4th Parliament · 1st Session
Mr. Speaker took the chair at 10.30 a.m., and read prayers.
– Is the statement in this morning’s newspapers, that the Government is considering an amendment of the Public Service Act, to guarantee the recognised minimum wage to all public servants who are twenty-one years of age, correct ?
– I have not seen the statement reported in the press, but I informed a deputation last night that the conditions complained of by the public servants could not be effectively remedied without an amendment of the Public Service Act. I said, further, that I could hold cut no hope of the introduction of an amending Bill this session, but that the Government was considering the advisableness of bringing in a measure next session which would effectively remove the grievances complained of.
– On Tuesday, the Minister representing the Minister of Defence promised to lay on the Library table the correspondence and reports relating to the accommodation at Williamstown, Brisbane, and Sydney for the warships of the Australian Naval Unit. As the promise has not been fulfilled, I ask the Acting Prime Minister if he will have the papers placed in the Library ?
– I shall do so.
Contour Maps - Designs for City
– When will members receive the lithographed maps of the Federal territory, promised by the Minister of Home Affairs some time ago?
– I do not understand the delay, and shall look into the matter.
– Has the Minister yet called for competitive designs for the Federal Capital? If not, when does he propose to do so ? What is causing delay ?
– The delay is due to the fact that we have not had time to go into the matter. Ministers are here night and day. I am not even getting time to sleep.
– Will the Minister of External Affairs lay on the table the communication from the High Commissioner, in which a scheme for advertising the Commonwealth was placed before the Government; and the reply, taking exception to this proposal, and limiting the expenditure to£20,000 ?
– As I said yesterday, there is no set scheme; merely the usual estimate of proposed expenditure supplied by every sub-head of the Department. The statements in the newspapers are not correct. I ask the honorable member to’ give notice of his question, because it is an unusual one.
– Is it unusual to ask for the laying of correspondence on the table?
– There is no correspondence ; merely the usual estimates. However, I shall look into the matter, and if there is anything which I can lay on the table, I shall make it available.
– Do I understand that the High Commissioner did not at any time place before the Government proposals showing in what way he intended to spend a sum of money on advertising, should it be provided by the Government ?
– That was not the impression which I intended to convey.
– Will the honorable member lay on the table the correspondence in which the scheme was outlined ?
– I shall look into the matter.
– With reference to the report appearing in the newspapers concerning the death by suicide of the postmaster at Peak Hill, in whose case overwork induced insanity, I wish to know from the Minister representing the Postmaster-General if inquiry has been made into the matter, and whether there are other postmasters who are overworked and cannot get assistance, although they have asked for it.
– I replied to the first question yesterday; I shall be glad if the honorable member will give notice of the second question.
– Has the Acting
Prime Minister read the letter in this morning’s Age, signed by Nurse Ross, of Essendon, detailing the treatment meted out to an unfortunate old woman who is physically unfit to fill in the proper form of application for an old-age pension? Will he ascertain whether the statements in the letter are correct?
– If the honorable member will give me an opportunity to read the letter, I shall have the matter inquired into.
asked the Acting Prime Minister, upon notice -
Whether it is the intention of the Government to make provision for the celebration on 1st January,1911, of the tenth anniversary of the Foundation of (he Union of the Australian people?
– The Government has not yet given this matter consideration.
In Committee (Consideration resumed from 21st October, vide page 5039) :
Clause 1 agreed to.
Clause 2 -
Section fifty-one of the Constitution is altered by omitting from paragraph (i.) the words “ with other countries, and among the States.”
– The proposal is to strike out the words of limitation “ with other countries and among the States “ and give Parliament plenary power over trade and commerce. I shall be very glad to deal with any detailed criticism which may be directed against this proposal, but I do not intend to reply at present to the arguments used at the previous stage of the Bill. In moving its second reading, I set forth as well as I was able the reasons for seeking to extend our power in this direction. Briefly they were as follow - It has been found from experience that the words “ with other countries and among the States “ amount to such a ‘limitation as not only prevents us from operating over the sphere of commerce reserved to the States, but prevents us from effectively operating over that part of it granted to us. The American cases’ certainly establish that point very conclusively. The honorable and learned member for Flinders quoted some cases to which I alluded during the second-reading debate, showing that endless confusion, verging on the most absurd and irreconcilable decisions, has arisen from the attempt to delimit and separate the spheres of Inter-State and Intra-State commerce. Nothing is more clearly established than that the control over commerce cannot be so divided. The Courts have found themselves confronted with cases defying all attempts tq settle by the application of any general ruie of law. No sooner is a rule laid down than an exception is made to the rule ; then an exception is made to that exception ; and the attempt to apply the rule with that exception is found hopeless.
This result is only the natural result of an endeavour to clothe one generation with the garments of another. The present state of commerce is very different indeed from that which obtained when the American Constitution was drafted. Commerce is now world-wide, its ramifications extending to the four corners of the earth. It is impossible to separate a commercial transaction by setting up an arbitrary limit and declaring that beyond, a State boundary commerce shall be Inter-State, and that inside the State it shall be Intra-State. Such objections must fail utterly, because they do not take into consideration the nature of commerce in general and the commercial needs of the present day in particular. It is urged that the proposal infringes the sovereign powers of the States, but unless it can be shown that we are asking for something which is unnecessary, and that this work can be done as well by the States as it can be by us, and that the experience of America is such as to warrant such’ a conclusion, this objection must also fail. Without wishing to labour the question at all, and reserving to myself the right to reply to any particular argument which may be adduced, I submit that the onus is on my honorable friends who oppose this amendment to show why it should not be made. It does seem utterly absurd that our power over commerce, which is in the very nature of the thing co-extensive with the boundaries of the continent, should be limited to certain arbitrary boundaries which may at any moment be subject to further restriction or alteration. The honorable member for Wimmera gave us an illustration which I think serves admirably to show how utterly futile are all attempts to leave the commerce power as it is. He showed that over the whole of Western Australia, which comprises one-half of the continent, and contains an area equal to that of Spain, France, and Germany, commerce can range perfectly free so far as it is Intra-State, but into that great domain the National Government may not enter except for Inter-State commerce. It is perfectly obvious that in these days when commercial transactions are so largely carried on by combines, corporations, and bodies controlling large amounts of capital, when commerce is becoming daily more systematized, when order emerges from chaos, it is absolutely essential that one power should be able, if necessary, to deal with commercial transactions. For that reason I hope that the provision will be accepted.
.- The subject-matter of this clause is of such magnitude that the Committee would be failing in its duty if, quite irrespective of the ultimate results to be achieved in the way of amendment, we did not at least contribute as far as we can to a better understanding of the consequences pf this, perhaps the most vital of all the amendments before us. I say “ perhaps “ because the industrial amendment from some aspects may appear to be even more serious ; and I say nothing of the reciprocal influence of each one of the proposals on the others, although, as mentioned in my second-reading speech, the cumulative effect of these proposals taken together, coupled with the fifth, which is included in a separate Bill, present a problem of the highest complexity and difficulty.
Coming to this specific proposal in regard to trade and commerce, I shall not attempt to deal at this stage with more than one point, which appears to me to be of principal importance, at all events, at the outset of our consideration. My only contention beyond that will be in answer to the Attorney-General’s quotation from the speech of the honorable member for Wimmera, which can be put in a few sentences. Western Australia is to-day a State of the Commonwealth. Nobody ever has supposed, and nobody supposes that it will continue to remain one State. As a matter of fact, except in part of the southwest corner of that immense territory, there is not sufficient settlement. Without that settlement there would be no State of Western Australia. Ultimately, into at least three, probably four, portions must that great area be divided. And for what purpose? For the purpose of effective administration. To point to an enormous area of unoccupied territory, and to tell us that so long as there is no population very few administrative difficulties can arise is no more than to say that if we were to take an altogether uninhabited country no difficulties could arise in regard to trade and commerce. We claim, on the basis of the experience of the United States, of Canada, and of this country, in varying degrees, but particularly in the circumstances of Australia, that effective administration of legislation is not possible when such immense areas are sought to be dealt with by a Central Legislature. This applies equally well whether a Central Legislature operates over that of the States within the Commonwealth, or where, as in the case of Western Australia, pending further developments and settlement, an enormous unoccupied area continues to be retained under one Government.
What is the proposal with which the honorable member for Capricornia and others in this House are associated? It is to subdivide Quensland, though it contains a much smaller area than that of Western Australia, because population and development have reached a stage causing a demand for its division into three States, to promote efficient local government.
– Does the honorable member think that similar conditions prevail in the unoccupied territory in Western Australia ?
– No; but I hope and believe they will obtain before many years have passed over our heads.
– That will depend upon the distribution of population in the future.
– Yes ; but the distribution of population geographically has a great deal to do with subdivision. A comparatively small community in the neighbourhood of Derby and Broome would be entitled to self-government at an early date, simply because of the distance and entire contrast between the conditions obtaining there and those obtaining in the southern portion of the State.
Now what is the main contention which the Acting Prime Minister has submitted in defence of the proposal to strike out the only limitation on the trade and commerce power ? It is quite possible that my answer may seem technically too large, and that the real nature of that power must be considered first. We differ from the United States, although our gift is expressed in precisely the same terms as theirs, because we have a large and very valuable specific endowment of trade and commerce powers, which, under the American system, have been developed from a series of judicial decisions. Since the judiciary in America has made those endowments, they can be looked at there from one side as marking an extension of the trade and commerce power, because they do expand its terms in given directions. They may be looked at from; another point of view, as implying limitations of the main power. That has been a tendency in the interpretation of the Canadian Constitution. It was there held, if I remember aright, that although a power to regulate trade and commerce was vested absolutely in the Dominion Parliament, yet, since that general grant was accompanied by certain specific endowments, it acquired a specific character, and in point of fact became limited in its nature. Both of these two cross currents would have to be taken into account if one endeavoured to coin a precise definition of the trade and commerce power in our own Constitution.
This consideration meets, in a certain sense, the explicit statement of the AttorneyGeneral that by striking out the limiting words in our Constitution we shall endow the Commonwealth Parliament with “ plenary “ powers in these regards. Even the word “ plenary ‘”’ is used colloquially in a different sense from that in which it is used legally, and the Attorney-General may have applied it in a colloquial manner. By way of introduction let me call attention to a few considerations which leave it doubtful whether the omission of these words will make the power as “ plenary “ as the honorable member supposes. By way of precaution, let me ask the Attorney-General whether the striking out of the limitation “ amongst the States and with foreign countries “ in paragraph1 of section 51 will really have the boundless effect that he assumes. He appears to think that it endows the Commonwealth with all the trade and commerce powers at present possessed by the States in addition to the power conferred on us by the Constitution. But has the trade and commerce power of a State within itself ever been defined, or can it be defined? Is it not an endowment derived from that huge reservoir of undefined authority which really belongs to the Crown, the limitations of which are not set out, because they never needed to be set up within the State? When a State passes an Act, it is not asked whether that is under its trade and commerce power or any other named power. It acts upon its general authority as a sovereign State. The States will retain that sovereignty even after the passage of this amendment though their powers are nowhere enumerated. We have another sovereign State created in the shape of the Commonwealth, but it is a sovereign State of enumerated and expressed powers. The question, therefore, is whether the AttorneyGeneral is accomplishing the complete cession of power he seeks. He will look in vain in State legislation for a limitation of State powers in regard to trade and commerce, or even for a definition of those powers. Such considerations do not arise, nor can they arise, within a State.
In spite of themselves, therefore, the Government will require a definition of trade and commerce to carry over from the Federal sphere when entering the State sphere under this amendment. I doubt if the Attorney-General does get further than the conveyance to the Commonwealth by these means of the problem what it is that the words “ trade and commerce “ can cover in this relation. That will have to be the subject of judicial definition and decision. The Attorney-General is not escap ing from the barriers in the shape of legal decisions which he thought he had thrown aside. He is not getting beyond the jurisdiction or the interpretations of the High Court. Whatever the High Court’s interpretation of the meaning of the words “ trade and commerce “ in a State may be, the endowment which they convey in its different aspects must be the subject of a series of decisions.
– I said that whatever “ trade and commerce “ means, we are to use that power wherever we find it.
– The honorable member cannot escape the necessity of discovering what it means to the States, and what it means to us. He will be liable to be challenged at any time in the exercise of this power by the question whether it is really exercisable as such. Where in the world is there yet sufficient guidance as to what a trade and commerce power within a selfgoverning State really is ? When you have it “as amongst the States or with foreign countries,” you have something to guide you in the hosts of judgments in the United States and here, and can gather where the demarcation is intended to run. There must still be some line of demarcation’ to run even when the whole of the trade and commerce power is sought to be transferred. But it will be a new line; and the jurisdiction of the High Court cannot be escaped. Nor will the Commonwealth obtain an unqualified and unquestioned field of legislation, as the whole of the Attorney General’s argument assumed. After all, the definition of “ trade and commerce “ is going to be for a long time under these new conditions as complex and difficult as the demarcation of the trade and commerce power has been so far under the Constitution. But the great advantage of the present Constitutional provision, owing to the legal definitions and interpretations we now possess, will no longer exist.
– Then why do the Opposition oppose it so much ?
– For altogether different seasons. One of the principal advantages claimed by the Attorney-General for this clause is, as I have shown, unreal and i maginary. If it does exist at all, it cer- t ainly does not go to the extent to which he claimed.
– Is not the fact that we have no power over Inter- State commerce a serious limitation?
– Will not this proposal re- . move that limitation?
– Yes, but only to fix it in some indefinite place further on yet to be explored. I do not say that the Commonwealth will not enter into the trade and commerce field hitherto reserved to the States. It will do . so, as far as it can ; but that entry carries a limitation. Does a particular State Act arise under its trade and commerce rights or not? This amendment of the Constitution, instead of giving the Attorney-General, as he supposed, the run of the larder, enables him to take only from certain shelves. The decision as to what shelves he can take from, and where and how, will have to be threshed out before the High Court. This consideration was entirely ignored by the whole of his argument, which assumed that, with this power, the Commonwealth entered at once into a field in which litigation regarding limitations would be altogether avoided. That hope has absolutely no foundation. ‘
The trade and commerce power, as it exists, is not the simple proposition that is assumed owing to the existence of other specific endowments in the Constitution. There are half-a-dozen or more sub-sections of section 51 which give specific authority for the exercise of Commonwealth authority in matters which might have been deduced from the trade and commerce power itself. In addition, there are that group of sections 98, 99, 100, and 101, of the utmost importance, intended to introduce new elements of Commonwealth authority within distinct limits. They are the peculiar creation of the Australian Constitution, which, in these relations differs from any other. It was never intended that our Constitution should be a slavish copy of the American. If that had been the intention it would have been a great failure. It is an Australian Constitution, and the best that the Convention, with its knowledge and ability, could frame at the time, adapting it as exactly as possible to the circumstances of Australia.
– How does this particular paragraph differ from the American?
– Not at all in its own terms, but absolutely in having at least half-a-dozen trade and commerce powers, as they are considered in America, spec]ficially set out in section 5t, and those other sections, beginning with 98, giving powers as to railways, waters, and other matters not included in the American Con stitution. All these react on the original definition and turn it into something entirely different from the American.
– Conferring a wider power ?
– I think so now, though it would be hard to say that any power is wider than the American trade and commerce power bids fair to become in course of time. As the honorable member for Flinders reminded us, Chief Justice Marshall, to his everlasting honour, transformed what might have been made a dead Constitution into a living one. although its life was derived rather from judicial interpretation than from a plain reading of the original legal intent.
– *For that purpose he had to go almost beyond interpretation, and strain words.
– But every one will admit that whatever successful growth has been achieved by the American Constitution, enabling it to meet the demands of recent and present rimes, has been owing mainly to Chief Justice Marshall’s interpretation. If. at the time the Constitution was drawn, the intended legal interpretation of its powers could have been put down in black and white, they would have had nothing like the scone that Marshall afterwards gave them. Tn short, he made the American Constitution live.
I do not desire to get into a secondreading discussion, but all these factors have an important and direct influence upon the actual effect which the Attorney-General is going to obtain by striking out these few words. It may be said, “ Whatever the results may be, the Government propose this alteration in order that, so far as they can, by this means, they may enlarge Commonwealth powers. They may have overlooked many difficulties, and the question is much more complex than they at first supposed. It is not the clear run that they expected to secure; nevertheless, we understand their motive, and must admit that to strike out the limiting words of paragraph t must have some immense effect on the future of Australia.” I agree. It will have an immense effect ; but it will have to be paid for. The cost will renui re to be met. If begins a process, not of creation i but of development bv the very judicial decisions which it was thought might be escaped. As this Constitution is in so ma.nv respects distinctly Australian in its nature, the effects of the alteration will not be entirely known until there have been obtained from the High Court sufficient interpretations of the meaning of these very words.
– The same argument which the honorable member is using against the alteration of the Constitution was used against the honorable member in Queensland by the anti-Federalists, when he was advocating the adoption of the Constitution.
– No doubt ; and there was a measure of truth in it then, as there always must be. I have admitted from the first that you cannot have a Federal Government without paying for it. On the one side you get enormous advantages in a united defence and development, and by the breaking-down of unfraternal Customs and other barriers. In those directions the gains are immense.
– -For those reasons Federation is worth all that it costs.
– But Federation is not all gain, although its gains far outweigh its losses. It involves sacrifices. When we establish a national unit, if we wish to retain our local self-Governments they must have certain local self-governing powers - if we regard them as essential to the freedom and growth of the nation, as I most certainly do - we must pay the price by accepting some necessary, but in a sense artificial, adjustments, owing to the legal demarcation necessarily made between the Federal and State spheres of Government.
– I am afraid that the honorable member is getting away from the question which is before the Chair.
– I fear that is so.” Every one will recognise that we cannot have two concurrent Governments without defining their respective spheres. That task must, for a time at least, mean litigation. The question under this Bill is whether the boundary lines of Federal powers now being shifted into State territory are not being .pushed much too far. While undoubtedly the labours of Federal members will be eased, we shall dry up that spring’ of life and energy which can only be derived from local self-Government. Then there is another argument against the omission from the Constitution of the words proposed, which have behind them the weight of an immense mass of American experience-
– Will the honorable member give us the benefit of some of the ex perience which warrants the retention of those words ?
– As I understand it, even with any limitations which may be imposed, the net effect of the proposed endowment of the Commonwealth will be to place almost the whole of what may hereafter be defined to be the trade and commerce powers of the States at the mercy of the Federal Government. The provision in our Constitution under which a Commonwealth law overrides a State law in every case where the two come into conflict, will, in a comparatively short time, practically exclude the States from most fields of this kind of legislation. Taking this circumstance into. account, together with the further invasion of State rights which it is proposed to authorize by succeeding amendments, I say that the result of the passing of this Bill will be to leave the States with only the shell of the power which they at present exercise, and that in this Parliament will be found almost the whole of the powers which are capable of being exercised. The tendency of such an unbalanced growth must be to weaken the State Legislatures so much that whatever little scraps of power may still be left to them, must hereafter be appropriated in the same fashion owing to the weakness of the local Governments. The result must be that we shall attempt to govern Australia by an entirely unitary form of Government. That, I think, will be the effect of these amendments. Personally, I had thought that my own contribution to this debate would be limited to calling attention to the fact that, in spite of himself, the Attorney-General by this proposal has not escaped from the necessity of defining the trade and commerce power of the Commonwealth.
– No power has been better defined so far as judicial decisions go.
– But the definitions have been gained either under the American or Canadian Constitution, and imply an interpretation of their particular provisions. What is proposed here is neither American nor Canadian. It is a departure which takes away all the relevancy of American cases and nearly all that of the Canadian cases.
– Either our power is wider than is that of the United States or it is not. If it be as wide as the power of the United States, then the United States decisions must govern it. If it be not as wide as that power, we desire to make it so.
– It will be enormously wider than the power possessed by the United States. But the question to be determined is an entirely different one. It will be no longer a question whether a matter is one of State trade and commerce in the present sense, but to what extent it is Commonwealth trade and commerce deducted from the similar power remaining in the State, which is quite a different thing.
– The difference is only one of application.
– To my mind there is so great a gulf between the two that, while the American cases now present to -us a number of most valuable stepping stones, these will be of very little value to us in the new circumstances. We shall have to discover new stepping stones for ourselves. We shall need a series of Australian decisions laying down what is the Commonwealth power under this general authority now conferred. When Australia has an additional population of 5,000,000 or 10,000,000, as I hope she will have within a comparatively short space of time, the result of this amendment will be to overburden our central Legislature even more than theAmerican Congress was overburdened. There, as the honorable member for Darling Downs has pointed out, Bills are poured into the Legislature by thousands, and rejected by hundreds. A similar state of affairs - and a most unhealthy one - is likely to be brought about in this country by the amendment which is now proposed. I do not say that such a state of congestion can be prevented, even under the existing Constitution, but certainly the evil will be enormously increased by the amazing endowment of power which is here proposed. I admit that there are certain advantages to be gained from the stand-point of convenience, and of simpler legal interpretations if we abandon all attempt to limit the trade and commerce power of the Commonwealth, instead of endeavouring to restrict it to certain selected avenues. Some national gain would result from the transfer. But I certainly do not see my way to frame any such definition as could secure these and these alone, nor have I yet heard any definition which I can support.
– Can the honorable member suggest a definition?
– I have already said that I do not. If, within certain defined limits, any one can frame such an amendment, I shall be most willing to take it into consideration. Generally speaking, the existing limitation is very apt. Indeed, it seems the best which can be framed, though I am open to hear of a better. But that better cannot involve anything like the wholesale obliteration of State jurisdiction which must follow the adoption1 of the new amendment proposed. This is not a party matter, and if I could see my way to frame such a definition as we require, or if I could frame one which would serve for a few years as a via media, I would most willingly do so. In the circumstances, I see a great balance of disadvantage in accepting the sweeping amendment of the Government. It will bring about a transformation which is utterly uncalled for, and in itself enormously difficult. The proposal is absolutely antithetic to the very conception of a truly Federal Constitution. If the State Governments cannot be trusted to deal with trade and commerce within their own particular areas, subject to the authority which the Commonwealth Government ought to enjoy, I do not know with what they can be trusted to deal. At all events, I have endeavoured to convey my own feeling that this extreme alteration of subsection1. of section 51 of the Constitution is not only uncalled for, but unjustifiable, and should be rejected by the Committee.
– The Leader of the Opposition has very properly said that this question ought not to be regarded as a party one. Personally I do not propose to allow my action - nor doI think any honorable member upon this side of the Chamber will allow his action - to be influenced by party considerations in debating a proposed amendment of the Constitution. Upon the extremely important question which is involved in the first proposal of the Government it may be well for honorable members who entertain varying views to place those views before the Committee at the earliest possible moment. Therefore. I make no apology to the Leader of the Opposition for following him, and for giving expression to opinions which differ considerably from those which he has put forward, because we all desire that the issues which are to be determined upon this clause should be stated at as early a stage of the debate as possible. In the discussion of this clause, we must necessarily, I think, be allowed a liberty much wider than is applicable to an ordinary clause in an ordinary Bill. This momentous change, as it undoubtedly is, ought to have been made the subject of a single Bill. This House has not, and cannot have, and the country will not have, any proper opportunity to consider the proposal, unless it can be dealt with by itself ; but we are now in a position in which we have to deal with the proposal as one clause in a Bill. I have come to the conclusion, as .1 said previously, that this amendment of the Constitution ought to be made; and I propose to advance, as shortly and concisely as I can, some reasons why, in the interest’s of Federal development, this alteration, great as it is, ought to be made. First of all, le’t me deal very shortly with the argument, advanced by a good many speakers opposed to the Bill, that it leads towards, or has a tendency towards, Unification - that it is the first step towards a unitary form of government. That is an argument I utterly fail to grasp ; I cannot see the meaning of it. Unless the position be taken that any increase at all, or any important increase, in the subjects over which this Parliament is given constitutional power by section 51, amounts to a step towards Unification, or is based on the principle of Unification, that argument cannot apply to this case. Undoubtedly, it is proposed to give the Commonwealth a very important additional power, part of which has hitherto been exercised by the States ; but unless we can say that every accretion to the Federal power is in itself a step towards Unification, or is likely to lead to other steps towards Unification, the argument seems to fall to the ground. What is there in this measure which tends to Unification more than the mere fact that it is an accretion to one of the enumerated powers of the Parliament? Is Canada not a Federation? Surely the whole spirit and essence of the Government in Canada is local self-government, combined with Federal control by the central authority. Is that idea not fully preserved in the Constitution of Canada? But compare, for a moment, the division of powers in Canada with that in Australia at present, and we find that we shall not only have to take over (his power, hut some other powers of great moment, and even more wide-reaching, together with the whole of the residuary powers, before we reach the level of Canada. It must be remembered that one of the powers of the Federal Government in Canada is the “ regulation of trade and commerce,” and that is a power given expressly in those unlimited general terms, on the interpretation of which I shall have a word or two to say in a moment. But, taking the words “ the regulation of trade and commerce,” no expression could be wider in itself - it covers the whole ground of trade and commerce.
– Is it as wide as if “ regulation of” were not there?
-I am inclined to think so; but I may say, .in parenthesis, that if any honorable members feel that there ,is any security in having the word “ regulation,” I, for one, should be inclined to support it, because we should then have the advantage of the Canadian decisions. Personally, however, I do not think that the word makes any difference. Be that as it may, we have “ the regulation of trade and commerce ‘ ‘ provided for in the most general terms, and it is given to the Dominion Parliament as an exclusive power. It not only gives a general control, but prohibits any of the Provincial Parliaments from dealing with the subject of trade and commerce. The whole scheme of the Canadian Federation is different from our own.
– That is part of the original scheme of the Canadian Federation.
– That is what I say, and it is diverse from our scheme in that respect. There are two classes of subjects enumerated, and in the second section, though the first in logical sequence, there is an enumeration of the exclusive powers granted to the States. Then the Federal Parliament, by section 91, is invested with the control of all matters which are not given over to the State Parliaments, and, in particular, amongst the .enumerated powers, is exclusive authority in the regulation of trade and commerce. Suppose, therefore, we here took over the whole of the powers over trade and commerce, we should then be very far short of the control exercised by the Dominion Pari lament. When we look at the other subjects over which the Dominion Parliament has exclusive control, we find that they include such as the criminal law “except the constitution of Courts of Criminal Jurisdiction, but including the procedure in Criminal matters.” When we talk of Unification as arising from the proposals before us, we have to consider what that means. Not only has the Dominion Parliament exclusive power over trade and commerce and over the criminal law, which includes practically the regulation of the conduct and morals of the entire community - matters which with us are left entirely to the States - but it has the whole of the residuary powers outside those special powers given to the provinces. That is sufficient in itself to show not only that the power over trade and commerce, which this clause purposes to give, is not Unification, or an element in Unification, but that if is not a step towards Unification - that we should have to go very much further on the road before we even approached the position in which Canada now stands j and iL is admitted that the Canadian Government is not only a Federation, but one of the most successful Federations of the world. So much, then, for the argument that in itself this proposal is a step towards Unification. I have nothing to do with the motives of honorable members, or some of them, on the other side, who support this measure, and who say that they are in favour of Unification, or think that this is a step in that direction; we have to do with the effect of the constitutional change proposed, and with nothing else.
– -The question ought to be considered on its merits.
