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Thursday, 24 June 1937

Senator MARWICK (Western Australia) . - I do not propose to deal with those points which I covered during my speech on the Address-in-Reply, when I outlined my reasons for supporting this measure and complimented the Government on its introduction. My principal reason for supporting the reconstitution of tlie Inter-State Commission is that such a body will enjoy security of tenure, in contrast to the Commonwealth Grants Commission, which was appointed from year to year. When it last visited Western Australia the latter body spent only ten days in that State, and five of those days were spent in the country districts. I suggest that in so limited a time it was impossible for it to inquire fully into the claims of Western Australia. The Inter-State Commission should be able, if necessary, to spend six months in any one State in order that its investigations may be as thorough as possible. Before the InterState Commission representatives of the smaller States will he given every opportunity to set out clearly their disabilities and the grounds on which they claim grants from the Commonwealth. It is for this reason, principally, that I support the bill.

I agree with the Leader of the Opposition (Senator Collings) that it is time that a convention was held to review the Constitution. The deliberations of such a convention would remove many of the causes of the ill-feeling which the smaller. States now exhibit towards the more populous States, and, if it served no other purpose, it would at least bring the various units of the nation into a more harmonious relationship. For this reason 1 hope that steps will be taken in the near future to convene a convention for that purpose.

I disagree with the suggestion made by the Leader of the Opposition that no need exists for the appointment of this commission, because, so he claimed, the job could be done equally as well by a Minister, assisted by an expert staff. I suggest to the honorable senator that, at certain times, on the eve of an election, for instance, if he wore a Minister he would not relish being called to adjudicate in a dispute arising', for instance, out of the landing of goods in New South Wales from Queensland. However, I agree with his contention that no political appointments should be made to the commission.

Senator J V MACDONALD (QUEENSLAND) - Be careful !

Senator MARWICK - In all circumstances I shall express what I have in mind ; I am not influenced by the decisions of any political caucus. In Western Australia I have witnessed several political appointments of the nature to which I refer, and I have consistently protested against them. I propose to follow a similar course at all times. Senator J. V. MacDonald suggested that a gentleman with Labour political sympathies should bc appointed to the commission. I disagree with him ; this tribunal should be kept free of politics.

Senator J V MACDONALD (QUEENSLAND) - It is certain that ' two of the members to be appointed to the commission will have anti-Labour sympathies.

Senator MARWICK - -I shall not bc mean enough to believe that that will be so. I hope that the Government will appoint men who are above party politics.

Senator J V MACDONALD (QUEENSLAND) - Is any man above party politics?

Senator MARWICK - There arc plenty of them. The only comment which I wish to offer in respect of the Commonwealth Grants Commission is that it was impossible for a claimant State to receive justice from that body, because the States put up their case on a certain basis, and that commission assessed it on another. I feel sure that all honorable senators appreciate the need for the reconstitution of the Inter-State Commission in order to give full effect to the Constitution.

Whilst I do not propose to delve into ancient history, let me say that we in Western Australia have felt all along that we have not received justice from the Commonwealth Grants Commission. It is my fervent hope that, while I represent Western Australia in this chamber, I shall win support and sympathy for that State by advancing its just claims in a fair manner; I realize that I cannot hope to win such support by abusing other States. On at least one occasion since I was elected to this chamber I have had the pleasure of submitting a motion on behalf of Western Australia, and although that proposal was defeated, I received sufficient support to encourage mo to continue my advocacy along those lines. Indeed, I am thankful that, included among my supporters on the occasion to which I refer, were the only members of the Opposition then present; I feel sure that I would have received the support of the other honorable senator opposite had he been present.

I ask the Minister, when he is replying, to clear up the point raised by Senator Johnston that, whilst all the State railways will be brought within the jurisdiction of the Inter-State Commission, the Commonwealth railways may be exempt. In this connexion I draw the attention of honorable senators to section 102 of the Constitution, which reads - 102. The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a. State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission.

It is possible that the work of the InterState Commission may relate to the provisions of this seddon of the Constitution. I have very much pleasure in supporting the bill.

Senator SirGEORGE PEARCE (Western Australia - Minister for External

Affairs) [S.39]. - in reply - I thank honorable senators for the very favorable reception they have given this measure, although there have been some spots on the sun, as it were. Senator Collings does not seem to be altogether satisfied with it, but, then, he is generally dissatisfied with any proposal that emanates from the Government. I tremble to think of what the life of a Minister would be when Senator Collings had accomplished all his desires; it is just about as strenuous now as it could possibly be, but if in addition to his administrative and political duties, a Minister was obliged to take the place of boards and commissions, and conduct innumerable inquiries, dissecting all the evidence presented, as the honorable senator suggested, his life would be unbearable.

Senator Collings - I did not suggest that; do not forget about the bright young experts of whom the Government has spoken.

