House of Representatives
31 May 1904

2nd Parliament · 1st Session



Mr. Speaker took the chair at 2.30 p.m., and read prayers.

page 1673

QUESTION

PREFERENTIAL RAILWAY RATES

Mr HUME COOK:
BOURKE, VICTORIA · PROT

– Is the Minister of Home Affairs in a position to have circulated the report of the Inter-State Conference of Railways Commissioners on preferential railway rates?

Mr BATCHELOR:
Minister for Home Affairs · BOOTHBY, SOUTH AUSTRALIA · ALP

– The report of the Inter-State Conference of Railways Commissioners must necessarily be placed before the respective States Governments, and considered by them, before any publica-‘ tion of its contents can be made. At present it must be considerd as confidential.

page 1673

QUESTION

MILITARY CYPHER CABLEGRAMS

Mr CROUCH:
CORIO, VICTORIA

– Is the Prime Minister able to make a statement as to the position which the Government propose to assume in regard to the use of the secret military code by Major-General Hutton in his communications with the Imperial Authorities?

Mr WATSON:
Prime Minister · BLAND, NEW SOUTH WALES · ALP

– I anticipated a question upon the subject, and am therefore prepared with a statement. I desire to preface my remarks with the explanation that the dispute between the General Officer Commanding and the Department of Defence arose during the term of office as Minister of Defence of the honorable member for Eden-Monaro. On receipt of a claim by the Defence Department from the Deputy Postmaster-General, for payment for the despatch of a cablegram from General Hutton to “ Troopers,” London, a request was sent that a copy of the cablegram in question should be attached, to enable the account to be pissed for payment. A copy of the cablegram - in code - was sent, and the General Officer Commanding was then informed that the Minister - the honorable member for EdenMonaro - wished to be furnished with . a decoded copy of this cablegram if it was “on service.” The General Officer Commanding replied -

The cablegram was on service, but I am not prepared to furnish a copy of a confidential communication .to the Secretary of State for War.

The Minister then minuted the papers -

If this telegram was in connexion with Commonwealth Defence, a copy, should be furnished confidentially to the Minister.

To this the General Officer Commanding replied to the Secretary of Defence -

I shall bc obliged if you will inform the Min.ister that, in accordance with secret instructions I have received, together with the cypher code referred to, I am not at liberty to give to the Minister, even confidentially, a transcription of the code. It is hardly necessary to remark that if I did so, it would be practically divulging the secret code which was sent to me for my use in communications direct to the War Office. The code in question is issued to General Officers Commanding only.

Then a change of Government occurred, and the matter came before my honorable colleague the present Minister of Defence, Senator Dawson, who wrote the following minute : -

In pursuance of previous correspondence, it is observed that the General Officer Commanding is not asked for the cypher code ; he is only asked, -if this communication was in connexion with Commonwealth Defence, to furnish the Minister, confidentially if necessary, with a decoded copy. I am not cognisant of any secret instructions that the General Officer Commanding may have received from the War Office ; but if these instructions cither require or permit of an officer holding the position of the General Officer Commanding, and directly responsible to this Government with regard to the Defences of the Commonwealth, communicating officially and confidentially with the Imperial Government without the cognisance of the Minister, I consider that :i representation should be at once made to the Secretary of State that will put an end to so anomalous a position. The right of the Minister to insist that all official communications ns regards the defence of the Commonwealth shall be submitted to him cannot for a moment be questioned.

That minute was sent confidentially and directly - that is, without the intervention of a third party - to the General Officer Commanding. I regret that, although in the opinion of Ministers the matter had not then reached a stage at which it was desirable to make public information regarding it, and although the Minister of Defence had directed that nothing should be made public, a garbled statement of the affair appeared on the 23rd May in one of the Melbourne newspapers. I admit that parts of that statement were correct, but other parts of it were incorrect. Had it not been for this premature publication, the Ministry would not have taken steps towards getting an immediate explanation from General Hutton, because the matter, although important, was not sufficiently so to warrant us in bringing him away from Queensland, where he was engaged upon work previously mapped out for Kim. But this premature publication - the source of which the Minister is now endeavouring to trace - having occurred, the Cabinet thought it wise to ask the General to come at once to Melbourne to explain the whole of the circumstances. We felt that, as so much had leaked out, the whole truth. should, as soon as possible, be communicated to Parliament and to the public The Minister of Defence and I therefore had an interview with Major-General Hutton yesterday afternoon relative to the latter having sent a cypher cable to the Imperial War Office without the authority of the Minister of Defence. Major-General1 Hutton explained that he had refused to give .a decoded copy of the cablegram in question, because that would have enabled any one to interpret the secret cypher code, but he now saw no objection to informing me of the purport of. the message, the effect of which was to acknowledge receipt of a copy of the new cypher as just issued by the War Office. I think there is some justification for the General’s contention that any one, by comparing the actual wording of the decoded message with the cypher which had already been sent to the Department, might be able, with the exercise of great patience, to interpret the cypher itself.

Mr Crouch:

– Only if it were verbatim.

Mr Deakin:

– The cypher message could have been withdrawn.

Mr WATSON:

– Although the late Minister of Defence asked for a decoded copy of the message, the noncompliance with that request by the

General need not have prevented him from stating its general purport, which I dare say would have satisfied the Minister. It will be seen that the message in itself was not an important one, and the General has since furnished me a copy of it for my confidential information. Of course, I am not at liberty to make that copy public, nor do I think it should be made public. The General was asked whether, on reflection, he considered that the message so far concerned Australian affairs as to justify our paying the cost, and said he had arrived at the conclusion that it did not, and that the War Office should pay for it. I think no further action need be taken, but must express my regret that Major-General Hutton did not see his way to disclose the general tenor of the message to the Minister of Defence when first asked for a decoded copy, as that course would have prevented further misunderstanding. Then, again, the Major-General committed an error of judgment in asking the Commonwealth to pay the cost of a message of which we knew nothing, and which did not even concern Australian affairs. I regret that this matter should have received premature publicity, and think that the Minister of Defence should take all possible steps to ascertain under what circumstances confidential papers were disclosed to the public press without his authority. I may say generally that in my view the action of the late Minister of Defence and of my colleague who presides over that Department was fully justified. When they were asked to pay for a cable sent to England the presumption was that it related to a matter of Australian concern ; otherwise we should not have been asked to pay for it. When we were so asked to pay, we should at the same moment have been informed in some way or other as to the wording of the message, or, at least, as to its purport. I regret that the General, by answering only technically the question put to him, instead of dealing with it in its general sense, has led to a certain amount of misunderstanding on the part of the House, and, for the time being, of Ministers. However, I do not think that there is any likelihood of anything of the kind cropping up again.

Mr CROUCH:

– I suppose I may not be permitted to say that, in my opinion, the Prime Minister’s statements not satisfactory.

The SPEAKER:

– The honorable arid learned member is not in order in making a remark of that kind at this stage.

Mr CROUCH:

– I should like to ask a further question with regard to two matters which are dealt with in the statement of the Prime Minister. He stated that reference was made by Major-General Hutton to communications made by him direct to the War Office, and to secret instructions received by him from the War Office. I desire to ask thePrime Minister whether he thinks that Major-General Hutton should have in his possession a cypher code from the War Office which would enable him to receive communications or instructions direct from the War Office without the knowledge of the Minister, and whether he knows of anything in connexion with the duties of the General Officer Commanding which necessitates instructions being given to him apart from those which are conveyed through the Minister in charge of the Department ?

Mr WATSON:

– Perhaps, in justice to the General Officer Commanding, I should explain the circumstances under which the cypher code was sent to him. I should have done this earlier, but I had not time to compile a statement of so complete a character as I desired. As I understand it, all General Officers Commanding throughout the Empire are furnished with a cypher code, so that they may be consulted in regard to any Imperial matters that may crop’ up. I asked the General to indicate the shape such matters might take, and he instanced the case of a militarv expedition being sent to some part of the Empire, or to some place outside its borders, to which supplies could most easily be sent from Australia. The War Office would then have an opportunity to communicate in cypher with the officer commanding our forces as to the easiest wav in which supplies could be forwarded, or as to the conditions under which they could be obtained in the Commonwealth. . These cypher codes are issued to every General Officer Commanding throughout the Em pire, and are used primarily upon Imperial business. As such, I do not see any objection to their existence. I think, rather, that we have a sufficient common interest in the concerns of the Empire to induce us to permit of the knowledge possessed by any of our officers being given to the War Office at the earliest possible moment; especially when it relates to matters that are not particularly Australian, but are rather directly Imperial.

Mr McDonald:

– Are we to play a secondary part to Imperialism?

Mr WATSON:

– I do not say so at all. Mr. McDonald. - It seems ‘very much like it.

Mr WATSON:

– The question does not present itself to me in that way. My view is that there is no objection to an Imperial officer being asked to give an expression of opinion upon a matter that has nothing to do with Australia when the War Office requires him to do so. If it were an Australian matter - and that is the point which the late Minister of Defence and the present Minister have taken up - if the cable sent were upon Australian business, we should be made acquainted with the whole of its contents.

Mr HUME COOK:
BOURKE, VICTORIA · PROT

– Does not the Prime Minister think that the General Officer Commanding ought to give all his services to the Commonwealth which pays him?

Mr McDonald:

-1- And not act as a spy amongst us?

Mr WATSON:

– If I believed that his services to the Commonwealth were likely to be interfered with to any appreciable degree by his being asked to give information of this kind, I should think it proper to object. But I do not anticipate that the supplying of information to the War Office, perhaps once in five years, upon a particular subject that may crop up at the moment, should materially interfere with the services which such an officer might be expected to give to the Commonwealth.

page 1676

PAPERS

Mr. BATCHELOR laid upon the table the following paper: -

Amendment of Regulation 172 under the Public Service Act, relating to Life Assurance, dated 4th May, 1904.

The Clerk laid upon the table the following paper: -

Return to an Order of the House, dated 26th May, 1904, relating to travelling expenses of Hie General Officer Commanding and State Commandants.

page 1676

CONCILIATION AND ARBITRATION BILL

/// Committee (Consideration resumed from 21st April, vide page 12.44):

Clause 4 -

In this Act, except where otherwise clearly intended - “ Industrial dispute “ means a dispute in relation to industrial matters -

arising between an employer or an organization of employers on the one part and an organization of employes on- the other part, or

certified by the Registrar as proper in the public interest to be dealt with by the Court, and extending beyond the limits of any one State, but does not include a dispute relating to employment in the public service of the Commonwealth, or of a State, or to employment by any public authority constituted under the Commonwealth or a State. . . .

Which had been amended, on motion by Mr. Fisher, by the omission of the following words : - “ But does not include,” lines 12 and 13.

Mr WATSON:
Treasurer · Bland · ALP

.- I move -

That the words “ including disputes in relation to employment upon State railways “ be inserted after the word “ State,” line 12.

Honorable members will see from the amendment of which I have given notice that we propose, after this amendment is disposed of, to insert other words which will supplement the provision. Our idea is to keep the questions which honorable members will have to decide as distinct as possible, because it seems to me that it would be very unfortunate if, because of any misconception on the part of honorable members, or because of any conflict of interest or opinion as to how far the amendment should be dealt with, we were not able to ascertain the feeling of the Committee in respect to each particular provision. Therefore I propose to put forward an amendment relative to the railway employes clearly and distinctly, thus avoiding the complications that might ensue if additional provisions were included within the amendment.

Mr Deakin:

– The Prime Minister proposes to move the amendment in two parts ?

Mr WATSON:

– Yes. After the very full and elaborate discussions which took place upon the general proposal to include within the provisions of this Bill the public servants of the Commonwealth or of any State, I do not think it is necessary to indulge in lengthy argument as to the reasons which actuate the Government. This matter was debated upon two occasions, on each of which it received full consideration at the hands of nearly every honorable member. Therefore I do not propose to traverse the whole ground-work of the arguments which, in our view justifies the Government in the action which they intend to take. We are . told that in confining the present proposal to railway employes and to public servants who are engaged in indus- tries that are carried on either by the Commonwealth or by a State, we are not giving effect to our own ideas upon the subject. So far as that is concerned, I would point out that the whole effect of the vote recorded in this House was merely to create a blank which would permit of subsequent action being taken in the direction of inserting a provision that would” specifically include public servants, or some of them. The opinion which I have all along entertained - and the view of the party which is associated with the Government - is that we should include within the provisions of this measure every person in Australia, if that can be done whilst observing the preliminary conditions which are laid down by the Constitution. In other words, if a strike occurred which extended beyond the boundaries of one State or more, it would be preferable - if we are to reap the fullest possible benefit from a measure of arbitration - that it should include every person who might be concerned in such a dispute. But in this connexion we are bound to observe the conditions which are laid down by the Constitution itself. While we believe that, as a matter of expediency, we are justified in proceeding to the fullest possible extent in this regard, in order to avert such a disaster as a general strike in any of these avenues of employment, we quite recognise that we must observe the Constitution according to the interpretation which we ourselves place upon it. In this instance we have the assurance of the AttorneyGeneral, whom we know to be fully in sympathy with the general idea of extending the provisions of this Bill to the State servants, that, while under sub-section xxxv. of section 51 of the Constitution we are justified in making the measure applicable to all persons who may be engaged in industries, or who may be classed as industrial servants of the Commonwealth or of a State, we have no power to include those who are not distinctly associated in their employment with some industrial form of enterprise. I have a further reason for believing that that interpretation is correct, in that it was advanced some time ago by another legal member of this Chamber, who is also known to be in sympathy with the general principle of including, at least, some of the States servants within the provisions of this Bill. I refer to the honorable and learned member for Darling Downs. The speech which he delivered in the House in September last, when the Bill was pre viously under discussion, impressed me very much, and especially his interpretation of that particular sub-section of the Constitution which affects our right to include within this measure other than industrial servants of the Government. In answer to an interjection, I then expressed a doubt as to whether we had power to make the Bill applicable to persons who are engaged in branches of the State and . Commonwealth services where clerical labour only is involved. Having expressed that doubt some time ago, it seems to me that we are not open to the charge which was levelled against us by the honorable member for North Sydney - the charge that we are trimming our sails at the present lime to catch a favouring breeze. If there is in the mind of the Attorney-General a ci.fc.ir conviction that under the Constitution we are not able to go further than we now propose, it is surely a reasonable proposition that we should proceed at least that far. Of course I can quite understand the disappointment and chagrin of those honorable members who do not desire to see any provision of this character inserted in the Bill. From them we can expect no support other than that which is calculated to damn the whole measure. Their desire is that by proceeding to extremes we shall enact something which will defeat the general idea of including any public servants within its scope. On the other hand, those who favour making the Bill applicable to State servants are under a very heavy responsibility to the electors outside. A great majority of the people through their representatives at the last election, unmistakably pronounced in favour of including within the provisions of .this Bill the public servants of the States. Surely it is due to them that we should take no step which will imperil in the slightest degree the legitimate inclusion of as many of the public servants as the Constitution will permit. If we take any course other than that, we shall be acting most unfairly to that section of the community which asks us to go as far as the Constitution will allow, and which will be highly dissatisfied if we take any steps that result in disaster from their point of view. As to the general position, we have been told since the matter was previously before the Committee, that the decision of the High Court in the case of D ‘Emden v. Pedder - the Tasmanian stamp case - practically ruts the ground from under the feet of those who advocate the inclusion of States servants within the provisions of this Bill.

Mr Robinson:

– Is not that what the Attorney-General was arguing in the Supreme Court, both yesterday and to-day ?

Mr WATSON:

– Certainly not.

Mr Deakin:

– Besides, whatever the honorable and learned member for Northern Melbourne may have said in the Supreme Court was not uttered in his capacity as Attorney-General.

Mr WATSON:

– I have no hesitation in’ saying that the Attorney-General has never argued in that way, and the honorable and learned member for Wannon should be the last to accuse him of so doing. The view which is urged by our opponents in this matter is that if the High Court follows the general trend of American interpretation in regard to the Constitution, it is bound to hold that this proposal is equivalent to an attempt to levy taxation upon the States, and is therefore unconstitutional. I have read that judgment very carefully, and although I do not pretend to be possessed of any . legal knowledge, and consequently am not the best authority as to whether my idea in this regard is correct, I have been impressed by the’ fact that the Chief Justice made a very important reservation. He said that in interpreting a matter of general principle, a question of whether a State had a right to tax the Commonwealth, they could not leave out of sight the accumulated decisions - the accumulated wisdom - of the various Judges of the Supreme Court of the United States in construing - bear in mind - precisely, or almost precisely, similar provisions. There arises a clear distinction between the case which the High Court was then determining and the hypothetical case with which we are now concerned. In the matter under discussion, it seems to me that the High Court was constrained, I do not say to rely on, but to very largely follow, the American decisions on similar questions, because the provisions of the two Constitutions are in this respect very much alike. But the Chief Justice was careful to safeguard himself against the idea that he was bound in all cases by the decisions of the Supreme Court of the United States. He said -

So far, therefore, as the United States Constitution and the Constitution of the Commonwealth are similar -

I wish honorable members to bear that point in mind - the construction put upon the former by the Supreme Court of the United States may well be regarded by us in construing the Constitution of the Commonwealth, not as an infallible guide, but as a most welcome aid and assistance.

I contend that the section upon which we rely in proposing the inclusion of Statesservants is very dissimilar from anything contained in the Constitution of the United States. It is true that, as the honorable and learned member for Darling Downs has contended, the Supreme Court of the United States has acquiesced in the passing of laws by the Federal Government, under the general authority conveyed by the section of the Constitution relating to trade and commerce, interfering apparently very largely with the rights of the States, at all events, as at one time understood. Whilst that acquiescence, in my opinion, constitutes an argument in support of the contention that the High Court here should adopt a similar line in interpreting the trade and commerce section of our Constitution and give extended powers to the Commonwealth in order to insure that effect shall be given to the spirit of the Federation - the general underlying agreement that Federal matters should predominate over those of purely local concern - yet the provision on which we rely is altogether distinct and dissimilar from anything in the Constitution of the United States.

Mr O’Malley:

– The last decision given by the Supreme Court of the United States was an invasion of States rights.

Mr WATSON:

– That may be, but I do not wish to identify myself with those who favour any invasion of States rights. I hold that we are entitled to claim only that which the people of the States in their corporate and individual capacity agreed to. By means of the referendum they accepted a Constitution for the Commonwealth which contains the provision on which we rely, and by doing so they gave up their State right, handing it over to the larger and more representative body which now controls the affairs of Australia. It is because there is no such provision in the Constitution of the United States, because there is nothing in their Constitution which deals directly, with conciliation and arbitration for the prevention and settlement of industrial disputes, that I contend that the decisions of the United States Court are not applicable to the circumstances which exist in the Commonwealth. I submit, therefore, that whilst the decision of the High Court in the Tasmanian stamp case is a highly important one, and in regard to the distinct provision which it interpreted, has a large influence on various phases of the relations between the States and the Commonwealth, it does not in the slightest ,. degree trench upon the argument of those who favour the inclusion of States servants within the provisions of this measure. Those who oppose the present proposal urge that States servants have a tribunal in the Parliaments of the several States to which they can appeal, with the certainty that any great evil or grievance under which they suffer will be redressed. We know that, theoretically, Parliament is an institution that can redress every evil arising, at all events, from legislative acts. I personally think that it can go much further, but all will admit that it can at least redress evils arising from Acts of Parliament. Whilst, theoretically, it certainly has that power, we know that in the great majority of cases, it is almost impossible for it to exert its influence in relation to details because of the continual pressure of larger questions upon those who constitute it. It is unreasonable to imagine that an elephant should always be used to pick up a pin or a steam hammer to crush a nut, and not one of us expects that Parliament can always be devoting itself to the work of redressing grievances that may exist as between its employes and itself. A number of Parliaments have recognised that, in the circumstances, they cannot effectively carry out that duty. The Parliament of New South Wales, for instance, has dalegated its authority to redress grievances as between itself and its employes, as well as between private employes and employers, to an outside body working under its commission. It has constituted an Arbitration Court, with power to step in, so far as the industrial branches of Government employment are concerned, and to determine what are fair hours, wages, and conditions of labour. The Court has power to deal with the employes of the railway service, the Water and Sewerage Board, the Harbor Trust, and’ other persons of that description. It has, from first to last, recognised that, whilst it possesses the power to deal with these questions, it is undesirable to exercise that detailed authority which is inherent in 11 s constitution. The Legislature of New Zealand has adopted a very similar course. It has included within the jurisdiction of the local Arbitration Court quite a number of employes of these classes, who, whilst actually working for the Government are nominally under the control of Commissioners and other public authorities. The general deduction that I wish to draw from these facts is that, while Parliaments have the power to redress grievances of this kind, they have recognised in many instances that the power can be better exercised by delegated authority. In applying that position to the proposal now before the Committee, we have to recollect that, in the case of a strike which extended beyond the boundaries of any one State, a condition would be set up which no single State Legislature could remedy. No individual State Parliament could step in and say - “This strike shall’ cease,” because a number of those who were participating in the dispute would be outside the authority and jurisdiction of any State Parliament. We contend that; under sub-section xxxv. of section 51 of the Constitution, the Federation has been endowed with authority to legislate in respect of any dispute, whether it be a dispute between a State and its employes, or one between a private individual and his workmen, so long as the first condition is observed - that is, so long as the dispute has extended, or, in regard to prevention, is likely to extend, beyond the boundaries of the State in which it originated. If that contention by correct, surely there is ‘no invasion of the rights of any State, and we are justified in taking what seems to be the plain reading of the sub-section itself, which states that we have power to legislate with regard to conciliation and arbitration for the prevention and settlement of any industrial dispute extending beyond the boundaries of any one State. The sub-section contains no restriction, either expressed or implied, and consequently we- contend .that so long as there is an industrial dispute, and so long as it extends, Dr, in regard to prevention, is likely to extend, beyond the boundaries of the State in which it originated, this Parliament has the power to interfere, and that our proposals are, therefore constitutional, and involve no inroad on the rights of any State. There is only one other point I desire to direct attention to, and that is the amendment of which the honorable and learned member for Corio has given notice, and in which he proposes to strike some words out of ‘our proposal, with a view to the inclusion of all public servants in the Bill. I take it at once that he has no desire to imperil the inclusion of railway servants in the Bill, and I therefore think that it would be well for him to consider the propriety - he may have considered it, but, if not, I would ask him to do so - of putting that proposition distinctly from the proposition I now submit. There is nothing to prevent his proposition from being brought forward by itself, and voted on clearly and distinctly, quite free from any complications. But if it is submitted, as he proposes, as an amendment to our proposition, he will distinctly imperil the . chance of the railway servants being included in the Bill. That, I am sure, is not what he is aiming at.

Mr Crouch:

– I do not think itwill have that effect.

Mr WATSON:

– I would draw the attention of the honorable and learned member to the fact that on the last occasion there was a number of honorable members - it is no secret, because they candidly stated their views - who were against that portion of the amendment which sought to include State servants in the Bill. They were against the inclusion of any State servants in the Bill, and yet they voted the whole hog. With what object? Merely for the purpose of bringing about a political crisis. They frankly stated that they had no intention at a later stage of voting for any such proposition.

Mr Mcwilliams:

– Is not that what the honorable and learned member for Ballarat told the honorable gentleman that he was doing in seeking to include all public servants - that he was jeopardising the Bill?

Mr WATSON:

– Quite so; but unfortunately we had appealed to the country against the late Prime Minister on the question of whether-

Mr Deakin:

– It was “unfortunately.”

Mr WATSON:

– Well, unfortunately for the view which the honorable and learned member is putting forward. We had appealed to the country on that point, and could not with any semblance of honour have gone back on our pledges to our constituents.

Mr Crouch:

– I appealed to my constituents on the question of including all public servants in the Bill, and I cannot, in honour, go back on my pledges.

Mr WATSON:

– I do not ask the honorable and learned member to do so; but I. do ask him as one who”, with the members, of the present Government, honestly believed in the course they were taking, as one who was not anxious to kill the Bill, or to throw out the late Government, but only to do the best to fulfil his pledges to his constituents - I ask him to consider whether it would not be wise for him to put his amendment in such a form as not to imperil this proposition for the inclusion of railway servants. I do’ not ask him to go back on his pledges. That is a thing which, in my view, no Minister should ask an honorable member to do, and I for one would not do so. The honorable member for Franklin will recognise that there is a large distinction between the honorable members to whom I have just been referring and the members of the present Government, because the former voted admittedly for something in which they did not believe, while we were on this side voted for something in which we did believe.

Mr Mcwilliams:

– The Labour Party voted to include all State servants.

Mr WATSON:

– Certainly. Technically speaking, we voted for the creation of a blank in the clause, but I admit that the argument was all on the question of whether public servants should be included in the Bill, and I would prefer to see all public servants included. While I do not anticipate that, in regard to the clerical branches, there is likely to be any great need to call for the interference of a Court of this description, at the same time I think that the general proposition to give the advantage of this measure to all sections of the community is unanswerable. But there, again, I feel that we are bound not to imperil the chance of success for those most likely to be affected when the question comes to be interpreted by the High Court at a later stage.

Mr O’Malley:

– We can put in the amendment of the honorable and learned member for Corio separately.

Mr WATSON:

– It can be put from the Chair without imperilling the inclusion of railway servants in the slightest degree, and allowing every honorable member to vote according to how he feels on the subject. I do not propose to make any further remarks at this stage. I am informed that Mr. Speaker has just received an important communication which he wishes to announce to the House, and therefore I ask the Committee to consent to report progress, with a view to resuming its proceedings in a moment or two.

Progress reported.

page 1680

NEW MEMBER

Mr. SPEAKER informed the House that he had received a return to the writ issued for the election of a member to serve in the House of Representatives for the electoral division of Riverina, in the place of Robert Blackwood, Esquire, unseated, indorsed with a certificate of the election of John Moore Chanter, Esquire.

Mr. CHANTER made and subscribed the oath of allegiance.

page 1681

CONCILIATION AND ARBITRATION BILL

In Committee (Consideration resumed).

Mr DEAKIN:
Ballarat

– So far as concerns the members whose views I share in regard to this question, it is perfectly immaterial whether the proposal is to introduce within the scope of the Bill all the public servants of the States, or ihe railway men only, or half-a-dozen members of the Public Services. The stand-point from which we view the proposal is wholly one of principle. We say that, to whomsoever the proposal relates, it is a deadly wound to the self-governing powers and prestige of the States. It may not be “as deep as a well or as wide as a church door,” but it will do. If once the power is given the States Governments and Legislatures, and their electors, considered as State electors, will be deprived once and for all of the most essential power of managing their own affairs. Under those circumstances, sir, it is not with us a question as to whether the States can or cannot, but as to whether, under any circumstances, the States either can, or ought to be, asked to submit the control of their employes - the control of the means and agencies by which they carry on their Government - to the decision of a Court appointed by another body. The Prime Minister truly says that each State possesses the power - and some of the States have exercised it - of placing some or all of their public servants under the control of a tribunal appointed by the States concerned. That is indisputable. We have reason to believe - I think we have reason to hope - that at no distant period every State in Australia will have so provided. What the Prime Minister says as to the inconvenience of allowing matters of this sort to await the leisure of Parliament, or the convenience of Governments, is perfectly true. But that is an argument primarily addressed to the States themselves, who have it within their authority, if they think fit, to create some tribunal which will discharge the duty of dealing with disputes that arise between their employes and those who are in authority over them.

