12th Parliament · 1st Session
The President (Senator the Hon. W. Kingsmill) took the chair at 3 p.m., and read prayers.
Senator BARNES (Victoria- Vice-
President of the Executive Council) debate on the Wheat Bounty Bill was adjourned in order to enable the Government to negotiate further with the banks. On Monday and yesterday the Minister for Markets (Mr. Parker Moloney) conferred, with the Chairman of the Commonwealth Bank Board. The views of honorablesenators in regard to the measure wereplaced before Sir Robert Gibson, whosubsequently consulted, representatives of the associated banks on the wheat position generally. An agreement has now been reached between the banks and the Government for finance to be provided for the assistance of wheat-growers on an’ amended basis. This will necessitate the introduction of legislation in the House of Representativesto-morrow, when a statement of the Government’s intentions will be made simultaneously in that chamber and in the Senate.
– As the matter is still under consideration by Cabinet, I ask honorable senators to possess themselves in patience until to-morrow.
SenatorDuncan.-Does the Government intend to withdraw the Wheat Bounty Bill now before the Senate and substitute another measure?
– Probably a new bill will be introduced in the House of Representatives.
– In view of the announcement by the VicePresident of the Executive Council, will the Assistant Minister (Senator Dooley) retract the lecture and warning he gave to the Senate on Friday last about the possibility of the Wheat Bounty Bill being lost if the banks were again approached by the Government?
– -My statement on Friday last was based on information I had received.
– Having regard to the great interest taken by the electors of Australia in the British general election, held on Tuesday, can the VicePresident of the Executive Council furnish to. the Senate progress returns?
– I have received only scrappy information, which would not interest the Senate.
– Is it the intention of the Government to forward a letter of congratulation to the Prime Minister of Great Britain on the wonderful victory achieved by the National Government?
– The Commonwealth Government does not at any time interfere in the domestic politics of other countries.
– The Government sent a letter of congratulation to Mr. Ramsay Macdonald on a previous occasion.
Can the Minister inform the Senate when it is expectedthe High Court will deliver its reserved judgment on the ease of the Water- side Workers Regulations?
– The Government has no information on the subject.
asked the Minister representing the Prime Minister, upon notice -
-I have not seen any report, and I have no knowledge of the alleged incident to which the honorable senator refers.
Accidentwith Lewis Gun.
asked the Minister representing the Minister for Defence, upon notice-
-The answers to the honorable senator’s questions are as follow : -
The following papers were presented : -
Public Service Act - Regulations amended - Statutory Rules 1931, No. 131.
Australian Soldiers’ Repatriation Act - Regulations amended-Statutory Rules 1931, No. 94.
Financial Emergency Act - Regulations - Statutory Rules 1931, No. 93,
Notice of motion (by Senator Foll) called on -
That Regulation No. 4a under the Fish Protection Ordinance 1929-1931, Territory for the Seat of Government, be disallowed.
.- The Minister for Home Affairs has,’ by circular, furnished honorable senators with a full explanation of the reason for this regulation. Because the Senate has more important business to consider, and I am overjoyed with the result of the British elections, and, therefore, do not desire to raise any controversial matters to-day, I withdraw my notice of motion.
Debate resumed from the 27th October (vide page 1208), on motion by Senator Barnes -
That, whereas on the twenty-ninth day of July, One thousand nine hundred and thirtyone, thu Senate resolved that the Government of the Commonwealth be authorized to request and consent to the submission by the Government of the United Kingdom to the Parliament at Westminster of a bill for a statute containing the provisions set out in the schedule to the resolution, and the enactment of the said statute:
And whereas it is desirable to supplement the said resolution in thu manner hereinafter appearing:
Now therefore the Senate resolves that the Government of the Commonwealth be authorized to request and consent to tlie inclusion in the said statute of a clause us follows: - “Nothing in this act shall be deemed to require the concurrence of the Parlia mont and Government of the Commonwealth of Australia in any law made by Parliament with respect to any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia, in any case where it would have been iu accordance with the constitutional practice existing before the commencement of this act that Parliament should make such law without- such concurrence.”
– Yesterday the Senate was informed that four State parliaments had dissented from the proposed Statute of Westminster; but that the Government of Queensland had since expressed itself satisfied with the resolution of this Parliament. Through the courtesy of Senator Daly, I have been permitted to peruse the correspondence between the Commonwealth and State governments, and I. find that, in the first instance, four States regarded the proposed statute with such hostility that they were constrained to send their objections direct to the British Government. Western Australia, Tasmania, and South Australia - the three least populous States - persist in their objections, and have informed the Commonwealth Government that the supplementary motion now before the Senate does not meet their views. A motion of protest by the Premier of Western Australia, in the Legislative Assembly on the 28th July, was carried unanimously. In that chamber three parties are stronglY represented, the Labour Opposition being in only a small minority, and it is significant that the motion submitted by the Premier wa3 carried unanimously in that chamber, and in the Legislative Council. The motion was -
That this Parliament of the State of Western Australia, a State of the Commonwealth of Australia, hereby enters its emphatic protest against the passing by the Parliament of the United Kingdom of:a statute at the request of the Parliament of the Commonwealth of Australia to give effect to certain resolutions passed by the Imperial Conference held at London in the year. 1930, and in particular to the provision that no act of the Parliament of the United Kingdom passed after the commencement of the said statute shall extend or be deemed to extend to the dominion of Australia as part of the law of that dominion unless it is expressly declared in that statute that the dominion of Australia has requested and consented to the enactment thereof, on the ground that any such provision would inflict great injury on the- State of Western’ Australia and tend seriously to weaken the link between the people of Western Australia and the people of the Home Country, which it is the desire of both to strengthen and preserve.
On the 11th August, the British Government cabled to the Prime Minister (Mr. Scullin), intimating that it had received the resolution passed by the Parliament of Western Australia. Protests of a similar character had previously been forwarded from Queensland, South Australia and Tasmania. It will thus be seen that the four States which are weaker iu population than New South Wales and Victoria, objected to the enactment of the Statute. The Prime Minister, on the 18th August, telegraphed to the four State Governments advising the receipt of “their protests to the British Government. On the 19th August the Premier of Western Australia advised him of the terms of the parliamentary resolution as stated. Ou the . 29th August, the Government of Tasmania informed the Prime Minister that, on the 17th March, it had cabled to the Dominions Office, stating that any legislation contemplated to give effect to the resolutions of the Imperial Conference should contain provisions reserving to the Australian States the constitutional rights which they enjoyed at the inauguration of the federation, and, in particular, that it should contain no provision which might be construed as authority to the Commonwealth
Parliament to abolish State constitutions. Both South Australia and Western Australia took action on similar lines in the belief, I have no doubt, that their sovereign powers were being strongly assailed by this statute.
– Does not the honorable senator consider that this supplementary resolution will remove the objections made by those States?
– I think it modifies the objections, but in. no way meets them. The Government of Queensland also advised the Prime Minister that it supported the representations made by Tasmania, and the Government of South Australia, in a communication to the Secretary of State for Dominion Affairs, intimated that it identified itself with the requests and objections of the Government of Tasmania. This was the position when, on the 8th September, SirRobert Garran, the Commonwealth Solicitor-General, at the Premiers Conference in Melbourne, circulated a memorandum which, to a large extent, embodies the views expressed by the Federal Government, and which, for the purpose of record, I ask permission to have incorporated in Hansard. [Permission, given.] The memorandum is in the following terms : -
It is understood that some of the States have expressed a wish to be consulted before the Statute becomes law. The Statutehas been framed to give effect to the Balfour Memorandum of 1920, and the report of the conference on the operation of dominion law; and to bring the law into harmony with the established principles of dominion status. So far as Australia is concerned, it deals for the most part with Commonwealth legislation. There are only two clauses which in any way affect the States. Referring to the clauses by the numbers which they bear in the resolution of the Federal Houses of Parliament, they are as follow : -
Clause 1 declares that the Parliament ofa dominion has full power to make laws having extraterritorial operation. It does not affect the laws of a State.
Clause 2 makes the Colonial Laws Validity Actcease to apply to future acts of a deminion parliament. Such acts will not he void for repugnance to a British act of Parliament. This clause does not affect acts of the State Parliaments at all.
Clause 3 declares that no future British act shall extend to a dominion, unless it contains a declaration that the dominion has requested and consented to its enactment. In the case of Australia, the re quest and consent must be by the Parliament and Government of the Commonwealth.
Provisions have been inserted in clause 4 to make it clear that nothing in the Statute shall authorize the Commonwealth Parliament -
1 ) To amend or repeal , the Commonwealth Constitution, otherwise than in accordance with the power of constitutional amendment now existing;
To legislate within the field reserved by the Constitution exclusively to the States;
To request the British Parliament to legislate within that field reserved to the States.
It has, however, been suggested by the Western Australian Parliament that the Statute, as drafted, may affect the right of the States to ask for legislation by Parliament at Westminster on a purely State matter, without seeking the concurrence of the Commonwealth Parliament. The Commonwealth Government cannot conceive that sucha question is likely to arise in practice; but is prepared to consider the making of provision for it in the Statute. Clause 5 is merely a definition clause, desired by the British Government, which wishes in future to restrict the word “ colony “, in British acts, to Crown colonies, and not to use it, for instance, in reference to the Commonwealth or a State. Clause 6 deals with the application to dominions of certain existing British laws. The first paragraph provides that sections 735 and 736 of the Merchant Shipping Act, dealing with the powers of colonial legislatures, shall be construed as not referring to the Parliament of a dominion. This does not affect the Parliament of a State. The second paragraph relates to Colonial Courts of Admiralty, and- merely provides that a provision of the Colonial Courtsof Admiralty Act, which requires certain laws to be reserved for the King’s assent,and certain rules of court to be approved by the King in Council, shall cease to have effect in any dominion. - This clause, as it stands, would apparently apply to a State act and a rule of a State Court of Admiralty. It does not, however, affect the relations between Commonwealth and Status, but merely frees the States, as well as the Commonwealth, from a disability. If, however, the State Governments do not all concur in the clause, the Commonwealth Government will consider its limitation so as to exclude State laws and rules of court from its operation.
The States, having been asked for their views, the Governmentof Queensland, on the 26th September, replied as follows: -
Adverting to previous correspondence on the subject of the proposed Statute of Westminster, and to the statement in regard thereto which you circulated at the recent Conference of Premiers, I desire to append hereto the text of a report which I have received from the Crown Law Authorities of this State on the matter: -
Such statement closely agrees with my own views of the position, but I would suggest the following’: -
Clause 1. Extraterritorial jurisdiction is desirable in both Commonwealth and States.
Clauses 2 and 3. If this is to be conceded, component States should in respect of matters within their own sphere of legislation be placed on the same footing as dominions. The reasons for objecting to these clauses appear to be (a) the confusion which will ensue on different legislation being passed by different dominions on matters of common interest; (b) the deprivation of the States of power to appeal to the British Parliament in cases of emergency; (c) the deprivation of all classes of the undoubted benefit of appeal to the Privy Council - a perfectly indifferent body-a great privilege to “a small country.
Clause 4. If allowed, the clause should be more carefully drafted, as indicated in first part of letter.
Clause 5. As indicated, this definition might be extended to make “ dominion “ include a “ component State “ for the purposes of this act.
Clause6. Is subject to - the objections set out in regard to clauses 2 and 3. - The statement that the Commonwealth Government is willing to consider excluding the States is worth nothing in practice, the matters being at present Commonwealth matters, in respect of which the desires of the Commonwealth have already been limited owing to conflict with Imperial acts. Hence the desire to throw off the chains.
It appears to me that the whole effect of the act will be to aggrandize the Commonwealth at the expense of the States, and greatly disturb the balance, so strenuously fought to be protected at the time of entering the federation.
The concluding sentence sets out very clearly the objections and fears of the four States mentioned. There is a wellgrounded belief in those States that, because of the definite trend to be noticed almost daily in the attitude of Commonwealth Ministers and officials towards the aggrandizement of the Commonwealth at the expense of the States, they would be in a more secure position without this statute.
– The movement in the federal sphere is still a long way behind public opinion.
– The Premier of the State to which the honorable senator belongs holds very strong views in opposition to this ten dency on the part of Commonwealth Ministers, departments and officials. In a telegram to the Prime Minister on the. 26th September, Mr. Hill stated-
The Statute of Westminster. - This Govern- ment is satisfied with the proposals as amended by the Federal Parliament with the exception of clause 3. The Government objects to thisclause and suggests that it either be entirely eliminated or amended so as to make it clear that the request and consent of the Commonwealth will not be essential to an Imperial act enabling a State to secede from the Commonwealth or otherwise altering the relationship of a State with the Commonwealth or with other States.
