Senate
19 October 1904

2nd Parliament · 1st Session



The President took the chair at 2.30 p.m., and read prayers.

page 5704

QUESTION

TRANSCONTINENTAL RAILWAY

Senator PEARCE:
WESTERN AUSTRALIA

– I should like to ask the Attorney-General a question, without notice, in relation to’ the report which was obtained by the State Government of Western Australia as to the results of the boring party on the route of the proposed Transcontinental Railway. Is’ that report available? If so, has the Attorney-General any objection to lay it on the table of the Senate ?

Senator Sir JOSIAH SYMON:

– I recollect that my honorable friend put a question to me on this subject on a previous occasion, and I promised to make inquiries with a view to make the report accessible. I am now in a position to inform my honorable friend that the report is available, and that I will hand him a copy of it so that he may look through it, and be ‘ able to form an opinion as to whether it is necessary to incur the expense of having it printed and circulated, or whether it will be sufficient if it is made accessible to all honorable senators.

page 5704

PAPERS

Senator Sir JOSIAH SYMON laid upon the table the following papers : -

Notifications of the acquisition of land at Darlington, Narrabri West, and Boggabilla, New South Wales, for post-office sites, and at Colah (Hornsby), New South Wales, for defence purposes.

Addition to military financial and allowance regulations, Statutory Rules, 1904, No. 63.

Ordered to be printed.

Estimates of revenue and expenditure for the year ending 30th June, 1905.

Budget papers, 1904-5.

Memorandum by the Minister of Defence on the Defence Estimates, 1904-5.

Correspondence respecting the suggested prohibition of the introduction, manufacture, and sale of spirituous liquors in Papua.

Senator PEARCE:
Western Australia

– I should like to ask the Attorney-General whether he intends to move that some of the papers which he has laid upon the table be printed, or whether that matter is left to the Printing Committee?

The PRESIDENT:

– Any honorable senator can move . that any papers be printed, but I believe that the papers laid upon the table are all in print.

page 5704

QUESTION

CUSTOMS OFFICIALS AT BROOME

Senator PEARCE:

asked the AttorneyGeneral, upon notice -

  1. Was an inquiry held recently by the Customs Department as to the- manner in which certain Customs officials at Broome, Western Australia, were performing their duties?
  2. Had such officials been suspended from duty ?
  3. Where any reports submitted as the result of the inquiry?
  4. If so, has the Government any objection to lay a copy on the table of the Senate?
  5. Was any action taken as the result of the inquiry ?
Senator Sir JOSIAH SYMON:

– The answers to the questions are as follow : -

  1. Yes.
  2. Yes.
  3. Yes.
  4. The papers are at present in Western Australia, but there will, be no objection to place a copy of them on the table of the Senate immediately they are returned.
  5. Yes. One officer was reduced in salary, and (with another officer) was severely cautioned and warned that any further dereliction of duty will lead to dismissal. In addition, the officers are to be transferred to the head-quarters of the State where they will be under closer supervision.

page 5704

QUESTION

RUSSO-JAPANESE WAR

Senator HIGGS:
QUEENSLAND

asked the AttorneyGeneral, upon notice -

  1. Is Captain Creswell, Commandant of the Naval Forces of the- Commonwealth, correctly reported in the Melbourne Argus of the 6th October, as follows : -

RUSSIAN MEN OF WAR OFF THURSDAY ISLAND.

Captain Creswell, when seen to-night, said that he was of opinion that one of these war-ships may be the vessel that the Japanese allowed to leave Fort Arthur with women, children,and- noncombatants on board, some time ago, and whose arrival at any port had not yet been notified. He thinks, at the same time, that the presence of these vessels may be part of a general policy of Russian interference with British trade.

  1. If correctly reported, what authority has

Captain Creswell for suggesting that it is Russia’s general policy to interfere with British trade?

  1. Has not H.R.H. King Edward VII. (acting on the advice of the Imperial Government) requested that the Australian Commonwealth shall take up a neutral position with regard to the Russo-Japanese war?
  2. If Captain Creswell has been correctly reported, will the Minister of Defence draw his attention to the order concerning neutrality ?
  3. Has the Minister of Defence observed the following cable in the Melbourne Herald of the 7th October instant : -

BRITISH SHIP CHUSAN.

Bailed up by Japanese.

Examined on the High Seas.

London, Thursday Night.

The P. and O. Company’s steamer Chusan, 4,636 tons, has been overhauled on the high seas by a Japanese cruiser.

The Chusan was steaming near the Miao-tao Islands, in the Gulf of Pe-chi-li, northwest of the British Chinese leased port of Wei-hai-wei.

The cruiser fired ahead of her, as a notification for her to bring up, and the Chusan was stopped.

Japanese officers boarded and examined the vessel- and her papers, and she was then released.

  1. Has the Minister of Defence observed the following extract from a cable in the Melbourne Age of Tuesday, nth October, instant : -

BRITISH BLOCKADE RUNNERS.

London, 10th October.

The Japanese Blorkading Squadron in the Strait of Chi-li has stopped another British steamer, the Victoria, near Weihaiwei, the British port in Shan-tung. The Victoria’s papers and cargo were in order, and she was allowed to go on her way after examination.

  1. Will the Minister of Defence ask Captain Creswell whether the stoppage of the British steamers, Chusan and Victoria, may be part of a general policy of Japanese interference with British trade?
  2. If Captain Creswell is not correctly reported in the Argus of the 6th October instant, will the Minister of Defence suggest to him the advisability of sending a letter to the Argus pointing out reportorial errors?
  3. Will the Minister of Defence issue a proclamation inviting certain newspapers - The Melbourne Age and the Sydney World’s News, to wit - to refrain from publishing unfair, unjust, and biased articles, paragraphs, and cartoons calculated to bring the great Russian nation into contempt amongst Australians?
Senator Sir JOSIAH SYMON:

– I cannot think that my honorable friend - who is always so solicitous for the time and dignity of the Senate - is really serious in placing these questions on the notice-paper ; and therefore I do not propose to answer them.

Senator HIGGS:

– I wish to ask a question arising out of that reply. Does not the Attorney-General consider that the action of the Commandant of the Naval Forces of the Commonwealth, in expressing the opinion that the presence of Russian vessels may be part of the general Russian policy of interference with British trade, is a contravention of the neutrality which it has been laid down should be adopted by Australia in the present trouble between Russia and Japan?

The PRESIDENT:

– I do not think that that is a question arising out of the AttorneyGeneral’s reply.

Senator HIGGS:

– The honorable and learned senator has refused to answer my other question.

Senator Sir JOSIAH SYMON:

– It may save time if I say - and I have no objection to saying - that I do not think that an expression of opinion of the kind referred -to is any violation of neutrality. That is my view.

page 5705

QUESTION

PACIFIC CABLE CONFERENCE

Senator STANIFORTH SMITH:
Postmaster-General · WESTERN AUSTRALIA · Free Trade

asked the Attorney-General, upon notice -

If the Government will lay upon the table of the House a copy of the instructions given to Lord Jersey as their representative at the Pacific Cable Conference to be held in London next November ?

Senator Sir JOSIAH SYMON:

– It is not considered to be advisable to do what is asked at the present stage.

page 5705

QUESTION

PARLIAMENTARY LIBRARY

Senator STANIFORTH SMITH:
Free Trade

asked the Attorney-General, upon notice -

  1. Is it a fact that all books purchased since May,1901, for the Parliamentary Library have been removed to the State Parliament House?
  2. Does the Ministry not think it is injurious to Federal legislation’ that members should be dq.rived of access to all political and economic works issued since that date?
  3. Is it the intention of the Ministry to rectify this anomalous state of affairs . by placing a larger sum on the Estimates for the purchase of books to form the nucleus of a Commonwealth Library ?
Senator Sir JOSIAH SYMON:

– The answers are as follow: -

  1. It is a fact that the books purchased since May, 1901, by the State for the State Parliamentary Library have been removed to the State Parliament House. 2 and 3. For this reason it is proposed . to provide£250 (which, if necessary, will be provided out of Treasurer’s advance), over and above the amount for books placed on the 19.04-5 Estimates; as the Ministry recognise the advantage of access by members to up-to-date political and economic works.
Senator STANIFORTH SMITH:

– Arising out of that answer, I wish, with the permission of the Senate, to say that I did not desire to cast any reflection-

The PRESIDENT:

– The honorable senator can ask another question, but he cannot make a statement.

page 5706

QUESTION

NORTH-WEST COAST SURVEY

Senator DE LARGIE:
WESTERN AUSTRALIA

asked the AttorneyGeneral, upon notice -

  1. Has the Government noticed the following cable, which appeared in last Monday’s Age and Argus : - “ The steam yacht Sealark, 900 tons, has sailed for the Australian Naval Station, where she will be employed as a surveying vessel.”
  2. Is it the intention of the Government to urge the Naval authorities to carry out the survey of the north-west coast at as early a date as possible ?
Senator Sir JOSIAH SYMON:

– Perhaps I may say, before reading the formal answer, that I am indebted to the honorable senator for giving me a reference to the . debate which took place in October, 1903. It will be understood that the answer is to be read in connexion with the motion then moved. The answer is -

The matter will be brought under the notice of the Naval authorities.

page 5706

QUESTION

ORDNANCE DEPARTMENT

Senator STORY:
SOUTH AUSTRALIA

asked the Attorney-

General, upon notice -

  1. Is it a fact that members of the Civil Service (Ordnance Department) were called upon at the late Easter Encampment to perform the duties of the Army Service Corps, and have received no remuneration for overtime performed, but are ordered to take time off (about ten days each) ?
  2. Is the Minister aware that this course will considerably hamper the business of ‘the Ordnance Department?
Senator Sir JOSIAH SYMON:

– The answers to the questions are as follow: -

  1. This matter was, as intimated in reply to the previous inquiries of the honorable senator on the subject, settled by the late Minister of Defence, Senator Dawson, and my colleague is not prepared to vary the decision then arrived at. It may be stated, however, that the members concerned received no extra payment for the overtime, but, as in the case of others similarly employed in other States, they were allowed to draw their respective rates of travelling allowance during the period that they ware engaged on the duties in question, and it was also decided, in accordance with the Public Service Regulations, thatthey should be granted lime off in lieu of the overtime worked. It is intended that the local authorities shall arrange to grant the time off as suitable opportunities occur, so that the business of the Ordnance branch may be interfered with as little as possible. Instructions have been given to do this as early as possible.
  2. The military authorities take the view that this course would, to some extent, hamper the business of the Ordnance Department, but my colleague, after inquiry, is of opinion that no substantial interference therewith will result from the course of action proposed.

page 5706

MINISTERIAL STATEMENT

Debate resumed from 14th September (vide page 4630), on motion by Senator Sir Josiah Symon -

That the despatch from the Secretary of State for the Colonies, with regard to the adoption of the metric system of weights and measures, within the Empire, be printed.

Senator PULSFORD:
New South Wales

– The period that has elapsed since we last dealt with this subject- makes quite a strain on one’s memory. I do not propose to inflict any speech upon the Senate. I have not the audacity to stand between the business of the country and any - private wish that I may have to reply to statements that have been made in the past.

Senator Sir JOSIAH SYMON:
Attorney-General · South Australia · Free Trade

– I also feel rather like my honorable friend who has just delivered his speech on the subject before the Senate. To revive this matter now, reminds one of the recovery of a long-lost child. We rejoice to find the child, but probably realize . that there may be possibilities of trouble, and perhaps a necessity for chastisement just the same as before. But I think there can be no doubt that the debate which has already taken place on the subject, although it contained some very long speeches dealing with the policy of the Government from very varied aspects, was not without its advantages. My honorable friend, Senator Givens, in the observations which he made on the last occasion, said that it was difficult to discover the policy which, under cover “of this paper relating to the metric system, was outlined by the Government, even with the aid of a microscope. I can only say that if this microscopic policy was successful in evoking speeches of such magnitude and interest, and in promoting the research which was displayed, it must have been not so much like a microscopic fragment, but rather like the grain of mustard seed which grew and prospered until the birds of the air could nest in its branches. I tremble to think what would have happened - to what length the debate would have extended - if the policy had really been visible to the naked eye. Then the progress of the debate was interfered with by the proceedings which occurred in another place. One of the advantages of the interval is that time, which as we know is always a great healer, may have removed whatever feelings of resentments any of us may have momentarily experienced during the progress of the debate. In all probability those resentments have been a good deal worn away. At any rate, so far as my remarks are concerned - and there are one or two which I desire to make, so that the statements to which I shall refer may not appear in Hansard without contradiction - I shall make them, as the phrase is, more in sorrow than in anger. Because, really I feel on this occasion in a most good-natured mood. That is my usual condition - perfect good nature ! I am at peace with all men, including my honorable friends on the benches opposite. I think I may say that, so far as I individually am concerned, I have reason to thank honorable senators - with one exception - for the more than kind references - personal and political - which they have made concerning myself. I do not know, indeed, why it should have been otherwise. Because I think I may say that even in the heat and stress of controversy - and I have never been slow to express, and to assert with as much clearness and emphasis as I have been capable of, my views whether they have been agreed to or disagreed to by other honorable senators - I have never imparted any personal bitterness or feeling to debate, and certainly said nothing that could lead to any estrangement between any honorable senator and myself.

Senator McGregor:

– The honorable and learned senator was very severe on. Senator Drake at one time.

