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Thursday, 28 May 1942


Mr SPEAKER - Order ! This discussion is entirely wide of the bill.


Mr CALWELL - If the honorable member for Warringah (Mr. Spender) was permitted to quote the opinions of High Court justices long since dead, if the right honorable member for Kooyong (Mr. Menzies) was permitted to quote die opinions of equally eminent judges, some of whom are living and some dead and one of whom is a member of this Parliament, and if the honorable member for Reid (Mr. Morgan) was permitted to refer with great clarity and appositeness to the opinions expressed ' by chief justices of the Supreme Court of the United States of America 30 or 40 years ago, surely I may deal with the aspects of the case presented by the Premiers of the States in opposition to this legislation?


Mr SPEAKER - I directed my remark to the honorable member's reference to election results. They have nothing to do with the question now before the House.


Mr CALWELL - I know that they raise a spectre unnecessarily, but, for my part, I believe that my 30,000 majority is safe. I shall quote the opinions of some of the Premiers later, because, in fairness to them, and for good historical reasons, the case that is being made out against the Government's proposal should at least be recorded. The Government's case is a good one, and no harm can come of allowing the other point of view to be expressed. The proposed scheme of uniform income taxation is designed to operate for the period of the war and one year thereafter, or, at' least, that is the Government's statement of the case. I believe that the real intention of the legislation - and I hope that I shall not hurt ' anybody's feelings in making this statement - is to establish a permanent unified system of income taxation, and that, after, we have adopted such a system, we shall be asked to approve of a uniform land tax scheme, and perhaps a uniform scheme of probate duties and a uniform scheme of entertainment tax. Those things can be argued in their turn, but I believe that they will come inevitably if we pass this bill. Therefore, the Government ought to be frank and say, " Yes, we believe that there should be a uniform system of taxation in war time and in peace time ". A clause in the bill states that the operation of the legislation shall be limited to the period of the war and one year thereafter. The deletion of that clause by a subsequent Parliament, if the validity of the legislation be upheld by the High Court, would make the scheme permanent and would deprive the States for all time of the right to enter again into the field of income taxation.


Mr Morgan - The Government is feeling its way step by step.


Mr CALWELL - It would be far better for the Government to be courageous and say that it is doing this thing in the interests of the nation, because it is bad for the people to be obliged to fill in so many forms, to have a multiplicity of collecting agencies and to waste public money which could be saved by a simple method. I have my own view as to what the Government desires, and I have stated it clearly. I suggest that the High Court would be helped if the Government were to express its real intention. I hope that the States will challenge the legislation because, if the case goes against them, a precedent will be established and the future position will be bound by it. I was glad to note that three Premiers expressed their intention of going to the High Court. If they did not do so in time of war, and if, in time of peace, a Commonwealth Government proposed to perpetuate this legislation, that Government might have great difficulty in - proving its case then, in spite of all that has been said to-day by legal gentlemen in this House, for whose erudition I have a great respect. I believe that this case will be prejudiced before theHigh Court in favour of the Commonwealth by the existing situation. I think the High' Court will give not a legal judgment, hut a political one. High Courts give political judgments and High Court judges are politically minded. Some come from political parties. The best course to the High Court Bench for an ambitious young lawyer is to associate himself with a political party, propel himself into the spotlight and ultimately because of service to the party,- or Parliament, and thus obtain promotion to the judiciary. Having no illusions about many matters affecting the judiciary, I believe that it is very probable, in the event of this legislation being, challenged and the fact being established that all the taxing machinery of the States has been dismantled and their officers transferred to the Commonwealth Public Service, that the High Court Bench will say that it would not be proper for the judges to disturb the existing order, particularly if it is contended that it is necessary for the winning of the war. As the honorable member for Reid (Mr. Morgan) has suggested by interjection, present ills and threatened dangers will colour the opinions of the judges more than will the law, as laid down in the Constitution and supported by legal precedents established by High Court judges since federation. I should like to learn the course which the Government proposes to pursue if the High Court rules against the validity of the legislation. One answer might be " Wait and see" in true Asquithian style; but that might not be the wisest course. The Government ought to have ready an alternative scheme. It is not always wise to rush legislation through Parliament. There exists a tendency to push through legislation and regulations which are hastily prepared and which have not had the consideration that they deserve. The decision of the Ministry on clothes rationing is a . case in point. It might have been better if more consideration had been given to that subject before the' famous broadcasts were made. It might have been better, too, if the introduction of this legislation had been delayed for a week so that the Government might have had more time to con-

Mr. Calwell

Mr. Oahoell.sider it thoroughly. It is not always wise to rely . on eminent King's Counsel who advise governments. The identity of the eminent legal gentlemen who advised the Government on the constitutionality of these bills has not been disclosed, but I am credibly informed that Mr. Fullagar, K.C., and Professor Bailey, both of Melbourne, are the two distinguished lawyers upon whose opinions the Government is relying. Mr. Fullagar is certainly one of the best constitutional lawyers in Australia. I am also advised that the opinion of an eminent King's Counsel of Sydney was obtained, and that his view supported that of the Government.


Mr Rosevear - Legal opinions can be bought.


Mr CALWELL - I am as sure, as the honorable member that legal opinions can be obtained readily. The law is so, uncertain that he would be a poor lawyer who could not find grounds for differing from a brother lawyer, particularly when he had the Commonwealth or a State Treasury at his back. Honorable members have suggested during the debate that the effect of this legislation upon the States will he the destruction of the States. I think the effect will be slow strangulation of the States. The power of taxing, which has been latent in the Commonwealth since federation, has not been used to a large degree up to date. In 1914 the Commonwealth invaded the field of State taxation when it imposed an income tax, but it was not until the present war that the Commonwealth commenced to use its taxing power to the limit. I repeat that it remains to be seen whether the High Court will rule that the taxing power proposed to be exercised under the authority of these measures is constitutional. Reference has been made during the debate to the attitude of certain honorable members in relation to the decision of caucus on the bills. In justice to the honorable member for Griffith (Mr. Conelan) and the honorable member for Kennedy (Mr. Riordan) it should be made clear that the decision of the caucus was not unanimous. The first decision was approval of the principle of the legislation.







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