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Thursday, 11 November 1971
Page: 3371


Mr Lionel Bowen (KINGSFORD-SMITH, NEW SOUTH WALES) (Smith) - I wish to address my remarks on these estimates to the question of making more effective use of the knowledge gained by the Attorney-General and those people elected to Parliament in the course of looking atthe laws of the Parliament, and perhaps to the many deficiencies in those laws which we do not realise exist until a High Court decision is made. I know that committees have been established in another place, and I commend the fact that they seem to be functioning very efficiently - some of them, anyway. It is to be noted that as a result of the work of the Senate Select Committee on Securities and Exchange a fair wealth of information has been given to the Australian people.I think this is one effective way in which the Parliament can work. I was a little disappointed to read that the New South Wales Bar Council believed that witnesses before the Securities and Exchange Committee were not being given proper treatment. I should have thought that they were adequately catered for. The Bar Council seems to think that there is some danger that a witness might incriminate himself. I have not noticed that happening. All I have noticed happening is witnesses being forced to tell the truth, and there is nothing wrong with that. Admittedly, the old adage that the truth often hurts is very appropriate to some of the facts that have been elicited.

I was disappointed to note that th: New South Wales Bar Council went further and deplored this sort of inquiry on the basis that members of the Securities and Exchange Committee could well b2 subjected to party dictation. That is no. so. It has never happened and it is never likely to happen. I am amazed to think that a responsible body of learned professional men - apparently motivated by their own political narrowness - should think that members of any parliament would be dictated to in that sense by their political affiliations. It ha3 become apparent, has it not, from looking at the information elicited by the Securities and Exchange Committee that there has been a bit o." trading going on of which perhaps t'.ie Australian public does not approve? I think that the Attorney-General (Senator Greenwood) is to be commended for being able to substantiate, to an extent, th: work of the Committee. But, nevertheless. I found it deplorable that the AttorneyGeneral, in my view, did not come out strongly enough and say that there had been no party dictation as to how tha. Committee would carry out its functions and, let us place it on record, that there never will be any party dictation in tha: sense.

This leads me to the point: How remiss we are in not establishing committees to deal with similar matters. I know that this question was the subject of some consideration earlier this year, but it has now gone into limbo. I understand the former Deputy Prime Minister believed that because the honourable member for Wills (Mr Bryant) was agitating for the setting up of committees in this place, and because there was some personal conflict between the two of them, it was decided that these committees should not be established. I think it is most regrettable that this chamber could not establish such committees because of a conflict of personality. There is every reason why this House of Representatives should have some committees of inquiry. I suggest to the Government that we should establish a citizens rights committee. I know that there has already been submitted a report suggesting that we ought to have some sort of administrative review tribunal, and I am not against that; in fact I am all in favour of it. But there is no better review tribunal than the members of this Parliament, if we want to put it on the basis of making representations for constituents.

After all, we are the same people who pass the laws. I can see nothing wrong with establishing a standing committee of this Parliament to protect the rights of citizens in cases where they might believe that an injustice has been done, and particularly where the local member himself believes that his constituent has suffered an injustice. Why should not that local member be in a position to put before a standing committee of this Parliament a case on behalf of that constituent? Why should not that committee bring down a report? We do this in respect of the question of privileges and other matters. Why cannot we do it for a constituent and say: 'In this case this person or this corporation has suffered an injustice', and bring it to the notice of the Minister? A report could be presented and the matter could be given the searchlight of public inquiry. Let the member of Parliament put up a case.

At the present time we are limited to writing a letter, that is as about as far as we can go. If we receive a reply quickly we are lucky. If we receive a successful answer we are even more fortunate. But the position is that we usually receive an answer dictated by policy or by somebody down the line who writes the same letter that he wrote 5 years before when a similar submission was made. This is ridiculous. In the few submissions in which I have been successful I have had to go to the extreme length virtually of saying: 'I will bring the searchlight of public opinion or of the Press on it unless you give the sort of decision that this person wants'. This happened to me with an immigration matter. A youngster was virtually made to stay at a school because of some interpretation of the policy of the Department of Immigration - a ridiculous situation. The Department gave in only when the headmaster stated: 'Look, this youngster is at the new school, he is staying at the new school, so you do what you like'. I think that if we were to put up these sorts of propositions a lot of worthwhile decisions could be made.


