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Thursday, 4 April 1946


Mr DALY (Martin) .- In common with other members on this side of the House, for the last few days I have been endeavouring to ascertain the attitude of the combined parties in Opposition to the Government's referendum proposals. The honorable member for Gippsland (Mr. Bowden) following the attitude of other speakers on his side had " a few shillings each way ", to use a racing term, on the proposition. At the commencement of the debate, the Leader of the Opposition (Mr. Menzies) objected to holding the referendum on election day. Then he. suggested that a convention should be summoned to consider constitutional reform, and later he stated that he believed that one or two of the proposed powers should be referred by the States to the Commonwealth. The honorable member for Fremantle (Mr. Beazley) very capably answered the contentions that the referendum should not be held on election day and that a convention should be summoned to consider constitutional reform. So far as I am concerned, the method of' amending the Constitution by the reference of powers from the States to the Commonwealth can be written off completely. After looking at some of the tory gentlemen who are members of the upper bouses in certain State legislatures I am quite certain that they are beyond the age of reason. Progressive movements by this Parliament are not likely to receive any endorsement from some of the individuals who occupy the benches in the Legislative Councils of Tasmania, South

Australia, Western Australia and Victoria. Consequently, I congratulate this Government upon having had the courage to approach the problem of constitutional reform in a direct manner. I consider that the people should be invited to endorse the proposals now before this Parliament. To rely on action by the. upper houses of the State parliaments as a means of clothing the Commonwealth Parliament with additional power would be, in my opinion, pure folly.

Constitutional reform is absolutely necessary. I am firmly convinced that the Commonwealth Parliament should be clothed with full legislative power. Only in this way can it give effect to the mandates which it receives from the people. Under the existing system a great deal of the legislative work of the Parliament is rendered abortive by the decisions of the High Court, which rest, generally, upon technicalities and legal points, and not upon the merits of the measures which it considers. I do not criticize the justices of the High Court personally or politically, because their judgments have affected the legislation introduced by the governments of every political complexion. The fact is that the decisions of the High Court, which have so frequently lacked consistency, have disgusted large sections of the Australian people, who believe that the governments which they have elected from time to time should have the power to govern the country in an efficient manner. In consequence of the limitation of the power of the Commonwealth Parliament, a great deal of duplication ' and overlapping is evident in governmental action. This tends to bring the legislatures into disrepute, and that is a bad thing for the country. Australia is at a great disadvantage in comparison with Great Britain, South Africa and New Zealand in particular, the parliaments of which have sovereign powers and can legislate properly for the purpose of giving effect to the policies of the governments which the people elect. Australia has achieved independent national status, and has a great record of achievement, and it is intolerable that its National Parliament should be limited in its legislative authority. The High Court has been responsible for many inconsistent judgments concerning the validity of our legislation. Its interpretation of the Constitution, for example, has 'become almost a personal matter, for changes in the personnel of the High Court Bench have led to remarkable changes in the interpretation of the Constitution. Many judgments have been on majority decisions. I regard the present state of affairs as entirely undemocratic. It is wrong that the High Court should be able to veto legislation passed by the elected representatives of the people.

An examination of the reports of the many debates which have occurred in this House on the subject of constitutional reform is most enlightening. I direct the attention of honorable members first to a passage from a speech delivered by the right honorable member for Yarra (Mr. Scullin) on this subject in the budget debate on the 18th November, 1938. The right honorable gentleman indicated clearly the far-reaching effects of the inconsistencies of judgments of the High Court, particularly in the interpretation of section 92, and gave instances of the court overruling its own earlier decisions. He did not question the integrity of the justices, but he showed that legislatively we live in a world without any firm foundation. The right honorable gentleman said -

To illustrate how section 02 of the Constitution operates in respect of the marketing and handling of goods between State and State, .1 cite the FoggitJones case which was heard before the High Court in 1916. Foggit 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 States 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 Ave to two that the legislation was valid. Then in 1920, the High Court in the McArthur case held by a majority of five to two that the decision in the Duncan case was wrong and that the decision in the Foggit Jones case was right. Then the Privy Council in 1036 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 udt 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 . . .

Later in his speech he said -

The decisions of the court are reached, not on the merits of the question, hut on the capacity of Parliament to pass legislation. Mr. Justice Rich, -in -the 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 as sailing directions upon which I m(ay set my course, however unexpected may be" the destination to which it brings mc".

He sat his course from 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.

