could in principle have been used to limit the scope of the section in this way, the High Court has long taken the view that 'property is the most comprehensive term that can be used'[46] and that it includes for the purposes of s 51(xxxi)
every species of valuable right and interest including real and personal property, incorporeal hereditaments such as rents and services, rights of way, rights of profit or use in land of another, and choses in action.[47]
It appears to be too late to retreat to the narrower conception of the section that was apparently intended by the Framers.
One thing is clear, however. The Debates do not support the assertion that the section was modelled on the American Takings Clause. That assertion was made by Dixon J in Andrews v Howell:
The source of sec. 51 (xxxi.) is to be found in the fifth amendment of the Constitution of the United States, which qualifies the power of the United States to expropriate property by requiring that it should be done on payment of fair compensation.[48]
Whatever support for this view there might be elsewhere, there is no evidence of it in the Debates.[49] Not only is the language of the sections very different,[50] so too are their respective historical contexts. The Australian colonies had not undergone the American experience of revolution and its aftermath. Following the revolution, newly powerful majorities confiscated the property of the British and their allies, introduced debtor-relief laws and required that depreciated paper money be accepted in payment of debts.[51] Moreover, James Madison's fears for the property rights of the minority if political power were entrusted to the propertyless majority never assumed major significance in the Australian Debates;[52] and to the extent that such issues were discussed it was in the context of the powers and composition of the Senate rather than in creating judicially enforceable barriers to the redistribution of property.[53] Accordingly, there is no comparison with the background to the American Constitution and Bill of Rights. The modern tendency to regard s 51(xxxi) as a broad guarantee of individual rights has no basis in the Debates.[54]
This point is reinforced when the late introduction of s 51(xxxi) is contrasted with the significantly longer history of s 85. At least from the 1891 Convention, acquisition of property under s 85 and its antecedents was linked with an obligation to pay compensation. The 1891 Draft Bill provided that if a State and the Commonwealth could not agree on the amount of compensation payable for property acquired by the Commonwealth when a State government department was transferred to the Commonwealth, 'the value thereof shall ... be ascertained in the manner in which land taken by the Government of the State for public purposes is ascertained under the laws of the State'.[55]
This compensation formula appeared in substantially the same form in the 1897[56] and 1898[57] Draft Bills. However, from 1898, a distinction was drawn between (a) property exclusively used in connection with the State government department and (b) property used, but not exclusively used, in connection with the State government department. In the Constitution as enacted, as in the 1898 draft, s 85(ii) provides that the 1891 compensation formula (based on the compensation payable under State compulsory acquisition laws) only applies to property of the latter kind. Section 85(iii) provides separately for compensation for property of the former kind: 'if no agreement can be made as to the mode of compensation, it shall be determined under laws to be made by the Parliament'.[58]
In short, compensation was required by the Draft Bills prepared by the Conventions whenever the Commonwealth compulsorily acquired property from private individuals or the states.[59] Three standards of compensation were employed: the 'just terms' required by s 51(xxxi) of the Constitution; the standards fixed by state compulsory acquisition legislation required by s 85(ii); and the standards to be fixed by federal legislation required by s 85(iii).[60] In light of this pattern of providing compensation when property is acquired compulsorily, and the longstanding British and colonial tradition which it reflects,[61] it is difficult to fix on an American constitutional provenance for one of these provisions (s 51(xxxi)) and attribute to the Framers an intention that it reflect an American constitutional guarantee, particularly one cast in significantly different language.
Ultimately, then, the Debates provide little assistance in resolving the current problems of s 51(xxxi) jurisprudence.[62] Not only is the debate on this section brief and largely unrevealing, the High Court has long since moved beyond what does emerge as the apparently intended operation of s 51(xxxi). Nonetheless, this fragment of debate on s 51(xxxi) does provide a useful illustration of some more general features of the Debates. In particular, the Framers' assumptions about property and constitutionalism are unstated and unexplored. There is no discussion of what property is; why compensation is appropriate when the Commonwealth acquires property; or whether this requirement should be entrenched (apart from Turner's objection to doing so[63]). These issues lie firmly in the background. The debate occurs at a level of generality appropriate to reaching political agreement on a constitution rather than one appropriate to reaching philosophical agreement about the issues to which the constitution is addressed. This example reinforces the need to be cautious in attempting to rely on the Debates to resolve interpretive problems that reflect disagreements about the scope and purpose of particular provisions.
The next provision of the Constitution that refers to property is s 114. This section prevents the Commonwealth and the States from imposing taxation on the property of the other. The initial draft (so far as is relevant here) only prohibited the States from imposing taxation on 'on any land or other property belonging to the Commonwealth'.[64] The provision was made reciprocal (prohibiting the Commonwealth from imposing tax on any land or other property belonging to a State) in 1891 on a motion by Griffith and with brief discussion of only one question.[65]
In 1897, the clause was introduced in a slightly amended form: the subject-matter of the proscribed taxation became 'property of any kind' rather than 'any land or other property' as in 1891.[66] However, the debate focused chiefly on other parts of the clause.[67] This aspect of the clause was discussed only in response to South Australian concerns. Glynn pointed out that much land in South Australia was leased with the right of purchase and that the clause might defeat any taxation of that property.[68] O'Connor and Barton pointed out that the State's property in such a case was the reversion, which could not be taxed by the Commonwealth, but that the 'interest of the lessee in the property would be taxable'.[69] In answer to another question, Barton asserted that the clause would not prevent the Commonwealth levying customs duties on goods (such as rails, machinery and engines) imported by the States,[70] an assertion later vindicated by the decision of the High Court in Attorney-General (NSW) v Collector of Customs (NSW) (the Steel Rails Case).[71]
Once again the debate was perfunctory and is of limited assistance in interpreting the section. The language and history of the section are as one in identifying the breadth of the subject-matter of the proscribed taxes. The debate, particularly Barton's contribution, supports the High Court's approach to distinguishing between taxes on owning and holding property (proscribed by s 114) and taxes on transactions involving property (not proscribed by s 114).[72] But beyond this there is little of interest. In particular, there is no discussion of why it was thought necessary to prohibit the States from taxing the Commonwealth's property (and vice versa) but not necessary to prohibit them imposing other burdens (including non-property taxes) on each other.[73] As in the (non-)debate on whether the States or the Commonwealth should have legislative power with respect to property matters, a complex set of assumptions about the relationship between property and governments appears to lie behind the discussion. But once again it is not articulated by any of the Framers. In the next Part, I consider the extent to which those assumptions can be discerned in other parts of the Debates.
The final set of provisions (ss 52, 111, 122 and 125) deal with the acquisition of property by the Commonwealth as a polity (rather than as a proprietor) and with the Commonwealth's legislative power over property it acquires. Although the High Court has found useful material in the Debates and draft Constitution Bills for interpreting some aspects of these provisions[74] there is little that bears on the specific concepts of 'property' or 'territory' used here. However, the debate on these provisions does raise the question of the relationship between property as an object of ownership and property as an area over which a polity exercises sovereignty or political dominion.
Section 122 (which provides for Commonwealth legislative power over the Territories) certainly contemplates the Commonwealth acquiring sovereignty over the land to which it applies, including land acquired under ss 111 and 125. But s 52(i) (in so far as it provides for exclusive Commonwealth legislative power over 'all places acquired by the Commonwealth for public purposes') does not necessarily contemplate the Commonwealth acquiring sovereignty over the land to which it applies (consider for example land acquired under s 51(xxxi) for the purpose of building and operating a post office).
Nearly a century after federation, the High Court's decisions in Mabo v State of Queensland [No 2][75] and Wik Peoples v State of Queensland[76] made clear that sovereignty over land does not entail beneficial ownership of that land. That position was not the received view at the time of the Conventions[77] and accordingly the concepts were more tightly linked in the Debates than would be expected today. Isaacs appears to have been the only delegate to distinguish explicitly between proprietorship of and sovereignty over land acquired by the Commonwealth. He argued:
[W]hen the Government does take land, compulsorily or by purchase, in a state as its possession, it takes that land certainly by virtue of its sovereign power of eminent domain, that is, the highest dominion. But it does not hold that land as sovereign, it holds the land as proprietor. [78]
Isaacs then distinguished between the case where the land was acquired with the consent of the state and where it was acquired without consent:
Now, where it holds the land merely as proprietor, without the consent of the state being given to it, it is quite plain that the jurisdiction of the state should run, except, of course, so as not to interfere with the performance of the governmental functions of the Federal Government. But, as far as punishing crime is concerned, as far as any other ordinary state supervision relates, not inconsistent with the performance of the supreme functions of the Commonwealth, the ordinary state law will run. But ... where the state consents to the Federal Government acquiring any land, either by purchase or compulsorily, it thereby consents, and that consent is equivalent to the admission of the right of the Federal Government to exercise exclusive jurisdiction in respect to that particular portion of territory.[79]
Hence, s 52 was initially drafted to require the consent of the state before the Commonwealth acquired exclusive jurisdiction over the property it acquired.[80] Ultimately, Isaacs' view did not prevail and s 52 now draws no distinction between property acquired with and without the consent of the state; in both cases the Commonwealth has exclusive jurisdiction.
