20149301-g. h .schorel-hlavka o.w.b. to mr tony abbott pm- re 'race

8/12/2019 20149301-G. H .Schorel-Hlavka O.W.B. to Mr Tony Abbott PM- Re 'Race'

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INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD

A 1stedition limited special numbered book on Data DVDISBN 978-0-9803712-6-0

PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See alsoHttp://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati

WITHOUT PREJUDICE

Mr Tony Abbott MP 1-3-2014

[email protected], [email protected]

Cc: Mr Clive Palmer 5

Palmer United Party [email protected]

Ref: 20140301-G. H .Schorel-Hlavka O.W.B. to Mr Tony Abbott PM Re Race

Tony,there are ample of people concerned about how Muslims are taking over and how already10

certain parts of Sydney are governed by councils dominated by Muslims and yet while s116 ofthe constitution provides for;Commonwealth of Australia Constitution Act 1900 UK)QUOTE

116 Commonwealth not to legislate in respect of religion15The Commonwealth shall not make any law for establishing anyreligion, or for imposing any religious observance, or forprohibiting the free exercise of any religion, and no religious testshall be required as a qualification for any office or public trustunder the Commonwealth.20

END QUOTE

Reality is that our constitution has been created in such manner that the issue of religion can beignored and yet still what many may deem appropriate action can be undertaken, if not alreadyexisting. Indeed, many existing legislation may already have so to say wiped out many people25from being able (that is constitutionally) of being electors and so also being in elected offices.

Hansard 12-3-1898Constitution Convention Debates (Official Record of the Debates of the National

Australasian Convention)

QUOTE30

Mr. GLYNN(South Australia).-I should like to ask a question with regard to clause 75, as to whether it isintended to leave the right of appeal from a state or the Federal High Court itself direct to the Privy Council,as it stands in the Bill, or whether the matter can be subsequently opened by the Parliament?

Mr. BARTON(New South Wales).-I am afraid that if I were to answer questions as to what is intended tobe done, I should expose the Drafting Committee to a flood of interrogations. I can only say that what we35intend to do is to carry out the decisions of the committee. Of course there are one or two cases in whichthe[start page 2439] decisions which have been arrived at require a certain amount of interpretation in

the light of the debates, and in those cases we shall take what was said, as well as what was put in the

Bill, for the purpose of ascertaining what the movers of provisions desire. In the case of the proposal myhonorable friend carried, and which was put as a proviso to clause 74, it is evident that the words as they40appear are only in the nature of instructions to the committee, and they will have to be interpreted inthe light of statements made by my honorable friend in answer to inquiries by me. That is the course that willbe pursued. When an amendment, as carried, is intended only as a suggestion to the committee, it will beinterpreted in that way.
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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END QUOTE

Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 (17June 1999) Last Updated: 22 September 2000QUOTE5

Constitutional interpretation

1. The starting point for a principled interpretation of the Constitution is the search for the intention of itsmakers[51].That does not mean a search for their subjective beliefs, hopes or expectations. Constitutionalinterpretation is not a search for the mental states of those who made, or for that matter approved orenacted, the Constitution. The intention of its makers can only be deduced from the words that they used in10the historical context in which they used them[52].In a paper on constitutional interpretation, presented atFordham University in 1996, Professor Ronald Dworkin argued, correctly in my opinion[53]:

"We must begin, in my view, by asking what - on the best evidence available - theauthors of the text in question intended to say. That is an exercise in what I have calledconstructive interpretation[54].It does not mean peeking inside the skulls of people dead15for centuries. It means trying to make the best sense we can of an historical event -someone, or a social group with particular responsibilities, speaking or writing in aparticular way on a particular occasion."

END QUOTE20

I HAVE QUOTED SOME EXTENSIVE STATEMENTS FROM THE HANSARD

DEBATES TO SHOW ALSO THAT WHILE WE CAN TAKE CONSIDERATION OF

CERTAIN us COURTS DECISIONS REGARDING RELIGIOUS AND TAXATION

ISSUES WE MUST HOWEVER DO SO IN THE CONTEXT OF THE DIFFERENT

ENRIRONMENTS THAT EXIST AND HOW THE US CONSTITUTION IS25APPLICABLE TO THE STATES WHEREAS THE SAME MAY NOT OR IS NOT

APPLICABLE IN THE COMMONWEALTH OF AUSTRALIA.

I didnt reside in the Commonwealth of Australia when it had its con -job referendum regarding

s51(xxvi) to remove the exclusion of Aboriginals. Indeed, had I been in the Commonwealth of30 Australia and possessed the knowledge I now have then I would have strongly advised againstthis amendment of the constitution. As I understand it in the 1950s the then Federal Governmentwas strongly advised against such an amendment as there is too much a baggage with s(xxvi) andit would have been better to create altogether a new section. So, how does this pan out? Well,legislation, including the constitution our primary governing law, must always be held to apply to35have one meaning. You cannot have that a particular has a certain meaning for some people anda total different meaning for others. The law must be constant as otherwise no one would be ableto know what the law stands for..

Hansard 19-4-1897Constitution Convention Debates (Official Record of the Debates of the National40Australasian Convention)QUOTE

Mr. CARRUTHERS: This is a Constitution which the unlettered people of the community ought to be able to understand.

END QUOTE45.Hansard 22-2-1898Constitution Convention Debates

QUOTE Mr. SYMON(South Australia).-

That this is not like an Act of Parliament which we are passing. It is not in the position which Mr. Barton hasdescribed, of choosing or setting up a code of laws to interpret the common lawof England. This50Constitution we are framing is not yet passed. It has to be handed over not to a Convention similar to
http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/au/legis/cth/consol_act/c167/http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=http://www.austlii.edu.au/au/legis/cth/consol_act/c167/


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this, not to a small select body of legislators, but to the whole body of the people for their acceptance or

rejection. It is the whole body of the people whose understanding you have to bring to bear upon it, and

it is the whole body of the people, the more or less instructed body of the people, who have to

understand clearly everything in the Constitution, which affects them for weal or woe during the whole

time of the existence of this Commonwealth. We cannot have on the platform, when this Constitution is5commended to the people, lawyers on both sides, drawing subtle distinctions, which may or may not be

appreciated by the people.

END QUOTE

.Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian10Convention)QUOTE Mr. ISAACS.-

We want a people's Constitution, not a lawyers' Constitution.END QUOTE

15Therefore, the constitution and any legislation enacted within the legislative powers providedmust all be that the unlettered people can understand it. .It means one doesnt want a High Court of Australia to fabricate something that purportedly

existed in the constitution but just that all previous judges in the previous 100 odd years didnt20know, as if unlettered people didnt understand this from the constitution (as vetoedreferendums in that regard) then it never was existing as a legislative power in the first place.(consider the WorkChoices 2006 decision in that regard).

Hansard 17-3-1898Constitution Convention Debates 25QUOTE Mr. BARTON.-

Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people

through their Parliament the power of the purse-laying at their mercy from day to day the existence of

any Ministry which dares by corruption, or drifts through ignorance into, the commission of any act

which is unfavorable to the people having this security, it must in its very essence be a free30Constitution. Whatever any one may say to the contrary that is secured in the very way in which the

freedom of the British Constitution is secured. It is secured by vesting in the people, through their

representatives, the power of the purse, and I venture [start page 2477] to say there is no other way ofsecuring absolute freedom to a people than that, unless you make a different kind of Executive than

that which we contemplate, and then overload your Constitution with legislative provisions to protect35the citizen from interference. Under this Constitution he is saved from every kind of interference.

