religion, education, riparian rights, war, rights, etc

8/14/2019 Religion, Education, Riparian Rights, War, Rights, Etc

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Page 1 12-7-2004 Re submission in regard of education funding, etc.(constitutional issues)PLEASE NOTE : You may order, INSPECTOR-RIKATI on CITIZENSHIP, A book on CD aboutAustralians unduly harmed, INSPECTOR-RIKATI and the Secret of the Empire , Personalizedcrime/comedy novel on CD edition , or INSPECTOR-RIKATI and the BANANA REPUBLIC AUSTRALIA.Dictatorship & deaths by stealth. Preliminary book issue on CD by making a reservation, by facsimile 0011-61-3-94577209 or E-mail [email protected] . See; www.inspector-rikati.com

WITHOUT PREJUDICE

Committee Secretary 12-7-2004Standing Committee on Education and TrainingHouse of RepresentativesParliament HouseCANBERRA ACT 2600AUSTRALIA

Phone: 61 2 6277 4573Fax: 61 2 6277 4427email: [email protected] AND TO WHOM IT MAY CONCERN

This submission will be forwarded, on 12-7-2004, by email to [email protected] !

Re: Submission regarding education funding, etc!Sir/Madam,

This is a submission regarding the 1981 High Court of Australia decisionregarding funding, and my views as to the true application. The document quoted below also

deals with other matters, but you will find that it deals extensively at commencement and furtherthereafter extensively to the judgments and what is applicable in reality.It ought to be understood that in the time of the 1981 decision, as the judgment underlines, theHansard records of the Constitutional Convention Debates then were not permitted to be usedin litigation before the High Court of Australia, however, this was changed since the FranklinDam issue arose.< hence, now it is verymuch relavant!

Hereby, I provide you with a copy of a correspondence that was emailed on 11-7-2004 to Mr Nnelson Branden as follows;

Date: Sun, 11 Jul 2004 23:42:54 +1000From: "G. H. SCHOREL-HLAVKA" Subject: Constitutional Challneve NSW Teachers FederationTo: [email protected]: [email protected]

PLEASE FIND ATTACHED A DOCUMENT REGARDING THE NSW RTEACHERSFEDERATION ANNOUNCED POSSIBLE HIGH COURT CHALLENGE, IN REGARDOF WHICH I HAVE SET OUT MATTERS.


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PLEASE PROVIDE A COPY TO MR JOHN HOWARD AND OTHERS REFERREDTO IN THE HEADING.

THANK YOU.Mr G. H. SCHOREL-HLAVKA (GARY)

Author of the INSPECTOR-RIKATI book on CD series.(Legal/Political, crime/comedy)INSPECTOR-RIKATI@SCHOREL-HLAVKA.COMWWW.SCHOREL-HLAVKA.COMWWW.INSPECTOR-RIKATI.COMWWW.RIKATI.COM

INSPECTOR-RIKATI on CITIZENSHIP, out now! A must to read

INSPECTOR-RIKATI & ADDRESS TO THE COURTA book on CD, making litigation a more level playing field

INSPECTOR-RIKATI on PLEASE EXPLAIN(Re Pauline Hanson's wrongful jailing)

Attachment: 040711gh.doc 1287k bytes Open

Mr John Howard 11-7-2004Parliament House Canberra,Fax 02 6273 4100Ph; 02 6277 7700 Ref; Religion, education, riparian rights, war, rights, etc.

Cc; Mr Mark Latham, Leader of Her Majesty (Federal) Opposition,

Mr Bob Brown, Senator

Mr Andrew Bartlett, Senator,

MAREE O'HALLORAN, PRESIDENT, NSW TEACHERS' FEDERATION

Education Minister Brendan Nelson

IAN BAKER, NSW CATHOLIC EDUCATION COMMITTEE

DAVID GIBLIN, NSW PARENTS & CITIZENS ASSOCIATION

PROFESSOR GEOFFREY SHERINGTON, SYDNEY UNIVERSITY

JENNY MACKLIN, SHADOW EDUCATION MINISTER (ALP)

MAXINE McKEW, Andrew Geoghegan. The 7.30 Report

All State Premiers and Territory Chief Ministers.

AND TO WHOM IT MAY CONCERNSir,


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As the self appointed DE FACTO Attorney-General , I will hereby set out certainmatters further. Albeit not being a lawyer, the material below will show the true application of Section 116, etc.I request you to provide those mentioned above also with a copy of this correspondence.

In view of a 7.30 ABC report of a possible legal challenge before the High Court of Australia, Idecided to do my own little research which has come up with startling exposure of matters!

Justice Wilson knew or ought to have known that his judgment was deceptive misleadingan a distortion of the truth , and by this deceived 5 other judges in ATTORNEY-GENERAL(VICT.); EX REL. BLACK v. THE COMMONWEALTH [1981] HCA 2; (1981) 146 CLR 559(2 February 1981)

Wilson JAt 42

It will also be recalled that the 1898 Convention was invited to adopt a form of words forthe religion clause which would have placed the present issue beyond doubt, when anamendment from Tasmania to the effect that the clause include the words "nor appropriate

any portion of its property for the propagation or support of any religion" was proposed anddefeated.

Hansard 2-8-1898 ;

Mr. Higgins' amendment was negatived.

Amendment suggested by the House of Assembly of Tasmania, to add at the end of clause-

Nor appropriate any portion of its revenues or property for the propagation or support of

any religion.

The amendment was negatived.

One must notice, that the Amendment suggested by the House of Assembly of Tasmania was inregard of Mr Higgins sought Amendment, to include what is now Section 116. as such, once MrHiggins Amendment was defeated, then obviously the amendment by the House of Assembly of Tasmania could no longer stand.It is therefore very deceptive for a judge to refer to it and make it appear as if the framers refusedthe amendment for the issue of Nor appropriate any portion of its revenues or property for thepropagation or support of any religion. While in fact it was because the Amendment of MrHiggins the House of Assembly of Tasmania sought to have Amended was already defeated!

In my view, Wilson J had an obligation to state the facts correctly, and not purport some otherversion of events or to leave it to the reader of the judgment to get an incorrect impression of what really occurred.

I view this is a very serious matter what a judge of the High Court of Australia misled not onlyhis fellow judges, but also the public!


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While Wilson J argued that it was not an issue because it s historical issue not being referred to,but by him referring to it in an incorrect manner it is very much an issue. A judge by referring toa matter clearly makes it an issue and doing so deceptive and incorrectly clearly must be deemedto have ulterior purposes for this.

I may not be a lawyer, and neither have had any formal legal training or for that formal educationin the English language, and neither is English my native language, but in my view one does nothave to be Einstein, so to say, to be aware that Wilson J knew or ought to have known he wasdeceptive in his judgment!Once one can establish this, and the fact that other judges relied upon his judgment to somedegree then one may ask what was the reason for Wilson J doing so?

Further, surely judges of the High Court of Australia, ought to be aware that where no religiouslegislative power existed in Section 51 and 52 then it AUTOMATICALLY is prohibited againstthe Commonwealth of Australia in every extend!

There is no constitutional powers to legislate in regard of sport, hence the Commonwealth of Australia funding sporting events must be deemed unconstitutional! What wee have is that the

Commonwealth of Australia is using Section 96 and other unconstitutional laws to give itself additional powers no matter how unlawful it is.

As we have seen with Wilson J, who obviously ought to have known that Barton stated;Under a Constitution like this, the withholding of a power from the Commonwealth isa prohibition against the exercise of such a power.

