§ 435. “Shall Hold Office for Seven Years.”

Except that the appointment need not be for a longer term than seven years, the tenure of a Commissioner is the same as that of a Justice of the High Court. (See sec. 72, supra.) The provision for removal is indeed framed in an enabling instead of a prohibitive form, but that is because it is in derogation of the preceding words “shall hold office for seven years,” which exclude all modes of removal except that specified.

The fixity of tenure is for the purpose of securing to the Commission independence from political influence in the exercise of its important judicial and administrative functions. On the other hand, the variation from the judicial tenure is a recognition of the fact that the work of the Commission is administrative as well as judicial, and that the reasons which make the life tenure of administrative office undesirable and inconvenient may be applicable in this case.

The requirement that the members “shall hold office for seven years” does not prevent the Parliament, if it should think fit, from conferring a longer tenure of office.

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Saving of certain rates.

104. Nothing in this Constitution shall render unlawful any rate436 for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State437, and if the rate applies equally438 to goods within the State and to goods passing into the State from other States.

HISTORICAL NOTE.—At the Melbourne session, 1898, after the adoption of Sir George Turner's “undue preference” clause (see Hist. Note to sec. 102) the New South Wales representatives feared that the tapering “long-haul” rates necessary for the working of their railway system might be interfered with by the Federal Parliament— which was the tribunal provided for at that stage. It was argued that Sir George Turner's clause, as it stood, affected the internal traffic of a State as well as inter-state traffic. Accordingly Mr. O'Connor proposed (Debates, p. 1410) to insert a provision that nothing in the Constitution should be taken to render a rate on any State railway unlawful “on the ground that it is unduly low.” The intention was to allow unlimited competition, so far as “cutting rates” was concerned, subject only to the prohibition against preferential treatment. Sir George Turner complained that this neutralized his clause, because nine times out of ten the injustice would be that a rate was unduly low. He wished to prevent unfair competition. The position became critical, and Mr. O'Connor, to relieve the strain, modified his proposal to read that a rate on a State railway should not be prohibited on the ground that it was unduly low “if such rate is imposed for the development of traffic between places within the limits of the State.” He insisted strongly that the clause as it stood meant that the internal trade of New South Wales was to be “fixed to suit somebody else.” Sir George Turner still objected to the amendment; low rates would be wanted, not for development, nor for the benefit of producers, but for the conserving of “traffic.” At last (p. 1443) Mr. Grant appeared as mediator. He admitted that Sir George Turner's amendment was meant fairly, but thought it might hinder development; and he moved an amendment providing that notwithstanding anything in the Constitution, “such laws [i.e., federal trade and commerce laws] shall not have the effect of preventing the development of the internal resources of any State.” This, after discussion, he modified to provide that “Nothing in this Constitution shall prevent the imposition of such railway rates by any State as may be necessary for the development of its territory, if such rates apply equally to goods from other States.” Sir George Turner and Mr. Isaacs were willing to accept this if it were worded as an instruction to the Federal Parliament, instead of being left to the High Court. They did not wish to prevent rates which were honestly developmental, but insisted that this was a political question, and that Parliament was the proper tribunal. The question now was practically which of the three tribunals should be adopted: the High Court, the Parliament, or—as a compromise between the two— the Inter-State Commission. At last the amendments were withdraw, and Mr. Grant (p. 1506) moved his proposal in the form of a new clause. Sir George Turner moved to insert “in the opinion of the Parliament.” Mr. Holder, however, proposed to substitute “Inter-State Commission” for “Parliament,” and this was agreed to on the voices. The clause in this form was carried by 22 votes to 21. (Conv. Deb., Melb., pp 1410–1510.)

On the second recommittal a redraft of the clause was carried. (Conv. Deb., Melb., pp. 2392–3.) After the fourth report further drafting amendments were made.

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