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  ― 978 ―

13. Miscellaneous.

Seat of Government.

125. The seat of Government476 of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth477, and shall be vested in and belong to the Commonwealth478, 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.

UNITED STATES. —[The Congress shall have power] to exercise exclusive legislation in all cases whatsoever over such District (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of Government of the United States.—Const. Art. I., sec. 8, sub-s. 17. CANADA.—Until the Queen otherwise directs, the seat of Government of Canada shall be Ottawa.—B.N.A. Act, 1867, sec. 16.

HISTORICAL NOTE.—Clause 1 Chap. VII. of the Commonwealth Bill of 1891 was as follows:—

“The seat of Government of the Commonwealth shall be determined by the Parliament. Until such determination is made, the Parliament shall be summoned to meet at such place within the Commonwealth as a majority of the Governors of the States, or, in the event of an equal division of opinion amongst the Governors, as the Governor-General shall direct.”

In Committee, Mr. G. R. Dibbs moved an amendment to make the clause read:—“The seat of Government of the Commonwealth shall be Sydney, New South Wales.” This was negatived by 26 votes to 4—all the New South Wales representatives, except Mr. Dibbs, voting against it. (Conv. Deb., Syd., 1891, pp. 899–900.)

At the Adelaide session, 1897, the same clause was adopted almost verbatim. In Committee, Mr. Walker proposed to insert “and shall be within an area which shall be federal territory.” It was thought better however to leave the Parliament unfettered—giving them the power, under section 52, to exercise exclusive jurisdiction over the seat of Government, but not expressly making it federal territory. The amendment was negatived. (Conv. Deb., Adel., pp. 1019–20.) At the Melbourne session, a suggestion by the Legislative Council of New South Wales, that the seat of Government should be “in Sydney in the colony of New South Wales,” was submitted. This evoked from Sir Edward Braddon an amendment in favour of “some suitable place in Tasmania;” from Sir George Turner the suggestion of “St. Kilda,” and from Mr. Symon the suggestion of “Mount Gambier.” The amendments were negatived, and Mr. Lyne then moved


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that the seat of Government should be “in the colony of New South Wales,” but he was induced by his colleagues to withdraw it. (Conv. Deb., Melb., pp. 700–12.) Later on, Sir George Turner proposed to insert the words “and shall be within federal territory,” whereupon Mr. Lyne moved to add to this amendment the words “and within the colony of New South Wales.” This time he pressed the matter to a division, but was defeated by 33 votes to 5. Mr. Peacock, to show that this vote was not a claim to the capital by Victoria, moved to insert the words “and within the colony of Victoria,” which was negatived by 36 votes to 3. Sir George Turner's proposal, that the capital should be within federal territory, was then carried by 32 votes to 12. (Conv. Deb., Melb., pp. 1802–16.) After the fourth report, the words “territory vested in the Commonwealth” were substituted for “federal territory,” and the clause was adopted by the Convention in the following form:—

“The seat of Government of the Commonwealth shall be determined by the Parliament and shall be within territory vested in the Commonwealth. Until such determination the Parliament shall be summoned to meet at such place within the Commonwealth as a majority of the Governors of the States, or, in the event of an equal division of opinion among the Governors, as the Governor-General shall direct.”

After the Convention Bill had failed to secure the statutory majority in New South Wales, the Legislative Assembly of that colony recommended that provision should be made for the establishment of the federal capital “at such place within the boundaries of New South Wales as the Federal Parliament should determine.” The Legislative Council of New South Wales asked that the capital should be in Sydney. At the Premiers' Conference, 1899, it was agreed to amend the clause to its present form. In the Imperial Parliament, the words “if New South Wales be an Original State,” and “if Victoria be an Original State” were omitted as no longer necessary.

§ 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.

§ 477. “Granted to or Acquired by the Commonwealth.”