Yet, this was not at all revealed in his reference to the Constitutional convention Debates!Either Wilson J ought to have refrained from referring to certain parts, or had the onus to beprecise about the true nature of and circumstances matters!

Because I had read the Constitutional Convention Debates prior to reading Wilson J judgment, I immediately realised that Wilson J was deceptive in what he stated! But, Irealise that most other s may lack such extensive knowledge as I have and be able to immediatelyor about immediately detects deceptive comments!

It ought to be understood also that since that 19821 judgment it is now permissible to use theConstitutional convention Debates records as recorded in the Hansard, however, as we saw in theSykes v Cleary case, the High Court of Australia then again deceptively referred to office of profit, where had it done the proper set out it would have shown that Mr Phil Cleary was dulyand properly elected and was not even required by Section 44 of the Constitution to terminate hisoffice of profit, with the State of Victoria, as it simply is not relevant to Section 44! See alsomy book on CD, INSPECTOR-RIKATI on CITIZENSHIP ! (8 copies were in 2003provided to the High Court Australia, perhaps they ought to study it to be able to hand downmore sensible judgments?)

Again, not having had any formal education in the English language, and neither Englishbeing my native language it seems that I can read the written English words better thenthose who seems to be highly educated!

Hansard 8-2-1898


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Mr. BARTON .-Yes, since then, as is pointed out in a little handbook which myhonorable friend lent me. But the question for us to consider is whether a court like theFederal High Court or the Privy Council would ever come to such a conclusion. One wouldthink it highly improbable. The real question that may arise under this Constitution iswhether the Commonwealth can make a law establishing or prohibiting the free exercise of any religion. I take it that in the absence of a provision in the Constitution conferringthat power upon the Commonwealth it will be impossible for the Commonwealth todo so. For this reason I think we need scarcely trouble ourselves to impose anyrestrictions. Under a Constitution like this, the withholding of a power from theCommonwealth is a prohibition against the exercise of such a power. If the amendmentof the honorable member were adopted, the clause would read:-

A state shall not, nor shall the Commonwealth, make any law prohibiting the free exerciseof any religion, or imposing any religious test or observance.

Again;Under a Constitution like this, the withholding of a power from the Commonwealth isa prohibition against the exercise of such a power.

AndSir JOHN DOWNER .-I do not think that is necessary, because the Commonwealth will

have only such powers as are expressly bestowed upon it, and by no straining of construction can you find that the Commonwealth has been given any power to legislatewith regard to religion.

AndSir EDWARD BRADDON (Tasmania).-Although I moved an amendment yesterday

with a view to making the clause reasonably safe in regard to so called religious practices, Iconfess that I should prefer to see it struck out altogether. Even with the qualificationsuggested by me, I do not know whether some occurrence which we should all deprecate

might not take place and make us regret that the clause was ever put into the Bill.

It is obviously that the regret is that the High Court of Australia now seems to dissect Section116 of the Constitution , as if that is the total prohibition, rather then to accept that Section 116does no more but highlight just some items of the prohibition that exist in general even withoutSection 116!

The warning!Hansard 2-3-1898

Mr. OCONNOR .-Directly it is exercised it becomes an exclusive power, and there is nodoubt that it will be exercised. By putting into the Constitution words prohibiting theCommonwealth Parliament from making certain specified laws you create the implicationthat the Parliament has power to deal in other respects with religious observances. If youlooked at the prohibition containing this provision, you will find that it deals expressly withSunday observance, with the exercise of religion, with the establishment of religion, andwith the imposition of religious observances. But it might very well be argued that theclosing of places of public amusement on Sundays does not rest upon any of these grounds;and if you inserted a provision of this kind in the Constitution, there would be the strongestpossible implication that the Federal Parliament would have the power to legislate in regardto social questions which had a religious aspect other than those expressly excluded from


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its jurisdiction by this provision. That is the danger you are likely to run into by putting thislimitation in the Constitution. The Commonwealth Parliament will have no right whateverto interfere with these matters unless by some implication arising out of a provision of [startpage 1779] this kind. With regard to the subject of the amendment of the honorable andlearned member (Mr. Symon), there is no doubt that the Commonwealth might have theright to impose any form of oath which it thought fit as a qualification of office. I am quitewilling however, that some such provision as the honorable and learned member hassuggested should be inserted in the Constitution, so that it would not be possible for theCommonwealth to require a religious test.

And

Mr. HIGGINS (Victoria).-I want if I can to recommend the Commonwealth Bill and getit carried. But why should we be faced with this difficulty? You have put in the preamble areligious recital which is not in the Constitution of the United States of America, but youhave not put in the safeguard against religious intolerance which they have there. I ask honorable members how I shall face that difficulty? There is a grave suspicion evidencedby what I said that there were 36,000 distinct signatures upon this very point. I do not think

it is too much for me to say that we ought to reassure those persons. They may be wrong. Itmay be right, as my friend (Mr. Barton) says, that there is no power by implication in theCommonwealth to pass this law. It may be right as he says, that the Commonwealth oughtto have the power. But I only say that it is a state matter, and it should be left to the states.My honorable friend (Mr. Fraser), with all respect to him, shows the current ignorance onthis matter because he will not understand that the state, if my proposal is carried, will havethe same power as it has now to stop any theatrical performances on Sunday.

Hansard 17-2-1898

Mr. LEWIS (Tasmania).-The two honorable members who have preceded me in

discussing this clause have assumed that this financial aid is to be given only, or at any ratemainly, in the case of the practical insolvency of any state. I understand that what isintended by the clause is, that it should go very much further. It includes the power of theParliament to guarantee a loan to a state, or to lend the money to a state, having raised it onits own security. The honorable and learned member (Mr. Glynn) has an amendment on thenotice-paper to the effect that a state should not borrow money except from theCommonwealth. It is to empower the Commonwealth to guarantee the loans of a state, or tolend a state the money itself, that this new clause is proposed, quite as much as to enablethe Commonwealth to come to the assistance of a state which may happen to be inembarrassed circumstances. Honorable members seem to ignore the fact that under thisclause Parliament will have the power to dictate the terms, conditions, and manner in whichsuch financial aid is to be granted. Surely that is ample protection. No state is likely toobtain that financial, aid from the Federal Parliament unless its resources are entirelyexhausted, and it has no other means of maintaining its credit. I should like to hear it furtherargued as to whether this power is inherent in the Constitution. I have grave doubts about itmyself, and for that reason I desire to see this clause inserted in the Constitution. I know ithas not been moved by the honorable member (Mr. Henry) as a concession to popularprejudice, or, as Mr. Wise has called it, a placard. The object is simply to place in theConstitution a statement that the Commonwealth can come to the assistance of a state if itshould be required. We have, in the 52nd clause, handed over naval and military defencesto the Commonwealth Parliament. It might be fairly argued that having done so the


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Common-wealth is bound to protect every state from invasion from outside. Yet we havenot considered it to be an inherent right of the states to demand protection from invasion,and we have considered it necessary to embody in the Constitution a clause providing thatthe Commonwealth shall protect every state from invasion. If that is necessary in the caseof an invasion of a warlike nature, surely it is necessary to include in the Constitution aclause of a similar nature to protect every state from financial disaster.

Mr. ISAACS .-A state might create its own liability to financial disaster; but it does notcreate its liability to invasion by a foreign power.

Mr. LEWIS .-If the state creates its own difficulty, the Federal Parliament will have it inits power to dictate the terms and conditions upon which alone it will me to the aid of anystate.

[start page 1113]

Mr. DOBSON .-You do not always punish the sinner, even the financial sinner.

