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Wednesday, 23 November 1938

Mr SPENDER (Warringah) .- I am giad to have this opportunity to express my views in short compass upon the proposition made by the right honorable member for Yarra (Mr. Scullin). I desire to inform him that he has my unqualified support. I believe that a convention to discuss the imperfections of the Constitution is long overdue. As the right honorable gentleman pointed out, the deficiencies of the Constitution have been known for a considerable time. The subject-matter of some of the points dealt with by him and the AttorneyGeneral (Mr. Menzies) were discussed, and dealt with in part, at the conference between the Commonwealth and States in 1934. It is significant that the suggestion for a special constitution session should have come from the right honorable member for Yarra, and I congratulate him upon what he has done. He has rendered a service, not only to this Parliament, but also to the nation at large. As the result of his representations there will be such a session of this Parliament at which, I trust, unity will be achieved regarding proposals to extend the powers of Parliament, so that a consolidated case may be placed before the people.

It has always struck me, as a lawyer, particularly when I have been concerned with constitutional cases before the courts, how totally inadequate is our Constitution. It is an anomaly that a so-called sovereign Parliament should be denied power to deal with such important national matters as health, industrial and working conditions - which are so closely associated with tariff reform - and unemployment. The framers of the Constitution regarded it merely as a tentative and evolutionary step in the formation of a nation, as is evident from their speeches. That being so, it is strange that, throughout the whole period of federation, so little effort has been made to deal radically with the problem. It is my desire to see this Parliament vested with complete and plenary powers, exactly the same as are enjoyed by the Parliaments of New

Zealand and Great Britain. When I am told that that would mean the abolition of the States,I do not shudder at the prospect. Indeed, I hope that the time is not far distant when the States will completely disappear. That need not, and does not, mean that we shall have only one centralized Government. I believe that there should be vested in this Parliament complete sovereign power, but that would not prevent the setting up of federal units - not the same as the States - to which this Parliament would delegate powers in regard to local functions and be able, if it so desired, to control the exercise of them. Australia must develop along those lines to achieve full maturity.

There is no rational reason why the States should be maintained. Their development was fortuitous. The boundaries of the States were marked out without any regard to economic or topographical consideration. In 1788, when Phillip was given jurisdiction, it extended over Queensland, New South Wales, Victoria, half of South Australia, and onethird of what is now known as Central Australia and the Northern Territory. That arrangement, one realizes, was due to expediency. It was done because of the nature of the first settlement. Then, when Darley was appointed Governor in 1825, the boundaries of his jurisdiction were exended to the129th meridian. This again was a matter of expediency, to include Melville Island. In 1829, Fremantle took possession of the western half of Australia, and there were two jurisdictions in the continent. In 1834, the province of South Australia was established ; in 1851 Victoria, as the result of Batman's settlement at Port Phillip, was made a separate State, and in 1859, Queensland was established. Thus, an historical survey reveals that no consideration was given, in the formation of these units, to economic factors, or to any other factors which would necessarily govern the formation of similar units at the present time.

There is no reason, therefore, why State boundaries should persist, and I hope that the people, with the cooperation of their representatives in this Parliament, will be persuaded to vest in the Commonwealth Parliament complete sovereign powers, because, without them, we can never develop to the full stature of nationhood. It is clear from the speeches of Sir Henry Parkes and Sir Samuel Griffith that it was the objective of these framers of the Constitution that there should be one parliament clothed with absolute power, capable of dealing in an absolute manner, legislatively and executively, with all the affairs of the country. Moreover, at the time the Constitution was framed, we had not acquired the status as a nation which we now possess. We were then, as we still are legally, delegates exercising power remitted to us by the Imperial Parliament, but our condition has changed tremendously in the meantime. Thirty-eight years of federation has resulted in a progress which was not envisaged by the framers of the Constitution, so rapid has it been. Population has doubled in that time, and the tempo of modern affairs, the changes in international relations, and the industrial and scientific development that has taken place, make it all the more anomalous that this Parliament should lack power to deal with so many matters of importance to the country. Since I have been a member of this Parliament I have had impressed upon me repeatedly how parliament is inhibited by the strings of the Constitution.

