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Thursday, 4 April 1946


Mr BEAZLEY (Fremantle) .- The Australian Constitution can be altered in three ways - first, by reference of power by. the States ; secondly, as the Constitution itself provides, by means of a referendum - an extremely difficult process; and thirdly, by judicial interpretation. In the history of the Commonwealth, the Constitution has been altered probably more by judicial interpretation than in any other way. Judicial interpretation was responsible for a' revolutionary decision in connexion with uniform taxation, enormously increasing the power of the Commonwealth in a way which, I am sure, the fathers of the Constitution did not anticipate. It has been stated from the Opposition benches that there is something sinister in. the alteration of the Constitution by way of a referendum. The proposed law' must be passed by a majority of the members of each House of the Parliament and a majority of the people in a majority of the States. That is an exceedingly difficult process, as past experience has proved, but at least it is an entirely open process. I cannot say that I have the slightest respect for the suggestion of the Opposition that a constitution convention should be held to draw up' recommendations in respect of proposed alterations Opposition members have argued that if a non-party convention were held the people would support the proposals which it recommended. That is contradicted by history. Past conventions were very slow to draw up a Commonwealth Constitution that was acceptable to the people of the States. Western Australia entered the federation only after a heavy migration of people from the eastern States, whom the " Groper " families called " Tothersiders ", had provided a majority with an "other side" outlook which forced the Government of the State to take that course. Ever since then, a strong federal tradition has existed on the gold-fields of Western Australia. That was shown at the last referendum when, by a majority of two to one, the people on the gold-fields voted in the affirmative. There is not a tittle of evidence to prove that acceptance of proposed alterations can be obtained by having them drafted by a convention. How would such a convention be selected? Would the delegates be nominated by the States? If so, the State government were to nominate delegates of its own political colour, then the objection which honorable members opposite have to the drafting of these proposals in a political way would still remain. If it be suggested that the delegates 'should he elected by the people of each State I should like to know what constitutional power exists to compel people to vote. I very much doubt whether the Constitution contains such a power. If the States passed legislation enabling each State to elect delegates, then there would be no prospect of the people electing non-political delegates. In order to cast an intelligent vote, they would have to know whether the person offering himself was a federalist or a States-righter. Thus, the candidates would have to be identified with politics. Therefore, the assertion that a convention would overcome the difficulties associated with an alteration of the Constitution will not bear analysis. We have the example of the 1942 convention that was attended by every State Premier and Leader of the Opposition, as well as by representative members of the Government and the Opposition in this Parliament. Members of the present Opposition agreed to certain powers being referred by the States to the Commonwealth for a period of five years. Only the right honorable member "for North Sydney (Mr. Hughes) had the courage to adopt outside- the convention the attitude that he had adopted inside. The Dunstans, Playfords and Menzies agreed in the convention that certain references of power were necessary, but argued outside against such a course being adopted. Consequently, we could not obtain by means of a convention in which the Opposition parties were represented, an honest statement to the people of what constitutional amendment was necessary. They speak in one way at an assembly, but when the influences which dominate their parties apply pressure to them outside they speak in an entirely different way. We have not yet had a clear statement from Opposition members as to whether they intend to support or oppose the present proposals. The Leader of the Opposition became almost petulant about the referendum being held on the same day as the polling in the general elections. The Liberal party and the Australian Country party have' many planks in their platforms. Proposals and principles which are not incorporated in specific programmes are merely plati- tudes. Among the proposals of the Liberal party is the very striking industrial proposal that there shall- be profit-sharing. The members of that party know thai they have not the least constitutional power to implement profit-sharing. The Australian Country party adopts the principle of the organized marketing of primary commodities. Its members know that the power of this Parliament to legislate in that connexion is at least doubtful. If the referendum be held on election day, and honorable members opposite make their usual promises about industrial reforms and marketing proposals, at the same time opposing the alteration of the Constitution, they will display .openly the hypocrisy they have always shown. Hence this petulant outburst about proposals, to some of which they pretend to agree, being put to the people on election day. We have also had the " distant fields are greenest " argument brought forward by the honorable member for New England (Mr. Abbott), -who mentioned the great example of the federal constitution of the United States of America. I point out that the present proposals are before Parliament because of the difficulties inherent in federal constitutions, the difficulty of delimiting the powers of the federal authority on the one hand, and those of the States on the other. These problems have been, encountered iii the United States of America. All these cliches about the rights of democracy, the increasing size of the civil service, and the benefits of decentralization, can be read iii such journals as Life,Time and the SaturdayEveningPost, copies of which are available in the Library in this building. The difficulties of federalism are not peculiar to Australia; they are inherent in any federal constitution. It is a gross distortion of the truth to say that they arise out of our own Constitution as such, or out of the attitude of the Labour party.

