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Wednesday, 29 August 1906


Senator DOBSON (Tasmania) .- Some honorable senators do not yet quite understand the constitutional point which Senator Symon has endeavoured to put before the Committee on more than one occasion. The point, as I understand it, is that under the Constitution we have the power to regulate only trade and commerce with other countries and among the States. Clause 7 of the Bill keeps to that, but in clause 8 we are asked to set aside the words of the Constitution, and in the case of a corporation, to legislate in respect of trade and commerce in any part of the Commonwealth, which means legislating with respect to trade in a particular State.


Senator Playford - The clause quotes the words of the Constitution.


Senator DOBSON - I am pointing out that that is exactly what it does not do.


Senator Playford - "Any foreign corporation or trading or financial corporation." Those are the words of the Constitution.


Senator DOBSON - I say that the clause does not use the words of the Constitution, because, with respect to our power to deal with trade and commerce, we have to look to paragraph 1. of section 51, and in clause 8, where it is proposed to penalize corporations, we are asked to depart from the words of the Constitution, and to attempt to regulate the trading of a corporation in a particular State. We have no power to interfere with trade in Tasmania or in any other State of the Commonwealth.


Senator de Largie - Then to that extent the clause will be inoperative?


Senator DOBSON - Senator de Largie regards certain operations as an offence, and believes that if we cannot punish such offences within the boundaries of a particular State, we should stretch the Constitution to enable us to do so.


Senator de Largie - I said nothing of the kind.


Senator DOBSON - We should attend to our part of the business, which is the regulating of trade and commerce with other countries and among the States, and it is for the States Parliaments to regulate trade within their respective States. Do not honorable senators see that this proposal is the grossest attempt to interfere with States rights that was ever submitted to the Senate ?


Senator de Largie - Look at paragraph xx. of section 51 of the Constitution.


Senator DOBSON - That does not help the honorable senator in any way, because under that paragraph we have power to make laws with respect to corporations and trading companies. Honorable senators propose to carry that power back to paragraph 1. of section 51, conferring the power to deal with trade and commerce, and to contend that in that way we have the power to interfere with trade in a particular State. There are references in section 51 to bills of exchange and promissory notes. We have the power to enact legislation concerning them. But if the reasoning of some honorable senators be correct, we have only to take that paragraph in conjunction with paragraph 1 of section 51, and claim that we have the power to deal with trade and commerce so far as it is affected by bills of exchange and promissory notes in any particular State. I ask honorable senators to say whether they think we can do that ? We have also under the same section of the Constitution the absolute control given us with respect to immigration and emigration ; but will my honorable friends contend that that, in conjunction with the paragraph1. of section 51, gives us the power to make laws restricting the trading powers of immigrants? In this measure we are being asked to differentiate between a company and a private individual. Do honorable senators contend that in the same way we should have the power to differentiate between an immigrant newly arrived in Tasmania and a citizen of Tasmania who has been in the State all his life, simply because we have the power to deal with trade and commerce as well as the power to deal with immigration? Senator Keating should tell the Committee whether he really believes in this clause as it stands. We must have a division upon it, because there are some of us who believe that we should place on record our protest against what we consider to be unconstitutional and illegal. We are bound to protect States rights in this matter, and must have a division on the question. The time will come, and no doubt very shortly, when the High Court will be called upon to decide the point, and it is as well that it should be shown that some members of the Senate have not lost their heads over this business.


Senator Givens - The High Court will not take the slightest notice of what honorable senators do.

Senator Sir JOSIAHSYMON (South Australia.) [4.42]. - I wish to say that I quite appreciate the position taken up by Senator de Largie. It is clear that the honorable senator is impressed with the fact that this measure proposes an inequality in the treatment of different persons, but he says that it must be left with the States Parliaments to make the legislation uniform. I remind the honorable senator that it is our duty to make our legislation uniform, and the Constitution only empowers us so to do. If we are to have legislation that is lop-sided, it must strike any honorable senator either that the Constitution which permits such a thing must be wrong - and that can scarcely be contended with respect to our Constitution-


Senator de Largie - I think that there is a defect in it.


Senator Sir JOSIAH SYMON - Even if there is that suits the argument I am putting to the honorable senator equally well. If this is lop-sided legislation, and is not uniform, it is legislation that we should not pass, because the Constitution really empowers us to enact only uniform legislation. It would be a serious blemish on the Constitution if it could be said that it enabledus to provide that in respect of the same act one man should be liable to punishment and another should go scot free. It would be a very sad thing if we were to be obliged to attribute such a blot to the Constitution. I am not putting the matter as a lawyer, but as the man in the street might put it, and as it must appeal to one's common sense and moral sense. The basis of the Constitution is equality in citizenship and trade. That is its basic principle, and yet we are here asked to give it the go-bye - to discriminate, to enact an inequality, and to leave it to some other Legislature if it pleases to remedy theinequality. I have no desire to press the constitutional question further, but I point out that this Bill is one dealing with trade and commerce. It is introduced for the purpose of enabling us to give effect in a particular directionto that power conferred upon us by the Constitution to make laws with respect to trade and commerce. The only laws we can make on the subject are those which affecttrade and commerce with other countries and among the States. But under cover of another power in the Constitution, enabling us to legislate in regard to a particular and specific matter, we are being asked to extend our powers of legislation in respect to trade and commerce. This is not a Bill dealing with foreign corporations or trading or financial corporations formed in the Commonwealth, but a Bill dealing with trade and commerce between other countries and among the States.


Senator Trenwith - Not necessarily.


Senator Sir JOSI AH SYMON - Yes. If it is not a Bill dealing with trade and commerce it is nothing. We have no right, under a subterfuge or pretence, because there are other words in the Constitution, to say that we are going to legislate as to something else, namely, as to something which relates to the status or position of those corporations.


Senator Trenwith - Does the honorable senator say that we have no power to deal with anything but the status of such companies ?


Senator Sir JOSIAH SYMON - In dealing with trade and commerce we have no power to make that an offence in one man which is not an offence in another.







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