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Tuesday, 22 June 1926


Senator H HAYS (Tasmania) .- The amendment submitted by Senator Lynch raises a very important issue, and if it is pressed to a division I shall feel bound to support it.


Senator Drake-Brockman - It does not mean what Senator Lynch thinks it means.


Senator H HAYS - We know what he intends it to mean, and if that intention can be expressed in this bill, and not be inconsistent with its other provisions, it should be done. I admit that the amendment, as he has phrased it, is capable of a very wide interpretation; but if, as Senator Pearce says, State instrumentalities, unless specifically excluded by subsequent legislation, will come under the jurisdiction of Federal authorities, a serious infringement of State rights is proposed. The extent of Commonwealth jurisdiction over State instrumentalities has always been a debatable constitutional point, but Senator Lynch desires to insert in the Constitution a definite provision that such activities shall not come within the ambit of Commonwealth law. Until recently that was understood to be the meaning of the Constitution, and at one time the High Court ruled in that way. Senator Pearce has said that the State instrumentalities can be excluded when Parliament legislates in exercise of the increased powers that are how sought. I am afraid to leave this matter to the discretion of Parliament. The High Court has ruled that State civil servants come within the jurisdiction of the Federal Arbitration Court.


Senator Drake-Brockman - Not ordinary civil servants.


Senator H HAYS - The court has ruled that State instrumentalities are subject to Federal jurisdiction, and the only question to be determined is what is meant by Slate instrumentalities. It may be that the railways, so far as ordinary transport services are concerned, do not come within the High Court's judgment, but some of the State railway workshops manufacture for the public as well as the Government. Would they be regarded by the High Court as. State instrumentalities?


Senator Sir Henry Barwell - All railway services come under the jurisdiction of the Federal Court. .


Senator H HAYS - I agree with the honorable senator that all State railway services should be exempted from Federal jurisdiction, and I wish that to be specifically provided for in the Constitution.







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