17th Parliament · 1st Session
Mr. Speaker (Hon. J. S.Rosevear) took the chair at 2.30 p.m., and read prayers.
– In view of the importance of maintaining butter production, will the Minister for the Army arrange for expeditious handling of the applications of men experienced in dairy farming activities for release from the Army in order that they may return to their former occupations?
Alleged Breach of Regulations at bankstown.
– Has the Minister for War Organization of Industry yet received a departmental report concerning building operations in Bankstown by a person named Fitzpatrick? If so, lias Le made a decision in the matter?
– I have received a report, which shows, inter aiia, that certain building operations which the honorable member has alleged constitute breaches of National Security Regulations were undertaken before the building regulations were in operation. I have referred the whole of the papers to my colleague, the Attorney-General.
– Broadcasting to-day, the Minister for the Army deplored the fact that what Australia is doing in the war is not better known overseas. In order to achieve clearer and wider knowledge on that subject both overseas and in Australia, will the honorable gentleman endeavour to ensure that communiques concerning the operations of the Royal Australian Air Force and the Australian Imperial Force on the different fronts shall be separated from those relating to the other Allied forces?
– The fullest consideration will be’ given to the request of the honorable member
– I am concerned at the small number of photographs that is published of ‘ the splendid effort of our fighting forces in all war theatres, but particularly the outstanding achievements of our men in New Guinea.
– Order! The honorable member must state his question.
– As a preface to my question, I direct attention to the splendid records which appear in the press of Great Britain in regard to what is being done by the forces of the United Kingdom, Canada, and the United States of America, and the few photographs of Australia’s war record that are published. I know that a large number-
– Order !
– What I want to know is, what is being done by the photographers who are attached to our war departments, and what has become of their work? Why are they not making pictorial records of Australia’s war effort, particularly in view of the criticism of that effort which has been expressed in the United States of America?
– by leave- The honorable gentleman was good enough to inform me this morning that he proposed to ask me a question on this matter. I am becoming rather tired of the flood of propaganda which is beginning to assume the shape of an organized campaign to discredit the whole of the Government’s publicity service. In this House only a fortnight ago, I explained the position at some length. I then admitted that our service in Britain up to the present had not been adequate, but added that steps had been taken to establish in London a bureau to function on similar lines to the bureau that is functioning in the United States of America. The formation of that bureau is now in progress. But even with our limited resources in London, there has been a continuous flow on to the cinema screens of Britain and into the news and photographic columns of the British newspapers and magazines, of material from the whole of the SouthWest Pacific battle-fronts, stressing the part being played by the Australian forces. Our reports from London show that week by week the space commanded in the British newspapers by activities in this war theatre far exceeds the space devoted to any of the other Domini oils. I shall quote a few typical cases from our weekly reports.
In three weeks in December, 1943, news from this theatre in the leading British newspapers aggregated 21 columns, 26J columns and 37 columns, compared with Canada 8£ columns, 3$ columns, 5$ columns; New Zealand, nil, 3i columns, 1 column; and South Africa 2$ columns, 2 columns and 10£ columns.
Since the beginning of this year, our reports from London have shown that an increasing amount of space is being given to Australian affairs in the same newspapers, rising from 42 columns in the week ended the 12th January, 1944. to 464 columns in the following week, and to 81 columns in the week ended the 27th January, 1944.
On the basis of these figures, Canada, South Africa and New Zealand might claim that they .have a more legitimate ground for complaint than we have. But C point out to honorable members that, just as we are in an active war theatre in relation to the other Dominions, so thi$ war theatre is in competition in the world’s press with every other theatre of war, including the mammoth Russian theatre and the greatest news story in history - the impending second front”, and honorable members must not forget that the big bulk of the American forces, virtually the whole of the Canadian forces, and the largest proportion of the British forces^ are being concentrated at the moment for the second front offensive. Therefore, when this country is given SI columns of space in one week in newspapers that are severely rationed in regard to newsprint, with the small, inadequate service that we have bad in London, every honorable member must agree that we have not been sitting down on the job. Our London office maintains the closest association with the British Ministry of Information. As a result of this liaison work, the British Ministry is at the moment producing, in co-operation with Australia House and with the Australian Department of Air, a special film, for exhibition in Britain and elsewhere throughout the Allied world, dealing specifically with the heroic part that the Royal Australian Air Force is playing in the battle of Europe. In Australia, our department reciprocates by distributing British Ministry of Information photographs, newsreel, and other material. But the very newspapers which complain about our failure to impress the British press leave themselves open to the same charge from Britain, by the very poor response which they give to the joint efforts of ourselves and. the British Ministry to obtain proper publicity in this country for the theatres of war in which British forces are engaged.
I assure honorable members that, within the limits of. the funds that have been available, my department, both in America and in Britain, has done a remarkable job in competition with the propaganda units of over twenty different countries using much larger establishments, and expending thousands of pounds where we expend hundreds. Last year my department had a survey of the work of the Few York bureau compiled for the information of the Government. I intend to table that compilation in the Parliamentary Library. Honorable members, if they are interested, may see for themselves the nature and extent of the carefully planned work that is being carried out; but I should like them to bear in mind that any references to the domestic affairs of organizations with which the bureau has dealings are confidential. This review covers the work of the bureau in its exploitation of all publicity media - press, magazines, the issue of literature, radio material, the circulation of film material, the re-circulation of short-wave news broadcasts from Australia, the sponsoring of lectures, and the supplying of lecture material. The New York bureau is the only registered agency in the United States of America which is regularly supplying current factual material to educational bodies. It takes Australia into American schools, universities, debating societies and study circles. I do not intend to give figures relating to every phase of the bureau’s work, but I invite honorable members to go through the document which 1 am tabling, remembering that it is now twelve months old, and that most of the services have been expanded, and many new ones have been developed.
The standard of newsreel material sent by this department, from operational areas in the South-west Pacific has been recognized in both America and Britain as among the best which has come out of the war. It has received the widest publicity through the theatre audiences of Britain, America, Canada and New Zealand. These newsreel sequences have been fed also into India, South Africa and Russia. Any publicity organization operating in the United States must be registered with the Department of Justice, and must submit quarterly returns covering every one of its activities. These reports, being open to inspection by the Department of Justice, can be regarded as authentic.
Quoting from the report for the quarter ended the 31st December, 1943, made by the New York bureau, I shall give members a few facts concerning its activities. In addition to a number of pamphlets and booklets which arc in continuous circulation by the bureau, its monthly bulletin, which is named Australia and is made available only on request, has increased to a circulation of 12,000 per month. Fact .bulletins, covering activities of Australian women in the war, have been distributed to 1,000 women commentators. Circulation of a weekly mat and clip sheet to 450 American newspapers has been . continued. Seventy special news releases, based on recordings of short-wave broadcasts from Australia, have been distributed to special publications. Apart from routine servicing, research and inquiries, the radio activities of the bureau included participation in 156 separate American broadcasts. These included 129 sessions on the three largest American networks. In addition, members of the bureau staff either took part in, or otherwise assisted in, the compilation of seven feature radio programmes, and circulated to 125 radio stations each week a transcribed commentary entitled “ This Week in Australia “. In addition to these transcriptions, copies of the printed script were circulated to an additional 250 stations.
In this morning’s newspapers honorable members will have noticed that a volume on the war effort of Australia, which has just been, published with a first print of 50,000, has practically been sold out in London. A similar volume was recently produced in the United States, of America where 50,000 copies were circulated widely among the most influential and opinion-forming sections of the community.
I am tired of the nagging of illinformed critics, who after spending five minutes in America send back, or bring back to this country, derogatory stories of the kind that we have seen in the press in recent weeks. No Australian visitor who has been to America and has taken the trouble to examine the work of the New York bureau has ever returned with anything hut the highest praise for its achievements. It must not be forgotten that to Americans, the activities of their own forces are naturally of paramount interest and importance. For example, a recent issue of a leading American pictorial magazine contained a relief map of the New Guinea theatre showing American flags firmly planted over Lae, Salamaua and Finschhafen, the implication being that these Japanese strongholds had fallen to American troops and American troops alone. A very important part of the work of the bureau is tracking clown such misapprehensions, and endeavouring to secure correction of misstatements, which are due mainly to the natural enthusiasm of American correspondents, as of Australian correspondents, to make the publicizing of their own forces their first and immediate concern.
Over the same period, nineteen Australian newsreel sequences were distributed to newsreel companies and wenmade available to United States Army and Navy services, for showing in serviceestablishments. The bureau also continued the lending of Australian films t,<> educational army, trade union and other organizations seeking them. Under this heading 344 separate films were distributed during the three months to 159 separate borrowers. As these films are distributed only on request, it can be assumed that they reach the audiences for which they are intended.
The bureau’s participation in lecture activities falls into two sections, those directly promoted by the bureau and those for which material is made available. During the three months under review, thirteen separate lectures were directly sponsored and arranged by the bureau, and special material was prepared for many others. During the same period the bureau arranged several press conferences, one being for the members of the British Press Delegation on their way back from Australia to Britain.
In the same period, seven separate pictorial and other exhibitions were arranged, as far apart as Los Angeles in California, Boston in the east and St. Louis in the south.
Finally, without going into the huge volume of inquiries answered and the assistance given to people engaged in various forms of publicity in the United States, the bureau distributed 2,270 separate pictures of Australian troops in action during the three months. Of this number 837 went to press and photo agencies, 577 to newspapers and publishers, and 856 to other journals.
– Where were they published ?
– They were distributed in the United States of America, and it was no fault of the bureau if the newspapers failed to publish the matter supplied to them. We cannot control newspapers in the United States of America or in Great Britain, any more than we control the newspapers here. Even in Australia, we supply five times as much material to the newspapers as they use. If they do not use the matter which the department supplies to them, the complaints of honorable members should be made to the newspaper editors. Theirs is the responsibility for denying to the honorable member for Moreton (Mr. Francis) and others the right to see published those photographs of operations in New Guinea which they think they ought to see. I think I have gone into enough detail to give members some idea of the nature, the scope and the effectiveness of the work being carried out by the very compact and efficient organization which is maintained in New York, and I can assure them that, within a few months, activities of a similar nature and similar extent will be producing equally good results in Great Britain.
– Has the Minister for Information seen the article in the Argus of Friday last, in which the Department of Information is criticized for the fact that the people of the United States of America have so little knowledge of what has been done by Australian troops and war industries? Will the Minister examine the statements in the article and take appropriate action to ensure that the part played by Australian troops in the Pacific war shall receive proper recognition in the American press?
– I refer the honorable member to the statement which I have already made. I did not read the article in the Argus. I do not blame the Argus so much as the “writer of the article. It is a part of the propaganda campaign about which I complained in my statement.
– Has the Minister for Commerce and Agriculture seen the statement attributed to the Minister for Agriculture for Victoria, Mr. Martin, in Monday’s issue of the Melbourne Age, in which Mr. Martin states that machinery suitable for machinery pools is only now being made available? Has Victoria had the same opportunity to establish machinery pools as New South Wales and Queensland have had? What amount has the New South Wales Government contributed to machinery pools established in collaboration with the Commonwealth Government ? Is the apparently defeatist attitude of the Victorian Minister for Agriculture shared by other State Ministers for Agriculture? Does he think that this defeatist attitude will have any effect on the operations of Mr. Martin’s department, or upon the approach of primary producers to war-time problems of production?
– The Victorian Government has had the same opportunity to establish machinery pools as have the other State governments. I suggest that Mr. Martin, instead of indulging in carping criticism, should co-operate with the Commonwealth Government as has the Government of New South Wales, which, as an earnest of its sincerity, has made available to primary producers £100,000 free of interest for the creation of machinery pools. There is no reason why the Government of Victoria should not have done the same. I cannot say whether the attitude of Mr. Martin is defeatist, but I know that the officials of his department have co-operated in every possible way with the Commonwealth in order to increase the production of food. Sometimes, when I read the criticisms directed by Mr. Martin against Commonwealth administration, I wonder whether he is in earnest, or whether he really controls his own department, because, as I have said, the officials of the Victorian Department of Agriculture are doing a 100 per cent, job, and the people of Australia appreciate the fact.
– A long while ago, I asked the Attorney-General a question regarding the prices charged by proprietors for certain flats and boarding-houses, and I asked him what action he proposed to take, in conjunction with the Prices Commissioner, to control rents and tariffs. So far, the only reply I have received was to the effect that the Attorney-General was conferring with the Minister for Trade and Customs. In view of the fact that the unfortunate occupants of these places are having the important amenities of life taken from them, and that legal action is pending in some cases, I should like to know whether the Attorney-General intends to wait until they are deprived of all their rights before he takes any action?
– I said in answer to a previous question by the honorable member that I would bring the matter to the notice of the responsible Minister, the Minister for Trade and Customs, but, unfortunately, he was absent last week through illness. It is now proposed to niter the regulations so as to give the Treasurer power to deal with the matter at the most important point, that is, at the point of sale. When these businesses are turned over, the new proprietors increase the charges to the occupants. I can assure the honorable member that there has been no delay in this matter, and that investigations have been made. The Prices Commissioner has reported, and action will be taken within the next clay or two.
– by have - In accordance with the statement I made to the House yesterday on the subject of censorship, I have decided, after consultation with the Leader of the Opposition (Mr. Menzies) and the Leader of the Australian -Country party (Mr. Fadden), that the. committee to inquire into and make recommendations to the Government with respect to censorship shall consist of Mr. Forde, chairman, Dr. Evatt, Senator Ashley, Mr. Calwell, Mr. Abbott, Mr. Archie Cameron and Senator Foll.
– Will the Minister for Commerce and Agriculture endeavour to stimulate the production of molybdenum which has been proved by experiments in both plot and paddock to be a valuable fertilizer on ironstone country? Will the Minister endeavour to have some of this fertilizer made available in Western Australia, where there is a considerable area of ironstone country in the higher rainfall areas of the south-west, the main butter-fat producing area of that State?
– I shall confer with the honorable member later and have an immediate investigation made of the possibilities of molybdenum as a fertilizer. Anything that can be done to improve the supply of fertilizer in Western Australia shall be done, because we realize the disadvantages under which primary producers are labouring owing to lack of it.
– Has the Treasurer seen in the Sydney Daily Telegraph this morning the following cablegram: -
Lend-Lease Blanket Trick.
New York. Tuesday. - -The United States charge £2 8s. for u His. Australian blanket, says the New York Times. The paper uses this example as a warning that dollar figures Hive a false perspective of lend-lease aid. . . The 1,000,000 blankets which we are getting from Australia are billed to us at 16s. a blanket. But if we were giving these blankets to Australia we would be charging £2 8s. a blanket. In other words, for exactly the same amount of lend-lease in actual commodities. Australia would bc recorded as lending us only £825,000. but we should be Australia’s benefactor to the extent of £2.470,000.
Will the Treasurer consider charging reverse lend-lease aid to the United States at the dollar value of similar goods in America, as the present method of accounting on existing exchange rates is giving a very lop-sided view of the value and quantum of goods supplied by Australia compared with those obtained by it from the United States?
– I have not seen the paragraph. I am fully aware that prices in the United States of America for some commodities are very high. As to whether the pound sign or dollar sign should be applied to lend-lease or reciprocal aid between the United Nations, it is generally understood that those signs are applied only in order to give some idea of the volume of goods supplied.
– They give a very distorted view.
– They do not give a completely correct view of the exchange value of articles, but I think it is understood that both the United States and Australia agree, subject to physical limitations, to assist each other as far as they possibly can. That is the policy of Australia. This country has tried to give and has given to the United States of America in goods and services all that it is physically capable of giving, having regard to demands from other quarters and the labour and materials available. I repeat that pound and dollar signs after nil are only used within each country to give to that country an indication of the volume of the goods supplied.
– by leave - .On Friday, the 10th March, the honorable member for Deakin (Mr. Hutchinson) read a telegram which he had received from the general secretary of the Commercial Motor Users Association of Victoria concerning action taken by the Government affecting the operations of certain road transport services in Victoria. In reply to the honorable member. I now inform him that under’ a Cabinet decision made in January, 1942, if commercial motor vehicles had producer-gas units installed, they were permitted, under certain circumstances, to continue to operate in a manner which otherwise would have been regarded as nonessential. In all States excepting Victoria, non-essential operations which continued for a time in this way do not now remain. The vehicles themselves, or the producer-gas units with which they were fitted, have worn out or the vehicles have been diverted to essential work. In Victoria, where conditions are somewhat different, there still remain a few vehicles engaged in non-essential long-distance road transport on routes where railway services exist. Owing to the serious rubber shortage and the extreme difficulty in providing tyre replacements for essential motor vehicles, it is imperative that steps be taken to rationalize the operations of the few remaining vehicles engaged upon this non-essential long-haul work. They will be required to confine their operations within the limits imposed upon all other vehicles, unless permits are granted by the Victorian Directorate of Emergency Road Transport for particular operations beyond the limits generally imposed. The Director of Road Transport has already informed Mr. C. A. Pullman that the operators concerned should, if they desire to continue their present activities, immediately make application to the Victorian Directorate of Emergency Road Transport and that each application will be considered on its merits.
Maintenance of these uncontrolled isolated operations to particular areas is, however, inequitable and representations have been made from time to time concerning the anomalies and inequities which thus arise. The vehicles concerned will therefore be confined within the limits which apply generally throughout Victoria unless, more extended use is justified in any particular case to carry some special traffic which cannot otherwise be moved. Any restriction of railway service arising from coal shortage is met by a system of priorities within the railway systems themselves. The limited tonnages carried by the few road services concerned herein would hardly be noticeable if diverted to rail. If road transport were to be used to relieve rail transport, this would be done under a properly controlled plan providing maximum advantage over the widest possible area. Actually, however, owing to tyre shortage alone, road transport could not possibly be maintained at present to any extent in long-distance operations. All existing road transport facilities must he conserved for essential short-haul collection and delivery operations.
Since the matter was first brought to my notice, I have received numerous similar wires and have had representations made to me by various member?. In order to prevent any confusion, I have arranged for provisional permits to bo issued to the operators of the services affected pending a survey in each case and prior to a decision being given.
– The vice-president of the Northern Miners Federation, Mr. McBlane, is reported in the press as having said that the end always justified the means and that if strike action was warranted at any time, he would advocate it and put it into effect. Did the Prime Minister see that statement? If so, what action does lie intend to take against this man who, by his words and advice, is inciting the miners to break the law by a form of direct action, which may be construed as an attempt to sabotage the war effort?
– I have not seen the statement, but if such words were used they are an incitement to unrest. How far the statement is a violation of the law is not for me to decide. I am happy to assure the honorable gentleman that the prediction which I made last week of increased production of coal without any change of the personnel of the Government is being borne out.
– Will the Minister for Munitions inform mc whether it is a fact that the housing required for the employees at the explosives factory at St. Marys was overestimated to such a degree that 150 dwellings have never been occupied? If so, who is responsible for that overestimate, and what does the Government propose to do with the buildings which are not required at St. Marys, but are urgently required elsewhere?
– I have no knowledge of the circumstances mentioned by the honorable member. The provision of housing does not come under my administration, but is the responsibility of he Minister for Labour and National Service.
– In view of the very serious shortage of houses, which, in some districts, is resulting in the development of slum conditions and imposing great hardship, particularly on demobilized servicemen and their dependants, I ask the Prime Minister whether steps will be taken to galvanize the War Service Homes Commission into activity, seeing that it has /built only two homes during the war period? Has the Government any other plan to alleviate the present shortage?
– The Government is well aware of the shortage of houses and very much regrets it, but the materials and labour requisite for an extensive building programme are at present required for the purposes of the war against Japan. To the extent that materials and labour can be made available for house-building without impairing the vigour of our war effort, they will be made available, for the Government is most anxious to provide adequate housing for the people; but we must frankly face the fact that a deficiency of housing was manifest in this country before the war began, and it has become aggravated by war conditions.
– We know that.
– Our immediate problem is to provide sufficient building materials and labour to satisfy service requirements.
– The War Service Homes Commission is intended to build houses.
– A department cannot make bricks without straw.
– J3ut it must start operations some time.
– The quantity of timber at present being milled in this country is not sufficient to meet war requirements, let alone provide for private building needs.
– The same applies to coal.
– I am surprised that the honorable member for Barker, who should know a little more than most people about the war, should so flippantly interject about the timber shortage, which is a very real disability in the conduct of the war. The honorable gentleman knows very well that the coal shortage has contributed to the timber shortage. The honorable member’s lack of a breadth of outlook is also a contributing factor to our difficulties.
– Yesterday the Minister for Commerce and Agriculture advised me of the existence of a “gentlemen’s agreement” between New South Wales and Queensland to prevent the growing of rice in Queensland. He informed me that the agreement was signed by the Minister for Agriculture in Queensland and himself at a meeting of the Australian Agricultural Council. Will the honorable gentleman advise me who signed the agreement on behalf of Queensland and what value, if any, it has been or can possibly be to the Queensland sugar industry ?
– The honorable member is labouring under a misapprehension. I did not state that an agreement had been signed or otherwise entered into between any particular Minister and myself. What I said was that a meeting of Ministers for Agriculture, over which I presided, reached a “ gentleman’s agreement “ that Queensland should not grow rice and in return New South Wales would not grow sugar. The agreement has the approval of the Ministers for Agriculture in New South Wales and Queensland, and I, on behalf of the Commonwealth, do not .intend in any circumstances to interfere with that arrangement.
– Is it a fact that a Minister for Agriculture of New South Wales has sacrificed the rights of sugar producers in the Northern Rivers district of that State to increase their acreage now or in the future, as the result of an alleged agreement with the Minister for Agriculture in Queensland and the Commonweallth Minister for Commerce and Agriculture? When was this agreement made, and were the sugar producers’ organizations of New South Wales given an opportunity to express their opinion on the matter?
– The Commonwealth Minister for Commerce and Agriculture does not come into this matter at all. Any agreement on the subject was made between the Ministers for Agriculture of the two States concerned. I have nothing further to say on this subject.
– Did the Minister for Repatriation read a statement by Mr.
Currey, V.C., in the Legislative Assembly of New South Wales yesterday that 5 per cent, of the original purchasers of war service homes in New South Wales now owe more money to the War Service Homes Commission than they did when they began to buy their dwellings’? Did the Minister see Mr. Currey’s further statement that many returned soldiers, after having paid the original purchase price of their homes, now owe the commission an equivalent sum for interest? Will he give the soldiers of the present war an opportunity to own their own homes in a reasonable time?.
– Although some purchasers of war service homes now owe more money to the commission than the original purchase price of the dwellings, the honorable member must bear in mine! that for seven or eight years during the depression many of them did not pay one penny to the commission. Some are now making repayments of 17s. 6d. a week, and are sub-letting their dwellings for £2 10s. a week. My only regret is that the Commonwealth has not got 80,000 instead of 8,000 of these dwellings in New South Wales. My department has done everything possible for returned soldiers, and is most anxious to assist them to own their own homes.
– Will the Prime Minister inform me whether there are any further developments in Western Australia following the recent air-raid alert there?
– I do not know what the honorable member means by “ developments “. If he means changes of the situation as it relates to the conduct of the war with Japan, I inform him that steps which have been taken throughout Australia recently were based on waging the war as far as we can direct the offensive and at the same time, meet any offensive that the enemy may seek to launch. What has taken place in Western Australia or elsewhere recently is perfectly explicable to those who know the justification for ir.
Committee of Inquiry
– According to a report in The New Era of the 10th March, Senator Darcey wrote that the AttorneyGeneral had appointed a commission consisting of Judge Read, Mr. Allan Guy, M.H.R., and himself to investigate certain taxation cases; that they had held two meetings in Hobart to deal with two cases ; and that they would have to visit Western Australia and Queensland to hear several cases. Will the AttorneyGeneral inform the House of the nature of this inquiry, and whether the visit to New Zealand, which Senator Darcey states he intends to make in April, will be at the Commonwealth’s expense?
-Senator Darcey’s projected visit to New Zealand is not associated with his investigations into certain taxation cases, and he will not make the trip at the Commonwealth’s expense. The honorable senator is a member of a tribunal appointed to inquire into certain taxation matters, and it will commence its duties immediately this sessional period closes.
Releases for Rural Industries - Employment of Italian Internees
– Will the Minister for External Affairs investigate a complaint of the Tully branch of the Returned Sailors, Soldiers and Airmen’s Imperial League of Australia that whilst a Tully dairyfarmer cannot secure the release of her son from the Army, two sons of militaryage of an Italian in north Queensland have been granted exemption because of their father’s internment? The father has since been released, but neither of his sons has been called up for military service. As the Leader of the Australian Country party (Mr. Fadden), the honorable member for Wide Bay (Mr. Bernard Corser), the honorable member for Maranoa (Mr. Adermann) and I have received strongly worded protests concerning the employment of Italian internees to the detriment of Australians. I ask the Minister to makea com pre- hensive statement on the subject before the end of this week.
– I shall consult with my colleagues who are administering the departments concerned, and then furnish a reply to the honorable gentleman’s very long question.
Motion (by Mr. Curtin) proposed -
That Government business shall take precedence over general business tomorrow.
.- Yesterday I moved disagreement with a ruling of Mr. Speaker on a subject of the highest importance. I do not desire to delay Government business, and I have no wish to discuss the subject-matter of my motion at this stage, if the Prime Minister (Mr. Curtin) will give me an undertaking that my motion will be called on within a reasonable period. The subject at issue should be settled in an atmosphere entirely devoid of party influence, for it relates to certain broadcasting procedure, which is a matter of great concern, not only to the Parliament, but also to the people of Australia. I ask the Prime Minister whether he will submit the matter to the Standing Orders Committee of which you, Mr. Speaker, are chairman, as that committee consists of some of the most experienced members of the Parliament. If that be done it should be practicable to reach a decision which will be entirely devoid of party influence.
– I have strong views on the propriety of Government business taking precedence over general business tomorrow. It is regrettable that the Prime Minister no longer holds the views which he enunciated in this chamber in 1940 concerning sittings of the Parliament. At that time he was of the opinion that the Parliament should meet for at least one week in each month. As things are now, private members of the House have very limited opportunities to bring to the notice of the Ministry business which they consider to be of very great importance. Honorable members on this side of the House art finding it increasingly difficult to speak on the floor of the House on matters “which are of moment to their constituents. Apparently supporters of the Government have no say in such matters. It has been suggested that the Parliament will adjourn indefinitely on Friday of next week. If that should happen there will have been only one sitting day during a six weeks’ period on which private members have been enabled to bring forward matters of consequence to their constituents. With the extension of the practice of government by regulation, of which we all are so well aware, a greater necessity has arisen than ever before existed for the private members of this Parliament to act as watch-dogs for the community. I can see no justification for this motion, but although I do not intend to call for a division on it, I am obliged to say that the patience of honorable gentlemen on this side of the House is wearing very thin. The proceedings in this chamber in the last five weeks have not suggested that the Government has any important or urgent business to submit to the House, for the pace at which business has been transacted has been such as would warrant a snail being charged with breaking the speed limit.
.-I object to private members’ business being pushed aside in this way. Honorable members have found that while the House has been sitting they have not been able to raise matters that they wished to discuss. Ministers have promised to give attention to matters that have been raised, but almost surreptitiously answers to questions have been laid on the table of the House, conveying the information that what was requested could not be granted.
– What doe3 the honorable member mean by “ surreptitiously “ ?
– Reading a statement late at night, when perhaps only a few members are present.
– Why is the honorable member not in his place when such statements are made?
– The number of my attendances exceeds that of the majority of Ministers. I want the Parliament to continue to sit. The present sitting is likely to continue throughout to-night, the desire of the Government being to complete the business of this sessional period and get into recess, when the bureaucrats will be entrusted with the task of carrying on the Administration. We do not propose that Ministers shall be allowed to escape from their obligations. The Prime Minister (Mr. Curtin) has asked what has been done surreptitiously. I shall tell him. I asked the Minister for Commerce and Agriculture (Mr. Scully) a question in regard to the tinning of butter for export to Britain, for the benefit of n nation that is bearing the brunt of the war and is not receiving a proper quota of foodstuffs from Australia. The honorable gentleman promised to give sympathetic consideration to the proposal, but later stated that it could not be adopted. On another occasion I informed the Minister for the Navy (Mr. Makin) that certain clerks in his department wished to enlist as members of air crews in the Royal Australian Air Force, but, although they possessed all the qualifications that were needed, they were prevented from doing so. The honorable gentleman “passed the buck” to his departmental head, and in two or three answers later gave no satisfaction. The Parliament is to rise, although it should be dealing with such matters as that of young men in the departments and many others being prevented from playing a citizen’s part in the war. because the Minister will not put his foot down and do the right thing. The Government has acquired numerous blocks of land from persons who did not want to sell them, and has offered ridiculous prices for them. The Prime Minister heard the right honorable member for Yarra (Mr. Scullin), the honorable member for Ballarat (Mr. Pollard), and many honorable members on this side speak to this matter.
– And we received a satisfactory answer.
– The honorable member may be satisfied, but I am not. The Prime Minister promised some sort of impartial investigation, but later the statement was made that the Lands Acquisition Act made certain provision in respect of compensation, and that a private valuer had been engaged to make valuations; therefore, no further action will be taken.
– I agreed that valuations should be made by an independent valuer. I am satisfied that the procedure provides for this.
– The right honorable gentleman does not claim to be satisfied with the result! I am prepared to move for the adjournment of the House to discuss the matter as one of definite urgency. The brushing aside of the privileges of private members, as the right honorable gentleman intends, is wrong. I want the Parliament to sit, instead of a bureaucracy being left to churn out fiats and codes after it has risen. The more opportunities for debate we have, the greater will be our scope for exposing the weakness of this Government. I therefore oppose the motion.
– I, too, protest against this infringement of the rights of private members. We could understand the action of the Prime Minister (Mr. Curtin) if he were consistent in his approach to matters affecting the rights of private members; but he is not. When he led the Opposition, he and those who supported him were continuously laying a barrage against the Government, stressing the need for additional sittings in order that honorable members might have greater facilities, for the statement of their case, and the opportunity to criticize the Administration. Indeed, he said that that was one reason why he would not participate in the formation of a national government - because he considered that it was the right of a live, virile Opposition to criticize the Government’s attitude towards works that were considered necessary for the successful prosecution of the war. Now that he occupies an exalted seat, his attitude is entirely different. The honorable member for Reid (Mr. Morgan) has faised in this House time after time, on the motion of the adjournment of the House, as well as by means of questions to the Minister concerned, a matter of great, importance, of which I have some knowledge, and in respect of which rumours are circulating which are not very savoury. Numerous individuals, a nd possibly some members of the Govern ment, may not wish to have their attitude in relation to it exposed. I know that the contractor in question has been carting certain material to the Bankstown aerodrome.
– The honorable gentleman does not believe that Ministers have something which they wish to hide in relation to a matter of that sort.
– I am pointing out-
– Order ! Honorable members may give all the reasons that may appeal to them in support of non-interference with the business of private members to-morrow, but they are not entitled to discuss matters in detail.
– I appreciate that. I am giving reasons why honorable members on this side should resist the attempt to deny to private members the right to air their views and to criticize Government” activities, and a-m instancing matters that are of great public moment, concerning which I have heard rumours and about which I shall perhaps have something to say later.
-The honorable member will be quite in order so long as he does not discuss the matter in detail.
– -For two or three weeks, I have endeavoured to persuade the Attorney-General (Dr. Evatt) to take action in regard to a matter which vitally affects the freedom of certain individuals in the metropolitan area of Sydney. Honorable members on this side of the House have a multiplicity of mattors which need to be debated. We do not mind subordinating these to Government business, if the Government is prepared to go ahead with its business at regular, stated intervals throughout the year, thus giving to us a fair opportunity to take advantage of the forms of the House; but we are not prepared to give to the Government the right to shelve private members’ business and to rush into recess in order to prevent the exposure of matters which we consider are of vital importance to this country. If the Government wishes to rush into recess in order to stifle criticism, honorable members of the Opposition must take every advantage of the forms of the House with a view to full publicity being given to the opinions which they hold.
.- The House is entitled to have a reasonable explanation from the Prime Minister (Mr. Curtin) as to why the course proposed has suddenly become necessary.
– The explanation is that only one bill has been passed in six weeks.
– It is not an exaggeration to say that there is a great deal of disquiet outside this House at what is taking place in Commonwealth departments, and at the failure particularly of those honorable members who support the Government to ventilate adequately the grievances of those who consider that they are being injured by acts of Government policy.
– I am quite sure that the honorable gentleman does not know what he is talking about. The discussion of grievances will be the first business tomorrow.
– The right honorable gentleman proposes that that should be subordinated to Government business.
– I am not proposing anything of the kind.
– The motion of the right honorable gentleman is that Government business shall take precedence over general business.
– Under the provisions of Standing Order 241, either Supply or Ways and Means will be the first Order of the Day, Government business, tomorrow.
– Then may we take it that to-morrow a full opportunity will be given to private members to discuss matters which normally would be discussed under the heading “Supply”?
– If no one else wishes to speak, I shall rise and reply.
– The right honorable gentleman can answer the question by way of interjection. Is that a correct understanding of the position?
– -Order! Interjections are disorderly.
– They may be disorderly ; but their absence can sometimes be embarrassing. This House is peculiar among the Houses of Parliament in Australia, in that very little provision is made for the transaction in it of private members’ business. The introduction of bills by private members is a frequent occurrence in most of our State legislatures. In this House, however, the practice has been for private members to have certain privileges .at question time, and occasionally during the course of a sessional period to have a general debate on a supply bill or a discussion of grievances on certain Thursdays. The interests of private members must definitely be protected, particularly at a time when the Government has not only an overwhelming majority in this House, but also a majority that is so dumb, and so docile to the crack of the caucus whip, that the electors are unable to have thenviews properly represented. It would be a tragic day for democracy in this country if private members were not prepared, irrespective of the side of the gangway on which they sat, frankly and fearlessly to voice the grievances which their constituents brought before them. Therefore, we require an assurance that this opportunity will be available to us.
– I understand that to-morrow is what we call Grievance Day, and that the first business will be a motion - “ That Mr. Speaker do now leave the Chair “. On that motion, all members will be able to ventilate grievances. If I am wrong, I shall be glad to he corrected.
– The right honorable member is perfectly correct.
– I understand that the effect of the Prime Minister’s motion will be to enable Government business to take precedence of motions under the names of the honorable member for Warringah (Mr, Spender) and the righthonorable member for Cowper (Sir Earle Page). There need be no anxiety regarding the motion standing in the name of the honorable member for Warringah because, unless it comes on for discussion within the stipulated number of days, the by-law to which it refers will be disallowed. Therefore, the Government is bound to allow the matter to be discussed. The right honorable member for Cowper has suggested that the matter which forms the subject of his motion be referred to the Standing Orders Committee. It is important that the matter should be decided, and I have no doubt that if it is not referred to an appropriate committee, the Prime Minister will give an assurance that an opportunity will bc provided before the session ends to enable the point to be discussed and determined. I have risen merely to indicate that, as I understand the matter, the rights of honorable members to bring forward matters on Grievance Day will be preserved. If I thought otherwise I should join with other honorable members in objecting’ to the motion, but as it is I have no objection.
– in reply - There must be some very tragic days in the life of this Parliament if what I have heard this afternoon is to serve as an accurate statement of what has occurred. Time and time again the motion which I have moved has been moved by my predecessors, and enthusiastically supported by my critics of to-day. What the Leader of the Opposition (Mr. Menzies) has said is correct. To-morrow is Grievance Day, and the appropriate motion will be submitted as the first item after questions. When the honorable member for Fawkner (Mr. Holt) says that private members have few opportunities in this Parliament to bring matters before the House, and compares the procedure here with that in the State Parliaments,” he can actually have little knowledge of the procedure in State Parliaments.
– I have knowledge of the procedure in the Parliament of mv own State.
– Then the honorable member’s memory must be at fault. Tha first hour of each day’s proceedings in this House is taken up in discussing matters raised by private members. Although they take the form of questions asked by members, the fact remains that this is an opportunity for private members to ventilate matters of their own choosing. Then, unlike the practice in some parliaments, where the motion for the adjournment of the House at night must be put without debate, it is the custom here for the motion to be debated for quite a long time, the opportunity being taken by private members to discuss matters of interest to themselves and their constituents. This motion is not a usurpation of the rights of private members. I desire to make that point clear, and also to correct the unfortunate misapprehension that prevails in the minds of many people that private members are somehow suppressed in Parliament. As a matter of fact, the very opposite is the fact. We all have been private members at one time or another, and I have yet to discover a way in which a private member can be kept from doing something that he wishes to do. The Standing Orders have been drawn to protect his rights. If the proper procedure is followed he may bring forward what matters helikes.
The suggestion of the right honorable member for Cowper (Sir Earle Page) places me in a difficult position. If he withdraws the notice of motion of dissent from the ruling of Mr. Speaker, I can then with propriety consider whether it should be referred to the Privileges Committee, or brought before some other committee; but while there is a motion on the notice-paper it would be unbecoming for me to take further action.
– I should be prepared to withdraw the notice of motion if the matter were referred to the Standing Orders Committee.
– I shall discuss with the right honorable member the committee to which the subject-matter of his motion ought to be referred - not, of course, the motion of dissent.
– I have given a’ ruling, and there is only one body competent to vary that ruling, namely, the House itself. If the subject-matter regarding which the objection was originally raised can be satisfactorily dealt with by a committee, well and good, but my ruling stands until the House disagrees with it.
Question resolved in the affirmative.
Motion (by Mr. Chifley) agreed to -
That leave be given to bring in a bill for an act to amend the Commonwealth Employees’ Compensation Act 1930.
Bill presented, and read a first time.
– by leave - I move -
That the bill be now read a second time.
In 1930 the Commonwealth Employees’ Compensation Act 1912 covering compensation for injuries received by Commonwealth employees was replaced by comprehensive legislation on more uptodate lines. In the intervening fourteen years, no amendments have been made to the present act, but all State governments have found it necessary to amend workers’ compensation legislation. In some directions the basis has been altered, and in several respects the benefits granted have been made more generous than under Commonwealth legislation. Since the beginning of the war, the industrial activity of Commonwealth departments has been considerably enlarged in scope, and the necessity to widen compensation for injury caused by industrial process has become increasingly apparent. Furthermore, benefits, originally measured in the light of the onset of a financial depression, should now be made more generous. This bill therefore contains important variations from the present law, the chief of these being -
The maximum payment to dependants in case of death has been increased from £750 to £800, plus an additional payment of £25 for each dependent child under sixteen years of age. The present minimum payment is £400, or three years’ pay, whichever is larger. The bill varies this provision by increasing three years’ pay to four years’ pay. The definition of dependant has been widened.
Present-day conditions warrant a review of weekly payments during incapacity. The act provides for twothirds of the weekly pay with a maximum of £3 10s. a week. Seven shillings and sixpence a week is allowed for each dependent child under fourteen years of age. It is now proposed that the weekly payment to the injured employee be a maximum of £3, with £1 for a wife or a housekeeper dependent on the employee, and 8s. 6d. for each dependent child under sixteen years of age, the total weekly payment not to exceed the employee’s pay at the time of the injury.
Weekly payments to an employee suffering permanent total incapacity continue indefinitely. Where the injury is not permanent and total, an injured employee is entitled, under the act, to receive in total weekly payments not more than £750. With the amplified weekly benefits now proposed to be granted, it is deemed desirable to increase this amount to £1,000, so that the maximum period during which weekly payments continue shall not be reduced.
An important benefit granted by State legislation in recent years is compensation for injury sustained between the employee’s place of abode and the place of employment and between either of those places and any trade, technical or other training school which he is required by the terms of his employment to attend, provided that the injury is not due to his own default or wilful act. The bill makes a similar provision for Commonwealth employees.
The second schedule covering industrial diseases is being replaced by a new schedule which, on the advice of the DirectorGeneral of Health and the Munitions Health Advisory Committee, improves the classification of diseases, widens the description of certain diseases, and includes additional diseases caused by industrial process. Under the actan employeesufferingfromanindustrial disease can receive compensation only if the disease was caused within twelve months prior to date of incapacity. On the advice of the Director-General of Health, this provision is being amended so that the commissioner under the act may, at his discretion and after full inquiry, extend the period up to fifteen years for two specified diseases where the onslaught is gradual over an extended period of years.