I desire now to refer :t,o a few notable examples of inconsistency in the approach to constitutional proposals 'by members of this Parliament. My quotations will also indicate tb at urgent need exists for an overhaul of the Constitution, and for that reason I 'consider that the introduction of these bills is a step in the right direction. Proposals for the alteration of the Constitution have received endorsement at different times from the leaders and members of all parties in this Parliament. I direct attention to a speech delivered by 'the present Leader of the Opposition (Mr. Menzies) in this House on the 22nd November, 1938 (Hansard, vol. 158, page 1817). The right honorable gentleman, who at that time was AttorneyGeneral, was dealing with the industrial powers of the Commonwealth. He said -

It seems 'curious, looking back on the matter at this stage, that the Constitution should have conferred upon this Parliament power to control the problems df customs and excise, power to control the whole fiscal policy of the continent, and made it an exclusive power, and yet, at the same time, should have 'refrained from granting 'to this Parliament power, the ancillary power, as I would have thought, to deal with the wages that should be paid and the conditions that should be observed in the great industries 'which were bound to be established and fostered under 'the fiscal policy of Une country. The' only industrial power given to this Parliament is :power 'to deal, through the agency of arbitration and conciliation, with industrial disputes of an interstate 'kind. U 11 less some dispute can 'be created, and unlessthat, dispute -can be 'made' Of an interstate character:, there is no Commonwealth ..jurisdiction and no Commonwealth instrumentality to deal with it. The result has been that for very many years in the history of Australia, 'men in organized labour, who have nodesire to become involved in disputes, havebeen compelled to make them in order to invoke the .jurisdiction of a federal court. That anoma'ly is one which will continue to exist until more effective treatment of it is made possible by giving complete industrial power to the Commonwealth of Australia.

Yet 'that right honorable gentleman is leading the 'van in the attack on these bills. I shall refer now to some remarks made -in the -House on the 23rd February, 1944, by the honorable member for "Warringah (Mr. Spender) whose speech on these measures I await with deep interest. The honorable member, in debating the measure that was then before Parliament for .'the alteration of the Constitution, 3aid, as reported in Hansard, -vol. 177r page 469 -

Except in respect of the delegation of legislative powers to those to whom the administration of 'this country is entrusted, and subject to .]) reservation of the right of free speech, there is no power which T shall refuse to giveto this Parliament.

As the honorable member was so strongly of the opinion that additional power should be vested in the Commonwealth Parliament it will be interesting to hear his speech in this debate. The Leader of the Opposition, in his initial speech as a member of this Parliament, was at great pains to assure the people that he believed that the Commonwealth Parliament should be clothed with wider powers. He considered additional power to be so necessary that he said he would set his political course with that end in view. Itwill be- appreciated from. -what I have said that the opinion is .generally held that constitutional reform is essential to the true development of this country. ' i\t one time or another many honorable members opposite have supported proposals for extensions of power of the nature now proposed by this Government. I. have been agreeably surprised at some of the -remarks df honorable members opposite in this debate, though I must confess that it is exceedingly difficult to. tell exactly how they propose to vote. The honorable member lor Wentworth ("Mr. Harrison) provided us with a striking example of the inconsistency and disunity that exist amongst members of the Opposition on the subject of constitutional reform. The Leader of the Opposition in his speech went to .'great pains to explain to members that the 1937 referendum .proposal on marketing was entirely different from the present proposal. The honorable member for Wentworth and Deputy Leader -of the Opposition states that the proposals are more or less identical. I do not wish to "split straws" and I am prepared to accept the proposition of the honorable member for Wentworth in regard to the present marketing proposal. There is, therefore, no excuse for every member of the Opposition not getting behind the Government and supporting the proposal in regard to organized marketing when it is submitted to the people. I mention this in passing merely in order to illustrate the disunity that exists among honorable members opposite, and the false approach which some of them are making to these proposals.

T.   intend to deal at some length with the matter of social services. The honorable -member for Wentworth went to great pains to convince the people of Australia that a terrible state of affairs would exist if the Commonwealth were given power to legislate in respect of health and medical services, and generally in connection 'with any other matter in which it could intervene. He mentioned at the outset the criticism by Dr. Hunter, before the Social Security Committee, of certain proposals which that gentleman considered this Government would bring forward in connexion with a national health and medical scheme. Dr. Hunter is, of course, strongly biassed against any form of medical service which would interfere with the incomes of the doctors whom he represents in that powerful organization, the British Medical Association. It would be entirely wrong to regard his opinion as impartial, and an entirely false impression would be conveyed to the people against any scheme sponsored by the Government if founded on. views which he has expressed.

I believe that whether or not the Commonwealth be given the powers that are now being 'sought, the time is not fardistant when a national health scheme will 'have to receive the consideration of this Parliament. It is not right to say that any form of salaried service which might be introduced with Government backing would not meet with the approval of the medical profession or the people as a whole. I shall .refute the honorable gentleman's assertion that a salaried service would regiment the people, by quoting from a- book written by Sir Raphael Cilento, entitled Blue Print for the Health of a Nation.Sir Raphael Cilento is -a well-known medical man who, in Queensland, occupied the very important position of Director-General of Health. In this work, referring to a national health service, he -said -

The outline scheme adopted. as a basis for discussion by the National Health and Medical Research Council at its Twelfth Session, concluded that a service complete in essentialscould he provided to all Australia by some- 4.000 full-time salaried medical practitioners, -properly distributed. A total of 7,200 medical nien could provide a service better than that h t present; -available hi any country in theworld.