Mr. LEWIS .-Of course, this power is only optional. It is left entirely to the good sense of the Federal Parliament. As has been said over and over again in this Convention, we musttrust the Federal Parliament, but at the same time we must give that Parliament thenecessary powers to do what we desired it should do, and amongst these powers we shouldgive it a discretion to come to the financial aid of any state, whether that aid is in the formof a guarantee of a loan or a direct loan, or whether it be the financial support of a statewhich may be in embarrassed circumstances, and which may thereby endanger the credit of the whole Commonwealth.

There ought to be absolutely no doubt that what is now Section 96 was to assist States infinancial crises, not to have the Commonwealth of australia making unconstitutional demands for

which it lacked constitutional powers.

Because the Commonwealth of Australia lacked any constitutional powers to legislate in regardof religion, regardless of Section 116, then it means there is by this a prohibition by theCommonwealth of Australia to make any kind of law, including appropriation from ConsolidatedRevenue for religious fundings.

Hansard 2-3-1898

Mr. DOUGLAS .-I believe that there are still some legislative assemblies in Australiawhere they commence the day's proceedings by reading the Lord's Prayer. It was originallydone in Tasmania, but it was soon found out to be a perfect piece of mockery, andabandoned.

It is my understanding that it is being done in the Federal Parliament, and if so, it would beunconstitutional and offensive to those who are not religious or of a different religion!

Section 96, added after the closure of the Constitutional Convention Debates , and not being inthe Constitution Convention Bill 1896 but having its origin fromHansard 17-2-1898


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Mr. HENRY (Tasmania).-I beg to move-

That the following stand as a new clause of the Bill:-The Parliament may, upon suchterms and conditions and in such manner as it thinks fit, render financial aid to any state.

It is generally recognised that there is a strong necessity for the Federal Parliament to havepower in the event of any state being seriously embarrassed financially to step in and giveaid to that state. It is very important that we should have an assurance embedded inthis Bill that the Parliament shall have power in any such contingency to afford thenecessary aid. The question has been raised as to whether the Federal Parliament hasinherent power under this Constitution to grant such financial aid. I am not in a position toexpress any opinion on that question. I leave it entirely to the legal talent of theConvention.

And

Mr. HENRY (Tasmania).-I do not wish to detain honorable members, but I am glad thatwe have had this debate, because it has brought out the opinion of the honorable and

learned members (Mr. O'Connor and Mr. Isaacs) to the effect that there will be no inherentpower in the federal authority to aid a state which is in financial difficulties. The coloniestherefore can know exactly what they are to expect, and their representatives will have toadvise their fellow colonists that in joining the Federation they take this financial risk.

Sir WILLIAM ZEAL .-We all take this risk. Tasmania risks no more than any othercolony.

Mr. HENRY .-Yes; we all take the risk if we enter the Federation, and we shall enter itwith our eyes open. It has been so frequently said that, in the event of a state becominginvolved in financial difficulties, the federal authority would help it, that it is well we

should know that the Federal Parliament will not have power to do so. If we have a divisionupon this question, I anticipate that the opinion of the Convention will be that no provisionshall be introduced to give the Federal Parliament this power.

As set out below, it was intended to assist a State in financial crisis, and not for other purposes,as now seems to be contributed to Section 96!Irrespective of Section 116, as Barton made clear where there was no power given then that initself is a prohibition and therefore any funding for religious school must be deemedunconstitutional!

Hansard 17-2-1898

Mr. DOBSON (Tasmania).-It is quite evident that the Convention have had a gooddinner; but I do not think that we can very well frame a Constitution on after-dinnerspeeches. I regret the numerous occasions on which I have had to differ from the RightHon. the Premier of New South Wales, but I have now, with the utmost deference, to differfrom him again, because I think he has used an extremely good argument why this clauseshould be engrafted on the [start page 1119] Constitution. He tells you to leave it tobrotherhood and generosity, and yet he absolutely says -"Supposing the time should comewhen any state wants financial assistance, we can get the Constitution amended." Onthe one hand, generosity, and on the other hand, a state has to wait for a year, or possibly


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more-during which time it may stop payment-before it can get the Constitution amended.My right honorable friend must see that if the Constitution is to be amended, it is not aquestion of generosity; it will be a question of law , and, as the right honorable memberhas absolutely foretold the circumstances under which the Constitution will have to beamended in this respect, I ask him to be consistent and to put this into the Constitution now.It cannot do any harm.

I seek to give you a brief set out as to the water issue, so you may realise, that I considermatters different then lawyers, governments, etc seem to do. Yet, backed up by quotations of theHansard records of the Constitutional Convention Debates , I make my case in regard of numerous issues, such as those set out in INSPECTOR-RIKATI on CITIZENSHIP .As much as I expose the intention of the framers, about riparian rights, different then governmentand lawyers may do, likewise, I do so in regard of numerous other issues, Education , Religionand LIBERTY some to mention!This material is hard hitting, but no doubt, if you appropriately consider what I set out, I havelittle doubt that any fair minded person will agree with my reasoning!

In my view, the case of ATTORNEY-GENERAL (VICT.); EX REL. BLACK v. THECOMMONWEALTH [1981] HCA 2; (1981) 146 CLR 559 (2 February 1981) was wronglydecided!In my view, Murphy J (dissenting judge) was correct!

While Wilson J stated at 42;While on present authority it is not permissible to seek the meaning of s. 116 in theconvention debates ,

He then goes into some historical details as to what occurred at the Constitutional Conventions,albeit leave out very relevant matters.For example, while referring to that the Constitutional Convention rejected amendments, he does

not disclose why, as some set out below by me!The mistake that was made by the judges, other then Murphy J, was to try to restrict prohibitionto what was stated in Section 116! Even using the argument of the usage of the word for, etc.Wilson J ought to have been aware, after all he was referring to the Constitutional ConventionDebates, that the framers defeated the prohibition clause upon the basis that there was absolutelyno need to have it in the Constitution as there was no specific power given for thecommonwealth of Australia to legislate in regard of religion! Hence, Section 116 is no more buta limited prohibition that was to ensure that it was apparent that there was no constitutional rightby the Commonwealth of Australia to make any kind of law regarding religion, but didntdiminish in any way the fact that without Section 116 there was already no constitutional powerfor the Commonwealth of Australia to legislate in regard of religion.It was because of the preamble that Section 116 finally was accepted as a mere specificclarification without limiting the overall denial of legislating in regard of religion.Hence, the Court omitted to argue the case that without Section 116 there was already noconstitutional power for the Commonwealth of Australia in any shape or form to fund religion, asno such powers were provided within Section 51 and 52!Again, the framers held there was really no need for Section 116, as the prohibition was alreadyimplied, but for the sake of some form of clarification certain matters were specifically set out.The argument therefore not considered was if there was any constitutional powers within Section51 or 52 for the Commonwealth of Australia to provide funding to non secular schools?


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As set out below, Section 96 cannot be taken apart of Section 51 and 52, as grants can only beprovided in regard of what is within legislative powers of the Commonwealth of Australia.As I have also set out in my book on CD INSPECTOR-RIKATI on CITIZENSHIP , noteven foreign aid can be appropriated by the Commonwealth of Australia, as Section 51(xxix)external affairs is limited to what is within the constitutional legislative powers of theCommonwealth of Australia and cannot be used for matters outside its constitutional legislativepowers. It is therefore a grave error to presume that Section 51(xxix) provides for millions of dollars being spend on Papua New Guinea, as it is not part of the Commonwealth of Australia!The Commonwealth of Australia can only spend monies for the Commonwealth of Australia inregard of the limited constitutional powers it was given!

