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Tuesday, 10 August 1926


Senator GUTHRIE - We all know that no two legal gentlemen can agree on certain matters.


Senator Sir HENRY BARWELL - That cannot be said of these proposals. Every member of the. legal profession who has been asked for an opinion on the agreement attached to this bill, has stated publicly that it is unconstitutional.


Senator Chapman - No.


Senator Sir HENRY BARWELL - The Crown Law authorities in South Australia take this view. The Government of that State also referred the agreement to Mr. F.V. Smith, K.C.. who, in the course of a lengthy statement, expressed the same opinion.


Senator Pearce - When Mr. Smith proceeds to speak about the advisability of the proposals, I regard his opinion as that of a politician rather than of a lawyer.


Senator GUTHRIE - Has the Government no legal advisers?


Senator Sir HENRY BARWELL - Yes ;. the Attorney-General is the Government's legal adviser, and I propose to tell the Senate what Mr. Latham said in 1925, when the Main Roads Development Bill was under discussion. He stated in unequivocal language that that measure was unconstitutional. He takes a. different view of this bill, although, as a matter of fact, it is similar to the measure dealt with last year. This bill, he says, is all right, because it provides for financial assistance to the States. But can any distinction be drawn between the bill of last year and the measure now before the Senate ?


Senator Chapman - The AttorneyGeneral has said that his objections to the previous measure have been overcome in this bill.

Senator Sir HENRYBARWELL.Yes, and he gives as his reason the fact that this is a measure to grant financial assistance to the States. Let us see what the Attorney-General said about the -Main Roads Development Bill in 1925 -

I venture to assert, although I know that it will be unpopular to do so, that in passing legislation of this description we are not acting constitutionally. This Parliament has no power to legislate for main roads. It has power, of course, to grant financial assistance to States- which need it.

He dealt with that point later. Let me now refer to the matter mentioned by Senator Elliott. The Attorney-General went on to say -

This is not a bill dealing with roads for defence purposes, and no one pretends that it is. It is possible to say that all useful developmental work in Australia improves the capacity of a country to defend itself; but are we, as a Commonwealth Parliament, to spend our revenues for the achievement of any desirable object that may improve the resources of a country from the point of view of defence?

This, T remind honorable senators, is Mr. Latham's view -

This bill does not pretend to provide for anything of that character, as. honorable members know very well. It cannot be said that the States require financial assistance from the Commonwealth.

There is the other point -

We should be in an entirely different position if the Government had brought down a measure to provide for the construction of main roads between the capital cities of Australia based upon strategic considerations that have the backing of its technical defence advisers.

Apart altogether from defence, I contend that this bill is not a measure to grant financial assistance to the States under the provisions of section 96 of the Constitution.


Senator Elliott - But, under the Constitution, the Government has power to build strategic roads.


Senator Sir HENRY BARWELL - Undoubtedly, the Commonwealth Government has full power with regard to defence. If it wished, it could have brought in this bill as a measure to provide for the construction of certain roads for strategic purposes. If the proposals were based upon those considerations, to use the words of the Attorney-General, they would be within the power of the Constitution.


Senator Elliott - We have that constitutional power, and it would not be questioned by the High Court.

Senator Sir HENRYBARWELL.The High Court would have to determine whether the roads to be constructed under this measure were designed for strategic purposes.


Senator Elliott - The High Court itself would not judge whether they were for strategic purposes, and would not attempt to do so.


Senator Sir HENRY BARWELL - But does not the Attorney-General himself answer the question. Let me again quote his own words -

We should be in an entirely different position if the Government had brought down a measure to provide for the construction of main roads between the capital cities of Australia based upon strategic considerations that have the backing of its technical defence advisers.


Senator Elliott - I do not see how the High Court could enter into that phase of the subject.

Senator Sir HENRYBARWELL.It would be a question of fact. The Government does not suggest that this bill is in any way a defence measure, or that the proposals are based upon considerations of defence.


