15th Parliament · 1st Session
The President (Senator tha Hon. F. J. Lynch) took the chair at 3 p.m., and read prayers.
– I ask the Minister representing the Minister for Trade and Customs, whether it is correct, as has been suggested by Australian authors and writers, that Australia is being deluged from overseas by magazines and booklets, containing the most debasing sex and gun-man stories, brought here in cases as packing for goods, thus evading customs duty and escaping the censorship applying to more respectable literature? And is it true that these undesirable publications are being road by Australian boys and girls, especially in the outback country towns? If so, what steps will the Government take immediately to stop this dangerous and debasing practice ?
– The matter is receiving the attention of the Government.
– I ask the Minister representing the Minister for. Commerce whether his attention has been directed to the press reports of numerous wrecks that have occurred on the North Queensland coast during the last few weeks, and. if so, whether inquiries are being made to ascertain the cause ?
– I regret to state that, since the end of March, no fewer than five vessels and one yacht have been wrecked in well charted waters on the North Queensland coast. Competent marine courts of inquiry are now investigating the causes. Until their reports have been received, I shall not be in a position to make a statement. The Chief Engineer of Lighthouses is now on his way to examine the light on Hammond Rock, Thursday Island. I expect to receive his report at an early date.
– I ask the Leader of the Senate whether the action taken by the Australian Broadcasting Commission, in censoring a proposed broadcast address by Judge Foster has been endorsed by the Government. If not, what action does it propose to take?
– The Government has not had an opportunity to examine the report which I have received from the commission in connexion with the matter mentioned; but, expressing my personal opinion, I may tell the honorable senator that the only fault I can find with the Broadcasting Commission is that it ever entertained a proposal to broadcast the address in question.
– In view of the interest which has been aroused throughout Australia in connexion with this matter, will the Loader of the Senate see that copies of the proposed address are furnished to honorable senators, so that they may judge for themselves whether the action of the Broadcasting Commission was justified or otherwise?
– If the honorable senator wishes to read the proposed address, he will find it in the columns of the Sydney Sunday Sun.
– The whole of it?
– I understand that it was published in extenso. If not, I shall see that the honorable gentleman gets a copy.
Status op Abyssinia.
– Can the Leader of the Senate outline the Government’s policy in connexion with the status of Abyssinia, a subject which is now being discussed by the Council of the League of Nations:
– The honorable senator’3 question relates to Government policy, concerning which it is not customary for individual Ministers to make statements in reply to questions.
asked the Minister representing the Minister for Defence, upon notice -
– The Minister for Defence has supplied the following answers : -
asked the Postmaster-General, upon notice -
What is the position in regard to the desired extension of trunk telephone services from Geraldton to Carnarvon and Shark Bay, Western Australia ?
– It is anticipated that the telephone connexion from Geraldton to Carnarvon and Shark Bay will be completed in about two weeks.
asked the Minister representing the Prime Minister, upon notice -
– The Prime Minister has supplied the fol- lowing answers: -
asked the Minister representing the Treasurer, upon notice -
– The Treasurer has supplied the following answers : - 1 and 2. It is regretted that the Government is unable to agree to the granting of subsidies from Commonwealth funds to these clubs or other clubs of a similar nature.
asked the Minister representing the Minister for Defence, upon notice -
– The Minister for Defence has supplied the following answers : - 1. (a) Manufacture of Respirators. - Considerable progress has been made in the manufacture of various components of service respirators by the Munitions Supply Board and civilian firms. There are now 25 firms who have orders for completion or have previously manufactured components. Under the combined programme an order for a further instalment for the fighting troops will be placed with the Munitions Supply Board, who will sub-let contracts to civilian firms. The Munitions Supply Board assembly plant is being extended accordingly.
Queensland. - A limited amount of training has been carried out.
New South Wales. - Good progress has been made in the measures for the protection of the civilian population. 343 “ key “ personnel have qualified as anti-gas instructors, and there will shortly be upwards of 6,000 civilians trained in anti-gas duties.
Victoria. - 299 “key” personnel have qualified as anti-gas instructors and 2,994 civilians have received training in anti-gas precautions.
South Australia. - Instruction has been given to members of the police, railway and St. John’s Ambulance Brigade. To date 130 police and 20 railway officials have attended courses in the use of antigas equipment.
Western Australia. - Classes of instruction, lectures and demonstrations have been held and action is being taken to organize measures for anti-gas protection.
Tasmania. - A limited amount of instruction has been given.
Federal Capital Territory. - There are two army instructors available.
South Australia. - 22 army instructors are available and qualified civilian instructors will be available in the near future.
The following papers were presented : -
Commonwealth Public Service Act - Appointments - Department of -
Interior - J. M. Fielding.
Treasury - W. R. Smart.
Superannuation Act - Fifteenth Annual Report of the Superannuation Board, year ended 30th June, 1937.
Munitions Supply Board - Report for the period 1st July, 1935, to 30th June, 1937, together with Report of Commonwealth Government Clothing Factory for the Financial years 1935-36 and 1936-37.
Lands Acquisition Act - Land acquired at Mount Eliza, Victoria - For Postal purposes.
Lands Acquisition Act - Land acquired at -
Darwin, Northern Territory - For Defence purposes.
Laverton, Victoria - For Defence purposes.
Debate resumed from the 5th May (vide page 873) on motion by Senator A. j. McLachlan -
That the bill be now read a second time.
– At the outset I wish to make it clear that I shall not oppose the passing of this bill, although I have to confess to a certain lack of conviction as to the necessity for it, and also as to the good results which are expected to follow from the re-creation of the Inter-State Commission. I do not overlook the fact that the constitutional provision for its creation is couched in mandatory terms. Section 101 of the Constitution begins “ There shall be an Inter-State Commission “, but, strange as it may seem, I find myself in agreement with the view expressed by the Leader of the Opposition (Senator Collings). The honorable gentleman did not use the term, but that provision is in fact an instance of “ a duty of imperfect obligation “. The form is mandatory; but, should this Parliament not give effect to Section 101, there is no power, whether on the part of a State, a court or an individual, to make it do so. The Leader of the Senate (Senator A. J. McLachlan), in introducing the bill, said that an Inter-State Commission is essential for the proper working of the Constitution.
– The Government has taken a long time to find that out.
– Although the Constitution has been in existence for 37 years, for only two or three years of that period has an Inter-State Commission existed. It is true that for a period of seven years some fragments of the InterState Commission created under an act passed in 1912 remained, but for nearly four of those seven years the Commission was moribund. After the High Court had delivered its judgment on the Wheat Acquisition Act of New South Wales, practically nothing was done which could come under the heading of “ operations of the Inter-State Commission “. What really happened was that, one commissioner having resigned, the others retained their positions until the expiration of the seven years for which they had been appointed.
– And drew their salaries for the whole period.
– That is not improbable. What strikes me about this subject is that, although, according to the Leader of the Senate, the existence of an Inter-State Commission is essential for the proper working of the Constitution, no one, so far as I know, has shown that we have suffered because no such body has, in fact, existed.
– Was not the secession movement in Western Australia the result of there being no InterState Commission?
– I do not know whether it was so or not, but I do know that for the last two or three years very little has been heard of the secession movement; and there is every reason to hope that we shall not hear very much of it in the future.
Reference has been made to the Inter-State Commission of the United States of America, upon which the Australian Inter-State Commission was, to some extent at least, based. It must be remembered that there is no provision in the American Constitution for the creation of such a commission. The body set up in that country was created under the commerce powers vested in the legislature. It will be generally agreed that there is likely to be greater need for an Inter-State Commission in the United States of America, because of its many self-governing States, and because practically all the railways are privately owned, than in Australia. Senator DuncanHughes compared the necessity for the creation of an Inter-State Commission with the necessity for the creation of a High Court and, indeed, of the Parliament itself. With all respect, I dissent entirely from that view. The constitution of any English-speaking country must contain three elements - first, the legislature; secondly, the executive; and, thirdly, the judicature. If the honorable senator will study the Australian Constitution, he will see that the section providing for the creation of an Inter-State Commission is couched in language entirely different from that relating to the creation of a High Court. We cannot have an Australian Constitution at all unless we have a High Court, because when the Constitution was adopted it assumed the nature of a contract between the States that came together to form the federated State. Having that contract between the States, there must be some umpire competent and empowered to say what powersbelong to the federation and whatbelong to the States. If we have not that, we have, not a federation, hut unification, because the alternative is that the central Parliament shall exercise the power of interpreting the Constitution that brought it into existence.
– Those component bodies are not exclusive of others.
– I do not suggest that they are; I am only showing the differences between the three arms of the governmental system - the executive, the legislative and the judicial. That difference is apparent in the very wording of section 101 of the Constitution, which provides that the Inter-State Commission shall have such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provision of this Constitution, relating to trade and commerce. Thus Parliament can endow the Commission with many powers or with few powers; it could constitute a body with no powers at all. Section 102, however, contains indirect evidence that a commission shall be formed, because it has the words -
But no preference or discrimination shall, within the meaning of this section, be. taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the InterState Commission.
Thus in that case Parliament is powerless to move unless it acts on a report from the Inter-State Commission.
– Does the honorable senator argue that the words in that section which he has just stressed, and which have been repeatedly the subject of consideration by the High Court, and other legal men, are non-effective or to be satisfied with any Inter-State Commission that may be appointed?
– They are noneffective in that if Parliament does not choose to pass the legislation necessary to constitute an Inter-State Commission, nobody can make it do so. And no one knew that better than did those who framed the Constitution. Reference to the Inter-State Commission as having been nominated in the bond between the States that agreed to federate, is wrong because the framers of the Constitution knew that the questions as to whether or not there should be an Inter-Stare Commission and what powers it should be given, were entirely matters for the Parliament to decide. Furthermore, I remind honorable senators that although this Parliament may be able to create an investigating body not mentioned in the Constitution, it cannot give to the Inter-State Commission powers which are not mentioned in the Constitution as being within the scope of such a body.
The Government would be well advised to study that aspect. Section 101 of the Constitution reads -
There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for thu execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.
Thus the Constitution provides for the appointment of an Inter-State Commission to deal with matters relating to trade and commerce. But it is not proposed to endow this commission with only such powers. This Government should remember that the further it endows a commission with powers which are not related to trade and commerce the further it gets away from the commission mentioned in the Constitution, and it may well happen that we shall set up a body that will not have all the powers it seems to have under the terms of the Constitution itself. The very name “ Inter-State Commission “ means a commission which is to have cognizance of interstate matters. With great respect, I submit that there is nothing of an interstate nature about grants in aid to the States or the tariff or the sugar agreement. “None of those are interstate matters in the sense in which that expression is used in the Constitution. It may be that, by suggesting that this commission shall have powers not mentioned in the Constitution, powers indeed, that seem to go outside the words of the Constitution, the Government may again set up a body whose decisions will be set aside in the courts. We cannot form an Inter-State Commission merely by calling it such, unless, in constituting it, we see that it conforms to the power given to such a commission under the Constitution. I do not deny for one moment that Parliament can set up an investigating body, such as the Commonwealth Grants Commission, in order to get the benefits resulting from its inquiries, but it may well be that when the High Court examines an Inter-State Commission constituted as the Government proposes, it will decide that it does not possess the powers with which the Government sought to endow it.
In respect of the personnel, this ‘bill differs from the measure previously considered by this chamber. Although it may be in a compartment ‘by itself, I submit that this is a matter which affect3 the whole working of the present act. The previous measure which this Senate adopted provided for a commission consisting of three members, whereas this proposes five members. I think that is a mistake. I may be wrong, but I understand that one reason for’ this increase of the personnel is to give wider State representation to the commission.
With respect, I submit that that is the very last thing the Government should do, if it seeks to create a body that is judicial; and, notwithstanding the finding of the High Court, this commission is intended to be in some respects a judicial body. Bather should we endeavour to set up a body which would be above States than risk any possibility of members of the commission being influenced by the States with which they were particularly concerned.
– Everybody represents some State.
– That is not so; a man may come from a State, but he does not necessarily represent any State. Clause 6 of the bill reads -
The commission shall consist of five members, of whom one shall have been a Justice of the High Court or a Judge of the Supreme Court of a State or have been a practising barrister or solicitor of the High Court or of the Supreme Court of a State of not less than five years’ standing.
It is also provided that the chairman shall receive a salary of £2,000 and each member a salary of £1,500, but it is not provided that the appointee who has been a justice of the High Court or a judge of the Supreme Court of a State shall be the chairman of the commission. Is it in the least likely that we shall secure the services of any gentleman of this standing at an annual salary of £1,500, to sit on this commission under a nonlegal chairman? I do not think so, and I suggest that the Government would be well advised to eliminate this provision. I was a member of the Government when the previous measure was passed by the Senate in June last. I assisted in my own way in putting that bill through, and therefore 1 do not want to say now that I shall vote, or ask honorable senators to vote, against the provisions of this bill; but I do ask them to look into those aspects of the matter which I have placed before them. I ask the Leader of the Senate particularly to do that and to consider my remarks regarding clause 6 which deals with the personnel of the proposed commission. I do not forget -that provision for the appointment of an Inter-State Commission is contained in the Constitution, nor do I forget that it was intended that an Inter-State Commission act should be placed on the statute-book. However, we have not suffered because it has not been placed on the statutebook, and I dissent from the view that we shall be failing in our duty if that is not done. The time and manner of such legislation have been left by the people to this Parliament. Although I dispute that all the good effects which have been suggested will follow the enactment of the bill, I remember that some of the States, particularly the smaller ones, may require special treatment, and [ am willing to do anything that will promote a smoother working of the Constitution. But I am opposed to the creation of any judicial body representative of the States. The body constituted should be representative of Australia as a whole. I do not propose to stultify myself by voting against this measure, which is similar to a measure in favor of which I voted only a few months ago.
Senator BROWN (Queensland) [3.34”j. - Before Senator Brennan made his interesting speech on the bill, a rumour was current that he was a candidate for n job on the Inter-State Commission, but I think now that the rumour will be scotched. There have also been rumours thai other gentlemen who are to leave the Senate after the 30th June are to be appointed members of the commission. We have yet to learn whether those rumours also are unfounded. It is the considered opinion of all intelligent people that an Inter-State Commission should not be constituted for the express purpose of finding jobs for those gentlemen who were so unfortunate as to lose their position? in the Ministry at the last election.
– I hope that the honorable senator is not associating me with anything of that kind.