ACQUISITION OF THE SITE.—The chief question which has arisen in connection with these words is whether the determination of the seat of Government rests, in the last resort, solely with the Federal Parliament, or whether the Federal Parliament is limited in its choice to sites offered by the Parliament of New South Wales. The opening words of the section strongly favour the former view; but it has been argued that the words “shall be within territory which shall have been granted to or acquired by the


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Commonwealth” point to a prior act of cession by the Parliament of New South Wales, and that — no express power to “acquire” being given by this section—the acquisition must be by surrender and acceptance under sec. 111.

The word “granted” does not occur elsewhere in the Constitution, except in the second paragraph of this section, where it is provided that so much of the territory as is Crown lands “shall be granted to the Commonwealth” without payment. What then is the meaning of the alternatives of grant or acquisition? One explanation that has been suggested is that Crown lands are to be “granted” and other lands are to be “acquired;” but this is not satisfactory, because the section deals with territory, not with property; and the distinction between Crown lands and privately owned lands is one of property, not of territory.

It is submitted that the word “granted” contemplates, as one mode of acquisition, the surrender of territory by the Parliament of New South Wales, and its acceptance by the Federal Parliament, under sec. 111. It is undoubtedly to be desired that the site should be mutually agreed upon between the Commonwealth and New South Wales; and we may anticipate that if any such agreement is possible no other mode of acquisition will be resorted to.

But what is the alternative mode of acquisition contemplated by the words “or acquired?” It can hardly refer to acquisition in the exercise of the power of “eminent domain” under sec. 51—xxxi., because that applies to “property,” not to territory. Nor can it refer to acquisition by surrender and acceptance under sec. 111, because that is already provided for by the word “granted.” The only conclusion is that the words “or acquired” refer to a different mode of acquisition; and the true interpretation seems to be that, failing an agreement between New South Wales and the Commonwealth, this section confers upon the Federal Parliament a reserve power to acquire a site without the concurrence of the Parliament of New South Wales. In other words, the power to determine the seat of Government, coupled with the direction that the seat of Government shall be within territory granted to or acquired by the Commonwealth, implies that the Commonwealth, in the absence of a grant, has power to acquire the necessary territory without grant.

That this was the intention of the framers seems clear from the history of the section. In the Adelaide Bill (see Hist. Note) it was provided simply that the seat of Government “shall be determined by the Parliament.” At the Melbourne session, the words “and shall be within federal territory” were added. This was expanded by the Premiers' Conference to read “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.” The object appears to have been to supplement the power of surrender and acceptance by a special power of federal acquisition, to make it clear that the duty of the Federal Parliament to determine the site could not be blocked by a refusal of New South Wales to surrender the territory needed.

This view seems to be supported by a general perusal of the section. There is a clear declaration that the seat of Government is to be determined by the Parliament, but there is no declaration that the concurrence of New South Wales is essential. Had that been the intention, it would surely have been expressly mentioned, and not left to be gathered by implication—and especially by implication from such wide words as “granted or acquired.”

Against this construction, it may be urged that whilst the federal territory is to contain an area of “not less than 100 square miles,” no maximum limit is fixed. It can hardly be supposed that the Federal Parliament has power to federalize an unlimited area of New South Wales as a seat of Government. But the answer seems to be that the power only extends to the acquisition of an area reasonably necessary for the purpose; and perhaps in the case of acquisition without surrender, the reasonable maximum would be held not to exceed, or greatly exceed, the minimum of 100 square miles.




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MR. OLIVER'S REPORT.—In November, 1899, in view of the fact that the Parliament of New South Wales might be called upon to offer or recommend a site for the seat of Government, the Government of New South Wales appointed Mr. Alexander Oliver, the President of the Land Court of that colony, as a Commissioner to enquire into and report upon the suitability of sites. He inspected a number of sites and took a quantity of evidence; and in his report, which was laid on the table of the Legislative Assembly on 30th October, 1900, he reported favourably upon three sites, in the neighbourhood of Orange, Yass, and Bombala respectively.

