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Tuesday, 17 December 1912


Senator KEATING (Tasmania) .- -lt is not my intention to occupy the attention of the Senate for an inordinate length of time, because I realize that both here and elsewhere the subjects under discussion have been threshed almost threadbare. Further, before these questions are submitted to the electors, as in due course they will, no matter what action may be taken by any parties here or outside, opportunity will be afforded to those who desire to place their views completely and fully before the electors. At the outset, I take very strong exception to the attitude of the Government in regard to the introduction of these measures. No stronger justification for my resentment could be found than what was incidentally remarked by Senator Symon in the interesting, lucid, and educational address which he delivered to the Senate a few moments ago. He pointed out that the great bulk of the public would be called upon to vote, influenced entirely by party interest. We have only to look back for a few years to realize what our Constitution is. We are accustomed to speak of this Parliament as, beyond all others in the world, the creation of the people; and to regard our Constitution as one which has been freely adopted by people to whom was afforded the most ample and full opportunity of deliberate choice. But what does this Constitution mean? We have to remember that before Federation there were in Australia six separate communities, which, in their relation to each other, were absolutely independent. They were mutually dependent on a common authority for powers, legislative and otherwise; and the question was submitted to the people of Australia whether they were prepared to accept the Constitution under which we now live. Realizing what they were doing, the people of Australia, by the necessary majority of both States and electors, accepted the Constitution, and we entered on a new regime. I ask those who here and elsewhere talk about the shortcomings of Legislative Councils, Legislative Assemblies, or other bodies in the States, whether they can for one moment pretend, with any seriousness, that, when Australia entered into Federation and decided to become a united people for certain definite purposes, the people handed over to this Parliament, or to any body of men, the right, by devious devices or otherwise, to interfere with their several local Constitutions? Does any one think that the electors who voted for Federation in 1899 thought that they were committing themselves to a Union the effect of which would be to deprive them of power exercised by the State Governments under which they lived, apart from those definitely surrendered under the Constitution? The particular reason why I take exception to the action of the Government in the matter is this : It will hardly be possible for any elector to approach the consideration of the issues uninfluenced by party feeling. The Constitution is the creation of the people. The people's representatives in 1897-8 framed a document which was submitted to the electors, not once, but twice. It was accepted by the people of every State. They were called upon to vote upon it at a time when they would not be influenced by party bias, and when their judgment would not be warped by any outside considerations. Now, however, the people of Australia are to be asked to reconsider their judgment, to alter the Constitution, and to endow this Parliament with much larger powers, at a time when a general election will be held, and when, I venture to say, the heat of party conflict will be greater than it has ever before been in the history of the Commonwealth. Is that fair and reasonable? Is it just to ask the people to vote upon questions of such serious importance at a time when they will only be able to come to a determination whilst influenced by all the passions aroused by party conflict?


Senator Rae - There will be two parties.


Senator KEATING - Undoubtedly ~r but would Senator Rae ask anybody - evert his dearest enemy - to determine upon a document submitted to him by his legaladviser, except at a time when it wouldbe considered with the coolest and calmest reflection ? Is it, then, a reasonable thing; to ask that an alteration of the Constitution of such serious importance should be determined upon by the people whilst under the influence of party feeling?


Senator E J RUSSELL (VICTORIA) - We were condemned on the previous occasion for wasting £5°>°00-


Senator KEATING - I listened with great interest to the speech of my honorable friend, Senator Pearce, who pointed out that the cost of a referendum was in no sense comparable with the cost to the people of a strike in the shipping industrylasting a single week. If, then, the cost of a referendum is, comparatively speaking, so trifling, why not have one when questions can be submitted to the electors fairly and squarely?


Senator Rae - We are giving the electors an opportunity of doing two jobs ort one day.


Senator KEATING - But my honorable friend knows that it will be absolutely impossible for the electors to approach these questions uninfluenced by the atmosphere of party conflict.


Senator Needham - It has been made a party issue by the honorable senator's side..


Senator KEATING - 1 say that those are responsible who are calling upon the electors to decide ' such issues at such a time. Few people will be able to exercise a calm, cool, deliberate judgment on the matters at issue. The Constitution is something which belongs to every elector. I do not say that it is sacrosanct.


Senator Stewart - The Constitution is a suit of clothes which has become too small for the people of Australia. They want a bigger suit.


Senator KEATING - I do not say that the Constitution is not liable to amendment. But when we are going to alter it - to bulge it out, expand it to meet new requirements - we want our people to accomplish their task with a due sense of responsibility and the opportunity for careful deliberation.


