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Wednesday, 29 April 1987
Page: 2014


Senator MACKLIN(5.46) —The report of the Senate Standing Committee on Constitutional and Legal Affairs entitled `The Role of Parliament in Relation to the National Companies Scheme' is, as previous speakers have said, the result of considerable concern, expressed in debates in this place in particular, over the years that the parliamentary process could not come to bear on legislation that was presented from time to time under the co-operative scheme. In reviewing almost every piece of legislation that came in one noted the frustration of members of all political parties in not being able to deal with the legislation in any sensible way.

It is almost as though the House of Representatives and the Senate ended up performing merely a rubber stamping exercise in which everybody expressed his support for the legislation on the grounds that if one managed to get all the States and the Commonwealth to agree on any item, no matter what it was, the legislation must go through merely on the basis that to have them all agreeing was an historic coincidence in itself and hence one would not feel like standing in the way. One notes, on a more serious level, the considerable support for the legislation. If it had been any other piece of legislation, amendments to much of it would have been carried as it went through. Frustration has been echoed by Senator Gareth Evans and Senator Durack, and Senator Jack Evans when he was here, amongst others, with the intractable process of dealing with legislation in this way.

Reading the report, I was particularly interested in the opinions of Sir Maurice Byers with regard to the constitutional powers of the Commonwealth to deal with corporations. I felt quite vindicated by his opinions. I am going to send an autographed copy of this report to Mr Cohen, with whom I have been having a running battle for over 18 months over his insistence that the Commonwealth has no powers to deal with, for example, mining on Moreton Island other than the Customs power. I was enlightened by page 69 of the report that the Attorney-General, Mr Bowen, had asserted quite unequivocally in the House of Representatives-obviously in the absence of Mr Cohen or he would have acknowledged it, I am quite sure-on 18 February this year that the Commonwealth does have the power. I felt quite happy about that in a context quite apart from this matter.


Senator Puplick —We are only here to be helpful.


Senator MACKLIN —I thank the honourable senator. I had been asserting for quite some time that I did not think anybody who had ever looked at this matter had ever contended that the Commonwealth did not have the power, except Mr Cohen. He had disputed the matter with me not only by way of letter but also by way of what we do in this place, that is, talk to one another through Press releases, which got more and more vitriolic as time went on.

Let me return to the subject matter of this report. Having accepted the general view that was expressed in the appendices in the opinion of Sir Maurice Byers that in fact the Commonwealth has this power, except in that very limited area of those non-profit recreational activities, which in the report I think are called non-trading and non-financial aspects of non-trading and non-financial companies, and putting aside what a non-financial company might be, fairly obviously to all intents and purposes the Commonwealth's power is sufficiently large and extensive to deal adequately with all the major matters that need to be dealt with, and indeed, as the Committee suggests, the reference of powers from the States in those other areas is probably a foregone conclusion.

As Senator Hill has said, I think the time has now come. I did note the interjections of Senator Georges that that is what the Whitlam Government tried to do in 1974 but was not able to do because of the lack of numbers in this place. That might have been premature at that time but it certainly is not premature now.


Senator Messner —It was not the only obstacle, though, was it?


Senator MACKLIN —It was not the only obstacle at that time. What I want to say is that I think 1987 actually is an appropriate time. A lot of things have changed since 1974, such as the development of company law and the development of stock exchange operations. The understanding of the whole operation of business in Australia has changed enormously in that time. I believe that this is now the correct stance to take; a stance certainly which I very strongly support and a stance which I hope will see fruition in the not too distant future in some type of legislation. We may still be dealing with some residual operations of States rights. Political events of recent days might add fuel to that fire.

I believe that the constitutional role of the Commonwealth, as was set down by the founding fathers, is very clear that this is a matter for the Commonwealth of Australia. I believe that we need to move and to move resolutely to that point, not only for the resolution of an enormous number of difficulties here in Australia but more importantly in terms of the role of our companies as they move overseas, and the role of this Government in trying to come to a sensible resolution of the operations of multinational companies. That is an enormous task which in fact in recent years has been the subject of a range of international conferences. Even unitary governments have found enormous difficulties in dealing with those multinational companies. How much more difficult it is in the fragmented nature with which we have had to deal with them. In fact we have been almost powerless in dealing with the operations of those particular corporate entities. I believe that a Commonwealth government, under any political party, would be in a far better position to deal with those companies and to deal with them effectively in the interests of this country than the way we have been able to do up to this point, if the conclusions of the Committee are accepted.

I conclude on the note that I understand that this is Senator Bolkus's first report as Chairman of the Senate Standing Committee on Constitutional and Legal Affairs. If I am able to agree so wholeheartedly with subsequent reports that come down I will be very pleased. But I also note that that Committee has had a fairly, shall I say, astonishing record in that I think all except one of its reports have been accepted on a bipartisan or tripartisan basis across the board. I think that is an exceptional record for a committee which has dealt with very contentious issues. I think that the reason for that is that it is being chaired by some eminent people who have attempted to move beyond the very straining demands of party political operations and who have sought to come up with a resolution of difficult topics in a way that has been accepted by all political parties. I would therefore like to add my appreciation of this Committee's record in the past and of its work that it has done on this particular occasion, with what I think is another excellent report, a report which I think bears out the need for a vigorous and extensive committee operation of this House.