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Friday, 6 May 1921

Senator GARDINER (New South Wales) - In concluding his statement, the Minister forRepatriation (Senator E. D. Millen) said, "The Senate approved of the general principle." I understood that the Senate agreed to await a motion or a Bill which the Government promised to bring in, and I am quite satisfied that the Government have fulfilled their promise by introducing this motion. But what principle did the Senate agree to? The proposal of Bawra, or the method - shall I say the pernicious method - which the Government propose to adopt is to do something under the Customs Act regulations in a way they have no right to do. There are two principles at stake in connexion with the wool trade, and I suppose I am safe in saying that it is generally believed that the Government are endeavouring to do what is best in the interests of the wool industry.ButI am not going to be a party to what I consider is illegal. What are we asked to do ? To agree to a motion which will give the Government power to issue regulations to prevent the export of wool from Australia. The Government can issue regulations under the Customs Act, but they cannot issue illegal regulations, and a motion such as this, even if it passes the Senate and another place, does not make their own action legal. The motion has already been carried in another place, and will doubtless be passed by this Chamber ; but the Government will have to shoulder the responsibility. I understand that regulations' can only be issued in accordance with the Act under which they are framed. Section 111 of the Customs Act relates to the exportation of goods, and reads - 111. No prohibited exports shall he exported.

Penalty: One hundred pounds.

Section 112 of the same Act reads - 112. The following are prohibited exports, namely: -

All arms, explosives, military and naval stores the export of which is prohibited by proclamation, including any article which the proclamation shall declare to be military or naval stores, or to be capable of being converted into them, or of being made useful in increasing the quantity thereof.

The proclamation may prohibit the exportation or carrying, coastwise of the prohibited goods either generally or to any particular country or place, and the prohibition shall have effect accordingly.

SenatorDrake-Brockman. - But that Act has been amended.

Senator GARDINER - There was a Customs Act passed during the war.

Senator Drake-Brockman - There was one in between.

Senator GARDINER - That was a war-time measure only, and I shall refer to that in good time if the honorable senator will allow me to put it in my own way. It is clearly and definitely laid down in the Customs Act what are prohibited exports. To come to the system which the Government are following, I may mention that I happened to be a member of the Government during the early portion of the war period, when it was necessary to do certain things which the Government now desire to do; but we passed an Act to give us the properauthority. We were justified at that time, because it was during the war period when we could, I suppose, act somewhat illegally under regulations; but that is one of the prerogatives of government. During the war we were allowed to do almost anything, but we preferred the system of doing it in a constitutional way. On the 17th December, 1914, an amending Customs

Act was passed, sections 1 and 2 of which read - 1. ( 1 ) This Act may be cited as the Customs Act 1914.

(2)   The Customs Act 1901-1910, as amended by this Act, may be cited as the Customs Act 1901-1914.

2.   Section 112 of the Customs Act of 1901- 1910 is amended -

(a)   by inserting after sub-section (1) the following sub-section : - " (1a) In time of war the GovernorGeneral may, by proclamation, prohibit the exportation of any goods"; and

(b)   by inserting in sub-section (2), after the words " sub-section (1)," the words " or ( 1a. ) " ; and

(c)   by inserting the words "and subsection (1a) " after the words "paragraph (b)."

That was a time of extreme urgency, and we were justified in adopting extreme measures. The Minister now pleads that this is a matter of urgency. I have read every word of the Act we were asked to pass in time of war to prohibit the exportation of certain goods, but there is less in that Act than in the motion which we are asked to pass.

The other evening, when discussing this question, I pointed out very emphatically that the Government were establishing a bad precedent. Under normal conditions, and when everything is running smoothly, it is very desirable to avoid all irregular practices, and it is necessary to be on the alert to see that Parliament does not allow anything irregular to pass unless that irregularity has become a custom. The Government are now asking us to carry this motion, which will, to some extent, justify their action in issuing regulations under the Customs Act to prohibit trade, and to interfere with the trade of other States. I ask honorable senators who claim to be representative of States to consider the position in which we are placed. We are here to protect State interests. What would the framers of the Constitution have said, if they had been informed that within the first twenty years of the existence of the Federal Parliament the Government would deliberately lay themselves out to interfere with the trade of the States by regulation ? Section 51 of the Constitution provides that the Commonwealth shall have the right to interfere with trade and commerce with other countries and among the States, but trade within the States is left, shall I say, sacred to the State. The Minister will see that this is interfering with the trade of a State. The Government are using one power to interfere with another power. Will any one say that the passing of this motion, which prevents a man from New South Wales from selling his wool, is not an interference with the trade of the State? It is most seriously interfered with.

