Evans, Simon --- "Property and the Drafting of the Australian Constitution" [2001] FedLawRw 7; (2001) 29(2) Federal Law Review 121
[*] Lecturer, Faculty of Law, University of Melbourne. I am most grateful for the excellent research assistance provided by Josephine Tan and for the ARC Small Grant that funded it. I am also grateful for the comments of participants at the 2001 Real Property Teachers Conference where a draft of this paper was first presented.
[1] There are many excellent accounts of the Federation movement and the Conventions, including Helen Irving, To Constitute A Nation (paperback edition, 1999) and John Hirst, The Sentimental Nation: The Making of the Australian Commonwealth (2000).
[2] Official Record of the Proceedings and Debates of the Australasian Federation Conference, 1890 (1890) ('CD Melbourne 1890'); Official Report of the National Australasian Convention Debates. Sydney, 2 March to 9 April, 1891 (1891) ('CD Sydney 1891'); Official Report of the National Australasian Convention Debates. Adelaide, March 22 to May 5, 1897 (1897) ('CD Adelaide 1897'); Official Record of the Debates of the Australasian Federal Convention. Second Session. Sydney, 2nd to 24th September, 1897 (1897) ('CD Sydney 1897'); Official Record of the Debates of the Australasian Federal Convention. Third Session. Melbourne, 20th January to 17th March 1898 (two volumes, 1898) ('CD Melbourne 1898'). The Draft Bills are reproduced as follows: CD Sydney 1891, 943-964 ('1891 Draft Bill'); CD 1897 Adelaide, 1221–43 ('1897 Draft Bill'); CD Melbourne 1898, 2523–44 ('1898 Draft Bill'). The 1891–98 Debates were reprinted in a 1986 facsimile edition as Official Record of the Debates of the Australasian Federal Convention with a sixth volume of indices and commentary. The Debates have also been scanned and made available in searchable text form on the internet by the Senate <http://www.aph.gov.au/senate/pubs/records.htm> and the SETIS project <http://setis.library.usyd.edu.au/fed/> . These electronic versions of the Debates were indispensable in carrying out the research on which this article is based.
[3] Despite earlier taking the opposite view, see James A Thomson, 'Constitutional Interpretation: History and the High Court: A Bibliographical Survey' [1982] UNSWLawJl 17; (1982) 5 University of New South Wales Law Journal 309.
[4] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, 385.
[5] Noted by John Waugh, 'New Federation History' [2000] MelbULawRw 40; (2000) 24 Melbourne University Law Review 1028, 1041, referring to Kim Rubenstein, 'Citizenship and the Constitutional Convention Debates: A Mere Legal Inference' (1997) 25 Federal Law Review 295; Haig Patapan, 'The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia' (1997) 25 Federal Law Review 211; Rowan McMonnies, 'Ngo Ngo Ha and the High Court v New South Wales: Historical Purpose in History and Law' (1999) 27 Federal Law Review 471, 474–81; Fiona Wheeler, 'Original Intent and the Doctrine of the Separation of Powers in Australia' (1996) 7 Public Law Review 96.
[6] See reference from Cole v Whitfield, above n 4, 385.
[7] Michael Coper, 'The Second Coming of the Fourth Arm' (1989) 63 Australian Law Journal 731.
[8] Note also s 51(xxxiii) which deals with consensual acquisition of a particular kind of property.
[9] The Commonwealth is able to regulate property to some extent under other heads of legislative power, such as Australian Constitution s 51(xxvi) which since 1967 has allowed recognition and regulation of indigenous property rights and Australian Constitution s 51(xxix) which (given Australia's international treaty obligations) has allowed for regulation of environmentally significant areas.
[10] British North America Act 1867 (Imp) s 94. No such law had effect in any province until it was adopted by the legislature of that province. Apart from this provision, property and civil rights were within the exclusive legislative power of the provinces (s 92(13)), as was 'The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon' (s 92(5)).
