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


Senator BRENNAN (Victoria) (Assistant Minister) . - in reply - In what I have to say in reply to the very admirable speeches made in this debate I am not going to paint the lily. I shall say nothing of the remarks made by honorable senators who have spoken so admirably in favour of the Government's proposal. There was another group of speakers, represented by the Leader of the Opposition (Senator Collings), who, while intending to support the Government - and I suppose that is the main thing - are not yet quite satisfied that the Government has done everything that it might do to make this proposal acceptable to the people. The honorable senator thinks that we should have attached, or rather hobbled, to this proposal another proposal that greater industrial power should be granted to the Commonwealth. As to that, I can merely say that I do not propose to discuss, on this measure, merely abstract propositions.


Senator Collings - I said that there are some people who hold that view; I am not one of those who want any other proposal tacked on to this one.


Senator BRENNAN - I understood the honorable senator to say that he was in favour of the attempt to get at this referendum, full industrial powers for the Commonwealth.


Senator Collings - I said wider powers, but not at this referendum.


Senator BRENNAN - In reply to members of this chamber, and people outside, who hold that view, I point out that the Government fully considered those matters and realized, as fully as it could possibly be realized, that it would be utterly futile to ask the people, on such short notice, to agree at a referendum to proposals which would involve further and indefinite grants of powers to the Commonwealth in addition to those contained in this proposal. The experience of the past has shown how very unwilling the people of Australia are to confer extended powers on the Commonwealth and certainly if ever there was a time when that unwillingness was particularly pronounced, it is at present.

Senator Coopersuggested that bravery was not the only merit required in a soldier - he required also discretion if he were not to be shot. We fully realize that if we went to the country now for wider industrial powers for the Commonwealth, we should be shot, figuratively speaking, on every platform we mounted. The Leader of the Opposition will not, I think, deny that he said, perhaps in a burst of rhetoric, that I knew that this proposal would not give the powers of orderly marketing which the Government claims that it will. I deny that. I believe that the grant of powers to be asked for at the forthcoming referendum will have the effect of putting the Commonwealth almost in the same position as it occupied before the Privy Council gave its decision in the James case.

Senator Millenopened the real attack on this measure, and his onslaught has teen developed by Senators DuncanHughes, Grant, and other honorable sena- tors and has eventually led, apparently, to the formulation of two different amendments which have been outlined during the course of this debate. In his condemnation of the bill Senator Millen used language, the reasoning of which I cannot follow. He said that this proposal would lead to unification; that marketing would cover every possible trading and commercial activity in the Commonwealth ; that this proposal would sweep out section 92 of the Constitution altogether; and that, if we were going on with the proposal, we might as well take section 92 out of the Constitution. I cannot follow that reasoning. As to the first point - unification - if this proposal involved the granting of far-reaching powers to the Commonwealth I could understand the honorable senator contending that it would lead to unification because so many powers would be given to the federation that the maintenance of the complicated system of State parliaments to carry out the little work which would be left to them to do, would not be worth while.


Senator Millen - That is what I said.

Senator BRENNAN.But the honorable senator's observations were based entirely upon the fallacy that the word " marketing " is wide enough to include all forms of commercial activity. From that view I entirely dissent. It is rather remarkable that honorable senators who support that argument, although they had the opportunity to do so, did not give us some illustration of the way in which the word "marketing" could be used to extend definitely the powers of the Commonwealth.


Senator Grant - It is the AssistantMinister's privilege to explain that to the House.


Senator BRENNAN - I do not think it is the Minister's privilege, as my colleague in another place would say, to instruct honorable senators on the meaning of simple English words. I think that the word "marketing", although it. has not, up to date, a place in the Constitution, is a reasonably simple word.


Senator Badman - What does the Government intend it to mean?


Senator BRENNAN - What it says. One cannot define the unknown by the more unknown. Although it has not been used before in- the Constitution, we think that it is a simple word which will be understood and appreciated. The weakness of the argument of the honorable senator, and those who support him, is that it does not take into account other parts of the Constitution.


Senator Sir George Pearce - Or the last words of the amendment.


Senator BRENNAN - That is so. Apparently when he was speaking the honorable senator did not realize that, section 99 is still in the Constitution, and that it forbids a preference by the Commonwealth to a State or any part of a State. He does not realize that section 51 (i) is still in the Constitution. Paragraph (i) of section 51, itself, does not limit, but gives powers ; but its importance is that it says that one of the subjects - a subject which is placed right in the forefront in this respect - in which power of control is granted in the Constitution, is " trade and commerce with other countries and among the States." Therefore, there is a power expressly conferred upon the Commonwealth to legislate on matters which deal with trade and commerce with other countries " and among the States." There is, nowhere, power given to it to deal with trade and commerce within a State and, therefore, it has not got that power. Thus all the bogys that the honorable senator raised were based on the fiction that the Commonwealth, by virtue of this alteration, would be given some power over intrastate trade.