Under this Constitution he has his voice not only in the, daily government of the country, but in the

daily determination of the question of whom is the Government to consist. There is the guarantee of

freedom in this Constitution. There is the guarantee which none of us have sought to remove, but every

one has sought to strengthen. How we or our work can be accused of not providing for the popular40liberty is something which I hope the critics will now venture to explain, and I think I have made their

work difficult for them. Having provided in that way for a free Constitution, we have provided for an

Executive which is charged with the duty of maintaining the provisions of that Constitution; and,

therefore, it can only act as the agents of the people. We have provided for a Judiciary, which willdetermine questions arising under this Constitution, and with all other questions which should be dealt45

with by a Federal Judiciary and it will also be a High Court of Appeal for all courts in the states thatchoose to resort to it. In doing these things, have we not provided, first, that our Constitution shall be free:next, that its government shall be by the will of the people, which is the just result of their freedom: thirdly,that the Constitution shall not, nor shall any of its provisions, be twisted or perverted, inasmuch as acourt appointed by their own Executive, but acting independently, is to decide what is a perversion of its50provisions? We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of theConstitution. It is appointed not to be above the Constitution, for no citizen is above it, but under it;but

it is appointed for the purpose of saying that those who are the instruments of the Constitution-the

Government and the Parliament of the day-shall not become the masters of those whom, as to the

Constitution, they are bound to serve.What I mean is this: That if you, after making a Constitution of55this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow

degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the

guarantees of freedom which it gives your people will not be maintained;and so, in the highest sense,


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the court you are creating here, which is to be the final interpreter of that Constitution, will be such a

tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of

constitutional action, the Commonwealth from dominating the states, or the states from usurping the

sphere of the Commonwealth. Having provided for all these things, I think this Convention has done

well.5END QUOTE.

Therefore judges who nevertheless are infringing into the true meaning and application of theconstitution , being it to be de facto legislators as I understand Mason CJ claimed to do, then they

become traitors to the root of their own judicial powers as well as to the general community.10.

HANSARD 19-4-1897Constitution ConventionQUOTE Mr. CARRUTHERS:

Mr. Barton first of all recites Dicey to show what occurs under the unwritten Constitution of

England. But here we are framing a written Constitution. When once that Constitution is framed we15cannot get behind it.

END QUOTE.

HANSARD 9-2-1898 Constitution Convention Debates

QUOTE20Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.

END QUOTE.

Hansard 8-3-1898Constitution Convention Debates

QUOTE Sir JOHN DOWNER.-25No one is more in favour of that than I am. But, at the same time, it is said-"Let the Houses of Parliament actcapriciously and variously from day to day-allow this 'tacking' to go on if the Houses choose to agree to it-letthe Houses do one thing one day and another the next, and do not bother about altering the Constitution, buttrust the Parliament." Of course; but Parliament must only be trusted when it is within the Constitution. The Senate of to-day and the House of Representatives must not be put in a position superior to the30Constitution.

END QUOTE

There are numerous other statements I could quote but you may get the picture that the Parliament is bound by thetrue meaning and application of the constitution and not even the High Court of Australia can interfere with this.35In the WorkChoicesdecision as I view it the judges took out of context what the Framers of the Constitution hadbeen record in the Hansard to have stated and this to me is a very serious conduct of betrayal to the generalcommunity..

Hansard 1-2-1898 Constitution Convention Debates (Official Record of the Debates of the National40Australasian Convention),QUOTE Mr. OCONNER(New South Wales).-

Because, as has been said before, it is [start page 357] necessary not only that the administration of

justice should be pure and above suspicion, but that it should be beyond the possibility of suspicion; END QUOTE45


QUOTE

Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the statesonterms that are just to both.50

END QUOTE

Therefore where the High Court of Australia claims to be the 3 rd Department of the Governmentinstead of being part of the constitution it by this already has shown its bias.As quote below:55

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QUOTE Chapter 022A Failure of the case 60

D\'Orta-Ekenaike v Victori a Legal Ai d[2005] HCA 12 (10 March 2005) HIGH COURT OF AUSTRALIA


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GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJRYAN D'ORTA-EKENAIKE APPLICANT AND VICTORIA LEGAL AID & ANOR RESPONDENTSD'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 10 March 2005 M61/2003GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ;

As s 71 of the Constitution says, what is "vested in a Federal Supreme Court, to be called the High Court of5Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests withfederal jurisdiction" is the judicial power of the Commonwealth, that is, the judicial power of the nationalpolity. No matter whether the judicial branch of government is separated from the other branches of

government (as it is and must be at the federal level[29] but, at least generally, is not at the State level[30])itis, in Quick and Garran's words[31], "the third great department of government".10

END QUOTE Chapter 022A Failure of the case

HANSARD 12-4-1897Constitution Convention Debates

QUOTE Mr. BARTON:It is provided that instead of, as before, the Parliament having power to constitute a judiciary, there15shall be a Supreme Court, to be called the High Court of Australia, as a part of the Constitution-that I

believe to be an improvement-and other courts which the Parliament may from time to time create or

invest with federal jurisdiction. END QUOTE

20

Obviously being part of the constitution is considerably different than being part of thegovernment as a Department. A government Department such a VCAT (Victorian Civil andAdministrative Tribunal is bound to adhere to government policy, where as a Court must adhereto the letter of the law.

25Hansard 8-3-1898Constitution Convention Debates

QUOTE

Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the stateson

terms that are just to both.

Mr. DEAKIN.-It is made for the lawyers under this clause.30Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," no Constitution is

required at all; it can simply be provided that a certain number of gentlemen shall be elected, and meet

together, and, without limitation, do what they like. Victoria would not agree to that. But there is adesire to draw the very life-blood of the Constitution, so far as the states are concerned, by this

insidious amendment, which would give the Houses authority from time to time to put different35constructions on this most important part of the Constitution. I hope we will do as we have done in

many instances before, in matters that have been much debated-adhere to the decision we have already

arrived at.

END QUOTE40

The Framers of the Constitution being aware that over time peoples contemporary views maydiffer from what was at the time of the constitution having been placed before the People,therefore provided for a mechanism to amend the constitution by way of s128..

HANSARD 22-4-1897 Constitution Convention Debates45

QUOTEMr. BARTON:Let this speech do for the referendum also.

Mr. TRENWITH:I say with these evidences of the desire on the part of the people for more freedom,

for greater facilities for giving effect to the popular will, we ought to make provision in this

Constitution by which the will of the people can become law. If we do that we shall be doing something50which will make it more certain that this Constitution will be adopted by the people.

END QUOTE

HANSARD 1-3-1898Constitution Convention Debates QUOTE55

Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes on the Constitutionwe will have to wipe it out."

END QUOTE
http://www.austlii.edu.au/au/cases/cth/high_ct/2005/12.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/2005/12.htmlhttp://www.austlii.edu.au/au/cases/cth/high_ct/2005/12.htmlhttp://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/2005/#fn28http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/2005/#fn28http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/2005/#fn28http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/2005/#fn29http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/2005/#fn29http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/2005/#fn29http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/2005/#fn30http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/2005/#fn30http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/2005/#fn30http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/2005/#fn30http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/2005/#fn29http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/2005/#fn28http://www.austlii.edu.au/au/cases/cth/high_ct/2005/12.html


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This means any legislation (such as I challenged successfully on 19 July 2001 in the CountyCourt of Victoria regarding s245 of the Commonwealth Electoral Act 1918 of religiousexclusion was unconstitutional unless it included non-religious persons also, and s383AVERMENT being unconstitutional as the Commonwealth sought to infringe upon thesovereign judicial rights of State courts how to conduct litigation, when exercising federal5jurisdiction) beyond constitutional powers are ULTRA VIRES.

