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Wednesday, 20 April 1904


Mr ROBINSON (Wannon) - I cannot agree with the position taken up by the honorable member for Lang, that those who are opposed to the Governmentshould make use of this opportunity, whether they favour the amendment or not, to oust the Ministry. There are few honorable members who desire more than I do to see the Ministry displaced ; but I think that the price we are asked on this occasion to pay for their displacement is altogether too high. It would be, in my opinion, a deathblow to the Federal principles embodied in the Constitution, and I for one am not prepared to give it. I regret that any honorable member should be willing to do so merely to secure a change of Administration. The amendment has been discussed very exhaustively by. the various legal members of the House/ and I trust that I may be permitted to deal briefly with the legal aspect of the question. It is probably one of the most difficult with which the Parliament has yet had to deal, or will be called to face for many years. I listened with the greatest attention to the speech made bv the honorable and learned member for Northern Melbourne, who appears to occupy the position of Attorney-General to the party responsible for this amendment, and I have also carefully read the Hansard report of his address. I agree with the general statement made by him that American decisions are largely inapplicable in the consideration of a case of this kind. Notwithstanding that the Prime Minister has expressed a different opinion, I believe that the honorable and learned member is right, and I am glad to find that the honorable and learned member for Indi - than whom there is no better authority - also holds the view that the American decisions are not as binding on us as the Prime Minister would have us believe. The honorable and learned member for Northern Melbourne is correct when he asserts that the Australian Courts that have so far been called upon to determine Federal questions have held that American decisions are not binding. In the case of the Income Tax Commissioner of Victoria v. Wollaston, the Full Court of this> State distinctly declined to follow American decisions, and in the well-known case of the Bank of Toronto v. Lambe, the Privy Council also refused to be bound by them. It appears to me that the Prime Minister made a serious slip yesterday when he stated that the lastnamed case turned solely on the construction of a local statute. As a matter of fact it rested largely on the construction of the Canadian Constitution Act of 1867. It is true that the local statute was discussed, but two questions were considered. The first was whether the local statute imposed a direct tax, while the second was whether, assuming that it did, the tax came into conflict with the wellknown case of McCulloch v. Maryland, and was therefore void. After an elaborate argument for the appellants, the Court dismissed the appeal without calling on the respondents. It has also to be observed that in a more recent case Halsbury, Lord Chancellor ; Cotton, LJ., and Fry, L.J., distinctly held that American decisions were not to be binding on the Courts of the Empire, and should not be as freely quoted as they are. In these circumstances, it appears to me that the opinion expressed by the honorable and learned member for Indi, and the honorable and learned member for Northern Melbourne, that the American decisions are not binding -on us, is a good one. The Constitution of the Commonwealth is an Imperial . Act, and must be construed as such ; so that the ordinary rules of construction which have been applied by the British Courts for the past 200 or 300 years in construing British Acts must be followed by us in dealing with our Constitution. In this connexion, I would draw attention to an article by Professor Harrison Moore, Dean of the Faculty of Law at the Melbourne University, which appeared in the Journal of the Society of Comparative Legislation for August, 1903, in which he states -

Both in the terms of the Commonwealth Constitution) and the existence of the Imperial relations, there is abundant reason why we should pause before accepting American cases as final in matters of Australian constitutional law.

That is the position taken up by the honorable and learned member for Indi - a position for which I think there is ample authority, notwithstanding that the Prime Minister is imbued with the importance of the American cases. But the English decisions, on which the honorable and learned member foi Northern Melbourne wishes us to rely, do not, in my opinion, advance his position. If we are guided by those decisions, Ave must see that the contention of the honorable and learned member that the amendment is a constitutional one falls to the ground. He has a better chance to establish his case under the American decisions than under those of the English Courts. I hold, as the honorable and learned member for. Indi, as well as other honorable members, submitted last night, that the Crown is not bound, unless it is specifically mentioned, and that as subsection xxxv. of section 51 does not mention the Crown, the Crown is not bound by it. I attach the greatest importance to the point to which reference was made last night by the honorable and learned member for Indi, that the words "This Act shall bind the Crown," which appeared in the covering clause, were struck out by the Imperial law authorities - and struck out with a view to retain as much of the prerogative of the Crown as possible. The honorable and learned member for Northern Melbourne last week put forward a contention which I think has very little foundation. At page 1035 of Hansard, he is reported to have said -

So far as I can find, however, in all cases in which it is intended, to exclude the States, or to exclude States industries from the operation of the Constitution, express provision is made to that effect.