Mr Watson:

– That is, within their own borders.

Mr DEAKIN:

– Only as to those disputes which occur within their own territories, naturally. But they have that power, and some of them have already exercised it. All of them have exercised it to this extent - that they have, in the Public Service Acts of the States, made provision for Boards of Inquiry of one kind or another. Then there is always an appeal to the Public Service Commissioner or Commissioners; there is sometimes an appeal also to the Minister or to the Government of the day; and, finally, there is always in the last resort an appeal to the highest Court of all, the Parliament of the State, from whom these men receive their salaries or wages, and under whose regulation they carry on their work. When two or more contiguous States’ have appointed authorities of this character, even although the dispute overflows - taking the instance which the Prime Minister hasjust submitted - there is only the difficulty of dealing with it involved’ by its calling into play two authorities instead of one. The State from which it overflows has, or may have, the power of dealing with that dispute within its own borders. If the dispute overflows into another State similarly equipped, the other State is perfectly competent to deal with that part of it which happens in its own territory. Consequently, no injury, except that of having two authorities, can result from dealing separately with a similar dispute, as it affects two different bodies of men.

Mr Higgins:

– One authority may lean one way and the other may lean another way.

Mr DEAKIN:

– That is always conceivable where there are two tribunals. It is a contingency which ought to be avoided whenever possible. But it is not vital in the highest degree. My honorable and learned friend is perfectly well aware that from time to time the Courts of Justice of the various States decide in one State in one way and in another State - sometimes even in the same State - in another way.

Mr Higgins:

– It is very unsatisfactory, especially when dealing with the same facts.

Mr DEAKIN:

– It is unsatisfactory, and it is to be prevented whenever possible. But in this particular .case there is not the same risk that confronts us in ordinary litigation. And after all it is to be remembered that the choice is not - as has been put by implication - between this method of dealing with a strike that overflows from one State to another, and no method, but between this more effective and advantageous method of dealing with such disputes, and another method less effective and advantageous, but which may suffice. It is not necessary to labour the point except to that extent. I do not propose to-day to repeat the remarks which I have already made in connexion with this subject. Few men, even in this House - none I think - have been called upon to treat it so exhaustively. On the first occasion when the subject was first placed in my hands, most of the time allotted to me was occupied’ in the discussion of the main principles - the main, social considerations - which in my opinion justify and call for the establishment of industrial Court’s of Arbitration. In addition to that, I dealt with the two specific points that were then at issue - that is to say, our constitutional authority over seamen on ships other than Australian ships or other than British ships which are included within the scope of the Constitution; that was the one point. The other related to the very matter which we are now discussing. It fell to my lot to move the second reading of this Bill again this year. On that occasion I- approached more closely the great measure which is now before honorable members, dealing once more with the subject of the amendments of which Ministers have given notice. On that occasion again - or rather on that occasion for the first time - it became my duty to ask the House to consider more fully our constitutional power, not only in regard to the public servants, but in ‘regard to the measure generally. For during the time that had intervened the closest scrutiny and further consideration had satisfied me that, while- we acted wisely in accepting the draft of this measure made by the honorable and learned member for Adelaide, whose absence we still unhappily regret - that while we acted wisely in adopting his draft which provided for the utmost possible exercise of the powers that sub-section xxxv. of section 51 of the Constitution can be held to give, it was quite probable that in the actual exercise of those powers we should find the area far less ample than he had implied, or, at all events, less ample than he had thought it necessary to provide for. It appeared to me, and still appears to me, legitimate for us to take it for granted that until an authoritative reading of all parts of the Constitution shall have been arrived at, we should, in dealing with a measure of the kind, do well to equip ourselves from the start, for all contingencies, having in view the utmost possible extent of the power with which we are dealing. I say this by way of warning against assumptions that the Bill as it stands is no more than, is required under section 51, sub-section xxxv. I have no other objection to offer now, when, for a third time, I am able to consider the measure, and under less official responsibility than heretofore, except with reference to the particular matter we have in hand. Here, it seems to me, we do distinctly trespass, not only beyond the clear and definite bounds of the Constitution, but we also trespass on a domain which” we ought not to be called on to enter, even if we had the power, except in the last resort. If we have the power, it appears to me that we should exercise it only when it becomes plain that some States have proved themselves recalcitrant, not merely to the public opinion of their neighbours, but to the public opinion within their own borders, and have deliberately set at defiance a movement which, the more we examine its nature and tendencies, will the more satisfy us that it proceeds in harmony with the main trend of legislation in modern times. If we possess thepower the Federal Parliament might, under these extreme and scarcely conceivable circumstances, be called upon to use it in thepublic interests. But from my stand-point, on no grounds narrower than those, or less urgent, should we be justified, even if we dopossess the power, in putting it into operation. Especially should we hesitate, at thisearly stage of our history, when subjectsraising feeling on both sides have already presented themselves - when the Constitution waits’ for that delimitation to which’ I once previously referred; a delimitation adopted in the case of rival nations withregard to territory to which both put forward a claim, especially should we hesitate,, while the delimitation has been accomplished for such a short distance and for such a small part of the great area over which the Federal law runs, in what is equivalent to a direct irruption intothe territory of the States. Though I have had opportunities of speaking, and have full v exercised those opportunities, as theposition I then held obliged me to do, I take it that the position I now hold does not release me from a similar obligation, so far as it appears to me possible to add anything: to the arguments which I have already addressed to the House. I propose, therefore, not to repeat myself to-day, but, none the less, by no means to stint the criticism which I shall offer, especially so far as that criticism has been affected by recent judicial decisions to which the Prime Minister has briefly and reasonably referred. I do not pretend to find in those decisions a solution of all our difficulty ; I do not pretend to find in them a direct. answer to the specific question here submitted. But I shall be prepared to maintain that the whole character and tendency of those judgments, affecting, as they do, closely analogous matters, do throw a great deal of fresh and valuable light on the problem which we are again called on to consider. During the remarks made at previous stages of the Bill, I have not hesitated to point out the innumerable difficulties by which any legislation of this character is necessarily surrounded. I have not failed to reiterate the statement that we are proceeding on practically new ground; that we are guided by a relatively veryshort experience, and are entering one of the most difficult spheres in which a Legislature can be called on to act, affecting, as that sphere does, the evervarying, ever-changing, ever-developing business operations of the community which we represent. Under all these circumstances, it is in the last degree advisable that we should proceed with caution, and that we should be prepared to find our most carefully thought out provisions more or less imperfect - that we should lay down for ourselves definitively, at the very commencement, the certainty that only by a series of tentative efforts and gradual experiments can we hope to tread this perilous path without accident. But,- at the same time, I freely admit that every fresh experience we have of the industrial operations of the day goes to impress on us more imperatively than ever the obligation which rests on thoughtful men to make some effort to cope, by pacific means, with industrial war - to avoid and overcome the violence which is being more and more openly displayed in cases of difference between employers and employed. If there is a country in the whole world to which we look for illustrations of the most progressive tendencies, and of the circumstances which are to be found associated with progressive tendencies to-day, it is the United States of America. So far as the rest of the world is concerned, that nation offers object lessons of what we may expect, and of conditions of affairs which we probably must reach in the very next steps we take. This is an industrial age, and the United States exhibits industrial operations on the greatest scale. That country magnifies for us events which among ourselves are comparatively small and unimpressive, and its lessons, some of which I quoted to the House a few weeks ago, should, it seems to me, as they reach us day by day, bear in upon the most doubtful mind - that is to say, the mind most doubtful of the benefits and issue of industrial legislation - the necessity for reconsidering our position. What is to be done when such a state of affairs exists as is to be found to-day in Colorado, according to a description which I found in this morning’s Age?

Mr O’Malley:

– They do not want conciliation or arbitration there.

Mr DEAKIN:

– On the contrary, I think they need it only too badly. This is the description to which I refer - “

The condition of affairs in Colorado, where, owing to the coal miners’ strike, civil authority has been set aside, and a military dictatorship substituted, seems to be going from bad to worse. The strikers show no signs of -giving way, and lawlessness is still so rampant, or so imminent, that the Governor has not been able to remove the iron heel of the soldiery. In some sections of the State business is at a standstill, and many persons totally unconnected with the quarrel have been ruined. At the present time, it is estimated that fully 300,000 men are arrayed on the one side or the other in the labour war in Colorado. The conflict has been exceedingly protracted, and the loss of the State up to date is conservatively estimated at£10,000,000. Many of the labour unions throughout the United States are supporting the Miners’ Union by contributions towards what they assert to be a fight for their constitutional rights as American citizens. The constitution of the State has practically been suspended. The military authorities in certain counties, particularly in the vicinity of Telliiride, have repeatedly evicted miners from their homes, and deported them by force to other portions of the State, where they have been maintained by the Miners’ Union. Many men are being kept in military prisons, which are known as “ bull pens.” In the mining district the process of the law and civil writs have been entirely superseded by martial law, and labour leaders have been ejected without recourse to the Courts. The conflict between the military and civil authorities, as described in a previous letter -

I suppose to the Age - adds to the seriousness of the situation.

Now, I suppose that, with the exception of the dreadful and disastrous conflict at present waged in Manchuria, all the world over there is no war so serious, judging by this description, as that which obtains to-day in Colorado, in time of peace, in a civilized country in the very forefront of the march of progress, and maintained by two conflicting bodies of its own citizens.

Mr Wilks:

– There is none so farreaching.

Mr DEAKIN:

– Nowhere else are there to be found 300,000 men pitted against each other in deadly strife - none the less deadly from being maintained purely as to the means and conditions of livelihood. What is happening in Colorado to-day may happen on a smaller scale in some Australian State in the future. The Legislature which, at all events, endeavours to provide in advance by reasonable and carefully considered means for the discussion, if it were merely the discussion of these questions, before an. impartial tribunal, has done much. The Legislature which can create a tribunal that, after an impartial discussion, commands public confidence in the wisdom and justice of its decisions, has taken a further step. Because, in these circumstances, and only in these circumstances it seems to me, can a civilized nation consent to employ the means based upon brute force which lie in its power, those forces of the community which it uses in the last resort, to defend itself from foreign aggression and invasion.

Mr Crouch:

– Is the honorable and learned gentleman not reminded by the description which he has read of the state, of affairs which existed in Victoria about twelve months ago, when over 1,000,000 persons were concerned?

Mr DEAKIN:

– I prefer at present to be reminded of Colorado only. We can discuss that without generating the same amount of electricity as might follow the consideration of what took place in Victoria. What has occurred on a great scale in Colorado we have seen on a smaller scale in Australia, and may yet see again.

Mr Wilks:

– The maritime strike.

Mr DEAKIN:

– Therefore, when honorable members of this House are. on the one side, criticising the cautious attitude I have adopted, and the warnings I have felt called upon to utter as to the necessity of proceeding with great care and deliberation, they must recollect on the other the concomitant opinion as to the consequences of the neglect of the endeavour to establish in the industrial .world a means for the judicial decision of disputes. We can now see the scale upon which they are capable of being conducted, and the terribly disastrous results that are certain to flow from them. Proceeding, therefore, with the firm conviction that we must undertake this task, and proceeding at the same time with the cooling reflection that it is a task which we cannot hope wholly to accomplish, and with which we can deal only in part and only by extreme circumspection, we arrive, it seems to me, at one of the great practical reasons which must weigh with honorable members of this House, whatever their attitude upon the constitutional question may be. They must realize that in our entry into this new industrial sphere, so rich in dangers of its own, so thick sown on every hand with floating contact mines-, such as are being found in the open sea beyond Port Arthur, it behoves us not to add to this measure any proposition which, in addition to all the industrial disadvantages which it maybring us into connexion with, assuredly will bring us into direct collision and, therefore, into war - a war legally waged, no doubt, but none the less a strife - between the Federal and States Governments. I claim the attention of honorable members for a little while in elaborating this question, because the mischief of this particular proposal of the Government is that it takes us out of the strictly industrial sphere, where the considerations are those of human rights of business, and of expediency, into the constitutional sphere, in which, seek to simplify them as we may, we deal with great principles lying at the very foundation of all Federal Constitutions, and of our own Constitution especially, and plunges us, therefore, into constitutional as well as into industrial strife. But since we are compelled once more to face this question, we have to recollect that if these debates have served any purpose at all, of an educational character, they will have helped to educate the community to a consideration of what conciliation and arbitration ought to do, can do, and should be made to do. And now is opened up to us another and even more important field, the Federal field. Here we commence to pass from the territory, which certainly is under our own flag, into disputed territories, claimed by the several States. Our Federal Constitution is so much a matter of yesterday, our federalism up to this date has been so much a matter of contention as to the benefits Or disadvantages of the adoption of the Constitution, that we still move somewhat awkwardly. We fail to breathe, as if it were our native air, those principles of federalism which require to be assimilated and applied by us day by day in dealing with legislation in this Chamber. They can never be applied by us in this Chamber with satisfaction unless to some extent, at all events, the public intelligence outside keeps step with us, and unless the electors also come to realize how, as electors both of the States and of the Commonwealth, they require to hold the balance even as between themselves as citizens of the States and themselves as citizens of the Commonwealth, if’ they desire the two political agencies which they have created in their own interest to fulfil their work efficiently and without needless clashing with each other. The very beginning of federalism and the very first expression of the Federal spirit is to be found in the endeavour to maintain the independent autonomy of both these agencies. Nothing more fatal to federalism or more dangerous to the Federal spirit can be imagined than the unnecessary jar and conflict begotten by mistaken endeavours to spread the sphere of one into that of the other. No one has anything to gain by such conflicts. The people themselves who elect both bodies can do nothing but lose while their two agencies wrestle as to which is to perform a certain duty. No gain can result to either Federal or State Parliament when one is ranked against the other, instead of both being devoted to their common- tasks. Nothing is to be more deplored or deprecated than the unnecessary bringing of their claims into hostile juxtaposition. That must occasionally happen, and we have created a High Court to determine such cases when they arise ; but no one would wish to hasten their occurrence, or to multiply them. . We would assuredly avoid them if we could. In this connexion nothing is more important than that the public should comprehend the real position and authority of the High Court. At the present time, judging by journalistic comments, that is very little understood even by many of those who are best educated in political affairs; while the man in the street, as one learns by personal conversation with him, has even less acquaintance with it. In the Sydney Daily Telegraph, of 28th April last, a special article - technically called a “cross-headed article “ I believe-on the Tasmanian stamp duties case, appears over the signature “T.R.B.” In that article, the authority and standing of the. Court is, it seems to me, admirably defined. The writer says -

But the High Court is intrusted, also, with the duty of interpreting the Federal Constitution. In a large and important class of cases arising under the Constitution, those, namely, which involve the question of the relative rights of the Commonwealth and a State, or of -the relative rights of two different States - its decision is, ex cept by its own consent, absolutely final. Such a decision is final, not only in the sense that no appeal can be taken to the Privy Council ; it is final also in the sense that the Federal Parliament itself cannot alter the principles that are therein laid down. For the Federal Constitution, putting aside the possibility of alteration by the Imperial Parliament, isnot alterable by an ordinary Act of legislation. The method of amendment is prescribed by the Constitution itself, and may not under any circumstances be departed from. The decision of a Court of final resort, as to the interpretation of the Constitution, is as much a part of the Constitution as if it had been expressly enacted in that instructment ; and, therefore, however unpopular the principles laid down by the High Court in constitutional cases of the kind referred to may be, they can only be altered by setting in motion the machinery prescribed by section 128 for amending the Constitution. It is this fact which gives the High Court its immense power as an agent of constitutional development, and which makes its decisions, in constitutional cases at least, deserving of the careful attention of those wlio are interested in the political institutions under which they live. The tendency of our national development for generations to come will be determined by the principles which are adopted by the High Court in construing the Constitution.

Of course, the statement as to “ generations to come “ is the writer’s own. I think that the amendment of the Australian Constitution is not anything like so difficult as that of the American Constitution, and if an interpretation of the Constitution by the High Court proved to be seriously out of harmony with the judgments and desires of the electors of the Commonwealth, a generation would not pass without the securing of redress. Subject to that qualification, the statement I have read puis in a very impressive fashion an aspectof the High Court which the man in the street has certainly not yet entirely grasped.

Mr Fisher:

– Might not a larger Court review and alter its decisions?

Mr DEAKIN:

– Owing to the action of the honorable gentleman and of others, the Court consists of only three members, so that there is no larger Court to which to appeal. In the cases referred to, there can be no appeal except with the consent of the Court.

Mr O’malley:

– When the business of the High Court increases, we shall have to increase the number of the Judges.

Mr DEAKIN:

– And will increase.

Mr Groom:

– Hear,, hear.

Mr DEAKIN:

– If honorable members will bear in mind that impressive description of the manner in which the interpretation of the Constitution by the High Court becomes, in many instances, part of the Constitution, and remains so until there is an amendment or reversal of the judg-. ment, they will understand why I propose to devote some attention to the decisions which have been already given, and which are likely to form part of our Constitution for a long time to come. Before doing so, however. I wish to make to the AttorneyGeneral reparation which, in his heart of hearts, he believes I owe him. In the course of our discussion of the measure before us, in those distant times when I sat on the other side of the chamber -

Mr Higgins:

– Happy times.

Mr DEAKIN:

– No happier than the present. The honorable and learned gentleman and myself were engaged in argument in regard to this particular question, and there arose out of our discussion one or two issues to which I think it only fair to refer. The misunderstanding to which I shall refer first occurred just before the decisive vote upon the amendment of the honorable member for Wide Bay was taken, and I have had no previous opportunity to put the honorable and learned gentleman right in the matter. On page 1226 of the Hansard debates of this session, the Attorney-General is reported to have said : -

Another statement of the Prime Minister was ! that I had expressed contempt for the decisions of the American Judges.

Mr Deakin:

– That is, as applied to our Constitution.

Mr HIGGINS:
Protectionist

– I do not think that the matter : was so put by the Prime Minister. It is very ; easv to make a correction now. The impression ‘ conveyed by the Prime Minister was that, from my humble position, I had expressed contempt for the great series of decisions of the American Judges.

Mr Deakin:

– I did not intend to convey that.

Mr HIGGINS:

– The effect of the Minister’s remarks was as I have stated.

Turning back to page 1050, I find that the actual words which I am reported to have used are these -

I must submit with great deference to the honorable and learned member for Northern Melbourne any citation from American authorities, after the wholesale fashion in which he dismissed them. . . . The honorable and learned member for Northern Melbourne was unbridled in the contempt which he expressed for American

Mr Higgins:

– I was not present when the honorable and learned gentleman made the speech from which he is now quoting.

Mr DEAKIN:

– No; and, therefore, the honorable and learned gentleman was dependent upon the printed report for his information as to what I said. By an unfortunate slip of the printer, however, in the last line, the word “American” was, in the proof number, used in place of the word “Australian.” So far as I know, the honorable and learned gentleman has never expressed dissent except in an abstract way, at the relation which American decisions bear to the American Constitution; but he has brushed them aside somewhat contemptuously, so far as they bear upon the interpretation of the Australian Constitution. “American” was an obvious misprint for “Australian,” which I corrected as soon as the proof number of Hansard appeared, and the corrected passage now appears in the permanent record. With the explanation that I referred only to his comments on the American decisions as affecting Australian decisions, I submit my reference was not unfair. The honorable and learned member had said -

Concerning American decisions, I have long held the opinion that they represent what the Judges thought the Constitution ought to contain rather than what it does contain.

Then, referring to our particular argument, he said -

However, I do not think those cases have anything to do with this matter.

That is to say, “ I do not think these cases have anything to do with the construction of the Australian Constitution, especially in regard to conciliation and arbitration.”

Mr Higgins:

– That is, so far as the Conciliation and Arbitration Bill is concerned.

Mr DEAKIN:

– The honorable and learned member, at another stage, said -

The Prime Minister has attempted to apply to our circumstances the United States decisions as to taxing Federal and State incomes, and h:>’. given us the benefit of an elaborate argument, which, I understand, has led him to the conclusion that we should violate some mystic Federal principle if we were to include States public servants within the operation of the Bill. I confess that I do not see what the principle adopted in America with regard totaxing Federal incomes by the State, or State incomes by the Federal power, has to do with the interpretation of our Constitution so far as it relates to our power of legislation in regard to conciliation acid arbitration.

So that the difference between the honorable and learned member and myself is that, whilst I quoted a large number of American decisions, which I thought applied to that particular part of the Constitution, the honorable and learned member, in reply, said that he did not think they had any bearing upon the question. In my reference to him I put it, perhaps, with too great generality that his remarks related to the application of the American decisions to the Australian Constitution. I understand that he stands upon the narrow construction that his remarks related only, and specifically, to the provision in the Constitution relating to arbitration and conciliation. That being so, I at once qualify my remarks to the same extent, and say that I do not desire them to have any wider bearing. The honorable member in the remarks which I have just quoted, certainly contended that the United States cases did not apply in this particular instance, and other speakers contended that they did not apply in any instance. Some honorable members argued that the taxing cases which related to the Federal and State Governments of the United States taxing each other’s agencies and instrumentalities had no .bearing on any part of our Constitution. They took a wider view than did the honorable and learned member. Now, fortunately, we have in the judgments of the High Court, as reported in the newspapers, an indication of the weight which that tribunal is inclined to attach to American cases. In the Sydney Daily Telegraph of April 27 th, page 10, Mr. Justice Barton is reported, in connexion with what is known as the Sydney rate case, as having said : -

Mr. Wise pointed out that in some judgments reference was made to the possible consequences of decisions which would give licence to invasions of the sphere of the Federal Government, consequences which might amount to the dissolution of the American Union. Mr. Wise inferred that the judgments of the time were given in fear that contrary decisions might bring about that result, with its dread attendant in the shape of civil war. Attentive perusal of the great deliverances would dispel the notion that consequences which were pointed out as possible were the impelling reason of the utterances. In discussing questions of the relative powers of the Union and the States, the exposition of their Constitution by American jurists, whether in their judgments or their commentaries, had always been founded on the principles of construction which had been equally adopted as guides by British lawyers.

I quote these remarks first because they serve as an introduction to the judgment of the Court, delivered by the learned Chief Justice, who said -

There could be no doubt.that the right of taxation was a right of sovereignty. It might be exercised upon all persons, and in respect of all property, within the jurisdiction of the sovereign power which exercised it. It followed that if the authority which assumed to create such a delegation did not itself possess the power the delegation was void, since -the spring could not rise higher than the source. In a constitutional instrument, defining and limiting the . powers of constitutional authorities, the word “tax” must be construed in the wider sense, and a prohibition of the imposition of a tax must be held to. include a prohibition of any such imposition by a delegated authority, by whatever name the tax was called. It was manifest, from the whole scope of the Constitution, that just as the Commonwea1,th and the States were regarded as distinct and separate sovereign bodies, with sovereign powers limited only to the ambit of their authority under the Constitution, so the Crown, as representing those several bodies, was to be regarded, not as one, but as several juristic persons, to use a phrase which would.express the idea. The term “Crown,” as used in the Sydney Corporation Act, must be taken to mean the Crown in its capacity as representing the State of New South Wales. The argument, therefore, sought to be founded upon the assent of the Crown, given through the Governor of New South Wales to the taxation of Crown lands, failed, since land vested in the Commonwealth, or the Crown in right of the Commonwealth, was not Crown land within the meaning of the Sydney Act. If the tax was considered merely as a tax upon the Commonwealth, regarded as a juristic power, or upon the officers as persons - a view which he thought erroneous - other considerations would arise. In that view the question for decision would be whether a State or a delegated authority within a State, had power to affect the Commonwealth or ils officers in the performance of the duties cast upon them by the Constitution, or by the laws of the Commonwealth. The answer to this question depended upon the further question, whether, under the Constitution of the Commonwealth, the jurisdiction of the States extended to the Commonwraith regarded as a juristic person, or to the officers in the performance of their duties as such officers. On this point his opinion was sufficiently expressed in the judgment in the case of D’Emden v. Pedder.

That extract is not altogether apposite, or solely apposite, to the question of the weight which is to be given, or is likely to be given, by the High Court to American decisions. I shall come to that presently. I read the extract by way of introduction, because it has very important bearings, particularly in reference to the Crown as possibly consisting, so to speak, of juristic persons, the Crown acting through the Commonwealth being one juristic person, and the Crown acting through the States Governments being another juristic person. In the course of the debate on this question, we had a very interesting difference of opinion between honorable and learned members. The honorable and learned member for Bendigo the honorable and learned member for Corinella, and the honorable and learned member for Indi, on the one side considered that the fact that the States servants were servants of the Crown, as acting through and represented by the States, of itself constituted a vital difference between the extent to which any Commonwealth Act could be taken to apply to them, and the manner in which it could be applied to private persons who were not in the service of the Crown.

Mr Higgins:

– The honorable and learned member for Indi did not give an opinion.

Mr DEAKIN:

– Upon that point he did.

Mr Higgins:

– He did not go so far as that.

Mr DEAKIN:

– The honorable and learned member himself took the other side, and disposed of the Crown as lightly as he dismissed the American decisions. Under the epithet “pedantry,” or something of that kind, he swept it out of his consideration ; but the other honorable and learned members to ‘whom I have referred laid great stress upon that point. . I quoted the extract from the judgment of the High Court as leading up, not only to the decision in the case of D’ Emden v. Pedder, but also as bearing upon a line of argument to which the honorable and learned member may yet be called upon to attach more importance than he has hitherto been inclined to do. I did not enter upon it at any great length on the previous Occasion, because I thought it was involved in a certain amount of obscurity) and also because I wished to avoid merely legal argument in this Chamber as much as possible. We have now, however, reached a stage at which merely legal argument is likely to- become a foundation for the consideration. of important constitutional principles, and I desire to refer honorable members to the judgment in the case ofD’Emden v. Pedder, for the opinion of the High Court as to the manner and extent to which American decisions can be used in the ‘ interpretation of our Constitution. I hope that honorable members will excuse me if I trespass upon their patience by reading a very large part of that judgment, because I think its proper place is in the pages of Hansard, where it will be available to honorable members, who will require to repeatedly refer to it in considering, not only this constitutional question, but many others.

Mr Higgins:

– For the information of honorable members we propose to circulate copies of that judgment.

Mr DEAKIN:

– I am very glad to hear that. I presume that the AttorneyGeneral means “ official “ copies.

