Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Wednesday, 14 July 1915

Senator O'KEEFE (TASMANIA) - Will the honorable senator not admit that after he had spoken there was considerable doubt as to what he had said?

Senator KEATING - I will not. There was, before I spoke, doubts as to my views. The day after I delivered my first speech the heading of the leading article in the most influential newspaper in Tasmania was, " Senator Keating says * No.' "

Senator Guthrie - It suited its policy.

Senator KEATING - And it squared with the facts.

Senator Long - As a matter of fact, that same newspaper had said the same tiling a hundred times before the honorable senator said it.

Senator KEATING - That circumstance has nothing whatever to do with me. I took my own platform, and expressed my own views in every respect.

Senator Lynch - Perhaps the other newspaper stated that the honorable senator said "Yes-No."

Senator KEATING - No. The newspaper was speaking of me, and not of my honorable friend. What I have said will serve to indicate that it may become apparent at a very early stage after these amendments have been adopted that they are susceptible of further amendment. Are we for ever to go on tinkering with our Constitution ?

Senator Maughan - Have we not been invited to do so by the decision of the High Court?

Senator KEATING - I think not. If we exceed our jurisdiction, and the High Court points out that we have done so, it is merely fulfilling its duty. If these amendments be ratified by the people, I believe that, great as has 'been the volume of business occupying the attention of the High Court in connexion with Commonwealth legislation, it will be but as a drop in the bucket compared with the volume which will occupy its attention in the future.

Senator Long - The honorable senator's profession ought to welcome these Bills.

Senator KEATING - The question naturally arises : Are the powers which we propose to vest in this Parliament exclusive or concurrent powers ? Are they to be exclusively exercised by this Parliament, or are they powers which this Parliament will exercise concurrently with the Parliaments of the States?

Senator de Largie - The trade and commerce power is exclusive.

Senator KEATING - I thought not. It is only within ' the last hour or so, whilst looking up authority on the development of the doctrine of exclusiveness in the "United States, that I have seen some ground for the opinion which has just been expressed by Senator de Largie. If the power relating to trade and commerce, which it is proposed to confer on this Parliament, be exclusive, the States will not be able to pass any legislation whatever dealing with any transaction of trade or commerce. No State will have any jurisdiction over an ordinary transaction within its own borders.

Senator Watson - If the trade were confined to a State, there would be no necessity for the Commonwealth Government to exercise jurisdiction.

Senator KEATING - I am basing my remarks just now on the assumption that Senator de Largie's assertion is correct.

Senator Gardiner - Will the honorable senator afterwards argue from the point of view that his assumption .is wrong ? ' Senator KEATING.- I will, readily. Senator de Largie has hazarded the opinion that this Parliament, under the proposed trade and commerce amendment of our Constitution, will have exclusive control over trade and commerce. If so, this Parliament alone will be able to pass laws affecting any trade or commerce transaction in any part of the Commonwealth, irrespective of whether it be confined to the narrow limits of a single township, or whether it extends beyond the limits of a State - whether it is Inter-State or Intrastate.

Senator Watson - The honorable senator is straining the position now.

Senator KEATING - I. am not.

Senator Russell - Why not deal with the position in the Bill?

Senator KEATING - The Constitution now does not say that this Parliament is to have exclusive power over trade and commerce in relation to Inter-State, or foreign, trade and commerce.

Senator de Largie - Neither does it limit the power.

Senator KEATING - But the doctrine of exclusiveness is accepted by analogy on decisions in the United States upon a somewhat similar provision in the American Constitution. In the original form of that Constitution it was proposed to use the words, " the sole and exclusive power," but those words were "eliminated, and it was not until 1851, after a' series of decisions, that it was indubitably decided that, so far as Inter-State and foreign trade and commerce were concerned, Congress did possess exclusive power.

Senator de Largie - But in the extreme definition of " exclusiveness," given by the honorable senator, this Parliament has no such powers in respect of any Department.

Senator KEATING - Yes; it has exclusive power in regard to Posts, Telegraphs, and Telephones.

Senator de Largie - There is not a State Parliament which has not some control over our telegraphs.

