Advanced Australia/Chapter 10
Chapter X
A POINT IN THE COMMONWEALTH BILL
THERE are only three bonds by which our present Empire is held together; (1) our hegemony in matters of foreign policy; (2) the legislative veto; and (3) the judicial prerogative of the Crown.
The first is a vague power, depending on abundant good management as well as goodwill from all parties concerned. How valueless it is bound to become in cases where the spontaneous friendliness born of racial solidarity is lacking, may be seen in the cases of the Transvaal and the Orange Free State; both of which (not to enter upon any discussion about that precious word suzerainty) we claim to hold under our hegemony; a claim which they as frankly repudiate. Canada has accepted the necessary drawbacks of her position as a secondary state with a loyalty past all praise. The sagacity and statesmanship of her leaders has led them to postpone the interests of the Dominion to those of the Empire, as freely as though the organic union of our world-state were an accomplished fact, instead of an ideal which they have done much towards realising. And their lofty subordination, their politic unselfishness, has won them an established and honoured place in the councils of the Empire. But it will be seen that the position needs regularising. Colonies are not all, nor always, so wisely administered as Canada. Australia, in the past, has often shown a quite pardonable restlessness, in face of the irritating, though comparatively unimportant, foreign complications which have been forced on her attention. New Caledonia, the New Hebrides, New Guinea, have each in turn been used by the bolder sort of colonial politician as an excuse to force the hand of a supposedly neglectful Colonial Office. Armed vessels have been sent from New Zealand on missions which the Imperial Government has been forced to disavow. The Chinese and Japanese questions are, perhaps naturally, considered in our colonies with sole reference to local predilections and convenience, and with no regard to the exigencies of British diplomacy. The arbitrary exclusion by Natal, for example, and Western Australia, of the Queen-Empress's Indian subjects, some of them wearing war-medals on their breasts; or by New Zealand of Austrian immigrants; are not, perhaps, great matters at present. But there are coming questions in the Pacific which, when the Australian Dominion makes her voice heard, will not be small matters at all. Meanwhile, the position, in regard to our half-veiled, half-acknowledged, ascendency is that it is asserted from time to time, as occasion demands and as circumstances may permit, by the Colonial Office, through the Governors; and is generally, perhaps, understood to be based upon a latent claim of the British Parliament, as such, to supremacy; a claim which is unconstitutional in itself, and the only historical basis of which derives from the days of the great Whig encroachment. Government without representation is foreign to the spirit of the constitution. The less Parliament interferes with India and the Colonies, the better it will be for the Colonies, for India, and for the Empire. The Crown conducts our foreign policy through its advisers of the Privy Council, who possess the confidence of Parliament. Sir John Macdonald understood the theoretical position when, in shaping a Canadian Privy Council, he foreshadowed a Kingdom of Canada; for in the three great secondary dominions of Canada, Australia, and South Africa, each with its legislature, and each with its Council advisory of the King-Emperor, while the original or British Privy Council (supplemented, as it has already begun to be, from the colonies) "animates the whole," we see the real future constitution of self-governing Anglo-Saxondom, the real British Empire to which India and the other dependencies should be attached.
The second bond of union, the legislative veto, is useful as securing, amongst other things, some degree of legislative uniformity within the Empire. This power is not threatened by the new Commonwealth Bill, which proposes, on the contrary, substantially to strengthen it. But it is purely negative, both in its nature and influence, and can of course form no foundation of empire.
The third, the judicial prerogative of the Crown, is the very central of those crimson threads of which a recent school of Imperial Federation Leaguers was so fond of talking. Tod calls it one of the most stable safeguards, as well as one of the most beneficial acts, of the sovereign power. The appellate jurisdiction of the Queen in Council is retained primarily for the good of the colonies, and not for that of the mother country. Nothing is more necessary, particularly in the Australian colonies, than to secure the rights and property of the individual citizen, in a young, hasty, and democratic community, against the bureaucratic enthusiasms of departmental tyranny. It is not infrequently useful, for reasons more generally understood at home, to change the venue. The standard of legal training, again, is not always at its highest in the most remote parts of the Empire, and the field from which judges are picked is necessarily less extensive than at home. But more serious is the tendency of colonial executives, in communities where the authority of the common law, and the dignity and independence of the Bench, have not yet had much time to become established in the public mind, to try to subordinate the judiciary to themselves. What the legislature has established as the law, it is argued, the legislature can interpret. The legislature is supreme, as the representative of the people; and the legislature, which, for the purpose, means the Government, knows the intention with which particular laws were passed. Hence a quite frequent (though, to the English mind, all but incredible) recourse to retrospective legislation; and, especially in the smaller colonies, a parallel and growing tendency to obstruct or prevent Petitions of Right. Nor is this subordination of the Courts to the Executive confined to the more corrupt communities, though its most flagrant and most complete manifestation has been in the most corrupt of all, the Transvaal. It is quite compatible with the purest and most disinterested zeal for democracy or for the immediate public good; and may be the fruit, at times, of nothing worse nor more uncommon than narrow views and an ignorance of law. The Commonwealth Bill provides for the establishment of a Federal High Court of Australia, to hear and determine (1) all cases of dispute between the Federated States, or all cases in which State rights are concerned; and (2) private cases, except such as the subsequent legislation of the Federal Parliament shall permit to be taken to the Privy Council. In Canada, the Act of 1875, which was drafted by Sir John Macdonald in 1869, gave the Supreme Court final and conclusive jurisdiction, "saving any right which Her Majesty may be pleased to exert by virtue of her royal prerogative." These last words, it has since been held, leave untouched the prerogative to allow an appeal, and the correlative right of every subject of the realm to make one. Consequently appeals from Canada, as from all other parts of the Empire, to the Privy Council are of frequent occurrence, and of the utmost convenience. Three new judges, from Canada, the Cape, and Australia respectively, have been added to the Judicial Committee of the Privy Council within the last three years, and sit regularly for the hearing of colonial cases. And the Judicial Committee of the Privy Council is empowered (again to quote Tod) to consider "any matters whatsoever the Crown shall think fit to refer to it."
As to opinion at the Antipodes, there is good reason to suppose that the majority of Australians themselves are opposed to the serious encroachment on the royal prerogative threatened by the Bill. Not only has it been a commonplace of the large, and in some colonies influential, anti-Federal party to denounce the whole institution of the new High Court as a source of oppression and expense—an argument which is still freely employed in Western Australia—but the more intelligent property-holding classes are perhaps generally opposed to it, or at all events to its substitution for the Privy Council as a final Court of Appeal. The Legislative Council of New South Wales, as we have seen, has already expressed itself strongly on this point; and has been followed in its course of protest by various other representative bodies. The insertion, by Parliament, of some such clause in the Bill as that which preserved the constitutional position in the case of Canada is, therefore, it would seem, likely to be at least not unpopular in Australia; while, having regard to Imperial interests, it is vitally essential.