In the third schedule of the act provision is made for lump-sum payments to an employee who receives an injury as specified therein. This schedule at present is not sufficiently comprehensive, and anomalies do occur. With the assistance of the Department of Health and on the recommendation of the DirectorGeneral of Health, a new schedule has been prepared to include a greater number of specific provisions and thereby to eliminate the anomalies. The amounts included are proportionate to a maximum compensation of £800 instead of £750.
Several minor amendments in other directions have been incorporated in the bill, mainly to eliminate administrative difficulties. These will be explained in detail at the committee stages.
Debate (on motion by Mr. Holt) adjourned.
Debate resumed from the 14th March (vide page 1295), on motion by Dr. Evatt -
That the bill be now read a second time.
Upon which Mr. Menzies had moved by way of amendment -
That all words after “That” lie left out with a view to insert in lieu thereof the following words: - (vide page 1027).
.- I approach this bill with mixed feelings. I realize that, on the one hand, it contains very many things that I wholeheartedly support. On the other hand, there are important omissions which somewhat reduce the value of the other powers that are provided for in this bill. This war has demonstrated two things of great importance to Australia: First, that we can achieve great things when our population is organized for a great purpose and everybody available is employed for that purpose and, secondly, that with our existing population and man-power we could not defend ourselves from invasion without the help of men and man-made munitions from overseas. It is certain that no responsible man will claim that our coast line of 11,000 miles and our territory of 3,000,000 square miles could all be defended by a total lighting force of approximately 750,000. That is the utmost which a country with the present population of Australia could equip and supply. All must recognize that by ourselves alone, with only 70 fighting men to each mile of coast and one to every 4 square miles of area, we should be unable to provide adequately for our defence. We cannot live indefinitely on whatever laurels we may have gained from this war, and hard facts must guide our postwar policy. We must develop population rapidly. Australians will never be content to let the other fellow do the fighting and to depend on the goodwill of kinsmen overseas and the United States of America. We must learn to stand on our own feet. We may hope that there will never be another war in the Pacific, but we cannot safely live on hope, and, if there is another war and we have to face it with 70 m.en to each mile of coast and one trained fighting man to every 4 square miles of territory, that war may well be our last. Let us resolve, therefore, that Australia shall live and that we here and now must enunciate a policy that will enable Australia to live.
Without immigration, greater family life and the natural increase of population, Australia will be weaker in manpower 30’ years hence than it is to-day. The war has brought home to us vividly the suddenness of the fate that can befall ;i nation not able to defend itself. We may hope for a better post-war world in which the strong will protect the weak against a powerful aggressor, but we cannot live on hope, and we should not rely for our protection upon the goodwill of others. As soon a3 circumstances permit, we must restore our declining families by ensuring social security to our people. In addition, we must make possible a continuous flow of immigrants. This policy has been advocated on frequent occasions, but very little has been done to achieve practical results. Now is the time for us to formulate a plan of action. This must be no paper plan, and we must act quickly. We have been given a breathingspace, not by our own exertions alone, but partly as the result of the efforts of powerful friends who have come to our aid. This must be the objective of our policy and our action, transcending all else in urgency and importance. This action must be taken so that Australia shall live in security and our children shall remain a free people. Nothing is more important than that.
Any alteration of the Constitution’ to provide the Government with wider powers should embrace certain objectives which I shall mention. One goal ought to be to double our present population within twenty years, and to double it again as rapidly as possible. Many authorities contend that a population of 30,000,000 is the maximum that this country can carry. Some critics will declare that my idea is to attempt too much, too quickly. Others will say that it does not go far enough. Actually, it is the utmost that can be achieved under present conditions and in the light of experience. With 30,000,000 people, Australia would have approximately twothirds of the population of Great Britain, which, it must be remembered, successfully defied invasion across 20 miles of water when the country was virtually unarmed. A population of 30,000,000 could provide nearly 3,000,000 welltrained, well-equipped fighting men to hold our land inviolate for all time. To carry that idea a step farther, we must adopt certain internal measures to provide a sure and adequate livelihood, not only for our present population, but also for larger families and for men, women and children who may be expected to migrate to Australia after the war. Unemployment must be stamped out permanently, because it is a destroyer of individual lives and national security, and the greatest obstacle the task of populating Australia. When unemployment is rife the birth-rate declines and immigration ceases. We even lose population by emigration. Australia’ can afford neither the loss of population nor unemployment.
In the task of populating Australia as a major objective in global post-war strategy we must have the active cooperation of Great Britain and the United States of America. We shall endeavour to have the plain fact recognized that Australia, with 7,000,000 people, under attack, is a liability to the great democracies. A weak Australia is a temptation to aggression and a menace, in itself, to the people of the world. But with a population of 30,000,000 people, Australia can be made impervious to attack, a powerful asset to the democracies, a warning to aggressors, and a bulwark of peace, especially in the Pacific. Australia remains the only large territory that can be populated by an Englishspeaking, peace-loving democracy of great strength. Strategically, the country is so placed as to serve as the third great corner-stone in the triangle of peaceloving democracies. If conditions were to continue as they have for the last fifteen years, the population of Australia would never reach 8,000,000, and before this generation passed there would be fewer virile people - those between 20 and 50 years of age - than there are to-day. Australia would grow steadily weaker in manpower, and would be subject to recurrent depressions that harass the people and retard progress. Although that is a bleak prospect, it is a danger only if we refuse properly to face it. Under attack wc may expect assistance from overseas, but we must depend upon our own efforts. If we obtain externa! aid, so much the better ! If we do not, we must still endeavour to carve out our own destiny in the Pacific. That will require all the courage and resolution that have made our fighting men so respected as they are. We shall not experience easy times, and the measure of our difficulties will be the magnitude of our opportunities. No plan of action will be easy; but sourplan of action will be safer for thi-, country than continued inaction. It gives up scope to build the kind of new orde: that so many people very earnestly, if somewhat vaguely, desire.
Let us be clear regarding principles. First, Australia must have more population, both native-born and immigrants. Secondly, to retain that population Australia must have abundant work and social security for a larger population. Thirdly, continuous full-time employment must be assured, because under no other conditions will our population increase in these times. Fourthly, to maintain continuous full-time employment, we must have a broad policy based always on certain consistent principles. This policy must be financial as well as political. It, must provide abundant money for investment at low rates of interest. Monetary policy must be guided by the self-evident truth that the expansion of industry, the provision of homes, the development of work places, the construction of transport, the opening up of land, the building of harbours, dams and waterworks, and a thousand and one other amenities of life all cost money. In our position, what is true of war is true also of peace. Wo must pay the price of security, and the price is likely to be high. If our population is to be doubled in twenty years, then, in some directions, we must invest nearly as much within those two decades as we have invested in the whole of the pre- ceding 155 years of our history. That implies that vast sums of money will have to be expended. Despite loose talk about public debts, and the total ignoring of the assets created by such expenditure, it is true that only a fraction of Australia’s development has resulted from government expenditure from loan moneys. For better or worse, the settled policy of this country is that governments shall control and operate the public utilities such as transport, irrigation, harbour and water works and the like. But the vast bulk of our agricultural and manufacturing development, of our building construction and vehicle manufacturing, and of our amusement and recreations, has been achieved by private initiative and financed by private capital. That policy, in my view, must continue. It can continue only if our banking system provides abundant money at reasonable rates of interest for investment in sound securities. No better security exists anywhere than can be found in a country with a rapidly growing population. In some respects housing will provide one of the major means of restoring family life, and of maintaining the security of the family. There will be a vast leeway of building arrears to be overtaken in order to provide not only for newcomers to this country, but also for many people already here who have been unable to find homes for themselves. Building construction must be kept flowing strongly and continuously year in and year out in order to meet the urgent and expanding needs of the community. It must never be allowed to languish. To ensure this, abundant money at reasonable interest rates will be essential. In the pre-war years, during which our population was increasing at a very slow rate, an amount of approximately £40,000,000 per annum was being expended in building construction. Yet, as the Prime Minister has reminded us this afternoon, even that expenditure was not sufficient to provide for our needs in respect of homes and buildings generally. Out housing arrears alone will require the expenditure of from £80,000,000 to £90,000,000 per annum; but we shall also require to provide for immigrants. It is safe to say that with a reasonable immigration policy in operation in the post-war years, we shall require to expend not £40,000,000 but £100,000,000 per annum on housing, and- we shall have to maintain that expenditure steadily. We should not engage in short bursts of building activity, with long and devastating periods of. relative idleness in between, but we should maintain construction at a steady rate for at least the next twenty years. Experience in older and more developed countries has shown that property is always a sound investment if interest rates can be kept at a reasonable figure. Instead of having 200,000 men engaged intermittently in building operations, and in the equipment of homes, we should have 400,000 men working continuously in these callings. Housing, therefore, will provide a vast and sound sphere of work with a steady and remunerative rate of pay for very many men in the post-war years. The conditions should be such as will permit the homes to be occupied for about £1 a week. Under these circumstances, family life will be given a much-needed stimulus, and, after all, family life is the foundation of national life. In the past, scarcity of housing has always been a deterrent to child-bearing and childrearing, and has led to the development of slum conditions, and to ill health, real poverty and misery in the community. It has lowered the standard of living and practically ruined the lives of tens of thousands of people.
But housing is only one phase of what I may term the fertilizing effect of investment and development, such as a new country like Australia needs. We can add to the expenditure that I have proposed an annual investment of several hundred million pounds each year for the purpose of settling additional people in this country. We have been spending at the rate of approximately £600,000.000 per annum for war purposes. We must spend that amount and more in an endeavour to populate and develop this country in the days ahead of us. Admittedly, most of our war-time expenditure is unproductive and will place on the community a dead-weight debt which will have to be liquidated from future taxation ; but most of the expenditure which I have been advocating for developmental purposes will be productive and will provide its own sinking fund, for it will lead to an expansion of the national income. The more we can expand the national income and the population of the country, the more we shall decrease the per capita burden of debt.
I do not propose that the Government shall be the sole investing authority. Governments, of course, will have to put big national works in hand, but in the main private enterprise will need to invest in the other developmental enterprises, such as housing, to which I have referred. The Government will need to ensure that interest rates shall be kept at a reasonably low figure, and that conditions are made favorable, and kept favorable, for sound investment that will result in the expansion of both primary and secondary industries. Both primary and secondary industries must he developed in this country, though not necessarily by the direct action of governments. I have already indicated that the world demand for exports was decreasing before the war. Our primary production had reached saturation point on the home market; but whilst we were securing our relative proportion of the export trade, world trade was decreasing in the years immediately preceding the outbreak of the war, and all countries were facing crumbling markets. Our own secondary industries have been unable to win any considerable volume of export trade, and our production was being limited more and more to the needs of the home market. It may be confidently expected that for a few years after the termination of this war, a strong demand will be made by overseas countries for all that we can produce, but this demand is likely to be more or less temporary. We should use that period of export trading as a breathing space and as an opportunity to apply a national policy which will enable us to hold our ground when the temporary stimulus to the export trade has lapsed, as it surely will lapse. Unless we make good use of the time available to us in these years, another depression will undoubtedly overtake us; we shall find ourselves again in the depths of economic difficulty and it will be extremely hard to restore our industries to profitable production. Immediately peace is in sight, and we can proceed with demobilization, we should begin a planned restoration of our fighting men, munitions workers, and others, to the industries in which they will he required under the populating and developing policy which I am enunciating. There must be no delay, gap, or hiatus. It would be a national tragedy, as well as a personal tragedy to countless thousands, if there were any “ pulling of punches “ at that period. We must continue to put our money into development, just as we have been putting it into defence. Immediately the war ends, we must make a commencement with immigration, home-building, and developmental works, because bousing and amenities generally must at least keep pace with the growth of population. This, of course, will ensure a high demand for labour, the continuance of full employment, and a growing home market for the products of our indus- tries. By no other means can adequate, sustained markets be ensured; and markets we must have if there is to be a continuance of full employment and an increase of our population. The home market is the best and most dependable, granted we have the will, the wisdom, and the resources with which to provide it. I have already said that such a policy as I have outlined is not easy. Nor is it safe in the orthodox sense. On the contrary, I agree that it is difficult and that, if it be not carefully handled, it can be dangerous. But whether it be difficult or dangerous, it is the only way to ultimate security. In essence, it rests on the self-evident and rather simple proposition that the growth of Australia is in itself a sound investment. “We can create this opportunity if m’o have the will to do so, just as we created a great war potential within a very brief period. All that is needed is the will to do it, combined with the skill, judgment and resolution to carry it through. We must end conditions which arc conducive to the circumscription of the growth of Australians by adverse circumstances, either external or internal. If we can obtain external aid, so much the better; if we cannot, then we shall have to proceed with the task alone. Finally, this policy which I have enunciated will depend for its fulfilment upon our own vision, courage, enterprise, and faith in Australia.
Those are the directions in which I consider the Constitution of Australia ought to be altered. Under the existing constitutional set-up, with sovereign powers divided between the States and the Commonwealth, it would be difficult indeed for any Commonwealth Government to give full effect to the suggestions which I have made. I had hoped that when the Government brought down this bill to alter the Constitution it would have not only given consideration to certain proposals which had been agreed to at a convention of representatives of the Commonwealth and. the States, but also would have taken a comprehensive view by proposing that there should be submitted to the electors proposals for the granting of power which would give to the Commonwealth real authority to do all the things that are necessary if we are to achieve national progress. I am sorry that certain vital matters have been omitted from the bill. I refer in particular to the lack of provision for some degree of security for the primary industries in the post-war period. Extensive powers are to be sought in respect of employment and unemployment and the organized marketing of commodities, but in respect of the marketing of primary products, there is a qualification which will negative the whole value of organized marketing.
– “ Commodities “ includes primary products.
– The bill provides for the organized marketing of commodities. But paragraph vii. states that no law made under this paragraph with respect to primary production shall have effect in a State until approved by the Governor in Council of that State. Primary commodities cannot be divorced from primary production, because production is the whole basis of the prices of primary commodities. If, because of division of authority between the Commonwealth and the States, the production of wheat, rice, or any other primary commodity be unchecked, it will be of no use to control the commodity when it is being marketed and sold for next to nothing. If these powers are to be of any value to the primary producer, primary industry as a whole will have to be controlled from the ploughing of the ground to the marketing of the commodity. No protection is proposed in respect of the great meat industry, which is represented by many honorable members, when the National Security Act lapses twelve months after the termination of the war. At the present time, the stability of the wheat industry is based on several foundations - the limitation of acreage, the licensing of planting, the curtailment of production, and, finally, a guaranteed price. Under the proposed powers in relation to the organized marketing of commodities, the Commonwealth would not be able to take action until after the wheat had been harvested. If 300,000,000 bushels was an economic production, it would not be able to prevent the production of 500,000,000 bushels, and the consequent ruin of those engaged in the industry. At the present time, the National Security Act enables the wheat industry to function under a stable scheme. This’ legislation will leave the industry after the war exactly as it was before the war; in fact, in a worse position, because it will degenerate to a state of comparative chaos.
– Absolute nonsense !
– It is interesting to hear that interjection from an honorable member who represents a wheat-growing district. He will have some difficulty later in explaining to his electors why he did not take action to have included in this measure some provision for the protection of the wheat-growing industry. The same danger threatens the great dairying industry, which is the principal primary industry in the district which I represent. The present system of marketing control rests upon the National Security Act, and when that act ceases to operate the industry will he left once more to its own devices, unless the States agree to introduce some measure of control. It is only necessary for one State to stand out for the whole system to collapse. I had some experience of these matters when I was administering the Department of Commerce and Agriculture. I presided over more than one meeting of the Agricultural Council, consisting of representatives of all the States, and I learned that complete agreement between the States on matters of this kind was practically impossible. At one meeting the representative from South Australia proposed, in view of the difficulty of marketing Australia’s wine surplus, that the planting of wine grapes should be restricted. Although Victoria was but a small producer of wine, the Victorian representative would not agree to the proposal, and because Victoria would not agree, South Australia could not impose restrictions lest Victoria should take advantage of them to increase its own acreage. At the very same meeting of the council, the Victorian representative proposed that the planting of potatoes, of which there was a surplus at the time, should be restricted, anc! this time it was South Australia which refuse^ to agree. That kind of thing occurs time after time at meetings of the Agricultural Council, and that is why the Commonwealth should have an overriding authority. By this bill all sections are to be benefited in some way, except the primary producers. The Commonwealth is to have power to legislate for ensuring security of employment and control over trusts and combines, but the unfortunate primary producer is to be left exactly where he was before the war. As a matter of fact, he may find himself worse off than he was. Organizations of primary producers are greatly disturbed at the omission from this bill of any provision to protect their interests. Indeed, they are specifically excluded. For instance, paragraph vii states that the Commonwealth shall have power to legislate in respect of -
The production miti distribution of goods, but so thai -
no law made under this paragraph with respect to primary production shall have effect in a State until approved by the Governor in Council of that State ;
What does that mean for the wheatproducers if it does not mean that they are to be left exactly where they are?
– But these are the proposals which emanated from the States themselves.
– The States, or, at’ any rate, some of them, have turned the proposals down, and there is, therefore, no further obligation on the Government to submit to the people the exact proposals” to which the States agreed at the Constitution Convention. The Government may now submit any proposals it chooses.
– The honorable member agrees that the powers are not’ wide enough ?
– I agree that it is proposed to leave the primary produce:to be the wood-and-water joey of the community, as he has always been. The entire marketing and stabilization scheme in connexion with the dairying industry is in danger of tumbling to the ground when the National Security Act ceases to operate after the war, and this condition of affairs could be brought about by the withdrawal from the existing arrangement of one large butter factory. Under the powers which it is proposed to obtain the Commonwealth could do very little to prevent this from happening.
The Attorney-General may be able to explain how it could be prevented, but I have read the proposals carefully, and I cannot see anything that could prevent the marketing arrangements of the primary industries from falling into chaos after the wai- - not reversion to the old order of things, but possibly something a little worse. It is in fact in a large measure throwing the primary producers to the wolves.
I am strongly in favour of proposed new power No. X, which deals with the uniformity of railway gauges, but I would go farther and include a provision to enable the Commonwealth, if it saw fit, to take over completely the control of railways and other forms of transport in Australia. [Extension of time granted.] Country development and decentralization of industry depend more upon the control of transport facilities than upon any other factor. The discriminatory railway freights that exist all over Australia prevent the development of country industries, because there can be no hope of industries being established away from the coast under a system which results in different freight rates operating immediately goods pass a State boundary. If this country is ever to be made secure, one of the cardinal things which, will have to be done is the drawing of our population back from the great cities. Factories must be established far inland, as in Russia. What ultimately saved Russia was the fact that it was not entirely dependent on the Ukraine and industries there. It was able to recover its breath and fighting ability by falling back on war industries established beyond the Urals. In the last couple of years, Australia has learnt the greatest lesson of its history, namely, that had Sydney, Melbourne or Brisbane been destroyed or damaged, its war effort would have been substantially reduced. One of the warnings that we ought to take from this war is, therefore, that we must shift our industries as far back from the coast as we can. We can do that only if the Commonwealth has complete control of railway, road and other transport facilities. This bill provides for power in respect of only one feature of transport, namely, the uniformity of railway gauges. Why not submit to the. people a proposal that the Commonwealth be given power to take over the railway systems as a whole?
I do not intend to refer in detail to the other proposed powers, because I am in agreement with a great many of them, although my agreement with some of them is qualified. I should like to learn from the Attorney-General what he means by “ organized marketing of commodities “.
– We shall have a good discussion, on that in committee.
– Since the Government has expressly excluded the production of primary commodities, I should like the Attorney-General to say in his reply which are the commodities whose production the Government proposes to organize. Are they boots and shoes, or women’s clothing, or agricultural machinery, or refrigerators? Can the Attorney-General give, us specific information as to what this vital paragraph means? If it does not mean the marketing of primary products, it must mean something else, and if it means something else we want specific information as to what it means and how it may be applied. I am not at all nervous about conferring these proposed powers on the Commonwealth Government, although a great many people are, but I am opposed to a referendum which excludes primary producers from any benefit of increased Commonwealth powers, while conferring on the Commonwealth power to legislate for other sections of the community. It would be farcical to submit a separate referendum on the control of the marketing of primary products with only the primary producers, a very small section of the people, voting in favour of the Commonwealth taking the power. Primary producers have no hope of getting an alteration of the Constitution to enable the Commonwealth Government to control marketing, unless such a proposal i-° coupled with others which are favorable to other sections of the community. The Government will have badly let down the growers of all kinds of foodstuffs, unless at the same time as it submits these proposals to the people it gives them an opportunity to vote on improved marketing conditions.
Mr. LANGTRY (Riverina) [4.46’J.- Notwithstanding that the honorable member for Richmond (Mr. Anthony) has claimed that primary producers are excluded from benefit under these proposals, I take this opportunity on behalf of the primary producers to compliment the Attorney-General (Dr. Evatt) and the Government upon having brought down this bill for a referendum to be taken on. an extension of the powers of the Commonwealth. It is most unfortunate that the attitude of the States, as expressed in some legislative councils, has forced the referendum to be proposed as the only alternative to the carrying out of the decision of the Constitution Convention that the States should refer the proposed powers contained in this bill to the Commonwealth Parliament for a period of five years after the end of the war. The people will, however, be glad of the opportunity to vote in favour of the Commonwealth taking these proposed powers which are necessary for post-war reconstruction. On constitutional matters, I prefer to that of the honorable member for Richmond the advice of the Attorney-General, whom I regard as the greatest constitutional authority in the land, and he assures, me, as does his colleague the Minister for Commerce and Agriculture (Mr. Scully), that the Government will continue to apply the policy which has resulted in more prosperity and contentment among primary producers than the policy of honorable gentlemen opposite could achieve in a lifetime. We all know that Australia is a primary-producing country and that without stabilized prices for wool, wheat, butter, fruit and other primary products the country cannot prosper. It was the failure of our predecessors in office to provide for the stabilization of primary production that caused thousands of farmers to pick up their swags and walk off their properties. Now the same honorable gentlemen who were responsible by their bad legislation for the slump in the primary industries have the hide to advise us not to pass this bill. I can understand members of the United Australia party taking that attitude, because their interests are those of the cities, but I cannot understand members of the Australian Country party, who shed crocodile tears at the plight of the farmers, declaring that the primary producers are excluded from this legislation. Before 1 came to this Parliament, I thought that there was a lot of hypocrisy in it, and I am now convinced of that. The Government proposes that it shall have power over employment and unemployment. My mind goes back a few years to the greatest depression this country has ever suffered, when the pride of our manhood and womanhood was forced to subsist on a dole of about 5s. 6d. a week. That starvation payment is the greatest blot on Australia’s history, and those responsible were men of the type of honorable gentlemen opposite who oppose this Government having power to control employment and unemployment. Private enterprise thinks only of itself and does not care whether men starve by the roadside, with their wives and families thrown to the wolves. These are not suppositions. They have been borne out by experience. Nothing was done for the unemployed. When representations were made to the United Australia party Government to give these unfortunate men an opportunity to earn a Christmas dinner, they declared that no money was available for that purpose. Now they urge the people not to give the Commonwealth’ Government power to start new industries and employ members of the fighting forces after demobilization. When the United Australia party was in office, it had a miserable record of failure. The people now look to the Labour Government to rehabilitate in the post-war era returned servicemen, employees of munitions establishments, and thousands of people directed from non-essential to essential jobs. Our soldiers must be found employment in trades and professions, because -they have succeeded in keeping this land free from the horrors of war. The La,bour party has the interest, ability and sincerity to reestablish them in industry.
I shall not deal with the necessity for decentralization, but I was highly amused when honorable members opposite declared that industries should be transferred from the big cities to country districts. When they had the opportunity, they did not encourage decentralization or proceed with the standardization of railway gauges and the electrification of rural areas. When war broke out in 1939, about 250,000 people were unemployed in Australia, and honorable members opposite refused to help them. I had not intended to participate in this debate, but I could not endure in silence their hypocritical utterances. The Labour Government will not abuse these wider powers, if granted. Having saved Australia from the ravages of war, it now requires power to give to the people security and contentment in peace-time. The men who risked their lives to preserve Australia from the enemy, deserve the best possible social conditions that this great land of the Southern Cross can give to them.
[4.43 . - in reply - The House has listened to u long but very interesting debate. Honorable members from all parties, and from all States, have taken part. Several constructive suggestions have been made. I refer particularly to the suggestions made in relation to the exercise of parliamentary control over delegated legislation, and also to the suggestion made by the honorable member for Warringah (Mr. Spender) for including an amendment guaranteeing freedom of speech and expression.
British countries have tended to rely on Parliament itself to provide by ordinary legislation whatever safeguards in these matters may be necessary. I myself felt for many years that under contemporary conditions, it would be wise to follow the example set by the Constitution of the United States of America, and to give to two at least of the fundamental freedoms of democratic citizenship the special protection of embodiment in the Constitution. The Government included in the draft bill which was submitted to the Constitution Convention a proposal to extend the existing guarantee of religious freedom and a new guarantee of free speech. These, naturally, found no place in the Commonwealth Powers Bill, for they could not be “ referred “ by a. State to this Parliament.
I have circulated three amendments which, on behalf of the Government, I shall move in committee. One relates to delegated legislation, the second to freedom of speech and expression, and the third to freedom of religion. These amendments will incorporate some of the suggestions made by the Leader of the Opposition (Mr. Menzies), and by the honorable member for Warringah. T notice that the Leader of the Opposition, in the fourth paragraph of his amendment, expresses concern for “ the liberty of citizens … to exercise their rights as free people”. It is with that end in view that the Government propose? to include these guarantees.
Of course, some will contend that these freedoms are not endangered. They will certainly not be endangered by this Government. But a time may come when, under a government of Fascist sympathies, the freedoms may be whittled away or even destroyed. Then it would be too late to think of a constitutional amendment.
– Fascist or Communist !
– Extremist government of any kind. There are considerable numbers of observations made by public men in. this country before the war showing too great a receptivity of the idea of Hitlerism and Fascism. There is no harm, and. there is definite positive good, in limiting the opportunity for the repression which under Hitler and Mussolini was first endured, then pitied, and finally almost embraced. I think I can say, from the letters and messages I have received, that a tremendous body of non-partisan leaders of thought in this country, including church leaders of all denominations, welcome the inclusion in the bill of the two freedoms which President Roosevelt regarded as basic to the democratic way of life.
To these special provisions I shall return later, but in closing the debate I recapitulate the main grounds upon which the Government has rested its case for the bill. I shall then show that the debate has not weakened the Government’s case, but has in many respects confirmed and -strengthened it.
The essentials of my opening speech can, I think, be stated in four propositions : First, that the existing peace-time powers of the Commonwealth will not he adequate to carry out a national plan of post-war reconstruction; secondly, that the list of fourteen powers agreed upon at the Constitution Convention are the rninimum necessary for the task; thirdly, that the failure of four States to refer the agreed list of matters leaves the Government no alternative now to seeking the necessary powers by way of referendum; and fourthly, that the Convention list has the advantage of ensuring that in certain vital aspects of postwar reconstruction the States will be associated with the Commonwealth in carrying out the national plan.
No member of the House has denied my first proposition - that the Commonwealth needs additional powers for postwar reconstruction. I do not think that any responsible person could deny it. The Leader of the Opposition stated, and, indeed, over-stated, some of the possibilities of the existing powers of the Commonwealth, but he did not dare to affirm positively that those powers would he adequate for the immediate post-war years. He contented himself, as the Prime Minister (Mr. Curtin) pointed out, with a cautious double negative - that the existing powers of the Commonwealth had “not been shown to be inadequate “ for the task of the post-war reconstruction period. On this, I need not remind the House that both the Deputy Leader of the Opposition (Mr. Hughes) and the honorable member for “Warringah, who both speak with authority on such matters, emphatically disagreed with the Leader of the Opposition. Both thought that in vital respects the existing powers of the Parliament would be inadequate. I remind the Leader of the Opposition that in his speech on this bill, he expressed a much wider view than he has done on other recent occasions on some important Commonwealth powers. The defence power, as the honorable member for Warringah observed, is one of them; the power with respect to interstate trade and commerce is another. In 1938, the right honorable gentleman was at pains to show that trade and comm’erce present an essentially unitary problem, which cannot be effectively dealt with by a power divided between the ‘Commonwealth and the States.
The Leader of the Opposition has moved an amendment, in order to limit substantially the tasks which the Commonwealth should be permitted to undertake in the post-war years. But even for those restricted tasks he seems to have agreed that the position should be placed beyond doubt by constitutional amendment. That is an important point for honorable members to keep ‘ in mind. Honorable members of the Australian Country party have unanimously affirmed the need for further Commonwealth powers in the post-war years. But the case for the Australian ‘Country party has not been presented in any uniform manner. Some honorable members of that party appear to think that the powers ‘being sought are too great, and some of them have said that the powers are insufficient in certain respects. I shall deal in detail with those contentions when the bill is in committee and shall refer particularly to the subject of the marketing of primary products. The debate has disclosed, therefore, that, practical unanimity exists as to the need for additional powers for the Commonwealth. Honorable members opposite, however, have contested the second and third of the propositions on which, as I have said, the Government rests its case. The Leader of the Opposition -and some of his supporters have contended that the list of powers agreed upon at the Convention should be substantially reduced. The Leader of the Australian Country party and some of his supporters have contended that such additional powers as are necessary could be obtained, without a referendum, by further negotiation with the States.
Let me deal first with this contention. The Government has no wish to close the door to the possibility of action on the part of the four States whose parliaments have not passed, the Canberra bill into law, to make an effective reference of the agreed list of matters to the Commonwealth. That, however, is a matter not for this Government or for this Parliament, but for the State governments and parliaments concerned. I make it clear that the Parliaments of Western Australia and South Australia have not carried into effect the agreement of its Premiers, and, therefore, the passage of the Commonwealth Powers Bill through the Legislative Council of Tasmania would not, of itself, give to the Commonwealth the agreed list of powers throughout Australia.
To those honorable members who regard as a practical solution of this country’s present problem a renewed attempt to secure the necessary Commonwealth powers by reference from the States, I would say, to begin with, that they must be well aware that suggestions for a further conference between the Commonwealth and the States have already been discussed as between some State leaders. Apparently they came to nothing. Why? Because there was not sufficient likelihood of a meeting upon common ground. Further, it is quite obvious, in view of what has happened in some of the State parliaments, that some, at least, of the Premiers would not now be in a position to make any undertaking to carry out the terms of the original agreement. No good purpose could be served by a further conference with the State Premiers unless the Government were prepared to whittle down substantially the list of powers which was agreed upon at the Convention. The Government is not prepared to do that. It would be recreant to its trust if it did so. Such action would probably cause chaos in the community in the post-war years. In some States it has also been contended that a five years’ reference would he invalid. If that should prove to be so, the Commonwealth would have no powers whatever by virtue of the reference. That difficulty would have to be overcome before any good purpose could be served by another conference. That difficulty, moreover, was not raised at the Convention although the legal advisers of the Commonwealth and of the States were present here in force. The contention that the reference of powers for a limited period would be invalid came later, and if, powers having ‘been referred, that argument should prove to be correct the position of the Commonwealth would be extremely difficult. I suggest, therefore, that to hark back to the reference method at this stage might lead to utter disaster.
– Then it is a good thing that there was no reference of powers.
– I have not said that. I am referring to this point at some length, because of the strong suggestion of the honorable member for Indi (Mr. McEwen) that the endeavour to obtain power by reference should be renewed. Since the Convention was held, men of authority and learning in the law have argued that doubt exists concerning the competence of the State legislatures to refer power to the Commonwealth Parliament for a limited period under section 51. It has been said that any reference for a limited period would be invalid. If it were ultimately held by the High Court that a reference of this kind was invalid the whole edifice that we arc seeking to erect to enable us to cope with the post-war period would be destroyed.
– There has been no support in the High Court at any time for such a contention.
– No, the point has never been considered by the High Court, but support has been given to the contention in legal opinions furnished to State authorities. I mention the point because of the peculiar and terrible danger which would await the Commonwealth Parliament if it accepted power by reference and that method ultimately proved unconstitutional.
It has also been suggested in the debate that the differences between the powers contained in the Canberra Convention draft bill and the powers contained in the bills that have been passed in South Australia and Western Australia are relatively minor and insignificant matters. I endeavoured to show in my secondreading speech that this was not so, and I illustrated it from the two vital matters of employment and production. Instead of referring the whole subject of “ employment and unemployment “, the Legislature of South Australia referred a much more limited subject, along the lines of the amendment moved in this House by the Leader of the Opposition. The reference by South Australia was -
The employment of unemployed persons on national works, public works, and local government works, and the relief of unemployed persons by grants and loans of money and goods and by unemployment insurance and occupational training.
Behind that proposal there seems to be the suggestion that all that the Commonwealth Government could do to meet a surge of unemployment would be to pay out money, put in hand public works on which men could be employed, and perhaps apply a dole system, some kind of an unemployment insurance scheme, and a plan for occupational training. It would certainly follow that the Commonwealth Government would not be able to provide, by direct law, for security of employment and it could not, by direct law, prevent mass dismissals.
– If the Commonwealth Government were to take over works immediately, very probably under its existing powers it could make laws in respect of “employment and unemployment “.
– Yes, but I arn pointing out that instead of referring to the Commonwealth Parliament the great power of “ employment and unemployment “ that was agreed to at the Canberra Convention by all the State Premiers and Commonwealth representatives, the Parliament of South Australia has agreed to refer only a limited power such as, I regret to say, the Leader of the Opposition has confined himself to in his amendment.
– The Attorney-General has not made clear to me the extent to which the South Australian proposal would limit Commonwealth authority, for the Commonwealth would still possess it..-! appropriation power to provide employment.
– I am sure that the honorable member for Indi followed the speech of the Leader of the Opposition carefully. The appropriation power of the Commonwealth is still under fire. One of the judges of the High Court considered that it could not be used except for providing money in pursuance of existing Commonwealth power already stated in the Constitution. Other judges said that the matter could not be determined at that stage. In any case, it is, in itself, an utterly unsubstantial foundation for Commonwealth legislation. The Leader of the Opposition gave us his opinion on the subject when he said that he did not consider that the appropriation power could be used at all except for the purpose of providing money to give effect to legislation passed under the existing Commonwealth constitutional powers. That was the view expressed by Mr. Justice Starke. Other judges have left the matter open. Power over “ employment and unemployment “, I point out to the honorable member for Indi, is crucial. If this power be not referred to the Commonwealth, or vested in the Commonwealth by referendum, all the rest of the powers of the Commonwealth will be inadequate. The wage-earners of South Australia would not think it a minor matter that, under the act as passed by the State Legislature, this Parliament would have no power to provide for security of employment for them in their ordinary jobs in the post-war years.
Instead of referring to the Commonwealth the general subject of “the production of goods”, the legislature of Western Australia referred a much more limited subject - “ encouragement of production and of the establishment of new industries “. Members of the Australian Country party have said that they want the primary production power in order to limit production.
– They have. not. Only one of our members spoke on that subject.
– All of those who discussed the point critically suggested that the power was desirable in order to limit production.
– Nothing of the kind.
– I understood the honorable member for Richmond (Mr. Anthony) to suggest that.
– He said that it might have to be used in that way. He did not commit the party. No other member of the party spoke on the subject.
– The right honorable gentleman must see that power in respect of production, as such, would give to the Commonwealth Parliament the authority either to increase or to diminish production, and to pass any necessary law to achieve either purpose. The legislature of Western Australia said : “ We will not give the Commonwealth power over production as such; we will limit it to the encouragement of. production and of the establishment of new industries “. The people of Western Australia as distinct from the legislature of that State, will not think it a minor matter that, under the a-ct as thus passed by the State legislature, this Parliament will have no power to prevent the wasteful production of unessential goods in Western Australia, even though vital supplies for housing construction, for example, may be in short supply there. To these matters I shall return later. With an eye to the practical difficulties that are certain to arise in the immediate post-war years, no Commonwealth Government could regard such differences as. insignificant.
In short, the matters to which I have drawn attention suggest how little practical outcome there is likely to be from further consideration of the Powers Bill by the States, in their present frame of mind, at any rate. I remind the House again that the problem of securing unanimous agreement by the States cannot be solved merely by altering the thriceasserted decision of the Legislative Council in Tasmania to reject the Powers Bill. In view of the nature of the changes made by South Australia, and by Western Australia, the fact that the Victorian act can only be proclaimed if each of the other States has passed substantially the same act constitutes another major difficulty. In this connexion, I refer to the illuminating letter from Governor Denison, quoted by the honorable member for Denison (Dr. Gaha). Sir William Denison recommended the creation of legislative councils, with special reference to Tasmania, in order to check the development of the essentially democratic spirit which actuates the large mass of the Australian community, and to prevent that spirit from coming into operation. In the handling of the Commonwealth Powers Bill by the States, several of the Legislative Councils have effectively exercised the function’ for which, according to Sir William Denison, they were thus created, that of keeping the people in check and keeping down “ the democratic spirit”. Although the Legislative Council of Tasmania has rejected this bill on three occasions, the honorable member for Indi (Mr. McEwen) says, “ Go over to Tasmania and have another try “. It is open to the four States which have not acceded to the agreement which their Premiers made at Canberra, to pass the law in the approved form. If they did that, there would be no need for a referendum. The matter does not affect Tasmania alone. Wo have also to consider the complication introduced by Mr. Dunstan in Victoria. He provided that the Powers Act should come into force in Victoria only if other States passed it either literally or in substance. He assumed the role of one who should make the last decision. Of course, if every other State had done what the Parliament of Victoria did, the legislation would not be in force in any State. This is an illustration of the difficulty of achieving agreement among the States. As I have clearly illustrated, the references made by South Australia and Western Australia are inadequate in relation to vital points.
Nothing that has been said during the debate has weakened the statement I made in my opening speech, that the failure of four States to pass into law the Canberra agreement has created a chaotic position. My further remark, that this Parliament might find itself forced to exercise some of the powers that have been referred to it by the States of Queensland and New South Wales, which have adopted the Canberra formula, has, I think, been misunderstood, particularly by the honorable member for Darwin (Dame Enid Lyons). She interpreted what, I said as an admission that the Commonwealth could quite well “ carry on “ in New South Wales and Queensland alone. As a general proposition, that is altogether erroneous. Some of the powers cannot possibly be exercised effectively except on a completely Australia-wide basis. The power to fix prices is an excellent illustration of that. If the price of a commodity were fixed in New South Wales and Queensland alone, chaos would be caused immediately in the other States and the price-fixing scheme would break down. But there are other powers which could possibly be exercised in respect of two or three States only. That is, of course, plainly implied by the very nature of paragraph xxxvii of section 51 of the Constitution, under which a “ reference “ from a State may be made. The illustration which T gave in my second-reading speech was the power to give security of employment by regulating the right of dismissal. The Leader >f the Opposition stated that he. did not believe the powers would be exercised in respect of two or three States only. In many cases, it would be inconvenient to do so, and might cause anomalous results. But circumstances might very well arise in which inaction on the part of this Parliament would be by far the greater, of the two evils. I trust that such a position will never arise. But I assure the right honorable gentleman that what I said in opening is quite sound and is not a purely fanciful suggestion.
– Without the power to pass industrial laws, this Parliament can do nothing effective in relation to postwar reconstruction.
– I quite agree. Without the power over employment, and over industrial matters associated with employment, in that period which will follow the cessation of hostilities, the Commonwealth Parliament will ,be helpless. Western Australia and South Australia have made alterations which we cannot accept.
I appreciate the reason given by the Leader of the Australian Country party (Mr. Fadden) and his followers for urging the Government to persevere in its attempt to solve the problem of recon- struction powers by means of a reference from the States. It is clear that success along those lines would make a referendum in war-time unnecessary. The Government sympathizes with the desire to avoid a referendum while hostilities are still in progress, and while the people are still taking the strain of the war effort. Indeed, we have shown in the most practical fashion our sympathy with that view. But I say frankly to the House that the disadvantages of a war-time referendum may be greatly exaggerated. The holding of elections in this country during the war has not been destructive of the war effort, and the distinction between the holding of an election and the holding of a referendum is not substantial. There are, moreover, some real advantages in calling upon the people to think concretely, realistically and responsibly, at the present stage of the war, about the essentials of. post-war reconstruction. The servicemen are the electors most affected, and provision will be made for them to vote. I venture to forecast that they will vote in overwhelming strength in favour of the bill.
