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Tuesday, 23 July 1946

Mr SPENDER (Warringah) .- It is surprising that we have had no second-reading speech to initiate the debate on this bill and that, although the honorable member for Indi (Mr. McEwen) has criticized the bill, no one on the Government side has risen to meet his criticism or to explain the bill. It is extraordinary that a bill such as this, which, as I shall be at pains to point out, contains some particularly novel features, is allowed to come before the House without any explanation of it from the Minister for Commerce and Agriculture (Mr. Scully) and without any member of his party being prepared to express his opinions of it.

It is necessary to look at the bill to see precisely what the bill does. It must be taken, of course, in conjunction with the Wheat Industry Stabilization Bill, which preceded it. I shall say nothing about the earlier bill and shall confine myself to the terms of this bill, which is entitled "A bill for an Act to impose a charge upon the export of wheat and wheat products ". The substance of the bill is contained in the following clause: - 4. -(1.) A charge is imposed and shall be levied and paid -

(a)   on all wheat harvested on or after the first day of October, One thousand nine hundred and forty-five, and exported from the Commonwealth, whether by the Board or by any other person, on or after the first day of December, One thousand nine hundred and forty-five ; and

(b)   on all wheat products manufactured from wheat so harvested which are exported from the Commonwealth, whether by the Board or by any other person, on or after the first day of December, One thousand nine hundred and forty-five.

That clause contains a very serious retrospective provision. Retrospective legislation is seldom defensible, but when it imposes a financial levy in respect of transactions that have already taken place it is particularly objectionable. I have not heard one word from the Government in justification of that. The clause continues - (2.) Subject to a lower rate being prescribed by the regulations, the rate of the charge per bushel of whefat exported by any person, other than the Board, shall be fifty per centum of the amount by which the price per bushel for export of fair average quality bagged wheat free on rail at the port of export, as declared from time to time by the Board, or such lower price as is prescribed, exceeds Five shillings and two pence. (3.) Subject to a lower rate being prescribed by the regulations, the rate of the charge per bushel on wheat of any season exported by the Board shall be fifty per centum of the amount by which the average price per bushel free on rail at the ports of export for. fair average quality bagged wheat of all the wheat of that season exported by the Board, or such lower price as is prescribed, exceeds Five shillings and two pence.

Shorn of its legal verbiage, that means a levy of 2s. 2d. a bushel on wheat harvested after the 1st October, 1945, and exported on and after the 1st December, 1945. That feature of the legislation must be considered in relation to what was the position of the wheat-growers when their 1945-46 crop was acquired from them. Harvesting, I understand, commences near the end of the year - this bill names the 1st October - and continues to January and sometimes February of the ensuing year. The substance of my attack against this bill is that clause 4 relates to five crops of which one is a crop already garnered. It is important to direct attention to the law of the land. When one knows that, one sees how fundamental is the objection to this legislation. The Constitution provides that the Commonwealth shall not acquire any one's property except on "just terms", and, of course, it cannot acquire for any purpose except a Commonwealth purpose. I leave aside for the moment any question of whether this bill can be said to be for a Commonwealth purpose. Elsewhere, no doubt, at some time that will be debated. On the assumption that the legislation is in that respect valid, I confine my remarks to the proposition that the last harvest was taken from the wheatgrowers, who, under the Constitution, and under the National Security (Wheat Acquisition) Regulations, were entitled to compensation on just terms. Having reached the stage at which they are entitled to that compensation, they are to be deprived by this bill of 2s. 2d. a bushel of that compensation. There can be no escape from that. It has been said in the courts on more than one occasion that no ministry can escape its responsibilities under the law to pay just compensation. In the case, Apple and Pear Board v. Tonking, which was, I think, the first major case on this matter decided after the commencement of hostilities, the court made quite clear that even where the Government provides, as it does in the wheat acquisition regulations, that, on the acquisition of wheat or any other commodity by the Commonwealth, compensation on a specified basis shall be paid, that compensation, whatever may be provided in the regulations, shall be just compensation, in accordance with the law of the land. This provision of our Constitution was modelled largely on the Fifth Amendment of the American Constitution, which says, in substance, that no person's private property shall be expropriated except on the basis of proper compensation judicially determined. It is important to look at the provisions of the National Security (Wheat Acquisition) Regulationsunder which this last crop was acquired; and I propose to show that despite those regulations, giving to the wheat-growers a specific basis of compensation, the Crown, in a most reprehensible manner I contend," now proposes to say to the growers, " True, you are entitled to certain compensation on a basis laid down. in the regulations, but do not intend to pay it to you, because simultaneously we propose to impose a levy of 2s. 2d. a bushel ". In respect of the last crop - I am directing my attention to the last crop - regulation 19 provides -

The basis of the compensation to be recommended by the board shall be the rate or rates per bushel arrived at by reference to the surplus proceeds from the disposal of the wheat, but from the compensation determined by the Minister, the board may make deductions on account of any or all of the following . . .

