Two methods of altering the law in order to place the Commission on a proper legal basis have been suggested; one method involving an alteration of the Constitution; the other method not involving any alteration.

The alteration of the Constitution necessary in order to restore to the Commission the powers and functions intended by Parliament would be by amending the Constitution, section 71, giving the Commission a limited right to exercise "judicial power." The other method would be that Parliament should create a Federal Court under the Constitution, section 71, having jurisdiction to maintain the Commerce laws of the Commonwealth, but such Court would have to be composed of members appointed under the good behaviour and life tenure conditions provided by section 72.

Parliament may forbid preferences by State.

102. The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference173 or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission.

§ 173. "PARLIAMENT MAY FORBID PREFERENCES OR DISCRIMINATIONS.”

LEGISLATION.

INTER-STATE COMMISSION ACT 1912, Sections 18, 19.

Carrying Rates to be Reasonable.

All rates fixed or made by any common carrier for any service rendered in respect of inter-state commerce or which affect interstate commerce, shall be reasonable and just, and every such rate which is unreasonable or unjust is hereby prohibited.

No undue Preference on State Railways.

It shall not be lawful for any State, or for any State railway authority, to give or make upon any railway the property of the State, in respect of inter-state commerce, or so as to affect such commerce, any preference or discrimination which is undue and unreasonable, or unjust to any State. In deciding whether a lower charge or difference of treatment constitutes, within the meaning of this section, a preference or discrimination which is undue or unreasonable, or unjust to any State, the Commission shall have due regard to the financial responsibilities incurred by any State in connection with the construction and maintenance of its railways.

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

No undue Preference by Common Carriers.

No common carrier or State authority, other than a State railway authority, shall, in respect of inter-state commerce, or so as to effect such commerce make or give any undue or unreasonable preference or advantage to any particular person, State, locality, or description of traffic; or subject to any particular person, State, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage.

Proof of Undue Preference.

Whenever it is shown that any common carrier or State authority, other than a State railway authority, in respect of inter-state commerce or so as to affect such commerce-charges to any person or class of persons or to the persons in any locality or State, lower rates for the same or similar goods, or for the same or similar services, than the carrier or authority charges to other persons or classes of persons, or to the persons in another locality of State; or makes any difference in treatment in respect of any such persons, the burden of proving that the lower rate or difference in treatment is not an undue or unreasonable preference or advantage shall lie on the common carrier or authority.

In deciding whether a lower rate or difference of treatment constitutes an undue preference, the Commission may, as far as it

thinks reasonable, in addition to any other circumstances affecting the case, take into consideration whether the lower rate or difference of treatment is necessary for the purpose of securing, in the interests of the public, the traffic in respect of which it is made and whether the inequality cannot be removed without unduly reducing the rates charged to the complainant.

Commissioners' appointment, tenure, and remuneration.

103. The members of the Inter-State Commission-174

(i.) Shall be appointed by the Governor-General in Council:

(ii.) Shall hold office for seven years, but

removed within that time by the GovernorGeneral 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.

§ 174. "INTER-STATE COMMISSION."

LEGISLATION.

INTER-STATE COMMISSION ACT 1912.

Organization.

The Commission consists of three members, of whom one must be of experience in the law. It is a body corporate, with perpetual succession and a common seal, and capable of suing and being sued.

The Governor-General is authorized, as soon as conveniently practicable, to appoint three persons to be Commissioners, and on the happening of any vacancy in the office of Commissioner the

Governor-General shall appoint a person to the vacant office. Every such appointment, subject to the Constitution, is to be for a term of seven years; and every person so appointed is, on the expiration of his term of office, eligible for re-appointment. In case of the illness, suspension, or absence of any Commissioner, the Governor-General may appoint a person to act as a Deputy Commissioner during the illness, suspension or absence, and the deputy, whilst so acting, has all the powers and performs the duties of a Commissioner;

One of the three Commissioners is to be Chief Commissioner, and on the happening of any vacancy in the office of Chief Commissioner the Governor-General appoints a person to fill that office. In the case of illness, suspension, or absence of the Chief Commissioner, the Governor-General appoints one of the other Commissioners to act as Chief Commissioner during the illness, suspension, or absence.

The Chief Commissioner receives a salary of £2,500 a year, and each of the other Commissioners receives a salary of £2,000 a year. There is also paid to each Commissioner on account of his expenses in travelling to discharge the duties of his office, such sums as are considered reasonable by the Governor-General.

The Governor-General may suspend any Commissioner from office for misbehaviour or incapacity.

A Commissioner who has been suspended is restored to office, unless each House of Parliament within forty days after the statement has been laid before it, and in the same session, passes an address praying for his removal on the grounds of proved misbehaviour or incapacity.

The Commission may hold sittings in any part of the Commonwealth in such place or places as it may deem most convenient for the transaction of its business or proceedings. The Chief Commissioner shall preside as chairman at all meetings of the Commission at which he is present, and in his absence the senior Commissioner present shall preside as Chairman.

For the conduct of business any two Commissioners constitutes a quorum, and have all the powers of the Commission. At a meeting of the Commission the decision of the majority prevails.

The Commission was duly constituted on 11th August 1913 when Messrs. A. B. PIDDINGTON, K.C. (Chief Commissioner), Hon. GEORGE SWINBURNE and N. LOCKYER, I.S.O.. were appointed.

Saving of certain rates.

104. Nothing in this Constitution shall render unlawful any rate 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 State, and if the rate applies equally to goods within the State and to goods passing into the State from other States.

Taking over public debts of States.

105. The Parliament may take 175 over from the States their public debts [as existing at the establishment of the Commonwealth], or a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof; and the States shall indemnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable to the several States, or if such surplus is insufficient, or if there is no surplus, then the deficiency or the whole amount shall be paid by the several States.

§ 175. "TAKE OVER FROM THE STATES THEIR
PUBLIC DEBTS."

Constitutional Amendment.

In 1910 a majority of the people voting in the majority of States affirmed a proposed law for an amendment of the Constitution. section 105, by omitting therefrom the words as existing at the establishment of the Commonwealth." This removed a limitation

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