12th Parliament · 1st Session
Mr. Speaker (Hon. Norman Makin) took the chair at10 a.m., and offered prayers.
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Assent reported.
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Agenda
– Is the Prime Minister in a position to furnish the House with details of the agenda for the Imperial and Economic Conferences, a precis of which has appeared in the press ?
Mr.SCULLIN.- I have seen the precis to which the honorable member refers, but do not think that it is complete. I expect to have the complete agenda, probably to-day, but cannot say definitely whether I shall or not.
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Dismissal of Linemen - Tenders
– Will the PostmasterGeneral state whether it is a fact that 200 linemen in his department,who are engaged upon work that is urgently needed, have received notices of dismissal? If so, in view of the estimate that the revenue of the department will’ be increased this year, will he retain the services of these valuable employees?
– I have no information respecting the number of men with whose services it is proposed to dispense, but shall have inquiry made into the matter. I assure the honorable member that everything possible is being done to keep men employed for as long as possible.
– I have received communications from the Radio and Telephone Manufacturers Association, The Amalgamated Society of Engineers, and the Trades and Labour Council of New South Wales regarding the practice that is followed in the Postal Department with respect to tenders. A paragraph in the letter that has been sent to me by the first-named association reads as follows -
The Association strongly dissents from the viewpoint expressed by the PostmasterGeneral regarding the necessity for secrecy in respect of its system of tenders. This policy of secrecy which was initiated by the Director of Postal Services constitutes a violation of the spirit and intention of the Common wealth law cited above. It places Australian industries at a great disadvantage and prevents local tenderers from ascertaining the details of the successful tender. It provides no method of checking the bona fides of officers who have at their disposal the placing of millions of pounds worth of contracts in the public interest.
Will the Postmaster-General state whether he is still pursuing that policy of maintaining secrecy in the calling of tenders?
– The representations to which the honorable member has referred have been made direct to me, and are receiving consideration at the present time.
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– Will the Prime Minister state whether lard, and the small goods that are made from the flesh of swine, are exempt from the sales tax?
– It has been decided that ham and bacon shall be exempt. The question thathas been raised by the honorable member is now under consideration.
– I have been approached by sawmillers who supply cities and towns with firewood, with the request that I ascertain whether the sales tax is to apply to firewood. Will the Prime Minister state whether it does so?
– I have no doubt that quite a number of items will be referred to in the course of the debate on the bills in committee. Firewood has not yet received special consideration.
– These men do not know where they are; and the tax operates from to-day.
– All that I can say at present is that inquiry will have to be made into the matter.
– Will the tax be charged on meals that are supplied in cafes?
– No; the sale of food supplied in that way is not a wholesale transaction.
– Seeing that sugar is exempt under the sales tax, and that syrupand treacle are the food of the poor, will they be similarly excluded from its operation ?
– There is no provision to exempt syrup and treacle from the operation of the sales tax.
– I have received the following telegram from the Perth Chamber of Commerce -
Further to our protest of 16th July this chamber, representative of the commercial community, desires the postponement of imposition of sales tax until such times acts been definitely passed by both Houses of Parliament No copies bill available here and Deputy Commissioner Taxation can afford no Information. Impossible commercial community understand operation proposed tax without copy bill. If bills passed strongly urge operation of tax be deferred until 1st September.
In view of the utter lack of information by the general public, will the
Prime Minister defer the operation of the sales tax until such time as the general community, especially the people in remote districts, has an opportunity to ascertain particulars as to the incidence of the tax and what is required of it?
– I genuinely regret that the Government was unable to get the bills out sooner, so that they might have been distributed throughout Australia before the tax began to operate. But, as I explained when introducing the bill, the Government has budgeted for a 10 months’ collection of the sales tax during the present year, and any postponement of the date of operation of the tax would seriously affect the budgetary position. A postponement of the tax for only one month would involve the loss of £500,000. The difficulties are not so real as honorable members may be led to believe by the sheaves of telegrams that they are receiving. They are not anything’ so great as when a big tariff schedule is suddenly laid on the table. The business people will find that they will not experience as muchdifficulty through the operation of thetax as they imagine. It applies to wholesale transactions only, and if there isa doubt about an item, it can be invoiced subject to a later charge in respect of the tax. There can be very little doubt as to the list of exempt items, as lists of exemptions have been telegraphed to every part of Australia.
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– Has the Prime Minister any reply to make to the statement of the Premier of Queensland that it seems likely that influence was brought to bear on the Government to induce the right honorable gentleman to change his mind with respect to an extension of the sugar embargo and the appointment of a committee to inquire into the industry? Is it a fact that a promise was made to the deputation which waited upon the right honorable gentleman last week, that an extension of the agreement for twelve months would be granted?
– I have not yet had time to read the criticism of the Premier of Queensland, The honorable member forLilley, however, has not accurately described the position. Last Saturdaya deputation representative of sugar interests, accompanied by honorable members from both sides of the House, waited upon me. The minutes of that deputation show that, after its members had placed their case before me, I discussed with them two alternative proposals. One suggestion was that, if an inquiry into the industry was to be made, the agreement should be extended for one year. I laid it down that the Government could not decide without an investigation whether the agreement should be extended. It was urged that there should be an early decision, be- cause financial arrangements had to be made for the planting of the following season’s crop. We discussed the question whether an inquiry could be completed in time toen able a decision to be made before the expiry of the agreement, or whether it would not be advisable to extend the agreement for twelve months. I stated definitely that no decision could be made until the matter had been considered by Cabinet; an extension of the agreement was therefore not promised. It is true that finally the discussion centred upon an extension of the agreement for twelve months, and the possibility of the inquiry being commenced early next year; but there was neither a definite promise nor a definite decision. I took the whole of the results to Cabinet, which examined the matter thoroughly. In the period that intervened between my reception of the deputation on Saturday and the meeting of Cabinet on Tuesday, I received from numerous sources a request that others interested in the sugar industry should be given an opportunity to present their views before any extension of the agreement was made. No matter what views honorable members may hold, they must be impressed by the reasonableness of that request. Consequently, the Government decided to proceed immediately with the inquiry, and not to extend the agreementeither temporarily or permanently until the investigation had been made. The present embargo expires on the 31st August, 1931. When the agreement was made on the last occasion in 1925, no extension of the previous agreement was granted until December, 1924. It will thus be seen that there is ample time for the report to be considered before the expiry of the present agreement, and for an agreement to be made at a date as far removed from that event as on the last occasion. That is the view which is held by Cabinet. Moreover, it was pointed out to me by the sugar interests that the present is the best time to conduct an inquiry into the industry, because all the mills will be working. I assure the House that there will be no delay. A temporary extension of the agreement would carry the embargo to August, 1932, without inquiry. The Government feels that an inquiry should precede any extension, either temporary or permanent.
Mr.GULLETT. - In view of the very great importance of this matter, will facilities beafforded for the committee totake evidence in centres such as Melbourne, Adelaide, and the fruit-growing districts.
– And in Perth.
– If necessary, in Perth also. If that is the intention, does the Prime Minister consider that two months will be adequate for the making of the investigation and the preparation of the report?
– I have been guided by those who have had very considerable experience of the industry. Having consulted with an officer of the Department of Trade and Customs whose experience has been lengthy, and with other persons, I have come to the conclusion that two months will prove to be adequate. It will not, I think, be necessary for the corn mittee to travel over the whole continent. Of course, it will visit States other than Queensland; and provision is being made for it to do so. Because Sydney, Melbourne, and perhaps Adelaide are visited, it does not necessarily follow that Hobart and Perth also should be included in the itinerary.
– . Will the committee accept written statements from every State?
– It can receive representations, either written or verbal, from all parts of Australia.
– Will it be competent for any State Government to appear before the committee for the purpose of representing its views?
– There will be nothing to prevent any person, body or government from attending the sittings of the committee and placing his. or its views before it.
– So that reliable evidence may be placed before the committee, will the right honorable gentleman consider the advisability of having the evidence taken on oath?
– That matter has been considered. The Government believes that there is in Australia a sufficient number of truthful people who will give reliable evidence without being sworn.
– Will this Parliament have an opportunity to discuss the report of the committee before the country is committed to an extension, other than a temporary one, of the agreement, or a variation of it?.
– So far as I am aware, the sugar agreement has never been discussed in Parliament before it has been made. , This Government will take the full responsibility of examining the report and of acting upon it.
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– Has the Assistant Minister for Trade and Customs had transcribed the shorthand notes of the representations that were made to him by the deputation that waited upon him about a fortnight ago, urging the removal of the new prohibition against certain kinds of glassware ? Further, is he aware that all the essential points made by that deputation were already in writing and in possession of those who waited upon the Minister, and were handed to officers of the department who were present?
– The day before yesterday my secretary approached the honorable member for Henty, and received from him information as to some matters of outstanding importance that had not been presented by the deputation. The shorthand notes have now been typed, and will receive the full and sympathetic consideration of the Minister for Trade and Customs andmyself.
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asked the Prime Minister, upon notice -
– The answers to the honorable member’s questions are as follow:
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asked the Treasurer, upon notice -
– The answers to the honorable member’s questions are as follow: -
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Personnel-Aircraft
asked the Minister for Defence, upon notice -
– The information is being obtained, and a reply will be furnished to the honorable member as soon as possible.
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asked the Minister for Works and Railways, upon notice -
– The answers to the honorable member’s questions are as follow : -
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Medical and Dental Courses - Training Overseas
asked the Minister for Defence, upon notice -
– The information is being obtained and a reply will be furnished as soon as. possible.
asked the Minister for Defence, upon notice -
During such time as H.M.A.S. Canberra is attached to the British Fleet, can arrangements be madefor service in ships of the British Navy of as many officers and midshipmen from the Canberra as can be spared for draft for that purpose?
– Inquiries will be made and a reply will be furnished as soon as possible.
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asked the Minister for
Defence, upon notice -
– The information will be obtained and a reply will be furnished to the honorable member as soon as possible.
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asked the Prime Minister, upon notice -
Whether he is in a position to inform Parliament when the Government will be able to begin the preparation of a bill to provide for a national scheme of scientific insurance against periods of unemployment?
– The Government will have inquiries made into the question as soon as possible.
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asked thePostmaster- General, upon notice -
– The information desired by the honorable member is being obtained.
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asked the Minister for Trade and Customs, upon notice -
– The information will be obtained.
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asked the Minister for Home Affairs, upon notice -
Of the 961 Southern European migrants who arrived in the Commonwealth during the six months ended 30th June, 1930, how many were of adult age?
– The information desired by the honorable member -will be supplied as soon as possible.
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asked the Treasurer, upon notice -
Has he been able to give consideration to the exemption from the operation of the proposed sales tax legislation of egg pulp, lard, and small goods from bacon factories?
– The matter is at present being considered.
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In committee (Consideration of Sen ate’s amendments) :
Clause 17.
Senate’s amendment. - Leave out “ air officer “ insert “ officer “.
– I move -
That the amendment be agreed to.
The amendment made by the Senate follows upon a suggestion made by the honorable member for Balaclava (Mr. White) when the bill was in committee. It was felt unwise to accept his suggestion without thoroughly going into the matter, because while it might appear to remedy a position in one direction it might also create complications in another. I have been informed since that this particular matter has been under discussion on former occasions, and the difficulty seems to be that the Superannuation Board has one definition for this class of contributor and the Military Board another. However, the whole question has again been investigated, and after a consultation with Air Commodore Williams and the President of the Board, it was agreed that the use of the word “ officer “ would be quite satisfactory and would meet the situation. It has been incorporated in the bill. I hope that this meets with the approval of the honorable member for Balaclava (Mr. White).
– It is quite acceptable to me.
Motion agreed to.
Clause18-
Senate’samendment . - After” pension “ in sort “ refund of contributions “.
– This amendment amplifies the original clause which had for its object the provision of machinery whereby the payment of a pensionor other benefit could be made to 8 person other than the pensioner or beneficiary. The amendment under discussion makes it quite clear that the provision applies also to the refund of contributions. I move -
That the amendment be agreed to.
Motion agreed to.
Clause 21-
Senate’samendment. - Leave out “ and “, and after paragraph (c), insert new paragraph “: and (d) by omitting from sub-section (5.) the words’, prior to the commencement of this sub-section.’.”
– These amendments are consequential, and affect provisions of sub-section 5 of section 52 of the principal act, which is a machinery section, applying to those officers who will, under the bill, become contributors under section 52. I move -
That the amendment be agreed to.
Motion agreed to.
Senate’s amendment. - Insert new clauses 25a and 26 (consequential on amendment to clause 17).
Motion (by Mr. Beasley) agreed to -
That the amendment be agreed to.
Clause 27 -
Senate’samendment. - Leave out “section 49,” insert “sections 49 and 50.”
– In explanation of this amendment I would point out that clause 27 of the bill empowers the board to call upon an invalidity pensioner who was a member of the military or air forces to submit himself to medical examination, as in the case of an invalidity pensioner who was employed in any other branch of the Public Service. Section 50 of the principal act prescribes the action of the board following the restoration to health of an invalidity pensioner. As section 49, which concerns medical examination, will in future apply to the members of the military and air forces, it is considered that section 50 should similarly apply. I move -
That the amendment be agreed to.
Motion agreed to.
Consequential amendments made by the Senate in clauses 29 and 30 agreed to.
Resolutions reported; report adopted.
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Reports of Conference by Commonwealth Representative.
Debate resumed from 25th June (vide page 3208) on motion by Mr. Scullin -
That the reports be printed.
