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Wednesday, 3 June 1942


Senator CAMERON (Victoria) (Minister for Aircraft Production) . - The. Leader of the Opposition (Senator McLeay) and Senator Spicer opposed these measures on the grounds that they are unconstitutional. In reply to an interjection, Senator Spicer said that he was quoting facts; he would have us believe that it was a fact that the bills are unconstitutional. I shall quote several authorities in opposition to that contention. The first is the right honorable member for Kooyong (Mr. Menzies) who said recently that -

No one will know what the constitutional position is until the High Court has spoken. The line of High Court decisions on the Constitution has never been constant.

I suggest that what Mr. Menzies meant by that statement was that the High Court's interpretations of the Constitution vary in the light of changed circumstances or conditions. Therefore, it is never constant. The High Court might give a decision to-day and reverse it twelve months hence in the light of changed conditions. The following is also a statement by Mr. Menzies : -

Referring to a judgment of the High Court during the last war. the words of the Constitution were given an interpretation in wartime which they could never have been given in peace-time. The result is that he would be a wise man who, to-day, would set out any limitation to the words.

Here again, Mr. Menzies, as the result of his training and experience, was not prepared to go as far as the Leader of the Opposition and Senator Spicer, and dogmatize by declaring that these measures are unconstitutional. When Mr. Menzies speaks in such terms he is running true to form in his legal career as far as I can judge. In 1917, he won the Bowen prize essay at the "University of Melbourne. The title of his essay was, "The Rule of Law during the War". What I am about to quote from the essay had the full support of the legal intelligentsia of that period, so much so that the right honorable gentleman was awarded the Bowen prize. In his essay he wrote -

In times of stress, parliaments are ready to delegate to executives extended powers or determination of policy, and courts of law will stretch rules of interpretations to the utmost - ut resmagis valeatguampereat.

I understand that the translation of that Latin phrase is, "It is better for a thing to have effect than to be made void ". He goes on to say -

That this is by no means an uncommon practice is apparent to any student of ancient constitutional systems However much the free man might boast his freedom, however republican his civic government might become, the presence of an enemy knocking at the gates almost invariably produced a military dictator - the personification of a strong aud effective central government.

I agree entirely with that statement. Danger faced in common is still the strongest bond of unity between men, and as that danger becomes greater, as is the case in this country, obviously it is the duty of a central government such as the Commonwealth Government to increase its powers in order to provide for more effective resistance to the enemy.

I should like to quote also another eminent legal authority, the honorable member for Warringah (Mr. Spender), who, during the debate on this measure in the House of Representatives, said -

From time to time, the phrase " sovereignty of the States " has been uttered in this chamber and the Commonwealth has been criticized for invading the rights of the States. Opponents of the bill have declared that this legislation will force the States to vacate the field of income taxation. That is regarded as sacrosanct. In war-time, I am not concerned about those concepts. I am not concerned, for example, with the concept of whether the spirit of the Constitution means one thing or another. I point out one elemental truism, that what the Constitution permits ib consitutional.

I am advancing reasons why this legislation will be found to be proper. I am not concerned about whether it is against the spirit of the Constitution as interpreted by Mr. A or Mr. B. What concerns me is whether what is being done is a proper thing to do.

It seems idle to argue that there is any doubt as to what power the Commonwealth possesses under the Constitution in time of war. The power of the Commonwealth transcends all other power; and if, in point of fact, it can only be incidentally related to the object of winning the war, then the court does not sit in judgment as to whether it would come to the same conclusion. This Parliament is the repository of the views of the people, and the Commonwealth Government is responsible to this Parliament. It is for this Parliament to say whether this legislation will aid in the prosecution of the war.

It seems, therefore, that these two legal gentlemen, who, incidentally, are both in opposition to the Government, agree, in effect, that these proposals are likely to be judged to be constitutional.


Senator McBride - They did not both say that. One of them expressed exactly the opposite opinion.