Insofar as there emanated any criticism from honorable members of the Opposition, they first objected to the matter, and then to the manner, of the Government's proposals. They assumed a complete incapacity on the part of the judiciary to interpret words of common, meaning. They asked, "What is the meaning of ' benefit to students ' ? What is the meaning of ' primary produce ' ? What is the meaning of ' industrial conscription' ? ". It cannot be said that the High Court judiciary has in the past exhibited an inability to give a wide meaning to terms which are political rather than legal. I do not know how it would be possible to write a constitution without having in it many terms the meaning of which would be political rather than legal. For instance, the defence power refers to " the naval and military defence of the Commonwealth That is a political, not a legal expression. -Members of the judiciary have themselves differed widely as to the meaning of that very expression. For instance, Chief Justice Griffith, in the case of Farey v.Burvet, said that it gave the Commonwealth Parliament all the powers which the Parliament of the United Kingdom might exercise in time of war. On the other hand, Chief Justice Latham says that it does not give to the Commonwealth power to control lighting in a defence factory. No words that one could write into a constitution could exactly define what is meant by the naval and -military defence of the Commonwealth, yet this was certainly not a controversial issue at the conventions which drew up the Constitution. It is not possible, in framing a constitution, to obviate the difficulties of judicial interpretation in regard to matters such as this, as honorable members opposite who are lawyers know very well. An examination of various judgments in recent court cases shows clearly the ability of the judiciary to interpret the meaning of words which may seem to have a political implication.

The first proposal in the legislation now before us is that which concerns social services. The necessity to put these matters before the people arose out of a judgment of the High Court in' the Pharmaceutical Benefits case, and I read the following excerpt from the judgment of Chief Justice Latham, because it illustrates the difficulties which have to be faced : -

I illustrate the position as I understand it by taking public health legislation as an example. Under section 51 ix. the Commonwealth Parliament has power to make laws with respect to quarantine. Quarantine legislation may he regarded in most, if not all, of its aspects as a particular form of public health legislation. In relation to quarantine the Commonwealth Parliament has full powers if legislation. It can not only provide that money shall be spent upon quarantine, but it can devise and put into operation a whole, compulsory system of quarantine under which duties can be imposed upon persons and penaltics inflicted for breach of the law. But in relation to other aspects of public health the Commonwealth (once again leaving out of account the territories) has no such power of legislation. The Commonwealth can, in my view, authorize the expenditure of public money on enquiries, investigations, research and advocacy in relation to matters affecting public health. But the Parliament could not ass a law requiring citizens of the States to keep their premises clean or to submit to vaccination or immunization. The pow'er to appropriate and expend money, .however wide that power may be, does not enable the Commonwealth to extend its legislative powers beyond those marked out and defined by the Constitution, although (in my opinion) those powers include a general appropriation power.

For the reasons stated I reach the conclusion that the court should not accept the only argument which has been used in support of the validity of the Act, namely that the Act is an exercise* of the power of the Commonwealth Parliament to make laws for the appropriation of public money.