Senator Sir JOSIAH SYMON:

– I hope that that condition of things will always prevail here, as it has prevailed in the past. We have to tolerate, we ought to invite, not merely criticism, but, if I may use the expression, castigation. When it is necessary, I can take it, and I hope when occasion serves I can give it.

Senator Higgs:

– I do not know that the honorable and learned senator can take it.

Senator Sir JOSIAH SYMON:

– I can take it admirably, without any personal feeling of irritation, or anything of that kind, unless charges are made that are unjust.

Senator Higgs:

– It was a good thing that the table was between the honorable and learned senator and Senator O’Connor in the first Parliament.

Senator Sir JOSIAH SYMON:

– With the powerful forces I had on that occasion on my flank, endeavouring unsuccessfully to effect what is called a turning movement, I do not think that any expressions were evoked from me which caused any estrangement between Senator O’Connor and myself. At any rate, I do not think it necessary to vindicate myself within the walls of the Senate in respect of the performance of my duties as a senator, or in respect of the performance of my share in the public duties of the Commonwealth. The exception that I have referred to - and I am exceedingly sorry that the remarks were made - was in the case of Senator McGregor. I am exceedingly sorry, not merely because he is a fellow senator, but because he had just vacated the position which I hold at this table. I feel sure that a little reflection would have induced him either to abstain from making the remarks to which I allude, or . to moderate them in a spirit of fair play. He knows as well as I do that the possession of a caustic tongue and of a vituperative vocabulary is a great gift, but it is also a very dangerous gift, and it is particularly dangerous when associated with or used with a slight indifference to facts. My honorable friend assailed me - and this is what I wish to correct - in respect of my absence from the Senate. He said -

The honorable and learned senator was never here while I was in office.

My honorable friend knows perfectly well that I was here.

Senator McGregor:

– Oh, hardly ever !

Senator Sir JOSIAH SYMON:

– I am reading from Hansard, and if my honorable friend withdraws the remark I shall accept his withdrawal, and say no more.

Senator McGregor:

– Will the honorable and learned senator tell the Senate for how many hours he was here ?

Senator Sir JOSIAH SYMON:

– I am not going to enter into a discussion of the matter in that way. My honorable friend has a memory which is without a parallel, and for which I envy him, and he cannot have forgotten that when, on the only Bill of a controversial or political character, which was introduced here during his tenure of office, namely, the Seat of Government Bill, he concluded his second-reading speech, I followed him in a speech of considerable length. He might have remembered that on that occasion I was present. From what was I absent?

Senator O’Keefe:

– Surely every Bill is of a political character.

Senator Sir JOSIAH SYMON:

– I think I am entitled to vindicate myself from these aspersions. I ask from what was I absent.

Senator Givens, inveighing, as he was entitled to do, against adjournments, said -

We have been in session six months and done n’j work.

Senator Pearce, commenting on the present situation, said -

There is not likely to be much overtime. meaning that the Senate was not likely to be worked overmuch.

Senator Givens:

– But we shall make up for it now.

Senator Sir JOSIAH SYMON:

– I hope so. With the assistance of my honorable friends, I intend that we shall make up for it. It might be said by some persons, that, like the fishermen in the New Testament, we have toiled all night and caught nothing. But the fact is that we have not toiled. When Senator McGregor animadverts on my absence, I ask him from what was I . absent ? During a period of eight weeks, he, as its leader, asked the Senate to adjourn once for three weeks, and twice for a fortnight, not under the pressure of any rio-confidence motion, or anything of that kind, but simply from sheer dearth of occupation. I am informed that I was absent from eight sittings, from the beginning of June, and that was during the time - I am not reflecting on anybody - when the Senate was in what I may describe as a condition of stale-mate. Will my honorable friends believe that I was absent not merely under those circumstances, but with the concurrence, and I think I may say without unduly straining the written word, at the invitation of my honorable friend himself. In the middle of this desert of work, and being anxious that there should be some work to do, I wrote to my honorable friend on July 6th a courteous letter, which I shall read -

My Dear Vice-President,

I observe the Senate stands adjourned until next Wednesday, the 13th inst. I shall be extremely obliged if you, as leader of the Senate, will let me know as early as you conveniently can what you propose as to the course of business - whether there will be business with which you intend to proceed from day to day, or whether there is likely to be a further adjournment. I am anxious to know, as I am extremely pressed with professional engagements, and do not wish to go to Melbourne next week if the Senate is merely to meet and adjourn.

Can there be anything more fair than that ?

Senator McGregor:

– I did not wish to take the honorable and learned senator away from his work.

Senator Sir JOSIAH SYMON:

– Let me proceed. -

If, on the other hand, you anticipate proceeding with business from day to day I shall arrange so as to come over.

This is the reply I received from the Secretary -

The Vic3-President desires me to say, in reply to yours of the 6th inst., that the only Governrn (. nt business for Wednesday is the consideration of reported Bill (Fraudulent Trade Marks Bill) - with the exception of one or two little amendments, a scissors and paste Bill - and on this day he will ask for leave to introduce a Bill relating to the Registration of Trade Marks - another scissors and paste Bill - that Thursday will be devoted to private business, and on this day he proposes an adjournment till the following Wednesday, when he will move the second reading of the Bill for the Registration of Trade Marks and continue business. He, Therefore, thinks that you will hardly consider it necessary to come over next week.

And I did not think it necessary,

Senator Millen:

– And then he upbraids the honorable and learned senator for not coming over.

Senator Sir JOSIAH SYMON:

– I do not complain of the upbraiding, nor of the reflections ; but I do complain of my honorable friend having made an inaccurate narrative of alleged facts the basis of an offensive imputation against me, that I only came here because of the salary which was attached to my office. That was unworthy of ‘him. I not only resent it, but I repudiate it, and I think I have the sympathy of every honorable senator.

Senator McGregor:

– Why, the honorable and learned senator applied for a month’s leave of absence. _

Senator Sir JOSIAH SYMON:

– Having said that as to myself, my honorable friend went oh to assail Senator Drake in very virulent terms indeed. I am not going to vindicate or to be the advocate in that respect of Senator Drake. But it must be a great comfort to my honorable and learned colleague to know that, for more than three years, Senator McGregor, who launched these abominable imputations and charges against him of being wanting in honour, and so on, sat with the most profound docility at his feet when he was not an honorary Minister, but a paid Minister. Senator McGregor, without comment, allowed Senator Drake to take a salary and share Ministerial responsibility, although he considered him worthy of the animadversions which he has now uttered. That, I think, is a sufficient answer” to the imputations. My honorable friend, in order to make them, arrogated to himself the position of being the custodian of the honour of the Senate, in relation to its leadership. But if that be said, then some other senator is the custodian of its modesty. I protest against the very singular doctrine which the honorable senator by implication put forward that it is the honorary Minister who should come first in the Senate. I take the opposite view. It has so happened in the past, for reasons which amply justified it, but I think, and I have always held the opinion, that the Senate is entitled to have a salaried Minister responsible to the fullest extent occupying the position of its leader. My honorable friend will allow me to say that our friend, Senator O’Connor, did not lead the Senate because he was Vice-President of the Executive Council, but because he was Senator O’Connor. That was the situation, and we ought to protest in the strongest manner possible against the suggestion that the Senate, unless in exceptional circumstances, such as existed, it may be, in the case of Senator O’Connor, Senator Playford, and Senator McGregor, should be led by an honorary Minister. I think it should not. I also desire to record my emphatic repudiation of the action of the honorable senator in expressing, I think I may say unjustly, an opinion as to Mr. Deakin, and declaring on the floor of the Senate that he despised him. That expression ought not to have been used of Mr. Deakin, here or anywhere. I am sure, that if Senator Playford, who was Vice-President of the Executive Council in the Deakin Ministry, had been here he would have got up and indignantly repudiated such an imputation. I will not say, but it has been publicly said, that the action of my honorable friends opposite justifies the statement that because a man who has been serving them, and who stands high ‘in the esteem and confidence of the people of this country, exercises an independence of judgment and action, and will not do exactly what they wish him to do, they immediately cast him aside like a soiled glove, and abuse him. That is not right. I do not make that imputation, but I say that we cannot blame people outside for making it if these things are said here. The remarks to which I have referred are extant in Hansard, and I think it right to - indeed, I should be doing wrong if I did not - ex press my views as I have shortly done. But with regard to all the matters of policy and cognate matters which have been dealt with, and as to which I did note a great many things of interest, from’ a number of the speeches which have been delivered, I dp not think it necessary now to say anything about them. Senator Henderson said that he had no fault to find with the policy of the Government in a general sense. I do not see the drift of what may be in the minds of honorable senators, but that was the drift of all their speeches. There were a great many things dealt with in the course of those very able and exhaustive speeches, ‘but little was said as to particular items of the policy which I had the honour of announcing to the Senate. There was little to be said, for the reason my honorable friend gave, that there was no fault to be found with the policy in a general sense. He said we had adopted the same course as his party in sinking the fiscal issue. Of course, we all have objects, and attach different values to those objects. We may be content to postpone some in order that others which we may consider more pressing or more dominant should be dealt with. We may postpone one to which a large, perhaps an undue, portion of public time has already been given, with a view to promote others which have not engaged so much attention. We all recognise our differences. The eggs of this country are not all in one basket. And every member of the Senate, and honorable members of another place, and the community, attach different importance to each of these things, while Ministers have to take very much what they can get. They cannot always get what they desire, or seek, or propose, and behind it all the question is what is the popular will. It is the voice of the people that determines in these modern times all political movements, and all policies, and I venture to remind honorable senators that that was so in the foundation of our Union. It was the popular aspiration and the Federal impulse that brought about the Union, and I think now that if we are animated as we ought to be by the same spirit, the true policy for all of us, according to our own lights, is, in our effort to legislate, to try to do the best we can in the promotion of what we believe to be the highest good, to do no wrong to not merely the humblest citizen, but the humblest, minority of the citizens of this country.

Question resolved in the affirmative.

page 5710

CONCILIATION AND ARBITRATION BILL

Second Reading

Senator Sir JOSIAH SYMON:
Attorney-General · South Australia · Free Trade

– I move -

That the Bill be now read a second lime.

In moving the second reading of this Bill, I recognise, as we all must do, the great importance df the measure. Whilst setting a high value on the principle and purpose of the Bill, I cannot help thinking that as to its immediate practical operation it is viewed, perhaps, with an exaggerated enthusiasm on one side, and with a needless fear or apprehension on the other. I am proud to be in a position to move the second reading. I think it is an honour which any one would appreciate, and which I certainly do very fully appreciate. It will not, I think, be necessary to demonstrate to the Senate the essential principle of the measure. I regard it as a part of that very modern, salutary, and humane legislative effort to substitute in industrial disputes the arbitrament of conciliation, the peaceful arbitrament of an appropriate judicial tribunal, for the violent and barbarous methods of the strike and lock-out. I say violent and barbarous methods, because they bring with them all the attendant passion, and sometimes bloodshed and worse even than that - the untold misery and suffering to innocent people, to women and children. Strikes, which, in their origin, may be merely disputes as to rates of wages, may attain the magnitude of civil war. They may involve a revolt against ordered society and peaceful government. It is so, because we must remember that the accustomed remedy for the trouble was force, and force in combination, and that force in combination very often resulted in conflict with the civil authority. These old methods paralyzed industry ; they sometimes exiled workmen from home and country, and gave trade over to the foreigner ; they involved untold loss on the community. But beyond and above all these things which I have summarized, and which we all recognise, there were the sufferings of . the innocent. Who shall count the tears of the women, or the cries of the children? I have often had in my mind in connexion with the consequences of these methods, which we are at one in desiring to bring to an end if possible, the well-known lines from The Cry of the Children. There is nothing which moves a man like the sufferings of children - there is no motive ‘ which appeals more powerfully to a man in guiding his course of action, than the distress of the suffering child.

But the young, young children, O, my brothers,

Do you ask them why they stand,

Weeping sore, before the bosoms of their mothers,

In our happy Fatherland?

And-

The child’s sob in the silence curses deeper

Than the strong man in his wrath.

Is it not so? And if that is a fair summary in general of consequences, which every one of us deplores, and the removal of which largely underlies this particular kind of legislation, then, surely, every effort that can be made to give for industrial war the blessing of industrial peace will be welcome? The compelling reasons, I do not say for this Bill, but for similar legislation are to avert injurv and loss to employers, to workmen, and to the country, and to promote the interests of humanity. We can never escape from social strife. We cannot escape from national or from international strife. Man, I was going to say, is bom to quarrel and to fight - at any rate, one of the finest qualities which mankind possesses is, when held in proper subjection, the combative instinct. It is found in all spheres of society. We know that it reaches the village, and is asserted by the villager -

Some village Hampden, that, with dauntless breast,

The little tyrant of his fields withstood.

As we go. up and down the scale of social, industrial, and national life, the fighting instinct, the assertion of rights, when they ought to be asserted, and the combative instinct prevail. Whilst it is, therefore, a large undertaking to subdue the combative instinct, it should not be so large an undertaking to regulate and minimize it. In international affairs we know that international arbitration has been brought -about within recent years. I am afraid if only applies to minor disputes. It is, however, not a modern development, although it is largely of modern application.

Senator Higgs:

– The big fellows make the little fellows agree to it; the United States and Venezuela, for example.