Speaking on behalf of the people of South Australia, the Premier of that State announced his objections to the insertion in the statute of provisions not contemplated when the Commonwealth Constitution was approved by the people, the effect of which will be to alter the relations of ‘the Commonwealth and State Governments, and make it more difficult for a State which might be dissatisfied with the working of the Constitution, to secede from the Commonwealth.
– A dissatisfied State cannot take that action now.
– It was possible for Southern Ireland, notwithstanding its proximity to the seat of government in Great Britain, to take action in that direction. But whether or not the States may do this is, for the moment, beside the question. It is our responsibility to see that the sovereign rights enjoyedby the States at the foundation of the Commonwealth, are not interfered with. The smaller States, numerically, would never have entered the federation if the people had thought that, later, there would be this growing tendency towards unification, and the definite attempt, on the part of successive governments, to increase Commonwealth legislative authority in every direction. The objections made by Tasmania and South Australia contain the gravamen of the objections made by the Government of “Western Australia. The unsympathetic reply of the Prime Minister to the Premier of South Australia, suggests the belief that, in introducing this statute, the ambition of the Commonwealth Government was to take further power from the States. On the 10th October, the Prime Minister sent the following letter to Mr. Hill, the Premier of South Australia: -
Referring to your telegram of 25th September, I note that you are satisfied with the resolutions of the Federal Parliament, except clause 3. As to clause 3, you surely do not suggest that a clause should bo inserted to enable the Parliament of the United Kingdom to dissolve or dismember the Commonwealth, or to alter its Constitution, without the consent of the Commonwealth? This would not be in accord with the constitutional position today, and would not be considered by the Parliament of the United Kingdom,
Of course, Mr. Hill (lid not ask for anything of the kind. All that he requested was that the Statute of Westminster should not take away from the States existing rights. In effect,. he said to the Prime Minister “ We do not wish you to restrict us in the exercise of our present undoubted rights.” And the Prime Minister, ‘in his reply, suggested that the Premier of South Australia was asking for complete freedom for his State to take certain action. I think that the States possess that right to-day. The Prime Minister went on to say -
I am willing, however, to propose to Parliament a supplementary resolution for the insertion of a clause to put beyond doubt the preservation of the existing position as to matters within the authority of the States and not within the authority of the Commonwealth. A draft of the proposed clause is attached.
That draft is the supplementary resolution now before the Senate, to which the Governments of Western Australia, South Australia, and Tasmania have reiterated their objection.
– They do not say in what way it does not meet their objections.
– I will read what they say.
– The Premier of South Australia had not seen this supplementary resolution when he made his protest to the Prime Minister, and my point is that the objecting States have not given reasons for objecting to this amendment to the statute.
– At all events it is clear that, in their view, it does not remove their objections to the statute. They have said this definitely. In my opinion, it takes away constitutional rights which they have enjoyed up to the present. If passed in its present form it would establish a Commonwealth suzerainty over the States. This amendment does not go far enough to protect the States. I therefore hope that honorable senators will approve of an amendment which I intend to submit, the effect of which will be to preserve the existing rights of the States, including the liberty to secede from the federation.
SenatorO’Halloran. - Does the honorable senator believe in that?
– I do. The States should have the right of selfdetermination. All that the objecting States ask is that the rights which they enjoyed when they entered the federation shall not be interfered with by this legislation. Surely that is a very simple request.
– The clause contained in the motion before the Senate seems to meet that position.
– Three or four States have said that this amendment is unacceptable to them.
– This amendment was framed only within the last week
– In the opinion of the Dominion League of Western Australia, which is a very important body, and in the opinion of the Government’s of the three objecting States, this amendment does not meet the objections which have been raised.
– The Government of South Australia has expressed no opinion on this amendment.
– If the honorable senator will not be so impatient, I shall tell him what the South Australian Government thinks of this proposal. The letter from the Prime Minister to Mr. Hill continues -
Generally, the statute is primarily concerned with dominion status, and great care has been taken that it cannot affect the position between the Commonwealth and the States. I have discussed this matter with Mr. Latham, who was at the Imperial Conference of 1926, when the Balfour memorandum was approved, and his view is that the proposed clause is in harmony with the principles of the statute, and preserves the existing relation of the States, both to the British Parliament and to the Commonwealth Parliament.
I am sorry that Mr. Latham has not served a term as a member of a State legislature. When the subject of State rights crops up, those members of this Parliament who have not had experience in State Parliaments, and who are anxious to preserve the public weal, think that the place to do it is in this Parliament. This has led to the Federal Government poking ‘ its nose into all sorts of things which were not regarded as federal matters when the Constitution was framed. [ have found that members of this Parliament who have had previous experience as members of State legislatures are much more solicitous of State rights than are other members. The letter continues -
I shall hu glad to hour from you, at your earliest convenience, that you are satisfied. I should appreciate expedition, because the Government of the United Kingdom is pressing me to finalize the position. I would point out that the proposed Statute of Westminster has the unanimous support of the Governments and Parliaments of all the dominions, and also received the support of all parties in the Commonwealth Parliament. Objections by a State which wore based on a possible prejudice to the position of the States would, of course, receive careful consideration; but in the absence of any such possibility I invite you to reconsider the matter and withdraw your opposition.
It would be interesting to know the real opinion of the British Government as conveyed to the Commonwealth Government after the protest of four sovereign States of the Commonwealth had been forwarded to the Dominions Office. I appreciate the courtesy of the Government in permitting us to see the correspondence which passed between, the Commonwealth Government and the State Governments in regard to this matter, but I should also like to see the communications which passed between the British Government and the Commonwealth Government. Our Australian Constitution is an Imperial Act, and the power which created that legislation can amend it if it thinks fit. As a matter of fact, the Western Australian Government is about to introduce legislation to enable a State-wide “referendum to be taken on whether or not Western Australia shall secede from the Commonwealth. This information was published in this morning’s newspapers. The people of Western Australia are not asking for any privileges; they are asking only to be allowed to exercise the rights which the Constitution allowed to them when they agreed to federate. They are asking that the position shall not be altered on the very eve of the referendum by this proposed legislation.
– Can the honorable senator show us that the amendment does not provide the necessary safeguards?
– The amendment has been widely published in the press, and has been submitted to the four protesting Governments, three of whom still maintain their objections.
– But they do not say why. Can the honorable senator supply the reason?
– I have already explained why they object. It is clear to me, from my reading of this proposed legislation, as well as from the reply of the Prime Minister to the Premier of South Australia, that this legislation, if passed, will seriously diminish the rights of the States, and place State Parliaments under the dominance of the Federal Parliament in their relations with Great Britain.
– I do npt desire that to be done, and yet it appears to me a3 a layman that the amendment adequately safeguards State rights.
– This amendment does not go far enough. I have framed an amendment to meet the objections of Western Australia, South Australia and Tasmania.
– Those States should give us some reason for their objections.
– Their objections “are, I think, very clearly set out in the correspondence.
– In their final reply they do not give any reasons at all.
– On the 7th October, the Tasmanian Government announced its intention to submit a resolution to the Parliament of that State setting forth that the enactment of the Statute of Westminster would not be in the interests of the people of Tasmania. That resolution has not been dealt with. On the 13th October, the clause which it was proposed to insert in the amending legislation, was submitted to the Tasmanian and Western Australian Governments. On the loth October, a telegram was sent conveying to them the terms of the legislation we are now considering. That telegram was read in the Senate yesterday by Senator Pearce. On the 16th October, the Government of Queensland telegraphed stating that, in view of the assurances given, it withdrew its objection. On the 19th October, the Premier of Western Australia telegraphed stating that, as the protest of that State represented the unanimous decision of Parliament, it was not competent for him to withdraw the objection. On the 19th October, the Premier of Tasmania telegraphed stating that the Government of Tasmania considered that the present was an opportune time to place on record its protest against certain portions of the statute. The message went on to say that the Government could not understand how this matter could be one of great urgency, and that, as the resolution was before the Tasmanian Parliament, the Government must accept the decision of that body. On the 20th October, after this proposed legislation had been submitted for the consideration of the Premier of South Australia, he advised that the South Australian Government was unable to withdraw its objection to clause 3.
– No reasons are given in any of the telegrams to which the honorable senator has referred. None of them say why the amendment which is now proposed would not prove satisfactory.
– Surely they have already set forth their objections plainly enough, and it should not be necessary for them to go over the whole ground again.
– When they entered their objections they had not seen this amendment.
– The amendment was submitted to them with an invitation that they should accept it; yet, after having seen it, threeof the Stales repeated their objections. The reason, of course, was that the amendment did not meet the objections they had previously expressed. That is also the opinion of the Dominion League of Western Australia.
– They do not understand it.
– There are men in that organization who have as much legal knowledge and common sense, and are in every way as capable of understanding this legislation, as any honorable senator opposite.
– What kind of dominion does that league stand for?
– It stands for the setting up of an independent dominion under the British Grown.
SenatorO’Halloran. - It wants home rule.
– Home rule for Western Australia, certainly; and it also seeks an escape for Western Australia from federal taxation and dominance and a tariff which is killing our primary industries. The Commonwealth Government has not met the objections of Western Australia, Tasmania, and South Australia. On the contrary, having sought the opinions of those States on the merits of the amendment before us, it now proceeds to brush those opinions aside. It has the support of the big battalions who represent the three more populous States in the House of Representatives, and, with their assistance, it will force this legislation through in defiance of the wishes of the ‘ other States. That, of course, is in accordance with the practice of federal governments in their dealings with the ‘smaller States of the Commonwealth. I propose to move an amendment which will meet some of the objections raised by the State Governments to this legislation. I doubt whether it goes as far as it might, particularly in safeguarding the position in regard to merchant shipping and the Navigation Act.
– Why does the honorable senator not frame it so as to achieve that end.?
– If the honorable senator will assist me to frame such an amendment, I shall be glad of his assistance. The amendment is different from that which was printed and circulated a few days ago.
– Will the honorable senator tell us the reason for the change?
– When I drafted the previous amendment, I felt that it would adequatelymeet the objections of Western Australia. After reading the correspondence of the other States on this matter, I redrafted the amendment, so as to meet the objections of South Australia and Tasmania, as well as those of Western Australia.I move -
That the following proviso be added: - “Provided that nothing in this act shall be construed to take away” from the States of the Commonwealth of Australia . any of the constitutional rights that they retained at the foundation of the Commonwealth, and nothing in this act shall prevent the Parliament of the United Kingdom from enacting, upon the request of the Parliament and of the Government of any of the States of Australia, an act to enable the separation of any of the States from the Commonwealth of Australia or the establishment of new States within the said Commonwealth.”
Honorable senators can see how plain and simple the amendment is. It merely stipulates that nothing in the Statute of Westminster shall take away from the States of the Commonwealth the constitutional rights they have enjoyed without interruption since federation. It further provides that the statute shall not be used for the purpose of denying the States any authority which they may now have to secure separation from the Commonwealth, or to establish new States within their boundaries.
– Does the honorable senator claim that the States now have it constitutional right to separate from the Commonwealth or to form new States?
– Yes. There is certainly a constitutional right to form new States, and we claim that whatever the position was six months ago in regard to out right to secede it should remain unaltered.
– The first portion of the honorable senator’s amendment is ample to cover everything.
– No. it is not ample, because in- his reply to Mr. Hill, the Premier of South Australia, Mr. Scullin made it clear that this resolution was aimed at something which would prevent any State of the Commonwealth from seceding. In fact, he went out of his way to attack the very thought of such a possibility, even if it might be the unanimous desire of the people of a State as expressed at a poll.
In support of my amendment, I point out that Western Australia is . a sovereign State, and that when the federation was formed, limited powers were . given to the Federal Government, the States retaining all powers which were not specifically set out in the Constitution as having been delegated to the central authority.
– Is there any right under the Constitution for a State to secede ?
– I think there is. At any rate, self-determination is a main feature of the law in all parts of the British Empire, and. if the right of a State to secede is not given in the Constitution,- no harm is done by the acceptance of my amendment. All that I am asking is that the Statute of Westminster shall not set up a fresh barrier between the people of. any State and the freedom they desire.