Hansard 9-3-1898 Constitution Convention Debates (Official Record of the Debates of the National

Australasian Convention)QUOTE10

Mr. DEAKIN(Victoria).-The position of my honorable and learned friend (Mr. [start page 2092] Higgins)may be perfectly correct. It may be that without any special provision the practice of the High Court, whendeclaring an Act ultra vires, would be that such a declaration applied only to the part which trespassedbeyond the limits of the Constitution. If that were so, it would be a general principle applicable to theinterpretation of the whole of the Constitution.15

END QUOTE


QUOTE

Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no special court, but the20general courts would undoubtedly protect the states. What Mr. Isaacs seeks to do is to prevent the question of

ultr a vir esarising after a law has been passed. [start page 2004]

Mr. ISAACS.-No. If it is ultr a viresof the Constitution it would, of course, be invalid.

END QUOTE25

But, even if a legislation was deemed to be within the context of legislative powers it still couldbe deemed unconstitutional.

HANSARD 31-1-1898Constitution Convention Debates 30QUOTE

Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection of our interests,

but also for thejustinterpretation of the Constitution:

END QUOTE

.35HANSARD 1-3-1898Constitution Convention Debates QUOTE

Mr. HIGGINS.-I understood the honorable member to put himself on the very highest pedestal, and bycontrast to put me on the very lowest. At all events, I feel that if this were carried, an unpopular individual, toobtain his rights and liberties, would have to go cap in hand to and be at the mercy of the Government of the40day. I was thinking of the pig-tail case which occurred in California, and which I alluded to some time

ago, where an abominably unjust law was passed against Chinamen. It was passed to persecute them in

regard to their pig-tails, which they[start page 1689] regard with exceptional reverence. That law was

declared to be unconstitutional as a law passed by a state.END QUOTE45.

HANSARD 8-2-1898Constitution Convention Debates

QUOTEMr. HIGGINS.-I did not say that it took place under this clause, and the honorable member is quite right insaying that it took place under the next clause; but I am trying to point out that laws would be valid if50they had one motive, while they would be invalid if they had another motive.

END QUOTE.

Therefore, one cannot provide legislation, even if ordinary within legislative powers to try toprohibit a religion such as the Islamic religion because of s116 and neither can one legislate55within ordinary legislative powers as to seek to achieve a purpose that is otherwiseunconstitutional as it infringes s116 of the constitution..

HANSARD 1-3-1898Constitution Convention Debates QUOTE60


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Mr. BARTON.- The position with regard to this Constitution is that it has no legislative power, exceptthat which is actually given to it in express terms or which is necessary or incidental to a power given.

END QUOTE

What is clear from the above is that any legislation enacted as to seek to interfere with a religious5matter would be unconstitutional, this includes any religion that through tax concessions orotherwise was to promote any religion.Hansard 2-3-1898Constitution Convention Debates QUOTE

Mr. BARTON.-No; because you do not give any power with regard to punishing crime to the10Commonwealth,but you do give power to the Commonwealth to make special laws as to alien races; and themoment you do that the power of making such laws does not remain in the hands of the states; and if youplace in the hands of the Commonwealth the power to prevent such practices as I have described you shouldnot defeat that regulative power of the Commonwealth. I do not think that that applies at all, however, to

any power of regulating the lives and proceedings of citizens, because we do not give any such power to15the Commonwealth, whilst we do give the Commonwealth power with regard to alien races; and having

given that power, we should take care not to take away an incident of it which it may be necessary for

the Commonwealth to use by way of regulation.I have had great hesitation about this matter, but I think Ishall be prevented from voting for the first part; and as to establishing any religion, that is so absolutely out ofthe question, so entirely not to be expected-20

Mr. SYMON.-It is part of the unwritten law of the Constitution that a religion shall not be established.

END QUOTE

Any taxation exclusion for a religious entity would in my view offend s116 of the constitution.The US Supreme Court has in numerous decisions, and it is from this constitution we drew our25s116 as it now is. Albeit we have the benefit of the statement of Delegate Barton.Hansard 2-3-1898Constitution Convention Debates QUOTE

Mr. REID.-I suppose that money could not be paid to any church under this Constitution?

Mr. BARTON.-No; you have only two powers of spending money, and a church could not receive the30funds of the Commonwealth under either of them.

[start page 1773]

END QUOTE

Religious entities cannot have it both ways to be protected as a religious body against so to say35non-believers and at the same time attract benefits for being a religious entity.Indeed, it is an unconstitutional advantage that a religious entity can get involved in certainmerchandise, etc, to sell to others and yet do not have to pay taxes as an ordinary business has

too. Hence, I view tax exemptions for religious entities is unconstitutional.Why would the States (which covers all public matter) not be permitted any tax exemption but a40religious body that may attend to little or none general issue for non religious purposes wouldattract tax exemption?

Hansard 20-4-1897Constitution Convention Debates QUOTE45

Mr. O'CONNOR: In a case of that kind the reversion which is in the Crown would not be taxed, butthe letting value would be taxed.


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Mr. BARTON: I might mention that the property of the Commonwealth in that land is the reversion uponthe lease. The reversion upon the lease would not be[start page 1002] taxable, but the interest of the lessee inthe property would be taxable.

Mr. GLYNN: I am only pointing out a difficulty that might a rise.

Mr. HENRY: I would like to raise a question as to the right of the Commonwealth to tax materials5for State purposes. In the event of a colony importing rails, machinery, engines, &c., for State

purposes, I would like to know whether such exports are to be free from Customs duties. Will the

Federal Parliament have a right to levy duties on materials imported for State purposes?

Mr. BARTON: This is a matter that was discussed very fully in the Constitutional Committee, and I thinkmy hon. friend Sir George Turner will remember that I consulted the members of the Finance Committee10upon it, intimating to them the opinion of the Constitutional Committee on the point. The words:

Impose any tax on property

do not refer to the importation of goods at all, and any amendment to except the Customs would beunnecessary. This clause states that a State shall not, without the consent of the Parliament of theCommonwealth, impose taxation on property of any kind belonging to the Commonwealth, meaning by that15property of any kind which is in hand, such as land within the Commonwealth. That has no reference to

Customs duties.

Sir GEORGE TURNER: Will articles imported by the States Governments come in free?

Mr. BARTON: The question then arises whether articles imported by the States Governments are tocome in free, but this section has nothing to do with that. Under this Bill and in the measure of 1891 I20believe duties would have been collectable upon imports by any State, and after the consultation which

I had with the hon. member and his colleagues on the Finance Committee the Constitutional

Committee decided not to make any exemption in the case of any State.

END QUOTE25

The following may also indicate that the Victorian government selling of the Port of Melbourne)Port Phillip Bay, etc) may have its own constitutional complications as it likely will cause aconflict with the freedom of trade and commerce as well as the Commonwealth legislativepowers as to navigation including the ports to navigational rivers.Because the following quotation also refers to exemption it has been included to provide an30overall understanding how the Framers of the Constitution debated exemption.

Hansard 7-4-1891Constitution Convention Debates QUOTE

Amendment (by Sir SAMUEL GRIFFITH) proposed:35

That the word "bound," line 6, be emitted with a view to the insertion of the word "required."

Mr. BURGESS:Before the amendment suggested by the hon. member, Sir Samuel Griffith, is put, I thinkit would be well that he should explain exactly how he would obtain the statistics which will be necessaryfrom the various colonies, in order to distribute the customs revenue on the basis which has just been agreedto, if we are to give any effect at all to the clause under consideration. I take it that what we have just agreed40to, instead of allowing trade to be free, will embarrass it more than it has ever been embarrassed in the past. Iam confident of that; and the result of the working will prove that the statement I am making is correct. If, inaddition to that,[start page 834] you pass this clause, by which any vessel leaving one port and sailing toanother will have to enter out, or clear, or report, you will never he able, I maintain, to obtain the informationwhich will be absolutely necessary in order to enable you to give effect to the clause which we have just45agreed to. Again, I would point out that cases will arise in regard to dutiable goods, goods carried under bond


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from one colony to the other, in which it will be absolutely necessary for a vessel to be entered out andcleared in the ordinary way in order to prevent smuggling or anything of that kind.