[11] Report of the Select Committee of the Victorian Legislative Assembly on the Federal Union of the Australian Colonies (8 September 1857) reprinted in Papers Relating to A Federal Union (1862) 9 and quoted by Sir Henry Parkes, CD Melbourne 1890 (10 February 1890), above n 2, 34–5.
[12] Concise biographical information on the various delegates can be found in Helen Irving (ed), The Centenary Companion to Australian Federation (1999).
[13] CD Sydney 1891 (31 March 1891), above n 2, 525. See also Thynne, CD Sydney 1891 (3 April 1891), above n 2, 685.
[14] See generally Abbott, CD Sydney 1891 (12 March 1891), above n 2, 302.
[15] For example, Barton, CD Sydney 1891 (8 April 1891), above n 2, 690 (rivers); Griffith, CD Sydney 1891 (6 April 1891), above n 2, 781–4 (conciliation and arbitration). See also Wise, CD Sydney 1897 (16 September 1897), above n 2, 644; Thynne, CD Sydney 1891 (3 April 1891), above n 2, 685 (objecting to Commonwealth power in relation to banking, bills of exchange, promissory notes, bankruptcy and insolvency on the grounds that these invaded the States' authority over property and civil rights).
[16] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.
[17] Deakin, CD Melbourne 1898 (2 February 1898), above n 2, 455; Barton, CD Melbourne 1898 (7 March 1898), above n 2, 1992.
[18] Symon, CD Sydney 1897 (10 September 1897), above n 2, 296 quoting from the American, Samuel Adams.
[19] Reid, CD Melbourne 1898 (11 March 1898), above n 2, 2268, 2270, 2272–3; Reid, CD Melbourne 1898 (23 February 1898), above n 2, 1384–5; Trenwith, CD Sydney 1897 (15 September 1897), above n 2, 603–4; Robert Garran, The Coming Commonwealth (1897) 15–16.
[20] Playford, CD Melbourne 1890 (10 February 1890), above n 2, 71; Thynne, CD Sydney 1891 (16 March 1891), above n 2, 402–3.
[21] Report of the Select Committee of the Victorian Legislative Assembly on the Federal Union of the Australian Colonies, above n 11.
[22] Douglas J Whalan, The Torrens System in Australia (1982) 3–12.
[23] Western Australia did not receive responsible self-government until 1890 under the Constitution Act 1889 (WA).
[24] Bruce Davidson, 'An Historical Perspective of Agricultural Land Ownership in Australia' in James Lees (ed), A Legacy Under Threat?: Family Farming in Australia (1997) 15, 30–1; Stephen H Roberts, History of Australian Land Settlement 1788–1820 (1968) 218–58.
[25] To the extent that there were differences, they appear to have been fiscal. New South Wales derived a disproportionately large amount of its revenues from land sales: Donaldson, CD Sydney 1897 (6 September 1897), above n 2, 38–9; see also CD Sydney 1891 (12 March 1891), above n 2, 311. Barton certainly did not endorse New South Wales' policy: CD Sydney 1897 (8 September 1897), above n 2, 209 ('We are in an advantageous financial position in this respect as compared with the rest of the colonies, because we may be said to be cutting down the ancestral trees').
[26] An unsuccessful attempt was made to provide for how the Commonwealth should deal with its own public lands, apparently following the enthusiasm for perpetual leasehold sparked by Henry George in 1883: Glynn, CD Melbourne 1898 (8 February 1898), above n 2, 698–9. The view of the Convention appears to have been that this was the kind of contentious matter which ought to be left to the Federal Parliament: Brown, CD Melbourne 1898 (8 February 1898), above n 2, 699 (on Henry George and perpetual leaseholding, see Davidson, above n 24, 44; Roberts, above n 24, 408–9).
[27] CD Melbourne 1898 (25 January 1898) , above n 2, 151.
[28] Ibid 151–2. In Germany a similar power was vested in the Emperor.
[29] Ibid 152. Isaacs expanded on this point later, referring to American authorities: CD Melbourne 1898 (28 January 1898) , above n 2, 260–1 (here he also distinguishes between the Commonwealth as proprietor and the Commonwealth as sovereign). See also Isaacs, CD Melbourne 1898 (16 February 1898), above n 2, 1007.