Senator E J RUSSELL (VICTORIA) - What is wrong with the party aspect? Do not parties stand for definite principles?


Senator KEATING - But the Constitution belongs to all parties. Provision has been made for the alteration of the Constitution, but I venture to say that no man outside Parliament, and removed from 4he stress and storm of party conflict, would, as a business proposition, submit a document of this character for alteration under conditions of emotion such as will characterize an appeal to the electors when a -strong party conflict is raging.


Senator Needham - Will this be the first time that a referendum was taken on the -same day as a Federal election ?


Senator KEATING - No, it will not; tout the honorable senator should remember that the last was taken at a time when there was no party contention in the matter at -all. The proposed amendment of the Constitution then had relation to the time for the Senate elections, and there was no dispute about that.


Senator Needham - I refer to the Financial Agreement. Does the honorable -senator say there was no dispute about that ? I remember that he made a slashing speech against that proposal himself.


Senator KEATING - If the honorable senator's memory served him as well as mine serves me, he would know that the matter to which he is now referring was -one in which the Government proposed to submit to the people a proposition for the distribution amongst the States of 25s. per head for an indefinite period, and to em:body the proposal in the Constitution. I opposed that, as I oppose this, and for , the same reason. I do not think that it is fair to the people. The honorable senator might remember the instance I gave in -support of my opposition to such a referendum. I pointed out then, as I point -out now, that the Government were not proposing to do the fair thing by the people in putting such a question to them at such a time. Senator Millen and I were then in ^conflict upon the matter. My contention on the occasion referred to was that this Parliament had the power, the responsibility, and the duty of doing those things, and should not shirk it. It will be remembered that I said that to ask the people to say " Yes " or " No " to the question whether, as electors of the States, they would take 25s. per head of the population or not was like asking them to answer the old quotation from the French exercise book, " Have you left off beating your motherinlaw?" Am I right in saying that this is the position I put?


Senator Needham - I accept the honorable senator's word for it.


Senator KEATING - I know that I aril right in my recollection of the matter. I say again, now, that the Government are not proposing to do the fair thing by the people in this case.


Senator Rae - This is not a case of beating our mother-in-law.


Senator KEATING - Let me apply the question on this occasion also. ;I ask Senators Rae, Findley, and McGregor, Mr. Hughes, or any other member of the Government, to say what they mean by the powers which they are going to ask the electors to give to the Commonwealth Parliament? Are they exclusive? Will the Honorary Minister answer the question?.


Senator Findley - Senator McGregor will answer it when he is replying to the debate.


Senator KEATING - Will the Prime Minister answer the question? It is most important that the people should know what they will be asked to vote upon. Senator Needham is going to vote for these proposals.


Senator Needham - I am. -


Senator KEATING - And yet' the honorable senator does not know what he will be voting for. ' '.


Senator Needham - 1; do. ' , "..'.n .'


Senator KEATING - Then ' I ask. th honorable senator, with respect to trade . and commerce: Is the . power _ asked, f for to be exclusive? Is there any man in. the Senate, or any member of the Government, who could tell the people of Australia whether or not this power is to be exclusive? I have read the speech delivered by the Attorney-General in introducing these measures in another place, and, although the honorable gentleman gave a wealth of information indicating a wide range of reading and great depth of thought, he did not tell the people of this country the one thing which they will demand to know before they vote " Yes " or " No " on these questions. Are these powers to be exclusive or concurrent? Senator Findley says that Senator McGregor will tell us later on. I think that the Government should be able to answer a question like that. The AttorneyGeneral, when faced with the question, did not know what to answer. Honorable senators talk about the uncertainty of the position of the Commonwealth because of the uncertainty of the decisions of the High'

Court, but what they propose to do, if accepted by the electors, would vastly increase the uncertainty complained of. The speech of the Attorney-General in introducing these measures is one which can be read with the greatest interest. The honorable gentleman pointed out that the line of demarcation between the Federal and State powers is not a straight, but what I might term a " serrated," line. He said that it was very difficult to determine, because it depended so much upon judicial interpretation. He quoted, adversely to that gentleman, the honorable member for Flinders as having said that it would exercise the ingenuity of the ablest man, and cause his head to reel, to distinguish the exact line of demarcation between Federal and State power. What is the remedy proposed by the Government?


Senator Rae - To remove the line.


Senator KEATING - If the Government came forward with a proposal to make the line of demarcation so absolutely clear that there could be no difference of opinion with respect to it between the Judges of the High Court - no matter how the Court was constituted - one could understand a proposal for the amendment of the Constitution on such lines. But the Government propose merely to alter certain words in the Constitution ; and I again ask whether it is intended or desired that the powers to be conferred upon the Federal authorities in relation to trade and commerce are to be exclusive or concurrent ?