Sir THOMAS MCILWRAITH: I do not think this clause has been sufficiently considered, and it is quiteopen to the objection raised by the hon. member, Mr. Burgess. Take the case for instance, of a vessel-and thewhole of the American trade is conducted very much-upon this principle coming from Boston to Melbourne.5She delivers some of her cargo there, and goes on to Sydney, and afterwards goes on to Brisbane. How do thelast three lines of the clause apply in a case of that kind? Why should she not discharge her cargo as she doesnow in Melbourne or Sydney, pay the dues, and go on to the-next port, and pay dues there too? It has also

been overlooked that the dues referred to in the clause are part of the local revenue. What business have we tosay that the state shall not impose a local revenue? We have only taken charge of certain powers connected10with navigation; we have not taken over the ports of a colony, and we have no business to take over therevenue of a colony.

Sir SAMUEL GRIFFITH: This is one of the celebrated clauses in the American Constitution, one of thefew clauses taken from it, and I am very much disposed to think it would have been better if it had stopped atthe end of the first sentence. I certainly think that it would be better to omit all the words after the word15"commonwealth."

Mr. DIBBS: This clause provides for free-trade between the ports of the various colonies. A simpleprovision for a similar purpose was made by the colony of New South Wales eight or nine years ago in one ofthe marine board bills. It was enacted that a vessel paying either tonnage or harbour dues in one port shouldbe exemptfrom paying them in any other port in the colony. I think that the word "duty in this clause is a20mistake, and that either "tolls" or "harbour dues" should be inserted in its place. We would to a certain extentbe robbing various states of a portion of their revenues; but for the good that would result it would be as wellto make the law as it is clearly intended it should be, by striking out the word duty." Then a vessel that paiddues at Sydney would be exemptat Melbourne, Hobart, or any other port in Australia. The similar rule whichwe made here eight or nine years ago has answered very well.25

Mr. PLAYFORD: I think we had better leave the words as they are. They have been in the AmericanConstitution for over a hundred years.

Mr. DIBBS: Can the hon. member tell us what they meant a hundred years ago?

Mr. PLAYFORD: We know what they mean to-day!

Sir SAMUEL GRIFFITH: This is a very important clause. Vessels will really be bound to enter. I do not30know what the term "enter" exactly means; but the captain will have to go to the custom house, and state thathe is going to start, if only for statistical purposes, and he will have to take out shipping papers when he goesaway and pay some kind of dues.

I move:

That the clause be amended by omitting all the words after the word "commonwealth," line 4.35

Mr. DIBBS: I would ask, supposing we had one gauge of railway through to [start page 835] the Victorian

capital, would it be necessary for a train to "clear" when she arrived on the border?

Sir JOHN BRAY: Railways do not come from foreign parts!

Mr. DIBBS: We are not going to call Hobart a foreign part. If federation is brought about, will Melbournebe a foreign part? I am illustrating the matter. It is said that for statistical purposes it will be necessary for40vessels to have inter-colonial clearances. Formerly a vessel carrying 100 tons of coal from Newcastle toSydney "entered" here, and after she had discharged her cargo "cleared," before going back to Newcastle. Allthis gave needless trouble to the captain; but now a vessel takes out a clearance only once a year. If we havetrade between Sydney and Melbourne across the border without any interference by customs laws, or forstatistical purposes, why should we not have trade equally free between Sydney and Hobart? A citizenof45Sydney has as much right to take a vessel free into Hobart or Melbourne as to cross the border free of duty by

rail. Information for statistical purposes can be obtained in another way. The clear object of inter-colonial


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free-trade is to simplify trade in every possible shape, and ships should be allowed to go from one port in thecolonies to another without having to take out clearances or make entries each time.

Mr. MUNRO:I understand that the reason why the amendment was proposed was that it does not bind thefederation to a certain course, but leaves the federation to make its own arrangements. That is really what itdoes; it does not compel them to do anything.5

Mr. THYNNE:I sympathise with the hon. member, Mr. Playford, in his respect for this clause, because ithas been taken from the United States Constitution. I think we ought to hesitate before we eliminate the latter

part of it. The hon. member, Sir Thomas McIlwraith, suggests the difficulty in the case of a ship from Bostondischarging part of her goods in Melbourne or Sydney, or in any other port.

Sir THOMAS MCILWRAITH: The same thing applies to all the mail ships!10

Mr. THYNNE:Under this clause those ships would not be affected in the slightest degree. In the words"and vessels bound to or from one part shall not be bound to enter, clear, or pay duty in another part," thewords "another part," refer to some place other than the port from which the vessels are bound or the port towhich they are going. The hon. member, Mr. Dibbs, has really pointed out an instance that this clause isintended to provide for: that is, that a vessel coming from Melbourne to Newcastle shall not be required to15pass entries at Sydney, nor that any regulation of that kind under the constitution shall be permitted whichwould give a preference to any one port or part of a district over another. I think that the words "another part"

apply to some place other than either the place from which the ship is coming or that to which she is going. Inthe place from which she is coming she has had to pay her ordinary dues, and she will have to pay in theplace at which she arrives. This clause has come down really as the result of some of the oppressive20navigation regulations of the old time in the United States. That is no doubt the origin of it, and with the hon.member, Mr. Playford, I have every respect for the operation of this clause as preventing what has happenedin the past, and what may happen in the future, and to keep our constitution free from the danger againstwhich the Americans thought it necessary to provide.

Amendment agreed to; clause, as amended, agreed to.25

END QUOTE


QUOTE

Mr. BARTON:The reason of this clause is not hard to see, but it is a clause which reads in a rather30difficult way. It is practically as it stood in the Bill of 1891. The reason that persons in receipt only of pay,half-pay, or pension, in the Queen's navy or army, are exempted is that they are not holding an office ofprofit under the Commonwealth at all, but their pay comes from the Imperial Government. It is obviousthat there is no necessity whatsoever on the ground of interest to exclude them from having positions in theParliament of the Commonwealth, because they are not servants of the Commonwealth, and have no35interest whatever springing from the Commonwealth such as under the previous branch of the sectiondisqualifies anybody.

Sir GEORGE TURNER: Then this is not necessary.

[start page 755]

Mr. BARTON: Yes, it is; because it might otherwise be read to apply that way. The hon. member will well40remember the case of Sir Bryan O'Loghlen, whose election for County Clare was upset on the ground that,while he was a Minister of the Crown in Victoria, he was holding an office of profit under the Crown.That case shows the necessity of these exceptions. Then those are exempted who receive a new commissionin the Queen's navy or army, or an increase of pay on a new commission. That covers the case of those whoreceive a fresh commission, who happen to have been a member of the Queen's army drawing pay, half-pay,45or pension, or who receive an increase of pay, supposing they are only in receipt of a half-pay or pension. Butthey are still persons employed under the Government of the Queen, and not under the Government of theCommonwealth.Then the remainder of the clause exempts anyone:


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Who is in receipt only of pay as an officer or member of the military or naval forces of the Commonwealth,and whose services are not wholly employed by the Commonwealth.

If he belongs to what is called the permanent force he will be disqualified, because he will be in receipt ofan ordinary office of profit under the Commonwealth. For instance, take the case Sir George Turner put,of a general commanding the local forces. He has an Imperial commission, but beyond that he in receiving5pay from the Commonwealth, and would be ineligible. Take the officers of his staff, who are alsoemployed by the Commonwealth; they are ineligible. Take the men under them; they would be employed inthe regular forces, and would be in receipt of pay under the Commonwealth ,and so ineligible. But as

regards the members of what is usually known as the volunteer, or the militia, or the partially paid forces,it was considered reasonable in the 1891 Bill to exempt them, and I think it is reasonable to exempt them10now.

