4th Parliament · 3rd Session
Mr. Speaker took the chair at 3 p.m., and read prayers.
– I move, by leave -
That this House places upon record its appreciation of the great public services of the late Justice of the High Court of Australia, the Honorable R. E. O’Connor, and tenders its sincere sympathy to the bereaved wife and family of an eminent citizen, whose decease is a great loss to the Commonwealth.
Since we last mct, Australia has lost one of its most distinguished citizens. As his death has caused the first vacancy in the highest judicial tribunal in the land, and as he was a distinguished member of the first Parliament, and of the first Ministry, it is only fitting that some reference should be made to it. Some of us made his acquaintance for the first lime after we came to this Parliament, but all who knew him remember him, not only for his great ability, but also for his kindness of heart, and for his urbanity in all his dealings with public men. He was singularly fitted for the duties of public life, and for the judicial work imposed on him, much of which was more than usually onerous, because not such as ordinarily falls to the lot of a high judicial functionary. He was President of the Court of Conciliation and Arbitration, and his work in that Court has stood the test of time. Australia is the poorer by the death of a citizen who did much for its public life. I am sure that I speak for every hon orable member present, and for many others, when I say that our hearts go out to the wife and family in sympathy with their loss, which, great as our own is, completely outmeasures it.
Mr. DEAKIN (Ballarat) [3.4).- The late Mr. Justice O’Connor accomplished much for Australia. He was a champion of the Federal movement from the outset, a representative of his State in the Convention which shaped the Constitution, and a member of the Committee that framed it. His work always bore traces, for those who knew him, of his many high qualities. The most lovable of comrades, he was also the fairest of opponents, and staunchest in the discharge of his obligations. Reference has been made to the distinguished position which he occupied in this Parliament, but only those who had the privilege of being members of the same Cabinet know the steadfastness with which he at all times pursued high Federal aims, irrespective of party or personal relations, and how invaluable his counsel and assistance were in dealing with the many great difficulties surrounding the launching of the Constitution. But this is not the time when any recapitulation of his principal public achievements can be adequate or satisfactory to those who knew him. He held a high judicial appointment for which no one could have been better qualified, because in the extremest heat of party feeling he never lost the judicial temper. His leadership of the Senate in the first days of the Commonwealth was a testimony to his conspicuous qualifications for positions of high trust and responsibility. For all his gifts, and above all else, he was among the most modest and retiring, most lovable, and loyal of men.
.-By the death of Mr. Justice O’Connor we havelost a very great man - a man whose public career was both distinguished and honorable. His public services, especially those connected with the establishment of Federation, will be long remembered. He brought to his every task a devotion and wholeheartedness as rare as commendable. It was the fortune of many of us to be opposed to him in politics, but though he always fought valiantly and well, all of us regarded him with the warm feelings of personal friendship. He never exhibited any trace of personal enmity, nor gave cause for it in others. It was impossible to regard him as an enemy. As a lawyer his judgment was sound and his knowledge of law profound. His devotion to duty shortened his career. But it may be some consolation to his wife and family to know that he leaves a reputation which will not easily die, and memories in which there is not one drop of bitterness, his political opponents mourning his loss as sincerely as do his friends and colleagues.
Question resolved in the affirmative, honorable members standing in their places.
RECENT LONG SITTING.
– Has the Prime Minister seen the Age of to-day, in which the honorable member for Flinders, speaking of the conduct of the business of the House, is reported to have said -
The reason for the recent sixty hours’ sitting of the House of Representativeshas not merely the desire on the part of the Opposition to beat the other side. The Government, which had a large majority at its back, had told the Opposition that it was going to pass the whole of the Estimates,involving the expenditure of £20,000,000, in one sitting.
Is the Prime Minister aware that that is a fact?
– The answer to that, Mr. Speaker, is “ No.”
– When the Navigation Bill was under discussion in Committee, 1 questioned the accuracy of a statement in a circular issued by the Masters and Engineers’ Association of Australia. A day or two previously I had made inquiries to ascertain whether any member of the association was in the employ of the Port Jackson Company, and had been informed that not one was in that employment. Subsequently, the organization informed me that the statement made in the circular was quite correct. I therefore communicated with the authorities in Sydney, and found upon fuller investigation that the statement was correct, ‘ and that out of fourteen engineers in the employ of the Port Jackson Company four were members of the association. Therefore, I think it is only right and just that I should tender my apology to the association, and express my regret that my criticism, though honest, did not accord with the facts of the case.
– I desire to make a personal explanation. A question was asked of the Prime Minister a few minutes ago as to whether he was aware that I had made a statement on Wednesday night last that the Government had threatened to take the whole of the Estimates - or rather the remaining portion of them - through Committee at one sitting. The only answer made by the Prime Minister to that question was an emphatic “ No.” Whether that was an answer to the question as to whether he was aware that I had made the statement, or whether it was intended as expressing dissent with respect to the correctness of what I said, I do not know.
– Perhaps I should have said, “ No, no !”
– At all events, I desire to reiterate the statement which I made, and to explain exactly what took place. An arrangement had been made whereby the House was to rise when we had arrived at a certain stage with regard to the Estimates of the Department of External Affairs. That stage was reached at about half-past11 o’clock. But some debate on another matter introduced by the honorable member for Richmond took place. The honorable member was followed by certain speakers on the other side. That brought us near to12 o’clock.
– He was also followed by the honorable member himself.
– I am now dealing with the correctness of what I said.
– We thought the honorable member was going to state exactly what took place?
– I am going to state exactly what took place. The honorable member for Bourke spoke. After he had concluded what he had to say, the Deputy-Leader of the Opposition, at the table, asked the Prime Minister how far he intended to proceed with the Estimates.
– That was at eleven minutes to 12.
– If . it was at eleven minutes to1 it does not matter for the purpose ofmyexplanation. The Prime Minister, in the reply to that question, said, “We propose to proceed with the business of the House.” Now, I say that that statement of mine - that the Prime Minister on behalf of the Government, said that they were determined to proceed with the whole of the Estimates in one sitting - was correct. Honorable members opposite are trying to cover up what they know to be true by an outburst of guffaws.
– The honorable member is now entering into an argument. That isnot a personal explanation.
– I do not propose to enter into an argument.
– I ask that the last imputation shall be withdrawn - that we are trying to cover up something we know to be untrue.
– I did not say “ what honorable members opposite knew to be untrue.” I said what they knew to be true.
– I am sure that the honorable member will withdraw the statement.
– The question now is-
– The honorable member must withdraw that statement.
– I am entitled, when my veracity on this matter has been doubted-
– The honorable member must withdraw the statement.
– I am not aware of having made the statement that has been alleged, but I will withdraw it. Fortunately, I have before me the Hansard record, which, at page 5469, shows that immediately after the honorable member for Bourke had concluded speaking, the honorable member for Parramatta said -
I should like to ask the Prime Minister how far it is proposed to proceed to-night.
Then the honorable member for Newcastle said -
The honorable member’s party have kept us late; and the Minister of External Affairs said-
We propose to go right through.
I do not desire to argue the matter, but I will read the rest of the report bearing on the point -
– Who has kept honorable members late? We never had any intention of keeping them late.
– What about that very dramatic speech by the honorable member for Richmond?
– What I have said is a fact well known to honorable members. The Minister of External Affairs has had one good “go” to-night, yet he objects to anybody else speaking.
– We will give honorable members opposite a week of it.
– The honorable member had better stop blustering. So far he has got nothing out of it.
– The honorable member is now going beyond a personal explanation.
– No, sir. All this is a record of proceedings concerning which my veracity is questioned.
– The honorable member is going beyond a personal explanation.
– This is a personal explanation. The statements made by. the Prime Minister and by the Minister of External Affairs are part of the justification of my statement. The report proceeds -
– The honorable member had better stop blustering. So far he has got nothing out of it.
Then the Chairman stopped the interjections ; afterwards the honorable member for Parramatta said -
I rose to ask how far the Prime Minister proposes to proceed to-night. We are anxious to close at the earliest moment, and never had any intention of keeping honorable members beyond train time.
To that the Prime Minister said -
I find some difficulty in negotiating with anybody representing the leader of the Opposition.
– Has the Prime Minister approached me to-night in any way ?
– Not directly.
Then the Prime Minister proceeded. I do not think there is any need to quote further. What I submit is that any man who reads that report fairly, or who was present and listened to what took place on the night in question, could come to only one conclusion - the conclusion at which we all arrived, and which I expressed.
– I desire to make a personal explanation. I should like to explain that, had I known that this fun was to come on last week, I would have been here to help to teach the Government the excellent and salutary lesson they have learned.
– Order ! I desire to inform the honorable member for North Sydney, and others who may wish to indulge in the practice to which he has just resorted, that if any future attempt of the kind is made I shall take such a course as will prevent their doing so.
-I desire to make a personal explanation, and as it arises out of certain debates last week, I claim the privilege of quoting from the current number of Hansard,. The honorable member for Parramatta, when speaking on the Estimates, made the following remarks -
Retaliation has been made to-night at the instigation of certain honorable member’s, and there are on this side honorable members who are prepared to place on record material which willshow the kind of thing which is being applauded and supported by such menas the Minister, the honorable member for Brisbane, andthe honorable member for Maribyrnong.
Then follow a number of interjections, and the honorable member for Parramatta later on said -
There will be other occasions on which we may deal with it, and when we shall have more time to do so. It comes to me with stunning force to find honorable members like the honorable member for Maribyrnong gloating over the circulation of this kind of stuff.
The honorable member for Parramatta, when speaking, certainly waved something in his hand, and asked me ifI agreed with “this kindof stuff.” I did not know what the honorable member was waving, and I made a certain interjection; but since then it has come to my knowledge that he held in his hand certain extracts - repeated, later on, I believe, by another honorable member - which had reference to the marriage tie, though I do not know whether it had any reference to the “ purity of the home.” The honorable member for Parramatta will find in myself as stout a defender of the purity of the home and the marriage tie as he will find in himself. By way of personal explanation, I may say that I think the honorable member’s statement was one of those that take place in the heat of debate, and certainly cannot attach to me. . The policy of myself, and of those associated with me, is by every means to secure the purity of the Home and the sanctity of the marriage tie.
– I desire to make a personal explanation. It has been brought under my notice by the courteous and learned member for Angas that, unwittingly, I have spoken of Lady Way in a manner to which she takes exception. The newspapers, in reporting a meeting of the State Children’s Council of South Australia, through some inadvertence, referred to the President of that organization as Lady Way. As a matter of fact, the President is Mr. Rhodes, and it was he who made certain remarks in reference to the Maternity Allowance Act, to whichI strongly objected. I desire to take this opportunity of saying that I have such an admiration for the State Children’s Council of South Australia, which I regard as holding a unique position in the world from the stand-point of the care which it bestows upon child life, that I would be very sorry to hurt the feelings of any lady connected with it, whether she be a lady of title or otherwise. I hope that the honorable member for Angas, as a member of that body, will explain to Lady Way that my remarks were attributable to an error in a newspaper report, which referred to her as its President. Had I known that its President was a man,I should have hit much harder than I did.
– Can the Prime Minister inform us when we are likely to have the report of the Sugar Commission?
– I have not hari the honour of being on the Royal Commission, but I understand that Royal Commissions are most sacred institutions, not to be interfered with in any way whatever. I believe I have no right to tell the Sugar Commission to hurry up, but I shall be very grateful indeed when the report is presented, and I am able to lay it before the House.
– Has the attention of the Prime Minister been drawn to the following paragraph which appeared in the Age of 1 2 th November : -
A strong branch of the Rural Producers’ Association was formed here on Saturday, with Mr. J. L. Roberts, president; Messrs. D. Dournein and P. D. Barbary, vice-presidents ; and Mr. G. S. O’Malley, hon secretary. During the discussion Mr. J. Quirk said it was only throwing good money after bad going into the Arbitration Court. The employers would not get a fair deal there. The only way to combat the workers’ demands would be to stop all operations for two years, and purchase nothing of Australian manufacture.
Does the policy of the Government give any basis of truth to a statement of this kind ?
– The honorable member has drawn my attention to the paragraph. I believe that the statement made that a fair trial is not given to employers as well as to employes in the Conciliation and Arbitration Court, is incorect - not true; and as regards the threat not to use Australian goods, it is both absurd and unpatriotic.
asked the Attorney-General, up on notice - 1.How many cases in the Commonwealth
Arbitration Court are part heard?
– The answers to the questions are : -
– On Friday, 4th ultimo, the honorable member for Capricornia put to me the following questions, to which I promised to furnish a reply : - 1.Is it true that the Eastern Extension Cable Company lately discharged an employé in receipt of a salary of £25 per month because he got married without having first obtained the permission of the company?
The answers to the honorable member’s questions are as follow : -
Marriages 13. - Employés under the rank of Clerk-in-Charge marrying without the company’s consent will render themselves liable to instant dismissal, and by which the said employé agreed to abide.” 2 and 3. Inquiry has been made in Melbourne, and the attached statement gives a summary of the replies received.
Replies by the several banking corporations to Questions 2 and 3 asked by the Honorable W. G. Higgs in the House of Representatives on Friday, 4th October, 1912 : -
English, Scottish, and Australian Bank Limited.
Question 2. We have a regulation that an officer receiving less than£200 a year has to apply for permission to marry. This application is not refused on account of the officer’s salary at that time being less than £200, nor is inquiry made as to the social position of the bride-elect.
The regulation enables the bank to keep a record of the junior officers being married or otherwise.
Question 3. We have no officer who has been in our employ for 20 years ‘whose salary is less than£200 per annum.
The Royal Bank of Australia Limited.
Question 2. Does not apply to this bank.
Question 3. Does not apply to this bank.
The N atio nal Bank of Australasia Limited.
Question 2. It is not the custom of this institution to prevent the marriage of its employes enjoying a salary of less than £200 per annum, nor to make the inquiries referred to in the question.
Question 3. -
The Commercial Bank of Australia Limited.
Question 2. No.
Question 3. Yes.
The Bank of Australasia.
Question 2. There is no such rule or practice in the Bank of Australasia.
Question 3. Out of our total staff of about 1,000 in Australasia I find there are at present three incompetent officers drawing slightly less than£200 a year, who have been over 20 years in the service of this bank. Two of these of 22 years’ service are at present paid £190 per annum each, and the other, who has been a few months over 20 years in the bank’s employ, at present draws£180 per annum.
The London Bank of Australia Limited.
Question 2. This bank does not prevent its officers from marrying unless they are in receipt of a salary of ^200 per annum, but it expects those in receipt of a smaller salary to acquaint the bank with their intention to marry, and in such cases it would seek from the officer concerned some information as to the lady he intended to marry, such as, had she means of her own, who were her parents, and did they intend to assist the newly-married couple.
Question 3. This bank has four officers of over 20 years’ service who are not yet in receipt of a salary of £200 per annum. These officers perform comparatively unimportant duties, and their resignations would be welcomed, but, owing to their incapacity tomake a living elsewhere, and the advantages they will gain from the Officers’ Provident Fund, they have not been asked to retire.
Bank of New South Wales.
Question 2. Long experience has made it ntcessary for the bank to have such a rule with regard to the bank officers. The bank makes no inquiry into the social position of . the girl’s parents.
Question 3. There are four such cases out of several hundred officers of over 20 years’ service. The abilities of these men have not, so far, entitled them to be placed in higher positions.
Union Bank of Australia Limited.
Question 2. It is a rule of this bank that no officer is allowed to marry unless his remuneration amounts to£200 per annum or upwards, or unless his own, combined with his intended wife’s income, inclusive of his remuneration from the bank, amounts to£200 per annum or upwards - a rule which it must be recognised is a salutary one in the interests of the officers themselves.
No inquiries are made as to the social position of the parents of an officer’s intended wife.
Question 3. There are only two officers in the bank’s service in Australia and Tasmania with salaries less than£200 per annum whose period of service extends over 20 years. One receives £190 per annum and the other£160 per annum. They have little or no ability, and cannot be entrusted with any duties beyond routine work.
My present staff consists of 1,144 officers.
The Bank of Victoria Limited.
Question 2. We do not prevent employes marrying because they are in receipt of less than£200 per annum.
We make no inquiry as to the social position of the girl’s parents.
Question 3. We have no officer in our employ for 20 years whose salary is less than£200 per annum.
The Colonial Bank of Australia Limited.
Question 2. So far as this bank is concerned there is no rule preventing employes marrying unless they are in receipt of £200 per annum, nor does the bank inquire into the social position of the girl’s parents before an officer’s marriage.
Question 3. There are a few clerks who have been in the bank over 20 years who are not yet in receipt of £200 per annum. I may state that in such cases the officers suffer from certain disabilitieswhich prevent promotion, and are kept in the service in their own interests, and because of their having been so many years in the bank.
asked the Prime Minister, upon notice -
– Inquiry will be made, and a reply will be furnished as soon as possible.
asked the Minister of External Affairs, upon notice -
– The answers to the honorable member’s questions are -
– T should like to ask the Prime Minister whether he has seen a statement published in the Argus of Saturday last with reference to the Savings Bank, in which the fallowing appears: -
Since the offer of the Prime Minister (Mr. Fisher) to the States was rejected early in the year, the latter have paid special attention to the strengthening of their own systems to enable them the more successfully to cope with the threatened competition of the Commonwealth. They have succeeded so well that the Governor of the Commonwealth Bank (Mr. Miller) has apparently been forced to the conclusion that the Commonwealth’s only hope is to come to terms with the States without further delay. Mr. Miller has recently conferred with the various State Ministries on the subject, and has placed before them new proposals for a working partnership for Savings Bank purposes. The States have these suggestions now under consideration, but it is believed to be unlikely that any settlement will be effected on the subject.
I wish to know whether that statement is correct.
– I dislike discussing financial matters of this kind, but I may say that what the honorable member has read is a bit of kite-flying. The statement is not correct in particulars; it is not correct as a. matter of fact. But I do not mind those who find themselves in a difficult position trying to save their faces.
asked the Treasurer, upon notice -
– The Governor ofthe Brink has furnished the following replies : - 1.It is intended to open agencies of the Commonwealth Savings Bank Department at certain city and country post-offices in New South Wales where the necessities of the population require it, from 7 to 9 p.m. on one day in each week.
– I wish to ask the Prime Minister whether it is intended to introduce a Bill by means of which deductions will not be made from old-age pensions on account of the homes in which the pensioners reside ; and. also, whether the measure will provide for some of those persons who have been citizens of Australia, for quite a number of years, and who have neglected to naturalize, receiving pensions?
– Yes, it is intended to introduce a Bill, and to pass it through Parliament this session. The matters alluded to by the honorable member will be taken into consideration. The main point, that with regard to deductions on account of the homes of the recepients of pensions, will be dealt with. It will in future be a matter of indifference what the value of a home is ; as long as it is used entirely as a home no deduction will be made on account of it.
New Hebrides Steam Service : Subsidy - Sessions of Swiss Parliament
asked the Minister of External Affairs, upon notice -
– The answers to fhe questions are -
asked the Minister of External Affairs, upon notice -
In view of the fact that three languages are spoken in the National Parliament of Switzerland and that any member has the right of having translated any of such languages unknown to him, and that under such circumstances the debates would be unending if carried on as in our Australian Parliaments, will the Minister obtain full information for the House as to how the Swiss Parliament transacts its business within the limit of short sessions of some four weeks ?
– I am communicating with the High Commissioner regarding the matter referred to in the honorable member’s question.
Remount Depot : Censured Officers - Naval Expenditure - Naval College - Compulsory Training : Prosecution of Cadets : Allotment of NonCombatant Duties - Australian Garrison Artillery.
– Will the officers who have been censured by the Minister of Defence in connexion with the Remount Depot be allowed a trial by court-martial if they so desire?
– The Minister of Defence has not acquainted me with any information as to his having censured any officers, but whatever he may havedone in that direction, the officers will have the full redress permissible under the Defence Act.
– I wish to ask the Minister representing the Minister of Defence whether he has observed the statement recently made at St. Kilda by the honorable member for Flinders to the effect that a very alarming state of affairs exists by reason of the fact that the Commonwealth is not spending money on Naval defence rapidly enough, and suggesting thatwe should cut down other expenditure with a view to providing more money for Naval expenditure? Does the Government propose to reduce the amount payable by way of old-age pensions and maternity allowances in order to find an increased sum for Naval defence purposes?
– I have not read the remarks reported to have been made by the honorable member for Flinders. I am aware, however, that members of the Opposition have made general statements respecting the expenditure incurred by the Government, while at the same time complaining that we are not spending enough. The expenditure upon defence is clearly set out in the Estimates for the current year, and it is not proposed either to increase it or to effect reductions in other directions for the purpose of providing for increased expenditure upon naval and military matters.
asked the Minister of Home Affairs, upon notice -
– The answers to the questions are -
– I wish to ask the Minister representing the Minister of Defence whether he is awareof the fact that a solicitor appeared at the Redfern Police Court the other day, when twenty-five cadets pleaded guilty to having failed to put in the statutory number of drills, and that in each case costs of one guinea, were allowed against them?
Mr.Webster. - Was there only one lawyer ?
– Yes. Will the Minister make representations to the Minister of Defence with a view to seeing if these costs cannot be remitted to the parents of the lads?
