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Thursday, 24 June 1937

Senator BROWN (Queensland) . - I agree with my leader that at this juncture, particularly, it is wrong for the Government to bring in this measure, because legislation of this nature was promised several years ago, and it is only now, on the eve of the dissolution of this Parliament, that it has seen fit to attempt to fulfil its promise. Furthermore, if we can rely upon current rumours, one or two members of this Government are to be appointed to lucrative positions as members of the proposed commission. Frankly, I do not object to the appointment of a parliamentarian to any position which he is capable of filling. It seems to me, however, to be indecent on the part of the Government to make this proposal in the dying hours of the Parliament. If it had brought this measure forward early in its term of office, possibly our attitude might have been modified.

Some time ago, I saw a film entitled Mr. DeedsGoes to Town, which was claimed to be one of the finest productions in recent years. That picture contained a scene of proceedings in a court in which an alienist gave evidence; after he had testified regarding the crankiness of people of certain types, the .defendant went into the box and called attention to the mental aberrations and nervous habits of many other kinds of people. For instance, he described as " 0 fillers " certain people in the court, who, while listening to the evidence, occupied their time by filling in the " O's " in printed matter before them. And the alienist happened to be one of those people ! Sometimes 1 believe that members of this Government suffer from mental aberrations, and although they may not be aptly, described as "Ofillers", they certainly are "pigeon-hole fillers". One of our complaints against this Government is that it is a filler - of pigeon-holes, and the proposed commission will probably give it further opportunities to indulge its proclivities in that direction. One of the blots on modern democratic systems is the readiness with which parliaments delegate their duties to boards and commissions, aided by well-paid officials. If any very great advantage accrued from the work of royal commissions we could not oppose their appointment, but it i3 common knowledge throughout Australia that this Government and its predecessor has expended about £100,000 on royal commissions, although most of the work accomplished by them has been disregarded and their reports have been pigeonholed. It is admitted that most of the reports of the previous Inter-State Commission were pigeon-holed. My Leader has referred to one suggestion of the Inter-State Commission which resulted in the formation of a valuable body, and. in that respect I endorse his remarks in regard to the establishment of the Council for Scientific and Industrial Research. A writer of an article which appeared in a recent issue of the Australian Quarterly Review, mentioned that many of the reports of royal commissions were used merely to fill up the volumes of parliamentary papers. Dealing particularly with the work of the Inter-State Commission on the tariff, he said that undoubtedly it conducted an intense investigation of tariff matters, and added, " Those investigations comprise two enormous volumes of parliamentary papers, including masses of statistics and reports of evidence ". Most of these, of course, have been pigeon-holed, and only a few historians ever see them. Possibly there would be less objection to the re-constitution of the Inter-State Com mission if the Government were to declare that no other royal commissions would be appointed, but that all work of a nature previously referred to royal commissions would be done by the Inter-State Commission. However, we are not sure that, if the Government should, by some chance, be returned to office at the nexelection, the appointment of royal commissions will cease, and a stop will be put to the increasing cost of such investigations and the wasted effort they represent. Within seven years the salaries of members of the Inter-State Commission will amount to £45,000, in addition to considerable contingent expenditure. We know that, as soon as a commission is set up, its members require assistants and must travel from one end of the country to the other. It is questionable whether these commissions ever achieve anything to justify the money expended on them. It has been said that under section 101 of the Constitution, the appointment of an Inter-State Commission is mandatory, but I believe that thirteen years elapsed after the inception of federation before such a body was appointed. The Inter-State Commission which functioned until 1920 or 1921 was thought to enjoy extensive powers, but in the wheat case New South Wales v. The Commonwealth the High Court ruled that the commission, by virtue of its limited tenure under section 103, could not be a court and could not exercise judicial powers. According to an interesting article which appeared in the Australian Quarterly, the powers vested in the Inter-State Commission were so extensive that it could hear and determine complaints, award damages, inflict heavy fines for disobedience of its orders, and even commit persons to prison for failure to pay. It could also compel witnesses to attend, and be examined on oath. The Government now contends that, in view of section 101 of the Constitution, the InterState Commission should be reconstituted, and the bill sets out fully the scope of the work which the commission is to undertake. If the people really thought that 'the appointment of such a commission would be of advantage to the Com-, monwealth, there would not be strong opposition to its reconstitution; but many of the subjects which would be referred to the commission for investigation and ' report have already been fully investigated by other commissions, and their reports are at the disposal of the Government. Instead of creating additional investigating authorities, definite action is required. For instance, the Government is well aware of the difficulties being experienced by the less populous States, and all that is needed is immediate financial relief to enable the governments of those States to function satisfactorily. A democracy should be as 'active as a dictatorship. While we have bourgeois governments we shall always have inquiries by commissions.