That is a distinct contradiction of evenEnglish decision, and of every principle of English law relative to construing clauses of which I have ever heard. In support of his contention the honorable and learned member drew attention to sub-section xiii. of section 51, which relates to State banking, and sub-section xiv., which relates to State life assurance, and claimed that because reference was made in those provisions to "State banking," and to "State life assurance." it was clear that it was desired to exclude the States. In other words, he contended that the States had to be specially excluded. He then went on to say that section 114, which prohibits the Commonwealth taxing the States, would be utterly useless unless his contention were sound. He asserted that that section was inserted in the Constitution because it was necessary to prevent the States being taxed by the Commonwealth, and that without that section - and this is the legitimate and only inference that can be drawn from his contention - the Commonwealth would have had the power to tax the States. The question that we have to consider is, therefore, whether this contention is correct - whether the States! are bound, unless they are expressly excluded. I gather from an interjection made last night by the honorable and learned member, that he has some doubt as to whether the States Governments represent the Crown in the Commonwealth. I do not think that proposition is seriously arguable. The cases which we have had so far in Australia show beyond all question that the State is the Crown. That was held up to the establishment of Federation, and there is nothing in the Federal Constitution contrary to it. The decisions we have since had from the Courts do not detract from that in any way whatever. If we take the New South Wales Customs case, in which the question involved was whether the Federal Parliament had power, by means of Customs taxation, to tax the imports of a State, it was decided by the Full Court of New South Wales - and it was a unanimous decision - that the States were not bound unless expressly mentioned. That decision was come to absolutely independent of section 114, on which the honorable and learned member for Northern Melbourne relies. One member of the Court held that possibly section 114 told against the State of New South Wales in that case, but the Court unanimously expressed the opinion that, as the Crown was not specially bound in the sub-section regarding taxation, the State could not be bound, and they came to the conclusion that State imports are not liable to Customs taxation. That decision only bears out the decision in the well-known case of The Mayor of Weymouth v. Nugent, which very strongly supports the view taken by honorable and learned members who have argued from the stand-point from which I am arguing now. The corporation of Weymouth were entitled to levy tolls and dues on goods brought into that port. Certain goods of the Crown were specially exempt from those tolls and dues. The Crown brought in other goods, and the corporation attempted to levy tolls and dues on them. A case was then brought to decide whether the Crown was liable to pay tolls and dues on those goods, and it was held that, notwithstanding the special exemption in favour of the Crown, and the well-known rule of construction, Expressio uniusestexclusio alterius, the general rule as to the exemption of the Crown prevailed, and all goods of the Crown were exempt from those tolls and dues. Hence it seems to me that the position is undoubtedly that the Crown, which, in the interpretation of our Constitution, is as much the State as it is the Commonwealth, is not bound unless specifically mentioned. That is one of the oldest propositions of law. It is frequently referred to, and has been laid down again and .again by the Courts. In Hardcastle's Constitutional Law the rule is laid down on page 387, in the fullest possible way. that the Crown is not bound by statute except named ; or unless there is practically an irresistible inference of intention to bind the Crown. Looking at sub-section xxxv. of section 51, I ask whether there is disclosed in it an irresistible inference of intention to bind the Crown ? I think not. In the first place, industrial disputes extending beyond the limits of one State seem to me, from the ordinary grammatical construction of the term, to refer naturally to disputes between private individuals, because it is difficult to see how a dispute between a State employe and the Government of the State can extend beyond the boundaries of that State. It is further to be noted that a particular section of the Constitution, section 107, expressly reserves to the States the powers not handed over to the Parliament of the Commonwealth. I take it that those powers must be handed over to the Commonwealth expressly, or bv irresistible inference. That brings me again to the question, Is there an irresistible inference of an intention, the Crown not being named, that the servants of the Government should be liable to the provisions of sub-section xxxv ? I do not think there is. The remarks of Lord Hobhouse in re The Bank ofToronto v. Lambe, are applicable. He said -

Their Lordships adhere to the view which has always been taken by this Committee, that the Federation Act exhausts the whole range of legislative power, and whatever is not thereby given to the Provincial Legislatures rests with the Parliament.