Mr Higgins:

– Yes. Copies of the judgment after it has been revised by the Justices.

Mr DEAKIN:

– I had thought of suggesting the adoption of the same course. In the case of Pedder v. D’ Emden, which is commonly known as the Tasmanian stamp case, the High Court considered the weight which should properly attach to United States decisions. Still quoting from the Sydney Daily Telegraph, I find that the Court said -

We have had the benefit of considering numerous decisions of the Supreme Court of the United States upon analogous questions arising under the United States Constitution, beginning with the celebrated case of McCulloch v. Maryland (4r., Wheaton, 316), decided in 1819, in which Chief Justice Marshall, delivering the unanimous judgment of the Court, enunciated the doctrines which have ever since been accepted as establishing upon a firm basis the fundamental rules governing the mutual relations of that great Republic and its constituent States.

The Attorney-General will forgive me for reminding him that it was that very principle which he referred to as a “ mystical Federal principle.”

Mr Higgins:

– No, no. That was a very different matter.

Mr DEAKIN:

– I think it was the same. The judgment proceeds -

The Attorney-General for Tasmania did . not, indeed, suggest that that case was not good law in the United States, but he endeavoured to distinguish the provisions of the United States Constitution from those of the Constitution of this Commonwealth by referring to sections 107, 108, and 109 of the Constitution. He was not, however, able to point out any material difference between the provisions of those sections and the provisions of the Tenth Amendment of the United States Constitution. And we are equally unable to discover any such difference. Some cases were cited to us, in which it has been suggested that decisions upon the construction of the United States Constitution afford no guidance in the construction of other Federal (Constitutions, such as that of the Canadian Dominion and that of this Commonwealth. In the case of Bank of Toronto v. Lambe (12, A.C., 575), in which the case of McCulloch v. Maryland had been cited before the Judicial Committee of the Privy Council, the Committee, so far from depreciating the authority of that case, intimated their willingness to follow the guidance of the great American Chief -Justice in a similar case, but pointed out that the principles laid down in

Mcculloch v. Maryland threw no light on the question then before them, which was whether a particular form of taxation fell within the express words of the Dominion Constitution, by which the exclusive power to impose direct taxation was conferred upon the provincial Legislatures. It is not easy indeed, to discover the purpose for which Mcculloch v. Maryland was there cited. We ure not, of course, bound by the decisions of the Supreme Court of the United States. But we all think that it would need some courage for any judge at the present day to decline to accept the interpretation placed upon the United States Constitution by so great a Judge so long ago as 1S19, and followed up to the present day by the succession of great jurists who have since adorned the Bench of the Supreme Court at Washington. So far, therefore, as the United States Constitution and the Constitution of the Commonwealth are similar, the construction put upon the former by the Supreme Court of the United States may well be regarded by us in construing the Constitution of the Commonwealth, not as an infallible guide, but as a most welcome aid and assistance. There is, indeed, another consideration which gives additional weight to the authority of the United States decisions with regard to matters in which the two Constitutions are similar. We have already, in discussing the language of section 51 of the Constitution, referred to the inference to be drawn from the fact that a Legislature has deliberately adopted in its legislation a form of words which has already received authoritative interpretation. We cannot disregard the fact that the Constitution of the Commonwealth was framed by a Convention of representatives from the several Colonies. We think that, sitting here, we are entitled to assume - what, after all, is a fact of public notoriety - that some, if not all, of the framers of that Constitution were familiar not only with the Constitution of the United States, but with that of the Canadian Dominion and those of the British Colonies. When, therefore, under these circumstances, we find embodied in the Constitution provisions undistinguishable in substance, though varied in form, from provisions of the Constitution of the United States which had long since been judicially interpreted by the Supreme Court of that Republic, it is not an unreasonable inference that its framers intended that like provisions should receive like interpretation.

Of course the bulk of my argument originally was directed to show that the resemblance between our circumstances and those of the United States is strictly one of substance and not of form. Upon that one connecting principle I based the long series of extracts from American decisions which I read to this House. That is to say,_ the very essence of any Federal Constitution is to be found in the established principle that the means and instrumentalities of the Federation and of -the States - which includes their officers, their servants, and all their operations - shall be preserved from interference and control the one by the other.

Mr Watson:

– Except so far as the Constitution provides.

Mr DEAKIN:

– Of course. Wherever specific provision to the contrary is made in the Constitution, we are bound by it. But when, as in this case, there is no specific provision, that great essential principle comes into play. It was upon that principle that I based the whole of my case, and upon that view of it that I justified every extract which I read to this House. My opinion in this connexion is further fortified by the judgment which I have just read, and by another portion which I propose to read. These clearly show that the mind of the High Court is working in the same direction, that its Justices recognise the fundamental principle of all Federal Constitutions, and it seems to me that they should logically apply it in this particular instance, as they have done in others.

Mr Carpenter:

– Would not the honorable and learned member test a case if a doubt existed?

Mr DEAKIN:

– Yes, but even if we were convinced that we have the power that is claimed, “ I hold that the circumstances have not arisen which would justify an exercise of it. I have not yet done all the justice that I wish to do my honorable and learned friend. He took exception to my associating him with the cumbrously named doctrine of unification. He protested against being classed amongst the advocates of a unitary as contrasted with a Federal Government. I have not attempted to justify my own memory upon the matter by looking up the official report of the debates in the Federal Convention. I gave the general effect of the impression which was left in my mind, but if the AttorneyGeneral does not accept my classification of him I do not press it. It seems to me, however, that if we make the provisions of this Bill applicable to the railway servants of the States we may as well include all public servants, because having once destroyed the principle upon which I have laid such emphasis, nothing else stands in the way. Of course I admit the significance which attaches to the word “ industrial.” When once we take up the position of the Attorney-General and are prepared to make all the States subordinate to the majority rule of the Commonwealth - whether that is accomplished bv one little step or by many is to me a matter of indifference - we have passed the Federal boundary and become advocates of a Constitution which is more or less of a unitary character, and which sooner or later will plunge us into complete unification. That is only my reading of the position. But it is my clear, deliberate, and distinct reading, and I still hold to it, although I have, of course, no desire to impose it on the honorable and learned member. In attempting to describe his attitude as an antagonist of the principle of equal representation in the Senate - and I am sure that he has not altered his opinion - and of many other proposals in the Constitution when it was before the people, I referred to him as an advocate of the unitary principle; but if, in doing so, I mistranslated his position in the slightest degree, I, of course, withdraw the remark. On the question of unification, the judgments given by the High Court throw, at all events, a little light. Mr. Justice O’Connor, in the Sydney rating case, said -

From the very nature of the Constitution, and the relation of the States and Commonwealth in the distribution of powers, it became necessary to provide that the sovereignty of each within its sphere should be absolute, and that no conflict of authority within the same sphere should be possible.

That is simply stating, in very clear and concise language, the great doctrine already referred to, and laid down by the United States Supreme Court, through the lips of Marshall, in 1819. But in the decision given by the Court, in the Tasmanian stamp case, it seems to rae that we approach very closely the particular point which is now engaging the attention of the Committee - the application of the Marshall doctrine to the proposal that public servants of the States shall be brought within the provisions of this measure. I must again crave the patience of honorable members whilst I read extracts from that judgment. Their great importance will, I hope, justify their length. The Chief Justice said -

In considering the . respective powers of the Commonwealth and of the States,, it is essential to bear in mind that each is, within the ambit of its authority, a sovereign State, subject orly to the restrictions imposed by the Imperial connexion and to the provisions of the Constitution, either expressed or necessarily implied. That this is so as regards the Commonwealth, apart altogether from the express provisions of the Constitution, appears too plain to need elaborate argument. It is only necessary to mention the maxim, quanda lex alquid concedit concedere videtur et Mud sine quo res ipsa valere lion potest. In other words, where any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor, and without special mention, every power and every control the denial of which would render the grant itself ineffective. 1 his is, in truth, not a doctrine of any special system of law, but a statement of a necessary rule of construction of all grants of power, whether by unwritten constitution, formal written instrument, or other delegation of authority, and applies from the necessity of the case to all to whom is committed the exercise of powers of Government.

If that means anything, it appears to me to say that the States of the Commonwealth are within the ambit of their authority, sovereign States, and that if it had been necessary to add a grant of anything, to make them sovereign they could not have been so styled.

Mr Crouch:

– There was no grant to the States ; the grant was made to the Commonwealth.

Mr DEAKIN:

– If a grant is made to the Commonwealth, which also by express enactment leaves to the States all rights not so granted, it is equivalent to the regranting of something already possessed by the States. It repeats, so to speak, the grant to the States, defining and protecting it for the future. If there be one thing more than another necessary to the sovereignty of a State, it is the control of its own officers, means, and agencies. The doctrine that has been laid down in unmistakable language in this judgment would be defeated and deprive?! of all effect if, while the States’ were glorified with the title of “ sovereign,” and, apparently, endowed with a large ambit of power, the Parliament of the Commonwealth were left free to intervene between them and the sovereign agencies which they employ, and, if it so thought fit, to intervene for the express purpose of destroying those agencies. If we have the power to interfere in regard to one little point, we have the power’ to interfere in regard to all. If the States have abandoned something essential to their sovereignty in one particular, they have abandoned it in regard to everything. The name is one which can not be justified. The judgment proceeds -

And without recourse to this doctrine of universal application, the express terms of the Constitution lead to the same conclusion. The words of section jr : “ The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to “ the several matters enumerated, are not used for the first time in that instrument. The same, or almost exactly similar, words were used in the Constitutions pf - the Australian and Canadian colonies, and it has always been held that under the authority conferred by them the colonial Legislatures had within their territory, subject to their jurisdiction, sovereign authority, absolute and uncontrolled, except so far as it was restricted by the Constitution itself. (See Powell v. Apollo Candle Co., 10 A.C., 282.) Now, when a particular form of legislative en.actment which has received authoritative interpretation, whether by judicial decision or’. by a long course of practice, is adopted in the framing of a later statute, it is a sound rule of construction to hold that the words so adopted were intended by the Legislature to bear the meaning which has been so put upon them. This consideration alone is sufficient to .show that the Commonwealth has, with respect to all matters enumerated in the Constitution as within the ambit, of its authority, sovereign power, subject only to the limitations already mentioned. Now, a right of sovereignty subject to extrinsic control is a contradiction in terms. It must, therefore, be taken to be of the essence of the Constitution that the Commonwealth is entitled, within the ambit of its authority, to exercise its legislative and executive powers in absolute freedom, and without any interference or control whatever, except that prescribed by the Constitution itself.

In this case, of course, the Court was called upon to declare the application of this doctrine when it was appealed to in the interests of the Commonwealth and to protect the Commonwealth, as against the aggression or encroachment of the States. But it seems to me that we have only to substitute the word “ State “ for “ Commonwealth “ - and in the United States the doctrine has been held to be reciprocal - to exactly describe the case before us. If there be anything that partakes of extrinsic control, and is entirely foreign to the idea of sovereignty, it is the control of tha servants, and of all the agencies, that attach to that so-called sovereignty. The judgment continues -

There is, however, a large class of cases with respect to which a similar power is for a time reserved to the States. With respect to these matters there is, consequently a possibility of conflicting legislation. This contingency is dealt with by section 109 of the Constitution, which provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall to the extent of the inconsistency be invalid.

I do not think I need read more than another sentence or two appearing later on in the judgment -

It follows that when a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control, or interfere with the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Constitution, is to that extent invalid and inoperative. And this appears to be the true test to be applied in determining the validity of State laws, and their applicability to Federal transactions.

Let us again reverse those words. Are not we in these cases attempting to give to our legislative authority an operation which, if it is valid, will fetter control, and interfere with the free exercise of the- executive power of the States? Is the condition here laid down fulfilled which says that such an attempt is invalid and inoperative unless specially authorized by the Constitution. Can we say that the general words of sub-section xxxv. of section 51 convey so express an authorization that they enable us to destroy the sovereignty of a State over its own agencies and employes? Passing from that point, these judgments, if they do nothing else, ought to have the effect of relieving us of some prevalent illusions. For instance, it was sought to be maintained that in the passage of this Bill we should be merely adding another Court to the existing Courts, and that consequently we should not be trenching on the sphere of the States, because the assumption which necessarily followed that statement was that the Bill created no new duties or obligations. The argument was used to rebut my contention that the Arbitration Court - being given control of the hours of labour, conditions of employment, wages, and various other matters all specified in the interpretation clause - had it in its power to increase, either by a small or by an immense sum, the cost of managing the State Departments. It increased the cost of those Departments to the State, which would be required to find the necessary money, if additional employes were ordered to be employed, if shorter hours were worked, and more hands needed to be called for, or if any rises of wages were to be paid. I pointed out that a decision of the Court might have the effect of relieving the States of part of their burden of taxation if it reduced the cost of a Railway Department, just as necessarily as it would increase the burden of taxation by every additional requirement which it made.

Mr Groom:

– The honorable and learned member did not lay down as a general rule of construction that every Act which caused an increase of expenditure was therefore unconstitutional ?

Mr DEAKIN:

– No ; that would be preposterous, and I did not think it necessary to rebut that view. We have it in our power here, by legislation, to dispose of the whole sum of money which under the Constitution is set apart for us; and as, under the Constitution, we return to the States what we do not spend ourselves, every increase of expenditure on Federal objects, no matter how legitimate, does operate as a reduction of the receipts of the States. With that we have nothing to do. ‘ The Constitution made us masters of one-fourth of the Customs and Excise revenue, and any other sums which we might raise by our own taxation. Of those we dispose freely, and it is only because of the temporary operation of what is sometimes termed the Braddon clause that our expenditure affects the amount which we .may return to the States, and not the amount which we must return. But in this arbitration award we shall not deal with our money at all. We do not pay out any money. We impose a burden on somebody else, and we order them to find the money.

Mr Chapman:

– What would happen if the .State Parliament declined to vote the money ?

Mr DEAKIN:

– I followed that argument before, and do not desire to repeat my observations. If the State Parliament decided to ignore the award, we should need a Colorado incident to endeavour to bring it into effect. But, putting aside such an improbable contingency as that, the fact remains that the power to make awards, raise wages, and alter the conditions of labour, means a power to direct a State to increase its taxation. That power is derived under this Bill, not in the part which creates a Court, but in the part which requires that that Court shall be allowed to order whatever payment it pleases to think necessary, in the , interests of equity and justice, to those persons who bring their causes before it. No such legal obligation exists until that obligation is legally enforceable, but it will exist under this Bill. If that view has not penetrated, as it ought to have penetrated, to the minds of those who discuss our proceedings outside, surely the unfortunate remarks of the Chief Justice of New South .Wales, which were quoted by the right honorable member for Swan, at page 1648 of. Hansard, show, quite apart from any sentiment that they display, what he declared to be the legal effect of such legislation. I need not read his remarks, except his assertion that it did interfere with the liberty of action of employer and employed, that the State Act did create new crimes unknown to the common law, that it did deprive the employer, to a certain “extent, of the conduct of his own business, and vested it in a tribunal-. No one can say that the mere creation of a Court would have done that. His Honour is not alluding to the creation of a new Court which left liabilities and obligations as they were, but is stigmatizing, in what appears to me to be injudicious language, the effect of the State Arbitration Act in its’ imposition of fresh obligations, and new penalties for what hitherto have not been offences. I trust, therefore, that whatever else his obiter dicta may have done, they will disabuse the mind of even the man in the street of any suggestion that this is merely the creation of a tribunal, instead of being, as it is, the creation of a tribunal, plus the creation of a new charter of industrial rights,, industrial obligations, and penalties for their .breach, necessarily of a severe character. If we have a law, and it requires to be made effective, we must provide penalties. This Bill obviously goes far beyond the introduction of a new tribunal. If that was all that it did, there would be very little interest in it here or outside.

Mr Crouch:

– If there were no offences there would be no occasion for Courts in criminal cases.

Mr DEAKIN:

– I am not speaking of the necessity for offences. I am saying that if this Bill meant only the creation of a new tribunal, which was to deal with cases which at present go to the ordinaryCourts when they relate to industrial matters, just as there has been in Great Britain a Commercial Court, in which none but commercial cases are ‘taken - if this was a Court merely to try industrial cases under the old laws and old obligations, there would be very little interest taken in the Bill ; it would mean very little to any one, either here or outside. But it is because it does so much more than create a Court, that our attention is focussed on it, and that that of the public is bound to be. I propose to read another extract from the judgment in the Tasmanian stamp case in order to show that, probably, I was not so far out when, in moving the second reading of the Bill, I quoted a part of the American judgment, which is set out in the report of that case. The High Court says -

We should be prepared, therefore, if it were necessary, and if we found ourselves unable otherwise to come to a clear conclusion, to accept the doctrines laid down in the following passage of the judgment of the Supreme Court of the United States, delivered by Marshall, C.T-, in McCulloch’s case in 1810 (and since that time often spoken of by that Court as axiomatic), as applicable to the interpretation of the Constitution of the Commonwealth : -

Then they proceed to read Marshall’s judgment; and it is so important and valuable in its bearing upon Federal affairs, that I will take the liberty of burdening the Committee with it -

The people of a State give to their Government a right of taxing themselves and their property, and, as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representative, to guard them against its abuse. But the means employed by the government of the union have no such security, nor is the right of a State to tax them sustained by the same theory. Those means are not given by the people of a particular State, not given by the constituents of the Legislature, which claim the right to tax them, but by the people of all the States. They are gi, en tv all, for the benefit of all; and, upon theory, should be subjected to that government only which belongs to all. It may be objected to this definition that the power of taxation is not confined to the people and property of a State. It may be exercised upon every object brought within its jurisdiction. This is true. But to what source do we trace this right? It is obvious that it is an incident of sovereignty, and is co-extensive with that to which it is an incident. All subjects oyer which the sovereign power of a State extends are objects of taxation; but those over which it does not extend are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident. The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission.

That is what I previously read to the House -

But does it extend to those means which’ are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. Those powers are not given to the people of a single State. They are given by the people of the United States, to a Government whose laws, made in pursuance of the Constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them. If we measure the power of taxation residing in a State by the extent of sovereignty which the people of a single State possess, and can confer on its Government, we have an intelligible standard applicable to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and the property of a State unimpaired, which leaves to a State the command of all its resources, and which places beyond its reach all those powers which are conferred by the people of the United States on the government of the Union, and all those means which are given for the purpose of carrying those powers into execution. We have a principle which is safe for the States, and safe for the Union. We are relieved, as we ought to be, from clashing sovereignty, from interfering powers, from a repugnancy between a right in one Government to pull down what there is an acknowledged right in another to build up, from the incompatibility of a right in one Government to destroy what there is a right in another to preserve. We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse, of the power. The attempt to use it on the means employed by the government of the Union, in pursuance of the Constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give. We find, then, on just theory, a total failure of this original right to tax the” means employed by the government of the Union for the execution of its powers. The right never existed, and the question whether it has been surrendered cannot arise. But, waiving this theory for the present, let us resume the inquiry,’ whether this power can be exercised by the respective States, consistently with a fair construction of the Constitution? That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one Government a power to control the constitutional measures of another, which other, with respect to those verv measures, is declared to be supreme over tha’t which exerts the control, are propositions not to be denied. /

I need hardly stop to point out’ the endless parallels. Honorable members have only to substitute, when Marshall speaks of the Federal Government, the State, and to reverse the position - to imagine the Commonwealth taxing the States, instead of the States taxing the Federal Government, as in this case - and most of the argument and most of the language applies, in mv view.

Mr Frazer:

– Does the question of the power of taxation arise?

Mr DEAKIN:

– Inevitably. The gift to the Arbitration Court of the power to make awards which shall bind a State is meaningless, unless it covers the power to increase, as well as to decrease, the payments of a State.

Mr Higgins:

– That is all indirect. It may lead to an increase of taxation, or it may not.

Mr DEAKIN:

– In my judgment, honorable members cannot stop there. Our endowment in the Constitution is not to create a Court at all. The power is to Conciliate and Arbitrate ‘in relation to industrial disputes extending from one State to another. There need be no Court. We can appoint ourselves a Court. We can appoint the Federal Government a Court. We can sit here, if we have this power, and vote to the public servants of any State any sum we like, which sum we shall not have to find, but which the State affected will be called upon to find. That is direct taxation by a body which has not to find the money.

Mr Higgins:

– If we resolve to build a new post-office, it may mean an increase of the taxation of a State.

Mr DEAKIN:

– But only by the exercise of the special powers conferred upon us by the Constitution, and for a time.

Mr Higgins:

– That begs the whole question.

Mr DEAKIN:

– In no way ; because the increase of taxation, which falls upon a State from the building of a post-office, is under Federal Acts. The post-office must be paid for out of Federal money, and it is only because the money happens to come from the same pockets that it may be said to come out of the pockets of a State.

Mr Higgins:

– It comes out of the pockets of the State, because the State has to pay it.

Mr DEAKIN:

– That is only a temporary matter. It comes out of the pockets of their citizens, but .that is under a special provision of the Constitution, which applies only for a limited time, although it may be extended indefinitely. The fact remains, that the money in that case is paid by us, and has to be provided by us by some means constitutionally available. In the other case, although the money is voted by us, it has to be found by another body. We, in the one case, take the odium - if there be any odium - of finding the money, because we spend it. In the other case, we order some one else to find the money. We vote the money to be paid by some one else, who has to bear the odium of finding it. Marshall, in his judgment, proceeds to say -

But all inconsistencies are to be reconciled by the magic of the word “ confidence.” Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which would banish that confidence which is essential to all government. But is this a case of confidence? Would the people of any one State trust those of another with a power to control the most insignificant operations of their State Government? We know they would not. Why, then, should we suppose that the people of any one State should be willing to trust those of another with a power to control the operations of a Government to which they have confided their most important and most valuable interests?

Mr Higgins:

– We cannot control where there is only one State ; where there are two States concerned we may.

Mr DEAKIN:

– Where there are two States concerned we may, but we cannot where there is only one State concerned. Marshall- proceeds, lower down - I am omitting a sentence or two -

This, then, is not a case of confidence, and we must consider it as it really is. If we apply the principle for which the State of Maryland contends to the Constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the Government, and of prostrating it at the foot of the States. The American people have declared their Constitution, and the’ laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the States. If the States may tax one instrument, employed by the Government in the execution of its powers, they may tax any and every other instrument. They may tax the mail ; they may tax the mint; they may tax patent rights; they may fax the papers of the Custom-house; they may tax judicial process; they may tax all the means employed by the Government to an excess which would defeat all the ends of government. This was not intended by the American people. Thev did not design to make their Government dependent on the States.

Of course, I cannot push that magnificent piece of argument to the same extent. Marshall was dealing with the limited power of taxation possessed by the Commonwealth and the States within their several spheres, whereas I am speaking of the power which incidentally, but essentially, may imply, and must imply, taxation, and which has no meaning if it does not cover the power of taxation.

Mr Fowler:

– Does the honorable and learned member think that the High Court in dealing with a case under this Bill would consider the ulterior effect of its judgment? The High Court would decide the question of constitutionality, and the ulterior effect might or might not mean taxation. Would it be within the purview of the Court to consider the ulterior effect of its judgment?

Mr DEAKIN:

– The honorable member is asking me how the Court would, and ought to decide. In my opinion, the Court ought to consider, and would consider, what the honorable member calls the ulterior effect; but it must be remembered that this is only my opinion.

Mr Fowler:

– Ulterior effects are not usually considered in the judgment of a Court.’

Mr DEAKIN:

– Calling them “ulterior” effects does, not alter them. The effect may be to destroy the sovereignty of the States by stepping in between the States and their employes - by stepping in between the States and all the means and agencies which the States use which can be brought under the word “ industrial “ as it is used in the section - so that the Court may determine the conditions of employment, hours of labour, wages, periods of probation, leave, when a man may refuse to work or when he may not, and what are the penalties - in which case the mastership and. control of all the industrial agencies, on which the States depend, are taken out of the hands of the States and placed in the hands of another body. How do we make the effect less by calling it “ ulterior “ ? There is an effect, and it seems to me a vital effect ; and whether it be called “ ulterior “ or by some other name, the effect remains. In fact, the Court itself, having finished the quotation from Marshall, goes on to say -

The learned judges who formed the majority of the Supreme Court -

That means the Supreme Court of Tasmania, from which this was an appeal. seem to have been under the impression that the doctrine of McCulloch’s case had been considerably modified by later decisions. This is, however, a misapprehension. Although questions have arisen in some cases whether the facts brought the particular case within the doctrine (see Bani v. Mayer, 7. Wall, 16, 25), neither the authority of the judgment nor the accuracy of the statement of the law contained in it has ever been questioned in the United States, nor have the doctrines enunciated in it ever been qualified. It is true that in Osborn v. Bank of the United. States (9 Wheaton, 738), decided five years later, the Court was asked to reconsider its opinion in the case of McCulloch v. Maryland. But the reconsideration asked for, and granted, extended only to the question whether the Bank of the United States was an instrumentality or agency of the Republic in such a sense as to render the taxation of its notes by a State an invasion of the sphere of the national government. So far from combating the doctrine that Federal instrumentalities are not subject to State control, counsel for the bank conceded that “ the States cannot tax the offices, establishments, and operations of the National Government “ (9, Wheaton, 765-6), and so fully granted the position as to state it in terms which seem to us to apply strikingly to the present case…… We are fortified in our conclusion by the fact that the doctrines laid down in McCulloch’s case have been adopted and followed in the interpretation of the Constitution of the Dominion of Canada by the Courts of the provinces of Ontario and New Brunswick since the year 1878, and that their decisions, though uniformly adverse to the provincial Governments, have not been made the subject of appeal either to the Judicial Committee or to the Supreme Court of Canada. (See Le Prohon v. Ottawa, 3 Ont., A.R. 520, and the other cases cited by the A.G. for the Commonwealth.)

I think the Attorney-General, when he referred to the American decisions, also added that they had not been accepted as an authority in Australia, but, so far, had been overruled by the States Supreme Courts, and had not been recognised by the Privy Council. I think that now the AttorneyGeneral will admit that the Australian High Court, at all events, does not take that view, but does recognise the American decisions.

Mr Higgins:

– I was ‘very guarded, and merely said that “up to the present” the decisions had not been accepted.

Mr DEAKIN:

– The Attorney-General is always guarded, but he will not be able to take the same view now.

Mr Higgins:

– Certainly not.

Mr DEAKIN:

– The ‘ judgment proceeds -

In no American or Canadian case that we can find has it been denied or even doubted “ that the Constitution and the laws made in pursuance thereof are supreme; that they control the constitutions and laws of the respective States, and are not controlled by them.” Nor has it been in any way questioned : “ First, ‘that a power to create implies a power to preserve. Second, that a power to destroy, if wielded by a different hand, is hostile to, and incompatible with, these powers to create and to preserve. Third, that, where this repugnancy exists, that authority which is. supreme must control, not yield to, that over which it is supreme.” (Marshall, C.J., 4, Wheaton, at page 426.) These declarations which are so obvious as to be almost truisms, have found clear expression in the Constitution Act itself, which, in its fifth section, commands that “This Act and all the laws made by the Parliament under the Constitution shall be binding on the Courts, Judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State.”