[30] John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (first published 1901, reprinted 1976) 640–1.
[31] CD Melbourne 1898 (25 January 1898), above n 2, 152. See also the exchange between O'Connor and Cockburn, CD Melbourne 1898 (28 January 1898), above n 2, 258.
[32] CD Melbourne 1898 (25 January 1898), above n 2, 152. He need not have worried about a surplus: see New South Wales v Commonwealth (the Surplus Revenue Case) [1908] HCA 68; (1908) 7 CLR 179; Denis James, 'Federal–State Financial Relations: The Deakin Prophecy', The Vision in Hindsight: Parliament and the Constitution: Paper No 2, Research Paper No 17 1999–2000, Department of the Parliamentary Library (2000) 4-5.
[33] CD Melbourne 1898 (25 January 1898), above n 2, 153.
[34] Owen Dixon, 'Two Constitutions Compared' in J Woinarski (ed), Jesting Pilate and other Papers and Addresses (1965) 100, 102; Robert Menzies, Central Power in the Australian Commonwealth (1967) 54; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) [1920] HCA 54; (1920) 28 CLR 129, 151–2.
[35] CD Melbourne 1898 (25 January 1898), above n 2, 153. Section 53(II) then provided for exclusive Commonwealth power with respect to:
II. The government of any territory which by the surrender of any State or States, and the acceptance of the Commonwealth, becomes the seat of Government of the Commonwealth, and the exercise of like authority over all places acquired by the Commonwealth, with the consent of the State in which such places are situated, for the construction of forts, magazines, arsenals, dockyards, quarantine stations, or for any other purposes of general concern.
This aspect of s 53(II) was discussed further at CD Melbourne 1898 (28 January 1898), above n 2, 256–61. Note also s 51(xxxiii) which authorises Commonwealth laws with respect to 'the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State' (emphasis added).
[36] CD Melbourne 1898 (25 January 1898), above n 2, 152.
[37] CD Melbourne 1898 (25 January 1898), above n 2, 154.
[38] CD Melbourne 1898 (4 March 1898), above n 2, 1874.
[39] Ibid.
[40] Ibid.
[41] See reference from Cole v Whitfield, above n 4, 385.
[42] Quick, CD Melbourne 1898 (25 January 1898), above n 2, 151. See also the purposes referred to in draft cl 53(II), above n 35.
[43] Quick, CD Melbourne 1898 (25 January 1898), above n 2, 152.
[44] Cockburn, CD Melbourne 1898 (28 January 1898), above n 2, 258.
[45] Unless an argument can be built on the more specific acquisition powers in ss 51(xxxiii) and 85(ii). That seems unlikely.
[46] Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1, 20–1.
[47] Minister of State for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261, 290.
[48] [1941] HCA 20; (1941) 65 CLR 255, 282. See also The Australian Apple and Pear Marketing Board v Tonking [1942] HCA 37; (1942) 66 CLR 77, 82–3.
[49] Quick and Glynn had referred to Art 1, s 8, paras 17 and 18 of the United States Constitution: CD Melbourne 1898 (28 January 1898), above n 2, 151–2, but had not referred to the Takings Clause.
[50] One is framed as a legislative power subject to a limitation, the other as a guarantee of individual rights; one refers to 'acquisition', the other to 'tak[ing]'; one refers to 'just terms', the other to 'just compensation'; and one limits the purposes of acquisition to 'any purpose in respect of which the Parliament has power to make laws', the other to takings 'for public use'.
[51] James W Ely Jr, The Guardian of Every Other Right (1992) 34–58.
[52] On Madison's fears, see Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism (1990) 16–66.
[53] See below Part III(B).
[54] See Smith v ANL Limited (2000) 176 ALR 449, 451-452, 468, 476, 487, 494, 496-497 and the earlier cases cited in Simon Evans, 'When Is an Acquisition of Property Not an Acquisition of Property?' (2000) 11 Public Law Review 183, 199 n 67.