Senator Elliott - Because the facts speak for themselves. Good roads means facilities for defence.

Senator Sir HENRYBARWELL.If the honorable senator cares to argue the subject along those lines then he might, with equal justice, say that because a migration policy will increase our population it also may be regarded as a defence measure.


Senator Elliott - That would be too remote.

Senator Sir HENRYBARWELL.Nevertheless, the honorable senator may argue that an increased population, and an increase in the production of wealth, will give greater security from a defence point of view. One cannot defend the bill on the plea that the roads are required for defence purposes, or that the States are in need of financial assistance. Section 96 of the Constitution contemplates the granting of financial assistance only to States that need it and make application for it.


Senator Chapman - .The Constitution does not say that.

Senator Sir HENRYBARWELL.No, but it presupposes it.


Senator Chapman - It gives this Parliament power to grant financial assistance to the States.


Senator Sir HENRY BARWELL - I shall reduce that argument to an absurdity. If it were sound, the Commonwealth could enter any State sphere. It could, for instance, with regard to education, say to the States, " You require monetary help ; we are going to give it to you and dictate the terms under which that assistance is to be given and the policy to be adopted. It is absurd to argue in that way. To put my arguments consecutively, I contend that section 96 presupposes two things - that there is a State in. need of financial assistance, and that it applies to the Commonwealth Government for it. Then the Commonwealth is to inquire into the merits of the case, and grant such assistance as it thinks necessary, and upon such terms as it thinks fit. Every honorable senator must admit that the sphere of the States is being invaded by the Commonwealth Parliament. I do not see how it can be argued otherwise. It cannot be maintained that the Commonwealth has a right to interfere with the States in the matter of road construction, or maintenance. Under the Constitution this Parliament has strictly limited powers which are enumerated and particularized in the Constitution itself. Whatever powers are not expressly conferred by it are withheld, and those powers are exercisable by the States. The power with regard to roads is not conferred upon the Commonwealth by the Constitution; consequently, it is a power withheld and a power exercisable by the States.


Senator Foll - What does " transport " mean ?


Senator Sir HENRY BARWELL - If the honorable senator imagines that the Commonwealth has power over all transport, he is quite wrong.


Senator Foll - I mean interstate transport.

Senator Sir HENRYBARWELL.Interstate and oversea trade and commerce come within the jurisdiction of the Commonwealth, and transport may fall under that heading; but this Parliament has no power over the domestic trade and commerce of the States.


Senator Elliott - Does the honorable senator go so far as to say that the Commonwealth cannot make a road?

Senator Sir HENRYBARWELL.I do not suggest that. It can make roads in its own territories, and roads that are essential for defence purposes. Does the honorable senator contend that it can make roads anywhere, and under any circumstances ?


Senator Elliott - Yes.


Senator Sir HENRY BARWELL - I am surprised at the honorable senator. I do not think that the Ministry will argue that the Commonwealth has a general power to construct and maintain roads.


Senator Crawford - The Government does not propose to exercise a general power.


Senator Sir HENRY BARWELL - No, but I am replying to an honorable senator who suggested that it did. The Attorney-General further stated in September last -

This money is being spent upon a basis involving a consideration of both area and population. The result is that the States, which have already developed their territory from their own funds, are now being called upon to assist in the development of States which are larger, and whose development commenced later. It may be that this is a proper thing; that the main roads should be a charge upon the whole of the people of Australia, instead of on the people of the several States; but in that case this matter should be considered by the whole of the people of Australia. If they want this Parliament to deal with our main roads, let them say so.

The inference was that the Constitution would have to be altered if this Parlia- ment was to adopt a policy of main road construction.


Senator Foll - Does the honorable senator consider that the previous Federal road grants were unconstitutional ?


Senator Sir HENRY BARWELL - Yes; the Attorney-General admitted it.