I do not know that I could advance my argument further by calling attention to the several points of difference and many points of agreement which, it seems to me> . are to be found between the case which was before the High Court and the case which is now before the House. To me the par”allel is complete. Of course, in saying that, I rely on the fact that express words require, in my opinion, to be used to bind the State under sub-section xxxv. A very lucid classification of the constitutional powers under section 51 was given by the honorable and learned member for Corinella during the recent debate. The honorable and learned member distinguished those cases in which the power is clearly intended’ to be absolute although the State is not mentioned, those in which the State is clearly not intended to be included and: specific reference is therefore made to the State, and those in which it may be open to argument whether the State is or is not intended to be covered. I have always admitted that sub-section xxxv. is open to argument, but to my mind it is only so open when regarded from a strictly technical point of view. It seems to me that, looked at constitutionally, and in its place as one of the powers of the Commonwealth, and having regard to the sections which are inserted in order to guard the powers of the States - taking a broad view of the Constitution as a whole, and of the necessary doctrine which must be adopted in order to enable both the central and States Legislatures and Executives to perform their work - the proposal put forward by the Government would, if adopted, imply such a breach of that doctrine, and such an invasion of the integral rights of the States in their most vital part, that I find myself unable to attach more than a slight weight to the fact that, technically, the section does not set out, as it might have set out, in express words ‘that it is not intended to apply to States public servants. It appears to me that the whole weight of implication, both regarding them as servants of the Crown and as necessary agencies of the States, or having regard to the great doctrine of Marshall, so often upheld and continually reiterated, requires that this proposal being repugnant to that doctrine, ought not to be entertained by this House, and would not, I think, be entertained by the High Court. But, before I conclude, 1 should” like to read one other passage from this judgment which’ has been referred^ to, a constitutional classic, as, in my opinion, it deserves to become, because it deals indirectly with the judgment of the Supreme Court of this State.

It has been suggested, although the point was not pressed by the Attorney-General for Tasmania, that the doctrines enunciated in McCul-“ loch’s case are not applicable to the Commonwealth by reason of the power of veto reserved to the Crown by the Constitution.

That was the view adopted by tie Tasmanian High Court, following the decision of the Victorian Supreme Court in Wollaston’s case. The judgment proceeds -

It is, however, the duty of the Court, and not of the Executive Government, to determine the validity of an attempted exercise of legislative power. The assent of the Crown cannot, nor can the non-exercise of the power of veto, give effect to an invalid law. And it would be to impose an entirely novel duty upon the Crown’s advisers if they were to be required, before advising whether the power of veto should be exercised, to consider the validity under the Constitution of the provisions of each Act presented for the Royal Assent.

That, as already said, is the function of the Judiciary. And, even if such a duty were cast upon the Executive Government, it could neither relieve the Judiciary of their duty of interpretation nor affect the principles to be applied in that interpretation. It is convenient at this point to advert to another misapprehension into which the learned Judges who formed the majority of the Court seem to have been led. They appear to have thought that, accepting the doctrines of McCulloch v. Maryland as sound law, it is a question in each case whether the attempted exercise of State authority actually impedes the operations of the Federal Government - in other words, that the interference must, in its extent, be such as to cause some actual obstruction or hindrance.

Now, by interjection, I have gathered that some honorable members opposite raised that very view in reply to the argument which I am now reading. This is how the High Court deals with it -

Were this the true point of view, the validity of a State law would depend on a question of fact to be determined, presumably, by a jury, who would be charged to inquire whether the attempted control or interference amounted to a substantial obstruction. It is, however, manifest that ‘ the extent of an interference is quite a different thing from the existence of interference in fact. A man’s enjoyment of a large estate is not appreciably diminished by the occasional passage of a stranger across an unfrequented part of it. But if the stranger passes under a claim of right there is a substantial interference with the owner’s right of property. So, the power claimed for the State of Tasmania is, in its nature, in conflict with the exclusive power of legislation given to the Commonwealth over its own departments, and the greater Or less extent to which it may be exercised does not enter into the inquiry concerning its existence. Applying then the test already enunciated, does the Tasmanian Stamp Act, assuming it to be applicable to the case,’ interfere with or exercise control upon the action of a Federal officer in the discharge of his duty to the Commonwealth ?

They proceed to answer that, and later on they continue -

Before passing from this branch of the subject, the case of Bank v. Mayor (7 Wallace, 16, t868), already referred to, may be mentioned, in which it was pointed out, in a passage which commends itself to our judgment, that taxation of any subject-matter necessarily implies control, and also the case of Crandall v. Nevada (6 Wall, 35), in which it is shown by very cogent ‘argument that, the question in such cases is not the extent to which a tax interferes with or controls freedom of action, but whether there is any power to tax. If ,the power exists, no Court can inquire into the propriety of its exercise. In several of the American cases cited to us this doctrine has been elaborated, and it has been shown - as is, indeed, almost self-evident - that a power to tax, whether it is exercised to the extent of one penny or 10s. in the pound, is equally a power to tax ; that, if conceded at all, it must exist in fullness; and that if -exercised to its utmost limits it might operate to the destruction or practical prohibition of the thing or transaction in respect of which the tax is imposed. These considerations lead to the inevitable conclusion that the Tasmanian Act in question, if construed as applying to receipts given by a Federal officer to the Federal Treasurer in the course of his Federal duty, would be an interference with him in the exercise of that duty, and would therefore be invalid. It is, however, in our opinion, a sound principle of construction that Acts of a Sovereign Legislature, and, indeed, of subordinate Legislatures, such as municipal authorities, should, if possible, receive such an interpretation as will make them operative and not inoperative.

The question which, by interjection, was raised in this House, was how the demand by a State Government, that a twopenny stamp should be placed on a receipt by a Federal officer for his salary, can be considered an invasion of the Commonwealth power. The last extract I have read supplies the reason. If you can tax to the amount of twopence, you can tax to an indefinite amount, because what the Court is concerned with, is not the propriety or amount of the taxation - that is a matter for the Legislature, or for the authority created - but with the power to tax. If ‘the Court once concedes the power to tax, its operation must be unlimited. In precisely the same way, to fall back upon the same illustration, it may be a question of this Chamber constituting itself an authority in matters of conciliation and arbitration, and raising wages by a single farthing, or a single shilling; because, if we have this power to deal with the servants of a State at all, we possess it absolutely. Instead of adopting the method, which we have proposed here - of creating a Court, and commending these questions to the justice and equity of that Court, we might dispense with such a Court, and substitute other considerations than those of justice and equity, directly embodying our own view as to what ought to be done in such circumstances. We should then posses the power, either by way of increase or reduction, to interfere to any extent with the hours, salaries, and cost of the public servants of the States. If we possess it at all, we possess it altogether, and no Court can put any limit to its exercise. I have, for what I hope are not improper purposes, probably wearied, and certainly lessened the number of my hearers, by the long extracts which I have made from these judgments. The Federal questions involved appear to me to possess such a magnitude of meaning that. I offer no other apology for making those quotations. I may have wearied the Committee, but at all events I have now taken advantage of the official record of the debates of this House to place within the reach of honorable members what appear to me to be the most cogent parts of some of the first judgments of the High Court of Australia, which will probably remain among the greatest judgments the Court will give for a long time to come. It appears to me that they show that, in contesting this proposal as I do at every stage on constitutional grounds, I have done no more than was my duty to those who sent me here, to the Federal Constitution by which we are bound, and to this House, which ought’ to be warned against those possible steps beyond its own boundaries which may lead to its action being rendered nugatory by judicial procedure, and which then will have brought it into conflict with other organizations representing our own electors in another sphere. This Bill, it has been jocularly remarked, though brought in for conciliation, has had the most stormy and most dissonant passage that could possibly be conceived. We lost an old and valued colleague, and we lost the Bill itself in the last Parliament because of this clause. We have lost a Ministry in this Parliament.

Mr Higgins:

– But we have gained another, and a very good one.

Mr DEAKIN:

– Not in this respect. If they had adopted our views we should have gained another. As it is, we have lost the provision of caution which we made, and we may lose more. Honorable members opposite must see that they are putting the whole of this Bill in peril by insisting upon the insertion of this proposal, because on this question, and, so far as I know, on this question only, they ‘are forcing into the ranks against them men who, on this measure in all its cardinal principles - and indeed, so far as I know, in all its main details - are entirely in its favour. They are proposing to insert in the measure what certainly is not essential in order to make it effective, which can be withdrawn and still leave ‘ it, one of the most beneficial measures ever passed by this or any other Parliament. Pass it, relating as it does to every- dispute extending beyond a single State which may occur throughout all the realms of private employment, and you pass it in such a form as will enable it to deal with every dispute that has ever occurred in Australia up to the present time - until recently, it might be said, everything that looked like a possible dispute extending beyond a single State. You will have passed a measure which will meet the public demand where it is keenest, because the urgency is greatest. Otherwise you will imperil and overload it to benefit classes of the community some of which are already dealt with by Arbitration Acts of the States, all of which can be so dealt with, whose members, whatever their grievances, would not assert that they are comparable with the grievances which the Bill was in the first instance introdued to remedy. These call for redress at a very early date. That is why I appeal to honorable members opposite to consider if it is a reasonable course which they are following. They have it within their power, I believe, to pass the measure without material amendment.

Mr Higgins:

– Does the honorable and learned member seriously suggest that we should at this stage abandon the amendment now before the Committee?

Mr DEAKIN:

– I would have the Government say to its followers that, realizing the value of the Bill, they are discharged from their obligations in respect to the amendment, so that the House may be free to pass a measure which every one wishes to see passed, without an addition which involves a dangerous constitutional problem, and which, if valid, will precipitate a conflict with the States which we do not desire, and for which we are not prepared.

Sir John Forrest:

– We have already asked them not to do it.

Mr DEAKIN:

– I am reminded that this is not the first appeal that has been made to honorable gentlemen opposite. It is an appeal which I have made at every stage- of the consideration of the measure, and I repeat it now only because I feel so strongly upon the subject. In following the course which they are now adopting, honorable members opposite are not treading the path of practical wisdom, but are allowing the substance to be sacrificed for the shadow. If the Government were content to pass the measure as it stands, and to deal with these classes of the community by a separate Bill, all the objections which I have urged against their present action would still have force, with one exception, and this is that the passing of the measure now before us would not be imperilled. However, they must be the judges of their own action. It is deliberate action, and I, therefore, feel it idle to make a further appeal. They will admit that I am not taking this course because I adopted it before, and that I am not persisting in an opinion merely because it is my own. Weigh the matter as I may, listen as I have listened to every argument urged in favour of the amendment, the more I study the whole issue the more I think the proposal fraught with danger to the Commonwealth, both as a matter of expediency, and still more as a matter of principle. As the result of my ripest consideration, and of an examination of the judgments to which I have referred, I must record my unhesitating and unequivocal opposition to the amendment.’

Mr. HIGGINS (Northern MelbourneAttorneyGeneral). - I have first to thank the honorable and learned member for Ballarat for his kind endeavour to remove any misapprehension which may have arisen with regard to my attitude as to the decisions of the great American jurists. To come to the substance of his speech, I cannot understand his anxiety to prevent the inclusion in the Bill of a provision which, at the worst, will, in his opinion, be harmless, since he feels confident that as soon as it is tested by the High Court the decision will be given that we had no power to put it into the measure; though, with his usual frankness, he admits that there is a doubt on the subject. But, notwithstanding this view, he has, in grave tones, prognosticated a cataclysm. I understand him to f ear that there will be almost a civil war in the States if the amendment is carried. He read an extract from a report of the strike in Colorado, with which I was pleased, because I thought the moral to be drawn was that anything was better than the position of affairs permitted where there is no Court of Arbitration. But instead of drawing the moral thatwe should experiment even, to prevent such disasters, he wound up with the suggestion that at this time of day, after one Ministry has been displaced and another come into office upon the issue, we should abandon the amendment.

Sir John Forrest:

– The Government have already abandoned part of it - that relating to the public servants.

Mr HIGGINS:

– Whatever faults we may have, we shall not be so dastardly as to adopt such a policy. We believe in ‘the amendment, and intend to push it. If honorable members have changed their minds in regard to it, let us know it; We have made the Conciliation and Arbitration Bill the first business to bring before the House.

Mr Deakin:

– But we are given to understand that the amendment is not a Government one in the sense of involving the fate of the Administration.

Mr HIGGINS:

– We have brought it forward for consideration at the first opportunity. Honorable members have voted for it once, and will, no doubt, do the same thing again. The principal point made by the honorable and learned member was that the amendment is an invasion of States rights. I have turned the words over in my mind again and again, but I do not understand what he means by them. I deny that in this Constitution the State has any rights. The only rights the Constitution recognises are the rights of the people, under different classifications. There is no State right. There is simply a right in the people to express themselves in the two Houses of the Parliament, one of which we may call the States’ House and the other the people’s House.

Mr Mcwilliams:

– The States have a right to all the powers which they have not conceded under the Constitution.

Mr HIGGINS:

– They have the right to retain all that they have not conceded ; but in this Parliament there are no States rights. The States rights, that is the powers of the States, are all reserved to them, and are exercised by the local Parliaments. If the amendment would seriously damage States rights, if it would be an invasion of them, why have not the States spoken against it? But we have had an election upon the issue, and the result has been that more members have been returned who favour the amendment than there were in the former Parliament who favoured it. Under the Constitution a States’ House - the Senate - is provided to look after what are called States rights, to see that there is no trenching upon the separate rights and powers of the States. But if there is any contrast between the House of Representatives and the Senate, it is that there is a greater majority in favour of the amendment in the Senate than there is in this House. What is the reason for the great anxiety of the honorable and learned member for Ballarat to prevent the passing of the amendment? He has read passages from the great judgments of Marshall and others about “ fettering,” “ controlling,” and “ interfering with” the States agencies and instrumentalities, but he is trying to push the . application of those cases and great utterances to extremes. If you said to six children, “ Here are some lollies,” and the fond parent came along and said, “ No ; it is for me, not for you, to give them lollies,” would that be an invasion of the rights of the children? The test is: “Are you, by the action you are taking, hampering the States, or are you helping them?” The theory underlying the power of conciliation and arbitration is that it will provide a means of helping, not of hampering, industries. Does the honorable and learned member mean to say that he regards an Arbitration Court as an obstacle to industry, as something which is calculated to hamper or injure industry ? I apprehend not. Heis a sincere advocate of Arbitration Courts for the purpose of helping industries, both employers and employes. It may be right or wrong.

Mr Deakin:

– If the honorable and learned member’s argument is correct, as I put it, we do not need a Court at all. There is no obligation to create a Court.

Mr HIGGINS:

– No, there is no obligation.

Mr Deakin:

– I am entirely in favour of this form of exercising our power, but we have much greater powers which it might be proposed to use in a way of which I would not at all approve.

Mr HIGGINS:

– One of the means of promoting conciliation and arbitration is by creating a Court, and that seems to be the common-sense course to adopt under present conditions. If that device is a good thing for private industries, it may be a good thing for States industries. If it may be a good thing for public industries, why should we not give the King the benefit of it? The position which I have taken up under the Constitution is not that subsection xxxv. necessarily includes the States, but that it may or may not include the States. The question is, however, whether in making a law under that sub-section we are necessarily compelled to exclude from its operation all public servants. We are dealing with a Constitution, not with a law, and in making laws we must remember that not’only the two Houses of Parliament are concerned. If honorable members will look at sectionI of the Constitution they will find that all our laws are made by the King, the Senate, and the House of Representatives. From the point of view of the law, the King has the right to interfere and exercise his power of pressure with regard to the making of our laws. Therefore, when we find that we have power under the Constitution to provide for conciliation and arbitration with regard to industrial disputes extending beyond the limits of any one State, and that the authority involves the power to create Courts of Conciliation and Arbitration, then, and then only are we required to consider the question : “ Ought we to apply this to the case of the King’s servants as well as of those engaged in private enterprises?”

Mr Mcwilliams:

– Is the amendment necessary ?

Mr HIGGINS:

– Yes, because we ought to make it perfectly clear that we intend to include States servants. If the King’s servants were not specially mentioned in this Bill it might be urged with more or less force that they were not to be affected. I do not mean to say that that argument would be absolutely valid, but I think it is our duty, when making laws, to do what we can to prevent questions from arising under them. Therefore, we propose to include in the Bill a provision that it shall apply to the King’s railway servants, and to others of his servants who may be engaged in industrial enterprises. We have, under the Constitution, a number of powers- One power is to legislate for conciliation and arbitration without any express limit beyond that which provides that our control shall be exercised only over disputes extending beyond anv one State. We are also empowered to legislate in regard to banking and insurance. In the two latter cases it is expressly provided that our legislation shall relate only to banking other than State banking, and to insurance other than State insurance; and inasmuch as the Constitution does not provide that our control by means of Conciliation and Arbitration Courts shall be limited to disputes other than disputes in which public servants are engaged, we are entitled to include public servants within the operation of the law which we are now making. There is one point in regard . to which I think that the honorable and learned member for Ballarat has been under the glamour of Marshall’s judgments for some time. I regret that he has allowed these judgments - if I mav say so respectfully - to influence his mind too much. If he were to approach this subject free from such influence, I believe he would come to the conclusion that- there is nothing, in the Constitution to forbid us to apply this law to the railway servants.

The honorable and learned member will find that Marshall’s judgments) and the decisions which are based upon Marshall’s views, are all founded upon the principle that one Government is not to hamper the operations of the other. Various expressions are used) such as “ fettering,” “controlling,” “ interfering with” ; but we may look through all the cases without finding one instance in which the Federal Government was held not to be entitled to help a State Government, or in which a State Government was held not to be entitled to help the Federal Government. The whole theory underlying sub-section xxxv. of section 51 of the Constitution, is that conciliation and arbitration helps industries - helps employers as well as employes. Would ito not be helpful to the Railway Commissioners if they knew that -none of their employes could strike, except under a penalty. Under the measure, as drawn by the late Government, railway servants were free to strike. It was provided in clause 6 -

No person or organization shall, on account of any industrial dispute, do anything in the nature of a lock-out or strike.

Now, “ industrial dispute, “ according to the definition clause of the Bill, meant only a dispute in which private employers were concerned. I ask, “ Why should we not give to the Railway Commissioners, and to the States Governments through them, the advantage of a provision which will prevent their employes from striking?” Had some such legal restraint been imposed upon the Victorian railway servants in the unhappy events of last year, had they felt that they could appeal to a Court of Arbitration for the redress of their grievances, and had the Railway Commissioners been secure in the knowledge that any of their employes who went upon strike would be guilty of an offence and liable to a penalty, that strike, with its lamentable results, would not have occurred. We should not have been called upon to endure the loss which was sustained consequent upon the check which was given to business operations and the stoppage of our mails. I know, from personal experience, that letters which were going northwards were delayed considerably, and that very serious complications ensued.

Mr McLean:

– Have not the States themselves power to make these laws if they want them ?

Mr HIGGINS:

– They have not the power to deal with disputes which extend beyond their own territorial limits.

Mr McLean:

– But cannot they deal with disputes which occur within their own borders ?

Mr HIGGINS:

– The honorable member’s interjections are always pertinent, and I shall deal with that point presently. I regard provisions which are designed to secure conciliation and arbitration in industrial disputes, not as being calculated to hamper the States, but rather as being calculated to assist them. Until the honorable and learned member for Ballarat shows that their effect is to hamper the States in their operations he has no justification for applying the American authorities which he has cited. It is true that in America the Courts have decided that a State cannot tax a Federal officer upon his income, or levy a tax upon Federal notes. Similarly it has been held that a State cannot levy a tax upon any sort of Federal bonds, instrumentalities, or agencies. If a tax were imposed upon bonds their value would - decrease, and the Federal power, when borrowing again, would have to accept a less sum for its bonds. But I would point out that in every case in which decisions have been given against this power of dealing with instrumentalities, they have been based upon the ground that the interference has been by way of restraint, or hindering, or hampering. The speech of the honorable and learned member for Ballarat was largely composed of legal quotations. The more I heard of it, the more I regretted it. I think it is a pity that long discussions should take place in Parliament upon legal matters - upon what is within the scope of the powers conferred by the Constitution, and what is not. The more closely I watch the work of this Parliament ‘the more I am convinced that it is detrimental to the advance of Australia that we should continually be pulled up by the question, “ Is this within the letter of the Constitution, or is it not?”

Sir John Forrest:

– If the AttorneyGeneral argues one way in the Court and another way in Parliament, his position is rendered rather awkward.

Mr HIGGINS:

– I have not argued one way in Court and another way in this House, but even had I done so I should not feel my position an awkward one, because I have observed that the right’ honorable member for Swan speaks in one fashion when he occupies a seat upon this side of the House and in another fashion when he is in Opposition.

Mr Mcwilliams:

– Is it not very regrettable that the legal aspect of this question was not discussed at the Federal Convention ?

Mr HIGGINS:

– There was plenty of discussion upon legal matters in the Convention - indeed, there -was too much of it. It is a pity that this matter was not discussed, but it is a fault of the Constitution, which we cannot overcome, except by adopting a more elastic power of amendment. The honorable and learned member for Ballarat spoke of the impossibility of the Commonwealth controlling States agencies. He said that, under the Constitution, we could not control those agencies. But it is obvious from several sub-sections of section 51 of the Constitution, that the Commonwealth is to control those agencies. For instance, with regard to railways, we have power to control States railways for the purposes of naval and military defence. That may necessitate extra taxation being imposed upon the States, by involving additional expense In the working of the railways, the laying down of heavier rails, and a larger supply of rolling-stock.

Sir John Forrest:

– We should have to pay the States, I suppose?

Mr HIGGINS:

– Not necessarily.

Sir John Forrest:

– I think so. It would be unfair to make them work for nothing.

Mr HIGGINS:

– All I contend is that there is full power for us to control the States railways for the transport of the Naval and Military Forces of the Commonwealth. We can also compel the States railways to carry our mails. Moreover, every tax that we levy interferes with States agencies. The States can impose direct taxation only ; but we can levy taxation either by direct or indirect methods. We have power to impose direct taxation, and if we levied a direct tax of a certain sort, it would pro tanto diminish the power of the State to levy taxation. That, again, might be said to constitute an interference with a State agency, but, nevertheless, we have power to so intervene. The whole matter resolves itself into a very simple one. Seeing that there is a restraint upon our power to enact banking laws which interfere with State banking, and upon our power to legislate upon insurance matters, is.it to be implied by sub-section xxxv. of section 51 of the Constitution, that a similar restriction is applicable to a law for arbitration which prevents it from being extended to disputes in which the public servants of a State are involved ? The right honorable member for Ballarat pointed out that, by adopting the proposal of the Government, the Commonwealth may increase the cost of a State Department. Of course it may. But it may do that in many directions. Let us suppose, for example, that we determined to build a post-office in Tasmania. The carrying out of that work would involve a debit of the cost of the building against Tasmania.

Sir John Forrest:

– Only temporarily.

Mr HIGGINS:

– No. The . law would remain until it was changed by us.

Mr Deakin:

– No. That part would remain only until we settled the method to be adopted in paying for the transferred properties.

Mr HIGGINS:

– As far as the Constitution is concerned, that provision would remain until we made an alteration in it.

Sir John Forrest:

– It would remain for five years only.

Mr HIGGINS:

– It must remain for five years, but after the lapse of that period it will remain until we make other provision.

Mr Deakin:

– The section in the Constitution which provides for debiting the cost of any Commonwealth building to the State in which it is erected, will remain only until we decide upon the means to be adopted in paying for the transferred properties.

Mr HIGGINS:

– Is the honorable and learned member aware that when the Commonwealth erects a new post-office the cost can be debited against the State in which it is built ?

Mr Deakin:

– That is only until we have settled the system to be adopted in regard to the transferred properties.

Mr HIGGINS:

– Every new undertaking upon which we enter by virtue of our powers may or may not mean an increase in taxation.

Mr Deakin:

– Not in this way.

Mr HIGGINS:

– If we have to choose between an increase of taxation involved by creating an Arbitration Court to deal with wages, and an increase of taxation as the result of strikes, . such as those which have occurred in Colorado, I prefer the former. In industrial, as in other matters, any peace is, in the long run, much cheaper than war. The mere fact that under this Bill the Court might decide to increase wages, and that that increase might mean increased taxa tion is not, in my opinion, a reason for saying that there is no power to create a Court that would apply to the different States.

The honorable and learned member must look, not at indirect, but only at direct results. We cannot be prevented from building a new post-office, and yet by erecting one we might compel a State to remove its Government quarters to’ another part of the town, or practically force it to transfer its buildings to the. next site. But we have nothing to do with considerations of that kind. They are not touched by the Constitution. The question is whether, by virtue of what we do, there is anything directly and necessarily hampering the operations of a State. I do not think that it is a question of taxation. The honorable and learned member for Ballarat has been much impressed by the judgment in the Tasmanian stamp case ; but I take it that he will not find anything in it that goes beyond the American decisions, that if the Federal power is able to operate in one sphere, and the State power to operate in another, then, in the absence of any express power being given under the Constitution, the Federal power cannot affect the State power. I do not intend to discuss this matter at any length, for I believe that we have all made up our minds on the subject ; but I would appeal to my honorable and learned friend to say why, if he is so confident of the meaning of the provision in the Constitution on which we rely, he is not prepared to leave the matter to the decision of the High Court. He was a main instrument in the creation of the Court, and knows that this question can be left with confidence to the decision of that tribunal. In order to obtain the ruling of the Court, it would merely be necessary to apply to have some . penalty inflicted or some award applied. It would be necessary only to ask the High Court to apply these powers, or to ask an inferior Court to do so, and on the decision of the lower Court the question could be brought before the High Court of the Commonwealth and determined. The whole question could be tested without any friction. If this proposal is in itself a good thing, why should we not accapt it, and test whether there is power to adopt it ?

Mr Mcwilliams:

– But could not the point be tested by dealing with the public servants of the States in a separate Bill ?