But Isaacs' recognition of the distinction between proprietorship and sovereignty remains relevant. As Mason CJ, Deane, Dawson and McHugh JJ pointed out in Svikart v Stewart:
It is ... plain that s 52(i) was intended to provide for exclusive Commonwealth legislative power with respect to places acquired by the Commonwealth in a State. To achieve this in an Australian context there was no need, as there was in the United States, to think in terms of territorial sovereignty. It was sufficient that acquisition of property should carry with it legislative authority without political dominion.[81]
Accordingly, as Isaacs foreshadowed, s 52 deals with legislative authority over land held by the Commonwealth as proprietor, not with political dominion over land held as sovereign.
I have already introduced one other way in which the concepts of sovereignty and proprietorship were linked in the Debates. The colonies (or at least their representatives at the Conventions) saw their sovereignty, their political existence and significance, as tightly linked with control over land and its development.[82] Much more recently, Western Australia maintained this view in Western Australia v Commonwealth (the Native Title Act Case) when it challenged the Native Title Act 1993 (Cth) on the grounds that it interfered with its continued existence as a State.[83] Western Australia had pleaded:
62. The capacity and power to grant, regulate and otherwise deal with land and other resources in Western Australia, including the capacity and power to appropriate land for public purposes and to alienate and develop Crown lands, particularly for agricultural, pastoral and mining purposes in accordance with the laws in force in Western Australia is a fundamental sovereign function of the Government of Western Australia as a State.
63. The capacity and power to administer and regulate land and other resources in Western Australia and the revenue derived from it are essential to the continued existence of the State and its capacity to function as a government.[84]
These arguments carried no weight in the High Court in 1995.[85] But similar arguments did play a part at the Conventions. For example, Barton saw the railways, the land and the sovereignty of the states as integrally connected:
If the land is the possession of the province let us consider what railways were created for. Were they not created for the development of the land, and are they not as much an instrument for the development of the land as the roads and bridges ... ? ... [T]hey exist for the same purpose as the roads and bridges, namely, for the development of the land which we, the people of the individual colonies, mean to retain. There is something which inherently makes them a provincial and not a federal property.[86]
Accordingly, the Commonwealth should not be able to acquire the railways without the consent of the states. The railways were 'so inherently connected with the development of the States, it should be for the local Parliaments to say whether they would hand them over or not'.[87] And so s 51(xxxiii) now provides.
Similarly, Holder used the nexus he perceived between land development and the sovereignty of the states to argue (ultimately unsuccessfully) that the power to grant bounties should remain with the states:
[W]hat has more to do with the development of the Crown lands and the foundation of the settlement of these lands, as well as enlarging the industries dependent upon those lands, than bounties for the export of produce from that land?[88]
That the argument carries less weight today draws attention to the shift, culturally and economically, that has occurred in the last century away from perceiving the land as an important part of national and state identity.
Equally important for some was control over the rivers. South Australia depended (then as it does now) on the River Murray for irrigation and drinking water and (then but to a greatly reduced extent now) for commercial navigation. The Murray is fed by a number of rivers that rise in New South Wales and which New South Wales farmers also depend on for irrigation. Of course, water taken by New South Wales farmers means less water for South Australia. South Australia's delegates, therefore, sought federal control over rivers and navigation. New South Wales resisted and framed its defence of state control of the rivers on the basis that the river and its waters were New South Wales property. Wise said:
The water is as much the property of New South Wales as any inch of its territory. The bed of the river is ours, and we have the power to gather a pretty considerable revenue from wharfage and tonnage dues, the whole length of the boundary between New South Wales and Victoria.[89]
Barton observed that '[m]atters relating to irrigation and so on [were] intimately connected with property and civil rights', matters of state and not federal concern, and he therefore argued that they be left in State hands.[90]
On the other side of the debate, Deakin quoted from a paper by Inglis Clark defending the South Australian position in property terms: 'The riparian rights of the owners of land abutting on the River Murray, in the colony of South Australia, are rights of property in South Australia'.[91] New South Wales legislation could not authorise infringement of those property rights and any infringer would be liable to suit in the federal courts.[92]
Even those who sought a measure of joint control over the rivers conceived of the problem in property terms. Turner suggested that 'water ought to be considered as common property'.[93] Higgins used similar language: 'The water does not belong to New South Wales, Victoria, or any other colony; it is the public property of Australia'.[94] And Gordon argued:
Rivers which take their rise in New South Wales, but which run for huge distances through other colonies, cannot be described by the residents of New South Wales as "our rivers," using the term in the sense of exclusive and sole possession. They are no more the rivers of New South Wales in that sense than the sun which warms them belongs to New South Wales, or the air which sweetens them is the air of New South Wales.[95]
The use of the rivers should be 'controlled in the interest of all riparian co-proprietors'.[96] And (then) modern legislation recognised that even the riparian owner's property rights in the stream were subject to 'a higher, a paramount, right' of others who depended on the stream.[97]
The pervasive use of 'property-talk' on all sides of the debate obscured the real issues. Higgins demonstrated how inapt it was to refer to the rivers as the property of any state:
At what point, then, does it become New South Wales property? I say that you cannot sever a river from its tributaries, any more than you can sever an engine from its wheels, or a man from his arms. Do these waters become exclusively New South Wales property when they are in the clouds in the form of rain, or in the Queensland hills in the form of creeks? Is the Darling the property of New South Wales when it forms a part of that colony, or when it empties its waters into the Murray and passes through South Australia?[98]
Ultimately the compromise reached was to balance the Commonwealth's power over navigation and shipping as part of interstate trade and commerce (s 98) with a prohibition (s 100) on it abridging the right of any State or its residents to 'the reasonable use of the waters of rivers for conservation or irrigation', deferring the issue for resolution by the Parliament, the Inter-State Commission and ultimately the High Court.
The debate on the rivers shows the other side of the property-sovereignty equation from the arguments raised in the Native Title Act Case. That is, in this debate, the proprietor is conceived of as sovereign over its property: the rivers are identified with property, the states as their owners, and it is said to follow that the state should have sovereignty over them. The argument fails at each stage. Higgins showed how problematic it was to talk of the rivers as property. Even if they can be so regarded that fact does not identify their 'owner'. And the elision of property and sovereignty is plainly problematic in any coordinate federal system. But that is not the only point. The rhetoric of property and ownership parallels the rhetoric of territory and sovereignty. Each appeals to notions of exclusive control over a resource – expressed in Blackstone's influential conceptions of property on the one hand as a person's 'free use, enjoyment and disposal of all his possessions' and his or her 'sole and despotic dominion' over the external things of the world,[99] and of sovereignty on the other hand as the 'supreme, irresistible, absolute, uncontrolled authority' necessarily possessed by some agency over a territory.[100] The appeal of these conceptions is strong. It was deployed strategically on all sides of the debates as a political argument in the search for a political solution to the problems of federation. This is a useful reminder of the nature of the Conventions and the mistake of attempting to read them as a coherent statement of one vision for federated Australia.
In the previous Section, I focused principally on property as it appears in the Constitution. In this Section, my focus is broader. I discuss the striking ways in which property, as a political concept, influenced debate at the Conventions on constitutional provisions that do not themselves deal with property. In Parts IIIA and IIIB, I discuss how property influenced debate on two key issues that are not explicitly linked with property, first, the availability of appeals from Australian courts to the Privy Council and, secondly, the franchise and membership of the Commonwealth Parliament. In Part IIIC, I discuss the limits of property and how it becomes invisible in discussion of women's and indigenous people's interests.