Senator Foll - The constitutionality has never been challenged by the States.

Senator Sir HENRYBARWELL.Of course not; the States have had the money and have spent it.


Senator McLachlan - Is it their real objection that the grants are unconstitutional?

Senator Sir HENRYBARWELL.Yes, undoubtedly.


Senator McLachlan - Then why have they not previously said so?


Senator Sir HENRY BARWELL - South Australia replied that' it did not want the money, and it went even so far as to suggest that it would contest the matter at law. One of the States has withdrawn its signature to the agreement, and three of the States are standing out of it.


Senator Crawford - But the States' representatives approved of the agreement.

Senator Sir HENRYBARWELL.Yes, before they knew how the money was to be raised; but when they realized the nature of the proposals, they withdrew their consent.


Senator Elliott - Last year we passed a bill for the extension of a railway from Kyogle to South Brisbane. Was that unconstitutional ?

Senator Sir HENRYBARWELL.That is an entirely different matter. The Constitution contains a specific provision enabling such a work as that to be done. The Attorney-General also said -

If we were to reduce Commonwealth taxation, and to confine ourselves to our proper functions, the States would find it easier to . raise the money required for their roads. The making of roads is a State function. The Commonwealth is collecting too much money from the people, and is expending upon a State basis money which has been collected upon a Federal basis, and that without the matter having first been submitted to the judgment of the people.

In other words, he said that the Commonwealth had no right under the Constitution to do it.


Senator Elliott - Does not the honorable senator think that the AttorneyGeneral has changed his opinion?


Senator Sir HENRY BARWELL -' No. He is the Attorney-General in the Ministry that is taking this action; he practically has the Commonwealth Government for a client. It is a case of special pleading. How does he try to distinguish the present proposal from that of 1925 ? All he says is that the present measure grants financial assistance to the States, and under section 96 of the Constitution it is possible to do that. In 1925, however, he dealt with that very point, and said that there was no escape from the fact that since the States were not in need the matter was not covered by that section of the Constitution.


Senator Elliott - If it were a case of special pleading, surely he could not have found a better reason than the need of the roads for defence purposes? If he contended that the roads to be built under this proposal were required for strategic purposes, he could not be contradicted.


Senator Sir HENRY BARWELL - But that argument has not been advanced. If it were desired to justify the proposal on strategic grounds, it would be necessary to show that the ae- fence advisers of the Government regarded the roads as necessary for defence purposes.


Senator Guthrie - Surely main arterial roads would be of strategic advantage'!

Senator Sir HENRYBARWELL.The Attorney General dealt with that aspect of the matter. He said that it might be that the main roads should be a charge upon the whole of the people of Australia; but if so there should be an alteration of the Constitution.


Senator Elliott - He did not deal with the defence aspect in that part of his speech.

Senator Sir HENRYBARWELL.He was dealing with the defence aspect all through it.


Senator Guthrie - Does the honorable senator say that good roads would not be of great advantage so far as defence is concerned ?_

Senator Sir HENRYBARWELL.They would be; but just as an increased population or the greater development of the resources of Australia would be. But does it therefore follow that the Commonwealth has full power to develop those resources and full power over migration ?


Senator Duncan - It might, with equal justification, be said that the cotton bounty is a defence measure, because cotton is used in the manufacture of explosives.

Senator Sir HENRYBARWELL.Exactly. If the Federal Government had a right to say to the States, " You have not asked for assistance, but we believe that you need it. We are going to make you a grant, but only on terms laid down by us," think what the position would be. A. similar attitude could be adopted regarding education and railways, which everybody admits are matters under the control of the States. I am referring, of course, to purely State railways. The Commonwealth could say to the States, " You ought to .have extra money for your railways. We shall make that money available, and we shall raise it by taxation, and advance it to you on a certain basis ; but we shall dictate the policy." In this way the Commonwealth could lay down the policy of the States regarding any matter it chose. Surely this is reductio ad absurdum!