– We ought to deal with it on its merits, and not allow party considerations, or what we may suspect or believe to be the motives of some honorable members opposite, to influence our true and direct decision according to our own judgment. I now come to the power itself; and the first question is whether the limited power at present in the Constitution is one which in itself is mischievous or dangerous, or which it would be an advantage to do away with. On the second reading I expressed opinions which I do not intend to repeat as to the constitutional embarrassment and inconvenience arising from that limitation, but I have to say again that the origin of that limitation was purely historical; it arose partly from a compromise, and is. in essence, illogical, and has proved in many cases impracticable. I should like to give a few references from a well-known writer, Mr. Prentice, who has written several books in regard to the Federal power in America. One of his books is entitled, The Federal Power over Carriers and Cor porations, and another was written in connexion with a Mr. Egan on the general commerce power in America. Mr. Prentice is recognised as one of the ablest writers on one side of this much-debated question; and he takes the side against the extension of the Federal powers. Any one who rends The Federal Power over Carriers and Corporations will see that it is intended to convince the people of America that any alteration of the Constitution is unnecessary in that direction - that the powers over trusts and corporations are already sufficient. At page 171 there will be found the’ following : -
It is obvious, then, that the line between State and Federal powers with reference to commerce is an arbitrary one. There is no economic or commercial distinction which even roughly corresponds with State boundaries. Commerce is a whole, and a power to regulate commerce, if complete’ and unlimited by an arbitrary line of division, must extend to all commerce wherever conducted. Such a power Congress does not possess. The Constitution, in fact, established an arbitrary limit to , Federal jurisdiction.
Such an admission from such a source is of very great importance; but, after all, it is an admission plain to every one who has thought on the subject of commerce. We cannot, especially in these modern times, when we think what commerce is and what it means, draw a local or geographical line, and declare that commerce is one thing on one side and another thing on the other - it is absolutely impossible. In dealing with commerce we are, as I said before, dealing with an organic whole, and to attempt to deal with an organic whole by supposing or deeming it to be cut into two parts will prove as ineffectual here as it has proved in the United States. At page 196 there is another reference which I should like to read. Honorable members know that a great deal of the evil of the trusts and combines in America is connected with the carrying monopolies arising out of their privately-owned railway systems. That circumstance has fostered trusts and combinations to an immense extent, and I for one do not think there is anything like the same danger of the growth of the evil in Australia. I admit that the difficulty is not so urgent here ; but, in dealing with the power to control trusts and combines, and alluding to the difficulty in defining the line of division between State and Federal powers in regard to certain other matters, Mr. Prentice says -
The cases marking the line of division between State and Federal powers indicate even greater uncertainty than those which construe the terms of the statute.
The matter he had been discussing wasthe Sherman Act of 1890,which, as I pointed out on a previous occasion, has to a very large extent been hampered and partially paralyzed in its operation by the very distinction which it is now proposed to withdraw from our Constitution. Mr. Prentice goes on to say -
Early decisions gave to the Act the operation which Senator Hoar anticipated. The acquisition by an Illinois corporation of most of the distilleries in the country, located in many different States, and supplying markets in all the States, did not violate Federal law. The same rule was applied to the acquisition by a New Jersey corporation of substantially all the sugar refineries in the country. In this case the Circuit Court held that “ The contracts and acts of the defendants relate exclusively to the acquisition of sugar refineries and the business of sugar refining in Pennsylvania. They have no reference, and bear no relation to commerce between the States or with foreign nations. Granting, therefore, that a monopoly exists in the ownership of such refineries and business (with which the laws and courts of the State may deal), it does not constitute a restriction or monopoly of InterState or international commerce. The latter is untouched, unrestrained, and open to all who choose to engage in it…… It is the streams of commerce flowing across the States, and between them and foreign nations, that Congress is authorized to regulate.” In the Circuit Court of Appeals this doctrine was affirmed : “ The utmost that can be said - and this, for the present purpose, may be assumed - is that they have acquired control of the business of refining and selling sugar in the United States.. But does this involve monopoly, or restraint, of foreign or Inter-State commerce?”
It is a mistake to press any argument too far, and at this stage I may point out that one of the difficulties affecting that case - though not the only difficulty - was that commerce did not include manufactures. This immense combination of distilleries and sugar refineries extended over a large number of States. The connexion between the commerce of that corporation and the’ manufacture of its produce was so direct and intimate that a State, if it had the constitutional power to deal with it, could not have dealt with it except in regard to its operations within the State itself. I will give one or two references, which honorable members can look up for themselves, in the great book of Mr. Eddy, the leading writer on combinations. In the second volume of his work, page 935, dealing with the power of the Federal law to deal with this immense subject, he puts the matter in this way -
While the jurisdiction of Congress over commerce among the States is complete, it has no jurisdiction whatsoever over commerce which is wholly within a State, and therefore Congress has no jurisdiction over combinations which may affect, control, or restrain trade within the limits of a State; nor is any jurisdiction acquired over that part of a combination or agreement which relates to commerce wholly within a State by reason of the fact that the combination also covers and regulates Inter-State commerce. It follows, therefore, that in proceedings under the Anti-Trust Act the Courts have no jurisdiction to issue any order or injunction interfering with the operations of combinations where the trade is confined within State lines.
A very remarkable instance of the effect of that is given at page 942 of the same volume. This passage will appeal to honorable members who know anything of the actual working of the law courts or of penal Statutes. Under the Sherman Act there was a corporation known as the Addyston Steel Pipe Corporation - one of the very large trusts which came early under the operation of the Sherman Act. In the Addyston case the Supreme Court of the United States held, as Eddy points out, that -
Where the combination was illegal under the Act, the injunction issued could apply only to the Inter-State commerce of the combination, leaving the illegal combination to operate within the limits of any particular State, subject only to the laws of that State.
Could anything be imagined more helpless to meet the evil - if it be an evil - of these great combinations than that, under the strongest Act that could possibly have been passed, the Sherman Act - of which our Anti- Trust Act is in many parts literally a copy - the Court had to hold that it was powerless to deal with the operation of a huge monopoly which was found to be injurious, except so far as one particular class of its trading was concerned? Could there be anything showing more effectually the helplessness of the constitutional power which enables only Acts of that ineffectual kind to pass?
– Why do not the people of the United States amend their Constitution ?
– I have already pointed out the reasons why. I have shown that the people of the United States do not amend their Constitution, because the Senate in later years - I cited well known writers to prove the statement - has secured such a position under the Constitution as has enabled it to become the representative of the great interests against which such an amendment would be directed. It has, therefore, been found impossible to get the Senate to move in that direction.
– Great authorities say that the Senate contains the brains of the United States Legislature.
– The honorable member will see that the great authorities - if he studies them - do not say so.
– Bryce does.
– Bryce as an authority is now pretty old. It is true that he speaks highly of the Senate, and there is no question’ that it contains a number of very able men. Even the writer whom I have quoted, Professor Haynes, in a review of the whole history of the Senate under the Constitution, points out that for a long time in American history - in fact, for nearly the first hundred years of its life - the Senate stood very high, and commanded the admiration and respect of all sides. But since that time it has been sinking continually in public estimation. Why? Because, Professor Haynes says, it has since then taken the great commercial interests under its care to such an enormous extent that it has steadily lost weight, and has become an insuperable bar to any amendment of the Constitution.
– I must ask the honorable member not to deal with the American Senate.
– I was asked a question by my honorable and learned friend beside me. I should have thought that the question was a proper one and relevant to the discussion of such a matter, because the proposal now is to remove the existing limit on the general power of commerce contained in our Constitution. The question of my honorable and learned friend was why the American people have not amended their Constitution.
– I should have thought the States could have dealt with combinations.
– They cannot, because the operations of the combinations extend vastly beyond the limits of the territory of any one State.
– In any case, that particular illustration is dealt with by another proposal which we are asked to deal with here.
– Ex-President Roosevelt has said that the present law can deal with trusts.
– In a message which Mr. Roosevelt delivered to Congress in the year 1904, dealing with this very subject, he used these words -
It is difficult to be patient with the argument that such matters should be left to the States.
I venture to think that Mr. Roosevelt, as far as his authority goes, is worthy of attention on this subject; though I do not care even to cite so great a man as he, inasmuch as he was actively engaged in conducting political campaigns. I think that more weight ought to be paid to the prepared, careful, and solemn opinions of authorities who are removed from the active political arena.
– The honorable member believes in the theorist rather than in the practical man.
– If the honorable member wants the opinion of a practical man, I have quoted what Mr. Roosevelt has said. The message from which the words were taken was not merely the personal deliverance of Mr. Roosevelt. It was the deliberate statement of the President of the United States, charged with the duty of informing Congress of what the policy of his Government was going to be; and he used the very remarkable words with regard to this very point that it was impossible to be patient with the argument that such matters should be left to the States. Another consideration is this : It is a notorious fact that the power of the States to deal with these monopolies varies in different States ; and it has become a common practice for corporations carrying on monopolies to become registeredin States that offer them particular facilities for so doing, thereby placing the whole control of commerce, as far as relates to combinations, at the mercy of any one State that chooses to offer particular facilities for any corporation to carry on operations within it. There are one or two passages in regard to amendments to the Canadian Constitution to which I should like to refer honorable members. I apologize for dealing with an aspect of the subject which, as it necessarily involves referring to legal matters, is more or less dry, but I wish to place before the Committee, as shortly as I can, the reasons which have induced me for a very long time - for a considerable time before these proposed amendments of the Constitution were even formulated as part of the policy of the Government - to come to the conclusion that this commerce power ought to be generalized as far as the Commonwealth is concerned. I refer honorable members to Lefroy ‘s Legislative Power in Canada, which is the standard work on the. subject.
– Would the honorable member mind saying whether he understands that that statement of Mr. Roosevelt meant that he was impatient with the idea that the States should deal with the matter ?
– What Mr.’ Roosevelt said was that it was impossible to be patient with the argument that such matters should be left to the States.
– Does he argue that the Federal Parliament should take additional constitutional power to deal with the matter ?
– That was the effect of the argument.
– I do not understand that at all. I understand that he was out on a campaign of reform. I should like to see a statement in which Mr. Roosevelt expressed the opinion that more constitutional power should be credited to the central Government.
– I should think that Mr. Roosevelt is a wise enough man to know that under existing circumstances it would be absurd to attempt to secure more power for the Federal Government in that respect as long as the. Senate remains in its present exalted position. The passage which I read is given in Dr. Haynes’ book dealing with this subject. He is discussing the constitutional weakness of the United States Government in regard to its limited power of regulating commerce.
– All that I have ever read of Mr. Roosevelt’s views goes to show that he believes that the central Government has power to deal with trusts.
– In 1904 it was pretty conclusively proved that it had not. The Sherman Act had been in force since 1890 - a period of fourteen years. It had been shown that it had lamentably failed to effect its purpose through the want of this power on the part of the Federal Government; and Mr. Roosevelt was dealing with the point that the States were incapable of dealing with trusts effectually.
Whether he made the statement with a view to a subsequent proposed amendment of the Constitution I do not know. I appeal to the common sense of honorable members. How can the States deal with these things ? You cannot draw a line, based upon reason and common sense, in regard to any of these big commercial operations that extend between one State and another. I shall pass on now to a few illustrations appearing at page 553 of Lefroy’s Legislative Power in Canada, showing that. the genera? power to regulate trade and commerce given under the Canadian Constitution would probably not be read as empowering the Dominion Parliament to deal with all those minute local matters which were intended to be left to the States.’ They show, however, that it conveys a general and sufficient power to deal with those larger matters of trade and commerce which may be described as truly national in their interest or concern. In the case of Parsons v. Citizens Insurance Company, which is reported in 7 Appeal Cases, the Privy Council had to deal with the question of whether the business of fire insurance properly fell within the description of trade, and they held that it did not. In dealing with the general question of the regulation of trade and commerce, they said that -
The words “regulation of trade and commerce,” in their unlimited sense, are sufficiently wide, if uncontrolled by the context and other parts of the Act, to include every regulation of trade ranging from political arrangements in regard to trade with foreign Governments, requiring the sanction of Parliament, down to minute rules for regulating particular trades. But n consideration of the Act shows that the words were not used in this unlimited sense. In the first place, the collocation of No. 2 with classes of subjects of national and general concern -
That collocation exists, and will exist, if this proposal is carried, in our Constitution. affords an indication that regulations relating to general trade and commerce were in the mind of the Legislature when conferring this power on the Dominion Parliament. If the words had been intended to have the full scope of which in their literal meaning they are susceptible, the specific mention of several of the other classes of subjects enumerated in section 91 would have been unnecessary ;. as, 15, banking; 17, weights and measures; 18, bills of exchange and promissory notes; 19, interest; and even 2r, bankruptcy and insolvency.
With the exception of “ interest,” we have all these in the same collocation, so that the argument of the Privy Council in this, case would also apply to our Constitution. They went on to say - “Regulation of trade and commerce” may have been used in some such sense as the words “ regulations of trade “ in the Act of Union between England and Scotland (6 Anne, c. 11), and as these words have been used in Acts of State relating to trade and commerce. Article V. of the Act of Union enacted that all the subjects qf the United Kingdom should have “full freedom and intercourse of trade and navigation “ to and from all places in the United Kingdom and the Colonies; and Article VI. enacted that all parts of the United Kingdom from and after the Union should be under the same “ prohibitions, restrictions, and regulations of trade.”
That is to say, the Act of Union used the words “ regulations of tra4de “ to express a condition of general freedom of trade, and the Privy Council points out that -
Parliament has at various times since the Union passed laws affecting and regulating specific trades in one part of the United Kingdom only, without its being supposed that it thereby infringed the Articles of Union. Thus the Acts for regulating the sale of intoxicating liquors notoriously vary in the two Kingdoms.
The Privy Council said that such a thing as the regulation of the retailing of intoxicating liquors would probably not be held to come within the general expression of “ trade and commerce,” although, of course, the commercial movements or exchanges in these small matters, even within a State, would be held to come within the term. The words “ regulation of trade and commerce,” if the Privy Council view is right, would, therefore, probably be held not to apply to all those minute and detailed transactions covered by what is ordinarily known as the retail trade over the counter. But whether they would or would not, why should we not have this power? Suppose it should become necessary - and I do not think it would - to exercise this power, in order to deal with small matters of the retail trade, as being incidental to some of the more national concerns of the Federation, why should we not exercise it? ‘ We do not assume to have a power exclusive, as in Canada, of the State powers. The State Parliaments and Governments are to be left with full power to regulate all these other matters with which the provincial Legislatures of Canada cannot deal. That being so, why should we assume that if the States were properly doing their duty, and effectively regulating the small matters of retail trade, the Federal Parliament would step in unless some general rule of uniformity were necessary-
– Does not the honorable member know that the only reason for asking for this further grant of power is that it -is believed that the States are not exercising their power as they ought to do?
– I do not agree with that.
– That is only one of the arguments used.
– Do honorable members contend that we need such a power as this because the States are not passing proper laws for the regulation of trade over the counter? I have not heard such an argument. To assume that we, having the general power to regulate trade and commerce, would rush into the arena of the States, and make all sorts of regulations, interfering with the exercise of State functions, is practically to say that this Parliament is not lit to be intrusted with power, ft is an argument that always seems to assume that the Federal Parliament, to start with, is -prima facie a dangerous body, and that it should be tied down by every means of control. If honorable members assume that as the basis of their arguments, then the sooner we get rid of Federation the better.
– Who assumes that?
– I contend that the basis of the argument that this power is to be exercised in order to bring about disorder in the detailed management of the States is the assumption that we should probably abuse the powers that we possess.
– It is not an assumption ; it is stated to be a fact.
– I have not heard it so stated.
– Does not the honorable member know that honorable members opposite desire this power to enable them, amongst other things, to regulate prices?
– Even if we had the power, the regulation of retail or of even wholesale prices is a matter about which we need not worry at present. But no such apprehension as that to which the honorable member has given expression will prevent me intrusting this power, as far as I am able, to the . Federal Parliament.
– I am only telling the honorable member what the argument of honorable members opposite is.
– I am not concerned with the motives of honorable members opposite who support this measure.
– But the honorable member has imputed motives to us.
– I have not. I have simply said that the argument against the granting of this power is baseless, unless it is supported by fear of the Federal Parliament, and that that is the only ground which does lie at the base of some of the opposition to this proposal. It is said that if we take control of trade and commerce we shall take away from the State Parliaments the whole ground of their legislation. I can hardly listen patiently to such an argument, in view of the actual facts. Consider how extensive is the domain of the State Parliaments compared with the extensively limited Federal power that we shall possess, even if this proposal be agreed to. Even if this power be granted to us, the States will still have full power and control over a number of matters that are not enumerated in the Constitution. They possess control over the education of the people of Australia, and over the administration of the lands and mines of Australia. They have within their control the whole regulation of the great means of transport afforded by their railway systems, the regulation of their public works, the control of all municipalities, and the control of works, that are carried out by municipalities. In addition to these and many other powers which might be mentioned, they have an unlimited residuary power, by means of the Criminal Law and other systems of regulation and administration, to deal with the whole morals and conduct of the people of this community To say that, because we seek power to deal completely with a subject which the Constitution as it stands enables us to deal with in only an incomplete and partial manner, we desire to take away from the States the bulk of the subjectmatters upon which they may legislate is to state that which is contrary to fact.
– That is an unfair argument.
– I suppose the honorable member will reply.
– I shall.
– I have stated the facts. Have the provincial legislatures of Canada no subject-matter upon which to legislate, although they are absolutely deprived of the power to make any laws in regard to the regulation of trade and commerce? The exclusive power in that respect is given to the Dominion Parliament, which is also given control of that power - the exclusive power of the Criminal Law - which enables them practically to regulate the whole social conduct and life of the community.
– They have been given that power in accordance with the wish of the people.
– We are not seeking to do anything against the will of the people. The only question now before us is whether we ought to ask the people if they desire to give us this power. Unless they do we shall not obtain it. I do not see why any heat should be evolved. The discussion of such subjects does produce some warmth, but as between reasonable men why should any warmth of feeling be displayed when honorable members honestly put forward opinions which they have held for a considerable time?
– We have some concern for the honorable member when we hear him being cheered bv the other side.
– I am more concerned with the differences of opinion on this side of the Committee than with the cheers of the other side. If this power be granted it will probably lead to the introduction of legislation of a character with which I shall find myself at once in direct antagonism. I have not attempted to conceal that fact, or the fact that my views differ from those of the Government and their supporters. Our duty, however, is clear. We must state our real opinions, and give reasons for them, and I sincerely hope that this discussion will be conducted without any personal interchanges. I certainly have endeavoured to avoid them.
– I expected the honorable and learned member to refer to some of our local cases showing ‘how the present constitutional restriction on our power to legislate in regard to trade and commerce has prevented the effectual operation of our anti-trust legislation.
– I may deal with those cases later, but I do not propose to go into them now, as the matter has some* what suddenly arisen, and I have not had time to make myself familiar with the facts. I cannot help believing that when, in 1900, under modern conditions essentially different from those existing in the United States when the American Constitution was adopted, the people of Australia invested this Parliament with complete power over all Tariff law, they necessarily brought about a state of things which” must sooner or later carry with it a general control over commercial law, and with that a general control over industrial conditions, so far, at all events, as they affect the wellbeing of the Commonwealth as a whole. That is a view I must hold. I feel that in setting up artificial barriers we shall be setting up merely temporary barriers, and it is better for us to face the whole question and deal with it at once. The sooner we deal with these questions which are cognate and necessarily correlated the sooner we shall arrive at a satisfactory conclusion upon the momentous question before us.
– I quite agree with the honorable member for Flinders that this is a question which ought to be lifted out of any possibility of party acrimony or party differences, because it goes really to the root of our powers under the Constitution. We ought, with the seriousness which should characterize honorable members in asking the people to make a change which is regarded as fundamental, approach the consideration of the question in an equable temper. Though on many points one has to differ from such a leading lawyer and experienced legislator as the honorable member for Flinders, I trust our differences can be expressed with the good temper he has commended. I have to differ from the honorable member as regards- the expediency of extending this trade and commerce power at this stage. So far as my observation has gone, I do not think we have had in the Australian Courts any decisions which indicate that there is any paralysis of Federal administration owing to the operation of the trade and commerce section of the Constitution. There was one case which came under my notice when I had the honour to be Attorney-General, and that was in relation to trusts and combines, which, to a great extent, is the class of cases covered by the remarks of the honorable member for Flinders. It struck me, in common with the members of the last Federal Ministry, that our powers with respect to trade and commerce in respect of trusts and corporations fell short of what might, as time advances, be found to be necessary for the purpose of checking the creation or growth of trusts. We immediately considered the expediency of asking the people to amend the Constitution to give us the necessary power to deal with them. I preferred, at all events in the beginning of the second decade of the existence of Federation, that instead of asking for, the whole power in relation to trade and commerce, and thus going far beyond what appeared to be the necessities of the occasion, we should meet each case as it arose and take from the trade and commerce power left to the States by enumeration what may be found to be necessary for our purpose. I think I may say .that that was the view held by my colleagues in the late Ministry. At all events, that was the spirit which inspired me in making suggestions to them. Considering that we are only in the eleventh year of our existence as a Federation, I conceive that to be the course dictated by our experience, and by that rational prudence which should influence v.s in considering amendments of the Constitution. They ought not to be too arbitrarily undertaken, because they express something far more fundamental than mere matters of legislative policy. We should not, therefore, on the perception, perhaps, of one inconvenience in the apportionment of the powers, ask for such a sweeping change as this, the limits of which it is practically impossible for us to determine. I think we should be pretty safe in asking for such increments of power as acknowledged necessity prescribes. That I am prepared to do, and in the memorandum which has been referred to in connexion with these measures I made a few suggestions to that end. If they are not beyond the competence of a Parliament like this, based upon, perhaps, the widest suffrage that any legislative body possesses, and we suggest alterations we consider necessary, I feel sure that the people of Australia will acknowledge the reasonableness of what we propose.
– What are the terms of the amendment which the honorable gentleman would suggest?
– On the trade and commerce section I cannot suggest any in general terms. I would look at what inconveniences have been discovered in the working of the apportionment of the powers and specifically meet them. I should not, for instance, follow the course of the Chinese who, when he wished to roast a pig, burned down a house - a labour altogether disproportionate to the end be wished to achieve. I would meet the necessity arising by a remedy proportionate to it. In connexion with the trusts problem, I would ask for an amendment of the Constitution to cover undue limitations of our power in respect of conspiracies in restraint of trade, monopolies, and corporations.
– What are the terms of the amendment for which the honorable gentleman would advise us to ask?
– They are contained, as regards trusts, in the memorandum to which I have referred. These points were very carefully considered in the light of existing decisions ; ‘ and, as a matter of fact, in the memorandum I have gone beyond the discovered necessities of the case.
– The memorandum does not deal with trade ‘and commerce.
– No; but with a portion of the trade and commerce power. It shows die difficulty with which we are faced in dealing with the trade and commerce section when it is possible for a very able lawyer to misunderstand what one’s meaning is. These trusts are related to trade and commerce, and when asked what I would do to overcome any discovered shortcomings, I did not propose to deal entirely with the apportionment of powers in relation to trade and commerce, but with what was necessary to enable us to deal with trusts, combines, and monopolies in restraint of trade in any States or part of the Commonwealth, irrespective of State limits. That, I think, is a fair suggestion to meet what appeared to be the necessities of the present occasion. If it is found inadequate, we can ask the people to give us greater powers ; and I say that here in Australia they will respond, because we have a much more facile method of amending our Constitution than has any other Federation. It is found as time goes on, and people become used to their institutions, that they are inclined to give more latitude to the Federal or National power. If we take the case of Switzerland, for instance, we shall find that in the beginning in nearly almost every case the people rejected proposed Constitutional amendments- But when, after” ten or twelve years’ experience, they became confident in the capacity and uprightness of their Federal Legislature,, we find that in about three out of every four cases they were prepared to give the power asked for. They are much more limited in their powers of amendment of their “Constitution than we are, and I think our experience of Constitutional Government is greater than that of Switzerland, because we have traditions extending over 600 years in these matters. As soon as we, as legislators, suggest to the people that the powers we at present possess are inadequate, they will give us the. necessary ex tension of our powers without any revolutionary breach in the alteration. There will be no revolutionary breach of the principle of the arrangement that was come to in 1900. Let us not be misled by references to Canada. On this question of the trade and commerce power, there is no doubt that the Canadian power is in its terms comprehensive. If it is at all limited, it is by the apportionment of powers made there under sections 91 and 92 of the Canadian Constitution. In the Parsons case to which the honorable member for Flinders referred, the question was, whether, under the general power to legislate for the peace, order, and good government of the Dominion, conveyed, I think, in section 91 of their Constitution, they were enabled to regulate contracts of insurance. We have no such general power to legislate for the peace, order, and good government of the Commonwealth, as they have in Canada. In our Constitution these words are simply prefatory to the powers given as showing the object for which they are given. They do not represent a specific power to legislate, as they do in the Canadian Constitution. They express in the Canadian Constitution a balance in favour of the Dominion Parliament.
– It is an express and exclusive power.
– I do not place so much reliance on the exclusive power as the honorable gentleman apparently does. The words represent a sort of reserve power in Canada, given to the Federation. I say “ a sort of reserve power,” because there is no reserve power in the true sense, inasmuch as they never had the power.
– It is a part of the reserve power declared to be exclusive.
– Under the Canadian Constitution it is a specific power rather than a declaration of the objects for which powers are given, as it ‘is in our Constitution. With us the words “ for the peace, order, and good government of the Commonwealth,” are . prefatory to the powers specifically given, and it may be said that they mean, practically, nothing, because, in every Constitution, they are implied, and in every Constitution put into writing they are expressed. They will be found in Mr. Gladstone’s Home Rule Bill of 1886, and they are there used as prefatory words, covering the power given both in connexion with the Imperial Parliament and the Irish Parliament. They are to be found in almost every Constitution of the kind that one can think of. But as used in the Canadian Constitution they have a specific meaning. It was sought in the Parsons case to show that they gave a specific power over insurance, which really did not belong to the Dominion Parliament by particular enumeration, but was given under the terms of the power conveyed by the provision for the maintenance of peace, order, and good government. It was held that while that power and the trade and commerce power might be plenary, and extend not only to InterState and national matters, but also to domestic matters, it was limited under section 92 of the Canadian Constitution by the powers left to the States.
– The Canadian system is a purely Federal system.
– I do not think so. I think the Canadian system is a bastard Unification.
– The honorable gentleman appears to be reduced to the position of the man in the kirk in which there was only Sandy and himself, and he had doubts about the orthodoxy of Sandy.
– I think I am justified in saying that the Canadian system is not a purely Federal system. I hesitate to repeat what I said on the second reading of the Bill, but Canada, 130 years ago, had a unitary system. It was re-organized in 1848, but became again a unitary system, and the inconveniences of the unitary and somewhat monarchial system, as it really was, led to a further alteration, and in 1867 they adopted a looser system, and, taking in other territories, gave it the powers of a Federation. For instance, land policy is a Federal matter in Canada. All the lands, I think, belong to the Federal Government there, which involves a very wide circle of power which we do not possess here. The provincial Legislatures also are subject to the control of the Executive of the Dominion. No such power exists here. The powers exercised by the provincial Legislatures in Canada can be negatived by the Executive, which is controlled by the Parliament of the Dominion. Honorable members cannot compare our position with that of a Dominion in which the National Parliament controlling its Executive can absolutely override the action of the provincial Legislatures within their prescribed powers of legislation. When one looks at their powers and conditions, . he finds that our system is pure federalism compared with the Canadian system. It was not decided in the Parsons case that the trade and commerce power was purely national and confined to inter-provincial concerns or laws running right through the length and breadth of the Dominion. On page 543 of Quick and Garran, this reference to the judgment occurs -
Their Lordships abstain, on the present occasion, from any attempt to define the limits of the authority of the Dominion Parliament in this direction. It is enough for the decision of the present j;ase to say that, in their view, its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance, in a single Province.