.- The Imperial Conference of1926 was marked by the full recognition of the attainment of complete self-governing status by the Dominions of the British Empire or, as they have frequently been called since that conference, the nations which, are members of the British Common wealth of Nations. The conference of 1926 met after a period during which there had been a great and rapid development of dominion autonomy. Imperial conferences since 1907 had been characterized by an increasing degree of consultation between the Government, of Great Britain and the governments of the various parts of the Empire. It is not necessary now to trace the stages of that development, or to indicate the steps, all in the same direction, which were taken from time to time. During the war, the representatives of the dominions were admitted to the fullest consultation with the authorities in Great Britain, and every effort was made to ensure for them a real participation in the determination of the policy which was pursued by the. empire throughout the war. During the war, what has been described as the Imperial War Cabinet was formed. It consisted of the Prime Minister of Great Britain and one or two other British Ministers, and every Prime Minister of a dominion and some other dominion Ministers who were in Great Britain. The Imperial War Cabinet was, however, a consultative body, although it is described sometimes as having been an executive body. In truth and in fact, although the Imperial War Cabinet discussed, and in a sense determined most important matters of policy, all executive action taken in pursuance of the decisions arrived at had to be taken by the governments concerned. The Imperial War Cabinet as such was unable to take, or directly and of itself determine, executive action.
At the Peace Conference a further stage in the development of selfgovernment was reached. The dominions were admitted to that conference upon an equality with all the powers there represented. They had separate status, were separately represented, and were able to act independently of the rest of the Empire if they so desired. The machinery of the British Empire Delegation provided the means of arriving at a. common policy. Speaking generally, the Empire as a whole maintained a common policy in relation to the matters which had to be determined by the Peace Conference.
These changes in practice naturally induced a demand for a redefinition of the constitutional relations between the various parts of .the Empire. In 1917, and again in 1921, the question of a precise consideration of the constitutional relations of the various parts of the Empire was raised. It was determined, however^ in 1917, that it was undesirable in the midst of a world war to endeavour to enter upon the consideration of this question. The matter was again postponed in 1921. Thereafter, the relations between Great Britain and Ireland which, unfortunately, had been very troubled for many years, became intensely acute. In 1922, however; a settlement of those difficulties was reached, and the Irish Free State was constituted by an Act of the British Parliament. In that Act, the Irish Free State was described as “ a co-equal member of the community of nations forming the British Commonwealth of Nations.” The implications of that declaration, made as it was, in a statute of the British Parliament, were, and are, very important. It will be observed that the Irish Free State is described as a coequal member of the community of nations forming the British Commonwealth of Nations. That description is evidently founded upon, and indeed declares the principle that all the members of the British Commonwealth of Nations are equal with one another - that each dominion is the equal of every other dominion as well as the equal of Great Britain. The step taken in the act constituting the Irish Free State was regarded as very significant in other parts of the empire, as indeed it was. But little attention was paid to it, from the constitutional point of view, in Australia and New Zealand. The people in those dominions have been little concerned with constitutional problems as affecting the relations of the different parts of the empire. In Australia and New Zealand there is no inferiority complex, no suspicion or feeling that, from the constitutional point of view, they are not sufficiently independent.
I agree with the statement of the right honorable W. M. Hughes who, when Prime Minister of Australia in 1917 and 1921, said that a written constitution for the British Empire would be a very dangerous thing in- deed. It is necessary, however, to consider the point, of view of other parts of the empire. Immediately before the Imperial Conference of 1926, there had been an election in< Canada in which the subject of the constitutional powers of the Governor-General became an acute question. The people of Canada desired a definition of the true position of their GovernorGeneral. It had been declared in the act constituting the Irish Free State that the position of the Governor-General of the Irish Free State, and, indeed the relations of that State to Great Britain, were the same as in the case of Canada. Accordingly, both Canada and the Irish Free State desired to know exactly what those relations were. In South Africa, in 1926 and the immediately preceding years, there had been strong differences of opinion as to the rights of South Africa and its position in the British Empire. When the Imperial Conference met in October, 1927, I was present as a representative of Australia. I well remember the declaration made by General Hertzog in these words -
I think it will be generally admitted that the corner stone of the empire is the will, the good-will, of those who compose it. Without that will the empire must collapse. If the empire is to be maintained, if it is to nourish and fulfil that great task which we all hope it will achieve in the history of the world, we mast see that the will to live in the empire, iis a Commonwealth of free nations, will in future, as it is to-day, be present and active with every one of its constituent elements. Whether at present all the conditions are there to ensure the permanency of that will, and therefore of the empire, is a question which I think we should inquire into at this Conference. Speaking merely for South Africa, I think they are not. South Africa is anxious to possess that will equally with every other member of the Commonwealth; but that will can be assured for the future only if she can he made to feel implicit faith in her full and free nationhood upon the basis of equality with every other member of the Commonwealth. That implicit faith she does not possess to-day; but she will possess it the moment her independent national status has ceased to be a matter in dispute and has become internationally recognized.
The conference began with that rather unpromising declaration of General Hertzog that, as things were, South Africa was not satisfied that the basis upon which alone the empire could continue to exist was a real thing so far as that dominion was concerned. The result was that in 1926 the constitutional relations, described as the inter-imperial relations, of the various parts of the British Empire, were fully discussed, and a conclusion reached. All the dominions and Great Britain expressed themselves as being perfectly satisfied with the description of those relations which was given in the report of the conference. When General Hertzog returned to South Africa after the conference, he said -
He confessed that he had been a lifelong opponent of Imperialism, and had feared the empire. That was because the empire had been represented as a sort of super-state, but this conception had been scotched by the Imperial Conference. There was no question any longer of domination or superiority over the dominions. Each waa now free to follow its own will.. That made all the difference to his thoughts of the empire, which would never be conceived of in future as a super-state over the dominions.
The result of the consideration of these questions by the Imperial Conference of 1926 is embodied in the oft-repeated statement in what is known as the Balfour report on inter-imperial relations -
The dominions are autonomous communities within the British Empire, equal in status, and in no way subordinate to one another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations.
Et will be observed that the Dominions are described as autonomous communities, in no way subordinate one to another in any respect in regard to their domestic or external powers. On what does the autonomy of the Dominions really depend? It depends upon the continuance of a strong. British Empire. I agree that the foundation of the British Empire is to be found in the freedom, equality and co-operation of its members. But the unity and strength of the Empire are the conditions of our freedom and of the possibility of continuous co-operation. Within the Empire each dominion has equality of protection and equality of rights. Equality of responsibility is, however, as important, and in many circumstances, even more important, than equality of rights. Australia does not wish to exercise her rights in any other way than in co-operation with the sisterdominions of the Empire. We, in Australia, recognize that there is no longer any interference in our affairs from Downing-street. There is no longer “ a certain Mr, Rogers “ to whom Mr. Justice Higinbotham, when a Minister of the Crown in Victoria, referred in a celebrated controversy in that State. In practice we, in Australia, have all the freedom that we can possibly desire. 1 think that I speak for all members of this’ House and of every party, when I say that we, as Australians, have no grievances against Great Britain.
Honorable Members. - Hear hear ‘
– Australians would be content, if only Australia were concerned, to let well alone, with, possibly, som”e minor changes with respect to the power to legislate on the subject of merchant shipping, and, I suggest, the clarification of some points in the Colonial Laws Validity Act.
It was felt, however, that the general declarations of the conference to which I have referred - couched as they were in political terminology - ought to be expressed in legal phraseology. It was stated in the report that it was the right of each government to advise the Crown in all matters relating to its own legislation, and that legislation by the British Parliament should apply to the dominions only .with their consent. The committee whose report is now before this Parliament, or as it has come to be called “ the conference on the operation of dominion legislation and merchant shipping legislation, 1929,” seeks to work out the legal results of the political conclusions reached at the conference of 1926. This report is the product of lawyers. They are good lawyers who did their work well; but in this sphere the statesman is much more important than the lawyer. A lawyer likes to make a complete system - to tie all things together neatly ; to make everything fit. But in statesmanship, as Bacon said of divinity, “many things must be left abrupt “. It is impossible to have a smoothly finished off and complete system. I am content with a system that works successfully - a system that does not in practice, whatever it may do in theory, infringe our rights of self-government, but allows us the fullest opportunity for determining our national policy having due regard to our responsibilities. [ would rather leave some things unfinished and undetermined than make a completely rigid system of constitutional theory which might break under a strain that would have little or no effect on a more flexible or elastic, though less well defined, constitutional understanding. I prefer fluid conventions, the interpretation and application of which are left to statesmen, to legal formulae to be applied by judges. I have gone so far as to express my views on this subject in a small book entitled Australia and the British Commonwealth which I brought out last year. At the conference of >926, I saw the risk of allowing lawyers to have free rein in matters of statesmanship. I agree with General Smuts, a lawyer himself, that it is not desirable to allow the Empire to get into the hands of lawyers who insist upon expressing political relations in legal formulae.
I come now to the specific matters with which this highly skilled committee dealt. Et must not be thought that I in any manner deprecate the work of the committee. I appreciate its value and the degree of success which it has achieved in dealing with a difficult problem. I urge, however, that it is unnecessary and unwise to express in legal terminology all of the political conclusions of the conference. The first subject with which the report of the conference on the operation of dominion legislation dealt was that of the disallowance of dominion legislation. The power of the King to disallow has never been exercised in relation to Commonwealth legislation. Section 59 of our Constitution provides -
The King may disallow any law within one year from the Governor-General’s assent, and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of Parliament, or by proclamation, shall annul the law from the day when the disallowance is so made known.
That section specifics, controls and limits the power of disallowance in respect of Commonwealth legislation, but it has never been exercised. It is entirely our own business whether we retain this section in our Constitution. If we think that the power of disallowance should be abolished, it is within our power to abolish it by amending the Federal Constitution. This is indeed indicated in the report of the com-
Mr. Latham. mittee itself, and I agree with its statement that this is a matter of Australian constitutional law with which we are able to deal in Australia, and as to which it is quite unnecessary to consult with any other part of the Empire or to invite any action on the part of the Imperial Parliament.
The next subject with which the committee dealt was that of the reservation of dominion legislation for the King’s assent. There are, in the Constitution, provisions dealing with this subject - sections 58, 60 and 74. Section 58 reads -
When a proposed law passed by both House.of the Parliament is presented to the Gover nor-General for the King’s assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the King’s name, or that he withholds assent, or that he reserves the law for the King’s pleasure.
Section 60 read* -
A proposed law reserved for the King’s pleasure shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the King’s assent the Governor-General makes known, by speech or message, to each of the Houses of Parliament, or by proclamation, that it has received the King’s assent.
Section 71 relates to appeal to His Majesty in Council. There are also provisions in the Merchant. Shipping Act, sections 735 and 736, which require reservation for the King’s assent of certain dominion legislation dealing with merchant shipping. As to the constitutional provisions, I repeat what I have said on the subject of disallowance. If we desire to alter the power of the Governor-General or of His Majesty the King with regard to the reservation of any Commonwealth legislation, avc arc able to make an alteration by action taken in Australia. That is our own affair, and it is unnecessary for us to act jointly with any other dominion or to invite any intervention by the British Parliament. In the case of the Merchant Shipping Act, 1 suggest that the position is different, and that the provisions in that act should be altered. I propose to refer briefly to that act later in my speech, and shall say nothing further about it at present.
The next subject dealt with in the report of the conference is that of the extra-territorial operation of dominion legislation. The legal position as to the power of a dominion parliament to give its legislation extra-territorial operation is, in my opinion, obscure, though it has often been said to be “ certain. It is generally stated that the power of the colonial legislature is limited to the territory of the colony. The meaning appears to be that legislation which purports to control persons outside the colony, or to punish persons inside the colony in respect of things done outside, is invalid. It seems to me that the decisions of the court are by no means clear on this subject, and that our own High Court has made pronouncements which may bc a source of difficulty in determining the limits of the legislative powers of this Parliament. In the case of the Commissioners of Stamps, Queensland v. Weinholt. No. 20, Commonwealth Law Reports, page 540, the High Court held-
Unless, therefore, either by express words or necessary implication, the Stamp Acts are shown to violate the principle of territoriality, they must be construed as limited in their operation to the State of Queensland, and, consequently, not to select as the subject of taxation any person, thing, or circumstance not within the territory.
That statement suggests that in the case of legislation upon taxation, it would be beyond the power of a colonial legislature - to use the general phrase that is, as a rule,, used in discussions of this matter - to select as the subject of taxation any person, thing, or circumstance not within the territory. In a sense, that is obviously true, but if the statement is to be interpreted as meaning that taxation to be imposed upon persons who are amenable to the jurisdiction is not to be measured by things . or circumstances outside the territory, then, with all respect, I conceive that that is not an accurate state.ment of the law. In a later case - The Federal Commissioner of Taxation v. Munro - His Honour Mr. Justice Starke dealt with the subject of the extraterritorial operation of dominion legislation in relation to taxation, and referred in particular to the well-known case of Macleod v. Attorney-General. His Honour said -
Such cases as Macleod v. Attorney-General show, however, that a proper interpretation of the act would limit the receipts within its scope to receipts within the competence of the legislature, ‘namely, to those earned or derived in Australia.
There is a statement by a learned justice of the High Court that the Australian legislature - the Commonwealth Parliament - is able to impose income tax only in respect of receipts earned or derived i u Australia.’
