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Tuesday, 22 June 1926


Senator LYNCH (Western Australia) . - I would prefer that the clause be postponed in order to enable an amendment to be framed which will give effect to my intention. I am not content that this matter, which is of such vital interest to the States, shall be left to the whim of Parliament. I wish a definite provision to be inserted in the Constitution that the States shall have complete authority over their own instrumentalities.

Senator Sir HENRYBARWELL (South Australia) [9.5]. - I do not agree with the Minister that thisbill is not the proper place for an amendment to give effect to the intention of Senator Lynch. According to the High Court's interpretation of the Constitution, Federal tribunals have jurisdiction over State instrumentalities. The desire of Senator Lynch and others is that that jurisdiction shall be withdrawn; if that is to be done, this bill is the proper place in which to propose the necessary amendment of the Constituti on. In 1923 this matter was brought before the Premiers' Conference by the Attorneys-General of New South Wales, Victoria and South Australia. The State representatives proposed certain delimitations of Commonwealth and State powers over industry, and sought to protect responsible government in the States by exempting their instrumentalities from the jurisdiction of Federal tribunals. In a memorandum issued by him at that time, the Prime Minister said, "With the objects which the State Governments have in view the Commonwealth Government is in full sympathy." He admitted that the Commonwealth should not interfere with the sovereignty of the States in this regard, and he proceeded to discuss with the representatives of the States the procedure to be adopted. Certain suggestions were made by the State Premiers and Attorneys-General, and the Prime Minister's memorandum said -

These defects--

He referred to the right of Commonwealth tribunals to exercise jurisdiction over State instrumentalities - cannot be cured by an ordinary Commonwealth act of Parliament or by legislation by individual States. They call for either (a) an amendment of the Constitution; or (b) reference of the necessary subject-matter, by all the States concurrently, to the Commonwealth under section 51 (xxxvii.) of the Constitution. The second alternative is the less satisfactory. It is not certain - and cannot be certain until it is decided by the High Court - that such a reference when made is irrevocable.

In effect, the Prime Minister said, " I am in full sympathy with the proposal that State instrumentalities shall be exempted from Federal jurisdiction, but that can be done only by an amendment of the Constitution." We were told that proposals to amend the Constitution would be submitted at a later date, and we assumed that this matter would be provided for. The bill does not do that, and apparently the Government is not prepared to do it. If the amendment is carefully re-drafted - and that cannot be done without the expert advice of a draftsman - I shall support it, but I cannot vote for it in its present form.







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