It appears to me that, since federation, the State barriers, rather than having been broken down, have been consolidated. Looking at these matters as a lawyer, and being able to gauge what is behind many of the acts passed by State parliaments, I have become convinced that barriers of customs were small matters in. the division between the States compared with the barriers created by certain State legislation such as, for example, transport acts.

I had the privilege of appearing in what I think was the leading transport case, known asVizzard's case, at which this Government was represented, when an interpretation was sought of section 92 in relation to transport between the States. Although the point was fully argued, I regret that no very illuminating light was thrown on the interpretation of that section. Recently the Privy Council has given us a general lead as to what it does mean, but there still remains doubt regarding its application to specific facts. I do not challenge - and indeed it would be impertinent for me to do so - the decision of the High Court in Vizzard's case, but, as a citizen, I much regret it. It appears to vest in the States remarkable powers which I doubt very much that the framers of the Constitution ever meant them to possess. It gives them power to mark out State boundaries in a more definite manner, and to preserve State entities more rigidly, than was contemplated even before the Constitution was framed. I felt that the act which was designed, so far as its title indicated, to co-ordinate transport, had as one of its definite purposes. the prevention, as much as possible, of transport by road between New South Wales and Victoria. As a New South Wales man, I see no merit in the geographical boundary at the Murray, which makes the area on one side of it New South Wales, and that on the other side Victoria. I see no reason why people in the Riverina, citizens of Australia, should not be able to transport their goods to Victoria if it is cheaper and more advantageous to do so than to transport them to Sydney. Yet the relevant Transport Act gave power to prevent - not in specific words, but indirectly - any one from transporting goods from within the State to a point outside. It seems clear to me that, in this respect, we are departing from the essential principles of federation. When the States sought to introduce quarantine regulations under their residual powers, it was suspected that they were trying to overcome the provisions of section 92 of the Constitution. Despite the recent decision of the Privy Council, I suspect that there is more than one State in the Commonwealth at the present time trying to overcome this section in regard to the regulation of trade and commerce. The section provides that "trade and commerce between the States shall be absolutely free. Yet some States seem to be resorting to a subterfuge to defeat that provision, though they cannot be challenged because the necessary evidence is not forthcoming. Let me give an example of what I mean. When the Commonwealth marketing legislation was declared to be invalid by reason of section 92 of the Constitution, there were introduced several price equalization schemes, and because they are not legislative or administrative acts of any parliament, and, in addition, are allegedly voluntary in character, they are outside the terms of section 92. There are, however, acts such as for instance, State dairy produce acts, which require that before a person may produce or manufacture butter or cheese he must first possess a licence, and power is given to a Minister or a statutory authority to refuse a licence without assigning any reason whatever. In cases that have come before me I have no doubt whatever that licences have been refused, without any reason being stated, because the person seeking the licence declined to participate in an equalization scheme. The result is that they can obtain licences only on the condition, unexpressed, that they join in the equalization scheme. That results in practice in compulsory pooling, pooling, in point of fact, almost the same as that which was declared invalid by the Privy Council.

These matters indicate how vital in respect of constitutional matters it is that there shall be no further creation of rigid State barriers. I believe that we, as a nation, must break down those barriers. There is too much State law and State outlook. We must have a national outlook rising completely above State considerations.

Some of the matters referred to by the right honorable member for Yarra (Mr. Scullin) and the Attorney-General (Mr. Menzies) show precisely the quagmire of doubt and difficulty in which the Constitution has involved us. There are two ways in which to approach the matter. One is to clarify, if one can, the actual powers distributed between the States and the Commonwealth. That, at least, would be a worthwhile job. The other is to increase the powers of the Commonwealth, even to the degree, I hope, of giving it total plenary powers, decentralization being effected bv a delegation of specific powers to federal units. That is, I think, the correct and only logical way in which the nation should develop. It would not mean unification as generally understood. No one would suggest that from Canberra we could direct every activity throughout Australia, but what we do require is the vesting of plenary powers in this Parliament, so that it could, at least in respect of certain public matters affecting local administration, delegate powers to new federal units, which would not require parliaments. Without expressing, at this stage, any qualifications, I applaud the scheme outlined by the right honorable member for Yarra. The views he expressed coincide generally with the views that I hold.