– I said that it had been rumoured that the honorable senator was a candidate. After all, if a mau is capable of doing a job on the InterState Commission, or on any other commission, he may quite properly be a candidate for such a position, notwithstanding that he has been a member of the Senate.
– The fact that a man has served in this Parliament should not be a disqualification.
– I agree. But many citizens ave afraid that an Inter-State Commission is being set up for the deliberate purpose of finding jobs for some of those gentlemen who lost their seats at the last election.
– Before the lastgeneral election the honorable senator’s party in Tasmania said that the Prime Minister was to find a haven on the Inter-State Commission if he was defeated at the polls.
– I did not make that statement, nor did I hear it made. Possibly, if the Prime Minister had been defeated in his constituency, a haven would have been found for him on the Inter-State Commission. The Leader of the Senate (Senator A. J. McLachlan) made a strong point at the conclusion of bis speech regarding the Inter-State Commission being “ in the bond “. His statement reminded me of Shylock’s words in The Merchant of Venice -
My deeds upon my head ! I crave the law, The penalty and forfeit of my bond- and Portia’s reply to Shylock -
The words expressly are a pound of flesh : Then take th, bond, take thou thy pound of flesh :
But, in the cutting it, if thou dost shed One drop of christian blood, thy lands and goods
Are, by the laws of Venice, confiscate Unto the state of Venice.
I was very pleased to hear the Portia of this debate, Senator Brennan, quote from the Constitution what was in the bond which the Shylock on the treasury bench was demanding. Examining the matter, we find that the bond is limited in scope. If the Leader of the Senate is going to stand by the bond be must not go beyond the bond, just the same way that Portia called on Shylock to take his pound of flesh, but not to spill “ one drop of christian blood “ in cutting it. “With regard to that portion of the l-.Ul which was commented on by Senator Brennan, and which provides that the Commission’s powers shall be limited to those relating to trade and commerce and all laws made thereunder, I shall quote the words used by Mr. Justice (now Sir Isaac) Isaacs, in the case Huddart Parker v. Moorehead, 8 C.L.B., 386-
The powers which the Commission is to have are only such as Parliament may in its discretion confer as being in its opinion necessary to be conferred on that body for themaintenance of trade and commerce. No others are contemplated by the Constitution except those expressly given with reference to railways.
If there is in the Constitution a bond, that bond is limited in scope and we cannot go beyond it, but the bill provides that the Commission shall inquire into and report not only relative to any anomalies, preferences or discriminations alleged to exist in relation to interstate commerce, but also any matters concerning the financial relations between the Commonwealth and the States and any other matters. That provision would confer very wide powers on the Commission and would go beyond the bond contained in Section 101 of the Constitution. Honorable senators of the Opposition will be interested to hear the Leader of the Senate in reply to that argument. As Senator Brennan stated an Inter-State Commission functioned for only a few years, and persons both inside and outside of Parliament are now asking why it should be reconstituted. The Inter-State Commission Bill introduced in this chamber in June last was debated at some length, and was eventually agreed to by a majority of the Senate, hut it was not proceeded with in the House of Representatives, because an election intervened. The Government has now introduced another hill, which is practically the same, the only difference being that the number of commissioners is to be increased from three to five. If there should be another general election, and this measure should again be dropped, another bill may be introduced, in which provision will be made for a commission of seven, or perhaps ten members. Those who have a suspicious mind will naturally ask why the number of commissioners has been raised to five. As was suggested by Senator Brennan, the personnel may have been increased so that more adequate State representation may be given. That, I think, is a sound suggestion, because the States should be represented.
– That cannot be the reason, because there are six States.
– Possibly another injustice is to be inflicted upon Tasmania, and that State will not have a representative. For each State to be represented there should he a commission of six, and if the Commonwealth is to have direct representation, the number of commissioners should be increased to seven. In view of the fact that the Opposition in this chamber is to be increased to sixteen on the 1st July, this measure should not be proceeded with until the new senators have an opportunity to express their opinions of it. I know that the measure will be discussed at great length in the House of Representatives, where, I feel sure, it will have a stormy passage.
.- A bill providing for the reconstitution of the Inter-State Commission was agreed to by a majority of the Senate in June last, but I should like to comment upon several points raised during the debate on this bill. I cannot agree with the contention of Senator Brown that the measure has been introduced with the object of providing lucrative positions for defeated members of Parliament, because a similar bill was passed by this chamber long before it was known that any honorable senator would be defeated. Canards of that sort should be kept out of Australian politics. Senator Brennan stated that there is no constitutional power to compel Parliament to introduce legislation providing for the appointment of an Inter-State Commission, but it can also be said that there is no power to compel Parliament to introduce, say, a banking bill.
– There is a closer parallel. There is no power to compel the Commonwealth to establish a federal capital.
– Senator Brennan also said that experience during recent years lias shown that there is no necessity to appoint an Inter-State Commission ; but it is generally admitted that there is an increasing need for the existence of such a body to inquire into the conditions under which interstate trade and commerce are being conducted. Some States are_ deliberately discriminating against other States.
– -Did not the Commonwealth make the position worse by taking a case to the Privy Council?
– I do not think that it did. Those controlling State railways discriminate in respect of freight rates against, the produce of other States and in some instances even prohibit the carriage of the produce of other States.
– An Inter-State Commission cannot prevent that; it can only recommend.
– But the Government will be able to implement the recommendations of the commission. Some State authorities impose preferential rates up to 30 per cent, as against the produce of other States.
– An Inter-State Commission will not be able to prevent that.
– As a layman, I should say that such a body should have the power to prevent unfair discrimination in matters of interstate trade. The Sta>tes entered the federal system in the belief that there would ‘be an Australiawide federation, and that every one in Australia would have equal rights and privileges. Every year we hear complaints of increasing disabilities being suffered by some States in connexion with interstate trade and commerce. I have not altered my mind as to the necessity for the reconstitution of the InterState Commission. The passing of the bill will do much to cure many of the evils that are creeping into the national life of Australia.
– An appeal to the High Court against the recommendations of the commission would end the business.
– If one may judge from opinions of eminent lawyers who have discussed this issue during the last year or two, I have no doubt that the honorable senator could make as good a guess as the legal authorities as to the result of an appeal to the High Court in respect of matters determined by the Inter-State Commission. However, I think the time has come when we should put an end to what 1 regard as one of the outstanding dangers to the proper working of the Constitution, lt has been said that under the trade and commerce powers, the Inter-State Commission could not deal so effectively with certain matters as the Commonwealth Grants Commission has done, in recent years. .1 do not know, but I suppose that many of the subjects handled by the Inter-State Commission would be on the borderline of trade and commerce. For instance, people in Western Australia complain that the Eastern States, where the principal manufacturing industries are located, are exploiting them. and the eastern States contend that by means of the Commonwealth Grants Commission Western Australia, as one of the weaker States, receives adequate compensation. Therefore, the situation under the federation is fairly well balanced.
– If the subject to bc dealt with did not come within the trade and commerce power, the authority vested in the commission would be only the power of inquiry, not ihe power of adjudication.
– In view of the decisions of the High Court it seems to me that that is all the power which the Inter-State Commission will exercise. The Government will have to decide whether or not it will implement the recommendations made by the commission.
I entirely agree with Senator Brennan with regard to the increase of the number of commissioners from three to five, and I was waiting to hear some explanation l from the Minister as to the need for this important alteration. I should say that there would be a better prospect of securing a strong commission if the chairman, received £2,500 a year and two members each £2,000 a year, than if the chairman .were paid £2,000 and four commissioners £1,500 each. In my opinion a board of five would be cumbersome. The alteration is a blot on the bill and unless the Minister can furnish a satisfactory reason for it I shall feel inclined, when the measure is in committee, to move an amendment to reduce the number of commissioners from five to three. In the debate on the second reading of the former bill in June last,I gave my reasons for supporting the Government, so it is not necessary that I should repeat them. I agree that the Government is wise in submitting the proposal again, for I consider that the reconstitution of the Inter-State Commission is necessary to the proper development of the national life of the Commonwealth, i believe that the commission will bold the balance evenly as between the different States and the central authority. I hope, however, that the Government will not insist on a commission of five instead of three.
– When this measure was last before the Senate on the 24th June last, I gave at some length my reasons for supporting it, so I do not proprise to discuss it so comprehensively this afternoon. I see no reason to alter in any way the views which I expressed then. I have on many occasions advocated the reconstitution of the InterState Commission, but until last year my representations to successive Governments were unsuccessful. Ministers were, for the most part, unsympathetic, and sometimes hostile. I do not propose to dis-inter all these ministerial ghosts from Hansard, but I would point out that I have been consistent in supporting the bill, and that the appointment of an Inter-State Commission is provided for in the Commonwealth Constitution.
I congratulate the Government on the fact that it has at last come round to the view which many people in Western Australia have held for several years. I intend to support the broad principles of the bill, but like other speakers, I should like to know why the Government has decided, since the measure was last before Parliament, to increase the personnel of the proposed commission from three to five. The original commission was in a position to do a good deal to hold the scales of justice evenly between the various States, and no doubt it would have continued its good work had its decisions on questions relating to interstate trade not been declared unconstitutional by the High Court. That commission comprised three members only, and the act constituting it is still on the statute-book, although there has not been an Inter-State Commission since 1912. The bill introduced in June last provided for a commission of three members. That seemed to me to meet the requirements of the Constitution. However, an increase of the personnel to five has been decided upon. I should like to know the reasons for the alteration. If it can be shown that a larger tribunal will function more effectively, I shall have no objection to the increase; but I point out that a commission of five members will he much more expensive, not only as regards total salary payments, but also as regards travelling and other incidental expenses. If the commission is to do its work thoroughly, it should not confine its sittings to Canberra and the big capital cities of Sydney or Melbourne. It should visit the remote and outlying parts of the Commonwealth and acquaint itself with problems peculiar to people living in the less populous States. I also suggest that if the commission is to justify its appointment and give protection to the smaller States, it should be vested with much greater powers than ore outlined in this measure. When we were discussing the bill last year I unsuccessfully attempted to have wider powers conferred upon the commission, believing that if it was to be of real value to the weaker States, its authority should not be unduly limited. Its powers should be broad, well defined, and on a basis that would enable it to inquire into the effect of all federal laws and regulations affecting the lives ofthe people, the revenues of the various States, and the development of industries, particularly primary production. In June last, I proposed that the reconstituted commission should have all the powers that had been vested in the original tribunal, but the Government did not see its way clear to accept my amendment. Since then a federal election has been held. I was privileged to be present at meetings in Western Australia in support of United Australia party and Country party candidates who gave an assurance from the Prime Minister, which I had not received, and therefore, was not in a position to give, that when the Inter-state Commission Bill was again brought forward, it would include power to investigate the disabilities imposed upon the States by every Commonwealth law and regulation. If necessary, I am in a position to give the Leader of the Senate the name of the successful candidate who gave this assurance, which, I hope, will be honoured by the acceptance of an amendment which I propose to move at a later stage. If the commission is to he of real service, it must have conferred upon it greater powers than are contemplated in this measure, particularly in regard to the making of inquiries into the incidence of the tariff, and laws relating to navigation and arbitration. Even the most enthusiastic supporters of the Government’s tariff policy must admit that whatever its benefits may be, they must be paid for by some one. In many instances the whole of the burden is thrown upon the primary producer. I hope that the incidence of the tariff, particularly on the primary industries and the finances of the States, will be the subject of inquiry by the proposed commission, which should also report on the effect of all federal laws upon the industries of the various States. The vesting of this power in the InterState Commission is essential to the proper working of the federal machine. Under clause 18, the commission is to be authorized to inquire into and report to the Governor-General upon -
That provision does not go far enough, because it does not cover the effect of tariff legislation on the weaker States. I therefore desire to add the following sub-clause : - ba. The effect and operation of any tariff act, or other law or regulation of the Commonwealth, on primary industries, revenue, manufactures, or trade and commerce in any State or States.
An Inter-State Commission which could not inquire into the effect of the tariff on our primary industries would be of little use. That power is essential, and I hope that the Senate will agree to the amendment. The commission should also be empowered to inquire into the effect of federal laws on manufacturing industries and on the finances of the various States.
– The honorable senator would set up another parliament.
– No ; but if the commission is to be of any use to the weaker primary-producing States of the Commonwealth - Western Australia, South Australia and Tasmania - it must have these powers. If it is not to be equipped with adequate powers in these directions, what will be the use of setting it up at all? Without those powers, this legislation will be abortive, and the commission will be an expensive and unnecessary luxury.
– It will be that, anyhow.
– I want the commission, when created, to be a real defence for the weaker States of the Commonwealth. If that result cannot be achieved, why establish a commission at all ? I emphasize that I am only asking for something that was granted previously and is, in fact, the law to-day. Section 16 of the Inter-State Commission Act of 1912 provided -
The commission shall be charged with the duty of investigating, from time to time, all actions which, in the opinion of the commission, ought, in the public interest, to be investigated affecting -
It will be seen that the previous InterState Commission had the very powers which I desire shall be vested in the body to be created under this legislation. What I am asking for is desired by the people of Western Australia, if opinions expressed in the leading newspapers of that State are any guide to public opinion there. The only difference is that the old act does not specifically mention primary industries. I believe that those industries should be specifically mentioned, and I have framed my amendment accordingly.
– The honorable senator would keep the commission busy.
-Are the members of the commission to be paid £S,000 a year, and granted heavy travelling expenses, if we do not expect them to be kept busy? I do not want these positions to be sinecures for men whose only desire is to draw big salaries. I want the members of the commission to be kept busy.
– The honorable senator would be the first to criticize a report of the Inter-State Commission if it did not suit him.
– I should be the first to criticize it if its members were not kept busy. The honorable senator will agree that we ought not to appoint any tribunal which is to be sacrosanct and beyond criticism.
I cannot help thinking that we are retrogressing politically. The original act charged the commission which it set up with the duty of inquiring into the effect of the tariff and of any other legislation of the Commonwealth in regard to revenue, Australian manufactures, industries and trade generally, but the bill now before us omits the very provision which would justify the appointment of a commission. I appeal to the Government to remedy that defect, and to insert provisions which will empower the commission, when appointed, to help the primary and other industries in the weaker States. I appeal to it to honour the promise made by ministerial candidates during the recent election campaign, who said that they had the Prime Minister’s assurance that an amendment to enable inquiry into disabilities imposed on the weaker States by Federal laws would be accepted by the Government. Unfortunately, the previous Inter-State Commission Bill, after having been passed by the Senate, was not proceeded with in the House of Representatives, so that we do not know exactly how the Government intended to give effect to the Prime Minister’s promise. I protest strongly against the omission from this legislation of an important principle which was embodied in the Act of 1912. It is essential that the Inter-State Commission should have the right to make inquiries into all disabilities which may be suffered by a State as a result of federal legislation or action, particularly such restrictive legislation as high tariffs, the Navigation Act, and the legislation constituting the Federal Arbitration Court. Unless the amendment which I have forecast is agreed to, the Inter-State Commission will be another useless and expensive luxury.
