Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Wednesday, 18 November 1936


Senator HERBERT HAYS (Tasmania) . - It will be admitted that no subject considered by the Senate for some years has interested the electors of Australia more than the proposal now before the chamber. In view of the unfortunate results of former endeavours to obtain the approval of the people by means of referenda for the alterations of the Constitution, we should endeavour to make the proposal to be submitted to the people in this instance clear and definite. With two exceptions, all the proposals submitted previously were rejected. The only possible way in which we can prevail upon the public to agree to an alteration of the Constitution is for all parties in this Parliament to present a united front in connexion with the referendum.


Senator A J McLACHLAN (SOUTH AUSTRALIA) - We tried that once, and failed.


Senator HERBERT HAYS - I am aware of that experience; the memory of it is still fresh in my mind. The

Leader of the Opposition (Senator Collings) and his two colleagues announced their intention to urge the electors of Queensland to vote for the proposed alteration of the Constitution; but their representations might be made with greater advantage in other States. Presumably, the Premier of. Queensland, his supporters, and members of the Opposition are in agreement to advise the electors to record an affirmative vote; in those circumstances, therefore, the services of the three honorable senators of the Labour party are not likely to be required in Queensland during the referendum campaign. I commend to the Leader of the Opposition the advice which was tendered to him, apparently in a spirit of frivolity, by Senator Arkins, that if he sincerely believes that an affirmative vote by the people is necessary in the interests of the producers of Australia, he should take the platform with the Prime Minister (Mr. Lyons) in Melbourne, Hobart, and "Western Australia, and support the right honorable gentleman in the advocacy of that policy. The Leader qf the Opposition has already declared that this matter should not be made a party question, and he has deprecated that the party issue has been drawn into it. In view of those circumstances, I earnestly hope that the honorable senator will give proof of his sincerity in the manner which Senator Arkins has suggested.

The Australian public is already suspicious of the interpretation which may be placed upon the word "marketing". An alternative was mentioned by Senator Brown, who suggested that the issue could be simplified by asking the people to vote on the plain question : " Should section 92 of the Constitution bind the Commonwealth?" The Privy Council decided that it does.


Senator McLeay - A negative vote on that question would give to the Commonwealth greater power than is contemplated in this proposed alteration of the Constitution.


Senator HERBERT HAYS - That opinion is only speculative. There is nothing to indicate with certainty that it would give the Commonwealth 'enhanced powers, because it was declared, for some reason best known to Their Honours of the High Court, that section 92 did not bind the Commonwealth. This Parliament accepted the decision of the High Court, and legislated accordingly for marketing schemes. I should like to see a straightforward question, such as I have suggested, placed before the public. The interpretation of the word "marketing" may be extremely wide, and proposed section 92a, as it is now framed, will present many legal difficulties in future. My justification for making that statement is to be found in the great deal of doubt that exists as to what the word really means and. what it involves.


Senator A J McLACHLAN (SOUTH AUSTRALIA) - Would not an affirmative vote upon the question suggested by the honorable senator make the powers of the Commonwealth much wider?


Senator HERBERT HAYS - I arn not in a position to say; nor can the Postmaster-General give an opinion with any certainty upon this matter. Many appeals will be made to the High Court to determine the limits of that power, and, as in the James case, the issue will probably again find its way. to the Privy Council.


Senator McLeay - Why does the honorable senator venture an opinion if he cannot distinguish between the two powers at the present time?


Senator HERBERT HAYS - I expressed these views as the result of experience. Many eminent authorities who are well qualified to express an opinion in this connexion place upon the term " marketing " a construction different from that of the PostmasterGeneral and the Assistant Minister (Senator Brennan).


Senator Brown - Up to date no definition of "marketing" has been given.


Senator HERBERT HAYS - That is BO. In past years schemes designed to bring about the orderly marketing of our primary products have been encouraged, and no honorable senator would contend that the necessity no longer exists for complementary legislation by the Commonwealth and the States to govern the export of our primary products. Such control carries with it the obligation to Insure that a proper balance shall be kept between the States, and that any section of producers is prevented from tak ing advantage of the local market beyond the extent of the quota allowed to them. Some years ago the dried fruits industry took the initiative in adopting a scheme for securing the orderly marketing of its products. Through this enterprise, the industry was restored from a chaotic condition to one of order; The same applies in regard to the marketing of butter. Senator Leckie, in dealing with this matter on Friday last, said that the bill gave to the States wider powers than those which they at present possess, and that their powers would not be limited, as some persons feared. To all intents and purposes section 92 distinctly says that trade between the States shall be absolutely free; but the intention now- is to ensure that trade between the States shall no longer be absolutely free.

