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Thursday, 28 May 1942


Mr BREEN (Calare) (12:32 PM) .I listened with great interest to the speech of the right honorable member for Kooyong (Mr. Menzies), who introduced for the benefit of lay minds many legal opinions. He quoted an opinion expressed by the present Attorney-General (Dr. Evatt) when a justice of the High Court. Mention of that opinion brought to my mind a booklet which that Minister gave to me about twelve months ago. It is entitled Constitutional Interpretation in Australia, and the author is H. V. Evatt. It satisfies my mind and dispels some of the doubts that were conjured up by the right honorable member for Kooyong. On page 2 of the booklet, the author states -

After the war, Sir Adrian Knox succeeded Sir Samuel Griffith as chief justice of the High Court of Australia, and three decisions of the court were regarded by many students as foreshadowing a permanent transfer to the Commonwealth, by judicial decision, of powers which the people, when duly consulted by constitutional referendum under section 128 of the Constitution, had refused to give. Lecturing to the University of London, Sir Robert Garran then said that the rigidity of a constitution " can never be absolute " and that " a political constitution must be capable of development to meet the changing needs of the community ". He added, significantly, that " apart from textual amendment, there are other ways in which a constitution may adapt itself to the changing conditions of the body politic. One is by the process of judicial decision ".

That supports the statement by the right honorable member for Yarra (Mr. Scullin), in reply to the speech by the right honorable member for Kooyong. The former conveyed to my mind that, despite the legal quibbles of the right honorable member for Kooyong, there is a touch of realism in our parliamentary life to-day. We are not appalled by the possibility that a decision of the Parliament might be upset by the judiciary or a High Court completely out of step with public opinion. Any doubt that I may have had owing to the remarks of the right honorable member for Kooyong was completely dispelled by the speech of the right honorable member for Yarra in the first instance, and again by reference to the booklet published by the AttorneyGeneral. Significantly enough, the quotation that I have made was marked twelve months ago by the author himself. He perhaps had some prophetic vision of such a measure as that now before the House. In the position in which Australia now finds itself, no court would upset any reasonable decision which the Parliament might make. Every instrumentality of government, legislative, judicial or executive, is directed to the defence of the country. Despite care to preserve the forms of the Parliament, we realize at present that we have to a certain degree surrendered, by virtue of the passage of the National Security Act, powers that the Parliament is very jealous of in times of peace. In reality, the Parliament meets merely to review the decisions of the Government, and to examine regulations that have been promulgated during the period when the Parliament was not in session. In no instance has any regulation so issued by the Government been upset by a vote of this House.


Mr Blackburn - That is not a correct statement.


Mr BREEN - Where regulations have been disallowed, the spirit of those regulations have been preserved in succeeding regulations. The Government has found means of meeting the wishes of the House in cases where it was doubtful what the Government intended to do under the regulations. If any legislative proposal is submitted, or any regulation is promulgated that the Parliament thinks is not designed solely for the defence of the country, the House is so balanced that it can negative the decision of the Government, and the High Court is sensible of the fact that the Parliament, as now constituted, can feel the pulse of th: people and come to decisions which the people are prepared to support. This Parliament is working on the premiss that, if it cannot secure the goodwill of the people in respect of measures brought down, it cannot succeed in defending the country. If 7,000,000 persons had to b? conscripted and their property seized for the defence of the Commonwealth, against the will of the majority of the people, :? would be of no avail in the defence of the country. Even if we succeeded against the will of the people in bringing the nation to a state of complete organization, it would be of no avail because it would be done by the application of the principles of Fascism and Nazi-ism which we are trying to destroy.

I shall now consider the effect that this legislation will have on the centralization of political control or the unification of political power in the Commonwealth. Despite what some honorable members have said, it appears that they are supporting this measure, not because they believe in the principle of unification, but because they consider that to grant to the Government the power it seeks in the present circumstances is essential to the proper organization of the country for defence purposes. The Premiers of the States, who have been the chief opponents of the Commonwealth's proposals are realists and experienced politicians. They have no illusions as to where these powers are leading, and I have no illusions in that regard. I think and hope that they are leading towards unification of political power in the Commonwealth.


Mr Holt - Unification through a back door!


Mr BREEN - Through any door ; but, if this Parliament can interpret the will of the people, and believes that the people want unification, why should we worry about the means that are used to bring it about?


Mr Holt - Of course, that is the method which Hitler has adopted.


Mr BREEN - Hitler's method is to compel the people to accept a policy which, he believes, is for .their good.


Mr Holt - Is not the Government forcing the scheme upon the States?


Mr BREEN - No. I believe that the States want the scheme. A representative of an electorate in "Western Australia has interpreted the will of his constituents, the majority of whom are normally strong upholders of State rights, a3 being in favour of unification for the duration of the war, because they recognize that the Commonwealth cannot function so effectively under the existing dual system of government.


Mr Holt - The Legislative Council and the Legislative Assembly of Western Australia carried, with only one dissentient, a resolution opposing this proposal.


Mr BREEN - .That does not prove that the Parliament of Western Australia correctly interpreted the will of the people of that State. On many occasions, the political party that has unsuccessfully opposed a referendum has shortly afterwards been returned to office. In time of peace, when trade and commerce between nations is carried on under international agreements, the country must be in a position to negotiate, not as a disunited collection of States, but as a united nation in order to dispose of its products to ' advantage. The powers which the Commonwealth Government now proposes to assume are essential in peace-time. In war-time, it is imperative that the central government should possess them. In this period of crisis, all materials and services must be at the command of the Commonwealth, which has to mass and organize them for the purpose of defending the country. Unless the Commonwealth exercises those powers, it will not be able to conduct the war successfully. For that reason. I wholeheartedly support the bill.







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