In appointing an Inter-State Commission the Government is acting on one of the most important recommendations of the Royal Commission on the Constitution. That body also urged that Sections 71 and 72 of the Constitution should be amended to authorize the commission to exercise the judicial powers which the Act of 1912 sought to confer on it, but in the light of our experience with other proposals to amend the Constitution T do not know that I can urge that the recommendation of the commission in this respect be proceeded with. I should like to refer briefly to the report of that royal commission in so far as it relates to the re-appointment of the Inter-State Commission, and the powers that should be vested in it.
– Does the honorable senator suggest merely that the commission shall have power to investigate and recommend ?
– Yes ; that is all that it can do. Of course, I should like to see the Constitution amended, as was suggested by the royal commission, so that the Inter-State Commission could exercise judicial powers.
– Then we should merely reach the stage at which the commission would recommend to the Parliament. That is exactly where we are today. There is no power to force the Parliament to do anything.
– That is also the position in regard to any other recommendation which the commission might make. If the honorable senator were to use that argument against appointing an Inter-State Commission at all, I could see the force of it, but I cannot see any logic in an argument which supports the creation of the commission but does not give to it the power to inquire into these important matters which affect the weaker States. On page 201 of the Report of the Royal Commission that body referred particularly to the effect on the States of the tariff and the operation of the Navigation Act and of awards of the Federal Arbitration Court. The distinguished gentlemen who constituted that royal commission included Sir John Peden, Sir Hal Colebatch, Mr. Duffy, Mr. Mac.Namara, and other eminent economists and jurists. As to the effect of the tariff, the Navigation Act, and awards of the Federal Arbitration Court, the royal commission reported -
In the States of Western Australia, Tasmania and South Australia, evidence of witnesses who complained that the working of Federation had bean disadvantageous to those States was directed more particularly to the effect of the Tariff, of the Navigation Act, and, to a lesser degree, of Federal Arbitration Awards. ft was alleged that the tariff bore hardly on those States which depended mainly on primary production and did not include any large cities snob as Sydney or Melbourne: that it increased the cost of production in unsheltered industries which have to compete in the markets of the world, and that the tariff did not confer the same compensating benefits in those States a-s it did in Victoria and New South Wales.
What objection can the Government have to the Inter-State Commission being authorized to inquire into matters of that nature, which have already received attention by the royal commission ?
– There are many difficulties. How does the honorable senator propose to overcome them?
– They could be overcome by adopting the report of a previous royal commission which inquired into the effect of federation on Western Australia and recommended that, for a period of 25 years, that State should be empowered to impose its own customs tariff. Although it might involve an alteration of the Constitution, that is one means by which this obstacle could be removed. If that is not acceptable, however, it will be the duty of the proposed Inter-State Commission to make other suggestions for this purpose. It may, possibly, suggest that monetary grants should be made, not only to the governments of the States, but also to the people engaged in primary industries in order to compensate them for the disadvantages they suffer as the result of Commonwealth tariff policy.
The report of the royal commission continued - lt was alleged that the Navigation Act bore hardly on States which depend on interstate transport over long distances, that it had deprived producers of many necessary facilities, and that it had borne particularly hardly on Tasmania, a State of which the exports are greater than the total volume of its production, and which looks to the tourist traffic for a substantial revenue. Of the Arbitration Court awards it was said that they set the same standard for all States, and a standard which a State accustomed to a low standard of expenditure would not have set up for itself.
Evidence on these points, accompanied by a very careful analysis of the relevant figures, was put before the commission by Professor Brigden, then Professor of Economics in the University of Tasmania, and Professor Giblin, now Ritchie Professor of Economics in the University of Melbourne, and then a Deputy Federal Statistician. The conclusion reached by these witnesses is substantially identical with that of the British Economic Mission (7th January, 1929, page 13) - “ We may say that we have been strongly disposed to the view that the combined operation of the tariff and of the Arbitration Acts has raised costs to a. level which lias laid an excessive and, possibly, even a dangerous load upon the unsheltered primary industries, which, having to sell in the world’s markets, cannot pass on the burden to other sections of the Australian community, and consequently as between the various States upon those, notably Western Australia, South Australia and Tasmania, which are poor in manufactures, and are principally concerned with primary productions.”
I emphasize that this royal commission, the British Economic Commission, and the five economists appointed by the Bruce-Page Government to inquire into the effect of Australian tariff policy, have each presented the same story as to the burdens carried, principally by Western Australia and, to a lesser degree, by South Australia and Tasmania. Other legislation framed in accordance with the policy of the National Government may also operate to the disadvantage of some of the States, and for this reason I suggest that we should retain in legislation of this kind the provision which was adopted in this connexion when the first Inter-State Commission was appointed. This report continued -
These States, and Tasmania probably most nf all. are further handicapped by the high cost of freight in interstate trade, which results from the operation of the Navigation Acts, along with the other causes which we have mentioned. “We are aware that the disabilities under which these States suffer are recognized by the
Commonwealth Government, and that substantial subsidies are paid by the Commonwealth to Tasmania and Western Australia, while the question of granting a similar subsidy to South Australia is under consideration; these subsidies, however, can only be regarded as palliatives of a system in which there is something amiss. “
– Was that part of the report decided upon unanimously?
– I do not think so; it was the majority report. I refer the honorable senator to pages 243-47 of the report. I emphasize that the majority report of the commission recommended that the InterState Commission be reconstituted. As a matter of fact, I contend that such a recommendation should not be necessary at all. Several of the States are compelled to bear unfair burdens under many provisions of the Constitution, and I suggest that not the least of these, particularly in the case of the weaker States, is the expenditure incurred in the establishment of the Federal Capital. Western Australia certainly cannot afford to bear its share of that expenditure. I point out that whenever Western Australia is suffering severely as the result of federal policy we never hear of any section of the Constitution being left in abeyance in order to ease that State’s troubles. Now we have an opportunity to endow the proposed Inter-State Commission with adequate powers to ensure that Western Australia will be given justice.
– Have not the representatives of Western Australia placed all these matters before the Commonwealth Grants Commission?
– I hope that when the Inter-State Commission is constituted its members will not include any person who has expressed hostility towards the claims of Western Australia, as has the chairman of the Commonwealth Grants Commission. The proposed InterState Commission should be a very great improvement upon the Commonwealth Grants Commission so far as the disbursements of grants in aid to the States are concerned. While I say that, however, I take this opportunity to express my appreciation of the fact that the smaller States have received at least some measure of justice from the latter body. I might also mention that whilst mem bers of the Commonwealth Grants Commission in the past have included men who might be regarded as representatives of Tasmania and South Australia, no Western Australian has sat on that commission. I hope that the omission will be remedied, and that the personnel of the proposed Inter-State Commission will be acceptable to the people of Western Australia. It should include a resident of Western Australia who isa primary producer. 1 wish now to refer to Part IV. of the bill which deals with interstate traffic. Clause 21 states -
– Such a provision is very necessary.
– I agree, but I cannot sec why the powers of the commission should be limited to supervision in respect of only State railways, particularly when it is realized that the Commonwealth railways are the worst offenders so far as competitive rates of freights are concerned. This is particularly the case on the railway from Port Augusta to Kalgoorlie. Clause 23 of the bill reads -
– (1.) The commission may commence an investigation of any alleged contravention of the provisions of this part either of its own motion or on the complaint of any of the following authorities, that is to say -
I would support that provision provided that it covered the whole of our railways, including those controlled by the Commonwealth Government. There may be some special reason why the proposed commission should be empowered to exercise this control over railway freights in the eastern States, ‘but what is sauce for the goose is sauce for the gander, and I cannot see why this investigation should be confined to Stateowned railways and no opportunity given the people to benefit from a similar investigation of anomalies existing on Commonwealth railways. Let us be fair in this matter. What is just and reasonable for the State railways should be equally just and reasonable for the Commonwealth railways. On this occasion again, however, we have the usual proposal to allow the Commonwealth railways to continue to do what they like and remain above any investigation by a body of this nature.
– After all, the commission will only be asked to report on the matter.
– Yes, but are we to lay it down that the Commonwealth railways are run so much better than the State railways that they are above investigation? Whilst the State railways may be efficiently and economically managed, no inquiry at all is to be permitted into the freight rates and bureaucratic control of Commonwealth railways. The Federal Commissioner of Railways is empowered by Act of Parliament to make agreements in regard to the carriage to Western’ Australia and other States of goods which compete unfairly with the established industries and the primary products of those States. I want all the railways in Australia to be placed on the same basis in relation to investigation by the proposed tribunal. I do not think it proper that the Government should bring in a bill providing in clause after clause machinery directed only against efficiently managed State railways. The competitive rates on the Commonwealth railways, and particularly on the transcontinental line, should be brought under the same review as the freight rates on the State railways.
– What is the complaint in relation to Western Australia?
– Briefly the complaint in Western Australia is that when the markets of the eastern
States are glutted, the fat stock and other products and manufactures of those States are carried on the Commonwealth railways at axle grease rates to the Kalgoorlie market, while goods which cannot be produced in Western Australia are charged high rates of freight over that railway to the goldfields markets. I recall the eloquent way in which Senator Allan MacDonald directed attention to this unfair competition when a bill similar to this was before the House last year. The bill sets up machinery which will promote unjust competition on the Commonwealth ‘ railways against the State railways, and I think that the Commonwealth railways should be subject to the same investigation as the State railways.
– Are the freight rates from Port Augusta to Kalgoorlie less than those from Kalgoorlie to Port Augusta?
– The honorable senator’s question suggests the position adopted by the Commonwealth railways when called upon to explain the carriage of Melbourne goods to Kalgoorlie at axle grease rates. They say that they would carry back goods to Port Augusta from Kalgoorlie at tho same rates, but they know that Kalgoorlie is not a manufacturing centre, nor does it produce fruit and vegetables. I believe that that is the only argument that the Commissioner for Railways advances when he is asked to explain the low freight rates on the transcontinental line which extend preferential treatment to established industries in Melbourne and Adelaide. No doubt the Government will appreciate the justice of ray claim when I move an amendment to give the Inter-State Commission exactly the same power over the Commonwealth railways and their freight rates as is proposed to be given to it in relation to State railways.
– The honorable senator does not suggest that the Commonwealth railways are not managed efficiently ?
– No, but my proposed amendment does not suggest that the State railways are not efficiently managed. In the event of complaints being made of preferential freight rates on the Commonwealth railways, those railways should he subject to the same review as the State railways; what is sauce for the State goose should h>.> sauce for the Commonwealth gander. I intend to support the second reading of the bill and I hope that the measure when enacted will be of great benefit to Australia.
.- I supported the previous bill providing for the appointment of an Inter-State Commission, but since then I have changed my mind on the subject. The previous bill provided for a commission of three members ; the Government is now proposing a commission of five. The alteration is one reason for my intention to vote against the hill. Another is that I am convinced that the proposed commission will meet the same fate as did the Inter-State Commission established years ago. A recommendation of the commission will be challenged in the High Court and the verdict will go in all probability against the commission. It is certain that if the commission makes any recommendation except in regard to interstate trade and commerce, it will be challenged and the High Court will upset it. Section 101 of the Constitution provides that there shall be an Inter-State Commission with such powers as Parliament deems necessary for the execution and maintenance “within the Commonwealth of the provisions of the Constitution relating to trade and commerce and of all laws made thereunder. Under the terms of the bill, the members of the commission are to be appointed for seven years. Honorable senators are aware that, after the judgment of the High Court on the Wheat Acquisition Act, the former Inter-State Commission continued in existence for four years, but did not function, although the salaries and travelling expenses of its members had to be paid during the seven years of its existence. Something like that might occur in the case of the proposed commission. The work in relation to Commonwealth grants, which it is proposed under the bill to transfer to the Inter-State Commission, is performed now by the Commonwealth Grants Commission satisfactorily and inexpensively, and its recommendations in regard to grants to the smaller States have been accepted by the Government. It has also been suggested that the Inter-State Commission might deal with tariff matters. Why should it deal with the tariff when we have a Tariff Board concerning the work of which I have heard no complaint ? Honorable senators have been informed that the proposed Inter-State Commission cannot be given judicial or executive powers; its duty will be to make recommendations only. That is a very expensive way of obtaining recommendations. Then the appointment of the commission will probably lead to the establishment of a new department, which would need office accommodation for its officials, and probably another block of buildings would have to be erected in Canberra.
– The State Grants Commission has power only to make recommendations, and there is no department attached to it.
– It makes its recommendations at small cost and there is no huge department attached to it, but the members of that commission are not appointed for a term of seven years. For some time, they have been appointed almost from month to month.
– It is not a very satisfactory arrangement.
– Would it be satisfactory if the members of the InterState Commission drew salaries for years without doing any work, as happened with the original commission?
– The Minister in charge of the bill said that the members of the proposed new commission will have to work 24 hours a day.
– I think that the appointment of the commission will be a waste of money. What reason has been given by the Minister in charge of the bill for the proposed increase of the number of members of the commission from three to five? I note that clause 6 provides that one member shall have been a justice of the High Court or a Supreme Court judge.
– He may be, but the clause must be read in its entirety.
– The clause reads -
The commission shall consist of five meinhers, of whom one shall have been a justice of the High Court or a judge of the Supreme Court of a State or have been a practising barrister or solicitor of the High Court or of the Supreme Court of a State of not less than live years’ standing.
– There is some doubt whether a judge is a barrister.
– That is a legal question, and I shall not attempt to answer it. The Minister in charge of the bill quoted in his secondr eliding speech a statement made by. the late Sir John Quick, that - - One of the main arguments for Australian federation was the desirability of establishing a system of free trade and commerce between the Australian communities. “ I was amused, because, only recently, the Commonwealth Government sent the Attorney-General to London to argue that matter at great length before the Privy Council, lt claimed that freetrade and commerce did- not mean what Sir rolin Quick said it did. but meant something entirely different. I was pleased when the Attorney-General failed to persuade the Privy Council to adopt the Government’s argument. The Privy Council took the view that Section 92 of the Constitution was so clear in its wording that there could be no doubt as to its meaning, and therefore, the verdict was given against the Commonwealth Government. Yet, we have been told by the Minister in charge of the bill that the proposed commission will perform a useful function in maintaining freedom of trade between the States. As I said, I do not agree with the Ministry’s proposals, as contained in the bill, and therefore, I must vote against the second reading.