Senator Payne - Section 51 is subservient to section 92?


Senator BRENNAN - Yes. It gives to the Commonwealth full power to legislate in respect of trade and commerce with other countries and among the States, subject to the limitation imposed by section 92. That, however, has nothing to do with the point with which I am dealing. Then again section 107 still remains in the Constitution. It reads -

Every power of the Parliament of a colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the

State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

Thus those powers which the States possessed in 1900, when Australia entered into the federation, insofar as they had not been given away in sections 51 and 52, still remain with the States. Therefore, the Commonwealth has no power to override the States or any of the States by making inroads upon their powers in respect of intra-state trade. So far as I can judge by what has been said, every honorable senator is in favour of the law as established by the decision of the High Court in the McArthur case in 1920, and would be satisfied that the condition of things established by that judgment should continue indefinitely. If that is so, I am utterly unable to understand how any honorable senator can object to the proposal embodied in this measure. There arc some who say that this proposal goes much further than is rendered necessary by the decision in the James case. Senator Milien contends that it really goes further than the position that existed before section 92 was adjudicated upon by the Privy Council. Surely the words of section 92 are plain: "trade, commerce and intercourse among the States . . . shall be absolutely free". In the proposed new section 92a a limitation is sought to be imposed -

The provision of the last preceding section shall not apply to laws with respect to marketing made by. or under, the authority of the Parliament ....

But it does not stop there. It continues - . . in the exercise of any powers vested in the Parliament by this Constitution.

It expressly limits the Commonwealth's power to what it was previously, but puts a limitation on section 92 by providing that it shall not apply to certain marketing schemes. It provides a limitation of the law as expressed in the McArthur case.

I now come to the proposals made by Senator Payne and Senator Badman. I do not know whether it is intended that these suggested amendments should be cumulative or whether one over-rides or is subservient to the other.


Senator Payne - One need not override the other.


Senator BRENNAN - If both amendments were agreed to we would have an extraordinary jumble in what has been described as a monument of legislative capacity.


Senator Payne - Cannot the Assistant Minister deal with them separately?


Senator BRENNAN - It is difficult to do so. I shall deal first with the proposal of Senator Payne.


Senator Badman - Why not wait until the committee stage is reached?


Senator BRENNAN - Because Senator Millen, Senator Grant and other honorable senators have indicated that, unless some amendment is to be made, they will vote against the second reading of the bill. There is only one operative clause, and if honorable senators are going to vote against it. they may leave the Government without a majority, and in that way destroy the whole measure. It is, therefore, essential that I should explain the position that would arise if the alteration of the Constitution suggested by Senator Payne were adopted. The honorable senator proposed that section 92a should read -

The provisions of the last proceeding section shall notapply to laws with respect to marketing made by-or under the authority of Parliament in the exercise, at the request of States concerned in the disposal of products overseas, of any power vested in the Parliament by this Constitution.

That amendment; even as it stands, would be difficult of interpretation, but the difficulty would be increased if read in conjunction with Senator Badman's amendment. I do not wish Senator Payne to think that the Government is treating his proposal with undue hostility. The Leader of the Senate and I considered it carefully and I consulted the AttorneyGeneral (Mr. Menzies) to-day, but it was one of five alternative proposals that, were placed before the conference of Commonwealth and State Ministers held in Adelaide, and it was rejected. One of the reasons why the Government cannot accept it is that it would not carry us any further than the proposal in the bill. The Government is convinced that the fears entertained by certain honorable senators that this alteration, if adopted, would vest the Commonwealth with powers' which it does not now possess, and in some extraordinary way increase its capacity to legislate in a way which it has not attempted or desired to do in the past, are without justification. The history of Commonwealth action since this system was first started proves that the Commonwealth has no desire to uusurp or arrogate to itself such powers. It has never acted in these matters except at the suggestion of the States.


Senator Grant - Does the AssistantMinister say that the Commonwealth cannot so act?


Senator BRENNAN - The suggestion at the back of that question is that the Commonwealth Parliament cannot bc trusted because it is bound to misuse its powers. Does the honorable senator realize that this Parliament could, tomorrow, pass a measure prohibiting the export from Australia of a. solitary bale of wool?


