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Wednesday, 29 August 1906


Senator DRAKE (Queensland) . - In the case of the Fraudulent Marks Bill, we did not restrict ourselves to trade between one State and another.


Senator Keating - I referred to the Commerce Act.


Senator DRAKE - I thought that the Minister was speaking of the other Act, because in that case we interfered with trade within a State, and in doing so, 1 think we exceeded our constitutional powers. I understood the Minister to contend that if Brown had a shop in Victoria, and also a shop in New South Wales, he would come under the Bill, but clearly he would not. In each case, he would he a private trader, because his trade would be limited to the one State. It would be only so far as his operations comprehended trade between one State and another that he would come within this measure, and, as I contend, within our constitutional power.


Senator Keating - I said that if his trade were of an Inter-State character, he would come within the measure.


Senator DRAKE - Then the anomaly which the Minister was pointing out, disappears entirely, because in the case I cited Brown would be confining the business of each shop to the State in which it was located. But the anomaly to which Senator Symon and others have drawn attention would be a real one. That is a case where we should have two bodies, one being a private firm and the other a corporate firm on opposite sides of a street, doing business strictly within the limits of one State. I wonder that Senator de Largie did not notice that the point of contention is as to whether we have constitutional power to pass the provision in question. The Government contend that it is conferred by paragraph xx. of section 51, but we contend that upon a true interpretation of that paragraph the power is not given to us.


Senator Trenwith - On what does the honorable senator rely for any limitation to that power?


Senator DRAKE - On the power in regard to trade and commerce which is given to us in paragraph 1. of section 51, supplemented by section 98, which expresses the exact limit of that power. It was very admirably pointed out by Sen- ator Millen that we have power in regard to arbitration and conciliation in case of disputes extending beyond a State ; but it has not yet been contended that, because we have power under paragraph xx. of section 51 of the Constitution in regard to corporations of various kinds, we therefore have power to bring corporations within the Arbitration and Conciliation Act.


Senator Trenwith - There is a specific limitation.


Senator DRAKE - There is a specific limitation in paragraph 1. of section 51 in regard to trade and commerce, and there is a specific limitation in regard to our powers relating to arbitration and conciliation. If the contention be good that paragraph xx.' gives us plenary powers in the case of corporations, so that we may extend the limits of our power in regard to trade and commerce, the paragraph would equally enable Us to include arbitration and conciliation. The reasoning seems to be absolutely complete.


Senator de Largie - What is the meaning of paragraph xx. ?


Senator DRAKE - It gives us power in regard to foreign corporations and trading or financial corporations, but not so as to extend the expressed' limits of paragraph 1 in regard to trade and commerce. When a reading of the Constitution produces such a startling anomaly as that a man trading on one side of the street is exempt from the law, while a corporation trading in exactly the same way on the other side is within the law, we doubt the correctness of the interpretation.


Senator de Largie - It is an anomaly, but it is not due to any discrimination by us.


Senator DRAKE - There is no anomaly if my reading be adopted, namely, that we haw power over foreign corporations and trading or financial corporations within a State, but not so as to enlarge the power conferred by paragraph 1. of section 51 of the Constitution. With regard to trading operations, not of any particular individuals, but as between one State and another, or between a State and countries outside Australia, we have absolute power ; but the whole power with regard to trading within a State belongs to the State. There we see the harmony of the Commonwealth Constitution; each State is a separate sovereign State, the Government under each State Constitution having full power with regard to all trade within the State. To follow Senator Keating again, the- underlying principle of the Constitution is that matters which can be more efficiently dealt with by the Commonwealth Government are handed over to the Commonwealth Government. What are they? They are matters in which the interest of one State impinges on the interest of another. It may be merchandise marks, or laws relating to trade and commerce - such a law as is now under discussion- - where the interests of two States, or the interests of a State and the interests of .an. outside community, impinge. The Commonwealth then steps in and takes charge. But the genius of the Constitution is that everything in a State shall be within the power of the State Government under the State Constitution. The burden rests on the honorable senators who take an opposite view from myself to show that their interpretation does not lead to anomalies such as would constitute almost an absurdity, and be absolutely contrary to the underlying principle of the Constitution.







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