Senator Sir GEORGE PEARCE (Western Australia) [4.50]. - .Some honorable senators have asked what has prompted the introduction of this bill. If they will look back over federal history they will find that the idea of resuscitating the Inter-State Commission practically originated in the secession movement in Western Australia. It was because of that movement and the trouble which it caused, that the Prime Minister (Mr. Lyons) made a public promise that the Inter-State Commission would be revived, and that pronouncement gave a considerable amount of satisfaction in Western Australia. Rightly or wrongly, it is believed by the people of Western Australia that an Interestate Commission will be a means of rectifying some of the disabilities from which that State is suffering. I would say to the representatives of the more populous States, some of whom are being urged to vote against the bill, that they will be taking a heavy responsibility upon themselves if they oppose it. Although I have always been against secession - I do not believe it would be in the interests of Western Australia - I know that the movement is not dead, and one thing that would help to make it active again would be the rejection of this bill by the votes of representatives of the more populous States. The people in the smaller States do believe that an Inter-State Commission would do something to rectify their grievances. 1 would also put this to the Senate: If experience demonstrates that the InterState Commission’s constitutional powers are too limited, that knowledge will go a long way towards securing an amendment of the Constitution to give the Commission the powers it ought to have. But I think that the Inter-State Commission will have considerable powers.
Certain references have been made to the litigation that occurred under section 92 of the Constitution, but there is another section which has to a large extent been quiescent, because an InterState Commission has not been in existence many years. I should like to hear a judicial interpretation of the powers conferred under section 101 of the Constitution which reads -
There shall be an Inter-State Commission, with such powers of adjudication and administration-
Mark the words “ and administration” - as the Parliament deems necessary for the execution and maintenance, within that Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.
Cursorily reading that section, most persons jump to the conclusion that the reference to “ all laws made thereunder “ means the laws made by the Commonwealth. But does it ? “ All laws made thereunder “ can include all laws made by the States relating to interstate trade and commerce. Some of the dissatisfaction which has arisen recently, at any rate that referred to by Senator Leckie, has been due, not to laws made by the Commonwealth, but to State laws and regulations. But they are laws and regulations “ relating to trade and commerce as specified by this Constitution. That is where section 92 plays upon section 101. Senator Grant referred to the judgment of the Privy Council in the James case, but that judgment was that trade and commerce between the States should be absolutely free. I ask Senator Grant if it is absolutely free to-day?
– No, but it should be.
Senator Sir GEORGE PEARCE.What laws are interfering with the freedom of interstate trade? Is it. not a fact that State laws and State regulations are responsible?
– Not always.
– The laws to which I am referring are those mentioned by Senator Leckie, which are clearly State laws and regulations, and yet they affect interstate trade and commerce, which the Constitution declares shall be absolutely free. That has been clearly demonstrated by the judgment of the Privy Council to which Senator Grant referred. Here is an interesting field for an Inter-State Commission to explore. Perhaps there is latent a power that would be capable of adjusting some of the difficulties that have arisen from the conflicting laws of the States dealing with the question of interstate trade and commerce, especially in relation to transport. Whilst it is quite true that if the Inter-State Commission were to adjudicate upon any subject, that adjudication would- be subject to an appeal to the High Court, I am sure that Senator Brennan or any other lawyer will say that a recommendation of the InterState Commission could not be appealed against.
– But a recommendation of the commission could be implemented by the Government.
Senator Sir GEORGE PEARCE.If it were implemented by legislation, an appeal would lie against such a law, but a recommendation of the InterState Commission could not be appealed against.
– Nor can recommendations of the Commonwealth Grants Commission.
– Exactly. One of the functions clearly contemplated for the Inter-State Commission is contained in clause 18, paragraph g:-
The commission shall inquire into and report to the Governor-General upon - any other matters whether related to any manor specified in the preceding paragraphs of this section or not, which the GovernorGeneral refers to the commission.
Some reference has been made to the probable cost of the proposed commission. I ask honorable senators to look up the records and find out how many royal commissions have been appointed during the last twelve years, and what they have cost.
– There have been thousands.
Senator Sir GEORGE PEARCE.No, not that many, but they have cost thousands of pounds. I think that the Wheat Commission alone cost between £20,000 and £30,000.
– It was a waste of money.
Senator Sir GEORGE PEARCE.Whether it was or was not, it was a costly commission.
– It is a pity that effect has not been given to some of its recommendations.
Senator Sir GEORGE PEARCE.Effect has been given to some, but that is not the point with which I am dealing. The appointment of a body such as is proposed in the bill would render unnecessary in future the appointment of royal commissions because the matters upon which the Government wanted information or guidance could be referred to the Inter-State Commission, which would be a standing authority and have on its staff trained investigators. Therefore, the Liter-State Commission would be less costly than a series of royal commissions. It appears that Senator Grant has now changed his mind, but his reasons for so doing are not substantial, because when a similar bill was before us on a previous occasion, the scope of the Inter-State Commission was just as well known as it is now. It was then known that it could not adjudicate and could make only recommendations, and that such recommendations could not be made the subject of an appeal to the High Court. That position is not changed. I am not sure that if the commission made a recommendation in regard to interstate trade and commerce, there is not a power in the Constitution that has not yet been exercised. I refer honorable senators to section 102, which reads -
The Parliament may by any law with respect to trade or commerce, forbid, as to railways, any preference or discrimination by any State . . .
The Parliament - that means the Federal Parliament - may forbid any preference under State laws or by State instrumentalities, but it cannot do so to-day for the simple reason that a later portion of section 102 provides - . . But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State unless so adjudged by the InterState Commission.
It appears to me as a layman that if an Inter-State Commission be constituted and a charge of discrimination were made to the commission and it found the charge proved, the Commonwealth Parliament could by law forbid discrimination, and therefore could by law regulate to that extent State railway policy. Surely that is an important power in safeguarding interstate freetrade, to which Senator Leckie referred. Senator Johnston mentioned the power contained in the original Inter-State Commission Act in respect of tariffs that is not embodied in this measure. There is a good reason for the omission. That power, fully expressed, is already provided for in the Tariff Board Act. In 1905, when the original Inter-State Commission Act was passed, there was no Tariff Board, but an act providing for such a board has since been passed by Parliament, and that board is functioning. The Tariff Board is doing what the Inter-State Commission would have done had it been functioning as a tariff board under the original act.
– The honorable senator is quite mistaken; that is not the power at all.
– It is. It is a complete power, but the honorable senator’s amendment is not on all fours with the powers contained in the original act. The power which the honorable senator seeks to confer by his amendment is already in the bill. There is no limitation of any kind upon the Inter-State Commission as to what it may consider when dealing with subjects which are properly within its jurisdiction. If it is a grant to a State, or a disability of a State, it can take into consideration the tariff and everything else affecting, say, the primary and secondary industries. Therefore, it is not necessary to express this power in the way that Senator Johnston proposes.
I should now like to deal briefly witH the non-inclusion in the bill of Commonwealth railways. If honorable senators will refer to the bill they will see that clauses 21 and 22 are simply a repetition of sections of the Constitution dealing with interstate traffic. Nothing that wo can do can add to, or take away from, our power in that regard. If we include the Commonwealth railways, we do not add to, or take away from, our power under the Constitution. The Commonwealth railways are a- Commonwealth instrumentality, and if the Commonwealth Government desires that they be inquired into, it can itself refer them to the commission. This is not set out in the Constitution, because its framers knew quite well that the time would arrive when the Commonwealth would have railways, and mention of them would be mere surplusage. The position had to be expressed in respect of State railways, and the extension of this power to Commonwealth railways follows by implication. The Commonwealth can bring its railways under the review of the Interestate Commission for any purpose it desired, even to the extent of management. Therefore, it is not necessary to put a patch on the bill in order to bring Commonwealth railways within the scope of the Inter-State Commission.
– I would not have risen to speak on the second reading of this bill, but for the fact that the Constitution has been cited as making mandatory the appointment of an Inter-State Commission. Section 101 has been quoted by some honorable senators, and special emphasis has been placed upon the word “ shall “. I hare not any doubt that the framers of the Constitution made it obligatory upon this Parliament to appoint a commission, and equally obligatory is the duty to confer judicial powers upon that body. But the High Court has ruled that Parliament has not authority to confer judicial powers upon the Inter-State Commission. That being the case, there is no obligation on Parliament to appoint such a body. That does not mean, however, that there is no justification for the reconstitution of the commission; it means, in my opinion, that the reconstitution is optional. I believe that there is ample scope for such a body, acting in an advisory capacity, and that” the work which it could do would justify its appointment.
The framers of the Constitution, having in mind the provision made for the appointment of an Interestate Commission, did not envisage the establishment of a tariff board, a grants commission or the innumerable royal commissions that have been appointed from time to time to inquire into matters which would be within the competence of an InterState Commission. I should like to know if, in the event of the hill being passed, the necessity for the appointment of royal commissions or other boards of inquiry will be obviated in future. During the last few years many such bodies have been appointed by successive Commonwealth governments, and have cost probably more than £100,000. If this aspect of the bill has not been brought before Cabinet I hope that it will, so that those honorable senators who are inclined to support the measure may do so in the knowledge that the Interstate Commission will do all the work which, in recent years, has been delegated to various tribunals whose investigations have, in so many instances, been futile. I intend to support the bill because I believe that there is ample work for it to do, and also because I hope that the reconstitution of the Inter-State Commission will render unnecessary the appointment of royal commissions and other similar bodies.
– One would infer from the remarks of some honorable senators, that by bringing in this bill to appoint a commission without vesting it with judicial power, the Government was adopting some new procedure. Successive parliaments have found it necessary to approve the appointment of royal commissions and other tribunals to inquire into and report upon different matters affecting the well-being of the Commonwealth. Members of Parliament may have the necessary knowledge to make these investigations, but they cannot always spare the time from their legislative duties. Sometimes commissions have included active members of Parliament; sometimes they have consisted of private individuals possessing special qualifications, but on almost every occasion there have been protests from the general public regarding the cost of such investigations. Occasionally sinister motives are attributed to Parliament. In connexion with this bill for instance, there has been the suggestion that the intention of the Government is to provide work for worn-out politicians who have become disqualified from continuing their services to this country in a representative capacity. Such criticism does not carry weight with me. Members of Parliament, in the aggregate, compare quite favorably with any other body of citizens, and I believe that all governments, whatever their political colour, are prompted by a desire to further the interests of the people. Although I have disagreed with some governments on matters of policy, I have always given them credit for honesty of purpose in connexion with legislation. There may be some difference of opinion as to the necessity for the appointment of some of the tribunals that have been set up since the inauguration of the Commonwealth, but there can be no ground for controversy as to the necessity for the reconstitution of the Inter-State Commission, because the Commonwealth Constitution enacts that “ There shall be an InterState Commission”. Members of this Parliament are elected on the distinct understanding that they will uphold the Constitution. So zealous are the people - sometimes I have thought they were over zealous - in maintaining the Constitution inviolate, that, with few exceptions, the referendums submitted for alterations of the Constitution have been rejected.
A few days ago, Senator DuncanHughes read to the Senate a number of extracts from speeches delivered by the framers of the Constitution at the Melbourne convention when it was considering the provision relating to the appointment of an Inter-State Commission. He cited the views of many eminent constitutional authorities, some of whom were known personally to many honorable senators. In my opinion the arguments used were sound and convincing, but it appears to me to be a waste of time for the Senate, nearly 40 years after the inauguration of the Commonwealth, to try to discover what was in the minds of the framers of the Constitution. I say this because many of those statesmen were known to me personally and I honoured them for the part which they played in drafting the Constitution; but I make bold to say that if they were now called upon to frame a Constitution that would meet the requirements of the people of to-day, some of its provisions would be cast on different lines. I cannot, by any stretch of the imagination, believe that if the people of 1900 could have foreseen the many anomalies that would arise in the working of the Constitution, they would have been satisfied with the instrument which they then accepted. Part II. of the bill deals with the constitution of the commission, Part III. with the range of its investigations, and Part IV. with interstate traffic and commerce. The bill which we discussed in June last made provision for a commission of three members. In the measure now before the Senate the number of commissioners is increased to five. In my opinion this proposed increase is justifiable. I believe that a commission of five would be able to divide its forces for the purpose of taking evidence, and thus expedite its investigations of problems affecting the States and the Commonwealth.
– The originalHigh Court comprised three members. Subsequently, the number was increased to five, and later to seven.
– That is so. The bill also states that one member of the commission shall be a High Court judge, a Supreme Court judge, or a practising barrister or solicitor of not less than five years’ standing. The member possessing legal qualifications will not necessarily be the chairman, but I should like to see definite provision in the bill that he shall not be the chairman, for, although I appreciate the value of a judicial mind on the commission, I believe that the chairman should have a much wider knowledge of trade and commerce than could be expected of any judge or barrister.
Clause 18 contains the provisions authorizing the commission to inquire into interstate trade and commerce. As this subject is first mentioned among the duties of the commission, it follows that the chairman should be a man with a wide experience of trade and commerce.
– It is an insult to expect a member with judicial qualifications to accept a position at £1,500 a year in a judicial inquiry under a layman.
Senator JAMES McLACHLAN.Senator Brennan said this afternoon that it would be impossible to get a suitable legal man to accept membership of the commission at the salary named. He may be right, but I could name barristers who have been practising, not for five years, but for 25 years, and who would be glad of the chance of appointment. The
Constitution enacts that members of the commission shall be appointed for a term of seven years. I know that, without an amendment of the Constitution, there can be no variation of the term; but, if it were possible, I should prefer the chairman to be appointed for six years, one-half of the members to retire every three years, but be eligible for reappointment.
The Government proposes to increase the total allocation for salaries from £6,500 to £8,000. I do not find very much fault with that, although I think that, suitable appointees could be secured without increasing the sum total of the allocation. In this connexion I should be glad if the Minister, when replying to the debate, could inform the Senate of the total cost, since ito appointment, of the Commonwealth Grants Commission, exclusive of clerical work. lt is most desirable that there should be a free flow of trade and commerce between the States on an equitable basis, but 1 consider that, if all the State3 and the Commonwealth Parliament are in agreement upon any matter relating to interstate trade, it should be competent for the legislatures to enact a law that would be unassailable. I hope that the investigations of the Inter-State Commission will make clear to the people of Australia many of the anomalies that have arisen iti the working of the Constitution, and that we shall not again be treated to the sorry spectacle of laws passed by all the States, and implemented by the Commonwealth, being declared unconstitutional by the Privy Council.