The reason they gave us was that the express powers given to the States negatived such a presumption as to the comprehension of the power. It is not laid down in Canada that the trade and commerce power is confined to inter-provincial trade and commerce. If it were, what would become of the arguments of the honorable member for Flinders founded on the expediency of extension by similar words. Let me come now to what has been said by ex-President Roosevelt. The honorable member for Flinders quoted from Prentice’s work on Federal Power over Carriers and Corporations. This little book is directed against an extension by judicial decisions, and, I think, by legislation also, of the power in relation to trade and commerce, and particularly in regard to trusts and combinations. But one must not rely too much on quotations, since the whole text of the authority quoted cannot always be given. Ex-President Roosevelt sometimes talks broadly on very general and, however clever, not always perfectly clear propositions, and he has mentioned within the last year or two - I believe that President Taft has done the same - the desirableness of a Federal Corporation Act for the purpose of controlling trusts.
– Ex-President Roosevelt said quite recently that it was necessary to amend the Constitution to give the Federal Government greater powers.
– When considering the question, I made a note of a suggestion by either ex-President Roosevelt or President Taft as to the necessity of a Corporation Act. That suggestion was made within the last two years. I think that the message of President Taft at the opening of the last Congress included a Bill to deal with, trusts by federal incorporation. As to this power, ex-President Roosevelt seems to hesitate, if he does not wobble. In a passage written by Prentice, page 172, and quoted by the honorable member for Flinders, we find him stating that -
When the Constitution was adopted “ it was accepted as a matter of course that the several States were the proper authorities to regulate, so far as was then necessary, the comparatively insignificant and strictly localized corporate bodies of the day.”
It may be that he thinks now that greater power should be given because of the growth of commerce.
– I did not cite the passage as an instance of his opinion that greater power should be “given, but as an instance of his opinion that the States are incapable of dealing with these matters.
– About two- thirds of the States have passed laws dealing with trusts and combinations, but it has been found exceedingly difficult to suppress the latter by the application of the Acts of, perhaps, forty Parliaments. For the reasons given in the quotation, supported by the arguments of the honorable member for Flinders, the last Government issued a memorandum suggesting a cure by taking over the necessary power as an instalment, but it did not go the length of asking that the whole power should be given to meet one case of acknowledged inconvenience.
– Does the honorable member mean exclusive power?
– I would give exclusive power if necessary, but it would be better to have concurrent power, so that if the Commonwealth did not act the States might do so. Thus the people will have two Legislatures to protect them against the encroachments of trusts. That, however, is not a matter of substance. It was decided in the case of Brown v. Maryland that, in effect, the commerce power in respect of Inter-State trade is exclusive, because the legislation of Congress supersedes all State laws which cannot touch the sphere of uniformity. The determining question as to its sphere is very often the necessity of uniformity. Wherever that is apparent, it is practically exclusive. I do not attribute much to the fact that in Canada the power is declared to be exclusive, because it is better as a matter of expediency not to have it so, and the moment it is exercised it becomes, in effect, exclusive. Let us see what Prentice says almost immediately after the quotation cited by the honorable member for Flinders as to the fact of the line of demarcation between State and Federal powers being an arbitrary one. Lord Halsbury, in one or two Privy Council cases, has stated that the law is not a logical science. It must, to a great extent, be arbitrary in the distinctions it draws, because human wisdom cannot comprehend the infinite possibilities and complexities of human affairs. At page 171, Prentice says -
Courts proceed so largely by logical processes, seeking to create a consistent and harmonious body of decisions, that an arbitrary distinction, undiscoverable by logic, inevitably tends to blur.
You cannot, by mathematical- process, separate the lines of demarcation between State and Federal matters as regards the commerce power. The moment you start to do that, you get into a complexus of opposed decisions. He goes on, at page 172, to point out the necessity of respecting the State powers -
It is of great importance, then, that Statejurisdiction over corporations’ should be understood; that it should be known that there is no practical necessity which compels Congress and the courts to supersede this jurisdiction, but, on the contrary, that, so far as concerns constitutional law, the practical difficulties in the way of corporate control result from recent efforts to limit State authority ; of greater importance is it, that constitutional government and the reign of law should be maintained, and that the great tribunal, which has been called the living voice of the Constitution, should not become a dependent upon the popular opinion of the day.
– Prentice is recognised as one of the strongest advocates of State rights.
– -Yes. It is rather significant that the strongest advocate for State rights in the matter of trade and commerce should be the leading legal authority in America on the subject. In conjunction with Mr. Egan, he has published an American text-book on the Congress power, and I claim him as an authority of great weight against this too precipitate amendment of the Constitution in respect to trade and commerce. He commences by reminding us that if you, by “interference, go too far in the direction of centralization, you may destroy liberties most precious to the people. He quotes first De Tocqueville, and, citing a passage from Democracy in America, says -
A centralized administration is fit only to’ enervate the nations in which it’ exists. . . I am also convinced that democratic -nations are. most likely to. fall beneath, the yoke of a cen_tralized administration.
He winds up by saying -
To turn over to a single legislative body the vast intricacies of social life throughout the country, that it may prepare a system applicable to all conditions - to child labour in the south, for example, and in the tenements of New York - is not to hasten the adoption of better methods, but to place important governmental powers in the hands of those who can exercise them with the greatest difficulty and with the least knowledge of local conditions. It is, in effect, so far as concerns many vital interests, to abandon the effort for good municipal and State Government, and, once for all, to intrust local fortune and prosperity to. external authority. .
Let us see, then, what ought to be the basis of the commerce power. This question has been gone into pretty elaborately by Judson, who, in his work on Inter- State Commerce, points out what is the origin of this power, and, from the point of necessity, its true scope. He reminds us that really the Constitution originated in a desire to get rid of the difficulties of local commerce between the States. We know, from Lecky and others, who have written on the America of those times, that, as regards commercial matters, the States hated one another with a true brotherly affection. It was said by Otis, immediately before the revolution broke out, that, were the Colonies to be left to their own resources to-morrow, they would be practically a shambles of blood and confusion before petty States could be reconciled. Judson bases his remarks principally on the antipathies which had arisen from the exercise of their absolute commercial powers by thirteen States. He points out -
It was the necessity for national control over foreign commerce which was the immediate occasion of the calling of the Convention of 18S7, as the defect of the Articles of Confederation in failing to provide for the control of this commerce was universally recognised.
Then came, for the purpose, first the Convention of Annapolis, in 1786, limited only, according to the prospectus on which it was to base its proceedings, to take into consideration the trade of the United States, to examine the relative situation of the trade of the United States, to consider how far a uniform system in commercial relations may be necessary to the common interest and perfect harmony. It was through the failure of that body to do anything without some more direct powers, such as can be given through Conventions, that the Philadelphia Convention of 1787 came into being. But the whole object was to get rid of the difficulties arising from the absence of power as regards Inter-State commerce and the splitting-up of the power as regards external commerce, because each State had absolute power as regards the latter, but nobody had any power as regards the former. What I say is that, after consideration of the only motive of the calling together of the Convention of 1786, they settled upon lines to regulate purely external and InterState commerce, and never amended the Constitution, and they have not proposed to amend the Constitution, in that respect since it was drafted.
– Yes, but those circumstances did not, and do not, exist here.
– I know that they do not, because we have no inconvenience at all here, except as regards trusts. What inconvenience in connexion with this power has been discovered ? Is this amendment to extend our power as regards conciliation and arbitration ? That is covered by a subsequent clause. ,Is it to give us greater power over trusts-? That also is covered by a subsequent clause. We are willing to cooperate as much as reason can demand in respect to that.
– All the subsequent powers to which the honorable member alludes are so limited by the words in paragraph 1 of section 51 that, without the elimination . of them, they are practically useless.
– I am sorry that I cannot agree with the honorable member on that point. What I say is that the domestic trade and commerce power has so limited the attempts of this Legislature to deal with these matters without the amendment of the Constitution which we are willing to give, that the attempts were nugatory. We could not deal with trusts before in this way, as the decision in the Huddart, Parker case shows, either under the power as to corporations or under the trade and commerce power, without getting an amendment such! as we are willing to give in respect to both’ those matters. There is no limitation, because these powers have not yet been given. The proposals before the Committee are the cures for the defects which’ have been discovered in connexion with the operation of some of our Acts, such as the Excise Tariff (Agricultural Machinery) Act, and the Australian Industries Preservation Act of 1906. Their defects have been declared by the High Court, and we are willing to cure them.
– What is the difference in effect between the honorable member’s amendment and this proposal? Say that there are trusts or combinations in a part of the Commonwealth, is not a combination between two persons in Australia a partnership? And would not that effect practically all that the honorable gentleman takes exception to here ?
– I do not think so.
– What would it not do?
– The draft which I submitted is not similar to the honorable member’s proposal. There may be a slight necessity to define the meaning of ‘ ‘ combination “ or “monopoly,” though I do not think that there is. The honorable member for Flinders asked what was the meaning of “monopoly,” and I think that he also asked a question as to “ combination “ to get rid of the possibility of what was meant in that regard.
– “ Combination “ is a little clearer than “monopoly,” that is all.
– What I did was to put the word “ trusts “ as the leading word of the proposed power. We know what it means.
– Oh, yes, but in this country there are comparatively few combinations which are trusts in the legal acceptation of the word.
– No, but it is a principle of interpretation that if you want to know what a Legislature meant by an Act to find out what was in the mind of the people, what were the necessities of the time, or the evil to be met. We have that term in common parlance and in newspaper discussion, and we have it embodied in our Anti-Trust Act, because we actually define it in the very Act which was found nugatory owing to the decision in the Huddart, Parker case to meet the occasion. We have a definition of the very trusts which we wish to control. If my honorable friends want to go beyond that they can go to similar Acts in America, and they will find that trusts are referred to in some of them - for instance, in the Sherman Act. The colloquial designation of all these Acts is Anti-Trust Acts. So in order to prevent any possibility of doubt as to what was meant, I began by using the word “ trusts,” and followed with the words “combination” and “monopolies.”
– I- do not take exception to the honorable member’s use of the word “trusts,” only I say that “combination” is clearly a wider term than “ trust.” It must include trusts and other things.
– I know. But what I think the honorable gentleman put to me was whether this power would not cover the case of two persons meeting in partnership and combining.
– What is a partnership but a combination of some sort? I do not say that “ combination “ does include a partnership, but I ask does it include it?-
– If the honorable member means, “ Does it include a combination of two persons in restraint of trade?” I think it does, though I do not believe that one case in a million will ever be brought against such persons unless they have the power of great corporations. You would not, for instance, prosecute two old women who collared the street fruit market in a particular locality.
– As an unusual restraint of trade, that is another matter - that is a limitation. So far as combination is concerned, I say that it must include a partnership.
– If it is in restraint of trade.
– Suppose that these words are eliminated and that the honorable member is speaking of the power to make laws in respect to trusts and combinations, whether in a State or out of a State, I say that “combination” would include practically all traders.
– I do not think that it will - certainly not under the amendment I suggest, because the word “ trusts “ indicates what is meant. But that does not touch a point relevant to the scope of the clause. I have endeavoured to support my suggestions by some argument. But even on the amendment of the honorable and learned gentleman there the collocation of the word “ combination “ and the nature of the Bill-
– Is the honorable member discussing clause 5 ?
– Yes; I think it is germane to the consideration of this clause, because the regulation of trusts is part of the trade and commerce power. On page 9 of his work, Judson- extols this division of the powers. He mentions, for instance -
The Supreme Court of Massachusetts said that it was a bold, wise, and successful attempt to place the people under two distinct Governments, each sovereign and independent within its own sphere of action, dividing the jurisdiction between them, not by territorial limits nor by the relation of superior or subordinate, but classi- fying the subjects of jurisdiction and designating those over which each had entire and independent jurisdiction.
Are we called upon to make this amendment by any trouble we are in owing to excessive litigation on the point? During the last ten years there have not been a dozen cases in the Commonwealth in connexion -with the trade and commerce power. But according to Judson, for the first seventy or eighty years there were not five cases in the United States.
– One reason is because our power was so artificially limited.
– Commerce has multiplied so much during the last half-century.
– I am now dealing with one point, and that is that it is provocative cf litigation to have this separation of powers, because you cannot by Act place any clear line of demarcation. If that is correct, it applies to all unitary as well as Federal systems. There is no difference in essence in construing a legislative Act, whether it is Federal or State. You have the same difficulty as regards your subordinate legislative bodies, your municipalities, your Wages Boards, your Conciliation and Arbitration Courts. Under a unitary system there have been decisions innumerable as regards legislative matters of this sort. What clear line, for instance, has been laid down where the power is plenary as regards trade disputes - sympathetic strikes? We have had decisions given in all these matters in Allen v. Flood, Quinn v. Latham, and lastly Conway v. Wade, and I defy any man to tell me clearly what was the logical interpretation put on the common law and statute in respect to the matters with which the cases dealt.
– Those were all common law cases.
– In England they had the Act of 1906 and the Act of 1875 on this very question, ‘and decisions have been given. In the case of Conway v. Wade, under the Act of 1906, Lord Loreburn stated three things, two of which have been determined with fair clearness as regards strikes and conspiracies, for instance, to get men dismissed, and so on. And as regards the third, where there is no breach of contract, threats, or violence, he said that really the law has never been declared with any exclusiveness j they do not know what it is. If my honorable friends were to bring an argument of that sort to bear, my answer would be that the same thing attaches to us, no matter what our system is. They will not cure it by taking over the whole power. They may cure it, if they can cure it at all, by having a national system of government. But so long as they proceed to a re- apportionment of powers, that course will be attended with some difficulties. They may proceed by taking at one time from a State and at another time from the Commonwealth, but the result will be the same. I hope, therefore, that honorable members will not be led into a false idea of the harmonious relations between people, so far as courts of justice are concerned, which will be induced by any amendment leading to a. greater transfer- of powers than is prescribed by the Constitution. In America this power has been declared altogether ada.quate to the changing necessities of the case. In In re Deis, in 1895, the Supreme Court mentions that one is not confined to the methods which determine the application of a provision which held at the time when it was drafted ; that one has to take into consideration the growth of necessities as generations come on the board. In giving his decision, therefore, Mr. Justice Field said -
Constitutional provisions do not change, but their operation extends to new matters as the modes of business and the habits of life of the people vary with each succeeding generation. The law of the common carrier is the same today as- when transportation on land was by coach and waggon, and on water by canal boat and sailing vessel. Yet in its actual operation it touches and regulates transportation by modes then unknown - the railroad trains and steamships. Just so it is with the grant to the National Government of power over Inter-State commerce. The Constitution has not changed. The power is the same. But it operates to-day upon modes of Inter-State commerce unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop.
Under that power of applying, according to the common- sense necessities of the moment, the terms of a Constitution framed, perhaps, 130 years before, the commerce power, on the whole, has been found adequate to the necessities of America at the present time; and there has been no call for a re-apportionment of it between the States and the Commonwealth.
Sitting suspended from 1 to 2.30 p.m.
– I quoted from In re Debs a passage to show that as time goes on the provisions of the Constitution are interpreted to meet necessities which, although not foreseen, were really impliedly conceived by the framers of the Constitution; in other words, that the Constitution must be read, in a sense dictated, by the changing conditions of human society and commercial affairs. That principle has been recognised throughout the judicial decisions, at all events those that are regarded as authoritative, of the American Supreme Court, and I believe is and will be followed here. . I believe the line of development that it suggests may be found adequate to meet our necessities for many years to come, without the somewhat drastic amendment suggested by the Bill. In this connexion, Chief Justice Marshall has been referred to, and it would almost seem that some honorable members think that he actually strained the American Constitution in order to meet the acknowledged necessities of changing times. So far, however, from that being the case, the conflict of decisions in America has been caused chiefly by other Judges, not perhaps of the same eminence as Marshall,- departing from the fundamental principles which he with his great judicial genius conceived. He was a man of most exceptional capacity. About 1884 or 1885, the Nineteenth Century or the North American Review contained a series of articles by the then American Ambassador in London upon the interpretation of the American Constitution and the Supreme Court of America. In these it was pointed out that Marshall was a man of exceptional genius and courage; that he had met the attempts at disruption of the States by men like Jefferson and others by the correctness, breadth, and liberality of his interpretation of the general provisions of the Constitution. Men like Jefferson, for instance, described the Supreme Court as a thief advancing its jurisdiction noiselessly over the whole of the State field. I think that was said by Jefferson shortly after the Supreme Court was established. At the time of the case of McCulloch v. Maryland, decided in 1819, there was a doctrine called nullification - that the Stateswere the arbiters of the constitutionality of Acts affecting themselves. The great American, Marshall, instead of taking a narrow interpretation of principles necessarily expressed in very concise, general propositions, and being actuated by the Secessionist tendencies of the time, gave full sway to his genius, and came to an interpretation of the Constitution which, although liberal, was correct, and has enabled such provisions as those relating to trade and commerce to be moulded to the necessities of the times without in any sense straining the Constitution. It is only by falling back on the principles declared by Marshall that the correct interpretation of the trade and commerce and allied provisions has been arrived at. Mr. Justice Bradley, in a case referred to on page 4 of Judson on Inter-State Commerce, said -
A great number and variety of cases, involving the great commercial power of Congress, have been brought to the attention of this Court during the past fifteen years, which have frequently made it necessary to re-examine the whole subject with care, and the result has sometimes been that in order to give full and fair effect to the different clauses of the Constitution, the Court has been constrained to refer to the fundamental principles stated and illustrated with semuch clearness and force by Chief Justice Marshall and other members of the Court in former times, and to modify to some degree certain dicta and decisions which have occasionally been made in the intervening period.
So far, then, from Marshall being driven by the narrowness of the text, and the too great limitations of the Federal powers, into practically legislating by amplification of the provisions of the Constitution, as is apparently thought by the honorable member for Flinders, it is by falling back on his decisions, which are regarded as basic, and a direct expression of the spirit and genius, truly read, of the Constitution, that we arrive at what the interpretation of these powers must be. That is the principle followed out in America, and it has been found adequate. I am sorry I cannot produce the articles published regarding Marshall some twentysix years ago ; but I remember that the American Ambassador, in dealing with him as a jurist, in effect, said, “ There seems to be on great occasions a force, unfelt at other times, which brings to the surface men who are prominent in public affairs ; children of the gods, who work so rarely but so well.”
– We do not often get a Marshall.
– Mr. Justice Bradley referred to others in this matter.
– It shows the danger that exists. If the Constitution can be strained in one way, it can be strained in the other.
– I have shown that there was no straining. Mr. Justice Bradley said that if there was any straining, it was a straining against the Federal power by one or two Judges ; but he pointed out that the correct balance of sense was obtained from falling back on what were called the audacious, but- which were simply the correct and liberal, interpretations given by Marshall in 18 19. So far from the Court being over-burdened in trying to find out what the Constitution in relation to its fundamental principles meant, I think that, down to 1834, when Marshall passed from the Bench, there were only about fifteen or sixteen cases of any great magnitude that came before him for decision.
– The honorable member for Flinders differs from the honorable member’s view.
– Although it does not make me give up my opinions, I feel all the respect that is due to the views of one who occupies such a prominent position as a lawyer in the public estimation. We can only help the public to understand what we are trying to do. We are seeking to put fair constructions from our different points of view on what would be the effect of carrying this proposal. It is a very serious matter so soon to ask the people to take over in such general terms the whole domestic power of trade and commerce. As regards its application to the necessities of the times, in a subsequent case, that of the Pensacola Telegraph Company, the language of the Court as to the trade and commerce powers was this -
They extend from the horse with its rider to the stage coach, from the sailing vessel to the steam-boat, from the coach and steam-boat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate at all times and under all circumstances.
That principle, on the whole, has, I believe, been found to apply.
– We would not get an interpretation like that in Australia.
– I do not know. I think we take a very liberal view of national interests. We are right in leaning towards the nation if there is a doubt. That is the principle of our Constitution, declared in section 5 or 6 of the covering sections, providing that the laws of the Commonwealth are to be supreme. Under a similar provision in America they have seemed to amplify, but have only correctly declared, the construction of doubtful sections of the Constitution. Marshall, whom the honorable member for Hindmarsh very correctly refers to as a man of great powers, the liberal Marshall, called audacious in his application of national principles, who anticipated, or at least agreed with, Webster in the speeches, which culminated in 1830, on the national character of the Constitution, referred, in the case of McCulloch v. Maryland, to the question of taking over big powers in the following striking terms -
No political dreamer was ever, wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one mass.”
I quote that from an article of mine in the Commonwealth Law Review, vol. 3, page- 203. On what side does that tell ? I leave it to honorable members to say. Does Marshall favour the nationalization of everything, or is his interpretation of the spirit and letter of the Constitution in the line of care as regards the re-apportionment of powers? The commerce power in our Constitution is wide in its importance, but comparatively narrow in the number of objects comprised by implication or specific enumeration within it. Like all our administrative powers, it is great simply because we deal with the affairs of a whole continent as well as external matters. But we shall not make it a bit greater by adding to the number of our powers. It will depend upon their character whether they are really in essence national rather than domestic. Such matters as navigation between the States are comprised within it as it at present exists. Under the existing terms of the Constitution the Commonwealth, subject to recognising the riparian rights of the States inter se, has power to regulate the navigation of InterState streams, and actually to prevent a State putting up an impediment to navigation in the stream. It can do that under its existing power where carriage and stream are Inter-State. Under the new power which is proposed to be given, it tan do it to the very utmost limits of the boundaries of the Commonwealth, and confineits operations purely to one State. In other words, it can do all it can now do over Inter-State streams in relation to streams which are purely State. Therefore, the navigation powers will be altogether given over to the Commonwealth Parliament. About the same thing will apply to land traffic. I do not agree with the honorable member for Flinders, that the control of the railways is still left to the States. I say it is not. Under our Constitution, the trade and commerce power extends to railways the property of a State, as is expressly mentioned in section 98. Otherwise we could not under our trade and commerce laws deal with State railways, because they are instrumentalities of the State. All that the High Court has decided in the Railways case up to the present is that the Commonwealth arbitration power does not extend to State instrumentalities, and that there is no provision in the Commonwealth arbitration power bringing the railways expressly within it. There is such a provision in the trade and commerce power, and had that arbitration been proposed purely upon Inter- State carriage - if the power was’ exercised only to deal with employment for purposes of InterState carriage - I believe that would have been a valid exercise of the arbitration power, because it would have been deduced from trade and commerce, which is not hampered by respect for the instrumentalities of the State. That has been decided in America in the Employers’ Liability case of about two or three years back, since our High Court gave its decision in the Railway case. Then, are honorable members going, under the rather sinister method of taking over a general power without mentioning a single bit of what is to be taken over - because the Attorney-General did not mention any - to give carte blanche to undo the work in regard to the policy, on which two Ministries were wrecked in 1904, of not interfering with the control of the States over employment on their own railways?
– Does the honorable member suggest that the clause includes railway servants?
– I do; and I say that that is the effect of the Constitution. We have not the power under the arbitration section to deal with employment on railways, and the reason is that the arbitration power does not expressly include the States. But the trade and commerce power does include the States; and that we propose to take over in its full amplitude under section 98, which is -
The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of a State.
That seems to me conclusive on the point.
– Does it include railway employes ?
– Subject to the reservation of Intra- State rights.
– That is the point. But under this Bill they are affected. On the authority of the Railway case and the Employers’ Liability case, I believe we can pass any law we like that is necessary or ancillary to employment on railways, if we are not met by the fact that they are State instrumentalities. The reason the arbitration power failed was that there is no inclusion of railways expressly in the arbitration power, although there is an inclusion in section 98, under the trade and commerce power. Now we are going to make trade and commerce, domestic as well as InterState, a Federal power; and we can then pass laws not only, for instance, in regard to Inter-State traffic, but in regard to domestic traffic. We can, if American decisions be followed, regulate the conditions of employment, so far as they have gone in America, and there they have dealt with that question for the purposes of fair wages or compensation for accident.
– So far as I recollect the judgment of the Chief Justice in the Railway case, it was quite different. Doubtlessthere was a right to make laws in regard to Inter-State railway traffic and industrial conditions, but not other traffic.
– That is exactly, what was decided, no doubt ; but we are taking over the domestic trade of the State, and the power that is said to exist there will not depend on the arbitration power, because it does not expressly extend to State instrumentalities, but it will depend on the trade and commerce power. The only doubt the Chief Justice had was whether arbitration or employment was so direct and approximate in its relation to commerce as to be an ancillary power; but since then it has been decided, in the United States, in the Employers’ Liability case that if we confine ourselves to jurisdiction over InterSlate traffic, as in America, we can act.
– Is the honorable gentleman giving full weight to the doctrine of State instrumentalities ?
– Yes, but to get over that doctrine we have to put in the Constitution an express power over railways the property of a State, as regards trade and commerce.
– The power is limited to he extent to which it is expressed there.
– It is not an expressed power now, and it has been decided that, under the trade and commerce power, we can regulate employment. I have rea’d the decision very carefully, and I have no serious doubt on the point. I am glad that the Attorney-General is open to conviction, because, if he finds himself to be wrong, we may have an alteration in the Bill.
– Does the honorable member mean to say that section 98, as it stands now, is only limited by paragraph 1 of section 51 ?
– Yes, as regards railways.
– Then could we make a law, for instance, saying how long a railway servant shall be apprenticed?
– I think we could, if it were really ancillary to commerce, and I refer the Attorney-General to the fact that in America, under an Act of 1898, they provided for arbitration, and, through that Act, for the regulation of wages, and also I think for ‘ trade unions under the commerce power. But they did not differentiate between domestic commerce and Inter-State commerce ; and the Supreme Court decided that, inasmuch as the power depended on Inter-State and foreign commerce, the exercise of it went into both domestic and InterState, but that as the” provision was not severable, the whole provision was bad. The Court held also that unionism, and the dismissing of men for belonging to unions, was not a matter that could be provided for under the commerce power - that that was going too far - but that wages could be provided for ; and the Act was subsequently altered so as to confine it to Inter-State commerce. Now we are taking over jurisdiction which would have been held in America to be invalid, both in regard to domestic and InterState trade ; and, if that be so, the AttorneyGeneral may see that he is going too far.
– In America the railways are not regarded as State instrumentalities ?
– No,_ they are private lines. That, however, is not the point. In America the exercise of the conciliation and arbitration power was challenged as an exercise of the power in relation to domestic trade, and it was held that the railways, being private, the power was not restrained by the doctrine of instrumentalities, and that wages could be regulated under the trade and commerce power. The arbitration power is not exercised by express delegation, but from the trade and commerce power, and the latter was unrestrained, there and here, by the consideration of State instrumentalities. I believe that inasmuch as in America the power has been held to extend to employment, the High Court here, which has not yet decided to the contrary, would adopt the same principle. I am glad the honorable member for Maribyrnong put the question, because we want to prevent any misapprehension. Of course, I am only giving the best light that is in me; but I believe that I am correct.