HisHonour Mr. Justice Dixon, in his judgment, said -

It was said that section 81 of the Constitution, in referring to appropriation for the purposes of the Commonwealth, empowers the Parliament to expend money for any purpose that is for the benefit of the people of the Commonwealth, or for the advancement of their interest and that, for the rest, section 51 xxxix., warranted an amplification or extension of the area of legislation once the description of benefit or advancement had been determined on. This is not the view which in the past I have entertained of the power of appropriation given by section SI of the requirement ex.pressed by section 83 that the appropriation must be " by law ". l\o one, 1 think, suggests, and I certainly do not, that any narrow interpretation or application should be gaven to these provisions. Even upon the footing that the power of expenditure is limited to matters to which the federal legislative power may be addressed, it necessarily includes whatever is incidenta.1 to the existence of the Commonwealth as a state and to the exercise of the functions of a national government. These are things which,, whether in reference to the external or internal concerns of government, should be interpreted widely and applied according to no narrow conception of the functions of the central government of a country in the world of to-day. There is no reason why such matters should be taken to fall outside the province of federal appropriation though ascertained and 'defined by reference to the legislative power of the Commonwealth. But the claim is made that, under sections 81 and 83, the Parliament has* power to authorize the expenditure of money without any limitation of purpose. The claim means that, though the Commonwealth is a government- of defined and enumerated powers, the power to spend money is independent of the limitations which affect the other powers of the Commonwealth and is not to be restricted by reference to the purposes for which, otherwise, the Commonwealth is conceived to have been established. There has not been wanting support for this view among those who have written about the Constitution, though, I think the more general opinion has been against it.

Everybody will agree that health is a proper matter for this Parliament to legislate . upon. At least, all will agreethat this Parliament should have concurrent power with the States on health matters other than quarantine. Honorable members opposite have raised the subject of decentralization. If they regard the relationship between the Commonwealth and the States as' a relationship of decentralization they do not know the meaning of the term. It is not decentralization. The relation between the Government of Great Britain and local governing bodies is one of decentralization, because the central government possesses full power, but delegates some of it to local bodies, for the control of education, &c, all the time remaining itself the last court of appeal. Between the Commonwealth and the 'States there is a situation of separate and colliding sovereignties. A great many of the cases which have been heard in the High Court arise out of this collision of sovereignties.

Honorable members opposite have particularly opposed the third proposal contained in these bills, namely, that the. Commonwealth should have power to legislate in respect of terms and conditions of employment. They have suggested that there is something sinister in it. The New Zealand Parliament has power to legislate regarding terms and conditions of employment, and, in fact, has legislated to introduce a 40-hour working week. That does not mean that New Zealand has abrogated the institution of industrial arbitration. It only means that the Parliament of New Zealand has established a basis from which arbitration begins. The Labour party in Australia stands for arbitration. So does the Liberal party, but it has been standing still for forty years. Members of the Liberal party say that there should be no departure from the principles laid down over 40 years ago. If they hold that Parliament has no right to legislate in regard to economic matters, they deny the whole history of human progress over the last 100 years. Mankind has progressed in this field only insofar as it has set aside the bestial and un-Christian doctrine of laissez-faire, and insofar as legislation has been enacted to raise standards of living.

The Leader of the Opposition has varied his attitude from time to time.' When he is in the House, and is not facing an audience of lawyers, he sometimes makes assertions that he would not make before a critical audience. Let me quote an excerpt from an address which he delivered to the Australian Institute of Political Science, a critical audience, on terms and conditions of labour. The address, which is published in Studies on the Austraiian Constitution edited by Professor Portus, included these passages : - . . While I am, in general, no slave to the idea that there should be a uniformity of industrial prescription in the various States, it seems clear that there will, from time to time, be cases in which some uniform treatment of a problem, common to two or more "States or to some employers or industries in two or more States, will be essential if justice is to be done. This result could not be achieved unless there exists some, right in the Commonwealth, in respect of some industries or some classes of employers, or some types of dispute, to exercise a power either of settling disputes, or of making some adjustment from time to time of industrial conditions.