Senator Guthrie - The honorable senator supported the proposed waste of millions on the construction of a useless railway from Oodnadatta to Alice Springs.

Senator Sir HENRYBARWELL.Was not that a Federal matter? It is futile for honorable senators to argue that the Commonwealth can force money upon the States, and dictate the conditions under which it shall be spent. I appeal to honorable senators, particularly those on this side of the chamber, to study the constitutional aspect of this question. Where, in the Constitution, is there power to do that which is proposed?


Senator Guthrie - We do not pretend to be judges of the constitutionality of the Government's proposals. We only know that they are good.

Senator Sir HENRYBARWELL.Honorable senators should satisfy themselves that the action contemplated by the Government is constitutional. No legal opinion in opposition to those to the effect that it is unconstitutional has been submitted to us. All the legal opinions which have been quoted have been to the effect that the proposals are unconstitu-.tional.


Senator Chapman - Can the constitutionality of the Government's proposals be determined by any authority other than the High Court?

Senator Sir HENRYBARWELL.We cannot take to the High Court for determination every question that is raised in Parliament. Life is much too short for that.


Senator Thompson - Must we not rely on the opinion of the Crown Law officers?

Senator Sir HENRYBARWELL.No opinion from them has been quoted. No less an authority than the AttorneyGeneral himself said that a bill which was on all-fours with this was unconstitutional. I defy any lawyer to distinguish between that bill and the one now before us. The opinion of the AttorneyGeneral and of the Crown Law officers of Victoria and South Australia, as well as of eminent outside counsel employed . by both Governments is that the action proposed to be taken is unconstitutional. I repeat that, before voting on this measure, every honorable senator should satisfy himself as to its constitutionality. It would appear that some honorable senators, whose States want the 5116 Federal Aid [SENATE.] Roads Bill. money, and have signed the agreement, are afraid to face the question, fearing that if they do so, they must come to the conclusion arrived at by the AttorneyGeneral last year in relation to a similar measure. Are honorable senators mere puppets, prepared to do the bidding of the Government as the strings are pulled? Senator Ogden this afternoon was reproved by the Leader of the Government (Senator Pearce) for having suggested that Government supporters were willing to accept blindly the Government's proposals. The Minister asked why it should be considered wrong for honorable senators who were elected as supporters of the Government to vote for its proposals.


Senator Foll - Senator Ogden, who criticized other honorable senators for following the Government, was glad enough to enter Parliament on a party ticket.


Senator Sir HENRY BARWELL - I do not propose to discuss" that aspect of the question, but I do appeal to honorable senators to prove themselves worthy of the position which they occupy. The Senate is not merely a house of second thought; it was established primarily to preserve the rights of the States. No duty is more pressing on honorable senators than that of satisfying themselves regarding the constitutionality of the Government's proposals, particularly when they threaten the sovereign rights of the States. That is the position which now confronts us. The sovereign rights of the States are being threatened by the unconstitutional proposals of the Government. Honorable senators should vote according to their convictions ; and if they do so in relation to this measure, they must decide that it is unconstitutional.


Senator Foll - By voting according to their convictions, honorable senators would not necessarily support the views expressed by the honorable senator.


Senator Sir HENRY BARWELL - Quite so. I ask only that they vote according to their convictions. Senator Foll will admit that honorable senators do not always do so.


Senator Grant - In that respect the honorable senator can only speak for himself.

Senator Sir HENRYBARWELL.Honorable senators will not deny that frequently they vote on party lines. If there is one House in the Parliaments of Australia where there should be independent thought, it is the Senate.


Senator Cox - Has not the honorable senator himself voted on party lines?