– Does the honorable member suggest that the arbitration power being held by the High Court as insufficient to deal with arbitration in respect to State instrumentalities, arbitration could be dealt with under this other clause?
– Yes I do, and if the honorable member reads the decision of the High Court in the Railway case-
– I have read it a good many times.
– And so have I. The High Court has not decided ‘ one way or the other yet as to whether the regulation of wages or arbitration under the trade and commerce power is sufficiently direct, proximate, and immediate in its relation to trade and commerce as to be an ancillary power; but I believe that the High Court would hold that we could exercise the jurisdiction under the trade and commerce power. Since then it has been held in America that the power depends on the trade and commerce power, so that the question of instrumentalities cannot restrain us. For instance, the trade marks power does not extend to union labels, but the trade and commerce power would; and, in America, union labels are regulated by State laws, and for Inter-State purposes by laws of Congress. We fail under the trade marks power, but we could act under the trade and commerce power. I mention these matters so that honorable members may, perhaps, see the danger of giving carte blanche to the Federal Government under the trade and commerce power, especially when the Attorney-General, with all respect to his ability, has not given illustrative instances of what the power will mean in its operation.
– Will the honorable member wait until the mischief is done before ive legislate?
– If there is mischief done we can bring in amending legislation.
– Why not do the work all at once?
– Surely the honorable member would not make a man eat to excess at the moment, in order to maintain his constitution for all time? I have extended my remarks to much greater length than I had intended, but I com’ mend the suggestions I formerly made for consideration with, I hope, not too much desire to promote party interests in’ relation to any division that may be taken.
– The discussion threatens to take a wider scope than, in view of the time at our disposal, may be altogether desirable. I admit, however, the supreme importance of the question, and I do not complain other than for the reason I have given. The Leader of the Opposition said that one objection to our dealing with the trade and commerce power in the way suggested is that it still left the power undefined. That is perfectly true ; nothing in the amendment of the Constitution advances the power any more than by extending its scope. Whatever the power is, it now applies, as it were, all over the map in equal wash from end to end, subordinated only in the way and to the extent that a State, by its own legislation, chooses to invade the sphere not occupied by us. As to the meaning of the trade and commerce power,_ the honorable gentleman is, I think, at variance with some of his followers in that, whereas he imagines that the power is somewhat limited, the danger apparently is, or is thought to be by the honorable member for Angas, the very reverse. The Leader of the Opposition said, for example, that we should be told by the Judiciary that the limits of the trade and commerce power were so-and-so, and that, therefore, we could not deal with any particular hypothetical matter. That is perfectly true, of course, and the honorable member for Angas has just suggested that, under the power as amended, supposing we have our ordinary industrial powers as they stand, we shall have the right to deal with (he conditions of railway servants, notwithstanding that the State railways are State instrumentalities. The honorable member held to that opinion by virtue of the powers given under section 98: While I am not at all inclined to be dogmatic on the point, so far as I have been able to refresh my memory as to the judgment in the Railway case, I think the Court, with the greatest possible reluctance and hesitation, declined to go any further than simply say that, doubtfully, we had the right to make some kind of law for trade and commerce, pro vided it were Inter-State trade. It does not follow that the trade and commerce power without limitation would take the limitation from all the other expressed powers.
– What power does the honorable member say this measure would give over the. State railways?
– Conceivably, whatever rights we propose, for example, to vest in the Inter-State Commission would, in consequence of the removal of the prohibition, extend to State traffic within States, whereever it might be. It might, for instance, extend to the fixing of rates and fares wherever conceivably they affected InterState traffic.
– Also Intra-State traffic?
– Doubtfully, but possibly ; I am not going to deny that. What is becoming more abundantly clear with every contribution to the debate is that, not only is one not able to define the limits between State and Inter-State traffic and commerce, but that no one is able to say where the trade and commerce power ends and the trust, monopoly, and combine power begins. On the other hand, we are unable to say where the corporation power ends and the trade and commerce power begins. That being so, I think the Government are amply justified in putting all these proposals in the one measure. They are correlated, and are merely varied expressions of the same thing. The Leader of the Opposition said that this provision impaired the rights of the State Governments. No doubt it will give us some powers that we do not possess, but it does not follow that it will impair local government. We may conceivably have a power which is not to be exercised by the States. The honorable member for Flinders gave an instance this morning when, in reply to the honorable member for Fawkner, who asked, “ Why do not the States interfere with the combines?” he said, “Because they cannot.” It is clear that they cannot, because a combine’s power when it becomes a danger to the community exceeds that of a State, since its operations are Inter-State. The more widespread its combinations the more futile the efforts of a State to restrict it. This will give us a power which, in effect, cannot be exploited effectively by the States. It does not follow because we have an additional power that we take it from the States. This will be an additional power vested in the whole of the people, to be exercised only by. them and not by any portion of them. The Leader of the Opposition said that apart from the fact that it would apparently impair State rights, it was convenient that we should have the whole of one power. It is eminently convenient, and such a sensible, business-like procedure, that no ordinary business man would dream of following any other For instance, if a man is placed in charge of a hardware department whilst another man is placed in charge of a carpet department, and the hardware man can exercise control over his department only so far as some suggestions of the carpet department man will not impair it, then neither the hardware man nor the carpet man can have that complete autonomous control necessary for the successful conduct of his business. Above all these departments in a great store there must be a general management which must also be supreme. Otherwise the business of the whole will collapse, although individually each department might be able to carry on. The honorable and learned member for Angas said that we should only take just that power that we required. That is precisely what we are doing. When I asked the honorable and learned member to suggest an amendment which would cover sufficient ground and still leave some words of limitation, he was unable to do so. The Leader of the Opposition is in the same position. Honorable members opposite are unable to suggest an amendment which would at once give us sufficient power and yet be expressed in words different from those used in this clause. We take power over “ trade and commerce “ because any addition to those words must be words of limitation. If not, they must be merely declaratory, and consequently superfluous and not even remotely dangerous. The honorable and learned member for Flinders pointed out this morning, as I did during the second-reading debate, that over and over again judgments in the United States have shown with unmistakable clearness the confusion to which Courts have been reduced owing to an attempt to discriminate between Inter-State and Intra-State commerce. I shall not allude to any of the judgments that have been quoted. I wish only to cite cases showing on their face that the position to which the authorities have been reduced in the United States is not only absurd but dangerous. In the Employers’ Liability cases, Damselle Howard v. Illinois Central Railway Company, and N. C. Brooks v. The Southern Pacific Company, reported in the United States
Supreme Court Reports, vol. 207, page 463, it was laid down that -
A regulation of intra-state, as well as of inter-state commerce, and, therefore, one beyond the power of Congress to enact, is made by the provision of the Employers’ Liability Act.
That was an Act which sought to make provision for placing liability on employers in respect of accidents befalling employes in the course of their employment, and it enacted that - “ Every common carrier engaged in trade or commerce” in the district of Columbia or in the territories or between the several States shall be liable for the death or injury of “ any of its employees “ which may result from the negligence of “ any of its officers agents or employees.”
This was held to be invalid because it extended to Intra-State commerce, and a perfectly ridiculous as well as monstrously unjust condition of things was permitted. Take the position of a wharf labourer or seaman handling Inter-State and Intra-State packages. The man is under the hatch and a sling holding an Intra-State package suddenly breaks. . The package falls on the man and injures him, but he cannot recover under that Act because the package was an Intra-State one. Had he been injured by the fall of an Inter-State package, however, he could have recovered.
The invalidity, as applied to intra-state commerce, of the provision of the Employers’ Liability Act of11th June, 1906, that “ every common carrier engaged in trade or commerce “ in the District of Columbia or in the territories or between the several States shall be liable for the death or injury of “any of its employees” which may result from the negligence of “ any of its officers agents or employees” invalidates such provision as applied to inter-state commerce.
The Congress of the United States repealed this Act and re-enacted it so that it provided that an employer shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, namely, Inter-State commerce. There we have the case of the United States being quite unable to deal with the common obligations which attach, or ought to attach, to employers everywhere, because of the ridiculous distinction between Inter-State and Intra-State commerce. Any one who has had any connexion with shipping, knows that on the same ship there may be oversea, Inter-State, and Intra-State packages. In regard to Intra-State commerce, there is one law, and in regard to Inter- State and foreign-going commerce another. In respect to industrial legislation, therefore, it is absolutely futile to approach the very threshold of the subject until we have struck out these ridiculous and illogical distinctions. An attempt has been made -this morning to show that there is some difference between the trade and commerce power of the Australian Constitution and that under the American Constitution. I asked the honorable member who was putting forward that contention whether, as a fact, our power was wider or narrower than is the American power. The American power is not, apparently, reinforced by sections ‘ similar to those in our Constitution to which the honorable member has alluded. We have, under our Constitution, certain power - I have quoted section 98 - in relation to railways and other means of transport, and the question is whether our power is greater than the American power. I submit that it is not, although the American power is not reinforced by any sections similar to those quoted. I rely on the fact, as admitted by the Leader of the Opposition and his followers, that the power of the United “States to deal with Inter-State transport, including railways, has been established by innumerable decisions. There is not the slightest doubt that the trade and commerce power of the United States Constitution permits the Federal Legislature to make laws in respect to traffic, transport, and means of transport, as well as many other matters incidental to trade and commerce. Let me quote very briefly from Quick and Garran’s Annotated Constitution, page 517 -
Transportation. - Federal control over the transportation of commerce embraces every agency employed in the movement of commerce, by land or by water, such as roads, stage coaches, railways, bridges, ships, navigable waters, ports and harbours. All these are means or instruments by or through which the subjects of commerce are transferred, in order to facilitate exchange and intercourse. A ship is not commerce, but it is one of the chief means by which commerce is conducted. A railroad is not commerce, but it is one of the most important agencies by which commerce is transported. Telegraphs and telephones are instruments of commerce. Foreign or Inter-State bills of exchange are instruments of commerce.
There we have an elastic interpretation, by judicial decisions, of the meaning of these plain words, “ trade and commerce,” which more than covers any of the additional powers, said to be enjoyed by the Commonwealth, which are not given under, the American Constitution. I ask honorable members opposite to point to one avenue under ‘the trade and commerce power that we possess which the American
Constitution, subject to the judicial decisions, does not give to the United States? The Leader of the Opposition speaking this morning about the danger of these amendments let slip inadvertently a remark pregnant with the deepest truth.. He said, “ This is a dead Constitution about which we are speaking.” And if it had not been for Chief Justice Marshall, it would not have lasted for a quarter of a century. And perhaps it would have been as well, for it has been stained with blood ; it has been responsible for the death of 600,000 men, and for an expenditure of ^2,000,000,000, and it is now gripping the virile and restless people of the United States in its iron grasp.
The honorable member calmly says that the founders of our Constitution deliberately rejected that model which he and his friends declare is the only one. During the debates in the Federal Convention, there were many models ; but they have all been reduced to two. One of them is that of our noble and immortal selves, while the other is the Constitution of the United States. The framers of our Constitution, however, deliberately declined to follow that model, so far as its rigidity in respect of amendment is concerned. What differentiates the Constitution of the United States from those of Germany, Switzerland, or Canada, is its rigidity, which those who drafted our Constitution deliberately and wisely declined to copy, recognising that Democracy demands the opportunity to adjust itself to changes of environment. For 3,000,000 persons who have been dead a hundred years to shackle 90,000,000 living men and women is intolerable and ought not to be endured. That it has been, and is still, endured, is a tribute to the lawabiding spirit of the Anglo-Saxon people.
But we live under a Constitution which far more readily permits of amendment; which has, already, been twice amended ; each time upon the initiative of the honorable member for Ballarat. Therefore, the only question to be considered is the wisdom of any proposed amendment. As to the amendments which we desire to make, the Committee must consider, not only are they generally admissible, but are they desirable. I need not refer to the position of the honorable and learned member for Flinders. Further, the honorable and learned member for Angas, who was Attorney-General in the late Government, expressed himself in most emphatic terms in favour of an amendment enabling the Commonwealth to deal with trusts, combinations, and monopolies in restraint of trade in any part of the Commonwealth. If that was not an impairment of the quasisovereignty of the States, I do not know what could be. He also wished to create an Inter- State Commission with power - to regulate industrial matters …. for the purpose of removing such obstacles to the establishment in any Stateof fair industrial conditions as arise from unfair competition, or the. prospect of unfair competition, from other States.
The question, then, is, not whether the Constitution should be amended, but in what way it should be amended ? We contend that it should be amended in such a way as to prevent needless appeals to the Judiciary, and desire that the delimitation of the Federal and State powers should be so clear and distinct that there will be no danger of their clashing, except in the rarest cases. I commend to honorable members the memorandum of the honorable and learned member for Angas, from which I have just quoted. And I propose now to read from a memorandum prepared at the request of the South African Government by the Secretary of the Department over which I have the honour to preside. The memorandum is dated nth August, 1908, and is the answer to a question of the Governor of the Transvaal. It sets out–
The experience of Australia with regard to the methods adopted in the distribution of functions between the central Government and the previously existing local Governments.
Some of the matters with which it deals are not material to this discussion. I propose to read only those which are material -
In the distribution of legislative powers between the Commonwealth and the States two main points stand out -
the grant to the Federal Parliament of legislative power as to specified subjects only leaving the general residue of legislative power to the States ; and
the fact that Federal legislative gower was, for the most part, not expressed to be exclusive, so that the laws and legislative powers of the States, on subjects as to which the Federal Parliament had power to legislate, remained unimpaired till superseded by Federal legislation.
On both these points a departure was made from the example of Canada; and the American model was closely followed ; and on both points there can be little doubt that experience has justified the course taken. Federal legislative power over a specific subject-matter is complete in itself and paramount, and carries with it all incidental powers necessary for its exercise. Federal legislative power with respect to the residue after specific State powers have been deducted is apt to find itself hampered in unexpected directions by the intrusion of a specific State power.
In Canada (speaking generally) the legislative power of the Provinces is specific, that of the Dominion residuary ; and both powers are exclusive. But this general statement requires considerable modification. To be precise, what the Canadian Constitution does is this : -
It specifies (in section 92) the matters in which the Provincial Legislatures have exclusive legislative powers.
It gives the Dominion Parliament legislative power as to all matters not coming within the classes of subjects assigned exclusively to the Provincial Legislatures.
It proceeds, “ for greater certainty, but not so as to restrict the generality “ of the residuary gift to declare that “ notwithstanding anything in this Act, the exclusive legislative power of the Parliament of Canada extends to “ certain enumerated classes of subjects.”
It follows that the Dominion Parliament has specific as well as residuary powers, and also that the specific powers of the Provinces, being subject to the paramount specific powers of the Dominion, become, in a sense, residuary powers.
The net result is - at least to an outside observer - extremely complicated; and has not been made less so by a labyrinth of judicial decision.
The specific powersof the Commonwealth Parliament are much more numerous and cover a far wider field than the United States Congress, e.g., Congress has no power with respect to trade-marks (except as relates to Inter-State and foreign trade), banking and company law (except incidentally to the exercise of some specific power), marriage and divorce, InterState extradition, insurance.
So far, the powers of the Commonwealth Parliament have, on the whole, proved to be adequate. Attention may, however, be directed to a few points in which Australian (and, so far as it is applicable, American) experience, has shown difficulties and weakness.
The specific powers should be defined in words as general as possible, avoiding, as far as possible, all conditions, exceptions, and limitations, e.g., “ Trade and commerce with other countries and among the States.” The limitation to Inter-State and external commerce bisects the subject of trade and commerce, and makes a hard and fast division of jurisdiction of which it is difficult to determine the boundaries, and which does not correspond with any natural distinction in the conduct of business. It would be more satisfactory, if possible, to take power over “trade and commerce” generally.
The Attorney-General of the day, the honorable member for Darling Downs, attached this note to the memorandum -
I have carefully perused the memorandum prepared by Mr. Garran during my absence in Queensland, and I fully agree with the views expressed.
The two Attorneys-General who preceded me have thus expressed unqualified approval of amendments of the Constitution. The honorable member for Darling Downs went so far as to propose, unreservedly, the dropping of the words of limitation as suggested in the Bill in the trade and commerce power, while the honorable member for Angas says that our powers in relation to monopolies and combinations are insufficient, and must involve an amendment of the Constitution, and such an extension of our industrial powers as will enable us to deal adequately with them. On page 658 of Eddy’s book on Combinations, it is stated that -
The cases already reviewed show that - 1. There is no form of combination adopted by capital which has not been directly or indirectly approved by some court of record. 2. There is no form of combination adopted by capital which has not been directly or indirectly, condemned by some court of record. The decisions are in such conflict that it would be a waste of time to attempt to reconcile them upon any tenable theories.
That statement follows an exhaustive review of all the cases to date relating to the trade and commerce power. Notwithstanding that Congress has pushed its antitrust legislation to the utmost limits, all attempts to deal effectively with trade combinations have resulted in a mass of irreconcilable decisions; so that no one knows the law. It would be a step in the right direction, therefore, if we so delimited the powers of the Commonwealth and the States as to make acquaintancewith the law of the country possible. The decision of the High Court in regard to the . trade and commerce powers was, in the Railway case, reported in 4 Commonwealth Law Reports, 488, that the limitations which exist in the American Constitution exist in ours.
The trade and commerce power does not extend to general conditions of employment upon railways. It only extends to commerce in being - not to matters precedent to its coming into being. And it only extends to matters the effect of which upon Inter-State commerce is direct, substantial, and proximate.
That replies to the honorable member for Angas, who thought that it might be deduced, from the judgment in that case, that our powers were subject only to the one limitation, and that, this being eliminated, we should then have power over the whole of the subject-matter pf railways. From that judgment the very reverse appears to be the fact. In the AttorneyGeneral of New South Wales v. Collector’ of Customs, 5 Commonwealth Law Reports, page 833, the Chief Justice said -
The trade and commerce power necessarily involves the power to interfere with the operation of State Governments so far as to make effectual any condition or prohibition imposed by the Commonwealth upon importation. Taxation by means of Customs duties is in law, as well as in fact, a mode of regulating trade with other countries. It follows that the right of State Governments to import goods is subject to the control of the Commonwealth.
Only when there is an express power does the right of the Commonwealth impinge upon or invade the reservation of the State powers in regard to trade and commerce. In the Workers’ Trade Mark case, 6 Commonwealth Law Reports, page 469, the Chief Justice said -
It is an implication, from section 51 (i.), that the power of the Parliament does not extend to trade and commerce within a State - except only as a necessary and proper means for carrying into execution some other express Federal power.
In the case of Huddart, Parker v. Moorehead, 8 Commonwealth Law Reports, page 352, the following principle was laid down -
The Constitution is to be construed as if it contained an express declaration that domestic trade and commerce was reserved to the States - except so far as the exercise of that power by the Commonwealth is necessary for, or incidental to, the execution of some other power conferred on the Parliament.
It must be expressly conferred. In the case of Baxter v. Ah Way, 8 Commonwealth Law Reports, page 626, it is stated that-
Section 51 (i.) empowers Parliament to enact that all goods, the importation of which is prohibited by proclamation, shall be prohibited imports.
Therefore, we see that, wherever the Courts have had an opportunity of dealing with the matters raised in the cases which have settled the American law, they have followed it, and declared that the same limitations are imposed on our power. The trade and commerce power in America is insufficient, and it is insufficient here. It gives rise to endless opportunities for litigation, which are availed of in many cases, and would be availed of in more if the possibilities and costs of- litigation did not inflict an injury upon people to whom money is of importance.
If we wish to make our . form of government respected, we ought to make it clear to the simplest intelligence, as far as that is possible. It is in the last degree undesirable that two authorities should have control over the same thing. Let there be as many subjectmatters as you like reserved to the States, and as few as you please to us. It would be infinitely better that we should be deprived of some that we have, provided that over those which were left to us we had complete and plenary power. We should then know where we were, the States would know where they were, and every, citizen would be able to define and know his opportunities. Our reason, which I think is sufficient, for presenting these matters to the electors in one Bill is that they are so correlated that the defeat of one means the impairment of all. After all, the people of this country ought to be the final arbiters of whether we - that is to say, they in their corporate capacity - should have control over the powers in the direction indicated, or whether they should be limited in their powers. Surely it is not an invasion of democratic principle, and I deny that it is an invasion of the Federal principle, to submit these questions in the manner laid down by the Constitution, and foreseen and provided for by those who framed it, in this constitutional way.
– I have listened with great interest to the legal arguments advanced during the day, and have been waiting to hear some concrete cases which would show the necessity that exists in Australia for taking over this further grant of power from the States. Notwithstanding the sophistical statement of the Attorney-General, to the effect that the Government are not taking powers from the States, but are merely supplementing them, and, so to speak, taking concurrent powers to accomplish the same end, every man knows that the practical effect of what they are doing will be to supersede and destroy State powers which come within the ambit of the Federal powers. The two cannot be in conflict, because the Constitution forbids it. It is the cardinal principle of the Constitution that where the Federal power operates the State power must absolutely cease. Therefore, what the AttorneyGeneral is after is not to take power to implement the State power, but to take power to destroy State control over industrial matters. The honorable member has quoted cases in America to show that where Intra-State packages have fallen on a man’s head, he has not been able to get redress under the Federal power. The answer to all that is. that if such an accident occurred here a man would get re dress instantly under the State powers and in the State Courts, nearly all the States having provided for compensation of a reasonable character in such cases. Therefore, if that case means anything it means that we have already powers to deal justly by those unfortunates such as they have not in that country over the seas. The honorable member talks about the great and growing complexity of industrial affairs in America. I should think so. It is one of the phenomena of recent times that we find all these complex industrial relationships growing up under that great democratic Constitution over the seas. Why do all those combines originate there? What is the secret of their malign in-, fluence? It is again a condition of affairs that is utterly absent from Australia. They are all buttressed upon the foundation of privately-owned railways, which are multiplied to the extent of some 250 throughout the length and breadth of the States. There you have 90,000,000 people on the same amount of soil as we have 4,000,000 on in Australia; you have 250 different railway systems all privately owned, and for the most part in deadly competition, or else mutually ranged together in the shape of a trust, while here we have three or four Statecontrolled railway systems which prevent the possibility of any such huge aggregations of industry, such huge malign corporations, as exist in America to-day. The more America is quoted the more we see that the conditions are not, and never can be, paralleled here, because the fundamental bases of the conditions in the two places are totally different. There would be none of those huge aggregations of capital to-day were it not for their privatelyowned railway systems. They are the base and buttress of them all.
– Hear, hear.
– I am glad to have that confirmation from one of the Ministers. That base is entirely absent here, and our industrial conditions can never be quite the same.
– Let us prevent them ever coming here.
– Of course, we shall prevent them. There is no conflict on that point, but we say we can prevent these things by taking, from time to time, such further grants of power as are necessary to deal with our industrial conditions as they develop.
The Attorney-General now asks for complete and unqualified industrial power, but over what? During the whole of the debate he has not cited a single case to show that our present industrial powers are not, on the whole, ample.
– We are discussing the trade and commerce power, not the industrial power.
– I thought we were discussing both. I quite agree with the honorable member that it ought not to involve both, but the Attorney-General has argued all through that we cannot draw the line between corporations and monopolies and the trade and commerce power generally.
What strikes me in connexion with this Bill is that if the clause now under consideration is passed, the Government might safely strike out every other part of the Bill, because with complete power over trade and commerce they can deal with every other aspect of the question contained in the measure. My proposal, rather, is that we should deal with the other three or four propositions, and let the first one alone, because they deal with specific aspects of the generic power contained in the first clause. However, things have been inextricably mixed up - as we are told from the very nature of things. Consequently we are discussing in the one breath trusts, combines, and corporations, and in the next accidents to seamen and wharf lumpers, and again matters relating to trade and commerce generally, all in the same argument, and all directed to the immensity of the power taken in the first clause.
The honorable member for Flinders this morning invited us to compare the powers exercised under the Canadian Constitution with those exercised under ours. Incidentally, he described the taking over of this trade and commerce power as a simple accretion to the Federal powers we already possess. If that be so, there will be no difficulty ; nobody on this side would argue against a slight accretion to a power we already possess. But it seems to me that we are simply asking for a complete obliteration of the trade and commerce power, so far as State functions go - in a word, we are asking for what is neither more nor less than industrial unification.
– Why make “ two bites at a cherry” ?
– The honorable member for Maribyrnong asks why we should make “two bites at a cherry”? But the trouble is that the honorable member desires to eat the whole bag full.
– Why go to the people half-a-dozen times when we need go only once?
– What the honorable member is really asking is why we should have any States at all - why we should not reduce them to provincial councils with such powers as a unified Government may deem fit to confer ? Iri Canada, there is a Federation, in some respects looser than ours, and in other respects tighter - in some ways weaker, and in other ways stronger than ours. ‘The honorable member for Flinders confined himself more particularly to the scope and range of the powers exercised by the Dominion Government, pointing out that it controlled the mines, the lands, and education. But the honorable member did not point out that in Canada there is a National Parliament to deal with national affairs, and not a Federal Parliament such as we have here. There is no State Rights Senate under the Canadian Constitution. Why are our powers comparatively weak?. Because we have left the residue of the powers t© the States, and have provided, as a guarantee that they shall not be seriously trenched upon, a Senate specially elected to safeguard the integral powers of the States. There is nothing of the kind in Canada.
– Is the Senate safeguarding the States?
– It is supposed to do so - that is the theory of the Constitution - but I venture to say that the practice is quite the contrary.
– The Senate safeguards the States, while the honorable member and his friends are in a majority, but not otherwise !
– The honorable member is quite right. The most antiState men in this Parliament to-day are in the Senate; and in proof of this, we have only to turn to recent expressions, particularly of new senators who were irrupted into that Chamber on the 13th April last.
– There was not an eruption, but a disruption.
– I prefer to call it irruption ; and I think it will subside as all irruptions do, and that the people of the country will return to the sane Federal idea which dominated the making of the Constitution.
I- was very much amused when theAttorney General read the memorandum that was sent to the South African*
Government some time in 1908. He told us of many things that the memorandum contained, but there was one sentence which he did not emphasize, though it was the tone sentence that mattered. That was the part of the memorandum which stated that the powers of the Federal Government and Parliament in Australia were generally ample for all our purposes. That sentence the Attorney-General skimmed over as quickly as he could.
– The whole memorandum has been printed; and I do not see how I could skim over it. The honorable member does not emphasize the fact that the trade and commerce power, without the words of limitation, were recommended.
– By whom? By the Secretary of the Department, in spite of the fact that he had just declared that the powers we had were ample.
– The powers, yes.
– If the powers we have are ample, why do we desire to unify the whole of the. industrial powers of the Commonwealth?
– If the honorable member will read the memorandum, I shall be perfectly satisfied.
– I am only emphasizing the sentence which the honorable member did not emphasize. The whole memorandum simply amounted to a statement that, in the working out of our powers, we had found that there had developed some little technical trouble which required remedying, but that, on the whole, the powers were ample for all purposes. What notice has been taken of that memorandum is seen in the fact that South Africa has adopted Unification, and not Federation.
In regard to Canada, the honorable member for Flinders pointed out, as I have said, that the Federation controls the lands, mines, education, and so forth.
– And the criminal laws.