During last week this House discussed and agreed to an amendment of our Income Tax Assessment Act designed to tax receipts earned or derived from sources outside Australia. My view as a lawyer is that this Parliament has power to tax such receipts, and I have given reasons in the book to which I have already referred for holding that view, and have quoted both the British and Australian supporting authorities in a footnote to the page on which I deal with this subject.
There are certain limits upon our power to pass extra-territorial legislation. The well-known case of Kingston v. Gadd decided very early in the history of the Commonwealth, indicates the nature of these limits. That case arose through the desire to tax ships’ stores consumed in Australian waters. It was recognized that it was beyond the power of the Commonwealth to make it an offence to break, on the high seas, seals set upon taxable stores, but the difficulty was met by making it an offence to enter port with the seals broken. The desired result was, therefore, achieved by an indirect method. It seems to me that the declaration that dominion and colonial parliaments cannot make laws having extra-territorial effect is involved in a considerable degree of uncertainty and obscurity. The real test of legislative power should be, “ Is the law in question one for the peace, order, and good government of the dominion concerned?” Legislation by the Commonwealth Parliament purporting to control the conduct of people in South America could not be regarded as legislation for the peace, order, and good government of Australia. But if the law fairly falls within the description which I have suggested, my submission is that it is within the power of the dominion legislature to make it. The recommendation of the expert committee on this subject is to be found on page 11 of its report. It reads as follows : -
After careful consideration of possible alternatives, we recommend that the clause should be in the following form: - “It is hereby declared and deducted that the Parliament of a dominion has full power to make laws having extra-territorial operation.”
With all due respect to the committee, it appears to me that that phrase is vague, and by no means unambiguous. It is certainly not desirable that all the Parliaments of the Empire should have the power of extra-territorial legislation in the sense in which the British Parliament possesses and exercises such power.
– Why not?
– The British Parlia-ment has power to legislate for British subjects in all parts of the world ; but I suggest that it is most undesirable that the South African Parliament, let us say, should have power to legislate for Australians in all parts of the world because they are British subjects. A similar remark would apply to other dominions. It appears to me to be impossible to confer on all the parliaments of the Empire the power to make laws having extraterritorial operation such as the British Parliament at present enjoys. If we had a clear category of dominion citizenship, such as possibly may be developed in the future, it would be possible to provide that each parliament should have full power to pass extra-territorial legislation so far as the subjects of its own dominions were concerned. But the phrase in the report, to which I have referred, is, in my opinion, vague and unsatisfactory. In this connexion Sir William Harrison Moore, who very ably and most valuably represented the Commonwealth at the conference, said in his report -
It was not desired or intended that, e.g., a New Zealand law of “extra-territorial operation “ should form part of the law in Australia and be enforceable there, whether the matters arose in Australia or elsewhere. The final opinion was that such an express provision was superfluous. The purpose of the main clause was notorious, and would secure its primary effect- that the “ extra-territorial “ laws of a dominion would be valid in its own courts. As to their enforcement elsewhere, the general character ot the proposed act of the Parliament of the United Kingdom was to establish and protect the legislative independence of a dominion, and that would be shown by the express provisions giving power to repeal
British acts, and enacting that no British aci should extend to a dominion unless it were expressly stated therein that the dominion consented thereto. It was considered that it would not be a reasonable construction of such an act that it intended to give to dominions a power to make laws for other dominions without their consent, a power which the British Parliament was giving up.
I fully appreciate the weight of that opinion, but at the same time I believe that if an imperial statute declared that the parliaments of the dominions had full power to make laws having extraterritorial operation, and this were recognized as putting the dominions and Great Britain on the same footing, serious confusion might arise. I, therefore, suggest that the necessities of the case would be met by a provision which would avoid the ambiguities of this phrase, to the effect that no law passed by the parliament of a self-governing dominion should be held to be invalid for the reason that it attached legal consequences, civil or criminal, within the dominions to acts or omissions outside the territory of the dominion.
– Would that apply to the United Kingdom?
– No.
– Then we shall not be equal in power?
– I suggest that it is unnecessary, and indeed impossible, to put the dominion legislatures in the same position as the British legislature in this regard, and that it would be unwise to endeavour to do so. I will mention one case only to indicate why I hold that opinion: Take the legislation dealing with offences on the high seas. It is fundamentally important that so far as British subjects are concerned, there should be no uncertainty with respect to it. I consider that it would be much more convenient if only one legislature had power to pass such legislation. If all the dominions had the same power in this respect, and exercised it, there would be serious risk of confusion, and consequent injustice. In other words, I am not prepared to ride the idea of equality of status to its logical conclusion, for to do so would produce grave practical inconveniences, and, in some cases, actual injustices. Considerations of convenience and practical common sense should be preferred ‘to following to their logical conclusions all the declarations of the 1926 conference. These are my views, but I recognize that there is ample room for genuine differences of opinion on these subjects among persons equally qualified to consider them. It would be a mistake, in my opinion, to endeavour to state in a legal formula the significance of all the political declarations of the 1926 conference.
I shall now proceed to deal with the Colonial Laws Validity Act. This measure cleared up a position of grave doubt and difficulty, which had arisen as to the power of the dominion legislatures to deal with the law of England which was originally in force in a colony. In this connexion paragraph 48 of the report reads as follows: -
The act expressly conferred upon colonial legislatures the power of making laws even though repugnant to the English Common Law, but declared that a colonial law repugnant to the provisions of an act of the Parliament of the United Kingdom extending to the colonies either by express words, or by necessary intendment, should be void to the extent of such repugnancy.
In Australia certain difficulties have arisen with respect to the Colonel Laws Validity Act, arising out of the interpretation and application of the Commonwealth Navigation Act. Some cases have given rise to protracted and expensive litigation which has led to appeals to the Judical Committee of the Privy Council. It might be thought that on this matter it would be desirable to abolish the pre-eminence of the legislation of the Imperial Parliament. Indeed the committee of lawyers draws the conclusion that the logical result of the decision of the Imperial Conference is to abolish the legal supremacy of the British Parliament. In this connexion Sir William Harrison Moore says in his report -
The general application of the principle of equality laid down by the. Imperial Conference in 1926 was at once accepted, with the result that the unqualified paramountcy of the legislation of the Parliament of the United Kingdom must go.
But, there is, in my opinion, a considerable degree of convenience in having a paramount legislature in the British Empire, provided that it is understood that its paramount powers shall be exercised only with the consent of the dominion concerned. There are many imperial statutes in force in the Commonwealth within the meaning of the Colonial Laws Validity Act.
Acts of the Imperial Parliament which are in force in Australia relate to the following subjects : -
Fugitive offences.
Extradition
Ascertainment of British law.
Evidence
Naval defence.
Recognition of colonial probates.
Solicitors
Medical practitioners.
Jurisdiction in territorial waters.
Bankruptcy
There are also imperial acts in force relating to shipping and Courts of Admiralty. It is very convenient that many of these matters should be subject to uniform control. My submission on this point, is that the legal position of paramountcy should be left as it is, as a matter of law, but that there should be a’ political understanding as to the manner in which these paramount powers are to be exercised. It is impossible, as a practical proposal, merely to repeal the Colonial Laws Validity Act and to abolish the supremacy of the Imperial Parliament. That cannot be done. One reason, among others, is that our own Constitution is an Imperial statute; it draws its legal force and effect from the fact that it was passed by the British Parliament. What we in Australia ordinarily refer to as the Constitution is section 9 of an imperial act, namely, 63 and 64 Victoria, Chapter 12. That act consists of nine sections, and the ninth section begins with these words, “ The Constitution of the Commonwealth shall be as follows-“. Then follow the 128 sections which constitute the Comonwealth Constitution, section 128 of which gives to the Commonwealth Parliament and people, jointly, power to amend the Constitution itself. The mere repeal of the Colonial Laws Validity Act - the enactment of a declaration that British law should no longer be in force in a dominion - would abolish our own Constitution, and the practical result would be disastrous. But, further, it is legally impossible for the British Parliament to surrender its supremacy. If it passed a statute saying that it no longer had a particular power, it could repeal that statute on the following day.
– I am speaking purely technically on this point ; I am dealing at the moment with a technical report on a technical subject. From the legal point of view I am pointing out that if a statute abolishing the supremacy of the Imperial Parliament were enacted, that Parliament could repeal it the next day if it so determined.
– But such an act could be part of an agreement.
– It might be part of an agreement, or common understanding, but, from the legal .point of view, the position is as I have stated, and I refer to this consideration for the purpose of pointing out that, as I have already said, these problems are not merely legal, and cannot be determined merely by lawyers; they fall within the domain of statesmanship much more than the domain of lawyers and judges. While I say, as a lawyer, that by no statute of the Imperial Parliament can that parliament effectively and finally abolish its own legal powers, I recognize as a member of this parliament, and as a man of experience in public affairs, that it is possible to have an understanding; - a constitutional convention - as to the manner in which these powers should be exercised.
I think that it would be desirable to make some improvements in the Colonial Laws Validity Act. I can see no reason whatever for retaining the provision that an imperial act should extend to a dominion where it appears only by what is called “ necessary intendment “ that it should so extend. There appears no reason whatever for retaining that part of the Colonial Laws Validity Act. A mere general statement in a British act of Parliament ought not to be capable of being interpreted as applying to a dominion. It ought to appear explicitly in the statute itself that the enactment is intended to apply to that dominion, whatever constitutional practice might be adopted. So the first point that I make is that it would be desirable to omit the reference to “ necessary intendment “ in the Colonial Laws Validity Act.
Further, I suggest that it would be desirable to give power to dominion legislatures to amend or repeal, by express words, existing British statutes applying to the dominions so that the dominions would have full power to deal with any subject dealt, with in a British statute applying to the dominions, so far as that statute fell within the competency of the dominions, and that an understanding should be recorded that the legislative power of Great Britain should not be exercised with respect to a dominion except with its consent; but I urge that that understanding should not be recorded in any statute. In effect, this understanding is already recorded in the report of the Imperial Conference. The conference of 1926, not only declared that the dominions were autonomous within the British Empire, and in no way subordinate to one another in the control of their external or domestic affairs, but it also affirmed that the constitutional practice was that legislation by the Parliament at Westminister applying to a dominion should bc passed only with the consent of the dominion concerned. As an Australian, I unreservedly support that declaration, and say that, at the present day, it is the only principle that we are prepared to accept. Our parliaments make their own laws, and legislation passed at Westminister hereafter should apply to Australia only with its consent. It is already on record that the British Parliament can legislate for Australia only with the consent of Australia. The report of the expert committee of lawyers, however, asked that something further be done, and that this political agreement should be expressed in a legal formula. In paragraph 53 of the report, the recommendation of the committee is that a statute be passed providing that -
I agree that there ought to be that power of repeal of existing statutes.
In paragraph 54 the expert committee, recommends -
With regard lastly to the problem which arises from the existence of a legal power in the Parliament of the United Kingdom to legislate for the dominions, we consider that the appropriate method of reconciling the existence of this power with the established constitutional position, is to place on record a statement embodying the conventional usage. We, therefore, recommend that a statement in the following terms should be placed on record in the proceedings of the next Imperial Conference : - “ It would be in accord with the established constitutional position of all members of the Commonwealth in relation to one another that no law hereafter made by the Parliament of the United Kingdom shall extend to any dominions otherwise than at the request and with the consent of that dominion.”
We further recommend that this constitutional convention itself should appear as a formal recital or preamble in the proposed act of the Parliament of the United Kingdom.
I hope that the Prime Minister will act very cautiously in relation to the suggestion that a constitutional convention be recorded in the preamble of a statute. Such a preamble has no force or effect whatever, if the enacting part of the statute is clear and unequivocal. A preamble can be referred to only in cases where the enacting words of a statute are ambiguous or obscure. The preamble does not, in itself, enact its contents, although it is part of the statute. It appears to me to be rather a recognition of the impossibility of dealing satisfactorily with this matter that the lawyers on the committee have recommended that there should be a preamble to this effect.
Looking at the matter as a lawyer I have grave doubt as to the legal meaning of the terms used. It will be observed that the recommendation is that it should be stated that “no law hereafter made by the Parliament of the United Kingdom should extend to any dominion otherwise than at the request and with the consent of that dominion “. Does that mean that first there must be a request, and that, after the law has been passed, there must further be a consent? That is a remark able procedure. It may be that that is intended ; if so, it should be clearly stated. As a general rule, a request to any person to do a thing implies a consent to what is done ; but if these conventions are to be put into statutes we want to know exactly where we are. Honorable members familiar with the processes of legislation know how often amendments are made in bills in committee. Suppose particular legislation is requested and is made with slight amendments, is that legislation effective? Is that legislation made by the Imperial Parliament to be regarded as made fully at the request of the dominion?
– I suppose that the committee had in mind what has been done in several cases, that a bill would be submitted.
– If the matter is left as a constitutional understanding, very well; but once the words are put into the preamble of a statute, difficulty arises.
– This is being done because Canada has no power to amend its own constitution, and it may have to apply to the Imperial Parliament.
– I am not dealing with that aspect of the matter. Is it really intended that the words should be construed strictly, so that before the legislation is passed, there should be, first, a request, and secondly, a consent. By whom, and to what body, is the request to be made, and by whom is the consent to be given? Is the request to be made by the government of the day? If so, is that request to be assented to as a matter of course? Is the British Parliament to act, whenever requested by a particular government in a dominion, to legislate in a. particular manner? Take the case of the present Government. In respect of some of its legislation, it is in. a difficulty owing to the fact that, while commanding a majority in this House, it does not control the other House. Is it to be a constitutional convention that a government situated as this Government is can ask the British Government to legislate for Australia, and that the British Government is thereupon to legislate accordingly, without any option? I am not suggesting that any such action might conceivably be taken by this Government; but it is important to understand exactly what is the position. If the British Government can be moved simply by a request from a dominion government, the position would seem to be open for a dominion government to put through legislation, per medium of the British Government, which it could not pass here, because it was not in command of its own legislature.
