§ 476. “Seat of Government.”

The phraseology of this section, and its involved grammatical construction, raise several difficult questions of interpretation. How is the seat of Government to be acquired by the Commonwealth? What is the effect of its acquisition? And what is to happen pending the determination of the seat of Government? These and other questions must be answered; though the obscurity of the section makes it impossible, in the absence of judicial interpretation, to answer them with absolute confidence.

QUESTION AS TO A TEMPORARY SEAT OF GOVERNMENT.—The question has been raised as to whether, before the determination of the seat of government by the Federal Parliament, some place may be appointed as a provisional seat of government? Can there be a temporary capital prior to the selection of the permanent capital? Can such temporary capital be situated outside the State of New South Wales? At what place are the bulk of executive acts to be performed prior to the Federal Administration being provided with its statutory domicile? These questions were ably discussed, first in an opinion by Mr. R. E. O'Connor, Q.C., presented to the Legislative Assembly of New South Wales on 20th July, 1900, and in an answering opinion by Mr. Irvine, Attorney-General of Victoria, subsequently read in the Legislative Assembly of that colony.

In considering this section, and its possible meaning, it must be noticed that it is composed of several mandatory provisions succeeding one another, each being introduced by the verb “shall.” The problem of interpretation is—are these mandates blended or connected one with the other, and intended to operate as parts of one scheme beginning with and inseparably associated with the determination of the Parliament? Or can any of these mandates, from this collocation, be severed from the others so as to operate independently of and antecedently to the others? On the one hand it may be argued that the parts of the section relating to the grant, or acquisition, of a particular area of territory, and the situation of the territory in New South Wales, not less than 100 miles from Sydney, do not come legally into force until the Federal Parliament proceeds to determine the site; that prior to such determination the words “shall be in the State

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of New South Wales” have no legal operation, or effect, there being no determination upon which they can possibly bear; that, in fact, the Constitution is silent as to any seat of government before the statutory determination; that before such determination there is consequently no fixed seat of government, and the whole question is at large, with the exception of the last paragraph containing the mandate that the Parliament shall sit at Melbourne until it meets at “the Seat of Government.” What seat? Obviously the seat fixed by the determination, showing that until such determination there is no seat of government within the meaning of this section.

If this view be correct then the Executive Government of the Commonwealth could, before the determination of the seat by federal law, be conducted in any part of the Commonwealth, whilst considerations of convenience might suggest that it should — at least while the Parliament was sitting—be conducted in that part of the Commonwealth appointed for the temporary meeting of the Parliament, so that the Executive department might be in proximity to and in touch with the Legislative department.

On the other hand the view has been pressed with some force that the mandate “The seat of Government of the Commonwealth.… shall be in the State of New South Wales” is one which can be so severed from the other mandates as to Parliamentary determination, vesting, acquisition, &c., that it comes into force and action as a constitutional declaration from the moment that the Commonwealth is established, on the 1st January, 1901; that it operates continuously from that moment; that until the statutory determination of a site, within the qualified territory of New South Wales, the seat of government must be somewhere within that qualified territory and not outside of it, that all the Federal Parliament can do is to select a site within the part of New South Wales so qualified.

If this latter contention be the correct one, the federal capital will, from the establishment of the Commonwealth, and until the statutory determination of the site, be somewhere within the favoured region of New South Wales, 100 miles from Sydney, and the particular spot within the favoured region at which the mass of Executive Acts should be performed could be selected by the Federal Government, save and except the performance of such administrative business as must necessarily be performed in Melbourne in connection with the sittings of the Parliament.

Whichever view may be adopted, no serious constitutional difficulties, or complications, need arise in actual practice. The Constitution does not direct that the Governor-General must reside at the seat of Government, nor does it require Executive acts to be performed there. The implication, or rather the assumption, no doubt is that the Governor-General will reside there, so far as may be necessary to perform the duties of his office, and that all high administrative acts shall, in like manner, be performed there, and recorded there, so far as is practicable. But, whatever the implication or assumption, no penalty of invalidity or nullity could possibly result from non-observance thereof. No legal sanction whatever is annexed to any breach of any understanding connected with the seat of Government. The question involved will therefore, be decided, not only from the strictly constitutional aspect, but also from the point of view of convenience, mutuality of interest, and good faith.

REPRESENTATION OF TERRITORY.—As to the representation in the Federal Parliament of the seat of Government and the surrounding territory, see Note, § 473, supra.