– Because they will not hear the case against it.
– That is merely to say that they will not hear what does not exist. The suggestion that the issues are too grave and complex to be satisfactorily decided by the people under war conditions can, I think, be dismissed. The Government’s decision ‘to seek the new powers for only a limited period has deprived that argument of any force it might otherwise have had. The Government is not asking the people to make up their minds now, once and for all, on the question of whether or not the Commonwealth should permanently be entrusted with authority over the important new matters specified in the bill. The issue is the very much simpler one - whether, to meet the difficulties of the immediate post-war period, a temporary enlargement of the normal peace-time powers of the Commonwealth should be made. I have already conveyed to the House the Government’s intention to call, before the end .of the five-year period, a convention to revise the Constitution as a whole. Accordingly, the Government proposes to limit to the five-year period even the constitutional guarantees which it proposes to insert in tie bill. Nothing but an interim decision, therefore, is required from the electors. I put to the House that this reduces to very small compass the objections which some honorable members have expressed to the holding of a referendum during the war.
A good deal has been said during the debate about the possibilities inherent in a Constitution convention. I make bold to say that there is a certain amount of humbug about this. The House will not suspect me of holding an unduly low opinion of the advantages of such a gathering. After all, this Government summoned the first Constitution Convention that had assembled since federation. It must not be forgotten, however, that the normal convention, under our own Constitution, is the Parliament of the Commonwealth itself. This is the only body which can initiate alterations of the Constitution. The position is quite different under the Constitution of the United States of America, which does expressly contemplate the possibility of amendment by way of conventions. As the Deputy Leader of the Opposition said, a representative Constitution convention, however elected or appointed, is likely to have as its central element the political leaders of Australia for the time being. How would such a convention be elected? Presumably, there would be 74 divisions from which representatives would be drawn. Considering the display of constitutional, legal and political knowledge during the course of this debate, I cannot believe that any honorable member of this House would consider himself disqualified from election to such a convention. Presumably, therefore, most of the present members of this House would be elected, and then we would get back to what we have now. a parliament.
Practical men must deal with situations as they find them. I invite the House once again, as I invited it in my third proposition in opening the debate, to accept the fact that, for all practical purposes, there is no present alternative to proceeding with a referendum. The desire to avoid a referendum may easily become simply an escape into unreality. Honorable members may seek to avoid, by that route, the disagreeable necessity of making up their minds whether or not the powers contained in the Canberra list are necessary for the tasks of post-war reconstruction. In this regard, I commend to the House the example of the right honorable member for North Sydney - the Nestor of this House. Though averse to the holding of a referendum during the war, he said frankly that he realizes its necessity in the present circumstances, and he emphatically declared his view that at least all the powers contained in the bill are necessary. In other words, he will advocate an affirmative vote. On the same platform we shall have, when we go to the people, the Prime Minister (Mr. Curtin), the Deputy Leader of the Opposition (Mr. Hughes), and, I hope, the Leader of the Opposition (Mr. Menzies), though I am not confident of that. We shall also ha.ve the honorable member for Warringah (Mr. Spender), and a section of the Australian Country party. The honorable member for Maranoa (Mr. Adermann) will, I hope, be there.
I think that the honorable member for Darwin drew a wrong inference from the attitude to the bill of the Deputy Leader of the Opposition. The right honorable gentleman said that, if he were asked whether, under its existing powers, the Commonwealth has ample authority to deal with all the problems that will arise on the cessation of hostilities, he would say frankly that he did not know. He added that nobody else knows. But that was not in any way an argument against granting the powers contained in the bill. Nor was it an argument for taking no action until the matter could be further discussed at another convention. The convention would not be one whit better able to clarify the position than this Parliament is to-day. Uncertainty as to the scope of some of the Commonwealth’s major existing powers does not arise from any lack of ability in this House to understand the problems, or from any failure to give adequate time to their study. It arises from the very nature of the powers themselves. You cannot determine the ambit of a constitutional power by a precise formula, as though it were the area of a circle. Exactly how far a power will extend, at a future date and under conditions largely unforeseeable, must inevitably be, to a large extent, a matter of opinion. If opinions differ about the potential adequacy of the Commonwealth’s existing peace-time powers, that in itself is a case for conferring additional powers in order to put the matter beyond doubt.
The choice, as the Prime Minister said, becomes one as to whether there shall be a referendum on the bill as introduced, or one on the substance of the amendment submitted by the Leader of the Opposition. This brings me to my second major proposition in opening, the debate, that the list of ‘ further powers drawn up at the Convention must be regarded as an indispensable minimum. How does that list compare with the list adumbrated in the sixth paragraph of the amendment moved by the Leader of the Opposition? How far can the list proposed in the amendment be considered , an effective provision for a national plan of post-war reconstruction?
In passing, I note that the amendment moved by the Leader of the Opposition would eliminate all the safeguards for State interests and State co-operation which the list in the hill contains. The fourth proposition which I made in opening the debate was that the Convention list did ensure, in certain vital aspects of post-war reconstruction, that the Commonwealth would act in association with the States. The Government recognized that the limitations embodied in the paragraphs regarding primary production, public works, and national health might, in some circumstances, prove hampering to the Commonwealth. But that was a part of the agreement, and the Commonwealth will abide by it. The right honorable gentleman expressly proposed to abandon all these special provisions.
In point of mere numbers, the amendment contains, though with some modifications, most of the fourteen powers that are contained in the bil] : I think about ten of them.. But the important thing is to ascertain what substantial matters have been omitted. The language of the amendment is in some places very general, but the clear intention of the Leader of the Opposition is to deny to this Parliament any new powers with respect to employment, except the power to use grants, loans, insurance, training and public works for the provision of employment and the prevention or correction of unemployment; and, secondly, to deny to it any new powers in relation to production. His amendment would not permit a law preventing mass dismissal, or restricting the right of dismissal. Such legislation as the Women’s Employment Regulations, fixing standards of employment to meet new conditions, irrespective of the existence of an industrial dispute, would be simply impossible.
In my opening speech, I emphasized the importance of arming the Parliament, to meet the inevitable economic difficulties of the immediate post-war years, with the power to carry out any policy which the circumstances of the hour required, provided that the people approved. My arguments have been strongly reinforced by the Deputy Leader of the Opposition, and by my colleagues on this side of the House. The Leader of the Opposition proposes, on the other hand, to fetter the Commonwealth, even in these difficult years, by a cast-iron prohibition against any participation in commerce or industry which it could not undertake within its present powers. If the defence power were really as comprehensive, in time of peace, as the right honorable gentleman now think3, this prohibition might not turn out to be very important. He is, in fact, in this dilemma : that either his proposed prohibition is worth little or his estimate of the peace-time scope of the defence power is exaggerated. There is a further matter to be considered. This proposed prohibition would seriously impair the effectiveness of national works, as a contribution towards solving the problem of unemployment in the post-war years. Yet this is the instrument on which the Leader of the Opposition would chiefly rely.
Suppose, for example, that the Commonwealth decided to construct an electricity undertaking to serve an area on both sides of a State boundary. Once the buildings had been erected and the plant installed, the question of getting the undertaking to work would arise. The prohibition now proposed by the right honorable gentleman would prevent the Commonwealth from carrying on the undertaking as owner, unless it could be justified under existing powers, which I do not think would be possible. Nor, I take it, as a practical matter, would the Commonwealth be able even to dispose of the undertaking to either State, except on terms to which both States would agree. The whole undertaking might be held up during months or years of negotiation.
Underlying the amendment moved by the Leader of the Opposition seems to run the theory that the Commonwealth can deal effectively with unemployment by means of public works, such as roads or bridges. Once they have been built, they virtually cease to give employment, lt is quite otherwise with public works, which result in the establishment of some enterprise or undertaking that will continue to give employment after the initial construction is complete. An electricity’ undertaking is an illustration of the kind of government enterprise members of all parties favour. Only the former class would be within the powers contemplated by the amendment.
Neither this Parliament, I venture to say, nor the people, will be ready to accept any plan for post-war reconstruction which does not make a far more direct and effective provision than that for grappling with the problem of unemployment. I remind the House that, when the present war broke out and the present Opposition was the Government, there were about 250,000 men unemployed in Australia. The ‘people are determined never to go back to that kind of thing again. But the spectre of unemployment cannot be banished, except through the fullest development of all Australia’s resources of men and materials. The prospects of success in the task are hopeless from the outset if the nation’s efforts are to be restricted to certain selected methods of development. The task will be so great that every known method will be required. 1 turn next to the contentions of the Leader of the Opposition with regard to “ employment and unemployment “. He said first that this is so wide a subject as to be incapable of definition. He thought that the phrase must enable the Commonwealth to deal with anything which, directly or indirectly, immediately or remotely, could provide or increase employment or prevent or relieve unemployment. He concluded, therefore, that the powers should be cut down, and the Commonwealth should be permitted to deal only by certain specified methods with the provision of employment and the prevention of unemployment.
I agree that “ employment and unemployment “ is a wide power - the widest power in the bill. I have claimed that again and again. I do not agree that the power is incapable of definition, or that in its natural meaning it is so general as to include every economic factor or circumstance that bears upon livelihood. “Employment and unemployment “, said the right honorable gentleman, are results, and a power to deal with results must necessarily include the power to deal with the causes. Without trenching on ground that can perhaps best be covered in committee, I express the opinion that “ employment “ denotes primarily the act of employing, or the state of being employed. If this is a “ result “, so I suppose is the existing subject-matter of “ bankruptcy “ contained in section 51. But nobody would contend that the existing power with regard to “ bankruptcy “ would enable the Commonwealth to prescribe courses in bookkeeping or commercial principles in all schools, on the footing that ignorance and lack of business training are among the causes of bankruptcy. The power in the bill is wide. But there is no need to darken counsel by suggesting that it is as wide as “ peace, order and good government “.
A power in relation to employment covers more than a power to provide employment. Here is one of the central differences between the list of powers in the bill and the mangled list which the Legislatures of South Australia and Western Australia, and now the Leader of the Opposition following them, are prepared to concede. They would leave this Parliament with no more than its present peace-time powers in industrial matters. In substance, the same is true with regard to production and distribution. I remind the House that these are the very spheres in which, for a whole generation, Australian governments of all parties have thought increased national powers are necessary. The Leader of the Opposition would deny them now, in face of difficulties more acute than anything Australia ha3 hitherto known in peace-time. His refusal to concede any powers in relation to production and distribution is the more remarkable in view of the general declaration with which his amendment began. For, in paragraph i of the amendment, he listed “ the reconstruction of primary and secondary industry “ as being one of the “first obligations of government in the immediate period after the war “. Is he seriously ranging himself alongside those relics of a bygone age whose gospel is that the best eoi.tribution of government is to let business organize prosperity by itself?
We have no need to guess at the nature and dimensions of the problem of the post-war years. Sufficient particulars are already upon record. Total enlistments in the fighting services already total some 900,000. It will be larger before hostilities cease. A huge number of civilian workers, in addition, is directly or indirectly engaged in war work. There are over 400,000 in munitions factories alone. Some of the servicemen will wish simply to return to their former jobs. Some of the munitions workers will stay on where they are. But the Australian economy has under-‘ gone great changes during the war, and when every allowance has been made there will be a change-over that is hard to imagine.
Of course, many, of the war-time expedients in the provision and regulation of employment will disappear. The organization of the Allied Works Council and the Civil Constructional Corps came into existence to meet a special emergency, and would certainly not be employed in time of peace. This Government is resolutely opposed to industrial conscription in peace-time. I heartily endorse the vivid epigram used in an outstanding maiden speech by the honorable member for Eden-Monaro (Mr. Eraser) : “ To travel the road to economic security, we do not have to become little stooges ‘ of the state “. The question is whether, in relation to production, distribution, and industrial relations, there is to be any national plan, or whether Australia is to revert entirely to the divided responsibilities of past years. Let us not miss the wood because of the trees. The organization of Australia’s war effort on the home front could not have been accomplished without much organization. Primary industries - such as apple and barley growing - have been kept on their feet despite drastic disturbances of markets. Entirely new industries have been started, both primary and secondary - flax-growing, for instance, and the making of machine tools. Products for which there used to be but little demand have been made available in greatly increased quantities. Stocks of raw materials, including imported raw materials, have been so handled that essential users have been kept in full production. This, in its turn, has required organization on a new scale altogether in shipping, and in the maritime and waterfront industries. The essential man’ power needs, both of the forces and of industry, have been met. Profiteering has been kept in check more effectively than anywhere else in the world. How has this been possible? There can be only one answer. It is because the war-time powers of the Commonwealth have enabled Australia to function in accordance with a genuinely national plan for the war effort. The amendment moved by the- Leader of the Opposition rejects all possibility of continuing such a plan.
Security of employment for the wageearner will plainly be the central tasks of government in the post-war years. This cannot be achieved without some modification of the arbitrary powers of engagement and dismissal which have characterized industry and commerce in the past. This is not a problem which is peculiar to Australia. Every democratic government is giving anxious thought now to ways and means of accomplishing security of employment in the post-war years. I drew attention in my opening speech to some of the steps that will be necessary. Without repeating what I then said, I quote some remarks made last week by the Home Secretary in Britain, Mr. Herbert Morrison -
The right of private enterprise to inflict the penalties of unemployment and want in its own interest has been seriously and, I believe, decisively challenged.
The whole of the emphasis we are increasingly placing on full employment means the denial of this right to throw men on the scrapheap. The conscience of society to-day will not accept unemployment as part of the natural order of things. Still less will it accept unemployment as a weapon in the hands of competitive business.
The fifth paragraph of the Atlantic Charter points clearly in the same direction. The two signatories expressed their desire “ to bring about the fullest collaboration between all nations in the economic field, with the object of securing for all, improved labour standards, economic advancement and social security “.
Government action to ensure security of employment cannot be completely effective unless production and supply can. also be encouraged to provide employment. But it is in these very spheres, as I have said, that the right honorable gentleman’s amendment would leave the Commonwealth with only its present powers.
As the Deputy Leader of the Opposition so forcefully said, the peace-time powers of the Commonwealth would make it impossible for Australia to tackle on any national basis the problem of even such a national industry as coal, which is the lifeblood of the industries of this country. Just the same must be said of the maritime and stevedoring industries. During the war, Australia has made important advances in organizing industrial peace. For party purposes, exaggerated attention is often given to every industrial dispute that takes place; but I remind the House that industrial relations are incomparably better in this war than they were during the last. The bill would enable Australia to do away with the confused and technical system of industrial relations in which the present Constitution has resulted. Let me quote the picture which the present Leader of the Opposition, then as Attorney-General of Victoria, drew some years ago, of the possibilities which would be open to a Commonwealth Parliament clothed with -the full control over industrial matters -
It is not to be assumed that a Commonwealth Parliament will be less conscious of the needs of the community than a State Parliament; and it is, I think, fair to assume that a Commonwealth Parliament, armed for the first time with a general power over industrial matters, would proceed to exercise it along sensible lines and in the light of prior experience. Let me picture briefly what could be done by such a Commonwealth Parliament. It would completely remodel our industrial machinery; it could eliminate the notion that the way to wage fixation or hours fixation is through the’ processes of dislocation and dispute; it could provide for local tribunals to deal with local matters; it could make the round-table conference, in industries of individual factories or in departments .of individual factories, a real and effective thing; it could, by the machinery it set up, encourage the idea that wages and conditions are matters which ought to be sensibly discussed, and, if possible, agreed upon at periodical meetings between employers and employees; it could, by the total abolition of the existing overlapping, put every employer in a posi tion to know exactly what his industrial obligations were, since those obligations would proceed from one ultimate source; it could, in short, bring about what can never be produced under our present divided system - the two great essentials of industrial regulations, simplicity and flexibility.
Let the House face again the fundamental issue. It is whether the bill makes effective provision for enabling Australia to deal, as a nation, with the acute employment problem .that the aftermath of the war will leave. The amendment moved by the right honorable gentleman leaves this matter very much where the present Constitution leaves it. In. peace-time the defence power of the Commonwealth, plus the unco-ordinated action of six State legislatures, will bequite insufficient for the task. Past history here proves the truth of this contention. To ensure the possibility of an adequate national plan of post-wa¥ T6- construction, I invite the House to reject the amendment. It concedes the case for a referendum; it proposes a grant of powers for the same limited period as the bill, and it provides for a great many of the same powers. But what it does is to deny to the Commonwealth additional powers in the very fields that are essential to post-war reconstruction - employment, production and national works.
Of the many honorable members who have spoken, only a few are against the bill. Their opposition is tentative and uncertain. I hope that the House will read the bill by an absolute majority and that, on the third reading, honorable members of all parties will vote in overwhelming strength for a measure which, in my view, is essential to enable Australia - as a nation - to confront and solve the acute difficulties of the immediate post-war years.
Question put -
That the words proposed to be left out (Mr. MENZIES’S amendment) stand part of the question.
The House divided. (Me. Speaker - Hon. J. S. Rosevear.)
Majority . . . . 28
Question so resolved in the affirmative.
Question put -
That the bill be now read a second time.
– I think that the “ Ayes “ have it.
Honorable Members. - Divide!
– There was no call for a division from this side.
– I am advisedthat, as section 128 of the Constitution requires that proposed laws for the alteration of the Constitution must be passed by an absolute majority of each House of the Parliament, it is desirable that, on both the second and third readings, either a division should be taken or it should be recorded that there are no dissentients, and that there is an absolute majority present. Either course would satisfy any constitutional requirement.
The House divided. (Mr. Speaker - Hon. j. S. Rosevear.)
Majority . . 45
– The result of the division being “ Ayes “ 55, “ Noes “ 10, I certify that the second reading of the bill has been agreed to by an absolute majority of the members of the House.
Bill read a second time.
Sitting suspended from 5.53 to8 p.m.
Clause 1 (Short title).
-i rise to a point of order, Mr. Chairman. I want to raise a question dealing with procedure.
The CHAIRMAN (Mr. Riordan).The business before the Chair is clause 1 of the bill.
– My point of order oan be discussed only in the House, because it is in respect of a matter discussed in the House.
– The honorable * gentleman will not be in order in raising that matter in committee.
– I am aware of that fact, and, consequently, I submit that the Chairman should leave the chair and report to Mr. Speaker.
– The honorable member is out of order. I have already called on clause 1.
- -On a point of order, I submit that when an honorable member raises a point, of order he is surely entitled to a ruling from the Chair.
– I have ruled that the matter which the honorable member for Barker seeks to raise cannot be discussed in committee. If the honorable member wishes to raise a matter with respect to procedure in the House, he must do so not in committee, but in the House.
– In. view of the fact that a number of amendments have been circulated in relation to clause 2, I move -
That clause 1 be postponed
– I wish to move -
That the following words be added: - “as an instruction to the Government to call a further conference of the States to attempt to remove the remaining points of disagreement.”
I am obliged to reiterate a part of the argument which I advanced in my second-reading speech. I submit that, as very little disagreement exists between the Commonwealth and the States with regard to the major powers being sought by the Commonwealth, the Government has not persevered sufficiently in its endeavours to find an alternative to holding a referendum during the war. Only one convention of the States has been held; and every honorable member will agree that it met with a great measure of success, having regard to the circumstances existing at the time, and the general atmosphere surrounding the Convention. However, the repre sentatives of the States at that Convention agreed upon a draft bill, and undertook to do their utmost to have it passed in their respective Parliaments. Two of the States passed the measure as it was drafted by the Convention; and Victoria passed it with an amendment that it should not become law until all of the other States had passed a similar bill. In “Western Australia and South Australia very good headway was made with the measure. I repeat that as only slight disagreement exists with respect to the major powers sought by the Commonwealth in order to enable the Government to carry out what it is pleased to call its post-war reconstruction programme, and having regard to all the circumstances, the Australian Country party is unanimously of the opinion that a referendum should not be held during the war. “We submit that other avenues, should be surveyed in order to obviate the necessity for holding a referendum. As the Government insists that all of the powers set forth in the bill must be carried, it is running the grave risk of being denied that some of them which are indispensable to the Commonwealth, particularly in the post-war period, will be thrown into the discard for probably a period of 25 years or even longer. Consequently, the Australian Country party, in all sincerity, asks the Government to canvass all possible means of obviating the holding of a referendum during the war. It must be remembered that the representatives of all of the States at the Canberra Convention were unanimously of opinion that a referendum should not be held during the war. Therefore, as a practical alternative, the Government should negotiate further with the States in order to reduce to a minimum the number of powers which it seeks under this measure as indispensable to its post-war programme. Under the bill, fourteen powers are to be sought by referendum, and if amendments forecast by the Attorney-General can be agreed to, three other powers will be asked for. If that number could be reduced, as the result of further negotiations with the States, the people would be less likely to be confused as to the issues involved, and the Commonwealth would thus have a greater chance of being granted the more essential powers. I submit that this alternative is far preferable to the holding of a referendum during the war, which would undoubtedly throw the country into confusion.
– The Chair cannot accept the amendment forecast by the right honorable member for Darling Downs because the Attorney-General has already moved for the postponement of this clause. If the Attorney-General’s motion be carried, clause 1 will be considered later, and the right honorable member for Darling Downs will then have an opportunity to move his amendment.
– -I rise to a point of order. Apparently, the Chair is not aware that the amendment which the right honorable member for Darling Downs proposes to move merely means the addition of certain words to the -.motion moved by the Attorney-General. Therefore, I submit that the amendment is in order,
– The Chair has ruled that it cannot, at this stage, accept the amendment which the right honorable member for Darling Downs proposes to move. I have pointed out that the right honorable member will have an opportunity to move his amendment at a later stage when, if the amendment moved by the Attorney-General i3 carried, clause 1 again comes up for consideration.
– I submit, Mr. Chairman, that the point of order which I have raised should be debated. I point out that the attitude which the Government adopts towards the amendment which the right honorable member for Darling Downs wishes to move, will determine the manner in which honorable members on this side will approach the consideration of clause 2.
– The Chair has already given its ruling. The matter is now in the hands of the committee.
– I should like to make a suggestion, which, I believe, will meet the wishes of all honorable members. The right honorable member for Darling
Downs wishes to postpone this clause for a certain purpose.. The purpose of my motion is simply to postpone consideration of clause 1 until after the committee has considered various amendments to clause 2 which have been forecast and which, if carried, will have a bearing on clause 1. The provisional ruling of the Chair is that if the committee agrees to my motion that clause 1 be postponed, the right honorable member for Darling Downs will have an opportunity later to move his amendment.
– Why not deal with the amendment of the right honorable member for Darling Downs at once?
Er. EVATT.- Because the Chair has ruled differently; and I ask the right honorable member for Darling Downs to accept that ruling. He will be able to put his view, to which I should like to reply after the committee agrees to postpone clause 1. My object in postponing clause 1 is merely to add words to it to make it conform to amendments which I shall move to clause 2. The effect of the Chairman’s ruling is that the right honorable member for Darling Downs has struck a second too late.
– Am I to understand that the right honorable member will be able to move his amendment?
– I take the Chairman’s ruling to be that when this motion has been disposed of the right honorable member for Darling Downs will be able to move his amendment. I want the committee to consider and express its opinion upon the merits of the right honorable member’s proposal.
– The right honorable gentleman has not said why he has moved for the postponement of the clause.
– It is purely for the formal purpose of making the title conform to the decisions of the committee, hereinafter to be pronounced.
– Could not the right honorable gentleman have the clause recommitted ?
– Of course I could have it recommitted ; but I prefer to move in this more simple way. I have told the committee frankly that I want the merits of the proposition of the right honorable member for Darling Downs to be placed before it. I ask the committee to agree to the postponement of the clause, and thus permit the right honorable gentleman to move immediately for the addition of certain words.
does not meet the position; nor, I respectfully submit, does the ruling of the Chair. The amendment circulated by the right honorable member for Darling Downs (Mr. Fadden) ought to have been submitted prior to the motion of the AttorneyGeneral. It is the official Australian Country party amendment and proposes that, before the bill is considered in committee, a further conference with the States shall be held in an attempt to remove the remaining points of disagreement. It is ridiculous to say that a proposal of that nature should be considered after the bill has been dealt with. The Attorney-General should withdraw his motion so as to enable this other proposal to be given precedence.
– I rise to order. I submit that the procedure of the committee is not in accordance with the Standing Orders. The right honorable member for Darling Downs (Mr. Fadden) having circulated an amendment for the postponement of the clause, that amendment must first be submitted to the committee. The Attorney-General (Dr. Evatt), however, has been given precedence. If the committee does not conduct its business in accordance with the Standing Orders, and if the Attorney-General presses what is most unreasonable and unfair, at the same time depriving other honorable members of the opportunity to submit amendments to this important measure, the suspicions now held concerning itwill be intensified. I appeal to the right honorable gentleman to allow the amendment of the right honorable member for Darling Downs to be considered by the committee forthwith.
– The honorable member for Moreton (Mr. Francis) has raised the point of order that the conduct of the business of the committee is not in accordance with the Standing
Orders. I inform the honorable gentleman that when I put the clause the first to rise wa3 the honorable member for Barker (Mr. Archie Cameron), and to him I gave the call. The next to rise was the Attorney-General, and to him I gave the call.
– I rise to order. I submit that the proceedings are out of order on two grounds. The first ground is, that amendments of which notice has been given prior to a bill going into committee are given precedence over other amendments, notice of which has not previously been given. I understand that the Attorney-General (Dr. Evatt) has moved for the postponement of the clause.
– That is right.
– I am glad to have the right honorable gentleman’s assent, because I contend that the right honorable member for Darling Downs (Mr. Fadden) is entitled to move an amendment to that motion.
– I think that he is.
– The amendment that he wishes to move is that the Government shall be instructed to call a further conference of the States so as to attempt to remove the remaining points of disagreement. I submit that the question to be put by the Chair should be, “ That the words proposed to bc added be so added “. A vote could bc taken on that submission. I ask for your ruling, Mr. Chairman, as to whether or not the right honorable member for Darling Downs would be out of order in attempting to move an amendment to the motion submitted by the Attorney-General? _ The CHAIRMAN. - It is true that the right honorable member for Darling Downs circulated certain amendments. He did not, however, attempt to move an amendment to the motion of the Attorney-General. Therefore, no amendment to that motion is before the Chair.
.- Then I move-
That the following words be added: - “as an instruction to the Government to call a further conference of the States to attempt to remove the remaining points of disagreement “.
My purpose is to instruct the Government to canvass means obviating the taking of a referendum during war-time. The reasons in support of this course have been given repeatedly. The Convention that was held in November, 1942, decided unanimously that war-time is not an appropriate time to throw the electors into a state of confusion on such an important matter as an alteration of the Constitution. It was for that reason that a compromise was reached between the States and the Commonwealth. The States agreed to submit to their respective Parliaments uniform legislation on the subject. The States of New South Wales and Queensland passed such legislation, and the State of Victoria passed it with the stipulation that it should be proclaimed only in the event of similar legislation being passed by the other States. There is practically no difference between the major powers which the Commonwealth regards as indispensable and those which the States are prepared to refer to it. To ask the people to pronounce upon seventeen heads of power, all of which must be granted in order to effect, the alteration of the Constitution in the manner desired, will be to make confusion worse confounded. If further negotiations with the States merely had the result of reducing the number of submissions to the people, a desirable object would be achieved. The Government has not persevered sufficiently with the States, having regard to the success which attended its efforts at the Convention. I therefore request it to institute further negotiations, in an attempt to reach agreement on the points that are outstanding.
– I have to rule that the amendment is out of order, on the ground that, apart from the purposes stated for the postponement of the clause, it is on all fours with the motion. The right honorable member may move an amendment in these terms when the committee is considering clause 2.
– I ask your ruling, Mr. Chairman, upon a point of order. The issue now before the committee has been raised by a motion by the AttorneyGeneral and another moved by the Leader of the Australian Country party, the latter for the purpose of giving a direc tion to t’he committee. If a motion be made that further discussion of the clause be postponed to enable the committee to decide whether the States shall be again consulted, should it not clearly be given precedence by you, no matter at what point of time it is moved, over such a motion as that submitted by the AttorneyGeneral? If you do not give precedence to the motion of the Leader of the Australian Country party, you deny the committee its right to decide, at the appropriate time, whether or not there should be a further reference to the States. For my part, I shall oppose it, but, as a matter of principle, when a member asks that a major matter be discussed before a minor matter, irrespective of when he moves, even if both motions are before you simultaneously, you should give precedence to the major proposition.
– I am in entire agreement with the honorable member for Warringah (Mr. Spender) that the committee should have, at the earliest possible moment, an opportunity to express its view on the sense of the proposition moved by the Leader of the Australian Country party. The question is how and when that is to be done. I understand your difficulty to be that, I having moved the postponement of the clause, no amendment, in the strict sense of the term, can be moved to that motion for the purpose of adding words as an “ instruction “ to the Government. I am. told that if such a thing has been done in committee previously, it has probably been wrong practice, although such an amendment has been moved in the House on certain occasions and for certain purposes.
– It has ‘ been repeatedly done as an instruction.
– It has been done on the budget as an instruction, but whether it is permissible on a bill in committee is for the Chairman to decide.
– It happens in committee on the budget.
– That is perfectly true. The Government is not at all desirous of avoiding a discussion of the proposition of the Leader of the Australian Country party. Will the right honorable gentleman assist the committee by withdrawing his amendment now, and moving later to postpone clause 2? When that clause is called, I undertake not to rise, in order that the right honorable member may have the opportunity to move. In the meantime this clause can be postponed. That, I suggest, is a practical way out of the difficulty, and I can assure the committee, and especially the honorable member for Wide Bay (Mr. Corser), that the object sought to be achieved by the Leader of the Australian Country party will be achieved, because his point will be discussed and decided.
– I refer you, Mr. Chairman, to Standing Order 129, which provides that amendments must be in writing. The amendment of the Leader of the Australian Country party has ..not only been put in typescript, but has also been circulated. The AttorneyGeneral’s motion has not been circulated.
– Standing Order 129 refers to “ an amendment to any motion before the House “. My motion is to postpone a clause in committee.
– Why was the AttorneyGeneral allowed to speak to the point of order raised by the honorable member for Warringah after you refused me permission to speak On the point of order raised by the honorable member for Wide Bay? If the Attorney-General is allowed to speak on a point of order, every other member should have a similar opportunity.
– I would not permit the honorable member for Moreton to speak on a point of order after I had given a ruling on it. If the committee does not agree with my ruling, the remedy is in its own hands. The Attorney- General was allowed to discuss a point of order on which I had not given a ruling.
– What procedure is being followed to-night? You, Mr. Chairman, and the Attorney-General stated that if the latter’s motion to postpone the clause were allowed to pass, the motion of the Leader of the Australian Country party would then be in order, and you would allow it to be discussed. The Leader of the Australian Country party is now told to move on clause 2 in order to test the opinion of the com mittee. Which ruling is right? If what you first said is correct, may we not deal with the amendment of the Leader of the Australian Country party straight away? Must we wait until clause 2 is before us? I submit that when an amendment is proposed to add words to a motion actually before the Chair, it must, be put to the committee first.
– I ruled that, because the amendment moved by the Leader of the Australian Country party was on all fours with the motion by the Attorney-General, I could not accept it. I understand now that the difficulty can be overcome by the Leader of the Australian Country party moving on clause 2, and that he is agreeable to that course.
– That is not the point of order I raised. The AttorneyGeneral’s motion was that, the clause be postponed, and he did not add words indicating the purpose for which he moved it. If that motion be carried, the clause must be postponed at once, and no further opportunity will be available on the clause for the Leader of the Australian Country party to move to add words indicating the purpose for which he wishes the clause to be postponed. The point which I have tried to make all along is that the amendment of the Leader of the Australian Country party includes that of the Attorney-General in addition to words which would anable the committee to express its opinion upon a most important point. I am insistent in this matter, because it seems to me that the only satisfactory way in which we can deal with the bill is to have our minds clear at the beginning as to whether we shall proceed in a way which will take this issue back to the States, or in a way which will take it direct to the people. The manner in which this question is decided will determine the character of the amendments to be proposed, and the way in which they will be voted upon. The proceedings of the committee would, therefore, be greatly expedited if we could get that expression of opinion at the earliest possible moment, rather than wait for clause 2. If the postponement of clause 2 be moved, we shall not be able to deal with the matters at issue, because they all are contained in clause 2. If it were postponed, only the title would remain for the committee to discuss. The only correct procedure is to allow the amendment of the Leader of the Australian Country party precedence over the motion of the Attorney-General.
– I have already ruled that I cannot accept the proposed amendment of the Leader of the Australian Country party because it is on all fours with the motion of the AttorneyGeneral.
– Under which standing order do you rule that you cannot accept an amendment of a motion to postpone a clause in committee? In my ten years’ experience it has been customary to allow honorable members to move to amend almost any motion. Before the suspension of the sitting for dinner, a division took place in the House on an amendment which, if it had succeeded, would have left only the word “ that “ of the original motion. Do you rule now that nothing can be added to or taken away from a motion by the Attorney-General, especially a motion which you have allowed in contravention of the time-honoured procedure of this House - that motions of which notice has been given shall take precedence over other motions?
– What is the honorable member’s point of order?
– I ask under what standing order do you rule that an amendment cannot be moved to the motion of the Attorney-General?
– The AttorneyGeneral has moved that the clause be postponed for certain purposes. The
Leader of the Australian Country party sought to move an amendment which he had circulated, for the postponement of the clause for certain purposes, and I ruled that his amendment could not be accepted.
– I desire to have your ruling, Mr. Chairman, on a point of procedure. The Leader of the Australian Country party circulated, a proposed amendment. It was on the table of the House, and had been distributed to honorable members.
– When was it circulated? I never saw it until this evening.
– It has been in circulation for the last 48 hours, and has lain on the. table in this chamber. It has always been the practice that amendments which have been circulated take precedence over those that have not, and if more than one has been circulated precedence is given to the one circulated first. Here is an amendment dealing with a basic principle of the hill now before the committee, and the established practice of Parliament will be departed from if your ruling is maintained.
– I rise to a. point of order. You have already given your ruling, Mr. Chairman, and the honorable member for Indi (Mr. McEwen) is arguing with the Chair. The only proper procedure for him to follow is to move dissent from your ruling.
– I have already given a ruling in regard to the point of order which has been raised.
– You say that, you have given a ruling on the point of order that I raised ?
– That is correct.
– It is not correct, because I did not raise a point of order. I said that I desired to have your ruling on a point of procedure, and I was speaking to the point when I was interrupted by the honorable member for Lang (Mr. Mulcahy). I submit that it is in order for me at this stage to discuss the procedure to be followed in committee. I have stated that the Leader of the Australian Country party circulated an amendment which lay on the table - I think for 4S hours, certainly for 24. I now want your ruling as to whether the usual practice of this Parliament is to be reversed, and an identical amendment considered by the committee before that which was circulated. The forms of the House enable the Attorney-General to achieve the purpose which he stated he has in mind, namely, to alter the title of the bill. If the nature of the bill should be so changed during its consideration in committee as to make the present title inappropriate, it will be competent for the Attorney-General later to move for the recommittal of the title clause so that it may be altered. This unfortunate incident, which has already taken up about an hour of the committee’s time, would not have arisen if the usual practice of the committee had been followed. Custom and courtesy demand that the proposed amendment of the Leader of the Australian Country party be dealt with first.
– There is no established practice with regard to the circulation of proposed amendments in committee. There is a standing order in relation to the circulation of proposed amendments in the House, and I have already given a ruling in regard to that matter. As for the point raised by the honorable member for Indi, the Attorney General rose first. He obtained the call, and therefore had the right to move his proposal.
– The AttorneyGeneral has given an exhibition of steam-roller tactics. He will not get far with such tactics here.
– The honorable member for Indi is disorderly.
– I move -
That the ruling of the Chairman be dissented from.
– The Chair has given many rulings tonight.Will the honorable member state the particular ruling he has dissented from?
– The one in which you said that the motion of the AttorneyGeneral should be considered before that of the Leader of the Australian Country party.
– I rise to a point of order. Standing Order 228-
– I rise to a point of order.
– The honorable member for Indi will resume his seat, or I shall name him. The honorable member for Wide Bay will proceed.
– You have accepted a motion from the Attorney General when a similar motion by the Leader of the Australian Country party had been previously circulated. The practice of the committee is that the motion first circulated should be considered first.
Motion (by Mr. Bernard Corser) put -
That the ruling of the Chairman be dissented from.
The committee divided. (The Chairman - Mr. Riordan.)
Majority .. ..23
That the clause be postponed.
.- I wish to move -
That all the words after “That” be left out with a view to insert in lieu thereof, the following words: - “it be an instruction to the Government to call a further conference of the States to attempt to remove the remaining points of disagreement “.
– The Chair cannot accept that proposed amendment, because, in effect, it is the same as the motion which has been moved by the AttorneyGeneral (Dr. Evatt).
– No. My proposed amendment is aimed at eliminating this clause altogether,whereas the motion moved by the AttorneyGeneral is for the postponement of the clause.
– I have already given a ruling in regard to that amendment.
– But this is an entirely new matter.
– I ask the right honorable member to resume his seat. The Chair cannot accept his amendment.
Question put -
That the clause be postponed.
The committee divided. (The Chairman - Mr. Riordan.)
Majority . . . . 23
Clause 2 -
The Constitution is alteredby inserting, after section fiftyone, the following section: - “51a. - (1.) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to -
the reinstatement and advancement of those who have been members of the fighting services of the Commonwealth during the present war, and the advancement of the defendants of those members who have died or been disabled as a consequence of the present war;
employment and unemployment;
organized marketing of commodities:
companies, but so that any such law shall be uniform throughout the Commonwealth ;
trusts, combines and monopolies;
profiteering and prices (but not including prices or rates charged by State or semi-governmental or local governing bodies for goods or services) ;
the production and distribution of goods, but so that -
no law made under this paragraph with respect to primary production shall have effect in a State until approved by the Governor in Council of that State: and
no law made under this paragraph shall discriminate between States or parts of States ;
the control of overseas exchange and overseas investment; and the regulation of the raising of money in accordance with such plans as are approved by. a majority of members of the Australian Loan Council;
uniformity of railway gauges;
national works, but so that, before any such work is undertaken ina State, the consent of the Governor in Council of that State shall be obtained and so that any such work so undertaken shall be carried out in co-operation with the State:
national health in co-operation with the States or any of them;
family allowances; and
the people of the aboriginal race. “ (2.) This section shall continue in force until the expiration of a period of five years from the date upon which Australia ceases to be engaged in hostilities in the present war. and shall then cease to have effect, and no law made by the Parliament with respect to any matter specified in the last preceding subsection shall continue to have any force or effect by virtue of this section after this section has ceased to have effect.”
– I suggest that if the right honorable the Leader of the Australian Country party (Mr. Fadden) wishes to more his amendment, he should do so now.
– I cannot understand why so much time has been wasted over this matter.
– Order ! I ask the right, honorable the Leader of the Australian Country party to confine his remarks to the clause now under discussion.
– That is what I propose to do. I move -
That the clause be postponed, as an instruction to the Government - to call a further conference of the States to attempt to remove the remaining points of disagreement. lt, is hardly necessary for me to reiterate the arguments which I have advanced already in regard to this matter; but I say with emphasis that, in my opinion, and in the opinion of the party which 1 lead, having regard to the unanimous decision of the Constitution Convention held in November, 1942, there should be further negotiation with the States with a view to avoiding a referendum, or at least minimizing the points at issue. It was recognized that the Convention of 1942 was successful. Much more was achieved than was expected by the most optimistic of those who attended it. In view of the time that was devoted by that Convention to this important matter, it is regrettable that nothing more has been done to obtain a reference by the States to the Commonwealth of the powers which this Government, in its wisdom, considers indispensable to its post-war reconstruction programme. Government and Opposition representatives at that conference were unanimous in the belief that this is. no time for the people to be thrown into confusion by a referendum. Consequently, an alternative must be found. That alternative is further negotiation with the States.
– Now that we come to the merits of this proposal, the committee will remember that I dealt with it in my speech in reply on the second reading to-day. I then said on behalf of the Government -
The Government has no wish to close the door to the possibility of action on the part of the four States whose Parliaments have not passed the Canberra Bill into law, to make an effective reference of the agreed list of matters to the Commonwealth. That, however, is a matter not for the Government or for this Parliament, but for the States themselves.
