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Wednesday, 2 December 1936


Senator SAMPSON (Tasmania) .- The possible effects of this bill are so far-reaching, and the subject is so important, that I take this opportunity, on the motion for the third reading, to put on record some thoughts concerning it, as I had no opportunity of speaking on the second reading or in committee. Before I deal with the bill, which, if the referendum be carried will mean an alteration of the Australian Constitution - a matter of great gravity, calling for the very closest thought - I should like to express a few ideas with regard to the origin and functions of the Senate. In a «ase of this kind, when we are considering an issue of such gravity, which may have far-reaching effects, it is well for us, as senators, to pause and consider what the functions of the Australian Senate are. It is interesting to read the reports of the debates of the conferences and conventions that were held prior to federation, and to ascertain from them what purpose this chamber was intended to serve. Quick and Garran, in The Annotated Constitution of the Australian Commonwealth, have put on record the following remarks regarding the Senate -

The Senate is one of the most conspicuous, and unquestionably the most important, of all the federal features of the Constitution, using the word " federal " in the sense of linking together and uniting a number of co-equal political communities, under a common system of government. The Senate is not merely a branch of a bi-cameral parliament; it is not merely a second chamber of revision and review representing the sober second thought of the nation . . . it is that, but it is something more than that. It is the chamber in which the States, considered as separate entities, and corporate parts of the Commonwealth, are represented.

We should, always bear that in mind. On many occasions I have heard not only in this chamber, but also outside cheap sneers directed towards those honorable senators who believe in protecting the rights of the States. We have been called " State-righters " and " little- Australians ".


Senator Arkins - It is overdone.


Senator SAMPSON - I intend to deal with that point before proceeding, because I am quite sure that many fail to grasp the fundamental reasons why this chamber was established. Honorable senators are members of this chamber not to represent any political party, but to act on behalf of the States whose electors sent them here. They have been elected to maintain and protect the constitutional rights of the States against attempted invasion, and to have every facility to advocate their peculiar and special interests as well as to ventilate their grievances. This is the chamber in which that can be done to the best advantage; that was the idea in the minds of the framers of the Constitution. The Senate is a council of the States, and it was once suggested that it should bear that name. Each original State is represented by six senators. Equality of representation is only just because prior to the inception of federation the powers of the colonies were equal politically. In the matter of the resources, population, and area, they were not equal, but they were equal politically. They were equal in constitutional power and in status although, as I have said, they were not equal in resources, population, or area. Territory, population, and, resources do not provide an actual test of political status. The test is the sovereign power to govern, and prior to federation the six States had self-governing powers. One of the conditions of the federal bargain was that, in consideration of the transfer of general powers to the Commonwealth, each colony should, on becoming a State, retain its relative equality and individuality unimpaired. Although the States came into the union, they were still to retain certain powers and this could be assured only by equality of representation in this chamber. The Senate was to be a council of the States, and had that not been provided the federation of the Australian colonies would never have been accomplished.

Under this bill section 92 of the Constitution is to be emasculated or qualified, provided of course that a majority of the electors in a majority of the States favour the proposed alteration of the Constitution. It may sound boastful to say that many of us knew that section 92 meant exactly what it provides - that trade, commerce, and intercourse between the States shall be free.


Senator Abbott - What about section 51?


Senator SAMPSON - I am now dealing with section 92. This is the only opportunity I shall have to put my possibly ill-considered and ill-digested views on record. In order to grasp the significance of section 92 two questions have to be considered. First, what is absolute f freedom of trade, commerce, and intercourse; and, secondly, during what period of time or within what limits of space do interstate trade and commerce operate so as to remain protected by the shield of federal freedom? In reference to the first question - I am quoting Quick and Garran - " absolute freedom of trade, commerce, and intercourse " may be defined as " the right to introduce goods, wares and merchandise from one State into another, the right to sell the same, and the right to travel unburdened by State restrictions, regulations and obstructions ". ' Freedom of trade necessarily means the right to sell, introduce and travel in order to sell. The right to introduce without the right to dispose would reduce freedom of trade to an empty name.


Senator Sir George Pearce - The reference to regulations is to State regulations.


