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Tuesday, 10 August 1926


Senator ELLIOTT (Victoria) .- I intend to support the bill. This proposal was given the greatest prominence in the policy speech which the Prime Minister delivered at Dandenong on the eve of the election campaign, and I referred to it at every meeting which I addressed. So far as I was able to gather, it met with the utmost favour. No criticism was offered at that time by any of the newspapers in this State, which are now offering such strong opposition to it. I cannot conceive how it is possible for any honorable senator who sits on this side of the chamber to oppose the measure. Such opposition should have been manifested when the programme of the Government was announced.


Senator Sir Henry Barwell - In South Australia the opposition has been continuous.


Senator ELLIOTT - I am not aware whether any opposition was offered by Senator Barwell. He would not have had a very favorable reception in the outback parts of South Australia if he op posed a scheme for improving the conditions of the settlers.


Senator Sir Henry Barwell - All sections of the press and the community in South Australia are standing behind the State Government in its opposition to the proposal.


Senator ELLIOTT - That opposition has developed very rapidly and mysteriously. It is directed, not so much to this bill, as to the petrol tax which is to be imposed to raise the money necessary to. provide funds for road construction.


Senator Sir Henry Barwell - The proposal was opposed in South Australia before there was any talk of a petrol tax.-


Senator ELLIOTT - A section of the press argues that honorable senators will forfeit all claim to respect if they do not uphold what is alleged to be the attitude of the States towards this measure. "Where must we seek to ascertain that attitude? Must we accept the dictation of the Governments for the time being?


Senator Duncan - Unfortunately, we must accept their decision, because only they have the power to enter into the agreement.


Senator ELLIOTT - We are at liberty to inform ourselves of the state of public opinion, without any reference, to those who temporarily occupy a seat in the State Parliaments. In supporting this measure, I am not adopting an attitude that is antagonistic to the interests of the State that I represent. Senator Barwell dealt at length with the constitutional aspect of the matter. While not claiming to be an authority on the interpretation of the Constitution, -I consider that a great deal can be said on the other side. There can be no question, for example, that the provision of good roads has been always the first subject to which the military nations of the world have directed their attention. The Roman Empire - the greatest military nation the world has ever known - constructed a wonderful network of roads, which have lasted up to the present day. Napoleon was responsible for that excellent system- of national roads which we admired in France. In war-time, the transport of men, guns, and ammunition is not possible unless good roads are provided. The Constitution gives to the Commonwealth Government the power to legislate in matters of defence, and it is not difficult to bring roads within the scope of that power. There is a whole chain of decisions of the High Court of Australia which support that theory.


Senator Sir HENRY Barwell - Adopting that argument, full power over all railways would be given to the Commonwealth.


Senator ELLIOTT - The High Court has plainly stated the limitations on that power, and they are very few indeed. I have no doubt that it would embrace the use of railways, quite apart from any special provision in' the Constitution in that direction. Mr. Justice Barton, in the judgment which he delivered in the case of Pankhurst v. Kiernan, said -

If a measure were capable of contributing to the common defence, it was for the court to affirm that capability, and to go no further.

That is to say, if this matter ever came before that court, the only point which it would have to determine would be whether a road was capable of being used in connexion with defence. Having decided that in the affirmative, its duty would be not to inquire any further. That is made still clearer by the judgment of Chief Justice Griffith, who suggested that the test to be applied in all cases was - "Can the measure in question conduce to the efficiency of the forces of the Empire, or is the connexion of cause and effect between the measure and the desired efficiency so remote that the one cannot reasonably be regarded as affecting the other?

That case ' related to price fixing. The court held most decidedly that even price fixing was not so remote from the question of defence as to prevent its being considered part of it.


Senator Sir HENRY BARWELL - Does the honorable senator contend that the Commonwealth Parliament can fix prices ?


Senator ELLIOTT - It can if it so chooses. The court has made it plain that if any matter can, in the remotest degree, be considered as affecting or likely to affect the efficiency of defence measures, the Commonwealth has power to legislate in regard to it. Roads clearly are connected with defence. Therefore, it would be no business of the court to inquire whether this or that road was strategically or tactically necessary for defence.


Senator Thompson - Any road would be conducive to military efficiency.


