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Wednesday, 2 December 1936


Senator BRENNAN (Victoria) (Assistant Minister) . - in reply - I shall not be long in my answer to the speeches made, some of which, notably those with a Tasmanian complexion, I deplore for one reason, whilst others, such as that made by the Leader of the Opposition (Senator Collings), I deplore for quite another reason.

With regard to the question raised by Senator Johnston, I may say that a similar inquiry was made yesterday by Senator Marwick, who asked my views on the subject; I advised him to apply direct. to the Attorney-General's Department. He did so. Senator Johnston showed me his question,1 , which came from the same organization. The answer which Senator Marwick obtained is one -which satisfies both himself and Senator Johnston, namely,, that if the referendum proposal be agreed to, the States may go ahead with their marketing legislation, notwithstanding that there may be two dissentient States.

With, regard to the matter raised by Senator Sampson - and I excuse him for the reason that he had no earlier opportunity to .get rid of all the music in him, because when the bill was at its secondreading state, he was relieving you, Mr. President, in your exalted position. With regard to the rights of the States, I speak for almost every honorable senator pre sent when I say that we recognize the Senate as a States House; in a peculiar manner it represents the claims of the States, and was so designed by the makers of the Constitution. But, as the Leader of the- Senate (Senator Pearce) said during the debate on the second reading, the proposal which is here made is really one to increase State rights, because it seeks to give back to the States some of the powers which they have lost. It has been pointed out that one of the effects of the Privy Council's decision is that a kind of legislative no man's land, an area of country which cannot be covered either by Commonwealth or State legislation, has been disclosed; and the very purpose of this proposal of the Government is that that area should be covered. But, generally, with regard to everything else Senator Sampson said as to State rights, we are entirely in agreement. The honorable senator also referred to what he described as the emasculation of section 92, and he thought that the effect of the proposed alteration would be to take take from the States some of the rights which at present they possess. Whatever else the proposed amendment does, it limits to some extent the words of section 92, and, so far from it being true that there may be far-reaching effects from this, proposal, I venture to say that the extent to which the Commonwealth Parliament can go under section 92 is being restricted very considerably. The fears of far-reaching effects are therefore entirely groundless. The honorable senator seemed to suggest that there was some impropriety in varying on- qualifying section 92 - that we have no right to touch that section because Tasmania, with other States, was induced to join the federal union because of that section in the Constitution. I remind him, however, that the States also entered the federal union with section 128 in the Constitution which provides means by which the Constitution may be altered. Every section of the Constitution is subject to the right of alteration by the people if they desire to do so. The desire was to strike a happy medium between a Constitution, which was not too rigid and one which was not too flexible ; experience has shown that the Constitution is at any rate not too flexible, because the people have been extremely cautious about what they will grant in the way of alteration.

There has been speculation as to the possible result of the proposed referendum. It was said by Senator Sampson that we, the representatives of the Government, have been asserting that the people are eager to seize the opportunity to make this amendment of the Constitution. I know of no member of the Government who has suggested that; the attitude of the Government is that thisis a question to be put to the people; the responsibility for deciding it must rest with them. Senator Sampson asked what is to be the result if the referendum is lost; my leader predicted by interjection that one of the most immediate results would be a great clamour for bounties and that in that clamour Tasmania would not be altogether in the ruck. Senator Payne also indulged in speculation as to the chances of getting the proposals passed by the people. Senator Grant also has suggested that we should keep the constitutional rights of the States inviolate. In this proposal, however, we are acting under the powers conferred upon us by section 128 and are not violating in any way the constitutional rights of any State.

With regard to the remarks of Senator Brown, I do not know whether his references to the Attorney-General were intended to embrace me as well; though I gather that they were.


Senator Brown - I said that the Attorney-General was apparently not allowed to answer questions.


Senator BRENNAN - The honorable senator will remember that questions dealing with legal matters are always referred to the Attorney-General for reply. He will also remember that when I rose to answer his question this morning I did not have in my possession the prepared answer; it came while I was still on my feet. I thereupon read it as it was prepared for me. I had no desire to be discourteous to the honorable senator; the suddenness with which the answer was put into my hands may have accounted for the intonation of my answer to which the honorable senator has objected. It is not out of sheer perversity that the Attorney-General declines to answer such questions.We are not the interpreters of the law, and very grave embarrassment may arise if the Attorney-General commits himself to an expression of opinion which afterwards may be over-ruled by the High Court. The Attorney-General must be extremely careful in dealing with questions of that sort. That, I hope, will be a sufficient explanation to the honorable senator. I had no intention to hurt him in any way, and I can assure him that there was no intention on the part of the AttorneyGeneral to evade what are his proper duties and responsibilities in this matter.







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