Senator GUTHRIE (VICTORIA) - To their advantage.

Senator GARDINER - It may be.

Senator E D MILLEN (NEW SOUTH WALES) - You might as well say that trade is interfered with by an import duty .

Senator GARDINER - Perhaps, but we want to look at this question fairly. The course now proposed is really designed to coerce the 5 per cent. of the wool-growers who are standing out ofthe scheme by saying to them - " If you do not come in, you will not be able to send your wool outside Australia." These powers were never intended to be used in this way. We have no constitutional right to do this, and the Government should not attempt to do, in an indirect way, what they are prevented from doing directly under the Constitution. They are moving, in an indirect way, to do something that will interfere with the trade of New South Wales.

Senator Crawford - With the export trade of New South Wales.

Senator GARDINER - Can any one imagine that, when the Constitution was framed, the powers vested in the Commonwealth Government would be so used to interfere with the trade of any State ?

Senator Crawford - Can you export a single pound of butter from New South Wales except under certain regulations? That is not prohibition. It is restriction.

Senator GARDINER - This proposal is restriction of trade within a State.


Senator GARDINER - The Government, by means of these regulations, will certainly interfere with the trade within a State when the time comes to deliver the, goods, because the purchaser will be prevented from exporting except under certain drastic conditions imposed for the purpose of retaining wool prices.

Senator Drake-Brockman - If the Government are wrong, why not restrain them by an injunction ?

Senator GARDINER - I do not know that any one will be anxious to do that, even if the Government make a glaring mistake, because it will involve considerable legal expenditure.

Senator E D MILLEN (NEW SOUTH WALES) - I have informed the Senate that the Government took counsel of their legal advisers.

Senator GARDINER - I realize that the Government are following the advice of the law officers of the Crown, but would they be confronted by greater difficulties if they sought to do, by means of an ordinary Bill, what they are now attempting to do by regulations under the Customs Act?

Senator E D MILLEN (NEW SOUTH WALES) - If this course is unconstitutional, a Bill likewise would be unconstitutional.

Senator GARDINER - Exactly. I believe both courses are unconstitutional, but 'there is this difference: If the Government brought in a Bill, honorable senators would know how far they' were expected to go in conferring power by means of regulations under the Bill; whereas this resolution gives the Government a free hand to go as far as they like. The Minister has promised that the regulations will be brought down next Wednesday; but if certain other regulations are asked for by the Board controlling the wool business, would they not be issued under the authority of this resolution, and perhaps when the Senate was not sitting?

Senator Senior - The same objection might be urged against regulations framed under a Bill.

Senator GARDINER - With the difference that regulations framed under a Bill would have to be in accordance with its provisions.

Senator E D MILLEN (NEW SOUTH WALES) - Likewise regulations made under this resolution must be in accord with it.

Senator DRAKE-BROCKMAN (WESTERN AUSTRALIA) -BrOckman. - And with the Customs Act.

Senator GARDINER - I hold the view that the proposed regulations will not be in accordance with the Customs Act; that they will be of no effect, and that the Senate is participating in a huge bluff' to preserve the wool market. The Senate should not be used in this way. The Government are setting up a bad precedent, and the position will be so much the worse if it is supported "by the Senate. We cannot shut our eyes to the fact that if regulations under the Customs Act to maintain the price of wool are indorsed by the House of Representatives and the Senate it would be quite competent one day for a Government comprising the party to which I belong to make similar regulations to maintain the rate of wages. There will then be precedent to encourage a Government to make regulations providing, say, that no goods shall be permitted to leave Australia in ships that will not pay the union rate of wage. I do not want the authority of the Government to be used in this underhand way at all.

Senator E D MILLEN (NEW SOUTH WALES) - But it would be just the same if regulations were made under a Bill.

Senator GARDINER - Then why not have a Bill 1

Senator E D MILLEN (NEW SOUTH WALES) - The honorable senator knows why.

Senator GARDINER - I am suspicious of the manner in which the Government are proceeding, and I can see future dinger. It is bad for a Government, by means of the Customs Act regulations, to close ports against export trade even for a very good reason, because by doing this the door is opened to similar action on other occasions when the proceeding may not be so justifiable.