Senator Sir GEORGE PEARCE - Because they believe in a unitary form of government honorable senators opposite overlook the fact that the Commonwealth is a federation, and that, therefore, our legislation must take cognizance of that fact. With a Federal Parliament, and a written Constitution, and the State governments enjoying sovereignty in their own legislative domains, points of difference must necessarily arise between the Commonwealth and the State authorities, or between the State authorities themselves. If a legal dispute arises the High Court is there to resolve it, but friction, and overlapping, cr points of difference upon which the High Court cannot be asked to adjudicate, might also arise. That is why provision is made in America for an Inter-State Commission, and, likewise, in the Commonwealth Constitution, to cover disputes which could not very well be litigated before the court.

I remind Senator Allan MacDonald and Senator Marwick in regard to the vexatious question of freights on . the Commonwealth railway between Kalgoorlie and Port Augusta that that is a railway taking part in interstate commerce. Senator Marwick has just read the appropriate section of the Constitution, and, of course, in Part IV. this bill must conform to the Constitution; it cannot purport to do more than the Constitution provides. Part IV. contains the machinery by which, first of all, an investigation and a report must be made; and if discrimination, or undue preference, is found and not adjusted, redress must be sought by litigation before the High Court. Thus Part IV. contemplates litigation before the High Court. Who would be the parties to such litigation? In the case of the State railways authorities it is clear that it would be either the State government concerned, or a body nominated by that government, or the railway authorities of that State. And who would be the prosecutor to plead before the High Court the facts as found by the Inter-State Commission? He would be the Attorney-General of the Commonwealth. Now, I remind honorable senators that the Commonwealth railways are run under Commonwealth law, and the freights are fixed either by regulations, or by-laws, which are Commonwealth law. Thus, if the Commonwealth railways were sued in the High Court, the Commonwealth AttorneyGeneral would appear as the legal officer for the Commonwealth railways. Thus, if the Commonwealth railways were included within the scope of Part IV., and the commission found that rates on these railways were discriminating, we would have the spectacle of the Commonwealth Attorney-General, under the machinery provided in this bill, prosecuting himself as the Commonwealth Attorney-General - a truly Gilbertian situation. For that reason Part IV. of this measure cannot be applied to the Commonwealth railways. I assured Senator Johnston, however, when he was speaking, that the Commonwealth railways do come within the scope of this bill, and I now give- Senator Allan MacDonald and Senator Marwick the same assurance. If those honorable senators will refer to clause 18 they will find that -

Tlie commission shall inquire into and report to the Governor-General upon -

(a)   any anomalies, preferences or discriminations alleged to exist in relation to Inter-State commerce;

Is not a complaint against the Commonwealth railways that there has been discrimination and preference within tlie meaning of paragraph a? I turn now to clause 20 -

The commission may commence any investigation pursuant to- paragraphs (a) and (6) of sub-section (1.) of section 18, either on reference by the Governor-General or on the complaint of any State.

If the Government of Western Australia felt that there had been unjust discrimination by the Commonwealth railway authorities, it would be its duty to lodge a complaint with the Inter-State Commission in accordance with clause 18 1 a of the bill. The complaint having been made, the commission will' have full power to conduct an inquiry and deliver its finding. A.s Senator Leckie pointed out, although the Commonwealth Attorney-General cannot prosecute himself, there will be, assuming that the complaint has been proved, the report of the Inter-State Commission that the Commonwealth Railways Department is giving undue preference or discriminating in relation to interstate commerce. With that finding before it, would any Commonwealth government continue to uphold a Commonwealth law, regulation, or by-law, which contraverted that fundamental principle of its own legislation? It is unthinkable. Therefore, those honorable senators who raised this point should see that this matter is fully provided for, and that it cannot be covered in the way suggested by Senator Johnston, because the Commonwealth Government would find itself in the ridiculous position which I mentioned previously. Moreover, that is why it is not specifically provided for in the Constitution.

Senator Brennan - In section 99 of the Constitution, there is a general provision against differentiating between the States.

Senator Sir GEORGEPEARCE.Yes, and a State could bring a case before the High Court.

I come now to the point raised by Senator Grant in connexion with clause 19, which reads -

The Governor-General may cause any report made under paragraphs (a), (6) or (c) of sub-section (1.) of the last preceding section to be laid before each House of the Parliament, and shall, before any proposed law relating to the subject of the report originates in the Parliament, cause the report to bo laid before each House thereof.

I have circulated an amendment to leave out paragraphs a, b or c with a view to insert in lieu thereof paragraphs c, d or e.

Senator McLeay -Whyare paragraphs a,b andc being left out?

