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Tuesday, 10 August 1926


Senator BARNES (VICTORIA) - In section 96 there is a limit of ten years from the establishment of the Constitution .


Senator MCLACHLAN - But it is also provided, " and thereafter until the Commonwealth otherwise provides." As we have not yet " otherwise provided," there is no true invasion of the domain of the States. When Senator Barwell was speaking, Senator Lynch interjected to inquire whether it would be competent for the Imperial Government to advance money to the States. Can any one deny that it would be competent for the Imperial Government to enter into an agreement with the States to advance money to them ?


Senator Sir Henry Barwell - The position is not the same. The money would be raised under different conditions.


Senator McLACHLAN - The question of the manner in which the money is raised has nothing to do with the bill before us. The Imperial Parliament would introduce a bill in the same way that this bill has been introduced, and it would appropriate moneys in the same way. In the past, the powers conferred by section 96 of the Constitution have been exercised in various ways. Specific grants have been made to various States. Although not specifically classified in that way, the power exercised by the Commonwealth in relation to the Murray waters agreement must depend upon the exercise of the power in section 96 of the Constitution.


Senator Sir Henry Barwell - Does the honorable senator say that the opinions given by eminent King's Counsel, the Attorney-General (Mr. Latham), and Mr. F. V. Smith, are wrong?


Senator McLACHLAN - Whatever their opinions, I submit that this Senate is not the tribunal to test the constitu tionality of the legislation enacted by this Parliament. The proposals embodied in this measure were part of the Government's programme submitted to the electors. Honorable senators who supported the Government's- policy must have recognized that it would involve taxation of some kind. They might have expected a wheel tax; but whatever form the taxation took, we all clearly understood that the Government intended to introduce legislation of this nature. Honorable senators will admit that the Commonwealth has power to make advances to the States, and to lay down certain conditions concerning them. I repeat that the only possible objection to this legislation on constitutional grounds is that the final control rests with the Commonwealth Minister. But for this Parliament to relinquish that control would be to regard its duty lightly, in view of the fact that £20,000,000 is involved. Were the control which will be exercised by the Minister for Works and Railways abandoned, no possible exception could be taken to this measure on' the ground of its unconstitutionality.


Senator Sir Henry Barwell - That is not the point at all


Senator McLACHLAN - That is the only intrusion by the Commonwealth into the sphere of the States.


Senator Sir Henry Barwell - It is a question of whether these proposals come within the scope of section 96 of the Constitution.


Senator McLACHLAN - If they do come within the scope of section 96 of the Constitution, the honorable senator will admit that the Commonwealth is competent to lay down the condition that the Commonwealth Minister shall' have the final say in the matter.


Senator Sir Henry Barwell - Certainly, if the proposals come within the scope of that section.


Senator McLACHLAN - I have already expressed my view regarding the ambit of section 96 and the view held concerning it by the framers of the Constitution. I fail to see that the Commonwealth is intruding into the sphere of the States. Hitherto .we have regarded the making of roads, as we have the making of railways, as the function of the States. But the Constitution confers on the Commonwealth the power to construct railways with the consent of the States. 5126 Federal Aid [SENATE.] Roads Bill.

Similarly, under section 96 of the Constitution the Commonwealth has power to advance moneys to the States for any purpose, and on any conditions. This bill proposes that money shall be advanced to the States, and that the Commonwealth shall exercise a measure of control. That does not contravene section 96 of the Constitution. The limited powers vested in the Commonwealth have been referred to. It is true that the Constitution limits the powers of the Commonwealth in many ways; but it does not do so in respect of financial matters. It was intended that the Constitution should authorize the Commonwealth to have certain works carried out by the States, not that they must necessarily be undertaken by the Commonwealth. It has been said that in this legislation an attempt is being made to dictate the policy of the various States. That may be so; but surely the States are prepared to assist the Commonwealth in carrying out a national undertaking, such as the construction of roads through-' out the Commonwealth undoubtedly is.


Senator Sir Henry Barwell - The States are being forced to accept the Government's proposal.


Senator McLACHLAN - What is now proposed has been done for the last three years.


Senator Sir Henry Barwell - Under protest.


Senator McLACHLAN - I have heard no protest. Five of the six States originally consented to this arrangement. I admit that South Australia did so grudgingly, but that was because that State had already taken some steps to provide itself with modern road-making equipment.


Senator Hoare - Which the Commonwealth wants to destroy.


Senator McLACHLAN - No. If the honorable senator will study the agreement, he will see that the existing machinery will not be interfered with so long as the methods adopted are satisfactory. While in New South Wales last week, I took the opportunity to examine some roads which are being constructed near Sydney under what is regarded as a modern system of road construction. I was far from satisfied, because I found that some roads which have been constructed only a short time were showing unmistakable signs of wear. This is not a dictation to the States; and even if it were there would be warrant for it.

We are embarking upon big migration and developmental schemes, and we have a policy of high protection which can be carried through effectively only with increased population and greater production in our primary industries. Therefore, the Government is justified in saying to the States, " It is time you got on with this business." That is the only form of dictation which is being attempted.


Senator Hoare - The South Australian Government has been, as the honorable senator says, " getting on with the business."


Senator McLACHLAN - But only in a very modest way. There are portions of South Australia in which the conditions, according to the settlers who are handicapped by them, are not at all satisfactory. This scheme will lighten the burden that is upon the shoulders of those men. There may not be very much ground for complaint regarding the roads in the vicinity of Adelaide, but immediately outside its precincts they are in a very bad condition, and in some parts of the State they are almost impassable. The need that has been made evident for so long warrants the Government in saying to the States, " For too long you have been inactive; let us have a broad national scheme which will be worked more economically and advance the interests of not only the States, but also the nation as a whole."


Senator Sir Henry Barwell - Then alter the Commonwealth Constitution.


Senator McLACHLAN - If I agreed with the contention that the action of the Government was unconstitutional I should vote against the measure. Only one tribunal can decide whether the policy which has been followed during the last three years, and that which we now propose to continue, is constitutional or unconstitutional. It has the function of interpreting the Constitution. During the last three years the Government has acted in the belief that it is doing right, and, constitutionally, it has strengthened its position under this agreement.


Senator Sir Henry Barwell - The previous proposal was agreed to against the advice of the present AttorneyGeneral.


Senator McLACHLAN - I differed from that honorable gentleman at the time. He now claims to have cured, by means of this bill, the defect that he claimed was in that measure.


Senator Sir Henry Barwell - Does the honorable senator differentiate between this agreement and those which have been formerly entered into 1


Senator McLACHLAN - Earlier in my speech I did so. I do not regard this as a breach of the Constitution. At first blush it might look like a contravention of the spirit of the Constitution, on the ground that these domestic matters ought to be left to the States to settle; but, when all is said and done, is not the construction of national, developmental roads a matter in which the Commonwealth is competent to assist the States ? Section 96 of the Constitution gives it the power to do so. No objection would have been taken during the last three years if control had been vested in a board constituted of representatives of the States and the Commonwealth, or even one which was independent- of either of those parties. I cannot see any vice in the proposal. It falls within the terms of section 96 of the Constitution ; and, in the light of the new spirit in which the Constitution has been interpreted, I venture the opinion that if it comes to trial it will be proved to be constitutional. The States would be well advised to accept the arrangement, in not only their own interests, but also those of Australia as a whole, and our national development.







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