The property lawyer's traditional concern with clarity and certainty of property rights and the impartial determination of property disputes permeated the Debates. Some of the Framers were, of course, sceptical of the claims for certainty:
I do not think that we can, in human affairs, prevent the possibility of some doubt. We have only to get as near absolute certainty as we can. We know that things are always changing in the management of property and of public and private affairs. It is impossible to reduce to a specific and certain rule anything that involves the rights of mankind. That never has been done yet, and we cannot do it in this Constitution.[101]
But the predominant view was in favour of clarity and certainty.[102] The great concern was ensuring that public and private investment in Australia, particularly inward investment, was not threatened by federation.[103]
This concern was put most robustly in relation to the question whether it should be possible to bring an appeal from the decisions of Australian courts to the Privy Council. Concern with property rights was not the only issue here. The Framers were split between those who wanted a strong national supreme court and those who wanted to retain the Imperial link to the Privy Council. Both were important symbols with strong resonances. Costs were also an issue[104] as were the Privy Councillors' knowledge of local property conditions[105] and the relative qualities of local judges and the members of the Privy Council.[106] But of the practical (as opposed to symbolic) issues, the interests of 'property' and 'capital' featured most strongly.
In 1891, one speaker identified the fear of many: terminating appeals to the Privy Council would have the effect of 'stopping capital from flowing into this country'.[107] Another said:
[A] vast amount of English capital is invested in these colonies, ... and I apprehend that the owners of capital and the projectors of business in the old country will view with anything but satisfaction a determination on the part of these colonies to prohibit them in the case of a conflict involving large interests on their part from having the opinion of the best judges in the land upon the question involved.[108]
A third adopted an argument made by Richmond J of the Supreme Court of New Zealand in an 1891 letter to Parkes:
The confidence with which investments of all sorts are now made in Australasia by people at home must be largely due to the knowledge that rights of property will be dealt with here by the Law Courts on British principles of justice, and subject to final review by one of the highest English courts.[109]
But Higgins and Isaacs were doubtful of the effect of the availability of an appeal to the Privy Council on British capitalists' investment decisions:
Another point raised is that British capital will be terrified from investment in Australia if we keep this High Court only. Does anyone say that British capital has been kept away from the United States because the States have not got an appeal to Great Britain? We know that British capital flows more readily there than to Australia ... As British capital flows to the States so it will flow to Australia, so long as Australia keeps its settled condition and shows its wholesome dread of any violent changes.[110]
The British capitalist, when he considers whether he will invest his money here, will ask, not what is likely to be the decision of a court of law in a contest, but what is our legislation. He will ask what are the laws which govern the subject-matter on which he is asked to invest his money. ... He is never looking to the courts of law for an ultimate decision. He is not apprehending the question of litigation. He relies on the honour and integrity of those with whom he is dealing, and all he asks and likes to see is what is the legislation on the subject.[111]
Typically, the solution adopted in the Draft Bill adopted by the 1898 Convention was a compromise. Clause 74 provided that no appeal lay to the Privy Council in any matter involving the Commonwealth or State constitutions 'unless the public interests of some part of Her Majesty's Dominions, other than the Commonwealth or a State, are involved'.[112] Appeals were possible in other matters by special leave granted by the Queen, however, the Parliament could limit the matters in which leave might be sought.
The 1898 Draft Bill was not the end of the story. Even after the text of the Constitution was approved by the Australian people at referenda, it still had to be enacted by the Imperial Parliament. Contrary to the view taken in Australia, the British government preferred that the right to seek leave to appeal not be restricted. After intense lobbying in London by Australian delegates and debate in the Imperial Parliament, a compromise was reached and the question was eventually resolved in the terms of the current s 74: the High Court could itself grant leave in certain constitutional cases and the Australian Parliament could limit the other matters in which leave might be sought.[113]
The concern with protecting property rights that in large part drove the debate on Privy Council appeals is representative of a larger concern with property and the objects of government. Parkes was more explicitly libertarian (at least in his rhetoric) than most others:
Government, I apprehend, on any just, honest, not to say any philosophical basis, is a contrivance which is found necessary in a community of men to protect their rights, and property, and their liberty, to enforce their laws, and to repress crime; and whatever form this government assumes, the true principle is to call upon the people for whom this government is necessary, in the form of taxation, for just such sacrifices as may be necessary to support it. I am one of those who hold it to be a fundamental wrong to impose burdens upon a free people for any purpose whatever than the purpose of sustaining necessary institutions under a settled government; and in that case the taxes should be raised in the manner most consistent with liberty, the manner which will least interfere with the free actions of the citizens, and the manner which will be least oppressive as a pecuniary burden.[114]
The Debates contain many statements to the effect that the role of government is the protection of 'life and property' or 'life, liberty and property'.[115] Downer regarded property and life as 'the most sacred of all subjects'.[116] Symon said:
He speaks of our financial interests, and we hear of the great bogie of the rights of property. I have as great a desire to maintain the rights of property as he has. I do not believe in the sacred rights of contract being wantonly interfered with. I do not believe in sacred rights of property being assailed unnecessarily.[117]
Of course, a commitment to the protection of life, property and liberty is not necessarily an evenhanded commitment to the protection of every person's life, property and liberty. The Tasmanian proposal that the Constitution should include a provision corresponding to the American 14th Amendment (which would have prevented states from depriving any person of their property without due process of law) was defeated, not out of any lack of solicitude for property rights but largely out of concerns that it would prohibit racially discriminatory state legislation.[118] Inglis Clark was atypical among the Framers in perceiving how rhetoric about the protection of property and liberty could be used to justify legislation that protected sectional interests:
[W]e know that the law is often used as a means of effecting indirectly some ulterior purpose, also for the purposes of class or special interests. The game laws of England occupied in former years, and occupy now to a certain extent, a foremost place in the provisions of British criminal legislation. We know what detestable and abominable laws they were, and we know that they were introduced not for the protection of life and property and individual liberty in the ordinary sense – not for the same purpose as that for which you make murder or forgery a crime – but for the conservation of certain class interests and class privileges.[119]
On the other hand, many Framers found it difficult to see in debate how their position reflected and protected their class position. This was particularly the case in the debate on the franchise for elections to and eligibility for membership of the Commonwealth Parliament, which I consider next.
Two important tasks facing the Framers were to determine how the members of the Commonwealth Parliament were to be chosen and, if they were to be elected, to define the franchise that was to apply. Unsurprisingly, property concerns powerfully influenced the debate on these questions.
The 1891 Convention, following the Draft Bill that Inglis Clark had prepared and the then prevailing American position, resolved that the Senate would be chosen by the members of the State Parliaments.[120] At the time of federation, several of the colonies restricted the franchise to adult male property owners.[121] For example, in Victoria although adult male suffrage applied for elections to the Legislative Assembly following s 128 of the Constitution Act Amendment Act 1890 (Vic),[122] the Legislative Council franchise was more restricted and required that the elector hold land for life with an annual value of at least £10 (or hold land that, for a term of at least five years, had an annual value of at least £25).[123] On the other hand, in New South Wales, adult male suffrage prevailed in the Legislative Assembly but the Legislative Council was appointed rather than elected.[124] Queensland and Western Australia permitted plural voting by voters who owned property in more than one electorate although Western Australia extended the franchise to adult females as well as males.[125]
Understandably, the differences in the colonial franchises provided a point of division in the definition of the national franchise. Opponents of property qualifications objected to the Senate being chosen by the State Parliaments for so long as those Parliaments were appointed from among the propertied class or elected on a property franchise. Grey perceived a risk that 'power may fall almost entirely into the hands of capital', which dominated the colonial upper houses.[126] He was quite direct in identifying why he thought the Convention largely supported such a proposal:
[Y]ou propose then to establish a machinery made up of the existing machineries which will enable you to hold every one of the advantageous powers that you have now in your possession.[127]
Deakin observed that the proposal would
endow members of nominee houses with power equivalent to that of members of elective houses, and [would] endow members elected by a limited franchise with equal power so far as their numbers go to that exercised by the popular branch of the legislature.[128]
His counter-proposal was that the State governments should nominate the senators and be responsible for their nomination.