Mr HIGGINS:

– I do not think it would be well to do anything of the kind; I think the honorable member will admit that it would certainly not become us to do anything of the sort, and that we should be breaking our pledges if we were to say to our constituents - “ We were in favour of a provision of this kind, but omitted it from the Bill.” The honorable and learned member for Ballarat has urged that we should exhibit the best practical wisdom by dropping this proposal. I feel satisfied, however,, that he would not say that the Government would show the best practical wisdom by doing so ; that he would not ask us to be such dastards -even if we thought that it would be a good thing to do so - as to put it aside at the present stage. We could not do that. . It seems to me that inasmuch as there are so many persons anxious for this ‘ provision, we shall display the best practical wisdom by passing it and leaving it to the highest ‘ Court to determine whether or not it is constitutional. Having regard to the pledges given at the last elections, and knowing the pressure which electors brought to bear upon candidates in connexion with this matter, I feel that there would be a tremendous Outcry if the proposal were dropped at the present stage, and that we should incur a very grave responsibility if we neglected to push this measure through by all the means and influence in our power. I am amazed to find that so many lawyers hold that we have not the power to give effect to this proposal. In view of their opinion, it would be idle for me to refuse to admit that there must be some doubt on the point ; but until I heard these honorable and learned members I did not entertain the slightest doubt in regard to it. I gladly recognise at the same time that they are as a body at least as competent as I am to judge. I feel that if honorable members still feel any doubt in the matter it would be important that a test case should be brought about as soon as possible, in order that the decision of the High Court might be obtained.

Sir WILLIAM LYNE:
HUME, NEW SOUTH WALES · PROT; IND from 1910

– How could we bring about a test case?

Mr HIGGINS:

– By attempting to enforce a penalty or to apply an award.

Sir John Forrest:

– By creating a strike extending beyond the boundaries of any one State.

Mr HIGGINS:

– The right honorable member’s influence is so great that I feel sure he would be able to at once create a strike. In Western Australia, at all events, it would merely be necessary for him to put up his finger, and, if he desired it, there would at once be a strike.

Mr Mcwilliams:

– How could we have a test case?

Mr HIGGINS:

– I have not thought that matter fully out; but, if there were a strike, and an application were made under the provisions of clause 6 for the imposition of a penalty, the Court would be asked to say whether the law was valid.

Sir William Lyne:

– That would not take place until a serious position arose.

Mr HIGGINS:

– I admit that this measure is to operate only in relation to serious matters; but I feel little doubt that by arrangement between the parties some facts might easily be admitted upon which a test case could be brought before the Court. I would only say in conclusion that if we are to adopt the best practical course, we should leave out of consideration the fine arguments of law that we have heard, as well as the great utterances of Chief Justice Marshall and others to which reference has been made, and, without regard to what the lawyers say, go forward on lines which we think most expedient, without regard to even our own views of the law, but simply going on the question of expediency. Let us fight it out on that question - is it advisable or not ? Let those who are in favour of the view that it is expedient go on one side, and those who are against that view, go on the other side, and then let us leave the point as a doubtful one, to the Court to decide, as early as possible.

Mr CROUCH:
Corio

– I feel that, after the great speech and splendid arguments we have heard this afternoon from the honorable and learned member for Ballarat, it is almost an intrusion on my part to speak. Those of us who are here, do feel very greatly privileged to have heard it. “ In regard to the very copious extracts which the honorable and learned member made from judgments delivered in Tasmania, and which he described as monumental, and such as would be stored up for years to come, certainly some of those judgments seemed to me to have the familiar ring of his own speeches in this House, just as if some of their Honours had stored their memories with words and phrases which he had addressed to this House.

Mr Deakin:

– That is because I quoted Marshall so much.

Mr CROUCH:

– Possibly so. I tried to make an interjection, of which the honorable and learned gentleman did not seem to see the point when he Avas referring to that extract from the Age. in which it was stated that, in Colorado recently, and perhaps now, 300,000 persons and£10,000,000 worth of property were affected by a strike. What I interjected was that, twelve months ago in Victoria, 1,250,000 persons and £40,000,000 worth of property were affected by a strike, I wished him to try to apply the same state of things that he wants to apply to Colorado, to prevent a recurrence of the railway strike, which threw that large number of persons out of employment and brought that vast amount of property into peril here. I must, however, do him the justice to say - and I think he did so state when he was Prime Minister - that if this were a State Parliament dealing with this subject he would include State railway servants.

Mr Deakin:

– Hear, hear.

Mr CROUCH:

– I am glad that the honorable and learned gentleman assents to that statement. But I want to take him further than that. Knowing that this Government propose to extend the area of the Commonwealth Public Service, that they intend to have a bank-note factory, a clothing factory - at least, the erection of such a factory was proposed last session, with the approval of some Ministers - and a tobacco factory, and to increase largely the number of Commonwealth public servants in these directions, I think that we can take the late Prime Minister this far, that in order to be consistent with his statement - that if he were a member of a State Parliament, he would include State railway employes in this legislation - he should go with us to the extent of including in the Bill those men who are distinctly under our jurisdiction, and all those other phases of Commonwealth industrial life which, under the advanced socialistic and nationalistic policy of the Government, seem to be coming. Certainly the honorable and learned gentleman should be only too glad and ready, if he is logical, to include those persons in the scope of this Bill. So far as that part of the amendment I have given notice of is concerned, he should be with me. When the present Prime Minister was announcing to the House the policy of the Government, he told us then - -for the first time to my knowledge - that he would not propose to include all public servants in the Bill.

Mr Watson:

– I expressed a doubt on the point in September last.

Mr CROUCH:

– And I interjected, “ Then you abandon the public servants “? His reply is not completely recorded in

Hansard, because, to the best of my recollection, he said, “ Well, we do not abandon them,” and then he added, “We abandon nobody. “ There is no doubt that there has been an abandonment by the Ministry of public . servants, State and Commonwealth, in this matter. I need only refer to the speech which the Minister of Trade and Customs made on the 19th April last, when he was moving the amendment which, on being carried, dispossessed of the Treasury Bench the late Government -

If a Conciliation and Arbitration Act is desirable, I claim that its provisions should be applicable to the whole of the workers, irrespective of whether they are in the employ of private individuals, of the States, or of the Commonwealth. I should like to know the difference between an employe in the service of the Commonwealth and an employé in the. service of a private individual.

So that we can take it that, so far as he was concerned, he was only too agreeable to include, not only the industrial portion of the States employes, but the whole of the public servants. Speaking on the same date, to the amendment of the honorable member for Wide Bay, which included public servants, the present Prime Minister is reported at page 1061 of Hansard to have said -

I do not wish to do more at this stage than to say a few words with regard to the expediency of this amendment. Of course, I make no appeal to honorable members who, like the honorable member for Wannon, are opposed lock, stock, and barrel to the Bill. We cannot hope to convince them of the desirability of making the Bill harmonious and complete. We must leave them to the judgment of their consciences, and the tender mercies of the electors a little while hence. But to the other members of the House - and I am glad to say that there is an overwhelming majority in favour of the principle of compulsory conciliation and arbitration - I certainly do appeal not to leave outside the provisions of a measure which they declare to be beneficent in its action a large proportion of the members of this community. If strikes are disastrous - and I think there are but few persons in the community to-day who will not admit that they are - this measure is the best one that can be devised under present conditions to try to prevent their occurrence, I ask why should many thousands of those engaged in industries be excluded from the operation of its provisions?

Speaking on the 19th April, the Minister of External Affairs said -

We now ask that the pledges given to the people shall be respected -

I intend to ask that the pledges given to the people - the pledges . that induced me to vote against the last Ministry - shall be respected - and that the civil servants of the Commonwealth and the States, together with the railway employés of the States, shall be included in its provisions. So far as any constitutional difficulties are concerned, if they exist, I do not regard them as serious,

Here is a lawyer - the only lawyer at that time in the Labour Party - saying that he thinks that both Commonwealth and States public servants should be included in the Bill, and that he does not regard constitutional difficulties, if they exist, as serious - because in the last resort the High Court is the only tribunal which can decide the issues involved.

Afterwards the Minister of Trade and Customs spoke to the amendment. I am only referring to the speeches of Ministers. No doubt, if I were to go through the speeches of those supporters of the Government who spoke on that occasion, I should find that one after the other rose here and said, “ I think that every public servant should be included; but my desire is to leave this question to the High Court to decide.” I believe that all the members of the Labour Party who spoke took up that position, and supported the amendment. I find that on the 21st April the Minister of Trade and Customs summed up the position of his party, just before the vote was taken on his amendment to include public servants, in these words -

My own idea is that a Bill of this kind should contain no restrictions whatever. The limitation which is contained in clause 4 is one to which I particularly object. I hold that we ought not to insert any restriction which will have the effect of preventing the public servants of the Commonwealth and the States from coming under its operation.

I was anxious to see to what extent the present Ministry, and my late colleagues in support of including public servants in the Bill, intend to be consistent, and consequently I gave notice of an amendment for that purpose. I move -

That the amendment be amended by the insertion, after the word “ employment,” of the words “in the Public Service of the. Commonwealth.”

At the request of the Prime Minister, and certainly without a desire to embarrass anybody, [ do not propose to strike out the subsequent words. That amendment, I think, sufficiently meets my position. A newspaper said this morning that in moving this amendment, as far as the Public Service is concerned, I am out-Heroding Herod. I think that the writer of that

3N

statement has gone astray in his scripture, because I am really trying to bring the Government back to their position of pristine purity and consistency, so that instead of being described as out-Heroding Herod. I should rather be described as a John the Baptist.

Mr Deakin:

– Why, is the honorable and learned member going to have his head off ?

Mr CROUCH:

– I should be described as one who is trying to bring the Ministry back to that primitive state of consistency and honest conviction which 1 think they had before they got into office. As I have shown from their speeches, ever member of the present Ministry, except the Attorney-General, was strongly in favour of including the public servants under the Bill. I must say that it is a compliment to those of us who regard ourselves as democrats that as soon as the AttorneyGeneral, who’ is a true democrat, got into the midst of the Labour Party, he was able to lead not only the Government, but the caucus as he pleased. I do not think that the Labour Party is always democratic. I think that its members are too much tied, anil that it is too autocratic in its methods for free men. The Attorney-General was able to point out, when sitting behind the late Ministry, that there was a constitutional difficulty. He is the one consistent free man in the present Government. He said definitely that the Arbitration Bill should extend to all industrial workers in the Commonwealth, but not to all public servants. But I never heard any other member of the present Government say that. Every ohe of them said - “Let us leave it to the High Court. We are quite willing to include all public servants; we do not know whether we have power to do that or not. But as a matter of expediency, let us include not merely railway men ; let us make absolutely no exceptions. Let us include every man, woman, or child who has the possibility of striking, and give them the right to come to the Court.” That is the position which I intend to take up to-day. I am going to see what those honorable members who made such statements a month ago are going to do when the division is taken. I wish to know whether thev intend to be consistent or to swallow their convictions. I take it that if .the solid band of twenty-three members ‘who support the Labour Party meant what they said .when they gave their pledges to their electors, and what they said when. they declared that they were sorry to turn out the Deakin Government, they will vote for my amendment.

Mr Watson:

– The honorable and learned member for Ballarat objects even to one public servant being included under the Bill-

Mr CROUCH:

– Quite so; and he has always taken up that position, but, on the other hand, the Labour Party were always claiming to be the friends of the public servants. They go upon every platform in this State and say that they are the friends of the public servants. During my election I was charged with inconsistency because I was not prepared to support everything that the Public Service demanded. In consequence of a belief that the Labour Party are the strong supporters of the Public Service, I find the railway servants selecting labour men as their candidates for election at the forthcoming State elections. The bulk of the public servants will probably support, labour men, and every labour man makes an appeal for the Public Service vote. Yet the first time the members of the Labour Party have an opportunity of showing their sincerity in this direction the Government - I hope notthe supporters of the Government - throw the public servants overboard, and say that they intend to limit the Bill to what a democrat - a man who is not in chains, and was not a member of the labour caucus - said was the true position. They will have to depend upon the votes of the Opposition, and the men they displaced, in order to carry their first division. It seems to me that the Government are anxious to get out of a difficult position by accepting a constitutional view which previously they were only too ready to reject. I am anxious to see whether, the honorable member for Melbourne Ports and others who were with me previously will be consistent in their votes on the present occasion. I desire to explain that in moving this amendment I am not acting only in the interests of the public servants. I am acting just as much in the interests of the States, and believe that’ I am protecting States rights and privileges just as- much as is the honorable and learned member for Ballarat. I take it that honorable members who support my amendment do not desire to support whatever the public servants want. My view is that whatever is right for an ordinary tradesman, or an ordinary employer, is equally right for the public servants of the

States. Honorable members are well aware that when the Public Service Bill was before Parliament we were inundated with letters from public servants informing us what they required, what their position was with regard to shorter hours, and higher schedules, and every thing else affecting their positions. They informed us of their opinions concerning the appeal board, for example. Every privilege which public servants claim was put before us. Occasionally the Minister in charge of the Bill made certain concessions, though he did not know what their effect was likely to be. I think that that was a very great pity. We are too unwieldy a body to deal with the Public Service of this country in a proper manner. We treat some very unjustly, and others with undue generosity. A court with assessors representing the Government on the one hand and the Public Service on the other is the proper tribunal to deal with such questions. Before such a body the Public Service could be represented by counsel, and the Commonwealth Government could also be represented by counsel. Then, instead of having the lobbying which undoubtedly took place when the .Public Service Bill and other measures of the kind were before Parliament, issues in dispute would be brought before a properly constituted tribunal, at whose hands both parties would receive justice. It may be argued that my amendment is unconstitutional, but if so I am merely in the position which the members of the Government took up previously. I am well aware that we shall be in a hopeless minority. It is impossible to expect that all of those who voted with us on the last occasion will vote with us now. But I believe that there are members of the Labour Party who, although following the Government, will not swallow their convictions simply because it is inconvenient to the Government that this amendment should be moved. ‘ The public servants have always been regarded as the special -proteges of the Labour Party, and those who hold that position will, I hope, vote with me, and be consistent.

Mr ROBINSON:
Wannon

– I wish to. again voice the objection I raised at the second-reading stage of the Bill, namely, that insistence on the exercise of this power by the Government and their supporters is an undoubted infringement of States rights, and is bound to land the Commonwealth in serious difficulty, and conflict with the States authorities. In the early stages of the Commonwealth, it seems to me essential that every effort should be’ made to induce the smooth working of the Constitution, as between the Federal Government and the States Governments. We know, from our experience of Federation-

The CHAIRMAN:

– I draw the attention of the honorable member to the fact that the amendment before the Committee relates solely to members of the Public Service of the Commonwealth.

Mr ROBINSON:

– Do I understand that we are not permitted, at the present stage, to discuss the amendment moved by the Prime Minister ?

The CHAIRMAN:

– We must first dispose of the amendment moved by the honorable and learned member for Corio.

Question - That the words “ in the Public Service of the Commonwealth “ proposed to be inserted in the amendment be so inserted - put. The Committee divided.

AYES: 10

NOES: 37

Majority … … … 27

AYES

NOES

Question so resolved in the negative.

Amendment of the amendment negatived.

Amendment (by Mr. Crouch) proposed -

That the amendment be amended by the insertion after the word “ employment “ of the words “ in the Public Service of a State and.”

Mr. ROBINSON (Wannon).- Am I to understand that this amendment will cover the whole ground of the debate which we previously had upon the amendment moved by the present Minister of Trade and Customs some time ago?

Arbitration Bill be carried or -not, it will be in the power of the Victorian State Government, or any other State Government, by altering the Public Service Act of the State, to make the position of State public servants a very great deal worse than it is now.

Mr. Tudor.- When?

Mr ROBINSON:

– Quite recently. The honorable member seems to pay very little attention to the facts of daily life. The inconsistency of his party has been well exposed by the honorable and learned member for Corio, who pointed out that one member of the present Government - I think the Minister of External Affairs - stated that the Labour Party were determined to wreck any Government which would not bring under the Bill all public servants. Now that they have an opportunity to do that themselves, they shrink from carrying out their promises, and they have not the courage to move the insertion of a provision bringing all public servants under the Bill. They have deliberately abandoned a large section of the public servants, and shelter themselves under what is, to my mind, a contemptible subterfuge. When the amendment of the honorable member for Wide Bay was being discussed, the members of the Labour Party wished to bring all public servants within the scope of the Bill, and to leave it to the High Court to test the constitutionality of the provision. Now they say that all public servants cannot be included, because it may be argued that the ordinary public servant is not engaged in an industry. It seems to me that the Government industries which have been referred to - the administration of the Railways and of the Post Office - are not industries in any other sense than that in which the administration of the Treasury is an industry. They have from the beginning been part of the ordinary functions of an Australian Government. The Ministry are running away from the position which they took before the people at the last election, and are abandoning a large section of the Public Service without offering an adequate reason for their action in doing so. Their own excuse is that one member of the Cabinet advises them that it might be going too far to attempt to apply the Bill to all public, servants. Therefore, they are not prepared to stand by the position which, before taking office, they said they would stand by. Moreover, they boasted that they would bring everybody in Australia under the Bill. The late Government proposed to exempt from the operation of the Bill a very numerous class of workers, and the present Administration apparently do not intend to repair that omission. I refer to domestic servants. I suppose there are as many thousands of persons working as domestic servants as are employed in any industry in Australia, and yet the Government do not propose to bring them within the .scope of the Bill. Therefore, it appears to me that all the talk of the Government and their supporters about adherence to principle is mere affectation. They are prepared to throw over their principles as quickly as, in fact, a good deal more quickly, than any one else. If they are allowed to remain in office much longer, they will probably yield up their principles as readily as the draper sacrifices his winter goods on a hot summer day.

Mr Hughes:

– What are the honorable and learned member’s principles?

Mr ROBINSON:

– I announced them in my speech on the Address-in-Reply. They are very much like what the honorable and learned gentleman’s principles used to be. I believe that this attempted exercise of power is unconstitutional. There are two senses in which the word “ unconstitutional “ may be used, namely, in the Federal sense of something ultra vires of the Constitution, and in the strictly British sense of the arbitrary exercise of discretionary power. I contend that if we have the power to bring public servants within the scope of the Bill, it would be unconstitutional on our part to use it, because it is a discretionary power, and to give effect to it at present would be arbitrary and, therefore, unconstitutional. It would also be unconstitutional, in the wider Federal sense, because I think that we do not possess the power, and, therefore, should not attempt to use it. For these reasons I am determined to oppose the measure. I adhere to the position which I took up on a former occasion, when I said that no objection to any Government would force me to vote for any proposal that would strike a blow at the Constitution. I hope that a sufficient number of honorable members will be found to reverse their former vote, to give us a majority against the Government proposal, and enable us to show that we are determined to stand by State rights, and not, at this early stage of our existence, to imperil Federation, by entering upon a struggle with the States Governments.

Mr McCAY:
Corinella

– I should like to know whether the Government have accepted the amendment proposed by the honorable and learned member for Corio?

Mr Fisher:

– No.

Mr McCAY:

– Then I must confess that my dominant feeling is one of sympathy with the Government,- which is doing something alien to its professions and utterly contrary to the feelings which have been expressed by Ministers and their supporters in this House and elsewhere fur some time past. I am specially sympathetic - if it be not contrary to the Standing Orders, to be sympathetic with a Minister when sitting in opposition - with- the Minister of Trade and Customs, because I re- . member the strength and fervour with which he, as well as other members of his party, explained that no citizen of the Commonwealth was to be deprived of the benefits of this Bill. I am the more puzzled to understand the present attitude, of the Government, when I recall the statement made by the Prime Minister this afternoon that the intention of the Government, not to include all public servants within the scope of the Bill, was due to an opinion given by the Attorney-General that, probably, they would not all come within the express provisions of the Constitution. I am sorry that the Attorney-General is not present, because I should like to know whether he has expressed the opinion that the proposition that no public servant outside of the railway servants of the States can come within the provisions of the Constitution relating to conciliation and arbitration, is not open to argument.

Mr Deakin:

– The Attorney-General, thought that some of the post-office employes might be brought within the scope of ‘the Bill.

Mr McCAY:

– Those employes would be servants of the Commonwealth. I am puzzled, for example, to know how to distinguish between a State railway servant and a State compositor, or employe in a Government Printing Office. On what grounds do the Government base their objection to give certain privileges to employes in the Government Printing Offices, whilst they are prepared to grant them to railway servants? It is true that Government Printing Offices are not spread so widely over the. land as are the railway services, but I should not dream that any consideration of that kind would influence the Government. If, however, the matter is not perfectly clear, I should like to know how the Government and their supporters justify their present attitude, in view of the opinion expressed by nearly all of them, that doubtful questions of law, on which honorable and learned members have given varying expressions of opinion, should be left to the decision of the official arbiter of the Constitution, namely, the High Court. I remember the honorable member for Hindmarsh stating that the only effect of the opinions which had been expressed by honorable and learned members had been to make the darkness more profound, and that he for one desired to leave the question to the High Court, which was the only tribunal able to give an authoritative decision. Surely the Government are not going to shelter themselves behind the fact that the Attorney-General has given an opinion which makes the matter doubtful, and to decide against the very people in whose interests they fought so vigorously and so nobly a few weeks ago. When the Attorney-General of the late Administration gave a strong opinion against the proposal to bring railway servants within the scope of the measure, they paid no heed to him. Is it because the opinion given is that of the Attorney-General of the present Administration that it should be obeyed^ without question? Are we to understand that an opinion given by an Attorney- General in another Administration is not 10 be treated with respect ; or are opinions to be followed only when they suit ? Such a course may be very convenient for the time being, but if that principle is to be invariably adopted, the Government may find themselves in a very unhappy position. I am surprised at the attitude assumed by the Government in this matter. I differ from them fundamentally on this question, because, in my opinion, .their proposal is contrary to the spirit and letter of the Constitution. I have no ground of complaint against them because they differ from me, but I am very much disappointed to find them acting contrary to the professions which they recently made. I am ‘disappointed that the party who, above all others, have, I venture to think, adhered to their professions, their solidarity, and continuity of purpose, should, at the very first test, be found lacking in that courage which they have always insisted the dominant party should have - the courage to carry into practice the principles which they profess. Only this evening I voted with the Government; but that was because I had voted in the same way before. I did not do as the bulk of their supporters had to do, change my vote all of a sudden because of the change in conditions here. I voted against the amendment of the honorable and learned member for Corio; but I should like to know why the Government voted against that amendment. Surely the Attorney-General has not given an opinion that it is unconstitutional to bring the servants of the Commonwealth under the operation of the Bill. T do not believe that the present AttorneyGeneral, or any conceivable AttorneyGeneral, in the House, or at present in his cradle, would give any such opinion as that none of the public servants of the Commonwealth could constitutionally be brought within the provisions of the Bill. Why did the Government vote against the amendment? That amendment was split into two parts, the public servants of the Commonwealth and the public servants of the States being dealt with in separate proposals. Why did the Government vote against the proposal to include the public servants of’ the Commonwealth? Was it because the Government thought it expedient so to vote ? Was it because the Government believed that the Commonwealth Parliament is better able, or, at any rate, is as well able, to deal fairly with its servants as could be any Arbitration Court? That seems to me a reasonable explanation. I do not know, however, whether the Government will accept such an explanation; but if that be the case the Government is in the position of saying, “ The Commonwealth Parliament is quite able to deal fairly with its own servants, but the States Parliaments are not able to so deal with their own servants.” Is that the taunt which is flung at every State Government, namely, “ We are the real Simon Pure, and can deal fairly with our employes, and, therefore, shall not bring them under the provisions of our own Bill “ ?

Mr Hughes:

– That is not at all the attitude of the Government.

Mr McCAY:

– I should be very pleased to hear any member of the Government give an explanation which would be satisfactory to anybody, even to themselves. I confess that the action of the Government to-night does not increase my admiration for them.

Mr Hughes:

– The honorable and learned member’s admiration for the Government was, originally, very great.

Mr McCAY:

– In many respects T have great admiration for the party of which the Minister of External Affairs is such a distinguished ornament. But when I find the members who are chosen to fill the responsible position of Ministers, running away from the trust they have voluntarily undertaken, that is not calculated to increase my admiration for them. One may admire the policy of the Government without admiring the exposition of the policy. I must confess that I am utterly at a loss to understand how the Government can vote against the inclusion of the public servants of the Commonwealth ; for the inclusion of any section of the public servants of the States, and against the inclusion of a section, in regard to whom, at any rate, there is some doubt as to the constitutional position, except on the ground that the Commonwealth Parliament does not require to delegate to another tribunal the power to deal with Commonwealth servants, while, in the interest, possibly, of the States as well as in the interests of the States servants, it is necessary to delegate to another tribunal, and to one not approved in any shape or form by the States, the power to deal with States servants. I shall, of course, vote against the second amendment just as I voted against the first, and as I shall vote against any further amendment proposed by the Government. I have heard or read nothing to alter the opinion I before expressed that this is an attempted exercise of power which is beyond that conferred by the Constitution. Without endeavouring to discuss the legal aspect of the question, I mav say that so far as one can judge, the trend of the decisions of the High Court, which is helping to develop the Constitution, are, at any rate, in the direction of confirming the view that I, as well as others, have taken of this particular question. I am puzzled to understand the action of the Government, though, of course, the Government are under no obligation to relieve my mind of its state of puzzledom

Mr Hughes:

– The honorable and learned member said that before.

Mr McCAY:

– I did not.

Mr Hughes:

– The honorable and learned member said something very like it.

Mr McCAY:

– I did not say that before, though I may have said something very like it. What I say now is as little like what I said before, as the action of the Government before they took office, is like their action at the present moment.

Mr FISHER:
Minister of Trade and Customs · Wide Bay · ALP

– The honorable and learned member for Corinella is quite within his right in expressing sympathy with the Government, and also his astonishment at. what has -taken place. I suppose the astonishment arises from the present Government being in po>wer.

Mr McCay:

– No.

Mr FISHER:

– And that his sympathy arises from the fact that the honorable and learned member finds himself in a difficulty. The honorable and learned member is good enough to say that he will support the principles in which he believes; and if he does so, he will support the Government. I suppose the honorable and learned member has been a member of a Government ?

Mr McCay:

– For a very short time, I am sorry to say - about three weeks.

Mr FISHER:

– I am sure there is no honorable member who desires that the honorable and learned member should not hold office once again; and when he does, I suggest, as a good principle, that he and his party should determine to carry out the policy which may be submitted by their leader.

Sir John Forrest:

– Whether Or not the honorable and learned member believes in the policv submitted?

Mr FISHER:

– The right honorable member for Swan is the last in this House who should make any reference to what the conduct of a member of a Ministry should be. I would be the last to recommend the course pursued by the right honorable gentleman in making statements to this House regarding his attitude during the time he was a member of the late Government. As I understand it, the duty of a member of a Government, when he finds himself out of touch with his colleagues, is not to remain a day longer in their ranks.

Mr Mcwilliams:

– All the Minister’s colleagues voted in the same way.

Mr FISHER:

– That shows a unanimity of feeling, which is desirable in any Government. Why should not all my colleagues vote in the same way, when they agree on the policy? I believe that the great majority of honorable members contend for government in a constitutional way, of which we have heard so much during the debate. They say that a Government has, and can have, only one voice.

Mr Crouch:

– In this instance it is the voice of the Attorney-General, as against the voices of twenty-four others.