Sir GEORGE TURNER: No one objects to that.

Mr. BARTON: The main point is that we exempt persons in receipt of pay, half-pay, or pension, orcommission in the Queen's service, apart from the Commonwealth, on the ground that as they do not drawtheir pay from the Commonwealth, they have no interest against the Commonwealth.15

Mr. KINGSTON: Have you that provision in New South Wales?

Mr. BARTON: I think we have, but I will reply to that question in a minute.

Sir JOHN DOWNER: They have it in Queensland.

Mr. Barton's amendment-to insert the words "or member" after "officer" in the second line of sub-section 2 -agreed to.20

Mr. GORDON:I think it is very unfair to exclude from the operation of this clause pensioners of theQueen and not pensioners of the Commonwealth. There is no connection between political and militaryservices, and I fail to see why pensioners of the Commonwealth should be under any disability. I move:

In line 40, after "pay" to insert "or pension."

Mr. BARTON: I can quite see the point of the hon. member, but we have to read, the remainder of the25clause, which includes:

And whose services are not wholly employed by the Commonwealth.

END QUOTE

The above quotation underlines that Sykes v Clearywas wrongly decided as Mr Cleary was not30employed by the Commonwealth but by the State of Victoria and as such no conflict of interestexisted with his election to the Federal Parliament.

Hansard 17-4-1897Constitution Convention Debates QUOTE35

Sub-section XVI.-Insurance, including State insurance extending beyond the limits of the State concerned.

Mr. HIGGINS:I desire to understand whether by the word "State" here is meant a particular colony, or isit used in the general sense-the State as distinct from the individual? I apprehend that the word "State" meansa particular colony, but I confess I do not understand the meaning of the term.

Mr. O'CONNOR: This is a new subsection. It proposes to include insurance, and I think it is a very40desirable inclusion amongst the list of powers. However, it involves a principle. The part the hon. memberreferred to is for this purpose: It was suggested that colonies might undertake State insurance, as was done in

New Zealand, and it was held that State insurance should not come under the general laws. From that view I


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entirely dissent; but this clause was drawn in accordance with the views of the Constitutional Committee. Thehon. member will see, therefore, that the words "State insurance" simply indicate that whereas a State withinits own boundaries should have control of all its insurance business, and the regulation of its insurance underany State system, so far as it deals with the people within its own boundaries, any part of its system thatproposes to deal with people beyond its boundaries should come under the general laws. "State" is used to5designate colony. I should support the hon. member if be moved to strike out:

Including State insurance extending beyond the limits of the State concerned.

Mr. ISAACS: It would include all insurance then?

Mr. O'CONNOR: Yes; and I think it ought to. If a State chooses to go into the business of insurance-I donot say it is wise or not-I do not see why any departure should be made as to the uniformity of laws with10regard to insurance. The State should be subject to the same limitations as the individual if it goes in for Stateinsurance. It would be absurd to say it should not. Supposing every State adopted a system of State insurance,according to this exception each State would be able to adopt a different method, so long as it kept within itsown boundaries, and you might have five different Systems of insurance outside the general law.

Mr. ISAACS: Is that not States rights?15

Mr. O'CONNOR: No; because you start with the proposition that general insurance laws must be the same

throughout the colonies.

Mr. SYMON: The object of this, I understand, is to exercise a federal control over any State undertakingthe business of insurance outside its own boundaries. I agree, and most people will too, that if a State entersupon a commercial undertaking it should have no privileges and exemptions from which ordinary individuals20are not free; but the language used here seems to be open to the criticism of Mr. Higgins.

Mr. WISE: By keeping it in you give special privileges within its boundaries.

Mr. SYMON:To that I do not object. If South Australia chooses to establish a System of State insurance, Ido not see why she should not within her own limits. It affects her own subjects only, and we should diminishthe rights of self-government if we decided otherwise; but if South Australia opens agencies in Victoria, then25

the federal law should be able to say, "If South Australia chooses to enter into commercial rivalry with thosecompanies outside her own territory, she[start page 780] should be subject to the conditions imposed in othercountries." I think that is the extent to which this provision was intended to go.

Mr. O'CONNOR: Hear, hear.

Mr. SYMON: It seems tome that these words:30

Including State insurance extending beyond the limits of the State concerned

ought to be, in the sense in which they they were inserted-

Mr. HIGGINS:Struck out.

Mr. SYMON: No; retained. But I doubt with Mr. Higgins whether they exactly and clearly give effect tothat sense. I suggest some verbal modification such as the following:35

Including any business of State insurance extending its operations beyond the limits of the State adopting it.

Mr. O'CONNOR: Hear, hear. That would be better.

Mr. SYMON: The words:

State concerned


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are a little ambiguous.

Mr. HIGGINS:I agree thoroughly in principle with Mr. Symon as to his intentions, but I would suggestthat what is wanted here is an excluding phrase, and not an including phrase. Insurance covers all kinds ofinsurance. You want an excepting phrase. "Insurance" will be the general expression, and then will follow:

Except State insurance confined to the limits of the particular State.5

Mr. SYMON: That is the better way.

Mr. KINGSTON: Put it this way:

Excluding State insurance within the State limits.

Mr. GLYNN: We ought to be careful as to how we restrict the operations of State insurance. In 1869 NewZealand State insurance was established, and now, as a matter of fact, a very large business is carried on by10the Government of New Zealand beyond the limits of that colony. According to the statistics of 1891, theposition of New Zealand State Insurance in Australia was second only to that of the Australian MutualProvident Society.

Mr. FRASER: The New Zealand Government do not go beyond their own limits.

Mr. GLYNN: They do. Policies are taken up elsewhere. And we ought to be careful how we attempt to15confine the business of the New Zealand State insurance to that colony, because Australian insurancecompanies do large business in New Zealand, and the New Zealand Government may retaliate by excludingthem. In 1891, out of 56,000 policies in force in New Zealand, the Government held 29,256, and theAustralian Mutual Provident 16,761. If you impose a federal law, restricting the operation of State insurancewithout the limits of that State-20

Mr. HIGGINS:That is not intended. The intention is to have the federal law only to apply to insurancewhich is general over the colonies.

Mr. GLYNN: You can impose a restriction upon New Zealand in carrying on business within the limits of

the federal power.

Mr. O'CONNOR: Why should New Zealand State insurance be in any different position from the25insurance of any company?

Mr. GLYNN: The present law extends to New Zealand State insurance. If you impose a special law uponState insurance, the result will be that New Zealand will probably impose a company law in New Zealand.

Mr. FRASER: I do not think, notwithstanding what Mr. Glynn says, that the New Zealand GovernmentInsurance department is doing any business outside of New Zealand, with the exception of receiving30premiums.

Sir PHILIP FYSH: Only that their policyholders travel.

Mr. DEAKIN:They only receive the premiums here.

[start page 781]

Mr. FRASER: If a policy-holder goes to Kamtschatka, of course the premiums will be paid to the35department all the same.

Mr. DEAKIN:Is that near Oodnadatta?


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Mr. FRASER: Yes, I suppose. I think it would be grossly unfair to allow a State to extend its operations inlife or any other insurances beyond its own limits. A department might be as rotten as possible, and carry on ahuge business at great risk, and nobody would be able to control it. I think it is the duty of the FederalParliament to make a law for the whole Commonwealth, giving a State power to establish an insurancedepartment within its own borders; but to give a department the liberty of going outside its borders would be5as absurd a thing as could be allowed.

Mr. WALKER: I would like to move:

That all the words after "insurance" be deleted.