– Does it not mean that the request shall relate only to the applicability of the act of the British Parliament ?
– No. This is a proposal intended to reconcile the legislative powers of the British Parliament, extensive as they are, with the autonomy of the Australian Parliament.
– It is merely a question of the applicability, not of the originating of laws.
– It is impossible to draw a distinction between the substance of a law, and its applicability. Suppose a request is made by a dominion government, and legislation is passed by the British Parliament and consented to. At what point does the law come into operation? Is it seriously suggested that an act passed by the British Government, at the request of a dominion government, and applied in express terms to a dominion, is not to become effective until there is a subsequent consent that it shall become applicable? In legal matters it is important that there should not be any ambiguity or doubt.
So far I have been dealing with the proposed preamble. It is also proposed that an act of the Imperial Parliament shall contain an enacting clause to the same effect. The recommendation is in these terms -
Be it therefore declared and enacted that no act of Parliament hereafter made shall extend or be deemed to extend to a dominion unless it is expressly declared therein that that dominion has requested and consented to the enactment thereof,
A law is made in accordance with the request and consent of a dominion government, and presumably the law is then enforced. Probably, once the statute is passed, the declaration in it that the dominion had requested and consented would be regarded as final and conclusive in the courts; but how a dominion can be said to have “ consented to “ - as distinct from “ requested “ - legislation not enacted is a problem of which I can see no solution. Another point is this: Suppose a government can request and consent, and so ensure that imperial legislation shall apply to a dominion, is parliamentary action necessary in order to make that legislation cease to apply to that dominion? Suppose legislation passed by the Imperial Parliament is, at the request and with the consent of the Commonwealth Government, made applicable to Australia in the year of grace 1929. In 1935 another government is in power. Will that government be able to make that legislation inoperative so far as it applies to Australia simply by withdrawing its consent? If that is the position, we should be informed of it.
– It could only make the legislation cease to be applicable.
– The whole issue is whether the legislation is in force here or not. Applicability is everything. [Extension of time granted.] The point I am making is that apparently it requires only governmental action to make legislation of the Imperial Government apply to Australia.
– It is not laid down that only governmental action is necessary.
– There must, of course, be action by the British Parliament, also.
– And by the dominion. We may assume that it means a dominion parliament.
– I have been assuming that it means only governmental action. Let us suppose that it is so, and that an act has been passed and is in force. Will it be possible for a subsequent dominion government to withdraw its consent to that act, and so render it inapplicable? If not, we have, this position : that, while an act of the British Parliament may be made applicable to a dominion at the request of a government, it can be rendered inapplicable only by parliamentary action. That situation would be plainly unreasonable, and brings us back to the suggestion ‘of the Prime Minister that the original request and consent must be parliamentary and not merely governmental. Could a federal government “by request” obtain the enactment of legislation for a dominion upon a subject and beyond its federal powers of legislation ? These questions have been left in the air by the report, and should be the subject of further careful examination. If there remains room for misunderstanding the result may, in cases of acutely contested matters, be disastrous. I suggest that the Prime Minister should think long before accepting the proposals made in paragraphs 54 and 55. I have made some suggestions which, I think, would .meet the case, and would conserve to ourselves the fullest legislative powers in practice.
Paragraph 60 of the report contains a recommendation that action should be taken with reference to the Act of Succession. It is recommended that there should be in the preamble to the statute a convention or understanding to this effect -
Any law touching succession to the throne or the royal style or title shall hereafter require the consent as well of parliaments of all the dominions as of the Parliament of the United Kingdom.
This is a proposal which appears to me to invite sleeping dogs to wake. It is asking for trouble.
– It is just simply madness.
– Anybody who is acquainted with the stormy history of the Act of Succession should hesitate before gratuitously opening up this old sore. Let this recommendation remain as a convention, but do not agree to embody in a statute in legal terminology any proposal relating tor this matter.
This is a legal subject, but I have been trying to emphasize the point that the political aspect is incomparably more important than the legal aspect. If we go too far along legal lines, we run the risk of incurring grave political difficulties. I’ remind honorable members that all these proposed provisions could, as a matter of law, even if enacted by the Imperial Parliament, be afterwards amended or repealed by that parliament at any time. Therefore, this proposed agreement provides no real legal solution of the present difficulties. That is looking at it merely from a lawyer’s point of view, and there are, besides, the political difficulties I have mentioned.
There still remains open a question of particular importance to Australia, that of ihe covering clauses of the Constitution. These covering clauses are beyond the legislative competence of the Australian people through this Parliament, or even, by way of referendum. The Government should consider making a request to the British Government to amend covering clause 5 so that it will apply to all ships registered in Australia.
It should be remembered, in dealing with all these subjects, that the position of the States has to be considered. It is undesirable that State and Commonwealth practice should diverge to any extent in these respects. Paragraph 69 of the report points out that the most urgently required field of extra-territorial powers is in regard to criminal law which, in general, is within State power in Australia. The Commonwealth cannot bind the States by anything done at the forthcoming Imperial Conference. It is important to bear that in mind. This applies to such matters as reservation and disallowance of legislation, extraterritorial operation and effect of legislation, and the Colonial Laws Validity Act, as well as to matters affecting intra-state shipping. That being so, it is important that nothing of the definite nature should be done without consultation with the States.
The report deals with the subject of nationality, but makes no recommendations. In regard to nationality, uniformity is most desirable. The rights of a British subject are the most valuable asset any of us could have in a foreign country, and it is important that every effort should be made to establish, uniformity in this sphere of law.
In respect of merchant shipping, obviously, there is a great advantage in having uniform laws applying to ships which travel all over the world. In this regard the interests of the whole. Empire are substantially the same as the interests of Australia. The right of a British ship to the protection of the British flag abroad is, perhaps, the most valuable attribute that a vessel can have, and I am confident that Australians recognize that. I have referred to sections 735 and 736 of the Merchant Shipping Act, which impose certain limitations upon the legislative power of the Commonwealth in respect of merchant shipping. There is no Australian register of ships, and, accordingly, the Commonwealth has certain powers in respect of the coasting trade only; British ships on the high seas are controlled generally by the Merchant Shipping Act. The existing position, which is very complicated and involved, is set out in paragraph 87 of the report, and, as it is impossible for me to deal with the subject adequately in the short time at my disposal, I shall confine myself to one or two observations regarding it. I believe that there must be further consideration of merchant shipping before any action is taken. The report sets out the matters in respect of which uniformity at present exists, and, in paragraph 97 and following paragraphs, many matters as to which uniformity is desirable, and concludes -
Summarizing my views, I suggest that clause 5 of the Constitution be amended to make Commonwealth law applicable, if this Parliament thinks fit and proper, to ships registered in Australia. As to section 735 of the Merchant Shipping Act, I suggest that the British Parliament be asked to repeal the requirement that the legislation to which the section refers shall be reserved for the assent of His Majesty the King. Sec tion 736 imposes certain limitations upon our legislative power in relation to the coasting trade. It has never been effective and can easily be evaded; therefore, it should be repealed. Paragraphs 91, 92 and 93 of the report fairly express the views which I hold on this subject. It is important that we should establish uniformity so far as possible in our shipping laws. Sir William Harrison Moore says, in paragraph 22 of his report -
One object underlying the report is the attainment, under a system of equal andunlimited legal power, in the hands of each of several legislatures, the maximum of effective operation by each for its own laws re garding a thing so essentially mobile as a ship, which is, during the greatest partof its trade life, outside the territorial waters of any of them. Another object is to diminish the hindrance of trade and commerce which may come from the application to the same ship, and the same adventure of divergent and. perhaps, conflicting laws’. Both objects require such a measure of co-operation among the legislatures as will recognize in practice some limitation in the exercise of their full legal powers.
Insistence by all parts of the Empire upon the exercise of full legal powers in this domain will only lead to inextricable confusion. The preparation of a merchant shipping code involves a great deal of work.
I suggest that powers should be given to repeal the Colonial Courts of Admiralty Act of 1890. The position in regard to admiralty jurisdiction has been made obscure by the case of John Sharp and Sons v. The Katherine Mackallas reported in 34 C.L.R., 420, and the whole matter requires careful consideration.
Reference is made in the report to a suggestion for setting up a tribunal for the settlement of disputes between different parts of the Empire. I hope that caution will be exercised before anything of the sort is done. I have no enthusiasm for a tribunal to be established simply for the purpose of settling such disputes. Such a body might go looking for work, and it might happen that a party which had failed to attain certain objects would think it worth while to state a claim before that body.
– “ How oft the sight of means to do ill deeds makes ill deeds done “.
– Exactly. The Privy Council provides adequate means for the settlement of all inter-Empire disputes of a legal character, and all others may be left to the negotiation of the governments concerned; if they decide that in respect of a particular matter it is desirable to obtain the judgment, of an independent and impartial body they can agree to appoint one. I urge the Prime Minister not to agree to the creation of a tribunal for the specific purpose of settling inter-Imperial disputes, because I fear that the existence of such a body would create disputes which would not otherwise arise.
I conclude by repeating the warning I have ventured to give on other occasions against allowing the lawyer to overrule the statesman. I value our selfgovernment as our most precious political possession^ but I consider that it is possible and actual only because of the unity and strength of the British Empire. I am much more concerned to conserve and strengthen that unity than to insist upon any theoretical rights as a mark and symbol of an independence which would not be real outside the Empire. We must, however, take account of the views of other dominions, and it is for this reason, and not because I consider that Australia suffers any real disabilities, except to some extent in respect to shipping, that I agree in part with the suggestions for alteration made by the conference of legal experts. We must, however, be on our guard against exaggeration of the need for legal completeness. We cannot get a constitution of the Empire that will be, as in the old Latin phrase, - lotus teres atque rotundus - all smooth and neatly rounded off. Some things must be left abrupt. A family would not last long if its members insisted upon denning their relationship by legal rules. T have no great enthusiasm for laws which are designed to define an absence of relationship within the Empire, and I ask the Government to proceed slowly and cautiously, and not to bind itself beyond what I suggest as the desirable minimum. I ask the Government to remember above all things that the interests of Australia - its selfgovernment and economic welfare - are bound up with the success, prosperity, and continued unity of the British Empire.
– I was glad to hear the Leader of the Opposition say that he did not desire the lawyer to overrule the statesman. After the Imperial Conference of 1926 we thought that Australia had attained constitutional freedom - that from that year it was an independent nation, enjoying equality with the United King dom, and not subordinate in any way to any other parliament or people. We have since been rudely undeceived by the lawyers. Legislation passed by the Australian Parliament, which was absolutely essential to our national independence, is inoperative because the lawyers have decided that the statesmen from 1924 to 1926 were in error. Some oi our most treasured rights have been challenged by the invalidation of portions of the Navigation Act. Now, when an attempt is being made by a conference of constitutional experts to give to Australia the real power which most people thought it already had, we are warned by the Leader of the Opposition, to go slowly, and accept a subordinate position in the Empire, because Australia always has been subordinate.
– The honorable member has misunderstood my contention. I advised caution only in regard to the legal expression of Empire relationships.
– I shall show that the honorable gentleman did propose that we should continue to accept subordination, and that legislative power which an independent nation should have should be left with the British Parliament.
– The honorable member has quite misunderstood me.
– I shall substantiate my statement as I proceed. History shows the remarkable fact that every British plantation, settlement, or colony, has, on attaining age and strength, asserted its right to national independence. That is true notably of the Irish people whose civilization is at least as old as that of the English. I find that, in 1643, the Irish people presented to the King of England a “Remonstrance of Grievances.” One of the demands that they made was as follows : -
That Ireland should not be obliged by any statute made in England which shall not be confirmed by their Parliament, nor be commanded by orders of the Parliament of England.
The position has been the same in the West Indies. Each of the “West Indian colonies in 1674 passed the following declaration : -
That the power of making laws for ordering or regulating the internal polity of these colonies is, within the limits of each colony, respectively and exclusively vested in the provincial legislature of such colony; and that all statutes for ordering or regulating the internal polity of the said colonies, or any of them, in any manner, or in any case whatsoever, are illegal and void.
The people of the plantations of America adopted a similar attitude prior to the War of Independence. The American colonies were established by the United Kingdom, but so soon as they reached man’s stature and were able to look after themselves, they insisted upon the innate right of English-speaking people to govern themselves. Blackstone and Coke, two eminent English lawyers, have laid it down that every English-speaking community has inherent in it the right of nationality; that right does not arise out of any outside power. At the first continental congress, which was held in 1774, the people of the United States of America advanced the following principles : -
That the foundation of English liberty, and of all free government, is a right in the people to participate in their Legislative Council; and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British Parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed.
So far back as 1865, when the resolutions of the Quebec Conference were being debated in the Parliament of the Province of Canada, Sir John McDonald, as great an imperialist as ever lived, said -
The colonies are now in a transition state. Gradually a different colonial system is being developed - and it will become, year by year, less a case of dependence on our part, and of over-ruling protection on the part of the Mother Country, and more a case of a healthy and cordial alliance. Instead of looking upon us as a merely dependent colony, England will have in us a friendly nation - a subor dinate, but still a powerful people - that stand by her in North America in peace or in war.