– I have no direct knowledge of the matter to which the honorable member has referred. But I am certain that it is distinctly opposed to the instructions issued by the Minister that legal assistance should be obtained in such cases. I will bring the matter under his consideration, and I have no doubt that his reply will be satisfactory.
– I wish to ask the Minister representing the Minister of Defence whether he is aware that on the 15th instant, at the Central Police Court, Sydney, Area-Officer McNaughton, who, it is stated, is also a solicitor, proceeded against twenty-one cadets for having failed to put in the statutory number of drills, and that the lads, upon pleading guilty, were each find 5s., with 6s. costs, and one guinea solicitor’s costs? Will the Minister see that in each case the guinea, solicitor’s costs, is refunded, and if the boys make up the required number of drills will the fines also be remitted?
– Who appeared against them ?
– The area-officer himself. Will the Minister take steps to see that the military authorities in New South Wales do not violate the instructions issued to them by the Department?
– This is the first I have heard of the matter to which the honorable member has referred. I can assure him that if the area-officer appeared to prosecute he did so in his capacity as an areaofficer, and not in his capacity as a solicitor. The fact that he happened to be a solicitor was incidental to the proceedings. If, however, he appeared as an area-officer, and subsequently accepted fees as a solicitor, I presume that that will be a matter for earnest consideration on the part of the Minister, and for subsequent action.
– I wish to ask the Minister representing the Minister of Defence whether, under the existing law, either fines or costs can be recovered ?
asked the Minister representing the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are -
asked the Minister representing the Minister of Defence, upon notice -
– The answers to the questions are -
Price of Potatoes: Relaxation of Import Regulations - Passengers on ‘ Indrapura ‘ ‘ : Provision for Bathing and Hot Water - Solitary Island Lighthouse : Illness of Members of Staff - Moisture in Butter.
– Idesire to ask the Minister of Trade and Customs whether, as there is at present practically a potato famine in New South Wales, he will, in the interests of the people whose staple food is increased to a prohibitive price, temporarily suspend the regulations regarding the importation of potatoes, if requested to do so by a State Minister ?
-I have already relaxed the regulations in regard to the importation of potatoes, with the result that their price is considerably lower than it would otherwise have been. I took action some five or six weeks ago, when a question on the subject was addressed to me by the honorable member for Batman.
– Potatoes, in some cases, are selling at the rate of one penny each in New South Wales.
– I cannot help that. I think that the potato famine is due to the introduction of blight on a former occasion, with the result that many persons were prevented from planting. We do not desire the re-introduction of the blight. Potatoes are being examined on the wharfs, but 1 have relaxed the regulations as far as possible.
asked the Minister of Trade and Customs, upon notice -
– The answers to the honorable member’s questions are -
For males (a) two baths, 3 ft. x 2 ft. x 2 ft. inside measurement, tap on bath, but no shower; (b) six hand basins.
For females (a) six baths similar to those for males; (b) twenty-one hand basins.
Hot water is not laid on to the baths, but the ship’s officers state that hot water could always be obtained on deck when required.
The bath in the hospital is supplied with hot water.
asked the Minister of Trade and Customs, upon notice -
– The answers to the honorable member’s questions are -
Gow and his family are suffering from ptomaine poisoning.
This officer complained of ill-health on the occasion of Commander Brewis’ visit of inspection last September. It was understood that the Superintendent of Navigation of New South Wales favorably considered his request for a transfer to the mainland so soon as it could be conveniently arranged.
Arrangements are being made with the PostmasterGeneral’s Department to supply wireless telegraphy to all isolated lighthouses that are not already connected by telephone.
– I wish to ask the Minister of Trade and Customs whether he has come to any determination which will obviate the necessity for the motion in reference to the moisture contents of butter which was moved by the honorable member for Richmond, and spoken to by the honorable member for Maranoa, being proceeded with ?
– I made a statement in regard to this matter on Friday afternoon. The honorable member for Maranoa raised the question when the Estimates of my Department were under consideration, and I informed the Committee that, as I knew the numbers were against me, I had reluctantly decided to fix the amount of moisture permitted in butter at 16 per cent. That is the law in reference to the matter to-day. If the moisture contents of butter be under 16 per cent., exporters will not be fined; but if butter for export contains more than that percentage of moisture, they will be.
Electoral Divisions, New South Wales - Solar Observatory - Kalgoorlie to Port Augusta Railway : Supply of Sleepers and Rails : Untreated Jarrah and White Ants - Use of Steel and Jarrah Sleepers on Transvaal Railways.
– I desire to ask the Minister of Home Affairs what steps have been taken in regard to the further consideration of the redistribution of the electoral divisions of New South Wales, and when may the House expect to have the amended scheme of the Commissioners submitted for its consideration?
– I cannot say when the scheme will be submitted to Parliament, but the matter is now in the hands of the Commissioners.
– Last week I brought under the notice of the Minister of Home Affairs an offer by Dr. W. Geoffrey Duffield to present some valuable instruments to the Commonwealth Government in connexion with the solar observatory. This offer expires on1st December, and I should like to know whether the Minister of Home Affairs has considered it, and has come to a decision.
– We are not able to come to a decision, because there are certain conditions attached to the offer. However, we are investigating the matter, and I shall be able to let the honorable member know in a day or two what we propose to do.
– On the 12th September, this year, the honorable member for Fremantle asked the Minister of Home Affairs whether the contract for the supply of karri sleepers had been signed, and the Minister replied “ Yes.” On the 13th November the same question was asked by the honorable member, and the Minister of Home Affairs replied “No.” Will the Minister kindly explain?
– The honorable member for Fremantle did not ask me about the final contract, but about the preliminary contract or agreement. The final contract had not been signed. The honorable member was asking wnether we were bound by it - that is what I was referring to.
asked the Minister of Home Affairs, upon notice -
– The following is the reply : -
– The Minister of Home Affairs promised to make an announcement as soon as possible in reference to the supply of rails for the Kalgoorlie to Port Augusta railway. Is the honorable gentleman in a position to make a statement to the House ?
– We have a sufficient supply to enable us to carry on the work for a good while.
asked the Minister of Home Affairs, upon notice - ‘
Destructive White Ants.
The Minister for Home Affairs has received an interesting piece of evidence of the avidity with which white ants attack untreated jarrah. It consists of a peg made of the latter timber which was, according to a report by Mr. H. Deane, the Federal Consulting Engineer, put down at Kalgoorlie (W.A.) as recently as June last.It was taken up in October, and was found to have been badly bored by the ants?
– The answers to the right honorable member’s questions are -
This peg was driven into the ground when Mr. Carrington was setting out the 3 ft. 6 in. siding fro:u the Kanowna line to the dep6t, about the end of last June, and removed in first week of October, being about three months only in the ground. You will notice part of the peg has been removed. This was done by me to make a test in order to prove the timber was jarrah, the result leaving no doubt whatever in my mind. To find jarrah in the ground attacked by white ants in such a short time has been a surprise to me, and goes to prove the termite in this country is particularly voracious. Unfortunately, this is not an isolated case, as other pegs are in the same condition.”
– Why do they not send reasonable samples - not scraps?
– Here is a sample which the honorable member may examine.
asked the Minister of Home Affairs upon notice -
Some weeks ago the Railway Department commenced to take out the steel sleepers laid on the length of line in question, and are replacing them by Australian jarrah”?
– The answers to the right honorable member’s questions are -
Letter Carriers’ Forage Allowance - Long-service Leave : Case of Mr. E. A. Harden - Payment for Services by Railway Officers - CastertonStrathdownie Mount Gambier Telephone Line - Classification of Telegraphists.
– Is the PostmasterGeneral in a position to impart any information as to the forage allowance to the letter carriers of New South Wales?
– Not to-day, but I hope to be. able to do so inside three days.
asked the PostmasterGeneral upon notice -
– The information is being obtained, and will be supplied as soon as possible.
asked the Treasurer, upon notice -
– I understand that my honorable colleague, the PostmasterGeneral, is going to furnish an answer to these questions.
– Upon 30th October, the honorable member for Wannon asked the following questions -
In reply to inquiries which were then being made, the Deputy Postmaster-General, Melbourne, has now furnished the following information -
Although another inspection is considered unnecessary by the Deputy PostmasterGeneral for Victoria, the estimate of cost of this line will be reviewed in view of the altered arrangement, of which I have recently approved, in connexion with the supply of material for country lines. On the 30th ultimo the honorable member for North Sydney asked the following questions -
In reply to inquiries which were then being made, the following information has now been furnished -
On the 1 st November the honorable member for North Sydney asked the following questions -
In reply to inquiries which were then being made, the Deputy Postmaster-General, Sydney, has furnished the following information -
On the 1 st November the honorable member for Wentworth asked the following questions -
Inreply to inquiries which were then being made, the following information has now been furnished -
Mr. FRAZER laid upon the table the following paper: -
Public Service Act - Postmaster-General’s Department - Promotions of T. G. Leece and C. C. McGarry as inspectors, 3rd Class, Inspection Branch, New South Wales.
– I move -
That this Bill be now read a second time.
The measure before the House deals with the most important subject which can engage the attention of any Parliament, certainly the most important which can engage the attention of any Parliament constituted as this one is under a Federal form of government. It is a proposal to amend the Constitution. Until Federation was established, that phrase had little or no meaning in this country. Prior to Federation the necessity to amend the Constitution of any of the State Parliaments did not arise. There was no such thing as an unconstitutional law. Technically there were limits to the powers of the State Parliaments ; practically, there were none. Within an. ambit which for all practical purposes was coincident with every potential legislative proposal suited to the needs of a people living under the most advanced form of Democracy, the State Parliaments could make what laws they pleased. Under the Federal form of government this power belongs to neither party to the Federal pact. The States cannot pass what laws they please, nor can the Commonwealth. Both are circumscribed in their legislative ambits by the Federal Constitution.
We now live under a Federal form of government. There are several instances of Federal forms of government in the civilized world to-day. The best known of these are the United States of America, Canada, Germany, Switzerland. All these are Federal forms of government. Upon that point there is no room for difference of opinion. Yet the scope of the legislative power alloted to the Federal authority by their respective Constitutions differs very widely. In some the Federal authority is strong, the States weak, in others again the States are weak, the central Government is strong. In practice, the National Parliament of Germany can pass any law it pleases, and the same remark applies to Switzerland. There is no such thing as an unconstitutional law. But the case is quite different with America. * The « Constitution of the United States is, for practical purposes, the same as our own. There is not the same lengthy list of enumerated powers in the American Constitution as here, but the want of that has been more than supplied by the judicial extension of the law, without which it is freely contended that the Constitution could not have supplied even the shadow of government sufficient for the people of America as it exists to-day. In America “ Unconstitutionality ;’ is a term pregnant with meaning. In Canada - a Federation under the British Crown, analogous in that respect, as in many others, to our own - the powers are vested in. a central authority called the Dominion Government - and certain enumerated powers belong exclusively to the provinces.
Canada is an instance of a strong Federal Government. “ Unconstitutionality “ legislation is of rare occurrence. Ours is an instance of a weak form of Federal Government. The honorable and learned member for Flinders, when speaking on a proposal, in 19 10, to amend the Constitution, very similar to this proposal in most respects, declared that “ this was one of the weakest forms of Federation in the world.”
We have, however, to deal with things as we find them. Here is a Constitution deliberately adopted by the people of Australia. We have to ask ourselves first why it was adopted, and, secondly, whether it is suited to the requirements of the people of to-day.
Government exists for the benefit of the people governed. There is no fetish about any form of Government. The test to be applied to each is, “Does it protect the interests and promote the welfare of the people?” If it does, it is good, by whatever name it may be called; if it fails to do so, it stands condemned ; names will not save it. Let us apply this test to our own case. First, honorable members may be reminded of a few facts relating to the causes that led up to Federation. Before Federation the State Parliaments had power to make such laws as they chose for the governing of the people within the limits of the State. There were no limits to their legislative powers within their own boundaries. They could legislate in respect to trusts and combines, defence, taxation, Customs, the Post Office, or anything else. This power proved ample during the early years of Australia’s history, but with the development of the country its growing insufficiency forced .itself upon the minds of the people. A change in the form of government was therefore suggested and agreed upon. The Federal Constitution was accepted by the people. The reason for its acceptance was primarily to extend the self-governing powers of the people. To the extent to which it has done that it is good ; where it has stopped short of that it stands condemned. The Constitution was adopted to extend the self-governing powers of the people of Australia, to enable them to do that which, as State electors, they could not do. The Constitution was framed by distinguished men, who gave their best thought to the effort, and was accepted by the people.
It was never contended that the Constitution as originally drafted was a finished product, sufficient for all time. Indeed, the honorable member for Ballarat, speaking on 17th March, 1898, in the Convention, said -
After all, and much as it accomplishes, this Constitution is but the framework and ground plan of the nation that is to be. It is perhaps, by a wise discretion, that we have insufficiently and inadequately dealt with the difficulties with which we are at present perplexed. It is enough that we have provided the means of enabling those to deal with them who will be far better qualified for that task than we are.
It is necessary to emphasize here .that the power of amendment provided by the Constitution is an integral and vital part of it. Without it the Constitution would not have been accepted by the people. The facts prove this indisputably. When it was proposed in an earlier draft of the Constitution to require a three-fifths majority as a condition precedent to amendment, the proposal was rejected. The power of amendment in its present relatively easy form, then, was deliberately given by the Constitution in order that it might be adapted to the growing requirements of one of the most progressive nations in the world. ‘ The necessity for amendment was thus foreseen and provided for by the framers of the Constitution. This point needs emphasis, for it is in danger of being overlooked by some of our critics.
In considering proposals for the amendment of the Constitution, these questions only have to be answered : Is the Constitution as it stands sufficient for the requirements of the people? Does it adequately protect them from all dangers? Does it efficiently promote their welfare? If not, are the proposed amendments such as will effectively remedy this defect? This is the only stand-point from which all proposals to amend the Constitution should be considered.
Those who framed the Constitution realized that amendment was inevitable, and deliberately provided for it. Therefore, in proposing its amendment,, we do not lay ourselves open to the charge of injuring it. We are simply carrying out the intention of its framers. We breathe into its half-coma^ tosebody the power and spirit of life which it lacks. A Constitution, like every other law, must be suited to the circumstances. A Constitution admirably suited to the requirements of Australia in 1850 would obviously, be insufficient now. It was not denied m 1900 that the State Constitutions then in force were not sufficient. The question, then, with which we are now concerned is whether the Federal Constitution, as it stands, is a sufficient instrument for the promotion of the people’s interests and welfare. Does it give such powers of self-government as they require? And that is the only question that need be asked. When proposals for the amendment of the Constitution were put before the country la”st year, those who supported them were charged with favoring unification, and with wishing to violate State rights. That charge must fail, unless it applies to every attempt to have the Constitution altered. I said then, and I. say now, that nothing is further from the truth than that the proposed amendments went in the direction of unification, or were other than strictly Federal in their nature, and precisely adapted to the requirements of a progressive community. But even had they been in the direction of unification, that should not have been sufficient to bring about their rejection, if it could be shown that the welfare of the people was bound up in their acceptance. The business of this Parliament is not to uphold fancied doctrines, but to bend its energies to the consideration of the best means for promoting the interests of the. people. We have to deal with facts as they arise.
What is the position to-day ? On every hand we see change of the most startling and revolutionary character, proceeding in some countries with constitutional placidity, in others stirring the primitive passions of men, again invoking the aid of brute force. “And nowhere is change more revolutionary than in the economic sphere. The industrial world of to-day is no more like that of a hundred years ago than the neolithic man resembles his civilized descendant. The conditions and laws which were thought suitable a hundred years ago and those of today are wide as the poles asunder. What fitted the wants of the fellaheen, who dipped his leathern bucket at the end of a pole into the Nile 2,000 years before Christ, does not meet the requirements of the modern irrigationist or of the artisan confronted with the complex mechanism of our industrial world. When industry was conducted in isolated communities, under primitive conditions, by employers little removed in status or wealth from their employes, things were vastly different from, the present position, when industry is controlled by colossal aggregations of wealth, and the laws suited to such conditions are quite unsuited to those which surround us. We may write poetry of the village blacksmith, but the spectacle of the gigantic Steel Trust, with its capital of £300,000,000 inspires feelings of quite another kind. Laws that were adequate for industrial conditions, under which employers competed for the trade in isolated communities, are insufficient for a state of affairs in which competition is non-existent, and mighty accumulations of wealth in the hands of a comparatively few men control the economic world.
While the world has progressed, we have not stood still. In less than twelve years of Federal government the annual wealth of Australia has increased from ,£114,000,000 to £187,000,000; her trade from £92,000,000 to £146,000,000; her banking assets from £121,000,000 to £165,000,000, and her bank deposits from £91,000,000 to £149,000,000.
The world of to-day is ruled by Trusts. It is impossible for anybody outside those institutions to say exactly to what extent industry in this country is controlled by, and what capital is invested in, these combines. Information is not obtainable. Their motto is: “Keep it dark.” But this we are able to say, that an overwhelming portion of the aggregate trade and commerce in this country is controlled by corporations of one sort or other. Under our powers, as they exist to-day, we are unable to deal with operations in this wide and constantly enlarging field. Our powers at the present time prevent us from dealing with trusts and combines, prevent us from dealing with monopolies, from making effective company laws, effective commerce laws and regulations, enacting uniform and effective navigation laws and uniform and effective industrial laws. Yet all these are inextricably intertwined about the two great and vital problems of to-day : Trusts and combines and industrial unrest. This Commonwealth, now barely twelve years old, has no power to deal effectively with these two vital issues. For all practical purposes it is powerless. I propose to prove this by an appeal to facts. I propose to base the claim for an amendment of the Constitution upon those facts, and to show that in respect of the two vital problems which affect civilized man to-day this Commonwealth has no power. I intend to show further that not only is the Commonwealth powerless, but that the States have no power either, and that, consequently, the citizens of Australia, in common with the citizens of almost every country in the world - but particularly of those countries where Governments exercise divided functions; - are absolutely at the mercy of the two greatest dangers that menace modern civilized man.
First, as to our powers. In regard to trade and commerce and corporations, our powers, never sufficient, have been cut down by successive decisions of the High Court, until at present they are admittedly futile. I will shortly detail these decisions. In the Attorney-General v. the Brewery Employes, reported in Commonwealth Law Reports, p. 469, it was shown that the limiting of the commerce power to commerce “ with other countries and among the States “ implies a reservation to the States of power over their internal commerce as fully as if there had been express words to that effect, except only “as a necessary and proper means for carrying into execution some other power expressly granted.” It was in this case that the Court developed the doctrine known as “the limitation of powers,” to which I shall refer in greater detail shortly, and declared that the section in the Trade Marks Act making provision for a workers’ trade mark .was ultra vires of the Constitution, notwithstanding that among the powers of the Commonwealth enumerated in the Constitution the power to make «laws in respect of trade marks is clearly set out. In the case of Huddart, Parker v. Moorehead, reported in 8 Commonwealth Law Reports, p. 330, it was laid down that sections 5 and 8 of the Australian Industries Preservation Act, which purport to control the conduct of companies with respect to trade generally, were invalid, as being an interference with internal trade, and not covered by the specific power over corporations. The “ corporation “ power, it was held, is confined to foreign corporations and corporations created under State laws. It does not empower the Commonwealth to create corporations, or to deal with the conduct or operations of such corporations in relation to internal trade, but relates only to the capacity and status of such corporations. Practically, that left us without power to make laws for companies of any kind, except, probably, foreign companies, so long as they remained foreign companies. Directly they are registered here, we cease to have control over them. In Kalibia v. Wilson, reported in 11 Commonwealth Law Reports, p. 689, the Navigation power was held to be a content of the commerce power, and it was laid down that it extends only to Inter-State and external commerce. This prevented us making a Seamen’s Compensation Act applic-able to all Australian seamen, and from making a uniform Navigation law.
In Moorehead v. Melbourne Steamship Company, it was held that section 15b of the Australian Industries Preservation Act, which empowers the Comp.trollerGeneral to ask questions, did not apply to questions to obtain information for use in proceedings already commenced. That means that we are unable to ask questions of any corporations or persons in regard to proceedings already commenced, although those corporations or persons may not be parties to the proceedings. It was held in Knox v. The Sugar Commission that the Commonwealth cannot compel answers to questions relating to matters not within its enumerated powers. That is to say, we cannot obtain information on any subject outside our enumerated powers, although Parliament may contemplate amending the Constitution. Therefore, in the most important task to which this Parliament can bend its energies, it has to take a leap in the dark. So much for our trade and commerce, corporation, and general powers.
In regard to industrial matters, the decisions have gone even farther. In the Railway Employe’s cases, reported in 4 Commonwealth Law Reports, p. 488, it was held that the Conciliation and Arbitration Act of 1904 was invalid so far as it pura ported to affect State railways. In the Jumbunna Company v. The Victorian Coal Miners Association, reported in 4 Commonwealth Law Reports, p. 609, it was held that an appeal lies to the High Court from a decision of the President of the Conciliation and Arbitration Court as to the registration of an association, in spite of the fact that the Act declared that there should be no appeal. In ex parte Broken Hill Proprietary, reported in 8 Commonwealth Law Reports, p. 419, it was laid down that where the Arbitration Court exceeds its jurisdiction the High Court may grant prohibition. In the case of the Federal Saw-mill Employes v. Moore and Sons, reported in 8 Commonwealth Law Reports, p. 465, it was held that the Arbitration Court has power to make an award inconsistent with an industrial agreement enforcible under State law, but it cannot make an award inconsistent with the determination of a State Wages Board. In ex parte Whybrow, reported in n Commonwealth Law Reports, p. 1, it was decided that the provisions . as to the common rule were invalid. In the case of the Federated Engine-drivers Association v. Broken Hill Proprietary Company, reported in 12 Commonwealth Law Reports, p. 398, it was held that the enginedrivers and firemen in different industries were not entitled to registration.