Senator Sir HENRY BARWELL - Not always. I exercise independence of thought. Did not the AttorneyGeneral say tht it would be unpopular to oppose this legislation for the reason that the States were prepared to take the money? Whether my attitude is unpopular or not, I shall continue to say that this legislation is unconstitutional, because I believe that to be the case. I am satisfied on that point, and I ask other honorable senators to satisfy themselves regarding it. But even if this legislation were constitutional, I should still oppose it, because it is unwarranted and unnecessary. Let us examine the bill. The preamble reads -

Whereas it is expedient to provide for financial assistance to the several States for the purpose of the construction and reconstruction of roads.

While the preamble is different, the effective provisions of the bill are similar to that of the bill introduced last year, which the AttorneyGeneral said was unconstitutional. An attempt is being made to bring this legislation within the scope of section 96 of the Constitution. But the mere wording of the preamble to a bill does not bring it within the Constitution. For this legislation to be constitutional, the States must be in need, and must apply to the Commonwealth for assistance.


Senator Grant - Tasmania is in need of assistance.

Senator Sir HENRYBARWELL.It is clear from the agreement that not only is the Commonwealth proposing to enter the State sphere of constructing and maintaining roads, but also that it intends to exercise supreme control in that sphere. Everything that is done must be done to the satisfaction of the Federal Minister. Let us see what the agreement provides. Sub-clause 3 of clause 6 of the agreement reads -

The Minister shall have the power to decide from time to time how the balance of the moneys paid to the State under this agreement and the balance of the moneys to be provided by the State under this agreement shall be expended but so that such moneys shall be expended solely in the construction of Federal aid roads and /or the reconstruction of Federal aid roads.

Clause 8, sub-clause 1, sets out -

The State shall, to the satisfaction of the Minister, make proper provision for the adequate and continuous maintenance in good repair and condition of all roads constructed or reconstructed in pursuance of this agreement. Such maintenance shall be taken in hand immediately following upon the completion of the construction or reconstruction of any road or portion thereof and shall be met from moneys provided by the State. -The position is the same in clause 9 -

(1)   Prior to the submission by the State of any proposals for expenditure of any moneys provided by the Commonwealth and the State in pursuance of this agreement the State shall submit to the Minister for his approval full particulars of the roads proposed te be constructed or reconstructed during the period of five years commencing on the first day of July One thousand nine hundred and twenty-six and prior to the expiration of the said period of five years the State shall submit to the Minister for his approval full particulars of the roads proposed to be constructed or reconstructed during the period of five years commencing on the expiration of the first mentioned period of five years.

(2)   All proposals in connexion with works to be carried out in any financial year in pursuance of this agreement shall be submitted by the State to the Minister for his approval and the State shall not commence any proposed work without first obtaining the approval in writing of the Minister.

Again, clause 13 provides -

13.   The Minister on behalf of the Commonwealth undertakes that any regulations necessary or desirable to enable this agreement to be carried out will be made by the Governor-General in Council.

As the Governor-General in Council means the Commonwealth Government, honorable senators will see that the Commonwealth Government intends to dominate the whole position, although the Commonwealth Attorney-General said that these matters were within the sphere of the States.


Senator Lynch - Could the Imperial Government enter into a similar agreement with the States?


Senator Sir HENRY BARWELL - The Imperial Government could lend money to the States, hut it could not interfere with the control by the States over the expenditure. The Imperial Government could not dictate the policy of the States.


Senator Lynch - Could the Imperial Government not impose conditions?

Senator Sir HENRYBARWELL.Not as a right. A State Government could enter into an agreement with the Imperial Government to borrow money; it might even submit to conditions and terms; but that would be entirely different from the position here. In this case the Commonwealth Government is forcing the hands of the States. Although the .Commonwealth Government might be willing to make money available to the States for road construction and maintenance, it should not attempt to lay down the terms under which that money shall be spent. It should not attempt to dictate the policy of the States; yet that is what is intended in this legislation.


Senator Lynch - If the Imperial Government could make a contract with the States, surely the Commonwealth Government should be able to do the same.