Mr FISHER:

– Even if that be so, it is the voice of a very good representativethe voice of a man who is honoured in Australia, and whose advice any Government might be proud to follow. The honorable and learned member for Corinella was good enough to refer to my own proposals in this connexion. But it is impossible to arrive at any satisfactory conclusion by comparing things which are unlike. The first Bill, which was introduced by_ the Barton Government, contained a provision specifically excluding the States and Commonwealth public servants from its provisions. I then contended, and rightly contended, that in a Bill of the sort no such clause should appear specifically excluding certain persons whom I thought it desirable should be brought under that measure ; and my desire was to eliminate that- provision. There is quite a different position now. My contention at that time, and later, was that the provision should be excised, and the matter left to be decided b’y the proper authority, namely, the High Court of Australia. Subsequently I held the same view; and when the Bill of the Deakin Government was introduced, containing a similar proposal, I desired to give Commonwealth and States public servants the same fair treatment as was to be extended to other employes.

Mr McCay:

– And to specifically include them.

Mr FISHER:

– That position was never reached.

Mr McCay:

– But that was the position then announced, Was it not?

Mr FISHER:

– I must admit that the legal advice given to me was that it was necessary to include, in specific language, those public servants, in order to bind the Crown. So far as I am concerned, there will be no concealment of anything relating to facts. The Government have submitted a proposition which gives effect to their policy. They ask the Committee to extend the definition to disputes in relation to - employment in industries carried on by and under the control of the Commonwealth or a State or any public authority constituted under the Commonwealth or a State.

Does not that amendment include even more than that for which the honorable and learned member for Corinella yearns?

Mr McCay:

– I am going to vote as I did before.

Mr FISHER:

– The honorable and learned member is, of course, perfectly honest in his expression of sympathy, although he does not look like one who sympathizes with men who are in a difficulty. That, however, is not the point. As a layman, it seems to me that nearly the whole of the public servants are covered by the word “ industrial.” That may be a purely layman’s view of the meaning of the word, but I think that every useful and necessary work, whether performed by hand or brain, will be held by the High Court to come under the definition of “ industrial.” That appears to me to be a very fair conclusion. I understand that the Committee desire to push on with the business before us, and if there is a wish to meet the convenience of the Government, as well as of the Committee, there will be no reasonable attempt to prevent the gratification of that desire. I do not think it is necessary to take up the time of the Committee by a general discussion. -The matter is well understood, and I trust that honorable members will come to the conclusion that our proposal is a reasonable and just one, that will cover all for which we have ever contended.

Mr KELLY:
Wentworth

– It seems to me that the Minister’s explanation of the change of front on the part of the Ministry is hardly satisfactory. Had he been of the same belief before that he is now he would have allowed his amendment to go by the board, and have waited patiently for another, amendment which specifically mentioned railway servants. We all know, however, that he pressed his amendment.

Mr Fisher:

– The honorable member was not a member of the first Parliament, in which I moved my amendment.

Mr KELLY:

– I am speaking of the Parliament of which I know. A change of front which takes place within a fortnight is far more a matter for self -congratulation than is one which extends over nine months or a year, and in that respect the honorable gentleman is more worthy of congratulation from me than he would have been if I had been a member of the first Parliament and had listened to the opinions which he then expressed. I do not wish to press this matter home.

Mr Page:

– Do.

Mr KELLY:

– I hear another Minister speaking from the back benches, but I was referring to the Minister of Trade and Customs. I shall turn over a new leaf, if the honorable member for Maranoa will permit me, and proceed with a general outline of my views on the question of the inclusion of railway servants, rather than discuss the attitude of the Ministers and the party generally on this question. When we are considering a measure it is well to look at the views of those to whom it is meant to apply, and for that reason I have glanced at the published views of the railway servants of New South Wales. We find that at the last elections a circular was sent out by the railway servants of that State, asking all candidates, firstly, whether they were in favour of a Federal Conciliation and Arbitration Bill ; secondly, whether they were in favour of - the full inclusion therein of the railway services by a specific clause, bringing them under the operations of the Act.

Thirdly, they asked - and this shows the true spirit for arbitration that prompted the leaders of these men - far be it from me to attribute it to the men themselves - whether candidates were in favour of -

Restriction of the powers of the Inter-State Commission, or, in the event of the railways being taken over by the Commonwealth, of the powers of the Railway Commissioners, so as to prevent them in any way increasing hours of duty, reducing wages, or interfering with rights, privileges, or immunities now enjoyed, and the insuring that all such matters shall only bedealt with, either by legislation ,on the part of Federal Parliaments, or by regulations framed and issued by the Federal Ministry, which be. fore being in force shall be subject to approval by the Federal Parliaments.

I take it that a Federal Arbitration Court will arbitrate in the true sense of the word - that it will not arbitrate on only one side of the sheet - but if this circular evidences the spirit which actuates these men, then, with all deference to what is perhaps the finest body of men in New South.” Wales, it seems to me that they are not yet ripe to come under a Federal Conciliation and Arbitration Act. I do not think, however, that it does evidence the spirit which really actuates the men. If they come under the Act I believe they wilt be actuated by a spirit of fair play ; that when they bring their affairs before the Court they will be quite prepared to abide by its decision, whether that decision be to their detriment or advantage. This circular, to which candidates were asked to subscribe, w.as signed by Robert Hollis, honorary secretary of the Federated Railway Locomotives Association of Australasia.

The CHAIRMAN:

– I would point out to the honorable member that we are nowdealing with the Public Service as distinct from the Railway Service.

Sir John Forrest:

– The railway servants are included in the term “ Public Service.”

The CHAIRMAN:

– Do I understandthat the honorable and learned member for Corio desires not to eliminate from theamendment moved by the Prime Minister the words, “ upon State railways,” but only to insert in it the words “ in the Public Service of the State and” ? I take it that the discussion is going directly on the lines of thedesirableness of including the Public Service as distinct from Railway Service.

Mr Hughes:

– Are we to understand, Mr. Chairman, that in the event of this-, amendment being carried it will be necessary to submit a further amendment to include railway servants ? If this amendment includes railway servants it must obviously be in order for the honorable member for

Wentworth to discuss it, although, incidentally, it also includes other public servants.

The CHAIRMAN:

– The amendment moved by’ the Prime Minister relates “ to employment upon State railways.” I take it that the honorable and learned member for Corio does not desire to eliminate the words “ upon State railways or “ but wishes to interpose other words which will include the Public Service of a State as distinct from railway servants.

Mr Crouch:

– And the railway servants.

The CHAIRMAN:

– If the honorable and learned member holds that “ Public Service” includes railway servants, and desires to include all, he could move for the elimination of the words, “ upon State railways “ with a view to insert in lieu thereof the words “ in the Public Service of a “State.”

Mr Crouch:

– I desire that the amendment moved by the Prime Minister shall be amended so as to read -

After “ State “ insert “ including disputes in relation to employment in the Public Service of a State and upon State railways. . . .”

I desire that the amendment shall include not merely those engaged upon State railways, but public servants other than those included in the Government amendment, the latter part of which strictly limits the provision to those engaged in industrial matters.

The CHAIRMAN:

– I take it, then, that the honorable and learned member for Corio desires to move that the amendment be amended by the insertion of the words “ in the Public Service of a State and,” and that if that amendment be carried, he will move a further one. Do I understand him’ to desire to include railway servants within the words “ Public Service of a State?”

Mr Crouch:

– The word “ and “ is at the end of my amendment, which will, therefore, include railway servants.

Sir William Lyne:

– I submit, sir, that if the amendment of the honorable and learned member for Corio is to include railway servants as public servants, and it is rejected, it will be difficult for the Committee to deal with railway servants specifically at all. Unless it is clearly understood that the phrase “ Public Service of a State” does not include railway servants, it will be far better not to test the question on an amendment of this kind. Otherwise I do not think that the question of including railway servants could be raised if this amendment were rejected.

The CHAIRMAN:

– I think it will be more convenient if the debate is confined strictly to the inclusion of public servants as distinct from railway servants. If that course is not taken and the honorable and learned member’s amendment is rejected, the Committee might be debarred from including railway servants in the Bill, because it cannot reverse a vote at which it has arrived.

Mr Crouch:

– Apparently, sir, I have not conveyed to you what I intended to propose. The words which I propose to have inserted after the word “ employment “ are “ in the Public Service of a State, and,” so that if carried the amendment of the Prime Minister would then read -

Including disputes in relation to employment in the Public Service of a State, and upon State railways.

If my amendment is lost, it will not follow that railway servants are not then included.

The CHAIRMAN:

– That will be the inevitable result.

Mr Crouch:

– No; because if those words are not inserted the amendment of the Prime Minister will remain at it is.

The CHAIRMAN:

– If the phrase “Public Service of a State” is adopted, it will include, according to the honorable and learned member’s contention, railway servants of the States.

Mr Crouch:

– No, or I would not have put the word “ and “ in my amendment.

The CHAIRMAN:

– Then I think that the discussion should be confined to the inclusion of public servants, as distinct from railway servants.

Mr McCay:

– No matter what the honorable and learned member for Corio intends the words to mean, they include railway servants. I do not think that the Court would take any notice of the fact that he did not mean the provision to include railway servants. A railway servant is not a public servant, if he is employed under an authority created by the State, and in some States I believe there is no interposing Railway Commissioner, so that, as a matter of strict interpretation, sir, the forms of the House may require you to hear the discussion over again, if honorable members should so desire.

The CHAIRMAN:

– It is not a question of my hearing the discussion over again, but a question of arriving at what is the sense of the Committee, and I think that I can best do so by confining the debate on this amendment to the inclusion of public servants as distinct from railway servants.

Sir William Lyne:

– Suppose that is done, sir, the Committee cannot say afterwards that railway servants are not public servants. If the question of the inclusion of public servants is dealt with, and railway servants are public servants, then the Committee will have dealt with the inclusion of railway servants. I think it should be decided first whether railway servants are public servants or not, because after the rejection of this amendment, the question will be raised again, and if there is an appeal to Mr. Speaker he must hold that railway servants are public servants, with whom we shall have dealt. A complication might then arise which would be very serious. We should adopt words that would preclude the possibility of a misconception which might have dire results afterwards.

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

– I quite agree with the honorable member for Hume that, if we were to take the largest extension first, it would prevent any subsequent consideration of a less extension. The simplest way out of the difficulty, I think, is to take a division on the amendment of the Prime Minister as far as the words “ upon State railways.” If we do not agree to that amendment, everything will go by the board, but if we do it will be open to the honorable and learned member for Corio to move a further extension by inserting the words “ and in the State Public Service,” or some words to that effect. If we can agree on the first amendment so far as the words “ upon State railways,” we shall settle the question of the narrowest distinction which any one wishes to make, and we shall be sure of what we are doing in voting.

Mr KELLY:

– I take it, sir, that your ruling is that the discussion should be restricted to the words “ Public Service of a State.”

The CHAIRMAN:

– No ; that is a suggestion which I made to the Committee. I cannot give a ruling that would be strictly correct, as the Public Service of some States includes railway servants.

Mr KELLY:

– If I can in any way help to convenience the Committee! I shall be only too glad. As my views on the broader aspect of the question of the inclusion of Public Services of the States - that of Federal expediency - have been so well and so fully put by able members, both in this Committee and in the House, and as my main objection to the inclusion of States servants is based on the ground of Federal expediency I shall not detain the Committee at this stage, but reserve all my forces for the question of the inclusion of railway servants when I get an opportunity to speak thereon shortly.

Mr Watson:

– The honorable and learned member for Corio might, to avoid confusion, adopt the suggestion of the honorable member for South Sydney.

Mr Crouch:

– I am not inclined to withdraw my amendment.

Mr Watson:

– There would be no objection to its withdrawal, I presume?

Mr Crouch:

– Except my own objection.

Mr Watson:

– I thought the honorable and learned member might do so, if he was convinced it was a proper course to take. It would get over the difficulty.

Sir JOHN FORREST:
Swan

– No doubt the Prime Minister would be very glad if the honorable and learned member for Corio were to withdraw his amendment.

Mr Watson:

– He could move it again.

Sir JOHN FORREST:

– It would relieve honorable members opposite perhaps of a little difficulty in which they find themselves.

Mr Page:

– No difficulty at all.

Mr Robinson:

– They are in the soup now.

Mr Tudor:

– No ; ‘ do not worry about us.

Sir JOHN FORREST:

– It is true that this question was before the electors in Western Australia, but they did not trouble very much about it. I desire to remind -the Minister of Trade and Customs - who is not here, I am sorry to see - of the saying -

By their fruits ye shall know them.

The honorable gentleman said something about my being the last person to say anything about inconsistency. I have yet to learn that I have ever voted in different ways in this House, and if anything I have- ever said here in my outspokenness has been misunderstood by honorable members, of course I cannot help that. I am not accustomed to change my vote or my opinion without a very good reason, and I have never done so, in this House at any rate. I have not done what the Minister of Trade and Customs has done to-night - voted in a different way from what he did six weeks ago. The proposal of the late Government was that Commonwealth and States employes should be excluded from the operation of the Bill. The members of the present Government and their supporters opposed that proposal with all their might, with the result that the Ministry was defeated, and resigned. They were in favour of public servants, railway employe’s, and all persons who are paid by the Government being subjected to the Bill, and they in both the last Parliament and this Parliament opposed the proposal of the late Government. One would have expected that, having gained a victory, they would have proceeded to insert the words of the amendment which was moved by the Minister of Trade and Customs. The division was taken on the question that certain words be omitted, with a view of inserting certain other words. I remember complimenting the present Prime Minister on the straightforwardness of his party. There was no room for difference of opinion as to what they meant. The Government party meant to exclude States public servants from the operation of the Bill, and said so. The opposing Labour Party wanted to include them, and said so. Both were acting in a straightforward manner. But can I say that now? Can I say that honorable members opposite have stuck to their colours? They have departed entirely from their former amendment.

Mr Watson:

– We were not bound to adhere to the phraseology.

Sir JOHN FORREST:

– My compliments, which were accepted by honorable members opposite, go for nothing.

Mr Batchelor:

– The right honorable member withdraws them?

Sir JOHN FORREST:

– Certainly, I withdraw them. It was thoroughly understood that one party wished to include and the other to exclude - not by implication, but by exact words. But no sooner do the Government get upon the Treasury bench than they introduce our Bill, but drop the words that they formerly intended to insert, and put in other words which are more restrictive. We have had no explanation of this lightning change, except that honorable members opposite now say that they do not desire to have inserted in the Bill the exact language that they wanted a few weeks ago. They have already voted for the exclusion of Commonwealth servants, whom they desired a few weeks since to include, and now they do not wish to include State servants. They are absolutely reversing, so far as I can see, what they said they were in favour of a little while ago.

Mr Watson:

– Does not the right honorable member know that we were prepared to accept this amendment from the previous Government ?

Sir JOHN FORREST:

– We were open and straightforward all through.

Mr Watson:

– So were we, and we would have accepted this.

Sir JOHN FORREST:

– I do not know that. We felt too strongly on the matter ; in fact, we had gone to the country upon it, and were not able, even if we had changed our minds - which certainly I have not done - to change our attitude. It is due to the Committee that honorable members opposite should make some explanation as to why the very things which they advocated formerly they depart from to-night. They say that the words which they favour carry out to some extent what was desired before. But they, do not go the full extent, and do not say definitely whom they intend to include, leaving it to the High Court to decide for them. The question will arise - What is an industrial matter ? What is an industrial State servant? We do not want to ask the High Court to tell us what we want. We ought to let the High Court know exactly what we mean.

Mr Watson:

– The High Court would have to decide in either case.

Sir JOHN FORREST:

– The High Court would do justice; but it is for us to say what we think is included in the term “industrial,” and not to use vague words which may mean anything. Is it business-like that we should leave to the High Court the decision of a matter which we ought to decide for ourselves? At least we ought to let the High Court know what we want. When a difficulty arises, the High Court will have to be convened in all haste to settle it. Probably the mischief will have been done by that time. We cannot get a decision from the High Court in a moment. The subject will have to be argued, perhaps, for weeks. Then the Judges will have to consider their decision. This is not the way to do the business of the country. We ought not to refrain from saying exactly what we want, leaving it to other people to decide what is the meaning of our words. Is that the attitude which my honorable friends opposite assumed when they were opposed to us ? They seem to have gone into devious paths. If we carry the clause in the form recommended by the Government, we shall not know the meaning of it, and the High Court will have to tell us what we meant. It is our dutv to tell the High Court what we want in definite terms. If we overstep the mark - as I hope we shall not do - the High Court will pull us up. But it is not a proper way to legislate to use expressions of which we do not know the meaning, leaving it to the High Court to interpret them. I should imagine that it will be news to the public servants when they learn that they are excluded. It will be rather a shock to them to find that they are not included in specific terms in this Bill. After all the talk which has taken place, and all the speeches which have been made as to the great advantage of including them all, and of how ameliorating and how just, and how far-reaching a measure like this, which included them, would be, the public servants of the States will be amazed to discover that they are left out altogether. I do not think that will satisfy those of the public servants of the Commonwealth and the States, who have been promised all sorts of advantages by those who advocate their inclusion in this Bill. It seems to me that honorable members opposite have altogether abandoned the views to which they previously gave expression. They now desire to limit the application of the measure to railway employes, and such other members of the Public Service as the High Court may decide are engaged in industrial enterprise.

Mr Hutchison:

– That is specifically stated.

Sir JOHN FORREST:

– The honorable member for Hindmarsh, who is very apt at interjecting, will, perhaps, tell me where it is specifically stated.

Mr Hutchison:

– I shall speak presently.

Sir JOHN FORREST:

– The honorable member would be wise if he expressed his own views when he addressed the Committee instead of interjecting so frequently. I have noticed that he interrupts even when the Attorney-General is expounding the law upon the subject. What is the reason for this lightning change on the part of honorable members opposite, after advertising throughout the length and breadth of the country the great good which this measure would confer upon all public servants? I observed that there was some little dissension in their ranks when the division was taken, and I wonder that there was not more. Evidently some honorable members did not like the’ idea of stultifying themselves immediately they had attained to seats upon the Treasury benches, because a few of them refused to vote with the Government. Perhaps they were aware that the position was perfectly safe. On this very question they were very solid a few weeks ago when they saw a possibility of securing control of the affairs of this country ; but they are not so united now. All the compliments which I paid to them on a former occasion when I told the present Prime Minister that the Labour Party was acting in a perfectly straightforward manner must now be withdrawn.

Mr Batchelor:

– That was before the Government, of which the right honorable member was a Minister, was “ out.”

Sir JOHN FORREST:

– Yes, and before the present Government was “in.” When the party with which I am associated is out of office its members stick to their guns. But when honorable members opposite have secured office they effect a lightning change. I chiefly rose to address a few words to the Minister for Trade and Customs. I have always been consistent in this House, and no fault has ever been found with me by those to whom I owed allegiance. Therefore, I consider that his reflections upon my loyalty were undeserved. 1 am opposed to making this measure applicable either to Commonwealth or State public servants, for the reasons which I have advanced. I hold that the proposal is unconstitutional, and that even if it were not it is inexpedient for us to adopt it. In this matter honorable members opposite have- not been consistent. I have not heard anything which can justify the course of action which they have adopted. They voted for including within the provisions of this Bill the public servants of the Commonwealth’, and of the States, and we opposed it. Now that the honorable and learned member for Corio submits a similar proposal, they are prepared to absolutely reverse their previous votes.

Sir WILLIAM LYNE (Hume).Although I listened attentively to the references made by the right honorable member for Swan to the Government and their action in this matter, he failed to convince me either that they have committed any grievous wrong or that they have departed seriously from their previous attitude. He asked “ Why is this matter to be left to the decision of the High Court 1 ‘ ? But I would point out that that tribunal alone can interpret the Constitution. He referred to the word “ industrial “ which it is proposed to insert in this Bill-

Sir John Forrest:

– Are you a member of the Government? I think that they can defend themselves.

Sir WILLIAM LYNE:

– The right honorable member implied that the word “industrial” was not used in the Constitution.

Sir John Forrest:

– The honorable member misunderstood me.

Sir WILLIAM LYNE:

– I was under the impression that I heard the right honorable member challenge an honorable member opposite to show where it was used.

Sir John Forrest:

– The honorable member misheard me.

Sir WILLIAM LYNE:

– I am prepared to accept the disclaimer. The word “industrial,” I would point out, is used in subsection xxxv. .of section 51 of die Constitution. If that term be inserted in this clause, it will have the effect of bringing every industry within the scope of the Bill, and it will be for the High Court to interpret the meaning of “industrial.” I take it that is the intention of the Government. The sub-section in question declares that the Commonwealth Parliament shall have power to make laws relating to “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.” Should the High Court declare that the carrying on of the Public Service, either of the Commonwealth or of a State, is an industry, the Bill will be applicable to all public servants. In my judgment, the proposal of the Government is a wise one. It is all very well for the right honorable member for Swan to say that members of this Parliament should tell the High Court what they want. What the High Court has to decide is what the law is, and not what the members of this Parliament want. We can put anything we like into the Statute, but we cannot direct the High Court as to how it shall interpret any of its provisions.

Sir John Forrest:

– We should make our Acts as unintelligible as possible?

Sir WILLIAM LYNE:

– If the present Ministry carry the “proposal to insert the word “ industrial “ and the question is subsequently raised, it will be for the High Court and not this Parliament to decide what the meaning of the section is. I was a little amused at the anxiety with which the right honorable member desired to impress on the Committee his view that the Ministry and certain members of the Labour Party have “jumped Jim Crow,” so far as their opinions on this matter are concerned. The suggestion is absolutely incorrect. They take exactly the same position as before. I have no doubt that the vote which they gave earlier in the evening was in tended to prevent the same thing being i&serted in the Bill twice.

Sir John Forrest:

– The honorable gentleman is an apologist for them.

Sir WILLIAM LYNE:

– I wish also to point out that the right honorable member for Swan knows quite well that the present Ministerial Party in the action they took previously were concerned, not so much for the members of the public servants generally of the States, as for the railway servants of the States.

Sir John Forrest:

– I deny that absolutely.

Sir WILLIAM LYNE:

– I hope the right honorable member will not lose his temper. I know that he was perfectly well aware that it was upon the inclusion in the Bill of the railway servants of the States that members of the Labour Party were particularly strong.

Sir John Forrest:

– That shows how strong we were the other way, or we should have given in to it.

Sir WILLIAM LYNE:

– Even supposing that the members of the present Ministry are caving in, as ‘the right honorable member suggests, he ought to meet them with open arms, because they are now doing what he wished them to do before. If they have turned round to accept the right honorable member’s view, he should not take them to task, but should rather commend them. I fail to see that on’ this particular question the members of the present Ministry, or honorable members supporting them, have turned round at all. If the word “ industrial “ is inserted in the Bill, it will have to be construed by the High Court. If the High Court regards the railway services of the States as “ industrial “ services, the railway servants will be brought under the Bill. If it holds other branches of the Public Servce to be “industrial,” those engaged in those branches will also- be brought under the Bill. All things considered, the right honorable member for Swan should rejoice at the attitude which he believes the Ministry to have taken up, instead of catechizing them on having done something which they should not have done.

Sir John Forrest:

– The honorable gentleman is a good apologist for the Labour Party.

Sir WILLIAM LYNE:

– At all events, I do not “ jump, Jim Crow “ like some other persons.

Mr HUTCHISON:
Hindmarsh

– The right honorable member for Swan appears to be greviously disappointed that the present Government should propose to do what the Government of which he was a member refused to do. If the right honorable member and his colleagues had brought forward this clause in the form in which the present Government suggested that it should read, he would have been in office to-day.

Sir John Forrest:

– We could not do that.

Mr HUTCHISON:

– I for one have not altered my views. The position I took up while the amendment proposed by the honorable member for Wide Bay was under discussion, was that, while I had some doubt whether all State public servants other than railway servants could be included, on account of the use of the word “ industrial “ in the Constitution, I preferred to give them the benefit of the doubt, knowing that their, inclusion would not destroy the measure, since the High Court, if my doubts were justified, would declare only that portion of the Act to be ultra vires. The present Government have introduced an amendment which meets my difficulty. I think it Was the duty of the honorable and learned member for Corio, who seems to me to have desired simply to make political capital out of, and not to improve the measure -

Sir William Lyne:

– No, I do not think so.

Mr HUTCHISON:

– Nothing else could be assumed of any honorable member who moved such an amendment as that submitted by him. He should have pointed out the particular public servants who would be excluded from the operation of the Bill. I challenge any honorable member to show me what particular public servants will be excluded under the amendment proposed by the present Government. I stated from the election platform that I thought every employer and employe in the Commonwealth should be included in the measure, and that we should not have any class legislation. The present Government propose to do this, if. it is competent for the Federal Parliament to do it; and it is perfectly legitimate for any honorable member to say that he believes every employer and employe can be included, in spite of the use of the word “ industrial “ in the Constitution. We have listened to legal members of the Committee, and what have we learned? We have learned only of the confusion of opinion existing amongst them in regard to it. The honorable and learned member for Wannon, in a cold-blooded way, told us that he would exclude everybody from the measure. I can quite understand the honorable and learned member’s position. I have been astonished to find that even some of the legal members of the Committee are not prepared to say that, if it is not illegal to include certain public servants of the States, it is not expedient to do so, and it will be an infringement of State rights. Is there anything in that argument? The States Governments will take very good care that we do not interfere with State rights, so long as we have a High Court. If we interfere with their rights they will appeal to the High Court. Any honorable member who voted against the clause as submitted by the late Government will be acting consistently in supporting the present .Government upon it. I feel that I am pursuing a course which I can justify to my constituents, and that I shall not be subjected to the reproach of having been inconsistent.