Senator Sir GEORGEPEARCE.This clause relates to claimsdealing with grants, and not to any others. The reason is fairly obvious. Honorable senators are aware that the report of a commission covering financial grants to States is a very important factor in a Commonwealth budget, and therefore the Government would have to take into consideration the report of the commission, because subsequently it would have to be the subject of budget legislation. The Government might receive a report while Parliament was in session, but before it had decided upon the budget it proposed to submit to Parliament. An obligation upon the Government to table the report immediately it was received would be most embarrassing, and would by no means relieve the uncertainty of the State Treasurer, because he would not know the decision which the Commonwealth Government would reach upon the recommendation. The Commonwealth Treasurer, also, would be embarrassed if the report were made public before he had drafted his budget, because all sorts of pressure would be put upon him in respect of that one feature. Legislation of some kind must follow the presentation of the report, and when the Government brings it3 budget before Parliament it will also table the report. Before Parliament will be asked to agree to the Government's proposals it will have before it the report of the InterState Commission, so that it will not be in any worse position under this bill than it is to-day. Each year the Parliament is in possession of the report of the Commonwealth Grants Commission before the budget is proceeded with.

Senator Grantalso referred to the tenure of members of the Inter-State Commission. The term fixed in the bill is that prescribed in the Constitution, and cannot be amended by this legislation.

Senator Johnston,who foreshadowed an amendment, suggested that there should be a specific instruction to the commission as to the factors upon which a State may claim financial assistance from the Commonwealth. There is a well-known legal maxim,inclusio unius exclusio alterius - the inclusion of the one means the exclusion of the other. I understand that the insertion of a provision to include certain things is held in law to exclude all others. I urge those interested in this matter to read carefully the following paragraphs of clause 18: -

(d)   any matters relating to grants for financial assistance . . .

(e)   any matters relating to the making of any grants of financial assistance; and

(f)   any matters concerning the financial relations between the Commonwealth and any State.

The words " any matters " include the tariff, the Navigation Act, or, in fact, any disability under which a State feels that it suffers. The State is the judge - that is the virtue of this measure - upon what basis it will make its claim for a. grant.

Senator Sampson - A State can initiate a claim.

Senator Sir GEORGE PEARCE - Yes, to the Commonwealth, and I suggest to honorable senators that we could not have it any wider than that. It is unwise to start to particularize when we have such an all-embracing provision. 1 know that the opinion is widely held in Western Australia that the tariff is a disability to that State. The State Government can make that one of the bases of its claim, and bring before the commission all the evidence it can in support. Tasmania feels that the Navigation Act is a hindrance to its development. There again, that State can base its claim on that point, and bring evidence to substantiate it. All such things are covered by the words " any matters ". I, therefore, suggest to honorable senators that if they commence to select some particular item, they may find that they are doing their State a disservice rather than a service.

To my mind, there is one factor in Western Australia's claim which obtains to a greater extent in that State than in any other - Senator Marwick mentioned it - and that is that one-sixteenth of the population of Australia is endeavouring to develop, one-third of the Commonwealth .

Senator Leckie - A lot of it is sand.

Senator Sir GEORGE PEARCE - Not a great area. There is more sand in the neighbourhood of Perth and Fremantle than can be found in any part of the interior. It is difficult to say what the possibilities of development in Western Australia actually are. Can we envisage the possibilities of the north-west of that State? In the Parliamentary Library there are two volumes by that great explorer and administrator, Sir George Grey,- who conducted an exploring expedition in the north-west of Western Australia over 100 years ago. He had earlier traversed large portions of Queensland, New South Wales, Victoria and South Australia, and in one of the volumes I find that in speaking of an area in the north-west, he said -

In my judgment this part of this country that we have been passing through in the last few weeks, will ono day carry a greater population than any part of Australia that I have ever seen.

The extraordinary part of that prophecy is that there are only a few more white people in that area to-day than there were when Sir George Grey went through it. We cannot envisage the future of that vast area. Its development and the responsibility of the State Government in that regard might be the strongest element in Western Australia's claim; with greater financial assistance one-third of the Commonwealth might be successfully developed by one-sixteenth of its population. I appeal to honorable senator not to begin to particularize, but to remember that a State can base a claim before the proposed commission on any ground, whether it be the tariff, the Navigation Act, or even that responsibility with which I have just dealt. Once we start to particularize, we may weaken the claim of a State we are desirous of assisting. I thank honorable senators for the way in which they have received the bill.

Question resolved in the affirmative.

Bill read a second time.

In committee:

Clauses 1 to 6 agreed to.

Clause 7 -

1.   The Governor-General shall, as soon as conveniently practicable, appoint three persons to be Commissioners, and on the happen ing of any vacancy in the office of Commissioner, the Governor-General shall appoint a person to the vacant office.

SenatorE. B. JOHNSTON (Western Australia [9.3].- I move -

That at tlie end of sub-clause ], the following proviso bo inserted: -

Provided that no person who has attained the age of G5 years shall bc appointed as a commissioner.

Senator Collings - The honorable senator should not proceed with the amendment.

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