Another speaker expressed the following views : -
I do not deny that the effect of the present movement may be to change the character of the actual relations which subsist between this province and the Mother Country. But I maintain that the change will be of that character, that, instead of loosening or weakening or diminishing the connexion with the Mother Country, it will tend to put it on a footing which will make it stronger and more enduring . . .
But whenever such a claim has been made the Parliament of the United Kingdom has laid claim to full and complete authority over all parts of the British Empire. The people of Ireland have always contested the point; and in order to prevent revolt in that country in 1773, the British Parliament was forced tq pass what was called the Renunciation Act. That act declared and enacted -
That the said right claimed by the people of Ireland to be bound only by laws enacted by His Majesty and the Parliament of that kingdom, in all cases whatever, and to have all actions and suits at law or in equity, which may be instituted in that kingdom, decided in His Majesty’s courts therein finally, and without appeal from thence, shall be, and it is hereby declared to be established and ascertained for ever, and shall, at no time hereafter be questioned or Questionable.
There is a similarity between that act and the legislation which is to be the subject of the forthcoming Imperial Conference, and which will be passed by the dominions as well as by the United Kingdom with a view to giving expression to 0U equality. The belief has been held by some persons that the term “ dominion “ signifies inferiority. My definition is altogether different from that. It is expressed in the words, “ They shall have dominion from sea to sea, and from the rivers to the ends of the earth “. Although Queen Victoria objected to the term Commonwealth, because it reminded her of the protectorate of Cromwell, it has been adopted to describe not only Australia, but the association of the various dominions with Great Britain that comprises the Empire. King Edward considered that the Australian federation had arrived before its time. From our entry into the community of nations in 1919, and the passage of the Irish Treaty Act in 1921 which declared the Irish Free State to be a nation in the British Commonwealth of Nations, our national status has been recognised. I cannot see that there is any very great necessity for this legislation; but as, unfortunately, the High Court of Australia has declared that the Colonial Laws Validity Act and the Merchant Shipping Act of 1865, still operate in Australia and hamper its independence, we had better accept it. The Leader of the Opposition (Mr. Latham) has rightly stated that if we appeal only to legality we shall not get very far. There is not the slightest doubt that what one Parliament passes the next Parliament can repeal, because a Parliament cannot bind its successors. If we depended upon legislation passed by the United Kingdom, and the matter was regarded strictly from the point of view of legality, we might find our position altered whenever the character of the British Parliament changed. The Prime Minister (Mr. Scullin) has said that it would be an agreement; but I want it to be more than that. I am not aware of what the other dominions intend to do; but as the United Kingdom proposes to confer these powers upon us, and assumes that it has the power to do so, we should accept them, not as a gift, but because it suits our convenience to do so. This Parliament should also pass whatever legislation is necessary to assert its rights and its status; and the Parliaments of the other dominions should act similarly.
It is unquestionable that the term “ alliance “ which was used by Sir John Macdonald in Canada, in 1865, properly describes the present position of the British Commonwealth. But an alliance is not possible except between equals. The greater the equality and initial separativeness the stronger the subsequent union. That is very properly pointed out by Professor Schuyler, Professor of History at the Columbia Unversity, in Parliament and the British Empire. He says -
In Greater Britain (London, 1868) Charles Dilke wrote: “After all, the strongest of the arguments in favour of separation is the somewhat paradoxial one that it would bring us a step nearer to the virtual confederation of the English race.” The mid-Victorian antiImperialists by no means deserve the censure that Imperialists have been fond of heaping upon them. “ On the whole,” Mr. H. Duncan
Hall judiciously remarks, “ it is fair to say that the emphasis put by the separatists on the development of an independent and self-reliant spirit in the colonies, played a large part in helping to foster the growth of dominion nationhood, and an even greater part in forcing England to recognize this vital factor.” Personally, I believe that when we are free from the present galling bonds, greater friendship will exist between every portion of the British Commonwealth. One free man can regard another as a friend, but he cannot treat him as an equal if there is not equality between them.
– What are the galling bonds to which the honorable member refers?
– It is admitted that, at the present time, the Parliament of Great Britain can alter our legislation. It refused to accept the Constitution that was sent to it with the backing of the Australian people. The Constitution that it assented to contains provisions that state the position which we should adopt towards British merchant shipping, as well as to the warships of every part of the Empire, and other matters. The hearing of appeals by the people of Australia is not limited to our own courts; appeal lies to a court that sits in London. I, as a Britisher, residing in Australia, want to feel that I have equal rights with a Britisher who resides in England. It is repugnant to me that I should be in any sense subordinate to a Britisher who lives in London, and insists upon his right to govern this country. A big step forward was made recently with the signing of the protocol for the revision of the Statute of the Permanent Court of International Justice, and the protocol for the accession of the United States of America. For the first time in the history of treaties between the British people and other nations, there was then a recognition of the independence of Australia in these matters. On that occasion the signature of the British Government had application only to the United Kingdom of Great Britain and Ireland and the Crown colonies other than the dominions, which affixed their signatures independently of Great Britain.
– The Treaty of Versailles was signed in that way. Mr. Lloyd George signed the treaty for Great Britain ; but that is all he did.
– I can produce the treaty. If the honorable member will examine it he will find that it. was signed for the British Empire by Mr. Lloyd George. There were other signatories, such as William Morris Hughes, on behalf of the Commonwealth of Australia, but the first signature was binding on the Empire. The other signatures were attached to the treaty out of compliment to the splendid work of the right honorable gentleman and the representatives of the other dominions.
– It was the King who signed for the Empire.
– Yes, but in the first place, Mr. Lloyd George signed for the British Empire. That was a complete and all-absorbing authority. The other signatures were merely appendages. If the right honorable member will examine the treaty in respect of the optional clause, he will find that great alterations were made by the London Ministers.
I come now to paragraph 43 of the report. The Leader of the Opposition has said thathe would like to leave the extra- territorial operation of legislation under the British Parliament.
– That is the only way of dealing with it.
– I suggest that there is another way. The paragraph reads - “ It is hereby declared and enacted that the Parliament of a dominion has full power to make laws having extra-territorial operation.”
– Enacted by the British Parliament.
– I desire that the words “all Parliaments of the British Commonwealth of Nations” should be substituted for the words “ the Parliament of a dominion.” One of the arguments used by the Leader of the Opposition in favour of not giving that power to the dominions was that South Africa might, if foolish enough, pass legislation applying to New Zealand.
– I argued in favour of giving that power, but I said that the terms of the recommendation were hopelessly ambiguous.
– I do not think that that would be done. If South Africa were not given power to legislate for Aus tralia, why should the United Kingdom have such power? The Leader of the Opposition seems to think that the residuum of power is to be left with the United Kingdom. I certainly object to that. In addition, when he was speaking with regard to the authority on the high seas, I tried to interject that at the present time the Danube is controlled by eight or nine nations bordering its banks. Something similar to the equal authority and conventions among those nations in respect of the Danube should exist among the Parliaments of the British Commonwealth in regard to their jurisdiction on the high seas.
– A commission deals with the navigation of the Danube, but I am not in favour of the establishment of a Federated Parliament or a commission for the Empire.
– The Leader of the Opposition is surely in favour of a convention or conference.
– I am not in favour of a commission for the high seas.
-I agree that the United Kingdom should retain that power, but only with an equal power to this dominion. I, for one, should not be prepared to give away our rights of extraterritoriality by legislation without having the right to call another conference for the purpose of revoking that legislation. The Leader of the Opposition has said that we should not have this power, but if that were so, we should be putting ourselves in an unfair position. As the Balkan States are able to make conventions in their own right in respect of the Danube, there is no reason why the British Commonwealth of Nations should not have similar rights in respect of the high seas.
– What extra-territorial rights would the honorable member claim ?
-I would claim the right that every country with a seaboard has. Whether we should allow another member of the British Commonwealth of Nations to exercise that right is another matter, but it should not be exercised without our consent. As an independent nation we must take up that position.
Paragraph 63 of the report states “ The Colonial Laws Validity Act 1865 shall cease to apply to any law made by the Parliament of a dominion.” I desire that the words “All Parliaments of the British Commonwealth of Nations” should be substituted for the words “ the Parliament of a dominion.”
– If our Parliament were to pass such legislation it could have no legal effect in this or any other country. We are limited by our Constitution, and that does not give us power to pass such legislation. We could pass a resolution.
– That defect is curable.
– But it cannot be cured by our own legislation. That is the point.
– It could be under an independent status. The preamble to paragraph 54 should be deleted, but not for the reason given by the Leader of the Opposition. I am opposed to it because it is an acceptance of a right which I think does not exist. It reads -
It would be in accord with the established constitutional position of all members of the Commonwealth in relation to one another that no law hereafter made by the Parliament of the United Kingdom shall extend to any dominion otherwise than at the request and with the consent of that dominion.
The Leader of the Opposition has referred to the Royal Title. The 1926 conference at which we were, unfortunately, represented by that antiAustralian, Mr. Bruce, passed a new declaration as to what the Royal Title should be, and that title does not apply to Australia at all. It is to this effect : “ George V., by the Grace of God, of Great Britain and Ireland and the dominions overseas, King”. From my point of view, Australia is not a dominion overseas, and, therefore, that title does not apply to Australia. I should call Canada a dominion overseas. I know that Mr. Bruce, when in London, would look upon Australia as an overseas dominion, but, from an Australian stand-point, this country is not an overseas dominion.
– Although that was agreed to by the 1926 conference, it did not alter any facts.
– No; but it declared a geographical impossibility. In addition, there is not to be any alteration of the law in respect of the succession to the throne, without the consent of all the Parliaments of the dominions and the Parliament of the United Kingdom. I do not suppose that if the law of succession, which the Leader of the Opposition is so anxious to preserve, were altered, it would take away the right of succession from the descendants of the Electress Princess Sophia. It would be a good thing if the law were not altered, and without the consent of the Parliaments of the dominions, the United Kingdom would make no attempt to alter it.
– There is a certain amount of weight in what the honorable member says; but why raise a question like that?
– Because there is a possibility at the present time of the question of the Royal succession being raised. Honorable members must know that the third now in succession to the English throne is the daughter of the Duke of York. If, by any chance, a son were not born to the Duke of York, but a second daughter were born, the elder daughter would not have the right to succeed to the throne. If there are only daughters in the line of succession, the selection of the successor has to be made by Parliament.
– Why anticipate all this trouble ?
-The honorable mem ber has raised this question. There is no doubt about the legal position. Paragraph 70 of the report reads -
The Australian Constitution also presents special problems in relation to disallowance and reservation. In Australia there is direct contact between the States and His Majesty’s Government in the United Kingdom in respect of disallowance and reservation, of State legislation. This position will not be affected by the report of the present conference.
That is one of the greatest difficulties in connexion with the whole report. We are to have a new constitutional position in regard to the Parliament of the Commonwealth, while the position in regard to the States is to remain unaltered. It means that the Commonwealth is to have absolute independence, equal authority, equal rights, and equal nationhood, yet the constituent parts of the Commonwealth are declared, in paragraph 70, to be unaffected by this alteration. Portion of that paragraph reads - hi Australia there is direct contact between the States and His Majesty’s Government in the United Kingdom in respect of disallowance and reservation of State legislation.
This position will hot he affected by the report of the present conference.
What an anomalous and extraordinary position! It created an Imperium in Imperio. Some other attitude will certainly have to be adopted towards the States. The report continues: -
In the absence of special provision, provincial and State legislation will continue to be subject to the Colonial Laws Validity Act and to the legislative supremacy of the Parliament of the United Kingdom, and it will be a matter for the proper authorities in Canada and iri Australia to consider whether and to. what extent it is desired that the principles to be embodied in the new act of the Parliament of the United Kingdom should be applied to provincial abd State legislation in the future:
The position is extraordinary. On the one hand, as citizens of the Commonwealth, we have equal status with the people of Great Britain, but, on the other, as citizens of the various States, we are still subject to the Colonial Laws Validity Act, and the Imperial Parliament will exercise a power of disallowance and reservation in respect of our legislation. I particularly ask the Prime Minister to look into this aspect of the subject while abroad. The States will have no representatives at the conference, so be will be the only person who can watch their interests. It will be remembered by some honorable members that the States asked for representation at one of the earlier Imperial Conferences on the ground that they. as well as the Commonwealth, enjoyed a particular status in relation to the Imperial Parliament; but their request was not’ acceded to. We are, undoubtedly, subject to two allegiances, one, as people of the Commonwealth, and the other, as people of the States; but whereas in the former case we are regarded as a people of equal status, in the latter, we are regarded as subordinate, and will be subject to what I regard as galling restrictions. It is absurd that, in one relationship, we should be under servitude to Downing-street, and in the other, we should be regarded as equals. This matter should be investigated and the position corrected at the coming conference.
I trust that honorable members will not consider that because I have made these remarks I am not a lover of the Mother
Country. There is no one who regards the Old Country with greater pride and affection than I do* I desire to maintain a continual alliance with every part of the British Commonwealth. I am proud, indeed, to be of British stocky and regard the great ideals . of the people of those famous isles in the North Sea with the utmost honour. England is the originator of the liberties that we enjoy, and the freedom and democracy of which we are so proud. But we should be considered as sons who have left their father’s house, and are supporting ourselves. We still have every respect for the old political beliefs and business practices, but we are now independent, and should be so regarded. Our rights as a nation, to discontinue the figurative language, have been asserted, and ah attempt is now being made to reduce them to a legal formulae. Although I do not know that such legislation is necessary- our rights already exist - I think it should be done. I want our nationhood to be absolutely asserted. That does not mean that in a time of stress I will refuse to stand by the Old Country; but only that I want alliance, and not subordination. I am sure that the Prime Minister will place Australia’s .views before the conference in a way which will advance the best interests of this great country.