I pointed out the tremendous difference between the list of powers agreed to at the Canberra Convention and the list embodied in the acts of the Parliaments of “Western Australia and .South Australia. I said that, instead of referring to the Commonwealth Parliament the subject of employment and unemployment, which would give to this Parliament the possibility of ensuring to the people security of employment and of preventing mass dismissals in the post-war era, all that South Australia proposed was this -
The employment of unemployed persons on national works, public works, and local government works, and the relief of unemployed persons by grants and loans of money and goods and by unemployment insurance and occupational training.
– The dole!
– It is indicative of the dole system. We cannot accept that in place of power over employment and unemployment. Similarly, the list of powers referred to the Commonwealth by the Parliament of Western Australia was inadequate. They are two of the four State Parliaments which failed to pass the bill in the agreed form. The Parliament of Tasmania has not passed it at all. The Legislative Council of Tasmania has rejected it three times, despite the persuasive advocacy of the honorable member for Denison (Dr. Gaha). Worst of all, in my opinion, the act of the State of Victoria says that the powers as agreed to shall be referred by Victoria only when all the other States have passed the bills substantially in the form agreed upon at Canberra. So, whatever happens, the Premier of Victoria, Mr. Dunstan, must be able to survey the field to see whether he shall bring his act into force at all. Those are difficulties which we should not underestimate. There i3 the further difficulty that, after the Canberra Convention ended and the Premiers returned to their States accompanied by their numerous legal officers who had assembled at Canberra, but not till then, it was persistently contended that there was no power in the State Parliaments to make a reference to the Commonwealth Parliament for a limited period. Honorable members will remember that that has been argued by one legal authority or another ever since.
– The Premiers did not say it,
– No. “What some of them did was to give publicity to the advice of counsel who expressed that view. I do not accept that contention. I think there can be a limited reference. But, if that point were raised and the view of the States were upheld by the High Court, all our labours would go for nothing.
– It is extraordinary that that contention was not made at the Convention.
– Yes. All of us, including the right honorable member for Darling Downs, who was- then Leader of the Opposition, and the Deputy Leader of the Opposition (Mr. Hughes) supported reference of power by the States to the Commonwealth for a limited period. It was to be for a limited period not exceeding seven years and. not less than five years and was to he irrevocable. Subsequently, however, counsel seem- to have found ready hearing, and a new view was promulgated. I say no more about it except to indicate to the right honorable, member for Darling Downs that much as I appreciate his objective, which we should like to achieve - that is, have the Canberra agreement or the substance of it carried out - I do not say that every “ t “ should be crossed and every “ i “ dotted - there are lions in the path. The lions in the path are put there, not by the Commonwealth Government, but by the Parliaments of four of the States.
– The upper houses.
– Yes, particularly in those four States. I assure the right honorable gentleman that, if the State legislatures make this reference of powers within a reasonable time and that reference gives us the substance of what was agreed to at Canberra, but not otherwise, no referendum will he necessary. I do not think that I could be expected to do more than that. I ask the committee to remember that this matter occupied a great deal of time and was debated very fully from various points of view on the second reading, and that no amendment of this kind was moved at that stage. I have indicated the view of the Government on this point. I do not say that it is impossible that the right honorable gentleman’s desire will be achieved, but it will be very difficult. The States have taken up their stand, and they have also raised the extraordinary technical point from which I differ, hut which, if sound, would be disastrous to the whole plan of getting additional powers by this .method. I think I have dealt with all points raised by the right honorable gentleman. It is a matter not of minimizing what we want, but of seeing that we get the substance of what was agreed upon, because that was the minimum agreed upon by all six State Premiers, in addition to the representatives of the Commonwealth Government. I ask the committee not to accept the amendment.
.- The importance of the amendment moved by the Leader of the Australian Country party (Mr. Fadden) is apparent. It carries all the promise of resolving this great problem without reference to the people who, in the circumstances of war, will not be given the opportunity to consider these proposed alterations of the Constitution in a dispassionate and considered way. It can be decided in the legislatures by men who have their place in public life because they have elected to devote themselves to considering those measures most necessary .to promote the interests of the people. Surely, of the alternative juries to which these proposals could be submitted under the Constitution we shall get, particularly in the circumstances of war, a betterinformed and in every respect better jury when we appeal to the Parliaments of the States than when if we ask hundreds of thousands of people, preoccupied by the war, to decide whether the fourteen proposed new powers - we may finish with 24 - should be given to the Commonwealth. Some of the proposals are framed in such a manner that they can be of only abstract interest to the masses of the people. The Constitution provides those alternative methods of securing alteration. The people have shown on many occasions that they are unwilling to consent to the alteration of the ‘Constitution, notwithstanding that their elected representatives in this Parliament, whose special duty it is to consider the Constitution, have told them that the alterations are vital to their well-being. The Government will be flying in the face of experience if it entertains high hope that the people to-day will act in a manner completely different from that in which they have acted on almost every occasion on which proposals for alteration of the Constitution have been submitted to them. Many reasons as to why the people are unlikely to react favorably to these proposals could have been adduced at the second-reading stage. But progress has been made. There was unanimity of all political panties in the seven Parliaments represented at the Constitution Convention of 1942. The bill agreed to at that Convention has actually passed into law without qualification in two of the great eastern States. It was passed without amendment by the Parliament of Victoria, the only condition being that it should not operate until all the other States had passed substantially the same legislation. Of the fourteen proposed new powers, thirteen have been carried in a manner not cavilled at in South Australia and thirteen of the powers referred to the Commonwealth by the Parliament of “Western Australia are uncriticized by the Attorney-General. The Parliament of Tasmania alone has not yet carried the agreement into law. But how far has it gone? With the full support of the Premier and Leader of the Opposition, the bill has passed through the House of Assembly of Tasmania and it has been defeated by so narrow a margin in the Legislative Council that a change of attitude of only two men would result :in the proposals being carried into law in that State. The conversion of only two men in that Legislative Council would, I submit, result in the Victorian legislation becoming effective. Then there would remain only those two modifications in the legislation passed by the Parliaments of South Australia and Western Australia, and I have little doubt that, in the first place, those modifications would not be found to be fatal to the effectiveness of the whole proposals and, in the second place, that a further approach made to those two legislative bodies would probably result in a satisfactory adjustment of their amendments.
I listened with interest, expecting to hear the Attorney-General state clearly how the amendment which the Parliament of South Australia made to the “employment” paragraph of the bill, rendered that proposal useless. But the right honorable gentleman completely failed to make his case. When asked to explain how the amendment nullified the purpose of the paragraph, he cited on three separate occasions only one example of where the paragraph in its amended form fell short of what the Commonwealth required. He said that the amendment would prevent the Commonwealth from forbidding mass dismissals. I do not know what the right honorable gentleman has in mind. It would help us to determine our attitude to the referendum proposal if we knew that we had a lucid view of his intentions in this respect. But he appears to give us one peep at something which the Government has in mind, if it secures these powers. Is it intended that the Government shall exercise its authority to prevent an employer from dispensing with the services of one or a number of employees which the business cannot afford to retain ? No other inference can be drawn from the words of the Attorney-General. It must be breaking entirely new ground to promise or threaten, according to one’s point of view, that in circumstances which the Commonwealth Government considered justified-
– Circumstances that the Commonwealth Parliament thinks justified, because legislation’ will have to be passed on the subject before action can be taken. I referred expressly to mass dismissals without cause or reason being shown for them.
Mr. -McEWEN. - The AttorneyGeneral is qualifying his previous statement in a manner that I did not hear.
– Because the honorable member did not want to listen.
– I listened attentively.
– It was the same this afternoon, too.
– I interjected this afternoon when the Attorney-General was replying to the debate on the second reading of the bill, and asked him to expand his explanation of this matter.
– Order! The honorable member must address the Chair.
– It is apparently the intention of the Government to exercise this power in such manner as to forbid an employer, be he a person or a company, to dispense with the services of employees whom the employer can no longer afford to employ. That seems to me to strike a fatal blow at the continuance of private enterprise in Australia. Private enterprise can provide employment only so long as it is able to secure such returns as will enable it to pay its employees for their services. Now, we are apparently to be treated to the introduction of an entirely new system under which the Government will forbid the dismissal of employees. For the Attorney-General to interject that the prevention of mass dismissals by the Commonwealth will be done only by an act of Parliament is to mislead honorable members. How on earth can the Attorney-General suggest that it is intended under this provision to pass a new act of Parliament to prevent every dismissal? The suggestion is ludicrous. Al] that he can do is to go to Parliament, with a docile caucus-ridden majority behind him, and force the passage of legislation which will authorize the Government, by executive act, to direct employers not to dismiss their employees. If the Attorney-General thinks that his statement will influence a majority of the people to support his proposals to alter the Constitution, he is vastly mistaken. Australia is a country which, thank God, still embraces the principle of private enterprise. It is just as well for this discussion to continue because we may, piece by piece, painfully and tediously, tear away some of the screens that are held before the eyes of the public regarding the intentions of the Government, if it secures these powers. I cannot imagine that the amendment made by the Parliament of South Australia has done any harm. Indeed, now that I understand the purposes which the Government has in mind if it secures these powers, I consider that the Parliament of South Australia has done us a service. For my part, I shall be glad to see that prohibition placed upon this Government. And what does the amendment made by the Parliament of Western Australia mean? The Commonwealth Powers Bill proposed to give to the Commonwealth an unqualified authority in respect of production. The act passed by the Parliament of Western Australia provides that the Commonwealth shall have authority to encourage production. Yet the Attorney-General declared that that amendment ruins the proposals formulated by the Canberra Convention !
– The honorable member spoke in favour of the limitation of production.
– Nothing of the kind ! The Attorney-General tried on at least three occasions by interjection to misrepresent me, and to twist my words. I do not expect a man who has been a justice of the High Court, and who is now the Attorney-General of the Commonwealth of Australia, to use his position to twist the words of honorable members. He will not get away with any attempt to twist my words!
The TEMPORARY CHAIRMAN.You will not get away with any more of that ! You address the Chair !
– This is fascism !
– -In recent months, the Chair has introduced into this chamber a new method of addressing honorable members. I take exception to it. It is quite uncustomary for the Chair to say to an honorable member, “ You will not get away with any more of that “.
The TEMPORARY CHAIRMAN.Order ! I ask the honorable gentleman to resume his seat.
– I am going to make it perfectly clear-
– Order ! Will the honorable member resume hi.s seat?
– I enter my protest against that form of address.
– Order ! I have asked the honorable member for Indi three times to resume his seat. He has refused to do so. I name the honorable member for Indi.
– Rafferty’s rules.
Members of the Opposition leaving the chamber,
– I rise to order. The Chair named the honorable member for Indi (Mr. McEwen), who then left the chamber. I should like to know whether the ordinary procedure has been followed?
The TEMPORARY CHAIRMAN.f named the honorable member for Indi.
– He should be brought hack.
– I wanted to ask the honorable member whether he had heard the Chair request him to resume his seat. I asked him three times to do so. Whether he heard me, I do not know. When I named him he left the chamber.
– The Chair was justified in naming the honorable member for Indi. I hope that it will see that the dignity of this chamber is maintained, and that its rules are observed.
– On one occasion I was named in committee, and left the chamber, but I was ordered to return.
– I heard the Chair ask the honorable member for Indi (Mr. McEwen) to resume his seat, but I am not certain whether the honorable member heard the request, as he was speaking very loudly at the time. Whilst I am prepared to take the ordinary course that follows the naming of an honorable member in committee, I suggest that it might be desirable to ask him to return.
– Some time before that he was grossly disorderly.
– I do not wish to say anything about the honorable member’s conduct in his absence.
– The honorable member for Indi should he brought back to the chamber.
– I am not familiar with what occurred when the honorable member for Indi (Mr. McEwen) was named, but I am certain that if the Chair called him to order, he would respect it. Otherwise, a misunderstanding must have existed. J understand that the Temporary Chairman named the honorable member for Indi. Knowing the honorable gentleman, 1 believe that he can explain the episode; otherwise it will be my duty to uphold the authority of the Chair.
– When outside the chamber, I received a message from an attendant to the effect that my presence was desired here. Whilst I do not recognize an order to any honorable member that he shall re-enter the chamber, I have returned out of courtesy to the Chair. I was named without ever having heard one word of what the Temporary Chairman said.
– The honorable member was grossly disorderly.
The TEMPORARY CHAIRMAN.Order !
– When I was speaking I took exception to the manner in which the Chair called me to order. To explain my conduct, I resented the Chair addressing me in these words, “ Yon will not get away with that”. I felt very strongly that that was not the customary manner for one occupying the chair to address an honorable member.
– It has become the custom.
– I am certain that the honorable member for Indi (Mr. McEwen) regrets the episode, whatever it was that led to his being named. If he will say so, I think that the matter can rest there. If he does not regret the episode, I shall have to uphold the authority of the Chair.
Mi-. McEwen. - I have no hesitation in saying that personally, and from a desire to maintain the dignity of the chamber, I greatly regret the incident that occurred.
– Is that satisfactory to you, Mr. Temporary Chairman?
– The honorable member for Indi (Mr. McEwen) was speaking, and I presume that he may continue his remarks.
The TEMPORARY CHAIRMAN When the honorable member left the chamber, his time had expired.
– Am I not entitled to speak twice in committee?
The TEMPORARY CHAIRMAN.The question before the Chair was “ That the motion be agreed to “. I had put the question, and it was negatived1.
– The honorable member was not entitled to speak a second time if any other honorable member rose to speak.
– At the time of this incident the honorable member for Indi was discussing the postponement of the clause, with a view to further negotiations with the States. After that, when the honorable member, who was accompanied by quite a number of Opposition members of the committee left the chamber, I think that you, Mr. Temporary Chairman, proceeded to put the question of the postponement of the clause.
– In the circumstances the Minister might consider its recommittal.
– I shall not do that, hut I desire to know what the present position is.
The TEMPORARY CHAIRMAN.The honorable member for Indi of his own volition walked out of the chamber.
– I rise to order. I disagree with your statement, Mr. Temporary Chairman, that you had put the question, because what you said was inaudible to any one in the chamber.
The TEMPORARY CHAIRMAN.That is not a point of order. When I put the question, the honorable member was not in the chamber.
– I object to your ruling. I have not left the chamber and every honorable member knows that to be correct.
The TEMPORARY CHAIRMAN.Will the honorable member for Wide Bay (Mr. Corser) resume his seat?
– I move dissent from your ruling.
The TEMPORARY CHAIRMAN.I have not given a ruling.
– You said that you had put the question.
The TEMPORARY CHAIRMAN.If the honorable member does not resume his seat I shall name him.
– I shall insist on my rights.
– I name the honorable member for Wide Bay.
– Name a few more 1
– I rise to order.
The TEMPORARY CHAIRMAN.There can be no debate at this stage. The honorable member for Wide Bay has been named, and I ask the Prime Minister to take the necessary action.
– Freedom of speech !
– The honorable member for Wide Bay, when directed to resume his seat, refused to do so.
– I was not given a hearing.
– I heard you, Mr. Temporary Chairman, direct the honorable member to resume his seat, but he refused to do so. You therefore named him. I regret this incident, and now move -
That the honorable member for Wide Bay be suspended from the service of the committee.
Question put. The committee divided. (The Temporary Chairman - Mr. Martens.)
Majority . . . . 22
Motion, agreed to.
In the House: ,
Question put -
That the honorable member for Wide Bay (Mr. Bernard Corser) be suspended from the service of the House.
The House divided. (Mr. Speaker - Hon. J. S. Rosevear.)
Motion agreed to.
The honorable member for Wide Bay thereupon withdrew from the chamber.
In committee: Consideration resumed.
Clause 2 (vide page 1362).
.- I move-
That the words and figures “ section fiftyone, the following section: - 51a.”, be left but with a view to insert in lieu thereof the following words and figures: - “Chapter 1, the following Chapter and section: -
Chapter 1a. - Temporary Provisions. coa.’ “
This is really a drafting amendment. It is proposed to include the fourteen powers agreed upon at the Canberra Convention -and the clauses of which notice has been, given to the committee providing for certain constitutional guarantees.
This clause deals with the framework of the clauses as they will then be arranged.
.- lt will be noticed that the temporary provisions cover new clauses which provide, first, for freedom of speech or of expression ; secondly, for extending to the States the provisions of section 116 of the Constitution; and, thirdly, for control by Parliament of regulations of a legislative character. I do not direct attention to the details of those particular provisions but to the fact that, being temporary, they are to operate for only the period of the measure, that is, for five years after the cessation of hostilities. It seems to be quite impossible to contend that freedom of speech or of expression shall be limited to any period. I cannot understand why Parliament should not now commit itself to the general proposition that neither the States nor the Commonwealth may make laws infringing the freedom of speech or of expression for all time. Indeed, the proceedings in this chamber this evening greatly reinforce the argument I am now putting forward. It is quite inconsistent to write the principle of freedom of speech and expression into the Constitution as a temporary provision. If that principle has any value at all, it can have value only as a permanent provision. I have given notice of a new clause which I desire the committee to add at the end of the bill and that clause includes Ia and In of these temporary provisions with an alteration of a substantial nature of lc. I seek among other matters to write into the Constitution the principle of freedom of speech and of expression for all time.
– I am agreeable to postpone consideration of the amendment of the heading in order to enable the honorable gentleman to deal with that point at a more appropriate stage.
Amendment - by leave - temporarily withdrawn.
Dr. EVATT (Barton- Attorney-General and Minister for External Affairs) 1 10.11]. - I now come to a consideration of the paragraphs, and I ask that they be stated seriatim.
That the proposed new section be considered by paragraphs.
Paragraph (i) the reinstatement and advancement of those who have been members of the fighting services of the Commonwealth during the present war, and the advancement of the dependants of those members who have died or been disabled as a consequence of the present war;
– “With one exception, to which I shall draw attention presently, the wording of this paragraph does not seem to me to call for explanation. Everybody agrees that the Commonwealth should have the fullest repatriation powers. The only question is whether any constitutional alteration is necessary for the purpose. The Leader of the Opposition (Mr. Menzies) has expressed the opinion that, the existing defence power would cover in the post-war years everything that this paragraph contains. It may do so. But not even the unanimous opinion of this Parliament could make it certain. Only the High Court can decide whether it does or not.
In my second-reading speech, I gave to the House in some detail my reasons for having doubts as to the scope of the defence power in time of peace, as applied to the protection and advancement of servicemen, and servicewomen. I agree, and have always emphasized, that the defence power includes some repatriation powers. The question is how far they go There is good reason to think that in relation to reinstatement strictly socalled - the actual first re-establishment of a serviceman in civil life - the Commonwealth’s existing authority is complete. But the moral obligations of the Commonwealth do not stop with a serviceman’s first job. The question of preference in employment, to which many references were made during the secondreading debate, well illustrates the problem. The Leader of the Opposition is of the opinion that authority to enforce a general and permanent preference to returned soldiers falls within the existing defence power. The Deputy Leader of the Opposition (Mr. Hughes), speaking out of his own experience as Prime Minister and Attorney-General during and after the last war, expressed the very opposite view. The honorable member for Warringah (Mr. Spender) also disagreed in principle with the Leader of the Opposition. He expressed the opinion that under the important word “ advancement “ there may be matters which would not fall within the authority of the defence power, strictly so-called. The very fact that such a conflict of views can exist must surely convince the committee that the matter is at least doubtful.
I remind the committee that in none of its many dealings with preference to soldiers in time of peace has this Parliament ever relied on the defence power. In my second-reading speech, I referred to the present preference provisions of the Australian Soldiers’ Repatriation Act, which are limited to employment by the Commonwealth or by its instrumentalities. This provision brings up to date a series of provisions which date back to the amendment first made to the Commonwealth Public Service Act in 1915, to which the right honorable member for North Sydney (Mr. Hughes) has referred. It depends not on the defence power at all, but on the Commonwealth’s power to regulate its own services. I mention also section SI a of the Commonwealth Conciliation and Arbitration Act, which dates back as far as December, 191S. This section operates to place servicemen on the same footing as those to whom any award gives preference. But that section is an exercise of the arbitration power, namely, the industrial disputes power, and does not rely on the defence power at all. Therefore - and this is important - although preference to returned soldiers has long been a plank in the platform of the Opposition parties, I have, been entirely unable to find in the records of the Parliament a single suggestion that the existing preference provisions could constitutionally be extended to all employment, or for an indefinite period.
– The right honorable gentleman and his colleagues would not be very keen to find it.
– If the Opposition, who were in office for a considerable time, had the power to pass such a law, then why did they not pass it?
– The members of the Opposition have rightly said that the existing powers of the Commonwealth would not enable the Parliament to pass such a law.
– I agree with that. Whether or not a general preference should be given is obviously a matter of policy, to be determined in the light of the circumstances. But it would be absurd to leave in doubt this Parliament’s power to give such a preference, if it. desired to do so. Preference, moreover, is only one illustration of the uncertainty that will exist about the defence power when the war is over.
Everybody agrees that the reinstatement and advancement of the servicemen and servicewomen should be a national responsibility. The Government wants to see the matter put beyond doubt. This paragraph does that. If the only criticism is that the Commonwealth already has, or may have, the necessary power, there can be, and is, no real objection to including the paragraph in the bill.
I draw the attention of the committee to the phrase, “members of the fighting services of the Commonwealth “. The question has been asked whether or not. the inclusion of the word “fighting” excludes non-combatant personnel, particularly female members of the defence force. It certainly does not. The word “fighting” is applied to and defines the “service”, not the individual member. The term “ fighting services “ is not defined in the Commonwealth statutebook, and is a popular rather than a legal phrase. In my opinion, however, the “ fighting services “ consist of the Army, the Navy and the Air Force, including all their members. Every member of the defence force of the Commonwealth belongs to the “fighting services “. Here I should mention an amendment to the first paragraph which has been circulated by the right honorable member for Cowper (Sir Earle Page), the object of which is that the powers conferred by the paragraph shall cover the repatriation of soldiers of the last war as well as of the present war. The phrase used at the Convention was “ the present war “. The legislatures of South Australia and Western Australia virtually made this amendment to the paragraph. In principle, the Government raises no objection to it. The fact was not commented upon at the Convention, that the reference to the servicemen of the present war would or might have the effect of excluding returned soldiers of the last war. None of the three State legislatures which passed the list of powers in the agreed form would regard the departure as being open to the slightest objection. Certainly, there was no intention at the Convention to discriminate in favour of present servicemen so as to exclude servicemen of the last war. Had the point been taken at the Convention, the amendment would have been made in a moment. In these circumstances, the Government is prepared to treat the amendment as a mere correction, and accordingly to accept it. By making it, this Parliament can make it clear that the power to advance the interests of servicemen will apply to the servicemen of not only the present war, but also the last war, or, indeed, of any war in which the Commonwealth, namely, the King as represented by the Commonwealth, is engaged. In the absence of the right honorable member for Cowper, I move -
That, in paragraph (i), the words “the present” twice occurring be left out, with a view to insert in lieu thereof in each case the word “ any “.
Amendment agreed to.
Paragraph, as amended, agreed to.
Paragraph (ii) employment and unemployment;
– The primary matter which falls within this paragraph is the provision of employment and the prevention and relief of unemployment, by any and every method which this Parliament may regard as appropriate. The power would include all the methods specified in the amendment moved by the Leader of the Opposition the use of grants, loans, insurance, training and public works. But it would also include the provision of employment either in the Commonwealth’s own industrial or commercial undertakings or elsewhere. How it can be thought that the Commonwealth can really tackle the employment problem in the immediate post-war years without using every one of these methods, I do not understand. It is the fact that “employment” is linked with “un employment “ which suggests primarily the provision of employment for the prevention of unemployment. But it was not intended to limit the paragraph exclusively to the provision of employment. The word “ employment”, as I said in reply to the second reading debate, ordinarily denotes in itself the act of employing or the state of being employed. Hence, a power with respect to “ employment “ would include, though less obviously, power to determine the terms and conditions of employment. Engagement and dismissal, wages and hours, industrial relations and industrial disputes could thus fall within the scope of the power. The reason for using both words - “ employment “ and “ unemployment “ - is plain. “ Employment “, standing alone, might not have been understood to include the provision of employment. “Unemployment”, standing alone, might not have included the whole sphere of industrial relations. Each word brings out the full meaning of the other. A power in relation to employment which stopped where the Leader of the Opposition would leave it with the use of grants, public works and so on for the provision of employment, could not secure the full employment which the people demand, and have a right to expect. Surely the experience of every member of the committee during the war has made it plain enough that we cannot have full employment if plant and materials anywhere are lying idle. War-time experience, with which the Government and this Parliament have been so much concerned, inescapably demonstrates that. What is the inference? That you cannot have full employment unless you can secure terms and conditions upon which men are willing to work. The experience of Britain in the last fortnight drives home the same lesson. The employment problem in war-time cannot be effectively tackled without vesting in the National Parliament full power to deal with the terms and conditions of employment, and generally with the relation of employers and employees. Do honorable members opposite think that the position will somehow be different when the war is over? I remind the committee that the problem of securing full employment is not an isolated one. The success of measures taken to provide or to regulate employment is closely linked with the use of other powers. For instance, there cannot be full employment without sufficient markets. The securing of satisfactory markets requires not only power to plan, direct and to organize production, but power to regulate marketing as well. These other powers are dealt with in later paragraphs. I mention them now in order to shew how comprehensive is the employment problem with which the Parliament will have to deal.
The power to regulate prices i3 also closely linked with the power to regulate employment. This Government found, very soon after coming into office, that prices could no longer be held in check unless the genera] level of wages and salaries was pegged as well. Hence came the Economic Organization Regulations, which have played an importantpart in checking inflation.
As I have said, I am not for a moment suggesting that it will be necessary to carry over into the post-war years all the regulations and instrumentalities for organizing employment that have been brought into existence to meet the special needs of war. I gave as an illustration of a purely war-time organization the Allied Works Council. When the war ends, that will cease to function. There will he no industrial conscription. The regulations restricting holidays likewise are a temporary expedient, directed to special war-time needs. So also are parts of the Economic Organization Regulations. My point is that an employment power limited to the provision of employment would be totally inadequate. Under the present constitutional powers of the Commonwealth in time of peace, this Parliament has no direct authority over employment, either to regulate its terms and conditions or to give security of employment.
Here I should like to refer to what was said earlier by an honorable member - what a serious thing it would be to prevent an employer from having the right of dismissal. I quoted earlier a speech by Mr. Herbert Morrison, in which he said that that will.be the most important thing of all in the post-war period. What he said was this -
The right of private enterprise to inflict the penalties of unemployment and want in its own interests has been seriously and, I believe, decisively challenged. . . . The whole of the emphasis we are increasingly placing on full employment means the denial of this right to throw men on the scrap-heap. The conscience of society to-day will not accept unemployment as part of the natural order of things. Still less will it accept unemployment as a weapon in the hands of competitive business.
That merely means that the Commonwealth Parliament must have power to ilea! with the matter as a whole. This provision will give to the Commonwealth that power. How it exercises it in principle will be a matter for Parliament to determine. I am pleased to join issue on the question of whether -to use the. American phrase - the absolute right to “hire and fire” can be tolerated in the post-war years. Under this power, the Commonwealth Parliament will be able to set up machinery foi- the strictly defined functions of conciliation and arbitration in relation to not only interstate but also all other industrial disputes at present. lt could directly regulate the conditions of employment of those engaged in interstate commerce - if they could really be isolated and discovered as a class. But that is all. The cessation of hostilities will leave Australia with the general employment problem of which I have spoken at length. In addition, there will be several special problems in the sphere of employment for which provision must be made. One is the aftermath of the “ dilution “ agreements which the Commonwealth has made in a number of trades. The Commonwealth is under an obligation to adjust in certain. respects, after the war, the relationship between various grades of labour, in order to restore something like normal conditions. An even greater obligation will rest on the Commonwealth to deal with the position of the thousands of women who, during the war, have replaced men in industry of every kind. They have done so on terms quite different from those ordinarily applicable to women in industry. What is to be their future?
– Is it necessary for the Minister to go into details in this way? What we want to know is the meaning of the words.
– I think it is necessary. 1 am trying in the case of each paragraph to deal with the application of the particular phrase. This is perhaps the most crucial paragraph of them all.
– I think that the Minister has already dealt with it fairly fully.
– I have, but that is no reason why I should limit my statement regarding the effect of the paragraph. I accept the honorable member’s suggestion, but at the same time I do not want to gallop these paragraphs through the committee. They are too important. Such problems as I referred to just now regarding women’s employment, cannot be solved in peace any more than in war by the ordinary limited arbitration machinery which the Constitution allows to the Commonwealth. To deal with women’s employment during the war has necessitated the establishment of special machinery with new and wider powers. The maritime and waterfront industries, as well as the coal industry, have likewise called for the adoption of new methods of planning and regulation.
I have already spoken about another major aspect of this matter - security of employment. Security cannot be provided for unless there are efficient and comprehensive placement services, as under the Man Power Regulations, to match men with jobs, and unless there is some restriction on the right of arbitrary dismissal which has hitherto characterized private industry. Here then is what Parliament should have power to do in the sphere of employment after the war - I omit the provision of employment by public works and otherwise, since on that every member of the committee is agreed, and mention matters which fall outside that particular aspect - provide for adjustments consequential upon the dilution agreements, far wider adjustments in the position of women in industry, the maintenance of training facilities and placement services, the guarantee of security of .employment, the regulation of working conditions by ad hoc organizations in special industries, and the extension into the post-war period of the experiments in regulating industrial relations which have been made during the war, and to simplify and expedite the solution of industrial disputes.
– Would that enable a government body to run an electrical undertaking?
– No, this clause does not touch the control of production by the Commonwealth or its instrumentalities. The production of electricity could be undertaken by the Commonwealth Parliament under a later paragraph dealing with production. The essence of this power is to deal with the employeremployee relationship in all its forms and aspects.
An employment power limited to the provision of employment would not cover the subjects which I have just detailed. The Commonwealth would therefore have only two alternatives. The first would be to undertake the necessary action itself, and rely upon the defence power. The second would be to leave the necessary action to the States. I can accept the view that the defence power might enable the Commonwealth to carry out its obligations under the trade dilution agreements, though I think even that is rather speculative. But I do not think it can seriously be suggested that after the war is over the defence power would sustain action on the part of this Parliament to deal with any of the other matters I have mentioned. They belong not to defence but to post-war reconstruction. To leave the necessary action to the States would bt- fatal. The problems are nation-wide. A State could not deal with them even if it wished to do so. To leave action to the States is to condemn the people of this country to a return to the status quo in the sphere of employment. The power as it stands in this paragraph is wide. But nothing less will do, if this country is to have a chance of maintaining full employment in the post-war years, and to carry out any national plan of reconstruction.
– If anything could he devised for the purpose of making people vote against the referendum it is the explanation of the paragraph to which we have just listened, by the Attorney-General (Dr. Evatt). The position is quite farcical. To-day the Government has all the powers in respect of employment and unemployment that it needs, but it has an extremely sorry record. Take, for example, the trouble that has occurred recently in the coal mines, where there has been a loss of 500,000 tons in production since the 1st January. The Government, although clothed with all the necessary powers to handle the problem, refused to do so. Because of lack of coal, hundreds of thousands of people throughout Australia have been placed in positions of extreme discomfort. Housewives are at their wits’ end even to cook the necessary meals for themselves and families, because of the restrictions placed upon them, in relation to a. commodity which exists in abundance in Australia. If it were something that we had to import, the position would be entirely different, but we have an unlimited supply of coal. We have sufficient manpower in the industry to provide Australia with its requirements, even during war-time, yet dle Government which has had the power but not the desire, the will or the courage to enforce the regulations, proposes to ask the people for extended powers in employment and unemployment. If there is one thing more than another calculated to ensure the defeat of these proposals at the proposed referendum, it is the insertion of this paragraph.
– I wish to make it quite clear that, although I arn sitting on the same side of the committee as the honorable member for Corangamite (Mr. McDonald), I do not associate myself with the remarks just made by him. I cannot imagine any solid reason for refusing to give to this Parliament power to deal with employment and unemployment. No one of experience can come to any other conclusion than that the first obligation upon this legislature, when the war is finished, no matter what shade of politics he represents is to provide employment for those who seek it and are willing to work. For my part T do not hesitate to support this paragraph. If the referendum is to be carried, it will best be done by putting before the people? the virtues of having such a power as this. I recommend the paragraph to the committee.
– The record of the Government in regard to employment, as the honorable member for Corangamite (Mr. McDonald) said, is most distasteful. Ths coal position, the wharf position, and the slaughtering position leave one with an uneasy feeling that the law is to be put into force only against those who are too weak to present a bold front to the Government. Apparently there is to be no law for those who have ‘handed themselves together in some great trade union, and are the real bosses of the Government, because they are able to dictate its policy from within closed doors.
Paragraph agreed to.
Paragraph (iii) organized marketing of commodities :
– This is a very important paragraph. In the widest sense, every sale and every purchase of a commodity is “ marketing “. But the power in this paragraph is limited by the adjective “ organized “. It must be understood in the light of the recognized practice in Australian marketing legislation. So interpreted, the paragraph relates to a well-known, though not rigidly defined, aspect of putting commodities on the market. This is the process of organizing the producers of a commodity so that their produce is marketed through some central co-ordinating agency, acting under statutory authority. “ Commodities “ is the word most frequently found in the existing acts, especially the State acts; setting up machinery for organized marketing. The word is frequently used in ordinary speech as a synonym for “ goods “. Marketing legislation hitherto has been confined chiefly to primary products. But it would probably be an undue restriction upon the word “commodities “ to regard it as excluding other goods. The methods used in existing legislation for organized marketing include “pooling”, compulsory or voluntary; “orderly marketing” by means of zoning, quotas and the like; and arrangements to ensure better grading, packing, advertising and so forth. All these methods would be within the power conferred by this paragraph. From the second-reading debate, I infer that members of the committee are generally agreed that the Commonwealth should ha.ve this particular power. I may remind the committee, however, exactly what the adoption of the paragraph would add to the present peace-time powers of the Parliament. Under the Constitution as it stands, the Commonwealth itself can deal only with interstate and overseas marketing. Each State has the exclusive power to deal with marketing transactions within its own boundaries. Under the power contained in this paragraph, the Commonwealth will be able to organize the marketing of a whole industry, whether the transactions concerned are interstate, or overseas.
– Has not the Minister changed his opinion about this? I rather gathered that he previously expressed the view that the paragraph would be nullified unless the prohibition of section 92 were removed.
– I am coming specially to section 92. All that I am at present saying is that the power to deal with the organized marketing of commodities, without at the moment considering section 92, is not limited by State boundaries. Experience in time of peace has shown that organized marketing can only be carried out in a major industry by the Commonwealth and the States acting in concert, and that it may take years, while an industry languishes, to bring the parties into accord. In war-time, when the Commonwealth has been able to regulate all dealings in commodities under the defence power, we have found that plans for organized marketing can he far more quickly and effectively carried out. Despite the disturbed marketing conditions caused by the war, the primary producers of Australia have benefited enormously from, the use of the Commonwealth’s powers. Equally disturbed and unusual marketing conditions are bound to continue in the years immediately following the war. That makes an overwhelming case for . con tinuing the Commonwealth’s present powers. I do not think any one disputes it.
Only one criticism of substance has been levelled against this paragraph - in particular by the Leader of the Opposition (Mr. Menzies) and by the right honorable member for Cowper (Sir Earle Page). The power will be ineffective, it is said, because it will have to be exercised in subjection to the rule laid down by section 92 of the Constitution, that interstate trade must be absolutely free. This, it is said, will nullify all attempts to organize the marketing of commodities, just as it formerly nullified the attempt of the Commonwealth, in association with the States, to organize the marketing of dried fruit, dairy produce, and wheat. The objection is, of course, based upon the decision of the Privy Council in James v. Commonwealth in 1936 (55 C.L.R, 1). I have given this matter most anxious consideration, the more so since, as honorable members may perhaps recall, the Government itself proposed, in the bill that was submitted to -the Convention, that the Commonwealth should, in its reconstruction powers, be released from the requirements of section 92. “When the decision was taken to tackle the problem of postwar powers by way of reference from the States, this particular proposal had necessarily to be dropped. No reference from the States could free the Commonwealth from a constitutional restriction imposed on Commonwealth and States alike. Only a referendum to the people could do that. At the Convention, I had to make up my mind whether a Commonwealth marketing power which would remain subject to section 92 would be serviceable to the -people in the immediate reconstruction period. I thought it would be, and still think so. Members of the committee will forgive me if, in stating my reasons, I am a little technical.
The Privy Council’s decision in James v. Commonwealth in 1936 declared void certain existing marketing legislation of the Commonwealth. But that legislation had been drafted on the assumption, based on a decision of the High Court in 1920, that section 92 did not apply to the Commonwealth at all. As a guide to future practice, the really significant feature of the decision in. James’s case was that the Privy Council endorsed a series of earlier High Court decisions which had shown that, without infringing section 92, the States could regulate such matters as road transport, or the movement of diseased stock, even where interstate movement was concerned. In -short, though the Privy Council held that section 92 binds Commonwealth and States alike, it adopted a much less destructive interpretation of what the section requires than had been laid down in some of the earlier cases. Since Tames v. Commonwealth, the High Court has not had to apply section 92 to any Commonwealth law. But it has decided crucial cases arising under State laws. Its decisions emphasize the point I have made. It has upheld the power of a State, in regulating the processing of dried fruit, to prevent the delivery of all fruit, whether grown within the State or in another State, except to a registered packer. (Hartley v. Walsh (1937) 57 C.L.R. 572). It’ has upheld the power of a State, in organizing the supply of milk and cream to its metropolis, to control all supplies coming into the metropolitan area, whether from within the State or not, - Milk Board, New South Wales’ v. Metropolitan Cream Proprietary Limited (1939)- (62 C.L.R. 116). Lt has upheld the power of a State, in regulating the conduct of lotteries in the State, to prohibit the purchase of a ticket in a lottery conducted in another State (R. v. Martin, ex parte Wawn (1939) 62 C.L.R. 457). These cases will indicate the line on which I think the proposed Commonwealth power should be considered. Attention must be given in every case to the real object and substance of what is being done. If an organized marketing scheme is not directed against interstate commercial transactions as such, but is in substance directed towards the preservation of standards of purity and quality, or the maintenance of adequate supplies for areas in which special considerations apply, or the preservation of an industry, the mere fact that interstate transactions arc controlled will not invalidate it.
Possibly the most significant part of the Privy Council’s decision, for the matter immediately before the committee, is the way in which Lord Wright dealt with a decision of the High Court in 1933 - Peanut Board v. Rockhampton Harbour Board (48 ‘C.L.R. 266). A hoard was set up under the Queensland law for the collective marketing of the commodity, and all producers were required to deliver their whole produce to the board. By a majority, the High Court held the State law invalid. The Privy Council accepted this decision as correct, but only upon the basis of the particular interpretation of the State act which had been adopted by the majority of the High Court. In the Milk Board case in 1939 (62 C.L.R. 131-32) Sir John Latham, after a close examination of the Privy Council’s decision, said -
The view of their Lordships was that a State Parliament could enact and provide for the administration of a compulsory marketing scheme, so long as it was not directed against interstate trade and was not merely a prohibition as distinct from a regulation of such trade.
The committee will permit me to observe that, in substance, this was the view which I had expressed, as a dissenting judge, in the Peanut case. I thought the real purpose of the Queensland act then in question was not to interfere with interstate trade, but to stabilize and preserve the industry by setting up an efficient and representative selling agency, in order to dispose of the pooled product of an industry. The decision of the High Court in the Milk Board case shows clearly that an act passed for that purpose will not now be held to infringe section 92.
When heed is paid, therefore, to the line of judicial decisions that have followed James’s case, I think that it cannot be doubted that the power proposed in this paragraph can be made effective. I remind the committee, also, that any attempt to free the Commonwealth from the restraints of section 92 would be a substantial departure from the understanding reached with the States at the Convention as to the scope of the new powers.