– Yes. The other day the Attorney-General said that we required the powers that are exercised by the Canadian Federation; andmy point is that if we get them we shall require the same kind of Parliament that Canada has- that, if we are going to tear up the Constitution, we had better do it thoroughly, and have a readjustment of the whole instrument. I could understand the logic of such a position; but we are being asked to take over all the industrial powers, although it has been proved to the hilt by the exAttorneyGeneral that, by doing so, we may control the railways of Australia, and nearly every function and power now exercised by the States.
– The Chief Justice of the High Court expressed a contrary opinion.
– So far as I know, the Chief Justice has never expressed an opinion on the sections of the Constitution dealt with in the Bill, for the simple reason that the matter has never been before him.
– But the Chief Justice discussed the question of the trade and commerce power covering the conditions cf employment.
– If the Chief Justice has given an expression of opinion, it can only be hypothetically, and not in a concrete case.
– He dealt with the points in the Railway case.
– The honorable member knows that in America the railways are privately owned, and are controlled under the trade and commerce power, in relation to accidents and so forth, which were supposed to be within the jurisdiction of the States.
– But the railways in America are not a State instrumentality.
– That is precisely what I am pointing out; and it is idle to quote America as our great exemplar in framing a Constitution for Australia, where the conditions are entirely different. Neither the American case nor the Canadian case is ours. The Canadian Constitution is what the ex- Attorney- General fittingly described as a sort of bastard Unification. At any rate, in Canada there is a National Parliament to deal with national affairs, with a House of Commons, consisting of 214 members, as compared with our seventy-five, and a nominated Senate with no State Rights basis. Canada has been logical in the framing of her Constitution, and national functions are exercised by a National Parliament.
– Are we not a National Parliament?
– No; we are a National Parliament modified by a State Rights Senate.
– It is about time we were out of those hobbles !
– If the honor- able member takes over all the powers,
I think he will find me with him as to the Parliament. If he proposes to take over all national functions, there must be a Parliament which is a fitting instrument to control and exercise the powers proposed to be taken over. If we copy only a portion of the Canadian Constitution, we shall find ourselves in a mess, from which the High Court may find it difficult to extricate us. As to the lands, mines, and education being controlled by the Dominion Government my point is that many of our industrial troubles arise out of our local development. Nearly all our mining, agricultural, and shearing disputes thus arise; and such problems are better controlled on the spot, and not by an authority which knows nothing of the local colouring and circumstances.
– Combines are all over the Commonwealth.
– I have heard such statements made from time to time, but, on inquiry, we find that, compared with the American combines, ours are mere babies.
– But they are growing.
– As a rule, we do not use a railway carriage to take a baby out for an airing, but the more fitting perambulator.
– Unfortunately, those “ babies “ are growing at the expense of the community.
– I should like to hear what malign influences they are exercising. We hear all about them on the platform, and I should like to know exactly how and where they operate, and with what detriment to the community. Does the honorable member suggest, for instance, that the Coal Vend is exercising any influence in the States, or over Australia?
– Yes, combined with the shipping ring, a very malign influence.
– All I have to say is that I have heard the honorable member’s leaders, all of them, express their most unqualified approval of the Vend.
– All of them?
– Nearly all of them. Mr. Watson, the present AttorneyGeneral, the honorable member for Newcastle, Senator Henderson, and many others, have expressed unqualified approval of the Coal Vend.
– A Bill introduced by Mr. Wilks to abolish the Vend was opposed by honorable members opposite.
– Yes, later on, when we are dealing with the question of monopolies, I shall be able to show that the Attorney-General himself has declared that such combines as the shipping, sugar, and coal combinations are of infinite advantage to the working men of the Commonwealth. It is only within the last year 01 two that this complete volte face with regard to monopolies and vends has taken place.
As I understand the position, the Attorney-General is wandering all over the earth, so to speak, to try to take the mind of this Parliament away from the very purpose and object which he has in view. He desires power, as I understand the position, to bring about what he calls the new Protection, and he seeks this trade and commerce power particularly to enable him to secure, not only decent wages and reasonable working conditions for the workers - an object which we shall all assist him to attain - but something more. He wants to control the prices charged to the consumers of Australia, and he cannot do that unless he obtains the complete industrial power which he is seeking. I do not think he is quite candid to the Committee in that he does not declare what is his ultimate intention and purpose in seeking this power. In my judgment, the honorable gentleman may not take this power and use it in the innocent way that he suggests. His idea is that the powers now exercised by the States will be taken from them.
– He is asking for concurrent powers.
– And, as I have said more than once, “ concurrent powers” in this case mean concurrent confusion. They mean, for instance, that no State union will go to a State power when it feels that it can go by a State to a Federal power. Just now my honorable friends opposite are jubilant because the Labour party is in power, and, let me say it quite plainly, because Mr. Justice Higgins is on the Bench.
– That is unfair.
– Because Mr. Justice Higgins is on the Bench they say they feel that they can get more justice at the hands of a Federal tribunal than they have been obtaining in connexion with a State tribunal. If the honorable member for Denison thinks that that is an unfair statement, I have only to say that it is a. quotation.
– No one has questioned the justice of our Courts in Australia.
– A preference has been expressed more than once for the decisions of Mr. Justice Higgins, and an appreciation of the great charter that he is supposed to have laid down has been echoed from one end of Australia to the other.
– Because he has more power under the Federal Act than have State tribunals under State Acts.
- Mr. Justice.Higgins has declared that he has not the power that a State Judge possesses to deal with State concerns.
– In prescribing a minimum wage he has more discretion than has a Judge acting under a State law.
– I do not think so, and I have never heard that he has said so. I have read of his saying that he wanted more power, so that he could coordinate the various minimum wages and industrial conditions in the States, and thus exercise his power with a greater range and sweep than is possible with State supported tribunals as at present. As to the quality of the judgments, Mr. Justice Higgins has never made the slightest reference
– Does the honorable member disagree with Mr. Justicé-Higgins’ decisions ?
– It is not for me to disagree with them; I accept his judgments as those of the highest tribunal in the land. By-the-by, I think that my honorable friend has told the workers of New South Wales more than once that, when the Labour party got into power, they would have a different kind of Judges on the Bench.
– I said we should give them more freedom.
– There is an aspersion on the Justices of Australia, if the honorable member for Denison wants one. The honorable member for South Sydney has said that the Labour party would have a different kind of Judges on the Bench under Labour rule.
– The honorable member has never heard me make that statement.
– I have read of. the honorable member making such a statement.
– The honorable member has been reading some Deadwood Dick story.
– When such a statement was reported to have been made by the honorable member, who was a member of the State Arbitration Court, he was in duty bound to take notice of it if it did him a wrong. Since he did not correct the report, what I have said must stand. I think that the statement was reputed to have been made by him at a Labour meeting at Newtown. Is it so much the buttressing of the States that the AttorneyGeneral and his party desire in seeking these powers? Does not the following statement, made by the Attorney-General inan interview-as late as Thursday last, more correctly represent their attitude? -
We who live on the spot know very well that it is the last shape in which Conservatism has embodied itself. State Rights, in short, is nothing more nor less than another name for vested interests.
That was not a new statement on the part of the Attorney-General, for he has made it more than once. Only a little while ago he .was; asking the Attorney-General of New South Wales, “ Why the devil he did not come out of the galley of the State Righters.” “ What was he doing in that galley,” he asked two or three times in one of his newspaper articles. He declared then that “State Rights “ meant Conservatism and vested interests, and so the honorable member wishes a unified power in his effort to socialize the industries of Australia. This is .only a step towards the ultimate object that he has in view, and which is socialization by the process of unification. That is at the beginning and end of all that he is proposing. He would begin by a complete unification of the industrial power of Australia, leaving no power to the States which they could independently exercise. I am not alone in protesting against a grant of power of this kind. I stand, fortunately, in the company of some of the heroes of my honorable friends opposite. It is not so long since the Acting Prime Minister’s colleague, the Attorney-General of New South Wales, used very strong language with regard to this grant of power for which the Government are now asking.
– Does the honorable member refer to the present Attorney-General of New South Wales- Mr. Holman?
– Yes. First of all, however, let me quote a statement by Mr. McGowen with regard to the unification of the industrial interests of the continent -
With the six States remaining as now, where one State had better wages than others there was a spirit of friendly emulation amongst the other five, but where they had only the centralized authority, a kind of medium would be struck, and there would be in reality a levelling clown for some of the States. . . .
Therefore, he was against it. Mr. McGowen believes ‘ that this would ultimately lead to the reduction of the wages of the Australian workers.
– The decisions in the Bootmakers’ case, as well as in the Shearers’ case, have meant a levelling up instead of a levelling down. .All the decisions are against the honorable member.
– Of course, they are just now opposed to any levelling down, because, as every one knows, Australia is on the flood-tide of prosperity. Long may she remain there. As long as Australia is as prosperous as she is to-day she will stand a lot of this kind of legislation. The pinch is going to come when there is a subsidence of the present prosperity - when we reach the lean years,, as we shall, I fear, within a few years. The honorable member’s argument means, if it means anything, that, because the Federal Court has raised wages, it should be empowered to control all our industries.
– I simply gave an answer to Mr. McGowen’s statement.
– But is it a complete answer? The Government are asking here for a power for- all time, which shall be exercised both in the lean and the fat years. My own opinion is that Mr. McGowen is not very far wrong. We already have evidence to support his contention in connexion with the Public Service of Australia. The first effect of their transfer to the Commonwealth was a levelling down of some of the wages paid in some of the States.
– And a levelling up in the case of others.
– A levelling up to the average in the case of certain Slates and a levelling down where the wages paid were above the average. That was the experience in the case of the letter-carriers and certain other officers in the Post and Telegraph Department. Mr. McGowen, as the representative of one of the strongest and most prosperous States, says that he does not desire this levelling down of wages to the average. He says, in effect, “ I would rather see an interplay of differential wages rates corresponding with the degree of prosperity in the various States, instead of one dead level of wages throughout the whole industrial enterprise of the continent.” We all hope that conditions will continue to improve. The better the wages our workers receive, the better it must be for all business and for all ranks and services in the community. I have always believed in the payment of the best wages that any industry can afford. At the same time, I doubt if our industrial Courts will always be able artificially to keep up high wages rates when trade is dwindling and prosperity is declining. That is the point.: This is to be a grant of power for all time, and Mr. McGowen says he does not believe in the proposal, since it will inevitably lead to the law of the average being observed throughout the length and breadth of Australia.
– Was that statement made before the 13th April?
– Does the honorable member suggest that Mr. McGowen is a political weathercock? I admit that he said some contradictory things within the month preceding the 13th April, but he changed his tune considerably when the steam-roller of the caucus was run over him. He is not the only Labour member who is opposed to what the AttorneyGeneral is seeking to do. This is what Mr. Holman, the present Attorney-General of New South Wales, is reported to have said -
The argument - if he could dignify it with the name of argument - that because Parliament imposed the Tariff, it should have charge of all industrial legislation, would not stand investigation. The step that was suggested meant, in the long run, the end of the State Labour parties.
– We do not take lawyers seriously.
– I hope that the honorable member does not take the Commonwealth Attorney-General too seriously. Those utterances were delivered, not on the public platform, nor in Parliament, but in the Labour Conference. Mr. Holman is subscribing to the first law of nature, selfpreservation. He fears that if this grant of power is given to the Commonwealth it will mean the end of the State Labour party. He says -
First, industrial legislation would go, then in three years there would be a request for the railways, then in another three years lands, education, and the control of mining.
The appeal for this legislation is not on the ground that combines are strangling Australia, nor that our workmen are ground down and cannot get justice, but that it is desirable to give effect to the new Protection idea. Mr. Holman does not know that the control of all the things he mentioned, and more, is now being asked for. The chief critics of the proposals of the Government are members of their own political household. I await with great interest the effect of the coming into power of the Labour party in New South Wales, to see if it will make any difference to their just and wise State attitude.
– How did the Conference vote on the question?
– It was evidently packed, and voted for handing everything over to the Commonwealth. We were told this morning that we should treat these proposals on their merits, without regard to what has occurred in America, Canada, or any other part of the world. I think that I am on sound economical grounds when I say that trade and commerce, the operations whereby produce is brought to market and exchanged, are as essential to the welfare of the community as the act of production. By handing over to the Commonwealth complete power in respect of trade and commerce, we shall enable it to control not only exchange, but also production. I object to this transfer of power, because of the immense range of its implication, and the important consequences which Will flow from it. If the Commonwealth is given the power which is asked for, it will te able to control the industrial enterprises of Australia, including the railways, the mines, and the land in which the mines are situated. The power is a general one, including almost every other power affecting production. Commerce, says the honorable member for Flinders, is a whole. So are the mines and the lands, the State boundaries being merely artificial limitations. Travelling on the main railroad from Melbourne to Sydney one passes, on the Victorian side, a number of thriving townships, such as Rutherglen and Chiltern, which depend chiefly on the exploitation of the mineral wealth in an old bed of the Murray, which has been traced as far as the present bed, and under it into the Quat Quatta estate on the New South Wales side, where there is merely the green sward, no attempts having been made to get at the gold underneath. If commerce must be regarded as a whole, and there fore all power in regard to it is to be handed to the Commonwealth, it would be logical to propose that all control of mining and lands should be handed to the Commonwealth. That is not suggested ; any member who proposed it would not occupy his seat very long. We have been told that the American Senate cannot be altered, and that it is the cause of all the trouble in that country. Why cannot it be altered? The senators are chosen by the State Legislatures, whose members are elected upon the broadest basis of manhood suffrage. Yet we are told that the Senate is immovable, intensely conservative, representative of vested interests, and full of corruption. What a tribute to the democratic environment in which the American nation was born, and in which it has moved and had its being ever since ! It seems to me that my honorable friends are seeking to set up a new order of things which would by very far from democratic. The honorable member for Flinders asks why we should not have these powers. My reply is that we should not have them because of the intentions of the Government. Ministers want them for the purpose of giving effect to new Protection, and to regulate prices to the consumer, but in reality they reach much beyond. Another reason why the Commonwealth should not have these powers is the constitution of this Parliament. This is not a truly National Parliament, because the Senate represents the States as entities, and, as honorable members opposite were saying on every platform a few months ago, when opposing the acceptance of the Financial Agreement, the control of the continent is, in the last resort, in the hands of 70,000 or 80,000 voters. That is a conclusive and democratic objection to the course now proposed. I would support any amendment of the Constitution which would give to the Federal Arbitration Court the power necessary to prevent or settle disputes of an Inter-State character, but I am opposed to the conferring of power which will enable a strong central Arbitration Court, silting at the Seat of Government, to control the industrial ramifications of the continent. It will fail in the end if it attempts such a gigantic task. It is beyond the ken of any one Court to control so infinitely complex a problem. In the next place, it robs the States of powers which they can exercise with more salutary and beneficial effects to all concerned than any central Court would be able to do.
– I thought at one time that the States did have complete jurisdiction and control over industrial matters, but experience has taught me differently. Take the boot- trade case recently decided by the High Court. I remember when in New South Wales, the boot trade came before the Arbitration Court, both employers and employes spending their money in trying to get a finding for that industry. The Court, after going minutely into the conditions of the industry, and visiting the various factories, decided that a fair minimum wage was 9s. per day, on account of the high pressure at which the men were compelled to work, because of the machinery being speeded up. Before that award could be made effective, the Court was asked to look into the question of Inter- State competition. When they did, they found that if their award had been given effect to, it would have ruined the boot manufacturers of New South Wales, because Victoria was paying is a day less than New South Wales, Queensland was paying less than Victoria, and Tasmania was paying still lower rates. Consequently, there was no uniformity. That is one case where it cannot be disputed that we must have uniformity if employers and employes are to have protection, and this Bill is necessary for that reason. The Arbitration Court in New South Wales in that case stipulated in its award that when the Victorian wages rose to 9s. a day, the New South Wales wages should rise to the same figure, almost by the stroke of a pen. The result of the Inter- State competition was that it deprived New South Wales employes in the boot trade of free access to their own markets, as they were compelled to compete with cheap labour in Queensland, Tasmania, and Victoria.
– Would not an industrial Appeal Court get over that difficulty?
– A Federal Arbitration Court, with sufficient powers to secure uniformity where Inter-State competition exists is what is wanted. The men in New South Wales were deprived of the increased wages that they had been earning for years, because no uniformity of wages could be established. The same thing applies to the tailoring, timber, and other trades. After the boot trade employes had applied to the Federal Arbitration Court, and spent thousands of pounds, the High Court has decided that the Federal Arbitration Court has no power to cause a common rule to be granted. Any Federal Arbitration Act which cannot enable the Court to give a common rule is ineffective and unworthy of this Parliament. The Federal Arbitration Court is useless so far as concerns settling industrial disputes, or making things equal if it cannot give a common rule. On that point, alone, we are justified in asking for an alteration of the Constitution to -give the Federal Arbitration Court power to make wages and labour conditions uniform where it is necessary to do so.
– Why is it necessary to alter the trade and commerce power to do that?
– That alteration is required in other directions. In industrial matters, it is absolutely necessary to alter the Constitution to allow a common rule to be made.
– Would this Bill give that power?
– I hope so. It will give the Arbitration Court extended powers. I understand the Attorney-General is acting on Mr. Justice Higgins’ statement that he could not give a common rule without an alteration of the Constitution. The honorable member for Parramatta said that we have not in Australia combines such as exist in America, but we have very complete branches of the American combines. One instance is the British-American Tobacco Combine. These people fought very desperately in America to kill opposition, and succeeded. Not satisfied with a complete monopoly over nearly 80,000,000 people who use tobacco, they extended their operations in the United Kingdom, and fought and beat private enterprise there. Thus the British-American Combine was formed. Not satisfied even with that, they have now extended their operations to Africa, New Zealand, and the whole of the Australian States, with the result that every ounce of tobacco made in the Commonwealth, in the United States, and in Great Britain, is under their control. The grower of tobacco leaf in Australia has to take whatever terms they like to offer him for his product. He cannot sell it anywhere else. They control the price of the leaf, and the price of the tobacco to the consumer, and even dictate terms to the retailer. Thus they have a complete monopoly of the tobacco trade, and yet their business is only in its infancy in the Commonwealth. It cannot be regarded as reasonable that we, living in the twentieth century, should allow a body of men sitting in a directors’ room to dictate to the community the price of a commodity, or fix for themselves what price they should pay for their raw material. In that instance we have the germ of a great combine in the Commonwealth. I paid a visit to some of the works in New South Wales when a dispute occurred regarding the employes in the industry, and an examination of the pay-sheets showed that the company paid very poor and miserable wages. It was only after an agitation arose to nationalize the tobacco industry that the company saw fit to give fair and reasonable conditions to their employe’s. We have to reckon in the Commonwealth with another combine. It is stated in the cables that a movement is on foot in the United States to subscribe a capital of £12,000,000 to control the meat supplies of the world. It almost makesone shudder to learn that in the United States a man cannot buy a pound of chops for less than1s. 5d. This is not because the American people do not produce meat in abundance. As a matter of fact, they export it; but the combine has complete control over the meat markets. Ifthey subscribe£12,000,000 to control the meat supplies of other countries, they will have a very great inducement to control the meat supplies of Australia, because we are competing with them, and already they have taken steps in that direction. We have in New South Wales the nucleus of a complete combine. We have the Homebush saleyards, and quite adjacent are the Auburn Meat Works, run by a company. On every head of cattle and sheep sold at the Homebush saleyards,½ per . cent, has to be paid by the stock and station agents to the meat works. That½ per cent, is not simply on what the meat works purchase, but on all the sales of cattle, sheep, and pigs that take place in the yards. It is not paid away in dividends, but is used to help the buyers from the meat works to compete against any one who comes in to buy cattle and sheep. By this means they gradually keep the price of meat up.
– What profits are the company making?
– Last year they received over£18,000 in the shape of that bonus of½ per cent, on the sales that took place in the Homebush saleyards. With that money they gradually raised the price of. the stock to the other buyers who were competing against them.
– So much so, that we are paying 3d. or 4d. a pound for mutton I
– I do not say that meat is too dear at present, but it is 300 per cent, dearer than it was twenty years ago. The honorable member will admit that nowadays you do not see half a sheep hung up for sale in a butcher’s shop for1s. The combine has made a start to regulate the market in the way I have indicated.
– Meat has gone up in price of late years because of the export trade.
– I shall show how that comes about. The Auburn Meat Works are exporters, and this Parliament assists them to export. We pay£100,000 a year to the Orient Company to carry our mails, on condition that so many thousand feet of cool storage are provided. By means of that storage, for which the taxpayers pay, those exporters are able to send away the best of our meat, the best of our butter, the best of our rabbits, and, in fact, everything good, to the Old Country. In this way they keep up prices. I do not say we should not encourage our export trade. I am simply showing how combines are able to raise the price of commodities.
– It means that the Australian price is bound to level up close to the London price.
– What it means is that the various States have opened up the back parts of their country by building railways and roads, and sinking artesian wells, at great expense to the community. In this way they have assisted men on the land, with the result that we have to-day millions more sheep and thousands more cattle than we had some years ago. Still the price of meat has gone up, and we are just following on the lines of the American combines. I do not say that any combines have yet got a strong grip; but this Bill will prevent them getting it. We have a National Parliament, and that Parliament should have the right to control combines as they grow. The Sugar Combine, for instance, can dictate the price to be paid to the cane-grower.
– We shall stop that, I hope.
– I hope so. But the Colonial Sugar Refining Company exports to South Africa; and there the sugar is sold £5 or £6 per ton cheaper than in
Australia. The reason is that in Africa the company has to compete with other manufacturers, whereas there is no competition in Australia. All this shows that the germ of the combine is here.
– Every producer does that where he can.
– I know ; for instance, the best of the Tasmanian apples go to London. In New South Wales, a dispute arose in the dairying industry, and the case for the employes was that they had to start about half-past 3 in the morning with the milking, and did not get back from delivering the milk till 9 o’clock ; and that in the afternoon this work had to be gone through again, and that they did not finish until 7 or 8 o’clock at night. The disclosed conditions were really those of white slavery, and the employers said that the statements made were quite true, but they explained that these long hours had to be worked, for the reason that bran, pollard, and other fodder necessary for the hand-fed cattle had been raised to double the original price by a combine. These employers could not increase the price of milk, and many of them were hardly able to make a living ; and the injustice under which they suffered is shared by every man who keeps horses or cattle. The market in fodder is controlled by some one, and the public has to pay the penalty. Surely that is the sort of case in which the Federal Government ought to have power to interfere, because it is really an Inter-State trade; and I trust that the Bill will be passed, in the interests of the consumer, as well as of the employer and the worker. The honorable member for Parramatta expressed the opinion that we were trying to regulate prices, and, indeed, I hope that the day is not far distant when we shall do so, because that appears to me to be a natural corollary of this legislation. In the various States, brick combines and coal combines are very common. In New South Wales, a retailer of coal has to charge the price fixed by the Coal Combine, or he gets no further supplier. It is only right that the National Parliament should see to the general welfare of the community.
– These combines are stronger than the King’s Government.
– The members of a combine can sit in a back parlour and dictate prices’. There is a great upheaval in favour of increased wages; but we know that increased wages are only followed by increased cost of living; and this is one of the great causes of the discontent amongst the industrial classes.
– So long as the cost of production increases, prices must rise.
– As a member of the Arbitration Court, I had to inquire into a dispute in the brick trade. It is no secret that with modern machinery and appliances bricks can now be produced at a profit at £1 per thousand ; but the Brick Combine in New South Wales charge £2 4s., and consumers are glad to be supplied at the price. If a person desires to build a terrace of houses, he has to pay double for his bricks, and increased prices to a Timber Combine ; and, naturally, he has to charge higher rents, with the result that other landlords who built years ago when material was cheaper also increase their rents. Of course, it is a healthy sign when there is a demand for property; but the benefit is reaped by the combines, causing great discontent from one end of the country to the other in consequence of the increased cost of living.
– Do not increased wages have some influence on prices?
– As to that, the Arbitration Court in New South Wales increased the wages in the Portland cement trade by 3d. per cask; and the result was that the company increased their price by 9d. per cask. Similar results followed Jn the bread trade, where, when up-to-date machinery and special ovens are used, almost no skill in manufacture is called for. When, however, an increase of wages was awarded, the price of bread was raised; and, though that was attributed by the employers to the higher wages, the latter was a trifle in comparison with the increase in price. How are we to remedy this state of things ? The people have elected this Parliament as a committee to look after their interests ; and, in dealing with questions of this nature we ought to be above party considerations. The workers have asked us to legislate so that they may have a fair field, free from the influence of monopolists, and I have no doubt of the decision of the electors when they are asked to decide whether or not these increased powers shall be handed over to the Commonwealth.
Mr. Mcwilliams (Franklin) [4.54] - The important measures now under consideration have to be viewed from one or two totally distinct attitudes. In my opinion, the proposal to take over the control of the manufacturing and producing interests is a proposal to drive a wedge into the very heart of State autonomy. If we take over this control, there will follow such other encroachments on the State legislative powers that the latter will not be worth maintaining. There is one point of view as to wages on which I do not think any honorable member has touched. There is something more to be considered than the actual price of labour itself. The enormous turnover in the large centres gives these the preponderating influence in trade, no matter, practically, what the wages may be ; and we have had an illustration of this in the case of Tasmania. Prior to Federation there were, in Hobart and Launceston, boot manufacturers who did a very nice, little trade. There were no Wages Boards, and the rates paid were much lower than in Melbourne; but since Federation, despite the fact that the employes are under Wages Boards on the mainland, and the rates are consequently Higher, the Tasmanian factories have been almost wiped out of existence.
– Or swallowed up?
– No, wiped out. The manufacture in Tasmania is now to a considerable extent confined to a class of waterproof boot, which is very largely used by our bushmen and others engaged in the damper parts of the country, and which is not manufactured in Victoria. This change has been caused simply by the larger turnover which the difference in the wages did not cover.
– With higher wages the manufacturers of the mainland undercut the manufacturers of Tasmania?
– In spite of the higher wages the larger turnover has enabled the manufacturers on the mainland to very seriously affect the Tasmanian manufacturers, with the one exception I have mentioned.
– Then high wages do not always mean a dear article.
– I believe that a fair day’s wages for a fair day’s work will always give the best results; but the larger turnover, as a factor, ought not to be overlooked. If there were one fixed rate of wages throughout the Commonwealth the manufacture of many articles would be almost wholly concentrated in the larger centres, especially Melbourne and Sydney.
– Is it not a fact that some 80 per cent, of the trade is in those two centres ?
– I think the percentage is rather higher; and it is not desirable that there should be this concentration.
– Has the honorable member any remedy to suggest?
– I believe that any undue interference in these matters may “have results not foreseen at present; and we have to consider how far such interference is going. If this Bill deals with production and manufacture, is it to apply to all branches of agricultural industry where there is competition between the States? If so, I do not know one agricultural product which will not come under a Federal award, including meat, wool, butter, wheat, oats, potatoes, fruit, and so forth.
– Why not?
– Is it intended that all these industries are to be under Federal control ?
– This clause would not do that; it deals with commerce.
– Both the AttorneyGeneral and the honorable member for South Sydney dealt, not with commerce generally, but rather with industrial powers, and referred specially to those relating to agricultural or pastoral productions as being entirely apart from those relating to manufactures.
– Does not the honorable member think we should have the same definition applying all over Australia ?