As honorable members are aware, the reverse applies here. In view of section 107 of our Constitution, I think there can be no doubt that their Lordships would hold that whatever is not thereby given directly, or by irresistible inference of intention, to the Commonwealth Parliament rests with the States Parliaments. This view is, I think, strengthened by the fact that there is no machinery provided by the Constitution for the enforcement of an award against a State. Honorable members must admit the force of the contention that there is no absolute method provided for; enforcing a judgment against a State Government, which it seems to me is at any time a very difficult thing to do. I do not think that the honorable and learned member for Northern Melbourne would care to rely on his contention that the Commonwealth Government could deduct the award from the portion of Customs revenue returnable to the State against which the award was made. I think the honorable and learned member would admit that the constitutional provision for the return of three-fourths of the revenue from Customs duties is mandatory, and that it is not possible to avoid that provision.


Mr Fisher - What, in the opinion of the honorable and learned member, is meant by " three-fourths " in that case ? Does it mean three-fourths to each State?


Mr ROBINSON - That has already been decided, as the honorable member is no doubt aware.


Mr Fisher - That is what the people thought.


Mr ROBINSON - The people did think that, but the Constitution does not say so. I sympathize with the honorable member on that point.


Mr Fisher - I sympathize with the lawyers who did not point that out.


Mr ROBINSON - Probably there were not enough lawyers in the Convention. That must have been the reason.


Mr Tudor - Not enough? How many would the honorable and learned member want - the whole fifty?


Mr ROBINSON - Forty-nine would, I think, have been sufficient. If we examine the various clauses of the Constitution for the purpose of discovering whether the States are al'ways bound unless expressly excluded we must come to the conclusion that the exceptions as regards State banking and State insurance are merely for greater caution - a caution which is often taken in Acts, not only of Australian Parliaments, but also of the Imperial Parliament. Weymouth v. Nugent is an Imperial case, where the exemptions specially set out were held to be exemptions only for greater caution, and there is the decision of the New South Wales Full Court in the Customs case to which I have referred. If we look at section 98, dealing with the powers of the Commonwealth Parliament with respect to trade and commerce, and extending to navigation and shipping, we see that it expressly includes State railways. If the contention of the honorable and learned member for Northern Melbourne were correct, that section would be absolutely useless, because the power would have been contained in the Constitution without its insertion. In section 102 the Federal Parliament is given power to legislate with respect to preferential rates. In this important regard of interfering with railway income and expenditure, the States are expressly mentioned. If in the only instances in which the finances of a State are interfered with, express power is given for the purpose, there is practically an irresistible inference of intention that there being no such express power given in sub-section xxxv., that power does not exist. I desire also to express, with the greatest hesitancy, .the opinion that it is arguable that the words, "Industrial disputes" may not cover disputes between a State Government and its servants. I think it is arguable to say that the State does not engage in any industry, notwithstanding the fact that the States have engaged in the carrying trade in Australia. I think it is arguable to say that that is not an industry, but that it is rather an ordinary function of government, carried on in Australia from the earliest times. It can, I think, be contended with some force, though I express the opinion with great hesitation, that the railways of Australia do not constitute an industry within the meaning of the words " Industrial disputes " in sub-section xxxv. of section 51. The Privy Council in the case of Farnell v. Bowman held that the local Governments in the Colonies, as pioneers of improvements, are frequently obliged to embark in undertakings, such as the construction and management of railways, which in other countries are left to private enterprise. That gives some force to the contention that it is open to doubt whether the States railways are an industry within the meaning of the words "industrial dispute." It has been said that those of us who are opposed to the Bill should not deal with a matter of this kind at all ; but I do not think that that view has been seriously put forward. The matter is a very important one. We are asked to plunge the Commonwealth, now in the fourth year of its existence, into a quarrel with the Governments of the States, and those who have conscientious convictions against the wisdom of this course should not hesitate to express their opinion upon it. I think that the consequences of the measure, if it be passed, will be very, serious. I hold, with the honorable member for Gippsland and the Prime Minister, that we have come to the parting of the ways, where the federalist must separate from the nationalist, and those who wish to restrict the Constitution to its true Federal intention must be arrayed against those who wish to make it an instrument for unification. Some of us differ from the Government upon other points, but we can still lend them effective assistance in defending the Constitution from these insidious attacks. If it will not be thought presumptuous on my part, I should like to express my admiration of the courteous way in which the Prime Minister and the members of his Government have conducted the business of the House since I have been a member of it. For some reasons I shall not be sorry when they leave the Treasury Benches. At times I have felt that nothing in their Ministerial life will become them like the leaving of it. But I do not wish to go quite so far as that to-night. I cannot reconcile it with my conscience or with my judgment to vote for a provision which I believe to be absolutely unconstitutional and likely to create bad feeling between the States and the Commonwealth, and which will do more to injure Federation than any other proposal which has yet been put forward.







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