The Legislatures of South Australia and Western Australia adopted this paragraph in a restricted form, as also did the amendment proposed by the Leader of the Opposition. In substance, the proposal is to grant the power in respect of those commodities of which Australia has normally an exportable surplus. Any such restriction is, I submit, exceedingly ill-advised. We are providing, as I have said, for a period of disturbed conditions. We may be called on to send abroad supplies of foodstuffs which we do not normally export at all. The effort, to do so may cause shortages at home of other foodstuffs not usually exported. How can the States possibly deal with such matters? The supplies available in Australia must be available to the people of Australia, irrespective of their State. The huge size of the country, and its transport problems, may make that difficult to attain, but without Commonwealth power it will certainly not be possible to attain it at all.
– I still think that it would be wise to introduce the qualification which the right honorable member for Cowper (Sir Earle Page) has proposed. Indeed, in the first bill introduced by the Attorney-General (Dr. Evatt), he himself proposed that it should be done. In the bill submitted to the Constitution Convention there was a provision for giving to the Commonwealth Parliament power to deal with the marketing of goods, and also to control profiteering. Sub-clause 3 of clause 2 of the bill submitted to the Convention provided that Parliament should have power to make laws in respect of organized marketing of commodities, Ajc., “notwithstanding anything contained in section 92 of this Constitution”. Now, the Attorney-General has been at great pains to prove that this provision is not necessary. Legally, that may be so, although I take leave to doubt it, but I believe that the power of the Commonwealth to make laws in regard to the marketing of goods should be placed beyond all doubt. The Attorney-General was of that opinion himself in 1942, because, in November of that year, he prepared a very interesting and valuable book on the subject of post-war reconstruction in which, when discussing the need for a national plan, he said -
The war-time defence power apart, any effective scheme of price control is clearly beyond the legal powers of the Commonwealth. In peace-time such a scheme could rest only on the trade and commerce power. But in the first place that power extends only to interstate and overseas trade, and it would bc useless, if not positively harmful, to attempt a price control in that limited field alone. In the second place, moreover, the Commonwealth’s trade and commerce power, under the Constitution as now interpreted, is subject to the declaration in section 92 that “trade, commerce and intercourse among the. States shall be absolutely free “. This section would prevent any effective price control, even in interstate trade.
Under the heading “ The Primary Producer and the Constitution”, the Attorney-General wrote -
In 1936 the Privy Council laid it down that section 92 of the Constitution binds the Commonwealth as well as the States and declared that a whole series of Commonwealth marketing laws relating to dried fruits, dairy products and wheat, were invalid. The Privy Council reached their conclusion with regret, saying -
The result is that in their Lordships’ judgment the Commonwealth should be held to have failed in its attempt by the method adopted under the Act in question to control prices and establish a marketing system even though the Commonwealth Government is satisfied that such a policy is in the best interests of the Australian people. Such a result cannot fail to cause regrets:
Under section 92, State power to control marketing is likewise defective. No useful .purpose would be served by entering on a debate now as to whether or not the provision which the right honorable member for Cowper seeks is legally necessary, because, ultimately, such a point can be settled only by a competent tribunal. I urge, however, that all doubt as to the power of the Commonwealth to legislate in respect of the marketing of commodities, to control prices and to prevent profiteering, should be removed by providing that the Commonwealth shall possess that power notwithstanding anything contained in section 92 of the Constitution.
– I appreciate the point of view of the honorable member for Warringah (Mr. Spender), and no doubt it would be an advantage if we could start afresh in the framing of these provisions. We cannot forget, however, that we agreed at a convention to a list of legislative powers, and I maintain that the restrictions of section 92, whatever they may be, should not prevent an effective exercise of these powers by the Commonwealth. This exercise will be of enormous benefit to the primary producer.
– “Why did the drafting* committee remove from the original bill the words which I have mentioned?
– If I were to tell all that happened during the proceedings of The drafting committee, I could a tale unfold. The committee sat for over three days, and every word in the bill was open to dispute. “We had to give way on certain points in order to reach a unanimous agreement with the State Premiers. That is why the final list of powers was not so extensive as the Commonwealth representatives would have liked. Nevertheless, I believe that this provision will give to the Commonwealth extensive powers, and will be of great value to the primary producers.
Paragraph agreed to.
Paragraph (iv) companies, but so that any such law shall be uniform throughout the Commonwealth ;
– Whilst it may appear to some honorable members to be a tedious procedure to go through this clause paragraph by paragraph, I believe that only in that way can I perform my duty to
The committee, and to the people of this country. I see no reason why I should refrain from giving what help I can to the committee, despite the absence of some honorable members opposite who apparently do not feel called upon to assist the committee in dealing with these most important national matters.
There is no doubt whatever about what the State Premiers intended at the ‘Convention when they agreed that the Commonwealth should have power to pass uniform company legislation. Rather to the surprise of the profession, the High Court held in 1909, in the case of Huddart Parker v. Moorehead, that the Constitution did not give to the Commonwealth power to provide for the creation or formation of companies, though it did confer upon the Commonwealth some power with respect to companies formed under State laws. Therefore, the Commonwealth did not have power to pass a national Companies Act, to operate throughout Australia. What was intended at the Convention was to remove this incapacity. Let me remind the committee briefly of the present position : Paragraph xx of section 51 of the Constitution gives to the Commonwealth power to make laws with respect to “ foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth “. The High Court held in 1909 that an Australian company must already be “ formed “ before the Commonwealth power could operate in relation to it. The result is that a company incorporated under the law of one State is regarded as a foreign company in all the others. Before it can carry on business in any other State, it must be registered there, or comply with some other formality. This involves inconvenience, expense, and much unnecessary multiplication of returns. As the Leader of the Opposition (Mr. Menzies) said, there is very great merit in the proposal for a uniform Australian ‘Companies Act. There has been strong support for such an act in the business community for years. I do not think that there would be any real opposition to the enactment of such a measure.
Two objections have been put forward to the inclusion of this paragraph in the bill. The first is that the time limit of five years would make the power totally ineffective. The Leader of the Opposition thought that to pass a bill, and set up a registry, and then allow the whole thing to lapse in five years’ time, would create chaos in the business world and would be absurd. But this objection altogether misconceives the position. This is a power that Commonwealth Governments for twenty years have thought the Commonwealth should have for all time. The State Premiers agreed to put it in the five-year list, on probation; but it does not follow that the grant of power would necessarily expire at the end of the five years. The Government and this Parliament would set to work on the assumption that it had an opportunity tb meet a frequently expressed business need. It would not contemplate the cessation of the power at all. If the Australian act is a good one, the business community will make sure that the power is made permanent. Even if the power were to lapse at the end of the five-year period, chaos need not be caused. The present State acts would not be repealed or abrogated, though their operation would naturally be suspended during the existence of the Commonwealth act. If the Commonwealth act ceased to operate, companies registered under it could immediately register under a State law, exactly as at present, and there would be nothing to prevent any State from making special provision for the recognition of any company that had been registered under the Commonwealth act. The Commonwealth might even be able to make some such provision itself under paragraph xx of section 51. Thus there is no substance in the objection that a power limited to five years would not be of any practical use.
The second objection is that the power set out in this paragraph could be used for purposes other than the establishment of an ordinary Australian Companies Act. Such acts usually deal with matters such as the formation of companies, the issue of prospectuses and the constitution, internal regulation, and dissolution of companies. The Leader of the Opposition contended that the power in this paragraph could be exercised validly to enact any imaginable type of punitive legislation so long as it was directed against companies. This objection is without foundation. Surely the right honorable gentleman must have forgotten the existence of paragraph xx of section 51. If a power over companies does enable the Commonwealth to take the punitive measures that the right honorable gentleman described, then the Commonwealth already has that power, in relation to every foreign company and every trading or financial company in Australia. Indeed, it has had that power ever since 1901.
The new power contained in this paragraph is needed, as I have said, only in relation to the formation of companies. It could have been drafted so as to fit technically into the words of paragraph xx of section 51. Instead the Convention adopted a form of words that would describe the general result which everybody was aiming at; but the only additional power which the paragraph will give to the Commonwealth is a power to provide for the formation of companies. The now power will enable the Commonwealth to make laws with respect to companies which are not “ trading or financial corporations “ ; but that is a minor matter. The Leader of the Opposition was simply raising bogies, for political purposes.
I recommend the acceptance of this paragraph by the committee.
Paragraph agreed to.
Paragraph (v) trusts, combines and monopolies;
– It has been suggested that the subject-matter of this power is so vague as to be indefinable. If that were so, the Canberra Convention would have sinned in good company, for this phrase has more than once been adopted by the Commonwealth Parliament as the basis of a constitutional alteration, with the addition of words which for present purposes are immaterial; but the objection is ill-founded, as the honorable member for Warringah (Mr. Spender) showed sufficiently in his speech on the second reading of the bill.
As used in the bill, the three nouns in this paragraph are, I think, broadly interchangeable. They are not true synonyms, for each denotes a different aspect of the same general business process. They are also words with which care must be exercised, since each of them has other well-recognized and quite different senses, in which they are not interchangeable at all. For instance, there i3 nothing common to a “ trust “ as exemplified in the “ trustee ‘.’ of a deceased person’s estate, and a “ monopoly “ in its strict legal sense as exemplified by the exclusive legal right of a patentee to sell his invention. It is only in relation to a particular business process that the collocation of trusts, combines - or combinations - and monopolies has any meaning. That process is neither obscure nor unfamiliar. It takes place when persons or undertakings enter into an agreement, association or organization for the purpose of restricting or suppressing competition in some trade, industry or market, to the detriment of the public. Thus, the two root ideas are, first, detriment to the public, or, as it is sometimes put, the unreasonable or unlawful restraint of trade; and, secondly, the action in concert of a group of persons or undertakings. In relation to this process, the word “ combine “ - originally an American slang word being short for “ combination “ - denotes the act of association. The word ‘” trust “ denotes the particular legal method originally the creation of a trust in the true equitable sense by which the organization or association is accomplished. The word “ monopoly “ originally meant merely the exclusive possession of some particular trade or market. Derivatively, it came to be applied also to. the trust or combine by means of which this position of exclusive privilege is usually established; but there can be, I think, a monopoly without a trust or combine. Statutory definitions cannot, of course, actually control the meaning of words in a Constitution. On the other hand, where a word before its introduction into a Constitution had acquired a sufficiently defined common meaning in the law of the community, there is a strong presumption that the Constitution uses the word in that sense. In 1906, the High Court treated as decisive of the meaning of the word “ excise “ in the Constitution, the fact that legislation in all the Australian colonies had used the word consistently in a particular sense.
Illustrations of the general propositions that I have stated can be gathered from the statute-books of Australia and New Zealand, during the present century. Section 3 of the Australian Industries Preservation Act defines “ commercial trust “ as including a combination of separate and independent persons whose voting power or determinations are controlled or controllable by -
Part II. of that act is headed, “ Creation of Monopolies”, but the word “ monopolies “ is not actually used in the part. A guide as to what is understood by “ monopolies “ is given by the principal section - section 4 - which makes it an offence for a person to enter into any contract or to be or continue to be a member of, or engage in, any combination, in relation to trade or commerce with other countries or among the States -
Section7 makes it an offence for any person to monopolize or attempt to monopolize, or combine or conspire with any other person to monopolize, any part of the trade or commerce with other countries or among the States. There is a New Zealand Act named the Monopoly Prevention Act 1908, but it does not define or use the word “ monopoly “ and relates rather to unfair competition by imported goods. The Commercial Trusts Act, 1910, of New Zealand defines “ commercial trust “ as meaning any association or combine of any number of persons -
having as its object or as one of its objects that of -
acting with any such object.
Under section 6 it is an offence to sell any goods at a price which is unreasonably high, if the price has been determined, controlled or influenced by any commercial trust of which the seller is a member. Section 5 makes it an offence to conspire to monopolize the demand or supply of any goods, or to control the demand or supply or price of any goods if the monopoly or control is of such a nature as to be contrary to the public interest. The Monopolies Act, 1923, of New South Wales provides in section 5 that no person shall monopolize, or combine with any person to monopolize, trade in a commodity or service, with intent to control, to the detriment of the public, the supply or price of the commodity or service. Further indications, in the same direction, are to be found in section 10 of the Profiteering Prevention Act, 1920, of New South Wales. That section authorized the President of the Profiteering Prevention Court to investigate the operations of certain trusts, combinations, &c, in order to ascertain whether their purpose or effect wag the regulation of the prices or output of commodities or services, insofar as they tended to the creation of monopolies or to the restraint of trade, or to the abuse of a power to control trade.
These illustrations show very clearly the sense in which the bill uses the words “ trusts, combines and monopolies “. The difficulty, I suggest, lies not in ascertaining the subject-matter of the power, but in making effective the measures of legislative control which are adopted. At one time, in the first generation of the Commonwealth’s history, this subject was a much more live one than it has been in recent years. I commend to members of the committee a study of the trust movement in Australia, published in 1914 by Mr. H. L. Wilkinson, of Melbourne. He showed the wide ramifications of trusts, combines and monopolies in Australia. He dealt with the sugar monopoly, the tobacco trust, the interstate shipping combine, the Newcastle coal vend, the beef trust and a series of combinations and associations fixing the ;>rice of various food and other supplies. He was dealing only with Australian trusts, and therefore did not find it necessary to deal with the” overseas shipping combine to which the honorable member for Adelaide (Mr. Chambers) referred in the course of the debate. Mr. Wilkinson’s survey showed bow the results of the trust movement had been to permit the accumulation of large profits, to curb enterprise, and to raise prices unnecessarily. He admitted, however, that trusts, in proper hands, were capable of giving to the community certain economic advantages in the way of the efficiency.
In the years immediately before the war, increasing attention was being paid to the development of the trust movement on an international scale, in the form of cartels. The war has further stimulated this development. The Assistant Attorney-General of the United States of America recently gave a most outspoken public address, raising the question of what was to be done about cartels in the post-war world. He pointed out that their operations cut right across the policy of governments, and that their conduct before and during the war had been one of the tragic pages of American history. In particular, he mentioned the fact that in February, 1941, when Britain was in the most critical peril, a cartel agreement decreed that a large American munitions manufacturer could not supply certain explosives to Britain. That would have violated the commitments of the American cartellist to its German partner. He also mentioned that in 1935 England and France desperately needed military optical goods from the United States. A cartel agreement decreed, however, that England and France were territory to be supplied by German interests. The sale was prohibited.
In the post-war world, as I pointed out in opening the debate on the second reading, the Australian economy would probably be particularly susceptible to th, operation of trusts, combines, monopolies and cartels. I remind the committee that, under the Constitution as it stands, neither the Commonwealth nor the States can tackle the problem effectively. Only a comprehensive national power, resolutely exercised, can suffice. Indeed it may well be necessary to act in cooperation with other governments in an attempt to bring international cartels under control. For such a purpose it is essential that Australia should be able to act as a unit. This is the power which the Deputy Leader of the Opposition (Mr. Hughes) fought for over and over again in appeals to the people one or two of which very nearly succeeded. I trust that all members of the committee will agree to its inclusion.
Paragraph agreed to.
Paragraph (vi) profiteering and prices (but not including prices or rates charged by State or semi -governmental or local governing bodies for goods or services ) ;
– Criticism has been directed at the use of the word “profiteering”, but as I have already reminded the committee, we find in State legislation, n.n act of the Parliament of New South Wales dealing with unreasonable or extortionate prices, the title being “ Profiteering Prevention Act “. The term has not been invented for the present occasion. “ Profiteering “ is not a technical legal term. It has, however, a fairly well defined meaning. It is the deriving of an unreasonable or excessive profit - in particular, by the charging of excessive prices.
The State legislation passed at the conclusion of the last war throws lighton the meaning of this expression. The Queensland Parliament passed the Prevention of Profiteering Act 1920. The act did not in terms define the word “ profiteering “ which appears only in its title. What it did do was to provide machinery for the fixing of maximum prices in Queensland and to prohibit sales at prices in excess of those fixed. Even without an expressed definition, therefore, it is plain that under this act profiteering was precisely what I have described as the deriving of excessive profits from sale at prices in excess of those fixed by law. The collocation in the bill of “ profiteering “ with “ prices “ points in the same direction.
I do not think it follows that the power is limited to the fixing of prices for the sale of goods and the supply of services. The position is rather that the power includes price-fixing.
In this field, as in all other economic matters, the scope of the defence power in peace-time is doubtful. Apart from the defence power, the Commonwealth would have no direct authority in relation to profiteering, except as regards interstate and overseas transactions. This is another of the spheres in which the existing division of commerce powers between the Commonwealth and the States makes it impossible for either to deal with the problem effectively.
It has been suggested by some that this is a dangerous power to give to the Commonwealth, because the determina tion of what is an undue or unreasonable or excessive profit lies wholly in the discretion and good faith of the Parliament. If this objection were valid, it would obviously apply to many other powers as well - e.g., to the taxing power.
As to the power to fix prices, I do not think that a single member of the House would deny that this Parliament should have it during the post-war years. Power to fix prices, in the disturbed conditions of the post-war years, will be the only barrier against the evils of inflation. This is generally realized. I remind the committee, however, that in some industries the danger may for a time be the possibility of collapse through unchecked deflation. The system of price control which has been adopted during the war will have the result of leaving in the hands of some traders, when more normal supplies begin to be available, stocks which they had bought at high prices during the’ war. Traders who are able to buy on an easier market would be able to start a disastrous spiral of deflation unless a price structure in the industry could be maintained. That, of course, is a matter entirely for the discretion of Parliament, but we have to determine whether Parliament should have the power.
I dealt with- this point at some length in my second-reading speech, and think it is generally understood. I mention the matter particularly, however, so that there shall be no misunderstanding on the point in the Parliament or in the country. I mention it expressly, in view of the fact that, in the powers which the Leader of the Opposition proposed, “ the prevention of inflation “ was specifically mentioned, but no provision seemed to have been made for dealing with the reverse process or with prices at all.
The sale of goods and services by ‘State authorities is excluded from the power, as stated in the bill. Broadly speaking, these authorities have been co-operating during the war period. There is no reason to expect them to be otherwise in the post-war years.
Paragraph agreed to.
Paragraph (vii) the production and distribution of goods, but so that -
This power embraces the two distinct subjects of the production and distribution of goods. The proposal is to give to the Commonwealth a general power with respect to both matters, subject, however, to two reservations. One which is contained in sub-paragraph b prohibits discrimination between States or parts of States by any law made under the paragraph. The particular object “was to extend to laws with respect to production the prohibition against discrimination which is already contained in the Constitution in the case of laws of commerce or revenue. The other reservation which is contained in subparagraph a is a requirement of State consent to the operation in a State of any law with respect to primary production.
Both safeguards grew out of the anxieties of the State Premiers at the Convention. They recognized that no adequate plan of post-war reconstruction could be carried out without extending the Commonwealth’s present authority in relation to production and distribution. They wished to make sure in particular that, in matters affecting primary production, which has played so important a part in the political and economic life of the States, they could work in cooperation with the Commonwealth.
In view of the fact that the reservation contained in sub-paragraph a is limited to “ primary production “, the meaning of this term is a matter of importance. It is also a matter of some difficulty and obscurity. In a popular sense, “ primary production “ is used to mean not only the process of deriving the immediate produce of such industries as agriculture, dairying, pastoral, farming and mining, but also certain processed goods derived from that produce. In this sense butter, cheese and canned or dried fruits would all be classed as “primary products “ and the industry producingthem would be classed as “ primary production “. In a technical or economic sense, such processed goods as these would not be counted as primary products, and only the process of obtaining the commodities from which they are processed would be classed as “primary production”.In this sense the production of milk would be “ primary production “, but the production of butter and cheese would not. The production of grapes would be primary production, but winemaking or driedfruit processing would not. In either case the distinctions are rather arbitrary, even when judgment is based on the practice of an industry as a whole, rather than the manner in which any particular product happens to have been treated.
It is not possible, in this Parliament, to say exactly what sense this phrase should be understood to bear. The ordinary rule is that, where words in a statute have a technical meaning, the presumption is that they are used in their technical sense. In this particular case, however, it is probable that neither what I have called the popular nor what I have called the technical meaning is sufficiently well defined for the application of this rule. Australian official statistics of the assistance given to “ primary industries “ appear to include, possibly for purposes of mere convenience, types of production which would not strictly be called “ primary “ in either of the senses I have mentioned.
The whole point, however, may in practice be unimportant. The two stages of the dairying industries, for instance, are in practice so closely connected that Parliament would not wish to deal with one in isolation from the other.
I remind the committee how little direct authority, in these vital spheres, the Constitution in its present form entrusts to the Commonwealth. As to production, the Commonwealth can make no laws except for granting bounties. As to the distribution of goods, the Commonwealth has power only insofar as distribution takes place in the course of interstate or overseas trade.
Both the production and the distribution of goods are central phases of any post-war reconstruction policy. One of the war aims to which Australia, like the rest of the United Nations, has most clearly pledged herself is the improvement of living standards by expanding production and consumption. That is also an obvious step in achieving “ full employment”.
After the war, it may take a considerable time to produce a sufficiency of goods and services to satisfy all the demands of the community. Unless during this period production can be directed into the provision of the more essential and desirable goods and services, business conditions would become chaotic, and much-needed services and supplies would probably be available only to a few. I remind the committee of the illustration from the Government’s housing plans that I gave in my second-reading speech. A housing programme of the dimensions we have planned will require stock-piles of all kinds of materials, prepared beforehand and distributed to each State, so that a co-ordinated attempt may be made to reach the housing goals all over Australia. What is true of housing’ is just as true of other national works. Unless both production and distribution of the necessary materials can be organized on fi national scale, no programme of housing and national works can possibly be efficiently carried out.
I draw particular attention to what can be done under the bill to give stability of prices and satisfactory markets to the primary producer. Questions were raised on this score by the honorable member for Indi (Mr. McEwen). During the war, despite the unprecedented dislocation of markets, the position of primary producers as a whole has greatly improved. I remind the committee of the figure quoted by the honorable member for Kennedy (Mr. Riordan), who said that the mortgages and bank overdrafts owed by primary producers have been reduced by over £60,000,000 since the war began. The Commonwealth has been able to organize production in the light of the needs of Australia itself and its associates in the United Nations. New markets have sprung up to make up for markets that have been temporarily lost. Under the paragraphs in the bill relating to primary production, to the distribution of goods, to prices, and to the organized marketing of commodities, the measures which have been employed during the war to improve the position of the primary producers will continue to bc available. Therefore, every primary producer should support this proposal.
In my second-reading speech I mentioned particularly that the “external affairs power”, contained in paragraph xxix of section 51 of the Constitution, may reasonably be expected to confer on this Parliament full power to carry out any legal obligations regarding production which may rest upon it or come to rest upon it, by virtue of international treaties or conventions to which Australia is a party. The Leader of the Opposition accepts, I believe, the view I have expressed about the scope of the external affairs power. Insofar, however, as he suggested that the power had a major significance in relation to the matters covered by this bill as a whole, I definitely disagree with him. The power may be of importance in relation to this particular paragraph. The Leader of the Opposition rather suggested that the Commonwealth might cast round among its neighbours solely with the object of making some international agreements as to matters in which this Parliament’s authority was lacking or doubtful. I think that that is mere fantasy, but I agree with the Leader of the Opposition that the external affairs power is important and farreaching. Nevertheless, this power overroduction and distribution is essential, particularly wish to say in relation to primary production that although laws directly bearing on primary production must operate with the consent of the State governments - that provision was inserted in the Convention Bill - there is very little reason to suppose that the State governments will not readily’ consent to the law. In any event there are other powers that the Commonwealth could call in aid in order to ensure that the principle of long-term price stabilization within the vital primary industries of Australia, should be effected. At any rate, I am satisfied that, given all these powers together and taking them in conjunction with the existing powers to the Commonwealth, we can continue to give to primary producers those advantages which they have received even during the war, as the figures of the honorable member for Kennedy will demonstrate.
Paragraph agreed to.
Sitting suspended from 11. SO to
Thursday, 16 March 1944
Paragraph (viii) the control of overseas exchange and overseas investment; and the regulation of the raising of money in accordance with such .plans as arc approved by a majority of members of tile Australian Loan Council
– In thanking honorable members for the close and attentive consideration that they are giving to this important ,, ill. I again emphasize the necessity for explaining every paragraph. The eighth power sought by the Commonwealth involves three distinct subject-matters, though the first two are closely cognate. They are (1) exchange and (2) Investment, and are restricted to overseas transactions. The third, the raising of money, relates only to transactions in Australia. As the Leader of the Opposition (Mr. Menzies) has said, the Commonwealth already has express powers in relation to some aspects of all three matters. These are the powers with respect to overseas trade and commerce, currency, banking, aliens and foreign corporations.
Primarily and originally, “ overseas exchange “ denoted the payment of debts in different countries by an exchange or transfer of credits. In current usage, however, the phrase is ordinarily _ employed to include overseas remittances of a non-commercial character as well. Every transaction involving an interchange between Australian currency and some other currency would fall within the heading of “ overseas exchange “. The power with respect to overseas exchange would include the power to prescribe not only the rate of exchange, but also the extent to which exchange should, from time to time, be permitted. “ Investment “ is the conversion of money into some other form of wealth, such as securities, land or other assets, primarily, but I should think not necessarily, with a view to deriving an income from the investment. “ Overseas investment “ is the process by which a person resident in Australia invests in some asset held or payable abroad, or by which a person resident abroad invests in some asset held or payable in Australia.
The Leader of the Opposition suggested that the existing powers of the Commonwealth with respect to currency, banking and overseas trade and commerce make it altogether unnecessary for the Commonwealth to have the further specific powers contained in this paragraph. “Without going into unnecessary detail, I inform the committee that this matter has been minutely considered by the Government’s financial advisers and the Treasurer (Mr. Chifley). In their opinion, experience both during the depression and during the present war has shown that there are certain gaps in the normal peace-time powers of the Commonwealth which it would be wise to close.
The existing power to licence the import and export of goods would not by any means cover the whole of Australia’s overseas financial transactions. It would not touch what are known as “ invisible “ imports and exports. These include movements of capital, interest and divided payments, traveller’s expenses, and the like.
– There would be no power to control overseas investments if a flight of capital from Australia were experienced.
– A flight of capital would be a most important matter to bring under control. These items amount annually to a considerable sum. The existing power over banking would enable the Commonwealth to regulate some of them but not all, as experience proved during the depression. The result, in certain circumstances, might be to embarrass Australia’s overseas reserves. Some further specific authority is therefore needed to regulate the overseas financial transactions that are included in the two subjects of “overseas investment” and “ overseas exchange “.
In favorable circumstances only a minor degree of regulation of overseas financial transactions would be required. This could be exercised simply and directly through regulation of overseas exchange and overseas investment. It would thus be possible to avoid the cumbersome and rather vexatious procedure involved in licensing the import and export of goods. [Quorum formed.’)
I need hardly add that the maintenance of exchange stability is an essential part of any policy aimed at full employment. If this paragraph in the bill did no more than put beyond all possible doubt the power of the Commonwealth to maintain exchange stability in the post-war years, it should certainly be included. “ The raising of money “ is not a term of art in the law. It is a term in popular use, and means to obtain or procure money by means of collecting or otherwise. A person who collects gifts for a public institution “ raises “ money. But the expression also, and much more generally, refers to the raising of money by way of loan, for example, by capital issues, mortgages and the like. “ The raising of money “ is a narrower term than “ investment for it does not seem to include the investment by an undertaking of its profits in its own business.
The Leader of the Opposition correctly stated that the paragraph does not relate to public borrowing at all. That subject is dealt with exclusively by the Financial Agreement, which derives its force from section 105a of the Constitution. That section gives paramount force to the Financial Agreement, notwithstanding anything contained elsewhere in the Constitution. The powers to be conferred by this bill are all “ subject to “ the Constitution. There is, therefore, no possible conflict between this paragraph and the provisions of the Financial Agreement.
At the ‘Constitution Convention, the Premiers felt that a power to regulate private .borrowing in Australia would affect so many purely local transactions that the States ought to be associated in some way with the Commonwealth in the exercise of the power. The result was the suggestion which is incorporated in the present paragraph, viz., that the general principles on which the raising of money should be based are to be formulated by the Australian Loan Council, and that the Commonwealth will have power to make laws regulating the raising of money in accordance with those plans.
– Are the words “ regulation of the raising of money” sufficiently wide to cover private borrowings?
– Is it so intended?
– Yes, subject,, of course, to the condition that the Australian Loan Council, representing the Commonwealth and State Governments, should lay down the general plan and, therefore, the extent to which there should be any interference with the private raising of money. As the honorable member for Warringah knows, there may be a tremendously strong tendency when money is available, to invest it in concerns and undertakings that are detrimental to the interests of the whole community. The example given by the Premier of Victoria, Mr. Dunstan, in the speech which I quoted, was amusement, parks as opposed to the erection of houses. That illustrates the principle. The powerwould not be applicable unless the Australian Loan Council laid down the principle. The power will no doubt extend te a determination of the purposes for which, the amount to which, and the interest rates at which, money may bc raised.
Though the legislature of Western Australia omitted “ the raising of money “ from the list of matters referred, and that of South Australia referred only to a much more limited matter - “ the control by the Commonwealth Bank of rates of interest “ - the necessity for regulating to some extent in the post-war years was generally recognized in the course of the second-reading debate. The Leader of the Opposition expressly supported this paragraph. In further support of it, I need only say that without this power not only the existing housing programme but also the whole public works programme in which the Commonwealth and the States are to co-operate would b;.seriously imperilled.
– I agree with the statement of the Attorney-General (Dr. Evatt) that the Commonwealth must possess this power. In the immediate post-war period one of the most important requirements will be some power to “ canalize investments when capital will be competing for goods in short supply. I believe also that labour for a period of fon r or five years after the war will be in short supply. Consequently, the Commonwealth must possess authority to eontrol these matters. I am particularly gratified that power is sought to control governmental spending. When I was Commonwealth Treasurer, a few years ago, I encountered difficulties as the result of the actions of certain State Premiers in seeking to circumvent the Financial Agreement. They displayed amazing astuteness in the way in which, by semigovernmental borrowing, they overcame the obvious intention of the Financial Agreement. For example, they would establish corporations in different places, give them governmental functions and permit them to borrow upon the open market. But they were really the agents of the governments, who should have submitted their programmes to the Loan Council for approval. To avoid the possibility of our economy being put off balance after the war, the Commonwealth must possess power to control all governmental borrowing. I commend this paragraph to the committee.
Paragraph agreed to.
Paragraph (ix) air transport;
– No honorable member will deny that the Commonwealth should have full authority in the sphere of civil aviation. This paragraph is intended to give that authority. The committee may be assisted if I state briefly the present constitutional position as to air navigation. The Commonwealth is a signatory to the Air Navigation Convention. The High Court has held that under the external affairs power the Commonwealth can make laws to implement the Convention ; but any such laws must keep within the four corners of the Convention, and must not be inconsistent with its terms. The Convention is concerned with domestic regulation of air transport in the signatory countries only insofar as it affects international air navigation. But, of course, there must in practice be only one sot of rules for conduct in the air, and for the management of aerodromes. Outside the matters dealt with by the Convention, the Commonwealth can use its power to regulate interstate commerce. But over civil aviation within the limits of a State the Commonwealth has no control.
The nature of aviation makes it essential that there shall be uniform regulation throughout Australia. Hence “when the limitations affecting the existing Commonwealth law on the subject were realized, the States, after seventeen years of pressure and of unfulfilled agreements, passed laws giving effect within their boundaries to the Commonwealth regulations. These acts can at any time be repealed. Uniform regulation of civil aviation does at present exist, but only on sufferance. This Parliament cannot insist upon its continuance. And, in any case, it extends only to those matters which are within the scope of the international Convention.
During the second-reading debate, the honorable member for Balaclava (Mr. White), who has specially studied air navigation, contended that there is no need at present for placing the Commonwealth’s position on a secure footing, because at the moment unified regulation exists. Having regard to the history of this very matter, that attitude seems to me a very casual and happy-go-lucky one. My colleague the Minister for Air and Civil Aviation (Mr. Drakeford) reminded the House that the existing taxation and registration provisions in force in some States could readily be used to frustrate any national plan for the development of civil aviation after the war. Too little attention has been given to the fact that, outside of the matters dealt with by any international convention which may from time to time be in operation, the Commonwealth can rely only on its interstate commerce power, and this cannot effectively cover the field. That the power of the Commonwealth to control aviation should he limited by the necessity for a particular flight to be of an interstate character is, in this country which has comparatively few States, extremely dangerous.
Paragraph agreed to.
Paragraph (x) uniformity of railway gauges;
– This paragraph deals with the uniformity of railway gauges, a matter which has been given special study, I understand, by the Minister for Transport (Mr. Ward). Everybody agrees that it would be in the interest of Australia if practical steps were “taken, and the sooner the better, to secure uniformity of railway gauges throughout the great trunk lines of the continent. At the request of the Government, the Minister for Transport and Sir Harold Clapp are at present engaged in formulating a plan with that end in view. Some discussion, however, took place during the secondreading debate as to what contribution this paragraph in the bill makes to the solution of the problem. Three things supply the key to the meaning of this paragraph. First, it was agreed to at the Convention by all of the State Premiers. Secondly, it must be read in conjunction with the existing railway sections of the Constitution. Thirdly, it must be read in conjunction with the new “ national works “ power proposed in paragraph (xi). In the light of those considerations, it can easily be seen that this paragraph does not substantially threaten or impair the control by the States of their existing railways. Under paragraphs (xxxii.) and (xxxiv.) of section 51 of the Constitution, the Commonwealth can acquire State railways and construct or extend railways in a State; but, in each case, the consent of the State concerned is necessary.
It is doubtful whether either of these paragraphs would apply to the conversion to a standard Australian gauge of an existing State railway. Accordingly, when the bill relating to increased Commonwealth powers was being debated in the State Parliaments, the question was naturally asked whether the new power in paragraph (x) would enable the Commonwealth to direct a State to convert any or all of its existing lines to a standard gauge, at its own expense. Some lawyers thought that it would. Others considered that it would enable the Commonwealth to convert to standard gauge, at Commonwealth expense, such State railways as it thought fit, whether or not the State consented. The Parliaments of South Australia and Western Australia “ referred “ the matter to the Commonwealth in a form which made clear that the Commonwealth could not do either of these things. The matter they referred was “ the conversion of any railways of the State to a uniform Australian gauge on terms approved by the Parliament of the State”.
I do not myself think that this amendment was necessary. Even, if the power in the paragraph did, as a mere matter of wording, permit a Commonwealth act directing a State to convert its railways at its own expense to standard gauge, there is no means known to the law by which the obligation could ,be made effective without an appropriation by the State Parliament. Similarly, whatever the wording of the paragraph, an attempt by the Commonwealth to carry out railway conversion works in a State, without the State’s assent, is outside the realm of practical politics. But, in any case, I do not consider that the paragraph would include either of the matters which were suggested as possibilities. Assuming this to be the case, the Leader of the Opposition (Mr. Menzies) found himself at a loss to explain why the paragraph should be in the bill at all. He thought that any necessary initiative by the Commonwealth could be undertaken, with State consent, either by way of a grant to a State under section 96, or in the exercise of paragraph (xi) of the present bill, which relates to “ national works “. The most obvious step for the Commonwealth to take under this paragraph is to prescribe a standard Australian gauge, and to prohibit any new railway construction by a State except on that gauge. As my colleague, the Minister for Air pointed out in the “second-reading debate, it cannot be assumed that the era of railway construction is now over. An exercise of power along these lines by the Commonwealth would prevent the further aggravation of the existing evils that flow from disparity of gauges. The alteration made in the form of this paragraph by the legislatures of South Australia and Western Australia is open to objection on the ground that it would deprive the Commonwealth of the only substantial new power which the paragraph does contain. Everything that the South Australian and Western Australian legislatures were prepared to “ refer “ can be done by the Commonwealth under paragraph (xi) of the bill.
Paragraph agreed to.
Paragraph (xi) national works, but so that, before any such work is undertaken in a State, the consent of the Governor in Council of that
State shall be obtained and so that any such work so undertaken shall be carried out in co-operation with the State;
.- A public “work” is a construction or establishment or undertaking built or carried out for the public use, on behalf of the public, or at public expense. A “ national “ work is a public work authorized by the Commonwealth, as contrasted with a State or a municipality. I think that all members of the committee are agreed in principle that the Commonwealth should have this power. Public works are an essential element in securing full employment, especially at times when private enterprise has been undergoing dislocation, as has occurred during the war. The Commonwealth’s peace-time powers to give employment by means of public works are limited, as the Constitution now stands, by the number and character of its services. Apart from the postal and telegraphic services and the few Commonwealth railways, little more than office construction is required by the civil services. The Defence Force will always have substantial needs of both constructional services and supplies. As I pointed out earlier, the High Court’s decisions have left in a state of uncertainty the extent to which a defence establishment can in time of peace be used to produce supplies for disposal outside of the Defence Force itself. The” power in this paragraph will expressly enable the Commonwealth to take its proper part in planning and carrying out public works in aid of the policy of full employment.
The Leader of the Opposition (Mr. Menzies) moved his amendment in such terms as to cut down this public works power by a prohibition against engaging in any industrial or commercial process which its present constitutional powers would not permit. I answered this contention in replying to the second-reading debate. At the present stage, it is perhaps sufficient to say that such a limitation would seriously impair the ability of the Commonwealth to use national works as an instrument to prevent or relieve unemployment. The Leader of the Oppo sition further stated that’ the provisions requiring consent of a .State for the commencement of a national work in that State and State co-operation in the actual execution of the work should be dropped, as being likely to hamper the Commonwealth in exercising its powers. The answer is that these safeguards for the States were a part of the agreement which the Government deliberately entered into at the Convention. The Government is willing to honour its acceptance. In any case, I do not anticipate that difficulties will arise in the exercise of this power. It is not at all like stipulating for State consent to the making of a Commonwealth law with respect to divorce, or weights and measures, where Commonwealth policy might cut clean across existing State law. What is involved here is the expenditure of money and the development of resources. A State will be expected to desire and not to oppose the execution of national works within its boundaries. If not, its citizens will deal with the- Government of that State.
The Leader of the Opposition further objected that if the existing requirements of State consent and participation are to be retained, there would ‘ be no substantial difference between the power that the Commonwealth will have under the bill, and the existing power of the Commonwealth to make grants to the States under section 96 for the purpose of carrying out national works. I agree that, on paper, section 96 would appear to be very similar to the power contained in this paragraph. In practice, however, I imagine that the results will be very different. It is a question of initiative, responsibility, and direction. A Commonwealth Minister and his staff, under the power in the bill, will be actively responsible for planning the Commonwealth’s public works programme, and for defining the part which the State concerned can usefully play in assisting to execute, the works. The initiative will come from the Government responsible for planning the general economic policy of the nation. Under section 96, initiative naturally tends to come from the other end - the State that needs assistance. I commend this paragraph to the committee.
– I disagree with the Attorney-
General that this paragraph as presently drafted would carry the powers of the Commonwealth very much further, if any further at all, than existing powers. I do not believe that section 96 gives any less power than is provided in this paragraph. Initiative, responsibility and direction can still come from the Commonwealth under the powers given by section 96. We can advance money to the States, draw up works programmes, and impose whatever conditions we think fit, but I am wholly unimpressed by the A ttorney-General’s contention, and I propose to move an amendment to the paragraph. I have no doubt what the result of ray amendment will be, but I desire my views to be recorded, because I am in favour of this Parliament seeking more extensive powers than are proposed. The proposed new. section 51a states -
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to -
national works …
If the paragraph ended there, the power given would be extensive, and would provide all of the authority for direction, initiative and responsibility that we could desire; but it is qualified in such a way, in my opinion, as to devitalize this power. The further words of the paragraph are -
But so that, before any such work is undertaken in « State, the consent of the Governor in Council of that State shall be obtained and so that any such work so undertaken shall ibc carried out in co-operation with the State.
