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Wednesday, 11 December 1912


Senator MCGREGOR - I would not. There are a great many purposes for which the High Court is useful and necessary besides the interpretation of the Constitution; but the Parliament of the country is the place in which the Constitution should be interpreted.

What I want to point out is this : That the Constitution represents a legal document in which is set out the domain in which the Federal Parliament may operate, and the domain in which the State Parliaments may operate. That represents a binding agreement between them. If you are going to allow one party to that contract to interpret that legal instrument, what is going to happen? You might as well tear the document up. What would be said of two private individuals entering into a contract, and one claiming the right to interpret the contract? In that case the document would not be worth the paper on which it was written. If this Parliament is to have, as the Vice-President of the Executive Council says it ought to, the full power to interpret the Constitution, it means that you might as well tear that Constitution up, because it would leave this Parliament absolutely free to pass any law it liked, to roam throughout the legislative field, without any hand in restraint The purpose of the High Court was to act, to use a familiar expression, as a constitutional boundary rider, lt was to prevent trespass on the part of those in power in the Federal area into that area which had been reserved for the States. Those people who now complain about restraint are anxious to shift from the High Court any power that the Court has in that direction.

I cannot pass from the High Court without expressing a very great deal of - I shall not say surprise - but regret that one in the position of a Minister should have allowed himself to refer to the High Court in the terms in which the Vice-President of the Executive Council referred to it in introducing this Bill. The Minister is present, and can say ,if I am wrongly construing his words. They amounted to an accusation of partisanship against those who are called upon to interpret the Constitution. After admitting the high qualifications and the ability of the Judges, the Vice-President of the Executive Council went on to say -

Yet when they come to interpret the Constitution as between the States and the Commonwealth, we find that some of them have been so long associated with the States, and have so little faith in the Commonwealth - whether they consider it is not safe without a Legislative Council or not I do not know - that they keep as much power from the Commonwealth as they can, and allow the States to retain as much power as possible.

There is only one way to construe that, and that is that those gentlemen, in their interpretation of ' the Constitution were striving against their own judgment to give 3 decision in favour of the States.

SenatorMcGREGOR.~Not against their own judgment, because that was the only judgment which their past associations gave them.


Senator MILLEN - The Minister says that they have so little faith in the Commonwealth that they keep as much power from the Commonwealth as they can, and allow the States to retain as much power as possible. That does not indicate the attitude of a Judge at all. It indicates the attitude of a partisan striving to obtain an advantage for those interests which he is seeking to bolster up.


Senator Long - He questioned their judgment, not their motive.


Senator MILLEN - When we are told that some members of the High Court Bench have kept as much power from the Commonwealth as they can, those words do not square with the contention that they have honestly interpreted the Constitution according to their judgment.


Senator McGregor - That is what I said - that they interpret it according to their judgment.


Senator MILLEN - But the Minister went on to say that they had done all they possibly could - to narrow the powers of the Commonwealth and widen the powers of the States. If that is not evidence of State Rights mania I do not know what is.

If you accuse any one of being the victim of State Rights mania I think you go so far as to say that that man is not qualified to exercise judicial functions, but is a partisan. Senator Fraser interjected -

The rights of the Commonwealth are written in the Constitution.


Senator MCGREGOR - Yes, but I even want a fair interpretation of the written Constitution.

If that is not an affirmation that hitherto these interpretations have not been fair, I am unable to understand what ordinary English language means. Let me try to point out my views of the position that this High Court ought to and does occupy. It has been said that the High Court has cut down the powers of the Federal- Parliament. I absolutely deny that. The Court is not there for the purpose of cutting down or enlarging the powers, but is there for the purpose of declaring what those powers .are as set out in the Constitution. No one can say what the powers of this Federation are until we know from the only authoritative source which is entitled to speak on this matter, and that ia the High Court. That brings me back to the statement I made, that those who are supporting these proposals are seeking power which will enable the Federal Parliament to pass any law it likes, irrespective of whether it enters into the States domain or confines itself to its own Federal arena. It is not at all surprising, when we recognise the desire of the Labour party to legislate in every direction, that they have hostile feelings towards the High Court. It is quite a characteristic of all law-breakers, or those who wish to be law-breakers, to view with apprehension and dislike those whose duty it is to administer the law. The law under which we are operating to-day is the Constitution.


Senator Rae - More sacred to some minds than Holy Writ.


Senator MILLEN - It is not a question of being sacred ; it is a law which the people made. Whether it is good or bad we are not called upon to discuss, but the High Court is called upon to administer it.