Senator Sir JOSIAH SYMON:

– Perhaps the honorable senator is right, but he will see that he uses a two-edged sword. It may apply to large organizations in whatever direotion they are exercising similar power over the individual or a smaller organization. I merely suggest to my honorable friend for his consideration that he uses a double-edged argument. I wish hurriedly to run over the development of this very humane principle. I say that even in international affairs it is not oi modern origin, although it is of modern application, because I find a very distinguished constitutionalist stating recently-

The history of international arbitration reached back to the earliest times of classical antiquity, and ran through the Middle Ages, and in our own time the subject had assumed proportions little di earnt of half a century ago.

The same constitutionalist said, on the same occasion -

Europe had fallen tack upon the plain, less ambitious, but more practical arbitration resting on the consent of the parties to the dispute.

Of course in relation to these matters there must be consent.

And they might hope that its adoption, though it never could abolish war, would at least greatly diminish its frequency.

And he points out a principle which, I think, we might bear in mind, and apply so far as we can to these matters of industrial disputes when he says -

In truth, no international authority, with the power to inforce the decrees of the tribunal of arbitration, was either necessary or desirable.

Senator DAWSON:
QUEENSLAND · ALP

– But there is a difference between outside disorder and disorder within one’s own territory.

Senator Sir JOSIAH SYMON:

– That is so.

Senator Guthrie:

– Who is the authority quoted ?

Senator Sir JOSIAH SYMON:

Sir Robert Finlay, the present AttorneyGeneral of England, a gentleman whose qualifications to express an opinion on such’ a subject from the historical point of view, and from the point of view of juridical principle, cannot be exaggerated. But we know quite well that that feeling largely enters into these matters of national and international disputes, and in graver questions there is still, unfortunately, the arbitrament of the sword. The honour of a nation cannot go to arbitration. When I speak of the honour of a nation I fear that we must include in the expression its ambition and its desire of territorial aggrandizement, and not less those national animosities, which very often prevail between nations. The difficulty in international arbitration is the absence of what lawyers call a “ sanction.” There must be a reference by consent, as Sir Robert Finlay says, because there is no international authority with power to enforce the decrees of the tribunal. There is no complete sanction, but there is this : There is the honour of the nation itself, and it is that which secures, as we know it has done in the past, the performance of the award which may happen to be made in relation to any international dispute. If, therefore, these efforts have been made - halting and incomplete it may be, as my honorable friend Senator Dawson has just pointed out, by reason of the distinction to which he has alluded - and if these efforts have proved successful, in a number of instances which I need not detain the Senate to quote, in relation to international affairs, I think we may very fairly look hopefully to the possibility of applying them in relation to our own internal industrial disputes. The difficulty which faced those who undertook this great subject, in the first instance, was to reconcile arbitration by consent and arbitration by compulsion. The steps in the first instance were tentative, and I think I may say, in no spirit of depreciation, that these efforts are still more or less in the experimental stage. That is true, as has been admitted, of the New Zealand Act. It is true of the New South Wales legislation, and probably it will also be true of this measure when it comes into operation. But that should not deter us from making the effort so far as we can, and making it as efficient as we can. We need not invite difficulties or meet them on the threshold, but if they arise it is our duty to endeavour to overcome them. I am speaking now of the legislation that has already existed, and of which I am giving a brief historical summary in relation to the principles underlying it. I say that, though compulsory, the efficacy of the law, to my mind, just as in regard to international disputes and awards, must rest, not on penalties and punishments alone, but on the inborn law-abiding sense of the people, and on the force of a just and intelligent public opinion. These forces will always apply. When we are speaking of compulsion, and of the provisions we seek to embody in an Act of Parliament of this, nature, we must never forget that over and above all, and aiding all, is the force of a true and just public opinion. Mr. Reeves, in moving in the New Zealand

House of Representatives the original New Zealand Conciliation and Arbitration Bill, said -

We are a law abiding people. The people of the Colony respect the law whether some of them like particular laws or not. I do not think the law will be set at defiance by any class of the community.

These being the principles applicable, and the objects to be gained, legislation of this sort was introduced in South Australia first in 1890.

Senator Playford:

– But it was not compulsory.

Senator Sir JOSIAH SYMON:

– I was going to point that out. I remember very well that when the measure was introduced it was mentioned that there had already been a Bill, a copy of which was not ‘ then to be obtained, introduced in the New South- Wales Parliament by the late Sir George Dibbs, then Mr. Dibbs, with the same object. But there can be no doubt of this - that the true credit of’ having embodied a carefully thought-out scheme on this subject in a most lucid printed Bill belongs to the Right Honorable C. C. Kingston, who, if by nothing else in his public life, deserves by that measure to be permanently held in remembrance. With respect to that I think I may be excused for giving this little personal reminiscence. The draft Bill was submitted to me before it was finally in print. I regard that as not merely a compliment from Mr. Kingston, who was then in politics while I was not, but as an acknowledgment of a desire which I shared with him at that time, and always have shared, that some effort should be made to secure the arbitrament of a tribunal in respect of industrial disputes in substitution for the. methods to which I have already alluded. That Bill was introduced at the end of the session of 1890, not for the purpose of attempting to pass it, but in order to inform the mind of Parliament and of the people of South Australia on the subject, and to give the country, from a statesmanlike point of view, an opportunity to study the question and to form an opinion upon it.

Senator Playford:

– It was not compulsory.

Senator Sir JOSIAH SYMON:

– The Bill ,was re-introduced in the following year, 1891, and, finally, after other steps, which my honorable friend, Senator Playford, will recollect, . and which I need not occupy the time of the Senate by de- tailing, it was in 1894 introduced in the Legislative Council. I may here say that I see no reason whatever why this Conciliation and Arbitration Bill should not, at its inception, have been introduced in the Senate. Possibly, if that had been done, many things which have since taken place might have been avoided. There is the precedent which I have mentioned. . It was introduced, as I have said, in the Legislative Council in 1894, and it became law.

Senator McGregor:

– With the inside taken out of it.

Senator Sir JOSIAH SYMON:

– My honorable friend Senator Playford has remarked that that measure was not compulsory. I. do not agree with my honorable friend Senator McGregor that the inside was taken, out of it, because the scheme of the Bill was carried as introduced, and the honorable senator who now says that the inside was taken out of it approved of it at that time.

Senator McGregor:

– I did nothing of the kind.

Senator Sir JOSIAH SYMON:

– The honorable senator said, in the Legislative Council, that the Bill was not all that he desired, but he concurred in its being passed.

Senator McGregor:

– I could not help it.

Senator Sir JOSIAH SYMON:

– There is a difference between opposing a Bill and giving it one’s blessing when it is passed by a Chamber of which one is a member. But I frankly acknowledge that many, if not all, holding the views of honorable senators opposite, and belonging to the party which my friend represents, were wry slow to give their approval to any system of arbitration, compulsory or otherwise. Because, like other people, the Labour Party had not at that time reached a decisive point of judgment on the subject. I am not at all reflecting upon them. I think that it is desirable that the process of coming to a conclusion on an important matter of this sort should be slow ; and I think all parties on all sides, and all interests, might very well, so to speak, seek time for consideration before making a departure which is very grave and very vital.

Senator Best:

– The South Australian Bill made a very substantial advance, though, because it gave the force of law to the enforcement of an award.

Senator Sir JOSIAH SYMON:

– I was about to point out that. We have an example in England at this moment. One of the most notable conferences of trade unionists has recently taken place at Leeds. It was presided over by a very distinguished unionist, Mr. Bell. A proposal for arbitration for the settlement of industrial disputes was defeated by a nearly three to one vote.

Senator Givens:

– Why?

Senator Sir JOSIAH SYMON:

– All that I know is that it was defeated.

Senator Givens:

– Because they are afraid of the constitution of the Court.

Senator Sir JOSIAH SYMON:

– They may, or may not be ; but I do not agree with my honorable friend in his criticisms the other day, and those of Senator de Largie, with regard to our judicial officers.

Senator DAWSON:
QUEENSLAND · ALP

– Not very long ago they objected to eight hours.

Senator Sir JOSIAH SYMON:

– I rejoice in the liberalism of trades conditions. I rejoice in the relief that has already been secured; and I rejoice that the efforts that have been made have, in many directions, been so successful. But I believe, at the same time, that there are no men on this planet who rise so completely above the level of local conditions and local influences, who are so absolutely free from bias and so impartial, bending neither to the one side nor to the other, as are the Judges of our countrv ; and I do not believe: there is any likelihood of a measure of this sort being defeated by an assumption that the Judges will not do even-handed justice.

Senator Dobson:

– I do not think there is a word in the Times report of the Trade Unions Congress which expresses Senator Givens’ objection - not a syllable.

Senator Sir JOSIAH SYMON:

– I merely mention that, not with a view of suggesting that conciliation and arbitration for the settlement of industrial disputes may not be effected in the mother land, but to bear out the remark I have just made in vindication of any hesitation on the part of the labour organizations, in the early stages of this legislation, to accept it. The same slow, gradual process of conviction may, I hope, make itself felt upon the minds of those in England who, by a majority of nearly three to one in the conference to which I have referred, have just negatived a proposal for conciliation and arbitration.

Senator DAWSON:
QUEENSLAND · ALP

– Does the honorable and learned senator suggest that we. ought to wait until the minds of people in England are changed?

Senator Sir JOSIAH SYMON:

– I am not suggesting that at all.

Senator Best:

– Otherwise the honorable and learned senator would not be moving the second reading of this Bill.

Senator Sir JOSIAH SYMON:

– Of course not. As my honorable friend Senator Playford has reminded me, there was no compulsion under the first South Australian Act. That Act, unfortunately, was, as a result, largely a dead . letter. It depended on registration. Without registration there was no enforceable award. No award was to affect any one who had. not submitted. The provisions against strikes were against strikes by, or on the part of. registered associations. That measure, nevertheless, was an enormous advance.In fact, it was the foundation of the subsequent legislation which has been passed elsewhere. But, under the conciliation and other provisions of that South Australian measure, which has been, I think I may say, a most satisfactory adjustment of various industrial disputes in South Australia.

Senator Guthrie:

– Some disputes were prevented by it.

Senator Sir JOSIAH SYMON:

– There cannot be prevention unless there is a dispute.

Senator de Largie:

– The Bill may have prevented strikes.

Senator Sir JOSIAH SYMON:

– That is another thing. That is a distinction to which I hope to invite the attention of honorable senators presently. But until there is a dispute there is nothing to arbitrate upon. The object of the legislation was to prevent strikes. That was the first legislation, so far as South Australia is concerned. In the meantime - before 1894 - New Zealand seized upon the idea, and the whole scheme gradually took a clearer form. The essential position was better understood by the time the New Zealand Act was passed. The object then was - and these, it seems to me, are the two cardinal principles basing this kind of legislation - on the one hand, to prohibit strikes and locks-out; and, on the other, to provide ‘ an adequate remedy for the grievances causing those strikes and locks-out. Those are the true and essential principles which formulate themselves in my mind. We have no right, it seems to me, to take away a means of redress - whatever it may be, or of whatever character - in respect of grievances on the one hand, unless, on the other hand, we provide some other means, of giving redress.

Mr. B. R. Wise put it in this way in an article which he contributed to the National Review, some time ago -

An industrial dispute is a public nuisance to be restrained by law like any breach of the peace.

I should not, myself, have put the principle quite in that form, but Mr. Wise’s sentence expresses and conveys to the mind essentially the. purpose we seek. To accomplish that object, there can be no doubt - and we cannot disguise the fact - that we do interfere with the liberty of the workman as well as with the liberty of the employer.

Senator de Largie:

– Strikes have often been a nuisance to the public.

Senator Sir JOSIAH SYMON:

– That is exactly what Mr. Wise points out. Here I should like to say that a great deal of unnecessary comment has been made in respect of some remarks by the Chief Justice of New South Wales. With the permission of the Senate, I shall quote his words, which embody his opinion of the effect of this legislation. But the question which always remains is - “Are you justified, to a certain extent, in interfering with individual freedom on the part of employers on the one hand, and employes on the other, for the accomplishment of some higher object?” That is what it all comes back to.

Senator Givens:

– All law is an interference with individual liberty.

Senator Sir JOSIAH SYMON:

– To a certain extent it is; and, therefore, I think, that the introduction of heat in reference to the language of Chief Justice Darley was unnecessary. His words embody a true description, but they do not deal with the opposite side of the ..question. They do not show the other side of the shield. They do not show how far that interference is within proper limits, or how far it is justified by the end in view. He said -

It is also beyond all question that the Arbitration Act, as enforced in this State, is an Act which is an abrogation of the common law.

Nobody can deny that.

It does encroach upon the liberty of the subject as regards person and property.

Nobody can deny that. lt creates new crimes unknown to the common law, to any previous statute.

Nobody can deny that. I may say that Chief Justice Darley seems to put the point admirably -

It interferes with the liberty of action of both employer and employé. It precludes the one from giving, and the other from obtaining, employment, except upon terms settled by the Court. It has the effect of preventing persons from obtaining employment at their own specific calling, except upon terms imposed by the Court. It deprives the employer of the conduct of his own business, and vests the management in the tribunal formed under the Act, and it can prescribe terms of management, which, however injurious they may be, the employer must comply with, under penalty for any breach of their order.

That is, I think, a very fair summary. But it gave rise to a very great deal of animadversion at the time. I reproduce the passage in order to say that I think that that animadversion was rather misapplied and undeserved ; and that the true inwardness - if I may so express it - of these observations was perfectly within the competence of the learned Judge who made them, and that they really expressed no more than we may very well admit.