On the other hand, some (whether optimistically or somewhat blindly) saw no reason to believe that the Senate would represent property-owners despite the manner in which its members were chosen.[129] Rutledge was much influenced by Bryce's assessment of the American Senate whose members at this time were appointed by the state legislatures:
Both [the Senate and the House of Representatives] equally represent the people, the whole people, and nothing but the people. The individual members come from the same classes of the community; and though there are more rich men (in proportion to numbers) in the Senate than in the House, the influence of capital is not markedly greater.[130]
Accordingly, as he thought that the Senate would not be significantly different in character from the House, he saw no objection to giving the two Houses equal powers.[131]
But Gillies appeared to be entirely oblivious to the different treatment of those with and without property. He responded indignantly to claims that the Victorian Legislative Council represented a property class:
A property class! Every man in these colonies, I am glad to say, is a propertied man. I believe that you cannot go to any part of the world where there is such a large proportion of the population who have got something. You cannot go down the street without seeing every one pretty well dressed. Of course there are occasions in every great city when a certain number of persons are unable to obtain work; but I venture to say that every hardworking, determined, sober-minded, honest man can throughout the greater portion of the year get work. ... [I]n all the colonies there are large sums of money in the savings banks, and in the various institutions where the people can lodge their money and get a considerable amount of interest. ... There are a few people who, through hard work, thrift, and good opportunities, have acquired great wealth, a fact to which I have no objection, and am sure that everybody would like to see everybody else in a comfortable position; but as to talking about the working-classes as contra-distinguished from any other classes in the state, I venture to say that we are all members of the working-classes ... and to create such distinctions is quite unnecessary. I pointed out that in Victoria the suffrage is so low that the great body of the working-men – I mean men who work every day with their hands, tradesmen and others – have votes for the Legislative Council, and the members of the council see that they are under a great responsibility in representing such a large constituency.[132]
South Australian delegates were in the vanguard of attempts to remove the property qualification. Cockburn regarded the absence of a property qualification as a matter of 'vital principle' in relation to which 'certain definite lines ... should be laid down as part of the constitution'.[133] Accordingly, he proposed an amendment that would have prevented the Parliament from imposing any property qualification.[134] Munro developed a point also made by Cockburn in arguing that a property qualification gave the lie to the ideal that the Houses be 'chosen by the people'.[135] If the Senate was to be appointed, its democratic legitimacy was lessened and Kingston therefore objected to it having equal powers with the House of Representatives:
Instead of the senate representing the same body of electors as those who will return members to the house of representatives, it will represent a much more limited class. ... What does that, amount to? It amounts to this: That an equal voice will be accorded in all cases which are most favourable to the exercise of popular rights to a limited class, representative not of the general body of the people, but of persons possessing a property qualification.[136]
In Kingston's view, the likely class basis of the Senate also required that its powers be limited to the protection of state interests[137] and that it not have the power to amend or originate taxing and spending bills.[138]
The issue of democratic principle, typically, fell away. Barton, following Downer's pleas that the issue not be pressed as it could stand in the way of federation,[139] instead proposed that the Commonwealth Parliament have the power to define its own franchise.[140] This lead to a heated, but confused debate, as speakers objected to Cockburn's and Barton's very different proposals on the same ground, that they interfered too greatly with the states' rights to settle their own franchise and the basis on which they were represented in the Federal Parliament. Ultimately both amendments were defeated[141] and the 1891 Convention produced a Draft Bill under which the Senate would be appointed by the State Parliaments.
That was to change in 1897.
In 1897, the Convention resolved to have the Senate directly elected by the people of the States. But that position was not reached without debate, and it still left for decision the question whether the franchise for the two Houses of the Federal Parliament would be the same.
There was widespread support for the proposition that there should be no property qualification for the members or electors of either house. Turner sought to have this 'definitely and distinctly laid down' in the Constitution as Cockburn had six years previously.[142] Kingston argued:
We resist a limited franchise on a property qualification. Why? Not because of any attempt to dictate to us, but because we did not believe in it. Similarly we advocate female franchise, because we believe in it.[143]
Nonetheless, he favoured State rights to determine franchise lest the Federal Parliament introduce its own property qualification or permit plural voting.[144] Cockburn once again proposed (unsuccessfully) an amendment stating that no property or income qualification should be required of any elector.[145]
However, some still feared that an elective Senate on a uniform franchise would not eliminate the influence of property. In this vein, Howe argued that, if each State consisted of only the one electorate for Senate elections, it was likely that the Senate would effectively represent 'property' because of the costs of being a candidate for such a large electorate.[146] Accordingly, he proposed that each State should consist of several Senate electorates.
Arrayed against these 'advanced democrats'[147] were many who supported (more or less clearly) the proposition that property as a class or as a concept ought to be represented in the Parliament. The conservative position was summarised (but not entirely endorsed) by Baker:
There are many people in these colonies who look upon this Constitution from a conservative point of view. ... They point out that this is a Constitution in which one set of people – those who have little or no property – because they are the majority, will have the power of dictating how the taxes shall be raised, and how the taxes shall be spent; and that another set of people – those who have property, and are the minority – will pay the taxes; that representation and taxation will not go hand in hand, because taxation will be imposed by one class and paid by another.[148]
Accordingly, they sought the protection of a Senate that represented their interests. Among the mildest of these conservatives, McMillan, unwilling to admit to wanting a conservative Senate or one elected by a propertied class, still wanted the Senate to have a distinctive character:
You must have no cry, "Here is the popular house representing the people (with a big 'P'); the other house represents capital, conservatism, and other elements." We do not want that; what we want is that, while not giving any undue influence to the senate, we shall keep up its character as a senate.[149]
And in his view, if the Senate did not have a distinctive character (whatever that might be), deadlocks between the Houses could not be resolved by sending both Houses to the electorate.[150] Others saw the distinct representation of property as required by principle. In 1891, Douglas, objecting to residency requirements, had argued that property ownership should be sufficient to establish a right to vote: '[I]f a man leaves the colony for two or three years, still having property in it, when he returns he will have to serve a sentence of five years' residence before he is eligible'.[151] In 1897, Forrest saw property-based (and plural) voting as justified by the interests of investors: 'We think that where we have invested our capital and other people's capital in far-away districts, we should have something to say as to the persons those districts should return'.[152] Zeal put the justification slightly differently; people who pay taxes on their property are entitled to consideration in the political process:
Men who have to pay ways and means for the carrying on of the Government should get some consideration, for it is not the men who are here to-day and gone to-morrow who are held responsible.[153]
Dobson was the staunchest advocate of the representation of property. In his view, the phrase 'one man one vote' was overtaken by the phrase 'one vote for manhood and another for thrift':
There is a common opinion all the world over that the people are divided into two classes, those who have and those who have not; and those who have, although some of us have been born with a golden or silver spoon in our mouths, have generally acquired their property by thrift, hard work, industry, and by the sweat of the brow or brain; and the people who have, require, in my idea, far more consideration than those who have not.[154]
Here is to be a Constitution in which we are absolutely giving property no representation of any description. We are actually giving to men who have nothing, the absolute right to tax all those who have and you are not giving to those who have any single direct voice except what they get by election on manhood suffrage. ... [T]here are two classes of people, men who have something to pay their debts, and something in the way of security to offer to the English lender; and on the other hand there are those – to some extent the bone and sinew of the Commonwealth – who have nothing, men who can take up their swag and go away, men who have no property of any description.[155]
But Dobson, like Gillies in 1891, did not think that he was favouring property for property's sake: 'I do not want to be told that money-bags and property rule the world; it is brains, intelligence and character which rule it'.[156]
Clearly property played an extraordinarily important part in the debate on the franchise. But property qualifications – like women's suffrage – generated divisions that ran too deep for an answer to be agreed and entrenched in the Constitution. So just as there was no express guarantee of women's suffrage, there was no prohibition of a property qualification. The 'advanced democrats' did succeed in ensuring that the franchise for the House of Representatives and the Senate would be the same[157] and there would be no plural voting.[158] But the larger questions were left for resolution by the political process. The Commonwealth Parliament was authorised (but not required) to define the franchise for all Australia;[159] the franchise so defined could be uniform (but was not required to be); the franchise could be expansive (adult and with no property qualification) or narrow (male and property-based) provided only that it did not deprive any person of any right to vote they had for a State Legislative Assembly as at 1901.[160]
The valuable lesson of the debate on the franchise, and property qualifications in particular, is to remind present-day readers of the Constitution just how divided and divisive opinion on the franchise was. The Framers were deeply committed to radically opposed visions of the democratic polity. As Downer argued:
All are agreed that the members of the other House should be returned by the most popular vote that can be obtained. The difference arises from the definition of what is the most popular vote, South Australia considering that the most popular vote is adult suffrage, others considering that it is manhood suffrage, and others again considering that some property qualification ought to be imposed.[161]
As the majority of the High Court concluded in McGinty v Western Australia,[162] this makes it virtually impossible for any interpreter with originalist commitments to draw any implications about the franchise or equality of voting power from the Debates.
