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Thursday, 8 May 1930

Senator CHAPMAN (South Australia) . - This is a measure that can be more effectively debated by members of the legal profession, and those well versed in constitutional law than by any layman. I listened with attention to the speech of Senator McLachlan, who has devoted many years to a study of the law, but who carefully avoided going fully into the constitutional aspects of this proposed amendment. I also followed very attentively the speech of Senator Colebatch upon this measure which was, I contend, one of the finest I have heard in this chamber. Senator Colebatch had the privilege of being a member of the Royal Commission on the Constitution, which performed a tremendous amount of work, and presented a report which, together with the evidence, would take two or three weeks to read. It is a very valuable report, and I congratulate the members of the commission upon the way in which they carried out their responsible duties. We find, however, in reading the report, and in perusing the speeches delivered in this and another place, that the highest legal authorities differ in regard to the effect of the proposed amendment. After listening to the speeches of the representatives of the Labour party I have no doubt concerning the object of the Government and its supporters in submitting this measure. Early in the speech of the right honorable the Prime Minister (Mr. Scullin), in introducing the bill in another place, and which was reported in the press through out Australia, he said that the object of the bill is to confer full power upon the Commonwealth Parliament to amend the Constitution. As Senator Colebatch has pointed out, this, according to its title, is "A bill for an act to alter the Constitution by conferring upon the Parliament full power to amend the Constitution." The Prime Minister was also most emphatic, and stated later 'that this amendment, if adopted, would give power to this Parliament to alter the Constitution in any direction desired.

The attention of the Prime Minister was drawn to the last paragraph of section 128 concerning which there has been a good deal of argument. That paragraph reads -

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in theJEouse of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.

The Prime Minister distinctly stated that the qualification in that paragraph is capable of alteration after a reference to the people by way of a referendum. He further stated that the only restriction placed upon the power of the Commonwealth to amend the Constitution is contained in the first eight covering clauses. The concluding paragraph of section 128, which I just quoted, is a part of the Constitution itself, and those words are not contained in the first eight sections. Therefore, according to the Prime Minister and other authorities that section may be altered by the method laid down for altering the Constitution. If the power of alteration is given to Parliament, Parliament may alter the Constitution in any way desired and, if the referendum is carried, it could also alter that section. As the first eight covering sections of the Constitution have not previously been quoted during the debate I propose to place them on record in the official report. They read -

Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble federal government under the Crown of the United Kingdom of Great Britain and

Ireland and under the Constitution hereby established :

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian colonies and possessions of the Queen :

Be it therefore unnoted by the Queen's most excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present parliament assembled and by the authority of the same, as follows : -

1.   This act may be cited as the Commonwealth of Australia Constitution Act.

2.   The provisions of this act referring to the Queen should extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.

3.   It shall bc lawful for the Queen with the advice of the Privy Council to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this act, the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia shall be united in a federal commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation appoint a Governor-General for the Commonwealth.

4.   The Commonwealth shall bc established and the Constitution of the Commonwealth shall take effect on and after the day so appointed. But the parliaments of the several colonics may at any time after the passing of this act make any such laws to come into operation on the day so appointed as they might have made if the Constitution had taken effect at the passing of this .let.

Section 5 relates to the operation of the Constitution and laws, section 6 to definitions - as to what " Commonwealth " and " States " shall mean, section 7 to the repeal of the Federal Council Act, and section 8 to the application of the Colonial Boundaries Act. Section 9 begins the Constitution which is divided into eight chapters and 128 sections. In the last section of the Constitution the framers provide a method by which it can be altered, and there is no doubt that that section is part of the Constitution itself. I have already said that it is clear that it is the object of the Labour party to obtain full power for Parliament to alter the Constitution. Already differing opinions have been expressed and we shall doubtless have further legal wrangling, but whatever the verdict may be the people of Australia will be incurring a grave risk if they support the proposed amend- ment. If they vote for it believing that their decision may be subject to slight alteration by the High Court, they may be voting under a misapprehension. 1 advise the electors that if they do not want the Federal Parliament to have absolute power, they should take no risk and should vote against the Government's proposal. The amendment has been cleverly and deliberately framed. It proposes to add the following new section to the Constitution : -

2.   The Constitution is altered by inserting, after section one hundred unci twenty-eight, the following section: - "129. Notwithstanding anything in the last preceding section, the Parliament shall have full power to alter the Constitution in the following manner: -

The proposed law for the alteration thereof must, after the lapse of one month from its origination in a House of the Parliament, be passed by an absolute majority of each House of the Parliament, and be assented to by the GovernorGeneral.".