Practically every amendment of the Constitution, and action of the Federal Government, and most of the laws that have been passed by the Commonwealth Parliament, have left the weaker States worse off than they were before in their relations with the Federal Government, so that when the Westminster Statute was submitted in the House of Representatives a few months ago, there was a widespread feeling of alarm in West- . ern Australia, Tasmania and South Australia at its terms, and the Governments of all ‘three of those States, and also the Government of Queensland, at the time, objected to the enactment of the statute.
– Not one protest was forwarded by any representative body in South Australia.
– The honorable senator has heard me read Mr. Hill’s objection on behalf of the South Australian Government. Western Australian senators received many protests on the subject. The people in the smaller States are merely seeking to retain their rights under the Constitution as these existed six months ago. The revolutionary proposals of the Commonwealth Government for unification show how necessary it is to have the safeguard contained in the proviso I am moving to insert in the statute for the protection of the smaller States. The Parliament of Western Australia, by a resolution passed unanimously in both Houses, has expressed its opposition to the statute, and its desire to strengthen and preserve the ties between the people of the State and the homeland; unless the amendment I have moved is accepted, those ties will undoubtedly be considerably weakened. The amendment, at any rate, will enable us to attain the very desirable object aimed at by the resolution passed by the Western Australian Parliament.
– If the honorable senator would divide his amendment into two parts, it would be very much better.
– I propose to retain the amendment in the form in which I have submitted it, because I think that it accords with the views of the States of Western Australia, Tasmania and South Australia, all three of which, in reply to the Commonwealth Government’s telegram, have expressed their opposition to the proposal now put forward by the Commonwealth Government, on the ground that it does not sufficiently safeguard their rights.
– The honorable senator has no right to speak on behalf of the South Australian Government.
– I have the right to read, as I have clone, the views of the South Australian Government. Mr. Hill, in his telegram, objected particularly to clause 3 of the original resolution, and, as the head of the. South Australian Government, still maintains that objection, which I am supporting.
– The subject we are discussing is an intricate one, and difficult to understand clearly. The Government is submitting a proposal which, we are assured,’ will remove the objections of certain States to the passage of the original motion relating to the Statute of Westminster, and Senator Johnston has moved an amendment to it. I am heartily in accord with the first portion of the amendment, and if the honorable senator had been content to move that portion only, it would, in my opinion, have met the views of the people of Tasmania, whom I represent in this Senate. I have been in communication with a body of gentlemen in that
State who have made a close study of the whole subject, and they are to-day as antagonistic to the Statute of Westminster as they were a few months ago when we first dealt with the subject. I believe that the first portion of Senator Johnston’s amendment would, to a very great extent, satisfy Tasmania, because it would ensure that all the constitutional’ rights that the State possesses are preserved. That, I understand., is the object of the amendment.
– Does not the proposal which the Government has submitted ensure the same thing?
– I have read and reread the Government’s proposal, and I do not think that it is clear enough. I think that it could have been put in a much simpler form. If it had been stated as clearly as the first portion of Senator Johnston’s amendment, we could understand its effect better. I forwarded the Government’s proposal to Tasmania last week asking for any comments upon it, and the reply I received in a lengthy telegram was simply to the effect that the people who are interested in the subject are entirely opposed to approval being given to the Statute of Westminster. That approval, unfortunately, was given over two months ago, and we arc now considering an addendum to the resolution to which both Houses agreed at that time.
Tasmania has greater cause than any other State for dreading the taking away of powers which the States have always possessed. Because of its peculiarly isolated position, it has for years been subjected to disabilities which are not suffered by any other part of the Commonwealth, and we feel that at any moment it may be necessary to appeal to the Home authorities for protection against some of the legislation on the Commonwealth Statute-book, to wit, the Navigation Act, which has been so oppressive in many directions to Tasmania. One can understand the disinclination of the Tasmanian Government and of commercial men in that State, who have formed associations to safeguard the interests of the State, to approve of a resolution which takes away from them some of the rights they now possess. At any rate, that was my reason for oppos- ing the resolution when it came before the Senate in July last. It also explains why I am heartily in accord with the first portion of the amendment moved by Senator Johnston. I have had no indication or suggestion from Tasmania, from the Government or the Chamber of Commerce, or any of the bodies which are watching this matter, concerning the second portion of the honorable senator’s amendment in regard to secession.
– Still the honorable senator does not wish to place Western Australia in a disadvantageous position in that respect?
– The honorable senator referred to the constitutional powers which individual States possessed in that direction. If he is satisfied that the States have those powers, the first portion of his amendment would include t hem. On the other hand, if those constitutional powers do not exist, he is seeking additional powers for the States.
– No; my amendment merely declares that if the States have these powers they are not to be taken away from the States.
– The honorable senator’s amendment will place some honorable senators in an awkward position.
– If the amendment means anything, which I. doubt, the honorable senator was giving it its true meaning.
– I am opposed to the Statute of Westminster, because it is likely to prejudice Tasmania. I want to make the State’s disadvantage as small as possible. If I felt that the proposal submitted by the Government met the situation, I should heartily support it; but I cannot help feeling that it does not. The addition of the first portion of Senator Johnston’s amendment would meet the situation.
– How could the second portion of the amendment prejudice the position of the objecting States?
– I do not think that it would, but by supporting the second part of the amendment, one is practically supporting a proposal for secession. My idea is that the rights that the States have hitherto possessed shall be fully pro tected, so that should they ever have real cause for an appeal to the Home authorities, they could make it under the Colonial Laws Validity Act.
– If the States retained all the rights that they had prior to federation, the Commonwealth would have none.
– That is not what is intended. Under the Colonial Laws Validity Act, if the States feel unjustly treated, they have the right to appeal to the Home authorities for protection, and they wish to. retain that right.
Sen a tor Crawford. - Their treatment under the Navigation Act, for instance?
– Prominent authorities differ with regard to’ the legality of certain portions of that act. I have before me the report. of a sub-committee appointed by the Hobart Chamber of Commerce regarding- the effect of the Statute of Westminster, and the report has been described as remarkable for the clarity with which it has dealt with the subject. It warns Tasmanian exporters interested in the oversea trade of the consequences which, in the opinion of Professor Berriedale Keith, Doctor of Civil Law, seem sure to follow if the Commonwealth, unfettered by the Merchant Shipping Act, is allowed to pursue its objective, whatever that may be. Therefore, it is difficult to decide the best course to follow with regard to the motion before the Senate. But I am desirous of doing all I can to protect the rights of the States, and if that object can be achieved by voting for the amendment, the amendment will have my support.
– When this matter was before the Senate some time ago, I strongly opposed the motion then submitted with regard to the Statute of Westminster.
– I rise to a point of order. I wish to know if the amendment moved by Senator Johnston is in order? I draw attention to the wording of the motion before us. It takes into consideration the fact that we have already requested the Imperial Parliament to pass a particular statute along certain lines, and by the present motion we make a further request in these terms -
Nothing in this act shall be deemed to require the concurrence of the Parliament and Government of the Commonwealth of Australia in anylaw made by Parliament with respect to any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia, in . any case where it would have been in accordance with the constitutional practice existing before the commencement of this act that Parliament should make such law without such concurrence.
The pith and substance of the amendment is the alteration of a resolution which the Senate has already passed. While the proposal of Senator Johnston might be quite in order if it f orned the subject of a substantive motion, it cannot beacceptedas an amendment of the motion before us. If Senator Johnston so desires, itis competent for him to move that a request be presented to the Imperial Parliament for a further alteration of the Statute of Westminster. I submit that his present amendment cannot be accepted.
– I would not be justified, in a case in which the language of the Statute of Westminster, the motion asking for its amendment, and the amendment on that motion, is so particularly involved, in deciding on the point of order, without seeking legal advice. Therefore, it would be well for Senator Herbert Hays, who was speaking when this point of order was taken, to ask leave to continue his remarks on the adjournment of the debate, and for the debate to be adjourned, in order that I may have an opportunity to seek legal advice, without which I would not consider myself justified in deciding this knotty and involved question.
– May I say a word in regard to the point of order?
– I have not yet given a ruling.
– I merely desire to know whether the advice that you will seek, Mr. President, will be that of the Crown Law authorities, who have advised the Government throughout these proceedings, and who are, in fact, conducting them, or whether it will be independent legal advice?
– The Crown Law officers are the only authorities to whom I have access. This point of order relates only to the relevance of the amendment, and not to the merits of the case, the question being, therefore, purely technical. In those circumstances, the honorable . gentleman can . accept’ the authority to which I wish to -appeal.
– It looks like an appeal from Caesar to Caesar.
– I ask leave to continue my remarks later.
Leave granted; debate adjourned.
In committee (Considerationresumed from the 27th October, vide page 1245).
Clauses 1 and 2 agreed to.
Clause 3 -
Section nineteen of the Principal Act it amended by omitting sub-sections (1.), (2.) and (3.) and inserting in their stead the following sub-sections: - “ (1.) The Governor-General may, from time to time, by notice published in the Gazette, fix the maximum amount, rate, percentage or extent of taxation to which the remuneration of any senator or member of the House of Representatives (including any senator or member who holds a parliamentary office), of any Minister of State and of any officer or employee, may be subject under any one or more of the laws of any State imposing taxes upon incomes whether for a specified purpose or not. “’ (2.) Upon the publication in the Gazette of a notice under the last preceding subsection, the remuneration specified in sub-section (1.) of this section shall, notwithstanding anything contained in any other Act, not be subject, under any law of the nature specified in the notice, to any higher amount, rate, percentage or extent of taxation, than that fixed in the notice. “ (3.) Nothing in this section shall be construed as empowering the GovernorGeneral to fix different amounts, rates, percentages or extents of taxation in respect of different States or parts of the Commonwealth. “ (3a.) For the purposes of this section, remuneration’ means the allowances of any senator or member of the House of Representatives and includes the salary of any senator or member who holds a parliamentary office, of any Minister of State and of any officer or employee”.
Section proposed to be amended -
-(1.) The allowances, or salary ‘and allowances, of any senator or member of the House of Representatives(including any senator or member who holds a parliamentary office) and of any Minister of Stateand the salary of any officer or employee, after reduction in accordance with this part, shall not be subject under the law of any State to taxation at a higher rate or percentage or to a greater extent than the prescribed rates or percentages of that salary in addition toany tax imposed on that salary under any law in force in that State on the thirtieth day of June One thousand nine hundred and thirty. (2.) For the purposes of this section “pre scribed rates or percentages “ means such rates or percentages as are fixed from time to time by the Governor-General and notified in the Gazette. (3.) Nothing in this section shall be construed as empowering the Governor-General to fix different rates or percentages in respect of different States or parts of the Commonwealth.
– As I have already indicated, I object to the whole of this clause, but since there is a possibility of it being passed in its imperfect and, to my mind, injurious form, I intend to propose an amendment. I wish to regulate the action of the Government by requiring the making of a regulation fixing the rate or extent of the taxation that may be imposed, instead of the mere publication of a notice in the Commonwealth Gazette.
– Why not strike out the clause?
– I may attempt to do that subsequently.
– I draw attention to the fact that I have circulated the following amendment : -
That the words “ under any one or more of the laws of any State imposing taxes upon incomes whether for a specified purpose or not,” proposed new sub-section (3.), be left out, with a view to insert in lieu thereof the following: - “(a) under any one or more of the laws of any State imposing taxes upon incomes for the purposes of the general revenue of the State, and
under any one or more of the laws of any State imposing taxes upon incomes, where the law of the State expressly provides that the revenue received from the tax is to be applied to meet expenditure incurred by the State for a special purpose, or the GovernorGeneral, by notice in the Gazette, declares that he is satisfied that the tax was imposed to meet expenditure, incurred by the State for a special purpose “.
This amendment alters the form of the proposed new sub-section. 1, in order more clearly to express the intention of that sub-section. It is considered that, in its present form it might be held to limit the power of the Governor-General to fix more than one maximum rate, percentage, or- extent to which Commonwealth remuneration might be subject under all the laws of a State imposing a tax upon incomes; that is to say, that the GovernorGeneral might not have the power to fix a maximum rate, percentage, or extent of ordinary income, tax, and another maximum rate, percentage, or extent of tax for unemployment relief within a State. It is intended that . the power of the Governor-General in this respect should en able him to fix a maximum rate, percentage, or extent to which remuneration -received from the Commonwealth should be subject in respect of ordinary income tax, and to fix separately a maximum rate, percentage, or extent to which the remuneration shall be subject to any special tax such as unemployment relief tax. Accordingly, the amendment now proposed has been drafted to confer the desired power’ upon the GovernorGeneral.
