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Wednesday, 30 June 1937


Senator BRENNAN (Victoria) . - All sorts of things are unworthy of the national Parliament, but I do not think that Senator Johnston has outlined them as I should if I were called upon to do so. The honorable senator has a tendency, I am afraid, to accuse his fellow senators, and even his fellow representatives from Western Australia, of acting against the interest? of that State. It has become so much a habit with him that I feel confident that it carries no weight either in this chamber or in that State.


Senator E B Johnston - The honorable senator will be gone in a couple of months. Good-bye, Senator Brennan!


Senator BRENNAN - If I should be gone in a couple of months, as the honorable senator seems to think I will, there will be some consolation in the fact that I shall not have to listen so constantly to Senator Johnston's tale of grievances. It is well that it should be put on record again that the honorable senator, no doubt as the result of his incapacity to understand the bill, misrepresents the position.


Senator E B Johnston - Why does not the Government bring the Commonwealth railways under Part IV.?


Senator BRENNAN - Because it is not necessary to do so. Clause 18(1) of the bill sets out: -

The commission shall inquire into and report to the Governor-General upon (a) any anomalies, preferences, or discriminations alleged to exist in relation to interstate commerce.

Senator Johnstonalleges that the freight rates on the Trans-Australian line discriminate against Western Australia. If they do they are specifically provided for in those words. There is no doubt that the Inter-State Commission is in this bill givenexpress power to deal with the complaint made by Senator Johnston. And there still remains section 99 of the Constitution -

The Commonwealth shall not by any law or regulation of trade, commerce or revenue, give preference to one State or any part thereof over another State or any part thereof.

The honorable senator's complaint that the Commonwealth railways by some act are giving preference to some States over another State is therefore specifically provided against by that section. The honorable senator does not seem to grasp the fact, which was pointed out by the Leader of the Senate (Senator Pearce) when this measure was first placed before the Senate, that any part of it must be read in conjunction with existing laws. The honorable senator has not grasped the fact that section 102 still remains in the Constitution, and it is not within the competence of the High Court or any other body to add to or detract from the Constitution. Its duty is only to interpret it. The prohibition against the Commonwealth making any law or regulation which favours one State against another is much more definite than any prohibition addressed- to. the States. Section 102 of the Constitution states : -

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 connection with the construction and maintenance of its railways.

This is the part to which I invite the honorable senator to direct his attention : -

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 InterState Commission.

The Inter-State. Commission mentioned in section 102 of the Constitution is the same Inter-State Commission as is proposed in the bill now under consideration. Therefore, the position will be, under this legislation, if and when it becomes law, that the Inter-State Commission may inquire as to whether or not any discrimination as between the States is unjust to any one State. The InterState Commission will then report to Parliament; not before that report is made can the Parliament act. But, if the commission finds that discrimination has been practised, this Parliament, which controls the Commonwealth railways, may intervene and set right the grievance. It should be realized, however, that Parliament cannot constitutionally intervene in such a matter under section 102 until the subject has been referred to, and reported upon, by the Inter-State Commission. It is almost increditable that the honorable senator should fail to grasp the facts which are clearly set out in the Constitution and in clause 18 of thebill. But in view of the fact that he has persisted in putting his own views on record - whether for his own good or for the good of the country, I leave honorable senators to judge - I have thought it necessary to put on records the legal facts of the situation.







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