Then he became more explicit, and stated his own creed in these terms - . . The third course, and, in spite of past heresies, I am to-day driven to it, is to amend section 51 by giving to the Commonwealth Parliament, power to legislate generally in respect of all industrial matters. The immediate objection to this proposal is that it appears to involve a tremendous centralizing of power on a matter which, more than most matters, frequently requires local and particular treatment". The answer to that objection is, paradoxical though it may seem, that you never will be able to get a local treatment of a local dispute until you give all. power to the Commonwealth. As I have endeavoured to prove, the present sub-section xxxv. has almost compelled the aggregation of disputes. It is not to be assumed that a Commonwealth Parliament will be less conscious of the needs of the community than a State Parliament: and it is, I think, fair to assume tha.t a Commonwealth Parliament, armed for the first time with a general power over industrial matters, would proceed to exercise it along sensible lines and in the light of prior experience. Let me picture briefly what could be done by such a Commonwealth Parliament. It could completely remodel our industrial machinery; it could eliminate the notion that the way to wage fixation or hours- fixation is through the pro- cesses of dislocation and dispute; it could provide for local tribunals to deal with local matters; it., could make the round-table conference, iii industries of individual factories or in departments pf individual factories, a real and effective thing; it could, by the machinery it set up, encourage the idea that wages and conditions are matters which ought to be sensibly discussed, and, if possible, agreed upon at periodical meetings between employers and employees; it could, by the total abolition of the existing overlapping, put every employer in a position to know exactly what his industrial obligations were, since those obligations would proceed from one ultimate source; it could, in . short, 'bring about what can never be produced under our present divided system - the two great essentials of industrial regulation, simplicity and flexibility.

Then the- right honorable gentleman, anticipating bis own attitude, went on to say -

Such, in brief, arc my own views, substantially altered from wh'at they were a few years ago, upon this all-important question.

Since then he has altered his views again. It is rather regrettable. He continued -

They will, however, not find acceptance, until we have come to learn that constitutional changes arc to be considered on their merits, and in the light of some real working philosophy, and not in the flickering and frequently distorting light of party controversy.

The right honorable gentleman advocated the granting, to the Commonwealth Parliament of powers more sweeping than the Government seeks under the third of the proposals for the forthcoming referendum. Anticipating his later attitude, he said that the damaging thing about a constitutional referendum was that people interpreted questions put before them in " the flickering and frequently distorting light of party controversy".

The other matters raised by honorable members opposite concern terminology mainly. They asked., " What is the meaning of ' benefits to students'? " and " What is the meaning of 'primary products'?" [."hose are two of the gems ' that we have heard from them. I have no doubt that the judiciary is not mentally decrepit. I only regret that certain judges at present are physically incapable of travelling from one State to another' without breaking down, so that the Constitution, which envisaged that the High

Court should move from State to State, is being set aside in that regard. If a judge is incapable of so travelling he might consider it- advisable to resign. However, there is nothing in the history of the Australian judiciary which shows that it is unable to interpret words, and a sensible interpretation of " primary products " can be found. If the proposals referred to wheat, wool, and meat, certain honorable members opposite would be asking to-day, " What is the meaning of wool? Does it mean' woollen jumpers? What is the meaning of meat? Does it mean canned meat?'7 Their arguments would be on the same level as they have been this afternoon, I believe that the Minister for .Works and Housing (Mr. Lazzarini) on one occasion described a certain member of this House as " sitting on the fence with both ears to the ground ". I cannot imagine such a physical situation, but it seems to be a very fine description, of the attitude of the Opposition in this, matter. No honorable member opposite has said definitely that the Opposition advocates a vote against all or any of the Government's proposals at the referendum. The position has been left indefinite. The Opposition is afraid of the matter and has not been courageous enough to state its attitude clearly. One honorable member opposite said that all the actions that we envisage under theproposed powers can be carried 'out by the States, and he had the effrontery to assert that price fixing was one such action. Section 92 of the Constitution binds the States as- it binds the Commonwealth, and, in the case of McArthur v. the Stale of Queensland, it was specifically ruled by the High Court that prices cannot be fixed by States for goods which move from State to State. The assertionof the honorable member to the contrary was a distortion of a judicial interpretation of the Constitution. When thisGo ve rumen t goes to the people at the general elections, it will have no guarantee that it will be returned to office. It proposes to submit these questions to the people at the referendum not knowing which political party will bereturned tq office, and therefore, be in a position to administer the powers now being sought for the Commonwealth..