Senator Gardiner - Did not the last decision of the High Court lay it down that where the powers of any State have not been taken over by the Commonwealth, the State still continues to exercise them ?

Senator KEATING - A provision to that effect is expressly embodied in our Constitution.

Senator de Largie - The honorable senator must see that we do not possess exclusive legislative power over the Post and Telegraph Department.

Senator KEATING - We do, so far as its administration is concerned. Further, the State Parliaments have nothing to do with such matters as duties of Customs and Excise. Similarly, we have defined exclusive powers in regard to the bounties payable on the production or export of goods-

Senator Long - The legislative power in regard to bounties is not exclusive.

Senator KEATING - Our powers of legislation in regard to lighthouses, light ships, beacons and buoys, and quarantine are exclusive when those services are taken over.

Senator de Largie - The extreme definition which the honorable senator has given to the word "exclusive" destroys his point.

Senator KEATING - The VicePresident of the Executive Council has invited me to argue on the assumption that the proposed trade and commerce amendment will not confer an exclusive but a concurrent power upon this Parliament - that is to say, if the people ratify the Bill, this Parliament will have power to make laws in respect of trade and com merce - Inter-State, foreign, and Intrastate.

Senator de Largie - It will have com- plete but not exclusive power.

Senator KEATING - Yes. In that case the State Parliaments will also have the power to make laws in regard to trade and commerce within their own borders. The result will be that as Australia grows in wealth and population its transactions will necessarily be much more numerous, much more complex, and much more varied in character, and it will then be the duty of persons carrying on trade and commerce in any city, or between two parts of any State, to always guard against the possibility of there being two law3 governing their transactions - the law of the State and the law of the Commonwealth. They will have to ascertain what law, if any, applies to their transactions.

Senator Russell - Can two laws be in operation simultaneously ?

Senator KEATING - So long as they do not conflict. Of course, if they conflict, the Federal law will prevail.

Senator de Largie - Exactly; and therefore our power will be complete.

Senator KEATING - This duality of law will lead to conflict, to doubt, and to uncertainty.

Senator Long - There can be no doubt if the Federal law is supreme.

Senator Watson - There can be no litigation then.

Senator KEATING - There will be an increased crop of litigation.

Senator Watson - Can the honorable senator bring evidence to show that? Is not there more litigation in America than in other countries?

Senator KEATING - To what other countries does the honorable senator refer ?

Senator Watson - To other Federations. What about Canada?

Senator KEATING - Canada has not adopted the course that we are about to adopt here.

Senator O'Keefe - In essence she has.

Senator KEATING - No.

Senator Watson - Because it was not necessary for her to do so.

Senator KEATING - She has expressly given certain powers to the Provinces, and the Confederation has the residue of the powers. We, on the other hand, are taking express powers for the

Commonwealth, and by taking them in express terms, we are providing the opportunities for doubt.

Senator Watson - Why does the honorable senator term Canada a Confederation?

Senator KEATING - It has been regarded as a Confederation rather than a Federation. It is frequently spoken of as a Confederation. However, I do not propose to split straws over words. That is the position so far as Canada is concerned. Each Province lias certain legislative powers given to it, and outside those powers the Confederation, or Dominion, has all power.

Senator Lynch - Under our existing Constitution, if, in the exercise of concurrent power, the Federal law clashes with a State law, will the Federal law prevail ?

Senator KEATING - Yes; but under these amendments the first thing traders and merchants and persons engaged in commerce will have to consider is whether there is any law applicable to their transactions, and, if so, whether it is a State law or a Federal law or both ; and, if both exist, whether there is any conflict between the State law and the Federal law. These are questions with which traders and persons engaged in commerce will be confronted for the first time.

Senator Guthrie - No ; that difficulty applies now under the Patents Act.

Senator KEATING - Then why does the honorable senator seek to bring it into every trade and commerce transaction throughout the Commonwealth? Is it not bad enough to have the trouble confined to the patents law and other particular instances? Do honorable senators reflect upon the meaning of trade and commerce? It is anything in the nature of buying, selling, bargaining, engaging to buy, contracting, or anything of the kind. Things we do half-a-dozen, twenty, thirty, or forty times a day, come under trade and commerce. At present the Commonwealth can deal with trade and commerce so long as it partakes of an Inter-State or external or foreign character, while each STate has full power over every transaction in relation to trade and commerce within its own borders.