The CHAIRMAN: You cannot do that. An amendment has been made by Mr. Higgins.

Mr. HIGGINS:I do not want to embarrass Mr. Walker if he has an amendment which ought to be10discussed, but I cannot see at present how my amendment may fit with his. My idea is this: That the FederalParliament should be allowed to deal with all insurance matters, with only one limitation. I would refrainfrom dealing with State insurance in the colony establishing it, but if that colony extends its operations toother colonies, I do not see why it should not be treated like an ordinary company.

The CHAIRMAN: As a matter of procedure, Mr. Walker wishes to make no exceptions at all. He therefore15proposes to strike out all the words after "insurance."

Mr. HIGGINS:Of course, if it will help him to have the question discussed, so long as it is understoodthat my amendment is to be submitted, I am quite agreeable.

The CHAIRMAN: I would point out that you cannot do that afterwards.

Mr. HIGGINS:Well, I must press it then.20

Sir GEORGE TURNER: I might point out that those who are desirous of striking out the words might doso without proposing that some other words be inserted. It would then leave a blank to be afterwards filled.

Mr. HIGGINS:I agree to that.

The CHAIRMAN: Mr. Higgins proposes to strike out the word "including," with the view of insertingsomething else.25

Mr. FRASER: I do not quite understand what this will lead us to.

The CHAIRMAN: It will lead to a blank which the Committee mayor not fill up.

Mr. KINGSTON: I understand that if the word "including" is struck out Mr. Higgins will afterwards moveto insert:

Excluding State insurance within State limits.30

Sir GEORGE TURNER: Then if you propose to put in the words, that means striking out the lot.

Mr. FRASER: I am more in favor of striking out the whole lot.

HON. MEMBERS: Then vote against it. Mr. FRASER: I am anxious that others should do so as well asmyself.

HON. MEMBERS: We will.35

Mr. HIGGINS:I think my friend is under a misapprehension as to this. I am limiting insurance matters forthe Federal Parliament to have control over. I propose to exclude certain matters from federal control. The


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expression then will be to the effect that the Federal Parliament is to have power to make laws for insurance,but it is not to have power to make laws as to insurance effected within the limits of a colony by that colony.Then I think that my friend will be in favor of my view that the word "excluded" ought to be inserted.

Mr. WALKER: I am sufficiently old-fashioned to consider that insurance is a business, and I thereforewant law to apply to all insurance companies, whether State insurance companies or otherwise. I intend to5vote against any amendment.

[start page 782]

Amendment-striking out all words after "insurance"-agreed to.

Mr. HIGGINS:I now move:

To insert "excluding State insurance not extending beyond the limits of that State."10

Amendment agreed to; sub-section, as amended, agreed to.

END QUOTE


QUOTE15

Mr. HOLDER: We have large areas of land, the price of which, the value they are to the StateGovernments, and the extent to which population is settled on them, and to which production is encouraged,depend on the power of the State to grant these bounties. The practical advantage in leaving the States free inthese matters is sufficiently great to justify us in departing from some of that scientific accuracy which somehon. members-at least on this occasion, though not on others-have urged upon us.20

Mr. DEAKIN:Perhaps it would be the simplest course if I were given leave to move to insert in line 30-

The CHAIRMAN: I do not think we can go back.

Mr. BARTON: If we put it in line 38, we can authorise you, sit, to go back and make the consequentialamendments, as we did with regard to the words States Assembly and Senate.

The CHAIRMAN: I will put it to the Committee, and if they are unanimous, we can go back.25

Mr. REID: I was going to make a suggestion which might remove all these difficulties about the miningmatter. Supposing we put in the word "trade" in front of the word bounties in line 38, that would clearlyexempt the mining industry.

Mr. BARTON: Has that word any well-known technical meaning?

Mr REID: It will mean a bounty with the object of promoting trade, which would be export, or30

import, or local consumption. Clearly no one can consider such an expression as prohibiting a bonusfor the development of the mining industry. The expression "trade bounty" covers all we want in thisclause; it is used as a general expression covering every bounty on an object of trade. I quite see the difficultyabout mining and other industries of the kind, and I shall be quite agreeable to the insertion of any words tomake the provision clear.35

Mr. SYMON: I think neither of these amendments will carry out the objects of the movers. They are notclear.

Mr. REID: There is nothing clear about it.

Mr. SYMON: If we put in "trade" before "bounties," it does not, to give a concrete instance, include the

power of Victoria to give large bounties on the export of coal.40


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Mr. REID: That would be a trade bounty surely?

Mr. SYMON: You do not wish to exclude that?

Mr. HIGGINS:Oh, no.

Mr. SYMON: If you aim at giving bonuses for mining discoveries and purposes of that kind , it will bevery much better to secure it by way of a proviso, either here or at the end of the clause, as suggested by Mr.5Kingston, than to do it as has been suggested; as it would give rise to a great deal of ambiguity, involvingmuch difficulty in interpretation. I cannot see what possible gain you get by putting in the words "wares andmerchandise." That is simply an amplification of the word "goods." Therefore, what I suggest to my hon.friend to do is to propose what he wants done as an exception, and then in dealing with that exception wemight have other matters in view. I would suggest the use of language that would cover our wishes. To put in10"wares and merchandise" is to use language already covered.

Dr. COCKBURN: I have already twice called attention to the importance of this [start page 851] matter,once in the Convention and once in this Committee. It is all very well to provide for the further

development of our mining industry, but it is also necessary to provide for the development of other

industries;and I feel that if we give the sole power of granting bounties to the Federal Parliament we shall15practically abolish the giving of bounties altogether. I cannot imagine a case in which the Federal Parliamentwould grant a bounty. Unless those who advocated a bounty in the Federal Parliament were able to point to

some part of the Commonwealth where a similar bounty has been given with success, it would have nochance of being carried. I think this matter of granting bounties should be a concurrent power, to be exercisedby the Federal Parliament if it chooses to do so, and to be exercised also by the State Parliaments. I propose:20

That at the end of this sub-section the words be added, "If in the opinion of the Inter-States Commissionthey derogate from equality of trade."

Sir GEORGE TURNER: We may not have an Inter-States Commission.

Dr. COCKBURN: Then if we do not, the clause may be recommitted. I am sure that Sir George Turnerand the other hon. members who come from Victoria will see the importance of this, because Victoria has25earned a debt of gratitude in this respect from the whole of Australia. Victoria has really led the way inAustralia, and has shown what a good influence may be exercised by the judicious granting of bounties.

Sir GEORGE TURNER: Are we justified in doing that with a uniform tariff?

Dr. COCKBURN: Yes; I think there are many cases in which the granting of a bounty will not interferewith equality of trade.30

END QUOTE


Dr. COCKBURN: I am quite willing to do that, because I can see quite well that the industry must start in35some locality where the conditions are specially favorable [start page 852] for the industry. It would be atfirst a purely local matter, and the Federal Parliament or Inter-States Commission would recognise that. Theywould say: "This is an industry which may or may not become general, but at present it affects only thosewho are so striving to encourage it." As long as the various States have to bear the expense I do not see

why the federal authority should prevent assistance being given to pioneers. The pioneers of an40industry should be assisted in the first instance because they are making a road on which everyone has

the right to travel. To the pioneer who starts an industry the reward of his efforts is a reward, not only

to him personally, but to all who choose to travel on the road he has made. Unless the States have the

power to encourage this pioneering work there will be a great limitation put upon the development of

various industries.45

The CHAIRMAN: I must ask Mr. Barton if he wishes his amendment put. If he does, I will withdraw it infavor of Mr. Reid's amendment, which comes first.


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Mr. BARTON: I think Mr. Reid's has only been a suggestion. I really think what has been suggestedalready is the best way of meeting the difficulty-goods, wares, or merchandise."