It has also been found necessary to consider an alteration in the form of the present sub-section 1 to clause 3 in order to meet the position in Tasmania caused by the manner in which its taxes have been imposed to provide funds for the relief of unemployment. In that State a special income tax of 3d. in the £1 has been imposed on all taxable incomes, except salaries and wages received by employees other than Commonwealth employees. On the salaries and wages of employees other than Commonwealth employees a stamp duty equal to 3d. in the £1 has been imposed, to be paid by a stamp affixed to each receipt given for the payment of salary or wages of £1 or over, which is payable at a rate equal ‘ to, or exceeding, £1’ per week, on whatever basis the sum is calculated, whether hourly, daily, weekly, or otherwise.
There is nothing in either the Income Tax Act or the Stamp Duties Act by which these taxes have been imposed to connect the taxes with unemployment relief; but it is officially understood that the taxes are for that purpose. That, however, would not be sufficient to cause them to be affected by the proposed maximum rates, percentages, or extents to be fixed by the ‘Governor-General, as those to which Commonwealth remuneration in Tasmania would be subject for purposes of unemployment relief. It is, therefore, necessary to make a special provision to that end. That provision is expressed in the later part of the new paragraph b proposed to be inserted in the bill. That proposed amendment should meet the objection raised by Senator Lynch. It is designed to make the legislation clearer, and to simplify its working.
– A most extraordinary method appears to have been adopted in sub-clause 1 to deal with a simple position, although. possibly, the Leader of the Government (Senator Barnes) will be able to give good reasons for it. Already we have statutory legislation which gives the States plenary powers’ of taxation over the public servants of the Commonwealth. It is now proposed to empower the Governor-General - the executive government of the country - to fix a limit to that power by notice published in the Gazette, without any reference at all to the 1907 act. I doubt whether in thi3 measure we are effectively exercising our legislative powers. In any case, it is an extraordinary course to adopt. The provisions of the 1907 act appear to have been overlooked. Unless we exercise care now, we may have to ask the courts to determine whether the law, as laid down in the 1907 act, or the present legislation, is effective. I question whether this legislature can delegate to the Executive Council, either by a proclamation or other means, the power virtually to limit the statutory powers of the States. I agree with the Minister as to the need for this legislation ; but I suggest that the point mentioned should be taken into consideration by him in consultation with the law officers of the Crown. My only desire is that this legislation shall be as perfect as possible. The Parliament of the Commonwealth should have some control over the proclamation, or the regulation, whichever is contemplated. Apparently, these provisions have been drafted without regard to the provisions of the 1907 act.
– Is not the second point met by sub-section 2? It reads -
Upon the publication in the Gazette of a notice under the last preceding sub-section, the remuneration specified in sub-section 1 of this section shall, notwithstanding anything contained in any other act, not be subject, under any law of the nature specified in the notice, to any higher amount, rate, percentage or extent of taxation, than that fixed in the notice.
– That does seem to help; but it seems wrong that this Parliament should empower the executive Government either to increase or decrease the rights which were conferred on the States by the 1907 statute. Whether we can do it at all is a matter of doubt; and whether it should be done in this way is open to question. I think that I know the Minister’s intention in this matter, and I sympathize with him accordingly. He hopes that this power will never need to be exercised, but, should it be required, he wants to be sure that it can be exercised effectively. If the power is to be used at all, it will be used only in a time of difficulty, when heavy inroads on the incomes of Commonwealth public servants are contemplated. At such a time a serious conflict might arise between the Commonwealth and a State. Should such a position arise, I want the Commonwealth to be well armed, so that justice may be done.
– In addition to a novel position being created by reason of this Parliament being a’ble to fix the maximum amount of. State taxation for which a certain class of citizen shall be liable, the question of the powers of the States to levy taxation arises. Under the Constitution the States were given certain powers in respect of Commonwealth public servants.
– Not under the Constitution, but under the act of 1907.
– The act which was passed by this Parliament in 1907 conferred certain powers on the States. In the case The Commissioner of Taxes v. Chaplin, the Commissioner was shown to have acted in pursuance of a power which was conferred on him under a South Australian act, passed long before 1907. How can Senator Daly say that the Commissioner of Taxes proceeded against Chaplin under the authority- of an act passed in 1907?
– I said that that power was not conferred on the States by the Constitution.-
– The High Court found that the. South Australian act under which the Commissioner of Taxation proceeded, was valid. How then can it be held that the power was granted in 1907 ?
– The operation of the 190.7 act on the South Australian statute made the State statute effective as a taxing machine.
– Had the act of 1907 not been passed, would not the State have had the same power?
– No; an earlier decision was that it had not that power.
– I take my stand on the decision of the High Court, which is the latest declaration on the subject. In 12 C.L.R. 379, it is sta’ted that-
The limitation is that the agencies of the Federal Government are only exempted from State legislation, so far as that legislation may interfere with, or impair their efficiency in performing the functions by which they are designed to serve that Government.
The only limitation upon the power of a State to impose taxation upon Commonwealth public servants and members of the Commonwealth Parliament is that it shall not impair their efficiency. Who is to be the judge of that matter, if it be not the States which have the power to levy taxation? If we allow the Federal Parliament to exercise that power we admit that the Federal Parliament is arrogating to itself a right which constitutionally belongs to the States, because the High Court has said so. The amendment of the Minister mystifies the position still further; it leaves the original contention unanswered. The bill makes it clear that it is the intention of the Federal Government that the Commonwealth shall usurp a power which does not constitutionally belong to it. It proposes to step in and say to the States, “We intend to do the job for you, as we think proper “. What kind of a position is this, that allows the taxation that rightly falls within the province of the States to be fixed by a foreign body? I use the term “ foreign “ advisedly. This Government desires to take from the States an autonomous right that belongs to them. If the Federal Government can usurp the powers to which the States are constitutionally entitled in respect of public servants, it can do so in respect of any other power. I want to prevent the Commonwealth Government from reaching out an .unconstitutional hand and taking to itself a right which the framers of the Constitution never intended that it should enjoy. So far as I am concerned, the efforts of members of the Government to camouflage the position are in vain. They talk of the need to give “ protection “ to federal public servants. Very shrewdly, they do not define “ protection “. If they declared their intentions honestly, it would be disclosed that this clause is designed to save Commonwealth public servants, and members of Parliament and Ministers, from a degree of taxation to which ordinary citizens are subjected. Such an action is unwarranted. Do honorable senators seriously contend that the framers of the Constitution would have countenanced the action that is contemplated by the Government? Not for a moment would they have done so.
This Government merely wishes to add another power to the many that it has usurped. It is but natural for an individual or a government to grasp at additional powers. We all have the octopuslike propensity of reaching out continually for more. Shelley stated that power is the most detestable possession ever placed within the reach of man, if improperly used. The acquisitiveness of nations, ever seeking additional power, has been a curse since the world began. If the struggling principalities which constituted Germany had not been welded together by one who was greedy for power, and if the resultant empire had not sought more and more power, the Great War would not have occurred. That holocaust was thrust upon the world merely because the German Empire possessed power, and was hungry for more. Why does this Federal Parliament want additional authority which can be attained only at the expense of the States? As Aristotle wisely said, “ There can be no real justice between combatants that are unequal “. Here we have a powerful federation, greedily acquisitive, pitted against a number of States. The combatants are unequal, and there is no real justice.
While it is natural for man to reach out for more power, it is also natural for the section which will be afflicted by the abuse of that power, to try to prevent the predatory person from acquiring more. The Constitution exists to prevent the improper acquisition of powers by the Federal Government, and I stand for the maintenance of a federal system, and its strictly proper spirit. This Senate has just dealt with another measure that encroaches upon the spirit of the Constitution, by which it gives to the central authority additional powers to the detriment of the States. I learnt at school the truism, as old as the hills, that “Finance is government, and government is finance”. If the Commonwealth is granted this additional power, the States will be deprived of a source of taxation, and therefore of finance, which is necessary ‘ to enable them to carry out the many varied and costly social services that have conferred benefits on so many. When I was in Queensland years ago, the Government of that State gave to the people many amenities of life that were made possible only because of the inflow of taxes. This proposal will close an avenue of taxation to the States, and do them an injustice. Let us preserve the balance fairly. There was- a time when it was necessary that all should encourage the federal spirit. That time has passed. Now, it is imperative that we should endeavour to preserve the rights of the States, in fact the life of the States, against the predatory Commonwealth Government. This proposal is merely the forerunner of many other similar actions which will engender bad blood between the States and the Commonwealth. This chamber is the custodian of the rights of the States, and- its members should say to the Government, “You shall go this far, but no farther.” Let the public servants and parliamentarians pay their measure of taxation like everybody else in the community. I object strongly to the clause, and move -
That the words “ and inserting in their stead the following sub-sections “ be left out.
The acceptance of my amendment will mean that we shall revert to those provisions of the law which define clearly the respective ^position of State and public servants and parliamentarians, and enable the State authorities to exercise their powers as was originally intended.
– Order! The honorable senator’s time has expired.
– I hope .that the amendment moved by Senator Lynch will be rejected. The amendment sponsored by me is designed to meet the situation to’ which the honorable senator has drawn attention. If accepted, it will overcome all the troubles that he foresees. It will not grant power to the Federal Government to take from the States any of their existing rights; but is merely designed to overcome a disability that exists under the act as it now stands. If the honorable senator is a “ State righter “ he has nothing to fear from my amendment.
– I intend to support the amendment that has been put forward so lucidly by Senator Lynch. If accepted, it will put federal servants and parliamentarians on the same footing as any other citizen residing in a State.
– I advise the honorable senator to study the existing law before he elaborates his argument.
– I have already done so. I am afraid that it is the honorable senator who lacks knowledge on the subject. The present law provides that federal members, ministers, and employees shall not be taxed by the States at higher rates than those in force on the 30th June, 1930. Every one in Australia now recognizes that that was an iniquitous provision, and for that reason the Government is proposing its repeal. I commend it for doing so. But Senator Lynch desires to eliminate from the bill the substitute proposal of the Government, which is that the GovernorGeneral in Council, which really means the Government, may at any time interfere with the taxation laws of the States in so far as they relate to federal members, ministers, and employees, and, incidentally, interfere with the practice in Australia for the last ten or fifteen years of taxing all residents in a State at the rates applicable to their incomes. I can- not see that there is any room for argument about the equity of Senator Lynch’s amendment, and I hope that it will be agreed to.
– I advise the committee carefully to consider the effect which the carrying of the amendment would have. The provisions of section 19 of the principal act were agreed to by this committee on the 16th July last without a single word of dissent.
– Was the business dealt with in the” middle of the night?
– It was not. When it came to applying the provision which really pegged the amount of State taxation at which federal members, ministers and employees were liable, it was found that an anomaly had been created. The object of the clause which Senator Lynch is seeking to amend is to correct that anomaly. What would be our position if one clay we affirm a principle and the next day, without any reason whatever, we abandon it? The Government is really asking the committee to restore to the States a right which was inadvertently taken from them. If the clause is agreed to, the States will be able to impose heavier taxation upon federal members, ministers, and employees than they can now impose. The provisions of section 19 of the principal act were part and parcel of the financial emergency plan, the underlying principle of which was that the sacrifices of the community should be 33 near equality as was possible. But by enacting that certain, residents in the States should not be called upon to pay State taxation at a higher rate than that which applied on the 30th June, 1930, we fettered the State Governments to some extent, and created a somewhat sheltered class. in certain States. The object of the Government is to enable the States, in collaboration with the Commonwealth, to provide that there shall be no such sheltered class.
– Why could not the States take such action without drawing the Commonwealth into the matter ?
– The honorable senator surely realizes that, in pursuance of the provisions of the financial emergency plan, certain governments were authorized to take individual action. The Commonwealth Government, for instance, made percentage reductions in the remuneration of members of Parliament, ministers of the Crown, and Commonwealth employees generally. In considering the burden of taxation which the persons affected by that action should be called upon to bear, such salary reductions should surely be taken into account. If the amendment is agreed to, and the remainder of the bill passed, the position will be as it was before the Financial Emergency Act came into operation, and there will certainly be inequalities of sacrifice.
– If the amendment is carried, the Government could drop the bill.