– All the authorities go to prove that it would be almost impossible for us if these grants of power were conceded to the Commonwealth to confine them wholly and solely to industrial matters as affecting only manufactures. Pierce, one of the standard writers on Inter-State commerce under the United States Constitution, writes in Federal Usurpation -
Under the guise of controlling Inter-State commerce the police power of the States as to the control of food, drugs, lotteries, importation of teas, and many other matters which heretofore have been entirely within the control of the States, is taken over by the national Government.
He says further, dealing wholly with the Inter-State commerce section of the United States Constitution on which our commerce power was framed -
In the language of Mr. Justice Lamar in Kid against Pearson, “ The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horticulture, stock-raising, domestic fisheries, mining, in short, every branch of human industry. For is there one of them that does not contemplate, more or less clearly, an Inter-State or foreign market ?”
In the same chapter, Pierce goes on to say -
If Congress can regulate child labour in the factories under the Inter-State commerce clause, because the owner of the factory contemplates selling his goods in another State, with just as much consistency it can regulate child labour upon the farm, in the wheat-field, or in the cottonfield, upon the ground that the farmer and the cotton-grower intend to ship their crops to Liverpool. If it can regulate the age of children in factories because the product of those factories is carried by a common carrier to another State, why can it not regulate the ages of the farmer’s children working in the wheat-fields?
It is well that we should know how far we are to go in this matter. Is it intended to confine this power to our manufactures in respect of which there is Inter-State trade and competition, or is it to be applied to all Commonwealth industries ? If it is proposed to go as far as the speeches made by the Attorney-General and some of the supporters of this Bill, including that made by the honorable member for Flinders, indicate, then the whole of the police powers of the States in respect of industrial matters will go, according to eminent authorities who have dealt with a similar provision in the United States Constitution.
– Does the honorable member think we can go on satisfactorily with different conditions prevailing in the different States?
– I think that there may be sometimes as great a variation of conditions in one part of a State as in separate States? There are many conditions over and above those relating to the actual rate of wages paid. In many of the tropical parts of Australia it will be found necessary to pay considerably higher wages than are required for the same work in the more temperate parts o’f New South Wales, Victoria, and Tasmania.
– Is there anything to prevent that being done under this Bill?
Mr.Mcwilliams.-I do not know how far an award would go.
– But would an award fix a maximum ?
– The experience of America and Australia shows that a minimum rate of wage, fixed by a Wages Board or Arbitration Court, becomes, in almost every instance, the maximum wage. Honorable members, in order to secure what they may really think is a minor advantage, are seeking for a power which will deprive the States almost wholly of their local autonomy. I was very much surprised to hear the opinion which the honorable member for Flinders deliberately expressed in regard to the American Senate. In opposition to that opinion let me quote Bryce, who is recognised as one of the fairest and ablest critics of the American Constitution. At page111 of The American Commonwealth, he writes -
The Americans consider the Senate one of the successes of their Constitution, a worthy monument of the wisdom and foresight of its founders. Foreign observers have repeated this phrase, and have, perhaps, in their less perfect knowledge, sounded it even more loudly.
Further on he writes -
It may be doubted whether the Senate has excelled the House in attachment to the public good ; but it has certainly shown greater capacity for managing the public business, and has won the respect, if not the affections, of the people, by its sustained intellectual power.
– When was that written ?
– About eighteen years ago.
– I think it was written about twenty years ago, and Bryce had then to deal with a different set of circumstances.
– He was dealing with the Senate after it had been in existence for over a century. We have the further statement -
The Senate has succeeded in making itself eminent and respected. It has drawn the best talent of the nation, so far as that talent flows to politics, into its body, has established an intellectual supremacy, has furnished a vantage ground from which men of ability may speak with authority to their fellow citizens.
Every one who has given any consideration to this subject will recognise that the United States Senate is the Mecca of all American politicians. Just as, in Australia, the municipal council is the stepping stone to the State Parliament, and the State Parliament is a stepping stone to the Federal Parliament, so the State Legislatures and the House of Representatives are the stepping stones to the Senate of the United States.
– The House of Representatives ?
– One of the authorities mentions that thirty-seven members of one Senate graduated from the House of Representatives. It is rarely that a man leaves the Senate for a seat in the House of Representatives of the United States of.
America. The tendency is in the other direction.
– Is the honorable member going to connect these remarks with the question before the Chair?
– Yes. The honorable member for Flinders stated this morning that the Senate of the United States of America had become so corrupt that it presented the Constitution being amended so as to enable the Federal Union to secure further industrial powers. I have quoted these authorities to show that the Senate of the United States of America to-day contains, as it always has done, the very cream of the political intellect of the States. There have been some fourteen amendments of the United States Constitution, and the tenth was designed to prevent the encroachment of the Federation upon the powers of the Stater.. It declared that the States should retain inviolate all the powers that had not been deliberately vested in the Union by the Constitution.
– That amendment was made over fifty years ago.
– About sixty years ago. That has never been altered since. But in Australia it is proposed to further centralize legislative powers, although the tendency of every other country, including Great Britain, is to go in the opposite direction. It is strange that so many honorable members are Home Rulers for every country but their own. In Great Britain there is a movement for giving Home Rule, not only to Ireland, but also to England, Scotland, and, possibly, Wales, and I believe that it will have practical results. Centralization has always failed. Whenever a State has surrendered, or has lost, its autonomy, calamity has followed. Until 1825, the whole of Australia was governed from Sydney, but that centralization.of power proved unsatisfactory, and in the year I have mentioned Tasmania was made a separate Colony, while Western Australia was established in 1834, New Zealand in 1829, Victoria in 1851, and Queensland in 1859. Many honorable members, however, now seem to wish to destroy the autonomy of the States, and to substitute a Unitary for our Federal system of government. We are whittling away State powers and functions until’they will not seem worth while maintaining. In a very short time a Unitary system of government would prove a failure. Every authority concedes that the Federal system of government is the only one possible in the United States of America.
– Could not Australia get on with fewer than fourteen legislative bodies?
– The people desire fewer Parliaments.
– The interjections show that the Bill is receiving the support of those who desire the abolition of the State Parliaments, and bear out my statements that it is the forerunner of their total destruction, and a return to the Unitary system of government which, seventy-five years ago, proved a failure.
– The honorable member might as well say that it is a return to the Heptarchy.
– I would do anything rather than abolish the State Parliaments, and have Australia governed wholly from Yass-Canberra, or some other centre. I do not think that a country so vast in area as Australia, with climates and products so varied, could be successfully governed wholly from one centre. Honorable members have cited a great many cases to show that the commerce powers of the American Congress are insufficient, but many more cases might be cited to prove that trial by jury is a failure. It would be as easy, by referring to the number of appeals in the United States during the last ten years, to argue that trial by jury has been a failure as it is to prove that the powers of Congress are insufficient. For every appeal under the Inter-State commerce section, there have been at least five against verdicts by juries. If all the industrial and commercial operations of the United States were controlled from Washington, the difficulties of that country would be fifty times as great as they are. The continual usurpation of Presidential and Federal parliamentary control is at the bottom of practically all the political upheavals which have occurred in the United States during the last 100 years. Every writer on the subject says that that is what is to be feared. There is not in America to-day any great desire to abolish the State Governments, or to give larger powers to the Federal Government. No sufficient reason for the proposed changes here has been given. One or two small difficulties have occurred, and we had an Attorney-General once who was ready to bring in a Bill to meet every case of the kind. ‘The opinion of some members seems to be that we should fly to legislation whenever there is the slightest hitch. I do not think it would be in the best interests of Australia to increase the powers of the Federal Parliament at the expense of the State Parliaments. If the desire is to abolish the latter, let the proposal be fairly made and debated in connexion with some such measure as that of the honorable member for Herbert. The legislation now proposed is whittling away the powers of the States, and in the end the State Parliaments will become mere municipal councils, not worth the respect of the people or the expense of continuing them.
. -1 regret that I have not been able to speak on this question before, but we, on this side, have no desire to talk measures out, and time is limited. I am forced to my feet on this occasion by the utterances of Oppositionists, and chiefly by those of the honorable member for Franklin. I have yet to learn that the Tasmanian boot industry is in an almost chaotic state. Since Federation, two large factories, equipped with the most modern machinery, have been erected at Hobart, and the hands are working full time. But their wages are lower, and their condition not so good, as those enjoyed by operatives on the mainland. I am of opinion that they should be put on the same footing, but that can be done only by giving this Parliament the powers which are now asked for.
– A Wages Board could do what is necessary.
– The Tasmanian House of Assembly has passed several Bills providing for Wages Boards, but the Council has rejected them, sometimes with but little discussion. Such measures will never pass through the Tasmanian Parliament. The other day a Councillor objected to tea money, amounting to 6d., being paid, on the ground that such a payment would ruin the firm by which it would have to be made.
– The Council must be a democratic body !
– The electors of Denison sent me here to remedy these things. I regret that the Deputy Leader of the Opposition referred to Mr. Justice Higgins as he did. Our Judges have never been influenced, and I hope that they never will be. At the Labour Conference I strongly opposed the proposal that pensions should not be paid to Judges, holding that to keep our Courts of Justice pure and beyond influence those appointed to the Bench must be well paid. The honorablemember, simply to carry some point in this House, would involve an honorable man, sitting in an honorable Court. We pride ourselves in Australia on the high standing of our Courts ; and I hope the day is far distant when we shall hear Justices on the Bench attacked by honorable members for party purposes. The honorable member for Franklin has accused me of desiring Unification. I said, during the election campaign, that I was not in favour of Unification, because I realized the impossibility of a central Parliament dealing with matters affecting roads, or other local requirements, in distant parts of the Commonwealth. What I did say was that the Australian Parliaments were costing too much. I regarded ^600,000 a year as too large a sum to spend for the government of this country, and favoured the abolition of the State Upper Houses, and the creation of State Councils to carry out local government within the States. So far as I am concerned, the States may be enlarged if that is desired. Even if the Commonwealth Parliament takes a little more on its own shoulders, the local Governments will still have much to do, and will be able to govern the country much better and more effectively than at present. In Tasmania, the Assembly spends three months in the year passing measures which are sent up to the Upper House only to be thrown out. I refer particularly to industrial laws. Mr. W. J. Bryan, the great American orator, and recent candidate for the Presidency, said that if the Government did not control the trusts, the trusts would control the Government ; and that in fact the trusts were controlling the Government now. I am advised, by a friend of mine in Canada, of the following incident: A buyer of wheat came to his place and offered him a certain sum per bushel for his crop. He refused ‘to take it, and put his wheat on to a train to send it down to America. It was kicked off at a siding, kept there for a week, and finally he had to sell it for less than he was offered in the first place ; and he believed it was bought by the same combine that made the first offer. That sort of thing is taking place in Canada, because the Dominion Parliament has not the powers which we are seeking to place in our Constitution. One great advantage which Australia has is that the railways are State-owned ; but, unfortunately for many of our growers, we do not own and control the ships also. That brings me to the Shipping Combine, one of the greatest in Australia. This year, one firm wished to ship 30,000 cases of apples from Tasmania to the Old Country. They are refused shipping space because, as my informant tells me in a letter, a certain firm wish to squeeze them out of existence altogether. Another man writes to me that he wishes to send 10,000 cases to the Old Country, and cannot do it because he cannot get the space. He asked me to apply to the Postmaster-General to see if relief could be given. Although I am unknown personally to the gentleman who approached me, I have interested myself in the case.
– Why did not the honorable member refer it to the honorable member for Franklin?
– According to my authority, the honorable member is very well acquainted with the case. This refusal of space means that the man will not be able to undertake the shipping of apples for the growers, and the growers will not be able to send their fruit to England. Consequently, the local combine will be able to purchase it at their own price. I wrote to this gentleman asking if I had his authority to use the information. I shall not give his name publicly, although I am prepared to do so privately. He wrote as follows -
I have to thank you very much for the interest you have taken in this matter -
That is the matter in which I find that I can do nothing for him ; and that it is impossible, notwithstanding the mail contract under which we are working, to get space for him to ship his apples on the mail steamers -
And will leave you to make whatever use of the correspondence you may judge will be for the best. In this Mr.- concurs.
That refers to the head of the firm. The other day, honorable members on the other side said this matter concerned only the workers ; but this letter shows that it concerns also the traders in Tasmania - the men who are acting as mediums between the producers in Tasmania and the consumers in London.
– Does that apply to this year or next year?
– This year. He could not get space last year either. He adds -
To keep you well posted I enclose copy of out latest to the Orient Company.
That is the shipping company which we subsidize to carry our mails -
I may say that- and company are putting forth all efforts to get this firm out of the business. Again thanking you for the attention you have given to this matter,’ with every good wish for success.
That comes from a man who may have opposed me at the election; but he is forced now to come to me to try to help him in the terrible conditions existing in. Tasmania. This is the letter that was first written to the Orient Steam-ship Company -
Owing to the phenomenal increase in our fruit export department, and the consequent demand for space for shipment to London, we will be pleased if you will kindly inform us what space is available in the steamers of your line next season,1911, also probable dates of departure.
To that the general manager of the com-, pany replied -
I would acknowledge receipt of yours of the 28th ultimo, and inform you in reply that I doubt if any space will be available in the steamers of the line during next fruit-shipping season after making fair provision for our oldestablished supporters.
The “ old-established supporters “ are one or two firms who, according to my informant, have combined into one company for the purpose I have named.
– The Government have power to deal with that sort of thing under the contract, and ought to do it.
– I have approached the Government, who say that they have no power to deal with it. This is the Prime Minister’s reply -
With reference to the letter which you presented from-regarding the failure of his firm to obtain satisfaction with respect to an application for refrigerated space in steamers of the Orient line, I am now advised by the Hon. the Postmaster-General that the matter of the allotment of refrigerated space which the contract requires to be provided in the mail steamers is not one with which his Department has a right to interfere in the terms of the Agreement. The Agreement (copy of which is attached) goes no further than the provisions made in paragraph 7 of clause 9 and clause 3S.
I presume that the Minister would be advised by the Crown Law officers, and go carefully into the question before he sent such a reply. He is powerless to do anything, notwithstanding that it was thought that he might take action.
– Red tape.
– There is no red tape about it. It is simply the drafting, of the contract. I have also been told, on good authority, that if we pushed the cases too far, the boats would not go to Hobart at all ; and that there was nothing to force them to go there.
– There is. The honorable member’s information is very bad.
– It comes from a high legal authority who looked into the matter carefully for me, at my expense. I am going to suggest to the two firms who have approached me that they should take the matter to the Court, and let the Court decideit, because I am powerless to do anything for them.
– Ministers have the power ; but have not the courage to use it.
– I am glad to hear that they have it; but I presume they have been advised by the Crown Law officers that they have not, and I have had private advice to the same effect. The Orient Steamship Company then brought another firm, McFarlane Brothers and Company, of Hobart, into the matter. This shows how nicely they work these things, and how impossible it is for anybody other than the Government to deal with them. We want to give the Government power to do so. These letters show how the company shifted their ground, acting on the well-studied and well-carried-out American principle, and following precisely the same lines as those on which the Standard Oil and other American trusts work. Messrs. McFarlane Brothers and Company wrote as follows -
We learn from the Sydney office that you are anxious for space in the Orient vessels the coming fruit season. The whole matter is now being considered, and we shallbe glad if you will let us know, as agents for the company here, exactly your wishes in the matter.
The firm replied -
We acknowledge receipt of your letter of even date, and, in reply, we have to advise having forwarded our wishes to your Sydney office prior to the receipt of your inquiry.
And received the following answer -
The reason we wrote to you, as stated in our letter., was in consequence of the head office advising us of your letter, and, as agents, conferred with us thereon. We thought it might have helped you to give us the information.
Finally, the manager of the shippingcompany wrote from Sydney to Hobart as follows -
I have to acknowledge receipt of yours of the 3rd inst., and to inform you that, to my regret, we cannot arrange for your proposed shipments of apples during next season.
I shall not quote further, but my informant goes on to point out that for the 30,000 cases he would not be able to find a market abroad, with the result of a fall in prices, when the combine would buy the fruit at their own figure, and ship it off to the Old Country. Something should be done, not only for the unfortunate workers, but for the growers of Tasmania. We can understand why, as the honorable member for Franklin told us, the fruitgrowers are pulling up their trees.
– I said that growers were pulling up plum and currant trees ; and plums and currants are not shipped to England.
– But my informant said that some one in Brisbane, who was prepared to buy 100 tons of raspberry pulp, had been informed by the combine that there was none available in Tasmania) although at that very time unsaleable fruit was being thrown into the river. Honorable members are perfectly welcome to all the information in my possession, but for reasons, which will be well understood, I do not desire to mention names in this Chamber. We have heard a greatdeal about increased wages resulting in increased cost of living ; but the cost of living will continue to increase so long as combines continue to operate. “ If, however, the combines knew that the Government had power to step in, they would be very careful what they did. There is no desire for the Government to take over all the industries concerned, but merely to regulate them ; and the best means to that end is provided in the Bill before us. In Japan the Government have taken over the tobacco, salt, and camphor monopoly ; and in Manchuria the farms left by the Russians are now in the hands of Japanese farmers, who take their grain to a Government mill, despatch it by State railways for shipment by State vessels to China, where it is manipulated by Japanese officials. The result is that America is being pushed altogether out of the trade; and for this state of things the Emperor of Japan and five or six other gentlemen are responsible. In Tasmania there are no trade unions or Wages Boards in connexion with the jam factories ; and recently there has been a strike of women at one establishment in Hobart. The boys engaged in the hard work of crushing the lids down on the jam tins - and I may say that they remain “ boys “ there until they are nearly twenty years of age - at a wage of£1 a week, were dispensed with in favour of girls at 15s. ; and it was these girls who demanded the higher wage.
– The honorable member wishes to drag White Australia after Japan!
– We all know that the honorable member for Parramatta has no sympathy with the workers, although they placed him in the high and honorable position he now occupies. I imagine the chagrin of the honorable member when he realizes that he has altogether “missed the ‘bus.” How different it would have been had the honorable member stuck to the workers of Australia, and, as their leader, had been Prime Minister of this Government; but he has missed a great opportunity in consequence of his acrobatic feat. I can well understand why the honorable member tries to deal so harshly with honorable members on this side, in his sorrow at the big mistake he has made.
– The honorable member is somewhat wide of the question.
– If Honorable members interject, they may rest assured they will be repaid with interest. The honorable member for Franklin made much of the fact that it was found impossible in 1851 to govern Melbourne from Sydney; but it is hard to imagine a sensible member of this Chamber taking such a view, when he must realize that, at the present time, M’elbourne is nearer to Sydney than was Parramatta at that time, and that the telegraph, shipping, and a train service unequalled in any part of the world make it comparatively easy to govern over a wide expanse. But the honorable member concludes that because the attempt in 1851 was a failure, there will be a failure now. When the people voted for Federation they expected the Commonwealth Parliament to be the great governing body of Australia. That this view is a generally accepted one is shown in the fact that to-day the BritishImperial authorities acknowledge only the representatives of the Commonwealth, refusing to officially receive the State Premiers at any great functions. The English people, like all nationalists, are of opinion that the Commonwealth should be governed from one centre. I think I have said sufficient to show that this measure is not introduced solely for the benefit of the workers, though goodness knows the workers require some benefiting ! Notwithstanding the boasted Wages Boards in Melbourne, I have found people living in two paltry little rooms, scrupulously clean, and the husband in receipt of only£1 a week for the support of a wife and child. The Wages Boards may have helped tvorkers strong enough to combine, but those whom we desire to assist are the weak workers; and to that end this Bill will assist.
– An honorable member, before he attempts to refute a statement made by another, ought to take the ordinary precaution of assuring himself of the facts. The honorable member for Denison told us that the Government have no powerto make “the mail-boats call at Hobart during the fruit season ; but I was right when I said there was a clause in the Mail Contract Agreement which proved him to be wrong. The following is the clause : -
In each and every vear during the continuance of this Agreement the contractors shall cause at least six of the mail-ships to proceed to and call at Hobart, in Tasmania, during the months of February to May inclusive. Provided always that if in any year the contractors shall prove, to the satisfaction of the Postmaster-General, that calls at Hobart during that year are. or would be, unprofitable, the Postmaster-General may direct that the whole or any of such calls for that year may be omitted.
– I think the agreement was nearly rejected on that point.
– I endeavoured to get the latter portion of that paragraph omitted, and the proposal was defeated by the Government by only one vote. It is clear that the mail-boats have to call at Hobart unless the Postmaster-General deliberately gives permission to the shipping companies to order otherwise. If the Minister told the honorable member for Denison that there is no power to compel the boats to call that Minister was deliberately misleading him.
– I never said that a Minister had told me that the mail-boats could not be compelled to call at Hobart. What I said was that a high legal authority had told me so.
– The honorable member said he went to the Minister.
– What the Minister told me was that he had no power to compel the shipping companies to allow their refrigerating space to be allotted to any person ; and the honorable member for Franklin ought not to put words in my mouth.
The allusions to the apple export trade of Tasmania are quite irrelevant to the present discussion. The proposed amendment of the Constitution will affect only Inter-State trade ; and at the present time the Government have absolute control over the export or external trade. It is not proposed to enlarge, diminish, or affect in any way the control by the Federal Parliament over external trade or the export trade in any part of Australia. If it be true, as alleged, that there is some combine or monopoly in connexion with the export apple trade in Tasmania or elsewhere, I venture to say that the Federal law at present is quite sufficient to cope with the situation. If the honorable member can give the Federal Attorney-General information showing the existence of such a combine in restraint of trade, or for the purpose of monopolizing the export trade, 1 have no doubt that he will be able to set the law in motion. This Bill will not help him, however, and I fail to see why he has introduced the export trade in apples here when we are dealing with a matter of external trade. This shows how easy it is to introduce irrelevant arguments in support of a Bill to amend the Constitution. If the honorable member, or the correspondents whom he has quoted, ran prove that there is a conspiracy in restraint of trade or for the monopoly of the export trade in apples, I invite him to give information to ‘the Federal AttorneyGeneral, and to ask him to investigate the. matter.
– I shall do so.
– The law, as it exists at present, is strong enough, but I doubt whether the information given to the honorable member is accurate. I doubt, at all events, that there is any such monopoly or combine as is alleged by him. What I believe to be the real position may be briefly stated. The Orient Steam-ship Company receives a subsidy from the Federal Government for the carriage of mails between Australia and the United Kingdom, and, in consideration of that subsidy, it has also to provide certain refrigerated space for the accommodation and conveyance of perishable produce. That space is limited, and the company has to make commercial arrangements for its utilization from season to season.
– It lets it out.
– The company cannot leave the whole thing to chance, and
I believe that the practice has been to call for tenders for the space, or to make arrangements with some firm or body which guarantees to utilize, or, in any event, to pay for the whole of that space. That is a mere commercial arrangement made by a commercial company for its own protection. I presume that the person who buys this space has to take all the risk of there being a big export trade in apples, or a failure for the season. I do not understand the exact process, but I believe, from information given to me whilst I held office as Postmaster-General, that that is the position, and that the company declares that it cannot make any better arrangement. It slates that it would be difficult to make separate contracts with every exporter of apples.
– That is what the company is doing in the butter trade.
– The reply to all this criticism is that the Federal Government has complete control over the export trade, and that if there is any unfair dealing on the part of the Orient Steam-ship Company in the distribution of its refrigerated space, or any monopoly on the part of any sub-contractor, the Federal authorities have power to take action.
– Undoubtedly !
– The honorable member, who held office as PostmasterGeneral when the mail contract was entered into, knows that, under that contract, the Federal Government has power to see that no monopoly is exercised. It is unfair to bring forward such facts in this connexion, because the amendment of the Constitution, proposed in this clause, would not enlarge the power over external commerce, and there is no necessity to enlarge it, because the existing external power over trade and commerce is full. . That being so the remarks made by the honorable member for Denison were irrelevant and inappropriate, and were calculated to be misleading.
– Is this relevant?
– If the honorable member is not less offensive in his interjections I shall have to say something to him.
– Go right ahead !
– The honorable member is becoming the most systematic interjector in the House. Another point referred to by the honorable member for Denison, in support of this proposed amendment of the Constitution, was that a num ber of working people in Hobart could not get a Wages Board to make an award for tea-money in their case. Doubtless, it is most lamentable that the Parliament of Tasmania is not sufficiently progressive to grant Wages Boards to provide for fair and reasonable wage conditions. No one could justify the action of a local Parliament in refusing to grant liberal measures of legislation, but should we be invited to carry an amendment of the Constitution in order to secure teamoney for the work-people of Hobart? Surely that is a rather far-fetched argument. Surely the politicians of Tasmania ought to be enterprising and progressive enough to pass a law to secure tea-money for the workers of that State without our having to resort to an amendment of the Federal Constitution.
– After all, tea was at the bottom of one of the greatest revolutions.
– I prefer to pass from the arguments introduced by the honorable member for Denison to the more weighty suggestions made by the honorable member for Flinders. The honorable member contended that every accretion of Federal power does not necessarily tend towards Unification. No one has said that it does. No true friend of the Constitution would object to any addition to the Federal power based upon a development of its Federal principle. We do not object to any grant of increased power to the Federal Parliament based upon any national or Federal principle. My objection to the proposed amendment of the trade and commerce power is that it goes too far. It proposes to confer upon the Federal Parliament, not merely increased national powers, but powers of a domestic or provincial character that are not necessary for the purposes of a Federal or National Parliament.
– What is there federal about insolvency?
– An insolvency law may be capable of general or universal application.
– That might be said of all laws.
– An insolvency law is not confined to a particular neighbourhood. I submit that the delimitation of the commerce power as it finds expression in the Federal Constitution at present, is based, not upon an arbitrary or artificial distinction, as is suggested, but upon a sound distinction, namely, the difference between provincial authority, on the one hand, and general, National, or Federal authority, on the other.
– What is there Federal about a law relating to weights and measures?
– That, too, is a law capable of universal application. I do not suppose that a law with respect to the keeping of shops in a particular city, town, or village, or a law relating to the market operations of any city, town, or village would be capable of general or universal application. It might require to be differentiated according to local circumstances.
– Very often the village trade is the foundation of the national trade.
– Yes; but it may require more local and special treatment than would a law applicable all over Australia. That is the objection. Should the Federal Parliament be invited to take power to deal with all local trades, callings, and occupations? Domestic and provincial trade, and private and municipal trading, such as shops, and pedlars’ and auctioneers’ licences, the hours of closing, and public holidays, are all local questions. They should be left to local or provincial choice, rather than be centralized and dealt with by a Federal Parliament.
– Would the honorable member put those matters on the same level as shipping?
– A shipping law is a matter of universal application; but surely the closing of shops at a certain hour, or the issue of pedlars’ licences and market operations, are not to be dealt with by the Federal Parliament.
– Who suggests such a thing?
– This proposed amendment of the Constitution will mean placing all these local matters within the control of the Federal Parliament.
– The honorable member is reducing the position to an absurdity.
– That is the power intended to be granted. I could understand a differentiation which eliminated all these local matters from the Federal control, as is done under the Canadian Constitution. Under that Constitution provincial matters, such as local licences and local trading relations, are reserved in express terms to the provinces.
– Shipping is not treated as a national matter at the present time.