Senator SAMPSON - Yes. This measure is to qualify section 92 of the Constitution by limiting the words " absolutely free ". It really means a mutilation of one of the basic principles of federation. Limitations are to be imposed upon the freedom of interstate freetrade, one of the essential features of the federal union. I believe that it was the prospect of this freedom of opportunity that brought Tasmania into federation. Tasmania, which desired unrestricted access to interstate markets, is now asked to forfeit, n. portion of its sovereignty, which the Commonwealth, having failed to take for itself, now seeks to have conferred upon it. Trade between the States, as Tasmanians know too well, has been a good deal less than " absolutely free ". We recall what we had to contend with when the Victorian Government denied the entry into Victoria of Tasmanian potatoes for reasons which the High Court held to be a violation of the Constitution. After years of patient pleading, we had to fight to establish our claim to freedom of interstate trade for our produce. We merely wanted the same freedom as other States have always had in Tasmania for their manufactured goods, even to the extent of dumping. I do not wish to go into the history of our boot factories, flour mills and other commercial concerns that were operating successfully prior to federation. They were absolutely wiped out when we came into the union.


Senator Sir George Pearce - What about the Cascade Brewery?


Senator SAMPSON - It has managed to keep its end up; we have been loyal to it through thick and thin. Tasmania is very hesitant to accept any modification of a right which under the federal' contract is assured to it. Constitutional lawyers differ as to the meaning of simple language in which absolute freedom of interstate trade is expressed. How much more are they likely to differ as to the scope of tb» modification proposed in the

Menzies amendment? It sounds simple, but is it? The qualification is neither simple nor definite. What it permits in trade restrictions between the States will depend upon the interpretation of the powers of this Parliament. Under section 92, interstate freetrade is assured, but with the addition of the Menzies modification, this assurance will disappear.

I am opposed to the bill, but I know I shall be told that I am one of those wretched persons who has no sympathy for the poor, down-trodden primary producers. Similar accusations have been made against me quite recently, but they do not affect me in the slightest. The Commonwealth Parliament has done a tremendous lot for the man on the land without any alteration of the Constitution. I have also been told that primary producers generally are clamouring for an alteration of the Constitution. We have been informed that they are only waiting to vote, and that the proposals to be submitted to the people will be carried by an overwhelming majority. I have not seen any indication to justify that optimism. At a meeting held at Windsor, New South Wales, on the 14th November last, representatives of the New South Wales citrus-growers had a general discussion regarding the steps to be taken by the Citrus-growers Defence Association in . connexion with the pro-, posed alteration of the Constitution, It was decided that the branches be asked to work in their districts to cultivate a public feeling against the proposal. According to a paragraph in the Sydney Sun of the 17th November last, the Junee branch of the Graziers' Association resolved by a small majority to oppose the inclusion of proposed new section 92a in the Commonwealth Constitution, because it considers that the proposed alteration will deal a death-blow to our federal system. I have also received letters from various associations in my own State and in others, which do not indicate that the people generally are falling over themselves to support this proposed alteration of the Constitution. I think, therefore, that, though it is contended that there is a desire to help the primary producers, opinion regarding this proposed alteration is not so unanimously in its favour as 'Some honorable senators would have us believe. History shows that it is extraordinarily difficult to get a proposed alteration of the Constitution approved by the people., and during recent months I have repeatedly asked what will be the plans of the Government if the referendum question be not answered in the affirmative. I have put the question to the Attorney-General (Mr. Menzies), the Prime Minister (Mr. Lyons), and to other members of this Parliament, but the only reply that I have been able to get is, in effect, " We shall take our jumps when we come to them." I take it that, after the referendum is taken, the jumps will still be there, and will still have to be taken; it will be interesting then to see how the Government proposes to overcome the obstacles. I believe that, without this emasculation of section 92, this Commonwealth Parliament has power to deal with the present position; I may be wrong, I am not a constitutional lawyer; but no one seems to be able to say what power to regulate interstate trade the proposed alteration of the Constitution would take from the States and hand over to the Commonwealth. Section 92 is clear and explicit; it sets out in plain and simple language what the framers of the Constitution meant; and the Privy Council says definitely that it means what it says. There can be no argument about that. If we insert the proposed new sub-section in the Constitution there will be nothing but arguments as to within what limits the powers conferred may be utilized. Those powers- are not laid down in precise terms, and I regret very much indeed that the Senate in its wisdom did not see fit to agree to the amendments moved by Senators Badman and Payne. What the High Court may interpret out of proposed new section 92a is known to no one; it is entirely in the lap of the gods. In conclusion,, I suggest that the history of constitutional referenda shows that the people in the main are always conservative, and will not give any government, no matter how it is constituted, a blank cheque. In my opinion, the proposed new section is a blank cheque, which I do not propose to give to this or any other government.







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