I now summarize - first, the price or value of cornsacks; secondly, transport charges; and, thirdly, dockages. It is quite plain, therefore, that what the regulations entitled the wheat-grower to when the last crop was acquired was the full realized value of the crop less those specific deductions. Thatwasa contract made by the Crown in respect of that <3top. The Crown now proposes by the objectionable manoeuvre contained in this bill to escape from that responsibility. Most of this crop has been realized. We know that the export price at present is approximately 10s. a bushel. Therefore, it is relevant to quote what the learned Chief Justice, said in respect of the Australian Apple and Pear Marketing Board when the case which I have mentioned came before the High Court. He was dealing with the argument that had it not been for the fact that some board had the responsibility of marketing apples and pears, the grower, perhaps, would not have been able to market his crop at all, and, consequently, that fact had to be considered when determining fair and just compensation. That argument was rejected by the High Court which said, in effect, that it had not to deal with a hypothetical position, that it knew what this particular quantity of fruit brought in the market, and that was the amount of money which the Commonwealth, by law, was compelled to pay. The Chief Justice said -

It has been argued that the value of the fruit should be determined by taking opinions as to what, in the circumstances of ( 1 ) glut in the market (2) the fact that the board might not se] 1 the plaintiff's fruit at all, a purchaser of the fruit would have been prepared to pay for it. In my opinion the court is not remitted to any such speculation in. this case. The defendants cannot say that the fruit is worth less than the amount for which the defendant board actually succeeded in selling it. When there is evidence of the price which goods have actually brought when marketed in an ordinary course it would be contrary to common sense, when determining their value, to ignore this direct evidence and to seek evidence consisting of opinions as to what the goods would, upon certain hypotheses, be likely to bring when so marketed.

What is the result in respect of the 1945-4.6 crop? The result is that under the Wheat Acquisition Regulations, which cannot in any event override the express law of the Constitution, there was an obligation upon the Wheat Board, having acquired this 'wheat, to pay its realized value. In a way which I can only say is morally wrong, if not legally indefensible, the Government proposes now to do indirectly what it 'could not do directly. No honorable member could contend that the Common wealth is not obliged under the terms of the law as it now stands to pay to the wheat-grower the full realized value of his wheat, less the expenses of marketing. By this bill the Government proposes to escape from that responsibility, and to do indirectly what it could not do directly. It proposes to pay 2s. 2d. a bushel less than the realization value of the wheat after the deduction of marketing expenses has been made. Upon what ground can that be defended ? This is, of course, part and parcel of the' stabilization scheme. But does that fact justify this action? If a levy were made divorced from the stabilization scheme, and it was made retrospective, I venture to say that every honor able member conscious of his responsibility would want to know why it was being made retrospective. And' that question has still to be answered, notwithstanding the fact that it is a part of the total scheme.

From this bill one can only draw the inference that a similar contention will be raised as was raised in respect "of the Wheat Industry Stabilization Bill, namely, that the justification for this extraordinary, and I say, advisedly, reprehensible, action of the Government in expropriating from the wheat-farmer what was his real compensation, is that this proposal was a subject of contract, or .arrangement, between some body who purported to represent all the wheat-growers and the Government. A brief analysis will show how utterly ridiculous is such a suggestion. In the first ' place, no one can contract my rights away. Whatever rights I have under the law, no one can contract them away. Even if I am the only one who remains out of a scheme I am entitled to those rights. And in this particular case, unless I am wrongly advised, the body which claimed to represent the wheat-growers--

Mr Scully - Under the honorable member's contention we cannot have a stabilization scheme.

Mr SPENDER - Apparently, the Minister did not listen to my comment upon the Wheat Industry Stabilization Bill. If he did, he ' certainly did not answer it. The stabilization scheme should be based on crops prospective, not retrospective. The Government may as well seek to justify going back to the 1941 crop as the 1945 crop, for it cannot in principle justify applying the scheme retrospectively to the one any more than to the other. In principle, they stand upon the same basis.

I return now to the only argument that I have heard to justify this proposition. If any other argument can be adduced, I hope that the Minister will not hesitate to tell the Parliament and the country. But the only argument which I have heard is that an organization representing, it is said, all the wheatgrowers agreed to this plan on their behalf. Must it not be plain that it could not have agreed on behalf of all the wheat-growers, because the honorable member for Wimmera (Mr. Turnbull) said that the wheat-growers in his electorate have never supported the scheme? Even if the organization did represent the majority of the wheat-growers, it could not bind . the minority. But, in any event, this body represents only a minority of Australian wheatgrowers. Therefore, on analysis, there can be no justification for the scheme on that ground. When that argument has been disposed of, where does the plan rest? What justification does the Minister say exists for a retrospective provision to enable the Government to extract from the pocket of the wheatfarmer what is in reality his money? The regulations prescribe that when the wheat is expropriated or acquired, the grower loses his property completely in it upon the publication of the notification in the Gazette. That took place in respect of the 1945-46 crop. His only recourse is a claim for compensation, and that is measurable in a finite financial amount, but it will not be paid to him. The Government, for the purpose of " stabilizing" the industry - I use the Minister's word, although I do not consider that it is stabilization at all - says to the farmer who harvested the last crop, "You must pay into a fund an amount of 2s. 2d. a bushel on all wheat exported in order to stabilize the industry in future ". Irrespective of whether or not the grower remains in the industry during the next five years, he must make that payment.