MEASUREMENT OF DISTANCE.—It would seem that the distance of 100 miles from Sydney is to be measured in a straight line, in accordance with the provisions of sec. 34 of the Imperial Interpretation Act, 1889 (p. 793, supra). Distances mentioned in Acts of New South Wales are measured by the nearest road (Interpretation Act [N.S.W.], 1897, sec. 35); but that can hardly be relied upon to show a “contrary intention” within the meaning of the Imperial Act.

§ 478. “And shall be Vested in and Belong to the Commonwealth.”

The grammar of this section is by no means clear. Is it the “seat of Government” or the “territory” within which the seat of Government is situated that is to be vested in and belong to the Commonwealth? In the clause as framed by the Convention it was clear that the “territory” was to be vested in the Commonwealth, and it is submitted that this is the true reading of the section. That is to say, the words “and shall be vested,” &c., are part of the relative sentence “which shall have been granted,” &c., referring to the antecedent “territory.”

It is clear from this construction that the Commonwealth acquires under this section territorial rights only, and not proprietary rights. What the Commonwealth may acquire under section 51—xxxi. is “property;” what it acquires under this section is “territory.” Landowners or Crown Lessees within the territory chosen for the seat of Government will not be dispossessed unless the Federal Parliament chooses to dispossess them. The result of the transfer of territory will be that instead of holding from the Crown, as represented by the Government of New South Wales, they will hold from the Crown as represented by the Government of the Commonwealth; and the Commonwealth, in the exercise of its exclusive jurisdiction over the territory, will be free to resume so much of the privately opened land as it requires, in accordance with laws passed under the power of “eminent domain” (sec. 51—xxxi.), and subject, of course, to the constitutional requirement of just compensation.

CROWN LANDS—The meaning of the provision that Crown lands shall be granted without payment therefor is not clear, and seems to involve some confusion between territorial and proprietary rights. It may be construed to apply to lands which are Crown lands within the meaning of the Crown Lands Acts of New South Wales; or it may—as Mr. Oliver suggests in his report—apply only to vacant Crown lands. It does not appear to mean that the occupation of Crown tenants is necessarily to be disturbed by the acquisition of the territory. It is perhaps intended to mean that the rights of the Crown, in any lands whatever, shall not be the subject of compensation, although the proprietary rights of individuals, if their land is resumed, must be dealt with on just terms (sec. 51—xxxi.). Mr. Oliver, however, suggests that in the case of lands which are not “Crown lands” in the ordinary acceptation of the term, the State may be entitled to compensation for the loss of its rights of taxation.

EXCLUSIVE POWER.—The seat of Government, when determined by the Parliament and duly acquired, becomes subject to the jurisdiction of the Federal Parliament, which has exclusive power to make laws for its peace, order, and good government. (See notes to sec. 52—i.)




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Power to Her Majesty to authorise Governor-General to appoint Deputies.

126. The Queen may authorise the Governor-General to appoint any person, or any persons jointly or severally, to be his deputy or deputies479 within any part of the Commonwealth, and in that capacity to exercise during the pleasure of the Governor-General such powers and functions of the Governor-General as he thinks fit to assign to such deputy or deputies, subject to any limitations expressed or directions given by the Queen; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function.

CANADA.—It shall be lawful for the Queen, if Her Majesty thinks fit, to authorize the Governor-General from time to time to appoint any person or any persons jointly or severally to be his Deputy or Deputies within any part or parts of Canada, and in that capacity to exercise during the pleasure of the Governor-General such of the powers, authorities, and functions of the Governor-General as the Governor-General deems it necessary or expedient to assign to him or them, subject to any limitations or directions expressed or given by the Queen; but the appointment of such a Deputy or Deputies shall not affect the exercise by the Governor-General himself of any power, authority, or function.—B.N.A. Act, 1867, sec. 14.

HISTORICAL NOTE.—Clause 2, Chap. VII., of the Commonwealth Bill of 1891, was in almost identical words, and was adopted verbatim at the Adelaide session, 1897. At the Melbourne session, suggestions by the Legislative Assembly of South Australia, to limit the provision to a single deputy for the whole Commonwealth, and to omit the concluding sentence, were negatived. (Conv. Deb., Melb., pp. 712–3.) Verbal amendments were made after the fourth report.