Senator Grant - Of course it could.


Senator BRENNAN - But it does not.


Senator Collings - Because it does not consist of a body of madmen.


Senator Badman - One Government prohibited the export of sheepskins..


Senator BRENNAN - Yes, by proclamation; it was not this Government.


Senator Grant - Other governments may do so.


Senator Collings - That is the bogy There . may be another government, but the honorable senator cannot stave off that possibility.


Senator Grant - I admit that, but I do not want the Commonwealth to be granted more powers than it already possesses.


Senator BRENNAN - I can assure honorable senators that the power to initiate these proposals will still lie with the States. The Commonwealth having no power over intra-state trade, cannot initiate marketing legislation.


Senator Payne - Will the AssistantMinister explain why, in his opinion, my amendment will weaken the position?


Senator BRENNAN - I have not said that it will weaken it, hut it adds nothing to it. It cuts into the limited time allotted for the discussion of the two Constitution alteration ' bills. A call of the Senate has been fixed for the 2nd December, and another constitutional alteration has to be agreed to before the end of the present period of the session. If this proposal is amended and sent, . to the House of Representatives, it will be debated there, and when it is returned to the Senate it might be further amended. We do not know what delays will be caused. In these circumstances there is a great danger that this measure, concerning which there is a good deal of anxiety and need for haste, may be so delayed that it will be lost.


Senator Payne - Is it not the main objective of the Commonwealth to submit the proposal to the people in such a form that it will be approved?


Senator Sir George Pearce - The amendment of the honorable senator will not help to achieve that purpose.


Senator BRENNAN - It would bc much easier for Senator Payne to inform the electors of Tasmania that all that is proposed is to give to the dairy-farmers and the producers of dried fruits exactly the same protection as they were afforded between 1920 and the early part of 1986.


Senator Payne - That is what I wish to do.


Senator BRENNAN - In Senator Payne's amendment, the words " at the request of the States concerned " are used. What do those words mean?


Senator Payne - The States concerned in the marketing of these products.


Senator BRENNAN - It does not say so. A State which does not produce one ton of dried fruits may be concerned in what is being done over the border.


Senator Payne - The legislation covers only certain commodities.


Senator BRENNAN - That is the first point that should receive attention should we desire to give effect to the proposal. " At the request of the States concerned " is a doubtful expression. How is the request of the States concerned to be evidenced? Is it to be by an act of Parliament, by resolution of both Houses, or by a request from the Executive?


Senator Payne - Section 51 of the Constitution provides how it shall be done. Matters may be referred by the States to the Commonwealth. How has it been done before?


Senator Sir George Pearce - There has never been such a proposal.


Senator BRENNAN - What does the honorable senator mean by the words " at the request of the States concerned ? How is that request to be conveyed?


Senator Payne - How have requests been conveyed before?


Senator Sir George Pearce - Does the honorable senator mean by a letter from one government to another?


Senator BRENNAN - There has never been a position exactly similar to that which would arise if the words used by the honorable senator wereincluded.


Senator Sir George Pearce - When the Commonwealth has legislated previously, it has been at the request of a State government.


Senator BRENNAN - Yes; a request to pass certain legislation, and this Parliament has done so.


Senator Payne - That is the point.


Senator BRENNAN - The honorable senator fishes to include in the Constitution something that is not there. No onehas suggested that there is anything actually wrong with the amendment, but when such words are embodied in the Constitution they have to be proof against the criticisms and opposition of those who may desire to test the validity of our action, as was done in the James case.

The amendment suggested by Senator Badman precedes in point of position that with which I have just dealt. It reads -

The provisions of the last preceding section shall not apply to laws withrespect to marketing of either raw or processed primary products being foodstuffs.

There is at the outset a contradiction of terms, because if a product is processed it is not a primary product.


Senator Badman - What of butter and flour ?


Senator BRENNAN - The second objection is that the time may come when we may wish to export other than foodstuffs, and in that event all this procedure for altering the Constitution would have to be gone through again. The alteration would have to be agreed to by both Houses of the Parliament and by a majority of the people and a majority of the States. I assure the honorable senator that we do not lightly overrule these proposals.


Senator Sir George Pearce - They have been considered by Cabinet.


Senator BRENNAN - Yes; the fears expressed by Senator Badman and Senator Payne are unwarranted. What is a primary, secondary or raw product? Arc hides a primary or a secondary product? Leather, we may ' assume, is a secondary product.

The DEPUTY PRESIDENT. - The honorable senator's time has expired.







Suggest corrections