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Friday, 18 November 1938

Mr SCULLIN (Yarra) .- The budget under review at the present time is certainly not a cheerful one. No one faces increased expenditure or increased taxation cheerfully, but if it causes serious reflection on national affairs, and sober thought on national problems, it will be all to the good. It has been frequently stated that we have passed the peak of prosperity, and are now entering upon a period of regression. Well, I do not agree that we have ever reached the peak of prosperity. Unless prosperity is provided for all, there is no peak of prosperity, and whatever measure of prosperity there exists for even a section of the community cannot be permanent unless it is also general. It is true that seasons and prices vary. Seasons are poor in some places, and prices rise and fall. These factors affect the general welfare of the country, but if there were wise preparations, and a just distribution when things were plentiful, we could prevent the lean years from becoming tragic years.

We must look ahead in planning for a nation. There are numerous outstanding problems confronting Australia. Among them may be classed as most outstanding the industrial development of the nation, national defence, effective monetary reform, organized marketing, standardized railway gauge, the transfer of the unemployed from sustenance to permanent work, the simplification of methods of arbitration and the regulation of conditions of labour, and the control of combines to prevent profiteering.

I shall not elaborate these problems, as they have been elaborated very effectively by others on previous occasions. I content myself at this stage with merely stating them, because it is my desire to stress just one aspect of government, that is, the reform of our parliamentary machine, which I regard as imperative. The outstanding problems I have mentioned, and others not specified, call for urgent attention, but many of them cannot be dealt with under our existing constitution. The bulk of them cannot be as effectively handled under the present system as under a unified system of government.

After 38 years' experience of the federal system, I doubt whether there is one thinking man who is satisfied with the results. The need for change is becoming more urgent day by day. One has only to recall the events of the last twelve months, or even less, to be convinced that we are reaching a stage when that change is imminent, and certainly desirable. There is always a call in war time for unity, and I suggest that we should also have unity in time of peace. The world around us is moving rapidly. Many nations are pursuing dangerous paths. Democracy, as we know it, is being sorely tried. In many countries, and in many places, democratic institutions have been destroyed, and it is idle for us in Australia to boast of our democracy unless we are determined to make it a real, living force. Democracy, as has been tritely observed, means government by the people. The people can govern only through their representatives in parliament, and, in my judgment, they can govern effectively only through a unified parliament. Our Constitution should clothe this Parliament of the nation with full legislative powers, so that it may respond readily to the wishes of the people. Legislation passed by this Parliament has, from time to time, been declared invalid. Parliament has been told that it did not have power to pass the laws, and that they were, therefore, ultra vires the Constitution. They were declared invalid, not on their merits, but on technical and legal grounds, because they were outside the constitutional powers of the Parliament. These decisions of the High Court, which was set up to interpret the Constitution, have created vexatious delays; they have caused expense in the industrial field of arbitration, and have disgusted the unions. Many of these have left the court ; many threaten to do so. It is a quarter of a' century since that great constitutional authority and justice of the High Court, Mr. Justice Higgins, made the remark that the way to the Arbitration Court was through a veritable Serbonian bog of technicalities. That was 25 years ago, and the industrialists of Australia are still struggling in the morass. The first Federal Parliament realized this, though it was constituted largely of men who had drafted the Constitution. 1 Mr. Higgins, afterwards Mr. Justice Higgins, moved this motion: -

That the Parliament shall have full power to make laws as to wages, hours and conditions of labour.

That was carried by the Federal Parliament unanimously. We have not progressed much since then. The Constitution, as honorable members know, gives power to the Commonwealth in connexion with conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. Every word of that provision has been tested in the High Court.

