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Thursday, 22 October 1931


Mr LATHAM (Kooyong) .- The proposal to insert this additional paragraph in the motion previously carried in regard to the Statute of Westminster is being made in order to ensure that full and abundant caution shall be taken to make it clear that the proposed statute, which is being passed at tho request of tho Commonwealth Government, shall affect, in the Commonwealth, only matters in respect to which the Commonwealth has rights and duties, and not matters, which fall exclusively within the sphere of tho States. Under the federal form of government there is a division of powers, and in certain matters the powers of tho Commonwealth and of the States are exclusive. There are some matters in which the Commonwealth has the sole power of legislation; others in which the States have that power; and still others in which there is a concurrent power. The object of this proposal is to make it olear that, with respect to the matters as to which the States have the sole power of legislation, the statute shall leave the States entirely unaffected. That is in accordance with the fundamental and essential principles of the federation. If it is desired to alter the relations of the Commonwealth and the States in regard to any matter, that can bo done by appropriate action within Australia - by an amendment of the Constitution, or by a transference of legislative powers otherwise made in accordance with the provisions of the Constitution itself. But a statute, such as the Statute of Westminster, passed by the Imperial Parliament, at the request of this Parliament, obviously should not be utilized as a means of, in effect, bringing about any transfer of power from the State sphere to that of the Commonwealth. The proposal which has been moved by the Attorney-General,, and clearly explained by him, does not alter the position as between the Commonwealth and the States ; but it provides a safeguard which some of tho States have requested, and which is entirely in accordance with the Federal Constitution under which we live, and which, moreover, is alterable in the manner determined by the people of Australia themselves under the Constitution they have adopted.


Mr Beasley - What arc the safeguards ?


Mr LATHAM - The effect of this motion is to prevent the inference being drawn that the Commonwealth's consent, concurrence or request is required in the case of legislation, passed by the Imperial Parliament affecting what is entirely a State matter. Let us take a subject which is entirely within the domain of State powers, and sUppose that the State concerned desires to obtain imperial legislation on the subject - legislation passed in London. The idea underlying this proposal is that that i3 a matter for the State, and that this motion and the proposed statute must not be interpreted as requiring any consent of the Commonwealth to action by the State in order to obtain such legislation.


Mr Beasley - Does that mean that the States can make direct application to the imperial authorities?


Mr LATHAM - Yes. The Commonwealth is not placed in any position of general overlordship in its relations with the States, but is left in precisely the position which it occupies under the Constitution - a position which may be altered in the manner indicated in the Constitution, itself.


Mr Beasley - I take it that that point was not clear before, and that this motion clearly, defines it.


Mr LATHAM - The general position was as I Lave stated it to be; but some of the States feared that the provisions of this statute might suggest that, in relation to anything to be done by way of imperial legislation relating to Australia, a request or the consent of the Commonwealth, was necessary. This amendment merely provides that, in exclusively State matters - "matters which come within the authority of the States not being matters within the authority of the Commonwealth " - the Commonwealth shall have no part ; it means that the consent of the Commonwealth shall not be necessary. The amendment is in line with my views on this subject.


Mr Beasley - What was the reason for the dissatisfaction of certain States?


Mr LATHAM - I do not know that they had anything immediately in view. I agree with the Attorney-General that it is difficult to conceive of a case in which a State would request imperial legislation in relation to a State matter. It might possibly arise in connexion with the - apprehension and arrest of criminal offenders. The law with respect to criminal offences on the high seas and in territorial waters is rather complicated; but it is not a matter which falls within tho power of the Commonwealth. It is a matter to be determined by State legislation combined with British, or imperial, legislation. If an amendment were required of, say, the Fugitive Offenders Act, in matters relating to extradition, this Parliament would have nothing to do with it. In the legal sense, this Parliament is an incompetent body in such a matter. Unless a general power to legislate on criminal matters were transferred to this Parliament, that would be a matter between tho States and the Imperial Legislature, without the necessity of any request or consent of this Parliament. The example I have given indicates the general idea associated with this resolution; but I think it unlikely that the subject will ever become of practical importance.


Mr Culley - Docs this amendment satisfy Tasmania?


Mr LATHAM - I am not in a position to say whether it satisfies the people of Tasmania, because I am not aware of any special desire on their part in this connexion.


Mr Brennan - They confidently believe that it will do so.


Mr LATHAM - So far as that aspect of the matter is concerned, I think that it would satisfy any desire on the part of the people of Tasmania; but there is another subject in which the people of that State are interested - I refer to the Merchant Shipping Act. This motion has no special bearing on the subject of merchant shipping; it leaves the position unchanged. Judging from what appeared in a report of a committee of the Chambers of Commerce of Tasmania, it would appear that there is a rather wide-spread misapprehension as to the actual legal position in relation to the Merchant Shipping Act and the Navigation Act. It is continually being suggested in Tasmania that the Navigation Act, particularly in its coastal clauses, is an infringement of the Merchant Shipping Act. As a lawyer, I am unable to see any ground for that contention.


Mr Bell - I am advised by a high legal authority that the two statutes conflict.


Mr Brennan - Tasmania has not submitted the ground of its objection.


Mr LATHAM - The Navigation Act passed by this Parliament has been in operation for many years; it wa3 passed in 1912, and was brought into operation in 1921. In Tasmania, it has been represented that I have recently written on the policy of the clauses. That is not so. I was not. associated in any way with the passing or bringing into operation of the Navigation Act, which took place before I entered Parliament. Questions recently raised in Tasmania upon what is called " a standard of ethics " in relation to the act have no relevance to anything that I have ever said, written, or done. On the question of validity, as distinct from policy, I point out that there has been ample opportunity to test the law, but that advantage has never been taken of it. The . Navigation Act of this Parliament was reserved for the assent of His Majesty the King in Great Britain. Acting on the advice of British Ministers, His Majesty assented to it. If -the act is thought to be invalid, the courts are available to test the matter. One would have thought that the validity of that act would have been tested before now if any real doubt existed concerning it-


Mr Bell - Does the honorable gentleman suggest that the Navigation Act does not conflict with the British Merchant Shipping Act?


Mr LATHAM - I merely say that the Navigation Act was assented to by His Majesty the King, on the advice of British Ministers, and was passed in accordance with the provisions of the Merchant Shipping Act. That leaves open all matters relating to the policy embodied in that act. As to the validity of that act, this motion leaves the position unchanged, whatever it may be. In my opinion, there is a great deal of misunderstanding in Tasmania regarding the validity as distinct from the policy of the Navigation Act. I support the proposal of the AttorneyGeneral.







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