In regard to’ these matters, and before the common’ rule was held to be ultra vires, Mr. Justice Higgins said -
At present the approach to the Court is through a veritable Serbonian bog of technicalities, and the bog is extending. After full consideration, I must state it as my opinion that these decisions as to the limits of the Court’s power with all the corollaries which they involve will make it impracticable to frame awards which will work - will entail, indeed, a gradual paralysis of the functions of the Court. Yet this Court, if it be trusted - and unless it can be trusted it ought not to exist - shows magnificent promise of usefulness to the public.
These remarks by the President of the Arbitration Court made before the common rule was declared invalid, show clearly the absolutely helpless position in which the Court is placed, and yet outside this Court the Commonwealth has no power in regard to industrial matters. In Rex v. Barger our industrial powers, which Parliament had thought might be exercised to limit the benefits of protection to employers who paid fair and reasonable wages, were declared to be invalid. That decision, of course,- sounded the death-knell of the new Protection policy under the Constitution as it stands. That is the position of the Commonwealth, as delimited by the decisions of the High Court.
I wish now to refer briefly to a doctrine which, as I have already mentioned, was first enunciated in Rex y. Barger, and which was developed later- it may be termed the doctrine of the limitation of powers. This doctrine has the effect of applying the words of limitation in one section of the Constitution, not only to the section in which they occur, but to other sections, in such a way that, where there is ambiguity in one section, the plain words of the Constitution, in another are not regarded as sufficient, and there is thus superimposed upon the Constitution a presumption in favour of the States. The effects of the application of this doctrine have been important and far-reaching. In Barger’s case the Court said, in effect -
It is clear that this Act is regulation of conditions of labour, which we hold to be reserved to the State. The only enumerated power of the Commonwealth which it can possibly come within is taxation ; and it is not clear that it comes within taxation. Therefore the reserve power prevails.
It is in this way that the limitation in paragraph 1 of section 51 has been used in interpreting the scope of the powers. The effect of this doctrine of limitation is that, while the words “ among the States “ remain in paragraph 1, read in conjunction with section 107, the Court has now laid it down, as a test to be applied to all legislation by this Parliament, that, unless there is set forth in the enumerated powers, clearly and unequivocally, a power in the Commonwealth which invades State power, this reservation in favour of the States shall prevail. I have already pointed out how this applied to the Trade Marks case. There, it was held that, although power to make laws in respect to trade marks is an enumerated power, yet the reservation in favour of the States applied, and it was held that we have no power to make laws in respect to trade marks.
In short, while the words of limitation remain in paragraph 1 of section 51, our power to make laws in respect to many matters included in the enumerated powers is in grave doubt. For instance, it did appear, and Parliament considered it was so, that we had power under paragraph xx. to make laws in respect to corporations, but the High Court applied this doctrine of limitation of powers, and decided that the law made in respect to corporations was ultra vires. In view of this doctrine that the Court has enunciated and developed, it certainly appears that nothing short of full and unlimited power in any subject-matter will suffice for the purposes of this Commonwealth. And in particular is this true in regard to sub-section 1 of section 51, relating to trade and commerce. It is said that this means a violation of the Federal pact. On the contrary, it is in distinct harmony with it. Let me explain what I conceive to be the true spirit of Federal government. In the distribution of powers two things are necessary - first, that those powers that are national in their scope shall be allotted to the Federal Government; and secondly, that, in regard to those powers that are allotted, there shall be no division in the subject-matter : that the powers allotted are to be allotted as a whole. Divided legislative authority over one subjectmatter is the cause of endless litigation, ambiguity, confusion, and weakness. If we are to have Federal government, and still retain the reality of democratic government - that is to say, if this Parliament is to make laws to carry out the people’s constitutionally expressed will, and those laws are to be something more than wastepaper, this principle must be observed. One of the most potent causes of ambiguity is, as I have said, the division of the subject-matter in paragraph 1 through the words “ among the States.” Where there is as in the case of trade and commerce, divided power to make laws in respect to a matter which, in its very nature is national - in its very nature territorial, in its real essence international - endless confusion and litigation must result. The present position is, as I have said, that this Parliament has power to make laws in respect to commerce with foreign countries and among the States, and that the States have power to make laws in respect to commerce within the States. Now, commerce is. a subject which is impossible, logically and scientifically, to divide; and the words “ among the States “ draw an arbitrary and illogical boundary line right across this subject. Where does the Federal power over trade and commerce begin, and where does it end ? When is a person or thing under Federal power, and when is he or it under State power? Inter-State commerce begins when goods are in transit, or placed ready for transit, and it continues until the goods are merged in the goods of the State. But when do goods start and when are they merged into the goods of a State ? The American cases tell us that no one can precisely say. From the day of Brown v. Maryland down to this hour, the Courts have been engaged in making exceptions, and exceptions on exceptions. The honorable member for Flinders, when this matter was last before us, dealt at some length with the futility, the confusion, and the endless litigation that have followed all attempts of the Courts to draw a line of demarcation between Inter-State and IntraState commerce ; and, in the course of his remarks, he said -
These would sometimes even make a lawyer’s head reel with confusion in the endeavour to follow the intricacies to which the Courts are reduced in trying to divide what is really and substantially an individual whole - to divide the commerce of the community into parts, and to say that one part shall be under the Government of one Parliament and another part under another Parliament. Commerce is really an organic whole, and an organic whole of continually increasing complexity. . . . For that reason, personally, I am unable to see at present any half-way house between the extremely artificial restrictions in the Constitution upon our power with regard to commerce, and the proposal made in this Bill that we should have complete power over trade and commerce.
In Ripley on Trusts, Pools and Corporations, a standard work which deals with some phases of trade and commerce as controlled by large corporations, we are told on page 27 of the introduction -
As commerce becomes ever wider in its range, so must legislation proceed from a source of authority equally great and comprehensive. A delegation of greater powers to the_ States from central government would only increase the present complexity of the situation. “Connected with this divided power there are endless unprofitable avenues which may be followed in an attempt to make divisible that which is indivisible, and to draw out a logical and permanent boundary line where none can. be drawn.
All have failed, and must fail. The complexities of the case are about infinite. In’ Johnson v. the Pacific Railways, it has been held that the rules in relation to Inter-State commerce do not apply, to the instruments of commerce; that is to say, they do not apply to the railway trucks, cars, or other vehicles, so that the law that applies to the package does not apply to the vehicle in which the package is. Whether the package is under Federal law or State law depends on circumstances ;. during transit a package may be underFederal law, and then again under State law. The Kalibia case turned on thequestion whether there were Inter-State or State packages aboard the ship. It is asirrational and illogical to attempt to divide trade and commerce in this way as it would be to divide State and Inter-State postal matters. If I send a letter from here tr> Sydney, or to Ballarat, or to North. Queensland, the same post-office takeseach and all of them. On the otherhand, if I send a package of merchandise to Ballarat, it is under one law y and if I send it to some place in New. South Wales via Ballarat it is under another law. If the package is sent in a. vehicle, or, say, a ship, apparently the: law does not apply to the vehicle or ship asan instrument of commerce in the same way as it applies to the packages or goods, on the vehicle or ship. When it isconsidered that there are in the world to-day men engaged in the game of. commerce, who are ready to avail themselves of the protection of the Federal’ law when it suits them, and of the Statelaw when it suits them - ready to evade the Federal law when it suits them, or the State law when it suits them - we see how helpless the community is.. Traders desirous of carrying on their business effectively in expeditious and economical fashion find themselves baffled and confused by this division and confusion of laws. While the Commonwealth has nopower to deal with Intra-State commerce, its power to deal with Inter-State commerce is emasculated and for all practical purposes useless. . This ought not tobe so. Nor would it if the subject were wholly within the power of the Commonwealth. There is no reason why this subject should be divided any more than there is why Customs or insolvency or defence should be divided. It would be just asrational to say that there should be a separate Post Office in each State, and that each State should do its own Inter-State postal business, or that there should be a separateCustoms House in each State - as was the case before Federation - as it is to provide that each State shall control its own> Intra-State commerce. Commerce is a>. matter which, in its very nature, cannot be dealt with in sections. All efforts to so treat it have resulted in hopeless confusion’. As things are at present the States cannot deal effectively with it, nor can we. Surely the Constitution ought to be amended so that we can do so.
Another aspect of the matter has to be considered. In the United States, owing to the difficulty of amending the Constitution - labouring as the people of that country have done for over a century under a rigid Constitution, and the effects of an illogical division of powers - the interpretation, of the Constitution by the Judiciary has alone saved the situation. But this is not democratic government. It is not too much to say that the Judiciary has legislated, and still legislates, for the United States. Legislation by the Judiciary is, no doubt, better than revolution. It is certainly a more peaceful way of effecting that which obviously must te done. It is, however, most undesirable that resort should be had to that method, for it is quite incompatible with Democratic Government. The business of the Judiciary is to interpret the law. The business of the Legislature is to make the law. The Legislature of this country is supposed to make the law, and the Courts are supposed to interpret it. In the United States, the Judiciary have not been satisfied with that. They have exercised their powers of interpretation to meet the growing requirements of the Republic until, in effect, they have made entirely different laws from those originally enacted. That that should happen is, I take it, entirely opposed to democratic principles. The rigid Constitution of the United States, defying amendment, has made it inevitable that the Courts should endeavour to remedy the consequences of the illogical division of powers between the States and Federal Governments.
Here the case is different. The same illogical allotment and division of powers exists, but the means of amending the Constitution are relatively easy. Why not use them ? It is time we did so. The present Government has done some very useful work. It has passed many excellent laws to protect the interests and to promote the welfare of the people. But it has failed owing to the limited powers of the Constitution to do what it thinks ought to be done. It has not attempted to do that which is impossible. It has preferred to follow this course rather than introduce measures beyond the scope of the Com monwealth powers. Since the establishment of Federation many statutes have been declared to be unconstitutional. This Government has been accused very many times of introducing legislation which it knew perfectly well was unconstitutional. Now, the present Government has been in office some two years and nine months ; and, as a matter of fact, it has not yet introduced a measure which has been declared to be unconstitutional. I think that fact requires particular emphasis in view of the charge so very frequently made that much of our legislation was unconstitutional. One may be permitted to say that in any case such a charge comes very badly from those whose legislation has been declared in a wholesale fashion to be unconstitutional .
This Government has, in this matter, always taken the only straightforward course. When we found that Parliament could not pass laws which were considered to be necessary and proper for the benefit pf the people, we laid the position frankly before the electors, and gave them an opportunity of amending the Constitution. The Government again takes up that position. They do so in preference to introducing legislation that would only be legislation in name. I repeat that we have deliberately refrained from introducing measures on the principle of being prepared “to chance it.” An unanimous chorus from the legal authorities on the other side declared the Land Tax Act, the Arbitration Act Amendment Act, the Royal Commissions Act, the Maternity Allowance Act, the Electoral Act, in relation to signed articles, unconstitutional. But I am glad to say the High Court has declared every one of them to be quite constitutional.
This is the legislative position of the Commonwealth. I come now to the facts to which this legislative impotence in particular applies. I have shown that this country has progressed very greatly. I am unable to supply the House with information as to the amount of capital invested in corporations in Australia. I have made diligent inquiries, but the Government Statistician has informed me that there is no reliable information to be obtained either in his office, or from the offices of any of the States Statisticians, or from any registrar of companies throughout Australia. Although there are now in this country hundreds - I suppose, in the aggregate, thousands - of companies, in which millions of capital are invested, it is impossible to find out anything definite about them. I have before me a record, such as it is, of information supplied to me. It shows that in New South Wales there are 3,063 limited liability companies, having a nominal capital of .£106,81 7,874. There are also 545 no liability companies, with a nominal capital of ,£6,702,474. Many of those companies are defunct. But it is impossible to tell which are living and which are dead. In Victoria there are 1,627 registered companies, but no information as to their capital is available. In South Australia there are 3,r33 registered companies, but as to their capital no information is available. In Western Australia, Queensland, and Tasmania the record shows that no information is available. Assuming that the figures as to New South Wales, where ,£106,000,000 of nominal capital is invested in limited liability companies, can be taken as the basis of a calculation for the . whole Commonwealth, there is not less than £300,000,000 of capital invested in public companies in Australia. But the people of Australia know practically nothing about the operations of the corporations controlling this colossal sum of money, and they cannot get to know, for they are for practical purposes outside the domain of law. I have had compiled information concerning about 300 public companies which are quoted in the share lists. I have omitted ali the banking and insurance companies, as well as the foreign companies, such as rubber companies. The aggregate shows a paid-up capital of ,£41,29^000. Those figures relate to companies whose shares are quoted in the newspapers every day, omitting, as I have said, the banking and insurance companies, because the Commonwealth has power to make laws in respect to them. The companies whose paid-up capital aggregates £41,000,000 must represent only a part of the capital invested in corporations throughout Australia. As things are, we know nothing at all about them.
In regard to manufacture, the statistics are as follow: - The value of the total output for 1911 was £i33,i36>000 > the amount of wages paid was £27,531,000; the value of the materials used was £^79,076,000. The margin to provide for rent, maintenance charges, depreciation, interest on capital, bad debts, insurance of all kinds, miscellaneous expenses and profits was ,£23,775,000. We do not know very much about these enterprises either. The fact remains that, in regard to the overwhelmingly greater portion of capital invested in trade and commerce and industries throughout Australia, we have absolutely no official facts at our disposal. We do not know where we are. The difficulty of obtaining information is very great. It is not lessened by asking questions. Any attempt to obtain information is futile. When my colleague, the Minister of Trade and Customs, sent out circulars to the various manufacturers of Australia, who were urging an amendment of the Tariff, asking them for confidential information, I do not think’ that 5 per cent, of them gave the particulars required. They say, “ We will not give- information.”
Recently a number of Royal Commissions have been appointed in Australia to make inquiries into the cost of living. We have had Food Commissions in Sydney and in New Zealand ; we have had the Sugar Commission; we have had the Fruit Commission. The almost uniform result has been that those having information at their disposal that was of value to the public declined to make that information available. I do not say that this is universally true ; I say that it is generally true. In presenting the facts relating to the power, wealth, and profits of corporations, and the extent to which they affect the lives and menace the welfare of the people of Australia, this point must be borne in mindWe have to feel for the facts in the dark. Naturally, this prevents us getting very many- But we have got some. And theseare, I think, sufficient to at least make our case. They will, at all events, make people think pretty hard. When I am charged, as I shall be, no doubt, with not being able to support by precise details every contention, my reply is that it is impossible that these details should besupplied. The evidence cannot be obtained under the present state of the law.
It is becoming an aphorism that the reign of competition throughout the world is dead or dying. The industrial world today is no longer a world of struggling and competing units. It is fast massing itself in great battalions, so that on one hand’ we have a great aggregation of capital controlling, by the mere raising of its finger, so to speak, not merely the destiny of a town, a city, or even a continent, but the whole world. I shall show by the mostindubitable evidence that this great Commonwealth, as a humble suppliant for itsown requirements in connexion with the transcontinental railway, was, by the great Steel Trust, “held up “ as surely as Ned?
Kelly “ held up “ his victims. They hanged Ned Kelly; but the Steel Trust: that cannot be- so easily disposed of. This domination by the trusts is worldwide. I do not pretend for one moment that it is as bad here as in America; but I shall show that it is here, and I hope that we shall not be so foolish as to wait until it becomes so bad that we can do nothing with it
In America, the American Steel Trust has a capital of £300,000,000. It controls 95 per cent, of the crude steel exports of the country, and sells much cheaper abroad than at home - Collier’s Weekly, of New York, 21st September, 1912.
– Is the capital of the trust $300,000,000 or £300,000,000?
– Pounds. Then, again, the Standard Oil Trust controls 86 per cent, of the oil trade of the United States of America. Its domination, however, is by no means confined to the United States ; it extends all over the civilized world. It shares with one or two great corporations - the Russian and one or two others - the domination of the whole world. These great combines fight for their own hand, like great nations, and, when fighting becomes unprofitable, delimit the earth’s surface and the earth’s trade amongst themselves as world conquerers. What are the great Powers saying in this Balkan war? They say to each other and to the Balkan States, “ You shall have this, and we shall have that ; you shall not have that port, and we shall have this city.” As the result of that bloody war they are going to share up the conquered territory. The people of the country may approve or not. It does not matter. And so likewise do the trusts act. They say to each other, “ You shall have America, and we shall have Europe and Africa,” and so forth. Are the people of Europe, America, or Australia consulted ? No ! If Australia is allotted to Rockefeller, it is for us meekly to buy from him, and to buy at his price. He is our economic overlord.
There is a Harvester Trust, a Sugar Trust, and trusts almost ad lib in America. I will deal with only one more - the Beef Trust. A gentleman named Malkow came here recently and told us that it did not exist. He declared that there was no Beef Trust; that, after a lengthy trial, a jury of his fellow-countrymen had declared that there was no Beef Trust. I said at the time that such a jury was worth its weight in gold. But the Americans be lieve there is a Beef Trust. They have good cause to do so. Charles Edward Russell in The Greatest Trust in the World, page 1, writes -
In the Free Republic of the United States of America is a power greater than the government, greater than the courts or judges, greater than legislatures, superior to and independent of all authority of State or nation. Three times a day this power comes to the table of every household in America, rich or poor, great or small, known or unknown; it. comes there and extorts its tribute. … It defies. Wall-street and all that therein is. It terrorises great railroad corporations long used to terrorizing others. It takes toll from big and little, it gouges millions from railroad companies, and cent, pieces from obscure shippers. … It fixes the price that the grower of California shall receive for his fruit, and the price the labourer of New ‘York shall pay for his breakfast. … It can affect the cost of living in Aberdeen and Geneva as easily as in Chicago and New York. This may be well called the “ Greatest Trust in the World.” Who shall set limits to its power? But after all it is only one amongst many.
According to the American Banker and Leslie’s Weekly of 1910, the capital invested in 1,198 combines aggregates at least £2,600,000,000. That is the declared capital, not the assets or the hidden assets. In addition, there is a £3,000,000,000 monopoly of these monopolies in finance. No wonder the American Courts are powerless to deal with such gigantic powers. No wonder the American people are unable to free themselves from their clutches. The law is powerless. There are now 4,000 disputes before the Inter-State Commission - a fact that I commend to my honorable friends opposite. Those disputes have been before the Commission for some time, and they are likely to remain there.
A word in regard to Combines and Labour. Combines make for economy in production, and, as frequently as do individuals, they treat their employes well. All, however, do not, and here is one of them : The Steel Trust of America employs over 200,000 persons. Thirty-four thousand of its employes receive less than 8d. per hour; two-thirds of its employes get 8d. per hour or less ; over 50 per cent, work a twelve-hour day, and until 19 1 1 they worked for seven days a week. That is how the great Steel Trust of America treats its employes. It does not stand alone in this respect. But let us turn elsewhere.
I come now to Germany. Mr. W. H. Dawson, in The Evolution of Modern Germany, writes as follows at page 170 - “Never before” wrote the Austrian Consul in Berlin to his Government in 1906 “was economic
Germany so entirely under the absolute rule of a group of men, barely fifty in number ; in no former period of industrial expansion was the old formula of ‘ the free-play of forces ‘ abandoned to such a degree as in 1906, when the momentous decisions as to the extent of production, sales abroad, prices, the granting of credit, the raising of new capital, and the fixing of wages and rates of interest lay in the bands of a few persons found at the head of the large banks, mammoth industrial undertakings and great cartells. The lion’s share of the industrial boom has fallen to these great combinations of interests, whose gains have been the larger the more their industries were ruled by syndicates.”
That was the position of Germany in 1906 ; the condition to-day is worse. The power of the trusts in Germany is shown by a speech delivered in the Reichstag by a National Liberal deputy, who stated, as recorded by Dawson, page 202 -
The head of the Coal Syndicate possesses today far greater political power than the Minister of Commerce.
Leading economists like Wagner and Schmoller are now advocating the nationalization of the coal-mines. Mr. Dawson says, “ All parties save one in the Diet would favour the immediate adoption of such a measure.” That is the extent to which syndicates, legalized in Germany, have compelled all sorts and conditions cif men, holding the most diverse political views, to advocate nationalization as the only remedy for this great evil. We may learn a salutary lesson here. Once these great corporations reach a certain stage of development, then, no matter the form of government, that government can be only a sham. The government no longer rests in the Reichstag, the House of Commons or Congress. It sits in Wall-street, or wherever these men meet. The only chance that democratic nations have to deal with trusts and combines is whilst yet the power to control them lies in the hands of the people. That is, whilst the trusts are comparatively weak. The Steel Trust of Germany has a capital of ^60,000,000, and controls 95 per cent, of the steel trade ; the Coal Trust controls the larger portion of the .coal, and dominates the coal trade. Be sure that its domination does not end here. It dominates the destines of all Germany too.