§ 479. “Deputy or Deputies.”

The Deputies provided for in this section are quite distinct from the Acting-Governor-General, or Administrator of the Government of the Commonwealth, referred to in sec. 4, supra. An Acting-Governor-General is appointed by the Queen, and acts only in the absence or incapacity of the Governor-General, or during a vacancy in the office; and while he so acts, he has all the powers of the Governor-General. (See Notes, sec. 4, supra.) A Deputy, on the other hand, is merely a person to whom the Queen may enable the Governor-General himself—subject to the Royal instructions — to delegate particular duties in particular localities. The immense area of the Commonwealth may make it convenient that some of the powers of the Governor-General, in some parts of the Commonwealth, should be thus exercisable by deputy.

This provision has been adopted from a similar section in the Canadian Constitution, respecting which Mr. Wheeler has the following note:

“Does this mean that there may be two persons with power to exercise one function? The clause provides that the Governor-General may appoint a deputy and may at the same time reserve the power of himself exercising the functions. (Att.-Gen. Canada v. Att.-Gen. Ontario, 1892, 3 Ont. App. 6; 19 Ont. Rep. 47. See where a Deputy-Governor acted, Reg. v. Amer, Feb. 23, 1878, 42 Upp. Can. Q.B. at p. 408).” (Wheeler, C.C., 10.)




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Aborigines not to be counted in reckoning population.

127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives480 shall not be counted.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891, Sir Samuel Griffith, in Committee, added a new clause as follows:—“In reckoning the numbers of the people of a State or other part of the Commonwealth, aboriginal natives of Australia shall not be counted.” (Conv. Deb., Syd., 1891, pp. 898–9.)

At the Adelaide session, 1897, the same clause was adopted, with the omission of the words “of Australia.” In Committee, Dr. Cockburn urged that natives who were on the rolls ought not to be debarred from voting; but it was pointed out that the clause did not affect their rights. (Conv. Deb., Adel., p. 1020.) At the Melbourne session, a suggestion by the Legislative Councils of New South Wales and Tasmania, to insert “and aliens not naturalized,” was negatived. (Conv. Deb., Melb., pp. 713–4.) After the fourth report, the words “of the Commonwealth or” were inserted.

§ 480. “Aboriginal Natives.”

The following figures show the number of aborigines enumerated or believed to exist in each Australasian Colony in 1891:—

                   
Colony.  Males.  Females.  Total. 
Victoria ... ... ... ...  325  240  565 
New South Wales... ...  4,559  3,721  8,280 
Queensland (1881)... ...  10,719  9,866  20,585 
South Australia... ... ...  14,510  9,279  23,789 
Western Australia... ...  3,516  2,729  6,245 
Tasmania... ... ...  73  66  139 
Commonwealth... ...  33,702  25,901  59,603 
New Zealand... ... ...  22,861  19,132  41,993 
Total... ... ... ...  56,563  45,033  101,596 

In most, if not in all, of the colonies, this enumeration was incomplete. In Victoria, whilst only 565 (including half-castes) were enumerated, 731 are believed to be in existence. In Queensland no attempt wrs made to enumerate or estimate the number of aborigines, therefore the number returned in 1881—which is believed to understate the truth—has been repeated. In South Australia the aborigines were not regularly enumerated, the figures given being derived from estimates. In Western Australia only civilized aborigines were enumerated. In the numbers given for that colony 575 are half-castes. In Tasmania there are no longer any aborigines of unmixed race, the last male having died in 1869 and the last female in 1876. There are, however, a few half-castes. With the Maoris of New Zealand, 40 Morioris are included. These are the last surviving aboriginal inhabitants of the Chatham Islands, which are a group lying about 360 miles to the east of New Zealand, and form a dependency of that colony. (Mr. J. J. Fenton, Assistant Government Statist of Victoria, 1899.)

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