[55] 1891 Draft Bill, above n 2, Chapter IV, cl 6, para 2.
[56] 1897 Draft Bill, above n 2, cl 86, para 2.
[57] 1898 Draft Bill, above n 2, cl 85(II).
[58] Australian Constitution s 85(iii). That is supplemented by a requirement that the Commonwealth take over the current obligations of the states in respect of the departments transferred: Australian Constitution s 85(iv).
[59] Section 125 provides in part that so much of the seat of government as was Crown land should be acquired from the state in which it was situated 'without any payment therefor'. This text was introduced by the premiers after the 1897–98 Convention had ended and the first referendum in New South Wales had failed: John Quick, Historical Introduction to Annotated Constitution (1901) 219–20. It does not represent the outcome of the Convention's deliberative processes.
[60] The last is supplemented by a requirement that the Commonwealth take over the current obligations of the states in respect of the departments transferred: Australian Constitution s 85(iv).
[61] Dating at least from the time of Blackstone: William Blackstone, Commentaries on the Laws of England (first published 1765) vol 1, 139. Compare Durham Holdings Pty Ltd v The State of New South Wales (2001) 177 ALR 436, 443–444 (Kirby J).
[62] On those problems, see Evans, above n 54.
[64] CD Sydney 1891 (8 April 1891), above n 2, 883.
[65] Ibid.
[66] CD Adelaide 1897 (20 April 1897), above n 2, 1001.
[67] The prohibition on states imposing harbour rates and tonnage dues. Ultimately, the provision in relation to tonnage dues was omitted: CD Adelaide 1897 (20 April 1897), above n 2, 1004.
[68] CD Adelaide 1897 (20 April 1897), above n 2, 1001. Glynn returned to this theme in 1898, misconstruing the intended effect of the text: CD Melbourne 1898 (7 February 1898), above n 2, 653. Barton pointed out that the provision would not prevent taxation of private property and the clause was agreed to without division: ibid.
[69] CD Adelaide 1897 (20 April 1897), above n 2, 1001–2.
[70] CD Adelaide 1897 (20 April 1897), above n 2, 1002.
[71] [1908] HCA 28; (1908) 5 CLR 818.
[72] Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; (1992) 174 CLR 219.
[73] Nor to prohibit the States from imposing taxes on one another and one another's property: State Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32; (1996) 189 CLR 253.
[74] For example, Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548 on whether s 52(i) applied to property acquired by the Commonwealth within a territory.
[77] Mabo v State of Queensland [No 2] (1992) 175 CLR 1, 43–5.
[78] CD Melbourne 1898 (28 September 1898), above n 2, 261.
[79] Ibid.
[80] 1891 Draft Bill, above n 2, cl 53(2).
[81] [1994] HCA 62; (1994) 181 CLR 548, 560–1.
[82] See text above n 18, and following.
[83] [1995] HCA 47; (1995) 183 CLR 373.
[84] [1995] HCA 47; (1995) 183 CLR 373, 478–9.
[85] Ibid 480–2.
[86] CD Adelaide 1897 (31 March 1897), above n 2, 370.
[87] CD Adelaide 1897 (31 March 1897), above n 2, 373. See also Barton, CD Sydney 1897 (8 September 1897), above n 2, 207.
[88] CD Adelaide 1897 (19 April 1897), above n 2, 844.
[89] CD Adelaide 1897 (17 April 1897), above n 2, 825.
[90] CD Sydney 1891 (3 April 1891), above n 2, 690.
[91] CD Melbourne 1898 (3 February 1898), above n 2, 516–17.
[92] Ibid 517.
[93] CD Melbourne 1898 (25 January 1898), above n 2, 125.
[94] CD Melbourne 1898 (1 February 1898), above n 2, 406.
[95] CD Melbourne 1898 (21 January 1898), above n 2, 32–3.
[96] Ibid 34.
[97] Ibid 37.
