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Thursday, 22 April 1915


Mr HUGHES (West Sydney) (AttorneyGeneral) . - The honorable member for Macquarie asked what the position would be if the States and the Commonwealth both possessed the same powers in regard to the acquisition of commodities. At the present time the power of eminent domain in regard to things not covered by the powers given to us in the Constitution resides in the States. If by an amendment of the Constitution or by any other means, as, for, example, by surrender, power in regard to property generally, or to the subject-matter of Inter-State commerce, were given to the

Commonwealth, then the power of eminent domain would follow. The concurrent power of the States would remain if it were not specifically taken away. Customs is one of the things specifically taken from the States, and Defence is another; the power of taxation, except through Customs, has not been specifically taken away, and it is concurrent. If concurrent power were exercised by the Commonwealth and the States, the effect would be that the Commonwealth power, so far as it conflicted with that of the States, would override the latter. Applying that statement to a concrete case, supposing a State had acquired wheat under the circumstances I have set out, and the Commonwealth had power of eminent domain over that commodity, and subsequently decided to acacquire wheat all over Australia, it would also acquire the wheat then in possession of the Crown in that particular State. The commodity would pass, just as would the wheat of an individualpass, to the Commonwealth, because, there being a conflict of authority and of law, the power of the Commonwealth would override that of the State. That is the position ; but, of course, these things are more technically important than real.


Mr Patten - They are very real to the farmer !


Mr HUGHES - I am talking of the conflict of authority, and not of the thing itself. Nothing could be more important than the position of the Commonwealth in this matter, because it affects us all very nearly. Like the honorable member, I am the representative of a State which has exercised this power, while other honorable members represent States which have not, and their constituents are in entirely different circumstances from ours, one enjoying advantages at the expense of the other. I do not propose to discuss the matter any further. It would be difficult, even if I were so inclined, to indicate the nature of the amendment of the Constitution that would give us the powers we thought we possessed; but I repeat that those powers ought to be vested in the Commonwealth, if vested anywhere.


Mr Patten - Apart from the surrender by the State, is there any. method whereby the Commonwealth can arm itself with the power of eminent domain over the whole of Australia? Is there any method that this Parliament can adopt, other than that offered by surrender by the State, that would affect the power of eminent domain of a sovereign State ?


Mr HUGHES - When the honorable member launches into these matters, I can only refer him to the judgment of the High Court; but what precisely that judgment does decide is still a matter of doubt. It is very probable that it does not go so far as at first sight appears - that it does not interfere with trade and commerce so much as at first one might think. Nevertheless, it has disturbed our firmly-settled conviction that trade and commerce were free under all circumstances. I agree with the honorable member for Batman that the power of eminent domain was not interfered with by the Constitution. At the same time, it is very obvious that if it includes the right over the subject-matter dealt with in section 92, then we have only words - the mere shadow of a power - and not a real power.

Proposed vote agreed to.







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