Senator Long - Under the referenda proposals the people are asked to hand over certain definite powers to one branch of the Legislature. If supreme authority is given to the Federal Parliament, how can it conflict with any other legislative authority ?

Senator KEATING - For the simple reason that it is concurrent power.

Senator Long - But the Federal power is .supreme. "Senator KEATING.- It is.

Senator de Largie - And that fact prevents conflict.

Senator KEATING - It will be necessary for the trader, or intending trader, to ascertain what laws, if any, State or Federal, or State and Federal, apply to his business. At present he knows that if it is a transaction within a State, only the law in that State can apply to it, and that if it is a transaction between one State and another the Federal law will apply to it; but with concurrent jurisdiction the trader will have to ascertain whether there are two sets of laws, or whether there is only one law, and if there are two, whether they are in any detail in conflict, or not in conflict, and so both, operating.

Senator Russell - Suppose that under the powers sought in this Bill the Commonwealth carry a general trading law. After fifty years of trading, do you think that the residue would be so wide that the States would attempt to legislate in that particular direction ?

Senator KEATING - Undoubtedly ; because every day brings new features and elements of trade. Every day trade increases in complexity and variety. We have businesses in existence that were not dreamed of ten years ago. Every day brings new forms and modes of business, and subjects of business, into life; and with the increasing variety and complexity it would be impossible to anticipate many years ahead by any general trading law.

Senator Russell - Trade is well defined in branches.

Senator KEATING - No. There are always novel forms of trading arising. When in Sydney recently, I noticed an advertisement to this effect : ' ' We issue green coupons; we advise our customers to obtain them because we believe in giving them rather than in spending money on advertising " ; and it recalled to my mind a procedure followed by a number of traders some years ago, known as the issue of trading stamps. The issue of trading stamps was suppressed by law in

Tasmania, and I believe in certain other States, but it was a new form of trading that had cropped up in recent years. If something similar were to occur in future, and be so prevalent, say, in Queensland, as to become objectionable, what would be the position ? The State Parliament could legislate it out of existence, as was done with regard to trading stamps in several of the States, but responsible members of the State Parliament might very well turn to those who would urge that course, and say, " The fact of the matter is that the Federal Parliament has jurisdiction in this matter; why do you not get it to interfere?" But on approaching the Federal Parliament, those anxious to have this form of trading legislated upon might be informed, " So far as we know, this evil is not extended beyond Queensland. You had better go back to your own Parliament, and ask it to deal with the matter." Thus those who would be anxious to get legislation on the subject would find themselves, like Mahomet's coffin, suspended between Heaven and earth, and would be able to get nothing from either legislative body.

Senator Russell - If Tasmania were the only State in which these trading stamps were in use, it would not be necessary to get the Federal Parliament to take action; but if the trouble extended to all the States, would it not be an advantage if the Commonwealth Parliament were given the power to take action?

Senator KEATING - At the present time, when matters become Inter-State in their character, the Federal Parliament has full power to take action. I have given an instance of the exercise of concurrent powers. The' presence of these concurrent powers on this important matter in our Constitution will lead to uncertainty, confusion, and litigation. We have to remember that the powers set out in section 51 were defined with the- idea of giving to a Federal, rather than a unified, Parliament powers which it should exercise for the common good) of all' the component parts of the Federation; but many of us are apt to regard Federalism as something in the nature of complete union, or Unification. More than once in the course of this debate, honorable senators have referred to the people as if the people of Australia were the sole determining authority in regard to the matters to which honorable sena tors were at the time referring. The people, as a people, are not, in a Federal system of government, the sole determining authority. The people and the States are. The Federal principle of union is totally different from that of an ordinary Unification.

Senator Russell - How does the honorable senator reconcile his views with his special pleading for concurrent powers in regard to bills of exchange, when he pleaded for concurrent power for the States to be able to tax Commonwealth instruments such as cheques and promissory notes?"