Senator CAMERON - I am merely giving my interpretation of what the honorable gentlemen said. Surely it is quite legitimate to do that. I should not attempt to express the opinion of Senator McBride, or any one else who would join issue on this question, but, in my view, what the two authorities whom I have quoted have said, in effect, is that these proposals are likely to be judged to be constitutional, and that, in time of war, the interpretation of the Constitution by men, whether they be members of the Senate or of the High Court Bench, is different from what it would be in time of peace. The point is emphasized that, when the enemy is knocking at the door, a strong central government is required to build up effective resistance to the enemy. That is exactly what this Government is attempting to do. So much for the constitutional aspect of this matter. It has been said that this scheme has not the support of people outside Parliament, but I have here a letter from the Australian National Services League, dated the 29th May, which reads as follows : -

At a meeting held in Sydney yesterday, convened by this league, and comprising representatives of the following commercial and financial associations of New South Wales: -

Sydney Chamber of Commerce (Incorporated ) ;

New South Wales Sheepbreeders Association;

Chamber of Manufactures of New South Wales ;

New South Wales Wholesale Tobacco Association ;

Constitutional Association of New South Wales;

New South Wales Wholesale Softgoods Association;

Cartridge Convention :

Patent Medicines and Proprietary Articles :

Employers Federation of New South Wales :

Wholesale Distributors Association;

Farmers and Settlers Association of New

South Wales;

Pharmaceutical Society of New South Wales ;

Galvanized Iron Agreement;

Retail Traders Association of New South Wales:

Graziers Association of New South Wales;

Sydney and Suburban Timber Merchants Association :

Iron and Steel Association :

Sydney Woolselling Brokers Association : New South Wales Wire Nail Distributors Association;

Wire and Wire Netting Association;

New South Wales Traders Protection

Association :

Wine and Spirit Association of New South Wales ;

Wholesale Grocers Association of New South Wales, the following resolution was unanimously adopted: -

This meeting strongly supports the present proposal of the Federal Government to have one taxing authority for the Commonwealth for the duration of the war and one year thereafter, recognizing as it docs the great benefit it will bestow on the business community, not only in the simplification of its taxation returns, but in the saving of man-power both to the Government and the taxpayers in this time of great national crisis.

A copy of this resolution has already been forwarded to the Prime Minister and the meeting also decided that a copy should be sent to you.

It was felt that you should know that the organizations represented fully supported the principle of one taxing authority for Australia.

Yours faithfully, (Signed) Martin McIlrath, Chairman.

It is quite obvious that if so many commercial organizations in New South

Wales are satisfied that these proposals are in the interests of the nation, they also will prove beneficial to the business community throughout Australia. They all, more or less, have interests in common, and any legislation which would benefit the commercial community of Nev South Wales must necessarily be of benefit to business people in Victoria. Senator Spicer remarked that he was speaking for the citizens of Victoria. He had not attempted to mention any responsible organization that had discussed the present proposals and had come to any conclusion regarding them, so the weight of evidence from that point of view is against him. The Melbourne Trades Hall Council, which represents the organized workers of Victoria, has passed a motion in favour of these proposals. The Victorian Chamber of Manufactures is in favour of uniform taxation. It believes, however, that Victoria should be more generously treated than it will be under this bill. Throughout Victoria the people generally are in favour of this legislation. The Victorian branch of the Labour party, for instance, is in favour of it. The great body of the people who a re capable of making their views known through organizations are uncompromisingly in favour of them.

It was stated by the Leader of the Opposition (Senator McLeay) that the Senate was established to represent the States. That is true, but again the question of interpretation arises. What does the honorable senator mean by " the States " ? They are made up of people whose interests are very much in conflict. Between the " haves " and the " havenots " there is an eternal conflict. That must be so, and it must be reflected in the representation of the States in the Senate. The " haves ", as expressed by the owners of the privately controlled monopolies, are increasing their powers, both industrially and financially, each year, as improved methods of production are introduced, to the detriment of the " have-nots ". As that position develops, and is seen in a clear light by the average working man, his views are reflected in this chamber. Merely because each State sends six representatives to the Senate, it does not follow that the people in the

States are unanimous, or that the interests of all of them are identical; therefore, the contention of Senator McLeay does not convey a great deal. He claimed that the Labour caucus is responsible for the Senate being a party House. [ join issue with him and say that that is n.04. so. The reason why the Senate has developed into a party House is that the conflicting interests of the people are now represented more truly in this chamber than they have been in the past. In the circumstances, the Senate must inevitably remain a party House. So long as the struggle between the " haves " and the " have-nots " continues, we shall have, in our legislative halls, members of parties representing opposing interests.

The Leader of the Opposition also said that the Premiers of the States had opposed the present proposals, but it does not follow that the Premiers have consulted the people of the States on the matter. Without a mandate, they probably took it upon themselves to speak in the names of their Parliaments.







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