I desire to draw particular attention to the words "Notwithstanding anything in the last preceding section". The preceding section provides that certain things shall not be done without the consent of the majority of the electors of the States affected. One of the things which may not be done without the consent of the majority of the electors in the State concerned is the alteration of the Constitution to diminish the representation of a State in either House. Federation would not have been consummated had the Constitution not provided adequate safeguards of the rights of the States by giving the States equal representation in the Senate. The people of the less populous States felt that if the representation in the Senate were fixed on a population basis they would be at the mercy of senators from New South Wales and Victoria. If the Government's proposal becomes law a Labour majority in both Houses of Parliament could abolish the Senate and so make the less populous States powerless. Tha representation of the various States in the House of Representatives is, New South Wales, 28 members; Victoria, 20 members; Queensland, 10 members; South Australia, 1 members; Tasmania and Western Australia, each 5 members, with an additional member to represent the Northern Territory. New South Wales and Victoria together have 48 members in a House of 76 members. Honorable senators will see that in a House so constituted legislation which might be quite good for New South "Wales and Victoria, but detrimental to the other States, could be carried, notwithstanding the united protest of the representatives of the other States.

We are told that this measure has been introduced in a nonparty spirit, and that it should be dealt with in that spirit. The Government must have known, that honorable senators on this side of the Chamber would oppose its proposals. Senator Pearce strongly opposed the bill, but not in any factious spirit. Senator O'Halloran objected to the right honorable senator describing the Government's proposal as revolutionary and destructive of the rights of the States. I regard this bill as the most revolutionary political proposal ever introduced in this Parliament. If it is carried, it will be possible for Parliament to undermine the legislation of the States to such an extent that the rights of the States will disappear. I regard it as a breach of faith with the States. The Labour party says that it is prepared to trust the people. That is the principle underlying the Constitution; the people must approve of constitutional alterations. Now the Labour party, which professes to trust the people, has introduced legislation which, if agreed to, will mean that the people need not be consulted about the most vital amendment of the Constitution. The Labour party is not prepared to trust the people. At present the Constitution can be altered only after both Houses of Parliament have approved of the proposed alteration, and it lias also been approved by a majority of the electors in a majority of the States. There is also that provision that should the Senate not approve of the proposed alteration the people may, nevertheless, be consulted, and if they approve of the alteration it becomes law. Notwithstanding that provision, the Senate has its responsibilities in this matter. If honorable senators do not approve of this legislation, they are justified in asking the people of Australia to cast a negative vote at the referendum. A large portion of the speech of Senator Daly dealt with the varying decisions of the High Court. In reply to an inter- jection inquiring whether that difficulty would be overcome by amending the Constitution in the way proposed, the honorable senator said that, before he concluded his speech, he would show that the only way to overcome the difficulty was by adopting the proposal before the Senate. Senator Pearce interjected " and dispensing with the High Court," to which Senator Daly replied, " There is no necessity to do that." If the High Court is to continue in the future with the same powers that it now possesses how can the Government obviate the recurrence of varying decisions? Varying decisions artinevitable from any court, and we shall always have that kind of thing. Senator Daly did not indicate how it is to be avoided. Senator McLachlan suggested that the object of the Labour party was to dispense with the High Court and make the Commonwealth Parliament the final arbiter. Our Constitution specifically lays it down that the Commonwealth and State Parliaments shall each have certain powers, but that in the event of a dispute over those powers, the High Court shall be tho arbiter. If the proposal of the Government is accepted, and a dispute occurs between a State and the Commonwealth, this Government, a party to the dispute, will be the arbiter, which would be an entirely unjust position.

Senator Dalywas quite frank as to the intention of the Government. He said -

The proposal is to transfer to Parliament a rig-lit at present vested in the people, namely, the right tn alter the Constitution. . . The Constitution Act will remain.

