§ 433. “Unless so Adjudged by the Inter-State Commission.”

The Parliament may forbid preferences or discriminations which are undue and unreasonable, or unjust to any State; but it cannot prejudge the question of fact as to whether any particular preference, under all the circumstances of the case, is of that character. That is a judicial question, which belongs to the Inter-State Commission solely and finally. That is to say, the preferences and discriminations which the Parliament is empowered to forbid by law are those which are undue, &c.; the application of the law to the facts of each case is a matter with which the Parliament, as a solely legislative body, can have no concern.

Commissioners' appointment, tenure, and remuneration.

103. The members of the Inter-State Commission434—

  • (i.) Shall be appointed by the Governor-General in Council:
  • (ii.) Shall hold office for seven years435, but may be removed within that time by the Governor-General in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity:
  • (iii.) Shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office.

  ― 919 ―

HISTORICAL NOTE.—The first draft of the Bill at the Adelaide session provided for the members of the Commission holding office during good behaviour, on exactly the same terms as the federal justices. Some members, however, who were not convinced that an Inter-State Commission was really necessary, or would have very serious duties, thought that this provision tied the hands of the Parliament too much; and the clause was struck out. (Conv. Deb., Adel., pp. 1114–7.)

Melbourne Session, 1898.—The important duties cast upon the Commission in connection with railway rates led to the question of independent tenure being reconsidered. On the third recommittal Mr. Barton (in pursuance of a promise made during the debate on the powers of the Commission) introduced the clause in its present form. Objections were made on the score of economy, and it was suggested that it might be found desirable that the Railway Commissioners for the time being should act; but the arguments for the independence of the Commission prevailed, and the clause was passed. (Conv. Deb., Melb., pp. 2457–62; and see Hist. Note to sec. 101.)