Senator McGregor:

– But he was expressing an opinion upon legislation which he was supposed to administer.

Senator Sir JOSIAH SYMON:

– And he had a perfect right to express an opinion on that legislation.

Senator Findley:

– Not a one-sided opinion, though.

Senator Sir JOSIAH SYMON:

– My honorable friend does not agree with me. I think the opinion is not one-sided.

Senator Givens:

– The honorable and learned senator himself said that it revealed only one side of the shield.

Senator Sir JOSIAH SYMON:

– It is not one-sided as to the Arbitration Act itself. But it does not deal with the question whether this interference with liberty may not be wise and necessary, in order toattain some higher end in the public interest.

Senator O’Keefe:

– Does not the honorable and learned senator think that Chief Justice Darky’s remarks created a wrong, impression ?

Senator Sir JOSIAH SYMON:

– I really do not think so. At any rate, they produced no wrong impression upon my mind, and I feel quite able to disentangle myself from any possible inference, such ashonorable senators opposite seem to draw from them - if I saw anything of the kind, which I do not. In New Zealand, in 1694,. as I have explained, a Conciliation and Arbitration Act was passed. That was succeeded in 1900 by a consolidating measure. Upon that measure I should like to read aparagraph from a most interesting report by two gentlemen whom we have the honour of having as our colleagues - Senator Best, and Senator Trenwith - in 1899, as to the operation of the New Zealand Act. I shall quote one paragraph, not merely because of what they express as the result of their observations and researches, but because it contains an expression of opinion by a gentleman who is said here to be one of the largest employers of labour in New Zealand. It is a report on the system of dealing with the Unemployed, the Conciliation and Arbitration Act, Land Settlement, and various other matters of interest in that Colony. On page 13, I find this paragraph

We made careful inquiries as to how the operations of the Act were viewed from both the employers’ and workmen’s stand-point, and met leading representatives of each side. We were much indebted to the right honorable the Premier for arranging a conference for us with the members of the Court, Messrs. Thompson and Slater, representing the employers and workmen respectively, together with several members of the Board of Conciliation for Wellington, with whom we fully discussed the working of the Act. We were assured that the more reasonable class of employers regarded the Act as fairly satisfactory, but there were other employers, however, who complained they had not the same exclusive privileges of managing their businesses as formerly. The Act is certainly popular with the workmen. Speaking at a special meeting of the Dunedin Chamber of Commerce on the 19th October, 1897, to consider certain Bills then before Parliament, Mr. James Mills, the managing director of the Ur.ion Steam-ship Company, one of the largest employers of labour in New Zealand, is reported by the Otago Daily Times to have said that, “ personally, he thought the Conciliation and Arbitration Act was a very beneficent one. . . .”

Senator Gray:

– Has he not modified that statement since then?

Senator Sir JOSIAH SYMON:

– If he has qualified the statement in any way, I am not aware of it.

Senator Best:

– It is only very recently, if he has.

Senator Sir JOSIAH SYMON:

– In any case, I am merely reading the statement as it is given in this report, and I am sure that Mr. Mills, if he comes to know that I have alluded to it, will not think that I am doing him an injustice if I do not mention any qualification, if there is any.

Senator Best:

– I do not think so.

Senator Findley:

– The conversion has been the other way. Those who were oppose’d to this legislation at first, now believe in it.

Senator Sir JOSIAH SYMON:

– Probably it may be said that those who were called in to curse, remained to bless. The report continues - “ Personally, he thought the Conciliation and Arbitration Act was a very beneficent one, and one of the most important that had been passed, and he felt they were under a debt of gratitude to the present Government and Mr. Reeves for maturing the Bill and passing it in its present shape. Probably the measure was capable of improvement, and it would be improved from time to time, but he was sure that compulsory arbitration was the true solution of all labour difficulties.”

The whole of the report is very interesting, but that is the passage which more particularly refers to the point we are now considering. In 1900 Western Australia legislated, and in 1901 New South Wales followed suit. Before I leave this brief historical summary of State legislation on the subject, I wish to say that the objection has been taken that legislation of this character is calculated to multiply disputes. That probably is true, but I do not consider that that is any demerit or defect. It brings to the surface disputes. Of course, “ the means to do ill deeds makes ill deeds done.” But that equally applies to good deeds. There might be many disputes which would not lead to strikes, yet why should they go unredressed? Surely a grievance, df it exists, should have an opportunity of being dealt with. It is better to settle it in some way or other than that there should be a sort of running sore, and a condition of permanent discontent in the minds of even the humblest of the workmen. I do not regard that objection as of any moment. There is a later Act in Western Australia to which T do not refer, but that, speaking generally, was the state of the legislation when Federation came along. The fundamental principle of our Federal union is that the States shall retain control of their social and industrial legislation. If it is intended . that that principle shall be invaded in any way, that we shall take away from the States any portion of that power in respect of social and industrial legislation, it must be plainly expressed in the Constitution. Ours is not like the Canadian Constitution, which is what I may call a drag net kind of Federal Constitution ; it leaves to the constituent provinces only certain specific matters of control and legislation, and sweeps into the Federal net everything else. Our Constitution is framed on the opposite plan and specifically withdraws from .the States only those matters of national import which are to be dealt with by the Commonwealth in the national interest leaving to the States everything else. With us the drag net, so to speak, is in favour of the States. The principle, therefore, which we have to apply, and which I think ‘we all do apply, particularly in the Senate, which is (the States House, is that we must, as far as we can, if there is an ambiguity or a doubt, give the benefit of it ito the States, and not to the Commonwealth. That is the initial view. I shall offer two or three other considerations directly. It will be seen that this may involve a question of the interpretation of the Constitution and of State rights in a very important fashion. Whatever view we take, we here, as the representatives of the States as States, are especially charged to protect their interests and their powers of selfgovernment. We must be careful that we 4p not impinge on those powers and rights, at any rate, unless we are satisfied that they will be protected somewhere else.

Senator Trenwith:

– But that consideration does not arise anywhere in this Bill.

Senator Sir JOSIAH SYMON:

– I think it arises in the inclusion of ,the railway servants.

Senator Trenwith:

– If a dispute extends beyond the boundaries of a State, it is within our power to intervene.

Senator Sir JOSIAH SYMON:

– I am obliged to my honorable friend for reminding me of that consideration, with which I shall deal presently. When the Convention sat, a great many matters were dealt with. It was urged in the first, as well as the closing session, that under certain conceivable circumstances, an industrial dispute in a State might fill the Commonwealth area; might overflow from the State of origin into another State, or other States. It was urged that by overspreading Australia it might assume a national magnitude, so as to be a menace to the nation, and that if that condition of things arose, it was desirable that the whole of the people, as distinguished from the people of one State, should deal with it. Therefore, it was proposed that, in the case of an overspreading dispute of that character, the Commonwealth Parliament should have the power to legislate. I was not in favour of the insertion of the provision in the Constitution. I never ceased to be strongly in favour of applying to these disputes some method of arbitration, but I was not in favour of the introduction of the provision into,the Constitution. At the Adelaide session the proposal was defeated, but at the final session in Melbourne it was carried by a majority of only three. On that occasion I said, at page 189 -

If this is to be carried out, it will create the greatest possible difficulty arid complication, notwithstanding which all it does is simply to embody an expression of the sentiment of kindliness and goodwill. . . . ls it the desire of the representatives of any State that their industrial affairs shall be placed under the control of the Federal authority ?

If that observation can be applied in connexion with all the ordinary industrial affairs, as we understand them, that is on the part of employers, whether individuals or companies, how much more will it apply in relation to the States and their own State enterprises ?

Senator Pearce:

– And the honorable and learned senator recognised that there was a possibility of it applying to State enterprises ?

Senator Sir JOSIAH SYMON:

– No > that never entered my mind.

Senator Pearce:

– Why bring forward the objection ?

Senator Sir JOSIAH SYMON:

– What I had in contemplation was not State enterprise, conducted by the Government, but the industries of the State, in the ordinary sense of the term.

Senator Pearce:

– But the honorable and learned senator just said that he meant that to be included ?

Senator Sir JOSIAH SYMON:

– No; I did not. I was not in favour of the insertion of this provision. Because I felt, and I still think, that it will create difficulties. It will still give trouble in its application. It opens up a vista of litigation, which may be acceptable in some quarters, but not to the general body of the people. In opposing the insertion of this provision in the Constitution, I was in excellent company, because Mr. B. R. Wise took the same view as I did. I think my honorable friends will readily understand that we acted from no narrow point of view when I say that my friend Senator Dobson voted for its insertion. And I ought to mention that Senator Trenwith, who voted for its insertion, joined in the debate with an ability which, if he will allow me to say so, he showed throughout the proceedings of the Convention. Well, there the provision is, and, being in the Constitution, it is part of the necessary equipment- of the Commonwealth. It is our duty not merely to put it in force, but . also to make it effective, if we can. This I regard as a machinery Bill, just as much as some of the other Bills which have been introduced. We may differ on the details, but it is incumbent on any Ministry and on the Parliament to exercise this power, and, as I say, to make it effective. I think that this

Bill exercises the power, and makes it effective, but in making it effective care is needed not to overstep the line, or to come in conflict with the State jurisdiction or control. The provision, as it is contained in section 51 of the Constitution, reads as follows : -

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

This Bill recognises in its definition clause that limitation. It is important that we should bear in mind that, according to clause 4 - “ Industrial dispute “ means a dispute in relation to industrial matters . . . and extending beyond the limits of any one State.

The guiding and governing words, which we ought to bear in mind, and to which. I shall invite the attention of honorable senators in connexion with another question, are “ extending beyond the limits of any one State.”

Senator Guthrie:

– Are they not the , words “ prevention and settlement “ ?

Senator Sir JOSIAH SYMON:

– It is a dispute beyond’ the limits of any one State, and a dispute of that character only to which the words “prevention and settlement” apply. That is a point in respect to which I desire to remove any possible misapprehension. Honorable senators must not cherish the illusion that this provision enables us to interfere with a dispute while it is yet within the borders of a State. I see that some discussion took place elsewhere on this point’, and the words “ likely to extend “ were used. I venture to say that that is no part of the definition. When we apply our minds to the Bill in Committee, or at any other time, we should avoid running away with the notion that we are dealing with disputes that are “ likely to extend “ beyond the limits of a State. Extending beyond the limits of a State means that the dispute must have gone outside the borders of one State- and into another before this legislation can touch it.

Senator de Largie:

– Unless we are invited to deal with a dispute before that takes place.

Senator Sir JOSIAH SYMON:

– I am obliged to my honorable friend for his interjection. . There is a provision in the Bill which enables the Commonwealth Court to deal with disputes at the request of a State. Whatever the moral effect of that might be - and I am certainly not going to suggest its omission - I gravely doubt whether it is constitutional. I gravely doubt whether any State can shuffle . off its own responsibilities in that way. I wish to be perfectly frank about this. The State, in its control of its own industrial disputes within its own territorial limits, must deal with them and settle them as best it can.

Senator Givens:

– Could not a State appoint a Commonwealth Court to decide the matter for it?

Senator Sir JOSIAH SYMON:

– In my humble opinion, a Commonwealth Court has no power to deal with any dispute that is local - that is within the territorial limits of a State - even if requested by a State Court to deal with it.

Senator Best:

– On the principle that consent cannot give jurisdiction.

Senator Sir JOSIAH SYMON:

– That is the technical reason. I wish to put it quite clearly as my view - with all deferenceto any opposing views which may be slated - that the word “prevention “ does not enable us to interfere with the industrial troubles of a State on the pretext that they may extend, or are “likely” to extend, beyond its borders.

Senator Trenwith:

– How can these words apply if they do not apply in that way ? Have they no meaning at all ?

Senator Sir JOSIAH SYMON:

– They may or may not have some other application, because ‘ ‘ prevention, ‘ ‘ as used in the Constitution, can never apply to a dispute until it has arisen.

Senator Trenwith:

– I think the honorable and learned senator made that point before.

Senator Sir JOSIAH SYMON:

– I made that point before. The honorable senator will remember that we were not in the Convention using words by plumb and rule. Everybody recognises that a Constitution is not bound in fetters with the rigidity of even an Act of Parliaments Honorable senators will see that whatever meaning is to be attributed to, and whatever effect is to be given to, the word “ prevention,” it must be an effect applicable to the kind of dispute to which it applies, namely, a dispute which has overspread into the Commonwealth area, as distinct from the State area.

Senator Dobson:

– The Convention had the maritime strike in view.

Senator Guthrie:

– That could not possibly have been settled by any one State.

Senator Sir JOSIAH SYMON:

– In Committee, if I can be of any assistance to honorable senators, I shall place my services unreservedly at their disposal in dealing with some of these difficult points. Of course, some points may be suggested which may not arise now, but I am giving my views as fully as possible, in submitting what I think is an elucidation of the Bill.

Senator Givens:

– We shall make it as good a Bill as we can.

Senator Sir JOSIAH SYMON:

– Exactly, and I say I am going to help to do so. Then we come to the next thing which we have to do, and that is to provide for the settlement of these disputes. In making this as good a Bill as we can, we have to bear in mind what it is we are dealing with, namely, disputes extending beyond the limits of a State, because though you cannot prevent a dispute, you can prevent a strike by settling a dispute.