Great Britain has, perhaps, fewer trusts than elsewhere. But they are there. Coates’ Thread Trust has a capital of nearly ^11,000,000. The Iron and Steel Trust has a capital of ^45, 000,000. And there are very many others.
We might extend our view over the whole civilized world, and proceed in greater detail to consider these ; but it will be sufficient to have quoted typical cases which can be multiplied almost indefinitely. The facts show in the clearest possible way that trusts and combines today dominate the industrial conditions in nearly every civilized country. 1 come now to Australia. It was said just after, and at the time when our proposals were last before the people, that there were no trusts in Australia. There were paeans of joy indulged in by speakers and the press to the effect that, thank God, we were not as other countries ; that there were no trusts here. After the referendum, however, even the most hardened of these joyful singers were compelled to admit that there were, perhaps, one or two trusts, and wanted to know what we were going to do about them. In the next campaign, I hardly think we shall hear the cry that there are “ No Trusts in Australia,” whatever else we have to deal with. The trusts are here, and they are here for some other purpose than the benefit of the people. We have heard lately a good deal about the American Beef Trust getting a foothold in Australia. Mr. J. McWhae and Mr. W. S. Manifold - two gentlemen who cannot, by the most violent twisting of language, be termed allies of this party, and speaking in a place whose associations are hallowed by utterances of quite a different kind - in the Legislative Council of Victoria declared most positively that the danger from the American Beef Trust was imminent. Mr. McWhae gave a number of facts dealing with the Beef Trust, and Mr. Manifold was not less emphatic. It is an admitted fact that the Beef Trust has been negotiating with certain persons in this country with the view to carrying on operations here. If so, the outlook is serious. For if the Beef Trust means business, it will get down to work in short, order. In giving evidence before the Empire Trade Commission, in London, on the 14th November, Mr. Goodsir, representing Messrs. W. Weddell and Company, meat and produce importers of that city, said -
As the Beef Trust commanded ^15,000,000 there was nothing to prevent its success in Australia if it desired to buy up the meat interests there.
That wants emphasis. I think that the position there laid down is unassailable. If this Trust has that money, and this country is worth exploiting, it can be exploited, and no power that is in existence to-day, can stop it. It is admitted that the agent for
Swift’s has bought a site on the Brisbane River for the erection of meat preserving works. It is admitted by Mr. Malkow that it was bought in the name of some clerks and other employes of a firm of solicitors, but that the men who found the money were Swift and Company. It is admitted that the firm is one of the principals in the great Beef Trust. That the Beef Trust operates in America no one can deny. That it operates in Great Britain is clear, and none denies that it does. That it controls the Argentine is also undenied. That it has taken up a position here is undenied. That it has spent some hundreds of thousands of pounds is undenied. That it has entered into negotiations is undenied. That some of these have been fruitless is alleged. Whether they have all been fruitless I do not know. But while they will tell us of those negotiations which have been fruitless, it is not in the least degree probable that they would tell us of those which have not been fruitless. We may take it, therefore, that the Beef Trust of America is here, and trying to get control. What.are we going to do about it? Now let us go on to the local trusts.
It is alleged that there is an Australian Meat Ring here. Whether there is or not I do not know. There is evidence both ways. Mr. George Maiden, of New South Wales, giving evidence before a Royal Commission on the 22nd August, j 912, said there were “ nc combines at Homebush.” Mr. A. Smith, of the Victorian. Master Butchers’ Association, said, in the Age of 22nd September, he was -
Very much surprised at the suggestion that there was some sort of combination to raise the price of meat.
Mr. W. P. Shaw, managing director of the Gladstone Meat Works Limited, Queensland, said, on the 24th September -
To the best of my knowledge and belief there is no (buying) understanding between any of the exporters in Queensland.
Mr. John Cooke, of Victoria, made this statement on the nth September -
There is not, and never has been, a combination of meat exporters in Australia. They have no understanding whatever.
Mr. W. C. Angliss told the Legislative Council of Victoria, on the 21st September, that-
There were no (meat) trusts in Victoria, and he thought the same applied to the neighbouring States. . . . There was no trust in connexion with the meat trade here. . There was no monopoly.
Mr. Frank Connor, M.L.C., of Western Australia, is reported by the Sydney Morning Herald of the 14th October to have made this statement-
There is no monopoly, and there is no ring - no meat ring.
On the 19th April that newspaper reports that Mr. W. A. Grubb, butcher, of Sydney, had said tEat there is no “ ring in the trade.” The Sydney Daily Telegraph of the nth May reports Mr. A. Agnew, butcher, of Sydney, as having said -
There was not any arrangement between the different firms to fix the rates to be charged for beef each day.
The Sydney Morning Herald of the 13th August says that Mr. R. Ferguson, of Victoria, in giving evidence before the Food Commission, said -
I flatly contradict the statement that there was a monopoly or combine in the meat trade in Melbourne.
But Mr. David Fell. M.L.A., of New South Wales, said before the Food Supply Commission at Sydney on the 12th April -
There are certain dealers in meat in Victoria who are able to control to a great extent the price of fat cattle, in connexion with the local and oversea markets particularly, in Australasia.
He added that he was unable to give information publicly, as the firm through whom he had obtained particulars pro:fessionally refused to authorize him to give the information asked for by the Commission. The Sydney Daily Telegraph of the 8th May published an article on the Western Australian Meat Ring, based on a report by Mr. W. D. .Evans,’ Town Clerk, of Fremantle, and headed “ Bovine Buccaneers.” According to the Sydney Daily Telegraph of 7th June, Mr. R. Ryan, retail butcher, of Balmain, told the Commission that there was -
No competition amongst Sydnev carcass butchers except with the Colonial Meat Company.
The Age, of the 19th July, published the following evidence by Mr. Rogers, M.L.A., of Victoria -
There is a meat combine in Victoria. . . . The three largest meat exporters in Victoria have been mentioned as the directors of a new company that was starting operations in the Riverina district.
Mr. Sidney Kidman, of Queensland, is reported in the Sydney Daily Telegraph.. of the nth September, as having said -
Three or four of the meat companies in Queensland fixed the price of cattle. . -. . Beef will not be cheap again.
The Argus, of the 18th September, states that Mr. A. J. Cotton, pastoralist, of Queensland, gave the following evidence to the Queensland Commission in relation to the meat industry -
It was the opinion of the pastoralists that the proprietors of the meat works came to an understanding before the season opened as to the price to be given.
According to the Age of the 24th September Mr. Sidney Kidman stated -
The meat companies in Queensland were forming a ring more than ever Swift’s or Malkow have been forming.
On the 21st September, Mr. W. J. Evans assured the Legislative Council of Victoria -
That we had combines in Victoria, and that the price of food, and particularly perishable food, was something that should be inquired into.
A little earlier in his speech he said there was - a gentlemanly understanding probably on similar lines to that of the Beef Trust.
In the Argus, of the 1st November, Mr. Graham, Minister for Agriculture in Victoria, says - i am watching the operations of the Beef
Ring in Melbourne. I suppose they have an honorable understanding.
These matters could be enlarged almost in definitely, but I leave it at that. The Sydney Daily Telegraph, of the 18th September, published a telegram, stating that the price of meat in Western Australia had been reduced as a result of State intervention. Referring to the price of meat in that State, Senator de Largie made this statement in the Senate on and October -
The squatter very seldom got more than £2 per head for his bullocks. If he obtained£3 per head he considered that he was receiving top price…. These beasts were sold at anything from £12 to £20 per head upon arrival at their port of destination. . . . The Labour Government purchased vessels and put them in the trade. . . . The result was that the price of meat was immediately reduced, notwithstanding that simultaneously over all other parts of the world it increased..
So much for meat. It is, I think, fair to assume that there is some sort of combination which regulates prices. That prices are fixed in other lines is certain. The facts prove it. I have here a list of articles, the prices of which are so fixed. I have taken only cases where public announcement of these facts has been made in the press. The list of articles covers a very wide field. I mention only a few of them. They are bread, boots, bricks, fish, fuel, leather, cattle, printing, sugar, coal, freight. The Food Commission declared that the Merchants’ Combine of New Zealand had fixed the prices of all things within their control. They declared that there was a Shipping Combine, and that the prices of freight were fixed; that prices were fixed by the sugar company, and that there was a monopoly in that regard. What I have been trying to show is that prices of commodities are now fixed by arrangement, and not by competition. Competition, if it exists at all, exists in the retail trade only. Over the greater part of the industrial and economic sphere competition does not exist in Australia. I propose now to deal at some length with facts which are indisputable. What I have already dealt with are statements which have been made in the press and elsewhere. I intend now to deal with facts proved in a Court of law or before a Commission.
– Order ! The honorable gentleman’s time has expired.
– I should like to have leave to continue.
– For how long - can you finish in ten minutes?
– May I have leave to continue, sir?
– Is it the pleasure of the House that the honorable gentleman have leave to continue his speech ?
– No; unless other members have the same privilege.
.- If the honorable member can finish his speech in ten minutes-
– Ask for an adjournment of the debate.
– No, I am going right on. But if the Attorney-General can finish in ten minutes or a quarter of an hour-
– I object.
– Can the honorable member finish in a quarter of an hour?
– The standing order ! No.
– The Attorney-General was perfectly within his rights, not only in dealing with the subject of the Bill, but also in treating generally, and in many cases particularly, matters dealt with in other measures which will shortly be before the House. I take no exception to that, though sorry that the Attorney-General, being aware of the limitation imposed on all of us by the new standing order, did not bring the real issues of this first measure within the scope of his time, or some reasonable extension of it.
We, the Opposition, are placed in a position of difficulty and disadvantage by a time limit, appropriate where ordinary legislation is concerned, but foreign and indefensible in regard to this most vital class of national questions. Amendments of the Constitution ought not to be met with an artificial restriction on legitimate discussion. But grave as 1 regard this breach of parliamentary principle, the fact that the limitation exists renders it necessary for me to pass at once to other matters.
I do not propose to touch on the great problems to which the AttorneyGeneral alluded when citing instances^ of trusts or alleged trusts, increasing prices and exercising tyrannous control over business operations. He and honorable members opposite have had the best evidence that on this side our feeling is unanimous that every encroachment upon the rights of the public should be resisted to the last, and that power should be taken to enable the people to protect itself from the inroads of foreign or local combinations tending to impose unfair prices. In regard to that we here are all agreed, and ready to discuss the means when the measure dealing with it is before us. But though some trusts are obviously injurious, and many of them very injurious, I can easily foresee, indeed we have already been compelled to realize, some prospects of Commonwealth nationalization which would be still more dangerous and deadly. In considering this question we have to take care that we do not create even greater difficulties than those that now exist, and do not bind ourselves to a chariot even more ruthlessly driven, by consenting to the transfer of operations to appointees of a central Government, or those associated! directly or indirectly with the Government.
The Attorney-General put his general case, as he invariably does, with force, plentiful illustration, and the careful marshalling of all facts telling, or appearing to tell, in his favour. But let those who read his speech observe the total absence of definitions, and, consequently, the_ possibility of his remarks being used in a great variety of ways with his authority, without the imposition of the necessary qualifications, or the grave considerations attaching to them. He referred to ours as a weak form of government. What he evidently meant was that our central government is weak in his opinion. He said later that nothing could be effective that was not dope by the central Government; again, dealing with special issues, that they could not be dealt with either by the Commonwealth or by the States. He did not add the necessary and obvious reply that they can be dealt with by the Commonwealth and the States., And so may everything else. The whole range and realm of our powers comes within the scope of our two sets of Governments, in whose joint action will be found the solution of practically all the difficulties with which we are confronted. I admit that it has not been an easy task for the Commonwealth to work with the States, but they have sometimes been approached in a manner sufficient to justify a good deal of suspicion. Their counter propositions, too, instead of being made a basis for a proper understanding, have sometimes been received in a narrow spirit not calculated to secure their co-operation.
If time permitted, I would endeavour to show that most of the assertions made by the Attorney-General, being ex parte and one-sided, require a translation of their terms, and also to be taken with certain qualifications not made by him. They are ambiguous and misleading.
Before addressing myself more pertinently to the issue at hand, let me once more call attention to the fact that we are seriously handicapped by the application of the new time limit to our criticism of all these potent and far-reaching measures. This deprives the minority of its reasonable rights, and makes it evident that the majority in both Chambers does not rely sufficiently on its power to confute the smaller party opposed to it. True, we have already faced these cardinal and all-important questions. On the last occasion the amendments of the Constitution were handcuffed together, and sent to the country like a chain-gang. Yet, notwithstanding the endeavour to coerce the judgment of the electors, and prevent their free exercise of the suffrage, on which the whole structure of our parliamentary government rests, these were swept aside by the greatest majority ever polled in Australia. With that gigantic negative still ringing in our ears, notwithstanding the statements of the AttorneyGeneral and many of his associates that unless all the proposed amendments were accepted any of them would be useless, it being idle to select one and reject another, we have them again submitted, but, on this occasion, singly. So they should have been submitted in the first instance. If those former statements were true, the electors have it in their power to make these new amendments valueless bv rejecting them now they are independently submitted. We shall stand where we are if their assurances hold good.
The restriction on this discussion compels me to deal by allusion with many of the declarations which I should like to deal with by full quotation did time permit. Under the circumstances we must make the best of the curtailed opportunity to present some important aspects of the matter, though, perhaps, in rather disconnected fashion. We are accustomed to allusions to the errors of omission or commissions chargeable against this Parliament, which has existed for twelve years only. These are mentioned in the same breath with the determination by political experience of certain of these problems in the American Republic, which has existed for more than 100 years, and by other countries whose Constitutions are absolutely unlike ours, ls it reasonable to expect that over an enormous territory, wilh long divided and separated settlements, governed, until the adoption of the Federal Constitution, by State aims only, we should have created a public opinion educated upon great political and national issues, such as in other countries it has taken more decades to create than have passed since Australia was endowed with self-government? Ought we not to find the greatest encouragement in the fact that, notwithstanding this and many other disabilities, which I cannot stop to detail, there is in every part of the continent a more and more distinct manifestation of loyalty to Australia as a whole, a sense of a profound community of interest, and a resolution gradually to apply to our problems in harmony, and by wise provision, the system of government we already possess. We can then reap the best fruits from the local Legislatures now existing, or that may hereafter exist, and at the same time obtain the truly effective action of the Commonwealth within a truly national sphere. Our position to-day is more hopeful than ever before. This is not a time when the jeremiads of our pessimistic critics will find attentive listeners among those who have gone from place to place in Australia, and have put themselves into communication with the people themselves.
Every one of the proposals before us calls for careful scrutiny on its merits, and requires to be studied in its relation to the whole Constitution. We have here a repetition of the Caucus cry with which the last campaign in the country was identified, when my honorable friends took the platform, not in the comparatively moderate and reasonable mood in which the At- torney-General broached the issue to-day, but with the curt dictation to the elector’s, “Gape, sinners, and swallow.” That was resented, and now, too late, my honorable friends find that it is necessary to take the advice which the Opposition tendered, and endeavoured to force on them, the separation of these questions, so that each may be dealt with on its own merits. The submission of the whole six together was one of the most dictatorial acts of despotism ever witnessed in a self-governing country. Even now, dealt with separately, they are too many to be properly submitted at one time.
I have no fear of a referendum if proper opportunities are given for placing each question before the electors. But, notwithstanding the work done during the last campaign, whose difficulties arose almost wholly from the lack of experience, or research) of sections of the audiences addressed, the task of dealing with six questions at once must prove onerous. It may be noted that these six proposals could, with great advantage, be grouped into three sets of two each. To get a fair answer from the people to a referendum, one question only, or two nearly associated, should be put at each poll. There should not be, as in this case, a throng of proposals pointing in all directions, like the spokes of a wheel . It is also an unfortunate circumstance that this referendum is to be taken at the time of the general election, when there will be a party struggle, and the fate of the Ministry will be at stake. The Administration should be judged apart from the new Constitutional alterations that it submits. It is more than can be expected from human nature to believe that a considerable portion of the electors will not be led away from the expression of their independent judgment upon national questions, owing to the party feeling kindled by a desire to be loyal to those with whom they agree on other questions. With, the hands of the clock moving on, I find myself leaping from the point with the suggestion that constitutional changes under all circumstances should be made calmly,, thoughtfully, deliberately, and with surroundings which permit and encourage an absolutely impartial vote.
The crux of the whole question involved is the preservation of the Federal Constitution. The Attorney-General did not tell us so in plain terms, and yet he did tell us so at every stage of his argument that his proposals are absolutely irreconcilable with the true Federal system of government. His propositions require our ac- ceptance of a new form of government differing entirely from the Federal ideal we originally set ourselves - which we are stil 1 endeavouring to attain. Their merit, as he argued them, was due to the effectiveness - and in some cases the immediate effectivenessof the very sweeping propositions which he commended to our consideration. They are well worthy of consideration, but each of them implies, as a first consideration, an abrogation of the Federal system of government as we know it, and the adoption of an unitary system. If the country desires that, the country will obtain it, and it will have every right to obtain it. But that issue should be argued specifically on its own merits.
These questions, too, should not be submitted without a plain explanation of what is obvious behind them. Undoubtedly, if they are accepted the Federal character of our Constitution will be absolutely gone. The Attorney-General did not touch on that transcendent issue. He either ignored pr brushed it aside whenever it presented the slightest impediment to his line of argument. It may be said that he alluded to Federal systems of government. He did. He bracketed together the heterogeneous collection usually cited. Now, I doubt if there is another Constitution in the world as truly Federal in spirit, and in the greater part of its form, as is the Federal Constitution of Australia. It should not be forgotten that, whilst the word “Federal “ never appears in the United States Constitution - which is somewhat significant -and while it occurs once only in the Canadian Constitution, it recurs no less than fifteen times in our Constitution. Of this I had occasion to remind honorable members during the previous debate upon these questions.
Fifteen times our Charter has had impressed upon it our ideal, the cooperation of six State Governments with one central Government, to which should be transferred the care of all national affairs. That ideal we have more or less consistently pursued up to the present time. But every proposition which is now before ns is one for the annexation by the central Government of powers which are at present exercised by the State Governments. These proposals are submitted without qualifications worth speaking of, and without any attempt to commend them by balancing proposals on any other side. In sheer destructiveness they simply aim at sweeping away in six directions the Federal powers of our Constitution.
When the Attorney-General told, the people of New South Wales last year that it was impossible to abate one word of the proposed amendments of the Constitution, he was met with a chorus of critical contradiction. But one of the most significant contradictions came from a former associate and colleague - a very distinguished Minister in New South Wales - Mr Holman, who quoted Mr. Hughes as having said -
He could not bring the Labour platform into effect .with any smaller measures than those submitted.
Thereupon Mr. Holman replied -
I told him to his teeth as a lawyer that that was absolutely wrong.
Here, then, we have a confession that the proposals submitted at the last referenda were absolutely anti-Federal, going far beyond the immediate purposes which they were intended to serve. The AttorneyGeneral has been told that from other platforms, but coming from such a source as Mr. Holman it was, and is still, a very remarkable testimony. The same statement is true to-day, whether or not Mr. Holman continues to make it. lt is a perfectly true presentment of the position. One notices, too, that Mr. Beeby, another leading Labour representative of New South Wales, openly resisted proposals which went “more than half way to Unification.”
While the Attorney-General, on more than one occasion, has made statements insisting upon the impossibility of diminishing the demands which he has again submitted, yet at the Labour Conference held in August, 1911, he agreed to modify them. Now he is insisting once more upon full powers, although at that Conference he agreed to temper the severity of his demands considerably if a party necessity arose. Why not now?
Federalists have to face a constant difficulty, inasmuch as when we complain of the inroads attempted upon our Constitution we are faced with the often conflicting opinions entertained as to what a Federal Government really is, and ought to be. I am not able to spare time to discuss the customary classical definitions. But in a Federal Constitution, in my judgment, will be found the future form of civilized government. Larger and larger areas are being drawn together, more and more millions of citizens are being brought under a single sway. More and more it becomes evident that they cannot be legislated for in each instance without consideration for their special and peculiar surroundings - for the temperaments of their people and their individual aims, so as to entitle them to the largest possible measure of self-government in all circumstances. The ideal of such a system under which the several States would be active, vigilant, independent, and yet loyal to the Central Government, is the highest political ideal that can be held up to the constituents of any country. That is the ideal which won the Australian people in the first instance, and which they seek to realize as far as it is possible to do so. But the proposals outlined by the Attorney-General constitute a movement absolutely the reverse. He proposes that we should turn our backs on the possibilities of the Federal system-, making our way to a hard and fast unitary government, which will repel as much as the Federal form attracts - a system that will permit of mass majorities dictating the policies and fortunes of minorities, which, in the future, may number millions. I submit that if we once throw away our priceless possession of a truly Federal system capable of almost endless development, it may be long before our posterity can recover it.
– Let us have Home Rule.