Later, he said -

It is not perhaps realised, however, how many of them are quite prepared to earn their living on a salaried basis. In Queensland ii> 1,037, in response to a strictly confidential questionnaire sent out to every registeredmedical practitioner, a record number - morethan 99 per cent, of the profession - completed and returned the reply form. Of these, 97 per cent, expressed their willingness to he associated with the Government in a part-time or full-time capacity, 69 per cent, of them agreeing to accept employment in a State .service unconditionally, and 28 per cent, qualifying their consent by stating (in accordance with the request contained in a circular sent out immediately by the Queensland branch of theBritish Medical Association), thai it was subject to terms and conditions being approved by the branch.

That gives an indication of not only the attitude of members of the medical' profession, but also the personal opinion of this talented medical man, after yearsof research, as to the view of the medical profession generally on any form of national medical service in this country-

In Britain, a Labour government has just introduced into the House of Commons a National Health and Medical Services Bill, under which every person in Britain will be entitled to a free, comprehensive health service, including hospital and specialist services, drugs, &c. Under the scheme, doctors will receive salaries, varying according to their existing incomes, plus a yearly fee, and compensation in a number of minor ways. This shows clearly the tendency throughout the world to cater for the health needs of the people on a comprehensive scale, and so as to eliminate many of the anomalies and injustices which have existed under the " free for all " system of medical attention that exists in this and many other countries. I am dealing at some length with the observations of the honorable member for Wentworth, because he deliberately attempted to impress upon the people that the proposal of the Government would have the effect of regimenting every doctor, and that nobody except a salaried doctor would be able to practise. I can see no reason why a national medical service should not function on a salaried basis in competition with private practice, if necessary. Any faults that might exist would be due, not to the scheme itself, but to attempts to sabotage it, and to lack of co-operation by properly skilled personnel. The honorable member for Wentworth said that the Government of New Zealand had introduced a free medical service - similar to, and no doubt better than, that which has been introduced in Great Britain - and cited figures to show how it had been abused. I have taken the trouble to obtain a few particulars in regard to the .medical and social services that are in force in that dominion. I do not know where the honorable gentleman obtained the information on which he based his statements. One of the reasons for the existence of the state of affairs to which he referred, if it does exist, is that the scheme is being sabotaged by a ' number of members of the medical profession who should be co-operating with the government in order to make it a success in the interests of the people of that dominion. In an article entitled How Social Security Works in New Zealand,

Lesley Lipson, Professor of Political Science in the University of New Zealand, said -

The policy has been assured of sympathetic administration for enough years io take root in the country's economy. Mental habits have been formed which now accept thi: system in essentials and regard it as normal. The social security book is fixed in every citizen's stereotype of his relation to his Government.. In the recent election of 1943, the programme of the National party opposition (a somewhat conservative blending of farmers and business men) endorsed social security. They could do no other. For any future Ministry to abolish the scheme would be its political hara kiri.

That explains the position in New Zealand in regard to the scheme which the honorable member for Wentworth criticized to-

The medical profession in New Zealand has long enjoyed ampler financial returns and higher social prestige than any other vocation. Organized individualistically on a competitive basis, it has eschewed clinics and group medicine. But what it does share in common with the Labour movement is an intense solidarity. With its powerful trade union the New Zealand branch of the British Medical Association, it secures an internal cohesiveness that is the enVy of others; and through its grip over the New Zealand University's one medical school, it has kept the supply of doctors limited to the quantity it thought sufficient.

By absolute regulation and by methods which would make the maligned coal-miners in this country blush with shame, the British Medical Association in New Zealand has endeavoured to sabotage the excellent medical scheme established in that country. That is the view expressed by a talented man in New Zealand, and it gives the lie direct to the statement of the honorable member for Wentworth (Mr. Harrison) that' the medical scheme in New Zealand had failed, and that the introduction of a similar scheme in Australia would not bc in the best interests of our people.

I come now to the Constitution Alteration (Social Services) Bill. As honorable members are aware, the Commonwealth's power under the Constitution in respect of the provision of social services is very doubtful. Section 51 gives to the Commonwealth express power to provide only old-age and invalid pensions, and it also- gives power to the Commonwealth in relation to insurance other than State insurance. '

But the Commonwealth's power in respect of any other kind of social service is very doubtful. From the legal opinions expressed in this House, honorable members will, no doubt, . recognize that the legality of existing social services may at any time be challenged. During wartime the Commonwealth enjoyed considerable scope in respect of these matters, but already its power to legislate for social services is being challenged. It is our duty to . place all our social services on a solid constitutional basis. In common with other nations, Australia realizes the importance of social security in the new world order. Other countries, such as New Zealand, Canada and Great Britain, realize that they must present to their people not only a policy of full employment, but also a comprehensive scheme of social services, such as is embodied in the measures now before us, which embraces all sections of the community. I ask for leave to continue my remarks to-morrow.

Leave granted; debate adjourned..







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