Senator de Largie:

– There is no restriction as to the kind of dispute - whether it arises under State enterprise, or otherwise.

Senator Sir JOSIAH SYMON:

– That is a point on which we may not agree. My honorable friend will bear with me, because I intend to deal with that in detail.

T think it right to do so, as it is one of the most important matters arising under the Bill. I am dealing now merely with what the Convention did. Once a dispute becomes national as distinct from State - as to territorial area, that is what it means, and not as to atmospherical disturbance - we apply the same provisions to it as we should apply if it were purely a State matter dealt with by a State. It becomes Federal and national, and I point out that there is a parallel in one part of the jurisdiction of the High Court, where we have “ controversies “ as thev are called between States. This is exactly in the same position. We are to give jurisdiction to this newly created tribunal in respect of disputes that have gone beyond the boundaries of a State, and have extended to another territorial jurisdiction. Having made these general observations on the Constitution and the fashion in which the provision got into it, I may say that those of us who resisted its being put into the .Constitution cannot be charged with doing so from any antipathy to the great doctrine of conciliation and arbitration in such disputes.

Senator Guthrie:

– The honorable and learned senator’s argument would make it absolutely ineffective in any Inter-State dispute.

Senator Sir JOSIAH SYMON:

– Not at all. I was merely saying, in self vindication, that the opposition to the insertion of these words in the ‘Constitution was not due to any antipathy to conciliation and arbitration, because associated with the opposition to their insertion were such men as Mr. B. R. Wise, who is, we know, the author and one of the strongest advocates of compulsory conciliation and arbitration in New South Wales.

Senator Givens:

– Men who voted against their insertion may have done so from entirely different motives.

Senator Sir JOSIAH SYMON:

– What motive could Mr. Wise have had for voting against their insertion?

Senator Givens:

– He might have had one motive, whilst some one else might have had another.

Senator Sir JOSIAH SYMON:

– I shall tell my honorable friend what I think the motive was. I think it was that we should be very guarded and careful about enlarging the interference of the Federal authority with State affairs. There was in the Convention a jealousy, and a justifiable jealousy, of Commonwealth encroachment upon State rights.

Senator Walker:

Sir Edmund Barton, Mr. Justice O’Connor, and Sir Philip Fysh were also against it.

Senator Sir JOSIAH SYMON:

– In those circumstances, the provision to which I have beer referring was inserted. I think, as honorable senators will see, that there may probably be difficulties yet. Quite irrespective of the provision in this Bill with respect to State public servants, the States may be brought into conflict by its operation in other regards. I do not wish to prophesy evil of any sort or description. I hope there may be none. I still, however, adhere to the view I entertained some time ago, that there are possibilities of difficulties which I hope may not arise, but that they exist I think now, as I did then.

Senator Guthrie:

– The honorable and learned senator will admit that disputes may arise which a State cannot settle.

Senator Sir JOSIAH SYMON:

– I am not very sure of that. I should not like to admit that now. I am rather inclined to think that State jurisdiction might settle practically everything. But now that we have this provision it is our duty to assume that there are, or may be, disputes which the

States could not settle, and which may become national, and it is, therefore, for us to make this Bill as perfect as we can to deal effectively and justly with any such disputes. I do not propose to go through the various clauses of the Bill. That should not be necessary, as we shall have an opportunity to deal with them in Committee. I wish to say, generally, that the Bill is not intended, and will not give any benefit to individual employes. It is only as members of organizations that they can secure any benefit under this Bill.

Senator Givens:

– It is based on organization.

Senator Sir JOSIAH SYMON:

– Quite so. The individual employé and the individual employer, except as defendants, are substantially excluded from its operation. Employers are debarred in just the same way as employes from bringing a dispute before the Court, unless as members cif an organization. The Bill does not provide a means for the settlement of disputes between employers and non-associated workmen. Whatever differences there may be between them, there is no means provided by’ this measure for settling such disputes. It rests, as Senator Givens has very properly said, upon organization. I propose to hurriedly refer to some leading clauses, and then to deal with two very vital and most controversial provisions before I close. The objects of the measure are set out in clause 2. They are -

To prevent lock-outs and strikes in relation to industrial disputes.

That involves, as I said in my introductoryremarks, a reciprocal obligation on the part of the Parliament to provide some other remedy. The other remedy is -

  1. To constitute a Commonwealth Court of Conciliation and Arbitration having jurisdiction for the prevention and settlement of industrial disputes ;
  2. To provide for the exercise of the jurisdiction of the Court by conciliation, with a view to amicable agreement between the parties.
  3. In default of amicable agreement between the parties, to provide for the exercise of the jurisdiction of the Court by equitable award. Then there is the provision to which Senator de Largie has alluded -
  4. To enable States to refer industrial disputes to the Court, and to permit the working of the Court and of State industrial authorities in aid of each other ;

Perhaps I may say, parenthetically, that the reason why I doubt the constitutional efficacv of that provision is that this Commonwealth Court and Commonwealth legis lation being restricted by the Constitution to disputes extending beyond the territorial area of a State, we cannot by legislation enlarge “a power which is so limited.

Senator Fraser:

– We must amend the Constitution first.

Senator Sir JOSIAH SYMON:

– We shall have to amend the Constitution first, it seems to me. Then the objects are further stated to be -

  1. To facilitate and encourage the organization of representative bodies of employers and of employes, and the submission of industrial disputes to the Court by organizations, and to permit representative bodies of employers and of employes to be declared organizations for the purposes of this Act.
  2. To provide for the making and enforcement of industrial agreements between employers and employes in relation to industrial disputes.

These are the objects. I pass by the definition of “ industrial dispute “ for a moment, because, to a controversial portion of that, covering the inclusion of public servants of the States, I shall refer presently. The first part of the objects which I have enumerated is carried out by clause 6. which prohibits anything in the nature of a lock-out or a strike. There is a penalty provided under the clause, but as honorable senators will find on referring to clause 50, it also involves certain disabilities in addition to the penalty set out in clause 6.

Senator Pearce:

– Particularly applying to employés.

Senator Sir JOSIAH SYMON:

– They apply to any person adjudged to be guilty of any contravention of Part II. of the Bill, or of wilful default in compliance with any award, if the Court, in its discretion so orders.

Senator Pearce:

– But the disabilities are of such a character that they will apply particularly to the members of a trade society.

Senator Sir JOSIAH SYMON:

– They do not apply exclusively to members of trade organizations, as my honorable friend will see.

Senator Trenwith:

– That is a Committee matter.

Senator Sir JOSIAH SYMON:

– It is a Committee matter, and I am merely calling attention to the fact that it is proposed that the Legislature on one hand shall carry out its compulsory mission, so to speak, by enacting the prohibition of lock-outs and strikes, not merely under penalties, but under disabilities which honorable senators will find set out in clause 50.

Senator Pearce:

– Perhaps the honorable and learned senator will allow me to say that my object in calling attention to their special application to trade organizations is to rebut the statement that has repeatedly been made that no penalties are provided against workmen under the Bill.

Senator Sir JOSIAH SYMON:

- Senator Pearce is quite entitled to make that observation. No one can view the Bill with an unbiased mind without seeing the extent to which the penalties and disabilities go and the persons on whom they fall. Then we have to consider how the other part of the objects of the measure are to be given effect to. The next thing is the constitution of the Court, and under clause 1 1 the Conciliation and Arbitration Court is to be appointed. In connexion with that appointment,I remind honorable senators that, under clause 35. the Court is to be constituted with the appointment of a President. The original proposal to have two permanent members of the Court, in association with the President, does not now find a place in the Bill. The remainder of clause 35 refers to the appointment of assessors, or experts, to assist the President.

Senator Lt Col Gould:

– They are not members of the Court ?

Senator Sir JOSIAH SYMON:

– No. I think that assessors, along with the President, who will be a trained Judge, will be the more satisfactory tribunal. Eut I may say - I do not propose any alteration - that I concur with a remark made by Mr. Deakin on this point. I do not know that it would be possible, but I think it would be better if the President of the Court were a high judicial officer, who was not at the same time a Judge of the High Court. Personally, I do not like the idea of - I was going to say, entangling, but I shall not use that word, because it might be misunderstood - transferring a Judge to an atmosphere in which questions of a totally different kind are dealt with - to an arena in which there are elements not ordinarily present in the High Court. Whatever we may say to the contrary, all of us recognise that inthat arena there are elements of heat-

Senator Fraser:

– Discord.

Senator Sir JOSIAH SYMON:

– I shall not say discord; but there are elements of heat and irritation, which, as I know from long experience, affect unsuccessful litigants in any Court, but which will be infinitely more in evidence when the litigants number ‘ hundreds or thousands. Smouldering resentment at an adverse decision on the part of an individual litigant is liable to assume much greater intensity under the circumstances which will proceed, accompany, and follow a reference to the Arbitration Court. With a view to having a Judge, who, in this tribunal, shall be above suspicion - in whom there will be a most perfect confidence on all sides, but who, at the same time, will be limited in his powers by the particular class of cases - it is not desirable to run the risk of his being subject, in another tribunal, to complaints of an unpleasant kind, arising out of his duties in another sphere. In this Bill, and, I believe in every Bill on the subject, there is a limitation as to the tenure of office, the term in the present case being seven years. A Judge of the High Court is appointed for life and good behaviour, but if, at the end of seven years, we, all being human, experience on one side or the other a feeling which we would not express but one of dissatisfaction, and he is not re-appointed - then all I can say is that such a judge might go back to his other duties with a blemish.

Senator Pearce:

– That has not been our experience in Western Australia, where the present Chief Justice was the first Judge of the Arbitration Court, and there is no one more respected.

Senator Best:

– A big crop of disputes must be contemplated, if it is thought they will constantly employ one Judge.

Senator Sir JOSIAH SYMON:

– I was going to say that I hope it will be a long time before . this Bill has to be put into operation. But when it is placed on the statute-book, we shall know its shape, and will be able, if necessary, to deal with that question. On the other hand, as Senator Best has said, we hope that the office will be a sinecure, because there would be great difficulty, even if we desired, in having a Judge exclusively for this Court.

Senator Best:

– The term of seven years would- probably have to be altered if . there were a separateJudge.

Senator Sir JOSIAH SYMON:

– I prefer, as I said before, that the Court should consist of a President and assessors, because there might be disputes in a particular branch of industry, about which one man knew a great deal, and another man knew nothing.

Senator Best:

– If eitherparty demand assessors, I suppose they will be appointed ; but can the Judge act alone ?

Senator Sir JOSIAH SYMON:

– According to clause 35 a Judge mav “ without such application ‘’ appoint assessors. Having constituted a Court the Bill confers jurisdiction, and the. President is charged with the duty of doing his best to bring about ari amicable arrangement. Under clause 19 the Court is given cognisance of three kinds of disputes - first, those certified bv the Registrar, which are quite independent of proceedings started by an organization ; secondly, those industrial disputes submitted by organizations ; and, thirdly, all industrial disputes on which any State industrial authority may request the Court to adjudicate, and which, under the Bill, the Governor in Council of a State may refer to the Court.

Senator Lt Col NEILD:
NEW SOUTH WALES · FT

-Col. Gould. - And the latter are what the Minister thinks the Constitution does not allow?

Senator Sir JOSIAH SYMON:

– No; what I doubt is the power of the State Court, under the definition clause, to refer ji local dispute to the Commonwealth Court The clause with which I am now dealing refers only to industrial disputes within the meaning of the Constitution. Then I call particular attention to clause 25, under which, it will be observed, the Court is not bound by rigid technicalities or by rigid rules of evidence.

Senator Guthrie:

– A bit of law reform.

Senator Sir JOSIAH SYMON:

– As the honorable senator knows, this is a fundamental principle of the jurisdiction of the local Courts of South Australia, the State in which legislation endeavours to do everything according to the highest principles of justice. The clause provides -

In the hearing and determination of every industrial dispute the Court shall act according to equity, good conscience, and the substantial merit.-: of the case, without regard to technicalities -

Senator Guthrie:

– The language is beautiful !

Senator Sir JOSIAH SYMON:

– The language is not only beautiful, but good. The clause proceeds - or legal forms,’ and shall not be bound by an) rules of evidence, but may inform its mind on any matter in such manner as it thinks fit.

I beg honorable senators to bear that clause in mind when they come to consider a subsequent provision to which I shall refer. This clause is further amplified in clause 28, which declares that a decision of the Court “shall be framed in such a manner as to best express the decision of the Court, and to avoid unnecessary technicality.”

We have here a Court which, I think, should command confidence, and the functions of which ought to be successfully exercised. We have a Court which is expressly emancipated- from those rigid rules and technicalities which, some honorable members may think, occasionally embarrass, if they do not frustrate, the ends of justice. I think I have said enough, without going into the other clauses, to inform honorable members as to the ‘constitution and jurisdiction of the Court. Then clause 30 provides that when a State law or award is inconsistent with an award of the Court, the latter shall prevail. In another place a question was asked by way of interjection as to how far this clause applied, and I am disposed to think - and I suggest this for the consideration of honorable senators - that this clause will not apply, as many have supposed, to a decision of the Court given before a dispute has overspread into another State. That is to say, if there is a dispute with which a State Court has dealt effectively, I doubt whether, even if the dispute may subsequently travel into another State, this provision would enable the Commonwealth Court to practically reverse the decision of the State Court, or modify it in any respect. I mention these matters so that honorable senators may think them over, and not with any view of laying down a rule. If any honorable senators are under the impression that the Commonwealth Court is to have power to plunge itself into conflict with a State Court which has already done justice in a particular dispute, they will probably find themselves under a misapprehension.

