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Thursday, 31 October 1912

Senator RAE (New South Wales) - An exceedingly interesting point has been raised by Senator Gould, and the explanation given by the Minister of Defence indicates an extraordinary state of affairs which I do not think honorable senators were generally aware of. The honorable senator's explanation seemed to indicate that this measure may be unconstitutional in some of its provisions, unless it is approved by the Imperial authorities. That, to my mind, supposes a serious limitation upon what I believe to be our powers of self-government. From what Senator Gould has said, it would appear that it was possible for us to legislate in this matter beyond the powers conferred upon us by the Constitution, provided that we secured Imperial sanction.

Senator Pearce - No.

Senator RAE - That, I think, was implied in what has been said.

Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel SirAlbert Gould. - A portion of the measure requires that authority.

Senator RAE - It means that, while we can legislate to a certain extent under our Constitution, we have power to legislate beyond the Constitution, provided the Imperial authorities afterwards assent to our legislation.

Senator Sir Josiah Symon - No, we cannot do that.

Senator RAE - I do not say that we can ; but I say that is implied in the arguments to which we have . listened.

Senator Pearce - Both the Merchant Shipping Act and the Constitution are Imperial Acts, and it is a question of the relative scope of each.

Senator RAE - I am aware that they are Imperial Acts ; but it appears that we can trench upon Imperial powers, provided we afterwards get the assent of the King to our legislation.

Senator Pearce - No.

Senator RAE - That is certainly implied in the arguments which have been advanced, and Senator Gould further said that even if we. did get the assent of the

King to certain provisions, they might afterwards be decided to be ultra vires by the High Court.

Senator de Largie - Anythingis possible to the High Court.

Senator RAE - Anything seems to be possible under our chaotic Constitution.

Senator St Ledger - That is a better way to put it than to drag in the High Court as Senator de Largie has done.

Senator RAE - I do not think the honorable senator wishes to drag in the High Court. Unfortunately, honorable senators opposite are continually dragging in the High Court. We should be very glad to keep the High Court out of it.

Senator Lt Colonel Sir Albert Gould - We have power under the Constitution only over ships whose first port of clearance and. whose port of destination are in the Commonwealth.

Senator RAE - If we can legislate only in respect of ships registered in the Commonwealth, and have no power to deal with ships not registered in the Commonwealth, but trading in our waters, our own ships might remove their registration from Australia, and be registered elsewhere in order to evade the provisions of our law.

Senator Lt Colonel Sir Albert Gould - Probably that will be done in certain instances.

Senator RAE - If that be so, it is clear that our constitutional powers are not so wide as they might be, and any one who would oppose the extension of our powers in that direction would be an enemy to Australian interests.

Senator Chataway - We cannot, widen the Constitution to include Fiji.

Senator RAE - We should, be able to widen the Constitution sufficiently to cover all matters affecting Australian interests. The Minister has not made it clear that the necessity for securing the assent of the King to this measure will not cause any delay.

Senator Pearce - It will not cause delay, because the Merchant Shipping Act, and the other Act which I quoted, lays it down that this class of legislation must be reserved for the, Royal assent.

Senator RAE - I understand the- contention now. It means that whether this amendment be made or not, the assent of the King to this measure will be necessary, and sp there cannot be, because of the amendment, any additional delay in bringing it into force. I hold that what has been said indicates that there is a serious limitation upon our powers in . dealing with this matter which affects . the interests of the Commonwealth. That should make those people, who have hitherto opposed the extension of our powers, repent . even at the eleventh hour.

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