Senator Sir HENRY BARWELL - The Commonwealth Government is forcing this scheme upon the States.


Senator Cox - No.


Senator Sir HENRY BARWELL - The Commonwealth Government is raising the money by a tax on the whole of the people of Australia for application to matters that come within the sphere of the States.


Senator Cox - The State Governments need not accept the money.


Senator Sir HENRY BARWELL - The position of the State which does not accept the money will be similar to that occupied by South Australia when the Commonwealth Government made advances for wire netting. South Australia already had its own legislation dealing with grants for wire netting, and refused to come under the Commonwealth scheme ; nevertheless, that State had to contribute towards the cost of providing wire netting to land-holders in the other States.


Senator Thompson - All the shire councils of New South Wales are clamouring for this legislation.


Senator Sir HENRY BARWELL - Are they judges of its constitutionality?


Senator Thompson - Some of us do not agree that it is unconstitutional.


Senator Sir HENRY BARWELL - The making of roads in the several States is largely in the hands of the municipal and shire councils.


Senator H Hays - That is the position in some States.

Senator Sir HENRYBARWELL.If is the position in South Australia, New South Wales, and Queensland, and, I believe, in Victoria also. . I cannot understand any State placing itself in the humiliating position which the acceptance of this agreement would involve. Although South Australia is now controlled by a Labour Government, I congratulate that State upon the stand it has taken in this matter. The Government of South Australia, in view of the opinion of its Crown law officers, as well as of independent eminent counsel, that this legislation is unconstitutional, has rejected the Government's proposals. It is not a question of the States wanting the money, but rather the intrusion by the Commonwealth into the sphere of the States. The States might be in dire need of the money ; but some of them are not prepared to accept it from the Commonwealth if to do so means that they are condoning an unconstitutional action by which the Commonwealth will dictate their policy.


Senator H Hays - South Australia has accepted previous Commonwealth grants.


Senator Sir HENRY BARWELL - I am acquainted with the position that existed when former grants were offered, because I was in office at the time. We protested strongly. In effect, we said, "Mind your own business; we do not want your money."


Senator Foll - But you took it.


Senator Sir HENRY BARWELL - South Australia has gone even to the length of threatening legal proceedings against the Commonwealth in. this matter. Whilst I am extremely sorry to see the Commonwealth and any of the States at loggerheads, if legal proceedings result in this case the Commonwealth will have only itself to blame.

Let me refer again to a matter upon which I touched when I was discussing the motion for the printing of the Estimates and budget-papers for 1926-27 ; that is, the inconsistency of the Commonwealth Government. When it advanced its proposals for the re-adjust ment of the financial relations of the Commonwealth and the States it said, "We ask you to accept these proposals, because they are based upon the sound principle that each Government should be responsible for the raising of the money that it spends, and the .States should be made as independent as possible of the Commonwealth." Yet it now insists upon raising money for the States to spend. Is that in accordance with the sound principle which it. then laid down for its own guidance and the guidance of Parliament? Consider its second proposition - that the States should be made as independent as possible of the Commonwealth. This scheme proposes to make the States dependent upon the Commonwealth for' portion of their roads requirements. Instead of doing that, the Government ought to retire from the field of direct taxation and to that extent allow the States to raise additional revenues with which they could supplement their present road proposals.


Senator H Hays - The Commonwealth merely proposes to give to the States an additional amount for expenditure on roads.


Senator Sir HENRY BARWELL - That is not necessarily so. The States will probably reduce the amount that they would otherwise spend by a sum equal to that which they receive from the Commonwealth. The taxing power of the States must be reduced in proportion to the additional taxation that is imposed by the ' Commonwealth, because the revenue is taken from the same taxpayers.


Senator Andrew - Was the honorable senator in power in South Australia when a previous grant was provided for?


Senator Sir HENRY BARWELL - Yes; I protested strongly against it.


Senator Foll - And then took it.