An honorable senator from Western Australia said that he would like a homeconsumption price fixed for wheat. That is the desire of every person in the community who knows anything about the trials of the primary producers. But so long as the Constitution remains as it is to-day, there will be no hope of getting a home consumption price for wheat or any other primary product. I am, however, hopeful that as the commission goes about the country gathering evidence, it will awaken the people of Australia to a realization of the need to amend the Constitution in order to provide a home consumption price for primary products, thereby enabling the producers to take their proper place as citizens in the community.
The enactment of this legislation will mean the passing of the Commonwealth Grants Commission. As a representative of one of the weaker States, I wish to place on record my appreciation of the work of that body. We have not always agreed with its findings, but its mast severe critic must admit that the commission has been unbiassed, and his given good reason for all its decisions.
Transport problems are engaging the minds of the Commonwealth and State authorities. They are among the biggest internal problems confronting us to-day.
In this connexion I wish to refer to the railway services of the several States. In my opinion, section 92 of the Constitution, which provides that trade between the States shall be absolutely free, is being contravened because of the way in which freights are manipulated. In order to obtain trade, trains are sometimes run at a loss. In this connexion, South Australia suffers considerably as a result of the actions of the railway authorities of New South Wales and Victoria. As an instance of what is taking place, 1 mention that whereas in the past, wool from the country served by the River Darling was conveyed by river to Morgan, in South Australia, and thence to Adelaide by train, it is now unloaded from the river vessels at Mildura and sent to the Melbourne market by rail. The Victorian railway authorities carry that wool from Mildura to Melbourne, a distance of about 340 miles, for little more than the South Australian railway authorities can economically transport it 100 miles from Morgan to Adelaide. The same thing is happening with the Broken Hill trade, and on the railway which connects Mount Gambier with Victorian stations. This is a matter to which the commission, when appointed, should give attention.
The machinery provisions of this bill are similar to those of other measures of a like nature. Minor alterations will probably be found necessary from time to time, and these can be made as required. In his opening speech the Minister said -
By tins means, investigations will be co-ordinated, and with the passage of the years, the members of the investigating body will acquire valuable knowledge of the scope anil purpose of the Constitution.
I hope that it is not intended to appoint men who will have to go out searching for knowledge. I realize that, as a result of the inquiries which the commission will undertake, its members will gain more knowledge, hut it is to be hoped that only men well acquainted with the trade and commerce of this country will be appointed to it. We do not want any tyros on the commission, nor should we have to train its members. Trained men able to undertake this work are available in Australia. I hope that, in addition to the barrister for which this bill provides, the commission will comprise men with sound commercial knowledge, who know this country and its requirements. At least one of them should have an intimate knowledge of primary production. As a representative of one of the weaker States, I welcome this legislation, which I believe will be beneficial to Australia.
– I have no intention to cast a silent vote on this bill. I am opposed to it because, in my opinion, it will not confer upon the people of the weaker States any material advantage. Reference has been made to the secession movement in Western Australia, and to the Prime Minister’s promise to introduce a measure such as this. I can assure the Senate that the people of Western Australia who voted for secession will not be satisfied that the passing of this bill will remedy the disabilities which that State suffers under federation. I am opposed to this bill for the further reason that the matters proposed to be dealt with by the commission can just as well be handled by the officers of the various departments of the Commonwealth. They are quite capable of advising the Government in regard to the measures necessary to deal with trade and commerce between the States. The financial relations of the Commonwealth and the States, particularly the granting of financial assistance to the weaker States, has been thoroughly dealt with by the Commonwealth Grants Commission. Without appointing an Inter-State Commission, the Government can obtain all the advice necessary to enable it to arrive at definite conclusions as to the measure of financial assistance required by the several States. This is a matter for the Government itself. I can assure the Senate that the people of the weaker States will not be satisfied with the appointment of an Inter-State Commission, merely in order that any effort on their part to obtain immediate redress for their disabilities may be circumvented. The great mass of the electors of Western Australia do not want these issues shelved by the simple act of referring them to an Inter-State Commission. They want them cleared up as early as possible.
Senator Johnston referred to the disability suffered by Western Australia because of the preferential rates granted by the Commonwealth railways. That matter can be remedied by the Commonwealth Railways Department if the Government will issue the necessary instructions.
– The honorable senator is optimistic.
– I may be, but I maintain that there is no reason to appoint an Inter-State Commission to remedy that disability. The people of Western Australia, who are affected, want immediate action taken. They will not be satisfied to have this complaint referred to a body which will take evidence from numerous witnesses before arriving at a decision. It is time that the Government accepted the full responsibility for the government of the Commonwealth. Problems must be tackled and remedial legislation passed if justice is to be done. I shall not repeat what has already been said regarding the history of the previous Inter-State Commission. If, however, it is thought that the commission to be appointed under this legislation should have the judicial powers which the act of 1912 sought to confer upon its predecessor, the only thing to do is to ask the electors for the necessary amendment of the Constitution. The proposal to establish a commission which is empowered only to make inquiries and issue reports, provides for a procedure which will be far too tedious. It will not satisfy the people who ask for immediate action. As a representative of one of the smaller States, I say that action to remove State disabilities is long overdue. In fact, the people of Western Australia have been rather puzzled as to what additional information this and preceding Governments required before they could set about remedying the complaints of the smaller States arising out of the operation of federal policy. At the recent general elections, I made my position clear, so far as this proposal is concerned, to the people of Western Australia and I am here as a representative of that State to repeat the view3 I then expressed. We of the Opposition may have an opportunity in the near future to achieve our desire in this matter, but for the present the numbers are up and I have no doubt that this measure will be carried. However, I shall not support it.
. - in reply - The debate on this measure has been interesting and, in some respects, instructive. At the outset, I should like to clear the air regarding the statement made by certain honorable senators that the Government rushed this measure through last year and is now endeavouring to do so again. On that point I need do no more than quote from the policy speech delivered by the Prime Minister in 1934, when he said that the Commonwealth Government had come to the conclusion that there was a real necessity for an Inter-State Commission as a working part of the Federal Constitution, and added -
Although under the High Court Judgment referred to it would have no judicial power, yet, by investigation and recommendation, implemented if necessary by legislation, much friction and irritation arising from these matters might he removed.
That promise by the Prime Minister disposes of the suggestion that this measure has been introduced at the eleventh hour.
I propose to deal at some length with the combined arguments of Senator Brennan and the Leader of the Opposition (Senator Collings). Senator Brennan said that section 101 of the Constitution represented a duty of imperfect obligation, and suggested that, although it imposed an obligation as part of the bond made with the people of Australia, and particularly the .people of the smaller States, no one has power to compel Parliament to legislate in this direction. That is self-evident, but the point to he considered here is that the conscience of the people of this country would not he satisfied if a chamber of this kind, representing more particularly State interests in the federation, were not to implement something which was solemnly promised as a part of the machinery set up to do justice as between State and State and as between the Commonwealth and the States. I shall not describe that argument as immoral; rather i3 it unmoral to suggest that this Parliament should be so recreant to the trust reposed in it.
– It has been recreant to that trust for a good number of years.
– And the honorable senator apparently believes that it should continue to be recreant to that trust. The smaller States, one of which the honorable senator represents in this chamber, have everything to gain by an even-balancing of the Constitution. Too long has the Federal Parliament neglected its duty in this regard, and the obligation which was imposed upon it by the people of this country in an effort to get a certain amount of justice as between State and State, and particularly as between the Commonwealth and the States. The people of Australia are prepared to accept the ruling of our judicial tribunals ; that is part of our British constitutional system. I should like to draw the attention of honorable senators to the language that was used by even some of those distinguished gentlemen .who constituted the High Court when it held that, owing to the limitation of the period of appointment of members of the commission to seven years, the commission could have no judicial power. I shall be bold enough to say that if it were necessary to attack that decision to-day in the light of some of the more recent decisions of the High Court, we might find that it would not run along the same lines. When dealing with the history of this matter, Senator Duncan-Hughes pointed out that the High Court’s decision was only a majority decision. Although some of the Judges held that unless its members had life appointment the commission could have no judicial power, every one of them, I think, expressed the view that the appointment of an Inter-State Commission was mandatory on this Parliament. To that Senator Brennan and the Leader of the Opposition (Senator Collings) replied, in effect, “Mandatory, yes ; but who is to punish us if we default?” It may be that this Parliament cannot be punished for failure in this respect, but is the crime less a crime because no place of punishment exists for the offender? I remind honorable senators that the then Chief Justice of the High Court, Sir Samuel Griffith, when giving judgment in the celebrated wheat acquisition case which terminated the existence of the previous commission, said- -
In my judgment, the functions of the Interstate Commission contemplated by the Constitution are executive or administrative, and the powers of adjudication intended are such powers of determining the questions of fact as may be necessary for the performance of its executive or administrative functions, that is, such powers of adjudication as are incidental and ancillary to those functions. For instance, if a Federal law imposed obligations as to structures or appliances to be used in connexion with Inter-State railway traffic, and entrusted the duty of carrying out those provisions to the Inter-State Commission, it might empower the Commission to determine the question whether in any particular case the provisions of the law had been observed in point of fact, and, if they had not, to demolish the structures or forbid the use of the appliances contravening the law. and for that purpose to use any necessary force, or to invoke the aid of a court of law to ensure obedience to its order. The provisions of the Act 9 Edward VII. c.44 already mentioned afford an instance of similar powers of adjudication and enforcement.
Further on, His Honour pointed out ‘ that the provision in the Constitution was mandatory, whilst Mr. Justice Barton, who was a member of the Federal Convention, and who dissented from the view expressed by the majority, said -
And it is manifest that it was a matter of common sense to leave the kind of adjudicatory power to parliament, because the provisions of the Inter-State Commission Act, exercising fully or only partly the constitutional powers of parliament in that behalf, might in their view require the adjudicating tribunal to be invested with the full status of a court, or with a. lower status. Sn the framers pi need section 101 where it seems to mc they ought to have placed it, among the trade provisions, and not as part of a scheme to which it did not in reason belong, especially as it was not then known whether it would need to be a court or not. lt was intended that the parliament should be able to give the Commission adjudicatory powers according to the importance and scope of the act which it alone could pass. Parliament would thus be able to give . the Commission a higher or a lower status than that of a court, according as the higher or a lower status would be commensurate with or sufficient for the full or the limited exercise of the powers deemed necessary “ for the execution and maintenance, etc.,” by the legislature at the time of enactment.
Mr. Justice Isaacs, who agreed with the Chief Justice, made the following pungent remarks -
First of all, the mandate is to create an Inter-State Commission. That prima facie is not language implying a court of justice, but rather implying an executive body. Of course, a parliament of plenary power may do as it pleases, hut this section is a direction to the parliament, and intended to bind the parliament to follow that direction.
– A mandate which we have ignored for 30 years.
– And a mandate which, if Ave continue to ignore it, makes us guilty of a dereliction of duty to the smaller States. It might suit some States to ignore it, because it may prove expensive to them, but is that the way to do justice as between the Commonwealth and the States? We have it in the clearest language from the highest authority that a duty was imposed on Parliament in this respect - a duty, I suggest, which must be regarded as something more sacred than legislating to remedy some small difficulty in our constitutional make-up in regard to trade and commerce or any other matter. The Federal Convention was not unmindful of what had happened in the United States of America, where the need for a body of this sort was realized. The reasons for it are not hard to find; they arise out of the difficulties involved in respect of trade and commerce powers as between the States, and as between the Commonwealth and States. In effect, the work to which the Convention applied itself, was to make Australia truly a nation. Recognizing the difficulties that had arisen in the United States of America and the remedies applied in that country, it promptly set out in unmistakable language a mandate to future legislators to appoint an Inter-State Commission, which was graphically described by some of th* earlier leaders as the ears and eye3 of Parliament.
– But there wa3 a long delay in implementing it.
– The delay in implementing it was due to the fact that that strong personality who was closely associated with the making of this provision in the Constitution fell sick and died in 1 90S, in the midst of his labours to secure the establishment of a tribunal that would be independent of political control and free of selfinterest. The scheme would have been implemented more quickly if he had not died in 1908. Later a government went too far, perhaps, by endeavouring to give the commission judicial power. May I point out that if the proposed commission were given judicial powers that could bind this Parliament - a course to which some honorable senators take exception - we would not be doing more than has been done in the case of other tribunals. Some honorable senators may say that we have delayed too long and that action in that direction should have been taken sooner. The fault does not lie with some of us. The reason for such action not having been taken is a certain division .of opinion.
– Tt is never too late to mend.
– I agree with the honorable senator. On one side there is a body of legal opinion which holds that there should not be appointed a body of this sort capable of giving judicial determinations which would bind Parliament. On the other side there is a school of thought, to which I belong, which considers that if the provision in Section 101 of the Constitution means anything, it is that we should be bound by the decisions of such an independent tribunal. What objection can there be to that? We have to bow now to every decision of the. nigh Court, evan on the higher reaches of the Constitution, and to every award of the Arbitration Court. It is well, perhaps, that it should be so, because on those conflicting interests by which our opinions are often, unconsciously, influenced, we secure the judicial view which is the reasoned and impartial report of a tribunal after a thorough examination of the question at issue.
– Section 101 emphasizes that these trade and commerce provisions of the Constitution ;i:-e to he maintained.
– That is so. Senator Brennan’s argument that section 10.1 prescribes a duty- of imperfect obligation is not sound. There is a duty cast on Parliament and it is cast primarily on
this Senate. Some of my friends who have not had a long term of service in this chamber might ask what can be done. to meet the situation. Take the case of the Development and Migration Commission and consider the number of investigations it had to make outside the terms of the Migration Agreement and the number of reports it malt! to governments. Consider also the wide field over which its investigations ranged, and their cost.
– And what became of the reports? They were pigeon-holed.
– A number of the recommendations were acted upon and Australia benefited because of the establishment of new industries. Senator Pearce referred to some of the difficulties confronting us. One is secession, and another, which has been brought vividly before the minds of the people is interstate transport. I foresee a great struggle on that issue, and it will be difficult to adjust. There have already been a number of actions in the High Court; commerce and trade have been stifled, and yet no person can give a clear load as to the proper action to be taken. Take, for example, the use that has been made of the quarantine and health laws in relation to the operation of the Constitution. We have to consider whether in attempting to remove these difficulties we are to he guided by the determination of some independent tribunal such as the proposed Inter-State Commission.