– Home Rule, in its essence, is Federal. That system develops Home Rule to the fullest extent. It is not everything that is called Home Rule any more than everything which is called Federal that deserves this name. The percentage of mistakes or failures which have occurred in the Commonwealth does not tell against the ideal Federal system of government in any way except as a warning that among these extreme proposals, probably our only security lies in a more loyal allegiance to the Federal principle. Honorable members opposite may depart from that principle in the hope of effecting immediate gains, they may wish to sweep the country, hoping to get rid of an obstinate Opposition, but if they succeed, even in part, in their plan they will sacrifice something of Federation. So, piece by piece, our Federal system of government will go, until the whole of it disappears. A true Federal Constitution, well organized and delicately balanced, provides for fostering in practice the political judgment of every one of its citizens, to cultivate his criticism, paying due regard to his needs. That is only possible under a Federal form of government bringing the whole of the people into touch with the agencies that most directly affect its own destinies, national andlocal. With that ideal before us we may realize that any trials we have suffered, and any mistakes we have made, are part of the price which has to be paid if we seek to develop the conscience and judgment of the whole nation in managing its affairs by a series of elective agencies, each adapted to the sphere in which its particular work has to be done.
But I must hasten on, merely alluding for a moment to a quotation employed by the honorable member for Swan during the debate upon the last referenda proposals of the Government. It was taken from a high authority who, I am sure, ranks higher than ever with us, since he did us the honour to visit Australia a short time ago, delivering a series of speeches which, for breadth and suggestiveness, surpassed those delivered by previous visitors - the Right Hon. James Bryce. In a standard work he alludes to the Constitution of Australia as “ above any written Constitution in existence.” He says that it was already most developed - that its range of power was wider than that of the Constitution of the United States of America, of Switzerland, or of Canada - that it was technically an excellent piece of work and logically put together. He said, finally, that “ the nation looms largely over the whole instrument, overshadowing the States.” This proves the eminence of the national power in the Federal Constitution as it stands, and yet we are told by the Attorney-General that we are so weak that we need to transform the entire structure.
Look for one moment at section 51 of the Constitution, which it is proposed to amend drastically in six directions. That section includes thirtynine powers. Of these, twenty-seven are unlimited, and thirty-five practically unlimited, so slight is the restraint. There are only three with serious limitations. These are trade and commerce, corporations, and arbitration.
– They are the most important.
– These three limitationsof the Constitution are now challenged by the present Bills. Of course, if we add the control of labour and employment to the control of trade and commerce, as at present proposed, we make an end of the little that is left to the States in the Federal Constitution - all State powers are assailed, and may be destroyed. We are to have a new Constitution, under which the central Government will be unlimited in power, and the State Governments exercis ing some shreds of their present powers, until the Federal Parliament chooses to add those omitted powers to its store. This is, indeed, a pleasant prospect for what is now a Federal Commonwealth. It will then be limited in giving preference to any one State over another ; but, speaking broadly, it will not be limited in any other respect.
But the peril is that all the powers the States now exercise remaining nominally with them, they will be encouraged by. that fact, and required by their own necessities to legislate still under those powers, or what is left of them. In every such exercise of power, whenever they come into conflict with a Federal law, the latter will prevail ; and, consequently, the States’ authority will be temporary or nominal. Outside the particular line drawn around them by the amendments now submitted, the States will still retain the shadows of their former powers, though what those will be worth at any given date it will be hard to say. and what they will shrink to it is impossible to forecast. . This uncertainty will discourage State legislation, as the whole of the thirty-nine powers will be divided somewhere and somehow. In the particular Bill with which we are dealing, relating to trade and commerce, one must look outside section 51, because the trade and commerce power is buttressed by more than half-a-dozen sections in different parts of the Constitution affecting that particular power, and widening it in various important particulars. The assumption by the Federal Parliament of practically the whole legislative power under section 5/ as it is to be amended makes the untenable position in which the States will then be placed painfully clear. They must depend on the crumbs that fall from the rich man’s table, this implying, of course, the extinction of the States, as States, in a very short period of time.
– Is that why the honorable member advised South Africa to adopt those terms?
– I did not so advise South Africa.
– The suggestion went with the imprimatur of the honorable membet’s Government, and through his office.
– It went through my office, but it was neither drafted by me nor revised by me. At this distance of tune T shall not say it was read - I hope it was. If so that did not catch my eye. The first time my attention was directed to the phrase in the document I objected to it absolutely.
If we add “ labour and employment “ and “trade and commerce” to this Government these two items in themselves will cover something between four-fifths and nine-tenths of the whole range of powers at present available to the States. That is what is now being proposed. The trade and commerce over which the Federal Parliament has control is that with other countries and among the States. To-day the States have their definite sphere of trade and commerce within themselves, but tomorrow that goes too if these amendments are carried. Members who require to have their recollection refreshed as to the minor and major interests that will be transferred would do well to re-peruse the speech of the honorable member for Bendigo, who last year gave a catalogue, which has never been challenged, showing the number of channels of which the control will be lost to the States and given to the Commonwealth if these amendments are carried in their present form.
Australia will not emerge from this transaction any the richer; the total of the legislative powers of Australia will not be greater in any way, nor will its administrative or any other powers. All that will happen is that there will be another divide, and everything worth having will be taken by the central Government. It would be more fair and equitable if the position were plainly submitted to the people in that simple form. The public ought to be asked whether they are willing to retain a Federal Constitution which, a° their experience has already proved, is always open to amendment in any particular they choose as to rights, privileges, or powers. The public should be warned that they are now asked to alter that Constitution irrevocably and irretrievably by the submission of six propositions, which, amongst them, cover the whole of the useful range of legislation in every State. In some degree that was the position put to the country on the last occasion, and it met with a very natural response. All six should be rejected in their present terms. But for party attachment, and the potent influence exercised by organizations, no doubt there would have been a still greater secession from- the ranks of those who usually support the Caucus. What the electors of Australia will find if they accept these proposals will be the establishment of a monopoly of legisla- tion over the whole Commonwealth, that monopoly being vested in two Houses of Parliament which may again, as in the present case, be in the hands of one party.
– That is the honorable member’s trouble, and not the powers of the people !
– Under these circumstances, the control by the electors of the politics of Australia will be transferred to a number of bound members constituting a majority in both Houses. Behind them are strong forces, rallied for other motives, with other aims and principles, who accept these propositions, not for the reasons laid before us now, but for further constitutional transformations.
The magnitude of the transfer sought under the trade and commerce power may be better understood by a short quotation from a speech by the Attorney-General. He said -
The commerce power is essentially a national one, for it concerns vitally the welfare of every human being in the community. Those who control trade and commerce control those who have to live by it. That is to say, they control the whole community. . We should be- clothed in unambiguous words with the whole control of the trade and commerce power.
There is no Federalism here. This points to a despotism of the central Government of a central Legislature. It implies the power of one Parliament over a host of matters far better handled on the spot by Parliaments more intimately associated with them. The Attorney-General went on to add -
We shall then have power over all trade and all commerce, and there can be no mistakes, no clashing of rival jurisdictions, no uncertainty and no confusion.
That is a charming picture, but as I shall show, if time permits, it has no warrant in fact. The Attorney-General proceeded -
In the amendment now submitted” it will be noticed -
And this seems to be regarded as an admirable quality - it will be noticed that there is no attempt to define things - all the words that may be held to be words of limitation have been omitted. We ask for plenary power over trade and commerce. It means over trade and commerce wherever found, limited only by our territorial jurisdictions.
Limited only by the ends of the earth.
– If we need the power we need it wherever it requires to be exercised.
– Then the honorable gentleman commenced to undermine his own fabric when he went ‘on, rather incautiously, to say -
The delimitation of the powers of the States and those of the Commonwealth must be clearly denned.
For he also said at Hobart -
Any attempt to limit the trade and commerce powers will be fatal.
Of course, where it is unlimited to the Commonwealth it is overridden in all the States. He said with absolute truthfulness -
We are asking for tremendous powers.
– Where is that quotation from?
– From a letter which the honorable member sent to the Hobart Conference.
– I was not there.
– Here is the letter.
– If the letter says so it must be true.
– The Attorney-General added -
The States will retain their 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.
A moment ago I quoted the AttorneyGeneral as saying that the limitation must be clearly defined, and that there must be no clashing of rival jurisdictions and no uncertainty or confusion; and yet last year the Attorney-General agreed with my criticism^ of his statement when it was made in this House-
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.
– So that those powers which I said were tremendous, are not tremendous ?
– They are tremendous, but they are also tremendously indefinite. The consequence is that, if the Commonwealth obtains control over all trade and commerce there will be the constant, vexatious, expensive, and wasteful difficulty that, in each State, it will have to be determined from time to time how far Federal legislation has overridden any particular Act in any one of the six States in which such questions must arise perpetually. So far from there being “no clashing rival jurisdictions,” “no uncertainty,” and “ no confusion,” there will be endless uncertainty and endless confusion. Once we surrender these powers Court after Court will have to be asked to determine where the effective power of the Commonwealth ends and that of the State begins. The boundaries will alter with every alteration of any law in any of the six States. Again, last year the Attorney-General said -
One is not able to define the limits between State and Inter-State traffic and commerce.
We are not able to define them. The Commonwealth may legislate as much as it pleases; but it cannot define where its operations end, and the unhappy residents of the State cannot find out except by appeal after appeal to the Law Courts where theirs begin. With any alteration of any Federal Act the whole of the existing demarcation will be disturbed in favour of another demarcation to be drawn further on in the Law Courts at somebody else’s expense. The AttorneyGeneral frankly admits that every addition to the “ trade and commerce “ power of the Federal Government means a further limitation in all our States. That involves trial and expense to their unfortunate citizens.
Again, the Attorney-General confesses that we are unable to say where the corporation power ends and the trade and commerce power begins. What a promising zone we are entering into, in which we cannot learn where one’s power ends and where another’s begins ! What of the position of the tradesmen, the merchants the employers and their employe’s? They will be simply landed upon a quicksand, and left to struggle out, if they can, through the Courts at their own expense.
It occurred to me that possibly a few plain sentences on this question from one of the leading lawyers in Australia, Mr. Mitchell, K.C., might be quoted with advantage. Mr. Mitchell felt it to be his duty to put on record in public, during the last referendum campaign, his mature opinion. He’ said -
As regards the division of powers between the Commonwealth and the States, it is possible that more questions would arise under the amended sections than remain for decision on those for which they are to be substituted.
Pleasant position that for all concerned, and every one is, or will be, concerned.
But, however this may be, the number of such cases would be completely overshadowed by those that would arise for decision under section 109, namely, as to whether or not the laws of each of the States with respect to the vast number of matters that come within domestic “ trade and commerce “ were inconsistent with the laws which will be eventually passed on similar subjects under the amended “ trade and commerce “ section by the Federal Parliament.
There, in plain, legal language is put whatever I have already put colloquially. Further, Mr. Mitchell said -
Whenever the Federal Parliament legislated! about any one of these matters, there would) probably arise problems (which are I may statesome of the most difficult of all to advise upon) as to whether the provisions of the Federal lawwere not inconsistent with some law in one or more of the six Australian States. In fact, my strongest objection to the first proposal of thereferendum is based upon this extended power of legislation as to domestic trade and commerce, and is fundamental. If carried by the people, it would ‘ transpose a Constitution, framed by the delegates of the people - the- leading statesmen and lawyers of Australia at that time, after years of skilful care and thought - a Constitution which evoked the highest praise of British statesmen when brought beforethe Imperial Parliament, into an unscientific kind! of .mongrel between two entirely differing kindsof Federal Constitution, and would soon makefile position of the States and of the people of Australia so intolerable under it that unification, would become a necessity.
– He was speaking as a party man.
– He was speaking as a constitutional lawyer simply and absolutely; no one has been able to refute or contest his view. I have seen no legal* opinion to the contrary.
– Read what the honorablemember for Flinders said during the debates on the last referendum proposals. He refuted that view then.
– I lay great store by the opinion of the honorable member for Flinders, but certainly do not recollect that he made any attempt. I do not agree withthe honorable member’s statement, because this opinion was given after last session) had closed. Again, Mr. Mitchell said -
My deliberate opinion is that the amendmentsnow proposed would give to the Federal Parliament powers of so wide and sweeping a characterthat in the absence of any protections similar tothose afforded by the Canadian Constitution, theresult would be a kind of mongrel Constitution, between the two systems, which would be found1 impracticable in working, and would naturally result in unification as the lesser of two evils.
Under the Federal Constitution - if amended’ as proposed - no such restrictions would exist, sothat upon every one of the vast number of subjects coming under the term “ trade and commerce “ (for example, I might mention the control of the whole of the liquor traffic) the powersof the Federal Parliament would be supreme, and every law of every State passed on the samesubjectmatter would have to give way to it.
Hence, so far from having found our way out of a sea of difficulties by the federalization of the whole trade and commerce power, we are obviously finding our way into a sea of legal difficulties, involving severe limitations upon ordinary, everyday business throughout Australia. The smallest transactions of the smallest shopkeeper will be subjected to challenge and review by ordinary legal procedure in consequence of this amendment. It affects the whole range of business transactions, everything relating to trade and commerce, including the smaller dealings of those who are not sufficiently wealthy or important to obtain legal advice from time to time. So that, instead of realizing the promise of the AttorneyGeneral, according to which we were offered this as a. means of direct escape, we find ourselves lost in a desert, where the Statutes of the Commonwealth will be applicable and changeable from time to time in regard to operations of business which may be of the most minor character.
Reminded of the lapse of time, I pass from that phase to another consideration. Although in this particular matter I do not believe myself to have exaggerated the risks, dangers, and costs likely to be incurred, we have, at all events, one small consolation. When this redigested, redistributed, reframed scheme of amendments was laid before us as a whole, we did not “ fall down in a fright.” We are still bearing up against it. We understood, or vaguely gathered, from an intimation given to the country by the Prime Minister, that even if the former referendum proposals were bold beyond the verge of recklessness, we ought to dread their rejection, since the result should be to produce demands if possible even more exacting, taking up even the odd pence and farthings which might be left scattered about after the sovereigns had been pocketed by his party. Now, however, we felicitate the Prime Minister upon his generosity. He has obviously reconsidered whatever desperate resolves he then had in view, and has been content with the old proposals. I should think that there is very good reason for this amelioration from his own point of view. Certainly nothing more exacting or more farreaching would be likely to win acceptance from the electors of Australia.
We now find the old proposals to some extent modified by additions, one or two of which seem to be of little, others of much larger importance, though, compared with the main proposals, they are inconsiderable after all. But if we do not fall down in fright, we do deeply regretthat the new constitutional amendments show us practi cally no better means of escape from grave future difficulties than those which were formerly rejected by the people of this country. When we lay before our citizens the arguments which influence our minds and direct our judgments it will be our duty to point out that these proposals would make a breach in the Federal Constitution which, humanly speaking, no political art, or no change of opinion, seems likely to remedy in any future in which we are likely to be even indirectly concerned. Under them there would begin an absolute transformation, first of our Legislature, then of our Executive, then, possibly, of our two Houses, which would drive us farther along the path towards unwise and excessive centralization.
To maintain the exact balance between due centralization and decentralization is the geat problem of Federal government. It can only be solved by the experience of generations, by gradual steps. Its solution, as it appears to me, would secure the highest possible form of government, to the greatest advantage of our citizens. We cannot expect to devise such a system at present. Unfortunately, we are not yet completely agreed even upon some essentials. Consequently we cannot be expected to evolve a harmonious whole except by persistent effort. Our own Constitution was drafted by many able men, though by few as able - by few as much to be regretted - as that distinguished citizen of New South Wales and Judge of the High Court whose death we have to-day deplored.
Our Constitution has been in operation long enough to satisfy the people that under it their opportunities for action are ample, and that it affords scope for the exercise of the simpler, as well as the more complex, functions of government. But the amendments before us mean the absolute supremacy of the Federal Houses ; the establishment of an unitary form of government ; they mean, in the long run, party strife and partisan legislation, the mere counting of heads in matters of great local, State, andprovincial concern by electors, most of them removed hundreds, or perhaps thousands, of miles from the place of decision. They mean the setting up of an unitary Legislature, ultimately breaking down under the hopeless weight of its continental responsibilities.
Sitting suspended from 6.30 to 8p.m.
Debate (on motion by Mr. Fisher) adjourned.
– I move -
That this Bill be now read a second time.
This is a proposal to amend the Constitution, section 51 sub-section xx. relating to corporations. The question of corporations and the scope of their power is one so inextricably woven with the trade and commerce power generally, and with that relating to trusts, combines, and monopolies, that a law to deal effectively with one must deal with all. I propose to lay before the House some facts in relation to our position under the Constitution as it stands in regard to corporations, and to show that the existing laws, and the power to make laws, are quite insufficient. The difficulty of obtaining information has been already noted. I shall not further touch upon that point, except to say that, in itself, it is a very significant and sinister feature. I think it may be taken for granted that men do not hide things of no “value. Witness after witness called before various Commissions now sitting, have declined to give information. I am therefore compelled to go for my facts to those established by judicial inquiry, or gathered with difficulty from inquiry by Royal Commission. These facts so far as they go, and they go pretty far, are indisputable. I will begin with those relating to the Combines in coal and shipping.
Some years ago, an Act was passed by this Parliament to deal with trusts and combines. It has met with rough handling in the High Court. It is known popularly as the Anti-Trust Act, and there has been but one main prosecution under it. This was directed against certain companies engaged in the coal trade of Newcastle, New South Wales, and companies engaged in Inter-State shipping. At the trial before Mr. Justice Isaacs the facts I propose to lay before the House were proved. As they were not disputed in the Appeal Court, they stand. It was not disputed that the companies in the Vend controlled over 90 per cent, of the coal trade of Newcastle, and that the Shipping Combine controlled over 90 per cent, of Inter-State freight. It was proved that the persons who controlled 90 per cent, of the coal trade agreed with those who controlled 90 per cent, of sea carriage, the coal companies agreeing not to sell to any .but the Shipping Combine, the Combine agreeing not to carry any coal save that belonging to the Vend. The people in Victoria, New South Wales, and Queensland are almost wholly dependent upon Newcastle coal for their industrial and domestic supplies. This, therefore, was an agreement which affected intimately the interests of the whole of the citizens in four of the States of the Commonwealth. It also, of course, affected the people of New South Wales, but since our powers do not extend to State combines, that phase of the question could not be dealt wilh. There was an agreement then between persons who controlled 90 per cent, of the coal, and those who controlled 90 per cent, of the carriage, that the one would not sell except to the other, and that the other would not carry other than the Vend’s coal. Full effect was given to that agreement. One of the consequences was that coal was raised to the public in Victoria from 14s. per ton to 24s. per ton. In October, 1905, Pelaw Mine coal was selling in Melbourne, as advertised in the press, at 14s. per ton. In January, 1906, immediately after the Vend had started operations it had risen, to 18s. per ton. Shortly afterwards it went to 21s. In 1907 it went to 24s. per ton. and has remained there ever since. I ask honorable members to consider what would happen if the American Beef Trust were to operate here, and raise the price of beef proportionately. It would mean practically doubling the selling price of beef. Yet coal is as much a necessary of civilized life as beef.
The agreement restrained trade to the uttermost limit. It was unlawful under this agreement for any of the collieries to ship coal on any ship except those belonging to the Combine. It was unlawful under that agreement for any of the Combine’s ships to take any coal excepting coal from the Vend. Two companies attempted to defy these restrictions by this Combine; both went into liquidation.
The effect of the Combine’s operations upon the public was far-reaching. I have said the price had gone up from 14s. to 24s. for the general public. State Governments and great institutions fared little better. The Victorian railways in 1910 took 120,000 tons, for which they paid 48 per cent, over the 1906 price. The Melbourne City Council paid 50 per cent. over the 1906 price, and the retail dealers 43 per cent. The South Australian railways took 133,000 tons, and paid 44 per cent, above the price ruling in 1906, whilst the Zinc Corporation paid an increase of 48 per cent. The freight was raised from 3s. rod. to 8s. 6d. per ton, the same price being charged for freight on small coal as on large coal. When the South Australian Government grew restive under the extortion of this monopoly, and attempted to start a coal mine of it own, the Vend took measures to prevent its doing so, by influencing the Legislative Council of that State. Money was paid to secure the insertion of false information in the press for the same purpose. It was proved by their own minutes.
The Full Court did not dispute that this agreement operated, and was intended to operate “in restraint of trade,” using that term in its widest sense It was not denied that the quantity of coal taken amounted to 150,000 tons a year in these four States.
– That must be wrong. They would take far more than that.
– I should have said 1,500,000 tons. It was not denied that the price of coal to the public of Victoria increased from 14s. to 24s. per ton. It was proved that no competition existed, that none, in fact, was possible. It was proved in short that a virtual monopoly affecting four of the States existed in regard to two of the essentials of modern civilized life - coal and transport.- Indisputable facts show then that there exists in this country, and can lawfully exist, combines that can levy toll in respect of coal and freights upon the whole community, and can do so with impunity.
I come now to the sugar industry. Here, the facts show that for all practical purposes a monopoly of the sugar industry exercised by the Colonial Sugar Re-‘ fining Company exists. It is urged that there are two companies. We may concede for the sake of argument that there are two. It is not denied that the Colonial Sugar Refining Company controls an overwhelming preponderance of the trade, and that it fixes the price of sugar all over Australia. The Millaquin output, averaged for ten years, 15,000 tons, the Colonial Sugar Refining Company’s output 171.000 tons. The Colonial Sugar Refining Company has 93 per cent., and Millaquin 8 per cent, of the total trade. For all practical pur- purposes the Colonial Sugar Refining Company has a monopoly. It is admitted there is not even a pretence at competition by the Millaquin Company.