Senator Sir HENRY BARWELL - I do not remember whether any grant was made whilst I was in power, but I know that we entered a strong protest against the proposal. What is the position today? The Commonwealth means to force the State to accept this grant, or to contribute to the grants that are made to other States without receiving any advantage in return. It is an iniquitous position in which to place the States.


Senator H Hays - Did the State which the honorable senator represents adopt the same attitude, in regard to the River Murray Waters Agreement?


Senator Sir HENRY BARWELL - That is a different matter ; it comes within the Federal power.


Senator H Hays - The States that are not interested in the work have to contribute towards its cost.

Senator Sir HENRYBARWELL.That is a matter which, under the Constitution, can be dealt with by the Commonwealth. I point out that these proposals are a direct violation of what the Commonwealth Government said were sound principles, to be observed in the financial relations of the Commonwealth and the States. Road construction and maintenance are essentially local and provincial matters. Even the States themselves adopt the policy of decentralization and leave these matters largely in the control of district councils. What is the best policy to pursue? The States know far better than the Commonwealth what their requirements are in regard to road construction and maintenance, what money is necessary to meet those requirements, and how it can best be raised and expended. The money for this grant will have to be raised by the imposition of special taxation, provision for which is made in a separate bill. I, therefore, confine myself to the argument that the bill is unconstitutional; and that, even if it is not unconstitutional, interference by the Commonwealth in this sphere of the States is unnecessary; because the matter can be handled far better by the Governments of the States and their local governing bodies. Again, if the Commonwealth insists on advancing to the States, money to bc spent upon that which, according to the .terms of the Constitution, is entirely within the jurisdiction of the States, it should not laydown conditions governing the expenditure of that money. I understand that the States are to be practically forced to accept this grant. The amount is to be allocated among the various States on a population and area - basis. Any State which refuses to accept it is to be treated like a spoilt child who refuses food; the amount allotted to it is to be held in the trust fund until the sulks pass.


Senator Crawford - Eventually, every. State will accept the grant.

Senator Sir HENRYBARWELL.The opportunities of the States to impose taxation will be restricted bv the action of the Commonwealth in raising this additional sum from new taxation. Those States that now refuse to accept the grant will be told, "If you do n t care to take it now we shall hold it until you think better of your decision."


Senator Foll - A carrot will very often tempt a donkey.

Senator Sir HENRYBARWELL.I regret that some honorable senators are inclined to treat this matter lightly. It is of the utmost importance, because in it is involved the constitutionality or otherwise of the action of the Commonwealth. The present Attorney-General (Mr. Latham) said last year, as a private member, that the action which the Government then took along similar lines was unconstitutional. That opinion is supported by leading counsel throughout Australia. I again appeal to honorable senators to endeavour to arrive at a proper decision upon the question whether the action of the Government is constitutional. But, apart altogether fr.m that aspect, they should resist any encroachment by the Commonwealth upon the rights rf the States, and any usurpation of powers which, under the Constitution, are conferred upon the States; and they should frustrate the determined effort which is being made to bring to the feet of the Commonwealth the States and their people.


Mr GREENE (NEW SOUTH WALES) - Does the honorable senator say that the action of the Government is a breach of the Constitution, or an evasion of it?

Senator Sir HENRYBARWELL.The bill constitutes a breach of the Constitution. Whether it was a breach or an evasion, the action of the Government would be unconstitutional. Little did I think when I entered this Senate only a few months ago, that I should have to appeal to honorable senators in the way that I am now doing, to resist what I believe to be a violation of the Constitution, an invasion of the rights of the States, and a usurpation of their powers by a Nationalist Government.

Above all, I believe in a strict adherence to both the letter and the spirit of the Constitution. I should take that stand' even if I did not agree with the provisions of the Constitution, although in such a case I should certainly endeavour to have an alteration made. In this matter there has not been an adherence to the provisions of the Constitution. I, therefore, intend to vote against the measure.







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