– Has the Government five super men in mind to undertake the work of the commission?
– We are seeking such men as those who devised the scheme for dealing with Commonwealth grants to the States, nien who can devise. a formula and give a lead towards the doing of justice between the Commonwealth and tha States. These questions are vital in many parts of Australia, and they may shape the political beliefs of many people, who feel that they cannot secure a measure of justice. We must accept the fact that the law laid down in these cases is right and we must regard it as right. Although a proposed Inter-State Commission may have no judicial power, it will have the power of investigation and report - a quasi judicial power, as one of the judges has said. The commission will bring before the Government facts after it has examined the evidence, and upon those facts we can legislate and nobody will be justified in questioning our action. Section 101 of the Constitution provides for the establishment of an
Inter-State Commission to make investigations on certain matters and arrive at findings. It was said by one of the judges in the case to which I referred earlier that in that condition of affairs there is the foundation upon which to base an application to the High Court. We must respect the judgment of the court. We cannot endow the proposed Inter-State Commission with judicial power, but the Government proposes to endow it with the function of investigation. The jurisdiction of the High Court can be invoked by the States against each other or against the Commonwealth.
– A State can initiate an action in the High Court against the Commonwealth.
– A State can invoke the jurisdiction of the High Court. I desire to comment on observations made by certain honorable senators regarding the Government’s proposal that the number of members on the proposed Inter-State Commission shall be five instead of three as previously proposed. Representations have been made to the Government, and particularly to the Prime Minister, since the passage of the former bill, that the number of members should be increased from three to five, because it is apprehended that there will be a great deal of work for the commission, to undertake. Honorable senators will note that the bill provides that the findings of the commission must be concurred in by at least three of its members, but that the commission may appoint any two of its members a committee to conduct an inquiry. The latter provision will enable the commission to function in two groups in the same way as the Tariff Board functions. Having obtained evidence on matters under investigation the five members will meet to determine their finding and prepare their report. The principal reason for the increase of the number of members from three to five is that in view of the magnitude of the primary producing interests, the secondary industries and the transport interests, the Government wants to obtain the services f men who understand thoroughly trade and commerce, because with those matters the commission will be mostly concerned. Possibly the Government has not provided sufficiently high salaries for members of the commission, but I venture to express the opinion that there will be available men who are patriotic enough to devote themselves to the work of the commission and by that means try to do something for the country which may have treated them very well. I can see no good reason for providing for an increase of the salaries proposed in the bill. I admit that there is a modicum of justification for Senator Brennan’s statement that the Government will not be likely to obtain the services of a lawyer of the first water - the type of lawyer contemplated - at the salary offered by the Government. If the Government fails to obtain men of the calibre it requires because the salaries are not sufficiently high, it may have to ask Parliament later to agree to make more generous provision. On the other hand the Government has been charged with extravagance in relation to its proposals. Senator Duncan-Hughes asked me to state the cost of the Commonwealth Grants Commission. I shall furnish the only figures which I have been able to secure since the question was asked. At no time have the fees paid to members of the Commonwealth Grants Commission been less than £1,600 per annum. I remind the honorable senator who asked the question that the members of that commission give only part time service. The bill provides that the members of the Inter-State Commission shall give the whole of their working time to the duties of the commission and it excludes them from having an interest in certain kinds of business.
– Will the members of the commission work a 40-hour week?
– I know of members of the State Grants Commission who have worked 60 hours a week.
Those men do not consider the number of hours they work per week; their only concern is to do the best job possible. During the dinner hour I shall confer with the Prime Minister concerning the statement by Senator E. B. Johnston that a certain promise in relation to the Inter-State Commission was made during the election campaign; if a promise was made. I shall see if effect can be given to it. I am surprised to find that Senator Cunningham is opposed to the bill because he believes that an Inter-State Commission cannot assist the weaker States. I know that the people in the weaker States, including South Australia, which I represent in this chamber, are actually clamouring for the appointment of an Inter-State Commission which they believe will assist to remove some of the disabilities they are now experiencing.
The PRESIDENT (Senator the Hon. P. J. Lynch). - The Minister has exhausted his time.
Question resolved in the affirmative.
Bill read a second time.
Clauses 1 to 5 agreed to.
Clause 6 -
The commission shall consist of five members, of whom one shall have been a Justice of the High Court or a Judge of the Supreme Court of a State or have been a practising barrister or solicitor of the High Court or of the Supreme Court of a State of not less than five years’ standing.
explain why the Government has decided to increase the number of commissioners from three to five? Two additional appointments will increase travelling and other expenses considerably.
– Representations have been made to the Prime Minister (Mr. Lyons) and other Ministers by persons in various parts of the Commonwealth that the personnel of the commission should be increased from three to five. In a later clause provision is made that fewer than five members of the commission may conduct an investigation, but that any report furnished by the commission shall be signed by at least three members. That provision will enable a section of the commission to conduct investigations, and in that way travelling expenses, will be reduced considerably. Some of the inquiries by the Tariff Board are conducted by three members; this arrangement expedites the work and reduces costs. Having regard to the. variety of subjects into which the commission will inquire, the Government decided that its work could be carried out more efficiently and expeditiously if five members were appointed. The Prime Minister discussed the subject with me as Acting Attorney-General and I realized the advantage of increasing the number of commissioners.
.- As there appears to be some opposition to the bill the Government should not endeavour to dispose of it too speedily. The Minister has not convinced me that the appointment of five commissioners instead of three, as previously provided, is necessary, particularly as the commission is not likely to he overworked. If the work should be too much for three commissioners the act can be amended to provide for the appointment of others. If three were appointed at perhaps a higher salary than is now proposed the Government should receive applications from men more suitable than those who would offer their services at a lower salary. There has always been agitation against the unnecessary expenditure incurred in connexion with royal commissions, and the additional expenditure proposed in this instance does not appear to be warranted. I move- -
That the word “five”, first occurring, be left out with a view to insert in lieu thereof the word “ three “.
G rants Commission will cease to function after the 30th June there will be no lack of work for the commission.
Sitting suspended from 6.15 to8 p.m.
– In justification of the Government’s proposal to increase the number of commissioners to five, I should tell the committee that the original draft made provision for five commissioners, but, in its wisdom. Cabinet thought it better to reduce the number to three. However, as the result of further representations, the Government has restored the provision for five commissioners on the ground that the larger number will make possible the representation of a greater variety of interests. I. ask the committee to reject the amendment.
– One of the difficulties confronting the committee appears to be that the several parts of the bill are dove-tailed one into the other.For instance, the question whether there shall be five commissioners is linked up’ with the salaries to be paid, and also with the powers to be conferred upon the commission. If the duties and powers of the commission are not to be substantially greater than those exercised by the Commonwealth GrantsCommission, it would seem strange that the total salaries should be three times greater than those paid to members of the latter body. I approve of the increase of the number of commissioners to five. My recollection is that, when we were considering the bill to set up the Commonwealth Grants Commission, there was a proposal which, I think, I supported to provide that there should be one representative from each State, plus one to be appointed by the Government. I agree that it is desirable to have a wide range of choice so that, as has been pointed out by other honorable senators, it would be possible for a section of the commission to be detailed to make investigations in, say, North Queensland, whilst another section was functioning in Western Australia. Australia is a very large continent, and the duties which the commission will have to perform must be important, if not so important as they should be. Therefore, I approve of the appointment of five commissioners, not only for the reasons mentioned, but also because I think that the power to be exercised by the commission would be excessive for three members.
– Why not increase the number to a dozen, and get a still wider range ?
-I know that my argument could be pushed to absurd lengths. On the reasoning suggested by Senator Collings, it might be argued that 400 or even 12,000 commissioners would be more desirable. But we have to remember that these commissioners must be paid for their services.
In my second-reading speech I raised a doubt as to whether the powers to be vested in the Inter-State Commission were as wide as they should be, and also, in the event of there being five commissioners, whether the salaries were not a little bit on the high side, having regard to the powers specifically laid down in the bill. Senator Leckie is not in favour of the appointment of five commissioners. Indeed, I doubt very much whether he is in favour of the appointment of the commission itself, and I am certain from what he said when we discussed the earlier bill last year that he does not favour vesting the commission with some of the powers which are to be given to it. Clause 18 states, in paragraphf, that the commission shall inquire into and report upon “ any matters concerning the financialrelations between the Commonwealth and any State . . . “ The honorable gentleman holds that the smaller States are not suffering any disabilities at all, and that therefore they are not entitled to financial assistance from the Commonwealth. That was his view a year ago, and I am entitled now to assume that his inclination is to belittle the functions of the proposed commission, and to limit the scope of its work. I hold the contrary opinion. I believe it is highly desirable that the powers given to the commission by the Constitution should bo restored, so that the new commission may safeguard the interests of the smaller States especially. I also contend that the appointment of five commissioners will give the Government a widerchoice.
– The closing sentence of the speech made by Senator Duncan-Hughes suggests to me that if the purpose of the Government in appointing five commissioners is to secure a wider choice, it might be possible to widen further the selection by appointing a commissioner representative of the various branches of industry and commerce, as well as a representative of the workers.
– That is highly probable.
– Is that the idea underlying the Government’s proposal to increase thu number of commissioners from three to five?
– Not specifically that.
– May we take it then that the number of commissioners is to be increased to five in order that there may be a wider selection by obtaining the services of men representative of particular sections of the community?
– .Something of the sort.
– Then we may rest a asstired that the intention is not to make room for live politicians.
– That is right
.- 1 protest against Senator DuncanHughes attributing to me opinions which 1 do not hold. In the first place I do not object to the Common wealth Grants Commission, or the recommendations made by that body in the interests of the smaller States. All I said was that the commission had based its recommendation on needs and not on supposed disabilities. I have not the slightest objection to the eastern States rendering financial assistance to the smaller States in their need, but I do object to the principle of States representation on what I regard as a judicial body. If this were approved, there might be a claim for class or sectional representation and that would entirely destroy the judicial character of the tribunal.
– May we not argue that representation on the commission of the manufacturing interests would be class representation?
– Not purposely, at all events.
– A representative of manufacturers would proably be a valuable member.
– I know of no reason why the manufacturers or, for that matter, Labour interests, should not be represented on the commission provided the appointee possessed judicial qualifications.
– Nevertheless both might be regarded as class representatives.
– It is altogether wrong to urge that there should be class representation on a commission. I have heard nothing in the discussion to cause nic to alter my opinion that a commission of three members would be better than a commission of five.
– Senator Leckie should know that I am not in the habit of making statements of fact unless I am sure that I am right. What he said on this subject remains clearly in my mind and, I think, in the minds of many other honorable senators. On the 1st September last, he made what I would describe as a vigorous attack on the States Grants Bill. It was I, not Senator Leckie, who emphasized that grants should be made on the basis of disabilities, not needs. In my speech on the second reading of that measure,. I said -
Speaking in general terms I should prefer that these grants he assessed on the basis of disabilities rather than needs. A grant made on the basis of needs may easily come to be regarded as being in the nature of a charity or a dole, whereas a grant based on disabilities is regarded as something in the way of recompense for disadvantages actually suffered.
The system for the distribution of Commonwealth grants to claimant States on account of disabilities or needs is entirely wrong, and gome better method should be devised.
We are now discussing the new method which we hope will be an improvement. Senator Leckie said also - 1 repent that the system of distributing the Commonwealth grants is unbusinesslike and unsatisfactory, because if a State mismanages its finances so seriously as to get into difficulties, all it need do is to appeal to thu Commonwealth for assistance on the ground of needs. The excuse that it suffers disabilities under federation was long ago worked out.
In other words, according to the honorable senator, the States are suffering no disabilities, and their needs are due to mismanagement.
– The honorable gentleman should be fair. I was arguing for a re-adjustment of the financial relations between the Commonwealth and the States.
– If the honorable senator will re-read his speech, he will be forced to admit that I am not putting into his mouth words which he did not use, nor am I omitting statements which are relevant. I now take the following from the Hansard report of his speech: -
Senator LECKIE. . . The smaller States should be grateful for the grants which the Commonwealth is making to them. From a business point of view, I doubt that the claimant States arc entitled to anything.
-hughes. - If that is bo, what is the reason for the provision in the Constitution regarding the appointment of the Inter-State Commission?
– That section was not inserted for the purpose of ensuring grants to any of the States.
– Its purpose was to adjust the difficulties of any of the States under federation.
Later Senator Leckie said -
Senator Duncan-Hughes has said that he would prefer the grant to be based on disabilities. If that principle were observed, the claimant States would get nothing.
I shall allow honorable senators to judge whether or not my summary of Senator Leckie’s speech was accurate or otherwise.
– The honorable senator wins!
– I agree with Senator Brown’s remarks concerning the personnel of the proposed commission, and I hope that if Labour is to have representation on it, the Government will also take the necessary steps to see that one of the representatives is a bona fide primary producer. There is provision that one shall be a lawyer.
– At all events, one is to be a justice of the High Court, a judge of a Supreme Court or a barrister or solicitor of not less than five years’ standing. In view of the sympathetic reply which we have just had from the
Leader of the Senate (Senator A. J. McLachlan), I hope that we can expect to have on the commission one bona fide representative of the primary producers, preferably to be nominated by the organized primary producers of Australia.
– I am sure that Senator Johnston does not expect me to give any such assurance. Nor have I given any assurance that an industrial representative will be appointed to the commission. Some members of the Cabinet are inclined to the view that the primary producers and the manufacturing industries should have representation on the commission in order that the evidence placed before it may be examined and discussed in the light of the more accurate knowledge that such men would possess of various problems.
– I have not heard from the Minister anything to justify a change from the bill which passed the Senate last year. I dissent strongly from the view that the men who will be appointed to the InterState Commission will be appointed as representatives of particular industries or callings. There would be grave danger in following such a course. Men appointed as representatives of certain industries would strive to uphold the views that they held before their appointment. This will be a judicial tribunal, in the sense that it will weigh evidence and consider facts. Senator Brown asks that a representative of the industrial workers should be appointed to the commission.
– Is not an industrial representative sent to Geneva from time to time ?