– The suggestion offered by Senator McLachlan could, of course, be adopted.
– I think I was reading the Assistant Minister’s mind.
– The alternative to dropping the bill would be for the Government to abandon the financial emergency plan in. this respect at any rate. I do not think that the members of this committee would desire that course to be taken, for the plan was carefully considered by them before they approved of it.
– If all the details of the plan had been carefully considered, there would have been no need for this amending bill.
– As I have said, the main principle underlying the plan was that there should be equality of sacrifice, and it was felt that to secure such equality in respect of federal members, Ministers, and employees, it Avas necessary to peg the amount of State taxation to which they should be liable. This was found to be anomalous. The Commonwealth Government wishes to give greater elasticity to the law relating to the taxation by the States of those who draw their incomes from the Commonwealth. If Senator Lynch’s amendment is agreed to, and the Government finds it desirable to drop the bill, the States will continue to suffer the present disabilities iu this regard.
– Why should a difference be made respecting the taxation imposed by New South Wales upon State and Federal public servants?
– There is no desire to differentiate between different classes of public servants, but if the honorable senator’s amendment is agreed to there may be such differentiation.
– The Assistant Minister’s argument seems to be that what has been done must not be undone.
– That is not so.
– The honorable gentleman thinks that whatever the Government does must be right.
– I have no doubt that Senator Lynch is influenced by the fact that this Government has not done many wrong things. The provisions of the Financial Emergency Act were in accordance with the agreement made by the various parties in this Parliament when they decided to combine forces in order to rehabilitate the national finances.
– My party was not represented at the conference.
– But the terms of the partnership were submitted to Parliament, and this particular provision was agreed to without a word of discussion. The plain fact is that an endeavour is being made to return to the States a right that was taken away from them, and I cannot understand Senator Johnston making a fuss about such a proposal. We shall have a glaring case of inconsistency if the Senate agrees to this amendment, seeing that it agreed to the provision in the principal act only a few weeks ago without a single dissentient. The financial emergency plan was very carefully considered by the Senate. The object of this clause is to remove an anomaly caused by the pegging of the amount of State taxation which federal members, Ministers, and employees may be called upon to pay. By asking us to accept this amendment, Senator Lynch is, in effect, inviting us to repudiate the terms of the partnership to which I hav referred.
– I move -
That the word “ notice “, proposed new subsection ( 1 ) , be left out with a view to insert in lieu thereof the word “ regulation “.
If we do not insist that the rates of taxation shall be prescribed by regulation, the Government may, by notice in the Government Gazette, impose rates upon which this Parliament will not have an opportunity to express an opinion. If this amendment is adopted, Parliament will have an opportunity to review the rates decided upon after the Government has been in consultation with the taxation authorities. This amendment will give Parliament the right to say whether the maximum rates imposed are just or otherwise. I appeal to the committee to ensure that Parliament shall have the right to review the decision of the Government in the matter.
Amendment agreed to.
Clause also consequentially amended
– The committee having affirmed the principle embodied in the amendment just carried, certain other consequential amendments will now have to be made, not only in the clause, but in an amendment which the Minister in charge of the bill proposes to move.
Senator BARNES (Victoria - VicePresident of the Executive Council) [5.6J. - It would appear that Senator Lynch should also move to strike out the words “ in the Gazette “. As I have circulated an amendment in which the word “ notice “, which has now been deleted, appears, and a certain amount of redrafting will have to be done, I suggest that progress be reported. *
Debate resumed from page 1258.
– Having consulted the Crown Law Authorities on the question raised as to the relevancy of the amendment moved by Senator E. B. Johnston, I rule that the first part of the said amendment, down to and including the word “ Commonwealth “ in the typed copy, is relevant, and is, indeed, a reaffirmation of the resolution of the Senate contained in the original motion. The latter part, however, from the aforesaid word “ Commonwealth “ down to the end of the amendment is irrelevant as. introducing new matter to the resolution of the Senate, and might better be placed before the Senate for decision as a substantive motion.
– I understand, sir, that you have ruled that the first portion of the amendment moved by Senator E. B. Johnston is relevant, that the latter portion is irrelevant, and that the whole amendment is now before the Chair.
– I have submitted my ruling in that form to enable Senator E. B. Johnston so to amend his amendment that it will be relevant.
– I understand that the debate cannot be resumed on an amendment which is irrelevant.
– The honorable senator who moved the amendment may ask for leave to amend it.
– I have’ no desire to amend it; I wish it to remain in the form in which I have moved it.
– In that case, I shall have to declare the amendment out of order.
– May I move another amendment?
– The honorable senator may merely ask for leave to amend his amendment.
– I do not. wish to take that course.
– So far as I can see, that is the only course that the honorable senator, having already spoken, may take.
– Then, I ask for leave to amend my amendment; but I do so under duress.
– I must take exception to the honorable senator’s description of my ruling.
– I ask for leave to amend the amendment, by leaving out all the words after the word “ Commonwealth,” second occurring.
Leave granted ; amendment amended accordingly to read -
That the following proviso he added: - “ Provided that nothing in this Act shall he construed to take away from the States of the Commonwealth of Australia any of the constitutional rights that they retained at the foundation of the Commonwealth.”
– You, Mr. President, have already ruled that the resolution as it first appeared before the Senate, makes provision for the object that the honorable senator now seeks to achieve. This matter has received the most careful consideration of the Government, and it prefers its own wording to that of the honorable senator. The honorable senator may have a greater knowledge of drafting than is possessed by the expert advisers of the Government, but I take leave to doubt it. I understand that Australia is the only dominion which is lagging behind in expressing its will regarding the proposed Statute of Westminster.
– Australia may be taking the wise and the right course.
– That is possible. I have no objection to honorable senators voicing their opinions; but the Government is entitled to stick to its guns in connexion with a proposal of this description, especially in view of the fact that in the opinion of its advisers, the original resolution more suitably fulfills the object aimed at, than does the amendment of the honorable senator. I hope that the Senate will not, therefore, waste any lime in discussing the amendment.
– When the resolution consenting to the proposed Statute of Westminster was before the Senate last July, I and a number of other honorable senators opposed it for what we considered to be good and sufficient reasons. The objections that we then urged against it have not lost any of their force iu the meantime. I do not consider that it would be in the interests of the Commonwealth to agree to the proposed Statute. No request for such legislation has ever been made by a State government, or even by the Commonwealth Government. The Commonwealth Parliament has the power to legislate within certain constitutional limits, and I have yet to learn what necessity there was for the proposal to which this Parliament signified its assent some months ago. A majority of honorable senators differed from me on that occasion, and the resolution submitted by the Government was agreed to. It would now appear that certain doubts existed, and that those who were -in a minority in this chamber had strong grounds for the attitude that they took up. I venture to affirm that had it not been for the determined stand that we then took, in order to make doubly secure the position of the different States, the motion that we are now discussing would not have seen the light of day. I am at a loss to understand the reason for the opposition of the Government to the amendment that has been moved by Senator E. E. Johnston. In this case, also, those honorable senators who are behind the mover of the amendment, even though they are in a minority in this chamber, may be adopting the right course. Although we were almost ridiculed for our opposition to the previous resolution, the very Government that then strongly condemned our attitude now proposes an amendment that is designed to make doubly secure the position of the States. It is abundantly clear that those who drafted the previous resolution, do not view it to-day as they did then. We who support the amendment of Senator E. B. Johnston, have the backing of some of the States, who do not believe that their position has been sufficiently safeguarded. Can any serious objection be raised by the Government to this latest proposal? This is the States House, -and it is our duty to safeguard their interests. If there is the slightest doubt in the minds of the Premiers of the States, and they make representations to us, we are bound to pay heed to them.
– Do they say that they are satisfied with Senator E. B. Johnston’s amendment?
– Did they say that they were satisfied with the objections that we raised to the passage of the previous resolution? They did not. But we, as their representatives, drew attention to the position that we considered would be created ; and the objection that they raise to-day proves that kc. were amply justified in what we then did. The Government ought to welcome anything that does not destroy or conflict with the object that it has in view. You, Mr. President, having looked into the matter, have ruled that in its present form, the amendment will make a reasonable and an intelligent addition to the resolution. As a representative of one of the States, I consider that this is the proper cause for us to adopt. We should prevent, as far as possible, the peaceful penetration and absorption by the Commonwealth of the sovereign rights of the States. The Commonwealth Parliament has, from time to time, made serious inroads into the rights of the States, which the people, when they voted for federation 30 years ago, believed would not be interfered with. The Commonwealth Government has passed legislation and committed many acts which some people contend amount really to a violation of the Constitution. Many persons are suffering injustices under Commonwealth law, and it is only the heavy cost involved in taking legal proceedings that prevents them from testing, the constitutionality of certain Commonwealth legislation. I support the amendment of the Government, and also the further amendment of Senator E. B. Johnston, which seeks to safeguard the rights of the States.
– Does not the amendment of the Government meet the position ?
– The States say that it does not. This further amendment is designed to safeguard further the interests of the States. It makes secure what the Government is seeking to do by its motion.
Senator Sir GEORGE PEARCE (Western Australia) [5.33]. - I cannot understand the view of Senator Herbert Hays that if we support the amendment of Senator E. B. Johnston we are acting in conformity with the desires and view of the States, whereas if we support the motion of the Government we shall be acting against their interests. I submit that the amendment of Senator E. B. Johnston has never been submitted to the States, and it, therefore, cannot be said that they are prepared to accept it as an alternative to the proposal of the Government. Both amendments have the same meaning, and the question is, therefore, which is the better drafted. Whatever objection the States may have to the amendment of the Government applies equally to the amendment of Senator E. B. Johnston, because both mean the same thing. Let us examine the substance of the objections of the States, with which we are mainly concerned. First of all, the States took exception to the statute as it was originally drafted. So did I. I spoke against it and voted against it. Then certain correspondence took place between the Commonwealth and the States, and the States expressed reasons for their objections. The Commonwealth Government framed the amendment now before us, after having heard the objections of four of the States. It was submitted to them, and in a further letter, the Prime Minister asked whether they were now satisfied. The Queensland Government said that it was satisfied, and it withdrew its objection to the statute. The Premier of Western Australia telegraphed -
Your wire fifteenth Statute of Westminster. Our protest was made by unanimous decision of Parliament, therefore not competent for me withdraw objection.
The resolution of the Western Australian Parliament referred not to this amendment, but to the original statute, because, at that time, this amendment had not been published or even drafted. It was framed as a> result of further negotiations and, therefore, the telegram from the Premier of Western Australia to the Prime Minister cannot be said to be an objection to this amendment.
Senator Sir GEORGE PEARCE.That is so. Senator Herbert Hays cannot, therefore, assume that the Premier of Western Australia has said that the amendment of the Government does not meet the position of the States so well as the amendment of Senator E. B. Johnston.
– I did not say that.
Senator Sir GEORGE PEARCE.The honorable senator inferred that. He said that, if we voted for Senator Johnston’s amendment, we should meet the objection of the States, whereas, if we voted for the amendment of the Government, we should not be doing so.
Seu a tor Herbert Hays. - The right honorable senator is misquoting my remarks. I said that the amendment of Senator Johnston further safeguarded the position of the States.
Senator Sir GEORGE PEARCE.The honorable senator said that the States were not satisfied with the amendment of the Government. The telegram from the Premier of Western Australia shows that the Parliament of that State had not dealt with that amendment. The Premier of Tasmania telegraphed -
Statute of Westminster. Appreciate greatly your evident desire to meet State’s point of view but feel that the present is the time for this State to place on record its protest against certain portions of statute. Cannot understand how passage of statute should be a matter of great urgency. Government feels that as resolution of protest is now pending we should take the opinion of House on matter.
The Premier of that State expressed no opinion on this amendment at all.
– He expressed strong objection to the amendment of the Government being carried now.
– That State objected to certain portions of the Statute which were dealt with in ite correspondence! As a result of that objection, this- amendment was drafted. The Tasmanian Government feared that, under the Statute of Westminster, some power which it now possessed would be taken from it. The amendment is expressly designed to prevent anything of the kind being done. The Premier of Tasmania, in his telegram, did not express any opinion about the amendment. He simply fell back on the original objection which this amendment was framed to overcome. The Premier of South Australia forwarded the following telegram to the Prime Minister : -
Your telegram fifteenth instant. Regret my Government unable to withdraw its opposition to clause 3 of proposed Statute Westminster.
