Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Tuesday, 26 July 1921


Senator E D MILLEN (NEW SOUTH WALES) (Minister for Repatriation) . - Senator Drake-Brockman has raised a question as to the constitutional power professed to be conferred by the Bill. I always hesitate to undertake what may be considered the presumptuous task of expressing an opinion at variance with that of legal gentlemen on a point of law ; but I venture to do so now if only for the purpose of pressing further the inquiry the honorable senator has originated. I understand the honorable senator to say that we have not the constitutional power to conduct the inquiries which are authorized by the Bill.


Senator Drake-Brockman - No; I say that we have not the constitutional power to compel answers to the inquiries.


Senator E D MILLEN (NEW SOUTH WALES) - I draw attention to the fact that that is all the clause does; it does not follow that inquiries themselves will be 'followed by any action. All that is sought is authority to compel answers to questions put by the Board. Apart from his interpretation of the Constitution, I take it that the honorable senator is relying on the Privy Council decision in the case against the Colonial Sugar Refining Company.


Senator Drake-Brockman - Partly.


Senator E D MILLEN (NEW SOUTH WALES) - May I suggest that the honorable senator mainly relies on that decision 1


Senator Drake-Brockman - No.


Senator E D MILLEN (NEW SOUTH WALES) - It seemed to me, in following the honorable senator in his references to the case, that he did make that decision his sheet anchor.


Senator Drake-Brockman - I was stopped after having spoken for a quarter of an hour.


Senator E D MILLEN (NEW SOUTH WALES) - I have no doubt that the honorable senator would have said much more but for the time limit. I desire to point out what appears to me to be the effect of the decision. As I read the decision, it does not say that all the inquiries were wrong ; but that the inquiry was wrong. It may be that out of a dozen questions, eleven may be within the competence of the person putting them, and the other one not. There are questions authorized in the Bill to which answers are required/ and which, I think, are undoubtedly within our constitutional rights. I do not suggest that there may not be hidden in the questions, here and there, some which might be held to be outside our power, and I am relying for support in that opinion .on the decision of our own High Court. Section 15b of the Australian Industries Preservation Act 1906-1910, which I shall quote presently, seems to me to raise the whole point: Have we the power to press an inquiry to the extent of compelling an answer? The part of the Act which the section covers deals with monopolies, and the action taken, first, by inquiry, and ultimately by prosecution. It reads - 15b (1) If (l>) the Comptroller-General believes that an offence lias been committed, against this part of this Act, or if a complaint has been made in writing to the ComptrollerGeneral that an offence has been committed against this part of this Act, and the ComptrollerGeneral believes that the offence lias been committed, he may, by writing under his hand, require any person (c) whom he believes to bo capable of giving any information in relation to the alleged offence to answer questions and to produce documents to Hum or to some person named by him in relation to the alleged offence.

(2)   No person shall refuse or fail to answer questions or produce documents when required to do so in pursuance of this section.

That, I submit, is entirely parallel to the case presented in the Bill.


Senator Drake-Brockman - But that was tested before the Privy Council, also in the Adelaide Steam-ship Company's case, and it was held to be ultra vires.


Senator E D MILLEN (NEW SOUTH WALES) - The honorable senator says so; but I wish to continue the quotation. Appended to that section in the Commonwealth Consolidated Acts is a note -

(6)   Heldby the High Court that this section is intra vires the Commonwealth Parliament and valid; that the inquiry authorized by the section is not inconsistent with the right of trial by jury conferred by section 80 of the Constitution; that it is not an exercise of the. judicial power of the Commonwealth: and is not an incident of the execution and maintenance of the provisions of the Constitution relating to trade and commerce within the meaning of section 101 of the Constitution, and need not' be entrusted to the Inter-State Commission.* Huddart Parker & Co. Pty. Ltd. versus Moorehead (1008). 8 C.L.H., 330." Held by the High Court (Griffith, G.J., and Barton, J., Isaacs J. dissenting) that when the AttorneyGeneral has formally instituted a prosecution in respect of an alleged offence under the

Act, the, power as well as the purpose of the section is exhausted, so . far as regards the persons whom the Attorney-General alleges to have committed the offence for which he prosecutes, whether they are parties to the "suit or not, and the section does not empower thi Comptroller-General to put questions for the purpose of collecting evidence in a pending suit. Melbourne Steamship Co. Ltd.v. Moorehead (1912), 18 A.L.R., 533.


Senator Drake-Brockman - What was the date of that decision ?


Senator E D MILLEN (NEW SOUTH WALES) - It was given in 1912.


Senator Drake-Brockman - It was in 1912 that, on an appeal in the Adelaide Steam-ship Company's case, the Privy Council upset that decision.


Senator E D MILLEN (NEW SOUTH WALES) - In spite of the conflict between our own High Court and the Privy Council our Crown Law officers still regard the decision of our own High Court as sound law, and elect to stand by it. Putting that on one side, and recognising that the Privy Council is the highest authority, I still say there are certain questions which the Privy Council has not said we cannot ask. The Privy Council has said there are some questions we cannot ask, but there is still a wide field of questions on which neitherthePrivy Council nor any other Court has given any authoritative decision. We are giving a large . measure of Protection; and surely Parliament ought to have the right by inquiry to find out the effect of the operation of the Tariff? Parliament ought to be in a position to ascertain how far the purposes for which it imposed the Tariff are being achieved, or the contrary. To me it would seem a. violation of common sense to say that Parliament, having passed this Tariff, cannot collect the information necessary to enable it to ascertain whether or not it is achieving its purpose. Senator Drake-Brockman will admit that, at least, common sense is required. The honorable senator would be the last to say that Parliament should legislate, and, having legislated, should refrain from taking every opportunity to acquaint itself with the results of its action. Our own Law officers advise us definitely and clearly on the point. It may bo that some day a lawyer may arise and question the constitutionality of some Act, but in the meantime we have the assurance of our own Law officers; and, in view of the common-sense aspect I have presented, I trust honorable senators will retain in the Bill the provision which Senator DrakeBrockman seeks to leave out.







Suggest corrections