Sitting suspended from 6.1.5 bo 8 p.m.


Senator HERBERT HAYS - It is regrettable that at the conference of Commonwealth and State Ministers held in Adelaide in August last agreement, was not obtained regarding the proposal to be submitted to the people. On all sides the necessity for action was recognized. The constitutional machinery had broken clown, and its repair was imperative. The Premiers of South Australia and Tasmania opposed the proposed alteration, and the Premier of Victoria did not take a definite stand regarding it. The Government is to be commended for having introduced this bill, and I shall support its second reading, but I regret that a. sustained effort was not made to induce at least a majority of the State Premiers to support the proposal. Experience has shown that, it is most difficult to induce the people to vote for alterations of the Constitution, even when vital issues are raised. The definite terms of section 92 undoubtedly led the people to vote for federation. The need for defence measures was, of course, also a most important consideration, but the major issue was that of interstate free trade, the demand for which had been brought about by the hostility between New South Wales and Victoria.


Senator Dein - There was never free trade between the colonies prior to federation.


Senator HERBERT HAYS - Even after federation had been established, certain subterfuges were resorted to. For instance, a vegetable diseases act was passed, ostensibly to prevent the passage of certain goods from one. State to another, but actually to eliminate interstate competition. Victoria put a ban upon Tasmanian potatoes entering that State, and, when the High Court gave a decision against Victoria, the inspection procedure was made so difficult that interstate trade in potatoes became almost impossible.

Laymen must pay great respect to the views expressed by the AttorneyGeneral (Mr. Menzies) and Senator Brennan ; but other members of the legal profession have pointed out that " marketing " can be given a very wide interpretation. An amendment has been foreshadowed by Senator Payne, but I understand that the Government has already given consideration to it. I trust that Senator Brennan, in his reply, will disclose the Government's attitude to this amendment. I have been assured that the widest possible interpretation can, unci will, be given to "marketing", and therefore it seems to me that, unless the proposal be qualified to some extent, the power sought from the people will be wider than is necessary to validate the marketing legislation. Of course, it is for lawyers to say whether the present proposal is only sufficiently wide to enable this Parliament to enact legislation complementary to that passed by the State parliaments in order to give effect to schemes for the orderly marketing of primary products. We are advised that, if this proposal receives the assent, of a majority of people in a majority of the States, it will not bc necessary for the State parliaments to re-enact the legislation that has been declared invalid. The term " marketing " covers not merelyprimary products in regard to which legislation has already been passed, but a1B0 any' other products in respect of which orderly marketing schemes may be introduced in the future.


Senator Arkins - Will the honorable senator object to that?


Senator HERBERT HAYS - I am not prepared to commit myself in that regard. One has to consider future developments, avid I cannot forget the fact that the Labour party stands for the nationalization of industries.


Senator Collings - While we are waiting for orderly marketing schemes, the primary producers may be ruined.


Senator HERBERT HAYS - We have had 35 years' experience of the present Constitution, and on many occasions the people have rejected proposed alterations submitted by governments of various political creeds, even when all parties were in agreement as to the wisdom of the proposals. It would be foolish to say that, because we in "this chamber think a thing is desirable, it will be accepted by the people. This proposal must be placed before the electors and reasons given to them why they should agree to an alteration of the Constitution. They will need to be convinced that there is only one object in view, and that the proposed new section cannot be construed to mean other than what the Minister has said it means. If we can satisfy the people on those points, well and good; but. I cannot lose sight of the fact that at a recent conference of Premiers, three governments expressed opposition to this legislation. Judging by what has happened in the past, I fear that, unless something be clone along the lines suggested by Senator Payne, there will be difficulty in getting the people to agree to the alteration.


Senator Arkins - Does the honorable senator believe in orderly marketing?







Suggest corrections