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Thursday, 13 April 1961


Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - Mr. Speaker, I am not quite sure what is the purpose of the motion. If it is to give us an opportunity to discuss the Constitutional Review Committee's report with any good sense and the benefit of preparation, the purpose is an idle one. because that cannot be done within the confines of the time allowed for debate on a motion of this kind. If, of course, the purpose is to do what the motion suggests as it reads literally - to ask this House to express an opinion that the recommendations, meaning all of them, of the committee should be submitted to the people for their approval - I can hardly imagine a more impracticable and foolish suggestion. For the moment, I have not added up the number of recommendations, but there are more than twelve in relation to concurrent powers.

Proposals in relation to the committee's report are undrafted. No sections have been drafted and no provisions are ready for submission to a referendum. But even assuming that provisions were ready for submission, what rs the proposition? Is it that we afford the people an opportunity to vote at a referendum on the amendment of twelve, fourteen or fifteen powers, give them a document somewhat akin to the committee's report, together with all the contrary documents which will be circulated, and ask them to pass upon these things with any show of good sense and reason? That would be utter folly. That would be foolish. It would not be fair to the people of this country to ask them to vote on a great number of disparate matters in such a fashion. If the purpose of the motion is. for some political motive, to indicate that the Opposition is anxious to increase the powers of this Parliament, I understand it. The Opposition finds it very easy to suggest that the powers of this Par liament be greatly increased, because the Australian Labour Party is interested in gathering as much power as possible into as few hands as possible wherever it can do so.


Mr Calwell - Nonsense.


Sir GARFIELD BARWICK - That is basic Labour policy, whether in local government, in the State sphere or anywhere else. It is very easy for the Leader of the Opposition (Mr. Calwell) to say: " The more the merrier. Let us have more power." He says, "We will support the recommendations of the Constitutional Review Committee ". Who is " we "? Who can speak for the Australian Labour Party in this House? What sort of an undertaking is this?


Mr Pollard - Humbug.


Sir GARFIELD BARWICK -" Humbug " is the right word to use in respect of the statement, " We will support the recommendations of the Constitutional Review Committee ".

Let me follow that up with this point: The Leader of the Opposition constantly says that because the report is a unanimous or nearly unanimous report by Commonwealth parliamentarians, Australia will accept it. What of the States? They have not been consulted about this. What do you think the States will say about it? What do they think of the suggestion that twelve or fourteen additional powers be given to the Commonwealth?


Mr Calwell - Concurrent powers.


Sir GARFIELD BARWICK - I thought the Leader of the Opposition would fall for that. He says that these are concurrent powers. That is the silliest idea of the lot. When the Commonwealth has concurrent power, it has paramount power, because, by virtue of section 109 of the Constitution, as soon as it legislates it displaces the States from the field. To say that these are merely concurrent powers is to perpetrate a thimbleandpea trick on the States and the Australian people, because giving the Commonwealth concurrent powers means giving it more permanent power.

The report of the Constitutional Review Committee is a remarkable document and

I pay tribute to the energy and industry of those who prepared it. But my task is to see whether I can make recommendations to a government which, when it suggests an amendment of the Constitution, has a responsibility to consider various basic factors. Let me enumerate some of them. The first is that the Government must be sure that the amendment it proposes is not designed merely to make the task of the Federal Parliament easier. The test is: Will this amendment be for the benefit of the people as a whole, and will it improve the instrument as a means of securing the freedom and the liberty of the people?


Mr Calwell - That is the test.


Sir GARFIELD BARWICK - Exactly. It is not to be considered merely from the point of view that it would be nicer or easier if the Parliament had more power.

The next thing the Government must have in mind is the matter of form. We must consider whether the people, when these matters are presented to them, will be able to understand them and pass judgment upon them sensibly, with sufficient knowledge and understanding. It is not consistent with that consideration to suggest that we should put a whole number of propositions together in a referendum paper.

Lastly, the Government must consider practicalities. You do not run a referendum for threepence, you know. There is a question of expense to be considered in connexion with referenda, and we must determine whether a particular referendum is a practical proposition, and whether there is or is not some tolerable chance of the proposals being accepted by the people. We have all had some experience of these things, and we can gauge what the likelihood is of the public accepting referendum proposals.

When we turn to the report of the Constitutional Review Committee, using the criteria I have mentioned, we should, I think, say to ourselves, " Is this addition to the power indispensably necessary? " We should not say, simply, " Is it convenient? ", but rather, " Is it necessary? Has there been a demonstrated need for this change? " If we found that there was a demonstrated need, and that there was no other way of achieving the desired result, then we would be warranted in putting the country to the expense and the difficulty of a referendum.