– Yes ; but he goes there with a mandate on the various points that have to be determined. We should guard against appointing to the Inter-State Commission representatives of any particular section of the community. If it should happen, for instance, that a manufacturer were appointed, he would be appointed, not because he represented the manufacturers, but because he was an intelligent man, with a good grasp of affairs generally, and a particular knowledge of one aspect of industry. If, instead of a manufacturer, a primary producer were appointed, he would be appointed, not as a direct representative of the primary producers, but because he, too, was an intelligent man with a grasp of affairs generally, and possessing particular knowledge of primary production. Senator Johnston goes further, and asks not only that a representative of the primary producers shall be appointed, but also that he shall be chosen by a vote of the primary producers of Australia. If appointments are made on that basis, we shall have a partisan commission, the members of which will be determined, almost at any cost, to uphold certain views. We do not want that. Members of the Interestate Commission should inform their minds by the evidence that is placed before them, and not be guided by opinions expressed in the club rooms of the organizations to which they belong.
– The course suggested by Senator Johnston was adopted in connexion with the Dairy Export Control Board and other similar bodies.
– Those are boards appointed to control certain specified industries, but the Inter-State Commission will not be of that nature. Its duties will be to inquire into the several matters set out in clause 18. If we have partisan representatives on the commission there will be continual wrangling, because the members will be more concerned with upholding the views that they bring into the commission than with the evidence that is placed before them. I repeat that I have not heard anything to induce me to believe that we shall be better off with a commission of five members, instead of three.
– I do not think that there is a great deal in the point that we are discussing, namely, whether the commission shall consist of three or five members. Senator Brennan referred to the possibility of members of the commission striving to maintain views heard in the club rooms of the organizations to which they belong. The honorable senator himself finds it impossible to escape from the opinions voiced in the club rooms which he frequents. Senator Brown suggested that if various interests in the community are to be represented on the commission, the workers of Australia, all of whom will be affected in some way or other by the decisions of the Inter-State Commission, should have representation. Immediately, Senator Brennan, who, with all respect, I suggest is fully representative of true blue conservatism, rose to make some observations.
Senator Brown. - Would not Senator Duncan-Hughes more fittingly come within that category?
– Recently, Senator Duncan-Hughes appears to have attained almost to the standard of a democrat, whereas Senator Brennan gives continual evidence of a trend in the opposite direction. However much we may seek to conceal it, the fact remains that every member of this chamber is a class representative. Honorable gentlemen opposite represent the wealthy interests of the community.
– Be reasonable!
– Of all the class representatives in this chamber, Senator Dein is, perhaps, the most “classy”. Senator Brennan demonstrated eloquently that, in his opinion, the workers should not be given any representation at all in the counsels of the nation. He said that if a representative of certain industries were appointed to the commission, it would be because of his intelligence and grasp of affairs generally, but I am confident that any manufacturer who may be appointed to the commission will make it his business to see that no final decision is arrived at which will reduce his profits. If various interests in the community are to be directly represented on the commission, we on this side have a perfect right to suggest that a representative of the workers should be appointed. Why should not a capable carpenter, or plumber, or bricklayer, be appointed to the Inter-State Commission? He would be able to voice, not only the opinions expressed in union meetings, but also the views of his fellow workers generally, who have as much right to be represented on a body of this kind as have other sections of the community once it is admitted that special “interests” are to be covered.
– The best illustration that occurs to me in order to explain what is desired is supplied by the Tariff Board. One member’ of that body, which functions in the judicial capacity to which Senator Brennan referred, is a man who, until his appointment, had been engaged in primary production. I do not think that the people of this country have suffered because of that fact. On the contrary, he is able to bring to the deliberations of the Tariff Board an intimate knowledge of primary production which must be helpful to the other members. It is a. matter not of appointing men because they are wheat-growers or manufacturers, but of getting the best men. Intelligence and capacity to sum up. evidence and assess facts are required. I do not quarrel with the view expressed by Senator Brennan, but I do say that it is essential that we shall have on the Inter-State Commission men with all-round knowledge, and possessing also some specialized knowledge which will be helpful in determining the many matters which will be dealt with.
– I find it difficult to decide whether the Inter-State Commission should consist of three or five members. In my opinion, the work which the commission is to be asked to perform is too great for such a body. My knowledge of the people who claim to represent certain interests in this country does not lead me to believe that they would be particularly successful on a commission of this kind. For instance, some persons who claim to represent primary industries are always found opposing the interests of manufacturing industries. They are not true representatives of the primary producers. We should be jealous of the privileges of Parliament, and should hesitate before delegating authority to outside bodies. Even to-day, this Parliament is not free to discuss certain big questions freely because a delegation has left its shores to discuss those subjects with people overseas. I believe that these problems should be decided by the Parliament; but if a commission is to be appointed, I am of the opinion that three men will do just as effective work as will a commission of five members. It would be better not to have any commission at all, and to let the Parliament tackle these questions. They would be dealt with better in this chamber than if referred to commissions. In the final analysis, the representatives of the people in this and another branch of the legislature, who represent different interests in the community, will decide what shall be done. I believe that it would serve no great purpose to delegate the powers of this Parliament to any commission and, therefore, I shall support the amendment.
Question put - thattheword proposed to be left out (Senator Leckie’s amendment) be left out.
The committee divided. (The Chairman - Senator Sampson.)
Majority . . . . 6
.- In view of the statement by the Minister that signal success had attended the appointment of a primary producer to the Tariff Board, and as the committee has decided that the proposed commission shall consist of five members, I propose to move that one of the five shall be a bona fide producer.
– What is the meaning of bona fide in that connexion?
– A bona fide producer would be one selected as the representative of primary producers’ organizations throughout the Commonwealth. I suggest that if such a provision be not made, no representative of the primary producers, or of the producing section of the community, will be appointed to the commission. My idea is not new, because in respect of all recent appointments to those bodies whose work will be taken up by the Inter-State Commission - and I refer particularly to the Wheat Commission - the Government was careful to select direct representatives of the primary producers. In fact, it ha3 been the policy of successive Federal and State Governments to give such representation. It has certainly been a feature of legislation passed in Western Australia by both Labour and non-Labour governments. I move -
That the following words ha added to iiic clause: - “and one commissioner shall bc a bona fide primary producer “.
– The Government cannot accept the amendment. It cannot see its way to give direct representation on the proposed commission to any one section of the community, as such, because it desires that this body shall be as representative as possible of all sections. This will be ensured by the appointment of men who possess the necessary knowledge concerning all the elements of our economic life. The only reason why specific provision is made for the appointment of one legal man is that the jurisdiction of the commission and the manner in which it shall perform its duties, are matters in respect of which a legal man will be best qualified to. guide the commission.
– Unless we can provide for direct representation on the commission of every section of industry I cannot see my way clear to support the amendment. I strongly urge the Government to consider the interests of the primary producers when it is making appointments to the commission, but I am prepared to leave the responsibility to the Government.
– As a member of the United Country party I agree with the suggestion that in making appointments to the commission the Government should give every consideration to representation of the primary producers. However, I cannot but feel that the Leader of the Senate is right in his contention that we ought not to provide in the measure for sectional appointments. Although I shall certainly use what little influence I might have with the Government to secure the appointment of a primary producer, I cannot be a party to what I consider would be a bad legislative precedent.
– Members of the Opposition are anxious that primary producers should have a voice on this, or any other commission. I point out, however, that Senator Johnston voted in favour of the proposal that the personnel of the commission should be limited to three. As it appears essential that one of the members should be a legal mau, and the honorable senator believes that another should be a representative of the primary producers, we can only infer that he is quite content that the third appointee should be representative of every other section of the community, including the workers, politicians, pastoralists, and financial and commercial interests. That, I suggest, would scarcely be fair.
– I might not have proposed this amendment if the committee had agreed to a membership of three.
– That may be so, but the honorable senator in. moving his amendment had an opportunity to suggest, in addition to a representative of the primary producers, a representative of the workers and one for each of the other important sections of the community. If he had done that and his proposal had been adopted he would have achieved his desire to exclude politicians from membership of the commission. We of the Opposition shall vote against the amendment because it makes an invidious distinction by specifying representation of one section of the community only.
Clause agreed to.
Clause 7 (Appointment of commissioners).
.- X understand that the method provided in sub-clause 2 for the removal of a commissioner from office is the same as that set out in the Constitution, and therefore it would probably he difficult to alter it, but surely there should be some method by which a commissioner could be removed from office without the Governor-General having to wait for an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity. In the event of a commissioner becoming incapable of carrying out his duties, through bankruptcy or insanity, for instance, he could not be removed from office until both Houses carried a resolution in the same session praying for his removal. I think that a more simple method of removal should be provided for. If the proviso in sub-clause 2 is not altered, a considerable period might elapse before a commissioner who was incapable of carrying on his duties could be removed, in the event of Parliament not meeting for a long time after the commencement of such incapacity.
– As Senator Grant said, the provision contained in sub-clause 2 relating to the removal of a commissioner from office is the same as that which is provided in the Constitution and applies also to the judiciary. I think that shows the high plane on which the Government proposes to place the InterState Commission. The honorable senator referred to the position which would arise if a commissioner became incapable of carrying out his duties. I point out that provision is made for the removal of a commissioner in such a case, but the Executive is not to have the final decision. Before the GovernorGeneral could remove a commissioner from office both Houses would have to present an address praying for the removal. I think that it is essential that the proviso in sub-clause 2 should remain unaltered, because the duties which will devolve on the Inter-State Commission will be as far-reaching in their effect on the economic life of Australia as any judgment of the High Court. The ques tion raised by Senator Grant was looked into by the Attorney-General (Mr. Menzies) before he left Australia, and it was found impossible to ignore the specific provisions of the Constitution.
– In the course of my secondreading speech I asked the Minister in charge of the bill whether,, in the event of the measure becoming law, the Government would discontinue the practice of setting up royal commissions to investigate matters which should properly be referred to the Inter-State Commission. The Minister has not furnished me with a reply, and I am anxious to obtain the Government’s opinion on the matter.
– I assure the honorable senator that one of the underlying intentions of the measure is to reduce the number of royal commissions which we lawyers describe as ad hoc commissions.
– I would point out that sub-clause 3 provides -
In case of the illness or absence of any commissioner, the Governor-General may appoint a person to act as a deputy commissioner during the illness or absence, and the deputy shall, whilst so acting, have all the powers, and perform all the duties, of a commissioner :
I think the Government would be well advised to examine the sub-clause, and decide whether it could be carried into effect, because of the tenure of office to be provided for the commissioners. When I was acting AttorneyGeneral la3t year the question of appointing a judge in bankruptcy arose, because of the illness of Judge Lukin. The Government sought to have his duties performed by an acting judge, but, as the judges enjoy life tenure, we could not appoint an acting judge. Sub-clause 2 provides that any commissioner appointed shall have a tenure of office of seven years, and the Minister would be well advised to inquire whether, in view of that provision, it would be possible to appoint a deputy commissioner during the illness of a commissioner.’
– The point raised by Senator Brennan has not been overlooked. I conferred with the Attorney-General and the Solicitor-General regarding it, and they took the view that the provision could be given effect to. If the Inter-State Commission is to function as a “quasi royal commission, it might be possible to implement this provision by appointing each of the members a royal commissioner. I ask the committee to agree to the clause without amendment, because, although we cannot be certain that sub-clause 3 is valid, it could, we believe, be implemented by adopting the expedient I have mentioned.
Clause agreed to.
Clause8 (The chairman).
– As the clause provides that the Governor-General shall appoint one of the five commissioners to be chairman, any one of the five commissioners may be appointed chairman. I should like to know whether the Government has considered the advisability of appointing the legal member as chairman. I have had some experience of commissions and committees, and I think that a member of such a body is often limited in placing his knowledge before his colleagues when he is in the chair. The Minister stated that the Government is anxious to obtain as commissioners men who will be able to give the commission the benefit of their expert knowledge. I think it would be preferable to have the four expert commissioners as ordinary members and the legal member as chairman. Would the Government accept an amendment to the effect that the legal member shall be the chairman?
– The selection of the chairman will depend on circumstances. The Government does no know now whom it will be able to secure as commissioners ; it might or might not be advisable to appoint the legal member as chairman. I could mention a number of royal commissions and bodies of that sort which have not had a lawyer as chairman. The royal commission on the wheat, flour and bread industries was one instance, the chairman, Sir Herbert Gepp, not being a lawyer. I think that sometimes the legal member of a commission can assist the commission to a greater extent if he is not in the chair. I would ask the honorable senator to trust the Government in the appointment of the chairman. I am most anxious that the proposed commission shall be a success, and that the services of the best men available shall be obtained as commissioners.
Clause agreed to.
Clause 9 (Salaries and expenses of commissioners).
– Sub-clause 1 sets out the rates of salary of the chairman and the other commissioners, and sub-clause 2 provides that there shall be paid to each commissioner on account of travelling expenses such sums as are considered reasonable by the Governor-General. I direct attention to clause 13, dealing with the appointment of sectional committees, and the provision in sub-clause 5 that the members of such a committee “ shall receive such fees in respect of its sittings as they would have received if the sittings were sittings of the commission “. It will be seen that clause 9 deals with salaries and travelling allowances and in clause 13 fees are referred to. I should like to learn whether the fees are to be additional to salaries and travelling expenses.
– It is intended that the salaries provided for in clause 9 shall be remuneration for a whole-time job, and perhaps sub-clause 5, of clause 13, to which the honorable senator referred, has inadvertently been inserted because of a similar provision in the Commonwealth Grants Commission Act. That act provides for an annual salary for each member of the commission, and a fee for each sitting of the commission which the member attends. Apparently, sub-clause 5 of clause 13 has been copied from that act and a drafting revision is necessary. I shall be glad to deal with it when the committee reaches the clause.
SenatorUPPILL (South Australia) [8.58]. - I should like the Minister to inform me what would be the position in relation to the payment of salary in the event of a commissioner becoming ill and a. temporary commissioner being appointed. In that case, would the commissioner’s salary be suspended, or would there be a duplication of salary?
. - Expressing what the Attorney-General would describe as a kerbstone opinion, I should say that salary would have to be paid to the commissioner who was ill, because the act provided for an annual salary to be paid. I may inform Senator Duncan-Hughes that the lowest amount paid in salaries and fees in any year to the Commonwealth Grants Commission has been £1,650, and the highest approximately £2,100.
Clause agreed to.
Clauses 10 and 11 agreed to.
Clause 12 (Quorum of commission).
– No provision appears to have been made for the chairman to record a casting vote. In the event of only four commissioners being present and the voting being equal, will the matter under consideration have to stand over until the next meeting of the commission?
– That is so.
Clause agreed to.
Clause 13 -
– Can the Minister now clear up the point in sub-clause 5 concerning the meaning of the words “such fees”?