Passing from the industrial field to the larger field of economics and finance, what has 'been our experience? We have been compelled to adopt makeshifts in an attempt to overcome constitutional restraints. We have set up a loan counciL

We frequently call Premiers conferences, but these have proved merely expedients. Every national emergency has found us with the bands of the nation fastened by constitutional manacles. The result has been inaction and delay. No expedient can be devised, in my judgment, to secure unity of effort in Australia while we have seven sovereign powers, embracing thirteen houses of parliament, with 600 members of parliament, and 70 Ministers of the Crown, each, parliament having, for practical purposes, equal status and authority over many matters. With a population of 7,000,000 people, we have seven sovereign parliaments, seven governors, seven overseas representatives - the High Commissioner and the Agents-General - seven taxing authorities, seven railway departments, seven public works departments, seven police forces, and so on. It is grotesque, and there are many other departments that can be multiplied by seven. As a matter of fact, I regard these as the seven wonders of the world.

The duplication and over-lapping inherent in this system cause delay and expense, and bring ridicule on the institution of Parliament. That is the most serious aspect of the matter. We are living in an age when democracy is being challenged. and if the parliamentary institution is not capable of responding to the will of the people in peace as well as in war, then the institution will suffer. To have our military and police forces under separate authorities is not only absurd, but also highly dangerous. .National security demands co-ordination of transport, yet we have seven railway departments, with three principal' gauges and we have nine Commissioners of Railways. Public works in the various States are under independent authorities, so that works are not planned to meet national needs. They are planned to meet the needs of the areas, circumscribed by artificial geographical boundaries, called States.

The Sydney Bulletin, which has .been a consistent advocate of the remodelling of the Constitution, aptly summed up the position as follows in a recent issue: -

The defence of Australia is the sport of seven governments and a multitude of transport departments and harbour boards. In the result, we have seven government railway systems, operating 24,780 miles on different gauges - (i,050 on- 5 ft. 3 in., 0,103 on 4ft. Si in., on 12,537 on 3 ft. 6 in.

I shall not elaborate that point, because we had an excellent debate on the subject yesterday, capably inaugurated by the honorable member for Maribyrnong (Mr. Drakeford), who was followed by other honorable members who also made excellent speeches. It is sufficient to state the position in order to call the attention of the people to these anomalies. Take one small matter which indicates the stupidity of this division of powers. I refer to the simple matter of a joint electoral roll. One would imagine that it would only be necessary to mention the need for a joint roll for it to be agreed to. State and Federal authorities cover the same areas, and represent the same people. As far as the Legislative Assemblies and the Commonwealth Parliament are concerned, we are on the same franchise, and yet we have been trying for 26 years to make arrangements with all the States for a joint roll. The first agreement was made with Tasmania 26 years ago, but. the job is not yet completed. So far, only four States have come into the agreement, and two are still outside. This makes for needless cost. The proposal of the Commonwealth for a joint roll does not even constitute a challenge to the power or authority of the States, yet we cannot induce all of them to agree to this simple measure of co-operation in the interests of efficiency and economy. The present system is misleading, inefficient and costly.

These thing3 are faults of a federal system, and sooner or later we shall be forced to adopt a unified system, a system similar to that of Great Britain, South Africa and New Zealand. Canada is the only other member of the British Commonwealth of Nation's that works under a federal system, but even in Canada the central authority has much wider powers than the Commonwealth Parliament possesses. The Canadian Parliament has complete trade and commerce powers and possesses all residual powers that aTe not written into the provincial constitutions. Australia has a written constitution for the Commonwealth and the residual powers are left to the States.

