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Thursday, 3 March 1932


Sir LITTLETON GROOM (Darling Downs) . - This clause, as proposed to be amended, is an attempt to meet the criticism which has been levelled against the Government's proposals. In dealing with it we have to ask ourselves what power in the Constitution enables us to pass a clause of this description. The financial agreement entered into by the Commonwealth and the States resulted in section 105a (3) of the Constitution which provides -

The Parliament may make laws for the carrying out by the parties thereto of any such agreement.

The making of those laws is directed to the carrying out of the agreement by the parties to it. The clause has to be read in connexion with whatever powers and authorities are contained in the Constitution. Therefore, whatever additional authority can be given, under section 51 (xxxix), dealing with " matters incidental to the execution of any power vested by this Constitution in the Parliament," can be called to our aid. We have to remember that section 105a (3) must be read in conjunction with the fundamental structure of the Constitution - the distribution of powers under three headings, namely; the legislature, the judiciary and the Executive. The Commonwealth is entitled to call to its aid whatever additional powers are contained under the heading of the general executive power. It is sometimes difficult to know how far the executive power goes, or the limits of the judicial power. The position is set out in Sidgwick'sElements of Politics in the following terms : -

It is not always easy to draw a distinction between executive and judicial power. It is sometimes difficult to decide whether a particular act is judicial or ministerial. Sometimes the executive has to perform coercive work as a preliminary to or before, or apart from the decision arrived at by the judicial power - such as service of process and execution of warrants of arrest. Sometimes the coercive work of the executive consists in carrying out the decisions of the Judiciary, such as the imprisonment or execution of an offender and the enforcement of a warrant of distress. In these instances the coercive interference of the executive, either as essential preliminaries to or consequences of judicial decisions, frequently necessitates the exercise of judicial functions and thus renders the distinction between executive and judicial duties ambiguous, since executive officers, in so acting, have to interpret the law in the first instance, and the decisions after they are given.

Clause 5 makes it clear that so far as the determination of the liability of the _ States is concerned, it is a judicial power that is exercised, the power being vested in the High Court. I mention incidentally that this clause when amended will provide, as does the preceding one, that the Full Court shall consist of at least three justices. In section 23 of the Judiciary Act it is set out that on a question affecting the constitutional powers of the Commonwealth at least three justices must concur in the decision. My view is that that section of the Judiciary Act will have to be read in conjunction with this legislation. In. constitution al matters, it will be necessary to comply with the provisions of the Judiciary Act. Wo must bear in mind the distinction between the judicial power and the executive power. Clause 6 provides for the issue of a certificate by the Auditor-General, which shall be regarded as prima facie evidence before the Court. The effect is to make that certificate equivalent to an affidavit or other prima facie evidence of a debt. Both Houses of Parliament must then by resolutions approve and adopt the certificate. The resolutions are to contain the words : " and that by reason of urgency it is desirable that the provisions of sections 7 to 13 inclusive of this part should apply." That is an approving power, not the exercise of a judicial power. This clause amounts practically to an invitation by the Executive to the Houses of Parliament to join in an executive act. How do sections 7 to 13 apply? A proclamation is issued under clause 7, on the issue of which a debtor to the State is immediately affected under clause 9. The Commonwealth is then in the position to sue for, and recover, any moneys owing by any person to that State, and becoming payable during the currency of any proclamation, which, if received by or on behalf of the State would have formed part of the specified revenue of that State. We thus arrive at a position in which the Commonwealth is able to sue a debtor of the State in order to recover moneys owing to the State. That liability is imposed upon the debtor without the intervention of the judiciary up to that point. The question then arises as to what power can be conferred upon the Executive to issue any executive proceedings of any kind to enforce a debt before any judicial proceedings are taken. In the old English law there is a procedure somewhat analogous to the procedure in the preceding clause. In Halsbury's The Laws of England it is stated that -

The writ of extent is the process by which the Crown can seize the body land, goods, and debts or other choses in action of its debtor by summary process for the purpose of obtaining satisfaction of debts due to it. . . . lt is stated further that -

Extents are divided into extents in chief and extents in aid. Extents in chief are extents issued on behalf of the Crown against its debtor (extents in chief iu the first degree), or against its debtor's debtor, and so on (extents in chief in the second, third, &c, degrees ) .

In clause 9 the Commonwealth is issuing a process against a debtor's debtor - the taxpayer owes the State a debt, and the State owes the Commonwealth a debt. The position is similar. Extents in chief are now comparatively rare; they were formerly the Crown's favorite method of recovering its debts. Extents in aid were practically abolished by the Extents In Aid Act of 1817. The only species which it is worth while to discuss at length at the present day is the immediate extent in chief iri the first degree. In this procedure there is the affidavit of debt and danger, &c. A judge of the King's Bench Division, on the production of the affidavit - and, if the debt be by bond, the bond - signs his fiat, and the other steps follow. Apparently the amendment is intended to overcome the complaint that judicial procedure has been omitted. The amendment has been proposed to make it obligatory, in the enforcement of the debt, under this clause, to adopt judicial procedure. In other words, the fundamental debt, upon which the execution is being taken, is to be a matter of judicial determination. To that extent, therefore, the judiciary is being brought in.


Mr Beasley - But it is too long afterwards.


Sir LITTLETON GROOM - It must be within two months. The point is that provision is made for a judicial determination. When, an application has been made to a court, it is open for a State to raise any issue, such as that the money is not owing, that the Executive has not complied with the provisions of the act, or that the act under which action is taken is not constitutional. But all those questions are capable of speedy determination.


Mr Scullin - But action will already have been taken.


Sir LITTLETON GROOM - That is so.


Mr Beasley - The Government has no right to override the principles of law in order that it may fake speedy action.


Sir LITTLETON GROOM - But provision is being made for compliance with the constitutional requirement that judicial action shall be taken to determine the questions at issue.

It is provided under clause 5 (6) that upon the making of a declaration by the High Court that any amount is due by the State to the Commonwealth, such declaration shall be a judgment of the High Court in favour of the Commonwealth against the State, and shall be enforceable as a judgment, and shall, in addition to any other remedies for enforcing such judgment by law provided, operate as a charge upon all the revenues of a State.


Mr BRUCE (FLINDERS, VICTORIA) - That is sub-clause 6 of clause 5, and it does not re-appear in clause 6.


Sir LITTLETON GROOM - That is so. I do not know the reason for this omission in the proposed amendment. No means is being provided in this clause, apparently, to follow up the declaration of the court. The intention of the bill as amended appears to be directed towards the preservation of the distinction between the Executive and the judiciary. It is not unusual in State acts to provide executive remedies to preserve rights. Probably this is the intention of this clause.







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