– Shipping could be dealt with in a law of universal or general application. The movements of shipping are capable of extension from one part of the Commonwealth to another. Ships in navigable waters of the Commonwealth have communication with the high seas, and those on the high seas communicate with ports all round Australia. Therefore, shipping laws are properly laws of a Federal or national character. Then there is the law relating to common carriers which can be capable of different modifications in different States ; but by this proposed amendment of the Constitution the Federal Parliament will have unfettered control over all common carriers throughout Australia, whether they are engaged in the Inter- State trade or not. I also agree with the contention advanced by the honorable member for Angas that this proposed amendment will confer upon the Federal Parliament and Government control over all instrumentalities engaged in Inter-State trade, including the railways. According to, an American authority, already quoted, in regard to the control over trade and commerce, and railways, this amendment of the Constitution would apparently confer upon the Federal Parliament power to deal with conditions of employment and liabilities of employers in all the carrying trades throughout Australia, whether Inter- State or provincial, and including the railways.
– It would not include the railways.
– The honorable member for Angas suggested the point this morning, and said it would be open to argument that, inasmuch as under our Constitution the power of the Federal Parliament over trade and commerce extends to shipping and navigation and State railways, therefore that power, when it ceases to be merely Inter-State, and is made general and universal, and irrespective of State boundaries, would enable the Federal Parliament to pass legislation for the regulation of railways, including employment on them. He mentioned a case which I propose to quote more fully.
– The principle of State instrumentalities would still apply.
– But- here is an instrumentality mentioned over which the Commonwealth has, in the express terms of section 98 of the Constitution, control for the purposes of trade and commerce. In the American case Damselle Howard v. Illinois Central Railway Company, reported in the United States Supreme Court Reports, 207-10, pages 461-3, the Court upheld the authority of Congress, under its power to regulate commerce, to prescribe the rule of liability as between an Inter-State carrier and such of its employes as are engaged in InterState commerce, and to make a .carrier liable for the death or injury of any such employes while so engaged. The obvious inference is that the principle may be pushed - further, and that Congress could regulate the terms and conditions of employment. That is what the proposed amendment would mean if this contention were upheld by the High Court.
– Does the honorable member say that to strike out the words of limitation respecting the trade and commerce power would, without further alteration, give the Commonwealth power in regard to industry?
– Not in regard to industry generally, but in regard to commercial carriers, including railways.
– Would it give us power to legislate in regard to State employment?
– It would give us power to legislate in respect to employment on the railways, which are mentioned in the Constitution as within the power and competence of our legislation, so far as trade and commerce is concerned. Under the case which I have cited, trade and commerce includes the liability of employers for injuries sustained by employes while engaged in Inter- State commerce j and if the limitations referred to were removed, it would apply in regard to commerce within a State.
– The High Court held that, although we have power to legislate for the regulation of Inter-State trade, associations of State railway employe’s could not be registered.
– The High Court has not decided the question whether the power to legislate in respect to Inter- State commerce gives the power to legislate in respect to the State railways, which is the legitimate deduction from American cases ; it has merely decided that the State railways do not come within the arbitration section of the Constitution. According to the honorable member for Angas, the legitimate development of the proposed amendment of the Constitution would be legislation by the Federal Parliament affecting employment on State railways. He based that contention on the case which I have just cited.
– Would it enable us to make laws governing the employment of carriage-builders in a State workshop?
– They would not be regarded as engaged in commerce ; that would be manufacture. To the extent to which a State instrumentality was engaged in commerce, it would be subject to the Commonwealth law. The power of the Commonwealth to legislate in respect of commerce extends even to State railways ; and, as the American Courts have held that the power to legislate in respect of commerce includes power to prescribe the liability of employers, the legitimate inference is that we could regulate employment on State railways.
– How does the honorable member distinguish between the commercial and the industrial power?
– The industrial power not included in the commercial power must be dealt with separately.
– The honorable member said that we could make any industrial law regarding the State railways.
– It would be a mistake to dogmatize on these points; but that position, as put by the honorable member for Angas, is arguable, and a legitimate inference from the cases. There are other possible applications of the. proposed extension of the commerce power. It will confer on this Parliament complete control in respect to commercial contracts in all the States. We shall be able to abolish the Statute of Frauds, and to supersede the State laws. We shall also be able to amend the criminal law so far as it may be applicable to commercial contracts. That is shown by the authority cited in Judson’s book on Inter-State Commerce, at page no. It has been held that control over Inter-State commerce carries with it the application and use of the criminal law. If criminal legislation can be passed by the Commonwealth Parliament in respect to Inter- State commerce, it will be possible to extend it, under the proposed amendments, to commerce within the States. Commonwealth legislation also will control Labour combinations. Judson, on page 357, shows that the control of Inter-State commerce has giventhe United States Congress power to legislate regarding Labour organization and combinations. The removal of the limitations on our commerce power will enable us to legislate generally in regard to Labour organizations and combinations within a State.
– Will not that be a good thing?
– The power may be used sometimes in the interests of Labour, and sometimes adversely to it. In the United States, a Labour agitator named Debs was prosecuted for interfering with Inter-State trade contrary to the provisions of the Anti-Trust Act of 1890. The case is known as In re Debs, 64 Federal Reports, 724 United States Circuit Court, North District of Illinois. In that case it was held that -
The original design in the Act was to suppress trusts and monopolies in the form of trusts, which, of course, would be of a constructual character, but that it was equally clear that a further and more comprehensive purpose came to be entertained, and was embodied in the final form of the. enactment. Combinations” were condemned, not only when they took the. form of trusts, but in whatever form found, if they be in restraint of trade, and that was the effect of the words “ or otherwise.”
If the proposed amendment be carried, and our commerce power be made unlimited, the Commonwealth will be able to make laws regarding strikes and combinations within the States. Another interesting case quoted by Judson was that of the United States v. Working Men’s Amalgamated Council of New Orleans, 54 Federal Reports, 994. In that case, the United States Circuit Court of Louisiana held -
That combinations of labourers, as well as of capitalists, in restraint of Inter-State commerce was violative of the Act, and that it was no defence that the origin and general purpose of a strike were innocent and lawful, if they had been turned into an unlawful purpose for the restraint of Inter-State and foreign commerce.
These cases show how, if our powers are extended, they may be used for a multitude of purposes in respect to which there is no public need or demand for their use. It is not necessary to get rid of the present demarcation between the internal and external commerce of the States,- and there is no need to give this Parliament larger powers over local, domestic, and provincial questions, which ought to be left to the States. I should not object to any increase of the Federal power which has been proved to be needed, provided it be on the lines of the Constitution. We ought not to launch into a campaign for the enlargement of the Federal power by absorbing powers in regard to purely local matters. It seems to be admitted that that branch of the commerce power relating to trusts, combines, and monopolies should be dealt with separately ; bu I contend that it is not necessary to give to the Commonwealth control over all commerce, internal and external, in order to enable it to deal with trusts, combines, and monopolies.
Sitting suspended from 6.30 to 8 p.m.
– If there be any branch of the commerce power found to be defective or requiring reconsideration, let it be dealt with, and the Federal authority, if necessary, strengthened. If there be any infirmity in the constitutional power to deal with recognised wrongs or grievances, then those changes necessary to equip Parliament to meet them ought undoubtedly to be brought about. The honorable member for Wimmera asked what about the Huddart-Parker case, being evidently under the impression that it broke down through some infirmity either in the Constitution or in the law passed under the Constitution. The cases of Huddart Parker v. The Comptroller of Customs, and Appleton v. The Comptroller of Customs, arose in prosecutions for refusing to answer questions as to the alleged existence of contracts or combinations in restraint of trade under the anti-trust legislation of the Commonwealth. These were merely preliminary proceedings, in which the defendants were called upon to show cause why they had refused to answer questions put to them to elicit information as to their participation in unlawful contracts or combinations. The Court upheld the conviction against Mr. Appleton, the manager of the company, who was charged under sections 4 and 7 of the Anti-Trust Act, those sections relating to Inter-State trade; and by consequence, the Court upheld the validity of those sections. But the Court declared that the conviction of the company under sections 5 and 8 was bad, on the ground that those sections, dealing with trade and commerce within States, were ultra vires. It was, apparently, a test case brought by the Commonwealth to ascertain the validity of this special law that was enacted to deal with corporations alone; and the Court held that the Commonwealth Parliament could not pass such a special law dealing with corporations alone, irrespective of the question of whether they engaged in InterState trade or trade within a State. The only point, therefore, upon which the prosecution failed was that they could not compel a corporation trading only within a State to answer certain questions, and so come within the anti-trust law. The quashing of the conviction in one case relating to exclusive State law did not in any way impair the validity or the strength of the Commonwealth legislation against trusts and combines engaged in Inter-State trade. It has not been shown that it was necessary, in order to sustain the prosecutions, to compel a company to answer questions relating purely to business within a State. It is quite open to submission that the prosecution could be sustained by other evidence or by the answers given disclosing transactions of an Inter- State character. It is generally admitted that most of those organizations known as trusts and combines are engaged in the InterState trade. It is these growing organizations engaged in Inter-State trade that give the Government the most trouble and cause for anxiety, and emphasize the necessity for careful and urgent consideration. But how many of them are engaged in Inter- State trade? It is shown in the memorandum of the honorable member for Angas, as the result of all his investigations, and all the information collected by the Law Department during his term of office, that there are only about three corporations engaged in Inter-State trade, and suspected by being implicated in trusts and combines in restraint of trade. There are a number of other cases in which small firms, whose operations were exclusively confined within the limits ofa State, were suspected of being concerned in trusts or combines. We have not had any particulars of those cases, and are therefore not able to examine them to see to what extent the suspicion is wellfounded. I have not heard of many cases mentioned, or even vaguely suggested, of trusts and combines wholly or solely within a State. Without repeating names, one can call to mind some of the big corporations suspected of being implicated in trusts and combines, that it is desirable to bring within Federal control, particularly those engaged in shipping. I should think there was hardly any doubt that these so-called shipping combines and rings are within the power of the Federal Parliament, and come under the Federal law against combinations. . They are essentially Inter-State, removing from one State to another, engaging in the movements of trade and commerce which are not restricted within the limits of a particular State, and moving all along the coast-line, not merely within the territorial waters, but on the high seas between the States. I cannot conceive that the Federal legislation passed under the Inter- State trade and commerce power is inadequate to meet those cases. Up to the present we have had no breakdown of any prosecution of a trust or combination engaged in Inter-State trade. If it had been pronounced by judicial determination that the constitutional law of the Commonwealth was inadequate to deal with these gigantic concerns, I, for one, should be prepared to acquiesce in and strongly advocate any amendment of the Federal power necessary to equip this Parliament with the requisite control. But there has been no breakdown up to the present. As regards any small partnerships, or firms, or trusts, whose operations are confined within the limits of a State, there have been no serious complaints in any of the State Legislatures up to the present. If any serious wrongs had been perpetrated by those bodies within the limits of a particular State, surely the Labour party or other parties in the State would have been strong and influential enough to make their voices heard in the State Parliament and secure the passage of die necessary State legislation. Therefore, taking my stand on the proposition that there has been no demonstration of the inadequacy of the Federal law to deal with these big concerns, the case for the clause is by no means clear. But I should be even prepared to give the Legislature the benefit of any doubt and vote in favour of any amendment which might be suggested to remove the doubt, if any. The honorable member for Angas seems to think that some amendment will be necessary, and I entertain a very high respect for his views on this matter, to which he has given, special attention. He has drafted an amendment which he says is comprehensive enough to remove all doubt, even in cases upon the border-line, between Inter- State, and State transactions, which, he says, might justify some Federal intervention. His proposal, as well as one of the Government proposals dealing specially with trusts and combines, may be regarded as a carving out, so to speak, of a portion of the law relating to trade and commerce which it is necessary to render more effective. Whatever justification there may be for improving, in that direction, that special form of commercial law, there is certainly no reason that I can see for going further than that immediate and special case, which can be dealt with by a special law. If the amendment of the Constitution now under consideration tie carried there will not be any necessity for going further with any of the subsequent amendments dealing specially with corporations or with trusts and combines, because a general, absolute, and unqualified power to deal with trade and commerce within a State and between the States and with other countries would be comprehensive enough and strong enough in its operation to cover every possible form of trade and commerce by private individuals and corporations anywhere. Whether the business was legitimate or illegitimate, whether in accord with the principles of freedom of trade or the principles of restraint of trade, ‘ ‘ trade and commerce “ would be strong and comprehensive enough to cover anything. Why then go further? It is not necessary to go as far. In constitutional matters it is wise and safe to deal only with those requirements and urgent necessities which the experience of our daily civic, State, and national life would suggest to be advisable and requisite. We ought not to launch upon a long and indefinite series of constitutional amendments merely to secure what may be regarded as ideal grants of power. We should deal with the Constitution as a workaday instrument, designed to meet national requirements as they arise, and, above all, let us not violate the fundamental principle upon which that instrument was originally drawn and approved by the people. If we revolutionize the character of the grants of power to be conferred upon the Federal Parliament, we shall not be able to stop there. We shall have to consider the structure of government itself. The structure of the House of Representatives and the Senate was based upon the assumption that the Federal Parliament would deal only with questions in which the whole of the people were concerned. It was never - suggested that we should grant to the National Parliament, which comprised a Senate in which all the States, small and great, were equally represented, power to deal with local, domestic, provincial, and even village questions. These proposals go in the direction of conferring upon the Federal Parliament powers foreign to its organic constitution.
– I do not think that. I think the States have been trying to gather too much power into their own hands.
– The States so far have only been struggling to retain the powers reserved to them by the Constitution. There is no harm in that. They have a right to insist upon the preservation of powers reserved to them. I have no sympathy with the States if they endeavour to encroach upon the Federal domain. I have never suggested giving support to States that have shown any jealousy or distrust of Federal powers, but there is a line of demarcation drawn in the Constitution between State and Federal powers. We ought to respect the State powers on the one hand, as well as unflinchingly and unwaveringly to maintain Federal “powers on the other. If we continue conferring on the Federal Parliament powers that are not Federal or national, but purely local, we shall break down the fundamental principle of the Federal structure.
– Is not trade and commerce a Federal matter?
-As between States, certainly; but not when it relates to a particular district, city, or town. Such matters may be so small and limited in their incidence as to be purely local, and each State Legislature and municipality ought to be allowed to deal with them without any interference from us.
– It does not follow that we intend to interfere in such matters.
– I am pointing out that the grant goes much further than the intention ; and we must judge the grant by its words. There is no reservation of any powers to the State ; and the Federal Parliament will be able to deal with the most minute transactions pf trade and commerce and shopkeeping in every hole and corner of Australia without restriction.
– That is a stretch of imagination !
– No; it is the interpretation given by the American Courts, and by our own Courts so far as there has been opportunity. Such an accretion of power is anti-Federal, and can only lead to agitation for further amendment, probably attacking the principle of State representation.
– If the people of the future like to do that, what has it to do with us?
– No doubt some honorable members are prepared to go to a division on the clause quite cheerfully, regardless of the future prospects of the Commonwealth ; but it is only fitting and proper that these consequences should be pointed out.
– That is what all the antiFederalists said when Federation was proposed 1
– If it is desired to have centralization to such an extent as to obliterate Federation, why not say straight out that we desire to have a new Constitution ?
– Why not, if the people desire a new Constitution?
– I do not think that the’ people desire a new Constitution, though a number of Federal members may do so. The people of Australia may have said that they wish for anti-trust legislation j but I do not think they have shown any desire for a change in the system of government.
– The referendum will be the test.
– I do not think the electors were ever asked whether they were in favour of the centralization of all the trade and commerce powers; at any rate, it is not in the Labour programme, nor was it, so far as I know, ever suggested at any Labour Conference. The proposed grant of power is not necessary for the purpose of making the industrial legislation efficient.
– If the people do not desire the amendment, they will not vote for it.
– As I say, such an amendment was never suggested, so far as I know, at any Labour Convention ; or, at any rate, no resolution was arrived at to that effect.
– Some have advocated Unification straight out.
– I do not think it is judicious at present to talk too much about Unification; and I am not here to point out to what extent these grants go, rightly or wrongly, in that direction. I should think that in a great country like Australia there ought to be a reservation to the distant parts of all the powers necessary for local self-government, and a reservation to the Commonwealth of all those general powers which cannot be adequately exercised by the local authorities. It is beneath the dignity, as well as not within the competence, of the Federal Parliament to engage in legislative experiments or operations in regard to the trivial matters ‘that have been suggested. In illustration of my contention that the Federal power, even at present, is substantially adequate to deal with most of the grievances in relation to trusts and combines, I should like, with all respect to some of my colleagues who think otherwise, to inform the Committee of the views entertained by some American jurists as to the immense constitutional powers _ involved in the Inter-State commerce sections alone. Mr. Warren Bigelow, of the New York Bar, in The Annals of the American Academy of Political and Social Science, of November, 1905, suggests that it would be quite possible for the United States Congress, without any amendment of the United States Constitution, to adequately control corporations which have combined in restraint of trade; and if that can be done under the United States Constitution, surely it ought to be possible in the Commonwealth, without the proposed amendments. Mr. Bigelow appears to be of opinion that Congress could provide that no corporation shall conduct an Inter-State business unless organized under Federal law ; but that the decision in the Dartmouth College Case - which cannot be applied to the Commonwealth of Australia - might prevent the inclusion of existing corporations in such a law, and that it may be desirable to amend the Constitution to make the powers of Congress clear. The law established in the Dartmouth College Case would not limit the powers of the Federal Parliament of Australia; and, according to that view, it should be quite possible for this Parliament to pass a law dealing with corporations engaged in Inter- State trade, and controlling, or destroying them, if necessary, if they carried on any practice in restraint or against the public interest. Another writer in the same issue of the Annals suggests that the power of Congress to control and regulate the agencies engaged in Inter-State trade should be exercised by the passing of a Federal Incorporation Act, under which no corporation should be permitted to’ engage in Inter-State or foreign commerce until chartered by the Bureau of Corporations, which should afterwards control its proceedings. He goes on to say that the bureau should have full powers of examination into the affairs of each corporation, which should annually make and file with the Department a statement on oath containing full particulars of its proceedings, and if a corporation flouted the conditions under which it was called into existence it could be suspended. It may be that there are minor cases which come exclusively or solely within the State laws or State legislation; but I do not see that we ought to be called upon to launch into a campaign for the amendment of the Con stitution because of the inadequacy of State laws, which, if adequate, could deal with those cases. It may be open to comment that some of the State Legislatures have not been so effective and prompt as they might or ought to have been in dealing with grievances and complaints relating to trade and commerce and industrial matters ; but neglect of State Legislatures and the apathy of State electors ought not to be a reason, or the sole reason, at any rate, for great constitutional change and, from some points of view, revolution. I think I have covered most of the ground necessary to show honorable members that if we merely desire to deal with trusts and combines, it can be done by a special grant without necessarily taking over the whole of the commerce power, and that there is no reason or justification for launching on this extensive series of amendment’s. We have a greater chance of carrying effective constitutional changes which deal with admitted wrongs, and which do not rest on vague and visionary complaints in support of amendments merely for theoretical or sentimental reasons, or for purposes of a party character.
.- Honorable members on both sides have admitted the necessity for amendment of the Constitution; and those who took’ part in framing it contemplated that at some period occasion would arise for alteration. The trend of public thought, not only in Australia, but all over the world, has been in the direction of increasing the powers of all local governing bodies, with the result that when Federation was inaugurated there were no fewer than twelve Houses of Parliament in this country. But how long should we have had to wait for Federation had the continuance of all these Houses of Parliament, in addition to the Federal Parliament, been advocated ? As has been shown, nearly every word of Section 51 of the Constitution has given rise to costly litigation. Cases under the Federal law having been submitted to an ordinary tribunal and decisions obtained, the High Court has declared ort appeal that there is no power to give effect to those decisions, or, in other words, that the measure, under which action was taken, was ultra vires. We are asking in this Bill for powers which the High Court has declared that we do not possess. The decisions of the High Court have proved the necessity for these amendments. It has not declared that the decisions which it has reversed in respect of industrial matters are inequitable or unjust; it has simply said that we had no power “to pass the laws on which they were based. Those who are opposing this Bill are really endeavouring to prevent effect being given to the will of the people. Why should we not have the power which the Parliament of Parliaments possesses to deal with matters of National concern? This is a National Parliament, and we are asking only for a power similar to that possessed by the Parliament of Great Britain. I cannot understand the opposition of certain honorable members to the regulation of trade and commerce being placed under the control of the Commonwealth Parliament. Under the Constitution we have power to impose duties of Excise and Customs, and I should like to know whether there is anything that affects trade and commerce to a greater extent than does the Tariff. Since it was thought necessary to confer upon the Federal Parliament the power to impose Customs and Excise duties, I think it must have been the intention of the framers of the Constitution that trade and commerce should be controlled by this Legislature. Some honorable members have referred at length to the Constitutions of the United States, Canada, and Switzerland. I have no time to worry over them ; for they are entirely beyond the question. Circumstances have changed since they were framed. As the world moves, so the intelligence of the people is enlarged, and another point to be remembered is that, when the Constitutions of Canada and the United States of America were framed, there were not in existence the combinations and monopolies that hold sway to-day. There is no analogy between the two sets of circumstances, and all that we have to decide is whether the proposed amendment of the Constitution is in the best interests of the people. Surely there is sufficient intelligence in this Parliament to determine what is required for the National Government of Australia. We have had an experience extending over ten years, and it is because of that experience that we seek -these amendments. Some honorable members are unnecessarily nervous’ in regard to an alteration of the Constitution. I would remind them that two amendments have already been made. There were two referenda on proposed amendments of the Constitution at the last general election, and there can be no doubt that the people of Australia took an intelligent view of the pro- positions then submitted to them. The Attorney-General in the late Government himself proposed an amendment of the Constitution, so that there is no cause for alarm on the part of the Opposition. Some honorable members opposite seem to fear that the Labour party will secure an enlargement of their power if these amendments be accepted by the people, and that they will not be capable of conducting the Government of Australia as it should be conducted. I am sure that if these amendments be made the sacredness of the Constitution and the welfare of the people will be as well considered by this party as they would be by the Opposition. Not long ago, when a Conciliation and Arbitration Bill was before us, we found that, owing to our constitutional limitations, we could not go as far as we wished. If we had had a wider power the form of that Bill would have been very different from what it was as finally passed by us. What would the people say if we told them that we were debarred from passing a necessary law because of an instrument framed some ten years ago? I think they would tell us at .once to go back to our places in this Legislature and to conduct the business of the country as it ought to be conducted. Some honorable members have contended that we already possess ample power to do all that we desire, but they cannot deny that under the Constitution as it stands it is impossible to bring about the New Protection. The decisions in the boot trade case and the Broken Hill mining case are illustrations in point, and they are so fresh in the minds of the people that I confidently believe that they will be sufficient in themselves to induce the electors of Australia to agree to these proposed amendments. We are asking that the Parliament shall have power to pass measures which it thinks are in the best interests of the people. From time to time the Constitution must be amended, and the amendment now proposed is a very simple one.
– Does the honorable member think that such a sweeping amendment of the Constitution as that for whichthis Bill provides is necessary at the present time?
– It is not a sweeping alteration, but some honorable members would oppose any alteration of the Constitution. Listening to their remarks one would imagine that the Constitution was more sacred than the Bible or the Common Prayer Book. Even the Church of England Synod, however, does not hesitate to alter the Common Prayer Book to meet the wishes of the people, and I fail to see why we should hesitate to ask for the necessary amendment of our Federal instrument. Some honorable members seem to have lost their reasoning powers. At the last general election we told the people that an alteration of the Constitution was necessary, and that if we were returned to power we should introduce a Bill providing for an amendment of the Constitution giving the National Parliament the power for which we are now asking. After all, this is a question that must be settled by the people themselves, and that being so, I cannot understand why the Opposition should be so nervous regarding the effects of this proposal. I have no fear. I feel that we ought to give the people an opportunity to say whether or not these increased powers should be vested in the Federation. I do not understand the arguments advanced in regard to the position of the State Legislatures. Why should honorable members fear that we are going to impair any State rights ? Listening to the remarks of some honorable members one would imagine that this was a State Parliament. The State Parliaments have their work to perform, and we have our duties to discharge. The powers of the National Parliament will certainly from time to time be enlarged. The larger and national powers must be exercised by the National Legislature. That is the position in all countries where the government of the people by the people is being carried on. It is unnecessary for us to worry about the State Houses ; they are quite capable of looking after themselves. I do not think it was intended that after the National Parliament had got into working order there should be twelve large State Houses occupying the same position that they did before the advent of Federation. I shall support this measure, because I believe the people are asking for it, and that its acceptance by them will clothe this Parliament with powers that it ought to possess. If, as some honorable members suggest, there are no monopolies in Australia, the amendment of the Constitution as now proposed will prevent the creation of any, and will conserve to the people a share of the wealth which they ought to enjoy. I am sure that no honorable member desires to prevent the people from saying whether our industrial powers shall or shall not be increased. An immense amount of time, money, and legal talent has been wasted in bringing cases before the Court, and getting decisions regarding them, which, although sound so far as practical wisdom is concerned, have been overruled by the High Court on the ground that the Constitution prevents this Parliament from giving expression to the people’s will. Although some honorable members profess to be alarmed by this proposal toalter the Constitution, I shall be prepared at any time to vote for its alteration should the people desire it, because there is not a. more intelligent community than this, and our electors will always give a right judgment in the interests of peace, harmony, and good-will in industrial matters.
.-I do not share the fear which has been expressed that, by making the important amendments in the Constitution which are proposed, we shall throw the whole instrument into the melting pot; nor do I consider that the first of these, if agreed to, will take us far in the direction of Unification. As I said on the second reading, this Parliament, having full power to legislate respecting imports and exports, and having cast upon it the responsibility of maintaining Inter-State Free Trade, which carries with it, as a logical consequence, the preservation of free commerce throughout the Commonwealth, without regard to State boundaries, should not be denied the power necessary to perform these important functions. I realize the force of the view expressed by the honorable member for Bendigo and others, that it should not be hampered with too much detail, that it should not have to legislate in respect of purely local and State matters ; but I scarcely think that any one would consider it our duty to pass laws regarding matters which may be satisfactorily left to the States. The discussion has maintained a very high tone, and has dealt wholly with the merits of the proposals. Propositions for the amendment of the Constitution are not likely to come before the Parliament much more frequently than once in a decade, and are matters which must be debated with dignity, and without party spirit. The question is, shall the powers of the Parliament be increased so that we may pass legislation to give effect to the will of the people? The extension of our powers will not require us to exercise them to the fullest extent. Indeed such exercise of them may never be necessary. But, although Federation has now been established for ten years, this Parliament has been unable to fulfil the purposes for which it was largely created, because of the limitations on its powers of legislation respecting trade and commerce and industry. Our anti-trust legislation cannot be made effective unless these powers are increased. I am ready to vote for the extension to this Parliament of accurately defined powers respecting industrial matters, and the control of corporations and trusts, but it is necessary that our trade and commerce powers shall be made as broad as possible. The AttorneyGeneralhas shown that it was owing to the limitation of these powers that our legislation respecting trusts and combines was held to be invalid in the Hudda’rt-Parker case. Trusts and combines are not likely to reach the dimensions here which they have reached in America, where, owing to . the vast natural resources of the country, and its immense volume of trade, they have almost paralyzed industry. The fact that the railways are privately owned is, no doubt, a factor in their success ; but the want of power in the central authority, which for the last twenty years has consistently tried to deal with them, is not to be overlooked. The railways are privately owned in Canada and in Great Britain, but the trusts there are not so great as those in the United States. It is largely because of the limitation of the commerce powers of Congress that trusts hive grown to so great an extent in the United States. As Australia is situated similarly to Canada, we should -hardly object to the enlargement of our trade and commerce powers to the extent of those of the Dominion Parliament. The argument that Australia is too large for her trade and commerce to be adequately controlled by the Federal Parliament is answered by the statement that the Dominion Territory is quite as great, and that the Dominion Parliament has full power to legislate in respect of trade and commerce. The present restrictions on our power tend to produce litigation. According to the Attorney-General, his predecessor, the honorable member for Angas, thought an amendment of the Constitution necessary to enable the Commonwealth to deal with trusts and combines, while the honorable member for Darling Downs, when filling the office, indorsed the statement of the Secretary to the Attorney-
General that it was advisable that power in respect of trade and commerce should be vested solely in the Commonwealth Parliament. Authorities have been cited at considerable length which have enabled a wide historical view to be taken, but notwithstanding the objections which have been urged to the course proposed, I feel that it is necessary that the operations of our commerce, which has ramified and extended so enormously in all parts of the Commonwealth, should be made as free as possible, arbitrary State boundaries, where unnecessary to secure a proper balance of authority, being obliterated. It is not necessary that this Parliament should control all the industrial affairs of the Commonwealth. It is not necessary for us to go in for such a wholesale proposition as -is put forward by the Government for the control of corporations or trusts, but I believe the foundation of all these powers is the trade and commerce power. In order to enable this Parliament to exercise its powers in those directions in a proper way, we should first clear the ground and lay the foundation upon which to erect the various departments of Commonwealth authority. We should remove the restrictions on the trade and commerce power which exist in only one other Constitution, that of the United States of America. The unrestricted trade and commerce power has been found to work well in the Canadian Parliament, and has been adopted in the South African Union. The restriction obtains only in the United States.
