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Wednesday, 15 June 1904


Mr HIGGINS (Northern MelbourneAttorneyGeneral) - I understand that our power to provide for the application of an award to some areas of a State and not to other areas or to other parts of the Commonwealth has been questioned. Section 99 of the Constitution provides that -

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.

I have not the slightest doubt that that provision in no way endangers the common rule. It cannot be said that preference is given by the fact that there is one regulation for one part of the Commonwealth and another for another part. For instance, in dealing with the plague or with quarantine, it would be perfectly legitimate to apply one law. to a hot climate like that of Port Darwin, and to enact different conditions in the case of a region like Hobart, where the climate is cool. It would be absurd to say that that would amount to a preference within the meaning of .the Constitution, although there is no doubt that such regulations would have their effect upon trade and commerce, and even revenue. I have had the advantage since I came to that conclusion of perusing a passage in Quick and Garran's Annotated Constitution of the Australian Commonwealth, in which it is shown that in the United States Constitution, there is a provision, upon which that introduced into the Australian Constitution is based, that no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another. Of course, it may be urged that, to provide a wharf at one port and not at another port, would be giving a preference. But that would reduce the provisions of the Constitution to an absurdity, and it has been held, therefore, bv the authority quoted by the learned authors of the work referred to, that -

The mere improvement of a particular harbor, the clearing of the navigation of a river which involves the altering of its channel, the erection of a bridge which obstructs navigation, all these, while they may incidentally benefit one port more than another, are not preferences within the meaning of the prohibition.


Mr Ewing - That would be an elimination of natural conditions.


Mr HIGGINS - Yes. When we speak of preference we mean unequal treatment under equal conditions, or favouring one place over another. The authority previously quoted goes on to say : -

The people, in adopting the Constitution, intended to stop for ever one State requiring exactions from the people of another for its own peculiar benefit; but they never intended to prevent the Federal Government for the good of all the States from undertaking public works in a particular locality.

In discussing this very important subject it will be of some help if we can eliminate at least one difficulty, and there is now no doubt in ray mind that we are perfectly free to give the Arbitration Court the power to make distinctions between one area and another in the Commonwealth.







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