Senator McGregor:

– I do not think any one ever thought such a thing.

Senator Sir JOSIAH SYMON:

– The honorable senator is mistaken ; but I am very glad to think that he agrees with me. Clause 38, which deals with the powers of the Court, refers to the principle of the common rule; but I do not propose to say anything on that subject now. The fundamental object is to prevent the frequency and multiplication of applications to the Court. Where the Court, in the exercise of its judgment, subject to the qualification imposed by the clause, considers it may bring in the other parties affected, so as to establish a common rule, it is given power to do so. In Committee, we may or may not discuss this point ; but as the provision stands, it seems to me to carry out the intention of the Bill.

Senator Pearce:

– Does the Minister think the Court will have power to vary a common rule under sub-clauses (/) and (0)?

Senator Sir JOSIAH SYMON:

– It appears to me that every effort has been made, so far as this provision is concerned, to intrust the Court with the widest jurisdiction; and no jurisdicion can be complete in this or any other Court, if it has not the power, first of all, to make orders, and, next, particularly in a jurisdiction of this sort, to vary those orders as varying conditions require.

Senator Givens:

– The Bill contemplates trusting a good deal to the discretion of the Court.

Senator Sir JOSIAH SYMON:

– It is not so much trusting to discretion, as giving the Court ample jurisdiction to deal fairly and justly with the conditions which are presented. If the conditions alter in the intervals between the making of the order and the application to vary, there should be power to reconsider that order. What could be fairer or more just? The orders of the Court are not to be like the laws of the Medes and Persians, absolutely immutable, because conditions may change and cause suffering to both employers and employes We all desire that in those settlements there shall be evenhanded justice. Clause 51 provides for the registration of organizations, and this is hedged in so as to prevent injustice. Then come the provisions with regard to industrial agreements which are only important in this connexion in so far as they are to be intrusted to the Court. There are two other points to which I promised to refer at a little greater length. The first arises under the definition of “ industrial disputes,” and has reference to railway servants, or, as I shall call them henceforth, public servants. The provision referring to railway servants or others employed in industries carried on by or under the control of the Commonwealth or State, has given rise to a great deal of controversy. There are two classes - one consisting of railway servants, and the other consisting of persons employed in industries carried on by or under the control of th? State, or any public authority constituted under the State. It seems to me that those two classes are specifically mentioned, because otherwise they would be outside the Bill. It probably is felt, or was felt - and it is well this should be distinctly stated - that unless they were ex pressly mentioned, the definition of “ industrial dispute,” which is imported from the Constitution, would not apply to States servants. At any rate, it is expressly mentioned; and therefore we are in a position to deal with it, and it is not left to mere construction hereafter. That is a very grave question, and it appeals especially to the Senate as the States House. Whatever view we may take of many questions, as to party politics and so forth - whatever view we may take as to issues which are constantly arising between us, and in which’ individual views and the views of parties may be expressed - this question, I think, may well be viewed apart from such considerations as much as possible. We should look upon it to some extent from the stand-point that we are the representatives of the States - that we are senators charged with the safeguarding of States rights.

Senator de Largie:

-r-Does the honorable and learned senator propose to strike out the clause ?

Senator Sir JOSIAH SYMON:
SOUTH AUSTRALIA · FT; ANTI-SOC from 1906

– JOSIAH SYMON.- No, I do not propose to strike it out.

Senator McGregor:

– This is a “ YesNo “ attitude.

Senator Sir JOSIAH SYMON:

– I do not take any notice, of that interruption, except to say that my honorable friend occupies a position in this Senate which is only second to that which 1 occupy, and he may well refrain from interruptions which do not usefully assist the discussion. I am going to tell the Senate what I think of the clause, and what I propose to do. It is our duty to look at it from the point of view which I have stated, to consider the position which we occupy, and the redress which the States may have in respect of this provision, if they take exception to it, and whether that redress will be efficient or otherwise. There are three considerations. The first is, is it expedient? The second is, would it be operative - I mean in respect of the public servants of the States? And the third is, is it constitutional? I am going to take the same course as my friend Mr. Deakin took, and say that in my humble view as it originally stood in the Bill the provision was not expedient; and that the reasons applicable in respect of individual ordinary employers do not apply in the same spirit to a State or to State employment. Private employers are moved by self-interest in respect of their labour bargains. A State is not supposed to be moved by self-interest. It is under the eye and control of its representatives, and, in point of fact, the States servants are really their own employers.

Senator Pearce:

– In States where the railways have been ‘handed over to Commissioners ?

Senator Sir JOSIAH SYMON:

– I was going to say that that is so where the employers are directly employed by the States. It is also the case, but not to the same extent, where they are under the control of Commissioners. A Railway Department is equally a State Department, and it is equally a department contributing to the revenue of the State.

Senator Findley:

– It is run on commercial lines.

Senator Sir JOSIAH SYMON:

– Of course it is run on commercial lines j but it is under the control of the people, of whom the p’ublic servants are part. It is under the control of Parliament, which is elected on a franchise which these public servants are entitled to exercise. I am merely pointing out that there is that difference, and that also it must never be forgotten that States servants - and these are considerations which affect the constitutional aspect, as well as the other, and that is why I am putting it now - enjoy privileges which other employes do not enjoy. The States offer inducements which cause State employment to be run after.

Senator Gray:

– Not necessarily so ; there is the State factory in New South Wales for instance.

Senator Sir JOSIAH SYMON:

– I have in mind the railways at present. At any rate, there are certain privileges attached to the service of the State, and if in exchange it may be said that State servants suffer from a disability in regard to Commonwealth legislation of this kind, from which other employe’s do not suffer, they aTe recompensed in other directions. The position was exceedingly well put in a journal which lately referred to a very remarkable railway strike which took place in Hungary. The railway servants struck. But these railway employes also belonged to the railway regiments of regulars, and the way the strike seems to have been brought to an end was by their being called out and embodied as a railway regiment of regulars to put down their own strike. That was a kind of compulsory conciliation.

Senator Pearce:

– It was compulsory conscription, I should say.

Senator Sir JOSIAH SYMON:

– They had to serve; but I hope that that is not going to be the method for putting an end to strikes in Australia. I quote the case because it led to this comment by an observant journalist -

The event has been a most instructive instance of a kind of impasse which the nationalization of great industries is bound to le.ad to. When a workman is a servant of the State he loses his right to combine, and the ordinary tactics of labour become for him criminal offences. The difficulty is still graver under a popular Government - and this is the remarkable thing which, I think, will commend itself to the minds of honorable senators - where the coercive power which opposes the workers is simply themselves organized in another form.

Senator Givens:

– What is the name of that journal?

Senator Sir JOSIAH SYMON:

– The London Spectator. The second point to which I shall merely allude is, “ Can a dispute in a State railway service extend beyond the limits of that State”? Now, I venture to say, with my .friend, Mr. Higgins, who is a close student of the matter, that it cannot. I think that is not one of the conceivable conditions under which this measure will operate.

Senator Guthrie:

– May not a dispute upon the railways of one State have a detrimental effect upon another State?

Senator Sir JOSIAH SYMON:

– I am glad that my honorable friend has made that remark, because it enables me to point out that the Constitution has not given us the power to legislate in regard to strikes in one State, which may have a detrimental reflex operation in another State.

Senator Pearce:

– Can we not imagine that the railway men of New South Wales might refuse to take goods any further than the border when they knew that there was a strike on the part of the railway men in Victoria.

Senator Sir JOSIAH SYMON:

– I do not know what we should call that.

Senator Playford:

– It would be boycotting.

Senator Sir JOSIAH SYMON:

– That would not be striking, in the true sense of the word ; it would be boycotting in sympathy ; and every one agrees - I think I may say that the leader of the Opposition in another place, equally with those who dissent from him on other matters, agrees - that this Bill does not apply to what is called a sympathetic strike. And what my honorable friend Senator Pearce refers to would not be even a sympathetic strike; it would be a sympathetic boycott, to adopt Senator Playford’s term. Therefore, I do not object to this provision in the form in which it stands in the Bill, for the reasons which I will mention. One of them is that I agree with Mr. Higgins, with Mr. Deakin - and, perhaps, with others, for all I know - that there is not likely to be any conceivable case to which it could apply. But I must ask honorable senators to consider the question also in connexion with its constitutionality in respect of what are the industries of a State. What are those industries to which this measure would apply? Does it mean water supply or deep drainage, such as we have in South Australia, or anything of that kind? When we come face to face with these matters, we shall find that there are considerations which perhaps will lead to some difficulties in settlement. In the course of the debate in another place, Mr. Deakin said that, in these matters-

The PRESIDENT:

– The honorable and learned senator will not be in order in referring to what has been said during the session in a debate in another branch of the Legislature.

Senator Sir JOSIAH SYMON:

– I will not quote what Mr. Deakin said in another place, but I may remark that it was said elsewhere, that the High Court would decide, and Mr.- Mauger interrupted, “ Is not that a solution of the difficulty ?” I think it is a solution of the difficulty. But I feel bound, at the same time, to give the Senate, very briefly, the benefit of the considerations which I think will operate to decide that it is not a constitutional provision. But, of course, as I say again, it is for the High Court to decide; and I personally adopt exactly the same course as I took up in connexion with Tattersalls, when, without dealing with the expediency of the question, and so on, I said that I regarded our legislation as an unconstitutional interference with the rights of Tasmania, and that it was for the High Court to decide. I put it, briefly,, in this way. Federation, honorable senators will recollect, is, as was said by Chief Justice Chase, the indestructible Union of indestructible States. The States are sovereign States. They surrender only certain selfgoverning powers, and they give up certain specific matters- to the Commonwealth Government, keeping what they do not surrender. The States, of course - as the Commonwealth can also do - can bring their own servants under the jurisdiction of a Conciliation and Arbitration Bill. They can appoint any tribunal for the purpose of dealing with them. That is perfectly within their own powers. But we have no power by legislation to enlarge the scope of the Constitution, or to take to ourselves powers which are not expressly given to us in the terms of the Constitution. What we are trying to do by this provision, is to bind the Crown, or the Crown’s servants in another jurisdiction, in a sovereign country, over which, as far as this subject is concerned, we have no express control. The Crown is not bound unless it is expressly mentioned, even as regards the Commonwealth. How, then, can

Ave make the Crown, as a State employer, bound without it being mentioned, and in another jurisdiction ? We are asked to declare that the Crown, in another State, and in respect to its own servants, is to be an employer or an organization. That, it seems to me, cannot be constitutionally done. I call the attention of honorable senators to the matter, and it is for these reasons that I feel perfectly satisfied,, as a representative of South Australia, to leave this question, instead of involving it where it ought not to be involved in the heat of party strife, to the decision of the tribunal which is charged under the Constitution with the duty of determining between the relative powers of State and State, and State and Commonwealth.

Senator Best:

– The honorable and learned senator is willing to leave it in the Bill, although he believes it to be unconstitutional ?

Senator Sir JOSIAH SYMON:

– This is not the place to determine this constitutional question.

Senator Playford:

– Yes, but the question is : if we have the power, would it be right and proper to exercise it ?

Senator Sir JOSIAH SYMON:

– I have referred to two things, and it seems to me, as Mr. Mauger says, that the true solution of the problem is the decision of the High Court. I do not think that, a matter of this kind ought to be left to be the sport of heated party politics, when we have a tribunal specially constituted .to determine it.

Senator Pearce:

– It would place certain Government supporters in a very awkward position if the Government went back on the proposal.

Senator Best:

– That is a most unkind remark !

Senator de Largie:

– It might place the Government in an awkward position.

Senator Sir JOSIAH SYMON:

– I do not know about that. I am perfectly satisfied with the view I express, and with the position which I think will be taken. I wish to call attention to the fact that where in the Constitution it is expressly intended that a State enterprise shall come under Commonwealth jurisdiction, it is so stated certainly in the -only instances to which I am able to refer. For instance, in section 5 r, I find these legislative powers -

  1. Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks and the issue of paper money ;
  2. Insurance, other than State insurance ; also State insurance extending beyond the limits of the State concerned.

Honorable senators will see the care with which the Constitution deals with the question of taxation, and the relative powers of State and Commonwealth in section 114, and in connexion with the railways of the States in sections 98, 99, 102, and 104.

Senator Pearce:

– But is it any more correct .to say that this Bill would bring the railways under Federal supervision than it would be to say that the municipalities are brought under Federal supervision, because the High Court gives a verdict which affects .them?

Senator Sir JOSIAH SYMON:

– That is a very fair argumentative parallel to suggest ; but it is not exact, because there is no comparison between this matter and the High Court dealing with municipalities on appeal on a question of imposing municipal rates under a jurisdiction expressly given to it by our Judiciary Act.

Senator Pearce:

– This Bill will give the power.

Senator Sir JOSIAH SYMON:

– But the Judiciary Act is within the limits of the Constitution, and we have the power.

Senator Pearce:

– It interferes with State institutions.

Senator Sir JOSIAH SYMON:

– It is a perfectly fair argumentative parallel ; but it is not complete or exact. I think the honorable senator will find that it will be fallacious as an argument on which to found as a constitutional right a power on the part of the Commonwealth Parliament to interfere by means of legislation such as this with State employes or servants.