Mr. DEAKIN:I am afraid that helps us very little.

Mr. BARTON: It helps us to some extent.

Mr. DEAKIN: Do you not think, although it might not be properly expressed, that the idea suggested by5Dr. Cockburn might be applied, namely, if there is to be an Inter-State Commission that that Commissionshould be given power on certain principles to offer State bounties, if it does not derogate from freedom oftrade or give any undue advantage to a particular State?

Mr. BARTON: I should say that Dr. Cockburn's proposed amendment is one which I would ask theConvention not to entertain. Of course, we may or may not have an Inter-State Commission. I think we shall.10But the amendment will have no effect unless we have an Inter-State Commission; in point of fact, it willbecome mere surplusage then. I think it would be a mistake to propose to hand over this question to bedecided by an Inter-State Commission, because the Commission has first to see that the offering of tradebounties on productions for export will not derogate from freedom of trade. Although I am a protectionist, Isee clearly that the offering of these bounties by the various States must be a derogation from freedom of15trade, and I do not think it should be handed over to any authority, but this Constitution itself, to proclaim thatthere shall be freedom of trade from the establishment of the Constitution. Unless we can say that there are

bounties which are not practically protective, we have no business to consent to an amendment handing overthe decision of this question to another authority.

Mr. SYMON: If we are to make exemptions, where are we to stop?20

Mr. BARTON: If it is to be left to the decision of the Inter-State Commission, whose chief business isto regulate commerce, I think it would be taking away first from those who make the Constitution, and

afterwards from the Federal Parliament, the power of deciding for themselves on such questions.

Mr. PEACOCK: The hon. member Mr. Barton has put the view better than I could do it. I think the feelingof the whole of the people of Australasia in regard to the need for Federation is due to their desire for25freedom of trade between the whole of the States. Whilst I am a protectionist, I do not think we could followthe advice of Dr. Cockburn, for if we did we would be placing on the Inter-States Commission the duty ofdeciding upon the policy to be adopted.I am only a layman-another poor layman!-interfering andcausing trouble.

[start page 853]30

Mr. ISAACS: Hardly a layman now after the distinguished part you took on the JudiciaryCommittee.

Mr. PEACOCK: The matter is perfectly clear, and we are all practically unanimous on the point overwhich we have spent an hour's talk, that the Federal Parliament should have the power of dealing with thetariff and bounties, while every man in this Convention is of the same opinion concerning existing contracts,35which ought to be preserved for the reasons given by Mr. Barton. As we are all agreed that there should be

no interference with the assistance given to gold mining, it would be far better for our legal friends togive us a sub-clause dealing with this point. We are all practically agreed upon what we want. In

Victoria there has been a great deal of agitation over the duty on coal. If Federation is to be an

accomplished fact, and if power is left to the local Parliament to give encouragement to the coal40industry by promoting our railway system through offering reduced rates, that would be an

interference with the policy. That would be thoroughly wrong, and would give a great deal of trouble.

Mr. BARTON: The question of mining for gold or silver does not affect "goods, wares, ormerchandise."

END QUOTE45.



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QUOTEMr. KINGSTON.-How would you define the word "citizen"?Mr. SYMON.-I do not think that it is necessary to frame a definition of "citizen." A citizen is one who

is entitled to the immunities of citizenship. In short, a citizen is a citizen. I do not think you require a

definition, of "citizen" any more than you require a definition of "man" or "subject."5Mr. ISAACS.-Would you include a corporation in the term "citizen"?Mr. SYMON.-Why not?Mr. ISAACS.-Well, in America they do not.Mr. SYMON.-I do not see why a corporation existing in one colony should not have the rights of a

corporation in another colony. Otherwise you defeat the objects of this Constitution.10 [start page 1783]Mr. ISAACS.-I agree that that ought to be so, but the word "citizen" will not include a corporation.Mr. SYMON.-Well, in my opinion it should. I

END QUOTE.15Hansard 2-3-1898Constitution Convention Debates QUOTE

Mr. OCONNOR.-If the territory does not stand in the same position as a state, it isadmitted to political rights at the will of the Commonwealth, and upon such terms as

the Commonwealth may impose. Every person who has rights as a member of the20

Commonwealth must be a citizen either of some state or some territory. It is only byvirtue of his citizenship of a state or of a territory that he has any political rights in

the Commonwealth.

END QUOTE25


Mr. BARTON: As far as I can gather from this clause and the clause of 1891, it seems to me to refer toany future legislation on the subject:

The State shall not impose tonnage dues.30

[start page 1003]

The question of whether existing legislation would be invalidated would depend, first, upon whether

the dues were an infringement of the equality of trade throughout the Commonwealth, and next uponwhether the Commonwealth passed a law which-if it were in the province of the Commonwealth to past; it-was in conflict with the law of the State, in which case, to the extent of the difference between the laws, the35law of the Commonwealth would prevail if section 98 were passed. It deals only with future legislation, I

think. but these tonnage dues may incur a prohibition if we find that they are a system of taxation,

because the Parliament of the Commonwealth has power to raise funds by any method of taxation. If

the method of carrying out that power were found to be in conflict with the law of the State, the law of

the Commonwealth would prevail. We have no provision for the Commonwealth taking over harbors or40

harbor works, and it may be a question for consideration whether the Commonwealth, as it has power tolegislate on other subjects relating to the regulation of commerce and trade and so on, should not take overharbor works too. That is what, on the face of it, seems to me to be the effect of the clause.

Mr. MCMILLAN: I think these tonnage dues must be excepted if the Parliament is to take over harbors.Tonnage dues are simply payment for services rendered, and they do not practically come under the system45of taxation at all. They are levied for something done. If they are not excepted great trouble will ensue,especially in regard to corporations. Is that System referred to by Sir George Turner administered by aMinister of the Crown?

Sir GEORGE TURNER: No.


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Mr. MCMILLAN: Does it apply then? These. are dues paid by the State as a State, but the case mentionedis one of a corporation, in which there is a payment for services rendered. Tolls are exacted for the services,call them dues or wharfage rates or whatever you like; they are the same in essence.

Sir GEORGE TURNER: If we do not guard against it corporate bodies may evade the Act, and the Statemay appoint corporations to do work so as to evade it.5

Mr. MCMILLAN: Something will have to be done or great trouble may ensue.

Mr. BARTON: With reference to the question of wharfage rates, members will recollect that the UnitedStates Constitution contains a prohibition against the State levying tonnage duties without the consent ofCongress. It has been decided in the case of the Packet Company v. Catlettsburg, 105 U.S., 559:

A city or town on a navigable river may exact a reasonable compensation for the use of the wharf which it10owns without infringing the constitutional provisions concerning tonnage taxes or regulations of commerce.

That would appear to be rather in favor of the exemption of the harbor trust.

Mr. HENRY: It is within my own knowledge that there are Marine Boards in Australia, at all events inTasmania, worked as State departments. They are nominee bodies with a Minister practically at their head.

Mr. HIGGINS:Who gets the money?15

Mr. HENRY: The Customs officers collect the wharfage and tonnage dues, and they pass into the hands ofthe Government. I would like to ask Mr. Barton how it would operate in cases where the tonnage rates vary atdifferent ports in Australia? We might have one harbor with a particular rate and another with double ortreble that rate, so that we would not have an equality of trade. This is one of the difficulties which Mr.Barton. and others, in considering this matter, should have placed before them. In this clause we are going to20hand to the Federal Government the right to legislate with regard to tonnage dues, and it is desirable that weshould know precisely what we[start page 1004] are doing and how it is going to affect the various harbortrusts and marine boards.