One of the arguments presented against one sovereign parliament for Australia is the size of Australia, the broad expanse of the country; but distance to-day is not the obstacle that it was when federation was accomplished. It has been almost annihilated by modern transport methods. For example when the 'first colonial parliament was set up in Sydney it took longer for members of that parliament to reach the seat of government from country constituencies than it now takes to travel to Canberra from the most distant parts of the Commonwealth. We have progressed in transport methods, but distance is still held up as a barrier or objection to sane government of the nation. If, on the score of size, Australia should have seven sovereign parliaments, Russia should have at least 20, but it has not. lt is not suggested by anybody who advocates one sovereign parliament for Australia that every detail should be dealt with by the national parliament. What is suggested is that the local details could be entrusted to small local bodies with powers delegated to them by the national parliament, retaining for the national parliament all national questions. If postal facilities can be provided for by a central authority, why cannot the railways? Is there any special circumstance in the management and control of railways that would make it impossible, impractical or inefficient for them to be controlled by one authority as we control the Postal Department? In our railways which we discussed here yesterday we find many anomalies. The Minister for the Interior (Mr. McEwen) mentioned one of them, namely, the injustice of differential freight charges at the borders. It was said when we federated that by the abolition of border duties we should abolish border barbarism, but it still exists. The Minister mentioned the dragging of produce to the capital cities of States away from the natural ports and outlets for that produce by means of freight concessions.

The honorable member for Werriwa (Mr. Lazzarini) yesterday mentioned decentralization. We shall never have real decentralization in Australia until we have one unified parliament, because the influence of the State capital cities is too great in the State Parliaments. There would not be that influence if we had one national parliament. Under such a system no one could imagine the freight rates of railways being fixed to haul produce to capital cities hundreds of miles further away from the place of production than other cities or ports of outlet. That could not be imagined under a unified system.

Then we have the question of the public debt. In the final analysis the whole of Australia's debt, Commonwealth and State, is a Commonwealth liability, and this debt is based upon the nation's assets. Our land, our railways, and our forests, and other great national assets are under the control of the States, whereas the debts which have been incurred in respect of them are, ultimately, the responsibility of the Commonwealth. Nobody will be pleased with the way in which those assets are being conserved, or, rather, with the lack of conservation of them. I do not propose to go into that aspect, because on former occasions, not only I, but also other honorable gentlemen, have gone deeply into the question of the destruction of timber, soil erosion, and the silting of streams. I am glad to - see that there has been a little awakening of interest, but it is still small, and the voices of those who protest against the destruction of our assets still are voices crying in the wilderness. I pay tribute, however, to the federal authority in forestry matters for' what it has done towards the conservation of our forests, but there is still diversity of control. The best interests of the nation would he served if forestry matters were dealt with by an authority clothed with power from one Parliament. I am keen on the decentralization of our population and development, but I believe that we shall never achieve it until we have a unified system. I represent a city electorate and I have never wavered in my detestation of slums due to the growth of the capital cities at. the expense of the rural population and to the detriment of the nation as a whole. Even if it bc not economically profitable to distribute our industries over the whole of the country, instead of centralizing them in the capital cities, it would be nationally sound.

The main purpose of having a unified system would be to end the legal arguments as to what are the powers of the Commonwealth and what are the powers of the States, whether this is or :that is State. We have cost, delay, and vexatious litigation, when the people of :this country are asking us to get on with the work. These disabilities are inherent to a federal system. ' The High Court has been set up to interpret the Constitution. We cannot complain about what justices of the High Court do in carrying out their work, but I do complain about the system. After legislation has been in force for yean, it is challenged in the High Court and often thrown out by a legal decision, irrespective of whether the people want it - we imagine that they must if their representatives pass it ; otherwise we do not understand democracy. Interpretation of the Constitution in the High Court becomes almost a personal thing. With the changes of personnel of the High Court Bench, come changes of interpretation of the Constitution. We are ruled in a large number of cases, not by a majority of the people, but by a majority of the justices of the High Court or members of the Privy Council.

I am grateful to the Attorney-General (Mr. Menzies) for his having supplied me with a list of the cases in which the High Court has overruled its own decisions. They are not numerous, but are far-reaching in their effect and there must be added to them the many cases in which the decisions have been by majority. In many cases, if one justice had turned one way instead of the other, the High Court would have reached decisions opposite to those which they did reach. An outstanding illustration is the history of the interpretation, of section 92 of the Constitution. Section 51 of the Constitution, which specifies the powers of the Commonwealth, sets out inter alia that it shall - have power to make laws for the peace, or, and good Government of the Commonwealth with respect to trade and commerce with other countries and among the States - whereas section 92 provides that - trade commitee and intercourse among the States shall he absolutely free.