Senator Best:

– The honorable and learned senator thinks this clause is unconstitutional, but does he think it expedient to insert it?

Senator Sir JOSIAH SYMON:

– On its expediency there may be very great difference of opinion, and if it will avail and is applicable, I should be very sorry to see the provision struck out. If it will avail and is applicable, and there are disputes which will come under its operation, why should it not be brought into play? I think it would be a monstrous thing, if it were a matter on which there was any doubt, that the doubt should be solved by its exclusion if it merely rested on the question of what one side or the other thought was expedient. And when we find that question of expediency made, as it must necessarily be made, a party question, it appears to me that in a Bill of this sort, which I look upon as a machinery Bill, we may differ as to details, but in essence it is a machinery Bill.

Senator Givens:

– It has led to the defeat of two Governments.

Senator Sir JOSIAH SYMON:

– On its details we should’ seek to make its ambit as large as we can consistently with what we may think to be the object we have in view.

Senator O’Keefe:

– The honorable and learned senator believes that it will be a good thing to leave the provision in the Bill if it is constitutional.

Senator Sir JOSIAH SYMON:

– Yes, if it is constitutional. I have been taunted here before with having said that something was unconstitutional, and with the Court having decided the otherway. I dare say, sir, I am very often wrong in giving an opinion, but if I have an opinion it is my duty to express it, and I hope I may be forgiven if it turns out that I am mistaken. I should feel that I was not discharging the trust which ls reposed in me, in common with other honorable senators, if I did not point out these things, and decline to take upon myself the obligation of deciding the question, and. voting in accordance with that decision, when in the Constitution we have created a tribunal to decide it. for us. The thing would be absurd ; at any rate, it is a course which T. do not intend to follow on this any more than I have done on other occasions, whether my view is right or wrong. I may mention that on a former occasion my friend Mr. Kingston referred to the language of the

Constitution, and said that the terms would have been much more elastic had it been possible.

Senator Pearce:

– Oh !

Senator Sir JOSIAH SYMON:

– I refer to this observation in connexion with the’ remark made by the honorable senator as to what the Convention intended. Looking at the jealous way in which it safe-guarded the railways in every respect from the Commonwealth, I am quite sure that if it had been proposed the Convention would not have consented to the introduction of a power giving the Commonwealth Parliament control over the public servants of the States. But whether it has done so or not, various reasons have been shown by Mr. Deakin in various places as to the possible unconstitutionality of this provision, which I do not intend to deal with now. The only other matter to refer to is preference to unionists. On one occasion, my honorable friend, Mr. Deakin, used words which I cannot improve upon. He said -

The granting of preference in itself is, undoubtedly, the most serious and most far-reaching power in the Bill. . . . Preference means the power of alloting employment to members of -in organization, who can only obtain that priority of employment by the opportunity being taken away from others outside the organization to precisely tile same extent.

As the matter originally stood, it existed without qualification, and without any rule being laid down in respect of the principles which the Parliament representing, or supposed to represent, the feeling of the country, had in view for the guidance of the Court. We now have it in a form in which it seems to me, after as exhaustive an examination of the views on both sides as I have been able to give, to literally express what every one thinks is a fair principle, namely, majority rule. And safe-guarded in that way, and embodying in the Bill a principle on which Courts have already acted, I confess I am unable to understand the objections which have been taken to it bv my honorable friends opposite, or the opposition which they propose to give it.

Senator Pearce:

– We shall try to explain it later on.

Senator Sir JOSIAH SYMON:

– I shall be most pleased to hear the explanation, and there is no one whose mind is more open to conviction than mine.

Senator Guthrie:

– Is that the Government mind?

Senator Sir JOSIAH SYMON:

– The Government mind is as it is in the Bill, and if my honorable friend can. suggest improvements in the same direction, I shall welcome any suggestion, do my best to consider it, and if I am not convinced, I hope honorable senators on the other side will be open to conviction from this side.

Senator Pearce:

– We hope that the honorable and learned senator will not forget his admiration for majority rule.

Senator Sir JOSIAH SYMON:

– I have never departed, I think, from that great principle.

Senator Dobson:

– Are they going to kill the Bill ?

Senator Sir JOSIAH SYMON:

– I hear a suggestion to kill the Bill.

Senator Drake:

– No, it was a query.

Senator Sir JOSIAH SYMON:

– I am glad that it was only a query ; it must have been an aside which was not meant to be heard and commented upon.

Senator Givens:

Senator Dobson said the Bill was going to be killed.

Senator Dobson:

– I was only asking a question.

Senator Sir JOSIAH SYMON:

– From my point of view, of course, this question of preference does involve in its bare form the whole matter of freedom of contract, of whether, if unionists decline to work with non-unionists, the penalty of being out of work should fall on the non-unionists only. It covers the whole area of the States, with diverse conditions of climate, different scales of living.

Senator Pearce:

– And as to whether employers should have the right to boycott unionist workmen?

Senator Sir JOSIAH SYMON:

– There are all sorts of elements with which we shall deal in detail.

Senator Pearce:

– I thought that the honorable and learned senator would mention that along with the other.

Senator Sir JOSIAH SYMON:

– I .do mention it. The bald principle is said to be essential to the Act. I do not think it is. I was going to use the expression “ unadulterated,” and I hope I may be allowed to say, without offence, that unadulterated preference is not essential to the measure. I take an illustration which has been given before. There is in Victoria an Act which is really an Act for compulsory arbitration in relation to trade disputes. I refer to the Factories and Shops Act of 1896, in which there is no preference.

Senator Pearce:

– And because of the absence of it many men have suffered persecution.

Senator Findley:

– That Act recognises only organized bodies.

Senator Sir JOSIAH SYMON:

– -So does this Bill, and the honorable senator and I are therefore on the same plane.

Senator Findley:

– But under this Bill we consider some persons who are not members of organized bodies.

Senator Best:

– The Victorian Factories Act is not confined merely to organized bodies.

Senator Sir JOSIAH SYMON:

– Then we have here a conflict of opinion on the subject.

Senator Findley:

– Employes cannot get the benefit of the Wages Boards’ provisions unless they are members of organizations.

Senator Best:

– The Act has nothing to do with organized bodies in any way.

Senator Sir JOSIAH SYMON:

– I was under the impression which Senator Best confirms, because I had noted proceedings under the Act reported in the newspapers which certainly did not bring home to my mind the idea that the Act was confined to organized bodies. However, it embodies a system of compulsory arbitration in. relation to the matters within its scope, and so far as I am aware it contains no provision as to preference as an element in its efficacy, and its efficacy has been great. It has been fought for, and, I think, it is valued highly in this State. That appears to me to afford a strong argument in support of the contention that we may have compulsory arbitration for the settlement of industrial disputes as to wages, and so on, without having preference as an essential.

Senator Findley:

– The analogy is hardly fair.

Senator Sir JOSIAH SYMON:

– It may not be. I am putting it with submission and argumentatively, and honorable senators who disagree will be able to show the difference. The illustration has been given before, and it struck me as very forcible. It is alluded to, I think, in the speech in which Mr. B. R. Wise moved the second reading of his Conciliation and Arbitration Bill, in New South Wales, and in this connexion, as illustrative of the beneficent effects of a certain kind of compulsory arbitration. But what I desire to point out to honorable senators is that this Bill concedes preference. The only controversy is as to what are fair terms.

Senator Playford:

– Why not leave it to the Judge?

Senator Sir JOSIAH SYMON:

– I will give my honorable friend the reason. One Judge may have a certain idea-

Senator Playford:

– There are varying climates and varying conditions in the Commonwealth.

Senator Sir JOSIAH SYMON:

– I prefer in this matter to do what is done by the law, except in dealing with matters of fact, in connexion with every Court in the world. Every Judge who sits in any tribunal is guided in his decision, so far as matters of law are concerned, by principles which have been established for all time.

Senator Givens:

– Musty old precedents, the half of them.*

Senator Playford:

– Judge-made law.

Senator Sir JOSIAH SYMON:

– As my honorable friend suggests, it is Judge-made law, but Senator Playford knows that the common law of England is the finest body of jurisprudence in the world. It is the essence of the jurisprudence of two continents, and it consists of Judge-made law.

Senator Givens:

– And under it you could lag a man for shooting a rabbit.

Senator Sir JOSIAH SYMON:

Senator Playford must know that in establishing a tribunal, which is not to be governed by common law, we should lay down, so far as we can, as we do in the case of ordinary tribunals, the principles upon which the decision of the Court shall be arrived at. We cannot regulate it as to matters of fact, but we can as to matters of principle.

Senator Playford:

– We do not propose to tell the Court what wages they shall allow.

Senator Sir JOSIAH SYMON:

– Of course not, because that is a question of fact.

Senator Playford:

– Then why tell the Court what preference it shall give?

Senator Sir JOSIAH SYMON:

– It is not proposed to tell the Court what preference it shall give.

Senator Playford:

– It is proposed to tell the Court that it shall not give preference unless in certain circumstances.

Senator Sir JOSIAH SYMON:

– Unless a majority of ‘those affected agree. That does not affect the principle of the preference to be given. We propose by the law to lay down the principles by which the Court is to be guided in giving a preference in any case brought ‘ before it.

Senator Pearce:

– If it is asked for ?

Senator Sir JOSIAH SYMON:

– It has to be asked for first, of course. Senator Playford should know that we are merely embodying in this Bill a principle by which we have been guided in dealing with all Courts.

Senator Playford:

– It. was. not in the original Bill.

Senator Sir JOSIAH SYMON:

– It was not in the original Bill, but it is in this Bill, which is a great improvement on the original Bill, and it ought to have been in the original Bill, because it is a broad principle, laid down -by other Courts after experience. It will commend itself quite as much to my honorable friend to learn that it is embodying a principle which has practically been assented to by the leaders on the other side.

Senator Givens:

– Where ?

Senator Sir JOSIAH SYMON:

– I will give honorable senators chapter and verse for it. It appears to me that the question is really : What are fair terms ? What is a fair principle by which the Court shall be guided ? In what way and subject to what limitations shall the Court exercise that particular function, which is so far-reaching and important? I say that it is our duty, having regard to the difficulties of the Court in many other directions, owing to its new and complex jurisdiction, to make these governing lines as clear as we possibly can. There is really, as I have said, no difference of opinion as to the basis or conditions of this preference. I make certain references simply with a view to substantiating what I say as to the views of the leaders on the other side. We know that this provision for a preference was inserted in the New South Wales measure. In an article published in the National Review for August, 1902, long after the New South Wales Act came into operation, Mr. B. R. Wise refers to the subject.

Senator Guthrie:

– The honorable and learned senator would not class Mr. Wise as a leader on the other side.

Senator Sir JOSIAH SYMON:

– I think so.

Senator Guthrie:

– I thought he was on the honorable and learned senator’s side?

Senator Sir JOSIAH SYMON:

– I should have thought that my honorable friends opposite accepted Mr. Wise as their guide, philosopher, and friend on this question of preference. There may be no foundation for it, of course; but I was under some impression that that gentleman had some hand in framing the amendment which was proposed in substitution for the amendment submitted in another place by the’ present Minister for Defence, and which now appears as a part of this Bill. A very excellent piece of handiwork it was, although it does not appear to me to differentiate much between the insertion of the two amendments.

Senator Pearce:

– Our leader is Mr. J. C. Watson.

Senator Sir JOSIAH SYMON:

– No one can have a higher esteem for Mr. Watson than I have, or, in fact, than everybody has.

Senator Findley:

– That ‘is why some persons tried to put him out of office.

Senator Dobson:

– He put himself out.

Senator Givens:

– That is what the present Prime Minister will not do. It will take a team of bullocks to drag him out.

Senator Sir JOSIAH SYMON:

– This shows how party spirit will run riot even on such a Bill as this. I quote Mr. Wise then without any observation with respect to his views one way or the other. This is what he writes -

Should an employer in one of these industries attempt to introduce non-union labour for the purpose, of destroying unionism, a case would, i apprehend -

Even that he puts very gingerly - arise for the use of this provision, just as the Court would certainly refuse to apply it in a case where the majority of the employes were nonunionists, or where the union was not able to supply a sufficiency of labour.

Senator Lt Col NEILD:
NEW SOUTH WALES · FT

-Col. Gould. - When was that expressed?

Senator Sir JOSIAH SYMON:

– In August, 1902.

Senator Pearce:

– In the Legislative Council of New South Wales.

Senator Sir JOSIAH SYMON:

– No, this was written in calm deliberation in the study.

Senator Pearce:

– I thought, perhaps, it had been said to make the pill sweet for the New South Wales Legislative Council.

Senator Sir JOSIAH SYMON:

– No, this was long after the Legislative Council of New South Wales had swallowed the pill, and Mr. Wise was dealing with his own provision, which had no limitation at all. I, therefore, cite Mr. Wise as saying that the Court would refuse to apply the principle of preference in a case where a majority of the employes were non-unionists. Senator Givens asked me where these views were assented to by leaders on the other side, and I can quote an authority who said that the application of the principle would be almost confined to cases where unionists would practically represent the whole of the persons engaged in an industry. Of course, in such cases we should have a majority in favour of a preference in its highest sense, so far as the organization was concerned. I quote in this connexion Mr. Spence, who is reported to have said-

The Court’s authority would be exercised for the most part, if not wholly, in regard to disputes in which large Interestate organizations are involved. The unions that will come within the scope of this Bill are so strong- that there are practically no men engaged in the same industries outside their ranks.