The objection of that State to clause 3 is the only one that can be construed as an objection to this amendment.
– A statement published in the Adelaide newspapers showed that the Government of South Australia did not understand the Statute of Westminster.
– I am not prepared to say that. Senator Herbert Hays and Senator Johnston seem to think that the States object to the amendment of the Government.
– My amendment is not in the form that I wished it to take.
– I know that; but I should not be in order in discussing that ‘ matter. Both amendments mean the same thing, and we come now to the choice of draftsmanship. The amendment of the Government was drafted by the Crown Law Department. I agree with Senator Colebatch that that department makes many blunders, but we all make blunders at times. I do not know who drafted the amendment of Senator Johnston ; but, if he drafted it himself, I should prefer the amendment of the Government. Although I have the utmost respect for him, I have never heard him put forward any claim to be regarded as . a legal luminary or draftsman ; therefore, when it comes to a choice of draftsmanship, we must accept the amendment drawn by the Crown. Law Department.
– I ask the Senate to consider the real issue between the Government and Senator Johnston regarding the respective amendments. You, Mr. President, have ruled, with respect to Senator Johnston’s amendment, that all the words after the word “ Commonwealth “ are irrelevant to the motion. Therefore, the amendment to the motion is -
Provided that nothing in this act shall be construed to take away from the States of the Commonwealth of Australia any of the constitutional rights that they retained at the foundation of the Commonwealth.
This is the motion -
Nothing in this act shall be deemed to require the concurrence of the Parliament and Government of the Commonwealth of Australia iu any law made by Parliament with respect to any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia, in any case where it would have been in accordance with the constitutional practice existing before the’ commencement of this act that Parliament should make such law without such concurrence.
By the amendment, we are asked to add the following words : -
Provided that nothing in this act shall be construed to take away from the States of the Commonwealth of Australia any of the constitutional rights that they retained at the foundation of the Commonwealth.
Why should we add to the motion a proviso which has precisely the same meaning as the motion ? I can understand Senator J Johnston, with his ingenious mind, framing an amendment, and cloaking it with a little preamble that would enable him to place his ideas about secession before the Imperial Parliament. But the President has ruled that his secessionist ideas are irrelevant to the motion, and all that now remains is the preamble of his amendment, which is perfectly innocuous. If the press would not give it publicity, I should be inclined to advise the Leader of the Government to accept it, because it means nothing. The Government’s motion-
– Is objected to by ‘three States.
– As the Leader of the Opposition rightly pointed out to Senator Johnston, no State has yet accepted this amendment, and I venture to say that no State that has respect for the parliamentary institutions of this country would thank the honorable senator for seeking to compel us to accept such a proviso. You, Mr. President, gave the honorable senator a good opportunity to let the matter drop. As a solatium, you ruled that the preamble was in order, but the honorable senator refused to accept the obvious suggestion that his amendment should hu withdrawn altogether.
– That is a ruling of the Crown Law Department.
– That remark is a reflection on the President. The honorable senator knows that in this matter the President and the Crown. Law officers could be guided only by the Standing Orders of this House. It may be presumptuous on my part, but I entirely agree with Sir Robert Garran and the President.
– The motion now before the Senate relates to a resolution carried in July last. Where does it fit in?
– At the end of the original resolution, which was designed to meet certain objections raised by the States, and properly referred to by the Leader of the Opposition. To remove any possibility of doubt in the matter, a saving section is to be inserted at the end of the statute.
– I presume that Senator Colebatch’s inquiry was intended merely to afford information, with a view to aiding the discussion on the amendment before the Senate.
– With the honorable senator’s knowledge of this branch of the law, he, no doubt, recognizes that this Parliament has merely made a request to the Imperial Parliament, but at the instigation of the States, we are seeking to alter its terms, and the particular motion now before us embodies a further request. I think that Senator Colebatch will agree that, if we added the relevant portion of Senator Johnston’s amendment, it would not be surprising if the Imperial Parliament decided that it would be better to dissolve the Commonwealth Parliament. I have often heard the suggestion made that this Government designedly brings forward legislation to accomplish unification, and I frequently wonder whether certain proposals by the Opposition are introduced with the idea of bringing about secession.
– An honorable senator may not impute motives, or introduce matters that are irrelevant to the subject under discussion.
– I have such a high regard for the parliamentary institutions of this country that I consider that when we submit a request to the Imperial Parliament, it should be so framed that even Western Australia may not be discredited. If the final words of Senator Johnston’s amendment had been ruled to be in order, I could have understood his persisting in the amendment, but I ask the Senate to refuse to forward to the Imperial authorities that portion of the amendment which, while considered to be in order, would not do credit to a thirdclass school.
– The language is clear and definite.
– If the amendment, as originally placed before the chamber, had been entirely in order, there would have been substance in it. The words which precede the portion- of the amendment that was ruled out of order are obviously a preamble to the words which followed. If not intended to be a preamble, in what respect do they differ from these words -
Nothing in this act shall bo deemed to require the concurrence of the Parliament and Government of the Commonwealth of Australia in any law made by Parliament with respect to any matter within the authority of the States of Australia.
– Who is to be the judge of that?
– The High Court of Australia.
– Quite so; the court setup by the people to be the watch-dog of the Constitution. Senator Herbert’ Hays remarked that if the Constitution had not been stretched to the extent that it had, it would never have been accepted.
– A decision of the High Court has been reversed on more than one occasion.
– I am pleased to have that interjection. Assuming, for the sake of argument, that Senator E. B. Johnston’s amendment were agreed to, the High Court, that dangerous institution which might possibly stretch the Constitution-
– I did not say that the High Court had stretched the Constitution.
– There is only one authority which can interpret it, and that is the High Court.
– Many constitutional questions have never been submitted to the court for decision.
– Do I understand, that the Assistant Minister is discussing that portion of the amendment which has been ruled to be out of order?
– No. I invite Senator Herbert Hays to read the amendment to which he asks the Senate to give its sanction. The matter which I am, unfortunately, compelled to discuss is the preamble to the amendment moved by Senator E. B. Johnston.
– The amendment !
– The amendment, alias preamble.
– Where is the power of the High Court to interpret a statute passed by the Imperial Parliament?
– If the Imperial Parliament gives to the Commonwealth of Australia certain, sovereign rights, and also gives certain sovereign rights to the States, the body to determine the line of demarcation between those sovereign rights is the High Court of Australia.
– Only if its attention is drawn to the matter.
– That is the only way in which such rights are ever interpreted.
If we were to put in the following proviso : -
Provided that nothing in this act shall be construed to take away from the States and the Commonwealth any of the constitutional rights - how could that matter be determined unless- it came before the High Court ? I appeal to honorable senators opposite to accept the advice of their leader. The Government has proposed an amendment
– To a British act.
– To an imperial statute to declare the status of this nation, and to determine the rights of the Commonwealth and of the States. To the Government’s proposal Senator Johnston has suggested that we add a meaningless proviso - a preamble to something which followed, but which you, sir, ruled out of order. I hope that the Senate will view this question from the proper angle. We are not debating the Statute of Westminster itself; but whether we should insert in that statute a clause which has been framed by competent legal authorities to meet the objections of certain States.
– The States say that it does not meet their objections.
– The Leader of the Opposition (Senator Pearce) has pointed out that the States have not said anything of the kind. The honorable senator would be quite in order in moving a substantive motion, as a request to the Imperial Government ; but he should not attempt to get the Senate to add a. preamble to the Government’s proposal. If we do that, this Parliament will be made to look ridiculous.
– I rise to a point of order. Is the honorable senator entitled to continue calling the amendment a preamble?
– He is not. I have already called his attention to the matter. I ask the honorable senator to refer to the amendment by the proper term.
– Do you rule, sir, that I am not entitled to call the amendment a preamble to the amendment originally moved ?
– That would be in order.
– Senator Johnston moved an amendment, the substance of which you, sir, ruled out of order.
– Only half of it was out of order.
– The words “ Nothing in this act “ constituted a preamble to the amendment.
– I rise to a point of order. Did you, sir, not rule that the real substance of Senator Johnston’s motion was out of order?
– I ruled that the amendment as a whole was out of order, but that, if a portion of it were struck out, what was left would be in order. The words before the Chair constitute an amendment.
– -I shall not again refer to the amendment as a preamble. Had the amendment in its original form been in order, I could have understood the persistency of Senator Johnston; but, since the substance of his amendment is out of order, I suggest that the Senate should not permit to be added to the Government’s proposal an amendment which, I respectfully suggest, is merely a preamble to the original amendment of Senator Johnston.
– Let us, for a moment, consider what we did in July last, when we made a request to the Imperial Government in relation to the Statute of Westminster. At that time we were at great pains to safeguard the rights of the Commonwealth and of the States; we endeavoured to maintain the status quo in regard to both the States and the Commonwealth. Subsequently, exception was taken by a well-known legal authority in South Australia to the provisions of paragraph 3 of the schedule, which reads -
In accordance with the recommendation in paragraph 55, a clause as follows: - “ (1) No act of Parliament of the United Kingdom passed after the commencement of this act shall extend or be deemed to extend to a dominion as part of the law of that dominion unless it .is expressly declared in that act that that dominion has requested, and consented to, the enactment thereof. “ (2) In the case of the Commonwealth of Australia, the request and consent referred to in the last preceding sub-section shall be construed to mean the request and consent of the Parliament and the Government of the Commonwealth.”
I direct special attention to that paragraph, because all this controversy has arisen in connexion with sub-paragraph 2 of that paragraph. Personally, I have never doubted the effect of that provision ; but it was criticized in South Australia, and the Government of the Commonwealth saw fit to propose- an amendment, to which Senator Johnston now wishes to add certain words. Honorable senators will readily understand how the AttorneyGeneral of a State would view subparagraph 2, which reads -
In the case of the Commonwealth of Australia, the request and consent referred to in the last preceding sub-section shall be construed to mean the request and consent of the Parliament and the Government of the Commonwealth.
It would be natural for him to fear that the interests of the States were not amply safeguarded, and that a request might proceed from this Parliament without the sanction of the State concerned. As I have said, the Commonwealth Government has taken action to meet that objection ; and, in my opinion, what it proposes is sufficient. If I thought otherwise, I should be inclined to vote in favour of the suggestion of Senator Johnston. In order to meet the objection raised in South Australia, the Government proposes to include in the statute the following clause: -
Nothing in this act shall be deemed to require the concurrence of the Parliament and Government of the Commonwealth of Australia in any law made by Parliament with’ respect to any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia in any case where it would have been in accordance with the constitutional practice existing before the commencement of this act that Parliament should make such law without such concurrence.
So far as I am aware, that meets the only point raised in South Australia. Moreover, it appears to be the only point to which the draftsmen devoted their attention. The concurrence of the Federal Parliament will be necessary where the Commonwealth is concerned ; the concurrence of the State Parliament will be required where a State is concerned.
– The States have not dominion status. “Will their concurrence be necessary?
– We cannot give the States dominion status; all that we can do is to safeguard their existing rights.
– Then, I take it, the privilege does not extend to them, seeing that they have not dominion status?
– Paragraph 4 of the schedule which we passed in July last contains the following: -
Nothing in this act shall be deemed to authorize the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia, or to authorize the Parliament or the Government of the Commonwealth without the concurrence of the Parliament and of the Government of the States concerned to request or consent to the enactment of any act by the Parliament of the United Kingdom on any matter which is within” the authority of the States of Australia, not being a matter within the authority of the Parliament or the Government of the Commonwealth of Australia.
We have been careful to safeguard the rights both of the States and of the Commonwealth. We put them, as it were, in separate compartments,, so that neither authority could, trench on the rights or prerogatives of the other. In my opinion, the rights of the. States and of the Commonwealth have been amply protected.
– Is the honorable senator quoting from the resolution passed in July last?
– Yes.I quoted paragraph 4 of the schedule. The difficulty has arisen in connexion with paragraph 3.
Sitting suspended from 6.15 to 8 p.m.
