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Thursday, 4 April 1946

Debate resumed from the 3rd April (vide page 932), on motion by Dr.


That the bill be now read a second time.

Mr.BARNARD (Bass) [11.16].- The measures now under discussion are most important, because they aim to rectify certain anomalies that have become apparent in the Australian Constitution. Those anomalies have been brought into bold relief in recent years by certain decisions of the High Court, and by the fact that, during the war years, the marketing of primary products has been controlled by the Commonwealth Government under its defence powers. Following upon the refusal of the people of this country to confer upon the Commonwealth Parliament certain powers which were the subject of a referendum in 1944, and had been agreed upon by the State Premiers, but rejected by some State legislatures, the Government has decided on this occasion to submit throe simple questions to the electors. Nodoubt those who oppose the Government's proposals will endeavour once again to cloud the real issues in legal verbiage. Proposed alterations of the Constitution are not easy matters to place before the people in plain terms. In view of the failure of the people to agree to certain comprehensive constitution alterations submitted to them in one question at the last referendum, the Government has decided now to submit each proposed amendment separately. This is a wise course, because it will enable the issues to be placed before the people in the simplest terms.

I listened with interest, as I usually do, to the speech by the Leader of the Opposition (Mr. Menzies) on this subject. The right honorable gentleman made several points, the first of which related to the date of the proposed referendum. My answer to his argument on that issue is that the date of the referendum is governed largely by the importance of the questions that arc to be put to the people. For instance, it is essential that whatever doubt may exist as to the validity of the Government's social service legislation be cleared up as soon as possible. Secondly, an early referendum is desirable because of the abolition of war-time controls over marketing. Thirdly, there is the important aspect of expense. To hold a referendum separately from a general election would be to involve the country in an expenditure of from £100,000 to £120,000. That is an important factor which has to be considered when deciding the date on which the questions should be submitted to the people. Everybody knows that there is greater dislocation of business when a general election is held on one date and a referendum requiring the use of all the electoral machinery on another date. Additional expense is caused to those who are interested in placing their views before the people, and the whole community is disturbed by the necessity to exercise the franchise on two dates. These considerations refute the argument of the Leader of the Opposition that it is unwise to hold a referendum on the same date as a general election. A Constitution convention, he suggested, might provide means for dealing with such matters as organized marketing and employment. But such gatherings have not, in our experience, achieved unanimity of opinion, or enabled all political parties to approach the submission of the questions to the people on a non-party basis. The nearest approach to the accomplishment of that objective was made when the Premiers agreed to the submission of certain questions to the people; but even then the matter ultimately became a first-class party issue. Therefore, all things considered, the best course is to hold the referendum on the date fixed for the holding of the general elections.

The first of the measures that we have before us deals with social services. The objective is to place beyond doubt the legality of conferring certain social benefits on Australian citizens. Legal doubts exist as to the validity of legislation passed by this Parliament in that connexion. The Attorney-General has placed before the House, for the benefit of honorable members, the legal opinions that have been obtained. If honorable members study those opinions, they will learn that the legislation is of doubtful validity in some instances, and that not one of the eminent King's Counsel whose opinions were sought is certain of the validity of any of it. It has been my privilege to examine social services in considerable detail. From the commencement of its investigations, the Social Security Committee experienced great difficulty in deciding the terms upon which it should make recommendations to the Parliament. On several occasions it endeavoured to have the matter clarified byobtaining legal opinion. In respect of hospital benefits, the position appeared to be clear. I quote from the seventh interim report of the committee -

The report of the Social Security Medical Survey Committee in this regard states -

The Government of the Commonwealth has no power to intervene in respect of hospital care within the States of Australia, except insofar as its activities are covered by the term"insurance" (Commonwealth Constitution Act 1901 (s. 51, xiv.) or with the consent of the States concerned (loc. cit. s. 51. xxxvii.). No benefit may be distributed to the undue or un equal advantage of a State as against other States (loc.cit. S99), et al.) "

The committee was concerned as to an extension of the provision of social services in respect of which it might make recommendations. The validity of the legislation subsequently passed, which purported to enable the Commonwealth to confer certain social benefits on the people, was successfully challenged in the High Court. In this connexion, I may mention unemployment and sickness benefits, widows pensions, and allowances to the wives of invalid pensioners. Doubt has been cast on the validity of all the legislation by the decision that was given in the Pharmaceutical Benefits case. Speaking on the Child Endowment Bill in this House on the 1st April. 1941, the late Mr. Blackburn said -

I think that the Common wealth Parliament definitely has nomore constitutional authority to pass a measure providing for child endowment or family allowances than it had constitutional authority to provide for maternity allowances.

That language is clear and unequivocal. That measure, of course, was passed in the war period and under the defence power of the Common wealth. Its validity was not challenged in the courts. The position to-day is entirely different. The social measures to which the Commonwealth has given legislative effect have been increased. Some of these have been successfully challenged in the High Court, and others may be. For that reason, the only course open to the Commonwealth, unless it were to make grants to the States for the purpose - whichI believe would be undesirable - is to seek the power to legislate, as is proposed by the bill that I am now considering. That method was suggested yesterday by the Leader of the Opposition, who said that the Commonwealth had the power to negotiate with the States to give effect to the desire of this Parliament in relation to social services. Hospital benefits could not be granted because the matter came under the health power of the Common wealth, the scope of which is not very wide, and the co-operation of the States had to be obtained. A long time elapsed before a degree of unanimity among the States could be reached. The act has now been in operation in five of the States since the 1st January. Five States only are now operating the measure, despite the fact that negotiations have proceeded over a period of from two to threeyears. It is not now fully operative in New South Wales, so it is utterly futile to rely upon agreement between the six States and the Commonwealth to give effect to improvements in the social and living conditions of the people. I have no desire to misrepresent the Leader of the Opposition (Mr. Menzies) or to take any matter from its context. I have had a glance at Hansard, in which our sins of omission and commission are recorded, and I propose to read an extract from a speech which he made on the 23rd February, 1944. Speaking of proposed constitutional alterations, he traversed a great deal of ground. At page 457 the report is as follows -

The last power to whichI. desire to refer is the appropriation power. Section81sets up a consolidated fund for the Commonwealth out of which there maybe appropriated moneys " for the purposesof the Commonwealth ". As the Attorney-General knows, therehas been a discussion for a. very long time as to whether the Commonwealth can appropriate money for purposes which are not otherwise within its legislative powers. The argument, by practice, has resolved in favour of the Commonwealth, because the Commonwealth has in the past appropriated moneys for matters not otherwise within the legislative power. For example, it is difficult to discover where the Commonwealth derives authority for the Maternity Allowances Act. unless it be under the appropriation power.

Mr Spender - It has never been challenged.

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