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Thursday, 24 June 1937


Senator COLLINGS (Queensland) - As the representative of the Opposition in this chamber, I intend to oppose this bill vigorously.


Senator McLeay - Under instructions ?


Senator COLLINGS - I do not know whether the honorable senator receives instructions concerning the attitude which ho is to adopt on the measures that come before this chamber, but as the members of the Labour party always faithfully adhere to that party's policy there is no need for them to receive instructions. It may be well for honorable senators to review the history of the Inter-State Commission before coining to a decision on this measure. I realize that any reasons which we may give why this bill should not be passed will be wasted upon honorable senators opposite, who doubtless have already received instructions and must vote accordingly. I shall, however, endeavour briefly to outline the history of the InterState Commission. The establishment of such a commission is provided for in sections 101-104 of the Commonwealth Constitution, and the Inter-State Commission Act of 1912 purported to give effect to those sections. In moving the second reading of the Inter-State Commission Bill in 1912, the then AttorneyGeneral (Mr. Hughes) said -

It lias to bc noted that the Inter-State Commission will not be merely a commission of inquiry. It will possess, as I have already pointed out, powers of administration and of adjudication. It will be a Court of Record. It may make orders and enforce them in exactly the same way as any other Court. It will lie subject, of course, to' the limitations imposed on its jurisdiction and powers by the Constitution and in matters of law by the right of appeal to the High Court, but" upon matters of fact within its jurisdiction its decisions will he final.

According to the wording of the 1912 act,' particularly part II., Mr. Hughes's words were justified. It was under part II. that eventually the activities of the commission were upset. Section 5 (2) provided -

Every appointment to the commission shall be for seven years.

That is the period provided in this measure. Unfortunately for those sponsoring this bill, section 72 of the Constitution reads -

The Justices of the High Court and of the other Courts created by the. Parliament -

(i)   Shall be appointed by the GovernorGeneral in Council;

(ii)   Shall not be removed except by the Governor-General in Council on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity ;

(iii)   Shall receive such remuneration as the Parliament may fix but the remuneration shall not be diminished during their continuance in office.

The members of the commission appointed in 1912 fulfilled all those conditions except that they were appointed for seven years, and not as provided for in section 72 of the Constitution. The High Court held in 1915, in the case New South Wales v. the Commonwealth, C.L.R. 54, that as section 103 of the Constitution provides that members of the Inter-State Commission shall hold office for seven years, the Constitution does not authorize the Parliament of the Commonwealth to constitute the Inter-State Commission a court, and that the commission could not issue an injunction. In consequence of that decision the 1912 act became to a great extent inoperative and so did the commission, because the only powers it retained were those of investigation. Mr. Hughes' words, in relation to the 1912 legislation, have therefore been rendered meaningless by that decision of the High Court, and all that has happened since. It is interesting, therefore, to compare the present bill with the former bill, and also Mr. Hughes' words, some of which I have quoted, with Senator Pearce's words last night. The sections of the 1912 act, which conferred judicial powers on the commission, and were proved invalid, have disappeared, and only an anaemic set of provisions on the subject of investigation remains. The commission's sole function - it is not a power - is that of investigating and reporting. I commend that to the notice of the Senate. As explained by the capable Minister who explained the bill last night, it may appear an attractive proposition; if honorable senators are not critical in their approach to the bill,' they may easily be carried away by the eloquence and special pleading of the Minister whose job is to get the measure accepted. I repeat that the commission's sole power is that of recommendation; it can only investigate and report. It may, or may not, make a recommendation, and there is no suggestion that if a recommendation is made there will be any necessity for the Government to act upon it. Compare Mr. Hughes' introductory words with those of the right honorable senator who submitted the bill last night. Mr. Hughes concentrated his remarks on the powers of the commission as a judicial and administrative body, not forgetting that a function of the commission was to arbitrate in disputes. His hopes, of course, were soon dissipated by the High Court. Senator Pearce, on the other hand, confined his remarks to the investigatory powers of the commission. " Powers " is a word, which, I have indicated, should not apply to any commission, board or advisory council set up merely to investigate. With all respect to the Leader of the Senate (Senator Pearce) I say that some singular feats of reasoning were performed by him in his remarks in introducing this bill when he said -

I desire to refer once again to the provision relating to the initiation of inquiries on the complaint of any State.

We know why that was done. Innocent members of the Opposition do occasionally wake up to things. We realize why that special appeal was made to the representatives sent to this chamber from the different States. Senator Pearce continued -

In this right of initiation the States are to be given a very real power to bring before the public notice any anomalies, preferences, , or discriminations alleged to exist in relation to interstate commerce.

We all know that that is a serious bone of contention at the moment. We have had a referendum on the matter. The Government now wonders what it is going to do to get out of its difficulties - difficulties which I contend should not "have arisen, and which a government ready to take its courage into both hands would readily surmount. It is ridiculous to say that these problems of legislation and administration cannot be got over if the Government is prepared to adopt a courageous course in relation to them. Senator Pearce continued -

It is real in the sense that any State which feels that it is being unfairly affected by Commonwealth legislation as to trade will have a statutory right to bring its complaint before an independent body empowered to investigate the complaint and report the result of the inquiry to the Governor-General.

I am opposed to this continued delegation of powers and functions which should be exercised by the Government to commissions, boards, advisory councils, and other bodies. I believe that the time has arrived when there should be far less paraphernalia of government than there is to-day. I believe that the people are prepared to scrap the State parliaments and, if asked sanely, give full power to the Commonwealth Parliament when they feel that they have a government that they can trust.


Senator JAMES McLACHLAN (SOUTH AUSTRALIA) - The honorable senator is optimistic.







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