Now how does this monopoly treat the citizens of Australia ? What profits does it make? Again, I emphasize that the difficulty of obtaining information meets one on every hand. The Colonial Sugar Refining Company requested the appointment of a Commission of Inquiry, and at length obtained one. But it declined to give evidence before the Commission, except in its own way and of its own choosing. It flouted the Commission. It declined to attend when summoned. For weeks it fought this Government in the Police Court with every device known to the law to insure delay and prevent the Commission getting at the facts. When it failed there, it took the matter to the Supreme Court of the State. Not content with this, it again fought the Government in the High Court, and obtained an injunction to restrain the Commission asking certain questions. It is obviously most difficult to obtain information in such a case. The facts, however, which I. am going to put before the House have’ been established.
First, as to the financial position of this great company. Mr. Knox, General Manager, admitted that the inner reserves of the company amounted to £[3,000,000 ; these inner reserves are accumulated profits made by the Company in addition to dividends paid, which have ranged from 10 to 12J per cent, for many years. They do not appear on the balance-sheets. No one knows where they are or what form they take. The actual paid-up capital of the company is £2,325,000. The capitalized profits are £675,000; that is to say, the amount paid out of profits to the capital fund. The nominal capital on which dividends are payable is thus ,£3,000,000. With the inner reserves that gives the company a capital of £6,000,000. Mr. Knox admitted that the businesses in Fiji and New Zealand were paid for and built up entirely out of the profits made in Australia. The position of the company, then, is that it has made ,£3,000,000 in the Commonwealth, in addition to .£675,000 which it has capitalized ; that it established businesses outside the Commonwealth, in which coloured labour is employed in competition with the Commonwealth ; and that on the top of all it has paid a steady 10 per cent, dividend and bonus amounting in some cases altogether to over 12½ per cent. According to the Food Commission of New Zealand the dividend and bonus amounted in some cases to over 15 per cent. That is a very healthy position for the company. Let us see how the people of Australia fare.
The average price of sugar in 191 1 was £2117s 6d., and some 220,000 tons of sugar were consumed in Australia. The average net price to the consumer for domestic purposes was £21 17s. 6d., while the average net price at Auckland for the same kind of sugar from the same company was £14 10s. 4d., being a difference of £7 7s. 2d. per ton ! We are beginning to see where the huge dividends and the accumulated millions come from. They made a profit on the New Zealand and Fiji business of£115,000. Yet they sold there at£14 10s. 4d. the same class ofsugar which they sold here at £21 17s. 6d. This is the company’s attitude towards consumers ; these figures speak for themselves more eloquently than many orations could do.
Let us look at another aspect. Thecompany has put forward statements in regard to its attitude towards employes and growers. I want to show what that is. The Australian Sugar Journal for 4th November, 1909, published the agreement for 1911-12-13 between the company and the cane-growers. There is a schedule of the prices offered, and the agreement contains this paragraph -
The prices offered remain as at present, but we have omitted the scale that fluctuated with the price of sugar, as no grower has availed himself thereof. In addition, we propose to pay to the suppliers the whole of the advantage to be derived from the reduction of the Excise duties, so long as the margin of profit now obtainable by us is not reduced by enforced changes in our pay sheets. Any advance in wages arising from natural causes we will bear, but the loss that may ensue through attempts to interfere with the operation of the laws of nature must be chargeable against the increased price that results from the changes in the Excise duty, because the margin of profit now left to us will not stand any reduction. This point is dealt with in the schedule.
Here is a company which has paid for as many years as we can remember never less than 10 per cent. It has managed to increase its capital out of profits to the extent of £675,000. It has managed to put by £3,000,000, out of which to establish businesses in Fiji and New Zealand. We do not know what the company is worth. We do not know how much profit it is making, but it is certainly making more than it tells the public. Yet this great company, this monopoly, which dictates the price every person in Australia shall pay forthe sugar he eats, says that its profit cannot stand any reduction. Therefore, whatever is done to further help the sugar-farmer, by reduction or abolition of the Excise, if the wages of the employes are increased by Wages Boards, or by Arbitration Courts, or by any device other than the laws of nature, whatever they are, the company declares that it will pass the increase of wage on to the cane-grower, and take it out of him.
There is only one other point which I would like to mention about the company - its desire for secrecy. No wonder it “ wants to be left alone.” On examination before the Royal Commission Mr. Knox’s attention was drawn to the report of a speech by the honorable member for Indi, in which, apropos of combines, it was stated that the Colonial Sugar Refining Company paid £50,000 into a fund to fight the referenda, and by the simple expedient of raising the price of sugar, was in two days recouped the whole amount. Mr. Knox was asked whether that statement was true or not, and in reply to question 27432A, he denied that the company raised the price of sugar in order to get funds to defeat the referenda proposals - 27433. By Mr. Hinchcliff e. - Did the ColonialSugar Refining Company Limited contribute money out of its undistributed profits, or out of any other fund belonging to the company, to support the opposition to the proposed law to alter the provisions of the Constitution of the Commonwealth relating to monopolies, which proposed law was submitted to the electors on 26th April,1911 - You ask didwe contribute anything ? 27434. Yes; did you contribute anything? - That is a matter I am not prepared to give you any information on. We have not done anything in that matter, or in connexion with anything else, or relating to the business of the company, which is not strictly legal. 27435.Youdonot deny such a contribution was made? - I do not say anything about it one way or another. You have no right to ask the question.
– We have a right to ask the question, but no right to compel an answer. 27435a. By Mr. Hinchcliffe. - I thought I was giving the company an opportunity to repudiate it? - When you began about Mr. Parker Moloney, I thought you were going to suggest if we had paid the£50,000, that is where it had gone. I do not say it would not have gone with a very good object. But we did not make that contribution. 27436. You did not make the contribution? - I do not say. we did not make the contribution; we did not make that contribution.
I leave that to the judgment of the House and of the country.
I come now to quite another case which serves to illustrate the extent to which combines rule the world, including Australia. This Government very recently made an effort to obtain steel rails for the construction of the transcontinental railway. It called for tenders all over the world, and received some offers, which were considered most unsatisfactory. Negotiations were subsequently entered into with various supplying firms, and confidential inquiries were made in Europe and America. It was found that, owing to an agreement entered into by all the principal rail manufacturers of the world to refrain from real competition with one another, and to so frame tenders as to practically allot orders to whichever of their number they pleased, no firm of agents could obtain delivery of rails for the Commonwealth except at the Trust’s price. Endeavours were even -made to obtain delivery f.o.b. at a European or American port, and make our own arrangements as to freight, but unsuccessfully. A New York firm, which was cabled to> wrote -
We at once asked for quotations from the six principal independents asking for a price c.i.f.
Fremantle. We have received replies from five Of these, and hand the same to you so that you may see just what their several excuses are. The point of the matter is probably that mentioned in the letter of the . . . in which -they say that they have already quoted on this material several times and without success.
We presume the Steel Combination has gotten the thing down to hard pan, and shut out any one else. These rail makers are pretty well posted on all the requirements of the world, and are very closely in touch with all such requirements.
The net result of that was that the Government was compelled to accept an offer to supply steel rails at £7 7s.’ 6d., being an increase of 5s. a ton on the amount which the firms had originally tendered. That was the penalty for the Government’s effort to get better terms from the Steel Trust. If we had waited a little longer, like the Sibyl of old, no doubt the Steel Trust would have compelled us to pay still more. Our refusal to accept the first terms of the Steel Trust cost the Government, on the small parcel it go, £[9,000. For the whole parcel the extra cost would have amounted to £37,500, besides the ordinary profit. What is this but blackmail ?
Here, then, are the facts as they affect the citizens and Commonwealth of Australia. Those facts are indisputable. They cover a pretty wide ground. They all’ point in the same direction. We have seen that the prices of general commodities are fixed by arrangements and Combines. We see that the price of sugar, the price of coal, the rate of freight, are the subjects of monopoly. We see that the Commonwealth Government is as supine and helpless as is the poorest citizen of Australia when it goes into the market to buy rails for the transcontinental railway, or coal for its public needs. The Trust is no respecter of persons. It treats the Government as it treats individual citizens. It knows nobody; it extends no favours to the richest, and this Government has suffered exactly the same as the poorest citizen of Australia.
We have heard much lately about high prices. Many causes are assigned for this phenomenon. I am not contending for one moment that the high prices now existing are caused wholly by the Trust. We are not now discussing the causes of high prices at all, but the fact that the prices are fixed, not by competition, but by persons who control industry, and that the consumer has to pay what the Trust or the Combine declares. Whether prices are high or low does not affect that question. But, in any case, we ‘have no means of dealing with high prices at all. We have no means of dealing with trusts and combines.
And we are powerless to deal with the new Protection. Now, new Protection used to be an integral part of the honorable and learned member for Ballarat’s policy. It was for, I think, two elections - I am quite sure that it was for one election - the most prominent inscription on his banner. He carried it like an oriflamme through the country. He published two memoranda about it. In them he stated most positively that the power to fix prices to insure to the consumer the benefits of Protection, and to fix wages to insure those benefits to the employes is a function which should belong to the National Parliament, and a natural corollary of Protection. In his memoranda, dated 13th December, 1907, speaking of Wages Boards and Arbitration Courts, he wrote -
The standards of these tribunals appear to have been determined on the basis of a minimum wage.
The aim of the proposals about to be outlined is more ambitious. The “ old “ Protection contented itself with making good wages possible. The “ new “ Protection seeks to make them actual. . . Having put the manufacturer in a position to pay good wages, it goes on to assure the public that he does pay them. . . .
Further security for the maintenance of the standard wage will be afforded by the requirement that all goods manufactured in exempt factories shall bear, either an exempt stamp, or the Commonwealth Trade Mark. . . . An essential part of the completed scheme, however, is the protection of the consumer by the establishment of machinery to prevent the undue inflation of prices. It is enough to. say here that the Board will be charged with the duty of investigating the prices charged by protected manufactures, and, if these are found to be unreasonable, of reporting that fact to the Minister. The Minister will then be empowered, with the assent of Parliament, to take appropriate action. … Effective and useful as State industrial laws have in many cases proved, their operation is circumscribed by State boundaries, and it can hardly be claimed for them that they either do or can secure uniformity in the conditions of manufacture throughout Australia. No authority but the Commonwealth Parliament can do this, and the attempt to do it, in the way that has been outlined, is in fullest harmony with the Federal aims and character of the Constitution.
The second memorandum, dated 23rd October, 1908, was written after Rex v. Barger had been decided. The honorable and learned member, in pursuance of his proposals, had introduced two statutes to give effect to his policy. Both of these were declared to be unconstitutional ; I refer to the Excise on agricultural implements and the Workers’ Trade Mark provisions. His new Protection scheme therefore had gone by the board. It was essential to amend the Constitution. He fully recognized this in a second memorandum issued in 1908. In his second memorandum he wrote -
As the power to protect the manufacturer is national, it follows that unless the Parliament of the Commonwealth also acquires power to secure fair and reasonable conditions of employment to wage earners, the policy of protection must remain incomplete.
The object of the proposed amendment of the Constitution will be to endow the Parliament of the Commonwealth with a grant of power to do economic justice in protected industries, with due regard to the unity of the Commonwealth and the diversity of local circumstances.
He suggested the insertion of the following new paragraphs in section 51 of the Constitution - (xxxva.) The employment and remuneration of labour in any industry which, in the opinion of the Inter-State Commission, is protected by duties of Customs. (xxxvb.) The grant to the Inter-State Commission and its members of such power of regulation, adjudication, and administration as the Parliament deems necessary for giving effect to any laws made in pursuance of the last preceding paragraph, subject to such review, if any, as the Parliament prescribes.
In those two memoranda the honorable and learned member laid it down that the new Protection was the corollary of the old Protection; that it aimed at protecting the worker by insuring a fair and reasonable wage by means of Federal tribunals; that State tribunals were not sufficient, that the corollary of the national power with regard to the Tariff was national power in industrial matters; that, along with the policy of insuring fair and reasonable wages, there should go the policy of insuring fair and reasonable prices ; and that the Constitution should be amended to enable effect to be given to all this. The honorable and learned member has been silent about new Protection for a long while. But he should not be silent. When a country has Protection against outside competition and inside competition exists, all may go well enough with the consumer. But when there is no competition from outside and internal competition is prevented by the tendency of the age to fix prices by arrangement, what is the position? Surely the consumer is not to be utterly at the mercy of those who fix prices? The vast body of the citizens surely deserve some consideration. The honorable and learned member once recognized this, and proposed to do something; but nothing has been done, and nothing can be done, unless the Constitution is amended.
The honorable and learned member for Angas has also recognised that the position is most unsatisfactory. In a memorandum ordered to be printed on the 21st October, 1910, he set forth his views at some length, stating that there should be an amendment of the Constitution, and that the position in regard to trusts and combines was unsatisfactory. He rejected the proposal that the States should be approached and asked to surrender some of their powers. He said, and I quite agree with him, that the method of amendment provided for by section 128 - which enables the people to speak both through their national representatives and directly at the poll on a referendum, is evidently more in keeping with the spirit of the Constitution than that of parliamentary reference (section 51, xxxvii.), which applies to matters affecting the interests rather of two or more States than of the whole Commonwealth.
In paragraph 7 he wrote -
It will be seen from these references that in the United States of America, where combinations and monopolies are more numerous and extensive in their operations, the ineffectiveness of divided power is felt, and greater federal control is advocated by men who have no desire to unnecessarily narrow the sphere of the States. . . No State Acts in the matter exist, or, if passed, could effectively meet the necessities of the case. It is clear that all Acts, Commonwealth and State, while covering operations of persons or companies in different fields of jurisdiction, should be similar in purport or terms. Otherwise, the lawfulness of operations would depend on locality, and similar facts might be made the basis of different charges, under the State and the Commonwealth Acts respectively. . . . On the other hand, if the Parliament of the Commonwealth possessed power to legislate in respect of combinations or monopolies in restraint of trade . . . one proceeding, instead of several, would suffice ; and the judgment of the Court would apply to all, not, as at present, only to the Inter-State, operations of the defendants. The scope of the operations of the most powerful interests is so wide, and touches at so many points those parts and relations of the industrial power which are admittedly federal, that it seems a clear case for one comprehensive and effective power.
He pointed out that twenty-nine or thirty of the thirty-three combines which the Attorney-General’s Department- had discovered were Intra-State, and that the Federal power had no jurisdiction over them. At that time the Vend case had not been before the Court, the common rule had not been declared ultra vires, Moorehead v. The Melbourne Steam-ship Company, had not been decided. Yet he recommended that the Constitution be amended by the addition of the following paragraph to section> 51 : - .
Trusts, combinations, and monopolies in restraint of trade in any State or part of the Commonwealth.
The feeling that something ought to be done was so strong that even the Premiers of the States met and endeavoured to meet the situation by a surrender of powers. They drafted certain proposals, but as they could not agree these need not be criticised. But they recognised that the present position was unsatisfactory.
I come now to a more decided authority in support of these proposals to amend the Constitution. The honorable and learned member for Flinders has advocated in the most unmistakable and unambiguous way that the Commonwealth should have power to legislate in respect of trade and commerce without limitation. He has advocated that it should have power to legislate in respect to trusts and combines. Of these he says that some are good and others are bad -
There are others which by the powers that they have come to wield and the methods by which they use those powers are visibly becoming - although not so much yet in this country -a menace to liberty.
One does not wish to speak strongly of other countries, and especially of a country which one admires, but on these matters we must speak plainly. The truth has been borne into us that these great aggregations of irresponsible wealth in the United States are rapidly destroying the foundation of the constitutional liberties of the people. The ordinary organs of government, which ought to control them in some cases, are becoming their instruments. The experience of the United States, especially during the last fifteen or twenty years, goes to show that to deal with this growing evil the arm of the States is too short, whilst the arm of the Central Government is paralyzed by the constitutional ligature to which I have referred. There is no power to deal with these trusts in the United States, and the point has been made by Dr. Haynes in the passage to which I have referred, that with a Constitution which is practically incapable of being so amended as to do away with this ligature there may be found no other remedy than some form of revolutionary change.
The right honorable member for Swan said -
But the States can deal with these trusts? to which the honorable member for Flinders replied -
The States cannot; that is the whole point.
The right honorable member for Swan then inquired -
Not with the operations of a trust within a State ? and the honorable member for Flinders replied -
No; the whole evil of the position in the United States is that the individual States are quite powerless.
He went on to say, referring to Eddy on Combinations, and Judson on Inter-State Trade, that they showed - that the State machinery is absolutely inefficient to deal with these great commercial octopuses which carry on their operations over a large territory. The only power that can effectively deal with them is the central authority, and the sole question is, “ What authority ought the central power to possess to enable it to deal with these injurious combines?” The honorable member saw no half-way house in regard to this matter. He was with us. He supported the proposals as they stood. He was in favour of the trade and commerce power without limitations, and such powers over trusts and combines as were necessary to give the Commonwealth sufficient authority. The honorable member for Wimmera followed closely on his heels. He was very emphatic, and he gave the House the benefit of some experience which he himself had as a member of the Harvester Commission. Both he and the honorable member for Flinders were in favour of our having full industrial powers. These two honorable members, then, were advocates of the most important of the proposed amendments which were placed upon the table of the House two years ago, and which were put before the country. They did not agree with all the proposed amendments, but they agreed with three, including those to which I have referred.
The honorable member for Flinders proposed to give Parliament power to make supereminent laws in industrial matters. This power is the corollary of the power over trade and commerce and corporations. Without it New Protection is impossible. We must have such powers if we are to do most useful and necessary work for the people. Here is the position : The Commonwealth Parliament has been elected on three successive occasions to bring in a. policy of new Protection. This country is now sufficiently alive to the importance of dealing with trusts and combines to make it keen on doing something. I defy honorable members opposite to say that, as the law stands, this Parliament can deal with new Protection, or that it can protect the people from the operations of trusts and combines. I ask honorable members opposite not to indulge in eulogies about ideals, or to deplore these amendments as rude assaults upon the Federal spirit of the Constitution. I ask them to_deal with the position as it affects the citizens of Australia. I ask them to remember that the Constitution was passed for one purpose, and one purpose only, namely, to increase the self-governing powers of the people, to protect them where they were helpless - as they were in matters of defence - to promote their welfare. I invite them to say that the powers of the Constitution are not sufficient to enable us to deal with matters of pressing and vital intent to the people. I invite them to say whether Federation was not established for the purpose of increasing the self-governing powers of the people, and whether, if these powers are insufficient, the Constitutionshould not be amended? It is admitted by the Opposition that it ought to be ;i mended.
If it is to be amended, how far are we to go? Do not let us waste time in talking about unification. There is no question of unification involved at all. Such talk is simply another way of passing time, or of idly beating the air. The question is : “ Are you going to clothe this Parliament with sufficient powers to protect the people?” I will take the honorable members’ amendments as they stand. I will leave out of consideration the position of the honorable member for
Flinders and that of the honorable member for Wimmera, and take the Opposition as it is represented by the honorable member for Ballarat and the honorable member for Angas. The one proposes to amend the law in relation to industrial matters so that in all protected industries the consumer shall be protected by insuring a fair price for the commodities which he consumes, whilst the workmen shall be insured a fair wage. The honorable member for Angas proposes to amend the Constitution by giving us full power in regard to trusts, combines, and monopolies in restraint of trade and commerce in any State or part of the Commonwealth. Here is a plain admission by both of these honorable gentlemen, that the Constitution ought to be amended. The question is: Do their amendments go far enough ? In my opinion they do not. I wish to show that the proposals of these honorable members are wholly indequate to deal with the existing situation, and to throw upon them the onus of saying whether they will leave the country still helpless - after putting it to the trouble of amending the Constitution as they suggest - to deal with the situation in an effective way. Take the New Protection policy first. What do they propose? They do not propose to give a fair and reasonable wage to the workmen engaged in an. unprotected industry and therefore we shall not secure uniform industrial conditions. Nor do they propose to protect the consumer in an unprotected industry, consequently a fair and reasonable price cannot be fixed for all things, but only for some. They do not propose to deal with all trusts, combines, and monopolies, but only with some, namely, those in- restraint of trade and commerce. They do not propose to deal with those relating to all manufactures. It has been laid down in the United States of America v. E. C. Knight - an American sugar refining company having a virtual monopoly of the industry over the greater part of the United States - that trade and commerce does not extend to manufacture. It therefore follows that a monopoly like the Colonial Sugar Refining Company would, under the proposal of the honorable member for Angas, or that of the honorable member for Ballarat, be still able to carry on its operations unaffected by any of our laws. In the face of the evidence I have laid before the House, and of other facts which are indisputable, is that a desirable thing? The amendments of the honorable members are quite inadequate. They only attack the fringe of the question. They leave the evil itself unaffected. They do not insure uniform industrial conditions.’ They do not enable the Commonwealth to deal with trusts and combinations straight out. They do not enable us to deal with those in manufacture at all. The amendments proposed by those honorable members are, therefore, quite inadequate.