Senator Leckie - 'What does the honorable senator mean by that?

Senator BROWN - If the honorable senator will refer to the Oxford Dictionary, he will see what bourgeois means. There is a difference between a bourgeois democracy and a proletarian democracy. For the edification of Senator Leckie, I may say that when I speak of proletarian democracy, I am referring to the type of democracy which, owing allegiance to the people, solves problems by action rather than by investigation.

The PRESIDENT (Senator the Hon. P. J. Lynch). - The honorable senator must confine his remarks to the bill.

Senator BROWN - I was merely showing that we should have a clear understanding of the word " democracy " before we vote on the second reading of this bill. If the Government perused reports of commissions which have already inquired into various problems, it would find that there is no need for the appointment of an Inter-State Commission. Section 101 of the Constitution provides -

There shall be an Inter-State Commission with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.

Clause 21 of the bill reads: -

It shall not be lawful for any State, or for any State railway authority, to give or make upon any railway the property of the State, in respect of interstate commerce, or so as to affect such commerce, any preference or discrimination which the commission adjudges undue and unreasonable or unjust to any State.

The Minister should study that clause in conjunction with clause 22. If a State government, objecting to a decision of the commisison based on clause 21, took the case to the High Court, its judgment would be similar to that given in the case New South Wales v. The Commonwealth.

Senator Sir George Pearce - In the Wheat case, the commission had adjudicated ; under this bill, it can only ascertain the facts.

Senator BROWN - If a State authority decides to impose certain freight charges on its railways, the commission will have power to decide whether such charges- are lawful.

Senator Sir George Pearce - The court will decide whether they are lawful. The commission will have power to determine whether there has been any undue or unreasonable preference or discrimination. If it answers in the affirmative, the court would then have to deal with the matter.

Senator Brennan - That point is covered by section 102 of the Constitution.

Senator BROWN - There is nothing to that effect in the bill. The Government is setting up a commission with power to override the decisions of a State government.

Senator Sir George Pearce - The commission will not decide whether any act is - unlawful. It will decide only whether there has been any preference or discrimination, which is undue and unreasonable or unjust. The action to restrain a State would have to be taken before the High Court.

Senator BROWN - The word "lawful " is used in clause 21.

Senator Sir George Pearce - That word must be read with its context.

Senator BROWN - I still contend that the commission will have the power to say whether the act of the State Government is lawful or unlawful.

Senator Brennan - The commission will not decide whether an act is unlawful. '

Senator BROWN - The commission will have the power to determine whether the act of a State is undue and unreasonable. If the commission were to determine that the rates charged on, say, the

Queensland railways were unreasonable and unjust, the Queensland Government would be charged with acting unlawfully. The matter may later be referred to the High Court, which would give a decision similar to that given in the Wheat case. The view of the Opposition is expressed in the minority report of the Royal Commission on the Constitution, which was signed by Messrs. T. R. Ashworth, M. B. Duffy, and D. L. McNamara. Instead of setting up commissions, the Government should act on the recommendation contained in the following paragraph of that report: -

Despite some surface indications to the contrary, we believe that the Australian people are in a specially favorable position to achieve a consistent national outlook. We are nearly all of one race; approximately 98 per cent, of our people are British; the great need is a constitution which will tend to still further develop national ideals. The Constitution of 1900 was a big stop in the right direction. We record our conviction that the time has arrived for placing full power and responsibility in the national Parliament as the means of achieving social unity.

As a step towards unification the rail- ways, for instance, could he put under the full control of the Commonwealth. It would be advisable for the Ministry to withdraw the bill. If it should happen still to be in power after the election, it could then re-introduce this legislation.