Senator KEATING - I have never pleaded for anything of the kind.

Senator Russell - The honorable senator introduced the Bill in this Chamber, permitting the .States to tax promissory notes, bills of exchange, and cheques.

Senator KEATING - That was the Bills of Exchange Bill; that was not an instance of concurrent power. Our Constitution provides for the Commonwealth passing a Bills of Exchange Act, and consequently, we made the bills of exchange law uniform for the Commonwealth; but so far as the revenue which the States had been deriving from bills of exchange issued within their borders was concerned, we did not seek to deprive them of it. The Bill was not introduced for the purpose of getting for the Commonwealth the comparatively little revenue which the States had been collecting. We did not seek to deprive them of that, but we sought to get uniformity in regard to the law dealing with bills of exchange.

To revert to what I was saying, we should always remember that, so far as our Federation is concerned, the. union is a union of political partnership, a union of six partners. If six persons go into partnership they become, for all the purposes of the partnership, one; but for ad other purposes than those of the partnership they still remain six. In business they are regarded by outsiders, and they regard themselves, as one, and, in the same way, the six peoples of the States of the Commonwealth, on all the matters contained in the Constitution, are one; but for all their domestic matters each State is, like each individual in the trading partnership, single and completely master of itself. Our' Federal union is not a complete union; it is a political partnership. No individual partner would allow the whole or any of the others in the partnership to enter into, or deal with what might be called his own domestic or private affairs. When the six States decided to federate by the votes of their electors, they decided to become one for all the matters laid down in the Commonwealth Constitution, the deed of political partnership; but for all other matters they were to preserve to the full the powers they had always previously enjoyed under their respective Constitutions. Section 51 of our Constitution is most important, because it gives the powers to this Parliament. It is the section which distributes the powers of legislation as between the partnership, otherwise the Commonwealth, and the individual members of the partnership, otherwise the States. We have to remember that in bringing this about we had a Parliament as the legislative authority of this Federal union. And though the House of Representatives represents the people ' of the six States taken as one people, in this far that it is proportioned to the number of people in each State - so we find that New South Wales, with its twenty-seven representatives or more, Tasmania and Western Australia with a minimum of five representatives each, Victoria with its twenty-two representatives, and so on - the Senate represents the other feature of that partnership, not a union of the people, but a union of the several States. The population of Tasmania, though it be only 200,000, is equally represented here with the population of New South Wales, which is about eight times that number. Before we entered into the political partnership, each of the States in every Convention or Conference which was called for the purpose of discussing the terms of Federal union had been equally represented, whether it was in the Conference of 1890, when they were each represented by seven, or whether it was in the Convention of 1891, presided over by Sir Henry Parkes, when they were each again equally represented, or whether it was in the Convention that framed the Constitution under which we have been legislating, when they were each represented by ten elected representatives. Each of the States, before the Union, was regarded as a sovereign political entity; each was regarded as equal, irrespective of its territory or its population, and each nego tiated with the others towards Federal union as an equal, and so we had equality. When we decided on a Federal form of union, rather than a complete union, we decided that, for the purposes set out in the Constitution, we should be one; but that for all other purposes we should remain as before - six States, separate, sovereign, and equal. Hence equality of representation in the Senate - just as there was before Federation equality of representation in every Conference or Convention. It is by reason of the fact that we have centralized, or become one, on only the definite matters in the Constitution, assigned to the Federal Parliament, and by reason of the consequent fact that, as regards all other matters, we are still six separate, sovereign, equal States, that we have equality of representation here. This equality of representation has been challenged. It has been attacked by certain individuals at different times, in the name of what ? In the name of the people - in the name of Democracy, because it is said that the Senate does not properly represent the voice of the people,, but the voices of the six unequally populous States. I venture to say that, if we extend the powers of this Parliament in the direction indicated by the proposed amendments; if it is given the power to deal with matters which can be and have been dealt with by the State Parliaments, we shall he giving added force and strength to those arguments which' have been used, and arc still being used, against equality of representation of each of the States in this branch of the Parliament.

Suggest corrections