In regard to the proposals of the Government, I deny altogether that they go too far. To propose less would be merely to invite further litigation. We do not want endless litigation. We want power to legislate effectively. I point to the fact that honorable members opposite who have charged the Government with introducing unconstitutional measures have themselves been the worst offenders. When they .declare that the amendments which they were going to suggest, but which they never brought before the people, are sufficient, I remind them that they said that of the existing powers, and of their own legislation under these. But the High Court did not agree with them, I am perfectly certain that the amendments proposed by them are not sufficient to achieve our purpose. I put it to them, “ In what way will they affect monopoly in manufacture?” I put it to them again, “ How will such amendments deal with the Colonial Sugar Refining Company? How will they protect the people of the country from the operations of that monopoly?” How will they give effect to the policy of New Protection and protect consumer and and workmen ?
It may be said that the decision of the Court in the Vend case is not final, and that there is still some power for usefulness left in the Anti-Trust Act. I hope that this House and the country will not for a moment entertain that idea. If they do, I hope that the facts I am going to put forward will dispel it. In the United States of America an Act similar to our own, but more drastic, imposing a ban upon all contracts in restraint of trade, has been operative for over twenty years. It makes every contract in restraint of trade illegal. For twenty years that Act has held sway. During that time combines in restraint of trade have developed in the United States of America to a stage never before witnessed in the history of the world. They developed in spite of the deterrent effects of the Sherman Act. That Act, judged by its fruits, has not prevented the most rapacious and unscrupulous combinations in the world from carrying on their business unchecked. There have been prosecutions, injunctions have been issued, fines imposed. The fines have been cheerfully paid, the injunctions have sometimes been set in force, and at other times disregarded. Let me tell honorable members about one of these futile prosecutions. It is typical of all. The Standard Oil Trust was one of the latest which was dealt with, and after a lengthy hearing, extending over some years, the Supreme Court of the United States of America found the defendants guilty. The October number of McClure’s gives an extract from, the judgment of the Supreme Court as delivered bv th~e Chief Justice. He said -
Seven men and a corporate machine have seized unlawfully the second greatest mineral product of this country, and are converting it into mountainous private fortunes. For the safety of the public we now declare that this dangerous conspiracy must be ended by November 15.
That was the monumental declaration of the Supreme Judiciary of the United States of America formulating the most formidable indictment, and inflicting the most extreme punishment at its disposal. It fined the Trust, it issued an in junction dissolving it into it’s constituent parts. The Trust was dissolved. The injunction took effect. The effect was that the great Standard Oil Corporation was duly split up into its constituent elements. Several shareholders received scrip for one 994/983,383 of Swan and Finch Company, face value ten cents ; one 7143/983,383 of Washington Oil Company, face value seven cents; one 1995/985,383 of Borne-Scrymser Company, face value twenty cents; and one 2493/983,383 of Colonial Oil Company, face value twenty-five cents. A dividend of 3 cents was paid in some cases to the smaller shareholders, and they did not know what to do. The only effect of this injunction, and of this distribution of the Combine into its constituent elements, was that the chief shareholders of the Standard Oil Company made $200,000,000. We are told in McClure’s -
The “insiders” really took a negative part in the transaction. The United States Government had forced more than two hundred million dollars upon them ; they kept their mouths shut and took it. It was simply a forced sale of gold dollars for fifty cents.
The United States Government did not create new physical property of course. The surplus which, the companies divided had all the time been in the companies - the vast accumulations of a decade - waiting until it could be distributed without general public clamour. The United States merely certified that now the wicked and baneful “trust” had been converted into an innocent business organization. Immediately upon this certification by the Supreme Court, the hidden millions were released for distribution; they lay somewhere in a score and a half of corporations, and no one in the world but the “insiders” could know in just what corporations they were concealed.
The small stockholders got nothing, but to Rockefeller, we are told, went onequarter of this $200,000,000 ! This was the net result of the most effective and dramatic coup the Sherman Anti-Trust Act has ever achieved.
The Tobacco Trust was broken up in the same way, one result, amongst others, being that the British American Tobacco Company, an English corporation, presented its directors with shares worth £2,250,000 in return for £674,592.
Anti-Trust legislation along such lines is not only useless, it is dangerous. If in the Vend case there had been a conviction instead of an acquittal, the position here would have been exactly the same as in America. The injunction would have issued, the written agreement have been solemnly torn up, and things would have gone on as before. The fines would have been paid; but what is a fine of £1,000 to men who can put up the price of sugar by£1or£2aton, the price of coal by1s. , 2s., or 3s. a ton?
The combines control the very sources of our industrial and economic opportunities. We may do what we like; but so long as they control the sources, they are able to increase or dam the flow at their will and fill their pockets and empty ours as they please. Let no one imagine for a moment that any amendment of the Australian Anti-Trust Act can affect the position; and I shall shortly tell honorable members why. Although the Sherman Act contains words without limitation, and condemns every contract in restraint of trade, the Supreme Court of the United States has read into that Act what it calls the “ law of reason “ or the “ rule of reason.” This rule is that every contract shall be considered good or bad, according as it seems reasonable or not to the Judiciary. This makes it a question of opinion, and, as we have seen, opinions in these matters differ very widelv. The High Court of Australia con siders as a reasonable restraint of trade a contract which permits people who control 90 per cent. of the coal to arrange with people who control 90 per cent. of the shipping, to “ hold up “ the people of Australia. That, in the opinion of the Court, is a perfectly lawful and laudable combination, and represents the rule of reason. Judge Harland, of the United States, protested against the introduction of this so-called “ rule of reason,” which he declared was legislation by the Judiciary, but without avail. In view of the judgment of the High Court here, there seems to be no more hope for us in regard to anti-trust legislation than that which has been the uniform experience in the United States for over twenty years. There remains, then, nothing before us, so far as the protection of the people against trusts and combinesis concerned, but a grant of powers which we do not now possess.
– The honorable member is making an attack, not on ther Constitution, but on the High Court.
– My reference is intended to show only that the Supreme” Court of the United States has so interpreted the Sherman Act, and, if the honorable member for Flinders will have it so - and I say so - the Court was compelled to thus interpret it. To endeavour to interpret the Act literally, and declare every contract in restraint of trade illegal, would paralyze industry in any civilized country to-day ; for three-fifths, at any rate, of our economic effort to-day is carried on under some sort of agreement, written or understood, in relation to output, price, and manner of distribution.
I now desire very briefly to deal with the proposals in the Bill. I shall not do so in detail, because honorable members will have an opportunity to discuss them in Committee. I merely point out that the proposals are not, and do not profess to be, the final word on how the Constitution, shall be amended. It is only claimed that the amendments, in the opinion of the Government, are adequate and necessary. Their phraseology may, perhaps, be improved. Possibly, in some cases, they do not go far enough - I say this deliberately. The House should approach this question, as the honorable member for Flinders on the last occasion urged that it should be approached, not regarding it as a party question at all.
– The honorable member has put it past that.
– The honorable member is suggesting that something has happened, in the meantime, to make that which was true then true no longer. The Leader of the Opposition said that this question ought not to be regarded as a party one; and, personally, I do hot propose to allow my action, nor do I think that any honorable member on this side would allow his action, to be influenced by party considerations in debating an amendment of the Constitution. The honorable member for Flinders may, for party reasons, have abandoned his position, and I leave it at that ; I merely quote his own words ; let him reply to them himself. Whatever the attitude of the Labour party, if that attitude be wrong, the honorable member cannot be justified in adopting it.
To the House and to the country I say that here are our proposals to amend the Constitution. Admittedly, amendment of the Constitution is necessary to deal with existing conditions. The honorable member for Ballarat, the honorable* member for Darling Downs, the honorable member for Angas, the honorable member for Flinders, and the honorable member for Wimmera have all admitted so much. The honorable member for Flinders and the honorable member for Wimmera are prepared to give the whole trade and commerce power; the whole trust and combine power, and industrial power that we ask for. The honorable member for Angas is prepared to give full power over trusts, combines, and monopolies which are in restraint of trade, irrespective of whether they be State or Inter-State. Putting these together, what remains in the Bills that honorable members opposite are not in favour of? It may be said that none of them favour nationalization of monopolies. That may be so; but is the Commonwealth to be denied a power which is now exercised in every civilized country, by every municipality in the municipalization of public utilities? The tendency of the age is towards nationalization where public welfare is involved. For example, it is suggested in Germany to nationalize the iron and coal mines. Supposing it was suggested that the Commonwealth should have power to make its own rails, or to nationalize any industry for its own purpose, is it to be suggested that this is a power which the National Government ought not _ to be trusted with - that nationalization is some new or revolutionary proposal? What are the facts? Every day there are suggestions that the State Parliament of Victoria, or the State Parliament of New South Wales, should launch out in some new direction of State activity. Is the National Parliament not to have a power that is freely intrusted to all Parliaments?
We are asking for these powers in order that the Parliament may protect the people. There is no one power that we ask for that the States have not got, and there is no one power that we are asking for that Canada has not got. There are many powers that Canada has that we shall not have if the powers proposed in the Bill are granted. Canada, at the same time, has a Federal Constitution; and how can it be urged, in face of that fact, that these proposals are in the direction of unification? It may be said, and it was said by the honorable member for Angas, that Canada’s trade and commerce power is curtailed by the civil right power of the Provinces. That is perfectly true; but I invite the honorable member to look at the position. In the case of The Citizens’ Insurance Company v. Parsons, quoted by the honorable member for Flinders with approval on the last occasion, it is laid down by the Privy Council that the Canadian power to regulate trade and commerce includes the general regulation of trade affecting the whole Dominion, but not the regulation of a contract in relation, to a particular trade in a single province. The honorable member for Angas contented that that limitation on the power of the Dominion Government depended upon the exclusive power conferred on the Provinces. It may be so. But the reserve powers which remain with the States here clothe the States with power of an analogous, if not, indeed, precisely similar kind. It must be remembered that the High Court has read into paragraph i of section 51, in connexion with section 107, a power reserved to the -States which can only be invaded when the enumerated power is set forth in the clearest and most unequivocal fashion ;. and, therefore, since this Bill does not give us power to invade the rights of the States under section 107, and does not disturb the whole system and balance of the Constitution, upon which the Constitution rests - for the whole of the Constitution has to be looked at - the position of the Commonwealth, if this amendment is passed, will be in this matter broadly the same as that of Canada.
When the honorable member for Flinders on the last occasion supported the trade and commerce power, the proposed amendment was without limitation. On this occasion it is not. It is materially limited. It expressly exempts trade and commerce carried on the railways of any State inside that State. Therefore, the Court, looking at the whole scheme of the Constitution, and having regard to the uniform line of decisions given during the history of this Federation, could come to no other conclusion than that this limitation which is imposed in Canada must apply here, and that this was a power given to the Commonwealth for national, and not for local, purposes.
Canada has a Federal Constitution. She has these powers and much more. How, then can it be said that this is a step in the direction of unification ? I am indeed inclined to think that the limitation imposed goes too far. But there it stands, and I urge its acceptance. The Constitution of Australia was created for the benefit of the people, to increase their self-governing powers, to enable them as a Federation to do something which the States could not do. Under it, this Parliament has done great work. But it has at last come to the end of its tether. There is much to be done. But we cannot do it. The people of this country are now confronted with conditions such as in America enable corporations to defy the Government. I wish to impress this fact upon honorable members. Once the trusts, the aggregations of capital, reach the stage here they have done in America, what * is to follow ? Who runs America, its legislatures; its institutions? Great wealth in the hands of irresponsible persons may debauch Democracy ; may destroy it. What are the powers and functions of Democracy when bodies of irresponsible men fix the prices of things which the people eat drink, and wear, “are the people to be powerless to protect themselves ? Yet these men not only fix prices, but determine the conditions under which all men shall .live, and they are responsible to none. They work in secret. As Mr. Knox said, “ They want to be let alone.”
– So do all the burglars.
- Mr. Field said, “I refuse to divulge anything about my private business.” Mr. Malkow declined to reveal the names of firms with whom he had had negotiations. They all decline to tell the public either their profits or the means by which they carry on their business. They decline to permit the light of day to stream into the chambers in which their deliberations are conducted. This Parliament is a body responsible to the people. Here everything that is done is done in front of the people, and with ,the full knowledge that every act has to be answered for. But there are bodies in this country who exercise a power superior to that of this Parliament, who control to a very large extent - though happily not yet to that exercised in America - commodities and agencies essential to the life of the people. Yet we have no control over them. We want first of all to get publicity. Since there is no competition from outside, and there is no competition inside, we must have information as to the causes and reasons that govern these people who fix the prices we all have to pay. The people have a right to know the facts about these things. We should have power if necessary to control and regulate their operations. We ought to have power to pass a general companies law. We ought to have power to pass an effective law dealing with trusts and combines.’
Consider the position. Here is a company which fixes the price of sugar a food only second in importance, perhaps, to bread. Every one needs it - the young and the old, the sick and the well. People must have it. Yet there is one seller of sugar throughout Australia ! This is an age of machinery. Without coal those complex machines by which we extract from nature her uttermost possibilities - what are they but mere clods, cumbersome masses or iron and steel ? And there is one Combine which controls the output of coal ! What is it that distinguishes modern society and differentiates it from the society of days gone by? It is transport, the swift flowing rivers which carry commerce to the ends of the earth. Civilization is built upon it. The schemes of modern men are formulated upon the basis of transport, which carries to every corner of the earth that which all require, conveying the fruits of man’s labour and nature’s abundance, relieving scarcity and famine, and wafting super-abundance to those who more need it. Yet this, the venous and arterial system of civilization, is controlled by one monopoly !
Food, coal, transport - all controlled by monopolies ! Yet we can do nothing t And when it is proposed to get power to do something, we are told that we must have regard to the spirit of Federation; that we must have regard to the Federal compaot; that we must uphold the Constitution. “ I cannot think of any better way,” said the honorable member for Flinders - of upholding the Constitution than by rationally, sanely, and, after full consideration, using the powers which the Constitution gives us. The only question is, how far ought we to use them, and when ought we to use them.
There is no question here of unification. There is no question of State rights. “ State rights “ indeed is a mere tribal cry. It has been used to bolster up every privilege and every wrong. It was the cause of civil war in America. It is now the slogan of reactionaries and plutocrats. This is not a question of State rights at all. It is not even a question of Commonwealth rights. It is a question of whether the people or the trusts shall rule. It is a question of whether the Government of this country shall be in the hands of irresponsible coteries who decline to give information ; who treat the duly appointed representatives of this country with contumely and contempt ; who defy the Courts of this country. It is not a question of State rights; it is a question which goes to the very root of Democracy. For what, after all, is the foundation upon which democratic government rests? Democratic government rests upon this : That the people shall really rule, and that no act shall be done for which some one shall not be responsible. There should be no power in this country but the people should be superior to it. Yet here are men who are the economic masters of this country, who say how much we shall pay for our food, how much we shall pay for our fuel, who determine our lives, who levy toll upon us. It is not a question of State rights or of Commonwealth rights, but of the rights of the people. These amendments now before this House are Federal in spirit, strictly conform to the plan and system and intention of those who framed our Constitution, and are such as will enable this National Parliament to deal with these great questions. I ask this House, and the country, to bring to the consideration of them that calm and impartial judgment which their importance demands.
.- I would ask the Prime Minister whether he proposes to adjourn at this stage? I was prepared to speak on the previous Bill, but the adjournment of the debate was moved, and I now ask that I shall be afforded an opportunity of deferring what I have to say on this measure until the morning.
– We will give the same terms as were given to the AttorneyGeneral - better go on.
– Then I move-
That the debate be now adjourned.
Question - That the debate be now adjourned - put. The House divided.
Majority … … 11
Question so resolved in the negative.
.- I confess that before speaking on any of these. Bills I should have liked an opportunity, to digest the matter given by the AttorneyGeneral, especially in view of the fact that the honorable gentleman did not deal at all with the particular measure, the second reading of which he has just moved. During practically the whole of his speech he confined his remarks to matters incidental to the commerce, and chiefly to the trust, power, which are not the subject of the particular Bill now before us. I should have liked also an opportunity to deal with the first of these Bills, the second reacting of which was moved earlier in the afternoon by the Attorney-General; but since it is not to be, I accept the position, and, with the latitude which you,Mr. Speaker, are prepared to allow in these debates, I shall endeavour to traverse some of the matters dealt with by the honorable gentle.man. I quite agree with him that one -should approach the question of constitutional amendments as free from party preconceptions or electoral considerations as the somewhat perverse bias of political human nature will permit. I believe that our consideration of constitutional amendments ought to be deliberate, and should «be approached, perhaps, under a sense of their inevitableness, for, although all systems of government must be moulded to meet their final end, which is the advance of the commonweal, each must have some element that gives character, free from party caprice, and retains the essential characteristics of the type throughout all organic changes and modifications. I think I shall be able to show a little later on that these propositions, considered generally, involve a complete change in our Federal type or system of government. In the first place, however, I shall deal rather hurriedly with some of the matters referred to by the AttorneyGeneral, and ask the “House to determine from what appears to me to be the inconclusiveness of his arguments, and the inaccuracy of some of his references, what might be said as regards more of his arguments were one not conditioned by time. The Attorney-General .started early this afternoon with what must be regarded as a truism in one sense, “and as an absolute inaccuracy in another. He told us that each Parliament was circumscribed within its legislative ambit by the instrument. If a matter is within the legislative ambit of Parliament there is no limitation; if it is not within its legislative ambit it must be limited by the instrument. That is the class of truism that. we get sometimes as a preface to some fetching generaliza-tion as to our powers. The honorable gentleman then passed on to refer to Germany and Switzerland. The inference from the references was to me somewhat recondite, but he mentioned that neither in Germany nor in Switzerland could legislation be challenged - that there the Legislature could pass any law that it pleased. Even that statement is subject to some qualifications. I shall refer to the matter only to say that Mr. Dicey, a leading constitutional authority in England, states that the weakness of the German Constitution as distinguished from our own, which he regards as the most perfect type of federation, is the absence of judicial control of each of the organs of govern ment. It is somewhat significant in connexion with Switzerland, which supports its power of check upon its fundamental basis, the referendum - because the Swiss Constitution came originally from the referendum in the form of direct legislation - that a modification of its judicial system was, I think, recently proposed inthe direction of judicial control such as exists under our Constitution. I do not know whether the proposal was ever put to the vote. Then we were told that neither the Commonwealth nor the States had any commerce power. I do not think that I need refer any more to that because if there is none in either organ of government, the whole reference was beside the question. The honorable and learned gentleman went on to mention that the trade and commerce power and the power over corporations have been cut down by the decisions of the High Court, and then enumerated a series of decisions in alleged support of his argument. Let us deal with one, the alleged limitation of the power over corporations. The Attorney-General told us that in the Huddart Parker case the High Court left us without the power of making laws with respect to corporations of any kind, and later he mentioned that they were not able to ask questions of any corporation. Both these statements are incorrect. What the High Court did say was that the power over corporations was not more ample than our power over persons, but that it was as wide in its range, and did extend to whatever power we possessed in relation to persons, so that the operations of corporations, within the ambit of our power, are quite as capable of being controlled as are the operations of persons. And as to our being without power to ask questions, what was decided was that in declaring sections 5 and 8 of the Australian Industries Preservation Act ultra vires of our power, the power to ask questions, which was incidental to, and connected with, those particular provisions, went, but there is nothing to prevent the Attorney-General tomorrow, if he is in earnest, from proposing to amend the Act so as to give that express power. The defect, therefore, was a defect in the Act, not a defect in the power.
– We can only amend the Act within the scope of the present Constitution.
– What the High Court said was that the power to ask questions of corporations was unfortunately connected with the ultra vires sections, but that had it been a general power such as attaches to persons, it would have stood as amply against corporations as against persons.
– And your own memorandum proved successfully that that power was not sufficient.
– The Minister is wrong if he refers to the Inter- State power. 1 shall deal with that matter afterwards. I have only a short time at my disposal now. I might remind the honorable member that there was not one interjection made during the speech of the AttorneyGeneral.
– There were plenty made afterwards.