Mr WILKS:
Dalley

– I have listened very carefully to the speeches of the honorable member for Hindmarsh, and other honorable members .opposite, on this question, and I cannot agree with them. I voted for the inclusion of the State servants on the first occasion. I intend to do so again. I have been very pleased with the way in which the honorable and learned member for Corio has submitted the matter to the Committee.’ Those who vote for his amendment will not need to recognise the difficulties of the Government, whether it be the Watson Government, the Deakin Government, or any other. So far as I am concerned, when I vote’d on the last occasion for the inclusion of State public servants I did not do so for the purpose of displacing the members of the Deakin Ministry, although I admit that [ was not consumed with grief to see them displaced. I had on that occasion the double joy of voting for an amendment in which I believed and against a Government in whom I did not believe. It is possible that the members of the present Ministry did not consider that the amendment introduced by the honorable member for Wide Bay would be carried. I believe that they were of the opinion that the only amendment which was likely to be carried was that for the inclusion of the railway servants of the States. The amendment of the honorable member for Wide Bay having been carried, I expected that the Watson Administration would give effect to it. The proposal which they have put before us, however, does not do so. My view is that all officials of the States and of the Commonwealth should come under the Bill. When I hear the argument used that the High Court might declare such a provision invalid, I am reminded of the fact that a few weeks back the same argument was employed by the Deakin Government as a shield against the attacks of the members -of the Labour Party. Those who are now sitting behind the Government considered that such a shield should not be used. But, as they would not allow it to be used by the Deakin Administration, they have no right to use it themselves. We found the legal members of the Chamber divided as to the constitutionality or unconstitutionality of applying the provisions of the measure to all Commonwealth and States servants, and it was therefore left to the general body of members, who are without training in legal matters, to deal with the question. As a lay member, I was not prepared to accept the onus of deciding the legal point involved ; but I felt it my duty to leave it to the High Court, and to vote as I thought best in the interests of the Commonwealth. Accordingly, I voted for the amendment of the honorable member for Wide Bay, upon the ground that a beneficent measure should be extended to all classes of the community, without exception. That is the position I intend to take up now. In my opinion, no class should be excluded. The Government, however, propose to exclude many of the servants of the States and of the Commonwealth. The, excuse their action on the ground that the word “ industrial “ will not apply to all public servants. When they supported the amendment of the honorable member for Wide Bay, however, they wished to bring all public servants, both Commonwealth and State, within the scope of the Bill, and I voted with them then, even though it meant the defeat of the Deakin Government. Tonight I am ready to vote again for the same proposal, even though it may mean the defeat of the Watson Government. I regret this watering of the legislative plans of the Labour Party. If the present Ministry keep on. watering their plans as they have been doing during the last few days, I am afraid that they will lose support outside, because the people will think that they are not the “ real Mackay.” I realize that, as Ministers, they have great difficulties to face in the piloting of the Bill through Committee, but the difficulties of the Deakin Ministry did not prevent the members of the Labour Party, when in opposition, from doing what they considered to be their duty, and the difficulties of the Watson Administration will not now prevent me from doing my duty. The Labour Party, having gained office by the carrying of a certain amendment, should be prepared to stake its ‘ retention of power upon giving effect to the proposal which they then supported. For these reasons I shall vote with the honorable and learned member for Corio.

Mr POYNTON:
Grey

– Instead of the Ministry being condemned for the manner in which the amendment before the Committee has been worded, I think they should be commended by every honorable member. The amendment will certainly improve the original Bill, and it contains a safer provision than any other which has been put before us. It. copies practically the words of the Constitution, which I may call the principal Act. It is of no avail for honorable members to argue the constitutional position here. The Government, however, have not given up a single point. It is only so far as this measure is consistent with the principal Act that its provisions can operate, so that everything hinges upon the interpretation given to the word “ industries.” I commend this young Ministry for the brains and ingenuity employed in dealing with a difficult problem.

Mr Wilks:

– I admit their ingenuity.

Mr POYNTON:

– They have put before the House a proposal for which every honorable member can vote with safety. I shall not consider myself inconsistent in supporting them.

Mr FOWLER:
Perth

– The amendment of the honorable and learned member for Corio is so meaningless that I should have no hesitation, even apart from party considerations, in voting against it, and in supporting the proposal of the Government. The honorable and learned member’s amendment would not bring within the scope of the Bill any public ser- vant to whom the Ministerial proposal does not apply. Under these circumstances, I fail to understand the argument of the honorable member for Dalley.

Mr Wilks:

– Does the honorable member call every public servant an industry, or an industrious man ?

Mr FOWLER:

– The interjection hardly requires a serious answer, and, as I am generally regarded as a somewhat serious individual, it will hardly be considered extraordinary if I ignore it. At the last elections I strongly advocated the inclusion of railway employes in the Bill. I still hold that it is perfectly constitutional to bring them within the scope of the Bill. I have, however, grave doubts as to whether we could apply the provisions of the measure to other public servants. As the honorable member for Grey has stated, the Government have, by adopting the form of words embodied in their amend ment, rendered it possible for us to realize, at the earliest possible moment, precisely where we stand in connexion with the constitutional aspect of this matter.

Sir John Forrest:

– When a strike takes place.

Mr FOWLER:

– Not necessarily then. We shall not need to wait for a strike, in order to arrive at a settlement of this question. The course which I am now taking in support of the Government is perfectly in accord with the opinions which I expressed during the last electoral campaign.

Mr McWILLIAMS:
Franklin

– When this subject was under discussion before, I expressed the opinion that, even if we had the power, it would not be advisable for us to interfere with the States’ servants at present. It is impossible for us to ignore the fact that it was never even suggested at thi Federal Convention that the power of the Commonwealth in regard to conciliation and arbitration, would extend to the public servants of the States. It may be said that the High Court has nothing to do with the intentions of those who framed the Constitution, but has to be guided by a strict reading of its provisions; but we, as a Parliament, have to be guided by the spirit, as well as the letter, of the Constitution. The records of the Federal ‘Convention show that not one word was expressed during its debates that would convey the impression that sub-section xxxv. of section 51 of the Constitution was intended to embrace the public servants of the States. I regard the Attorney-General as one of the most able, and also one of the most straightforward members in this Chamber, and I cannot believe that he proposed the amendment now embodied in sub-section xxxv., with the knowledge that the powers of the Com monwealth would extend to the public servants of the States, and that he deliberately withheld this fact from his fellow-members of the Convention. It cannot be pretended that the States knowingly surrendered to us the right to control their public servants. 1 make bold to say that if the members of the Convention had declared prior to the referendum that the States were asked to surrender to a Federal Court the right to control the relations between them and their public servants, not one State would have accepted the Commonwealth Bill.

Mr Hutchison:

– The general opinion was that the Commonwealth tribunal would have the power to deal with all disputes.

Mr McWILLIAMS:

– I question very much whether the honorable member could show me that any advocate of the Commonwealth Bill pointed out that amongst- its provisions was one which would enable a Federal tribunal to decide all questions between the States and their servants with regard to wages, hours, and other conditions of labour. As the editor of a newspaper at the time of the Federal referendum, it was my duty to closely watch the course of events, and I did not notice any reference to this particular point in any of the speeches, either at the Convention or outside. Even if it were within our power to extend the provisions of the measure now before us to the public servants of the States, it would not be expedient for the Commonwealth to insist on a full exercise of its authority at the present stage. In the early days of all Federations, a certain amount of friction has taken place between the Federal and the States Governments, and I am afraid that if we show an undue desire to exercise our authority in this and other matters we shall make Federation even more unpopular than it is at present. It is idle for us to close our eyes to the fact that Federation is not so much admired, at least in some of the States, as it was when the referendum took place for the adoption of the Commonwealth Bill.

Mr Hutchison:

– It is as well thought of by the masses of the people.

Mr McWILLIAMS:

– I think I am correct in saying that if the Constitution were now submitted for acceptance by the people we should not be able to secure a majority, in at least some of the States, in favour of Federation. Therefore, I ask honorable members whether it is wise to push this matter to extremes? If the States have surrendered their right to fully control their own servants, there is no doubt that such surrender was unintentional. I supported the late Government when this question was before us on a former occasion, because I thought they were constitutionally right, and because I approved of their attitude on the ground of expediency. That brings us to the amendment; and, despite what the honorable member for Hume has said, I have never seen so sudden a change of front as has been shown by the present Ministers and their supporters on this question. I shall not occupy time in quoting Hansard - that has already been done. by the honorable and learned member for Corio - but the Minister of Trade and Customs delivered a thoroughly honest speech. His position was, as he said, just as consistent as my own. I believe that no State servants. should come within the operation of the Bill, while he contended that all public servants should be included. Then there was the speech of the honorable member for Maranoa, whom we all regard as one of the most outspoken members in this House. That honorable member said that his constituents told him that if all public servants were not included they did not want the Bill, and that he must vote against it.

Mr DAVID THOMSON:
CAPRICORNIA, QUEENSLAND · ALP

– The honorable member for Maranoa did not vote to-night.

Mr McWILLIAMS:

– I think very much less of a man who refuses to vote when he-

Mr Tudor:

– The honorable member for Maranoa had left the House when the division -was taken.

Mr Watson:

– The honorable member for Maranoa did not expect a division.

Mr McWILLIAMS:

– It is not like the honorable member for Maranoa to refuse to vote. There is no man in the House who has a higher opinion of him, or, I might say, a greater personal liking for him, than myself. The Minister of External Affairs voted, and he was as pronounced as the honorable member for Maranoa in the contention that there should be no aristocracy of labour. Mr. Hyndman, one of the ablest writers on Socialism, has denounced, as an outcome of the aristocracy of labour, the preference of members of trades unions tlo ordinary workers. So long as I am a member of this House I shall object to any distinction being drawn between the man who works with his hands and the man who works with his brains. In a community such as this we are all workers; and the man. who drives the engine is no more entitled to the sympathy and support of ‘this House than is the man who drives the quill. But Ministers, in giving, or attempting to give, an explanation of their change of front tonight, have certainly not been happy in their expressions. There has been a distinct change of front, as compared with the position put forward when the Labour Party were ramming home the amendment of the present Minister of Trade and Commerce, an amendment which was clear in itself.

Mr Fowler:

– We all regarded that amendment as quite inconsequential.

Mr McWILLIAMS:

– It is not possible to regard an amendment as inconsequential when there depends on it the very life of the Government - when Ministers say that if it be carried they will not continue in office, because they cannot pass a Bill which, in their opinion, ought to become law.

Mr Fisher:

– The late Government would have been defeated on the question of the inclusion of the railway servants.

Mr Kelly:

– Then why not have waited for an amendment to include railway servants ?

Mr Fisher:

– The supporters of the amendment were not allowed to wait.

Mr Fowler:

– There is no doubt the late Government would have been defeated on the next amendment.

Mr McWILLIAMS:

– I am quite confident that the amendment was earnestly put forward by the present Minister of Trade and Customs, and it was accepted by the late Prime Minister as a motion of want of confidence. In that light the amendment was dealt with, and some honorable members voted for it because of the very fact that it was accepted as a motion of want of confidence. It is idle to say that it was an inconsequential amendment, and that honorable members did not care whether it was carried or not. I do not believe that that amendment was pressed with the deliberate intention of defeating the late Government.

Mr Fisher:

– Hear, hear !

Mr McWILLIAMS:

– But the amendment was thought of sufficient importance to press home, although the late Prime Minister said that if it was carried the Government would resign. We cannot take into consideration what was the intention of honorable members as to any subsequent amendment ; we can only take the intention as deliberately expressed. The present

Ministry and their supporters, even at the risk of defeating the late Government to which. they had very often given most loyal assistance, regarded the amendment as one of sufficient importance on which to insist. But now we are told that it is an utterly inconsequential amendment. The position requires a much more lucid explanation than has hitherto been given. All this, however, deals with what, to my mind, is a secondary question. I opposed the inclusion of the States public servants, firstly, because I accepted the authority of those who are, in my opinion, the ablest leaders on constitutional matters, and who hold that the inclusion of the States public servants is ‘ unconstitutional ; secondly, because there is the much broader view that on the strength of something placed unintentionally in an Act, we are seeking to deprive the States Governments of the absolute control of their own public servants.

Mr Hutchison:

– It might be said that half of the Constitution is unintentional.

Mr McWILLIAMS:

– I believe there was no section in the Constitution to which less attention was given at the Federal Convention than this.

Mr Hutchison:

– There were the sections dealing with the water question.

Mr McWILLIAMS:

– The water queston was threshed out over and over again.

Mr Hutchison:

– We do not yet know what the sections dealing with the water question mean.

Mr McWILLIAMS:

– The water question was threshed out by the best men in the Convention, who, as a result, arrived at a deliberate determination. Will the honorable member say that the section we are now discussing was debated at the same length ?

Mr Hutchison:

– I say that nobody knows what is the meaning of the sections dealing with the water question. Tell us what thev mean.

Mr McWILLIAMS:

– In the first place, I am not an authority on the water question, and, in the second place, I am quite certain that if I attempted to wander from the question before the Committee, I should very properly be called to order. I say, deliberately, ‘that there is no comparison whatever between the consideration given to the water question and that given to the section of the Constitution now under discussion. I challenge any honorable member to show me any deliberate intention on the part of any member of the Convention, or of any one who supported the

Constitution Bill before the electors, to hand over to the Federal Government the control of any public servants, except those who were transferred with the Customs, Defence, Post and Telegraph, and other Departments. To my mind, an attempt is being made to deliberately take advantage of the States in a way that was never intended by the Constitution; and, further, it is inexpedient at the present time to force on the inevitable conflict between the . States and the Commonwealth. If that be the position, I must vote against the inclusion of any portion of the States public servants in the operation of the Bill. But if we do include any branch of the Public Service, I shall vote for any amendment which will have the effect of including the whole. I take that attitude, not with any intention of killing the Bill ; because that is not my way of attaining such an object. If I desired to kill a Bill, I should take the very pronounced step which, under the circumstances, ought to be taken. If I had been responsible for the management of affairs, the whole of last week would not have been wasted, as it was, in this House. When it is desired to kill a Bill or Government, the proper way is to do the killing straight out. When,, therefore, I say that, under certain circumstances, I am prepared to vote for the inclusion of the whole of the . public servants, I do so, not with any intention - I am sure honorable members will acquit me of that - to kill the Bill, but because I believe, speaking in a purely democratic spirit, that there should be one law throughout all the States for all the people. I shall be no party to picking out any particular branch of the service, especially if it be the branch that can carry most votes to the pollThat is not the section of the Public Service whichwe need to protect. The public servants who need this protection are not those who are protected by their trades unions, and carry a huge bunch of votes at election time ; but rather those who have no political power, and are not bound by unions. They are the public servants who should receive, if anything, the greatest consideration of the Committee. I repeat that, if this amendment be carried, I shall support any proposal that will refuse to allow any Act passed by this . Legislature to be degraded by drawing any class distinction between any section of State pr otherservants.

Mr CARPENTER:
Fremantle

– I am glad to have the assurance of the honorable member for Franklin that he is with the Government in the object they have in view, in submitting their amendment. I do not know whether the honorable member has read the amendment, but, during the evening, several challenges have been thrown . out to those who oppose it, to point to any class of public servants which should be excluded from the provisions of the measure, if the proposal were carried. So far there has been no reply to that challenge. I would therefore ask the honorable member whether, on his reading of the Government’s amendment, he is able to point to any body of public servants, State or Federal, that would not be included in the Bill.

Mr Mcwilliams:

– The Prime Minister said that it would probably include State railway servants, as well as the officials of the Post and Telegraph Department.

Mr CARPENTER:

– The Prime Minister stated that its purpose was to cover every Commonwealth and State Public Service that could be included. I contend that there is no other form in -which this provision could be framed in order to bring about that result. I have not been accustomed to sit behind Governments. During the few years of my parliamentary career, I have occupied a seat either on the crossbenches or in direct opposition, and consequently it is a new experience to me to be supporting a Ministry, and sharing, as I suppose I must, the responsibility of sins that are charged against them. When honorable members opposite charge the Government with inconsistency in regard to the question of the inclusion of States employes, I feel that their attack is made in only a very playful spirit. My own position is that of many other honorable members. Although not a member of the first Federal Parliament, I read very closely the reports of the debates on this Bill, and particularly the debates on the question of the inclusion or non-inclusion of States employes. Having read what, so far as I could judge, were the opinions of the ablest legal members of this House, my mind was firmly made up at the date of the elections that there was no possible reason for the exclusion of railway employes. On the broader question of the inclusion of States servants generally, I made a reservation. I was asked on more than one occasion during the election campaign whether I favoured the inclusion of all States employés within the scope of this Bill, and I replied that I did, provided that that there was no constitutional objection in the way. So far as any doubt was concerned, I held that provision should be made for the inclusion of all States servants, leaving it to the High Court to determine whether such a provision was valid. I am not going to discuss at this stage the general question, although I may have something to say later on in relation to that aspect of the matter. I wish to say, however, that even if there were a doubt as to our power to insert some provision in a Bill, I should never allow that doubt to prevent me from discharging my duty and supporting the inclusion of that provision. I care not for all the talk about friction between the Commonwealth and the States, or the invasion of States rights. My constituents know that I am as strong a defender of State rights as any man could be; but I am not going to allow any parrot cry of States rights to prevent me exercising to the full every power that the Constitution gives us. We should not be doing our duty to our constituents if because of the cry in regard to States rights we refrained from inserting in a measure something whichwe honestly believed the High Court would hold to be in accordance with the provisions of the Constitution. Even if we have doubts in regard to the matter, we should insert the provision, allow the point to be determined by the High Court, and accept its decision whether it be in our favour or not. The right honorable member for Swan has said that the people of Western Australia do not care much about the matter, arid I believe that he has made that statement on more than one occasion, I have had to remind’ him that as he was returned unopposed at the last elections he har dly came into contact with public opinion as fully as did those who had a contest. Those who advocated the inclusion of States servants in the Conciliation and Arbitration Bill were returned by overwhelming majorities. I am quite sure that throughout Western Australia the feeling to-day is quite as pronounced as it was last December, and that if the Government amendment is carried, as I hope it will be, it will give unbounded satisfaction to the electors generally of that State.

Mr. ROBINSON (Wannon).- A glance at Hansard has enabled me to verify the statement made by the honorable and learned member for Corio that the Government have apparently run away from the position they took up when this matter was first dealt with. The Bill was before a Committee of this House on the 1.9th of April last, and the clause then read - “ Industrial dispute “ means a dispute. . . . extending beyond the limits of any one State, but does not include a dispute relating to employment in the Public Service of the Commonwealth, or of a State, or to employment by any public authority constituted under the Commonwealth or a State.

At page 1043 of Hansard the present Minister of Trade and Customs is reported as follows : -

I move - That after the word “ State,” line 12, the words “ but does not include “ be omitted, with a view to insert in lieu thereof the words “ and includes.”

The honorable gentleman then said -

If a Conciliation and Arbitration Act is desirable, I claim that its provisions should be applicable to the whole of the workers, irrespective of whether they are in the employ of private individuals,, of the States, or of the Commonwealth. I should like to know the difference between an employe” in the service of the Commonwealth and an employe” in the service of a private individual.

At page 1044 he is reported as saying -

I contend that Parliament is not a competent Court to deal with any of our public servants.

And again on the same page -

That is surely an additional reason why we should endeavour to extend the operation of this Bill to all pubic servants.

Later on he said -

Why deny public servants the right to participate in such legislation? Why deny a particular body of public servants the right to come under a measure which is to embrace all servants in private employment?

Then he went on to discuss the constitutionality of the question, and said -

If the Parliament exceeds its rights by extending the operation of the Bill to the public servants of the States, the corrective will be administered by the competent Judges pf the High Court.

Further on he said -

We should endeavour to place the Public Service upon such a footing that they will have no cause to fear vindictive or unfair treatment. Their rate of pay and conditions of labour should be determined not by Parliaments, which may be called upon to act at a time of political panic, but by a judicial body, capable and competent to determine what is just.

There is, therefore, no doubt whatever that the Minister of Trade and Customs in moving his amendment desired to include every public servant. That view is further demonstrated by the speech made on the same day by the present Minister of External Affairs. By referring to page 1089 of Hansard it will be found that the honor- able and learned gentleman took up the same position.

I am rather inclined .to adopt, the attitude of the honorable member for Bland, and say that that is a matter entirely within the province of the High Court. We have heard from the honorable and learned member for Bendigo a long and learned disquisition about the law on this point. We have had some excellent reasons put forward to show why it could not apply ; but nevertheless one thing is abundantly clear. The gentleman, methinks, doth protest too much. If it was as clear as we have been asked to believe, why these leng disquisitions, why these references to authorities, and why not, relying entirely upon the weakness of the other side, put the provision in the Bill, resting calmly on the assurance that the High Court will throw it out with contempt? But my friend, the honorable and learned gentleman” at the head of the Government, knows full well, and indeed admitted it this afternoon, that the danger is not that the High Court will throw it out, but that they will keep it in.

This was his position then. Again, on page 1092 he states-

We who believe in the extension of the functions of the State have set ourselves against the interference of politicians in State management.

That is a very humorous remark after several experiences in New South Wales -

Have we not handed over to Commissioners the control of many departments? Are we to suppose that they will not make errors, as other men do? Are not we to believe that they will sometimes be guided perhaps by a regard for commercialism rather than for the true interest of the State or .the community.

At page 1093 he says -

When I said that five-sixths of the newlyelected senators were supporters of the proposal to include the. Commonwealth and State public servants under this Act, my statement was challenged by the Minister of Home Affairs.

He goes on to say at page 1094 -

I repeat that an overwhelming majority has been returned to the Senate who will vote for the application of this measure to the public servants of the Commonwealth and of the States.

Further on he says -

We ask now that the pledges given to the people shall be respected, and that the civil servants of the Commonwealth, and the States, together with the railway employes of the States, shall be included in its provisions.

Mr Hughes:

– How long is it since I spoke ?

Mr ROBINSON:

– The speech was delivered on the 19th April.

Mr Hughes:

– I am still, of the same opinion.

Mr ROBINSON:

– At that time the honorable gentlemen opposite pledged themselves to include in the Bill all public servants, and on the first opportunity they have to give effect to their pledge, as shown clearly by the amendment before the Committee, they run away, and, as the honorable and learned member for Corinella pointed out, they now take up the position that they would exclude Commonwealth servants and include a certain section of States servants. In other words, they say that the only Government which can be trusted to pay its employes properly, and to do justice to them, is the Commonwealth Government. If that is not doing the best that can be done to create friction between the States and the Commonwealth, I do not know what is. It is, therefore, abundantly clear that the Government have shirked the position in which they found themselves. They have endeavoured to run away from the difficulty which they created. They have not the courage to stand by what they put before the electors at the general election, and subsequently before this House in the week ending 23rd April. We see now that they have thrown over a large section of public servants of the States, and the whole of the Commonwealth Public Service, and have brought forward a proposal totally different from the one which they put before us and asked us to carry.

Mr Hughes:

– The honorable and learned member is quite in error. This is an electioneering speech.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– The debate which has taken place, and the able speech which was delivered on the whole question by the late Prime Minister relieves me of the necessity to address the Committee at any length. The conduct of the Government in regard to the Bill has been rather unfortunate. In proceeding with the measure in Committee, not as it was left by the late Government - there might have been reason for doing that - but with a great sheaf of amendments to be proposed by themselves, . they adopted an undesirable method of introducing the matter to the House. We should have had a speech from the Prime Minister which, of course, could only properly be given at the second . reading stage, expounding the new principles which he proposed to insert in the Bill, explaining their effect, and extending to the House that confidence which it had a right to expect from a Minister who introduced a measure. But we are entirely without that valuable information which we should have got earlier than at the Committee stage. We are in this further position, that the Ministry, having given notice of a large schedule of amendments, it may be found that some of those amendments, in the opinion’ of many honorable members, require a further consideration of the clauses of the Bill which have been dealt with. When the measure was last before the Committee, it was understood that there was a highly critical division to be taken on this clause, and, consequently, honorable members did not devote to the earlier clauses the consideration which they might otherwise have done. It would be well, therefore, if we were given an assurance that, if honorable members should consider it necessary, either from the nature of the further amendments to be moved . by the Ministry, or of other amendments which may be introduced, we shall have an opportunity of reconsidering, without objection by the Ministry, those earlier clauses.

Mr Fisher:

– That can be done on recommittal.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– We wish to understand that, owing to the manner in which the Bill has been taken up by this Ministry, a fair opportunity will be given to honorable members to reconsider those clauses.

Mr Hughes:

– Surely it is open to us to recommit the Bill for anv specific purpose.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– It is, if the Ministry will assist in getting a recommittal. We cannot expect them to agree to recommit, willingly at any rate, the latter portions that we now have an opportunity to deal with. The Government should be quite willing to give an assurance to the Committee that they will not oppose a recommittal.

Mr Hughes:

– Does the honorable member infer that any of these amendments are of such a nature as would render a recommittal necsssary?

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– I admit at once that I cannot say that. But, as there is a long list of amendments, there must be, in some respects, a remodelling of the Bill.

Mr Hughes:

– To the best of my knowledge, they do not affect the matters to which the honorable member refers.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– They may not have a direct bearing to the honorable and learned member’s mind, but a number of us would feel more satisfied if an assurance to recommit were given. The Government would be quite right in opposing a recommittal if we had had an opportunity since the Bill has been in the hands of the present Government of considering the questions raised in the amendments.

Mr Watson:

– There is no objection lo recommit the clauses preceding that under consideration.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– Many of the observations made by the Prime Minister have been replied to, and I shall not take up the time of the Committee by repeating the arguments. I will merely allude - to what the honorable gentleman said, to the effect that those who supported the amendment of the honorable and learned member for Corio would be acting as though they were determined to kill the Bill. Although I am an opponent of the proposal of the honorable and learned member for Corio, I in no way seek by indirect means to kill the measure. I made my attitude perfectly clear to the House on a former occasion. No one desires to see strikes abolished - whether they be on the part of States employes or private employes - more ardently than I do. I doubt, however, whether such a measure as this will accomplish that end. I consider that it would be better to wait until we have had some experience of Acts already in existence such as the New South Wales Act. In the light of that experience we could probably arrive at a more effective measure for accomplishing the purpose thai those who support this measure - honestly I believe - desire to accomplish. But I accept the decision of the House. So far as I am concerned resistance to the Bill had gone when the House, by a large majority, accepted its general principles. I shall do nothing to destroy the Bill, but shall adopt such an attitude as will, in my opinion, make it a better measure and more effective for the avowed purpose of those who are supporting it. I think that most honorable members are taking up that attitude. They made their position clear at an earlier stage.- I have no doubt that they will honestly support anything which they consider will have the effect of improving the Bill. The Prime Minister has said that my statement that he had abandoned his position in connexion with the States servants was not justified. I should be very sorry to misrepresent the honorable gentleman in any way. But I will read a few lines from the remarks of the present Minister - of Trade and Customs when he was moving the amendment which led to the defeat of the late Government. I will also read a few lines from the speech of the Prime Minister in support of that amendment. , As has already been pointed out, the amendment did not merely propose the omission of certain words, although the division was taken on the question of their omission. We also had to deal with the words proposed to be inserted. What were they ? The words would have made the clause read: -

And includes a dispute relating to employment in the Public Service of the Commonwealth or of a State, or to employment by any public authority constituted under the Commonwealth of a State.

The arguments used throughout the debate were to the effect that there should be no restriction on the part of this Parliament with regard to the provisions of the Bill - that the fullest powers should be claimed, and that it was only after they had been claimed that the High Court should settle whether Parliament possessed those powers. It was said that any relinquishing of that position would have an influence on the High Court, and that it ought to be shown by every means which we possess that our reading of the Constitution was that the Federal Parliament could, under its conciliation and arbitration powers, control all States or Commonwealth servants. It was urged that any withdrawal from that position was a sign of weakness which would lead to the defeat of those who supported the amendment moved’ by the Minister of Trade and Customs. But what was said to-night? It was contended that we cannot go beyond the meaning of the word “ industrial “ in the Constitution. The Prime Minister used these words: - “That he, in his position, and his Ministry, must observe the Constitution in regard to the manner in which they interpreted it;” that is to say, that they must create an interpretation of the Constitution for themselves. -

Mr Watson:

– Every Ministry is bound to do that. I suppose?