– I have now been advised that as the commissioners will romain commissioners during the whole term of their appointment, with the reservations already provided for, there is no need for this subclause. I therefore move -
That sub-clause 5 be left out.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 14 and 15 agreed to.
Clause 16 (Commissioner not to act where interest <(]).
Senator DUNCAN-HUGHES (South Australia) ]9.5[. - I think that the point I am about to raise has been discussed on other bills; but in view of the work which these commissioners will undertake, it appears unreasonable to provide that a commissioner shall not exercise any power or function conferred upon him by this act in any matter in which he is directly or indirectly interested. The provision seems altogether too drastic, and in some cases may prevent commissioners from being able to record their votes. For instance, the investigations to be undertaken under clause 18 will include grants to the States. We are all representatives of States, and although it would be pleasing to think, as someone suggested this afternoon, that we are so open-minded, impartial and judicial that we are unaffected by the fact that we come from certain States, it is easily arguable and even desirable that we should possess something of the soil of the State from which wo come. If these commissioners vote upon a grant to be made to a State in which they themselves own property and therefore have” a financial interest, they may be said to be voting on a matter in which he is directly or indirectly interested. This provision might prevent a commissioner from expressing an opinion or of voting in connexion with the State in which he lives or has interests. It may be said that such an interpretation of the provisions is unreasonable; but, while the commissioners may not be directly interested, it may be said that they are indirectly interested, and that on that account their vote was informal or improper or should not be recorded. If the word “ indirectly “ were left out the position would be met. It may be said that they would be interested only as any taxpayer would be interested, but the average taxpayer has not to record a vote.
– The committee will realize that this clause is intended to cover direct or indirect personal interest. This provision is inserted in similar acts upon which judicial pronouncement has been made from time to time. It, would be going too far to suggest that because a member of the commission happens to come from a State in which the taxation may be lowered in consequence of the payment of a higher grant, he is indirectly interested. I direct the attention of the committee to the words “ . . . conferred upon him by this act in any matter in which he is directly or indirectly interested.” Of course, that applies to a personal interest in ‘”’ matters “ set out in clause 18. I cannot conceive of a commissioner being prevented from casting his vote in the circumstances mentioned by Senator Duncan-Hughes. But I shall have inquiries made to see whether there is anything in his contention, and if so the word “ indirectly “ can be deleted when the bill is before the House of Representatives.
Senator HERBERT HAYS (Tasmania; [9.10]. - Would a commissioner who is a shareholder in a public company be regarded as being directly or indirectly interested ? Would he be entitled to vote?
– If the matter on which he had to vote affected the company in which he was a shareholder, he could not vote. Some men holding offices from the Grown have found to their sorrow that they had to dispose of certain interests and place their investments elsewhere. It is proposed to place the members of this commission on a basis similar to that of justices of the High Court.
Senator GRANT (Tasmania) ‘ 1 Senator Duncan-Hughes referred to the possibility of a member of the commission having to vote in connexion with a grant to be made to a State in which he had financial interests. Senator Brown urged the necessity for Labour organizations to be represented, and Senator Johnston stressed the advisability of primary producers being directly represented. If such persons were appointed to represent specified interests, it could be said that they were directly interested.
– Only as members of the general community.
– Yos, but under this clause they would be indirectly interested. If they were not they would not be useful representatives of the sections of the community or organizations on whose behalf they had been appointed. Will the Minister see if it is practicable to leave out the word “ indirectly “ ?
referred to the use of the word “ matters “ which is used in the marginal note of clause IS, and in paragraphs d, e, f. and g of that clause, and said that those are the matters referred to in the clause now before the committee. I am anxious to prevent the commissioners from being placed in a ridiculous position in carrying out the important duties which will devolve upon them.
– I shall have the point fully investigated.
Clause agreed to.
Clause 17 (Commissioners to devote whole time to their duties.)
Senator McLEAY (South Australia! [9.13]. - Will the Minister explain what is meant by the words “hold any paid employment”? Would that affect the position of a trustee?
– Many trustees are not paid for the services they perform; but. a paid trustee would be affected.
Clause agreed to.
Clauses 18 to 20 postponed.
Clause 21 -
Senator E B. JOHNSTON (Western
Australia) [9.14]. - T move -
That after the word “ for “ first occurring, the words “ the Com.inonweii.lth or “ be inserted.
If that amendment be agreed to and the clause be consequentially amended, the clause will then read - lt shall not be lawful for the Commonwealth or any State or for the Commonwealth or any State railway authority to give or make upon any railway, the property of the Commonwealth or of any State, in respect of interstate commerce, or so as to affect any such commerce, any preference or discrimination which the commission adjudges undue and unreasonable or unjust to any State.
This part of the bill deals specifically with interstate traffic, and, as I mentioned in my second-reading speech, it is of vital importance. Under it the Inter-State
Commission will have authority to investigate any alleged unjust railway rates or unfair competition.
Senator (thant. - Was not this subject one which the Prime Minister undertook to consider (
– No,, not so far as I know. This part of the bill provides the comprehensive machinery for investigation of any complaints that may be made by any State railway authority, any borough, municipality or body politic, any harbour board, marine board or other State authority, or any association of traders or freighters or producers, or chambers of commerce, manufactures or agriculture. There is no provision for a review of Commonwealth railway rates. I fail to see why the Commonwealth railway authorities are to be excepted. Private railways situated within a State will also come under the review if complaints are made of unfair or discriminating freight charges. If, in the opinion of the commission, the freight charges on interstate railways are unjust, that body will have power to disallow them. The transcontinental railway, which is the only interstate railway entering the State which I assist to represent in this chamber, will not be reviewed bv the commission. T contend that what is sauce for the State goose should be sauce for the Commonwealth gander. If the freight rates charged by State railway authorities may be reviewed by the commission, so also should the freight rates charged by the Commonwealth railway authorities, and traders, producers and manufacturers who consider that they are being unfair).*- affected, should get relief
– The length of Commonwealth railways in South Australia is as great as in Western Australia.
– I know that there is a considerable length of Commonwealth railways in the State of South Australia, and more than one State railway connecting that State with Victoria and New South Wales, but I have not heard of any complaints of preferential railway rates on State railways to the prejudice of business firms in South Australia in the way that Com monwealth railway freight rates affect the people of- Western Australia. All of the mainland States, except Western Australia, are entitled to protection at the hands of the Inter-State Commission under this bill. Nearly all of the members representing Western Australia in this Parliament have, at various times, complained of the unjust competitive freight rates charged on the trans-continental railway to the detriment of industries in that State, and I submit that there should be in the bill provision to enable the Inter-State Commission to investigate such charges. On a former occasion, when a similar bill was under consideration, I moved an amendment, which I regret did not receive a great deal of support, but at least one of the present Ministers in the Senate endorsed my remarks. I hope that on this occasion, the committee will adopt my amendment.
– Clause 21 gives effect to the provisions of section 102 of the Constitution, and it is directed entirely to State railways and State instrumentalities. This Parliament cannot bind its successors. In this bill we can do nothing with regard to the Commonwealth railways. I understand that this point was sharply taken on a former occasion, when it was held to be impossible for the Attorney-General of the Commonwealth to lodge an indictment against officers of his own government.
The amendment proposed by Senator Johnston to extend the conditional prohibition to the Commonwealth indicates that the purpose and reason for Part IV. of the bill are not properly understood. The Constitution contains many prohibitions addressed to the Commonwealth and to the States, but in relation to discriminations these provisions in their application to the Commonwealth and the States are different. So far as the Commonwealth is concerned, it is absolutely precluded by section 99 of the Constitution from giving preference to any State or part thereof over another State by any law or regulation of trade, commerce or revenue. The prohibition is absolute; it leaves nothing to be added, and any attempt by this
Parliament to cut it down would be invalid. The prohibition addressed to the State as regards State railways is not absolute. It is conditional, firstly, upon this Parliament enacting the necessary legislation; secondly, upon the preference being undue or unreasonable or unjust; thirdly, upon the Inter-State Commission finding that the preference is undue or unreasonable or unjust; and, fourthly, upon the Inter-State Commission, in reaching that finding, taking certain facts into consideration. Part IV. enacts the necessary prohibition in words identical with those contained in the Constitution, and it provides machinery whereby the necessary finding of the Inter-State Commission can be obtained. There is no place in this conditional prohibition addressed to the States for a prohibition to the Commonwealth, for that prohibition is already in the Constitution and is not conditional, but absolute. Indeed any attempt to include the Commonwealth in this conditional prohibition might well be construed as an attempt to cut down the absolute prohibition of section 99, and therefore invalid.
– If there is discrimination in the freight rates on the transcontinental railway, could not the Railways Commissioner of Western Australia, or the State Government, if it thought fit, take action before the High Court?
– Yes, and I am endeavouring to show that that contingency is provided for. Apart from the constitutional aspect, however, it is interesting to note that the amendment represents an attempt to do the one and only thing which the Sovereign Parliament of the United Kingdom itself cannot do, i.e., regulate its future conduct. No prohibition addressed to the Commonwealth in any Commonwealth act would bind the Commonwealth in the future if the Parliament of the Commonwealth desired to act otherwise. Hence the wisdom of the framers of the Constitution in including, so far as the Commonwealth is concerned, the prohibition in the Constitution itself.
, - The contention of the Leader of the Senate (Senator A. J”. M.oLachlan), as I understand it, would be sound if sovereign authorities were dealing with one another. But the position is different when private individuals are affected. One can readily imagine the position of a motor transport concern if its activities were prejudiced by freight rates charged on a State railway or, for that matter, on a Commonwealth railway. The explanation of the Minister does not meet such a situation. There is an axiom that the King can do no wrong. That might have held good at one time, but since kings are human and seek guidance from fellow mortals, the King, though he may not be personally responsible, must certainly take the blame for any wrong that may be done in his name. The strange thing is that’ in the Commonwealth sphere, the king, as represented by the Commonwealth Railways Commissioner, is surrounded by a halo, and can do no wrong, whereas in the sphere of the States the king, as represented by the State Railways Commissioner, may do wrong. It is because we believe that the king in both Commonwealth and State spheres can do wrong that we insert in our legislation provisions to deal with his lapses. Yet the Government still claims that in the Commonwealth sphere the king can do no wrong.
– The Commonwealth Railways Commissioner is covered by section 99 of the Constitution.
– Only so far as hi3 sovereign authority is concerned. There is no means of giving sovereign authority to individuals, but there is power to do so in the case of a State government.
– Section 21 deals with railways.
– There is a prospect of a considerable development of road transport. We should keep in mind, not only what we know to exist to-day, but also what may exist in the future. What harm will be done to the Commonwealth railways if the amendment be agreed to? It may be or may not be a fifth wheel in the coach, but the mere fact of the provision being in the act would be a deterrent in the same way as the appointment of an auditor keeps men from acting dishonestly. We are still trammelled by the old belief that the king can do no wrong and that there can be no appeal against what is done in the name of the king. That belief is wrong, however. There is an appeal from the king’s representative. Let us consider, for instance, the purchase of a piece of land by the Commonwealth Government. The Government may say that, land which it requires for public purposes is worth £10 an acre, but the owner of the land may place a higher value upon it and ask for more. In the event of the parties not being abb to agree, there is an appeal to an independent tribunal. The same is true in the sphere of arbitration. The head of a government department, may say that certain rates of pay should apply to work, but his opinion is not necessarily final. An appeal lies to an arbitrator. That, is in keeping with the altered spirit of the times. Provision is made to meet the possibility of the king’s representative not acting fairly. In this instance, an appeal is sought from the Commonwealth Railways Commissioner to the Inter-State Commission, if and when such an appeal is warranted. I submit that Senator Johnston’s amendment is justified, if only for the purpose of providing a deter.rent. Roman law, which in my younger and more vigorous days I studied, provided not so much for the infliction of penalties on convicted wrongdoers, as for so terrifying them that they would be afraid to break the law. The purpose was to hold the people in terrorem. We should do well to follow that example.
– I thank my colleague, Senator Lynch, for the support that he has given to my amendment. The honorable senator knows the unfair competition with Western Australian industries which those in control of the Trans-Australian railways have made possible. I appreciate the honorable senator’s support, particularly his reference to the Roman law. His remarks were in contrast to what I may, perhaps, describe as the “ common “ law which the Leader of the Senate (Senator A. J. McLachlan) placed before us. The Minister indulged in legal sophistry in order to influence honorable senators against the amendment. Earlier to-day Senator
Leckie referred to the replies to representations made to the Commonwealth Railways Commissioner. Business people of Western Australia who complain of the action of that officer in regard to freight on goods from the eastern States are told that they have no ground for complaint because the department is willing to carry either manufactured goods, or primary produce, such as onions, potatoes and fat stock, from Kalgoorlie to Adelaide or Melbourne at the same rates as are now charged for similar goods conveyed from those places to Kalgoorlie. That is really the effect of the reply given by the Acting Attorney-General. It is also the substance of the remark which came from another quarter in regard to section 99 of the Constitution. The authorities know well that there is no likelihood of traffic in the opposite direction, because Kalgoorlie has no exporting secondary industries, nor has the arid region in the vicinity any farms, orchards or gardens front which to send produce to the eastern States. Senator Lynch understands “the position, and I thank him for his courage in supporting the amendment, which he realizes is essential to the development of industries in Western Australia. I commend the honorable senator for his courage.
– The honorable senator is guilty of tedious repetition ; he has repeated himself four times.
– The support of Senator Lynch is the only assistance which I have received in this Chamber. The qualities which inspired the honorable senator to support the amendment might well influence the Government when it is considering certain important action under this measure.
Clause agreed to.
Clauses 22 to 44 agreed to.
– I lay on the table the following paper: -
Australian Soldiers’ Repatriation Act - Regulations amended - Statutory Rules 1938, No. 42.
This regulation repeals certain reductions which were made under the Financial Emergency Act 1931. Of the living allowances formerly in force, reductions were made in respect of three classes only, namely, widowed mothers of deceased soldiers, re-married widows of deceased soldiers who arc again widowed, and widows and children of soldiers who died from any cause within three years after discharge. It is estimated that the annual costs of the restoration of the 20 per cent. reduction made in respect of these three classes will be, respectively, £3,000, £650, and £600, making a total of £4,250 per annum.
Motion (by Senator A. J. McLach- lan) agreed to -
That the Senate at its rising adjourn until 1 1 a.m. to-morrow.
Senate adjourned at 9.49 p.m.
Cite as: Australia, Senate, Debates, 11 May 1938, viewed 22 October 2017, <http://historichansard.net/senate/1938/19380511_senate_15_155/>.