Race and gender were major issues at the Conventions. On race, the Framers considered whether the Commonwealth or the States should be responsible for immigration, which in context meant restricting immigration and controlling 'alien races' within Australia.[163] A proposal that a version of the American 14th Amendment be adopted was defeated largely because of fears that it would prevent states from discriminating against people of certain races in their factory and mining legislation.[164] The Framers excluded indigenous Australians when counting the number of the people of the Commonwealth in order to apportion the seats in the House of Representatives between the States.[165] They excluded them also from the power to make special laws for the people of any race.[166] South Australian delegates and some others fought a long and only partially successful campaign to include a guarantee of women's suffrage.[167] And the Framers ensured effectively that women's votes would not be counted in referenda in States where adult suffrage prevailed until adult suffrage was uniformly adopted.[168]
However, in all this discussion, the Debates include virtually no mention of the property rights of indigenous peoples and women. The property rights of indigenous peoples appear to have been mentioned only by the Western Australian Sir George Grey at the close of the 1891 Convention and by Captain Russell, a New Zealand delegate to the 1890 and 1891 Conventions.
Grey was concerned about corruption and self-dealing by propertied interests in colonial upper-houses[169] and incidentally touched on the consequences for Australia's indigenous population:
I could prove that acts of the greatest cruelty have arisen from the causes of which I speak; that great tracts of land – hon. members may laugh – have been under their influence given away in a manner in which they ought not to have been; and that in consequence of regulations to which I object, people of the native races have been expelled from their territory without the least compensation of any kind whatever, purposely that the land might be given to certain persons.[170]
Russell was concerned to draw attention to the differences between his colony and the Australian colonies.[171] After outlining the physical differences, he said:
Not only have the settlers [of New Zealand] had to struggle against the forces of nature but against a proud, indomitable, and courageous race of aborigines. That native race has been treated in a manner so considerate that the condition of no other native and savage race on the face of the globe can be compared to it. Their right to their lands was recognised from the first. ... [W]e recognised their right to their own land, and instead of confiscating it we admitted their claim to its full possession, administration, and disposal.[172]
Russell was ambivalent about whether the explanation for this was fear of the indigenous population or the influence of the 'missionary zeal' of the white settlers. But he felt it had a material relevance to federation. 'Native administration' was an important issue for New Zealand and could not be confidently handed over to a Parliament, dominated by Australians who knew nothing about it and who had 'dealt with native races in a much more summary manner than we have ventured to deal with ours in New Zealand':
It is extremely improbable that hostilities would again break out between the natives and the white settlers, but the advance of civilization would be enormously delayed if the regulation of this question affecting New Zealand was handed over to a body of gentlemen who knew nothing whatever of the traditions of the past.[173]
In 1891, he returned to the theme in arguing for a loose federation rather than a close, centralised, one. Questions of native title were matters 'of very grave moment' and any interruption in Maori relations 'might be of the most serious importance'.[174] Accordingly safeguards would be required before these matters were subjected to federal authority. As for Australia itself:
[I]n the colonies of northern Australia, you yourselves may yet find that you have difficulties unforeseen to cope with. It is true that the native races of the more settled portions of Australia have given you but little trouble, and you have dealt with them summarily, but possibly when you go to northern Australia you will find there a race more resolute and more difficult to deal with. [175]
There is no recorded response to these parts of Russell's remarks from the other Framers. In the context of federation, the property rights of Australia's indigenous peoples simply did not feature as an issue.
Equally, the property rights of women were not perceived as raising issues for debate. Property and civil rights had been defined as a state matter in the 1891 Convention so to some extent this is not surprising.[176] But the effect of marriage and divorce on women's property rights were not mentioned when the Framers debated the Commonwealth's proposed legislative powers with respect to those topics.[177] They were far more interested in the lack of uniformity between the colonies in the grounds on which a divorce might be granted. Again, it was only Captain Russell who raised the issue and then only in the context of a somewhat tortured analogy. New South Wales, Victoria and Queensland had once formed part of the one colony, he said.
There is no reason why they should not be reunited, and if they are reunited it will be a marriage of affection. It will be a case of neighbours whose sons and daughters have married together in order to bring divided lands into one solid property. It will be a marriage of affection if these colonies come together. But with New Zealand it would be simply a mariage de convenance, and her representatives must see that the marriage settlements are not drawn out in a hurry, that before the masculine power and strength of Australia was united to the beauty of New Zealand the settlements are so arranged that the Married Women's Property Act shall have full force in case of any little dispute occurring hereafter. [178]
The marriage analogy was pursued by a number of Framers.[179]
In the previous Sections, I have demonstrated the power of property as a tool of political argument at the Conventions. Here property is silent. The Married Women's Property Act may have recognised married women's separate property interests. But within the Conventions at least those interests were invisible. And despite the New Zealand example, indigenous Australian's property interests were to remain invisible to the legal system for some time to come.
What, then, are the lessons of this study of property at the Conventions?
First, it demonstrates just how little assistance the Debates provide in interpreting the references to property in the Constitution. Section 51(xxxi) and s 114, the two provisions with greatest contemporary interest, were considered briefly and superficially. Their intended meaning is not significantly clarified by the Debates. Property as a concept is taken as a starting point on which the provisions operate and not as something requiring elucidation.
Secondly, it reminds us of what the Conventions were. Looking outwards from the Conventions, we are reminded that the they were only part of the process of federation. Federation was a social movement and a study of the Conventions can only present one snapshot of a much wider and extremely complex process. Looking inwards at the Conventions, we are reminded that they were gatherings of colonial politicians engaged on the business of federation. The Framers were political practitioners, not political scientists. So, although there are passing references to Blackstone, Marx and Proudhon, the debate was not oriented towards the latest speculations on the nature of property. Moreover, property considerations were just some among many in the search for a constitution; in particular, a constitution that would commend itself to a majority of voters in each of the colonies, not the ideal constitution envisaged by any particular political theory.
Property, then, was used for its rhetorical appeal in a fundamentally political debate. It took its place in the competition between those who favoured a strong and financially well-equipped national government and those who favoured strong states and a small national government; between those who favoured a national supreme court at the apex of the judicial system and those who favoured retaining Imperial links; between those who favoured a democratic system drawn on broad lines and those who favoured a more conservative approach. It was a potent rallying cry for supporters and opponents of these positions, but it provided an answer to none. The concept of property employed by the Framers was ultimately a hollow one.
[*] Lecturer, Faculty of Law, University of Melbourne. I am most grateful for the excellent research assistance provided by Josephine Tan and for the ARC Small Grant that funded it. I am also grateful for the comments of participants at the 2001 Real Property Teachers Conference where a draft of this paper was first presented.
[1] There are many excellent accounts of the Federation movement and the Conventions, including Helen Irving, To Constitute A Nation (paperback edition, 1999) and John Hirst, The Sentimental Nation: The Making of the Australian Commonwealth (2000).
[2] Official Record of the Proceedings and Debates of the Australasian Federation Conference, 1890 (1890) ('CD Melbourne 1890'); Official Report of the National Australasian Convention Debates. Sydney, 2 March to 9 April, 1891 (1891) ('CD Sydney 1891'); Official Report of the National Australasian Convention Debates. Adelaide, March 22 to May 5, 1897 (1897) ('CD Adelaide 1897'); Official Record of the Debates of the Australasian Federal Convention. Second Session. Sydney, 2nd to 24th September, 1897 (1897) ('CD Sydney 1897'); Official Record of the Debates of the Australasian Federal Convention. Third Session. Melbourne, 20th January to 17th March 1898 (two volumes, 1898) ('CD Melbourne 1898'). The Draft Bills are reproduced as follows: CD Sydney 1891, 943-964 ('1891 Draft Bill'); CD 1897 Adelaide, 1221–43 ('1897 Draft Bill'); CD Melbourne 1898, 2523–44 ('1898 Draft Bill'). The 1891–98 Debates were reprinted in a 1986 facsimile edition as Official Record of the Debates of the Australasian Federal Convention with a sixth volume of indices and commentary. The Debates have also been scanned and made available in searchable text form on the internet by the Senate <http://www.aph.gov.au/senate/pubs/records.htm> and the SETIS project <http://setis.library.usyd.edu.au/fed/> . These electronic versions of the Debates were indispensable in carrying out the research on which this article is based.
[3] Despite earlier taking the opposite view, see James A Thomson, 'Constitutional Interpretation: History and the High Court: A Bibliographical Survey' [1982] UNSWLawJl 17; (1982) 5 University of New South Wales Law Journal 309.
