Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Thursday, 23 August 1906

Senator O'KEEFE (Tasmania) . - It was not fair for Senator Pulsford to say that there are some senators who are,, prepared to go beyond the limits of the Constitution. There are 'some honorable senators who, in supporting the clause, are prepared to go further than he is, but that is entirely because their reading of the Constitution is different from his.

Senator Pulsford - I want to make that known.

Senator O'KEEFE - No honorable senator who is going to vote on the opposite side to Senator Pulsford objects to that being made known. What I object to is the statement that I am prepared to go beyond the limits of the Constitution. When those who have been regarded as amongst the leading lawyers in this Parliament take different sides on this point, as they do on many other points arising out of the interpretation of the Constitution, is it surprising that laymen should also take different views? The AttorneyGeneral, Senator Keating, and Senator Best have expressed one view, while Senators Symon, Clemons, and Drake hold an entirely opposite opinion. If I, as a layman, find that there is any doubt as to the construction of a provision in the Constitution, I must apply my own commonsense, and read into the words that construction which appears the most feasible. Under paragraph xx. of section 51 of the Constitution, the Parliament is empowered to legislate with respect to - foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.

It does not say whether the corporations shall extend beyond the limits of any one State or not. Then under paragraph xxxv. the Parliament has power to legislate with respect to - conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

In that case, note, it is specially stated that the disputes shall extend beyond the limits of any one State. It has been contended by Senator Drake that it was never intended that Parliament should have power to deal with trading or financial corporations which are operating only within the limits of any one State. If that is the case, why was not the intention specifically mentioned in paragraph xx. as it is in paragraph xxxv. ?

Senator Drake - I contend that we cannot deal with them in regard to trade and commerce.

Senator O'KEEFE - As a layman, 1 have to look at the face of the Constitution, and to put upon the words that construction which seems to me the most reasonable. When I find in some paragraphs of section 51 a specific statement as to what we can or cannot do, it seems to me, as a layman, that paragraph xx. gives us power to deal with various corporations within the limits of the Commonwealth, whether they are operating within a State or beyond its confines. I admit that Senator Drake put a very strong argument as to the wisdom of taking this step when he pointed out that although a corporation and a single individual might be acting in restraint of trade on opposite sides of a street, we would have power to deal with the corporation, but not with the individual. That argu ment does appeal to me; but there again. I have to look at the matter from the stand-point of a layman. It seems to me that there is more likelihood of injury being done to the community in the matter of restraint of trade by a corporation than by an individual.

Senator Clemons - If the clause is passed, and it is good, what will happen ?

Senator O'KEEFE - We shall have power to restrain the corporation.

Senator Clemons - But supposing that we can, what will happen?

Senator O'KEEFE - We will have power to stop corporations from doing that which we believe to be an injury to the community.

Senator Clemons - We want to stop the thing being done, and not the persons doing it.

Senator O'KEEFE - Exactly, and so far as we are empowered by the Constitution we shall stop the thing being done. We have not power, however, to deaf with an individual so acting. If an individual is found to be acting in restraint of trade, or doing an injury to the comm unity, it will remain for the State Parliament to interfere. We are not responsible for that anomaly ; the responsibility rests with the framers of the Constitution.

Senator Drake - A State Parliament has power to deal with both corporations and individuals when they are trading within its limits.

Senator O'KEEFE - The fact that in this Bill we have exercised our power in regard to corporations may be an incentive to the States Parliaments to exercise their power in regard to individuals. I intend to vote for the clause as it stands.

Suggest corrections