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Thursday, 15 July 1915

Senator FINDLEY - Did Mr. Glynn tell the honorable senator that the adoption by the people of the amendments embodied in these Bills will not confer upon this Parliament concurrent, powers, of legislation:?

Senator BAKHAP - I did not ask him. I do not want any concurrent power. I desire that exclusive power should be bestowed upon this Parliament. I am not in the habit of making statements lightly. I promised the Government some time ago that I would support any measure brought forward by them which would have the effect of remedying the position that has been set up by the decision of the High Court in the New South Wales Wheat case.

Senator Findley - Without the consent of the States we cannot take away from them their sovereign rights.

Senator Millen - But we can lessen the subjects in respect of which they may exercise those rights.

Senator BAKHAP - Most decidedly. If the people of the Commonwealth decide that certain -powers shall be taken from the States and vested in this Parliament, that can be done.

Senator Findley - It cannot.

Senator Millen - The people can take away from the State Parliaments the subjects in respect of which they can exercise their sovereign powers.

Senator BAKHAP - They can modify any phase of those powers. Has not the Imperial Parliament ratified our Constitution, which contains certain machinery for amplifying any of the powers required by the Commonwealth Parliament ?

Senator Findley - The honorable senator is getting " mixed."

Senator BAKHAP - Oh, no! The ship of State lias been submarined. There has not been a petty loosening of the plates, such as the Labour party complain of in connexion with the powers they are seeking, but there has been a serious impairment of the original intention of the people of Australia in entering the Federation.

Senator Findley - Does the honorable senator say that a vote of the majority of the people of the Commonwealth can destroy the Parliament of any one State?

Senator BAKHAP - I say that a vote of a majority of the people of the Commonwealth, and of a majority of the States, can take away any of the powers of a State Parliament.

Senator Findley - If they can take away the powers of a State Parliament, they can do away with the Parliament itself.

Senator BAKHAP - The people can transfer each and every power that is now exercised by .the State Parliaments to the National Legislature if they so desire.

Senator Findley - Oh, no! If Mr. Glynn told the honorable senator that, do not listen to him.

Senator BAKHAP - I am not speaking dogmatically, because I know that even a lawyer is subject to correction.

Any opinion that I may advance as a layman is advanced with a great deal of diffidence.

Senator Mullan - The honorable senator does not admit the sovereignty of any State ?

Senator BAKHAP - I admit the sovereignty of the States, but I say that the people can derogate from that sovereignty.

Senator Findley - That is a different matter altogether.

Senator Millen - And not necessarily the people of one State, but the people of a majority of the States can do that.

Senator BAKHAP - I am not one of those who have complained of the submission of these proposals to the electors during the present war. I have accepted the situation. I knew that the Labour party would re-submit them to the people. I believe that proposals to amend our Constitution differ from other questions which properly arise in connexion with general elections w.heu personal issues are more or less involved. Consequently I shall always be in favour of submitting proposals to amend our Constitution to a referendum at a time other than at a general election. I really think it would be more advisable to submit these proposals to the people for their decision after we have arrived once more at the halcyon times of peace. But I know that the Labour party intend to re-submit them, and, that being so, with reluctance, with diffidence, but with a full sense of the responsibility which. I am assuming, I intend to suggest an. amendment in one of these Bills. If the Ministry are sincerely desirous of amplifying the powers of this Parliament in regard to the only serious breach that has. ever been made, on the original intention of the Australian people, it will accept my amendment, and, as a quid proquo I promise it my humble support in endeavouring to secure for it the suffrages of the electors of the Commonwealth. I can do no more. I regret very much the stultification, the negation of the original intention of the people of Australia to establish what is in essence free and unrestricted trade between the States. I know that the Liberal party in another place refrained from discussing these measures. But this is a Chamber in which the States are supposed to be particularly and peculiarly represented, and 1 am not going to shirk any functions which vest in me as a member of this chamber of review. I favour very much the ideas which have been expressed bySenator Keating. I believe that any substantial modification of our Constitution, such as is involved in these proposals, could better be discussed and considered by a Convention specially constituted for the purpose, or that, preferably, we should hold a special session of Parliament in time of peace to deal with matters of this description. We would then be able to call in outside assistance - such assistance as might be rendered by the Justices of the High Court, who would prevent us from falling into those pits which are continually in evidence when we attempt to trespass too greatly beyond Federal limits.

Senator Lynch - I thought the honorable senator was only going to speak fee a few minutes.

Senator BAKHAP - I am. If the Government recognise that, as a layman, I am bringing forward this amendment in an honest endeavour to repair one of the breaches recently made in our Federal Constitution, they will agree to submit it to their Parliamentary Draftsman with a view to seeing that it is made as watertight as possible. Although I am a believer in the Federal principle. I am not 'to be frightened by a phrase.

Senator Gardiner - Has the amendment the approval of the honorable senator's leader.

Senator BAKHAP - In this matter, I do not recognise my leader at all. I am here as a member of a Chamber of review, representing a State, the interests of which have been very much impaired-

Senator Millen - Why should the Vice-President of the Executive Council talk of leaders: when he says that these Bills are not a party matter?

Senator Gardiner - I want to know, whether, if we consent to recommit the Constitution Alteration (Nationalization of Monopolies) Bill, the amendment proposed by the honorable senator will have the support of his party or not.