I suggest that the honorable senator is merely endeavouring to draw a red herring across the trail. The Constitution, of course, will remain, but with a vital amendment giving Parliament the power to alter i,t. The honorable senator was asked by Senator Colebatch, " Would not the words 'Notwithstanding anything contained in the last preceding section' apply to the last paragraph of section 128 ?", and replied, "I do not think so." Senator Colebatch has already pointed out how indefinite that- reply is. I ask Senator Daly if that is not the meaning of the words, what is their meaning, and why were they employed by this Government? I contend that they were inserted with the deliberate purpose of over-ruling the last paragraph of section 128. Surely if the Labour party did not want to touch certain matters they could have excepted them in plain language. Surely they could have provided that " Subject to the last paragraph of section 128" Parliament shall have power to alter the Constitution. The Labour party must believe that the wording of the proposed amendment, as it stands, will over-ride the last paragraph of section 128. It may be claimed that we still have the protection of the High Court, but the dissertation on that court by Senator Daly was enlightening, and indicated that the final say will rest with the Federal Parliament if this amendment is carried. I consider that the last part of Senator Daly's speech was tragic, and contained the strongest reasons why the people should reject these proposals. The honorable senator said -

The people, under this proposal, can, if they have a mind to, have a stronger voice on national questions than they have to-day

That is so, not only with regard to national questions, but to all questions. Senator Daly continued -

Until they exercise their right and delegate power to the Federal Parliament, what voice have they on national questions?

The proposed alteration of the Constitution would give this Parliament power to make future alterations that would enable it to supersede any legislation passed by the States. It would not only allow the Commonwealth Parliament to legislate in regard to national matters, but in any way that it chose. Senator Daly dealt in a trenchant manner with the Upper Houses of the States, and asked -

What chance has the South Australian elector, for example, of wresting from the Legislative Council measures necessary to make effective a national insurance scheme for unemployment? What chance has he of improving industrial arbitration? What chance has he of influencing these elect of vested interests to give sympathetic consideration to any residuary trade and commerce questions? No chance whatever.

I particularly draw attention to the words that immediately follow. They are -

Therefore, as the effect of this proposal is to liven into action the dormant rights of the one people which comprise this one nation to be heard' in a Parliament where they have full audience. . . .

Those words plainly mean that if a State Labour Legislative Assembly were unable to pass certain legislation, because of the restrictive action of the Legislative Council of that State, that council could be over-ruled by a Federal Labour Government if the Constitution were altered in the manner proposed. The Federal Parliament could alter the Constitution to give itself the power to legislate on that subject. It follows that if this amendment is accepted by the people, and if a Federal Labour Government had a majority in both Houses, it could introduce and pass legislation that might be entirely against the views of five anti-Labour State governments. That condition of affairs is possible in the circumstances I have indicated, and I suggest that it would result in political chaos, because each succeeding government would be disposed to pass bills repealing extremist measures enacted by a previous administration. There' would be no stability in federal legislation.

Senator Rae - We have that state of affairs at present. *

Senator CHAPMAN - I disagree with the honorable senator. Invariably a new government accepts legislation passed by a previous administration unless it is returned upon some definite pronouncement of policy diametrically opposed to that of the previous Government. There can be little doubt that if this authority to amend the Constitution is given to the Parliament extreme measures passed at the behest of a majority in one political party will be repealed by a succeeding government.

This amendment, if accepted by the people, can be used to strip State Parliaments of practically every vestige of legislative power. The framers of the Constitution, whose handiwork is respected by all sections of the people, wisely provided for a distribution of the legislative powers of the Commonwealth and the States, and, as far as possible, protected the States in the discharge of those functions which, under the federation, properly belonged to them. In many respects the Commonwealth Constitution is analogous to tha executive authority given to the board of directors of a company. Acting under the authority given to them a board of directors may, on behalf of the shareholders, engage in certain commercial activities, but must abstain from others. For example, it may be empowered to conduct a retail establishment, but not to establish a factory or do certain other things. Similarly, the Commonwealth Parliament, under the Constitution, is authorized to legislate in regard to certain matters only. The framers of the Constitution; realizing that at some future time certain amendments might be necessary, provided the means to alter it, and stipulated that the people should be consulted.

This subject was recently investigated by the Constitution Royal Commission, which, in a report submitted to Parliament, indicated a number of directions in which the Constitution should be amended. Unfortunately, the recommendations of that body have been absolutely disregarded by this Government. I believe that if Parliament had an opportunity to consider the recommendations of that body, and if both branches of the 'legislature agreed upon proposals to be submitted to the people, they would be endorsed. Instead of adopting that course this Government has introduced an entirely different set of proposals. As Senator Colebatch pointed out last night, these amendments go far beyond the proposals enunciated by the executive of the Labour party, which gave evidence before the Royal Commission. I may add, too, that, there was no mention in the policy speech of the Prime Minister of his intention to submit these proposals to the people. It is believed that members of the Federal Parliamentary Labour party represent the moderate element in that party, and that the extremists are in the industrial organizations. The Government has introduced amendments which, if carried, will enable this Parliament to legislate in regard to any subject. This course plays right into the hands of the " red " element in the Labour movement. We have had assurances from time to time that this Government would not attempt to do anything drastic, but Ave know the strength of the " red " element in the Labour party. If at some future time it secured complete control of the party it would introduce extreme legislation under the wider powers now sought. At present the people have certain safeguards which should not lightly be cast' aside. Mr. Theodore, has stated on more than one occasion that the Constitution will not allow him to do certain things. If it is altered in the direction indicated in this proposed amendment, and if the "reds" secure control of the Labour movement, they will be able to pass any legislation they desire - legislation that will drag Australia down. I wish to place on record an extract from the evidence given before the Constitution Royal Commission by Mr. J. J. Kenneally, the President of the Australian Labour party.