Section 96, as set out below, does not alter this a bit!

Below is some material setting out various issues!

Below, is shown the true intentions of the framers of the Constitution regarding Section 96 of theConstitution , albeit the Section refused during the Constitutional Convention Debates seems tohave been inserted nevertheless after the Constitutional Convention Bill 1898 was passed by

the Constitutional Convention!;Financial aid must imply some aid given to a statewhen it is in such pecuniary difficulties that itcannot pay its way.

As stated below;Therefore, I view, the High Court of Australia misconceived the location of the provisionsto prohibit the Commonwealth of Australia to make laws regarding religion, as if it had thepowers to make laws and grant funding for religious schools in the Northern Territory, for

example, as this clearly cannot be done.Any school owned by a religious body by this is excluded from any Commonwealth of Australia funding! This is also, as to avoid that in certain areas only religious school existand by this the Commonwealth of Australia could artificially introduce religion intoTerritories, this, even so prohibited doing so. It could simply refuse to establish secularschools and fund the establish of religious schools instead, and by a backdoor manner stillachieve what the Constitution specifically prohibits.

The religious prosecution by way of haircut! (Just an example)Hansard 8-2-1898

Mr. HIGGINS .-A number of laws have been held to be unconstitutional in Americabecause of their reasons and because of their motives. There was a funny case in SanFrancisco, where a law was passed by the state that every prisoner, within one hour of hiscoming into the prison, was to have his hair cut within one inch of his head. That lookedvery harmless, but a Chinaman brought an action to have it declared unconstitutional, and itturned out that the law was actually passed by the Legislature for the express purpose of persecuting Chinamen.

Hansard 8-2-1898


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Sir JOHN DOWNER .-I do not think that is necessary, because the Commonwealthwill have only such powers as are expressly bestowed upon it, and by no straining of construction can you find that the Commonwealth has been given any power tolegislate with regard to religion.

Hansard 8-2-1898

Mr. HIGGINS .-No; it would only prevent the making of laws for a religious reason.

Dr. COCKBURN .-Who could determine the intention of the state? The amendmentwould simply prohibit the enactment of these laws.

Mr. HIGGINS .-My desire is to prevent the Federal Parliament from dictating to thestates in these matters.

Sir EDWARD BRADDON .-Are we not getting on very well as we are?

Dr. COCKBURN .-I think so. I think that we should recognise that the clause is an

anachronism, and should leave it out of the Constitution.Mr. BARTON (New South Wales).-I am rather doubtful about the amendment, because,

notwithstanding the American decisions to which the honorable member (Mr. Higgins)hasreferred, I can scarcely conceive it possible that the insertion of a provision in the preambleacknowledging the existence of the power of the Deity [start page 661] could ever inducethe High Court or the Court of Appeal in the old country to hold that that imported a powerto make laws regarding religion. I think it is, quite clear that the Commonwealth will haveno power to make any law regarding religion, even if no amendment such as that which hasbeen suggested is agreed to The Commonwealth will have no powers except such as aregiven to it either expressly or by, necessary intendment. It will have only such powers as

are given to it in so many words, or as are necessary for the exercise of these powers. If weapply this principle, we must see that the Commonwealth will have no power to make lawsregarding religion.

Hansard 17-2-1898 (Re Section 96 of the Constitution )

Mr. OCONNOR .-It is nicely wrapped up. Any one who reflects upon the conditionswhich must exist before this provision can be brought into operation will see that it assumesthat the states must be reduced to a condition of pauperism before they can take advantageof it.

Sir JOHN FORREST .-What would you do if they were?

Mr. OCONNOR .-I will come to that. Mr. Wise seems to be of opinion that there issome power implied in the Constitution to give such aid. Now, from the considerationand study which I have been able to give to the Constitution, I have no hesitationwhatever in saying that there is no such power implied. The Constitution is formed forcertain definite purposes. There are definite powers of legislation and definite powers of administration, and the clause that the Right Hon. Sir John Forrest called attention to justnow-clause 81-expressly provides that the revenues of the Commonwealth shall form one


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consolidated fund, to be appropriated for the public service s of the Commonwealth in themanner and subject to the charges provided in this Constitution.

Mr. WISE -The order and good government of the Commonwealth would come underthe term "public service s of the Commonwealth."

Mr. OCONNOR .-I do not agree with the honorable member in his interpretation of the powers of the Commonwealth, especially when dealing with the expenditure of themoney of the taxpayers. In such a case there will be a great deal of care taken to keep thenose of the Federal Parliament to the grindstone in the matter of this expenditure. I do notthink any expenditure will be constitutional which travels outside these limits. Wemust remember that in any legislation of the Commonwealth we are dealing with theConstitution. Our own Parliaments do as they think fit almost within any limits. In thiscase the Constitution will be above Parliament, and Parliament will have to conformto it. If any Act were carried giving monetary assistance to any state it would beunconstitutional, and the object sought would not be attained. That brings me to thequestion of whether it is desirable that there should be any such power either expressed orimplied. I have no hesitation in saying that it would be a disastrous thing for the future of

the [start page 1109] Commonwealth if there was any such power given.As stated below;

QUOTERemarkably, albeit the Constitutional Convention Bill 1898 (see 16 March 1898) had noprovision for financial assistance to the states, as was defeated by the Convention (as shownabove) in the final Constitution never the less, as enacted in 1900 had the following;

96 Financial assistance to StatesDuring a period of ten years after the establishment of theCommonwealth and thereafter until the Parliament otherwise

provides, the Parliament may grant financial assistance to any Stateon such terms and conditions as the Parliament thinks fit.

It appears therefore, that albeit the matter was defeated at the Constitutional Convention, it wasinserted thereafter!

END QUOTE

However, as the matter was extensively debated, as shown below, therefore we still do now whatSection 96 was about, being State financial crisis matters, nothing to do with religious schoolfundings!

Therefore the High Court of Australia in ATTORNEY-GENERAL (VICT.); EX REL. BLACK v. THE COMMONWEALTH [1981] HCA 2; (1981) 146 CLR 559 (2 February 1981) and otherdecisions were utterly wrong about the application of Section 96, and it being used for fundingschools. Section 96 is limited to State financial crisis, and not for some third party funding, toobtain unconstitutional powers over States or others!

If we briefly attend to the provision of section 51(iv) as to borrowing funds, then this too islimited;Hansard 17-2-1898 ;

Mr. ISAACS .-You are referring to paragraph (4) of clause 52?


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Mr. HOLDER .-Yes.

Mr. OCONNOR .-But that money could not be spent upon any object the FederalParliament thought fit.

Mr. HOLDER .-I want an expression of opinion which shall be authoritative on the point.I see that, according to the provision I have quoted, there is power given to the FederalParliament to borrow money on the credit of the Commonwealth, and I say again that I donot know of any limitation of the expenditure of that money except the limitation whichwould be specified in the Loan Act authorizing the borrowing of the money. Of course,these words cover the raising of the money for the building of railways for instance, and insuch a case the limitation would be the terms of the Loan Act. But is there anythinganywhere to prevent a Loan Act being passed by the Federal Parliament authorizing theraising of a certain sum of money, the proceeds of which loan might be divided accordingto the terms of the Act among the states according to their needs, or upon some otherprinciple?

Mr. GLYNN .-The first three lines of clause 52 affect that point.

Mr. ISAACS .-The money must be expended with regard to "the peace, order, andgood government of the Commonwealth," not of the states.