Senator Millen - The Vice-President of the Executive Council promised on Friday last that if we did not continue the discussion on the second reading of these Bills he would afford us an opportunity for their recommittal.

Senator BAKHAP - It must be obvious to honorable senators that I cannot bind the representatives of other States.

Senator Gardiner - Is the honorable senator acting on his own responsibility ?

Senator BAKHAP - I am offering my support to the Government on the Constitution Alteration (Nationalization of Monopolies) Bill, if they will accept my amendment. That position is clear enough, surely. Does the Vice-President of the Executive Council think that, as a member of this chamber of review, I am going to ask members of the House of Representatives for their support?

Senator Gardiner - 1 think that the custom has Been to settle matters between the different parties, and it is a good custom.

Senator BAKHAP - The VicePresident of the Executive Council maintains that this is not a party measure, and yet he wishes to saddle me with the responsibility of getting the support to my amendment of members of my own party in this Chamber. I cannot commit them. They represent other States. They may hold different opinions in regard to my amendment. All I can do is to suggest that amendment, and if it be accepted, I can promise the Government my support to the Bill.

Senator Gardiner - The amendment may be brought forward when the Bill is under consideration.

Senator BAKHAP - But I shall not. be able to speak then. I understood that, in accordance with the arrangement which was made last week, if I wish to say anything upon the measure, I must say it now.

Senator Pearce - What is the amendment? We are in breathless anxiety to hear it.

The DEPUTY PRESIDENT.- There is nothing to prevent the honorable senator from speaking to his amendment when the Constitution Alteration (Nationalization of Monopolies) Bill, is under consideration. Nobody can prevent him from ' speaking then.

Senator Millen - There was only a general understanding arrived at last week.

Senator Gardiner - I will offer no objection to the honorable senator speaking to his amendment when the Bill is under consideration.

Senator BAKHAP - Seeing that our Constitution is to be tinkered with, I wish to drive in a rivet or two with a view to repairing the most serious breach that has been committed since the consummation of Federation. I intend to propose the insertion of the following new clause - 51a. (1) When the High Court has decided, on. plaint made to it by the Commonwealth-, that the industry or business of producing, manufacturing, or supplying any specified goods or of supplying any specified services is- the subject of a monopoly detrimental to the Commonwealth), the Parliament shall have power to make laws for carrying on the. industry or business or specified service by or under control of the Commonwealth, and acquiring for that purpose, on terms to be arranged by arbitration, any property used in connexion with the industry, business, or service.

(2)   This section shall not apply to any railway, tramway, power, water, lighting, or marine transport service carried on by the Government of a State or any public authority constituted under a State.

(   3 ) The Government of a State, or any public authority constituted under a State shall not acquire by forced purchase, or take over compulsorily, any commodity produced or manufactured within the boundaries of the State.

(4)   The Government of a State or any public authority constituted under a State shall not, by virtue of its possession or administration of any railway, tramway, or marine transport service, wilfully impede the free passage of commodities between the people of the States and Territories of the Commonwealth.

I have endeavoured, as far as in me lies as a layman, to remedy the breach of which I have complained ever since the unfederal acts of New South -Wales and South Australia. I am doing this honestly, and have made the offer to the Administration. I do not believe in any great, extension of the power of the Commonwealth Parliament, yet I am prepared to give it the power to acquire monopolies if. such are adjudged by the High Court to be detrimental to the interests of the people of the Commonwealth.

Senator Findley - That amendment wi.lL not serve your purpose.

Senator BAKHAP - It ' will serve the purpose far better than the Bills which actually confirm the States in the exercise of. unfederal powers.

Senator Findley - You cannot take them away.

Senator BAKHAP - If it cannot be done by that direct amendment how is it to be done- by virtue of these Bills? I wish to deal now with the claim advanced in the sixth Bill of the series to make this Parliament, by a resolution of both Houses, the judge as to whether the business of a man or a corporation shall be sequestrated or taken over. I desire to emphasize my opinion that a Parliament is not a judicial body. It is primarily a legislative body, and it is of the first importance to the welfare of a nation that judicial functions should be- separated from legislative functions:

Senator GARDINER - The Parliament must remain the supreme high court of appeal.

Senator BAKHAP - It does not remain - the supreme high court of appeal in connexion with the administration of Federal functions, and in no case am I in favour of making Parliament anything like a judicial or an executively judicial body. It is a legislative body, and I intend to quote a passage which I think is of very great importance, and is almost a classic in connexion with the point I am endeavouring to make. It will be seen that when Parliament, by resolution comes to the conclusion that a business is a monopoly, it assumes that the monopoly is prejudicial to the people of Australia. It attaints the monopoly,, so to speak. There is a very ancient proceeding unknown to the Parliament of Australia, happily, but one which has been used in the Parliament of the Home country time and. again, though not of recent years. I refer to the power known as the power of attainder. It was, unhappily, very often necessary that Parliament should pass a Bill' and attaint a man of treason, attaint i him of doing something inimical to the interests of the country. It took away from the ordinary Courts of justice, often for- sinister motives, the power of trying a man, and, very frequently, trying him for his life. A parliamentary Bill of Attainder was brought in; a man was attainted of high treason; the Bill was passed, and he was executed without any other judicial process. Some of the best jurisconsults of. the Empire have maintained- that it wast an unsatisfactory process, and happily it has fallen into desuetude. It, is in abeyance1.

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