Mr Duthie - You would be overworked.


Mr Lionel Bowen (KINGSFORD-SMITH, NEW SOUTH WALES) -I may be overworked, but it is not a bad thing to be overworked if one is working for constituents. It is pretty disastrous to be sitting here night after night during the adjournment debate listening to other submissions being made. Looking at the matter from the point of view of this Parliament, let us consider the Constitution - this book of rules by which we have got to abide, which was brought down in 1900. It was formulated in the environment of the 1890s when we had no such thing as radio, television or nuclear energy, or any interest in ecology or conservation. Is it any wonder that we have a set of laws which we are trying to fit into that old set of rules? How ridiculous it is. When we look at these rules we see that they make no express provision, nor can they, for those matters which I have mentioned, because in the 1890s and 1900 these matters were not within the knowledge of man. Yet here we are working on these same, old rules.

The High Court has got itself into a mental gymnastic situation because in the first, say, 10 or 20 years - certainly until the engineers case - it believed that all the rights were with the States. It then got around to saying that there were other rights as well, and that change of thinking arose because of an industrial dispute. We get a complete reversal of the interpretation of this old Constitution depending upon which Commonwealth law report we read. If one looks at Commonwealth law reports in the first 20 years one finds decisions all going one way. If one looks at them at another period one finds decisions all going another way simply because the human element, we might say, of the High Court has had to change; the High Court has had to look at modern conditions.

We now find that in what has become known as the concrete pipes case a good decision has been made on the basis that surely this parliament should have power to legislate in respect of corporations and restrictive trade practices. I should think that even our ancestors thought that this Parliament should have those powers because they in fact made some mention of them in section 51, placitum (XX). But in 1910 it was decided that that section did not really mean what it said. So we have left it on that basis. I even found an article in an Australian law journal of 1934 by the present Mr Justice Holmes, in which he said that there were certainly good powers still left for the Commonwealth, despite the decision in Moorehead's case. But nobody did anything about the matter from 1934 until this recent decision was made, and now we are trying to make the Restrictive Trade Practices Act work.

Of course, there has been a similar Act in the United States for years. The United States has a Constitution, and that Act has been able to work. There is a similar Act in Canada. Canada has a Constitution, and that Act has been able to work. But in Australia we are still stumbling along. Most of our assets are owned by foreigners and we are not able really to legislate in this field. If we did we might well find some bright lawyer getting up and saying that it is an infringement of section 92 of the Constitution because our forefathers decided under section 92 that trade and commerce between the States should be free. Of course, they were mainly talking about customs and excise duties. But the lawyers have decided that the section covers everything else, including the fact that we are not able to nationalise banks. We do not want to nationalise banks any more. We can deal with them in another way. But we have this archaic set of rules, and my point is: Let us make a few submissions back to the Australian people, certainly every time on which there is a Senate election, because they are not so contentious. We should say to the people: Why not give us a few more powers?' For example, the Constitution could contain powers to deal with foreign investment. There should be powers to deal with nuclear energy or anything that might be doubtful. Why can we not do this by making submissions to the Australian people instead of waiting for years, as we did in the concrete pipes case when we were 30 odd years too late? Why can we not do it frequently? Even if we do not get the support that we should get. the Australian political climate and public opinion is changing rapidly and I would like to think that the Attorney-General and his Department activated the people to look at these problems that come before this Parliament and investigate where the deficiencies are and seek the co-operation of the States because surely they would want to see this nation preserved and not have it fail on some legal decision based on a set of rules made in the 1890s. Many of our laws should be abandoned because they no longer apply. The Constitution itself should be re-written and brought up to date and again submitted to the Australian people for their approval. There should be a brand new Constitution in the light of the present problems facing the Australian nation.







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