And

Mr. BARTON .-The honorable and learned member (Mr. O'Connor) pointed outthat it might prevent the passing of a law for Sunday observance. The real question for-as to decide is whether the clause should or should not remains. The only difficulty I haveupon the point is this: I do not anticipate any trouble from the want of a prohibitionupon the states forbidding them from dealing with religious questions, but we must

always [start page 662] recollect that humanity has a habit of throwing back to its oldpractices. Since a couple of hundred years ago we have been tolerably free fromsumptuary laws. But there is in many quarters a great disposition to take to these lawsagain, and we may before many years have passed be overwhelmed with them.

Clearly, Commonwealth of Australia borrowings are therefore very limited as to what it can beused for!

In a previous case regarding Commonwealth of Australia education funding the following wasstated; ATTORNEY-GENERAL (VICT.); EX REL. BLACK v. THE COMMONWEALTH [1981] HCA 2; (1981) 146 CLR 559 (2 February 1981)

BARWICK C.J12. Before turning to the interpretation of the language of s. 116, having regard to thevarious submissions made as to its meaning, I wish to say something as to the use in thatconnexion of material extraneous to the text itself. First, as to the use of the Conventiondebates: the settled doctrine of the Court is that they are not available in the construction of


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the Constitution : and, in my opinion, rightly so. An academic exercise to explainhistorically why the Constitution was cast in a particular form is one thing.To identify the meaning of the words in which the Constitution is expressed byexamination of its discursive development is quite another. The former, in my opinion, hasno place in the task of construing the text of the Constitution except perhaps in the case of an ambiguity in that text which cannot otherwise be resolved. But, absent the possibilitywhich such ambiguity may present, the task of educing the meaning of the wordsconstitutionally employed derives, inmy opinion, no assistance from a consideration of the process by which that text came intobeing. Indeed, attention to the course of the convention debates might well distract themind from the proper meaning of unambiguous words in the text. (at p578)

13. That is not to say, however, that that meaning must be assigned without regard to thesense in which the words of the text were understood in the day of their expression. As Ihave said elsewhere, the then current meaning of the words used in the text is the meaning,the connotation, they must thereafter bear, though in application in later times they mayachieve results not within the contemplation of those who wrote the text. In other words,the denotation

of the words may expand whilst their connotation remains fixed. (at p578)As shown below, we have High Court of Australia rulings, which were based upon more then 90years of ignorance of the Constitution Convention Debates records in the Hansard, which hasresulted to some form of DICTATORSHIP to exist, rather then what the constitution reallystands for.Since the BARWICK 1981 CJ judgment the High Court of Australia seems to have altered itsviews and now does allow the usage of the Constitutional Convention Debates , however, theharm is already done. The framers of the Constitution made clear, that the ConstitutionalConvention Debates records would be there for people to check what was really intended, as toput it all in the Constitution would make it too cumbersome and would only add to litigation

unduly. Therefore, it is essential that the High Court of Australia accept that, so to say, theConstitution is merely the skeleton of the federation but much is unwritten and that has to beelicited from the Constitutional Convention Debates .

A clear example is, the fact that Section 51(xxvi) of the Constitution , in regard of a race, doesnot reveal at all that any legislation within this ambit against a certain race would result that allpersons of that specific race would loose their citizenship and so their body politics!My book INSPECTOR-RIKATI on CITIZENSHIP does set this out in considerable details.

Hansard 2-3-1898Mr. SYMON .-I would not put such a power in the hands of any Parliament. We must

rest this Constitution on a foundation that we understand, and we mean that everycitizen of a state shall be a citizen of the Commonwealth, and that the Commonwealthshall have no right to withdraw, qualify, or restrict those rights of citizenship, exceptwith regard to one particular set of people who are subject to disabilities, as aliens,and so on. Subject to that limitation, we ought not, under this Constitution, to hand overour birth right as citizens to anybody, Federal Parliament or any one else, and I hope theamendment will not be accepted.

Hansard 3-3-1898


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Mr. SYMON .-The state declares its own law, subject to the exception in regard to aliensand naturalization. If a man is a citizen of a state, he is a citizen of the Commonwealth. TheCommonwealth cannot take away that citizenship; it cannot interfere with thatcitizenship. I am sorry that Dr. Quick felt that I was urging it with undue determination,but that was the point which influenced me strongly yesterday in regard to his amendment,which, I think, went a great deal too far. The state citizenship is not interfered with, andcannot be interfered with, by the Commonwealth unless under such an amendment aswas suggested yesterday, except in the cases governed by the provisions of clause 52,as to aliens and naturalization.

And

Mr. BARTON .-No, but the definition of "citizen" as a natural-born or naturalizedsubject of the Queen is co-extensive with the ordinary definition of a subject or citizenin America. The moment be is under any disability imposed by the Parliament beloses his rights.

Dr. QUICK.-That refers to special races.

Again;The moment be is under any disability imposed by the Parliament be loses his rights.

This related to legislation against a specific race within the ambit of Section 51(xxvi) of theConstitution , where a disability was placed against a specific race by way of any kind of legislation!By this, all Aboriginals, since the 1967 con-job referendum and subsequent legislation also losttheir citizenship!One would be an utter fool to ignore the Constitutional Convention Debates , as it is this whatexplains what deals were made and what the true meaning is.

It must be understood that the constitution is an agreement between the citizens of the States tocreate a Commonwealth of Australia who can act for them within certain powers and limitations.Hence, the terms of agreements discussed by the framers very much is relevant. In the Phil Cleary case the High Court of Australia then sought to rely upon the Constitution ConventionDebates , albeit did so considerable misguided, by failing to understand that Section 44 of theConstitution was the amalgamation of various section, and the framers made clear did not alterthe position of the former independent Section. It is simple that the High Court of Australia did itfor so long wrong, that now not the Constitution but judicial power seems to determine what theConstitution is about.Below is an example shown in the 1943 case, where somehow the High Court of Australia seemsto accept that in time of war the Commonwealth of Australia can have laws against citizens, thatmay not be possible in time of peace. This utter nonsense may be shown by the undeclared waragainst Iraq. The war against Terror. Surely, unless we stick to the true constitutional meaning of matters, we have no democracy but some form of DE FACTO DICTATORSHIP !

On recent times the water issue, and the buy back of water has been an issue on nationaltelevision. What seems to be forgotten is that Section 100 clearly limits water usage toreasonable use, and therefore, if a farmer sell s of water, in excess of what is needed, then thisselling of that excess water is not to be deemed to be within the term reasonable use.As such, I view, it would be quite appropriate for the Commonwealth of Australia not to pay forexcess water sold off by farmers! In my view, irrespective of what State government may


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allocate in excess of reasonable use to a farmer, the Commonwealth of Australia would not bebound by such State allocation, as the framers clearly wanted the protection of riparian rights !Commonwealth of Australia Constitution Act

100 Nor abridge right to use waterThe Commonwealth shall not, by any law or regulation of trade orcommerce, abridge the right of a State or of the residents therein tothe reasonable use of the waters of rivers for conservation orirrigation.