– Where they cannot get rid of it.
– They would have repealed it long since but for their Constitution being so rigid.
– What authority has the honorable member for saying that?
– The authority of the fighting which has taken place in connexion with the Commissions that have taken evidence regarding the trusts. They have found themselves baulked on every occasion because of the constitutional restrictions on the Federal authority. In this age of rapid communication and complexity of commerce, with the experience of newer Federations before us, and with our ten years of experience, probably as good to us as fifty years of the early period of the United States Federation, if we, in our wisdom, believe that we can carry out the true purposes of our Federation, further the development of Australia, facilitate commerce, keep down rapacious trusts and combines, that are so hurtful to the body politic, and improve the condition of the workers and people generally by an amendment of the Constitution, I should like to know what there is sacred about the Constitution, ‘ providing specifically, as it does, for its own amendment, that should prevent us from amending it. All we are asking the House to do at present is to put before the people reasonable amendments of the Constitution, and allow them to say whether that extended power should be delegated to this Parliament. I can see no objection to that course. It is a wholesome and democratic proposal dictated by the experience of other countries and of our own Parliament. When the other amendments of the Constitution are reached I shall be prepared to vote for such limitations of them as I think advisable, in order to preserve, if possible, the necessary line of demarcation between State and Federal powers, leaving to the States the purely local authority, and delegating to the Federal Parliament powers which partake more of a national character. In order, however, that we may be able to exercise those powers reasonably and properly, it is necessary to apply to ourselves a broader interpretation of the trade and commerce power, not only as between the States, but also extending over the Commonwealth, because that power, after all, in a restricted form, may control nearly all the other operations mentioned.
.- I had not the privilege of hearing the AttorneyGeneral this morning, but I heard the honorable member for Flinders put the case for the clause so strongly and forcefully that very little requires to be added. I said on the second reading that I was prepared to go with the honorable member for Flinders the whole length regarding the amendment of the trade and commerce power The opposition to it has been twofold. The honorable member for Bendigo, in the first place, seemed to object altogether to any interference with the Constitution, except in extreme instances. I have never regarded the Constitution as a sacred document. I look on it as a compromise, in the first instance, recommended to the people, not as perfect, but as a document which itself gave the people power to amend it whenever they thought fit. The first occasion upon which it was amended was in a very trivial matter, altering the time of the Senate elections from December until March or April, in order to convenience one class of voters in one part of Australia. Those who concurred in that alteration, which was made practically unanimously, did not appear then to think that the document was a sacred one. Another objection of the honorable member for Bendigo was that the clause violated the Federal principle. He did not tell us what he meant by that phrase. The Constitutions of South Africa and Canada are also spoken of as Federal, yet they are very different from ours. On the other hand, the honorable member for Angas did not raise theobjection that the Constitution should not be altered, or that the clause would violatethe Federal principle. All he said, and I. was struck by his words, was that he differed from the honorable member for flinders as to the expediency of asking for this increased power at this stage. That appears to be the only question we have to consider: Is it expedient at this stage to ask for this increased power? The honorable member for Flinders, in his second-reading speech, and also to-day, showed most clearly that the present Constitution caused continual friction and uncertainty as to its meaning in commercial circles. The most perfect Constitution is one that says what it means, and that everybody can understand without having frequent resort to the High Court. I do not suppose there is such a Constitution ; but that is no reason why we should not go as near to it as we possibly can. We have a Constitution practically following the American model, which, as the honorable member for Flinders pointed out, has been the source of endless litigation in the United States.
– That will apply to any written Constitution.
– Not necessarily. There are some sections in the Constitution about which you can make no mistake. We ought to make the trade and commerce provision equally clear. The honorable member for Bendigo seemed to think that if we passed the amendment, it would be our duty t0 take over and legislate regarding the most: minute details that could be dealt With under “ trade and commerce.” He spoke about the hours of closing shops, and other little matters of that kind. Surely he does not imagine that a Parliament professing to be National will not have all its time taken up with bigger issues, or have time to attend to such minor details?
– The Canadian Parliament has never attempted that sort of thing.
– Nor would any other National Parliament.
– The Canadian Parliament is not ruled by Socialists yet.
– The honorable member has there expressed the whole objection to this proposal. Honorable members have said that the question should be discussed and dealt with on its merits, apart from party; but the great objection which most of the members of the Opposition have to it is that it is proposed by the Labour party.
– My interjection was the answer to the honorable member, who said that we should not deal with the small things to which he referred. I say that those are precisely the things we should deal with if we had the power.
– The whole question is whether it is wise, judicious, and expedient, in the interests of the trade and commerce of Australia, to so word our Constitution that there will be no doubt at all about the validity of the Acts and regulations that we pass dealing with trade and commerce. I am satisfied that every business man, and every corporation in any way involved in the cases that have come before the High Court, would say, straight away, “ We do not care what you do, so long as you make the law as certain and plain as possible.” The amount of friction that has been caused is not to be measured by the number of cases that have been before the Courts. For every case that has been heard, there must have been dozens of instances in the various States in which counsel have been called upon to advise as to the powers relating to trade and commerce, and the validity of various Acts. I shall most strongly support the clause. I believe we should have a Constitution so framed in this regard that there will be no doubt about the validity of our laws once they are passed. The people will then know what they mean, or if, as laymen, they do not know, they will be able to get a definite opinion on the subject from any leading counsel. As regards any possible abuse of these powers, I can only say, again, that we can trust the people. That is the very essence of the Constitution. The people have complete control over the representation in this House and the Senate. If they wish to alter the Constitution, we have a right to give them an opportunity of doing so. If they express their willingness to make this amendment, no one has the right to say that we are taking powers away from the States. If, on the other hand, we abuse the trust they place in us, they have the remedy in their own hands, not by reamending the Constitution, but by sending to the two Houses men who will carry out their views.
Question - That clause 2 stand part of the Bill - put. The Committee divided.
Majority … … 17
Question so resolved in the affirmative.
Clause agreed to.
Clause 3 -
Section fifty-one of the Constitution is altered by omitting the words “ Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth,” and inserting in lieu thereof the words - “ Corporations, including -
the creation, dissolution, regulation, and control of corporations;
.- As a test, I move -
That after the word “creation,” line 7, the word “ and “ be inserted.
If that amendment be carried, I shall propose to strike out the words “ regulation, and control,” so that the paragraph will read “ the creation and dissolution of corporations.” That will give the Commonwealth power- to deal with corporations, or, in other words, to create the artificial person known as a corporation. Power will not be given to deal with corporations to any greater extent than we have power to deal with persons. It was the policy of the last Government to ask that this power should be granted, and, though the question was never submitted to the Cabinet, 1 had, in view of the decision in the Huddart Parker case, the idea that the corporation power ought to be in the Federal Government for the purpose of the creation of corporations having a status throughout the Commonwealth. Honorable members will notice, in the memorandum circulated, a reference to the defect in the corporation power as declared by the High Court. In 1906 the Australian Preservation Industries Act was passed, giving power to deal with trusts in connexion with Inter-State trade, and, if they were corporations, in connexion with both Interstate and domestic trade. It was thought by the Attorney-General of the day that the corporate power was plenary; in other words, that we had such a power that we could not only regulate the capacity of corporations to enter into contracts, but that we could control their operations in respect of trade, whether domestic or Inter-State. It was thought, also, I think, that we had power to create corporations for all purposes, and, as an incident of that power, could condition their existence in any way we liked. If that were so, Parliament could prescribe what they were to do or not to do in relation, not only to InterState trade, but to domestic trade. On that assumption, sections 5 and 8 of the Industries Preservation Act provided against any abuse of the trade and commerce clauses of the Constitution in certain restraints of trade; but those sections were declared by the High Court to be ultra vires, because they dealt with trade and commerce within States as well as between States. The Court held, without defining the limits, that our power to create and dissolve corporations was confined to their creation as instrumentalities for the pur poses of the powers granted. We might, for instance, create an instrumentality in connexion with the bankruptcy power if it were exercised, or we might create corporations for the purposes of Inter-State trade, because that is one of the expressed powers of the Commonwealth; but we had no. general power to create or dissolve corporations. That does, I think, indicate a defect in the existing powers of the Commonwealth that ought to be removed ; and to that end, I do not think anything else is required beyond the amendment I have proposed. So far as concerns the power of regulation necessary for the existence or status of corporations, that is given under the power to create - it is ancillary to the power to create, and is implied in it. We do not require or desire exceptional control over corporations; in other words, we do not desire to place them in any category that persons are not in, and if they break the law they ought to be subject to the same penalties that apply to persons. The defect exemplified by the fact that if a corporate existence was desired to be given throughout the Commonwealth, as things are at present, we must either invoke the power of the Crown to give a charter, or we must have the exercise by the Commonwealth of its power in relation to Inter- State trade with the cooperation of the six States before we could secure that full-fledged personality that ought to be given, and which will be given by the amendment I have moved. Beyond that I ask the Attorney-General to say that there is no necessity to go. If my amendment be carried, then I shall propose to omit the words “ regulation and control.” I considered whether the word “regulation” ought to be retained, and came to the conclusion that it was not necessary. It means, to my mind, something very different from “ control.” The word “ regulation” occurs in the American Constitution, and it may give very great power. It practically means everything in relation to the commerce power, but in relation to the creation or dissolution of corporations the word “ regulation “ is merely a method of giving a juristic status. If we go beyond the use of the word “creation” we must mean something more, and we may give a power equal to that in the trade and commerce section of the American Constitution. That would mean going beyond what is reasonably necessary
– Before the Attorney-General takes up a definite attitude in regard to the amendment, I would urge him to consider the effect of this clause. The way in which this question came into conflict in the Courts may be briefly stated. An ‘ attempt was made under our anti-trust legislation to regulate trusts and combines, to use a short and comprehensive expression, under the power to regulate commerce. As honorable members are aware, the Anti-Trust Act consisted practically of two parts. Section 4, in the first part, made penal provisions against combinations and agreements in restraint of trade or injurious to trade between the States and with foreign countries. That was the only distance that this Parliament could go under the commerce power. But the Parliament, feeling that it would be necessary, in order to deal effectively with such combinations, to go a great deal further, and to free itself from the restrictions imposed upon it by the commerce power, looked about and found, in paragraph xx. of section 51 - empowering it to make laws with regard to foreign corporations and trading or financial corporations - what it believed would enable it to do all that it desired. _ It therefore passed another clause making penal provisions, without any local distinction, against all combinations, whether within a State or beyond a State, tending to monopolize or to restrain trade to the detriment of the public. The question arose in connexion with the right of the Attorney-General to investigate the facts in an alleged combine. In the Huddart Parker case one of the parties alleged to have taken part in a combination disputed the right of the Attorney-General on several grounds to ask certain questions. First of all, it was contended that the power relating to Inter-State commerce was ineffectual, and it was held that that part of the Act which dealt with corporations was ultra vires, there being no power under the Constitution to enable us to make laws prohibiting a corporation taking part in a combination in restraint of trade. The question arose only incidentally to the carrying out of the desire of this Parliament to control monopolies or combinations in restraint of trade. The purpose of the Government, as I understand it, is to neutralize the effect of that decision. The only object that the Government can have, in my opinion, is to do away with that fetter upon the exercise of the power of this Parliament to deal with combinations. I do not think that the Government really desire to obtain under this Bill any wider power over corporations than is necessary to secure an effective control over trusts and combinations in restraint of trade, and if the amendment proposed by the honorable member for Angas be carried I think that it will give the Government all that they desire in that direction. If, however, the Bill be left as it is, it will be open to the very criticism which the Justices of the High Court in the case to which I have referred were practically unanimous in directing against what was contended to be the effect of the Constitution, namely, to enable die Parliament to make a totally different code of laws applying to corporations from those applying to ordinary parties. During the second-reading debate I cited a passage from the judgment of Mr. Justice Higgins, in which he pointed out the absurdities that would follow from such a construction of the constitutional power. If the words “ regulation and control “ be retained in this Bill we shall practically bring into existence the very power which the Justices in that case, and notably Mr. Justice Higgins, said would amount to a practical absurdity in a Federal Constitution. It would mean that the general legislative power, with regard to corporations, should be in the Federal Parliament, but, with regard to persons, should be in the State Parliaments. If the amendment be carried this Parliament will have the controlling power so far as the status, constitution, or conditions under which corporations or combinations may be called into existence is concerned.
– So far as it is within a State?
– I think that if this amendment were carried it would give a general control over corporations, but limited to what lawyers call the status or, in more general terms, the constitution of companies, the conditions under which they are brought into existence and those under which they come to an end. It would, I think, govern and include all that is wanted for the main purpose which was litigated in the Huddart-Parker case. I do not know that there would be anything extremely wrong in making the wording even wider than it is in regard to the general constitution of combinations. I should not object to including in the Federal power everything that is included in the ordinary company law. That is to say, everything dealing with the formation - and regulation in a narrow sense : that is regulation as to the duties of companies in publishing balancesheets, and so forth - and the dissolution of companies. But these words would enable the Federal Parliament to go a great deal further. They would include practically all sorts of legislative power over all the transactions of a company that could be called into existence, and would practically leave the control of the action of one set of persons - because a corporation may be. a person - subject to one law, and the control of the actions of another set of persons subject to another law. I need not multiply instances to show the immense inconvenience to which this might lead. 1 should, perhaps, prefer a somewhat different general wording from that proposed try the honorable member for Angas, but 1 do not feel that I could take the responsibility of going into the matter, and 1 am quite satisfied to accept the wording suggested by the honorable and learned member. I urge the Attorney-General not to take a very rigid stand upon this amendment. 1 suggest - if he is prepared to listen to suggestions from this side of the Committee - that he might intimate his opinion generally, and, if not satisfied with the exact form of the language used, might hold over the matter and deal with it on recommittal, or after he has been able to consult those with whom he is in a position to confer.
– The amendment moved by the honorable member for Angas, if it “be accepted, involves the admission that it is sufficient for the purposes of the Commonwealth that we should have power to create and dissolve corporations, and that it is unnecessary to regulate and control them. The matter may be considered in relation to the trade and commerce power generally, and to the proposed amendment of the Constitution in clause 5, which deals with combinations and monopolies. I should like, first of all, to point out that the judgment in the Huddart-Parker case seems to show very clearly what limitations are put on apparently plain words of the Constitution, and what we must expect if we fail in any way to set forth’ ‘exactly everything that we want. If we rely on something which is expressed in some other section of the Constitution for the strength of this particular power, we shall very likely fail to get what we desire. I ask the honorable member for Angas to examine paragraph xx. of section 51 of the Con stitution, which empowers us to. make laws with respect to foreign corporations and trading or financial corporations formed within the limits of the Commonwealth. Assuming that the words “ trading or financial “ were not there it would empower us to make laws with respect to corporations formed within the limits of the Commonwealth, and foreign corporations, without limitation as to the class of operations in which those corporations were engaged. It would then appear that the meaning of that paragraph was that we had power to create, dissolve, regulate, and control. There is nothing in the wording of the section repugnant to that idea; but the Court, looking at the whole of the Constitution, came to a different conclusion. We thought that we had power to regulate trading and financial corporations and foreign corporations, and the honorable member now asks us to accept the control of the creation and dissolution of corporations. That would cover all kinds of corporations, but would relate only to their creation and dissolution. We should have to rely for their control possibly upon some power that might exist under the trade and commerce provisions of the Constitution, or that may exist in connexion with the combination and monopoly power. If there be a monopoly and a combination in restraint of trade, no doubt that power would apply. The power sought by clause 3 is complementary of, and supplementary to, that sought under clause 5, subject always to the qualification that, under clause 3, we ask for power over combinations, whether companies in the ordinary sense, or monopolies. Why “should we have power to deal with the individual trader under all circumstances, controlling and regulating his trade, and not have such power in regard to corporations? On this point, I should like to quote a judgment of Mr. Justice Isaacs in Huddart, Parker and Appleton v. Moorehead, 8 Commonwealth Law Reports -
It was practically conceded that the Federal Parliament could entirely forbid a foreign company doing any business whatever in Australia, or it might be that permission to enter the field of trade might be given on conditions.
What do we gain by the amendment that we have not already got, except that it applies to all corporations, and not merely to financial and trading corporations. To continue -
But it was contended that the conditions must be preliminary only, and, once the corporation was lawfully stationed on the field of internal trade, it was beyond the reach of the
Federal Parliament, except, perhaps, that a failure to continue the observance of a condition might terminate the right to trade at all; in short, that, though public protection or uniformity of law at the hands of some national authority was necessary, it must, whatever its urgency, stop at the preliminaries to trading.
He goes on -
And how can the power once admitted at all be sensibly divided? What reason is there in permitting the Commonwealth Parliament to deny to any foreign company or business whatever, whether beneficial or hurtful to the general public, and yet in not permitting the Parliament to allow the company to do business that is innocuous, but, as the challenged sections provide, to exclude business that is harmful to the people of the Commonwealth? Again : in the case, say, of a New South Wales trading corporation with powers limited to the State in which it is formed, what is the power which is conceded by the appellants to the Commonwealth Parliament? It cannot expel them from New South Wales. That is plain. Compulsory recognition by the very State is superfluous. The Commons wealth Parliament admittedly cannot lop off any capacities; it cannot add to. them. All that is for the State. The only authority left is mere prohibition against trading at all in New South Wales, either absolutely or subject to some preliminary conditions, but it is said that, permitted to trade at all, its operations are entirely subject to State control. In all this contention I confess I see nothing but endless intricacy and bewildering confusion.
What is the position of a corporation in regard to whose creation we are supreme, which we can dissolve, but whose behaviour we cannot control ? I do not know why we should not take the sensible course suggested by Mr. Justice Isaacs -
As the argument claims exclusive State power on the actual field of operations, it is obvious that penalties may lawfully be imposed by the State at every point of corporate action, a power which could altogether nullify a mere general permission of the Commonwealth to trade. It is inconceivable that so futile a power, as paragraph (xx,) would then be, was solemnly handed over to the nation. Further, a conditional prohibition once the condition was fulfilled and the corporation legally stationed on the field, might in many cases be equally futile, and leave the gravest injury without remedy unless the States chose to give it.
We have the power to create and dissolve corporations, but not to control or regulate their behaviour. In view of the plain facts of the case, and of the verbiage of paragraph xx. of section 51 of the Constitution, and remembering that clause 5 gives us power over combinations and monopolies, whether corporations or individual traders, in relation to the production, manufacture, or supply of goods, while this provision gives us power in regard to other corporations, that is to say, those engaged in trade, it appears to me that we are asking for more than we asked for in respect to individual traders in sub- clause 2. We may deal with the individual trader as we please, short of dissolving or creating him.
.- Under the trade and commerce provisions, Congress can provide for the creation of corporations, restrict their operations, and define the limits of their powers in respect to Inter-State trade. The reason why we have not been able to do so is, to some extent, because the provision in our Constitution is somewhat narrower, our power extending only to foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth. The High Court has not decided finally whether our powers in regard to foreign corporations are not plenary. I think that they are, and that we may regulate them as we please, subject, of course, to provisions like those of section 92, which enacts that there must be Inter- State free trade.
– Is it not anomalous that we should be able to control a foreign, and not a native, corporation ?
– I think so. But, in my opinion, all that the Attorney-General desires is given by the amendment which I suggest. When the limitations respecting trade and commerce have been struck out, we shall be able to accomplish everything we wish, because it has been held in America that corporations can be dealt with under the trade and commerce power, and a Federal Incorporation Bill has been brought in this session to provide for the control of the operations of corporations in Inter-State commerce. It is proposed to deny them the capacity to contract, or to enter into an agreement in relation to InterState’ trade unless they comply with certain conditions. We wish to go beyond that, and to take power to create corporations for all purposes. That is given by the words “ creation “ and “ dissolution.”
– In the light of this judgment, will the honorable gentleman say that the words “creation” and “dissolution” are sufficient to give control over the behaviour of corporations?
– Yes. The word used in the Constitution is “ formation.” The High Court decided that our power of creation is confined to the express powers which may be necessary. We may create or sanction the creation of corporations for the purposes of Inter-State commerce, and under the American practice - I do not know whether it has been limited by the decision - may control them. We should have power of creation for all purposes, so as to give corporations a continental status, and that would be accomplished by my amendment. Tiedeman, in State and Federal control of Persons and Property., points out that corporations once created are subject to the ordinary laws. In vol. 11 he says -
As a general proposition, corporations are included under the name of “persons” in coming within the operation of the law. . . . The Act of incorporation, therefore, is a governmental act of creation. It creates a legal, artificial personalty which becomes the subject of rights, and, like any other legal personalty, holds these rights subject to the ordinary laws of the State.
That is all we ask for.
– They are subject to State laws..
– - And to Commonwealth laws.
– That is doubtful.
– They are subject to every law that we can pass regarding persons.
– -This does not take away State control.
– There is nothing to justify the creation by the States of corporations with exceptional powers. Whatever powers we have must operate in respect to corporations, as well as in respect to persons. The Attorney-General wishes to go beyond that, and to give an exceptional power over corporations not possessed in respect to persons. The power over combinations is given by the Constitution. But because domestic trade is not covered, the last Government, as it did not wish to extend the commerce power to domestic trade, asked for special power over trusts and combines. The Attorney-General does not want that, because he has taken the wide trade and commerce power from which it may be derived, and the corporation power falls within that also. As long as power is given to create and dissolve, the Government will have every power that they want.
– What is the objection to the extra power?
– Because it is anomalous. It may be prescribed that a corporation is to contract in a ‘certain way, be subject to certain immunities, or have rights that will not attach to persons. I should not say that we could authorize a corporation to do, in relation to Inter-State free trade, things that would violate section 92 of the Constitution, but I cannot say what “control “ will mean.
– Does the honorable member say it is superfluous?
– I am certain it is superfluous. It means something beyond placing corporations in exactly the same position as persons. According to Mr. Justice Higgins’ explanation of “ control,” it will mean giving them a lot of powers which ought not to be vested in them. The Chief Justice, in his judgment at, I think, page 354, mentions also that “ control “ would give absolute plenary power over all their operations if granted to the extent of the arguments put forward by counsel in endeavouring to sustain the provisions of the Anti-Trust Act of 1906-7. I think we all wish to give the Commonwealth exactly the power required, but these words go far beyond what is necessary, and give exceptional powers which may work rather hurtfully than beneficially to the administration of die Constitution.
.- I think the Attorney-General understands-‘ that whatever power may be necessary to enable this Parliament to deal at once in the most thorough and complete manner with trusts and combines, or operations of that kind, the whole Committee is unanimously willing to concede. But what is submitted is that the Attorney-General can obtain all that power for dealing with trusts and combines which associate themselves with corporations, are corporations, or attempt to disguise themselves as corporations, in the most thorough-going fashion, without going to the extent of this clause. Beyond that, since certain advantages, obvious to all, can be gained by unity of legislation. There is no opposition here. But by this proposal the Attorney-General is forcing into the Federal arena the whole treatment of corporations the natural and inevitable effect of which will be to render nugatory whatever legislation there is on any of the State statute-books specially affecting corporations. Corporations must naturally observe their contracts, and accept State law generally in such matters, or if they stray from the paths of rectitude, will be subject to correction by State tribunals. But, in this case, as in the preceding instances, the Attorney-General, I think intentionally, is seizing the whole of thesubstance of the authority that canbe exercised in relation to corporations strictly and solely as corporations.
He is leaving to the States, except in ordinary matters as to contracts and torts, so narrow and small a field that it will be not worth their while to occupy it. Consequently, the whole of the law dealing with corporations, as corporations, will under this amendment pass into the hands of the Commonwealth. That is a good deal more than the AttorneyGeneral has admitted to be his object, but it must be obvious to him that it will be the inevitable result of his proposal.
– It does not follow that we shall exercise it, but we ought to have power to make the Commonwealth legislation other than futile if the necessity should arise.
– I should be as keen as the honorable member in preventing Commonwealth legislation from being rendered futile in the least degree in respect to trusts or combines, or to any of those important matters to which he has been alluding. But if we take this wholesale power, the whole of our experience in this Parlia merit proves that, wherever we have a power, we exercise it to the full. That will always be the natural tendency of any Parliament. If the Attorney-General frankly avows that, as in effect he does, there is no more to be said on the subject. It is no use arguing with “ the master of forty legions.”
– I am willing to listen to anything, but am bound to say that I cannot see why we should not use these words, when, on the very face of the judgment, it appears that, without their insertion, we have no power over the operations of corporations.
– We do not need power over all the operations of corporations, large and small, but we certainly can claim, and ought to have, all necessary powers over them, over trusts and combines, or similar matters. If, as it is evident that they do, the Government insist that we must annex the whole field, it would have been better to say so at once, and avoid part of this discussion.
Question-That the word “ and “ proposed to be inserted be so inserted (Mr. Glynn’s amendment) - put. The Committee divided.
Majority … 12
Question so resolved in the negative.
Clause agreed to.
Clause 4 -
Section fifty-one of the Constitution is altered by omitting the words “Conciliation and Arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State and inserting in lieu thereof the words “ Industrial matters, including employment and the wages and conditions of employment and also including the prevention and settlement of industrial disputes.”
– I have to inform the Committee that to-morrow I shall move to omit the words - “ Industrial matters, including employment and the wages’ and conditions of emplovment and also including the prevention and settlement of industrial disputes “ and to insert in lieu the following : - “ Labour and employment, including -
That limits the clause, and, in a sense, widens it.
House adjourned at 10.19 p.m.
Cite as: Australia, House of Representatives, Debates, 26 October 1910, viewed 22 October 2017, <http://historichansard.net/hofreps/1910/19101026_reps_4_58/>.