Senator Rae - There is nothing very " red " about him.

Senator CHAPMAN - No. His proposals were not as " red " as those which have been put forward by the present Government. It is evidently willing to go further than the executive of the Labour party would go. Mr. Kenneally told the royal commission that his evidence was tendered after consultation with the federal executive. We can therefore take full notice of the proposal he placed before the commission on behalf of the executive of the Labour party, and note that what he asked for was not the full power sought by the present Government. The Labour party, through Mr. Kenneally, excepted quite a number of amendments which it was thought should not be made except by way of a referendum. Mr. Kenneally said -

The power of Parliament to alter the Constitution should not include power to extend the life of Parliament or to defeat the operation of the initiative and referendum and- recall, nor to interfere with the adult franchise. These powers .'being fundamental should be embodied in the Constitution and be alterable only by a vote of the people toy referendum.

In a different category, but also fundamental to popular liberty and security, is the principle that the power of Parliament to alter the Constitution should not include power to impose conscription for military or naval service.

To give effect to these views we suggest that section 128 of the Commonwealth Constitution should be amended to read - " 128. The Constitution may be altered in the following manner: -

The proposed law for the alteration thereof must- be passed by an absolute majority of each House of the Parlia- ment.

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law."

The Labour party, through Mr. Kenneally, didnot seek to repeal the provision in the Constitution which guarantees the rights of the States, whereas the bill now before us proposes to insert after section 128 the following: -

Notwithstanding any thing in the last preceding section the Parliament shall have full power to alter the Constitution.

Mr. Kenneally,on behalf of the executive of the Federal Labour movement, also proposed that -

No alteration of the Constitution extending the life of Parliament shall become law unless a majority of the electors of the Commonwealth voting by referendum approve the proposed law.

No alteration of section 8 or section 30 of the Constitution shall become law unless a majority of the electors in the Commonwealth voting by referendum approve of the proposed law.

The executive of the Labour party was clearly of opinion that the Constitution should not be amended on certain lines without a referendum, but the Labour Government is prepared to do away with the whole of the rights of the States. Mr. Kenneally furnished to the royal commission a copy of an opinion given by Mr. Owen Dixon, now Mr. Justice Dixon, upon the effect of section 128 of the Constitution. That opinion was as follows -

My opinion is sought upon the questions whether the proposal to amend the Constitution so as to confide to Parliament alone the power of constitutional alteration, subject to specified restrictions, can be accomplished and how.

The proposal is, as I understand it, that save for a few definite constitutional "guarantees " or " checks " Australia should receive a flexible Constitution, and in the future constitutional alterations should be effected by the Federal Parliament. The guarantees or checks suggested are that without a referendum no alteration should be permissible which related (a) to the adult franchise, (b) to the initiative referendum and recall if established, (c) to the proposed prohibition of conscription.

The existing power of amending the Constitution is contained in section 128, and the question is whether that power authorizes the alteration in section 128 itself which would be required in order to confer for the future the power of amendment upon Parliament alone. In my opinion, it does authorize such an alteration.

When section 128 speaks of " this Constitution " it refers to the whole " Constitutionof the Commonwealth " mentioned in the following section 9 of the covering clauses. It includes section 128 itself. I do not think that there can be any doubt that complete power of amending the whole instrument, including the provision prescribing the methods of alteration, was intended to be given by section 128.