As was stated ( Hansard 7-2-1898 );

Mr. WISE .-

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, and if those rights shall beinfringed by any private person or any public body professing to act under colour of theauthority of an Act of the Legislature of New South Wales, when both colonies areconstituent parts of the Commonwealth of Australia, the citizens of South Australia whoseriparian right has been violated will have a remedy in the federal courts of theCommonwealth, other for damages or for a writ of injunction to restrain the continuance of the injury, or for both. As a direct authority upon this point, I may refer to the case of the Holyoke Water Power Company v. Connecticut River Company , which was decided in theUnited States in the year 1884. (22 Blatchford, 131.) In that case the Legislature of Connecticut had authorized the Connecticut River Company to raise their existing damacross the river in Connecticut to improve the navigation, and also maintain the waterPower of the Connecticut River Company's dam, which was about 16 miles below the damand factories belonging to the Holyoke Water Power Company in Massachusetts, and theConnecticut River Company proposed to raise its dam in Connecticut so high that it wouldcause a diminution in the fall of the river above the dam for six or seven months in the year,to the detriment of the Holyoke Company, and the Holyoke Company filed a bill in equityin the Circuit Court of the United States for the district of Connecticut, praying for aninjunction restraining the Connecticut River Company from raising their dam to theproposed height. The court granted the injunction, and the concluding portion of the judgment of Shipman, J., runs as follows:-"The owner of land abutting upon a navigableriver owns it subject to the right of the states to improve the navigation of the river, becausethe land is within the governmental control of the states; but, it seems to me that the stateobtains by virtue of its governmental powers no right to control over or right to injure landwithout its jurisdiction. Jurisdiction confers the power and right to inflict consequentialinjury, but where no jurisdiction exists the right ceases to exist. It is a recognised principlethat the statutes of one state in regard to real estate cannot act extraterritorially. As

Connecticut has no direct jurisdiction or control over real estate situate in another state, itcannot indirectly, by virtue of its attempted improvement of its own navigable waters,control or subject to injury foreign real estate. If this resolution is a bar to an action for anyconsequential injury to land or to rights connected with land in Massachusetts, Connecticutis acting extra-territorially. Let there be a decree enjoining the defendant against any furtherraising of its present dams to a greater height than the height occupied by the respectiveportions of the present structure.

AndMr. WISE .-The judgment cited is not based upon that ground but upon another ground

altogether-that one state cannot, after its entry into federation with other states, exercise any


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jurisdiction to injure the territory of neighbouring [start page 605] states within their ownrights. That is to say, that whereas the states before the federation had power tolegislate with regard to their own water , as we have to-day or South Australia has, andany grievance that arose from the exercise of that power could only be redressed bydiplomatic means or by war, yet once the states come together in a federal union, any injuryinflicted on neighbouring states by legislation is subject to inquiry and redeem at the handsof the Supreme Court.

Hansard 7-2-1898

Sir GEORGE TURNER .-Do you admit that the Federal Court will allow SouthAustralia to have a share of this water?

Mr. WISE .-I say this: That if South Australia drained all our water, whether by openingthe bar of the Murray or by establishing big irrigation works, to the injury of the settlers inour territory, New South Wales or any settler within our territory could obtain an injunctionfrom the Supreme Court to restrain her from doing so; and vice versa .

Mr. GLYNN .-Is that something new conferred by the Constitution?Mr. REID .-You are always after some thing new.

Mr. WISE .-No; it is not. Mr. Clark proceeds-

The Draft Bill to constitute the Commonwealth of Australia expressly provides that the judicial power of the Commonwealth shall extend " to all matters between states ,"-

It is not a matter of rights; I do not understand the meaning of rights at present.

and it has been decided by the Supreme Court of the United States of America that, underthe provisions of the Constitution of that country, which extends the power of the FederalJudiciary to "controversies between two or more states"-

I will pause for a moment on that word "controversies." Controversies arise because twopersons assert conflicting rights.

Mr. ISAACS .-How is it to be deter mined? Who is to judge of it as a right?

Mr. WISE .-

one state may file a bill in equity against another state to determine the question of adisputed boundary. ( Rhode Island v. Massachusetts , 12 Peters 657.) And if the FederalJudiciary of the Commonwealth of Australia will have the like power to determine aquestion of a disputed boundary between two states it must, as a logical sequence, have jurisdiction of the question whether any portion of the territory within the boundary of onestate is to be deprived of all that makes that territory [start page 604] valuable by theaggressive legislation of another state. The riparian rights of the owners of land abutting onthe River Murray, in the colony of South Australia, are rights of property in SouthAustralia, and if those rights shall be infringed by any private person or any public bodyprofessing to act under colour of the authority of an Act of the Legislature of New South


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Wales, when both colonies are constituent parts of the Commonwealth of Australia, thecitizens of South Australia whose riparian right has been violated will have a remedy in thefederal courts of the Commonwealth, other for damages or for a writ of injunction torestrain the continuance of the injury, or for both. As a direct authority upon this point, Imay refer to the case of the Holyoke Water Power Company v. Connecticut River Company , which was decided in the United States in the year 1884. (22 Blatchford, 131.) Inthat case the Legislature of Connecticut had authorized the Connecticut River Company toraise their existing dam across the river in Connecticut to improve the navigation, and alsomaintain the water Power of the Connecticut River Company's dam, which was about 16miles below the dam and factories belonging to the Holyoke Water Power Company inMassachusetts, and the Connecticut River Company proposed to raise its dam inConnecticut so high that it would cause a diminution in the fall of the river above the damfor six or seven months in the year, to the detriment of the Holyoke Company, and theHolyoke Company filed a bill in equity in the Circuit Court of the United States for thedistrict of Connecticut, praying for an injunction restraining the Connecticut RiverCompany from raising their dam to the proposed height. The court granted the injunction,and the concluding portion of the judgment of Shipman, J., runs as follows:-"The owner of land abutting upon a navigable river owns it subject to the right of the states to improve the

navigation of the river, because the land is within the governmental control of the states;but, it seems to me that the state obtains by virtue of its governmental powers no right tocontrol over or right to injure land without its jurisdiction. Jurisdiction confers the powerand right to inflict consequential injury, but where no jurisdiction exists the right ceases toexist. It is a recognised principle that the statutes of one state in regard to real estate cannotact extraterritorially. As Connecticut has no direct jurisdiction or control over real estatesituate in another state, it cannot indirectly, by virtue of its attempted improvement of itsown navigable waters, control or subject to injury foreign real estate. If this resolution is abar to an action for any consequential injury to land or to rights connected with land inMassachusetts, Connecticut is acting extra-territorially. Let there be a decree enjoining thedefendant against any further raising of its present dams to a greater height than the height

occupied by the respective portions of the present structure.

Hansard 17-4-1897

Mr. GORDON:The water rights of the province to be preserved depend a good deal upon the extent of

their recognition by the other colonies. What they are according to the principle of international and private law-the analogy of which should guide us in defining them-maybe clearly stated, but the mere statement of the colonies' respective rights in the river,unless made the basis of an agreement for the mutual exercise and respect of them, wouldbe of little use There is no tribunal to which a colony, on breach of its water rights, canappeal for a remedy, so that the rights are legally ineffective.

Hansard 1-2-1898

Mr. HOLDER .-We do not want to deprive New South Wales of any such power. Wewish to leave that colony as free as ourselves to use her rightful share of the water for anypurpose she pleases. Who is to determine what is the rightful share? The FederalParliament. What has New South Wales to answer to this? Her representatives have noanswer to give. They cannot say what their rightful share is. They leave us simply with the


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power of reference to the British Government; and I say in this matter, when we areframing a Federal Constitution, we should leave all such references to our own authorities.Now, as to the form of the sub-section as it stands, I see the full force of what my honorablefriend (Mr. Symon) said just now. It gives away the position as far as South Australia isconcerned, and leaves us worse off than we should be if it was not there. What does it do?As it stands it is a distinct limitation on the other powers in the Constitution. As it stands, itpermits the federal authorities to come within territory which is wholly South Australian,and to determine how we who are down the stream shall use every drop of the water in theriver. It may say to us "You shall take none for irrigation." It may say to us "You may takea certain quantity" It may say "You may do as you please concerning the lower waters of the river." It may determine not only the navigation but the use of the water.