When we are dealing with matters of principle, we must not disregard the interests of a few people in the community. If a wheat-grower dies this week and his family is compelled to sell the property, what will be the result? An amount of 2s. 2d. a bushel will be taken from that wheat-grower's returns to " stabilize " an industry in which he and his heirs no longer have any interest. That procedure cannot be justified.

Mr Menzies - And for no benefit, because on that hypothesis, he would never have had any advantage from the new scheme.

Mr SPENDER - Exactly. In the circumstances which I have visualized,, the grower will derive no benefit at all from the scheme; but, none the less, an amount of 2s. 2d. a bushel will be extracted from his pocket. I do not believe that honorable members will in such circumstances remain silent when the Government does not attempt to explain the purposes of this bill.

Mr Menzies - Perhaps the Government has no explanation.

Mr SPENDER - That may be true. The Government introduced the Wheat Industry . Stabilization Bill, and when after an interval, the Leader of the Opposition (Mr. Menzies) resumed the secondreading debate, the Government introduced the Wheat Export Charge Bill. No doubt the Government considered that by that means it could dispose of this objectionable and miserable bill without much debate.

Mr McEwen - The thimble and pea trick.

Mr SPENDER - I need not devise words to describe it; the facts speak eloquently for themselves. But outside this Parliament, strong words will be used to describe this attempt to deprive wheat-growers of their vested legal rights.

Mr McEwen - It is a plain " steal ".

Mr SPENDER - Is any honorable member opposite prepared to defend this bill, or- even attempt to reply to the argument which I have directed to it? The bill is not justified by general phrases about the " necessity to stabilize the wheat industry ". Every honorable member on this side of the chamber contends that there should be a wheat stabilization scheme, but the gravamen of our criticism of this bill is that it deprives the wheat-farmer of his constitutional rights in respect of his last crop. Of course, the argument can be advanced, " To have a stabilization scheme, we must start somewhere, so we shall begin when prices are high". Appparently, the next. argument is, "It does not matter, whether you decide to start from the end of last year or the year before, or you are breaking the spirit of the law, or whether you are, in reality, extracting money from the wheat-grower's pocket". I notice that the honorable member for Riverina (Mr. Langtry) is in the chamber. I have for the honor able, gentleman almost an affection when he sings those pleasant ballads with which he sometimes regales my ear. But I require from him something more than ballad-singing. I invite honorable members opposite, who represent wheat-growers, to attempt to .justify ih is expropriation. I do not want them to avoid the issue by using general phrases about stabilization. I do not want them to tell me that some organization contracted on behalf of the wheatgrower when obviously it had no legal right to do so.

The ACTING DEPUTY SPEAKER (Mr. Barnard) . - Order ! Honorable members. will not be permitted to discuss, under this bill, the general principles of stabilization.

Mr SPENDER - I hope not, and I hope that you, sir, are still in the chair when honorable members opposite attempt to justify the bill on those grounds. I invite any honorable member opposite, who- represents a wheat-growing constituency, to attempt to justify this expropriation of the wheat-grower to the amount of 2s. 2d. a bushel.

Mr Burke - Does the honorable member say that individual contracts should be made with the growers?

Mr SPENDER - No ; I contend that no organization representing the wheatgrowers can deprive a- wheat-grower ofbis legal right. That is my proposition. If the honorable member for Perth (Mr. Burke) believes in the justice of this particular scheme, he can justify the antedating of this bill so as to cover the last three or four harvests. On what ground ? Because, he will say, some organization which pretends to represent all the wheat-growers spoke on their behalf. Let us have no more of the suggestion that any body can speak on behalf of any individual unless that person gives to it the right to do so ! I am satisfied that the majority of wheat-growers did not speak through that organization. Even assuming that they did, what right has anyone to deny to the minority, ho matter how small, its legal rights under the Constitution? I rest my. argument, not upon legal grounds only, but also upon high ethical grounds. The ethical grounds are that when a man's property has been taken from him by the Crown, he shall be paid the full measure of its value. The Crown should not, by any manoeuvre^ strategem, seek to avoid that liability. If that proposition is incorrect, then, in the words of the honorable member for Indi (Mr. McEwen), there are no limits to which this vicious procedure can be extended. It could be said that, for the purpose of stabilizing the funds of the Commonwealth to meet claims for compensation made by persons whose property is resumed, there shall be imposed upon all property which is resumed a levy of so much in the £1. There is no difference between one proposition and the other. Therefore, I record my objection to this bill upon the following grounds: - First, it is retrospective; secondly, by its retrospectivity, it extracts from the wheat-grower what was his money, if not at law, then certainly in the intendment of the Constitution; and, thirdly, it cannot 'be justified, ;in respect of this crop, as being necessary for the stabilization of the wheat industry.

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