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Tuesday, 28 August 1906


The PRESIDENT - What has this to do with the question whether we can legislate in reference to States railways?


Senator Guthrie - I am coming to that presently, if you will only wait. The interpretation clause proceeds -

(a)   the creation of a trust as understood in equity, or of a corporation, wherein the trustees or corporation hold the interests, shares, or stock of the constituent persons ; or

(b)   an agreement.....

I wish to emphasize the fact that the Railways Commissioners of South Australia have entered into an agreement with wharfowners - and I particularly instance Port Pirie - to charge a certain rate for wharfage for goods passed over the wharf there. I hold that under this Bill that is an agreement into which the State of South Australia has entered with private individuals. But the Railways Commissioners of South Australia have gone further, and entered into a combination for the purpose of pooling all wharfage, and dividing it at the end of the year. I ask you, Mr. President, in deciding this point of order, to take that fact into consideration. I could point to fifty instances of a similar nature. I shall put the case still more strongly. In Victoria, so far as wharfage is concerned, there is a protective duty. Goods arriving from ports outside Victoria are charged a wharfage fee of 5s. per ton, while goods produced in that State are passed over the wharfs absolutely free. I ask the representatives of Victoria if they will deny that that is a protective duty against other States


Senator Best - It is a wharfage charge.


Senator Guthrie -It is a protective duty. Again, salt from Edithburgh, in South Australia, when landed on a wharf in Victoria, is charged a wharfage fee of 5s. per ton.


Senator Styles - The honorable senator must blame the State Parliament for that.


Senator Guthrie - No ; it is the fault of the Commonwealth Parliament.


The PRESIDENT - I must ask the honorable senator to address his remarks to the point of order, and not to the merits or demerits of what is done in Victoria.


Senator Guthrie - The position I wish to put is that wharfage is a service, and that the Constitution provides that services, amongst other things, shall be the same throughout the Commonwealth. Victoria is building up-


The PRESIDENT - The honorable senator is really discussing the merits or demerits of the system in Victoria; but the question at issue, I understand, concerns a discussion in Committee which he wished to initiate relative to the Bill.


Senator Guthrie - No. The point I have raised is whether I can discuss the question of services. I leave the question of railways, because I think it must be evident to every honorable senator that there is a more important question to be. considered, and that is the competition between the States.


The PRESIDENT - The honorable senator must see that the question under consideration is not what powers the Senate bias or has not, but what powers the Committee has in relation to the Bill.


Senator Guthrie - The amendment of Senator Best begins with the words " If the defendant with respect to any goods or services." and the whole question I raise is whether on that amendment I am entitled to move in the matter of services.


Senator Best - No one ever disputed that for a moment. The whole point at issue was as to States railways.


Senator Guthrie - No; it is the question of services.


Senator Best - That is not the point on which the honorable senator was ruledout of order.


Senator Guthrie - My disagreement from the Chairman's ruling relates, not to a question of States railways, but to the question of services. I am prepared to prove that the services as between State and State are unfair.


The PRESIDENT - The honorable senator must not argue that question. The point is whether in this Bill in Committee he can move an amendment-


Senator Playford - No, that is not the question.


Senator Best - I think that there isa misunderstanding, sir.


The PRESIDENT - In the first place, I should like to be clear as to what the disagreement was about. I am bound to take the statement of the Chairman of Committees, who, I understand, would not allow Senator Guthrie, on an amendment moved by Senator Best, to discuss the question of States railways and States services. Whether the procedure in Victoria in relation to wharfs or railways is fair or unfair has nothing to do with -that question. The whole point is whether, in Committee on the Bill, the honorable senator can initiate a discussion or introduce an amendment relating to States railways or States services.


Senator Guthrie - The whole question is whether in Committee I can move fo delete the words " or services."


The PRESIDENT - Nobody can deny that.


Senator de Largie - But the honorable senator has not proposed an amendment.


Senator Guthrie - No; but I was leading up to an amendment when the Chairman of Committees ruled me out of order because of a reference I had made to States railways. The States not only control railways, but also a great many other public services. In New South Wales, for instance, the State controls the tramways. Is this Bill to provide that the Parliament of that State shall not have the right to control the railways by, for instance, fixing the fares, or, if necessary, the freights? I contend that it would be a very bad move indeed on the part of this Parliament to enact such a provision. I could mention other States which control such services as tramways.


Senator Dobson - The honorable senator has taken up an hour or so; but I do not understand yet what he is arguing about.