[4] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, 385.
[5] Noted by John Waugh, 'New Federation History' [2000] MelbULawRw 40; (2000) 24 Melbourne University Law Review 1028, 1041, referring to Kim Rubenstein, 'Citizenship and the Constitutional Convention Debates: A Mere Legal Inference' (1997) 25 Federal Law Review 295; Haig Patapan, 'The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia' (1997) 25 Federal Law Review 211; Rowan McMonnies, 'Ngo Ngo Ha and the High Court v New South Wales: Historical Purpose in History and Law' (1999) 27 Federal Law Review 471, 474–81; Fiona Wheeler, 'Original Intent and the Doctrine of the Separation of Powers in Australia' (1996) 7 Public Law Review 96.
[6] See reference from Cole v Whitfield, above n 4, 385.
[7] Michael Coper, 'The Second Coming of the Fourth Arm' (1989) 63 Australian Law Journal 731.
[8] Note also s 51(xxxiii) which deals with consensual acquisition of a particular kind of property.
[9] The Commonwealth is able to regulate property to some extent under other heads of legislative power, such as Australian Constitution s 51(xxvi) which since 1967 has allowed recognition and regulation of indigenous property rights and Australian Constitution s 51(xxix) which (given Australia's international treaty obligations) has allowed for regulation of environmentally significant areas.
[10] British North America Act 1867 (Imp) s 94. No such law had effect in any province until it was adopted by the legislature of that province. Apart from this provision, property and civil rights were within the exclusive legislative power of the provinces (s 92(13)), as was 'The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon' (s 92(5)).
[11] Report of the Select Committee of the Victorian Legislative Assembly on the Federal Union of the Australian Colonies (8 September 1857) reprinted in Papers Relating to A Federal Union (1862) 9 and quoted by Sir Henry Parkes, CD Melbourne 1890 (10 February 1890), above n 2, 34–5.
[12] Concise biographical information on the various delegates can be found in Helen Irving (ed), The Centenary Companion to Australian Federation (1999).
[13] CD Sydney 1891 (31 March 1891), above n 2, 525. See also Thynne, CD Sydney 1891 (3 April 1891), above n 2, 685.
[14] See generally Abbott, CD Sydney 1891 (12 March 1891), above n 2, 302.
[15] For example, Barton, CD Sydney 1891 (8 April 1891), above n 2, 690 (rivers); Griffith, CD Sydney 1891 (6 April 1891), above n 2, 781–4 (conciliation and arbitration). See also Wise, CD Sydney 1897 (16 September 1897), above n 2, 644; Thynne, CD Sydney 1891 (3 April 1891), above n 2, 685 (objecting to Commonwealth power in relation to banking, bills of exchange, promissory notes, bankruptcy and insolvency on the grounds that these invaded the States' authority over property and civil rights).
[16] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.
[17] Deakin, CD Melbourne 1898 (2 February 1898), above n 2, 455; Barton, CD Melbourne 1898 (7 March 1898), above n 2, 1992.
[18] Symon, CD Sydney 1897 (10 September 1897), above n 2, 296 quoting from the American, Samuel Adams.
[19] Reid, CD Melbourne 1898 (11 March 1898), above n 2, 2268, 2270, 2272–3; Reid, CD Melbourne 1898 (23 February 1898), above n 2, 1384–5; Trenwith, CD Sydney 1897 (15 September 1897), above n 2, 603–4; Robert Garran, The Coming Commonwealth (1897) 15–16.
[20] Playford, CD Melbourne 1890 (10 February 1890), above n 2, 71; Thynne, CD Sydney 1891 (16 March 1891), above n 2, 402–3.
[21] Report of the Select Committee of the Victorian Legislative Assembly on the Federal Union of the Australian Colonies, above n 11.
[22] Douglas J Whalan, The Torrens System in Australia (1982) 3–12.
[23] Western Australia did not receive responsible self-government until 1890 under the Constitution Act 1889 (WA).
[24] Bruce Davidson, 'An Historical Perspective of Agricultural Land Ownership in Australia' in James Lees (ed), A Legacy Under Threat?: Family Farming in Australia (1997) 15, 30–1; Stephen H Roberts, History of Australian Land Settlement 1788–1820 (1968) 218–58.
[25] To the extent that there were differences, they appear to have been fiscal. New South Wales derived a disproportionately large amount of its revenues from land sales: Donaldson, CD Sydney 1897 (6 September 1897), above n 2, 38–9; see also CD Sydney 1891 (12 March 1891), above n 2, 311. Barton certainly did not endorse New South Wales' policy: CD Sydney 1897 (8 September 1897), above n 2, 209 ('We are in an advantageous financial position in this respect as compared with the rest of the colonies, because we may be said to be cutting down the ancestral trees').
[26] An unsuccessful attempt was made to provide for how the Commonwealth should deal with its own public lands, apparently following the enthusiasm for perpetual leasehold sparked by Henry George in 1883: Glynn, CD Melbourne 1898 (8 February 1898), above n 2, 698–9. The view of the Convention appears to have been that this was the kind of contentious matter which ought to be left to the Federal Parliament: Brown, CD Melbourne 1898 (8 February 1898), above n 2, 699 (on Henry George and perpetual leaseholding, see Davidson, above n 24, 44; Roberts, above n 24, 408–9).
[27] CD Melbourne 1898 (25 January 1898) , above n 2, 151.
[28] Ibid 151–2. In Germany a similar power was vested in the Emperor.
[29] Ibid 152. Isaacs expanded on this point later, referring to American authorities: CD Melbourne 1898 (28 January 1898) , above n 2, 260–1 (here he also distinguishes between the Commonwealth as proprietor and the Commonwealth as sovereign). See also Isaacs, CD Melbourne 1898 (16 February 1898), above n 2, 1007.
[30] John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (first published 1901, reprinted 1976) 640–1.
[31] CD Melbourne 1898 (25 January 1898), above n 2, 152. See also the exchange between O'Connor and Cockburn, CD Melbourne 1898 (28 January 1898), above n 2, 258.
[32] CD Melbourne 1898 (25 January 1898), above n 2, 152. He need not have worried about a surplus: see New South Wales v Commonwealth (the Surplus Revenue Case) [1908] HCA 68; (1908) 7 CLR 179; Denis James, 'Federal–State Financial Relations: The Deakin Prophecy', The Vision in Hindsight: Parliament and the Constitution: Paper No 2, Research Paper No 17 1999–2000, Department of the Parliamentary Library (2000) 4-5.
[33] CD Melbourne 1898 (25 January 1898), above n 2, 153.
[34] Owen Dixon, 'Two Constitutions Compared' in J Woinarski (ed), Jesting Pilate and other Papers and Addresses (1965) 100, 102; Robert Menzies, Central Power in the Australian Commonwealth (1967) 54; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) [1920] HCA 54; (1920) 28 CLR 129, 151–2.
[35] CD Melbourne 1898 (25 January 1898), above n 2, 153. Section 53(II) then provided for exclusive Commonwealth power with respect to:
II. The government of any territory which by the surrender of any State or States, and the acceptance of the Commonwealth, becomes the seat of Government of the Commonwealth, and the exercise of like authority over all places acquired by the Commonwealth, with the consent of the State in which such places are situated, for the construction of forts, magazines, arsenals, dockyards, quarantine stations, or for any other purposes of general concern.
This aspect of s 53(II) was discussed further at CD Melbourne 1898 (28 January 1898), above n 2, 256–61. Note also s 51(xxxiii) which authorises Commonwealth laws with respect to 'the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State' (emphasis added).
[36] CD Melbourne 1898 (25 January 1898), above n 2, 152.
[37] CD Melbourne 1898 (25 January 1898), above n 2, 154.
[38] CD Melbourne 1898 (4 March 1898), above n 2, 1874.
[39] Ibid.
[40] Ibid.
[41] See reference from Cole v Whitfield, above n 4, 385.
[42] Quick, CD Melbourne 1898 (25 January 1898), above n 2, 151. See also the purposes referred to in draft cl 53(II), above n 35.
[43] Quick, CD Melbourne 1898 (25 January 1898), above n 2, 152.
[44] Cockburn, CD Melbourne 1898 (28 January 1898), above n 2, 258.
[45] Unless an argument can be built on the more specific acquisition powers in ss 51(xxxiii) and 85(ii). That seems unlikely.
[46] Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1, 20–1.
