Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Thursday, 8 July 1915


Senator BARKER (VICTORIA) - Hear, hear ! Whom do they enrich ?


Senator GARDINER - They enrich the whole of the people of the Commonwealth by restoring to them - if I may use the word - the powers that the framers of the Constitution fondly believed they had conferred upon the Australian Parliament. As a matter of actual fact, repeated decisions of the High Court have shown that the powers which the framers of the Constitution imagined they conferred on this Parliament did not really exist. I have here a long list of decisions of the High Court on Bill after Bill passed by this Parliament by the votes of many of the very men who were members of the Convention that framed the Constitution. If the members of the Convention did not believe they had the constitutional right to pass those measures they should never have fooled the Parliament and the country by passing them.


Senator O'LOGHLIN (SOUTH AUSTRALIA) -Colonel O'Loghlin. - Liberal Ministries.


Senator GARDINER - Liberal . or Fusion Ministries, or Progressive Democrats, or whatever name they were passing under during the various stages of their existence.


Senator Findley - It would be interesting, and perhaps historical, if a list showing the names of the Bills, and by whom they were introduced, were published in the columns of Hansard.


Senator GARDINER - It would be extremely interesting, but as I do not wish to cover all the ground myself, I shall be pleased if, before the debate is finished, some other honorable senator will supply my short-comings in that respect.


Senator Millen - It would indeed be appropriate to introduce that into a nonparty debate.


Senator GARDINER - I did not make a single party statement until I got a party interjection from the other side, and I shall not allow an interjection to convey an impression that I am dealing in a party way with a measure of this kind, especially when, as a matter of fact, I can prove that nearly every Bill passed by both Houses of this Parliament, and subsequently disallowed by the High Court, was assisted in its passage by the very men who sat on the Convention that drafted the Constitution, and who firmly believed that they had power to legislate in those directions. I shall quote their own words to show that some of the leading men belonging to the party opposite actually asked for consti tutional amendments of such a nature as we are now introducing. So much for the claim that these are party measures. I say to the small but intellectual Opposition, "I invite amendments to these Bills that will give us the powers we are asking for in a better form than that in which we have put them forward." I invite them, when the Committee stage is reached, not to make general statements that our Bills are too cumbersome, and take too large powers, but to draft in clear and definite language, amendments which will be an improvement. I promise that the Government will be prepared to accept anything better than wo have proposed. If our draftsmanship shows that we are taking more powers than are needed, and their draftsmanship can clearly define the powers that are needed, I am prepared to give their amendments the fullest and freest consideration. That offer was made in the other House by the Attorney-General - which reminds me that, although on previous occasions the Bills were passed in another place by the necessary majorities, and with fairly big minorities against them, they were passed on this occasion in another place by a unanimous vote.


Senator Millen - A unanimous vote, and the " gag."


Senator GARDINER - I am pleased that they were passed at a time like this without opposition in another place, and I hope the electors outside, when the Bills come before them, will follow that splendid example; and, even if they cannot see their way to vote for them,, will allow the people who voted for them on previous occasions to take the responsibility of carrying them this time, by themselves refraining from going to the polling booth. That is a fair position for men who find themselves up against the inevitable. If I sat on the benches opposite. confident as I always am in the right of my own side, I could not survey the figures of the previous votes without feeling convinced that it is only a matter of time before the electors of the Commonwealth adopt these amendments, or amendments more drastic. One cardinal mistake was made in framing the Constitution, Instead of having a Federation in which the States had sovereign powers, and the Commonwealth delegated powers, we should have had a Constitution in which the Australian Parliament had the sovereign powers and the States the delegated powers. Had that been done, it would have meant, not the bringing about of Unification, but that, whenever the Federal Parliament passed a law which clashed with a State law, the Federal law would be supreme. Instead of having to wait after a law was passed for actions to be taken before the High Court, and for the High Court to tell us that, because one part of it was unconstitutional the whole law must fall to the ground, we should have been in the position of the British Parliament, and the will of the two Houses of the Parliament of the Commonwealth would have become, whenever expressed in legislation, the law of Australia. That would have been a sound system to adopt; but I do not blame the framers of the Constitution for not adopting it. In these advancing days of civilization, there are engineers in our mechanical workshops who know a great deal more about a locomotive than did its first inventor. There are ordinary mechanics to-day who know more than Robert Stephenson knew. If our Australian Fleet was deprived of its officers, and its management left to the men, it would still be a Fleet before which the Fleet with which Nelson won his famous victories would not last very long. I do not want adversely to criticise the framers of the Constitution. They gave us what is, after all, a workable instrument of government; and the chief reason why it is workable is that they made it possible for the people to amend it if they desired to do so. I come back to some of the opinions of prominent men belonging to the party opposite as to the necessity for constitutional amendments. In a memorandum written by Mr. Garran, at the request of the Deakin Government, in response to an inquiry from the Premier of Natal as to how the Constitution worked in actual practice, the following statements appear: -

The trade and commerce power ought not to bo divided between States and Commonwealth. The limitation to Inter-State and external commerce bisects the subject of trade and commerce, and makes a hard-and-fast division of jurisdiction, of which it is difficult to determine the boundaries, and which does not correspond with any natural distinction in the conduct of business. It would be more satisfactory, if feasible, to take power over trade and commerce generally.

Mr. Groom,the then AttorneyGeneral, indorsed that memorandum with this statement : -

I have carefully perused the memorandum, and I fully agree with the views expressed.

Mr. Deakinsent the memorandum to Mr. Moor, Premier of Natal, and to the Secretary of State for the Dominions. Again the Hon. TV. H. Irvine, E.G., speaking of the Referendum Bills in 1910, supported the trade and commerce amendment, which went further than even the present one. He said -

I have come to the conclusion that this amendment of the Constitution ought to be made. We should have complete power over trade and commerce.