Mr. DEAKIN .-You cannot suppose that there is any risk in that.

Mr. HOLDER .-No, but we are handing over very large powers concerning the lowerriver to the Federation.

Mr. DEAKIN .-Which they can only exercise for your benefit. They have no motive to

do anything else.Mr. HOLDER .-The point I want to make is, that while we are asked to hand over these

large powers concerning the Lower Murray, New South Wales, on her part, says,concerning the upper waters "No, theme waters shall not be federalized."

Mr. REID .-It is quite the opposite. We are giving the Upper Murray just the same as theLower Murray. You are always after the Darling.

Mr. HOLDER .-It is the Upper Murray of which I am speaking. South Australia isperfectly prepared to see the Murray federalized if the Darling, which is a very important

feeder to it in the way of both merchandize and water, in federalized too. But SouthAustralia is not prepared to see the river within her borders federalized, while othercolonies see so much danger in the federalization of the water that they will not dream fortheir part of any such action

Mr. FRASER .-Your waters must be used for your benefit only. They cannot be used inany other way.

Mr. REID .-In reference to our share of the Murray, we give you federal control [startpage 409] exactly the same as federal control is given over your waters. The Murray istreated in exactly the same way, whether it is in your colony or in ours.

Mr. HOLDER .-Persons up stream have less interest relatively in the lower stream thanthose down stream have in the upper stream, and those who are interested in the upperriver, and who have less interest in the lower river, ask us to make an entire surrender of our rights and powers concerning the lower river, while they will make no surrender of anykind at all in respect of the waters of the upper river in which we are more concerned thanthey are concerned in those which flow through our borders, and that is what SouthAustralia objects to. We had better omit the present sub-section and have nothing thanleave things as they are. But I do, hope that even yet it will be possible to expressly referthis very vexed question to the Federal Parliament, so that it may have power to deal with


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it. New South Wales says that it is giving away something which she has. No, it is not, if she has any right to it. Does she believe that any right she possesses will be diminished bythe action of the Federal Parliament?

Mr. FRASER .-She is jeopardizing her rights.

Mr. HOLDER .-That is to say, that all this talk about trusting the Federal Parliament doesnot apply to that state which will have the largest representation in it.

Mr. REID .-The Federal Parliament will control federal things.

Mr. HOLDER .-I will not be drawn off my track, for I will not speak much longer. I willonly say, in reference to the remark of the premier of New South Wales that he wants theFederal Parliament to have federal control in federal things, that to my mind there can be nomore federal question than the question of inter-state riparian rights.

Mr. REID .-Where they exist.

Mr. HOLDER .-Riparian rights which exist either with appeal to the local authority orwith appeal to the British authority, I do not care which-riparian rights appear to me to be afederal question, and therefore one which should be left to the decision of the federalauthority. I hope that it will be possible to find some phrase by which, without any injury tothe self-respect of either party to the dispute, this whole question may be referred to thatauthority which alone is competent on evidence to deal with it, which alone will have allthe facts before it-which will be able to adapt its legislation from session to session or fromterm to term to the changing facts it has before it.

Mr. BARTON (New South Wales).-Perhaps, notwithstanding Sir John Forrest's remarksabout the length of this debate, the fact that I have not occupied the attention of honorable

members for above three or four minutes in the whole course of it may justify me inseeking to put forward the position I hold, and in putting forward that position the firstmatter of importance is to inquire, what is the principle about which we are debating? I takeit that we shall not be able to decide many questions which will arise under thisConstitution precisely upon the principles upon which they would be decided in a Britishcourt of justice. That is to say, that there are powers and necessities arising under thisConstitution which must be construed more in the light of American decisions than theycan possibly be construed in the light of such decisions, for instance, as are given inEngland about navigable waters. Obviously, of course, the decisions about navigablewaters in England will not apply. That criterion which limits the navigable water to thedistance of the ebb and flow of the tide, has plainly no more applicability in this countrythan it has in America. Although it was set up by my learned friend (Mr. Wise) the otherday, I must say at once that I abandon any such contention as that, and I think our rightswill [start page 410] have to be regulated as regards navigation by considerationssomething like those which prevail in the courts in America. Now, I wish to take the standthat this sub-section should be struck out, and that no other sub-section should be insertedin its place. I wish to take the stand that the rights which are contended for, so far as theyare federal, are confined to rights of navigation, and that so far as they are rights of navigation they should be made applicable to the whole Commonwealth, and not to one ortwo rivers of New South Wales. When we are constituting a Commonwealth which is toregulate the trade and commerce of the whole of the federated colonies; when we find that


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a part of the regulation of trade and commerce is inevitably the regulation of navigation;When we also provide that the trade between all these colonies has to be absolutely free-what are we also providing? We are providing, as I shall show under the Americandecisions, that the control of navigation is under the authority which is intrusted with thecontrol of trade and commerce, and the regulation of that navigation is as important in thecase of any navigable water on the whole continent and Tasmania as it is important in thecase of any river which flows between New South Wales and South Australia, or betweenNew South Wales and Victoria. Now, with reference to this, I should like to quote apassage from Hare's American Constitutional Law , page 441, which lays down theprinciple rather clearly:-

We have seen that wherever inter-state or foreign commerce extends, the power of theUnited States goes with it for its protection, and may be exercised within the boundaries of the state when such action is requisite for the attainment of the object. The authority of Congress is consequently not limited to marine navigation, but includes all the waters of theUnited States through which intercourse takes place among the states, and with othernations

That is to say, that, where a vessel sailing from New South Wales to Western Australiaenters a river in Western Australia which is navigable, the control of that river fornavigation is as completely intrusted to the Commonwealth under a provision of this kindas if you had special words for that purpose.

The ebb and the flow of the tide, which is the test of navigability in England, and marksthe line at which the prerogative of the Crown ceases and private ownership begins, is asmuch out of place here as it would be if applied to the Rhine, the Danube, the Ganges, orthe Nile; and every stream or lake which can be traversed by ships or steamers, and affordsa continuous channel for the transportation of goods or passengers from state to state orabroad, is as much within the power to regulate commerce as the sounds, straits, and

estuaries which give access to the waters of the sea.

There is the principle laid down in perfectly unequivocal terms.

Hansard 2-2-1898

Mr. REID .-The effect of giving the Federal Parliament, if it chose, to legislate on thesubject, power to prevent our use of those rivers of New South Wales in the interests of New South Wales traders, as opposed to the interests of all other Australian traders. Inother words, that they would secure equality of commerce on those rivers. For that federalpurpose, I heartily hand over every pint of the waters of the Murrumbidgee and the Darlingto the Federation, to see that all the colonists of all the Australias, and indeed the citizens of the world at large, shall be absolutely equal and free upon those waters. That is where Ipropose to stop.

Mr. KINGSTON .-But not to give them any power to maintain the navigability of thoserivers?

[start page 446]


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Mr. REID .-The honorable member must see that in the case of rivers which are notalways navigable

Mr. KINGSTON .-I only wish to find out what you want.

Mr. REID .-That is the whole trouble. Here we have the River Darling, which runs for1,300 miles, and then becomes, not dry exactly, but certainly unnavigable. If we were togive to any tribunal on earth the power of maintaining the navigability of the River Darlingwe would absolutely put every irrigation scheme along the banks of that river in such aposition that it would be worthless-

Mr. HIGGINS .-How do you show that?