Those words " absolutely free " have caused more argument than any other two simple words in the English language. We are told by th. t eminent constitutional authority, Sir Harrison # Moore, that the phrase " absolutely free " i3 " vague and question begging/' whereas we always thought it was simple. To illustrate how section 92 of the Constitution operates in respect of the marketing and handling, of goods between State and State, I cite the Foggitt Jones case which was heard before the High Court in 1916. Foggitt Jones and Company Limited, a company incorporated in Queensland, instituted an action against the State of New South Wales to prevent it from impeding their right to purchase livestock in New South Wales and take them to Queensland. The High Court held by a majority of four to one, the fifth justice being doubtful, that the legislation of New South Wales which sought to prevent the sale of stock in New South Wales to other Stales, was invalid. In (September, 1916, a few months later, in the Duncan case, almost exactly the same class of legislation passed by the Parliament of Queensland was tested in the High Court which ruled by a majority of five to two that the legislation was valid. Then in 1920, the High Court in the Mc Arthur case 'held by a majority of five to two that the decision in the Duncan case was wrong and that the decision in the Foggitt Jones case was right. Then the Privy Council in 193C put the " kibosh " on the lot. It decided that neither the Commonwealth Government nor a State government had the power to do what either had been doing In 1920 it was held that the Commonwealth could, but that the States could not. make certain legislation, whereas sixteen years afterwards the Privy Council declared that it could not be done either by the Commonwealth or by the States, acting together or apart, and as the result our legislation on marketing to a large degree went by the board. Even when we have the court's kindly permission to legislate on behalf of the people of this country, we are later overruled in our legislation at times by a decision of a High Court of half a dozen justices or by the Privy Council. The last decision of the Privy Council, I understand, leaves a gap in the powers of the Commonwealth Government and of the State governments. Most of us laymen, atanyrate, and. most lawyers, had believed that powers' existed to make the legislation which the Privy Council upset.

Mr Prowse -The people refused to give the powerto the Commonwealth.

Mr SCULLIN - I shall come to that in a moment. We have a no man's land in our legislation. It is an intolerable position. The decisions of the courts are reached, not On the merits of the question, but on the capacity of Parliament to pass legislation. Mr. JusticeRichinthe James case in 1929 said -

After many years of exploration into the dark recesses of this subject I am content to take the decided cases assailing directions, upon which I may setmy course, however unexpected may be the destination to which it brings me.

He set his course upon the sailing directions contained in the decided cases, but seven years later the Privy Council said that the course was entirely wrong, that he should have gone south instead of north.

On the industrial side of the question, the p6wer Of conciliation and arbitration, there has been great difficulty. The unions' have expended tens of thousands of pounds in order to have a decision reached as to what is meant by the words in the Constitution. The unions fought for this interpretation because they wanted a common rule. We have step by step come a little closer to its but we havenotgotityet. The case of the railway employee's is an example and a warning. It was held at first that the Commonwealth Arbitration Court could hot fix labour conditions for railways which were instrumentalities of the States. We went to the country with two referendum proposals asking for that and other industrial powers to be given to the Commonwealth, but the people rejected them. After deliberation in 1915 the States agreed to transfer industrial powers to the Commonwealth, but they broke their word. The High Court, however, came along in 1920, and said that the Commonwealth Court had the power all the time to make awards for railway employees. But there is no guarantee that that decision will stand, because other decisions have been overruled.

I am indebted tothe Commonwealth Solicitor-General, Mr. Knowles, for hisbook, The Australian Constitution.I commend all honorable gentlemen who have not yet read it to do so. It contains all of the constitutionalcases, and the details of the voting at each referendum, as well as much other useful information. He refers to what one of the Arbitration Court judges termed "infamous word splitting ". I am not intending to impose details upon honorable members in the brief space of time that I have at my disposal, but I use them as a background for my thoughts' on the matter. I find Mr. Knowles's book most interesting.