. The subject with which the House is dealing is of supreme importance. The Prime Minister’s impending departure to attend the Imperial Conference lends this debate additional value, for it will enable the right honorable gentleman to gather the opinions of honorable members on some matters that must inevitably be discussed at the conference.
I am entirely opposed, and always have been, to this futile. nay, dangerous, attempt, to state in writing the relations which exist between the various parts of the British Empire. In order to satisfy honorable members on this point, I cannot do better than direct attention to the views which I placed before the Imperial Conferences of 1919 and 1921, which I had the honour to attend.
May I say, first, that the views expressed by the honorable member for Corangamite (Mr. Crouch), in the concluding part of his speech are also mine!
I Lave always been a zealous upholder of the rights of the self-governing dominions, and have insisted, in the face of much opposition from my friends overseas, that these rights should be respected. But I have also always been a zealous upholder of the unity of the Empire, upon which the safety of this country depends. I hold just as tenaciously now the views that I expressed in the 1919 and 1921 conferences. In a book I published a year or two ago, I referred at some length to the foolish attempt made at the 1926 Imperial Conference to reduce to writing the conventions of the British Commonwealth of Nations. I said -
Against this folly I have always set my face. None have stood more firmly than I for the right to full autonomous powers, or pressed more insistently for the recognition that the various nations of the British Commonwealth are perfectly equal in status; but these things being freely accorded, I have always held that we can maintain the unity of the Empire only if we exercise the rights we all possess with the utmost discretion and watch that our acts do not deletriously affect the Empire or any part of it.
The’ constitutional relations between the dominions and Britain, and between the dominions inter se have proved wonderfully adaptable and elastic, but that elasticity and adaptability are limited. We must recognize that although constitutionally we, in the dominions, or the people of Britain, can do whatever would be possible if we were separate nations outside the Empire, some things we cannot do without grave dangers of disrupting the Empire. But we cannot write these things down in black and white. They depend upon circumstances. What is possible to one dominion is not possible to all; an act which may be done safely to-day may lead to grave trouble in six months’ time. The unity of the Empire depends upon the wise restraint with which its rulers exercise the limitless powers entrusted to them.
Those observations set out my views clearly and concisely. In 1921 the conference endorsed and acted upon them unanimously, rejecting the suggestion to set- out in writing the conventions of Empire relations. Unfortunately, in 1926, other counsels prevailed, with results such as might have been expected. The 1926 report, which was to have settled everything, has created confusion, doubt and alarm, where formerly were order, -certainty and confidence. The report now before the House is another attempt to set down in black and white the conventions and traditions which have been re cognized by the British Commonwealth of Nations. This, too, though less ambitious than that of 1926, settles nothing. No one can read it without being convinced that every attempt to reduce to writing the constitutional relations existing between the various parts of the Empire must fail. Let me show why this must be so. It was proposed that a constitutional conference of representatives of the British Empire should be held in 1921. Addressing myself to this proposal, I said at that time -
It has been suggested that a constitutional conference should be held. … It may be that I am very dense, but I am totally at a loss to understand what it is proposed that this constitutional conference shall do. If it that the dominions are seeking new powers, or is the conference to draw up a declaration of rights, to set down in black and white the relations between Britain and the dominions? What is the conference to do? What is the reason for calling it together? I know, of course, the resolutions of the 1917 conference. But much water has run under the bridge since then. Surely this conference is not intended to limit the rights we now have. Yet what new rights, what extension of power, can it give us? What is there that we cannot dp now? What limitations are now imposed upon them ? What can they not do - even to encompassing their own destruction by sundering the bonds that hind them to the Empire? Yet what do they lack? Canada has asserted her right to make treaties.’ She has made treaties. She is asserting her right to appoint an ambassador to Washington. Are these the marks of slave States or of quasi-sovereignty ? In what essential thing does any one of the great self-governing dominions differ from independent nations ?
In making those remarks, I had in mind the position of South Africa and of Canada. At that time my friend General Smuts was the Prime Minister of South Africa; but the arguments are just as applicable to that dominion, although its affairs are now being administered by a government of which General Hertzog is the leader. What I said then I say now. It would be folly to attempt to encompass in writing the relations of these great dominions, because they are everchanging.
Sitting suspended from 12.45 to 2.30 p.m.
– Originally all the powers now vested in the dominions were exercised by Britain, and the present distribution is the result of her voluntary surrender of powers inherent in her as a sovereign State. This surrender has heretofore been made by -
It is to be observed that this distribution of powers has been gradual, extending over a long period of years; but, during the last few years, it has proceeded more rapidly than previously. The great merit of the constitutional relations between Great Britain and the dominions has always been their elasticity. To this is due their wonderful adaptation to changing circumstances, arising from the growth and development of the dominions. To attempt to substitute for this a rigid constitution, or to define or set out in writing the relationship between the dominions, is most undesirable. That becomes increasingly obvious as the years go on. What this commission, whose report is before us, makes more clear than before is that, while it is possible, in practice, to reconcile that complete autonomy which the dominions possess - which they exercise by virtue of British statutes and waivers by British Governments - with the sovereign rights of the Parliament of the United Kingdom and with the unity of the Empire, provided that the ambit of these conflicting -jurisdictions is not put in writing. The moment it is committed to writing it becomes impossible. There is a hopeless inconsistency between the complete autonomy which has been claimed by the dominions and has been freely admitted by Britain, and the unity of the Empire, the maintenance of which is only possible by such a restraint in their exercise as, in effect, imposes very real limitations upon our autonomous powers. This is the price we pay for unity. We cannot be at once independent nations and members of the British Empire. We can claim to be independent nations, and technically, can remain so ; but, if, actually, we attempt to exercise our powers as if we were, independent nations, the unity of the Empire becomes impossible. If unity of Empire is a thing of priceless value, as I believe it to be, and essential to the existence, independence and progress of Australia, we must face facts, and recognize that, while, technically, there is nothing that we cannot do, actually there are limits set upon the exercise of our powers, which we, as sensible men, must observe.
– What are those limits?
– I shall tell the honorable member. Unhappily, the principles which I laid down, and which were accepted by the conference as being a sufficient reason why the proposed constitutional conference could not be held, have been disregarded.
At the conference of 1923, and, particularly, at that of 1926, an attempt was made to improve upon perfection; because there never was a constitution like that of the British Empire, so vague, so impalpable, yet so admirably adapted to the basic principles of democratic government and Imperial unity. However in 1926, an attempt was made to set out these principles in writing, and the result has been disastrous; or, if that be too strong a term, at any rate confusion has been created. It has settled nothing, but it has unsettled everything. It was done to smooth the path, if you like, for two members of the Empire - the South African Union and the Irish Free State. In part, too, it was done to please the then Prime Minister of Canada. No demand was made for it by Australia or New Zealand. Those who represented the three dominions demanded, each in his own way, that the position should be put into writing, so that they might convince sceptics at home; so that when they stood on the hustings they could say, “ We bring you freedom, you who were in chains.” The dominion is now veritably a nation. That is the message which General Hertzog, the representative of the Irish Free State, and Mr. Mackenzie King, wished to take back from the Imperial Conference. Mr. Mackenzie King complained that he had recommended His Excellency the GovernorGeneral of Canada, to grant a dissolution, and he had refused, That, he said, was incompatible with the national status of Canada, which has been declared equal to the national status of Britain, where the practice of the last 40 years is that advice tendered to His Majesty by his Prime Minister is invariably accepted. He demanded that the position be now regulated so that Canada should not be denied those powers which are exercised by Britain in regard to this highly important constitutional matter. Lord Byng, in the exercise of that discretionary power, which it was generally recognized, lay within the province of the representative of the King in a dominion, had refused to grant a dissolution. The conference agreed that what was asked for should be done, and, so far as the conference could do it, the Prime Minister of every dominion was clothed with the same powers as those of the Prime Minister of Great Britain. When the Prime Minister of a dominion now advises his Governor-General to dissolve Parliament, His Excellency must dissolve it; he no longer has any discretion. Whether that was right or wrong, it was done, not because all the dominions wanted it, but because Canada wanted it. The Constitution, in practice, has been changed completely.
– Only in practice?
– It has been changed in fact. What the position is technically need not concern us ; we are talking about what follows when an attempt is made to put in writing this delicate impalpable thing called the Constitution of the British Empire.
Then there was an effort by General Hertzog to define more clearly the status of South Africa and the position of the King in relation to the dominions. The honorable member for Corangamite (Mr. Crouch) made some reference to that. He looks at the matter from another angle. General Hertzog claims that the status of South Africa has been raised by the 1926 Conference report, and that His Majesty now occupies a position different from that he formerly held. In fact, nothing in substance has been changed, yet it is true that things are not quite the same as they were, for South Africa has been led to believe that since it, is a nation, it may do all things that it could do if it were outside the Empire, and still remain within the Empire. What will come of this we do not know; but that the unity of the Empire is imperilled’ by this attempt to put in writing something which will satisfy that section of the electors of the South African Union that supports General Hertzog is undeniable. The Conference of 1926 has, I say, unsettled the foundations upon which the unity of the Empire rests. We were perfectly satisfied to remain as we were, relying upon the processes of evolution throughout the years to adjust things nicely to everchanging circumstances. We were content because that process, as time went on, had amply satisfied our every want. But, as General Hertzog desired this alteration, it was made. There is no real change, yet little by little the foundations of the Constitution are being undermined. There must be in this federation of nations some head. The concept of nations wholly equal in status, each going its own way without regard to the others and yet maintaining unity, is illogical, and, in practice, impossible. We have maintained that unity in the past through the exercise of a wise restraint, a recognition that, though we are equal in status with Britain, we are not equal in stature - that one must speak for all, and that each must adjust its circumstances so that unity can be maintained. Not seeking in any way to disturb that position, I have urged that in regard to foreign policy, which affects every one of us, although Britain speaks on behalf of all, it must be after consultation with all. Britain is the one that speaks, but she speaks after having consulted us. So there is lent to her slightest word the authority of a united empire.
One might pursue this subject at very great length. I have no intention of doing that; but there are one or two points that I wish to emphasize. Take the commission’s recommendation on the Colonial Laws Validity Act. Honorable members know that in 1917, 1918. 1921, 1923, and 1926, it was laid down at the Imperial Conferences, on the motion of the Prime Minister of Britain, that the dominions were equal in status to Britain, and were entitled to all the rights and privileges, and to the exercise of all authority in regard to matters within their jurisdiction, as was enjoyed by Britain herself. No more complete surrender of all that overlordship and sovereignty which Britain previously exercised over the dominions could ever have been put into words, precise, definite, andunambiguous.
– Does the right honorable member agree with the declaration.
– Certainly !
– But he said just now that there must be a head.
– The honorable member has not been following me. That declaration was all very well so long as we were content to have it in broad, general terms. Left in that form it does not disturb the traditions and conventions which have regulated, and still regulate, the relations of the governments of the Empire. It is when we depart from that position, and attempt to lay down formulae to govern relations of the Empire inter se that trouble begins. Since 1917 it was recognized that the right of the dominions to a voice in foreign politics was undeniable. Mr. Asquith, in 1911, declined to accept that proposition, but the war came and changed everything. I had the honour to represent Australia at the first conference at which this great charter of rights was given to us. But these rights are given to us, and can be exercised, only on condition that they are not abused - that they are exercised with wise restraint.
The Colonial Laws Validity Act is a statute of a dragnet character, passed in 1865. Its effect is to impose certain limitations upon the legislative competence of the various dominions, and, of course, upon States of the Commonwealth, and on Crown colonies. The provisions of that act are clearly inconsistent with the declarations of 1917, 1918, 1923 and 1926, namely, that we have a status equal to that of Great Britain in every respect. A dominion cannot have the right to make whatever laws it pleases applicable to its own jurisdiction, and within its own territory, and be at the same time subject to the overlordship of a British statute. I have maintained all along that the way out was to repeal the Colonial Laws Validity Act which, in my opinion, is now an anachronism. Some of the difficulties with which we are now confronted, and which are the inevitable result of the march of progress, can be remedied only by British legislative action. On this point I have written as follows: -
The reference of dominion legislation to the Dominion Office, the reservation of certain classes of legislation for the approval of the British Government, the hamstringing of dominion legislation by restricting their power to territorial limits in matters where their interests demand that the laws shall have force outside those limits, and the operation of the Colonial Laws Validity Act - a statute passed over sixty years ago, when the dominions were small outposts of the Empire - all these, I say, are incompatible with the status and importance of the dominions - and ought to be swept away by an act of the British Parliament.
That is clearly the position. The Leader of the Opposition said that if the Colonial. Laws Validity Act was repealed it must affect our Constitution, which rests upon a British statute. My answer is that the Colonial Laws Validity Act as it now standsignores the passage of time and the changes that have taken place. During the last twentyfive years we have come out of our swaddling clothes and put on the toga virilis. Therefore, all these restrictions should be swept to one side. The Colonial Laws Validity Act should go. That, of course, would involve a settlement of such matters as the extraterritoriality of our legislation, and of other points which have been raised in the course of this debate.