Mr. REID .-I find that my honorable friend's interjections do not generally tend toenlighten what I am saying, so I disregard them.

Mr. HIGGINS .-May I ask the right honorable gentleman this question?

Mr. REID .-Not at present. I wish to make this perfectly clear, that we must look thenatural facts in the face, that it is of no use to talk about maintaining the navigability of theriver, which nature has decreed shall, or may, at certain times, and often, be unnavigable.That being the case, if any power is charged with the duty of maintaining the navigability,we practically hand over every pint of water in these rivers to navigation, where navigationconflicts with the use of the waters for other purposes. That is the dilemma we are in, andwe will not, for the sake of ease and comfort, shirk that dilemma. We will not allow anyform of words to go into this Constitution which will place our colony in that position, anduntil-if the proposition of the leader of the Convention, which I think absolutely fair, is notadopted-we hit on some solution which will make it perfectly clear that the rights of NewSouth Wales over the waters of the Murrumbidgee and the Darling, for the purposes I have

mentioned, are preserved to New South Wales, all our labour here will be in vain. Theamendment of the learned member (Mr. Isaacs) is therefore objectionable to me on thispoint-that if we make the navigability of the rivers one of the powers of theCommonwealth, we, for such purpose, hand over, subject, of course, to what follows-Iquite understand that-the whole length of the Darling and the Murrumbidgee, to the actualphysical control of the Commonwealth. Now, the line we draw, as I said before, to sum upour position in a few words, is this: We will not hand over the actual physical control of theRiver Darling or the River Murrumbidgee, because they both absolutely belong to us.

Mr. BARTON .-We have no authority to do it.

Mr. REID .-Of course, we have no authority to do anything of the kind. But we are quitewilling, under general words, to give the Federal Parliament the same power over theserivers as it has over every other river in the Commonwealth, the power of stepping in whenwe, in the navigation of these rivers, establish unfair distinctions, to the prejudice of otherAustralians and to the advantage of our own colonists. That defines, I hope, clearly theposition we take up. It is a position which, I think I may say, is a final one. We are preparedto take all the risks of the decision on the words which are in sub-section (1). We will takeall our risks, because those are federal powers of a general character. But I again earnestlywish to make it perfectly clear to this committee that what I have said really defines thefinal attitude of New South Wales on this matter.


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that it is broad, statesmanlike, and just, not an extension but a limitation, and might behighly necessary.

Mr. SYMON .-But you object to it being added to the amendment that it is not to be alimitation.

Sir JOHN DOWNER . I do not know about that.

Mr. SYMON .-Some of us want it to be an extension.

Sir JOHN DOWNER .-I think the amendment is distinctly a limitation. But I should likethe position to be this: Suppose any citizen-because that is what it comes to-goes to theSupreme Court of the Commonwealth, and insists on the navigability of the stream beingpreserved, although it might be to the direct interests of not merely one state but of all thestates that it should not be preserved. We could only remedy that defect by an alteration inthe Constitution; and what Mr. Isaacs' amendment says is-"Let us consider both of thesethings-let us consider that irrigation might become much more important than navigation-and whilst preserving the initial state right of the stream being kept navigable, still give a

power to the Commonwealth to use the water for other purposes, it in the opinion of theCommonwealth-not of any particular state-that inter-state right should be infringed." As towhat navigability is, I do not think that depends altogether on the time when the river isnavigable. If in its natural condition a river is at times navigable, that is navigability, and inmy opinion we are entitled to have it preserved. My view is that striking out this clause willleave the matter broader than if you put it in; but I go for putting it in because it is a just[start page 452] and righteous limitation, and gives the Commonwealth a power which itought to have. We have had a lot of legal quotations from various sources about this matter.We had one from the Premier of New South Wales to the effect that in no case did anydecision ever question the right of a state to deal with the rivers within its own borders. Of course that applies when the river rises within the borders of the state, and also discharges

itself within the borders. But the moment the river rises within the borders of another state,or discharges within the borders of another state, a different aspect is given to the wholequestion, and we have to consider the rights of other people. Although we have notQueensland here at the present time-and more's the pity-I can well imagine the point of view that would be taken by the representatives of New South Wales if this River Darling,that our friends are treasuring so much, were interfered with, as it could be, by the action of Queensland. We cannot really deal with any of these questions without dealing with thewhole. The matter is essentially federal in certain aspects, distinctly local in certain otheraspects; and, while I agree with Dr. Quick as to preserving to every state the full power thatis properly exclusively applicable to that state, still, above all is the Australian principlethat, wherever rights may become conflicting, or even under some circumstances mightcause conflict, it is well to leave within the Constitution a means of settling them, and notfound this agreement, which is intended to give satisfaction to all, on a distinctly varyinginterpretation by different persons-taking different views of what is meant. The SouthAustralian representatives have been accused of taking a provincial view of this question.Now, I do not think that the view I take is in the slightest degree provincial. I say I haveasked for and would be satisfied to get a provision preserving the navigability of thenavigable streams within the Commonwealth; and what I want to get is only what, in thecase of adverse states adjacent to each other, is allowed by the comity of nations. Of course,when one comes to talk of right, there is no right at all. Every nation has a right to do withits own property just as it likes, as long as another nation lets it do so. That is the limitation


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of right. But, superadded to that comes another consideration-so long as other nations letthem do it; and out of that comes responsibility, and out of that the comity of nations, andfriendly agreements, which are as real as if they were the civil law of a particular nation. Iintend, sir, to vote in the first instance for Mr. Isaacs' amendment, and, failing that, I shallvote with Mr. Barton.

Mr. DEAKIN (Victoria).-Before the question is put, there are one or two observationswhich I should like to address to the committee, not in repetition but in continuation of those which I made on a previous occasion in connexion with the debate on this question.And, in the first instance, although I do not propose to enter in any way into theconsideration of the side issues raised by honorable members, there have been certainstatements made with reference to the Victorian policy in regard to the water questionwhich call for, at all events, a sentence or two of brief explanation. The record of thesedebates may fairly be expected to be widely read, and the observations to which I alludemight otherwise lead to a certain amount of misconception. My honorable and learnedfriend (Mr. Carruthers), the New South Wales Minister of Lands, had evidently beenfurnished by one of the officers of his department with a statement as to the quantity of water being diverted by Victorian irrigation works at the present time from the tributaries

of the Murray, and from the Murray itself; but I regret to say that the officer who furnishedthat information has confused the present and future tenses, and has included schemeswhich have not yet been attempted to be [start page 453] constructed with other projectspartially executed, and with schemes which are working, but are not yet fully developed.The statement which Mr. Carruthers has made on the faith of his officers, and which he hasbased upon official publications which he has been good enough to show to me, is, owingto that confusion of present and future tenses, altogether a misapprehension. For instance,the statement is made that we are taking 124,000 cubic feet of water per minute from theGoulburn. But, as a matter of fact, we are not diverting 10 per cent. of that quantity-indeednot 5 per cent. I am not able at the present moment to show exactly how much is beingdiverted per minute, but according to information given in the last annual return issued by

the Water Supply Department of Victoria, the total quantity diverted is shown to be not 5per cent. of the annual quantity which would be taken if it were as set down in the returnupon which my honorable friend founded his remarks.

Mr. CARRUTHERS .-Your head-works are not capable of doing it.

Mr. DEAKIN .-No, not capable even of diverting more than from three to four fifths of the amount the honorable gentler man mentioned, and the s

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