– I do not interject much at all events, and I did not on that occasion. We come to the other cases. Take, for instance, the Jumbunna case. One of the matters which the AttorneyGeneral raised, was that the High Court had decided that, though the Arbitration Act declared that there was no appeal from the decision of the President, in spite of the Act an appeal was given by the High Court. The High Court did nothing of the sort. I was in that case. In the Jumbunna case, a local mining company - not an Inter-State organization, but a local mining association - was registered under the Arbitration Act as an organization. Two companies challenged its registration, and the High Court, so far from impairing the Act, sustained the validity of the registration. In other words, it did decide that it was incidental to conciliation and arbitration to register a purely local mining company as an organization under the Act, as it might eventually, by association with a body outside the State, have come within the Federal power. So far then from the High Court limiting the intent of that Act, it acted in the widest. sense of liberality in its interpretation of it. But the point is that in that case the appeal was under section 73 of the Constitution. There was no -appeal to the Registrar mentioned in the Act at all, but the High Court said that that was not germane to the question, as an appeal existed under section 73 of the Constitution, but that where the appeal was taken away was under section 31 of the Act, and that dealt with appeals from awards of the President, which, of course, are awards in connexion with the merits. As a matter of fact, that reference by the Attorney-General, for whatever it was worth, was absolutely beside the question,, and, so far as it was intended to have any weight, was incorrect. Then a referencewas made by him to the Federal Sawmillers’ case, and the Whybrow case, ire which it was pointed out that the High Court had decided that you must respect the decisions of the Wages Boards of the States in coming to an award under the Federal Arbitration Act. What the High Court said was that you may improve onthe conditions prescribed by the determination of a Wages Board, that if a Board i gives, for instance, 8s. a day, you may make the rate 9s. - -not much of a grievanceto come from the other side of the House. What the High Court did say was that you cannot abrogate that decision, because our power being simply the decision of matters between litigants did not include either a power to make a common rule or a power to frame a subordinate State lawsuch as is done by the determination or ruleprescribed by the Wages Boards of theStates. What they did was to frame a general rule or law applicable to a wholeindustry, and the High Court said theprovince of arbitration was not to frame a law, but simply to decide a matter between? litigants. As regards a common rule, all that I can say is that if you had the powerto frame a common rule you had the wholeof the industrial power, because it only meant getting up a dispute in order to f frame a general law applicable to the whole industry throughout Australia. I am simply dealing with these matters to show that prima facie the High Court was right if the spirit of the Constitution was to berespected. We come on to the case of The King v. Barger. Perhaps all that I need say is that if the case were decided otherwise, you could, by the taxing power, regulate wages throughout the whole of Australia. Again, the High Court said! that, in your principle of interpretation,, you must take the text of the wholeinstrument, and when the power is doubtful, when the words used in. the Constitution admit of two interpretations, you must give that interpretationwhich is consistent with the whole scheme of the instrument, and it held that that wasreserving the control of the domestic tradeor industry, of the States, and as theExcise Act involved an invasion of the industrial power of the States that would enable us to use the taxation! power to do what they do directly under, their industrial, power, it would not be consistent with the instrument to hold -that the taxation power gave us authority to regulate wages within a State. Again, -there is nothing startling in that, and if I had time I could show that it is absolutely consistent with the interpretations given in America. Let me pass on to some other matters referred to by the Attorney”General. I do not know what was meant by his reference to a case in America - Johnson v. Pacific Railway Company - -in which the honorable and learned gentleman said that the Federal power did not extend to trucks. All that I know of -.that case is that the decision was in favour -of the Federal power - a decision that the use of coupling appliances could be prescribed by Congress in relation to Interstate commerce. How on earth that involves a limitation of Federal power to deal with trucks passes my comprehension. Again, the Attorney-General told us that the Judiciary in America legislates. That involves, I suppose, the conclusion that the Judiciary does not legislate here. To 6e of any cogency with men of common sense it must be shown that there has been a narrow interpretation placed here on the Federal power, of which Judges in America’ would be incapable. I cannot show that to be not quite correct without traversing the. whole of the decisions. I shall deal with some of them. If the people do appoint an arbiter to decide ‘between their two organs of government - and there must be some arbiter - as to whether a power belongs to one or the other, that arbiter must not usurp the function of either or both by legislating. “That arbiter - the Supreme Court or the High Court - must not step in and declare that no matter what the people may have clearly said, the circumstances of the time require an extension of a power in favour of the Commonwealth or the States, respectively. What might be done to-day in favour of the Commonwealth might be done to-morrow by an undue extension of the reserve power of the States, so I trust here, as in America - they have never exceeded this principle in America - the Governments will confine themselves to a liberal interpretation, reading as far as possible the old ideas of machinery consistently with the advance of the times, but not legislating, which is the function of the Legislature, subject, of course, to the referendum being accepted by the people. We heard something from the Attorney-General about the Opposition having declared during the pre sent Parliament that several legislative measures were *ultra vires of our powers. I do not think it was declared by the Opposition that the maternity grant was ultra vires of our powers.
– No, but the honorable member for Parkes said he thought it would be so declared.
– The honorable member for , Darling Downs and myself, and I think the honorable member for Flinders, fairly balanced the considerations pro and con. I remember distinctly stating that I thought that we did possess the power, but that it was not for this Parliament, if the policy was a sound one, to impose a limitation upon its exercise. Again, as regards the Electoral Act no such statement was made, I believe, from this side.
– Nobody said it.
– I do not remember it being said. It has been stated by the AttorneyGeneral that we cannot deal with the Coal Trust and various other trusts. Let us take the Vend case. It fell to me as one of the Attorneys-General to deal with the trusts question, and to supervize the preparation of the prosecution in the Shipping Combine and the Coal Vend case. I do remember some of the facts, but the matter is still sub judice, and I certainly do not approve of what seems to be a growing inclination in some quarters to discuss the merits of pending cases in the legislative forum. The decision in the Vend case was given under an Act based essentially on restraint of trade. There is nothing in our Constitution to say that we cannot deal with combinations, trusts, and monopolies in relation to trade.
– That is, those with which we can deal. Our power in relation to individuals, trusts, combinations, and monopolies could now be exercised legislatively, hot merely against them in restraint of trade, but in relation to trade, which would have been wider.
– What do you suggest?
– I am not going to frame a code now. I am not saying one way or the other whether the decision was right or wrong. I read, I think twice, the decision of Mr. Justice Isaacs, though it covers 191 pages of transcript, and I have not had the privilege, afforded probably to the AttorneyGeneral, of reading the verbatim report of the High Court judgment on the appeal. There was a great deal to be said on the facts for the judgment of Mr. Justice Isaacs, and at the same time there was a good deal of attractive force in the postulates and arguments that came from the higher tribunal, but it is not for us to decide on those questions. The point is that the prosecution in the Vend case took place before we amended the Act in 1910. When it was under the old Act of 1906-9 the onus lay upon the Crown of proving detriment to the public, and the prosecution, in the opinion of the High Court, failed, because no detriment to the public was proved by the Crown, and further, the defence, possibly under an instinctive apprehension that the Crown might fail to prove detriment, whether it existed or did not exist, did not give evidence. The position under a new prosecution against a combination will be altogether different. The Crown need not prove detriment to the public. That will be a defence that may be advanced by the party charged, lt can show that the matter charged was not to the detriment of the public, and was not unfair in the circumstances. Unless it does, if a prima facie case is made out, the prosecution must succeed. Therefore, in almost every case it will be incumbent on the parties to go into the witness-box. Reference was made to some of the prosecutions in America. The failure there in connexion with the Tobacco and Standard Oil Trusts was not a failure in the power, ‘ because the trusts were successfully prosecuted. Mr. Justice Harland had held that the American Act against combinations, trusts, monopolies, and conspiracies in restraint of trade meant, not unreasonable restraint, but any restraint at all ; but the Supreme Court declared, first in the Standard Oil case, and, secondly, in the Tobacco case, that the English law of interpretation should apply, and that the restraint must be under the circumstances unreasonable.
– Such as to shock the reason.
– It was not put so emphatically as that. The Attorney-General will find the matter discussed, not in McClure’s Magazine, but in the leading law reviews of America. The Harvard Law Review had some excellent articles on the subject. If the operation is directed not merely to promote economies of business administration, or to prevent losses in the conduct of business, but to obtain greater profits by restraining the competition of others, it is unreasonable, and must be condemned ; but if it involves merely combinations to limit competition between persons who had been killing each other by their competition, and who, by joining their businesses together, or by delimiting their spheres of action, had determined to end this disastrous state of things, it is not unreasonable. That is practically the decision of the Supreme Court of the United States of America, and it was the interpretation of the law given years before by such an authority as Judson on Commerce. Reference was also made to the Sugar case. The sugar prosecution failed because the operations of the companies did not affect commerce between the States. Sugar undoubtedly passed from one State to another, but there was no combination affecting commerce. It was held, therefore, that an Act which in its express terms was inrestraint of trade and commerce could not have been intended to affect manufacture. As regards sugar, you do not need, to reach the Inter-State operations of theTrust, if there is one, to obtain control over manufacture. The moment it moves intothe stream of commerce, and is to any extent affected by undue limitation, it falls within the Inter- State commerce power of the Commonwealth. The AttorneyGeneral said that the United States Acts have not proved a success. I have mentioned two cases in which the doctrine of reasonableness was accepted, in both of which the prosecutions were successful. If they do not finally suppress the trusts, it will be due to the fact that the whole trust power does not belong to commerce, and that the operations are so complex that no Legislature can successfully cope with them by the methods adopted. I admit that _ these colossal undertakings in* America are .pernicious, and I was shocked’ when I read that in that country, which, has high Protection, and ought therefore, according to some, to be an economic paradise, men have to work from, thirteen to fourteen hours a day for what is a wretched pittance compared with the rates prevailing here. But the authority from which the Attorney-General probably got Eis facts contained a qualifying article which he avoided mentioning. The operations against the Trust fell1 within the commerce power, and the prosecution was successful so far as thelegislation was framed to touch trusts. In Canada they have a most successful! way of dealing with trusts. In 1910 they passed the Combines Investigation Act, which is used concurrently with the AntiTrust Act.
– It was put into operation the other day in regard to the cement industry.
– It has been put into operation on several occasions, and the Minister who is charged with its administration has declared that it is eminently successful in diminishing the trust evil. On a complaint being made by, I think, half-a-dozen persons that any commodity has risen in price in consequence of the operation of an alleged combine or trust, or that otherwise any detriment to the public has been caused, a Judge is appointed to inquire into the complaint, and if he holds that a prima facie case has been made out, a Board, consisting of representatives of the informants, and of the body affected, is appointed to investigate the matter and to report. Should it report that a combination in the nature of a trust exists, the combination must cease, on a report being published in the Gazette, and notice being served on the parties affected. If it does not stop, the evidence of the report is considered sufficient for a prosecution, which Tenders the parties liable to a fine of $1,000 per day.
– Then the Dominion Parliament has greater powers than we have.
– The Attorney-General says it has not.
– We cannot pass such a law.
– We can as regards InterState commerce. I am not one who says that if a proper amendment were drawn up - one which was not marked by the excess which mars every one of these propositions - it should not be supported. What the Attorney-General proposes is “riot to give this Parliament power to control trusts, combinations, and monopolies in restraint of trade in any part of the Commonwealth, but to give it power to control them in relation to production, manufacture, and the supply of services. It is not fair to ask the electors to grant us a general power of such wide scope as that proposed when they might be advised by both sides of this House to accept an amendment limited to restraint of trade. ‘ Even then our power would be more ample than is the commerce power of the Dominion Parliament, which, according to the Attorney-General in his second-reading speech to-night, is exercised only for national purposes. I do not agree with him. What was decided in the Russell case was that the scheme of Government in Canada under sections 91 and 92 of the Dominion Constitution was that the specific powers of the Provinces limit the scope of the general power, such as trade and commerce, of the Dominion. Section 91 gives the Dominion a general power to legislate for the peace, order, and good government of the Dominion, and so as not to restrict the generality and scope of that general power, but for greater definiteness of the powers which are included in it, twenty-nine other powers are specified as being within the exclusive competence of the Dominion Parliament. Section 92 declares the exclusive powers which are vested in the Provinces. In every case, I think, which has come before the Supreme Court of Canada, or before the Privy Council, the question which has been raised has not been as to the ‘ validity of the Dominion Act. Those tribunals have never interpreted that commerce power as having been affirmatively exercised by the Dominion Parliament. The point which they have decided has been the validity of provincial Acts, which might or might not involve an encroachment upon the Dominion power. The character of the commerce power in Canada has not yet been determined.
– That is the best proof that it is working satisfactorily.
– It is rather too soon for the Attorney-General to lay down what will be the decision on that point when it comes before the Privy Council.
– It has no history.
– Because the power has not been affirmatively exercised and questioned.
– In the Parsons case there was a clear limitation of the powers of the Provincial Parliaments.
– What has been decided in Canada is that the commerce power of the Dominion does not necessarily include the purely Provincial or domestic power. It was pointed out that there were powers referred to in the Act of Union between Scotland and England, and in the Act of Union between Great Britain and Ireland, which might involve power to regulate purely domestic laws But the Court held that certain provisions in those Constitutions were directed against discrimination by general or national powers. The
Supreme Court of Canada, and, I think, the Privy Council, decided that possibly the Canadian power was to be used for national as well as inter- Provincial purposes, and was not a power which overlaid certain powers that otherwise would have been reserved to the States. The Canadian decisions, therefore, mean that the scope of the commerce power of the Dominion Parliament must be interpreted with certain specific powers which are reserved to the States and which involve a limitation of it - one of those powers being the right to deal with matters of a purely provincial character
– Canada with her reserve power will not be better off than the Commonwealth will be if this amendment be accepted by the people.
– Undoubtedly, the power which would be granted to the Commonwealth would be much wider. In Canadathere is a division of power to some extent on principle. If the commerce powers which the Government seek are granted, there will be no principle involved, because there will be no powers reserved for the States which are not purely concurrent. The States will never know when they pass a Statute that this Parliament may not enact a law which will override it. The inevitable result will be that a law passed by a State in respect, for example, to the liquor trade, will be subject at any time to the concurrent power of the Commonwealth being exercised, and will thus be subject to abrogation. There will, therefore, be great risk in a State enacting legislation and in new enterprises being established under it. As to the trust power, I mentioned what has been done in Canada. In America, one recommendation has been made to enable these: trusts to be dealt with which we could adopt without any amendment of the Constitution. We can control to some extent corporations under the corporation power. The High Court decided in the Huddart Parker case that the power of the Commonwealth in relation to corporations given by paragraph i of section 51 did not confer on us the power to so control corporations that we could subject them to exceptional laws which could not be passed in regard to persons - that we could not, for instance, control the operations of corporations which were purely confined to the domestic trade of a State. But the Court did say that we could prescribe conditions on which either foreign corporations or State-created corporations could be permitted to enter into trade either between the States or trade purely domestic. We could, therefore, if I am rightly interpreting this decision, prescribe conditions on which corporations may enter into the sphere of either State or Inter- State commerce, but once they get within that sphere our power to control their operations in it, if they are purely domestic or State, ceases. If that be so, there is nothing to prevent an Act being passed tomorrow prescribing that no corporation shall be formed, at all events in relation to Inter-State commerce, that does not give a full statement of its capital, and does not from time to time describe the extension of its capital and the magnitude of its operations. In America, one of the many recommendations made for dealing with the trust power was the passing, under the existing powers of the Congress, of a Federal Incorporation Act, under which no corporation should be permitted to engage in InterState or foreign commerce until chartered by the Bureau of Corporations, which otherwise would control its operations. Then a long list is given of the conditions, compliance with which would be necessary before a corporation could be allowed to carry on operations in InterState commerce. One is that the corporation is not a party to any contract or agreement foi the purpose of, or which operates as, a restraint of trade or commerce, and then there is a provision that no part of the capital stock shall be owned, controlled, or voted by any other corporation, or the officers of any other corporation. A number of those powers which the AttorneyGeneral says we have not got could, according to writers in America, be conferred by Congress. As a matter of fact, they are not so conferred; and one of the difficulties is that some of the men affected control the Senate. It has been said that the trouble is not so much defective power as the disinclination of bodies, which, to some extent, influence the Legislature, to use those powers, or to extend them, . and make them more effective.
– A number of these men are out of Congress now.
– Possibly. I suppose human nature does sometimes change, but still that difficulty has been felt for years. As to the company power, to which the AttorneyGeneral did not refer, the Bill deals with the creation, dissolution, regulation^ and control of corporations. The Bill is not altogether the same as that of last year.. The latter, although it was recommended by the Attorney-General as perfect, included the power to deal with such corporations as municipal corporations. That would have been very wide in its application, giving us complete control of all the municipal and shire corporations and councils of the States. However, that proposition was recommended to the electors, and I am entitled to mention it now by way of caution in relation to the power which it is now proposed to amend, and which may be open to some of the criticism applied to it last year. However, we have not had a word from the Attorney-General as to the scope of the Bill before us. What the AttorneyGeneral did deal with was trusts and combines, which are the subject of a separate proposal. The particular power under discussion should be intended only to enable us to pass a uniform companies law, and I acknowledge that our power is too short in this respect. According to the High. Court we have no power to frame a general companies law applicable to all Australia. The States may frame laws in regard to companies, and we may pass a Federal law in regard to the creation and dissolution or winding up of corporations which are engaged in commerce between the States. We can create a corporation for any of our expressed or implied powers of government, as the High Court decided in the Jumbunna case ; but we have not the power to pass one uniform law applicable within a State as well as between States throughout the Commonwealth. If this proposition were confined ‘to the creation, dissolution, and winding up - not the control, which is an exceptional power - of trading and financial corporations, it would have been adequate, and all we should expect. But, as proposed, like all the other amendments, it is too wide for acceptance. It goes beyond, even from the point of view of the particular Bill, the special necessities of the case; and, as a matter of fact, it trenches on ground covered’ by another proposed amendment. Take, for instance, the trust and corporation power, under which falls all that the Attorney-General alleges he can get by the power to deal with corporations. He seeks by the corporation power to get special power over corporations, apart from the creation, dissolution, and winding up. In the High Court, Mr. Justice Higgins pointed out that if such a power existed, it would enable us to make special differentiation in our laws in case of companies - to pass special laws in relation to some matters not within our competence in relation to ordinary persons.: For instance, if a millionaire on one side of the street carried on operations which were detrimental to the public, he could not be controlled to the same extent as could two men or twenty men carrying on .similar operations on the other side of the street. What we ought to .aim at in all our laws is to bring all within their scope, whether companies or persons. Mr. Justice Higgins said -
If the argument for the Crown is right, the results are certainly extraordinarily big with confusion. If it is right, the Federal Parliament is in a position to frame a new system of libel laws applicable to newspapers owned by corporations, while the State law of libel would have to remain applicable to newspapers owned by individuals. If it is right, the Federal Parliament is competent to enact licensing Acts,’ creating a new scheme of administration and of offences applicable only to hotels .belonging to corporations. If it is right, the Federal Parliament may enact that no foreign or trading or financial corporation shall pay its employes less than 10s. per day, or charge more than 6 per cent, interest, whereas other corporations and persons would be free from such restrictions. If it is right, the Federal Parliament can enact that no officer of a corporation shall be an Atheist or a Baptist, or that all must be teetotallers. If it is right, the Federal Parliament can repeal the Statute of Frauds for contracts of a corporation, or may make some new Statute of Limitations applicable only to corporations. Taking the analogous power to> make laws with regard to lighthouses, if the respondent’s argument is right, the Federal Parliament can licence a lighthouse for the sale of beer and spirits, or may establish schools in lighthouses with distinctive doctrinal teaching, although the licensing laws and the education laws are, for ordinary purposes, left to the State Legislatures.
If this proposition is accepted by the people as proposed, we shall have not only power to frame a general companies law applying throughout Australia, placing companies in the same position as citizens, and enabling us to create a juristic person who can do throughout Australia what can be done by any individual, but we shall have power to pass exceptional laws -in regard to corporations that we cannot pass with regard to their competitors who are private individuals. I may say that that proposition is marred by the same excess as characterizes every one of the proposals of the Government. Coming to some of the more general matters covered by the Attorney-General, I may allude to his statement concerning railways. He said that railways are exempted from the operation of the commerce power. The fact is that you cannot deal with railways in their State operations, but you can deal with them in their Inter-State operations. The very evil which the Attorney-General pointed out as a ground for asking that the commerce power shall cover Intra-State as well as Inter-State trade will be perpetuated as regards railways; and though the Government may appoint an InterState Commission to control freights on railways when there is discrimination as’ regards Inter-State traffic, we cannot allow the Inter-State Commission to deal with any part of the operation of those railways, however long the traffic may be, when confined to any particular State. I am not saying that you should give this power over Inter-State operations to the railways, but I say that this exception made from the commerce power is illogical. It must impair, from the AttorneyGeneral’s point of view, the efficiency of the Inter-State power.
– We go too far, or we go not far enough.
– Why it is done I cannot say, but that will be the position. You can control State railways for one purpose, but not for another. You can prescribe what freights are to be paid throughout the whole of the traffic which is Inter-State, but you cannot possibly dealwith any part of that traffic which ends in the particular dominion of any one State, If that be so, all I can say is that the very evils alleged to be present in the commerce power will be perpetuated as regards railways.
Debate (on motion by Mr. Fisher) adjourned.
Motion (by Mr. Fisher) proposed -
That the House do now adjourn.
– What is tobe the business tomorrow? Is it intended to proceed with the Bill with which we have been dealing, or with another measure?
– We shall proceed with the next Billstanding on the paper for its second reading.
– Is the Attorney-General going to deliver one or two speeches, or what is the procedure?
– The Opposition would not allow the Attorney-General to proceed as we wanted.
– Will the Prime Minister kindly tell us what he is going to do? We do not want these lectures.
– I desire the honorable member for Parramatta to understand what we are going to do, and to convey the information with courtesy. To-morrow the Attorney-General will move the second reading of the third of the Referendum Bills, and I presume that, the Opposition will exercise the right to follow him in debate. There are still four other Bills to be proceeded with, and the second reading of them will be moved before the general debate takes place.
Question resolved in the affirmative.
House adjourned at 10.37p.m.
Cite as: Australia, House of Representatives, Debates, 19 November 1912, viewed 22 October 2017, <http://historichansard.net/hofreps/1912/19121119_reps_4_68/>.