Senator Rae - It is not very material, anyhow.


Senator KEATING - I think that that is the very thing the electors will want to know. If the Government are not prepared to advise the electors as to what they are really seeking for by these proposals the electors will be disposed to let things remain as they are.


Senator Stewart - Is not the Commonwealth law supreme?


Senator KEATING - Provided that the Commonwealth Parliament legislates within its own constitutional ambit, its law - will override the law of a State. Will Senator McGregor reply to my question as to whethere these powers are to be concurrent? If he tells me that they are, I want to point out what trouble we shall be making for ourselves.


Senator Stewart - They will not be concurrent.


Senator KEATING - Are they to be exclusive ?


Senator Stewart - Undoubtedly.


Senator KEATING - Then the State Parliaments will be rendered absolutely inept, and there will be no power whatever left to them to deal with trade and commerce.


Senator Stewart - Trade and commerce should be a national concern.


Senator KEATING - I am not concerned to argue that point. I want to know whether Ministers realize what they are submitting to the country, and I say with all confidence that they do not. The very form in which these Bills are presented clearly indicates that they are not the result of a deliberate policy. The draftsman has done his work, and presented measures for proposed alterations of the Constitution just as upon instruction he would have presented a measure for an alteration of the Electoral Act. But I point out that the Constitution is not like the Electoral Act. It is an instrument of government. It is our charter, and the very foundation-, upon which this Parliament rests. It isthe expression of the people's will in a particular form.


Senator Needham - And cannot, must not, and never shall be altered !


Senator KEATING - That may be Senator Needham's opinion, but it is not mine, and I ask him not to attribute it tome.


Senator Millen - If alterations are proposed, they should at least be understood by those who submit them.


Senator KEATING - If it were desired' by the Government to alter the Constitution so as to bring about the results which honorable, senators opposite declare will be brought about if these proposals are accepted, they should have proposed to recast the Constitution.


Senator Rae - Does the honorable senator mean to say that these alterations may be introduced into section 51 of the Constitution ?


Senator KEATING - I will not go sofar as to say that ; but if they are designed to bring about the results which those submitting them say will follow from the adoption of these proposals by the people, it: will mean a re-casting, not of the whole Constitution, but of certain chapters of it.


Senator Rae - That would not matter,, would it?


Senator KEATING - I am pointing out how badly this is being done ; and that those who submit these proposals are unable to explain them to the country.


Senator Rae - We cannot please our opponents.


Senator KEATING - I know that Senator Rae is very anxious to please even his opponents. Does he say that this is to be an exclusive or a concurrent power?


Senator Lynch - We ask for something like that power which the honorable senator's leader, Mr. Deakin, suggested that the Parliament of South Africa should secure.


Senator KEATING - Seriously speaking, the question is one of the utmost importance, and it will be asked by every elector.


Senator Rae - There is nothing in section 51 declaring that any of the powers there enumerated are either exclusive or concurrent.

SenatorKEATING. - The honorable senator knows very well that some of our powers are exclusive, whilst some are not. He knows that with regard to the territory acquired by the Commonwealth the jurisdiction of this Parliament is exclusive, and so with regard to the postal service, telegraphs and telephones, and trade andCustoms. I now ask him whether in regard to every detail of trade and commerce affecting every man and woman in the community it is proposed that this Parliament shall have an exclusive or a concurrent power? The electors will ask for a definite statement on the subject.


Senator Stewart - They will get it.


Senator KEATING - They will want something less ambiguous than is the proposed amendment of the Constitution as now submitted to us.


Senator Millen - Honorable senators opposite will not answer a simple question.


Senator KEATING - It is a very difficult question for them to answer. It is one of the fundamentals.


Senator Lynch - That is a tall claim.


Senator KEATING - Will the honorable senator answer my question?


The PRESIDENT - Order ! Senator Keating is asking honorable senators on my right, one by one, to give him a reply to a question which he is putting. I request them not to interject.


Senator Long - Is not the honorable senator guilty of tedious repetition?


Senator KEATING - I shall take the hint. It is not my desire to run up against what might be described as a " stone wall " of silence. Whatever the merits or demerits of these proposals may be, I contend that they should not be submitted to the public at a time when it would not be reasonable to expect the electors to judge of them impartially and as carefully, calmly and considerately as we should like them to deal with every amendment of the Constitution. I have, in conclusion, only to thank honorable members opposite for the attention they have given me, notwithstanding that it has been a silent and unresponsive one.







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