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Friday, 8 June 1928


Mr BRENNAN (Batman) .- This clause which it is now proposed to pass, and which, in one form or another, has found expression in previous legislation, originates in that wise provision in the Constitution, which lays it down that whenever the laws of a State are inconsistent with the laws of the Commonwealth, the latter shall prevail, and the former, to the extent of their inconsistency, be invalid. Most people applauded that provision when it was made part of the Constitution, and they possibly also applauded, as I did, the judgment of the High Court, which asserted the superiority of a Federal award over an inconsistent State law. In other words, in the Glyde Engineering case it adopted a new reading of the law as laid down in Whybrows' case. I point out, nevertheless, that the Federal principle involved the concurrent rights of legislation in the Commonwealth and in the States. That has led to a certain amount of what is known colloquially as overlapping. This overlapping has become, to some extent, a bug-bear in the minds of honorable members opposite.


Mr Killen - Naturally.


Mr BRENNAN - I remind the honorable member who interjected that he is also very much bound up with a school of thought which stands for the rights of local legislatures, in other words, for State rights. More than once he has stood for the local power of the States to govern themselves and legislate freely, and has resisted the encroachment of the Commonwealth Parliament upon State powers. I mention that, not because I am in agreement with those who may be grouped together as State-righters. I have always advocated strongly the granting of full Commonwealth powers. When the last referendum was before the people I had to face some severe criticism from many people, including some of my own political friends in certain of the States, for what I conceived to be my consistent stand in regard to the extension of Commonwealth powers. I still stand for them. May I place on record in the presence of the AttorneyGeneral what the existing law provides for? Section 20 of the principal act reads -

When a State law or an award, order, or determination of a State Industrial Authority is inconsistent with an award or order lawfully made by the court, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

That is a .clear expression of the superiority of the Federal power, and its meaning was made more definite by the High Court's interpretation in the Whybrow case.


Mr Killen - Nevertheless we have overlapping awards.


Mr BRENNAN - Does the honorable member take the responsibility of saying that he would legislate in such a way as to prevent any overlapping of awards in all circumstances ?


Mr Killen - Tes.


Mr BRENNAN - The bill proposes to amend that section by adding after the words " is inconsistent with " the words " or deals with any matter dealt with in ", and by inserting after the word " inconsistency " the words " or in relation to the matter dealt with ". If these amendments are agreed to section 30 will read -

When a State law or an award, order, or determination of a State Industrial Authority is inconsistent with, or deals with any matter dealt with in an award or order lawfully made by the Court, the latter shall prevail, and the former shall, to the extent of the inconsistency, or in relation to the matter dealt with, be invalid.

My concern is with the addition " or deals with any matter dealt with in ". It does not follow that because the Federal court has dealt with a matter, it has dealt with it finally and exhaustively to the exclusion of a State Parliament or a tribunal created by a State Parliament which might conceivably give attention to a phase of the matter not dealt with or only partially dealt with by the Commonwealth Court. Surely it is a rather drastic action to oust the State jurisdiction because the matter with which it wishes to deal has been already dealt with in an award or order or determination of the Federal court. It is curious that I should have to urge this view upon almost empty benches opposite.


Mr Latham - The position is the same on the opposition side of the chamber.


Mr BRENNAN - I had expected ministerialists, especially those who are the special champions of State rights, to subject this proposal to a searching scrutiny. For my part, I stand for the concurrent rights of the States and local autonomy while the present federal system stands just as I believe absolutely in the superior rights of the Commonwealth when there is a clear conflict between the two jurisdictions. The Attorney-General has provided facilities for an inconsistency to be declared, not by reference to the High Court, as in the past, but by the simple process set out in his further amendment; -

(1)   Any person interested may apply to the court for a declaration that a State law dealing with an industrial matter, or an award, order, or determination of a State industrial authority, is invalid under section 30 of this act.

(2)   The court shall hear aud determine the application, and may make such declarations as it thinks just.

I ask the Attorney-General to Consider whether he has not proceeded too far in the direction of ousting the jurisdiction of the State authority in these matters.

It may have the effect of placing arbitrary limits on the power of the States to legislate. Although I strongly support the paramount right of the Commonwealth in its own domain, and have advocated an extension of the Commonwealth power, I say that the Federal system of legislating must at present be concurrent with that of the States. I believe in the exercise of local government by local authorities, whose power shall be concurrent with that of the Commonwealth authority, except when the two are in absolute conflict. The Deputy Leader of the Opposition has expressed his antagonism to the clause, and I am inclined to agree with him. The existing case law, founded upon the Constitution, is sufficiently definite to assert the paramount right of the Commonwealth in the event of overlapping and the Attorney-General is now trespassing dangerously upon the concurrent right of the State to legislate upon a matter of local concern of which it may have special knowledge, and with which the Commonwealth may not have dealt effectively or, at any rate, not exhaustively.







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