– Before the dinner adjournment I addressed myself to the provisions of paragraph 3 of the schedule, with which South Australia was not completely satisfied, and in connexion with which it desired to have the position clarified. The proposal of the Government tends to have that effect. As I see this proposed legislation by the Imperial Parliament, which is the outcome of the 1926 conference, it is not intended to interfere with the -rights of either the States or the Commonwealth. They are preserved in statu quo; parapraph 4 undoubtedly points in that direction. Senator
Johnston has moved, an amendment, seeking to add a proviso that “ nothing in this act shall be construed to take away from the States of the Commonwealth of Australia any of the constitutional rights that they retained at the foundation of the Commonwealth”. I submit that there is absolutely nothing in the proposed enactment that suggests that anything of the sort should be done; that the limitations that have already been provided have been put in out of “ abundant caution “ as the lawyers would say, so that none of the existing rights shall be interfered with. Further, I point out to the honorable senator, as 1. think I did on a previous occasion, that we seem to be jumping before we have reached the stile. When made, this enactment, and I particularly have in mind paragraphs 1, 2, 3 and 6, is subject to adoption by the Commonwealth Parliament, and any act of this Parliament which adopts an amending section may provide that it shall have effect from the commencement of the statute, or at some future date. There is a further safeguarding provision, that the Parliament may at any time revoke the adoption of any section of an act. That may not afford a great deal of assistance to Senator Johnston, but it is quite obvious that before this statute can be put into operation, the Commonwealth Parliament has to pass a law adopting the enactment. It, therefore, appears to me that the time for considering the effect of such legislation should be when it is proposed to adopt the statute.
The amendment proposed by Senator Johnston does not carry the position one whit further than it stands under the existing provision. The amendment of the Government is simply to make abundantly clear what is meant by the words of sub-paragraph 3 of the recommended statute. It might have been argued that the request need only come from the Commonwealth Parliament of Australia under sub-paragraph (2) of paragraph 3, and it now is made quite manifest by the Government’s motion that the action must have the concurrence not only of the Commonwealth, but also of the States, if their rights are affected.
I can see no reason for passing the amendment moved by Senator Johnston. After considerable reflection on the subject, I cannot even see the necessity for the motion that is proposed by the Government, but as the States have expressed some doubt as to the effect of subparagraph (2), I propose to vote for the motion. I do not think that the amendment is really in keeping with the intention of the legislation. The . vice that the honorable senator aims to cure is not present in the statute that we are asking the Imperial Parliament to pass. In the circumstances, I suggest to the honorable senator that it is futile to incorporate his amendment, because there is no suggestion anywhere, except in that amendment, that any of the constitutional rights of the States are in any way interfered with. The position that previously prevailed, still obtains.
Question that the words proposed to be added be so added (Senator E. B. Johnston’s amendment) - put. The Senate divided. (President - Senator Hon. W. Kingsmill.)
Majority . . . . 6
Question so resolved in the negative.
Senator Sir HAL COLEBATCH (Western Australia)[8.12]. - My one regret in this matter is that I was unable to be present when the original resolution was passed in July last. Had I been I certainly should have joined with Senator
Pearce and those other honorable senators who opposed its adoption. I know that I should be quite out of order in discussing the merits of that resolution now; therefore, I do not intend to do so. I suggest that neither the original resolution nor its amendment should have been submitted to this Senate without the holding of some preliminary conference between the Commonwealth and State Premiers. A number of those conferences have been held during the past few months, and ample opportunity might have been found to submit the whole matter before the first resolution was submitted to this Parliament. Had such occurred, it might have been possible to formulate a resolution that would have suited all parties. I am not sure that that would have been the result, because, after all, the objection of some of the States to this entire resolution is fundamental. Underlying the whole business is the fact that a great number of people in some of the States regret profoundly that the Imperial Conference of 1926 was ever held, and wish that the previous relationship between the Mother Country and Australia had been continued. Before the holding of that conference, no bond was irksome, and there was nothing to which exception could be taken.
I was in England at the time when the conference was held, and I formed the impression that two members attended that conference knowing exactly what they wanted. And they got it. The Prime Minister of Australia was not one of them. That, too, is the feeling of the people in a number of our States. “What has been done since the 1926 conference has been contrary to the best interests of Australia, and of the Empire. Some of us formed the opinion then that two or three more conferences of that nature would go a long way towards destroying the British Empire. That, I admit, is a matter that could better have been discussed on the original resolution. The amendment improves matters to some extent, but I regret very deeply that, when the Government discovered that certain States were strongly opposed to the whole proposal, it did not provide an opportunity for the Premiers to discuss the subject fully. Had that been done, it might have been possible to introduce a motion which would have been satisfactory to all parties.
– In view of the fact that Senator Johnston’s amendment has been defeated, 1 move -
That the following paragraph be added to the motion : - “ Nothing in this aCt removes, restricts, or diminishes the unfettered powers of the Imperial Parliament to repeal, alter, or amend the Commonwealth of Australia Constitution Act of 1900.”
The object of the amendment is to put it beyond all doubt that the Imperial Parliament will still retain the power to take any action it desires in connexion with the Commonwealth of Australia Constitution Act without any impediment whatsoever. There are signs on the horizon which suggest that the Constitution Act niay.be altered without any reference to the Imperial Parliament.
– Surely the honorable senator must know that that could not be clone.
– In order to make it quite clear that it may not be done, I desire to have the paragraph contained in my amendment inserted in the proposed Statute of Westminster. We know that this proposed statute is the outcome of two imperial conferences which discussed matters that had special reference to all the dominions and to the ambit of authority of each dominion. But there was nothing mentioned at the conference about States, for the ample reason that no representative of the various States were present at the conference.
– I rise to a point of order. I submit that the honorable senator is seeking to provide in his amend.ment for something that is already provided for in the motion.
– The point raised by the honorable senator is not so much one of procedure as of law. I do not feel called upon, nor do I think it is my duty, to determine points of law. The amendment appears to me to seek to define the power of a parliament with which we have nothing to do, and I feel inclined on that ground to declare it out of order. But, as legal considerations are involved, I do not think it would be proper for me to determine the matter without consulting the Crown Law authorities.
– In that event, sir, I ask leave to continue my remarks at a later stage, so that you may have an opportunity to consult the legal authorities.
Leave granted; debate adjourned.
In committee (Consideration resumed from page 1264) :
Amendment (by Senator Barnes) - agreed to -
That the words “ under any one or more of the laws of any State imposing taxes upon incomes whether for a specified purpose or not”, proposed new sub-section 1, be left out with a view to insert in lieu thereof the following: -
under any one or more of the laws of any State imposing taxes- upon incomes for the purposes of the general revenue of the State, and
) under any one or more of the laws of any State imposing taxes upon incomes where the law of the State expressly provides that the revenue received from the tax is to bo applied to meet expenditure incurred by the State for a special purpose, or is prescribed as a law imposing a tax to meet expenditure incurred by the State for a special purpose.”.
Clause also further consequentially amended, and, as amended, agreed to.
Clauses 4 and 5 agreed to.
Title agreed to.
Bill reported with ‘amendments.
Standing and Sessional Orders suspended.
Motion (by Senator Daly) proposed -
That the report be adopted.
Amendment (by Senator Barnes) agreed to -
That the bill be recommitted for the reconsideration of clause 3.
In committee (Recommittal) :
Clause 3 -
Section 19 of the principal act is amended by omitting sub-sections 1, 2 and 3, and inserting in their stead the following sub-sections: -
1 ) The Governor-General may, from time to time, by regulation, fix the maximum amount, rate, percentage or extent of taxation. . . .
Amendment (by Senator Barnes) proposed -
That the words “ from time to time by regulation fix “ be left out, with a view to insert in lieu thereof the words “by regulation prescribe “.
Senator Sir HAL COLEBATCH (Western Australia) [8.49]. - I rise merely to express the hope that we are doing the right thing, notwithstanding the rather irregular and cumbersome manner in which We seem to be proceeding. I also wish to offer two observations. In the first place, I trust that- we shall have an opportunity of seeing the bill as it has been amended before we are asked to vote for its third reading; and, in the second place, that the Government will take note of these proceedings, and that this will be the last time that it will attempt to pass legislation containing an utterly improper provision designed . to give it despotic power. I hope it will realize that the Senate does not intend in future to pass any legislation that proposes to give absolutely despotic power to the Executive; that “when it delegates a portion of its law-making power to the Executive it will retain the right of reviewing what the Executive chooses to do under that delegated power.
– I do not think that there was any need for the observations that have just been made by Senator Colebatch with respect to the Government. The Government desired to provide a simple method of prescribing the manner in which this particular provision should be given legislative effect. When that was objected to by honorable senators, the Leader of the Senate (Senator Barnes) readily accepted the alternative suggested by Senator Lynch. I strenuously combat the suggestion that the Opposition has given the Government a sound thrashing, in consequence of which it is likely in future to behave more decorously. No exception was taken to this particular provision by the Opposition in another place. The Opposition in this chamber, however, with its big majority, wished to make it more cumbersome than we desired, and. like Lazarus, we have to accept the crumbs that fall to us. If on another occasion we bring down legislation designed, in accordance with the Premiers’ plan, to cut down expenditure, by saving the cost of issuing regulations and resorting to the practice of publication in the Gazette, and the Opposition, with its majority, insists upon regulations, I do not think that the Government will take umbrage at their action. I am sure that on this occasion every honorable senator opposite will candidly admit that, from the moment a protest was launched from their benches, we did not show any disposition to withhold from them the satisfaction of achieving what they considered to be a victory.
– I do not think that we should allow Senator Daly to get away with his rather uncharitable reference to the Opposition, which has stood him in such good stead in the passage of this measure. Were it not for us, it would never have been passed. I am at a loss properly to describe the amendment. In the first place, it means mischief; but even in its most mischievous aspect it has been robbed of some of its sting by another amendment that the Government has accepted. The Minister declined to accept the amendment of substance that I desired to have incorporated in the bill, but for its rejection he was obliged to depend upon members of the Opposition. Therefore, my complaint is not against him, but against my own colleagues and pals, who could not for the time being appreciate the scintillating wisdom of my proposal for the improvement of this measure. The insertion of the words now proposed is a very wise move, and represents a big concession by the Government. Borrowing the luminous language of Senator Daly, I may say that those of us in this corner who wish to see the measure improved, are glad to accept even the smallest crumb that falls from the Government’s table. These three words “by regulation prescribe “ will improve the measure. They’ are almost as important as the word “ not “, which occurs iu the ten commandments. As a result of their insertion, the Senate, which is the equal of another place in power, will, in future, have au opportunity of reviewing the actions of governments in the matter of prescribing the maximum amount, rate, percentage, or extent, of taxation imposed upon public servants of the Commonwealth and members of this Parliament, who, after the passage of this legislation, will form a special class that has not previously existed in the history of this Commonwealth. I congratulate the Go vernment on its wisdom, and myself on my good fortune in obtaining its consent to the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Bill reported with a further amendment; reports adopted.
Debate resumed from page 1274.
The PRESIDENT (Senator the Hon. W. Kingsmill) . - I wish to inform honorable senators that, on the point of order raised by Senator Lynch, I have consulted the Crown Law authorities as to the legal relevancy of the proposed amendment, and I rule that it is irrelevant.
– We are trying to discover whether the States, as such, have any standing at all under this legislation, which has been submitted to us by the Imperial Parliament. The documents which have been furnished to us deal mainly with matters of dominion concern alone. The States are vanishing quantities, so far as Imperial conferences are concerned, the reason being that there are now no State representatives at those conferences. At one time only State representatives attended them, or their equivalent; but, when federation took shape, only representatives of the dominions travelled to the Mother Country to decide questions, not of State importance, but of dominion importance. That is borne out by the view expressed by the SolicitorGeneral, Sir Robert Garran, for whose opinion I have the greatest respect. This legislation contains only two paragraphs, which deal with the affairs of the States. When Senator McLachlan was speaking, I interjected that the reason why the States did not get any consideration was that they did not have dominion status. Paragraph 3 of this statute lays it down that the Imperial Parliament may pass legislation affecting the dominions only at the invitation and with the consent of those dominions. There is no reference to the affairs of the States as. if, indeed, their duties and responsibilities had no imperial concern whatever. In consequence of that serious omission, an amendment by way of an afterthought on the part of this Government has been included in this proposed legislation, to ensure to the States an approach to the Imperial Parliament and the retention of that nexus which the federation almost destroyed. There should be no question about that. The States are rapidly becoming political nonentities, so far as the Imperial Parliament is concerned. The reason why they are not consulted is that they are not represented at those conferences, and the representatives there grow forgetful of the concerns of others. This is a positive proposal that any legislation affecting the dominions can be passed by the Imperial Parliament only at the request and with the consent of the dominions. It is time that we culled a halt in this matter. It is time that the Imperial Conference should be told that this Commonwealth is comprised of six States, that they were the originators of this Commonwealth*; in fact, the matrix of this federal structure. The States control 90 per cent. of our civic activities, whereas the Commonwealth controls only 10 per cent. When attention was drawn to the position of the States under this proposal, the Government, by way of an aside, introduced an amendment. As Senator Johnston has suggested, we arc not yet certain whether this procedure is proper or likely to be effective. The States ca 11 rely only upon this amendment for their security and well-being in a political, social and industrial sense in so far as Imperial aid or co-operation is concerned. Those of us who hold that the federal structure needs to be maintained, and not brought to rack and ruin, who believe that it is the best form of political government, need to be up and doing to ensure that the States are given a fair deal. They are being thrust into the background and put down the cellar out of sight, because the only political institutions that are to be of any importance under this proposed legislation are the dominions. They are to get first call upon the attention of the Imperial Parliament, and the representation at the Imperial Conference. The States are to be nowhere, and would not bc anywhere but for those members of the Senate who have taken up the cudgels on their behalf. This Government would not lift a finger to safeguard the States, because it is its avowed policy to destroy them. “ Let Carthage be destroyed “ they say.