Senator ELLIOTT - Yes. Mr. Justice Isaacs, in the case of Pankhurst v. Kiernan, refers to such a position, and, in quoting a decision of the Privy Council, said -

Those who are responsible for the national security must be the sole judges of what national security requires.

The following is very important, and has a bearing on the view expressed by Senator Barwell : -

It would be obviously undesirable that such matters should be made the subject in any court of law or otherwise discussed in public.


Senator BARNES - Prom what is the honorable senator quoting?


Senator ELLIOTT - From a judgment of the Privy Council which was cited with strong approval by Mr. Justice Isaacs, in the case of Pankhurst v. Kiernan.


Senator BARNES - That means, in effect, that the Commonwealth could construct almost any roads in the Commonwealth.


Senator ELLIOTT - Yes ; and' the High Court would not inquire into technicalities, because the work would be incidental to the defence of the country.


Senator Sir Henry BARWELL - Would that apply to all roads ?


Senator ELLIOTT - Yes ; and the court, realizing its limitations, would not make it a matter of evidence whether the roads were strategical or tactical. The defeat of the Germans at the Battle of the Marne was largely due to the use by General Joffre of large fleets of motor buses, which he took off the streets of Paris, filled with troops, and manoeuvred in such a way as to deliver an unexpected attack on the German lines. In time we may have whole fleets of tanks or armoured cars for defence purposes, and the provision of good roads will, therefore, become increasingly necessary in order to ensure the adequate defence of the Commonwealth. There can be no doubt that the High Court would admit that good roads are essential for the defence of the Commonwealth.


Senator GUTHRIE - Good roads would be more important than railways.


Senator ELLIOTT - Yes ; but not so much strategically as tactically, when in close touch with the enemy. The court, in interpreting such a statute as this,

Federal Aid[10 August, 1926.] Roads Bill. 5129 would not look for any specific label declaring it to be a strategic act. Mr. Justice Higgins, who was of the same opinion as Senator Barwell, in a dissenting judgment in the same case, said -

In order that an act of the Commonwealth Parliament for the protection of private property may be valid as being within the defence power, it must at least appear in the act, either by express words' or by necessary intendment, that Parliament regards the law as necessary or expedient for the distinctive object of the defence of Australia.

In his opinion, it would be merely necessary for the Commonwealth to say that roads were to be used for defence purposes, and it is obvious that the court would not question the constitutionality of the Government including the words to which reference has been made. The majority of the court, however, brushed aside as a technicality the opinion expressed in the dissenting judgment, and said, "Is this incidental to the defence power of the Commonwealth?" It came to the conclusion that it was. The court was then dealing with an action taken under the War Precautions Regulations forbidding interference with private property, and even in that instance it upheld the defence power of the Commonwealth. That being so, how can there be any doubt concerning the Commonwealth's power to spend money on the construction of roads?


Senator Barnes - Could the Commonwealth assist the States to build roads for developmental purposes through sparselysettled country, which would assist agricultural production--


Senator ELLIOTT - Yes; those roads could be used for the transportof troops and irrespective of the place at which such roads commenced and terminated, they would be of advantage for military purposes. If they ran from the Mallee they would be of use to transport grain and other supplies to the troops. If they led to a port they could be used to repel an invader. Obviously, the court could not set itself up as technical advisers; that is the responsibility of the Government. All the court is concerned with is whether roads can be used as an aid to defence.


Senator Barnes - The Commonwealth could say that any road was for defence purposes.


Senator ELLIOTT - Yes ; so long as it has said that the roads were for such purpose, the court would not interfere.


Senator McLachlan - If there is any power it attaches itself.


Senator ELLIOTT - Yes. The subject of roads is so inextricably inter-relatad with that of defence that I cannot see how the court could possibly take any other view than that I have expressed. Clause 5 of the agreement provides for the construction of roads as follows: -

(i)   Main roads which open up and develop new country;

(ii)   Trunk roads between important towns ; and

(iii)   Arterial roads to carry the concentrated traffic from developmental, main, trunk, and other roads.

According to the general acceptance of the term, they are all main roads, although classified under three distinct headings. The Commonwealth Minister for Works and Railways will have power to see that the money is properly expended. I am in complete agreement with the views expressed by Senator McLachlan, and even if the roads to be constructed were not to be used for defence purposes, it is competent for the Commonwealth, under section 96 of the Constitution, to make financial grants to the States. I have, therefore, much pleasure in supporting the bill.







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