Our Constitution is actually a British statute, and the position is exactly the same in Canada. The Constitution of Canada rests upon a British statute known as the British North America Act. It is, in effect, a treaty between the French and the British-Canadian peoples. It followed upon longdrawnout negotiations, and paved the way to a united Canada. It cannot be amended except as provided for, namely by an amendment of the British statute. It is well known that the British Parliament will not amend a statute relating to a dominion except upon the invitation and at the request of that dominion, but its legislative competence to do so is undeniable. It could at this moment alter our Constitution. It could at this moment alter the Act of Union with Scotland, or upset the Act of Succession, or vary the Treaty with Ireland. There is nothing to stop it. Therefore, the question of the legislative competence of the British Parliament can be put on one side ; that is not in dispute at all. The point is that for hundreds of years, and certainly since the union with Scotland, certain acts have been regarded as final and exhaustive exercises of legislative authority. The Act of Union between England and Scotland having been passed, it ha3 never been suggested that it should be repealed, although, technically, the power to do so resides in the British Parliament. The same thing applies in regard to Ireland, and less obviously, perhaps, in regard to the British North America Act, and to our’ own Constitution. Having been enacted, they are how regarded as sacrosanct-.
The Leader of the Opposition dealt with this subject in a most interesting fashion ; but I point out to him that whether the Colonial Laws Validity Act is repealed or not, the legislative competency of every dominion to amend a British statute relating to that dominion cannot be questioned unless we are to say that the declarations of the Imperial conferences count for nothing. The legal position is as the Leader of the Opposition has said. Legally, certain limitations are placed upon our legislative competency by virtue of the Colonial Laws Validity Act and other acts, included our own Constitution, which is a British statute embodying an agreement between the States of the Commonwealth ; but, if the conference declarations are to have any force, the right of a dominion to amend a British statute relating to itself cannot be questioned.
– The Colonial Laws Validity Act has been applied by the High Court to Australian legislation since 1926.
– I do not care anything about the Colonial Laws Validity Act. This point was raised when Mr. Mackenzie King- attended the Imperial Conference of 1926. I mention this in order to show the folly of the 1926 resolutions. When Mr. Mackenzie King went to London for that conference, his one idea was to get from the conference the right to clothe himself with the same authority as was enjoyed by the Prime Minister of Great Britain. He did not see at the time where this would lead him. The declaration was made as he desired, and was put in writing. When he returned to Canada he was received with triumph. He had achieved a victory, and Lord Byng had, in the popular imagination, fallen from his pedestal. Everything seemed as he wished; but in reducing this principle to writing, they had gone so far that they had undermined the foundations upon which the Confederation rested. This became obvious during the course of the debate on the matter. On page 165 of my book, I have dealt with the situation in these words’ -
These British statutes are known as the constitutions of the various States or dominions to which they apply. They are at once the charter of liberty of the State or Dominion, and its guardian: They set out what may or may not be done. Generally, they do not limit ‘the self-governing powers of the people, but they do limit the authority of the legislatures. Certain classes of legislation cannot become law unless and until the people have been consulted, and have approved. The British statute usually gives legal effect to agreements necessary for federation between, or unions of, several States - that is, it allocates to the Federal or Central Government or to those of the States certain enumerated powers, and reserves all others to the contracting States. Alternatively, the enumerated powers are allocated to the States, and the residuum of authority granted to the States under their respective Constitutions passes to the central government. And this division of powers neither the central nor any of the State legislatures, nor even the people themselves, -can alter “except in the manner prescribed fay the British statute.
That was the position prior to 1926. I cited the example of Canada -
Take the position in which Canada, for example, finds herself to-day. . . . For all practical purposes, this Constitution was unalterable without general consent. ‘No matter how powerful a province or group of provinces might become, the British Parliament alone could blot out a line of it - and only when all the parties asked. But where there was certainty there is now doubt, and many of those who most loudly demanded that the autonomous powers of Canada should be more definitely declared are now going about in chastened moods deploring the inevitable consequence of the granting of their prayer.
The position is this: If Canada is a nation equal in status to Britain, nothing that concerns ‘Canada can be outside the ambit of the Canadian Legislature and the Canadian people. When the British North American Act was passed, every one accepted the overlordship of Britain, and, wishing to safeguard their interests ‘under a confederated system of government, the provinces naturally turned to Britain. In no other -way could the union have been achieved, and there was certainly no other authority with power to give legal effect to the pact.- . . .
But we cannot have it both ways. If Canada is a nation, in fact as well as by courtesy; if she has the full power of self-government that is the attribute of a nation, then she should have the power to legislate upon anything necessary or incidental to the welfare and good government of the dominion.
Suppose, for example, that the Canadian Parliament decided to amend the British North American Act, or to legislate in some way inconsistent with that statute? Would the laws she passed be what is termed constitutional - that is to say, within the legislative ambit of the Canadian Parliament?
That is a point of the greatest possible importance, and was so recognized. The French and others became so concerned that the matter was seriously debated. M. Lapointe, a French Liberal from Quebec, and Minister for Justice, attempted -to explain the position. He said -
Many people claim that because we cannot, in this Parliament, alter our own Constitution, that is a state of subordination. I claim that so long as this condition exists because of the will of the Canadian people - a condition which will exist so long as the Canadian people wish it so to do - changes that could be made will have to be made by the parties to the contract. But that condition, which is dependent on our own wish ‘ in the matter, does not, I claim, create a state of subordination. I deny most emphatically that a state of subordination and colonial inferiority is essential to the preservation of the rights of minorities in Canada.
The French are in the minority, and if the Constitution of Canada can be altered by the dominion parliament, those safeguards upon which they rely may disappear. Therefore, if the 1926 conference clothed the Canadian Parliament with power to do in Canadian matters all that the British Parliament can do in British matters, the conditions upon which the French agreed to the confederation of the Canadian States may be changed at any time. And, unless all the decisions of the conference mean nothing at all, that is their effect. I am not concerned with what lawyers may say; they have nothing to do with the matter. There is no court before which a nation can be haled. If we passed a law, let us say an act repealing the Constitution, who would declare it unconstitutional? The problem is very difficult only because we have got into the habit of regarding British statutes as sacrosanct, and entirely beyond our power of amendment. Either the resolutions of Imperial Conferences mean what they say or they mean nothing. But the declarations of the Imperial Conference were made by persons clothed with full authority to make them. The Prime Minister of Great Britain went to the conference clothed with all the authority of a sovereign parliament, and conferred with dominion representatives clothed with all the authority of their respective parliaments. And, mark you, a complete surrender by Britain of all her powers is absolutely within her competence. If she chooses to strip herself of all powers, there is none to say her nay; if the dominions choose to accept those responsibilities, there is none to deny them. And when the dominions have published to the world their independence, and given evidence of it by appending their names to treaties as separate nations, declaring over and over again their equality of status with the Mother Country, we have gone so far along the road that I do not know where we shall stop. Where there was certainty there, is now nothing but confusion and doubt. This is what I wrote in explanation of Mr. Lapointe’s statement -
There is no reason whatever to believe that the people of Canada want to’ exercise their rights as a fully self-governing country to amend its Constitution. On the contrary, there is considerable alarm at the discovery that such a thing is possible. But there is no doubt whatever, that if ever the Canadian people take it into their heads to amend, repeal, or ignore the British North America Act they will be able to do what they want.
As to the legislative competence of the Canadian legislature to act as the guardian of its own Constitution, and to amend or repeal the British North America Act, one may say a word or two. Some may perhaps contend that a resolution of the Imperial Conference does not confer upon Canada the right to repeal a British Statute. That may be so. In themselves, conference resolutions are without legal sanction. But that is not to say they mean nothing. If those resolutions leave things where they were, of what use are they?
If the relations between Britain and the dominions are the same now as they were before the war - and certainly no legislation passed by the British Parliament has altered them - then all statements that the dominions are equal in status to Britain, and have the same right as Britain to legislate in matters that affect themselves are so much hot air.
We have left that safe anchorage in which we had been content to exercise the powers that were freely handed to us as and when our state of development demanded, and like foolish and untrusting people, have asked that these things be put in writing that we might boast about them, that they might serve our purposes at elections, and that we might crown ourselves with garlands, and say as Hertzog said after the 1926 conference, “I have brought to you a King. The King of England is nothing to us. We have a King of Africa.” Being pressed to explain, he said, “He is the King of England, but he is King of Africa.” There has been no change. Yet we have been dragged along a road to the edge of an abyss. We have dropped the substance for the shadow. We are pursuing paths that must ultimately lead to disunity. At the forthcoming conference another effort will be made to correct that which cannot be corrected, to define that which is indefinable. When we set down in. writing the relations between two ever-changing bodies, every term must in the nature of things amount to words of limitation. It is impossible to conceive and define what will be the relations between A and B, developing bodies, in ten years’ time without saying, “A must not do that, and B must do the other.” But when, as before, we were given powers sufficient unto our needs, we knew where we were. Whatever we wanted we knew we could have when the time came, and as we could not foresee the powers we would want we did not demand that they be put in writing, for writing would only limit them. Since 1926 resolutions have been passed again and again to explain the inexplicable. We cannot explain in writing the constitutional relations of the British Empire. They are to be found in the history, in the tradition, in the constitutional development of the British Empire. No one, fifteen years ago, could have foreseen or predicted that we would stand where we are now. When Andrew Fisher went to the Imperial Conference in 1911, and met the leaders of the Empire, the first statement that Mr. Asquith made was that Britain could not share the responsibility of foreign policy with the dominions. Who could have foreseen at that time that at conference after conference
Britain would seem to be animated by a desire to strip herself of the last vestige of authority, to seek in many respects to placate the implacable, not realizing that the partners in the Empire must be content to trust one another and allow their relations to be determined by the circumstances of the moment. Never when we have demanded the right to exercise a power has it been denied to us. When we have demanded a power necessary for our circumstances it has been freely given to us. Why, then, should we seek to define what our powers are? It is enough to say that we are equal in status with Britain herself. Who shall say what our requirements will be tomorrow? The moment we set down in writing our powers we set limits to them, and people say, “ Cannot we do that ?” “No, because if you do, you will dismember the Empire.” Thereupon foolish and short-sighted enemies of the Empire seek to do that very thing. I regret now more bitterly than ever that we have departed from sound principles, and I ask the Prime Minister to pursue a policy that will, so far as humanly possible, arrest the tide of this process, and to be content with a plain declaration of the fact that there is nothing Australia wishes to do that it cannot do. But, if she does some things, she cannot remain a member of the Empire.
– Does the right honorable member contend that the conference resolutions prior to 1926 really superseded such legislation as the Colonial Laws Validity Act, and that therefore such legislation should be repealed?
– Yes. To the extent that these resolutions were incompatible with the overlordship of Britain, which is assumed necessarily by the legislation which purports to limit the ambit of dominion legislation, they are inconsistent. But, so long as they were undefined and not set out in a general way, they left us to meet the situation as we came to it. We do not know yet what has happened. A reference was made today to the Act of Succession. Whenever an attempt is made to define or explain what has already been done, difficulties are encountered and one finds oneself floundering in a bottomless bog. It is suggested in this report that the question of succession is to be submitted to each of the dominions. That would naturally be done if the occasion should ever arise for doing it. But is such a contingency likely to arise? There never was a royal family so firmly established as is the House of Windsor.
I desire to re-affirm the attitude that I have always taken up. I stand as a zealous upholder of the rights of Australia. No one has fought for those rights more insistently or more determinedly than I. I have upheld them against Great Britain as I have done against every other nation. But I have always recognized that there are some things that cannot be done if the Empire is to remain united. Because of that, I say that we cannot express these matters in writing. I hope, therefore, that the Prime Minister will approach the Imperial Conference in London, recognizing clearly that he can get nothing that he does not already possess. When the declaration was made that we were equal in status with Great Britain, and when it was re-affirmed in Parliament and in conference, there remained no more worlds, either legislatively or administratively, to conquer. Real limitations are imposed upon both Great Britain and Australia. The Parliament of Great Britain is a sovereign Parliament ; it can wipe out the present dynasty, repeal the Act of Union, and the Constitution of the Australian Commonwealth, and thus destroy the foundations upon which we rest. But it dare do none of those things, and it would never dream of making the attempt. But as limitations are imposed upon its legislative competency - and no one suggests that either its sovereignty or its dignity is thereby impaired - why should we hesitate to admit that there are imposed also upon us restrictions which we may recognize without any impairment of our dignity or our nationality?
Debate (on motion by Mr. Fenton) adjourned.
page 5158
In Committee of Supply: Consideration resumed from 31st July (vide page 5107).
Proposed vote, £913,100.
– I take it that one may refer with a certain amount of discretion to customs items.
The CHAIRMAN (Mr. McGrath).I cannot allow a reference to be made to any tariff items.
– May I make a special appeal for all the licence that you can extend, to me, on the ground that, within the last eight or nine months, hundreds of tariff items have been introduced and no opportunity has been afforded for their discussion? Those items cover the whole of our secondary and many of our primary industries, and they concern profoundly the welfare of this country, not only in a monetary sense, but also from the point of view of unemployment.
– Last year I ruled that tariff items could not be discussed on the proposed vote for the Department of Trade and Customs. One reason is that, as a committee of supply, we have no knowledge of what takes place in any other committee. The question before the Chair has no relation to tariff schedules. This is not a new rule; it is an oldestablished custom, which is upheld by the highest authorities.