In our approach to the problem of constitutional revision, our first problem may well be: Is it sufficient to clarify the powers that are given to the States and the Commonwealth, or is it better, as I believe it is and hope for, to go farther and increase the powers of the Commonwealth? In respect of that there are two considerations. One i3 whether, if we maintain the States system, we should alter the State boundaries. If we do maintain the States system, the boundaries should, I think, be altered. Alteration of the State boundaries, of course, is the subject of an inhibition of the Constitution which requires the consent of the people of the States. The second is the question of the redistribution of powers between the States , all(1' the Commonwealth. I, who have some little experience of the difficulties which have arisen in the interpretation of the Commonwealth Constitution, am wholly opposed to concurrent powers existing between the States and the Commonwealth. Every lawyer knows how difficult it is when there are Commonwealth and State acts dealing with the same subjectmatter to apply the rule of inconsistency as laid down by the High Court. I should prefer that specific powers be given to the States and that the Commonwealth should have the residual powers. I believe that that would prove to be much more effective than the present system under which the Commonwealth has some exclusive powers, and holds other powers concurrently with the States) whilst the States have the residual powers. When the Constitution was created, we had the delegation of certain sovereign powers to the Commonwealth and the States. The States within their domains are sovereign and the Commonwealth within its domain is sovereign, and yet the Commonwealth Parliament is totally unable to deal with urgent prob lems, such as health and unemployment, because of constitutional limitations. . That to me is lamentable, and I do hope that out of the suggestion made by the right honorable member for Yarra there will arise a powerful national spirit which will seek, without consideration of party or States, to advance the common cause of the nation, so as to give to this Parliament powers to deal with matters of paramount importance.

The Attorney-General referred to fisheries. As the right honorable gentleman pointed out, the Commonwealth has no power to legislate except in respect of fisheries, beyond the territorial limits of the States. For my part, I do not know yet what are the territorial limits of the States. A year or so ago I had to argue a matter which arose out of the Fisheries Act of New South Wales. It was at that time borne on me how difficult it was to determine very definitely in respect of the States, which were created as colonies before the creation of the Commonwealth, whether the territorial limits extended beyond the low water mark, to the narrow seas, or to the 3-mile limit, or beyond. I do not think that anybody can say with certainty at what point the State jurisdiction ends. If that be so Low can we determine where the jurisdiction of the Commonwealth begins? In that we are completely befogged. I cannot conceive of anything more hopeless than to continue under an outworn constitution, one that was never intended by its founders to last unaltered for all time, but was so framed and moulded that changes might be made to meet the growing needs of the nation. Yet after 38 years nothing substantial has been done to alter the same. I believe that the people of this country desire that this Parliament, which represents the nation, should be given additional powers. It is no doubt debatable as to what extent they should be expanded, but I hope that they will become wholly plenary and that the Commonwealth Parliament will have the right to delegate powers to federal units.

I am satisfied that the people are sick and tired of the no man's land which exists between State and Commonwealth jurisdiction, and that area which neither the Commonwealth nor the States seek to claim, one saying to the other, " This is yours and the reply being " No, it is yours ". What is colloquially known as " passing the buck " has occurred too often in the history of Commonwealth relations with the States, Further, I do not believe that any sound system can be expected to arise from conferences seeking co-ordination between the Commonwealth and the States. Necessarily there are varying views. One does not blame State Premiers who bring to conferences at Canberra State problems which they see only in State perspective. That is understandable because they are answerable to the people of the States, and in the same position I should feel tempted to base my opinions on State consideration rather than on Commonwealth considerations. The States are often represented by Min- isters of divergent and opposite political views, and, in addition, the Parliaments of the States have to answer to their electors at different times. When men subject to those limitations come together it is impossible, no matter what goodwill they may have towards each other, to obtain more than a compromise. We have had too much compromise, and too little direct action to resolve the problems of the country. That failure is due to a large degree to the limitations of the Constitution.