The meaning of the paragraph is that power- shall be given to the Commonwealth to undertake national works in a State, if, but only if, the State consents and is prepared to co-operate. The State will bargain frequently as to the terms on which it will co-operate. In my opinion, this would tend to repeat and add to the vices existing at present in the Loan Council. I have had experience of presiding over meetings of that body, which I have likened previously to a game of poker where every member i seeking to bluff the other fellow and see how much he can get out of the pool before he shows his hand. The Treasurer (Mr. Chifley) will support me in these remarks. I am wholly unimpressed by the conduct of some of the States in the Loan Council. We should take our courage in our hands and say to the people, “we want power to legislate in respect of national works “. There should be no tag. If that were done the proposal submitted to the people would be simplified, and at the same time would be made more attractive to them. I do not believe that too much value should be placed on the fact that the Premiers of the States have agreed to the granting of some of these powers. Some of the Premiers, having agreed to them, went back to their respective States - and behind the scene - at least one or two of them did their utmost to destroy the chance of these powers being agreed to by their Parliaments. Therefore, I am not at all impressed by the decision to adhere to the proposals of the drafting committee. I move -
That, in paragraph (xi), all the words after the word “ works “ be left out.
– I appreciate the force of the criticism by the honorable member for Warringah (Mr. Spender), who has certainly pointed out what might possibly be regarded as a weakness of this proposed amendment. But it is still an important power, and I think that we should adhere to the arrangement that has been made with the States. I hope that the honorable member will be able to tell us all that he knows about the machinations that took place in some of the States after the Canberra Convention.
A mendmen t uega tired .
Paragraph agreed to.
Paragraph (xii) national health in cooperation with the States or any of them;
– “National health” is not a technical phrase. The word “ health “ denotes wholeness or soundness of body and mind, and connotes freedom from disease or impairment. “ National “ means “ of the nation “ or “ of the people “. A power to make laws with respect to “ the health of the people “ will on ordinary principles enable the Commonwealth to make laws regarding tha prevention and treatment of disease; the maintenance of hospitals and medical services; nutrition; standards of purity in food and drugs; in addition, of course, to sanitation and public hygiene generally.
The word “ national “ does not, in my opinion, limit the power in such a way as to prevent the Commonwealth from making laws for the treatment or prevention of diseases - for example, tropical diseases - occurring only in certain parts of Australia. It serves rather the opposite purpose, of emphasizing that the concern of the Commonwealth should be for the whole Australian people, including all sections of them.
The qualification referring to cooperation with the States is a direction to the Commonwealth to continue its present policy of avoiding overlapping and duplication of the health services of the States, and to base its organization on joint bodies, such as the National Health and Medical Research Council. [ do not think that any objection has been raised to the inclusion of this paragraph in the bill.
Paragraph agreed to.
Paragraph (xiii) family allowances; and
– The term “ family allowances “ 13 not a technical term. It will include, however, any allowance which is given to a, family, and, I think, also to individuals through the medium, of or in virtue of their membership of a family. I remind the committee of the illustrations I gave i;i my second-reading speech - child endowment payments; widows’ pensions; allowances for medical assistance; and allowances for vocational training, or university bursaries. Assistance for housing purposes would also be included.
The honorable member for Parramatta (Sir Frederick Stewart) asked how it could be necessary to make express provision to authorize such payments as these, seeing that many of them are already being made under existing Commonwealth legislation. The position is i:1 some ways puzzling, and further explanation may be of service to the committee.
The Constitution as it stands gives to the Commonwealth express power to make laws for “ invalid and old-age pensions”, section 51 (xxii.). It also gives power in relation to “ insurance other than State insurance”, section 51 (xiv.). Any other social service payments made by the Commonwealth must rest on someother foundation. In time of war, support could probably be found for most, if not all, of them in the defence power. But in time of peace that support would undoubtedly be withdrawn. The only other foundation would be the power implied by section 81 to appropriate money by law, from the Consolidated Revenue, for the purposes of the Commonwealth.
The question is whether “ the purposes of the Commonwealth” are those purposes only which fall within one or other of the subject-matters with respect to which this Parliament has power to make laws, or whether the Parliament can appropriate money for any purpose whatever thai, ic may think fit. If the word? of section 81 have the wider meaning, all the payments mentioned by the honorable member for Parramatta - maternity allowances, widows’ pensions, child endowment, unemployment and sickness benefits, and pharmaceutical benefits, would be secure, even in time of peace. If the words have the narrower meaning, none of these payments would be valid under the Constitution as it now stands.
The meaning of section 81 is doubtful. I accept entirely the statement on this point of the Leader of the Opposition (Mr. Fadden). He remarked that successive Commonwealth governments, and successive Commonwealth parliaments, have in practice acted on the view that section 81 has the wider meaning. He pointed out that the matter was expressly left open by a majority of the High Court, in 1935, though two justices expressed the definite view that the section has the narrower meaning. The honorable gentleman also expressed his own personal opinion that a3 a matter of law the narrower view is correct.
The object of this paragraph of the bill is therefore to put this matter beyond doubt by placing family allowances on the same express footing as the social services already provided for by paragraphs (xiv.) and (xxii.) of section 51.
The amendment moved by the Leader of the Opposition likewise provided for putting this matter beyond doubt. But he suggested that “ allowances “ may be too vague a term, and that “ endowment “ might be preferable. “Endowment”, however, has now acquired a specific meaning in many quarters as denoting what this Parliament knows as “ child endowment”. For this reason a wider term should, I think, be used.
Paragraph agreed to.
Paragraph (xiv) the people of the aboriginal race.
– The inclusion of this paragraph of the bill is necessary only because of what has become a complete anomaly in paragraph (xxxvi.) of section 51 of the Constitution. That paragraph gives to this Parliament power to make laws with respect to “ the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”. The paragraph in the bill will have the same effect as an amendment suspending that exception for five years. I do not think that any objection has been raised to this paragraph.
Paragraph agreed to.
– I move -
That, after sub-section (1.), of the proposed section, the following sub-section be inserted: - “(1a.) Neither the Commonwealth nor a State may make any law .for abridging the freedom of speech or of expression.”
– I have given notice of a new clause which I desire to add at the end of this clause, and I hope that the Attorney-General will not commit himself to a view from which he will not retreat.
– The honorable member for Warringah (Mr. Spender) is aware that the matter he has raised has been considered by the Government. I wish to deal broadly with the first proposed-‘ sub-clause - freedom of speech and expression’. It is quite true, as the honorable member for Warringah has pointed out. that there is a limitation of time upon the inclusion of this guarantee.
That limitation derives from the fact that all the powers .sought are of a temporary character, namely, for a period of five years after the cessation of hostilities ; but it is proposed by the Government that a convention be held to revise the Constitution including all these provisions, before the expiration of that period. I admit that at first sight it would seem to be anomalous to put a guarantee of this kind in the Constitution and to put a limitation of time upon Lt; but the whole basis of the proposals to be submitted to the people is that they are of a temporary character, the intention being that the whole of the Constitution will be revised and further amendments covering the same ground, or wider or narrower ground, will be put to the people before the end of that period. This is a vital clause.
The wording of this proposed guarantee is based in part on the First Amendment, to the United States Constitution (1791) ; in part upon the language used by President Roosevelt in formulating the Four Freedoms ; and in part upon the wording of section 110 in our own Constitution. The guarantee is extended to State laws as well as Commonwealth laws.
The position under the United States Constitution requires some explanation. In terms, the First Amendment applies only to federal law ; “ Congress shall make no law . . . abridging the freedom of speech or of the press “. Since the adoption of the Fourteenth Amendment, (1866), however, the courts have gradually come to apply the same guarantee against State law a3 well. The Fourteenth Amendment does not expressly refer to “ the freedom of speech or of the press “. It does, however, impose certain prohibitions on the States, and goes on to say: “Nor shall any State deprive any person of life, liberty, or property, without due process of law “. The courts have held that the “ liberty “ which is protected by the Fourteenth Amendment includes the liber tie.i protected by the First Amendment. The position in the United States to-day, as under this bill, is that freedom of speech is guaranteed as against both the Federation and the States.
The First Amendment refers only to the freedom of “ speech “ and of “ press “.
The courts have given a wide interpretation to both words, so that the guarantee has been held to apply to any form of oral or written expression. This is plainly a legitimate interpretation. But it is wiser, in inserting a new clause in our own Constitution, to adopt a more comprehensive form of words which cannot depend on nice distinctions between different modes of communicating thought. President Roosevelt’s “ Second Freedom” seems to supply just the generalization that is needed - “ freedom of speech and of expression “.
In considering the adoption, for the first time, of a guarantee of this kind, it is pertinent to ask two questions. First, will it give sufficient protection to be of real value to the individual ? Secondly, is it consistent with such recognition of social interests as will enable society to secure public safety, order and normality?
Despite the proposed differences of wording, the experience of the United States of America is obviously of the utmost value in answering these questions. Since 1791, no American thinker has had to ask himself whether individual rights would be as well secured without the guarantees, or whether social interests would be more secured in their absence. The guarantees are there. I have certainly never heard of any movement for their repeal. The plain implication is that, over the generations, the guarantees have been so applied as to give neither too little protection to the individual nor too little power of control to society. The cases decided by the American courts fully bear out that conclusion.
The provisions of a guaranteee of “ free speech “ cannot be applied with absolute literalness. So applied, they would mean, as the High Court at one time held “ freedom of interstate trade “ meant in section 92, that speech must be free from all forms of governmental control, and that only action could be regullated by society. The literal interpretation of our own section 92 has been rejected. Such an interpretation of the First and Fourteenth Amendments has never been accepted in the United States of America. The general proposition is that-
The liberty protected is not the right to perpetrate acts of licentiousness, or any act incon- sistent with the peace or safety of the State. Freedom of speech and press does not include the abuse of the power of tongue or pen, any more than freedom of every action includes an injurious use of one’s occupation, business, or property”: State v. McKee (1900), 73 Con. 18, 28.
In 1917, Congress passed an Espionage Act. It corresponds largely to regulations under our National Security Act. This statute made it a crime, while the United States of America is at war, to cause or attempt to cause disloyalty or insubordination in army or navy, or wilfully to obstruct or attempt to obstruct recruiting. In Schenck v. United States (1919) 249 U.S. 47, the appellant had sent out to men who had been called up for military service a circular which attacked .the Conscription Act. It appears that the circular was intended to induce the men to obstruct the operation of the “ selective draft “ law. Mr. Justice Holmes, for a unanimous Supreme Court, held that the statute did not abridge the freedom of speech within the meaning of the Constitution. He said -
We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting lire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force: Gompers v. Bucks Stove <6 Range Co.. 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances’ and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.
That is why, under the Constitution of the United States of America, the decision in each case tends to turn upon its own facts.
– And upon the temperament of the judges, / and the circumstances.
– Yes, to some extent perhaps. With every guarantee, the question is whether, will all its uncertainty, it is not better to protect fundamental democratic rights, such as freedom of expression and freedom of religion; to trust to a court which is independent of popular control, rather than to Parliament, with unlimited discretion as to the exercise of its control.
– There have been prosecutions in this country for advocating that measures should be taken to promote peace in time of war ; and, apparently, according to the temperament of the judges, that might or might not be an offence against the law.
– -The position i3 that, as Mr. Justice Holmes said, it is a question of proximity and degree. I shall illustrate the principle. In dealing with an important guarantee like this, one must take into account the difficulty of application in the particular case. Nevertheless, the principle has solid advantages. “We have to remember, too, that in the twentieth century there has been a tendency towards dictatorship, towards fascism. What has happened in Germany since 1933 illustrates that perfectly. As the dictator is coming into power, his first acts are, to close down on freedom of expression and then to prevent freedom of religious worship. That has happened in Germany, and I believe that the inclusion of this power may be helpful for the future of this country. The quotation continues -
When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not bo endured so long as men fight and that no court could regard them as protected by any constitutional right.
So the existence of a state of war is a relevant circumstance in considering what is the particular application of this guarantee.
I draw the attention of the committee, particularly to the robust grasp of the truth that freedom of speech, though sometimes alarming if abused, is basic to the whole ideal of democratic citizenship,which runs right through the judgments of the Supreme Court on the guarantee of freedom of speech. I feel sure that in part it is a result, as well as one of the causes, of the existence of the guarantees themselves. Quotations from two of the greatest liberal judges of the last generation will illustrate my point. I quote first from Mr. Justice Louis Brandeis. The judgment was delivered in 1927 : Whitney v. California. 274 U.S. 257-
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practised. There must be reasonable ground to believe that the danger apprehended is imminent. There must bc reasonable ground to believe that the evil to be prevented is a serious one.
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, selfreliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.
One is reminded of words of Milton in one of his famous essays on a similar problem, when he said : “ Let truth and falsehood grapple. Whoever knew truth to be worsened in an open encounter ‘i “ The quotation continues -
Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.
In similar vein, Mr. Justice Holmes spoke in Abrams v. United Statex in 1919 (250 U.S. 616). He there put the view with a philosophic candour which has never been improved. He said -
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt cither your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct, that the ultimate good desired is better reached by free trade in ideas - that the best test of truth i-= the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loath and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. . . . Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “ Congress shall make no law abridging the freedom of speech “. . . . I regret that T cannot, put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.
Let me turn now to the way in which these principles work themselves out in some typical cases.
In Gitlow v. People of New York ((1924) 268 ILS. 652) the appellant had been convicted of a statutory crime of criminal anarchy under the penal code of New York. “ Criminal anarchy “ was defined as “ the doctrine that organized government should be overthrown by force or violence … or by any unlawful means “. The advocacy of any such doctrine, either by word of mouth or writing, was declared to be a felony. The appellant had published a manifesto which plainly infringed the statute. The Supreme Court of the United States held that a State may constitutionally punish utterances which endanger the foundations of organized government and threaten its overthrow by force, violence and other unlawful means. I quote the following : -
It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.
Reasonably limited, it was said by Story in the passage cited, this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic.
That a State in the exercise of its police power may punish, those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. . . . Thus it was held by this Court in the Fox Case, that a State may punish publications advocating and encouraging a breach of its criminal laws; and, in the Gilbert Case, that a State may punish utterances teaching or advocating that its citizens should not assist the United States in prosecuting or carrying on war with its public enemies.
And, for yet more imperative reasons, a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional State. Freedom of speech and press, said Story, does not protect disturbances to the public peace or the attempt to subvert the government. It does not protect publications or teachings which tend to subvert or imperil the government or to impede or hinder it in the performance of its governmental duties. … It does not protect publications prompting the overthrow of government by force; the punishment of those who publish articles which tend to destroy organized society being essential to the security of freedom and the stability of the State. . . . And a State may penalize utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several States, by violence or other unlawful means. In short, this freedom does not deprive a State of the primary and essential right of self-preservation; which, so long as human governments endure, they cannot be denied.
A case on the other side of the line was Dejonge v. Oregon (1937) 299 U.S. 353. As in Gitlow v. New York, the case from which I have just been quoting, the State statute made it a criminal offence, defined as criminal syndicalism, to advocate crime or violence as a means of accomplishing industrial or political change; hut the act went on to make it an offence to preside at or assist in conducting a meeting of any organization which advocated a criminal syndicalist doctrine. The appellant assisted in the conduct of a meeting called under the auspices of the Communist party, which was held to be an organization advocating criminal syndicalism within the meaning of the act. The defence was that the the meeting was public and orderly and was held for a lawful purpose -
That, while it was held under the auspices of the Communist party neither criminal syndicalism nor any unlawful conduct was taught or advocated at the meeting either by appellant or by others.
T quote the following from the judgment of the court: -
The appellant’s solo offence, for which he was convicted and sentenced to imprisonment for seven years, was that he had assisted in the conduct of a public meeting, albeit otherwise lawful, which was held under the auspices of the Communist party. The broad reach of the statute as thus applied is plain. While defendant was a member of the Communist party, that membership was not necessary to conviction on such a charge. A like fate might have attended any speaker, although not a member who “ assisted in the conduct “ of the meeting. However innocuous the object of the meeting, however lawful the subjects and tenor of the addresses, however reasonable and timely the discussion, all those assisting in the conduct of the meeting would be subject to imprisonment as felons if the meeting were held by the Communist party. Freedom of speech and of the press are fundamental rights
These rights may be abused by using speech or press or assembly in order to incite to violence and crime. The people through their legislatures may protect themselves against that abuse. But the legislative intervention can find constitutional justification only by dealing with the abuse. The. righto themselves 7n us t not be curtailed. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that Government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.
The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offences, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.
I turn now from these cases, in which the right of society to protect itself from violent overthrow is at stake, to a problem less grave but not less subtle, namely, a person’s right to disseminate ideas by the distribution of literature in the streets and by house-to-house canvass. In 1939 the Supreme Court of the United. States of America decided the case of
Schneider v. ‘Town of Irvington (308 U.S. 149). A municipal ordinance provided that “ no person shall distribute in, or place upon any street or way, any placard, handbill . . . advertisement or paper of any description “. Under this ordinance appellants were convicted of an offence for having distributed in a street leaflets announcing a protest meeting in connexion with the administration of State unemployment insurance. Another municipal ordinance enacted that “ no person . shall canvass, solicit or distribute circulars or other matter or call from house to house without first having reported to and received a written permit from the chief of police “. Applicants were required to go through an elaborate procedure of identification and the chief of police was directed to refuse a permit wherever he was satisfied that the canvasser was not of good character or was canvassing for a project not free’ from fraud. Under this ordinance the appellant was convicted of having canvassed without a permit. She was a member of a religious society, and as such, went from house to house distributing booklets. The Supreme Court held both ordinances unconstitutional, as abridging the freedom of speech. These passages are from its judgment -
Municipal authorities, as trustees for the public, have the duty to keep their communities’ streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. For example, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion. This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one and was not lightly used. It reflects the belief of the framers of the Constitution that exercise of the rights lies at the foundation of free government by free men. It stresses, as do many opinions of this court, the importance of preventing the restriction of enjoyment of these liberties.
We arc of opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press. This constitutional protection does not deprive a city of all power to prevent street littering. There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets.
Turning to tie ordinance relating to canvassing, the court said -
The ordinance is not limited to those who canvass for private profit; nor is it merely the common type of ordinance requiring some form of registration or licence of hawkers, or peddlers. It is not a general ordinance to prohibit trespassing. It bans unlicensed communication of any views or the advocacy of any cause from door to door, and permits canvassing only subject to the power of a police officer to determine, as a censor, what literature may be distributed from house to house and who may distribute it. The applicant must submit to that officer’s judgment evidence as to his good character and as to- the absence of fraud in the “ project “ he proposes to .promote or the literature he intends to distribute, and must undergo a burdensome and inquisitorial examination, including photographing and finger-printing. In the end, his liberty to communicate with the residents of the town at their homes depends upon the exercise of the officer’s discretion.
Conceding that fraudulent appeals may be made in the name of charity and religion, we hold a municipality cannot, for this reason, require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval, with a discretion in the police to say some ideas may, while others may not, be carried to the homes of citizens; some persons may, while others may not, disseminate information from house to house. Frauds may be denounced as offences and punished by law. Trespasses may similarly be forbidden. If it is said that these means arc less efficient and convenient then bestowal of power on police authorities to decide what information may be disseminated from house to house, and who may impart the information, the answer is that considerations of this sort do not empower a municipality to abridge freedom of speech and press.
I have quoted at perhaps excessive length, because of the fundamental importance of the subject-matter and in order to make good the two points which I urged upon the committee. I ask the committee to adopt this important amendment, and I wish honorable members to have a clear picture of what a guarantee of this sort will or will not do. I admit that the distinctions are fine, and, as the honorable member for Batman (Mr. Brennan) pointed out when he referred to the courts, that the interpretation of such safeguards will depend in the last resort upon the courts. If there is any fear of dictatorship or fascism in this country, it will depend upon the courage of the courts to declare any regulation or law of the State or Commonwealth void as conflicting with these guarantees.
– It will depend even more on the courage of the parliamentary representatives.
– Yes; but Parliament may agree with the laws that have interfered with freedom of expression, and then the question will be taken over to the courts, which will be entitled under this power to declare laws interfering with or abridging freedom of expression to be invalid. “We were told by some members of the Convention, and it was said in the second reading debate, that there is no danger. The trouble is that when the danger comes, it is too. late to guard against it. The trend in a country mayalter suddenly and things which we value and which we deem inalienable may be endangered. As these two freedoms have been selected by the leaders of the United Nations as fundamental to the future of democracy, we shall he wise to include them in our Constitution. We have a clear guide to their probable interpretation in the cases which I have cited. The distinctions may appear fine, but they are real. Everything turns upon the court’s judgment as to what the law objected to is really striking at. The last case which I cited shows this clearly. This is a test resembling those which the Privy Council and the High Court have worked out in applying section 92.
I conclude by quoting the striking case of Grosjean v. The American Press Company. This case, which was heard in 1935, concerned a gentleman of the name of Huey Long, who suddenly rose to a position of political power in the State of Louisiana. An act of the legislature of that State required a licence for permission to sell advertising space in any publication having a circulation of over 20,000. I emphasize the fact that this was a State act. No question arose as to whether it was a law with respect to any particular subject-matter. On its face, the act was & valid exercise of the State’s general power to regulate commercial transactions in the State. In fact, however, all the publications affected were opponents of the Huey Long administration in Louisiana. The act was held. invalid, as abridging the freedom of the press. Here again the court penetrated to the real substance and object of a measure, though it was superficially directed towards lawful constitutional ends.
I admit that we are taking a new step, but I point out, as no doubt it will be pointed out from an opposing angle, that the guarantee is of a temporary character. All these powers are to be given for a limited period. I see no harm whatever in including this fundamental constitutional guarantee for that period. The intention is not that it shall then disappear, but that, in the light of the experience of its working, and also of the working of the fourteen additional legislative powers, Parliament shall, before the end of the five-year period, examine the matter afresh and decide whether it would not be wise - and I think it will determine that it is wise - to include such a guarantee permanently in our Constitution. I commend it to the committee as an important, step in safeguarding democratic rights in Australia.
– The committee is much indebted to the Minister for his lengthy and erudite exposition. He has indicated that this provision, if put into the Constitution, must operate to preserve liberty of speech and prevent abuses of power by governments or the delegates of governments. One of the greatest brakes that we can have upon .Fascist or bureaucratic tendencies towards the destruction of liberty of speech is the power to criticize. This amendment will in. large measure secure that to us; but, whilst we have been treated to an explanation of the limits of this power, the Minister has skated over the fundamental problem which we must face. That is : Why must this be limited to five years?
– The Minister told the committee why.
– He told us that he thought it would do no harm; but that is not a reason. He told us also that it would come up for reconsideration five years hence, but that again is no reason. There is no justification whatever for limiting the period to five years. When the Attorney-General brought his bill before the Constitution Convention he thought fit to include both these powers as permanent alterations of the Constitution. If this power is a good one, as I believe it to be, and as the AttorneyGeneral obviously believes it to be, it should “be written permanently into the Constitution. Just as every permanent part of the Constitution can be reviewed by any convention called for the review of the Constitution as a whole, so can this power, if placed on a permanent basis, be reviewed. The Government will ‘do its cause a great deal of harm if it insists upon limiting this provision to five years. Its action will be misunderstood and misrepresented. It if also absurd that the provision guaranteeing freedom of religion should be limited to a period of five years. It, too, should be a permanent part of the Constitution. We have heard much about the four freedoms mentioned in the Atlantic Charter. It is here proposed to write two of them into our Constitution - for a period of five years only. There will be important interests anxious to defeat the Government’s proposals. There are, for example, Labour men who give lip-service to the ideal of greater Commonwealth powers, but, who, because their interests lie in the preservation of the powers of State Parliaments, will, “ under the lap “, do their best to defeat the Govern.ment’s proposals. Other interests will fight bitterly against the attempt to control profits mid prices. The Government, should avoid providing opportunities for the raising of false isues. It should, therefore, make these powers a permanent part of the Constitution.
– Apparently, the most recent amendment moved by the Attorney-General (Dr.
Evatt) was suggested in the first place by the honorable member for Warringah (Mr. Spender). It was not in the original draft of the bill. Having regard to the speech just madeby the honorable member for Warringah, I should say that the amendment were better left out of the bill. When I say that, I hope it will not be thought that I am in favour of any undue limitations upon freedom of speech or freedom of expression. I think it is probable indeed, I know it is a fact that my belief in freedom of speech and freedom of expression goes, to some extent, beyond what the Government considers reasonable and properin all circumstances. I point out that, under the laws which have been promulgated and put into operation by means of regulations issued by the Government, prosecutions have been launched against citizens for reasons which I regard as insufficient. In some cases, it is true, the prosecutions have failed for technical reasons, but in others they have been carried through and convictions obtained. The honorable member for Warringah is apparently blissfully unaware of the fact that there is in existence a large body of law which makes it a penal offence on the part of a person to say anything which might tend to influence other persons in opposition to the war, or in promotion of the ideal of peace. Indeed, it is an offence even to analyse and examine propositions, however well meant, or however disinterestedly expressed, for arrangements on the basis of reason between nations at war. Prosecutions have been laid and continued against individuals of the highest character, men whose reputations cannot be impugned, men of such nobility of character indeed as to make it clear that they were influenced by the highest spiritual considerations based upon Holy Writ itself. That has not saved them from prosecution. Apparently, that will not, in the view of the AttorneyGeneral, save persons from prosecutions in the future. That is where freedom of speech stands.
– It will depend upon the facts of the case.
– It will depend on the state of mind of the judge on the degree to which the judge has been influenced by the miasma of war fever that is affecting public feeling at the time. It will depend on that, and on that only. Our experience of the judiciary as a body, including the High Court itself, does not impress us with much confidence that there will be a liberal interpretation of what is right or wrong, or of what is punishable and what is not punishable inwar.
– The honorable member will concede that no one has fought harder than have the judges for the right of freedom of expression.
– Some judges; by no means all judges. I am far from conceding that, although perhaps I might be inclined to except present company. I merely say that I stand for freedom of speech and freedom of expression. I am a member of an organization whose special mission it is to maintain and preserve civil liberties, and I am proud of my association with that body.
I conclude as I commenced, by expressing the opinion that I shall not be found to be behind, certainly the Opposition, and perhaps the Government, in endeavouring to maintain the right of free speech and free expression. Therefore, I register my profound conviction that these words, embedded in the Constitution, will not be interpreted in any very liberal way by those responsible for the exercise of judicial functions, particularly in view of the fact that laws have been passed to prejudice freedom of speech and expression in this coun try without challenge or criticism, and without regard for the fact that the men seeking to exercise these freedoms are noble characters supported by Holy Writ.
– If carried, the amendments which have been moved by the Attorney General (Dr. Evatt) will considerably alter the original scope of this measure. They represent a departure from the original plan to present to the people of Australia the bill in substantially the same form as it left the Convention. It was my intention to assist the re-shaping of this measure in such a way that it would be acceptable to the people of Australia. The Country party voted for the second reading of the bill in the belief that its defects could be remedied at the committee stage. We were informed that having departed from its original plan 30 far as the structure of this bill was concerned, the Government would be prepared to consider other amendments which had not been agreed to by the Convention. Unfortunately, in spite of the fact that the Country party voted for the second reading of the bill, when the measure reached the committee stage, my colleagues and I encountered strenuous opposition from the Government and from the Chairman of Committees who, in his endeavours-
– That is a reflection on the Chair.
– I withdraw any reflection that I may have cast upon the -Chairman of Committees, and shall content myself by saying that for one and a-half hours we on this side of the chamber had the greatest difficulty in endeavouring to bring certain amendments before the Committee at the time when we considered they would have been of the most assistance in refraining this measure. In fact, as a result of what took place at that time, this chamber, for a while seemed to lose its deliberative character, and to become something in the nature of a “rough house “. Consequently, members of the Country party have not participated in discussions of the various details of the bill to the degree that we intended originally. However, the honorable member for Warringah (Mr. Spender) moved an amendment for me, relating to the organized marketing of primary products that removed the obstacle of section 92 and the acceptance of that amendment by the Government would have enabled members of the Country party to support the measure. As the Prime Minister (Mr. Curtin) and the Attorney-General (Dr. Evatt) are aware,- at the Canberra Convention, I raised the very point which I sought to cover by means of an amendment, namely, the need to ensure organized marketing upon a basis which would enable Australia to compete with other countries, immediately after the war, by reason of the fact that section 92 would no longer be an impediment.
– Order ! I ask the honorable member to confine his remarks to the matter now before the Chair.
– I am merely drawing attention to the fact that the amendments which have been moved by the Attorney-General will extend the scope of the bill beyond its present limits. I also gave notice that I would move certain amendments to extend the scope of the bill, but as the measure in my opinion, still discriminates against primary producers, I see no reason for moving those amendments, because the rejection of the original amendment will make the bill unacceptable to country people. However, I still say to the Attorney-General and to the Government, that despite the fact that these fresh powers are to be incorporated in the bill, a last-minute endeavour should be made to secure the co-operation of the States in regard to powers to be exercised cooperatively by the Commonwealth for a five-year period only. Other matters in respect of which permanent Commonwealth power is desirable and- in which co-operation is not so necessary, should be put before the people on that basis.
– Order ! If the right honorable member does not observe the ruling of the Chair, I shall have to ask him to resume his seat. He must confine his remarks to the matter now before the committee.
– Power in respect of freedom, of speech and expression should not be limited to a five-year period. These matters should be incorporated in the hill in such a way as to enable them to have permanent application to the whole of Australia. If the Government were prepared to do that in regard to certain of these proposed powers, I should be prepared to endeavour to have incorporated in the measure other powers, permanent application of which is just as necessary.
– The weakness of the case advanced by the honorable member for Warringah (Mr. Spender) was quickly revealed by the honorable member for Watson (Mr. Falstein), who pointed out by interjection that what the honorable member for
Warringah desired to do was to incorporate proposed permanent and temporary amendments of the Constitution in the one hill. That would not minimize confusion; it would create confusion. I cannot imagine any referendum being carried by the people if they were asked to vote for a bill which provided for some amendments to be incorporated permanently, and others to be incorporated for a period of only five years. The alternative to that would be to submit the two proposals in separate bills. Then the people would be asked to vote for one bill for permanent inclusion, and another bill for temporary inclusion, of certain provisions in the Constitution, and I believe that would confuse the people much more than the simple method which the Government proposes to follow, namely, to incorporate all its amendments for five years only. No one would be robbed of religious freedom, or freedom of speech and expression, if those freedoms were guaranteed for a period of five years, with the proviso that, before that period had expired, the people should be given an opportunity, in an atmosphere of peace, arid with every person now away at the war back in civil employment, to consider what permanent improvements or alterations should be made to the Constitution.
– Apart from the difficulty which the Minister presents to me now, he will agree that it is a matter for permanent alteration of the Constitution.
– Yes, and I wish to see certain of the legislative powers, or additional ones - preferably additional ones - incorporated permanently in the Constitution.
– Particularly a guarantee of the liberty of the subject.
– I have said, too, that I should like to see that permanently included in the Constitution. The attitude of the Attorney-General (Dr. Evatt) is quite clear. When he came to this House with a certain bill in 1942, he not merely proposed the permanent inclusion in the Constitution of the right of freedom of speech and freedom of religion, but also he wished to make permanent provision in the Constitution for freedom from want, and the legislative measures were set up. That bill proposed a permanent alteration of the Constitution in respect of everything that the measure contained. The Canberra Convention supervened, however, and it was decided unanimously that powers should be sought for a limited period only, or, in other words, that the ‘Commonwealth should be on probation for a certain term. It would be a departure from the spirit of the Canberra -Convention, and of the agreement which emanated from it, if we now sought the permanent incorporation of certain additional powers - safeguards if you wish to call them that - and the temporary inclusion of certain other legislative powers. I can imagine many people saying, if the referendum were held: “ Why do you want to incorporate freedom of religion and freedom of speech and expression permanently in the Constitution, when you are not seeking to include those other powers permanently ? “ We should be in a continuous state of argument and disputation, in our endeavours to tell the people why we had to do certain things because we had agreed with the State Premiers to do them, and why we had to do certain other things because we believed that certain powers should be incorporated permanently. The honorable member for Warringah will not be helping the Government to pass the referendum - and I am sure that he desires to help the Government: - if he insists upon these distinctions between permanent inclusion and temporary inclusion.
I am afraid that the attitude adopted by the right honorable member for Cowper (Sir Earle Page) is not helpful at all, because he seeks to include certain legislative power permanently in the Constitution at this stage. In effect, that would tear up the Canberra agreement. We recognize the difficulty of trying to persuade the people to carry any referendum; but we think that we are on very safe grounds if we ask them to vote for something upon which the leaders of all political parties have agreed. There cannot be much wrong with a proposal that has undergone, the closest scrutiny and won the unanimous support of persons of all shades of political opinion in the Commonwealth and State Parliaments. We are asking the people to vote for or against the Canberra agreement, plus the safeguards which subsequent thought has decided it would be desirable to include.
– I listened intently to the Minister for Information (Mr. Calwell), and if what he said is to be the explanation that is to be given to the people I do not like the Government’s chance of getting this proposal accepted at the referendum. I am not concerned about helping the Ciovernment as such, but I am concerned to get the people to accept something in which I believe. The simple answer to the Minister’s question is that, in the first place, the Government is already going beyond the agreement with the Premiers, because it is including certain additional provisions, so that cannot be an argument at a ll ; and, in the second place, one subjectmatter of the bill is additional powers to be vested in this Parliament, whereas what we are dealing’ with now is not power vested in the Parliament but a prohibition against the Parliament doing something. Powers vested in the Parliament and safeguards to the people are entirely different. For the life of me I cannot see why the Government cannot say to the people : “ These are the safeguards which we want to write permanently into the Constitution, and those are the powers which we want temporarily and which you shall have an opportunity to reconsider “. Not with a desire to help or hinder any one, but with knowledge of how some people are thinking on this matter, I say that if the Government goes to the people with a proposal that safeguards which are fundamental to our way of living shall be provided for only five years it will do the referendum great harm.
– It is obvious at a glance that the safeguards proposed by the Attorney-General (Dr. Evatt) in proposed new sub-section 1a are entirely different from the powers which are being sought in proposed new section 51a. No honorable member, having regard to the long and exhaustive debate which took place on the second reading and the discussion of the provisions of this bill in committee, should have any doubt that the powers asked for are merely indicative of the kind of authority that the Commonwealth ought to exercise when it is fully empowered to deal with matters of common interest to the nation. Such guarantees will be permanently written into the Constitution when steps are taken permanently to alter it. There are many guarantees which ought to be written into the Constitution. Some I referred to in my second-reading speech as having been written into the Constitution of the Irish Free State, a member of the British Commonwealth of Nations. One safeguard that I should like to see permanently incorporated in the Constitution is that of the liberty of the subject which has been infringed by regulations.
– That to a large degree is safeguarded in the Constitution of the United States of America.
Mr. FALSTEIN.- Yes. At a later stage, when provision is made for a convention to determine permanent alterations of the Constitution, the Government intends to include permanent guarantees of the type which it is specifying in this amendment.
Amendment agreed to.
– I move -
That, after new sub-section (1a.) of the new section the following sub-section be inserted : - “ (1b.) Section one hundred and sixteen of this Constitution shall apply to and in relation to every State in like manner as it applies to and in relation to the Commonwealth.”
In the sphere of religious freedom, it is not proposed to adopt any new principle. Section 116, the principal source of which is the First Amendment of the Constitution of the United States of America, already forbids the Commonwealth to make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion. It also provides that no religious test shall be required as a qualification for any office or public trust under the Commonwealth, but that guarantee applies only as against this Parliament. There is nothing similar to it in the Constitution of any State except that of Tasmania. A new section 46 was inserted in the Tasmanian Constitution in 1934. This section is modelled on section 116 of the Commonwealth Constitution, though it does not follow that model exactly. In particular a qualification which is implicit in section 116 is stated explicitly in the Tasmanian section. The guarantee of freedom of conscience aud the free profession and practice of religion is expressly made “‘.subject to public order and morality”. The present proposal is to apply section 116 to the States.
In the United States of America the position in respect of religious freedom is the same as the position I have described to the committee in respect of freedom of speech. The First Amendment applies, in terms, only to Congress. But the courts have interpreted the Fourteenth Amendment as protecting, against the States, all the liberties which the First Amendment guarantees as against the Federation.
Not all of our own section 116 is derived from the First Amendment. The prohibition against the imposition of a religious test as a qualification for office is based on a provision contained in Article VI. in the Constitution of the United States of America. No prohibition against imposing a religious observance is found in the First Amendment. A similar phrase, however, is found in a number of the State constitutions.
The right which the First Amendment was intended to secure was clearly explained by the Supreme Court of the United States in 1890 in the case of Davis v. Season (133 U.S. 333,342)–
Thc First Amendment was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may bo approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted, by the governments of Europe for many ages, to compel parties to conform in their religious beliefs, and modes of worship to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of this amendment.
The exercise of religion, like the exercise of any other right, may impinge on the rights of other individuals and of society. As with freedom of speech and expression, a balance has to be struck between individual right and public order. In applying the guarantees of religious liberty, the courts of the United States of America have acted on the same principles as in applying the guarantees of free speech. In the sphere of religion, as in that of speech and expression, the constitutional guarantee has been a real protection to the individual, but without prejudice to the vital interest of society in maintaining order and morality.
I cite some of the leading cases - both those in which the guarantee was successfully invoked and those in which measures of social control were upheld.
In 1925 the Supreme Court of the United States of America decided the case of Pierce v. Society of Sisters (266 U.S. 510 J. The State of Oregon had passed a compulsory education act requiring every child between the ages of eight and sixteen to attend a public school. The Society of Sisters was a religious organization, which maintained a system of private schools in which the pupils received religious as well ‘as secular education. The Supreme Court held that the statute was unconstitutional. It interfered unreasonably with the right of parents to secure a religious education for their children if they so’ desired -
The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
In 1939, in the case of Cantwell v. Connecticut (310 U.S. 296) the Supreme Court, while asserting that freedom to act in the exercise of religion must be subject to regulation for the protection of society, again emphasized that, in obtaining a permissible end, regulation must not unduly infringe the protected freedom. In that case, the State statute forbade any person to solicit money, services or subscriptions for any alleged religious, charitable or philanthropic cause from anybody but a member of his own organization, unless the cause had been approved by the secretary of a public welfare council. The appellants were convicted of having solicited contributions for a religious society, without the prescribed approval. The court held that, in effect, the statute submitted the exercise of the appellants’ religion to the censorship of an administrative official -
The State is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience.- But to condition the solicitation of aid for the perpetuation of religious views or systems upon a licence, the grant of which rests in the exercise of a determination by State authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.
On the other side of the line, a number of cases have made clear that freedom of religious practice must not be made the excuse for failure to comply with the reasonable dictates of public order. The leading case is Davis v. Beason in 1890, to which I have already referred. A person belonging to the Mormon sect challenged the validity of a statute which provided that no person should be entitled to vote at any election if he was a member of any organization which practised bigamy or polygamy as a doctrinal rite. The Supreme Court held that the statute was valid. After stating, in the language I have quoted, the real intention of the First Amendment, the Court went on to say -
It was never intended or supposed that the Amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. _With man’s relations to his Maker and the obligation he may think they impose, and the manner in which an expression shall be made by him of his beliefs on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with. However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation.
In 1934, the Supreme Court decided the case of Hamilton v. Regents of the University of California. Under State law, the university required every ablebodied male student under the age of twenty-four years to complete a course in military science and tactics. The appellant objected on religious grounds to war and military training. He claimed an injunction declaring him entitled by reason of the Fourteenth Amendment to attend the university without undergoing the course in military training. The court upheld the State law. The plaintiff had not been in any way compelled to attend the university. That was his own free election. To prescribe a course in military training was itself a lawful measure. It could validly be applied to the plaintiff, notwithstanding his religious beliefs.
The High Court of Australia has on two occasions considered the operation of section 116 of our- own Constitution. In 1912 in Krygger v. Williams (15 C.L.R, 366) the court held that the compulsory military training provisions of the Defence Act do not prohibit the free exercise of any religion. A like decision was reached during the first world war by the Supreme Court of the United States of America in relation to the conscription imposed by the Selective Draft Law of 1917. I refer honorable gentlemen to the Selective Draft Law Cases ((1918) 245 U.S. 366).
In 1943 the High Court of Australia applied to the National Security (Subversive Associations) Regulations the principles laid down in the American decisions I have referred to. This was the case of the Adelaide Society of Jehovah’s Witnesses v. the Commonwealth ((1943) 67 C.L.R. 116). The object of these regulations was to put an end to the existence of bodies the continued existence of which was regarded as being prejudicial to the defence of the Commonwealth or the efficient prosecution of the war. The court held unanimously that these regulations did not contravene section 116.
– Hear, hear! I am noting that.