[47] Minister of State for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261, 290.
[48] [1941] HCA 20; (1941) 65 CLR 255, 282. See also The Australian Apple and Pear Marketing Board v Tonking [1942] HCA 37; (1942) 66 CLR 77, 82–3.
[49] Quick and Glynn had referred to Art 1, s 8, paras 17 and 18 of the United States Constitution: CD Melbourne 1898 (28 January 1898), above n 2, 151–2, but had not referred to the Takings Clause.
[50] One is framed as a legislative power subject to a limitation, the other as a guarantee of individual rights; one refers to 'acquisition', the other to 'tak[ing]'; one refers to 'just terms', the other to 'just compensation'; and one limits the purposes of acquisition to 'any purpose in respect of which the Parliament has power to make laws', the other to takings 'for public use'.
[51] James W Ely Jr, The Guardian of Every Other Right (1992) 34–58.
[52] On Madison's fears, see Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism (1990) 16–66.
[53] See below Part III(B).
[54] See Smith v ANL Limited (2000) 176 ALR 449, 451-452, 468, 476, 487, 494, 496-497 and the earlier cases cited in Simon Evans, 'When Is an Acquisition of Property Not an Acquisition of Property?' (2000) 11 Public Law Review 183, 199 n 67.
[55] 1891 Draft Bill, above n 2, Chapter IV, cl 6, para 2.
[56] 1897 Draft Bill, above n 2, cl 86, para 2.
[57] 1898 Draft Bill, above n 2, cl 85(II).
[58] Australian Constitution s 85(iii). That is supplemented by a requirement that the Commonwealth take over the current obligations of the states in respect of the departments transferred: Australian Constitution s 85(iv).
[59] Section 125 provides in part that so much of the seat of government as was Crown land should be acquired from the state in which it was situated 'without any payment therefor'. This text was introduced by the premiers after the 1897–98 Convention had ended and the first referendum in New South Wales had failed: John Quick, Historical Introduction to Annotated Constitution (1901) 219–20. It does not represent the outcome of the Convention's deliberative processes.
[60] The last is supplemented by a requirement that the Commonwealth take over the current obligations of the states in respect of the departments transferred: Australian Constitution s 85(iv).
[61] Dating at least from the time of Blackstone: William Blackstone, Commentaries on the Laws of England (first published 1765) vol 1, 139. Compare Durham Holdings Pty Ltd v The State of New South Wales (2001) 177 ALR 436, 443–444 (Kirby J).
[62] On those problems, see Evans, above n 54.
[64] CD Sydney 1891 (8 April 1891), above n 2, 883.
[65] Ibid.
[66] CD Adelaide 1897 (20 April 1897), above n 2, 1001.
[67] The prohibition on states imposing harbour rates and tonnage dues. Ultimately, the provision in relation to tonnage dues was omitted: CD Adelaide 1897 (20 April 1897), above n 2, 1004.
[68] CD Adelaide 1897 (20 April 1897), above n 2, 1001. Glynn returned to this theme in 1898, misconstruing the intended effect of the text: CD Melbourne 1898 (7 February 1898), above n 2, 653. Barton pointed out that the provision would not prevent taxation of private property and the clause was agreed to without division: ibid.
[69] CD Adelaide 1897 (20 April 1897), above n 2, 1001–2.
[70] CD Adelaide 1897 (20 April 1897), above n 2, 1002.
[71] [1908] HCA 28; (1908) 5 CLR 818.
[72] Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; (1992) 174 CLR 219.
[73] Nor to prohibit the States from imposing taxes on one another and one another's property: State Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32; (1996) 189 CLR 253.
[74] For example, Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548 on whether s 52(i) applied to property acquired by the Commonwealth within a territory.
[77] Mabo v State of Queensland [No 2] (1992) 175 CLR 1, 43–5.
[78] CD Melbourne 1898 (28 September 1898), above n 2, 261.
[79] Ibid.
[80] 1891 Draft Bill, above n 2, cl 53(2).
[81] [1994] HCA 62; (1994) 181 CLR 548, 560–1.
[82] See text above n 18, and following.
[83] [1995] HCA 47; (1995) 183 CLR 373.
[84] [1995] HCA 47; (1995) 183 CLR 373, 478–9.
[85] Ibid 480–2.
[86] CD Adelaide 1897 (31 March 1897), above n 2, 370.
[87] CD Adelaide 1897 (31 March 1897), above n 2, 373. See also Barton, CD Sydney 1897 (8 September 1897), above n 2, 207.
[88] CD Adelaide 1897 (19 April 1897), above n 2, 844.
[89] CD Adelaide 1897 (17 April 1897), above n 2, 825.
[90] CD Sydney 1891 (3 April 1891), above n 2, 690.
[91] CD Melbourne 1898 (3 February 1898), above n 2, 516–17.
[92] Ibid 517.
[93] CD Melbourne 1898 (25 January 1898), above n 2, 125.
[94] CD Melbourne 1898 (1 February 1898), above n 2, 406.
[95] CD Melbourne 1898 (21 January 1898), above n 2, 32–3.
[96] Ibid 34.
[97] Ibid 37.
[98] CD Melbourne 1898 (21 January 1898), above n 2, 60–1. O'Connor was not persuaded: 'Now that is a very pretty rhetorical figure, but by the same process of reasoning I have heard gentlemen satisfy themselves that there is no such things as property at all, that "all property is robbery," and that we ought to "begin again".' (CD Melbourne 1898 (24 January 1898), above n 2, 64.)
[99] Blackstone, above n 61, vol 1, 138, and vol 2, 2.
[100] Ibid vol 1, 49.
[101] Symon, CD Melbourne 1898 (2 February 1898), above n 2, 438.
[102] Including in relation to the rivers: Carruthers, CD Melbourne 1898 (1 February 1898), above n 2, 389; Reid, CD Melbourne 1898 (4 February 1898), above n 2, 579; Carruthers, CD Melbourne 1898 (7 March 1898), above n 2, 1955.
[103] Ibid. See also Wise, CD Melbourne 1898 (24 January 1898), above n 2, 105; Carruthers, CD Melbourne 1898 (1 February 1898), above n 2, 393.
[104] Abbott, CD Melbourne 1898 (11 March 1898), above n 2, 2292.
[105] Ibid 2287; contrast Carruthers, CD Melbourne 1898 (11 March 1898), above n 2, 2313.
[106] Higgins, CD Adelaide 1897 (20 April 1897), above n 2, 987.
[107] Fitzgerald, CD Sydney 1891 (9 March 1891), above n 2, 173.
[108] Wrixon, CD Sydney 1891 (1 April 1891), above n 2, 541.
[109] Abbott, CD Adelaide 1897 (20 April 1897), above n 2, 971 (and see more generally, ibid 970–2). Richmond’s letter was received by the 1891 Convention and ordered to be printed, together with Clark’s notes on the letter: CD Sydney 1891 (24 March 1891), above n 2, 510-511.
[110] Higgins, CD Adelaide 1897 (20 April 1897), above n 2, 988.
[111] Isaacs, CD Melbourne 1898 (11 March 1898), above n 2, 2316.
[112] 1898 Draft Bill, above n 2, cl 74.
[113] The story is told in more detail in, for example, Hon Sir Gerard Brennan AC KBE, 'Centenary of the Enactment of the Commonwealth of Australia Constitution Act' (2001) 75 Australian Law Journal 31, 32–3.
[114] CD Sydney 1891 (13 March 1891), above n 2, 315. Compare his Burkean vision of the ideal senate: ibid 319.
[115] See, for example, Hall, CD Melbourne 1890 (12 February 1890), above n 2, 184; Wise, CD Sydney 1897 (10 September 1897), above n 2, 326 (quoting Story J); Isaacs, CD Melbourne 1898 (9 February 1898), above n 2, 722; Deakin, CD Melbourne 1898 (8 March 1898), above n 2, 2042.
[116] CD Adelaide 1897 (20 April 1897), above n 2, 975 (in debate on a provision limiting appeals from Australian courts to the Privy Council); referred to by Higgins, CD Melbourne 1898 (31 January 1898), above n 2, 338–9.
[117] CD Adelaide 1897 (20 April 1897), above n 2, 983.