Parliament. I notice, a lack of confidence on the part of honorable members opposite when they assume that the proposed powers will not be administered by them. That probability has coloured their statements, and they have refrained from defining their attitude. If they are confident of winning the elections, they must expect to have these proposed powers in their own hands! Experience has shown that the Commonwealth must have these powers. The first power asked for concerns many things which have been done during the war. The benefits to students, to which certain honorable members opposite take exception, are undoubtedly welcomed by the people of the Commonwealth. These benefits have transformed our universities. Before the war, the University of Western Australia, for instance, had on its rolls 60 young men from basic wage earning families. An examination in 1943 showed that over 200 men from basic-wage-earning families were then attending the university. That university is free, and does not exhibit the class division which is apparent to me, as an outsider, in certain other universities.


Mr Blain - Is the University in Western Australia as full of " Commos " as those in Melbourne and Sydney?


Mr BEAZLEY - I am not aware of Mie political convictions of Western Australian students, but, as president of the University Labour Club, I had the utmost difficulty in persuading six students to join the club. Therefore, I imagine that not many students hold more radical views than those of the Labour party. The point I make is that benefits to students have been used as a means of social transformation. The interjection by the honorable member for the Northern Territory (Mr. Blain) was very revealing. He seems to believe that if students from basic wage families are admitted to universities, they will become " Commos ". I imagine, therefore, that lie is afraid that, if education is brought to the working classes, there will be, a movement against some of the privileges enjoyed by honorable members opposite. T am certainly opposed to universities being reserved for wealthy " duffers ", and I say that the Government's proposals will enable us to . perpetuate a system of benefits to students which has democratized the universities. I regret that certain honorable membersopposite consider themselves to be threatened by such a process.

Honorable gentlemen have taken exception to the proposed powers concern- * ing health, "because the Government may abuse them ". Any power may be abused. Under the defence power, the Government, could call up everybody on the ground that it wasnecessary to have everybody in thearmed forces, and. it could say that road-making was a part of the defence exercises to be undertaken. Following this reductio adabsurdum line pf reasoning, if any power referred to the Parliament will be abused, the logical conclusion is that Parliament should have no power at all, and having nopower, should disappear. This Parliament has exercised its powers over many years as wisely as any State parliament.


Mr Blain Mr. Blain interjecting,


Mr SPEAKER - Order !


Mr Blain Mr. Blain interjecting,


Mr SPEAKER - Order! The honorable member has been in the chamber only a few minutes, but has continually interjected, regardless of the fact that the -honorable member who is speaking has shown that he does not intend to reply to his remarks. His action thus resolves itself into deliberate interruption. If he interjects again, I shall name hint.


Mr BEAZLEY - What the Government asks for, in the main, is a ratification by the people of powers which the Government has already exercised. Honorable members opposite have paid tributes to the relative industrial peace which existed during World War II. in contrast to the marked industrial unrest during World War I. One phenomenon of labour relations during the war just ended .was the persistent, intervention of the Commonwealth Government to smooth over labour crises ; that is a fair testimony to the wisdom and restraint with which the administration exercised its power over labour. There is not the slightest doubt that, this power would be exercised just as wisely, if it were specifically conferred on the Parliament at a referendum, as it was exercised under the defence power.

We have not had a completely honest statement from members of the Opposition as to where they stand in this matter.


Mr Abbott - That seems to worry the honorable member.


Mr BEAZLEY - It certainly does worry me, because any party opposing a referendum proposal will probably cause it to be lost, and it is important for the people of Australia, not for the politicians, that these powers should be written into the Constitution. Therefore, the Opposition's attitude does worry me, and I frankly admit it. No honorable member opposite has stated honestly whether the proposed powers ought to be granted or not, but there has been a great deal of party political sniping which has been entirely destructive. The proposals should be supported by all who desire to implement a positive programme of economic reform. Every political party in Australia has a programme of economic reform, but only the Labour party is seeking power to implement its programme. That shows clearly the insincerity of the Country party's demands for orderly marketing and the Liberal party's proposals for profit sharing. I repeat that principles. which are not incorporated in specific programmes are merely platitudes, and honorable members opposite convict themselves of propounding platitudes when they make economic proposals but oppose the granting of constitutional powers to enable the Commonwealth Parliament to implement them.







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