Senator Needham - Would you not give the people a chance to alter that law ?


Senator MILLEN - The people have had their chance, and have given their answer.


Senator Needham - Would you not give them another chance?


Senator MILLEN - Are you going togive them a chance every year? There is another argument frequently advanced in support of these Bills, which I admit is plausible, but which is absolutely unsound, and that is that by these proposals we are going to increase the self-governing powers of the people. I should like my honorable friends to mention one single way in which you can increase the selfgoverning powers of the people of Australia. I should like to remind them of the position before we adopted Federation. We had then a number of State Parliaments and State Governments, every one of which could legislate on any subject it liked. Any law which was passed was good law. When we federated, in what way did we add to those powers? There was no possibility of doing so. The powers were complete beforehand. It is admitted that prior to Federation each State Parliament was all-powerful in the matter of law-making. Every power necessary for , theself-government of the people was possessed by the State Governments.


Senator E J RUSSELL (VICTORIA) - The AttorneyGeneral said that many of the powers left to the States could not be effectively exercised.


Senator MILLEN - Here is a statement by the Attorney-General complete in itself: that "the State Parliaments could make what laws they pleased."


Senator Rae - We all agree with that.


Senator MILLEN - But Senator Russell is now attempting to show that the statement means something else. It has never been disputed, at all events outside this Chamber, that until we accomplished Federation the State Governments were equipped with power to pass any law they liked. Federation did not add to those powers at all. It merely transferred some of them. What it did was to hand over to a central authority certain powers which the States up to that time had exercised individually. As Federation did not add to those self-governing powers, no more will these measures of the Government add to them. You may say, if you please, that it is desirable that certain powers should be exercised by the central authority, but you cannot possibly add to the self-governing powers of the people of Australia by transferring to the central authority powers which the people already possess.


Senator E J RUSSELL (VICTORIA) - Do you not add to powers if you make them more effective ?


Senator MILLEN - Making them " more effective " is a matter of opinion. My point is that you do not add to the people's powers of self-government, because if this Union were broken up tomorrow the people would enjoy every power of self-government which they have to-day.


Senator Rae - No.


Senator MILLEN - I should like to know one power which the people now possess which they could not have exercised through their State Governments before Federation?


Senator Rae - There are a good many.


Senator MILLEN - I am asking for a single one. We are not going to add to the self-governing powers of the people by this proposal. What we are asked to do is to transfer from one governmental agency, the State Parliaments, certain powers exercised by them, and to place those powers in the hands of another governmental agency, the Federal: Parliament. Whether that is advisable or not is a point with which I will deal later, but I wish now to make it abundantly clear that to talk of enlarging the selfgoverning powers of the people by these measures is not only untrue and unsound, but an absolute contradiction of the facts themselves.


Senator McGregor - The rights of the people of Australia in the State Parliaments are restrained by the Legislative Councils. But this Parliament is elected on a universal franchise.


Senator MILLEN - I will come directly to the question of the Legislative Councils - one of those bogies behind which honorable senators opposite are fond of taking refuge. In my judgment, if you want to get absolute self-government you must make your governing areas as small as you can. The most complete form of self-government would be attained by the abolition of all government, leaving each individual to govern himself. To the extent that you place in the hands of the central Government powers which can be better exercised within a smaller area, to that extent you depart from what I regard as the true essence of self-government.


Senator Long - The honorable senator is a parish-pump nationalist.


Senator MILLEN - Expressions of that sort may seem very big, and very bold, and very striking, when they come from one like Senator Long, but I am quite content to leave the point to the test of the teachings of history, and to ask whether or not our race has shown by its attachment to the rights of self-government, for which I am pleading to-day - whether you can find anything to the contrary anywhere in the history of the British race at any time - any intention to depart from that kind of self-government which I have indicated, merely for the purpose of adding to the dignity and authority of a central body.

I come now to a question raised by an interjection, that we should trust the people. It seems a very good phrase until we look into it. " Why not trust the people of Australia ?" What are the Government proposing to do by this proposal? They are proposing to' take the power which the people of Australia exercise through one of their governmental agencies, and to use the same power, given by the same people, by means of another governmental agency.


Senator Findley - Nothing of the kind. The people are not represented in the State Legislative Councils.


Senator MILLEN - What I want to make clear is that the power is in the hands of the people anyhow, whether they exercise it through the State Parliaments or through the Federal Parliament.







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