This report is a very lengthy document It has to be gone through very carefully, and it is being gone through very carefully. I do not want to do more than take a couple of illustrations from it, because I think I can make my points very clearly with them. I will take them in a field in which I have been doing quite a deal of work during the past months. 1 refer to the subjects of company law and of restrictive trade practices. What the Leader of the Opposition suggests is that we put the country to the expense of a referendum with respect to the corporation power. The convenient place to find the recommendations of the committee is in Appendix C of the report. On page 204 we find the following paragraph: - 134. The Committee is of opinion that the National Parliament should have a power over corporations sufficient to enable it to enact a uniform companies law applying throughout the Commonwealth. At the same time the necessary constitutional alteration should be so framed as not to confer a power to regulate the business activities of corporations.

The committee, of course, did not get to the point of drafting the provision that would be needed. It simply made the recommendation that the Commonwealth should have power to make laws with respect to corporations. It said, further, in paragraph 135, sub-paragraph (2): -

The power to make laws with respect to corporations should not authorize the Parliament to make laws with respect to the trade, commerce or industry of corporations or which apply to corporations of a Stale, including municipal corporations, formed for governmental purposes.

I pause there to say that when the draftsman settles down to frame something for inclusion in an organic document he finds himself faced with a very different task from putting a similar provision in a statute. When he puts it into an organic document it is then in the hands of the courts for interpretation, and it cannot be changed without another referendum and a further constitutional change. In the case of a statute a draftsman's error or miscalculation can be cured by the Parliament, but an error in an organic instrument cannot be corrected in this way.

If the draftsman were set the task of hedging around this power to the extent described he would take many months to do the necessary drafting in relation to that matter alone. Those of you who have had experience of drafting will know that I do not exaggerate. Let us put this against my criteria - is it indispensably necessary and is there no alternative way of achieving the desired result? All honorable members know what has been achieved already. We are about to bring down uniform company laws throughout the country, without the expense of a referendum and without the risks attendant upon putting qualifying words in a constitution to be interpreted by courts, words which cannot be altered except by means of a referendum.

There is an alternative way of achieving the desired result. The House knows that we have entered upon a new phase of CommonwealthState relations, and thar we have been able to get together a standing committee of Attorneys-General, who will endeavour to achieve uniformity in one field after another. The task of formulating a new company law was attacked, and very successfully attacked. The AttorneysGeneral have now agreed upon the provisions of a very comprehensive company law which will be enacted by each State, and also by this Parliament for operation in the Territories. There will be a standing committee of Attorneys-General to see that it is kept in line and that we do not have aberrations in one State' or another in matters of principle, brought about by amendment.

I should have thought that this was an eminently practical and sensible way of achieving a very desirable result. Why should we put the people to the expense of a referendum if we can achieve the result otherwise?


Mr Calwell - You know it is a useless procedure.


Sir GARFIELD BARWICK - I know nothing of the kind. It will be very beneficial.

Let me now turn to the matter of restrictive trade practices. The suggestion of the Constitutional Review Committee is that we should re-establish the Inter-State Commission, which was never a success. In the few minutes I have left I will try to explain what limitations on the power of the Parliament are suggested in this recommendation. It would not give the Parliament an effective power at all. I, for one, would want to ensure, if I were making a change, that the Parliament's power with respect to these practices was much more significant than this committee suggests. The committee recommends in paragraph 142 -

(1)   The Commonwealth Parliament should have an express power in section 51 of the Constitution to make laws with respect to restrictive trade practices found by the Inter-State Commission to be, or likely to be, contrary to the public interest.

Once you put those words into the Constitution the Parliament would be no longer in control of their meaning. The control would pass to the courts. That is the kind of thing that happened in America, where, after the passage of the Sherman Act, volumes of decisions and judge-made law accumulated. This has made the provisions in America governing restrictive practices and monopolies top-heavy, and the Justice Department, because of the great cost of litigation, is able to enforce rules which, perhaps, were not orginally intended. The committee further recommended, in paragraph 142, sub-paragraph (2) -

For the purposes of the power described in subparagraph (1) above, the Parliament should have power Vo make laws for referring questions to the Inter-State Commission for inquiry and report, and the Commission should be vested with power to make its inquiries and report to the Parliament.

The suggestion is that the power of this Parliament to make laws should depend on what the Inter-State Commission thinks and does. That is back to front. Why should this Parliament be at the mercy of the Inter-State Commission, both as to the interpretation of public interest and as to what should be done in a particular case? This recommendation makes the power to make laws contingent on what the Inter-State Commission thinks. It is a surprising recommendation, really.

I am chided here because I will not slavishly put to the people the proposals that are suggesed in this report. What I have been doing - and, I would have thought, rightly doing - is considering this report, together with my officers, and endeavouring to make up my mind - not in haste, I will agree, because it would be foolish to do it in haste - on whether these recommendations measure up to what I would think are basic requirements. Although I pay, as we are bound to pay, great tribute to the energy and the work of this committee, it must not be thought that because the members of the committee said something unanimously, it must be so right that the Government is bound to launch a series of referenda. In considering what is right in relation to this document we must always apply this test: What will best protect the freedom and the liberty of the people? That, after all, is the basic consideration.







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