– On the whole, the fair conclusion is that the courts have done a good job.
The principle underlying all these decisions, on both sides of the line, may be summed up in a passage from one of the most recent decisions of the Supreme Court of the United States of America on the constitutional guarantees (Jones v. Opelika (1942) 316 U.S. 483)-
The rights of which our Constitution speaks are not absolutes to be exercised independently of other cherished privileges, protected by the same organic instrument. Conflicts in the exercise of rights arise, and the conflicting forces seek adjustments in the courts, as do these parties, claiming on the one side the freedom of religion, speech and the press, guaranteed by the Fourteenth Amendment, and on the other the right to employ the sovereign power explicity reserved to the State by the Tenth Amendment to ensure orderly living, without which constitutional guarantees of civil liberties would be a mockery. Courts, no more than constitutions, can intrude into the consciences of men or compel them to believe contrary to’ their faith or think contrary to their convictions; but courts are competent to adjudge the acts men do under colour of a constitutional right, such as that of freedom of speech or of the press or the free exercise of religion, and to determine whether the claimed right is limited by other recognized powers, equally precious to mankind. So the mind and spirit of man remain forever free, while his actions rest subject to necessary accommodation to the competing needs of his fellows.
If all expression of religion or opinion, however, were subject to the discretion of authority, our unfettered dynamic thoughts
Dr moral impulses might be made only colorless and sterile ideas. To give them life and force, the Constitution protects their use. No difference of view as to the importance of the freedoms of press or religion exists. They are “ fundamental personal rights and liberties” Schneider v. State, 308 U.S. 147, 101. To proscribe the dissemination of doctrines or arguments which do not transgress military or moral limits is to destroy the principal bases of democracy - knowledge and discussion. One man, with views contrary to the rest of his compatriots, is entitled to the privilege of expressing his ideas by speech or broadside to any one willing to listen or to read. Too many settled beliefs have in time been rejected to justify this generation in refusing a hearing to its own dissentients. Hut that hearing may be limited by action of the proper legislative body to times, places and methods for the enlightenment of the community which, in view of existing social and economic conditions, arc not at odds with the preservation of peace and good order.
This means that the proponents of ideas cannot determine entirely for themselves the time and place and manner for the diffusion of knowledge or for their evangelism, anymore than the civil authorities may hamper or suppress the public dissemination of facts and principles by the people. ‘Hie ordinary requirements of civilized life compel this adjustment of interests. The task of reconcilement is made harder by the tendency to accept as dominant any contention supported bv n claim of interference with the practice nf religion or the spread of ideas.
– Much less can majorities dictate to minorities on these matters.
– Or minorities to majorities. Minorities are not always right. The extract continues -
Believing, as this nation has from the first, that the freedoms of worship and expression are closely akin to the illimitable privileges of thought itself, any legislation affecting those freedoms is scrutinized to gee that the interferences allowed are only those appropriate to the maintenance of a civilized society. The determination of what limitations may be permitted under such an abstract test rests with the legislative bodies, the courts, the executive, and the people themselves, guided by the experience of the past, the needs of revenue for law enforcement, the requirements and capacities of police protection, the dangers of disorder, and other pertinent factors.
As the honorable member for Batman (Mr. Brennan) referred in his speech to what he described as the “futility of those principles “, I should like to read a passage from Government and Politics in the ‘United States, a valuable work -
Another historic right which applies to both citizens and aliens is that of freedom of religion. The original settlers in the American colonies had in many instances left their English and French homes to seek freedom of religion; consequently this right has been particularly dear to large numbers of their descendants. On occasion there has been intolerance - even on the part of those who themselves suffered hardships in order to worship God as they believed proper. The Klan scourge -which spread so amazingly through the South and Midwest during the 1920’s indicates how far religious intolerance can be carried even in this day and age. The recent treatment of the Jehovah Witnesses has been interpreted toy some observers as a definite denial of freedom. However, there has been no serious agitation for a State Church and in general this right has been well safeguarded.
It should be noted that religious freedom does not carry with it the right to engage in practices that violate the criminal laws or the regulations relating to public nuisances. Members of a sect which stresses the importance of a practical display of faith killed their two children one night, with the expectation that their faith in the power of God v.-ould restore them to life before the morning dawned. Of course, they were not permitted to escape the clutches of the law when their faith failed although they had had unblemished reputations in the community in which they lived. Congregations of Holy Hollers sometimes are hauled into court for disturbing the .peace with their loud singing, speaking in tongues, and noisy conduct during the late evening hours; freedom of religion does not justify such practices.
The honorable member also discussed freedom of speech and the press. This subject is also dealt with in Government and Politics in the United States -
Among the historic rights, obtained only after centuries of struggle, which we to-day have inherited are those of freedom of speech and of the press. Some unsophisticated persons imagine that these rights are unlimited and confer the license to say anything or print anything that may be desired. Actually they always have certain restrictions attached to them and during times of national emergency may even be drastically curtailed. In ordinary times these rights are restricted in sofar as they involve slander, indecency, incitement to insurrection, and similar offences against the public welfare. Even if statements of an indecent character are based on facts, freedom of speech does not permit their public utterance, lest public morals be contaminated.
The last decades have seen several attempts toreduce the scope of freedom of the press. Minnesota passed a law in 1925 which provided for the suppression of a “malicious, scandalous and defamatory newspaper, magazine or other periodical”; apparently with the intention of closing up newspapers which had the temerity to criticize certain politicians. The Supreme Court, while admitting that penalties could be enforced against newspapers which violated the accepted canons of propriety, declared that the Minnesota statute went too far toward destroying freedom of the press. Senator Minton led a crusade in the 1930’s to muzzle the press in criticizing the New Deal, but he failed to get his bill through Congress.
During war-time it is invariably the custom to impose added restrictions upon speech and the press. The Sedition Act of 1798, the Espionage Act of 1917, the Sedition Act of 1918, and sections of emergency legislation passed in 1941 are but a few of the laws that Congress has passed on the subject. In 1941 a special section of the Federal Bureau of Investigation was set up to deal with cases in which it appeared that speech or the press conflicted with the national defence programme. Even in times of national emergency the U.S. record is reasonably good, although it is true that on several occasions there have been “ scares “ which led to excesses. One of the encouraging aspects of the picture is that the courts, especially the Supreme Court, have remained somewhat above the clamour of certain public officials and “ super-patriots “ for almost complete abandonment of those rights.
Amendment agreed to.
– I move -
That, after new sub-section (1B) of the new section, the following sub-section be inserted: - “ (1C. ) A regulation of a legislative character under the authority of any law made by the Parliament in the exercise of any power conferred by sub-section (1.)’ of this section -
shall, subject to this section, take effect on the expiration of the fourteenth day after its contents have been notified in the manner provided by the Parliament to each senator and each member of the House of Representatives or on such later date as is specified in the regulation;
shall not take effect if, within fourteen days after its contents have been so notified, either House of the Parliament passes a resolution disapproving of the regulation ; and
shall take effect on the date of it making or on such later date as is specified in the regulation, if the GovernorGeneral in Council declares on specified grounds that the making of the regulation is urgently required.”.
This is the last important amendment, the rest being merely consequential, deals with the matter of delegated legislation which, like the subject of freedom of expression, was raised earlier by the honorable member for Warringah (Mr. Spender). The purpose of this amendment is to ensure that, in its exercise of the new powers, the Parliament shall, as a constitutional right, have a full opportunity to supervise the exercise by the Executive of delegated legislative powers. The guarantee applies only to the exercise by Parliament of the new fourteen powers.
Outside of Parliament, people speak a t times as if there were at present something in the Constitution, or in the law of the Commonwealth, which deprived this Parliament of any opportunity of reviewing the regulations made by the Executive in the exercise of statutory powers, and which put the Executive in a dictatorial position, above even Parliament. Members of this committee know, of course, that there is no legal foundation whatever for such an impression. Delegated legislation is subject to review by each House. If, in practice, the Houses do not exercise their powers of r eview as actively as they should, that is a political matter, without any effect on the legal position.
The present law on the subject is contained in section 48 of the Acts Interpretation Act. I cite the relevant portions of this section -
– (1.) Where an Act confers power to make regulations then unless the contrary intention appears, all regulations made accordingly -
(3.) If any regulations arc not laid before each House of the Parliament in accordance with the provisions of sub-section (1.) of this section, they shall be void and of no effect. (4.) If either House of the Parliament passes a resolution (of which notice has been given at any time within fifteen sitting days after any regulations have been laid before that House) disallowing any of those regulations, the regulation so disallowed shall thereupon cease to have effect. (5.) If, at the expiration of fifteen sitting days after notice of a resolution to disallow any regulation has been given ineither House of the Parliament in accordance with the last precedingsub-scction, the resolution has not been withdrawn or otherwise disposed of, the regulation specified in the resolution shall thereupon be deemed to have been disallowed.
I draw attention to four points in this section. First, in the normal case, a regulation will take effect upon notification, and will already he in operation when it is laid before the Houses. Secondly, unless Parliament is sitting, the members of the Houses will not receive any formal notice of the making of a regulation until the Houses re-assemble. Thirdly, the rule is only a rule of interpretation. It can be excluded, in relation to any act, by a contrary expression of intention in that act, and it can at any time be repealed by ordinary act. Fourthly, so long as this section is in operation and so long as the Houses are reasonably vigilant, each House has the same power to prevent a regulation of which it disapproves from remaining in operation as it has to prevent a bill of which it disapproved from becoming law.
Government by delegated legislation has, inevitably, been carried to great lengths during the war, and the Executive has found it necessary to regulate in some detail many of the ordinary day to day affairs of the community. There is an inevitable public reaction at the moment against the whole system of delegated legislation.
– Twenty years ago Lord Chief Justice Hewart wrote a book entitled The New Despotism, dealing with this matter.
– Yes, and important books were written in answer to that work. The practice of delegating legislative powers to the Executive is, nevertheless, a universal one in democratic communities. Critics who are best informed in the matter are of opinion that the practice is both necessary and, where Parliament carries out its own duties effectively, advantageous. It is the duty of this Parliament to view the situation in proper perspective. This Parliament’s duty is to avoid taking any step which, though in accord with the apparent feeling of the moment, would in the long run injure the community by imposing unnecessary fetters upon the processes of government.
The amendment proposed by the Government is based on the following assumptions : - First, that in normal times Parliament could with advantage be given a fuller opportunity of supervising the delegated legislative work of the Executive. Secondly, that it would be advantageous to embody rules for this purpose in the Constitution itself, and thus put them beyond the reach of casual revocation by Parliament. Thirdly, that the manner in which the Parliament organizes itself for the purpose of supervising delegated legislation is a matter for each House to determine in its own discretion, and not a matter which should be embodied in the Constitution.
The proposed amendment is based generally upon the present law, but makes two substantial changes. In the first place, the proposed new sub-section ensures that, whether the Houses are sitting or not, members of each House shall receive notice, in such manner as the Parliament itself specifies, of the contents of the regulation. In the second place, the regulation, instead of coming into operation immediately on the date of its notification in the Gazette, will not take effect until fourteen days after its contents have been notified to each member of both Houses.
The idea underlying the proposal to give notice in every case to the members of both chambers is, of course, that this will place on each member an individual responsibility for deciding whether or not the proposed regulation is to take effect. In principle, this is probably a more real responsibility than that of deciding merely whether an existing regulation shall be disallowed or left to take effect. It is a departure from existing practice, and should be most valuable.
If Parliament is not actually sitting when notice is’ given of the contents of a regulation, there is no formal provision in the amendment for the taking of any action by a member who disapproves of the making of the regulation. He can, of course, approach the leaders of his party, or the Government, or other members, with a view to taking immediate action to prevent the regulation from taking effect. If it were found that a substantial body of opinion among individual members disapproved a regulation, a government would, no doubt, withdraw it before it took effect. This is not in itself an absolute safeguard. But it is a very great improvement on the present position. For, as things now stand, a member does not receive any formal notice of the making of a regulation unless he happens to see a press announcement or obtains a copy of the Gazette.
Provisions requiring proposals for the making of regulations to be notified have long been in partial operation in Britain, and from 1904 until 1916 were in operation also in Australia. Such a system, however, caused delay, and the relevant legislation contains provisions enabling the Executive to make regulations forthwith in any cases where it was deemed to be urgently necessary to do so. In practice, it was found that resort to the emergency provision became very common. During the last war, the whole system in Australia providing for the notification of proposed regulations was abandoned. The Government has thought it wise to incorporate in the proposed amendment a provision along these lines postponing the operation of regulations until, the expiration of a specified period of. notice……
The” new arrangement, being inserted in the Constitution, will be protected against repeal by Parliament. The provisions of the amendment, however, are not entirely self-executing. . Action by
Parliament is required along two lines. First, it will be necessary for Parliament to make some legislative provision for determining the manner in which the contents of regulations are to be notified to members, both when the Houses are sitting and when they are not. Secondly, the Houses will no doubt duly lay down means of organizing their proceedings so that they will be able to-take full advantage of the opportunity of giving better supervision to the legislation made under statutory powers by the Executive.
Members of the committee may have observed that, under paragraph b of the proposed new sub-section, the power reserved to each House is to disapprove of a regulation before it comes into effect. That is to say, the power can only be exercised within fourteen days after the notice of the contents of the regulation has been sent to members. In other words, the power is exercisable as a preliminary to the coming into operation of a regulation. Moreover, section 48 will, no doubt, also remain in operation, with or without some modification, in addition to the new constitutional guarantee.
Section 48 applies to all statutory rules, whether of a “ legislative character “ or not. It is proposed, in accordance with the suggestion made by the Leader of the Opposition, that the new guarantee should operate in respect only of exercises of delegated power which are of a “ legislative character “. This expression has been considered by the High Court in one or two cases during the war, with reference to orders under section 5 of the National Security Act. The court has held, in effect, that the test of whether an instrument is of a legislative character is whether it purports of its own force to impose legal obligations, or whether it can properly be regarded as merely executing or implementing a law laid down by some other body. The distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be,, and conferring ari authority or’ discretion as to its execution,- to be exercised under and in pursuance of the law. For instance, if an act gives to the GovernorGeneral power to make regulations with respect to the employment of transport workers, the resultant regulations would be legislative in character, for the GovernorGeneral would have complete discretion as to what the law should be. On the other hand, if the act required a person to give such particulars at such times and in such manner as the Governor-General .should prescribe, the specification of time and manner by the
Governor-General would not be legislative but would be executive in character; for all the Governor-General would do would be to exercise his discretion in specifying the matters on which the legislative command would operate. The limitation of the constitutional guarantee to exercises of power which have a “ legislative character” is sound in principle. It is only in issuing regulations of a legislative character that the Executive is really acting as the delegate of, and substitute for, Parliament.
– I am disappointed at -the provision which the Attorney-General (Dr. Evatt) has submitted to the committee. In order to test the opinion of the committee, I move, as an amendment upon the amendment -
Thai the proposed sub-section (Jo.) be left out, with si. view to insert in lieu thereof the following sub-section : - “ ( lc.) No regulation of a legislative character under the authority of any law made by the. Parliament in exercise of any power conferred by this Constitution shall be made or if made become operative, unless and until it has been approved by both Houses of the Parliament:
Provided that during such period as the Parliament is not sitting in session the GovernorGeneral in Council may declare on specified grounds that the making of the regulation is urgently required, and thereupon any such regulation may be made and take effect on the date of its making or on such later date as is specified in the regulation, but unless confirmed by both Houses of the Parliament within one month of its next meeting after the making of such regulation shall cease to have any effect or operation “.
I contend that the making of regulations of a legislative character, imposing, as they do of their own force, legal obligations on citizens of this country, must be carefully scrutinized. It is riot to the point to say that the right is at present reserved to us to disallow regulations. Every honorable member knows that regulations come out in a substantial spate, and in all probability the rate of promulgation will not diminish after the war. It is not always easy to appreciate quickly the actual effect of regulations immediately they are issued. The full force of regulations frequently dawns upon us a long while after their promulgation, when we consider them in relation to specific facts placed before us.
– That often applies to the makers of the regulations.
– Yes. The Minister responsible for their promulgation frequently realizes afterwards that they have a far wider scope than was thought at first. In fact, the administrator to whom the power is delegated is often found to exercise power which the Minister, had no intention to delegate to him. I say with all respect to the Attorney-General that the proposed provision now under consideration is valueless. It is to operate for only five years, but beyond that it will apply only to regulations made under the new powers proposed to be granted. What is the reason for the distinction in respect of regulations promulgated under the new powers?
– The Minister who interjects does not pay proper regard to a serious submission. If this bill becomes law, then for five years from the termination of hostilities this Parliament will have the powers at present vested in it, plus the additional powers which it is hoped that the people will confer upon it. Therefore whatever provision may be made to protect this Parliament and its legislative powers, I do not see why it should not extend to all of the powers to be possessed by the Parliament during the five-year period after the war. It is quite impossible for the Parliament, with the increasingly complex nature of governmental activities, to do other than delegate many powers to administrators, hut with regard to legislative powers the position is quite different. Proposed new sub-section lc states -
A regulation of a legislative character shall, subject to this section, take effect fourteen days after its contents have been notified in the manner provided by the Parliament to each senator and each member of the House of Representatives
Then the proposed new sub-section provides that such a regulation shall not take effect if, within fourteen days after its contents have been so notified, either House of the Parliament passes a resolution disapproving the regulation. The chances are that when members are notified of regulations the Parliament will be in recess. Objectionable regulations are usually promulgated when the Parliament, is in recess, the reason for that, unfortunately, being too obvious. The chances are that during the ensuing fourteen days Parliament will not meet, and if a further fourteen days elapse while Parliament is in recess the regulations cannot be disallowed under this provision. The proposed new sub-section lc robs the two preceding sub-sections of any value which they might otherwise have, because it provides that a regulation of a legislative character made in the exercise of any power -conferred bv sub-section 1 of proposed section 51a shall take effect on the date of its making or on such later date as is specified in the regulation, if the Governor-General in Council declares on specified grounds that the making of I he regulation is urgently required. Only three Ministers are required foi1 the signing of regulations. It is not unknown for Ministers to meet in Executive Council and approve large numbers of regulations without much knowledge of either their content or exact effect, although they operate upon the lives and property of the people. I have reason to believe that that practice is not unusual at the present time. The Government can promulgate, therefore, at its will under the proposed provision, any regulations and they come into force immediately. As I have already said, this is a worthless proposal. We should endeavour not only to prevent the abuse of the delegation of legislative power, but also to preserve the rights of members of this Parliament.
– The honorable member for Warringah (Mr. Spender) is correct on one point, namely, that the suggestion for dealing with delegated legislation was made by the Leader of the Opposition (Mr. Menzies). Paragraph 7 of the amendment moved by the Leader of the Opposition at the second-reading stage read -
The fears entertained by the honorable member for Warringah might be justified if it were proposed by the Government to end the existing disallowance provision. No such proposal is contemplated. I should like to examine the honorable member’s amendment. What exactly would be its effect if it. became part of the Constitution? The first part of his amendment prohibits the making of any regulation of a legislative character, unless and until it has been approved by both Houses of the Parliament. This first part also has a second limb which provides that if any such regulation is made it is not to become operative unless and until it has been approved by both Houses of the Parliament. This part of the provision appears, therefore, to contain a contradiction in terms because it first prohibits the making of any regulation without the required approval and then goes on to say that if it is made it shall not become operative without the required approval. It may be, therefore, that not only must approval be obtained before the regulation is made, but also once it is made a second approval must he obtained before it can become operative. I cannot believe that this is what is intended.
More important, the effect of this part of his amendment is that every regulation must be considered by both Houses of the Parliament and approved toy both Houses of the Parliament. If such a provision were incorporated in the Constitution, it would practically put an end to legislation by delegated authority because it would be just as expeditious to make the same provision by act of Parliament as by regulation. It is quite impossible to administer government in that way and no one knows that better than the honorable member for Warringah.
– It is done in the United States of America even in time of war.
– Even the Executive in the United States of America has great powers, although I admit they are much more limited than those of the Executive in this country. But the reason for that is that the Executive here is responsible to Parliament, whereas, in the United States of America, the Executive and the legislature are practically rival bodies. I suggest that the honorable member’s proposal would be quite unworkable.
His proposed provision contains a proviso under which, when Parliament is not sitting, the Governor-General may declare that the making of a regulation is urgently required and thereupon any such regulation may be made and take effect immediately or on such date as is specified in the regulation. But even then within one month of the next meeting of the Parliament the regulation must be confirmed by both Houses of the Parliament, otherwise it will cease to have any effect or operation. The effect of the proviso is simply that regulations may, when Parliament is not in session, be made as a matter of urgency to cover a period up to the time of the next sitting of the Parliament. If Parliament sits frequently the confirmation of such regulations by both Houses of the Parliament might be spread fairly evenly over the whole year, but if Parliament were in recess for a period of three or four months it might be faced in the first month after the resumption of the sittings with an overwhelming mass of regulations requiring confirmation.
– No, only a very limited number of regulations are legislative in character.
– Even if the sittings were frequent and regulations could be dealt with a few at a time, the burden on Parliament would be insuperable. The result would be that either no regulations would be made or if regulations were made Parliament would have great difficulty in dealing with them,- and in many cases probably regulations would cease to be operative because of the inability of Parliament to deal with them. While some parliamentary control over the making of regulations is necessary, and is recognized in the amendment which I have moved, the limitations proposed by the honorable member are far too rigid in a democratic community. Parliament would be unduly hampering itself, and also the people of Australia, if it agreed to the amendment proposed by the honorable member. I repeat that Parliament already possesses the power to disallow the regulations; but how many times has it exercised that power? In this Parliament, the honorable member for Warringah alone of all honorable members has given notice of a motion to disallow a regulation, and in the last Parliament we disallowed only two or three regulations. One of those was Regulation No. 42 a which appeared to infringe many fundamental rights. The honorable member for Batman (Mr. Brennan) and the ex-member for Bourke (Mr. Blackburn) opposed that regulation, and it was disallowed; but that was a major event in the life of the Parliament. Nobody knows better than does the honorable member for Warringah that the disallowance of a regulation is an unusual and serious affair. Parliament’s power of disallowance is an important power, but it is exercised sparingly. However, if . the honorable member’s provision be agreed to - and we could not get rid of the provision without holding another referendum on the subject - every regulation of a legislative character would have to be dealt with by Parliament, and, consequently, the work of honorable members would be increased to a very great extent. The Government proposes to embody in the Constitution safeguards in order to enable honorable members to see a proposed regulation before it becomes operative; and that is without prejudice to Parliament’s existing power of disallowance under the Acts Interpretation Act, or its opportunities to make that power even more effective. My amendment secures for honorable members, whether the House be sitting or not, knowledge and notice of a proposed regulation at least fourteen days before it becomes operative. Thus honorable members are given an opportunity to consider it before it comes into operation at all. I do not think that that is without importance. What is complained of very often is the making of a regulation before any notice is given to honorable members. If the House has an opportunity to disapprove, that can be done before the regulation becomes operative. Moreover, there is the existing power of disallowance. This is a genuine attempt to improve the existing position. The problem is difficult to solve because whilst Parliament on the one hand should keep a close watch on all subordinate legislation, it is equally true that Parliament will not wish to interfere with regulations, even if they be of a legislative character, if they are of minor importance. That will be particularly the case in view of the legislative work which Parliament will be called upon to perform after the proposed new fourteen powers are included in the Constitution.
– The AttorneyGeneral (Dr. Evatt) has exaggerated the magnitude in number of regulations of a legislative character. 1 have attacked the powers which are used by the Government to make regulations, and it is extraordinary that the reply to my amendment has been prepared by officers who play a part in the framing of regulations. It is quite obvious that the reply made by the AttorneyGeneral was so prepared by his advisers. He says that the reason why he is not willing to put a break upon the Executive’s power to make regulations, is because if that is done, Parliament will be overwhelmed by regulations. That is eyewash. It is about time that Parliament met more frequently than is the case at present, and exercises to a greater degree the legislative powers vested in it. The people expect us to protect them in this way. If Parliament met more frequently it would have ample opportunity to deal with all regulations of a legislative character in the way I suggest. To-day, Parliament meets on an average of one day out of eight or ten, and most of the time of our limited number of sittings is wasted in debates which are completely futile. I submit that the AttorneyGeneral’s amendment is completely valueless and will not achieve the purpose which it is intended to achieve.
– The appeal made by the honorable member for Warringah (Mr. Spender) for more frequent meetings of the Parliament is in strange contradiction to the attitude he adopted on this subject when he was a Minister. Since this Government assumed office, the Seventeenth Parliament has met as frequently as did the Sixteenth Parliament, and honorable members have been given greater opportunities by this Government than by its predecessors to protect the country against bureaucracy. If this Parliament meets as infrequently as the honorable member says that it does, then not many protests have been made from his side against the alleged infrequently; this is thefirst we have heard of it.
– Order ! The Minister must confine his remarks to the amendment.
– I was about to remark that the suggestion of the honorable gentleman for altering the procedure with respect to dealing with regulations made under acts of this Parliament is but an extension of the proposal of the AttorneyGeneral. This is the first occasion upon which any attempt has been made to write anything into the Constitution to safeguard the people from the regulatory power of the Executive. The honorable gentleman suggests that we ought to go very much further. I consider that we are doing very well. There is such a thing as the inevitability of gradualness when it comes to the making of Constitution alterations. If I may express it in another way, it is a case of one step enough for me “. One cannot get at one effort all that one may want in the matter of Constitution alteration. I consider that we have made excellent progress,and that the committee ought to accept the amendment of the AttorneyGeneral and reject the amendment to it proposed by the honorable member for Warringah. The honorable member must be reasonable in all such matters. Instead of attempting , to flay the Government for an abuse of power, he ought to remember some of the things that were done by the bureaucracy when his Government was in power, which caused a good deal of discussion in this Parliament, by some members on his own side.
Amendment upon amendment negatived.
Original amendment agreed to.
Amendment (by Dr. Evatt) agreed to-
That, sub-section (2.) of the new section the words “ the last preceding sub-section “ be left out with a view to insert in lieu thereof the followingwords: - “sub-section (1.) of this section “.
Amendment (by Dr. Evatt) previously temporarily withdrawn agreed to -
That, at the beginning of the clause the words “section fiftyone, the following section: - 51a”, be left out with a view to insert in lieu thereof the following words: - “ Chapter I, the following Chapter and section : -
Chapter Ia. - Temporary Provisions.
Clause, as amended, agreed to.
Postponed clause 1 -
This Act may be cited as Constitution Alteration (Post-war Reconstruction) 1944.
– In view of the inclusion by the committee of certain safeguards and rights with respect to individuals, I move -
That, after the word “ Reconstruction”, the following words be inserted: - “and Democratic Rights”.
That is the description of the rights conferred on the people by the provisions agreed to by the committee.
Amendment agreed to.
Clause, as amended, agreed to.
A bill for an act to alter the Constitution by vesting in the Parliament certain additional powersuntil the expiration of five years after Australia ceases to be engaged in hostilities in the present war.
– Consequent upon what has been decided by the committee I move -
That all words after the word “Constitution “ be left out with a view to insert in lieu thereof the following words: - “for a limited period by empowering the Parliament to make Laws in relation to Post-war Reconstruction, and by including Provisions to safeguard Freedom of Speech and Expression and Freedom of Religion “.
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments, and with an amended title.
Standing Orders suspended.
Motion (by Dr. Evatt) proposed-
That the report be adopted.
Mr. MENZIES (Kooyong- Leader of to be an appropriate stage of the bill at which to make some remarks about the extraordinary events which have occurred during the discussion of it.
– Before the right honorable gentleman went to bed.
– I regret to say that I have not yet been to bed. There have been some quite extraordinary events in the course of the discussion, not only in committee, but also in the House, and at this stage it is proper to make some comment about them. Shortly before dinner-
– The right honorable gentleman is not entitled to refer to what took place in the House.
– Shortly before dinner, a division was taken on the motion for the second reading of the bill.
– I rise to order. I submit that the question before the House is the adoption of the report of the committee which has been made by the Chairman of Committees, who has no official cognizance of what took place outside the committee.
– -The question before the House is the adoption of the report of the committee. That report is either correct or incorrect. If the right honorable gentleman has any observations that he wishes to make on that point, I shall hear him.
– I understand that you rule that I am not at liberty to refer to what happened before the House went into committee?
– That is so.
– Then I shall have to defer my remarks in that connexion until the motion for the third reading has been moved. In deference to your ruling, I shall confine my remarks to what has taken place in committee. Quite briefly, what has taken place in committee is this: Honorable members, in committee, devoted their attention-
Government Members. - The right honorable gentleman was not present.
– Honorable members in committee, at a time when I was present, devoted their attention to the consideration of this bill. In the course of that attention, certain events occurred which led to the suspension of one honorable member, first from the service of the committee and then from the service of the House. The events which led up to that event were, in my submission, a complete travesty of parliamentary procedure, and represent, as nothing in my experience in this Parliament or in any other Parliament, has represented, a gross misuse of the power of a majority to coerce a minority. One of the things that has been written into this bill in the committee is some alleged guarantee of freedom of speech and expression. The whole of the proceedings have indicated how utterly worthless a guarantee of freedom of speech and expression can be, in the presence of a majority determined to use its power. The event was this : The honorable member for Indi (Mr. McEwen) was treated, in my opinion - and it is an opinion which is shared by at least those honorable members who sit on this side of the House - in a most offensive manner, and when he resented that treatment he was subjected to a motion for his suspension ; that is to say, he was named, and, following the procedure laid down in the Standing Orders, a motion was in due course submitted for his suspension. In the meantime, the honorable member had left the House. He was sent for by the Temporary Chairman of Committees. He returned to the chamber. Having returned to the chamber, he was then invited by the Prime Minister (Mr. Curtin) to express regret for the events which had led up to his being named by the Chair. He did so. Thereupon, the incident closed, and the honorable member for Indi sought to resume the speech that had been interrupted by his being named. When he sought to resume his speech he was informed, first that his time had expired, and secondly that the question which he ‘ desired to debate, namely, the question of the postponement of clause 2, had been resolved in his absence. That, to nae, is one of the mysteries of procedure. I do not profess for one moment to understand how, after a member has been named and a Minister has been called upon, under the Standing Orders, to move the suspension of that member, a question can then be put by the Chair which has no relation to the suspension of the member, and de-1 clare it carried. There are two things to be said about that. The first, I may say on the authority of several honorable members on this side of the House, is that no such question was put.
– The right honorable gentleman is referring to something that happened in committee. Only the committee can deal with that matter. The only question now under discussion is the report of the Chairman of Committees - is it correct or incorrect? What happened in committee should have been settled in committee.
– Just so that I may be clear, let me state the position as I see it. You, sir, ruled earlier that I was not in order in discussing what had taken place in the House. I now understand you to rule that I am not at liberty at this stage to discuss what took place in committee.
– That is not exactly correct. What I ruled is that any point of order in regard to what took place in the House should have been raised at the time. The right honorable member did not raise it. What took place in committee is a matter for the committee to decide. The Chairman of Committees has made a certain report to me. The only question involved in the motion before the House is whether that report should or should not be adopted. The committee has to solve its own problems. The House cannot solve the problems of the committee.
– I rise to order, I ask your ruling, sir. When the motion before the Chair is that the report of the committee be adopted, must the debate then be confined merely to whether the report should or should not be adopted? If in committee a procedure had been followed which was regarded as a denial of the rights of the Opposition to debate a matter, surely that question could be discussed on the motion for the adoption of the report?
– I have already ruled that the committee must solve its own problems. Any difficulty arising in committee must be solved by the committee, unless the Standing Orders provide that it must bg referred to Mr. Speaker, which was done in certain circumstances to-night. I also ruled that if the Leader of thd Opposition wished to raise a point of order in the House he should have done so at the time.
– I did, during a division.
– I was not aware of it. My ruling in that case is that if two members call for a division - and here I am guided by the Standing Orders - a division must be taken. I ordered a division, and it was taken.
– And those members who call for a division must vote with the minority.
– Unfortunately, that point was not raised.
– It is unfortunate tha.r> there was no collusion with Mr. Speaker.
– The honorable member for Richmond must withdraw that remark, or I shall name him.
– I refuse to withdraw it.
– Then I name tire honorable member for Richmond and ask the Prime Minister to take the necessary action.
– I suggest to the honorable member for Richmond that there has been enough unpleasantness to-day. He has made a reflection upon the impartiality of the Chair. That cannot be allowed, and I ask him to withdraw it. If he will not do so I shall be compelled to move that he be suspended.
– The honorable member has his choice.
– In deference to the request of the Prime Minister-
– That is not satisfactory.
– In deference to the Chair, I withdraw the remark.
– I was about to remark that the point raised by the Leader of the Opposition was belated. It was that, when a division is called for, the Standing Orders provide that the votes of those who call for it shall he recorded with the minority. It is not within the province of the Chair to direct attention to that fact.
– I rise to order. The Standing Orders do not require that the omission shall be pointed out to you, sir.
I submit that it is mandatory, because Standing Order 295 distinctly provides -
A member calling for a division shall not len vo the chamber, and shall VOte with those who, in the opinion of the Speaker, were in the minority.
I submit that it was your duty to have recorded the callers for that division with the minority. I respectfully ask that that be done now.
– I have already ruled that that point might have been legitimately taken when the event happened. Unfortunately, it was not taken, and therefore it goes by default. .
– May I ask you, sir, as you have given a ruling on Standing Order 25)5, to give a ruling on Standing Order 293, which provides -
A- division cannot bc called for, unless more than one voice has been given for the “ Ayes “ and likewise for the “Noes”.
No voice was given for the “Noes”.
– That is not correct.
– I can . only disagree with yon.
– The right honorable member can disagree, but there was a very distinct call for the “ Noes “. Whether honorable members change their minds about a division is a matter for themselves.
– We find that a very offensive remark. We resent the Chair is being offensive to honorable members.
– I rise to order, I submit that, on a motion for the adoption of the report of the ‘Chairman of Committees to the effect that the committee has agreed to a bill with amendments and with an amended title, only the report as to the decision of the’ committee can be debated. Anything that took place on the second reading, or at any other stage, is not relevant to the motion.
– I have already ruled that the motion before the House is the adoption of the report of the Chairman of Committees, and that on that motion no other question is relevant than the question of whether the report ; should or should not be adopted.
– I rise to order. You have already ruled that what can be discussed is whether the report should or should not be adopted. The Leader of the Opposition was leading up to the point that there was an inaccuracy in the report, in that a certain amendment submitted by the Leader of the Australian Country party was not properly placed before the committee, and that, therefore, in that respect the report could not be correct. I submit that honorable members are quite in order in discussing an alleged inaccuracy in regard to the voting in committee.
– The proper time to have discussed any alleged irregularity in committee was when the Chairman put to the committee the question, “ That I report the bill to the House with amendments and with an amended title “. Apparently that was not done, and it is now too late.
– Standing Order 178 is very clear.
.The question of whether the House should or should not adopt the report must substantially depend on whether the committee has in fact properly carried all the clauses of the bill which is the subject of the report.
– I rise to order. I submit that the time for the honorable member to raise that question was when the Chairman put to the committee the question that he report the bill to the House with amendments and with an amended title.
– I have already ruled in that way. I cannot hear further discussion.
– I ask you to hear me, sir, on a point of order. I desire to read to you the relevant portions of Standing Order 59, as follows: -
Whenever any member shall have been named by the Speaker or by the Chairman of Committees . then, if the offence has been committed by such member in the House, the Speaker shall forthwith put the question; on the motion being made, no amendment, adjournment, or debate being allowed and, if the offence has been committed in a committee of the whole house, the Chairman shall, on a motion being made, put the same question in a similar way, and, if the motion be carried, shall forthwith suspend the proceedings of the committee and report the circumstance to the House . . .
I was named in the committee stage.
– The Chair cannot take cognizance of what took place in committee. The Chairman of Committees has reported what the committee did with the bill. The adoption of the report has been moved. The only question before the House is whether the report should or should not be adopted. I shall therefore hear no further argument upon it.
– Mr. Speaker-
– Order! If the honorable member desires to dissent from my ruling, he can do so in the proper way.
– May I ask you a question?
– I have ruled that the proper time to have raised the point which the honorable member for Indi desires to raise was in committee. I shall now put the motion -
Question put -
That the report be adopted.
The House divided. (Mr. Speaker - Hon. J. S. Rosevear.)
Majority . . . . 24
Question so resolved in the affirmative.
Motion (by Dr. Evatt) proposed -
That the bill be now read a third time.
.- I desire to move -
That the bill be recommitted.
I take this opportunity to direct attention to the fact that a vital clause of this bill was never properly submitted to the committee for decision, and the only way in which this omission can be amended is by recommitting the bill. There is a standing orderwhich provides, that when an honorable member is named, the motion for his suspension must be put forthwith by the Chairman of Committees, without adjournment, without postponement and without debate. During the committee stage of the bill-
– I rise to order. I submit that the honorable member should have raised this matter on the motion for the adoption of the report.
– The point of order is upheld. The honorable member could raise the matter only at the report stage. I now rule him out of order.
– Do I understand that I am not in order in moving that the bill be recommitted ?
– Unless the. honorable member did so at the report stage he “ missed the bus “. Does the honorable member desire to take other action?
– I desire to speak to the motion for the third reading of the bill. I have sought on a number, of occasions, of which you must be aware, Mr. Speaker, because, curiously enough, they were during your occupancy of the chair, to direct attention to the fact, that at an earlier stage in the consideration of this bill, certain incidents occurred. Although the Standing Orders appear to provide that at whatever stage one raises the matter one has “missed the bus “, I still hope, that by virtue of the title of the bill, which now includes those magic words about “ democratic rights “, I may be permitted to relate the extraordinary circumstances in which this measure was put through committee.
– The honorable member may refer only to the details of the bill, and to those only. He may not refer to the circumstances associated with the passage of the bill.
– Am I to understand that, not having had an opportunity to speak to the motion that the report be adopted-
– That is not correct.
– Well, not having had an opportunity to relate, during the consideration of the motion that the report be adopted, certain circumstances associated with the passage of the bill, I am not now permitted to refer to those circumstances at all? I wish to say, that in the course of your various rulings, you said that the motion for the adoption of the report was concerned only with whether the report should or should not be adopted. I desire to take this last opportunity to claim that the report was inaccurate.
– The honorable member may not refer to that on the motion for the third reading of the bill. He may refer only to the details of the bill. The passage of the bill through committee is not the concern of the Chair. The honorable member can deal specifically with the details of the bill, and nothing else. I will not permit him to do anything else.
– May I ask your ruling, Mr. Speaker, on Standing Order 178, which is as follows : -
No notice may be taken of any proceedings of the committee of the whole or of a select committee on a bill until such proceedings have been reported to the House.
Is it not clear from the wording of that standing order, that when that event takes place, notice must be taken of the proceedings? Further, is an honorable member in order in moving that the third reading of a bill be postponed for a given period, and advancing as a reason for his motion the conduct of the committee while the bill was before it? If he offers in support of his submission, for example, the opinion that the proceedings in committee were a nullity for some reason, is he not then in order?
– May I advance the submission that Standing Order 178 means that the House cannot take cognizance of what takes place in a committee of the whole, or in a select committee, unless the committee of the whole or the select committee directs by resolution that the matter be reported to the House? The committee of the whole House had such an opportunity. It had the question put to it that the bill be reported in a certain way. To that motion any honorable member could have moved an amendment, upon which the committee could have resolved the nature of the report which the Chairman should give to Mr. Speaker. By carrying the motion that the Chairman report to the House that the committee had agreed to the bill with amendments, and with an amended title, the committee itself decided the nature of the report that should be given to the House. That at least is ray point of view. Any honorable member is entitled to advance arguments as to why n point of order should be sustained or [ejected before a final determination is made by Mr. Speaker. I have advanced my arguments in reply to the first submission of the honorable member for Warringah (Mr. Spender). In regard to the honorable member’s second submission, I contend that there are definite limits to the amendments that may be moved to the motion for the third reading of a bill.
– I agree entirely with the submissions of the right honorable the Prime Minister (Mr. Curtin). The honorable member for Warringah (Mr. Spender) based his first point on Standing Order 178, which states -
No notice may be taken of any proceedings of a committee of the whole or of a select committee on a bill, until such proceedings have been reported to the House.