[98] CD Melbourne 1898 (21 January 1898), above n 2, 60–1. O'Connor was not persuaded: 'Now that is a very pretty rhetorical figure, but by the same process of reasoning I have heard gentlemen satisfy themselves that there is no such things as property at all, that "all property is robbery," and that we ought to "begin again".' (CD Melbourne 1898 (24 January 1898), above n 2, 64.)
[99] Blackstone, above n 61, vol 1, 138, and vol 2, 2.
[100] Ibid vol 1, 49.
[101] Symon, CD Melbourne 1898 (2 February 1898), above n 2, 438.
[102] Including in relation to the rivers: Carruthers, CD Melbourne 1898 (1 February 1898), above n 2, 389; Reid, CD Melbourne 1898 (4 February 1898), above n 2, 579; Carruthers, CD Melbourne 1898 (7 March 1898), above n 2, 1955.
[103] Ibid. See also Wise, CD Melbourne 1898 (24 January 1898), above n 2, 105; Carruthers, CD Melbourne 1898 (1 February 1898), above n 2, 393.
[104] Abbott, CD Melbourne 1898 (11 March 1898), above n 2, 2292.
[105] Ibid 2287; contrast Carruthers, CD Melbourne 1898 (11 March 1898), above n 2, 2313.
[106] Higgins, CD Adelaide 1897 (20 April 1897), above n 2, 987.
[107] Fitzgerald, CD Sydney 1891 (9 March 1891), above n 2, 173.
[108] Wrixon, CD Sydney 1891 (1 April 1891), above n 2, 541.
[109] Abbott, CD Adelaide 1897 (20 April 1897), above n 2, 971 (and see more generally, ibid 970–2). Richmond’s letter was received by the 1891 Convention and ordered to be printed, together with Clark’s notes on the letter: CD Sydney 1891 (24 March 1891), above n 2, 510-511.
[110] Higgins, CD Adelaide 1897 (20 April 1897), above n 2, 988.
[111] Isaacs, CD Melbourne 1898 (11 March 1898), above n 2, 2316.
[112] 1898 Draft Bill, above n 2, cl 74.
[113] The story is told in more detail in, for example, Hon Sir Gerard Brennan AC KBE, 'Centenary of the Enactment of the Commonwealth of Australia Constitution Act' (2001) 75 Australian Law Journal 31, 32–3.
[114] CD Sydney 1891 (13 March 1891), above n 2, 315. Compare his Burkean vision of the ideal senate: ibid 319.
[115] See, for example, Hall, CD Melbourne 1890 (12 February 1890), above n 2, 184; Wise, CD Sydney 1897 (10 September 1897), above n 2, 326 (quoting Story J); Isaacs, CD Melbourne 1898 (9 February 1898), above n 2, 722; Deakin, CD Melbourne 1898 (8 March 1898), above n 2, 2042.
[116] CD Adelaide 1897 (20 April 1897), above n 2, 975 (in debate on a provision limiting appeals from Australian courts to the Privy Council); referred to by Higgins, CD Melbourne 1898 (31 January 1898), above n 2, 338–9.
[117] CD Adelaide 1897 (20 April 1897), above n 2, 983.
[118] CD Melbourne 1898 (8 February 1898), above n 2, 667–90; CD Melbourne 1898 (3 March 1898), above n 2, 1791–1802. The Tasmanian proposal was in the following terms:
The citizens of each state, and all other persons owing allegiance to the Queen and residing in any territory of the Commonwealth, shall be citizens of the Commonwealth, and shall be entitled to all the privileges and immunities of citizens of the Commonwealth in the several states, and a state shall not make or enforce any law abridging any privilege or immunity of citizens of the Commonwealth, nor shall a state deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of its laws.
[119] CD Sydney 1891 (11 March 1891), above n 2, 252. Compare EP Thompson, Whigs and Hunters: The Origin of the Black Act (1975).
[120] 1891 Draft Bill, above n 2, ch 1, cll 9 and 10.
[121] See McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 242–3.