Mr. BARTON: On considering the matter, I think that the tonnage dues mentioned here-we have altered

the word "duties" into "dues," and they seem to me like the word "tonnage dues" that used to prevail in the25the old country, such as tonnage dues on wines. We find the word referred to in Acts 9 Anne, and 10 GeorgeIV. They were tonnage dues granted to the Queen, and I think those referred to here were the same in theUnited States Constitution. Whether that be so or not, the tonnage dues referred to in the clause seem to becharges for services performed. For instance, a Harbor Trust is formed and carries out improvements and as ameans of recouping themselves the harbor authorities charge dues. Wharfage dues are for the use of a wharf30and have they not a similar meaning in the modern acceptation of the term? One is an impost for the use of awharf, the other for the use of a harbor on which money has been spent for the purpose of rendering it moreadapted for shipping. If that is so the words may be left out, and if they are left out any tonnage due which isnot a charge for services performed would be an impost interfering with the freedom of trade and intercourse,and would come under section 86; that is to say, as soon as uniform duties have been imposed, trade and35intercourse shall be absolutely free, If they interfere they could only do so so far as they are of the nature oftaxes. If they are only charges for services performed, as I explained in connection with clause 83, then there

can be no objection to them. because charges for use of a wharf are much in the same position as charges ofthe post office authorities for the carriage of letters; they are payments for services. If that view is taken Ishall offer no objection to it.40

Sir GEORGE TURNER: Why not for post and telegraphs?

Mr. BARTON: Any mere service that the Commonwealth does not take over is still in the hands of theState. Clause 86 can only be infringed by something which means an interference with the freedom of tradeand intercourse. Anything that is fairly construable as a payment for services performed is not handed over-the mere service can be charged for as before, because it is not an interference with trade and intercourse. In45such cases as that, mere service can be charged for as before, because it is not an interference with trade orintercourse. I think we may well accept that view and leave out the words:


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Impose tonnage dues or.

I move that they be left out.

END QUOTE

Hansard 21-9-1897Constitution Convention Debates 5QUOTE

The Hon. I.A. ISAACS (Victoria)[9.29]: Before my hon. and learned friend moves his amendment, I wantto substitute the word "twenty-five" for the word "twenty," in line 4 of the paragraph. The object of the clauseis to prevent individuals making a personal profit out of their public positions; and, following the generalexemption, the clause goes on to say that the prohibition is not to extend to an agreement made by an10incorporated company consisting of more than twenty persons, if the agreement is made for the generalbenefit of the company. In Victoria, by recent legislation, there is what is called a proprietary company-that isto say, a private individual having a business may incorporate his company. It is really a private concern orfirm, and as long as it does not exceed twenty-five shareholders, he can have many of the benefits and escapea good many of the liabilities of incorporated companies.15

Mr. GLYNN: How does it prevent dummying?

The Hon. I.A. ISAACS: It does not prevent it; I want to guard against it. They are called companies,but they are really, in the majority of cases at all events, private concerns.

Mr. WALKER: One-man companies!

The Hon. I.A. ISAACS: They are really one-man companies. I can understand the case of a person in20Victoria who is a member of the federal parliament, who would escape if the word "twenty" remains, byfloating his business into a proprietary company not exceeding twenty-five persons. He would be able tocontract with the Government, and have no disability. If we extend it to twenty-five persons it covers everyother colony and Victoria as well.

The Hon. S. FRASER (Victoria)[9.32]: There is no virtue in numbers. I do not object to twenty-five; I only25say there is no more virtue in twenty-five than in twenty. A man may have thousands and tens of thousands ofpounds in a company of twenty-five, twenty-six, or thirty, or more persons, and he may have a very smallinterest indeed in a company of twenty. That, however, would not in the slightest degree influence me oneway or the other. It is impossible to draw the line. A man may be the proprietor of a paper company. He maynot be able to sell one shilling's worth of paper to the Government, and yet his interest may be infinitesimally30small. If we fix the number at twenty-five instead of twenty, it may be on a par with our colonial acts. Ifwe go the full length, we ought to exclude bank shareholders who deal with the Crown through the

departments. We cannot draw a hard and fast line in cases like this. If we did, the result would be all

kinds of complications.

[start page 1024]35

The Right Hon. C.C. KINGSTON (South Australia)[9.34]: I hope we shall amend the clause so as to

make the provision something real, instead of the sham and farce it is under existing legislation. I thinkwe can provide against abuse of the provision which occurs every day in connection with coloniallegislatures. At present we have in various colonial constitutions this exemption in favour of incorporatedcompanies. What is the result? A private individual who is a representative cannot sell a bag of flour to a40government. He cannot, if he is in parliament, contract for the insertion of advertisements in the newspaper ofwhich he is the proprietor, although there may not be more than 5 or a few shillings involved. On the otherhand, if the business is big enough to warrant him in floating it into a company, although he practicallyretains the whole interest himself, he can engage in business arrangements with the government involvinghundreds and thousands of pounds. I know of cases in our own legislature, I make no complaint of the action45of those who have been concerned in the formation of these companies. I believe they have done good workwhich has profited the government, and they have every reason to be proud. But I say that the thing in itspresent condition is absolutely indefensible. We are "straining at a gnat and swallowing a camel." Hundredsof thousands of pounds in connections with government work go into the pockets, properly, of government


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contractors who are members of parliament, who are protected through the formation of their businesses intolimited companies. Now, ought that to be so? Surely we cannot justify the continuance of a thing of that sort.Knowing the way in which it is abused, is it not honest either to strike out all limitation, or, at the least, toprovide so that the existing condition of affairs shall not be continued, when you catch the smaller man whois not worth catching, and let the big one go free whose operations ought to be dealt with? Under these5circumstances, I shall be found supporting the amendment moved by my hon. friend, Mr. Glynn, or any otheramendment which will make the thing a substantial reality and not a delusion and a snare. I understand thehon. member, Mr. Glynn, proposes that where there is a substantial interest retained by the member ofparliament in the government contract, whether he acts directly or through the medium of an incorporated

company, the same provision shall apply, and he should be penalised and the thing prohibited. We ought not10 allow a thing to be done indirectly to a great extent which we prohibit when it is done directly in a much lessand important degree. The amendment of the hon. member, Mr. Glynn, seems to me to deal with the matterAn HON. MEMBER: What is that amendment?

The Right Hon. C.C. KINGSTON:It proposes to take away the benefit of this exemption from companiesin which a member of parliament holds a substantial interest-say one-twentieth of the whole concern. I should15be prepared to go for the striking out altogether of this exemption.

The Hon. Sir J.W. DOWNER:So would I!

The Right Hon. C.C. KINGSTON:If the hon. gentleman will take the sense of the Convention on thepoint-

The Hon. Sir J.W. DOWNER:The right hon. gentleman would make the limitation more stringent; I20would make it less stringent!

The Right Hon. C.C. KINGSTON:The hon. member would allow all these arrangements between themember of parliament and the federal government to go on, of course taking some care that they were madepublic. I am not at present prepared to do that, though certainly that[start page 1025] position would be muchmore logical than penalising the private individual, and exempting the public company-striking at the small25transactions, and winking at the large ones. I should like to see the exemption in favour of a company struckout, and, if anything of that sort is moved, I shall be found supporting it.

Mr. HIGGINS: Suppose the federal government keeps some money at a bank, what about the

shareholders of the banking company?

The Right Hon. C.C. KINGSTON:You cannot define the nature of the transactions; but it seems to me30that it is just as possible to make arrangements which you ought not to make with banking companies as withother companies-arrangements in connection with the handling of money and the depositing of public cash.No doubt arrangements may be made profitable to the state and profitable to the bank; but I think it is a pitythat huge transactions of this sort should be going on when any member of parliament is interested in them toany considerable extent. You would not allow it if it were the case of a member of parliament who was35the sole proprietor of a business trading in his own name. Why then should you allow it when it is don

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