– This Senate and, therefore, this Parliament, represent the States.
– The Senate is trying to represent the States. The State Governments and Parliaments have more to do with the welfare of our citizens than has the Commonwealth Parliament. They have provided railways, water works, education, justice, and a list of other requirements. They regulate land, mining, education, justice, and so on. Yet under this legislation they are to come in for fag-end attention at the hands of the Imperial Parliament. The time will come when those associated with State interests will rise and -compel us to safeguard the States, without which this Senate would not be in existence. The people will ask us why we have allowed the Commonwealth to usurp the powers of the States. The last measure passed by the Senate is a further example of the encroachment of the Commonwealth on the preserves of the. States. The States are being gradually shorn of their powers. The Premier of Queensland has said that this proposal means the aggrandizement of the Commonwealth at the expense of the States. We cannot continue to do that. If we wish to preserve a fair balance of power as between the States and the central authority we must be up and doing, and ensure that the States, in addition to the Commonwealth, get a fair deal. I am inclined to vote against this proposal. At this stage I wish only to direct attention to the constant pull toward centralization, towards increasing federal powers, and the lessening and belittling of the powers of the States, which have done so much in the past to pioneer this country. For instance, Western A’ustralia carried out that wonderful scheme for carrying water nearly 400 miles inland. Queensland, New South Wales, and the other States, have also carried out stupendous works. It is time that we held the scales of justice fairly as between the States and the central authority. In the past some people in the United States of America used every effort to increase the powers of the central authority at the expense of the States, but experience taught them a bitter lesson. A battle royal was fought, and won, and now the approved policy of those countries is to have a fair division of powers as between the States and the central authority. We, in Australia, should give the States the authority to which the Constitution fully entitles them. Any institution whose authority is continually being enlarged must, in the end, become despotic. A man who has been reared in a humble environment is usually a good fellow, but once given authority, power and opulence, he becomes a totally different being. So it is with governments and parliaments. This Parliament has become drunk with power, forgetful altogether of the interests of the State Parliaments. It is, therefore, our duty to ensure that our constitutional powers are properly maintained and divided fairly as between the central authority and the States. These amateurs would destroy what they could not create.
Imagine the countries of Europe governed by one central authority situated, say, in London or Paris! One of the lessons of the late war was that divided authority was beneficial, and, after the war, the political map of Europe was altered out of all semblance to its former political self. But here, in Australia, the weaker elements are suffering because of the aggrandizement of the central power, and a corresponding lessening of State powers. It is time this Senate declared itself as the champion of the rights of the States. I hope that I have awakened my fellow senators to the necessity to make it clear that, while the central authority should retain all the powers that constitutionally belong to it; we should not allow .it to filch any further powers from the States. Otherwise the States will be hampered in their work of developing this huge and but partially reclaimed continent. They will be unable to discharge their functions efficiently, if their financial strength is crippled or sapped. I hope that the Government will take this lesson to heart. I realize that I may be pouring water on a duck’s back; but if any further encroachment is made upon the preserves of the States, as political entities, the time will come when the people will be “divided on this issue, and those who are not in favour of upholding the Constitution will bc relegated to that political oblivion from which they should never have emerged.
Question resolved in the affirmative.
Representation at Next Imperial Conference - £34,000,000 Migration Agreement: Claims of Queensland - Fairbridge Farm School - Cost of Living : Index Figures.
Motion (by Senator Barnes) proposed -
That the Senate do now adjourn.
.- In view of the results of the British election, and the policy upon which the National Government of Great Britain has been elected, I anticipate that an Imperial Conference will be held in London at a very early date. It is generally admitted that the policy of that Government is one of closer Empire trade, and that there is a general desire for the rehabilitation of the Empire. I desire an assurance from the Government that when the time comes for representatives of Australia to attend the Imperial Conference, a course will be adopted similar to that followed when the plan for the rehabilitation of the finances of the Commonwealth was formulated. On that occasion, representatives of all parties in this Parliament and in the State Parliaments were called into conference. The plan then devised is playing its part in the rehabilitation of the Empire. It was drawn up as the result of the joint efforts of all sections of political thought in this country, and if the present Government is still in power - as it will be if the conference is held prior to the next federal election - I hope that it will see that every political party in this Parliament is adequately represented at the conference, in order that the views of Australia may bc placed properly before the British Government.
I draw attention to the position of Queensland owing to the proposed cancellation of the £34,000,000 migration agreement with the British Government. When that agreement was made, an undertaking was given by all the State governments that they would absorb a certain number of migrants each year, and, in return, they were to receive certain benefits in the form of loans of money at a low rate of interest for the purpose of developmental works. I am given to understand that Queensland has absorbed its full quota of migrants under this scheme, and, consequently, if the scheme is definitely cancelled - I understand that a decision has not yet been reached in the matter - money that the Queensland Government understood was to be made available for the purpose of such developmental works as ring-barking of timber will not be made accessible. I desire an assurance that before the agreement is cancelled, the undertaking given to the Government of Queensland will be honoured.
– Since I understand that there is a prospect of the migration agreement being abandoned. I should like an assurance from the Government that the interests of Fairbridge Farm School in Western Australia will be safeguarded. You, Mr. President, know a good deal about that institution, and can bear me out when I say that it has done excellent work in the bringing of migrants to Australia. In having introduced child migrants, it has adopted the only logical method. Boys and girls from the Old Country have been trained on a wellappointed farm for life on the land, and having nothing to unlearn, they will be in a much better position to’ carry on farming operations in this country than those adults who were brought out at an earlier period, and at much greater expense. The Commonwealth Government has been good enough in the past to grant a small subsidy to this school, and the money has been greatly appreciated. Has any representation been made to the Western Australian authorities in regard to this matter? I shall be pleased to have an assurance that the subsidy to the school will be continued.
– I have received several requests from South Australia concerning the latest decision in regard to the fixing of the basic wage according to the cost of living index figures. Whether this is part of the Premiers’ plan or not, the fact remains that the workers throughout Australia have had a succession of serious cuts in their wages. Although they realize that the basic wage should rise and fall automatically, in accordance with the cost of living as ascertained by the Commonwealth Statistician, there is a widespread feeling, not only throughout South Australia, but, I am informed, in the other States, also, that the system now in operation in arriving’ at the index figures is not quite satisfactory. While the workers have confidence in the method adopted, there is a growing lack of confidence in the figures produced from time to time, and particularly recently. From Canberra, during the past two or three days, the figures have been circulated, and I notice that iu my native town, Kadina, the basic wage would be fixed, if that town were isolated, at £2 16s. per week. The workers there contend that they do not enjoy the reduction in the cost of living which the index figures indicate. From other portions of South Australia, I have received a similar complaint, and it is suggested that the Government should seriously consider the holding of an inquiry into the method now adopted in ascertaining the cost of living. I do not suggest that there is anything wrong in that method, but it is hard to convince some workers that the cost of living has fallen 4s. a week during the last quarter. They say that they do not experience such a reduction in regard to their household accounts. To restore confidence in the method adopted, the Government, I think, would be welladvised, and would be doing justice to the organized workers of the Commonwealth, if they made inquiries into the matter. As part of the rehabilitation scheme, serious slashes have been made into the workers’ wages, and after the cost of living has been ascertained by the Statistician from reports supplied by various firms and organizations throughout the Commonwealth, there is another cut as the result of an appeal to the Arbitration Court. In South Australia we have the deplorable position that the percentage of unemployed is higher than in any other part of the Commonwealth, while that State has the lowest basic wage and the highest taxation of any part of Australia. If it can be shown that the figures are properly ascertained, I am sure the great majority of the workers will honorably abide by them. If there are grounds for believing that the formula is not accurate, or. that it is capable of improvement, an alteration should be made, in the interests of the community. Contrary to the anticipations of, experts, unemployment is increasing as wages are falling. If we can restore the confidence of the organized workers in the formula in accordance with which periodical cuts are made in their wages-
– When wages were going up the workers had confidence in the system
– Any rise in their wages always followed a rise in the cost of living, but it was very difficult for wages to keep step with the rise. The workers now object to having to accept a reduction of wages before the cost of living has fallen. Tt is desirable that we should, have a contented community. We cannot have a contented community unless the workers are convinced that the basis on which their wages are reduced is fair. If the formula is sound, any reduction of wages made in accordance with it will leave them no worse off than formerly; but unless they are convinced that the formula is sound, dissatisfaction must exist. I hope that the Government will give this matter its earnest consideration.
– In reply to Senator Foll I have to state that negotiations are proceeding between the Commonwealth Government, the State Governments, and the British Government for the cancellation of the £34,000,000 agreement. Under that agreement the Commonwealth could do no more than raise certain sums of money; the settling of migrants was the concern of the States,” which, under the agreement, were relieved of certain interest payments. The claim of Queensland for assistance in connexion with ring-barking was accepted by the Commonwealth Government, and forwarded to the British authorities; but the loan market at that time had its door closed against Australia, and unfortunately, the Government does not hold strong hopes of being able to get IIi 0 money in the near future.
Should the agreement be . cancelled, I am afraid that Queensland will suffer, notwithstanding that that State-, carried out its obligations under the< agreement. The honorable senator’s, remarks will be forwarded to the representative in Australia of the British Government. If it is possible to include the Queensland ring-barking scheme among the uncompleted schemes for which money is to be made available, I can assure the honorable senator that the Government will be a- powerful advocate in that direction.
Senator Carroll referred to the Fairbridge farm. Having visited that school, I can say that I know of no institution which is more worthy of national support. On behalf of the Prime Minister, I have forwarded tq the Premier of “Western Australia a letter in which it is stated that Parliament has appropriated a sufficient sum to enable it to continue the subsidy to the farm for a further twelve months, provided the State Government pays its quota.
As to the cost of living, and its relation to the basic wage, I desire to inform Senator Kneebone that this matter has already engaged the attention of the Minister for Home Affairs (Mr. Blakeley). The honorable senator mentioned Kadina. That town has to come in under the arrangement which provides for the’ average of five towns being taken. I have always felt that some better scheme of assessing the rise and fall of the purchasing power of money should be instituted, but the difficulty is to find the correct formula. The Minister for Home Affairs is now in consultation with the Statistician’s Department with a view to evolving a formula which will give greater satisfaction to both employers and employees. While it is true that, when prices were rising employees benefited in some districts, the opposite is true now that prices are falling. My experience is that the cost of living figures do not accurately reflect the rise or fall in the cost of living.
– What is the alternative!
– Seeing that the Minister in charge of the department is engaged on an inquiry into this subject, it would not be politic for me to discuss it further at this stage. I assure Senator
Kneebone .that the matter has not been overlooked by the Government. It is hoped that it will be possible to evolve a more equitable scheme which will give greater satisfaction to both employers and employees.
– Senator Foll stressed the desirability of all shades of political opinion in Australia being represented at any Imperial conference which may be held in the near future. I can assure him that, in such an event, the Government will act in. the best interests of Australia, since such a conference might have important results so far as Australia is concerned. The honorable senator can rely on the Government watching the position, and doing its best for Australia.
Question resolved in the affirmative.
Senate adjourned at 0.40 p.m.
Cite as: Australia, Senate, Debates, 28 October 1931, viewed 22 October 2017, <http://historichansard.net/senate/1931/19311028_senate_12_132/>.