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Thursday, 19 November 1936


Senator BRENNAN (Victoria) (Assistant Minister) . - Nobody doubts the honesty or sincerity of the opinion which has been expressed by Senator Payne, but my objections to the amendment are, first, that it adds to the difficulties of construing the section; and, secondly, it is obscure. The first obscurity occurs in the words " at the request ". I asked last night, when replying to the second-reading debate, in what way is the request to be manifested - by an act of Parliament, a resolution of Parliament, an executive minute of some sort, or by a letter from a State Premier? The next obscurity occurs in the words " at the request of the States concerned ".


Senator Badman - Did not the States make requests previously to the Commonwealth to pass marketing legislation?


Senator BRENNAN - They did; but they did not make such requests pursuant to something contained in the Constitution. They made a request as a matter of arrangement between governments; but governments cannot arrange to abrogate, or explain away, or fritter away any passage which is in the Constitution.


Senator Badman - In what manner did they make those requests?


Senator BRENNAN - I don't know that it matters.


Senator Badman - Then it does not matter in this instance.


Senator BRENNAN - It does, because this is liable to be attacked. Suppose that a letter passes between a State Government and a representative of the

Federal Government, and on that, the Federal Government or State Government acts by passing legislation. That legislation may be attacked as being unconstitutional on the ground that no request was received from the States concerned. A letter or an after-dinner conversation will not suffice. There must be something in the nature of an expression of the will of the Parliament concerned in this regard.


Senator Payne - Exactly.


Senator BRENNAN - The honorable senator will see that he is poles apart from, what Senator Badman has said. We have drafted a proposed amendment which we think is workable in the way in which the honorable senator suggests, perhaps by the submission of a request from the States to this Parliament; but whatever legislation is passed by the States or the Commonwealth must be within the terms of that new section. Any State, I venture to say, has 'a right to say " We are concerned in this question as to what quantity of dried fruits will remain in Australia and what will be exported ". Therefore, any single State, even Tasmania, which has the smallest population and does not process dried fruits, would be entitled to prevent the adoption of a marketing scheme if Senator Payne's amendment were inserted in the bill. My third point is that the proposal is quite unnecessary. Senator Payne is concerned that the Australian public will be afraid that some powers are being sought by the Federal Government which it is not disclosing. My reply is that the proposed alteration for which the bill provides is an extremely simple issue. It is designed to restore the position which obtained prior to the recent decision of the Privy Council.The honorable senator would Is have the greatest difficulty in explaining on .the public platform what is meant by the following :-

The provisions of the last preceding section shall not apply to laws with respect to marketing made by or under the authority of the Parliament in the exercise, at the request of the States concerned in the disposal of products overseas, of any powers vested in this Parliament by the Constitution.


Senator Grant - I recently called attention to a legislative provision which is more obscure than that.


Senator BRENNAN - Yes, and I elucidated it for the honorable senator, but it was not a proposal to be submitted to the people at a referendum. The proposal contained in the bill can be easily explained to the electors, but, as proposed to be amended by Senator Payne, it would be obscure in the extreme.

The term " marketing " is said to be wide and obscure. In 1927, in the first James case, the word was prominently before the High Court. In the judgment of Mr. Justice Isaacs and Mr. Justice Powers, are constant references to " marketing " and " marketed ". Their Honours stated, inter alia: -

Confining ourselves, in the first instance, to the language of the instruments - section and determination - the central word is " marketing ". The determination of the board is to regulate "marketing" as to ( 1 ) " where ", or (2) "in what respective quantities" the output of dried fruits may bo " marketed ". The word " marketed " in the determination must be given the same meaning as it has in the act. " Marketing " of dried fruits is indeed the central purpose of the act, as may be seen by- reference to its title.

I cite that portion of the judgment to show that their Honours constantly repeated the word " marketing " and never suggested the slightest difficulty as to its meaning. In 1931 the British Parliament passed the Agricultural Marketing Act, the first section of which states -

A scheme regulating the marketing of an agricultural product by the producers thereof may be submitted to the Minister . . .

At several places in that act references are found to " marketing ", and not the slightest doubt is cast upon its meaning. My leader stated yesterday that when the court came to construe the meaning of a word used in a statute, it would consider the sense in which it had been used in other acts of the same kind. For instance, in construing the meaning of a word occurring in an Australian act, one could be guided by its use in English acts dealing with similar matters. In 1934 an act was passed in Canada "To improve the methods and practices of marketing of natural products in Canada and in export trade, and to make further provision in connexion therewith ". That measure contains a definition of "marketing", and the word is used throughout the act. In statutes passed in Great Britain, Canada, and Australia, the word is employed as an ordinary English term.

As the Leader of the Senate pointed out yesterday, the expression occurs in various acts passed by the parliaments of the Commonwealth and the States, and never has any doubt been expressed as to its meaning.


Senator A J McLACHLAN (SOUTH AUSTRALIA) - The Privy Council suggested no difficulty in that regard.


Senator BRENNAN - That is so. I can throw no further light upon the subject. I suggest that honorable senators would be well advised to accept the clause as it stands. It was drafted in its present form after the Attorney-General and other members of the Cabinet, both legal and lay, leading King's counsel in Sydney and Melbourne, and professors of constitutional law in Melbourne, had had their attention directed to this very point. All were satisfied that there was no difficulty as to the interpretation of " marketing ". I regret to have to run counter to the views put so strongly by my friend Senator Payne, but I ask the committee to reject the amendment.







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