Not only are cases over-ruled by the High Court, but the court even over-rules its own previous decisions. Moreover, many dissenting judgments have been given. In fact, we hardly know where we are, in respect of the court. Here is an example: The court held; in a certain case, that an award was binding on a successor in a business. It might have been imagined that it would not be necessary to go to the court to discover that; yet the decisionwas based on a three-to-two judgment of the court. In some cases', judges are divided three on each side, and the Chief Justice is required to determine the issue with a casting vote. These numerous majority decisions of the High Court may be over-ruled in the future by merely an alteration of one in the personnel of the High Court bench. Professor Harrison Moore declared that a change in the personnel of the bench " might iead to revolutionary changes in the interpretation of the law." He also remarked - " The High Court has not declared itself bound by its own decisions." Although the court is not bound by its own decisions, this Parliament of representatives of the people of the Commonwealth is bound thereby, In effect, the court assumes legislative authority under the Constitution. It has a power of veto in respect of the legislation of this Parliament. That is not democracy. I am not criticizing either the court or its justices. I mention these facts to show a weakness that i3 inescapable from, and inherent in, the federal system. As Professor Dicey said : " Federalism means excessive legalism." We should extricate ourselves from this tangled web of legalism. We need a clean-cut method of government, which we would have if an alteration of the Constitution were made and Australia had a one united parliament. I commend the Australian Natives Association for the splendid work it has done in educating the public mind on this subject. It has taken a broad outlook.

I suggest that this Parliament should meet early next year, dispose of such business as the Government has to submit, and then hold a Constitution session, to formulate proposals for the alteration of the Constitution for submission to the people at the next general elections. In my humble opinion it is imperative for us to do something of this kind. It may be said that 1 am looking a long time ahead. I believe that in the past we have never given the people sufficient opportunity to consider Constitutional proposals. Campaigns extending over four or six weeks have been held, and a good deal of misrepresentation has occurred. I do not blame either party for this. In fact all sides have been guilty of it to some degree, because the issues involved have nearly always been affected, by the policy of the government in power at the time. We should try to avoid anything of that description. Any proposals formulated for the alteration of the Constitution should be divorced from Government policy, and clear cut issues should be submitted to the people. Surely, after 38 years' experience of the Constitution, we should be able to discuss with an open mind the situation in which we find ourselves. If such a session as I have suggested were held, differences of opinion would probably be revealed. If that should be so, the people should be invited to decide as between the issues involved. At least we should ask the people if they favour one sovereign parliament for Australia. It may be said that on other occasions the people have refused to extend the power of this Parliament and that we must accept this situation. I remind honorable members that some of us, I among the number, have stood for election at different times and have been defeated; but we have stood again and have been elected. We do not believe that we should give up the effort because a defeat has met us. Many people whom 1 met during the recent referendum campaign voted in the negative because, they said, "Australia has too many parliaments and therefore the parliaments have too much power." I wish to give the people an opportunity to elect one parliament for Australia. If they are given that opportunity I believe that they would accept it.

We should recast our whole Constitution. Some people speak about the Constitution as though it were sacrosant because it was. drafted by great men of the past. For this reason they say that we must not place our unholy hands upon it. But is the dead past forever to rule the living present? I hope not. That was never intended. When the late honorable Alfred Deakin presented the Constitution to the people of Australia he said : " It is the framework and ground plan of the nation." ' It was expected that we would build on this ground plan, and improve the framework. All our industrial machinery has been modernized but our machinery of government is obsolete. Our throbbing, pulsating life and activity is deadened by a musty parchment. If we continue like this we shall be political mummies in a constitutional tomb.

Our population is homogeneous. Our people have the same habits and the same traditions; they speak the same language, and look to the same ideals. With one parliament we should march forward as one people to greater and higher achievements.

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