[122] See Quick and Garran, above n 30, 57.
[123] Constitution Act Amendment Act 1890 (Vic) ss 43-45, 50-51. Certain professional and military men were exempted from the property requirements. See Quick and Garran, above n 30, 57.
[124] See Quick and Garran, above n 30, 48.
[125] Ibid 71, 74.
[126] CD Sydney 1891 (2 April 1891), above n 2, 598. See also CD Sydney 1891 (9 April 1891), above n 2, 926.
[127] CD Sydney 1891 (2 April 1891), above n 2, 634. See also his comments on property qualifications for membership of the Parliament (CD Sydney 1891 (18 March 1891), above n 2, 487) and on the unfairness of plural voting based on property ownership (CD Sydney 1891 (6 April 1891), above n 2, 750–1; CD Sydney 1891 (8 April 1891), above n 2, 889–90; CD Sydney 1891 (9 April 1891), above n 2, 926–7). Contrast CD Sydney 1891 (6 April 1891), above n 2, 751:
The state legislatures are not allowed to represent the people, but are forced by the present laws to represent capital, and, that being so, hon. members say that the state legislatures shall elect the senate – that is, a constituency unfairly and unjustly created is to return the senate – and then hon. members debate as if it were a matter of the greatest consequence to the liberties of the people of this country whether the senate or the house of representatives shall have the greater power. What care we for their power? It is the power of capital alone, and squabbles between two parties of capitalists little interest the people at large.
with CD Sydney 1891 (6 April 1891), above n 2, 753, where he extols the democratic composition of the Senate (whose members need not satisfy any property qualification) and urges that its powers not be limited.
[128] CD Sydney 1891 (2 April 1891), above n 2, 591–2.
[129] For example McIlwraith, CD Sydney 1891 (5 March 1891), above n 2, 63. There were other reasons for having the State Parliaments chose Senators other than preference for property-interests. Griffith saw it as a way of ensuring uniformity: if selection was instead in accordance with legislation enacted in each State, 'in one state they might represent the property-holders of the state, and in another state universal suffrage, and one man one vote' (CD Sydney 1891 (2 April 1891), above n 2, 591).
[130] CD Sydney 1891 (9 March 1891), above n 2, 148. Bryce was an English commentator on the American political and constitutional system. His The American Commonwealth (first published 1888, 3rd ed, 1893–1895) was much quoted at the Conventions. The United States moved to popular election of senators in 1913 on the ratification of the 17th Amendment to the United States Constitution.
[131] CD Sydney 1891 (9 March 1891), above n 2, 143–50, especially 146–8.
[132] CD Sydney 1891 (11 March 1891), above n 2, 235. Cuthbert said, 'I believe the Council now represents 130,000 of what may be called the very pick and flower of the population of Victoria. We have represented there both rich and poor. ... We have every careful and prudent man represented there'. (CD Sydney 1891 (12 March 1891), above n 2, 292.) It is worth comparing the Framers' ideas about poverty and pauperism in the debate seven years later on the proposal that the Commonwealth have power with respect to invalid and old-age pensions: CD Melbourne 1898 (21 January 1898), above n 2, 6-29; CD Melbourne 1898 (7 March 1898), above n 2, 1991–6. That debate largely concerned the federal issue (that is, whether the Commonwealth or the States should be responsible for pensions) rather than the merits of government-provided pensions and is accordingly not treated in detail here.
[133] CD Sydney 1891 (2 April 1891), above n 2, 613.
[134] CD Sydney 1891 (2 April 1891), above n 2, 613–14.
[135] Ibid 615.
[136] Kingston, CD Sydney 1891 (6 April 1891), above n 2, 736.
[137] Ibid 736–7.
[138] Ibid 735 (indicating his intention to vote against Baker's amendment: ibid 722).
[139] CD Sydney 1891 (2 April 1891), above n 2, 618–19.
[140] Ibid 619–20.
[141] Ibid 636–7.
[142] CD Adelaide 1897 (24 March 1897), above n 2, 38.
