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Thursday, 23 August 1906


Senator DRAKE (Queensland) . - I must once more appeal to the Committee to consider clause 5. It appears to me to be perfectly clear that those who think that Parliament has power to pass this clause are relying upon an interpretation of paragraph xx. of section 51 that certainly does not give effect to the spirit of the Constitution. The argument comes down to this - that in consequence of the word " status " having been dropped out of paragraph xx. during the Convention, the Government is prepared to take advantage of that drafting amendment to push the provision as far as it will possibly , go. To do so is not in accordance with the spirit of the Constitution. Hitherto we have endeavoured to be careful not to encroach upon the States rights. The States have, in some instances, I think assumed an unreasonable attitude with regard to what the Commonwealth has done. But if we do anything like this, we shall give edge to the complaints of the States, because we shall interfere with them in a matter in regard to which they are naturally very jealous. Probably there are few subjects upon which people are more "touchy" than their trading rights; and by this clause we are asserting a right to go into a State and interfere with the trading operations carried on within it in a manner that may lead to great difficulty. The Committee should put aside the views that have been expressed as to the proper construction of the Constitution, and should consider whether it is a fair and right thing that we should in this way interfere with the trading rights of a State. The contention of those who are supporting the Government really depends upon an inaccurate, and what I must call a tricky, interpretation of the Constitution. I do not for a moment think that the High Court would give that narrow interpretation to it. I feel perfectly certain that in accordance with the well-known rule that every Constitution shall be construed as a whole, the High. Court would consider that paragraph xx. is subject to the general powers with regard to trade and commerce contained in paragraph 1. of section 51. If we want to ascertain what power we have in regard to trade and commerce, we must look exclusively to paragraph 1. of section 51 and to section 98. In the latter section, in regard to trade and commerce, the Constitution makes a distinction as clear as possible between the rights of the Commonwealth and the rights of the States, giving to the Commonwealth the matters that can best be controlled by it, and leaving to the States all domestic matters. That is the general rule that is observed throughout the Constitution. I submit that there is no departure from that rule with regard to trade and commerce. All trade between the States and between Australia and foreign countries is given to the control of the Commonwealth, but trading within a State is left exclusively to the State. We are here presuming to interfere with trading corporations within a State, making a distinct difference between the operations of corporations and the operations of trading firms. As I pointed out yesterday, there might be on two sides of one street a corporation and a private firm doing exactly the same kind of business; and if the view of the supporters of this clause be correct, one would be acting under Commonwealth law and the other under State law. That would cause more resentment on the part of the States than almost anything we have yet done. There is already sufficient trouble and friction between States and Commonwealth. We should not rashly add to it. I hope that the Committee, having an opportunity to reconsider the matter, will act wisely, and will not give the States any ground for further umbrage by passing a clause of this character.

Senator MULCAHY(Tasmania) [9.20}. - We had yesterday a long debate upon this point, in which, as usually happens in regard to legal questions, the lawyers differed. Some extraordinary contentions were put forward bv Senator Best, who held that if there was anything in the shape of a ridiculous anomaly in the Constitution, we should accept it loyally, and legislate to put it into effect.


Senator Best - No one suggested that there was a ridiculous anomaly.







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