Senator Guthrie - Does the honorable senator think that the use of the word " services " in the amendment of Senator Best would apply to the control of the tramways in1 Hobart?


The PRESIDENT - This Parliament has no power to deal with the tramways in Hobart.


Senator Guthrie - Have we not?


The PRESIDENT -This Parliament has power to deal with trade and commerce among the States, but not with trade in any one State.


Senator Guthrie - That is a ruling from the Chair which I am very glad to get. In

Victoria, the Railways Commissioners issue railway tickets from Melbourne to Sydney - that is to say, for a journey through two States. Would the amendment of Senator Best apply to them? I think it would. The question to which I was more particularly directing my_ attention when the interruption occurred was whether, when a deep-sea ship arrived at a port in which there was a combination which comprised either the Railways Commissioners or the Harbor Trust, and which arbitrarily fixed the charge for landing goods on the wharf, the Bill would relate to such services. It must be borne in mind that these services are in some cases rendered by private individuals, and in other cases, as in Victoria, by the State. I declare emphatically that it is an absolute breach of the Constitution for a State to levy differential wharfage charges.


The PRESIDENT - I must ask the honorable senator to confine himself to the question of order. I have already stopped him from discussing the question whether the wharfage rates in Victoria are fair or unfair. What has that to do with the point of order ? Nothing at all. The only question is what amendments can be made in the Bill in Committee.


Senator Guthrie - I bow to your decision, sir. But I wish to point out that the Constitution provides that the charges for services throughout the Commonwealth shall be uniform.


The PRESIDENT - Suppose that they are not. What has that to do with this Bill?


Senator Guthrie - The Committee was engaged in discussing an1 amendment, to the effect that, in regard to services rendered to any person who came within the Commonwealth, no rebate should be granted. That would still leave it open to each State which owned wharfs to fix the rate of wharfage. I take it that in Victoria there is a considerable territory which, under a system of rebates, would send its produce, not to Melbourne or Warrnambool or Portland


The PRESIDENT - The honorable senator does not seem to see the point of order. He is again discussing the fairness or unfairness of certain conditions.


Senator Dobson - He is really ignoring the ruling of the Chair.


The PRESIDENT - The honorable senator is ignoring the ruling' of the Chair when he is discussing all manner of things which have nothing to do with the' question under consideration.


Senator Guthrie - I have been trying to point out that, if. a system of rebates were initiated under the Bill, it would be possible for ohe State to take advantage of another State.


Senator McGregor - But this amendment would prevent the granting of rebates.


Senator Guthrie - How far would it prevent the granting of rebates ? I want to show honorable senators that it is pos.sible for Victoria-


The PRESIDENT - What has that to do with the point of order ? The question is what powers the Committee have in dealing with this Bill. Whether if is possible or not for Victoria to discriminate in reference to trade and commerce has nothing to do with the question.


Senator Guthrie - The point at issue between the Chairman and myself is whether I was in order in discussing the question of services.


The PRESIDENT - That is not the question put to me by the Chairman.


Senator Guthrie - I put my dissent in writing.


The PRESIDENT - I shall take the case as submitted to me by the Chairman of Committees.

The Chairman of ' Committees. - May I again explain? When clause 6 of the Bill was under discussion, Senator Best moved an amendment, which was perfectly in order, dealing with corporations and trusts and persons. Senator Guthrie argued at length whether the practices of the States Railways Commissioners came within the scope of the amendment. He proceeded to refer to Mr. Bent as a corporation, and to Mr. Tait, the Chairman of the Victorian Railways Commissioners, as a corporation in a lesser degree. He stated that these persons had granted rebates to persons sending goods between Echuca and Melbourne. As the honorable senator proceeded to discuss that matter at length, I ruled him out of order-


The PRESIDENT - Senator Guthrie's objection is that he dees not agree with the ruling of the Chairman as to the words " or services."

The Chairman of Committees. - The Standing Orders state that a senator taking objection to a ruling of the Chairman shall put his objection in writing. I trust that honorable senators who were present in Committee will, if there is any difference between Senator Guthrie's report and mine-


The PRESIDENT - I shall take the Chairman's report. Has Senator Guthrie finished at last?


Senator Guthrie - No. I think that your remark as to whether I have finished " at last " was quite uncalled for.


The PRESIDENT - The honorable senator has been, diverging from the question nearly the whole time he has been speaking.


Senator Guthrie - The President and I may differ on that point.' I leave honorable senators to decide which of us is right. I hold strongly that in dealing with services" we are infringing upon the right of the States to control their own business. I say again that the remark of the President as to whether I had finished "at last" was- quite uncalled for.