I am going to vote against this proposal to assist the wool trade in this way. 1 am opposed to the creation of a combine or trust to maintain the high price of wool because the principle is bad. It is a bad proposition for the Government to say that certain things shall be done to benefit one section of the community, even if the wool growers do represent . 80,000 or 100,000 of our population.

SenatorFAIRBAIRN. - You must include their employees too.

Senator GARDINER - We may include every person directly benefited by the measure.

Senator Senior -You ought to apply that reasoning to actions of your own party.

Senator GARDINER - I do, and I may tell the honorable senator that never yet have we been able to ' do anything contrary to the law to help our trade unions as it is now proposed to help the wool producers union, at the expense of a certain number of growers who have not seen their way to agree to the principle. This section of the wool trade to which I refer consider that their interests would be better conserved if they were not compelled to trade through a wool combine created by the Commonwealth. We are supposed to be a free people living under a free Constitution, but what greater interference with trade could there be than for a Government to issue regulations under the Customs Act, as is now proposed, providing that in certain circumstances our wool growers may be prevented from sending their products to England or America ? It is a pernicious principle to interfere with trade in the interests of one section. I admit that it is a large and wealthy section. I admit also that wool is the foundation of our prosperity. It is our great staple industry, representing millions of money easily produced.

Senator GUTHRIE (VICTORIA) - Easily produced ?

Senator GARDINER - Yes, easily produced. It is the most primitive form of production.

Senator GUTHRIE (VICTORIA) - It employs more labour than any other industry in Australia.

Senator GARDINER - I suppose by the time the wool is converted into cloth it does employ a large number of persons.

Senator GUTHRIE (VICTORIA) - No; before that.

Senator GARDINER - I admit that the industry is the very foundation of our national wealth, but those most intimately connected with it now find that prices obtained during the war are falling, and so they are making frantic efforts to maintain the market. Nothing is said about the war-time profits, and all the other profits made by them during the war period, and for which the poorer sections of the community had to pay.

Senator E D MILLEN (NEW SOUTH WALES) - Because you made a profit last year, is that any reason why you should submit to an avoidable loss this year?

Senator GUTHRIE (VICTORIA) - It will be a considerable loss this year.

Senator GARDINER - The loss will only be avoided by using the wealth and credit of the community for the woolgrowers' ends, and not for the benefit of the people generally-. The community did not participate in the huge' profits that were made by the wool-growers during the war period.

Senator Crawford - The Taxation Department collected a large proportion of those profits.

Senator GUTHRIE (VICTORIA) - There will be no profits this year.

Senator GARDINER - I realize that with falling prices there will be less profits, and, of course, less , revenue from taxation from the wool-growers. I realize also that with the falling market many things are going to happen, but this Parliament, largely Nationalist in character, has made no special effort on behalf of those who find it so hard to provide clothing at existing extortionate prices'.

Senator Fairbairn - There has been no extortion on the part of the woolgrowers at 5s. 3d. for the wool in a suit of clothes.

Senator GARDINER - I admit that, under our existing social system, with private enterprise in. control, it is difficult to place the blame for existing high prices on the right shoulders, but it is a remarkable fact that in a country which produces 25 per cent, of the world's wool, prices for woollen goods have been prohibitive for many years to the poorer sections of the people. It is equally remarkable that during all this time there has been no attempt, by means of legislation in this Parliament, to improve the position. But as soon as a wealthy and influential section of the community, representing less than 100,000 of our people, is confronted with difficulty the whole machinery of Parliament is brought into action to maintain the wool market. As members of the Senate we represent all classes, and I say that, if there is one thing more pernicious than another it is this practice of hurriedly rushing to the rescue of any one section. We should legislate for all the people.

Senator Fairbairn - And we are legislating for all in this proposal.

Senator GUTHRIE (VICTORIA) - For everybody in Australia.

Senator GARDINER - I venture to say that if I were to come down with a proposal to benefit the whole of Australia by increasing the purchasing power of the working classes through an increase in wages, honorable senators would not be so


Senator Senior - That is a fallacy right at the bottom. A rise in wages does not increase the purchasing power of wages.

Senator E D MILLEN (NEW SOUTH WALES) - "Would a Bill to increase the wages of the Mount Morgan miners help the community very much?

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