– Then I shall discuss the inadequacy of the staff of the central administration to cope with the extraordinary expansion that has arisen out of the new schedules, and the unprecedented congestion of customs business that has resulted. To illustrate that, I shall show the extraordinary delay that has taken place in giving consideration to an application for the removal of one of the most scandalous sets of duties ever introduced. About a fortnight ago, a deputation waited upon the Assistant Minister (Mr. Forde) to protest against the exceedingly high duties that had been placed on glass. A departmental shorthand writer took notes of the proceedings. The case presented was remarkable and overwhelming. No case could be imagined that would demand more immediate attention.
– The honorable member is quite in order in referring to the inadequacy of the staff, but not in expressing the belief that a deputation had an overwhelming case.
– I shall not state positively that it was overwhelming; but I viewed the matter dispassionately, and it appeared to me to be of overwhelming importance and of the greatest urgency. The case made out was that this duty had been quite wrongfully applied against an article which enters into the construction of houses and other buildings throughout this country.
– I draw attention to the fact that the honorable member for Henty is discussing a certain tariff item, and has departed from his professed intention to discuss the inadequacy of the staff of the central administration. I submit that he is out of order.
– I was following the honorable member very closely, but my attention was diverted for a moment, and I did not catch his concluding reiki turks
– The point that I wish to make is that the staff of the central administration should be strengthened substantially, so that we may immediately overtake the dreadful congestion that exists. These prohibitive duties have been imposed upon an article that is in household use in this country, and that is not manufactured in Australia. Those who are interested in its importation, its sale, and the supply of it in connexion with any building that is erected or any window that is broken-
– Order! The honorable member must respect the ruling of the Chair. I ask him to confine his remarks to the item under discussion.
– “When the case was presented to the Assistant Minister a fortnight ago, he promised that he would give it his immediate and sympathetic consideration. A girl shorthand writer was present - from the department presumably - and took a shorthand note of the proceedings. To my certain knowledge, the transcript of that note has not been considered by the Minister. When I questioned him after a week had elapsed he said that the department was so hopelessly overloaded that the transcript of the shorthand note had not been made. Only a day or two ago a report of the remarks that I made at the deputation was sent to me for revision. I told the clerk who brought it along that he could collect it from my room, but a page of it is still lying there. That is a particularly scandalous state of affairs. A great wrong has been done, a great injustice committed.
– The honorable member must realize that he is not in order.
– I have no wish to transgress your ruling, Mr. McGrath. I feel very warmly on this matter. I appeal to the Minister to investigate what is taking place throughout the administration of the Customs Department to-day.
– Order! I observe the presence of a stranger in the chamber, and I ask him to retire.
The stranger accordingly retired.
– The Minister has been absent from Australia for some months, and probably is not aware of the extent of the congestion in his department. I appeal to him to investigate immediately the administrative side, nol only in Canberra, but in the different States. A year ago, when I was in charge of the department, a considerable number of what are known as requests for by-law admissions were received. I have no hesitation in saying that, as the result of the introduction of these new schedules, those requests have increased at least fifty-fold. I ask the Minister for Trade and Customs to what extent the staff of investigation officers who have been inquiring into these cases has been increased ; how many complaints and requests in connexion with these new schedules remain unanswered at the head office, and how many weeks behind is the work of the department in connexion with the enormous correspondence that it has been receiving during the last few months. This congestion has come about because of this new and amazing policy of tariff-making in a hurry. It has never been done in the world successfully, and it will never be done in Australia successfully. The head office of the Customs Department is hopelessly overburdened. It is not giving the business people of the Commonwealth anything like a fair deal. Never before has a Commonwealth department fallen down on its job to such an extent. That is not the fault of the department, because, in normal times, it is as capable and efficient as any other department of its kind in the world. But it is being submerged by its work. I understand that the congestion will be made ten times worse by the departure overseas of .the first tariff expert of the department, Mr. Abbott. I have made this charge of congestion on two or three occasions, and I ask the Minister to let honorable members know the exact position. There are two Ministers directly connected with the work of the Customs Department, and yet we can get no information in respect of its work and of tariff items generally. The silence preserved by those Ministers is unprecedented in this chamber. I regret that you, Mr. Chairman, have ruled that no discussion, is permitted on the glass scandal.
.- Some little time ago an embargo was placed upon certain imports, including agricultural machinery. Recently I received a letter in regard to the sale of machinery in Western Australia. I understand that Mr. S. McKay, of the firm of H. V. McKay and Company, has altered the conditions of sale in respect of agricultural machinery. The sales are now based on a cash payment of 25 per cent, of the value of the goods, the balance to be paid in February next. There would be no objection to that if it were an ordinary condition of sale, but it is a drastic step under existing conditions. At present there is an embargo on the importation of agricultural machinery, and if this firm is permitted to use that embargo in this way, it will inflict a great hardship upon the farmers. Mr. Ferguson, when giving evidence before the Royal Commission on the Constitution, admitted that agricultural machinery in Western Australia costs 12 per cent, more than it does in Victoria, principally because of the freight. If the Government insists upon the embargo, and the Western Australian producers are compelled to purchase their requirements from Victoria, a further heavy impost will be placed upon them. I ask the Minister to ascertain whether there has been any important departure in connexion with the tracing arrangements of H. V. McKay and Company, and, if so. to take steps to rectify the position. If that, is not done, it will be my duty to move the adjournment of the House before the session ends in order to place this matter before honorable members. I trust that the necessary action will bc taken, and that the Government will remove the embargo that has been placed upon the importation of . farmers’ requisites.
I come now to timber duties and the report of the Tariff Board in respect of the timber industry. I wish to deal not with the new duties, but with the obligation of the Government in respect of the ordinary duties on timber. In 1921 pressure was brought to bear upon the Government to introduce a tariff board bill, because of information that had been obtained abroad by one of the Government officials. He reported upon the methods adopted by the high protectionists in the United States of America the home of tariff scandals. We passed the Tariff Board Act, and, under it, all the best known star chamber methods were adopted. The Tariff Board could sit in private, and there was no need to take evidence on oath. Several honorable members, including myself, fought that legislation bitterly, but at that time no alteration was made. Some time afterwards we were able to effect an alteration. We brought the Tariff Board into the open. That body has probably done good work, but anybody who reads its majority report on fertilizers will realize that it has fallen down on its job. If the recommendations of that board ‘ were given effect to a certain firm would obtain an absolute monopoly of the sale of fertilizers in Australia. If its local supplies were not sufficient to supply Australian requirements, it was to be allowed to import fertilizers duty free, while other firms who imported that product had to pay the duty. The Tariff Board has reported on the timber industry. [Quorum formed.] Certain obligations are placed upon the Minister by the Tariff Board Act. which provides for instance that -
The Minister shall refer to the hoard for inquiry and report the following matters: -
The necessity for new. increased or reduced duties, and the deferment of existing or proposed deferred duties.
The act also provides that evidence in regard to these matters must be taken in public and on oath. But a remarkable thing has occurred in connexion with the imposition of the new timber duties. Honorable members will remember that an agitation has been conducted for a number of years for an increase of the timber duties. In 1924, the Tariff Board refused to recommend an increase in duties, but in 1927, the Government brought forward a proposal for increasing them in opposition to the report of the board. Although that proposal was withdrawn, pressure was later brought to bear upon the Government, with the result that it was reintroduced, and the duties increased.
– The honorable member is not in order in discussing the timber duties; he must confine his remarks to the subject before the Chair.
– My object in making these observations is to point out that the provisions of the Tariff Board Act are not being complied with. Quite recently a conference was held in Canberra, at which persons interested in the timber industry, particularly in Victoria and Queensland, met the Minister and requested him to grant an increase in the existing duties. The act makes no provision for the holding of a conference with suppliants for increased duties. The requirement of the statute that the board shall take evidence on oath in regard to these matters was not observed in connexion with the imposition of these new duties. The result is that certain big timber merchants in Melbourne, who hold large stocks of timber, will be able to take unfair advantage of the new duties. This is a matter which requires explanation by the Minister.
One would like to discuss in detail many matters in connexion with this department, but there is not time to do 30. Yet I felt obliged to direct attention to the manner in which the new timber duties have been imposed, because in my opinion, the whole procedure is in the nature of a scandal.
I trust that before the session ends the Government will give honorable members an opportunity of discussing questions relating to the imposition of duties on agricultural machinery and farming requisites generally. I earnestly appeal to the Government to take into consideration the very difficult position in which the primary producers of “Western Australia have been placed, because of the prevailing low prices of their produce, the additional charges which are being imposed upon all their requirements, and the disadvantages under which they labour in comparison with primary producers in the eastern States. I know that there are constitutional difficulties in the way of - granting special relief to the “Western Australian farmers; but I sincerely hope that some method may be devised of assisting them to overcome the troubles which they are finding so oppressive.
– I ask the Minister to agree to an adjournment of further consideration of the proposed vote for his department.
– I was promised that this vote would be passed this afternoon.
– I hope that the Minister does not intend to insist on rushing through this business. We have been discussing matters relating to bis department for only 28 minutes.
I associate myself with the protest made by the Deputy Leader of the Opposition (Mr. Gullett), against the delay that is occurring in the making of decisions in regard to customs difficulties. Seeing that two Ministers are devoting their attention to the affairs of this department, there is no justification for serious delays. It, has been brought under my notice that business men in Sydney and Melbourne, who have been endeavouring to obtain decisions from the department since last June, are still waiting for definite replies to their communications.
– Some of them have received letters signed by both Ministers.
Mr. ARCHDALE’ PARKHILL.That is so. I doubt whether there has ever been a time when the business of this department has been so congested. Never before has the authority of Parliament been so flagrantly flouted as by the action of the Government in stifling discussion of the details of the tariff schedule.
– The honorable member had full opportunity to discuss that aspect of the matter on the budget. He may not no* refer to tariff items.
– I think that I am entitled to point out that the delay in the consideration of the tariff schedules is inflicting the utmost hardship on large sections of the community. Owing to the congestion in the department, men are losing their incomes, or are being thrown out of employment, and they can obtain no redress, either by the ventilation of their difficulties in Parliament, or from the department itself. These persons cannot get an answer from the department. If an honorable member asks for information which business men outside are desirous of obtaining, it is refused, and the Government declines to give members an opportunity to discuss individual tariff items. We are in the anomalous position of being members of a free parliament, and yet unable to prevent all kinds of injustice being done. Despite the provisions of the Tariff Board Act, the Government has departed from the recommendations of the Tariff Board in regard to timber duties.
– An honorable member may not discuss tariff items, but may refer to the salaries of members of the Tariff Board.
Mr. ARCHDALE PARKHILL.I do not say that the salaries of members of the board should be reduced, but the Government should be compelled to comply with the Tariff Board Act. I could point to numbers of cases in which the Government has refused to consider the recommendations of the board, and has made decisions diametrically opposed to them, I have never known so much delay in connexion with the work of the department as has occurred of late, with the concomitant injustice that has been inflicted on a large section of the people.
.- We are asked to provide over £900,000 for the maintenance of the Trade and Customs Department, which occupies a unique position in that it can be used, and is being used, as a taxing machine without the sanction of Parliament. Taxation proposals dealt with by the Treasury, such as income tax, land tax, and sales tax, have effect only if approved by Parliament. The Customs Department, however, can be used as a taxing machine for a considerable period without parliamentary sanction. Duties imposed in 1929 will not be discussed till 1931.
– The honorable member will not be in order in pursuing that line of argument.
– I submit that it is competent for me to say that if this department can be used in a manner so ruthless and so unfortunate for Australia, the question arises whether we should vote the sum of £900,000 for it.
– If the honorable member can show that any of the officers of the department are incapable, and that that is the cause of the state of affairs to which he is referring, he will be in order. Two days ago every member had ample opportunity to discuss the aspect of the matter with which the honorable member is now seeking to deal.
– I shall endeavour to show that this department is to some extent incompetent. I have the highest respect for the members of the Tariff Board, but this body, for which we are asked to provide nearly £14,000, can be deceived in the inquiries that it makes. In many cases it hears only one side of the case. There are firms in Australia who used to be called importers, but are to-day termed distributors, because, instead of their business being mainly confined to the distribution of imported items, it is now concerned very largely with the distribution of manufactured articles, as well as of imported articles. If a manufacturer approaches the Tariff Board, and asks for a very high tariff in connexion with the manufacture of certain goods, the distributors of those goods feel that their tongues are tied, and so the Tariff Board is incapable of obtaining from them evidence which they could give if they so desired. Naturally, if they gave adverse evidence, and later the manufacturers secured the desired tariff, the distributors would be unable to obtain the goods for distribution, and would practically be driven out of business. It is open to question whether this committee should provide further moneys for the maintenance of a body that can be so misused.
I register my protest at our being asked to provide nearly £1,000,000 for the maintenance of a department that may be used as a taxing machine without the authority of Parliament.
– I take exception to item 84. At a time like this we can easily scrap this board. I admit that some of its members are doing their work splendidly; but the Government regards its advice only when it so pleases, and usually ignores it.
Progress reported.
page 5163
Bill returned from the Senate with an amendment.
page 5163
Motion (by Mr. Scullin) agreed to -
That the House, at its rising, adjourn until
Monday next at 3 p.m.
House adjourned at 4.5 p.m.
Cite as: Australia, House of Representatives, Debates, 1 August 1930, viewed 22 October 2017, <http://historichansard.net/hofreps/1930/19300801_reps_12_126/>.