The PRESIDENT - I have called the honorable senator to order three or four times.


Senator Guthrie - I do not care whether you have called me to order twenty times. I am here to represent my State, and this is a matter in which my State is vitally interested. If I am put out of the chamber I do not care.


The PRESIDENT - This, Bill does not deal with the States at all.


Senator Guthrie - I do not know whether it does or not. I have asked the Minister a question, and have not obtained a satisfactory reply.


Senator Playford - I have said that the Bill does not deal with the States.


Senator Guthrie - The whole question, to mv mind, is this - does the word " services " relate to the States or does it not? I have given as an illustration a case where ai State enters into a combine, and has agreed to " pool" the results.


Senator Playford - Such' a case is not dealt with by this Bill.


Senator Guthrie - I think it is, and my opinion is worth just as much as the Minister's. I maintain that I have a right to discuss whether States services are included. I believe that it is possible for a State to enter a combination, and absolutely to bleed the consumer.


The PRESIDENT - I again ask the honorable senator to confine himself to th'e point of order.


Senator Guthrie - The question is, have I or have I not a right to address myself to the point whether Senator Best's amendment would affect a State that entered a combination ?


The PRESIDENT - The honorable senator does not seem to see the point at issue. The Senate has referred a Bill to the Committee. The Committee have power to consider that Bill, and to discuss amendments relevant to it. The question is whether issues concerning the powers of the States are in order in reference to the Bill. I ask the honorable senator not to continue his remarks, because he has reiterated his arguments a great many times.


Senator Guthrie - If the services referred to in Senator Best's amendment are rendered by a State, I wish) to know whether we have power to deal with such a State under the Bill?


Senator Millen - The question at issue presents itself to my mind as being one of some moment. The Bill, as you are aware, Mr. President, deals with combinations in restraint of trade. We were discussing in Committee an amendment, the object of which was to make the payment of rebates illegal. Certain States railways - those in my own State, for instance - grant rebates. I submit that it is competent, in view of the purpose of the amendment under discussion, to debate the question whether the clause and the amendment do refer to States railways or not ; if they do, whether it is constitutional or proper that they should do so ; and if they do not, whether it is desirable that they should. In view of the fact that we have before us in Committee an amendment dealing with rebates, and that there are States railways which pay rebates, it seems to me to be competent for honorable senators to argue how far the clause and the amendment cover the practice of States railways that grant rebates, and what legislation ought to arise out of that practice.


Senator Best - I wish to draw your at:tention, Mr. President, to important facts that seem to be overlooked. Certain offences are created by clauses 4 and 5 of the Bill. The measure goes on to say that if a contract is entered into, or a combination continues to exist, with intent to injure or destroy certain industries, or to compete with them unfairly, an offence is committed. This Bill can only refer either to a person, a foreign corporation, or a trading or financial corporation. The sole question is whether

Senator Guthriehad a right to discuss States railways. I submit that he had no such right. First of all, States railways cannot possibly be comprehended within the limits of the Bill. In order to bind the Crown it is necessary that the Crown should be specifically mentioned. Consequently,, if the States railways are in the names of the States, the Crown must be specially mentioned, in order that they may be affected. It may be said that the railways in some of the States have been handed over to Commissioners. But the Bill cannot apply to Commissioners of Railways. The Constitution gives us power to make laws with reference to foreign corporations, and trading and financial corpora- tions formed within the Commonwealth. That is all that this Bill seeks to do. The Railways Commissioners of the States have their existence by virtue of Statutes constituting them corporations. But that class of corporation does not come under this Bill at all, because it is not a foreign corporation, nor a trading or financial corporation formed within the 'Commonwealth.


Senator Clemons - Not a trading corporation ?


Senator Millen - I take it from Senator Best's argument that he contends that the States railways are not covered by the Bill ? If so, surely we can discuss the fact that the Bill does not cover them?


Senator Best - I do not think so, because we have no power under the Constitution to deal with them in such a Bill. It is true that we have power with reference to the acquisition of railways with the consent of a State.


Senator Givens - We also have power with regard to differential rates.


Senator Best - Only through the appointment of an Inter-State Commission. But that is not the point.


Senator Clemons - This Parliament has already dealt with States services.


Senator Best - And that question isnow before the High Court.


Senator Clemons - That is a precedent.


Senator Best - This Bill simply deals with offences committed by foreign corporations and trading or financial corporations within the Commonwealth. Statesrailways do not come within either of those designations.