Mr. Deakin,in his second memorandum on new Protection, declared -

As the power to protect the manufacturer is national, it follows that, unless the Parliament of the Commonwealth also acquires power to secure fair and reasonable conditions of employment to wage-earners, the policy of Protection must remain incomplete.

He recommended an amendment of the Constitution to give effect to this. Then I find this statement -

Mr. P.McM Glynn, the AttorneyGeneral in Mr. Deakin's Government, in a lengthy memorandum, stated in plain terms that the powers under the Constitution with regard to trusts and combines and industrial matters were most unsatisfactory; that, out of thirty-three combines here, the Commonwealth could deal with but three or four, and none of these could be completely dealt with without an amendment of the Constitution; that the States could not deal with trusts and combines.

And he recommended that the Constitution be amended to enable Parliament to make laws with respect to " trusts, combinations, and monopolies in restraint of trade in any State or portion of the Commonwealth." Even the State Premiers agreed that the Constitution should be amended. I have quoted those opinions of leaders of the Liberal party, and from a publication which has been circulated broadcast, and although it has been in circulation for some years, not one of the statements accredited to those gentlemen has once been contradicted. That is why I use a public document which they have had the full opportunity of either contradicting or denying if they were inaccurately quoted. Let us use the chief brains of the legal sectio'n of the Liberal party. I refer to Mr. Glynn, Mr. Deakin, Mr. Irvine, and Mr. Groom, who,

I think, fairly represent the party. I have no desire to make an invidious comparison with our legal friends opposite, and I do not quote from their speeches, because no such handy reprints of what they have said are available. The gentlemen I have cited are, I think, fairly representative of those who say that these measures involve party questions. If those leaders say that such amendments of the Constitution are necessary, how can any one honestly say that we are simply asking the electors to put op a party fight? I speak with all earnestness to the representatives of the other side, who have during this crisis - and I acknowledge the fact publicly - given us a generous support in dealing with war matters. If we, as a party, believed that, for the welfare of the people of the Commonwealth, the amendments were necessary four or two years ago, now, in the time of war, they are doubly or trebly necessary. If they were needful then to protect the people from the growth of trusts and combines, I contend that at present there is a tenfold need why we should have the additional powers. Let us examine the situation. What is the position which our honorable friends are putting up now? They are saying, " Why not exert your war powers ? Why not use the reserve powers which a Government engaged in such a contest has the right to use at any time or moment?" In my view, the reason is that it is safer for a self-governing people to follow the well-beaten track of law and order.


Senator Stewart - In war time?


Senator GARDINER - Yes, in war time.


Senator Stewart - All right.


Senator GARDINER - So far as I am concerned, we will never go out of our way to use the inherent powers of a Government at a time like this, if it is possible, without first consulting the representatives of the people.


Senator MILLEN (NEW SOUTH WALES) -len. - What powers are you using with regard to the sugar transaction ?


Senator GARDINER - I ask the honorable senator not to take me off the track. He knows what failings I have for drifting into something which I do not know much about. It is very easy to say to the Government, "You can use any power you like to make good if certain measures are needed for the war, and the .people will support you in your action." But I point out that it is wise for those who are called upon to act to refrain from using emergent powers till the last moment. The last act of a Government which represents the interests of the people should be to use the powers they undoubtedly possess when those powers can be obtained, perhaps a little more slowly, but much more effectively, by asking the Parliament to pass legislation empowering the Ministers to do what they wish to do. Let us look at the action of the British Parliament, which, I ventureto say, is almost within sound of the guns: which are threatening its very existence.


Senator Lt Colonel Sir Albert Gould - And ours.


Senator GARDINER - And ours.


Senator Bakhap - Their sugar deal did not turn out very well.


Senator GARDINER - Although the British Parliament has sovereign powers- - not powers limited by a printed Constitution such as ours is - can my honorable friends opposite point to one case where the British Government have exceeded the powers given to them by the law of the land? Can they point definitely to> one case where the British Government have used their emergent war powers t They have done nothing of the kind. They have asked Parliament, in every case, to give them power, so that they may go safely step by step, and not create precedents which might prove awkward at a later period. I am rather proud of being associated with colleagues in a Government who say, " If the emergent powers have to be used, we will not fear to use them," but until the time for compulsion comes, we shall ask the peopleto give us additional powers to enable us to continue in the course which my honorable friends many years ago were fond of pointing out, and that is the safe course of law and order. In other words, we shall ask the Parliament to make clear the way in which we should go. We propose to consult the Parliament, and, therefore, the people, on everything we intend to do. Let us see how strange this cry of " Use the war powers " is, compared with the statements of two years- ago Perhaps I may be permitted to refer here incidentally to Melbourne newspapers, and to the party cry which has !been raised - " These are either party powers or war powers. If they are war powers, are you going to wait for a considerable time before you can use them? Do you intend to let the war go on and do nothing?"


Senator Bakhap - But you want them for times of peace.


Senator GARDINER - We did. 'Senator Bakhap. - That is the paradox.


Senator GARDINER - "We wanted the powers in times of peace. I said a moment ago, aud I am sorry that the honorable senator did not hear my statement, which was made loudly enough, that in times of war we want the powers with a great deal more urgency. It is well that he should understand that. But when we did seek the powers in times of peace, let me state plainly what the other party said .about our request, and I think it will be admitted to be a fair summing up of their statements. They said that, urged on by a little band of tyrants in the Trades Hall, we wanted huge powers with which we could exploit the thrifty; that we could attack the men who, by business capacity and ability, had built up huge fortunes, and worry the thriftless, urged on by the Trades Hall ; that we wanted to exploit the trading community.







Suggest corrections