SenatorALLAN MacDONAlD (Western Australia) [4.53]. - I regret the Labour party's opposition to this bill. It is a measure for which we have waited many years, and its enactment will tend to dissipate the feeling of some of the smaller States that they have suffered ill-treatment as a result of Commonwealth legislation and policy. Although I deplore the attitude of the Opposition, I am not astonished, since it is in keeping with its policy of aggrandizement of the larger States, to the detriment of ths smaller. Nothing is to be gained by traversing the ancient history contained in the musty tomes of the previous InterState Commission. This bill has been framed to meet present needs, the greatest of which, I contend, is the amelioration of the position of the financially weaker States. We have to face the position as it exists to-day, and that, is where the Opposition lamentably fails to help the smaller States. The feeling in Western

Australia is that some competent body, able to hear and determine evidence regarding its position under the federation, is needed. W e want a permanent body of men, who, in time, will become experts in their job, and do it thoroughly. We shall then find that the union of the Commonwealth is a union in spirit as well as in law, but until a permanent body, adjudicating on the disabilities of the lesser States is appointed, we shall continue to hear rumblings of discontent and agitations for secession. Even at this late hour, I appeal to the Labour party to try to visualize something better and greater than is indicated by its opposition to the bill. We in Western Australia particularly, want to have examined every means by which we may be assured of the proper consideration which our case warrants. It stands to reason that, while the Commonwealth Grants Commission is functioning as a temporary tribunal, the smaller States will continue to feel justifiably that their financial position in the union is irksome. I think that the term of seven years, which the bill stipulates as the period for which members of the Inter-State Commission shall hold office, is too short.

Senator E B Johnston - That period is prescribed in the Constitution.

Senator ALLANMacDONALD Members of that commission will, in fact, be judges and their position should be as inviolable as that of any other judges in the Australian courts.

Senator Collings - The bill does not give the commission any judicial functions.

Senator ALLANMacDONALD.Members of the commission will adjudicate on matters as important as any matters upon which the courts of law adjudicate. Accordingly, the very ablest men available should be tempted to take up appointments on the commission, and this cannot be accomplished unless the tenure of office be of a much more permanent nature than is provided for in the bill.

There are a few features of the measure in regard to which I desire enlightenment. I should like the Minister, in his reply, to elucidate clauses 21 and 22 -

21.   - (1.) It shall not be lawful for any State, or for any State railway authority, to give or make upon any railway the property of the State, in respect of interstate commerce, or so as to affect such commerce, any preference or discrimination which the commission adjudges undue and unreasonable, or unjust to any State. (2.) In deciding whether a lower charge or difference of treatment constitutes within the meaning of this section a preference or discrimination which is undue or unreasonable, or unjust to any State, the commission shall have due regard to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways.

22.   Nothing in this act shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States.

The clause contemplates a state railway authority imposing very cheap freightrates on goods needed for developmental purposes, but my main concern in that matter is the freights charged on the East-West Railway. The residents of Western Australia have for a long period been annoyed at the fact that the Commonwealth Railways Commissioner imposes on goods carried on that line from Adelaide to Kalgoorlie freights much cheaper than are charged by the Western Australia Railways on goods carried on the State section from Perth to Kalgoorlie. It is possible that the I nter-State Commission may consider that this cheaper freight is necessary for development at the South Australian end of the railway, but does this clause compel the commission to exclude any argument or evidence on behalf of Western Australia that the Commonwealth freight rates on goods which will be in competition with goods manufactured within the State should be increased? Western Australian merchants have long suffered disability through the Commonwealth Railways charging lower rates on goods carried between Adelaide and Kalgoorlie.

I compliment the Government on its having included clause 23, which reads : -

23.   - (1.) The commission may commence an investigation of any alleged contravention of the provisions of this part either of its own motion or on the complaint of any of the following authorities, that is to say -

(a)   the Commonwealth;

(b)   any State, or any State railway authority :

(c)   any borough, municipality, or body politic;

(d)   any harbour board, marine board, or other State authority; or

(e)   any such association of traders or freighters, or chamber of commerce, manufactures, or agriculture, as is in the opinion of the commission a proper body to make the complaint, and it shall not be necessary for any such authority to prove that it is directly aggrieved by the matter complained of.

I welcome the insertion of paragraph e because the Chambers of Commerce and the Chambers of Manufactures have given a great deal of thought, time and study to the commercial aspects of interstate relationships. Most of the agitation in Western Australia for the appointment of this commission has come from those recognized authorities, and for many years they have brought to light anomalies which I hope will be corrected by the commission. I commend the bill to the Senate and also commend the Government for having introduced it. It should not be deferred until after the general election; it is an urgent measure and should be passed and put into operation without delay.

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