I draw attention particularly to the word “ proceedings “, which, in my view, relates to the very matters which some honorable members have sought to ventilate to-night. What the Chairman of Committees reports is not the “ proceedings of a committee “, but merely the result of the deliberations of the committee, which is entirely different. The phrase “ proceedings of a committee “ might refer, for instance, to the conduct of the honorable member for Wide Bay (Mr. Corser) earlier this evening. I mention this matter with diffidence, and merely to stress the point which I seek to emphasize. The Chairman of Committees reported to me the proceedings of the committee, involving the conduct of the honorable member for Wide Bay, but when the committee stage of the bill had been concluded, the report made to me was not on the proceedings of the committee, but on the result of the deliberations of the committee, which is entirely different.
In regard to the second point raised by the honorable member for Warringah, it is true that an honorable member may move that the third reading of the bill be postponed for any specified period, but, under the Standing Orders, that is the limit of his action at that stage.
– He could advance reasons for his motion for the postponement of the third reading.
– Unquestionably. He could state why he considered that the third reading of the bill should be postponed.
– Because of something that the bill contained; not because of something that occurred in committee.
– That is so. Only the details of a bill may be discussed on the motion for its third reading. An amendment may be moved for the postponement of the third reading, but in that event only the details of the bill and the reasons for the suggested postponement may be mentioned in the course of the debate. That is quite clear. Therefore, I hold that the ruling which I have already given i3 correct. Anything which the committee considered should have been reported to the House should have been included in the report made to me by the Chairman of Committees.
– I rise to order. You have said, Mr. Speaker, that in the debate upon the third reading of a measure, an honorable member may deal only with the details of the bill. Do I understand you to mean that, not only the details of the bill, but also the principle of the bill may be discussed?
– Principles are very broad. The right honorable member for Cowper (Sir Earle Page) has. been in Parliament, sufficiently long to know that, on the third reading of a measure, only the details of the bill may be discussed, and not the various principles which it may contain.
– I rise to order. I desire to speak on the third reading of the bill, and, with all due deference to the ruling that you have given, Mr. Speaker, I should like to know what will be the limits of my remarks. Have I the right to move a motion under Standing Order 183, which states -
On the order of the day for the third reading being read by the Clerk and before motion made, “That the bill be now read a third time “, the bill may, on motion, be recommitted, either in whole or part . . .
– But the motion has been made.
– I should like to know, Mr. Speaker, if, under that standing order, I am permitted to move a motion for the recommittal of the bill?
-Standing Order 183, which is probably the clearest of some rather obscure standing orders, states -
On the order of the day for the third reading being read by the Clerk and before motion made, “ That this bill bc now read a third time “, the bill may, on motion, be recommitted-
That is, before the motion is made “ That the bill be now read a third time “. The standing order continues - either in whole or in part; in which case it amendments be made, a subsequent day shall be appointed for the consideration of the report and the bill shall in the meantime be printed; but, if no amendments have been made, the report may be at once adopted and the bill read a third time.
The first three lines of that standing order are quite explicit. The honorable member has missed his opportunity.
.To enable me to make some observations on this measure’, I desire to move -
That the word “now” be left out, and that the following words be added: “this day six months “.
I take this course because I consider that time is needed for reflection upon the general circumstances of the debate on this measure. It was the intention of members of the Australian Country party to endeavour to effect certain alterations of the form of the bill, and to endeavour to persuade the Government to agree to postpone consideration of the measure. When, in the course of the debate, the Leader of the Australian
Country party (Mr. Fadden) moved-
– Order ! The honorable member may discuss only details of the bill and not the tactics of any. particular party.
– When a certain honorable gentleman in this place took the very limited opportunities which were offered-
– Order ! The honorable member is merely evading the ruling of the Chair. I ask him to confine bis remarks to the details of the bill.
– The short title of the bill has been amended by having added to it the words “ and Democratic Rights “. I am of opinion that the amended short title is a complete misnomer. I hold the view that this bill not only fails to provide any embodiment of democratic rights, but also that it will be a monument to a denial of democratic rights in this country. I am obliged to offer this criticism of the measure - and it is very serious criticism - because a very important amendment was not voted upon during the committee stage.
– What amendment is that?
– The amendment to clause 2, which the Leader of the Australian Country party sought to move. No vote was taken on that amendment.
-Order! The bill under discussion at present is the one reported by the committee to the House. The honorable member for Indi (Mr. McEwen) may not refer to amendments which were discussed by the committee. He must confine his remarks to the bill as it was reported to the House.
– It still carries this title alleging that it is a bill to preserve democratic rights. Taking the point that that is an incorrect description of the hill, I consider that I can explain my reasons only by referring to the fact that democratic rights have their foundation in the decisions of a democratic parliament, and here we are assembled for consideration of this measure, in what we all were under the impression was a branch of a democratic parliament. A democratic parliament functions under a series of Standing Orders which enable the representatives of the people to move motions and amendments and to be assured not only that their voices shall be heard but also that their motions and amendments shall be voted upon. As that is the very basis of democratic rights, I am obliged to say that no act of parliament is entitled to bear words in its descriptive title “ and Democratic Rights “, when it has become law in circumstances in which the representatives of the people have not had the opportunity to move their amendments and to have a vote taken upon them.
– I rise to order. I submit that the honorable member for Indi (Mr. McEwen) is not dealing with the. contents of the bill. He is making observations that are quite apart from anything that is expressed in the bill, and I submit that those observations are made in complete defiance of your ruling.
– I am sorry that I cannot agree with the Minister’s contention. I have followed the honorable, member for Indi very closely, and taken a note of what he has said. I think that up to date he has kept fairly close to the bill.
– Thank you, Mr. Speaker. You will note that my usual fluency is somewhat constrained by the necessity to “ tip-toe through the tulips “ of the Standing Orders and a very attentive Speaker. I am endeavouring to confine my remarks to the limits you have imposed upon me. I am endeavouring, as close to the knuckle as I can get, to give reasons why this bill should not carry the title it now has and I can only say again that if any act of Parliament is to be carried in circumstances under which members of the deliberative assembly are not given the opportunity-
-Order ! The honorable member is disregarding my ruling. The question is not how the bill was passed: through the House or the committee, but whether it shall be read a third time.
– I contend that this is deliberate obstruction.
– The Chair is not in the position to decide whether it is deliberate obstruction but I think that the honorable member for Indi is trifling with my ruling and, if he goes much farther, I shall ask him to resume his peat.
– I heed your warning, Mr. Speaker, and I find myself so constrained in my endeavour to give expression to my views - that is really my pur pose in being in this place as the representative of 50,000 or 60,000 electors - that I really think there is no purpose in my proceeding with the matter of which I have given notice.
– The House is to be congratulated on the contents of this bill. It contains the- powers which a representative body considered to be necessary for this Commonwealth Parliament to have especially in the five years after the termination of hostilities. That representative body decided that the Parliament of the Commonwealth should be clad with the requisite legislative competence to deal with the matters of great moment with which the Parliament will be called upon to consider. In addition to the powers which it was said this Commonwealth Parliament should have and which are now in this bill, there are certain safeguards against abuse of those powers. Those safeguards have been added as the result of discussions which have marked the whole question of what should be the constitutional powers of this Commonwealth and how far there should be safeguards against abuse of those powers. It would be altogether a reflection upon the capacity of Australia to deal with the problems of Australians if we were to allow this bill to pass without a true appreciation of the substantial achievements which this bill accomplishes in order that the legislative powers of the Commonwealth may be adequate in time of stress to deal with the difficulties of that time. I can recognize that the hill, as submitted to you, Mr. Speaker, may not meet with the complete approval of every member of Parliament or every citizen, but it has to be remembered that no constitution yet evolved in a written form can be said to have the unanimous support either of the Parliament which passed it or the people who by a majority voted for it. But this bill represents one of the stages of the development of the legislative authority of the Parliament of the Commonwealth. We shall emerge more definitely to the status of a nation when this Parliament has the powers which the House of Representatives now considers are necessary for the Parliament to exercise. Whatever’ controversies may be engaged in between now and when the people make a decision, if they are to be given the opportunity to make a decision, those controversies will, I hope, be animated only by the desire to serve the people of Australia. That is the whole motive that the Government has in bringing the legislation forward. That motive can be regarded as perfectly genuine because the contents of the bill are such that it has the endorsement not only of the Government but also the leaders of the political parties of Australia. It would be unfortunate if, because of some misunderstanding or misapprehension, or through one of these lapses to which all parliamentary assemblies are heir, there should be any misconception or misstatement of the character of the powers which this Parliament thinks it should have and for which we propose to ask the people to vote. There can be perfect safety in this measure, because this Parliament has not the last word as to whether this bill shall become the law of the land.
– Hear, hear !
– The right honorable gentleman has himself sponsored proposals for the enlargement of the powers of this Commonwealth and failed to get those powers. He should not view with any sense of envy the endeavours of others to achieve what he could not achieve. If these powers be granted, it will be the duty of this Parliament to see that they are wisely used. Whatever disputation has marked this Parliament since its establishment, I cannot conceive that either ourselves or our successors will fail to have that regard for the welfare of the people that characterized our predecessors. An enlargement of the powers of this Parliament has been sought by every party which has had the responsibility of governing Australia. Once again we face the task, which all parties have regarded as their imperative duty, to endeavour to get from the people of Australia a mandate for more extensive authority than the present Constitution gives to this Parliament. Whatever may be the differences of opinion, surely we can agree to dispute about them in such a way that at least the issues which confront the people shall be clear and explicit, and so that the people shall be able to decide, not as the result of some misunderstanding of the powers engendered by political argument, but solely in the light of reason and in accordance with the weight of evidence.
– According to my understanding of parliamentary procedure, the chief purpose of allowing a debate on the third reading of a bill is to ensure an opportunity to discuss any amendments which may have been made during the second reading and committee stages. In this instance by an overwhelming majority it was decided that the bill be reported from committee. The report was adopted. The question which you have put, Mr. Speaker, is “ That the bill be now read a third time “. But the bill has a title different from that of the bill which was read a second time yesterday. Certain amendments were made in the bill in committee and it is to one or two of those amendments that I propose to address my remarks. The term “ democratic rights “ has been imported into the title. In view of the context of the bill and what has happened during the last 24 hours, it might be more appropriate to add to the title the words “ and democratic wrongs “. Reference ha3 been made to freedom of speech. I put it to the Prime Minister (Mr. Curtin) that when an attempt is made to alter the Australian Constitution at a referendum and to negotiate hurdles in order to reach success we run the risk of the people of this country saying that they will not agree that neither the Commonwealth nor the States may make any law abridging the freedom of speech and freedom of expression. What is to be the position in relation to freedom of speech and freedom of expression in Australia if this bill goes to the people and they say by any majority that they do not want it? Where do we stand then? To submit to the people a bill constructed as this is and with such a title as this has, is to court defeat. No government, with pretensions to statesmanship, can afford to contemplate that prospect with equanimity. The risk should not be taken. The very fact that the Government has decided to submit this proposal to the people postulates that there must be some threat to freedom of expression and freedom of speech. It is not often that I visit the Sydney Domain and Yarra Bank, Melbourne; but when I have done so I have seen evidence of remarkable freedom of expression. I do not know that any people in Australia are attempting to restrict the legitimate freedom of expression. I have yet to learn that the proposal of the Government is that freedom of expression and freedom of speech means that every nit-wit, crank or crook shall lie entitled to say in the Domain or to have published in the press what he likes about anybody or anything.
I come now to the provision relating to freedom of faith. What does that mean? Who is attempting to interfere with freedom of faith in Australia? What State Parliament is introducing legislation to interfere with it? If this proposal be accepted, does it mean that every one must profess some faith? Does it mean that a man must adhere to one faith and shall not be entitled to change his beliefs, as some persons have done? These are important matters which should not be glossed over lightly. Whilst I did not support these proposals, I recognize that the Government has aperfect right to submit them to the country. I do not agree with the method the Government has adopted or with the proposal that the powers, if granted, shall remain operative for a period of five years. If the Constitution is altered at all, the change should be permanent. Men of high legal standing have declared that they have grave doubts as to whether the five years’ limitation will stand the test of litigation of the High Court.
– That doubt did not apply to the referendum. It related only to the references of powers by the States to the Commonwealth.
– At all events, grave doubts have been expressed. When the Prime Minister declares that the Commonwealth must possess these powers for even five years, I am reminded that all sorts of people are “ put away “ for a similar period. The public mighthave different ideas from those held by the majority of honorable members as to what powers can be safely transferred to the Commonwealth. I put this to the Government as one reason why the bill should receive further consideration.
What will be the position in regard to freedom of faith in this country if the people reject this proposal? They might declare that the Commonwealth Parliament shall not possess powers to legislate on this matter and that they do not care a tinker’s benediction whether the State Parliaments legislate for or against it. That is virtually what they will say if this proposal be rejected. My honest opinion, for what it is worth, is that if ever a referendum was certain to receive a caning, it is this one. The events pf the last 24 hours will ensure it. I do not make this statement in a party spirit because- 1 have had little to say in this debate. There are matters which, I regret, Mr. Speaker will not let me mention now, but I shall refer to them outside this chamber. Many cogent reasons could be advanced why the Government should give earnest consideration to the suggestion of the honorable member for Indi (Mr. McEwen) that the third reading of the bill should be postponed. However, I know what democracy means. I am not ignorant of the history of democracies. There is no worse dictatorship on earth than that of a democratic majority that has taken the bit in its teeth. Before a vote is taken in the electorate, and certainly before this Parliament goes to meet its masters, what I have seen to date Will impel the people of Australia to describe this legislation as a “ bill to inflict democratic wrongs “. There I leave it. I have no. doubt as to where the common sense of the majority of the people will leave the matter when these proposals are submitted to them.
– On several occasions since this bill was introduced, I have endeavoured to elicit from the Attorney-General (Dr.Evatt) whether provision will be made to enable producing interests to share in any benefits, if they can be so described, that the Commonwealth Parliament may be empowered to confer. The right honorable gentleman stated that he had not found it possible to include such a proposal because the fourteen powers originally sought in the bill had been unanimously adopted by the Canberra Convention in 1942.
– I answered the honorable member’s question when replying to the second-reading debate, and again in committee. * t* Mr. ANTHONY.- The Attorney-
General gave unsatisfactory answers on each occasion. ‘ Dr. Evatt. - ‘The honorable member was not even present to hear my answers.
– I have the Attorney-General’s answers. No doubt the right honorable gentleman will claim, when he submits his appeal to the people, that the provisions of this bill were unanimously adopted by the Canberra Convention. As a vote-catching stunt, other provisions that were not submitted to that Convention have since crept into the bill, but an attempt to safeguard the interests of the primary producers was politely waved aside, and honorable members on this side of the chamber were told that the matter was not considered by the Convention. I shall show that the Attorney-General tells different stories when it suits him to do so. He declared that he did not expect to encounter any great difficulties under section 92, but he expressed a conflicting opinion in the brochure on Post-war Reconstruction issued under his name in 1942 -
The man on the land faces economic insecurity it the Commonwealth war-time marketing control is suddenly removed. The stability of rural incomes is dependent on the Commonwealth marketing and stabilization schemes, which may either lapse with the present National Security Act, or subsequently fall before any challenger in the courts.
For the benefit of propagandists a series of questions and answers is published in the brochure. One of these passages reads -
Above all, a farming policy can be carried out only by a Government having sufficient legal powers to put into effect a national farming plan for directing production storage, prices and values.
Despite that answer, the Attorney-General excluded the primary producers from the benefits of a referendum.
-If the primary producers are excluded - from the -bill,* the honorable member is not entitled to refer to them at this juncture.
– Paragraph (vii) relates to - . the production and distribution of goods but so that -
– The Leader of the Australian Country party agreed to this proposal at the Canberra Convention.
– But the character of the bill has . since been altered. The Leader of the Australian Country party (Mr. Eadden) did not attend a convention that considered certain proposals now to be submitted to the people. Therefore, the contention of the AttorneyGeneral that this particular matter relating to section 92 could not be submitted to the people at this juncture is countered by the fact that other foreign matter has been introduced. The Minister for’ Commerce and Agriculture (Mr. Scully) knows what will happen to the primary industries if, through a defect of the Constitution, they are deprived of the protection now conferred upon them by National Security Regulations and are compelled to depend upon pre-war methods. The bill is deficient in the sense that primary producers and primary production have been excluded. If in future a government decides to rectify this omission, it may perpetrate a great fraud, because any political realist knows that a referendum on section 92, unless accompanied by proposals affecting industrialists and other sections of the community, must be defeated. Of what use would it be to submit to the people a proposal for an alteration of section 92 to be voted upon by hundreds of thousands of consumers whose main interest would probably be to keep the prices of food and primary products at low levels ? This bill is deficient, from the point of view of the man on the land, and I agree with the honorable member for Indi that the bill should be postponed for six months in order that the Government might further consider it.
I am disturbed by certain remarks of the Attorney-General, in the course of the debate, with regard to the power sought in paragraph (ii) of proposed new section 51a relating to employment and unemployment. He said that certain proposals by some of the States were inadequate for Commonwealth purposes. He remarked that it was not sufficient that this Parliament should be able to deal only with unemployment, because it ought to be able to deal also with mass dismissals of employees. I draw the attention of honorable members to a report published in the Northern Daily Leader, of the 11th February, under the heading “ Tamworth Town ‘Clerk’s Visit to Canberra”. Referring to the Summer School of Political Science the report stated -
The highlight of the school was when, in reply to an objection to the regimentation proposed by the Government planners, Dr. Evatt stated that “ the taking away in future of the right of the individual to choose his own vocation and employer was only one of the freedoms which the Australian people must forgo in the interests of the State.”
– Can the honorable member connect the Summer School at Canberra with this bill?
– Tes. “We should have respect for the rights of the children of this country, whose future may be determined by actions taken under the powers proposed to be provided in relation to employment and unemployment. Should young persons who may be good mechanics be required to work as agricultural labourers, or should persons qualified to become doctors be sent into factories or garages? Is there to be no freedom? I wish to know whether the Attorney-General made the statement attributed to him.
– I did not say that. 1 telegraphed to the newspaper responsible for that report, and repudiated the statement attributed to me. No other newspaper in Australia so reported my remarks.
– I have two independent reports of the Attorney-General’s remarks, one from the Northern Daily Leader and another by a gentleman who attended the conference. The latter recalled that what the Attorney-General had said in reply to a statement by Mr. Guinane that the right of man to choose his own employment was the one thing that distinguished man from beast, was -
What is the use of talking of the right of man to choose his own vocation when there is unemployment? There are a lot of differences between man and beast.
– That is what I did say.
– The people are most anxious to know how the powers sought by the Government will be used by it. . Here is a second version of the Attorney-General’s remarks -
There are a lot of other differences between mun .and beast. I do not think that to-day, with the enormous development of industry and industrial organization, corporate control and finance, there is any longer a real right of every person to choose his own vocation in life.
– As the result of the system under which we are living. That report is true. Where did the honorable member get it?
– I am not at liberty to say, but I received it from a man of good repute. There is sufficient similarity between the reports of two auditors who live hundreds of miles apart to cause grave misgivings on the part of the people in respect of the use which the Government intends to make of these powers.
– The second report is substantially what I did say.
– The AttorneyGeneral has told us what he did say, or he has qualified what he said, but neither he nor the Government has yet stated exactly to what use the powers in respect of employment and unemployment will be put. If he did not mean what be said with regard to a man choosing his own vocation in life, how does he intend that these powers shall be used?
I am not opposed to the majority of the powers sought in the bill; but if the Government desires the support of the people engaged in the primary industries, it will have to give a satisfactory explanation a3 to why the primary producers are specifically excluded from the benefit of protective Commonwealth laws.
– What about the provision regarding prices?
– That means nothing at all to the wheat-growers, because production should be controlled.
It is useless to say that if prices of primary products remain at an unprofitable level the Government will deal with the trouble, unless it deals with it at its source by controlling production. I regret that I find it impossible to give to this measure the support that I should like to be able to afford it. My objection is that it evades responsibility to the farmers. It will have a poor reception at the hands of the wheat-farmers, the butter producers, the dried fruit producers, and others who consider that they are being thrown to the wolves.
– I much regret that the history of the passage of this bill has differed materially from that of previous legislation providing for amendments of the Constitution which has been passed during the last 25 years. The history of that legislation was briefly that all parties–
– The right honorable gentleman may refer only to the details of this bill, and not to the history of other measures.
– The details of the measure have tended to separate further men in this Parliament who should have been brought more closely together. There is a sharp division of opinion among honorable members at the conclusion of the consideration of this bill, but in the debate in 1937 on a measure providing for- alterations of the Constitution is was found that whilst the division of opinion was fairly wide at the outset, the third reading of the bill was agreed to by about 60 votes to 4.
– The right honorable ‘ gentleman appears to be trying to evade my ruling.
– I wish to show that this bill could be so improved as to secure similar support. We should be realists in this matter. We all desire to obtain some increase of powers for this Parliament, and it is regrettable that we cannot discover common ground that would enable the members of this Parliament to fight unanimously for the reform considered necessary. Outside this House many thousands of people will bitterly oppose constitutional reform, oven with respect to matters on which «( in this Parliament are in agreement.
Therefore, I regret that the details of the bill do not enable us to present a common front to the electors. The greater the measure of unanimity which the Government obtains on the bill in this Parliament, the better chance it will have of carrying its proposals at the referendum. Every one who thinks seriously of the. necessity for . constitutional reform is anxious to enable Australia as a nation to play its part proudly in the world after the war. We cannot do that unless the National Parliament possesses adequate legislative powers to enable us to compete on the markets of the world with countries which are our rivals in primary production. On a previous occasion it was said that the Labour movement would wholeheartedly have supported the claims of primary producers for organized marketing by the Commonwealth, had it also been proposed that the Commonwealth should be given complete power in the industrial field. Iii dealing with constitutional reform, one of our main objects should be to enable the Commonwealth Parliament during a period of five or ten years after the war to play its full share as a food-producing country in feeding the starving millions in war-stricken areas. It is evident from the information gained by the Attorney-General and his officers at the Hot Springs Food Conference that Australia must co-operate with other primary producing countries in the building up of international commodity reserves. We shall not be able to achieve that objective until this Parliament is given full power to control the production and marketing of our important primary products such as butter, wheat, dried fruits and meat, and is enabled to ensure the production of such commodities on a basis payable to producers and in sufficient abundance to supply not only our own needs, but also those of other countries. Therefore, I greatly regret, that the Government does not propose to seek full power to enable this Parliament to deal effectively with primary production, or to overcome the position created by the Privy Council’s interpretation of section 92 of the Constitution. I urge the Government to remedy this defect in the measure when it is before the Senate by enlarging the scope of the measure to embrace the whole field of primary production which, in my view, will prove to be the most important section of our economy during the period of ten years immediately following the cessation of hostilities. Thus we shall be enabled to make our greatest contribution as a nation to the welfare of the world as a whole. If that were done the Australian Country party would be able to give its fullest support to the Government’s proposals. However, the bill as it stands at present discriminates against primary producers. The Government has not responded to our appeal to re-open negotiations with the States. In that way it could obtain at least eight or nine of the powers sought under this measure. Should it be necessary to do so in order to assist the carriage of portions of the bill on which all could agree, the Government should not hesitate to divide its proposals into three or four sections for submission to the people. Powers which it requires permanently could be classified in one section, and those which it requires only temporarily could be placed in another section, and those to be operated in concert with the States in a third section. I again urge the Government to ask the people to grant to the Commonwealth Parliament complete control of primary production.
Mr. ADERMANN (Maranoa) [4.37 ;i.m. . - I cannot support the measure in it.? present form because only limited power is to be sought in respect of the organization of primary production. 1 also regret that the Government declined to accept the amendments moved by the honorable member for Warringah (Mr. Spender) with respect to paragraph (iii) - organized marketing of commodities - and also sub-paragraph a of paragraph (vii), which deals with the production and distribution of goods. I contend that the two are closely interwoven. 1 submit that tile Commonwealth might just as well leave the control of primary production entirely in the hands of the States, as it is at, present. Paragraph (vii) seeks power for the Commonwealth Parliament to control the production and distribution of goods, but sub-paragraph ii makes the exercise of this power in respect of primary production subject to approval by the government of a State. I have discussed this matter with the Attorney-General (Dr. Evatt) and I listened attentively to his explanation of these proposed powers. We know that various important products are produced on a large scale in two or more States. Consequently, the Government is not seeking sufficient power to enable the Commonwealth Parliament to deal effectively with the organization of such industries. The Government, therefore, should ask for full powers in respect of primary production. Under the measure as it stands, primary producers in an industry carried on in two or more States will not be afforded an opportunity to organize on an effective basis. Therefore, I regret very much that the Government rejected the amendment proposed by the honorable member for Warringah with respect to this power. The Attorney-General stated that the Government would be enabled to assist primary producers through its power to control prices. That alternative does not offer a very encouraging prospect to primary producers in view of the Government’s exercise up to date of its power to control prices during the war. This fact has been evidenced particularly in the wheat industry. In Queensland, for instance, wheat production has dropped considerably below the pre-war figure for that State. Indeed, under the .Scully plan, wheat-growers in Queensland have not been allowed to grow sufficient wheat to meet the State’s requirements although they did so prior to the war.
I must also withhold my wholehearted support of the measure as it stands, because I cannot rest assured that full opportunity will he given to members of our fighting services to cast a vote at the referendum. The Sydney Bulletin, of the 8th March points out that, whilst the Prime Minister (Mr. Curtin) stated that approximately 850,000 men and women are in the services, the service vote at the last federal election was only 417,831, including 16,707 women, or less than 50 per cent, of the total service personnel. I am afraid that only a low percentage of service personnel will be given an opportunity to cast a vote at the referendum, although all honorable members agree that members of the fighting forces are perhaps more vitally concerned than any other section of the community in the Government’s proposals.
– I again direct the attention of the House to the manner in which the primary industries have been sacrificed under this bill. Paragraph (iii) of sub-section 1 of proposed new section 51a provides for power to be given to the Commonwealth for the organized marketing of commodities; and paragraph (vii) for the production and distribution of goods, but so that no law made under the paragraph with respect to primary production shall have effect in a State until approved by the Governor in Council of that State. In the booklet, Post-war Reconstruction. A Case for Greater Commonwealth Powers, prepared by and written under the direction of the Attorney-General (Dr. Evatt), the right honorable gentleman made the following statement : -
In 1936 the Privy Council laid it down that section 92 of the Constitution binds the Commonwealth as well as the States and declared that a whole series of Commonwealth marketing laws relating to dried fruits, dairy products and wheat, were invalid. The Privy Council reached their conclusion with regret, saying -
The result is that in their Lordships’ judgment the Commonwealth should be held to have failed in its attempt by the . method adopted under the act in question to control prices arid establish a marketing system, even though the Commonwealth Government are satisfied that such a policy is in the best interests of the Australian people. Such a result cannot fail to cause regrets.
Not only are the wheat industry and other primary industries to be sacrificed, but also the right honorable gentleman himself has recognized the menace which wool, the greatest and wealthiest producing industry in the primary field in Australia, is facing to-day - the menace of synthetic fibres. The graphs which form a part of the interesting textile exhibit in King’s Hall show that in 1921 the production of synthetic fibres had a weight of under 1.000,000 lb. per annum, and that to-day these commodities are produced in greater quantity than is wool, itself. Other graphs in relation to the cost of synthetic fibres show that from 1926 to 1928 it was on a somewhat higher level than the cost of wool, and that it is to-day well under the primary cost of wool. Because of their cheapness, these fibres are seriously threatening this great industry, upon which we are largely dependent for the discharge of our overseas commitments and the imports of necessary capital goods for future development, if full employment is to be provided for the citizens not only of to-day but also of the future. The Attorney-General also wrote in his booklet-
Wool also has special problems of control which will almost certainly increase with the peace. This is recognized in Western Australia. At a conference in 1942, the wool executive of the Primary’ Producers’ Association of Western Australia decided to seek the co-operation of the various States, through the medium of the Agricultural Council, to secure an alteration of the Constitution, to permit a continuance of the stabilization and marketing schemes for primary production.
The right honorable gentleman pointed out that in June, 1941, the Australian Wool-growers’ Council made certain recommendations with regard to the postwar marketing of wool. The first recommendation was -
It is of the utmost importance that every effort should be made to have the Imperial Wool Purchase arrangement extended to cover three full wool years after the cessation of hostilities. The continuation of this arrangement would impart stability to the whole of the wool industry throughout the world.
The right honorable gentleman added -
On the cessation of the war-time powers of the Commonwealth, very great difficulty will be experienced in continuing the method of control suggested by the wool purchasers.
A later statement reads -
Primary products are continuously being faced with the competition of substitute materials - margarine for butter, staple fibre for wool, and so on. We cannot expect to insulate our economy completely against the effects of technical progress, nor can we expect technical progress to be held back to maintain an existing productive machinery. We can expect, however, that, if such a situation arises, the necessary changes will be mode internally with a minimum of hardship on those concerned, with a minimum of waste of capital assets built up
In the field of primary production, as well as in those of industry, investment and prices, considerations of economic security and social justice demand that the Commonwealth should not be left without adequate powers when its war-time powers are dissolved.
Despite the expression of those sentiments, the right honorable gentleman is prepared, without the slightest compunction, to sacrifice the primary producers of this country and throw them to the wolves, although he is willing to have the bill altered in certain directions so as to quieten criticism that has been levelled at it by the metropolitan press throughout Australia. The bill fails to embody provision for the granting of powers over primary industry which initially the right honorable gentleman claimed were absolutely essential. I am in favour of granting to the Commonwealth extensive additional powers. But surely the time is ripe to afford protection to the primary producers of Australia, so that they may not be thrown to the wolves! Considerable alteration of the bill would not be necessary. Paragraph (iii) - organized marketing of commodities - could have added to it some such words as “ but so that no other section of the Constitution shall prevent this clause from operating”; and in paragraph (vii), all the words in subparagraph a could be left out. The right honorable gentleman said that the greatest difficulty was experienced in achieving unanimity among the States. The Prime Minister remarked that it was hopeless to try to achieve unanimity among State officers at meetings of the Australian Agricultural Council and at other conferences. The Treasurer (Mr. Chifley) has spoken in a similar strain. Why, then, can the Government not defer the operation of the bill, and draft provisions that would, cover the points that have been raised in the course of the debate ? There is no need to hasten the passage of the measure. There is no indication that the war will end very shortly. The war with Germany may end sooner than we expect, but there is not much prospect of the war with Japan ceasing for some time. Consequently, there is ample time to provide safeguards which would protect the primary industries against the possibility of their being sacrificed in the interests of the secondary industries. The Government should not try to mislead the primary producers, by making it appear that this legislation will protect them when in fact it will do nothing of the sort. .
– in reply - ‘Honorable members of the Australian Country party, for reasons that need not be stated, were not present during a good deal of the discussion in committee.
– I rise to order. I submit that the right honorable gentleman may not refer to what took place in committee.
– So far as I under-, stood the remarks of the AttorneyGeneral, he has not done so.
– Those honorable members have now objected to the passage of the bill, for the reason that certain amendments have not been made. The first suggestion is that the Commonwealth should invite the States to participate in another convention.
– I rise to order. I submit that the Attorney-General is referring to a matter that should not be discussed on the motion for the third reading of the bill.
– The point of order is frivolous.
– Two of the State legislatures passed the bill in the form agreed upon at the Canberra Convention, but the remaining four States failed to do so. I pointed out in my reply to the secondreading debate the difficulties associated with holding another convention. I pointed out that neither Western Australia nor South Australia had passed the bill in substantially the same form as agreed to at Canberra, so that it is a question not merely of inducing the Tasmanian Upper House to reverse its decision, but of inducing four State Parliaments to change their ground considerably. I also pointed out that a further difficulty has been created by the State Governments suggesting that the method of reference by the States for a limited period was unconstitutional.
– Is the Minister in order in discussing details of what took place in committee? You, sir, prevented honorable members on this side of the House from doing anything of the kind.
– If honorable members persist in raising frivolous points of order, I shall deal with them.
– One of the reasons suggested for the further postponement of this bill was a new legal point; which the honorable member for Barker (Mr. Archie Cameron) mentioned. But the only serious argument raised was, not that a referendum cannot limit powers for five years, but that the system of State reference cannot limit powers for five years. If a referendum is to be taken that argument disappears.
It is not correct that the bill in any way discriminates against primary production. Every paragraph of the clause, with the exception of the first paragraph, in which I accepted an amendment by the right honorable member for Cowper (Sir Earle Page), extending repatriation and other benefits to the veterans of all wars, follows the identical formula agreed upon at Canberra by the leaders of all the parties. It is useless to tell me that the bill discriminates against primary production. It is true that the direct power over production in relation to primary production will operate only with the consent of the particular State Government. That provision was insisted on by some of the State Premiers, notably the Premier of Victoria, but the point is, not that the States wish there to be no control of primary production, but that during this post-war period of five years, they desire to co-operate with the Commonwealth in these schemes, as most of them have fairly co-operated during the period of the war. To talk of our discriminating against primary production is an absolute misrepresentation.
Honorable members correctly quoted seme remarks I made in relation to the bill brought before the Convention, but at the Convention the present proposals were agreed upon, and all that the Government is doing is to carry out that agreement, almost to the very letter.
– Why is the Government bound to it now ?
– We are morally bound, because we accepted these powers, and the State Premiers agreed to them, as being reasonable for the five-year period.
– But the contract has been broken by the States.
– It is not a question of a contract at all. I do not charge any State Premier with deliberately breaking a contract. I say that the State Parliaments did not pass the laws which the State Premiers said they would do their best to carry into effect.
A point was made by the honorable member for New England (Mr. Abbott) with regard to the paragraph giving power over “the organized marketing of commodities “. That power will enable Parliament to organize the marketing of’ commodities, including every primary product, on an Australia-wide basis. It cannot be organized by the Commonwealth in that way to-day, but legislation on the same terms has to be passed in every State. The Commonwealth can legislate only in respect of interstate trade, not trade confined to one State. One objection, which at first sight appeared very formidable, was the fact that, under this provision, section 92 will still bind the Commonwealth as it binds the States. That is the foundation of the suggestion made during the debate on the third reading, with regard to altering one of the powers, namely, the organized marketing of commodities. All I need say about that, and I said it in great detail in committee, is that the system of pooling primary products can now be effected notwithstanding section 92, according to a ruling of the High Court as given by His Honour Chief Justice Latham. In that regard, I quote one paragraph from his judgment in the Milk Board case of 1939. He said-
In my opinion, in spite of what might appear to be a contrary view, expressed in the comment upon the Peanut Board case, which I have quoted, the view of their Lordships ot the Privy Council was that a State Parliament could enact and provide for the administration of a compulsory marketing scheme so long as it was not directed against interstate trade and was not merely a prohibition »s distinct from a regulation of such trade.
That appears in volume 62 of Commonwealth Law Reports 1939-40, page 132. The inference from what the judge said in that case is that the system of marketing by pooling of products, which is the system favoured in many primary industries, can be effected although section 92 binds the Commonwealth, providing that the Commonwealth gets this additional power of organized marketing on a Commonwealth-wide basis.
– Cannot we get the consent of the States?
– The power of “ organized marketing of commodities “ is a new Commonwealth power, for which we do not need the consent of the States. It means the organized marketing of any commodity selected by this Parliament, and regulating it on an Australia-wide basis. I am concerned that the honor-, able member for Maranoa (Mr. Adermann) has not seen the importance of Chat point. I assure him that this is not discrimination against primary industries but a new charter for them. The Commonwealth will, by its power over organized marketing of commodities and over prices, do a great deal for the primary industries. Indeed that should be one of the first duties of Parliament. Admittedly the Commonwealth could not under the “ production “ power make a direct law to tell a grower that he must not produce more than a certain acreage of wheat. It is correct that such a law could not be passed by the Commonwealth except in co-operation with the particular State, but the Commonwealth can do much under the prices power. For instance, it could say to the grower : “ The price to be paid to you, at the point where you market your product shall be so many shillings per bushel grown on so many acres”. That price need not be fixed on a flat-rate basis, but can be fixed according to whatever relevant scheme of price-fixing was thought reasonable.
– .Without discriminating between the States?
– The Commonwealth could not discriminate by reference to States, but it certainly could discriminate by reference to acreage or any other relevant ground. The primary industries of Australia will get new and additional benefits should these fourteen paragraphs be adopted. I admit frankly that we would have liked these legislative powers granted in a broader and more comprehensive form, but I refuse to be deterred by that, because we have agreed to the fourteen powers, and they can be worked successfully. When I point out that these powers are extensive, honorable members opposite ask, “ Could not they be made even better than that?” When I say “ Yes “, they ask “ Why not do it?” When I point out the reason why they cannot do it, they raise further objections. I assure primary producers that under the new powers, the Commonwealth Parliament will certainly do a good job for the primary industries.
The only other observation I wish to make relates to a document read by the honorable member for Richmond (Mr. Anthony), containing a statement attributed to me about the “employment and unemployment” power. I said during the second-reading debate, and I repeat, that one of the greatest evils of the modern industrial system is the practice of mass dismissal, that it has to be stopped, that somehow or other security of employment must be provided, but that unless control over employment be given to the ‘Commonwealth as a power, that cannot be done. The remark attributed to me concerned the right of the individual to choose his own job. I went to the Summer School of the Australian Institute of Political Science, as did the Leader of the Opposition (Mr. Menzies). We, of course, had nothing to do with the other papers read at the school, or the other speeches made there. I read a paper, and was asked, “What about the inalienable right of a man to choose his own job ? “ It was pointed out that in time of war he did not have that right. I replied that in war-time industrial conscription was an essential part of the war organization of the country, but that under the modern industrial system to talk of a man having the right to choose his own job was almost meaningless, as very few men had that right. Under the power of “ employment and unemployment “, in the bill, we want to improve the prevailing state of things. Too long through economic pressure no one in this country, unless extremely well endowed with worldly goods, was really free to choose his vocation. That was the essence of my statement. When my attention was drawn to the report by the honorable member for New England (Mr. Abbott) as appearing in some newspaper in his electorate - and so far as I can ascertain in no other newspaper in Australia - I repudiated it immediately.
– It was a report by the town clerk.
– I do not know who was responsible for it, but it was not correct. I am opposed to individual conscription in time of peace. I suggest that the position which we have reached is this: The bill has passed the committee substantially in the form agreed upon at the Canberra Convention. However, we have extended the benefits of repatriation, rehabilitation and advancement to veterans of the last war as well as this. We have added also three popular safeguards. One in relation to delegated legislation, giving to the Parliament greater powers to be included in express terms in the Constitution itself. We rightly refer in the title of the bill to the fact that the bill does confer special civil rights. They are ‘there for the limited period only because the powers are there for the limited period, the intention of the Parliament or Government being to have a complete revision of the Constitution before the end of the five-year period. I am sorry that the members of the Australian Country party were absent at an earlier stage this evening, when I went into all this matter in detail; but I have done my duty to the House, and I can assure the members of that party that those primary producers, for whom they speak here, will get very substantial benefits under the powers given to the Commonwealth Parliament by this bill.
Question put -
That the bill be now read a third time.
The House divided. (Mb. Speaker - Hon. J. S. Rosevear.)
– I certify that the third reading has been agreed to by an absolute majority of the House as required by the Constitution.
Bill read a third time.
Motion (by Mr. Curtin) agreed to -
That the House, at its rising, adjourn to 4.30 p.m. this day.
The following papers were presented : -
Customs Act - Proclamation prohibiting the exportation (except under certain conditions) of goods - No. 592.
National Security Act - National Security (Universities Commission) Regulations–Order - Declaration of approved institutions.
House adjourned at 5.22 a.m. (Thursday).
The following answer to a question was circulated: -
Allied WORKS Council.
I have ascertained on inquiry that, in addition to the circulation which I then indicated in reply to the honorable member, a complete distribution of the report was made to all federal members in December last. The records show that a; copy was despatched to the honorable member at the federal members’ rooms, Adelaide. Only a limited number of copies were printed and no reserve supply now exists. However, arrangements have been made to obtain a single copy for the honorable member since he apparently has not received the copy sent to bini.
Cite as: Australia, House of Representatives, Debates, 15 March 1944, viewed 22 October 2017, <http://historichansard.net/hofreps/1944/19440315_reps_17_177/>.