That opinion was obtained by the Labour party, and it makes me think that the Leader of that party has been guided by it in believing that the amendment now proposed will confer upon Parliament full power to alter the Constitution. Mr. Brennan, a. legal light in the Labour party, discussing a contrary view put forward by Sir Edward Mitchell, has said that he entirely endorses the views of Mr. Owen Dixon, and. that the Government has launched its major proposal for the amendment of the Constitution with the utmost confidence in its validity, meaning that the words " notwithstanding anything in the last preceding section " are effective. Mr. McTiernan, another legal light in the Labour party, has said -

This proposed law for amending the Constitution says, "Notwithstanding anything in thelast preceding section and " anything " includes those limitations mentioned in the last paragraph of section 128. Therefore, if this proposed law is accepted by the people, it will enact a new method of amending the Constitution which is free from the restrictions imposed by section 128.

It is quite plain to me that the Labour party claims that under the proposed amendment of the Constitution, Parliament will have full power. Mr. McTiernan, again, dealing with the words, " or in any manner affecting the provisions of the section in relation thereto", very vital words, has admitted that they refer to " the proportionate representation of any State in either House or the minimum representation of a State in the House of Representatives, or increasing or diminishing or otherwise altering the limits of a State." He has said that the proposal in the bill now before the Senate "does not in itself affect any of those matters which have been mentioned in the final paragraph of section 128 ". His opinion is .that it becomes' effective if passed.

Now I desire to refer to the constitutions of various countries, because a good deal has been said about them. The country whose constitution because of similarity of conditions most resembles ours is the United States of America. It has been said that the method of altering the Constitution .now proposed is in existence in other countries, but the conditions in those countries prior to federation were quite different from those which existed in Australia. They had no States and there was no contract between existing States and a uniform centra] government.

Senator Rae - Before the Union of South Africa was formed the members of that Onion were separate States.

Senator CHAPMAN - That may be so, but according to reports I have, the present system of government in South Africa has been condemned to a very large extent. In Australia we have a proposal to alter the Constitution by a bare majority. In South Africa, where the form of government is not strictly federal, parliament may by law repeal or alter any of the provisions of the Constitution Act provided that as to certain sections, no repeal or alteration shall be valid unless the bill embodying such repeal or alteration be passed by both Houses of Parliament sitting together and at the third reading be agreed ro by not loss than two-thirds of the total number of members of both Houses. A bill so passed at such joint sitting is taken to have been duly passed by both Houses of Parliament. A twothirds majority is required, whereas we are asked to provide for an alteration in the Constitution by a bare majority. The Gorman Constitution of the 11th August, 1919, may be amended by legislation (Art. 76). For a decision by the Reichstag, which directly represents the people, two-thirds of the members must he present, and at least two-thirds of those present must give their consent to the proposed amendment. A decision of the Reichsrat, which represents the States, in favour of an amendment, also requires a majority of two-thirds of the votes cast. If the Reichsrat objects, it may demand that the measure be submitted to the people. In Mexico the Constitution may be added to or amended, but no amendment or addition can become part of the Constitution until it is agreed to by the Congress of the Union by a two-thirds vote of the members present and approved by a majority of the State legislatures. There the States are taken into account, and a two- thirds majority is required. The proposal of the Government under which an amendment of the Constitution may be made by a simple majority in both Houses of Parliament, is sufficient to condemn it at the outset.

In the Austrian Federal Constitution, which came into being in 1920, there is provision for constitutional decisions requiring adoption in the National Council in the presence of at least one-half of the members, and by a two-thirds majority of the votes cast. A general alteration must, and a partial alteration may, if desired by one- third of the National or Federal Council, be submitted to the vote of the people before promulgation by the president.

Finally, .1 quote from the Constitution' of the United States of America, a country in which the conditions more closely resemble those 111 Australia than any of the other countries mentioned. That Constitution provides that Congress may by a two-thirds majority in each House, propose amendments which are submitted to the States and become law if ratified by three-fourths of the State legislatures. There is a further provision for initiation and ratification of legislation by conventions, but this has never been used. Although the American Constitution is not as elastic as is ours, it has not prevented that country from developing to a remarkable extent. The legislation of the Australian States goes far, and money has been freely spent in the States to encourage industry. South Australia, for instance, has spent large sums on water conservation in order to encourage agricultural development; but, under this proposal a Commonwealth Parliament could deprive a State of the power to legislate in regard to something which may be vital to its progress. The members of the Labour party in the Senate should be anxious to protect the rights of the States, upon the success of which the prosperity of the Commonwealth depends. The people will not readily favour an alteration of a Constitution under which they are the masters. A number of proposals have been submitted to the people by way of a referendum, and most of them have been defeated; but nothing so revolutionary as that now proposed has ever been suggested. The change proposed is vital and I have no doubt that the people of the Commonwealth will vote solidly against it.

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