[143] CD Adelaide 1897 (15 April 1897), above n 2, 724.
[144] Ibid 726.
[145] Ibid 732.
[146] CD Sydney 1897 (13 September 1897), above n 2, 381.
[147] Dobson, CD Adelaide 1897 (26 March 1897), above n 2, 196–7.
[148] Baker, CD Melbourne 1898 (17 March 1898), above n 2, 2482.
[149] CD Sydney 1897 (20 September 1897), above n 2, 815 (emphasis added).
[150] Ibid. Compare Dobson, CD Melbourne 1898 (9 March 1898), above n 2, 2130.
[151] CD Sydney 1891 (2 April 1891), above n 2, 606–7.
[152] CD Adelaide 1897 (29 March 1897), above n 2, 251.
[153] CD Adelaide 1897 (31 March 1897), above n 2, 363.
[154] CD Adelaide 1897 (26 March 1897), above n 2, 192.
[155] CD Adelaide 1897 (15 April 1897), above n 2, 671. See also Dobson, CD Melbourne 1898 (8 March 1898), above n 2, 2026.
[156] CD Adelaide 1897 (15 April 1897), above n 2, 671.
[157] Australian Constitution s 8.
[158] Australian Constitution ss 30, 8.
[159] Australian Constitution ss 30, 8 and 51(xxxvi).
[160] Australian Constitution s 41.
[161] CD Adelaide 1897 (29 March 1897), above n 2, 207.
[163] See generally John Williams, 'Race, Citizenship and the Formation of the Australian Constitution: Andrew Inglis Clark and the "14th Amendment"' (1996) 42 Australian Journal of Politics and History 10.
[164] Ibid. See text above n 118.
[165] Australian Constitution s 127. The section was repealed by the Constitution Alteration (Aboriginals) 1967.
[166] Australian Constitution s 51(xxvi). The exclusion of 'the aboriginal race' from s 51(xxvi) was repealed by the Constitution Alteration (Aboriginals) 1967.
[167] Australian Constitution s 41.
[168] Australian Constitution s 128.
[169] See text above n 126 and n 127.
[170] CD Sydney 1891 (9 April 1891), above n 2, 927. Contrast Reid's attitude, expressed some years later:
Fortunately, there were no complications in regard to title; the aboriginals were as incapable of bargaining successfully as they were of fighting successfully. The Maoris of New Zealand were quite the opposite. They were just as keen in making a bargain as they were valiant in warfare. Hence this noble native race still possesses some of the most valuable estates in New Zealand. (Sir George Houston Reid, My Reminiscences (1917) 17–18).
[171] CD Melbourne 1890 (11 February 1890), above n 2, 125–6.
[172] Ibid.
[173] Ibid 126.
[174] CD Sydney 1891 (5 March 1891), above n 2, 66.
[175] Ibid.
[176] See above Section II(B).
[177] CD Sydney 1897 (22 September 1897), above n 2, 1077–85 (including debate on the proposed power with respect to parental rights and the custody and guardianship of infants).
[178] CD Melbourne 1890 (11 February 1890), above n 2, 128–9. In 1891, Deakin referred to these remarks:
He was careful to tell us that we must not at the present time expect anything from New Zealand; but he laid down with great fulness and freedom the duties which we immediately owed to that most beautiful, important, and wealthy colony, whose position, he led us to understand, was that of the coy maiden, not unwilling, and indeed expecting, to be courted, and whose consent would be granted by-and-by as a favour. (CD Sydney 1891 (5 March 1891), above n 2, 68–9).
[179] Hackett, CD Sydney 1891 (12 March 1891), above n 2, 275; Deakin, CD Melbourne 1890 (13 February 1890), above n 2, 106; Cockburn, CD Sydney 1891 (10 March 1891), above n 2, 196; Abbot, CD Sydney 1891 (12 March 1891), above n 2, 298–9; Deakin, CD Melbourne 1898 (17 March 1898), above n 2, 2500; Barton, CD Adelaide 1897 (21 April 1897), above n 2, 1108.