In regard to another matter referred to by the right honorable member for Yarra and the Attorney-General, namely, the working conditions in this country, I should have thought that the necessity for this Parliament having complete control was obvious, and beyond argument. There is, for example, overlapping in respect of industrial conditions in industries. The employees are frequently uncertain where their rights are determined, or what they are, because there are different awards to govern people employed in the same occupations by reason of their belonging to different organizations. I can conceive of nothing more inimical to progress than that.

It is absolutely essential for the proper manipulation of a tariff policy that control of the working conditions of the people - which play an important part in the cost of the manufacture of articles - shall be vested in this Parliament: and I hone that that result will be achieved following on the forthcoming convention which has been foreshadowed by the AtttorneyGeneral.

Wim few exceptions proposals for con stitutional reform which have been referred to the people in past years have been rejected by them, but 1 believe that there has developed in recent years a more definite national spirit. To a great degree the rejection of the proposals to give additional powers to the Commonwealth has resulted from a number of considerations that can be obliterated. One is the advancement of State interests. 1 hope that every honorable member of . this Parliament rises above that, and I believe that in discussion on non-party lines we can achieve some measure of unanimity, under which we, as members of this Parliament, irrespective of party convictions, can place the case for reform before the people. If that be done I believe that the people will be ready to accept our proposals. Secondly, I am convinced that too often in these matters the people have not had the proposal placed before them at the appropriate time. Instead- of the submission of a general scheme for constitutional revision, proposed amendments have been directly associated with specific legislation to which the people took objection. I instance the referendum on marketing powers which was recently rejected by the people because they objected, not to the increase of the powers of the Commonwealth, but to the marketing legislation. Had the aviation referendum been submitted to the people as a separate issue I believe that it would have been carried.

Any approach to this matter of constitutional reform requires unanimity on the part qf honorable members. It is our duty to ourselves and the nation to achieve unanimity because unless we are able to combine in an appeal for additional powers, then no matter what our individual view, we can never persuade the people to consent to what we ask. We should stand for the powers of this Parliament, and 'in standing for them I have no doubt we can advance a case, which, if it be placed properly before the people, will prove accept* hie to them.

I do not desire to elaborate in detail the views that I hold on certain matters of reform. In general they have been outlined by the right honorable member for Yarra and the AttorneyGeneral, but I feel that, apart from the people accepting by way of referendum any proposal to add to the powers of the Commonwealth Parliament, there are still open to us two other means by which we can increase our powers. I am one who believes that it may well be found in the end, if we cannot achieve unanimity amongst ourselves and between the Commonwealth and the States, that the fiscal powers of this Parliament will be found to be the key to enlargement of Commonwealth powers.

Mr Blain - Blackmail.

Mr SPENDER - In my view it is not blackmail. That is an ugly word, and there is no virtue in using it in this chamber. I believe that the fiscal power was given to us to use in the best interests of the Commonwealth.

Mr Gregory - Oh!

Mr SPENDER - And when I speak of the Commonwealth I speak not of an aggregation of States, but of an aggregation of people, irrespective of State boundaries. The fiscal power was given to us to exercise in the best way we can in the interests of all, giving proper consideration to those who have special difficulties in certain areas, such as Western Australia. Such matters can all be dealt with by proper exercise of our fiscal powers. It is my belief that, whether we ask the people for additional powers or not, we should have the definite power to decide where and how money derived by the exercise ofour fiscal powers should be expended. The fiscal powers should be used for the benefit of the nation at large. Another direction in which power may be given to the Commonwealth - although it is open to debate - is worthy of consideration, namely, the use of our external affairs power to make conventions overseas. These conventions may attract to the Commonwealth powers which have not been specifically given to it. That is a matter which is worthy of the consideration of this Parliament.

I believe that the suggestion made by the right honorable member for Yarra will prove to be historic. I trust that each of us, irrespective of personal views or State interest, will do his utmost in the interests of the nation.

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