Senator Clemons - I would respectfully remind you, Mr. President, that when we were discussing the Conciliation! and Arbitration Bill, and a similar question to this was brought before you, you ruled from the Chair that it was not incumbent upon you, or within your province, to decide a constitutional question.


The PRESIDENT - Except so far as is necessary for the conduct of business.


Senator Clemons - Of course. I rose to remind you that in consequence of your ruling, the question then at issue, which was analogous to the present question, was discussed at great length. You know, of course, that I am referring to the inclusion of States servants under the Conciliation and Arbitration Act. I then agreed with you that it would be inadvisable for you to rule on a constitutional point, and that, as long as the debate did not traverse the Standing Orders, it should be allowed to go on. The question now before the Chair is exactly that which then had to be decided.


The PRESIDENT - I do not think so. I think it is a question of what can be introduced in the Bill before the Committee.


Senator Clemons - Perhaps I am wrong, but the position, as it appears to me, is this. Senator Guthrie was discussing the possibility, or otherwise, of including certain States services within the scope of this Bill. Whether he was using that as an illustration or not is not much to the point. He was discussing the advantage or disadvantage of using this Bill to control such services. When we were dealing with the Conciliation and Arbitration Bill, we discussed the applicability of that measure to States services, and whether it was desirable or not to include them. You were asked whether such a point should be discussed, and your ruling was that it was purely a constitutional matter, that it did not, in your opinion, contravene the Standing Orders, and that you were bound to allow the debate to continue. I have quoted from memory, but I think I have correctly stated your ruling on that occasion. If so, I ask you. Mr. President, to reconsider the matter before you rule on this point.


Senator Pearce - I do not desire to prolong the discussion, but it will be within the memory of us all that, when the Arbitration and Conciliation Bill came before another place, there was a clause in it which excluded States servants from its operation.


The PRESIDENT - I think that was so.


Senator Pearce - That factupholds Senator Best's contention, inasmuch as in that particular Bill the Crown was mentioned.


Senator Clemons - We dealt with the Bill as it came to us.


Senator Pearce - When the Bill came to us States servants were included, and, therefore, the Crown was named. In order to have objected to the discussion which then took place, you, Mr. President, would have been called upon to object to a clause which was in the Bill - an impossible position. As to the constitutional point which has been raised, I direct honorable senators' attention to section 102 of the Constitution, which provides the only way in which we can deal with States railways, so far as rebates are concerned.


Senator Guthrie - Not the only way.


Senator Pearce - Yes, the only way.


Senator Clemons - The question now is not whether we can constitutionally deal with the States railways; the President will not give a ruling on that point.


Senator Pearce - The latter part of section 102 says -

But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission.

That clearly shows that in a Bill of the character before us, we could not deal with any such question ; and the section strengthens the position taken up by the Chairman. If we cannot legislate in the direction suggested, then surely every discussion regarding it must be out of order.


The PRESIDENT - This is a Bill to deal with certain acts by individuals, or by foreign corporations, and trading or financial corporations formed within the Commonwealth. The question of any dealings by any State-


Senator Guthrie - Mr. President-


The PRESIDENT - I am giving my ruling.


Senator Guthrie - Have I not the right to sneak?


The PRESIDENT - No. This Bill, as I sav. is confined to certain classes of persons, who are mentioned in clauses 4 and Clause 6 is, to a great extent, explanatory of clauses 4 and 5, and on clause 6 Senator Best has submitted an amendment, which commences " If the

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defendant." The word "defendant" there must mean one of the persons mentioned in clauses 4 or 5.


Senator Guthrie - Who may be a State.


The PRESIDENT - Who cannot possibly be a State, because clauses 4 and 5 deal only with persons or trading corporations. The question which I have to consider is whether in this Bill, as referred to the Committee, amendments can be introduced dealing with States railways or with States services. I do not think that such amendments can be introduced. Altogether apart from the question whether the Senate has power to deal with States railways, or with States wharfs, or any States services solely within a State, the other question raised is : Can the Committee in this Bill make amendments so extending the Bill as to bring within its scope the States as to their railway services? It is evident' that we cannot send a State to gaol j and I believe that one of the penalties under this Bill is a fine of .£500 or imprisonment for six months. I entirely agree with the ruling of the Chairman of Committees. As to the Arbitration and Conciliation Bill, that raised quite a different question. So far as I" recollect - and I only speak from recollection - when that Bill went into Committee it contained a clause which mentioned the States ; and whether that clause could be discussed and amended was quite a different question from that now raised. I think that the Chairman of Committees is right in his ruling.

In Committee :







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