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

-I will show that the late Ministry were rebuked for doing it. The late Prime Minister argued that the late Government must themselves interpret the Constitution, and, having done so, must in their measures stand by the meaning which they applied to it. Why were the Deakin Ministry attacked for adopting that very attitude ?

Mr Watson:

– I think that I attacked them only because they made a vital question of it six months ago.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– I do not say that the Prime Minister attacked them. At the same time, I can quote his words to show the opinions which he entertained.

He, too, has changed his views on some matters. When he spoke on this subject he said -

But the question which is immediately at issue - that of whether we have power to extend the provisions of this Bill to the public servants of the States, and of the Commonwealth, admits of no doubt whatever-

Mr Watson:

– 1 was referring then to our general power.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– The honorable gentleman continued - because the limitations and exemptions which appear in other sub-sections of section 51 of the Constitution are ‘absent - and I say significantly absent - from this particular provision.

Mr Watson:

– I was speaking there of the general power of the Commonwealth to include within the scope of the Bill any civil servants. That was the point at issue.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– The power to include any of the public servants of the States would, I take it, mean the power to include all.

Mr Watson:

– Not necessarily. The question then being argued was as to whether the Commonwealth have a right to include even the railway employes.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– If we have power to include any of the public servants we must have power to include all.

Mr Watson:

– That depends on the interpretation which is placed on the word “ industrial.”

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– The Deakin Ministry was taken to task for refusing to allow the High Court to decide this matter. On that occasion the Minister of Trade and Customs said -

It is illogical to include railway servants within its provisions -

They are included in this Bill - and to exclude from its operations the employes of printing offices, wharf labourers, dock labourers, and others.

Mr Fisher:

– They are all included in this Bill.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– The honorable gentleman continued -

Let us include the whole of them. Let us wipe away all restrictions, and allow the High Court to determine whether or not our action is constitutional.

Mr Fisher:

– Does the honorable member argue that the term “ industrial “ may not cover the whole of them ?

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– On that point I am prepared to accept the opinion of the Prime Minister and the AttorneyGeneral, who both say that it will not. They urge that such large Depart ments as the Customs, which is under the control of the Commonwealth, and the Education Department, which is in the hands of the States, will be excluded. Personally, I am inclined to* think that they are right ; but, in such matters, I do not set the same value on my own opinion as on that of the Attorney-General. The Ministry therefore, speak to some extent with two different voices. I should not take exception to the utterances of the Minister of Trades and Customs, who, doubtless, on many questions, has to subordinate his individual opinion to that of the Cabinet majority, were- it not for the fact that the whole Ministry previously entertained and expressed the same ideas. I remember the Prime Minister asking, by way of interjection - I do not know whether he did it in the course of his speech, because I am speaking from memory and not quoting from Hansard - “Why not allow the High Court to decide this matter?” That is a change of position which, I think, fully substantiates the accuracy of my statements, when speaking on the policy of the present Administration. The AttorneyGeneralhas urged that the whole of the decisions of Chief Justice Marshall on questions as between the State and Federal Governments were based on the principle that one Government may. assist another, but must . not hamper it. From that stand-point, he argued that it was not only right, as a matter of expediency, to include in the provisions of this Bill certain public servants of the States, but that it was perfectly constitutional. I wonder what could be more hampering to a State than the Government proposal ? The States Legislatures naturally exclaim - “ The railways have been left in our hands. We are representatives of the people just as much as is the Commonwealth Parliament.” Marshall did not say that the Federation could not hamper private concerns. As was pointed out by the Attorney-General, he based his decisions on the ground that one Government should not do anything to hamper another, unless that Government had agreed to be so hampered. “What,” they ask, “could be more hampering to States than to have the control of all these services, which the Constitution specifically left in their hands, practically taken away from them. Naturally they urge that such a step ought not to be taken. They ask, “ Can it be taken in the absence of specific warrant for it in the Constitution?” I shall be surprised, indeed, if the High Court decides that it can.

The very fact emphasized by the AttorneyGeneral as constituting the basis of Marshall’s judgments, and which the honorable and learned gentleman used as an argument in favour of the inclusion of State public servants, is, to my mind, an argument in favour of the illegality of such a step. If the Ministry entertains the . idea that all State public servants who can be constitutionally included within the provisions of this Bill, will be so included if the amendment proposed by them be adopted, where is the need for specifically naming the railway employes? Consequently that plea, which is raised by a new special pleader on a new side - I refer to the honorable member for the Hume - falls to the ground. The Minister of Trade and Customs said that, in his opinion, the amendment would include almost all State and Commonwealth servants. The honorable member for Hindmarsh said that none of the speakers had mentioned any body of State or Commonwealth servants that would be excluded. According to the dictum of the Prime Minister, and also of the AttorneyGeneral, such enormous Departments as the Commonwealth Customs Department, the Departments of Home and External Affairs not so large, but still of some size and growing, the Education Departments of the States, and many other State Departments, employing thousands of hands in one State alone, are excluded. If there be occasion for an alteration of the Constitution, it must be when it is shown that injustice exists. The inequality of this proposal is shown by the fact that a clerical hand in the Railway Department, or in the Post and Telegraph Department, will, in the opinion of these honorable gentlemen, come under the operation of the Bill, whilst clerical hands in other Departments to which I have referred, doing practically similar work, will not. A man in the Post and Telegraph Department who is engaged only in handling mail-bags, will come under this provision, whilst men in the Customs Department handling packages, seeing them opened, and examining them, will not. There is a marked inequality there, and although I am against the interference with the States Governments involved in the inclusion of States public servants, I am still more against, and would remove, if I could, the inequality involved in bringing some States and Commonwealth public servants under this measure, and allowing others, similarly placed, and equally entitled to consideration, to re- main beyond its pale. I again emphasize the statement that, considering that this is not the Bill of the late Government, or,, at any rate, that, taken with the schedule of amendments submitted, it is the Bill of the present Ministry, it ought to” have been introduced in the ordinary way as a new measure, and should have gone through a second reading, in the course of the debate on which we might have had information laid before us which we ought to have before we deal with the clauses in detail. A few words suggested as an amendment to a clause do riot always fully disclose the intention or effect of the amendment. I contend that we should have had a full statement as to an opportunity of considering the words of each particular amendment, and the effect of the alterations which the present Government propose in the Bill.

Mr Watson:

– There are not many important amendments proposed.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– Some of the amendments proposed may not be important, but one or two of them appear to me to involve considerable alteration in the measure.

Mr Watson:

– I admit that.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– I confess that I have not had time to carefully consider all the amendments. I am not complimenting the Prime Minister when I say that he can make a very clear explanation. If the honorable gentleman could, even now, under the forms of the House, or by special permission, make a statement regarding all amendments of importance, their intention and effect, it would, I am sure, be of much assistance to the Committee.

Mr CROUCH:
Corio

– I appeal to the Prime Minister -to vote on this occasion in the way in which he induced me to vote on the 2 1 st April.

Mr Watson:

– I trust I did not induce the honorable and learned member to vote against his convictions.

Mr CROUCH:

– No; those were then mine and his principles. I also asked the Minister of Trade and Customs to TOte as his convictions led him to vote on the 21st April. I ask honorable members generally of the Labour Party to see whether in this matter they cannot be consistent. It is not too late even now for them to withdraw from their present position. Although on the previous occasion to which I refer it was necessary for me to vote against my party, I was expressing my honest convictions upon the matter. It is very unfair of the present Government to make a vigorous whip of their supporters to get them to desert the position they previously took up. I need not remind honorable members that twenty-three members of the Labour Party voted on the 21st April for the absolute inclusion of all the public servants of the Commonwealth and of the States. I intend to press my amendment to a division, if I can get only one honorable member to assist me, in order that we may discover how many of those twentythree honorable .members have any conscience in this matter, or whether they are prepared to eat their own words at the suggestion of one honorable and learned gentleman who has been included in the Ministry, and who would appear to have swallowed up the whole of the twenty-three. Some time ago I had here a visitor from Geelong, who does not know much about politics. He happened to be in the public gallery when the honorable member for Bland was speaking, and he asked me on what subject the honorable member was speaking. I told him that it was clause 4 of the Conciliation and Arbitration Bill. Strange to say, on the 19th April he came in here again, and he said to me - “ Oh, I see, the same gentleman is speaking. On whit is he speaking “ ? I said - “ Still on clause 4 of the Conciliation and Arbitration Bill.” This gentleman was in again this afternoon, and he asked me what the Prime Minister was speaking about ? I said - “ Clause 4 of the Conciliation and Arbitration Bill.” He listened a few minutes, ‘ and then he said - “If he has been speaking all the time, he has not only changed his seat at the table, but he has also changed his opinions.”

Mr Watson:

– ‘He must have come from Geelong.

Mr CROUCH:

– Probably SO; because there they recognise honour in election pledges. I trust that my appeal will not be in vain. The members of the Labour Party have promised, for the last three years, not only at the Commonwealth elections, but during the State elections, that the public servants of the States’, as well as of the Commonwealth, would have their consideration. They have said that they believed that, not only the railway servants, but every one else should be included in the Conciliation and Arbitration Bill. I hope that we shall find that they are men of conviction, that those who have held the democratic flag so high for so many years will be found to be really staunch in their democracy, and that on this occasion I shall fin-1 not more than one or two voting for my amendment, but, possibly, .also some of the missing twenty-three.

Mr O’MALLEY:
Darwin

– I shall vote against the amendment of the honorable and learned member for Corio, and I shall in one second show why. It is a marvellous thing that so many honorable members who have criticised the action of the Government have had so much to say about sticking to the letter of the Constitution. No laws can be enacted by this Parliament which are not either impliedly or directly allowed by the Constitution. But in the amendment moved by the Prime Minister the very words of the Constitution have been adopted. The Constitution empowers us to legislate in regard to -

Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

That is’ the essence of the whole business. If the public servants come within that provision of the Constitution, the Bill will apply to them. That is the stand taken by the members of the Labour Party,

Mr Crouch:

– The honorable member took a different stand when the matter was last under discussion.

Mr O’MALLEY:

– The honorable and learned member is fooling himself. I remember that on one occasion a Justice of the Peace in Western America, who was about to impose a trivial fine upon a prisoner, said to him - “ I will sentence you to the extreme of the law.” The Labour Government are /carrying their proposal in regard to the Bill’ “ to the extreme of the law.” If the Constitution includes public servants, the provisions of the Bill will extend to them. The Government in framing their amendment were too cute for honorable members opposite, who must recognise their defeat.

Amendment of the amendment negatived.

Question - That the words “ including disputes in relation to employment upon State railways,” proposed to be inserted, be so inserted - put.

Mr. KELLY (Wentworth).- Mr. Chairman

The CHAIRMAN:

– I cannot hear the honorable member, as I have put the question.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– Both the honorable member for Wentworth and myself rose before you put the question, Mr. Chairman.

Mr Deakin:

– The question, undoubtedly, was put ; although, like other honorable members, I was not aware that it was the main question before the Committee.

Perhaps the Prime Minister will give another opportunity for a call for a division.

Mr Watson:

– I understand that the opportunity to call for a division has not passed ; but to permit of the re-opening of the debate, after it has been closed by the putting of the question, is another matter. No one rose to speak.

Mr DUGALD THOMSON:
NORTH SYDNEY, NEW SOUTH WALES · FT; ANTI-SOC from 1906

– I did.

Mr Watson:

– Then I did not see the honorable member. However, as I have no desire that any honorable member shall he prevented from expressing his views on this subject, I shall not object to the putting of the question again. I did not see any one rise to speak when the Chairman put the question, and I took it that the Committee was ready to come to a division, since a number of honorable gentlemen have spoken, although the time occupied by the debate has been comparatively’ short.

The CHAIRMAN:

– The question was put from the Chair, and I thought that I gave time enough for any honorable member to rise. I was actually declaring ‘he result, and giving the vote to the ayes, when the honorable members for Wentworth and North Sydney rose simultaneously. The putting of the question again is not a matter within the province of the Prime Minister, but, if he, .as the leader of the House, has no objection, I will put it again, and then, if any one rises, I will, of course, hear him.

Question - That the words proposed to be inserted be so inserted - again proposed.

Mr. KELLY (Wentworth). - I was speaking earlier in the debate, when the amendment of the honorable and learned member for Corio was before us, upon the propriety or otherwise of applying the provisions of the Bill to the railway servants of the States ; but it was held that it would be more convenient for the Committee to deal first with the broader question of the propriety of bringing all public servants within the scope of the measure. Personally I was of the opinion that the whole included the part, and I think that many honorable members agreed with me ; but to meet the general convenience I agreed to delay the exposition of my views on the subject until later. I was at the time pointing out what seemed to me the view taken by the railway men of New South Wales in regard to the proposal to apply the provisions of the measure to them. Through their properly elected secretary, they sent to every candidate at the last elections a circular makins: certain demands which a few minutes ago I characterized as distinctly unfair, and as hardly the kind of demands which men should make on submitting themselves to the jurisdiction of an Arbitration Court. I drew attention to the fact that, not only did this circular require candidates to affirm that the railway servants should be brought within the scope of a Federal arbitration measure, but it also required them to promise that no reduction of wages,” no increase in the hours of work, and, in fact, no disabilities of any kind, should accrue ever hereafter to those who made the demand. It was a “heads I win, tails you lose” sort of proposition. I do’ not think that the men themselves were responsible for it, because I am convinced that there is no finer body of men in any service in the world than are the railway servants of the State from which I come.

Mr Storrer:

– I suppose they have a right to ask for what they desire?

Mr KELLY:

– They have no right to ask that all disputes shall be submitted to the Arbitration Court, but that their working hours shall not be increased, or their wages reduced, even though the Arbitration Court may so decree. What would be the use of arbitration in such a case? The employes could then go to the Court without running the risk of losing anything. I do not regard that as arbitration. I do not attribute the blame for this curious letter to the railway servants, but I refer to it as showing how the leaders of the union have approached the subject. I have also had my attention directed to another curious point which may throw some light on the constitutional aspect of this matter. The Sydney Daily Telegraph, of 25th April, 1904, contains a report of an interview which was granted to one of its reporters by Mr. Robert Hollis, the Secretary of the Amalgamated Railway Unions of Australia.’ Mr. Hollis is represented as saying -

So far as the regulation of wages is concerned, I agree with Mr. Wise, who wrote to Mr. Hume Cook, one of the Victorian Federal members, that the Arbitration Court would have no power to interfere with the wages cf the railway employes. I have always held the opinion that the Court is not competent to deal with the wages of railway servants, because the service is governed by a special Act i>f Par-liament.

Honorable members will notice that Mr. Hollis expresses the view that the Federal Arbitration Court will not be competent to regulate the wages to be paid to the railway servants of New South Wales. In order to ascertain how far that view could be sup- ported, I have referred to the Government Railways Act of New South Wales, No. 6, of 1901. It is therein provided, in section 72-

The Commissioners shall pay such salaries, wages, and allowances to officers as Parliament appropriates for that purpose.

That is evidently the provision upon which Mr. Hollis bases his opinion, but, apparently, he did not look at the first part of the section which reads as follows: -

The Commissioners shall appoint or employ such officers to asistin the execution of this Act as they think necessary, and every officer so appointed shall hold office during pleasure only.

Therefore, if Mr. Hollis is right in his contention that the provision, which gives the Commissioners power to pay such salaries, wages,- and allowances to officers as Parliament appropriates for that purpose, would preclude the Commonwealth Court from interfering with wages, surely the first part of the section would prevent the Federal Court from exercising any authority with regard to the appointment or employment of railway servants who hold office only during the pleasure of the Commissioners. In the same Act we find that the Commissioners are authorized to make regulations -

For regulating the duties to be performed by officers in the railway service, and the discipline to be observed in the performance of such duties, the granting of leave of absence from time totime, and arranging for the performance of duties during holidays, and for the affixing to breaches of regulations, according to the nature of the offence, such penalties as by this Act are authorized.

So that if the view taken by Mr. Hollis is correct, every, matter affecting the daily lives of the railway servants of New South Wales, upon which the Federal Arbitration Court could be asked to adjudicate, would be absolutely removed from its purview.

Mr Mahon:

– But the State Act would be overridden by the Federal Act.

Mr KELLY:

– I am not offering any opinion on the legal aspect of the question, but I am quoting the argument used by Mr. Hollis. Surely he ought to know what his union wants, and he ought also to know what the members of that union believe in, because he probably, to a large extent, moulds their opinions. It is further provided in the Act to which I have referred, that -

All such regulations(i.e. of the Commissioners) when confirmed by the Government shall have the same force and effect, as if they had been contained in this Act.

If Mr. Hollis is right the Federal Court would obviously have no power to interfere with any of the industrial arrangements of the New South Wales railway service. I do not base my objection to the inclusion of railway servants within the scope of this Bill altogether upon constitutional grounds. I confess that, as a layman, I cannot grapple with all the subtleties of the constitutional question, but, at the same time, I have formed a deep conviction that the Constitution precludes us from bringing the public servants of the States within the scope of the Bill. My objection to their inclusion is still more firmly founded upon public . expediency. The honorable and learned member for Ballarat has so ably and eloquently addressed himself to this aspect of the question that I should only be tiring the Committee if I dwelt upon it any further. My principle object in speaking was to acquaint honorable members with the views held by the secretary of the Railway Union of New South Wales. Mr. Hollis desires that the wages of the railway servants of that State shall not be interfered with, probably because the rates ruling there are considerably higher than those paid in any other part of - the Commonwealth. I admit that the view taken by Mr. Hollis does not sway me very much, because I do not think that his opinion on the constitutional question would be worth much more than that of the average layman. On the ground that it would be unconstitutional and inexpedient I feel compelled to vote against the Government proposal.

Mr Wilson:

– At this late hour I ask the Prime Minister to allow progress to be reported.

Mr WATSON:
ALP

– It is not fair to ask for an adjournment when only one honorable member has announced his intention to speak.

Sir John Forrest:

– A great many honorable members will speak.

Mr WATSON:

– I do not take the right honorable member’s assurance on that point so confidently as I should in regard to other matters. The right honorable member has already spoken, and I do not know how far he has consulted others as to the number of honorable members who desire to speak. I have been assured by one or two honorable members, who are looked on as having some authority on the Opposition side, that no one desires to speak except the honorable member for Corangamite. Under the circumstances I do not think it is proper to ask for an adjournment.

Mr WILSON:
Corangamite

– I regard this question as one of very great importance to the Commonwealth, and I agree with all that has fallen from the lips of the honorable and learned member for Ballarat. The whole of the States are looking to this Parliament in order to ascertain what is going to be done in the matter of conciliation and arbitration. There is a great deal of difference of opinion amongst legal authorities as to whether the proposal to include States public servants or railway servants is or is not constitutional. It is contended that the question should be settled eventually by the High Court; but, as a layman, I conceive that it is not for the High Court to determine what were the intentions of Parliament. A great deal has been said by honorable members about the desire of railway servants to be included in the operation of the Bill; but there is, by no means, unanimity of opinion amongst those public servants on the point. A great many railway servants, not only in Victoria, but also, to my knowledgein New South Wales, do not want to come under the Bill. Employes in the railway services have written and spoken to honorable members to the effect that in their unions and at union meetings they have a certain fear of expressing their, opinions in opposition to the Bill - that they run a danger of being called opprobrious names, which I do not wish to mention, because these are always, to my mind, very unpleasant.

Mr Spence:

– Surely the honorable member does not swallow that tale?

Mr WILSON:

– I rely on what I have been told directly by railway servants in Victoria.

Mr Hutchison:

– Mere rumour !

Mr WILSON:

– It is not rumour, because I had the information direct from a railway servant.

Mr Chapman:

– We do not want that, sort of thing to go on.

Mr WILSON:

– I find I am supported in my remarks by the honorable member for Eden-Monaro ; and I know that other honorable members have received letters from railway men dealing with this particular matter. There have been private conversations with railway men, who, because of a certain holy fear imposed on members of this particular class’ of union, do not care to express their opinions at the meetings to which I have referred.

Mr Hughes:

– That would seem to indicate that the majority of the members are in favour of being included.

Mr WILSON:

– lt may be as the Minister of External Affairs suggests. But there is a fear amongst railway servants in New South Wales that, if they are compulsorily. brought under the operation of this Bill, their wages may be reduced to the Victorian level, which, I understand, is somewhat lower than that in the adjoining State.

Mr Spence:

– The railway men of New South Wales are at present under an Arbitration Act, and they do not object.

Mr WILSON:

– But there is a great difference between being under an Act of the State Parliament, and being under an Act of the Commonwealth Parliament. This brings us to the main point, that the Commonwealth Parliament is attempting to override the States in this matter.

Mr Chapman:

– We in New South Wales are not prepared to bring the wages down to the level, of other States.

Mr WILSON:

– That is another point on which I receive assistance from the honorable member for Eden-Monaro, who informs us that the Conciliation Board in New South Wales is not prepared to bring down the wages level to that of any other State or to raise the level - the desire is to keep the wages to the New South Wales standard. The amendment proposed by the Prime Minister is one which will be resented by every State throughout the Commonwealth; and each State has already attempted to make its influence felt. Another and very important question has been raised in relation to the Appropriation Bills in the States Parliaments. Each, as we are well aware, is a sovereign State; and how can we, as a Federal Parliament, attempt to dictate to the States in what way their Appropriation Bills shall be arranged? The raising of the wages of public servants would, of course, seriously interfere with these financial measures. If the wages were lowered under such a Bill as that now before us, it would simply give to some States a larger surplus, which I do not suppose would be objected to by any except the railway employes.

Mr Chapman:

– If wages are raised under a Commonwealth law, how can the States be compelled to pay?

Mr WILSON:

– I only wish that the honorable member for Eden-Monaro, instead of myself, were addressing the Committee ; and I again ask the Prime Minister to report progress. I wish to be allowed to continue my speech to-morrow.

Mr Hughes:

– The honorable member must know that he can speak as often as he chooses in Committee.

Mr Crouch:

– Not if a division is taken to-night.

Mr Hughes:

– I shall offer no objection to the request to report progress, although it is rather extraordinary that tha honorable member, having started with such a good head of steam, should now apparently not be ready to go on.

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

– I am favorable to the Ministerial proposal ; but I would ask the Minister to consent to progress being reported. Certain remarks have been made in regard to the opinion of railway employes on this question, and, as the representative of one of the largest railway constituencies in the Commonwealth,I should like to reply to them. I do not think that there is anything to be gained by continuing the debate to-night. If progress were now reported, I do not think that much time would be occupied in dealing with this matter to-morrow.

Mr GROOM:
Darling Downs

– A good many honorable members from the more distant States have been in attendance here for some considerable time, and, without desiring to unduly press the amendment to a division to-night, I certainly think that these honorable members should be shown some little consideration. I would not raise my voice in opposition to the request that progress be reported if I thought that by doing so I should block a’ genuine discussion on the measure. But the matter was before us last session, and has been under our consideration for some time during the life of the present Parliament, and if it is possible to speedily conclude this debate and to proceed with other business, we shall gain more credit for ourselves, and create in the minds ‘of the people more confidence in- our proceedings. It can be said to the credit of the Ministry that they apparently desire to expedite business. If there is any wish to challenge the Ministry, that, of course, is another matter ; but there is apparently a desire on the part of honorable members on all sides of the House that a Conciliation and Arbitration Bill shall be passed irrespective of what party is in power. I therefore think that we should come to a division on this question to-night, and deal with the measure as far as we can.

Mr McCOLL:
Echuca

-The division which was taken to-night showed that there were only forty-seven out of seventy-five honorable members present.

Mr Mauger:

– The others have a right to be here.

Mr McCOLL:

– It . has been the custom since the establishment of this Parliament to allow a certain amount of consideration to honorable members on Tuesday evenings, for many have to travel’ long distances by rail in order to reach here. This is the most important matter that has been discussed during this or last session, and it is not fair for the Government to seek to take a snatch vote. This is the first occasion on which the House has met for the proper discussion of business since the incoming of the present Ministry. I desire to address myself to the matter before the Chair, and I think that nothing will be gained by pressing the amendment to a division to-night.

Mr. WATSON (Bland- Treasurer). - I was . given to understand a quarter of an hour ago that there was only one honorable member, who wished to speak to the question, and, therefore, I did not think I should be justified in agreeing to report progress at that stage. I can assure the honorable member for Echuca that there is no desire on the part of the Government to take a snatch vote. So far as I am aware, all absentee honorable members are either paired or otherwise accounted for. The present Government would be the last to attempt to secure a snatch vote, because my experience of parliamentary work has been that in doing so a Government runs the risk of much trouble, and that even from the most sordid or selfish aspect of the matter, nothing is gained by resorting to such a practice. As I am now assured that several honorable members still wish to address themselves to the question, I have no objection to progress being reported.

Progress reported.

page 1735

ADJOURNMENT

Conciliation and Arbitration Bill : Commonwealth Coinage

Mr WATSON:
Treasurer · Bland · ALP

.- In moving -

That the House do now adjourn,

I desire to intimate that I am hopeful that a division will be taken later to-mOTrow on the amendment which I have moved on the Conciliation and Arbitration Bill. T quite sympathize with the view put forward by the honorable and learned rnember for Darling Downs, that it is about time that the House settled down in some form or other to the discharge of public business. . The question of the inclusion, or non-inclusion of public servants in the provisions of the Conciliation and Arbitration Bill has been before honorable members for a considerable period on several occasions, and it is only reasonable that the public should expect a determination in regard to it at an early date. I trust, therefore, that the Government will receive the assistance of all sections of the House in its desire to reach a division to-morrow, so that we may get on with the consideration of other portions of the Bill.

Mr. G. B. EDWARDS (South Sydney).I wish to ask the Prime Minister whether he will consider, prior to the resumption of the debate on the subject of Commonwealth coinage, the expediency of . laying on the table any correspondence that has passed between the late or the present Government and the Imperial authorities, or any persons in Great Britain, in regard to the coinage question generally. There may, of course, be some papers which it would not be altogether expedient to publish, but I should like him to consider to what extent-it is open to him to impart to the House such information as he has, prior to the resumption of the debate.

Mr. WATSON (Bland - Treasurer). - I shall look into the matter mentioned by the honorable member, and if there is nothing confidential I shall be glad to lay the papers on the table.

Question resolved in the affirmative.

House adjourned at 10.49p.m.

Cite as: Australia, House of Representatives, Debates, 31 May 1904, viewed 6 July 2017, <http://historichansard.net/hofreps/1904/19040531_reps_2_19/>.