[118] CD Melbourne 1898 (8 February 1898), above n 2, 667–90; CD Melbourne 1898 (3 March 1898), above n 2, 1791–1802. The Tasmanian proposal was in the following terms:
The citizens of each state, and all other persons owing allegiance to the Queen and residing in any territory of the Commonwealth, shall be citizens of the Commonwealth, and shall be entitled to all the privileges and immunities of citizens of the Commonwealth in the several states, and a state shall not make or enforce any law abridging any privilege or immunity of citizens of the Commonwealth, nor shall a state deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of its laws.
[119] CD Sydney 1891 (11 March 1891), above n 2, 252. Compare EP Thompson, Whigs and Hunters: The Origin of the Black Act (1975).
[120] 1891 Draft Bill, above n 2, ch 1, cll 9 and 10.
[121] See McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 242–3.
[122] See Quick and Garran, above n 30, 57.
[123] Constitution Act Amendment Act 1890 (Vic) ss 43-45, 50-51. Certain professional and military men were exempted from the property requirements. See Quick and Garran, above n 30, 57.
[124] See Quick and Garran, above n 30, 48.
[125] Ibid 71, 74.
[126] CD Sydney 1891 (2 April 1891), above n 2, 598. See also CD Sydney 1891 (9 April 1891), above n 2, 926.
[127] CD Sydney 1891 (2 April 1891), above n 2, 634. See also his comments on property qualifications for membership of the Parliament (CD Sydney 1891 (18 March 1891), above n 2, 487) and on the unfairness of plural voting based on property ownership (CD Sydney 1891 (6 April 1891), above n 2, 750–1; CD Sydney 1891 (8 April 1891), above n 2, 889–90; CD Sydney 1891 (9 April 1891), above n 2, 926–7). Contrast CD Sydney 1891 (6 April 1891), above n 2, 751:
The state legislatures are not allowed to represent the people, but are forced by the present laws to represent capital, and, that being so, hon. members say that the state legislatures shall elect the senate – that is, a constituency unfairly and unjustly created is to return the senate – and then hon. members debate as if it were a matter of the greatest consequence to the liberties of the people of this country whether the senate or the house of representatives shall have the greater power. What care we for their power? It is the power of capital alone, and squabbles between two parties of capitalists little interest the people at large.
with CD Sydney 1891 (6 April 1891), above n 2, 753, where he extols the democratic composition of the Senate (whose members need not satisfy any property qualification) and urges that its powers not be limited.
[128] CD Sydney 1891 (2 April 1891), above n 2, 591–2.
[129] For example McIlwraith, CD Sydney 1891 (5 March 1891), above n 2, 63. There were other reasons for having the State Parliaments chose Senators other than preference for property-interests. Griffith saw it as a way of ensuring uniformity: if selection was instead in accordance with legislation enacted in each State, 'in one state they might represent the property-holders of the state, and in another state universal suffrage, and one man one vote' (CD Sydney 1891 (2 April 1891), above n 2, 591).
[130] CD Sydney 1891 (9 March 1891), above n 2, 148. Bryce was an English commentator on the American political and constitutional system. His The American Commonwealth (first published 1888, 3rd ed, 1893–1895) was much quoted at the Conventions. The United States moved to popular election of senators in 1913 on the ratification of the 17th Amendment to the United States Constitution.
[131] CD Sydney 1891 (9 March 1891), above n 2, 143–50, especially 146–8.
[132] CD Sydney 1891 (11 March 1891), above n 2, 235. Cuthbert said, 'I believe the Council now represents 130,000 of what may be called the very pick and flower of the population of Victoria. We have represented there both rich and poor. ... We have every careful and prudent man represented there'. (CD Sydney 1891 (12 March 1891), above n 2, 292.) It is worth comparing the Framers' ideas about poverty and pauperism in the debate seven years later on the proposal that the Commonwealth have power with respect to invalid and old-age pensions: CD Melbourne 1898 (21 January 1898), above n 2, 6-29; CD Melbourne 1898 (7 March 1898), above n 2, 1991–6. That debate largely concerned the federal issue (that is, whether the Commonwealth or the States should be responsible for pensions) rather than the merits of government-provided pensions and is accordingly not treated in detail here.
[133] CD Sydney 1891 (2 April 1891), above n 2, 613.
[134] CD Sydney 1891 (2 April 1891), above n 2, 613–14.
[135] Ibid 615.
[136] Kingston, CD Sydney 1891 (6 April 1891), above n 2, 736.
[137] Ibid 736–7.
[138] Ibid 735 (indicating his intention to vote against Baker's amendment: ibid 722).
[139] CD Sydney 1891 (2 April 1891), above n 2, 618–19.
[140] Ibid 619–20.
[141] Ibid 636–7.
[142] CD Adelaide 1897 (24 March 1897), above n 2, 38.
[143] CD Adelaide 1897 (15 April 1897), above n 2, 724.
[144] Ibid 726.
[145] Ibid 732.
[146] CD Sydney 1897 (13 September 1897), above n 2, 381.
[147] Dobson, CD Adelaide 1897 (26 March 1897), above n 2, 196–7.
[148] Baker, CD Melbourne 1898 (17 March 1898), above n 2, 2482.
[149] CD Sydney 1897 (20 September 1897), above n 2, 815 (emphasis added).
[150] Ibid. Compare Dobson, CD Melbourne 1898 (9 March 1898), above n 2, 2130.
[151] CD Sydney 1891 (2 April 1891), above n 2, 606–7.
[152] CD Adelaide 1897 (29 March 1897), above n 2, 251.
[153] CD Adelaide 1897 (31 March 1897), above n 2, 363.
[154] CD Adelaide 1897 (26 March 1897), above n 2, 192.
[155] CD Adelaide 1897 (15 April 1897), above n 2, 671. See also Dobson, CD Melbourne 1898 (8 March 1898), above n 2, 2026.
[156] CD Adelaide 1897 (15 April 1897), above n 2, 671.
[157] Australian Constitution s 8.
[158] Australian Constitution ss 30, 8.
[159] Australian Constitution ss 30, 8 and 51(xxxvi).
[160] Australian Constitution s 41.
[161] CD Adelaide 1897 (29 March 1897), above n 2, 207.
[163] See generally John Williams, 'Race, Citizenship and the Formation of the Australian Constitution: Andrew Inglis Clark and the "14th Amendment"' (1996) 42 Australian Journal of Politics and History 10.
[164] Ibid. See text above n 118.
[165] Australian Constitution s 127. The section was repealed by the Constitution Alteration (Aboriginals) 1967.
[166] Australian Constitution s 51(xxvi). The exclusion of 'the aboriginal race' from s 51(xxvi) was repealed by the Constitution Alteration (Aboriginals) 1967.
[167] Australian Constitution s 41.
[168] Australian Constitution s 128.
[169] See text above n 126 and n 127.
[170] CD Sydney 1891 (9 April 1891), above n 2, 927. Contrast Reid's attitude, expressed some years later:
Fortunately, there were no complications in regard to title; the aboriginals were as incapable of bargaining successfully as they were of fighting successfully. The Maoris of New Zealand were quite the opposite. They were just as keen in making a bargain as they were valiant in warfare. Hence this noble native race still possesses some of the most valuable estates in New Zealand. (Sir George Houston Reid, My Reminiscences (1917) 17–18).
[171] CD Melbourne 1890 (11 February 1890), above n 2, 125–6.
[172] Ibid.
[173] Ibid 126.
[174] CD Sydney 1891 (5 March 1891), above n 2, 66.
[175] Ibid.
[176] See above Section II(B).
[177] CD Sydney 1897 (22 September 1897), above n 2, 1077–85 (including debate on the proposed power with respect to parental rights and the custody and guardianship of infants).
[178] CD Melbourne 1890 (11 February 1890), above n 2, 128–9. In 1891, Deakin referred to these remarks:
He was careful to tell us that we must not at the present time expect anything from New Zealand; but he laid down with great fulness and freedom the duties which we immediately owed to that most beautiful, important, and wealthy colony, whose position, he led us to understand, was that of the coy maiden, not unwilling, and indeed expecting, to be courted, and whose consent would be granted by-and-by as a favour. (CD Sydney 1891 (5 March 1891), above n 2, 68–9).
[179] Hackett, CD Sydney 1891 (12 March 1891), above n 2, 275; Deakin, CD Melbourne 1890 (13 February 1890), above n 2, 106; Cockburn, CD Sydney 1891 (10 March 1891), above n 2, 196; Abbot, CD Sydney 1891 (12 March 1891), above n 2, 298–9; Deakin, CD Melbourne 1898 (17 March 1898), above n 2, 2500; Barton, CD Adelaide 1897 (21 April 1897), above n 2, 1108.
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