Mr. Spence is one of the most thoughtful men and highest authorities on’ these great questions; and, if the position, be as he states, surely honorable members will agree that whatever qualification be imposed on preference, we should practically have unanimity of desire and unanimity of application.

Senator Playford:

– And no preference is wanted.

Senator Sir JOSIAH SYMON:

– Of course, and the nearer we get to that condition of things the nearer we shall be to no injustice to anybody. But does my honorable friend think that it would be fair, if there were two unionists and 500 nonunionists, that preference should be given to the former?

Senator Playford:

– Certainly not.

Senator Sir JOSIAH SYMON:

– Then why not have a provision to that effect in the Bill ? Why are we to allow a Judge, who may be here to-day and gone tomorrow, to give preference to a minority, while his successor may give preference only when desired to do so by a majority? Let us lay down a rule which he who runs may read.

Senator Playford:

– But the Minister says that the Judges have already laid down a majority rule.

Senator Sir JOSIAH SYMON:

– And we propose to embody that rule in the Bill.

Senator Playford:

– There is no necessity.

Senator Sir JOSIAH SYMON:

-But another Judge may come along and reverse the principle - another king may arise who knows not Joseph. Why does my friend sneer about Judge-made law, unless it is because Appeal Courts sometimes decide one way one day and another way another day?’ The honorable senator desires a clear and workable Bill, in which there shall be no confusion, and yet he refuses . to embody a rule already adopted by the Courts. I find the late Prime Minister, Mr. Watson, stating -

In the great majority of cases a majority of the men employed in a given trade or calling are within the ranks of unions relating to it.

I regard that as an additional reason, not only for the decisions of the Judges in the past, but for embodying those decisions in the Bill, so that they may be known to employers and employes alike.

Senator Guthrie:

– And every unemployed man in the Commonwealth will be considered as against unionists.

Senator Sir JOSIAH SYMON:

– We have to consider .that we propose to declare that by an outside power one man shall be permitted to earn his bread and butter, while another man shall not be permitted.

Senator McGregor:

– Is not that the case in the legal profession?

Senator Sir JOSIAH SYMON:

– Nothing of the kind. I think we ought to try and do justice to both sides.

Senator Guthrie:

– We had lawyers working as non-unionists during the maritime strike.

Senator Sir JOSIAH SYMON:

– Nothing of the kind. The first rule in the selection of a man by an employer, should be that the latter is free to choose a man on the ground of competency, and not because he has fixed to him some brand of a trade union.

Senator Pearce:

– That is considered where preference is given, as shown by the words, “other things being equal.”

Senator Sir JOSIAH SYMON:

– I was merely dealing with the interjection. I am perfectly willing - and I think my friends opposite ought to be delighted- to accept preference on the lines already adopted, and within the limits already prescribed.

Senator Givens:

– The clause must be a bad one which needs so much special pleading !

Senator Pearce:

– We know the clause to be unworkable.

Senator Sir JOSIAH SYMON:

– I am only anxious that honorable senators shall know my views in order that they may assist in making the Bill as efficient as possible. Mr. Watson also authoritatively stated -

The practice in nearly every case in all Arbitration Courts has been to grant preference only when a majority reasonably ascertained are in favour of such preference.

That is all we have provided in the Bill.

Senator Pearce:

– It is not stated how the majority is to be ascertained.

Senator Sir JOSIAH SYMON:

– The words I have read I believe to be a true statement of the principle by which the Courts have been guided. No one “admires Mr. Watson more than myself for his moderation and political wisdom. The honorable gentleman further said -

I am not so foolish as to anticipate that the practice laid down by the Arbitration Courts of New Zealand and New South Wales will be deported from by the Judges appointed to the Federal tribunal.

Nor do I ; but I am going to take care that the Judges shall have no opportunity to depart from the practice. It is in the interests of all parties that there shall be a clear and defined enactment of this principle, Mr. Watson further said - and I take his statements as principles -

The Government do not desire that preference should be granted to minorities. The Court, if it followed the precedents which have been created in New South Wales and New Zealand, would be bound to interpret the words as implying a, majority.

Senator Pearce:

– Is that the position which the Minister desires to maintain ?

Senator Best:

– Was Mr. Watson Prime Minister at that time?

Senator Sir JOSIAH SYMON:

– Yes.

Senator Playford:

– Why did Mr. Watson wish to insert the words “ substantially represent ‘ ‘ ?

Senator Sir JOSIAH SYMON:

– I shall tell the honorable senator in a minute, but I desire to proceed line on line and precept on precept. The honorable senator, I understand, agrees with me that there ought to be a majority, and in the next place he agrees with me that those are the principles laid down by the Courts in the light of the experience of the past few years.

Senator Playford:

– That is what Mr. Watson agreed with.

Senator Sir JOSIAH SYMON:

– But I desire the honorable senator’s vote.

Senator Pearce:

– Will the Minister indorse those words of Mr. Watson?

Senator Sir JOSIAH SYMON:

– I think the Bill as it stands carries out the principles enunciated by Mr. Watson.

Senator Pearce:

– Does the AttorneyGeneral indorse what the late Prime Minister said?

Senator Sir JOSIAH SYMON:

– I have not quite finished, and I am using the late Prime Minister’s words as part of my speech. I confess I do not possess the vocabulary to express those views with anything like the accuracy of the late Prime Minister.

Senator Higgs:

– The Attorney -General has spoken from a quarter to three to a quarter to six o’clock.

Senator Sir JOSIAH SYMON:

– I do not think that remark comes well from the honorable senator.

Senator Higgs:

– I withdraw it.

Senator Sir JOSIAH SYMON:

– All I say is that if honorable senators do not attach importance to the Bill, and do not want to hear my views fully, I shall be perfectly satisfied to conclude. Mr. Watson also said -

In New Zealand it has been insisted that the majority, so far as that can be reasonably shown, shall be shown to be in favour of the granting of a preference.

All that is in the Bill is simply an assertion of that principle of preference, but a rule is laid down for the guidance of the Court. To that rule no one, it seems to me, can justly take exception, and it is supported by the view of Mr. Watson.

Senator Givens:

– Why did another place object to Mr. Watson’s amendment?

Senator Sir JOSIAH SYMON:

– I was just going to ask why there should have been all this political carnage.

Senator Givens:

– Because the present Government wanted office at any cost.

Senator Playford:

– I cannot understand why Mr. Watson resigned office.

Senator Sir JOSIAH SYMON:

– And I share the honorable senator’s astonishment. The late Prime Minister was not killed, but committed suicide?

Senator Pearce:

– Did he fall, or was he pushed?

Senator Sir JOSIAH SYMON:

– I do not think the late Prime Minister was “ pushed “ at all. The fact of the matter is, and I say it with all humility, that it was largely a fight over words without substance. In the middle ages they did that kind of thing, and it was then called, I believe, logomachy. I thought we had outlived such contests; and it would seem that the late Government must have been made the tool of some hair-splitting lawyer.

Senator Pearce:

– So long as the rights of majorities are safeguarded, will the AttorneyGeneral be satisfied? ^Senator Sir JOSIAH SYMON.- I think the Bill effects what everybody intends, and I prefer the words of the clause. I am with those who voted with the majority in another place - those who preferred the words now in the clause, rather than have others much more difficult of interpretation and application. I agree with Mr. Deakin, as I said before, in regard to the difficulty of the word “ substantially,” and so forth. The provision is that no preference shall be given unless the application is in the opinion of the Court “ approved by a majority of those affected by the award, who have interests in common with the applicants.” I apologize, especially to my friends opposite, for speaking at such length; but the subject is so interesting that I had no idea I had been so long. Senator Playford referred to the word “ substantially,” but I remind him that that is not the word in the Bill. It was in the other proposed amendment, and the difficulty as to how it would be interpreted shows the propriety of the rejection of the proposed amendment and the retention of the provision in the Bill.

Senator Playford:

– After Mr. Watson had used the words quoted, why on earth did he not accept the other amendment? Why did he want to put in the word “ substantially “ ?

Senator Sir JOSIAH SYMON:

– I really could not explain. That amendment introduces language much more calculated to create confusion, and to embarrass the Court. The provision of the Bill in the form in which - with the permission of the Senate - I shall endeavour to have it carried, will be open to no exception on the ground of difficulty as to proof. I agree entirely with Mr. Deakin and those who take the view that the principle to which I have already referred, with regard to doing away with all technicality and disregarding the rigid rules of evidence, will apply with regard to this as with regard to other parts of the measure, and that the Court will inform its mind - that is the language of clause 25 - by any means in its power, and will, upon the information which it thus derives, come to the conclusion which it may think right. I again apologize to the Senate for having occupied a longer time than I intended. There were other matters to which I wished to refer, but I do not propose to detain the Senate further at this stage.

Senator Higgs:

– I hope my interjection has not curtailed the honorable and learned senator’s remarks?

Senator Sir JOSIAH SYMON:

– Oh, no ; and,, on the other hand, I hope that my honorable friend will not take the remark I made to him too seriously. I agree with the observation that this has been a very fateful measure. It seemed like a portent. It weakened and shook one Ministry. As my honorable friend, Mr. Deakin, put it,_ it rent that Ministry asunder. It has wrecked two more Ministries. There is only one catastrophe which remains for it to accomplish, and that is to wreck a Parliament. For my part,. I fervently hope that that fatality at least may be averted ; and in all sincerity I say that I hope we shall quickly see this measure in the quiet haven of the statute-book. Why it has been so fruitful of disaster I am really at a loss to know. But that, after all, may be a good omen. An accompaniment of warring elements at its birth may presage a power for good and a life of usefulness. That has happened before; I hope it will happen again. And I hope that it will happen in relation to this Bill, which is, at least, the symbol of a higher civilization and a more humane spirit. I think it is big with promise. I earnestly hope that it may also be big with fulfilment. Nevertheless, I trust that the day may be far distant when such a lamentable condition will arise as shall bring it into operation ; because the bringing of this measure into operation predicates a dispute of a magnitude which none of us cares to foretell, and which, I think, we should shrink from seeing. At any rate, when that time comes I earnestly pray that it may be found adequate to all needs, that it may, as we desire, throw wide the everlasting gates of a great temple of peace within whose precincts passion shall be stilled, and no sound of oppression heard, and where the healing voice of justice shall pronounce only that which is right.

Motion (by Senator McGregor) proposed -

That the debate be now adjourned.

Senator STEWART:
Queensland

– I wish to oppose the adjournment of the debate. This measure has been before Parliament and the public for a considerable time.

The PRESIDENT:

– The honorable senator cannot speak to the question that the debate be adjourned.

Senator STEWART:

– I do not desire to speak. I am in favour of the second reading of this Bill. I think that is quite sufficient.

The PRESIDENT:

– If the honorable senator looks at standing order 416, he will see that an honorable senator cannot speak on the motion that the debate be adjourned. If he wishes to speak on the motion for the second reading, I understand that Senator McGregor is willing to , withdraw his motion for the adjournment of the debate.

Motion agreed to; debate adjourned.

page 5732

ADJOURNMENT. _

Business of Senate - Russo-Japanese War

Senator Sir JOSIAH SYMON:
Attorney-General · South Australia · Free Trade

– It may meet the convenience of honorable senators if we adjourn at this stage. The two other Bills, in the stage they have reached, I do not think I shall be justified in detaining honorable senators to deal with. I therefore move -

That the Senate do now adjourn.

Senator O’Keefe:

– Would it be possible for honorable senators to obtain copies of the Attorney-General’s speech on the Conciliation and Arbitration Bill to-morrow?

Senator Sir JOSIAH SYMON:

– That rests with Hansard, and I will do everything I can.

Senator PEARCE:
Western Australia

– Will the Attorney-General give some consideration to the desirability of the Senate sitting four days a week? We have had so many adjournments, and there is so much business to do, that it might be desirable to extend our sittings. The Government should bring the business of the session to a conclusion as soon as possible.

Senator Lt Col GOULD:
New South Wales

– If the question of extending the sitting days of the Senate is to be considered, I trust that the convenience of senators from distant States will not be lost sight of. I do not know that there is any necessity for the Senate to sit four days a week. The House of Representatives is now engaged in dealing with the Budget, and the Estimates, and will probably be- unable to conclude that work for a considerable time. In the meantime, the Senate can proceed with the Conciliation and Arbitration Bill, and probably we shall be able to dispose of all our business by sitting on the usual days. If, however, we are to sit four days a week, I trust that due notice will be given, so that honorable senators from distant States may make their arrangements accordingly. It is not reasonable to spring a proposal of this character upon honorable senators without notice ; but if it is absolutely necessary, we are prepared to attend to our duties, and to carry out the business of the country in any way that may be thought desirable.

Senator DE LARGIE:
Western Australia

– I agree with what Senator Gould has said. It must be remembered that the Conciliation and Arbitration Bill has been threshed out in another place, and that consequently there is so much less work for the Senate to do. It has also to be remembered that there are fewer members in the Senate, and consequently our debates ought not to take so long as those in the House of Representatives. I can quite understand the objection to sitting four days a week on the part of those honorable senators who go home at the week end. If they are to return to Melbourne on Tuesday, they will practically be travelling all the time. Although it is true that very little Was been done this session so far, I believe that by sitting three days a week we shall be able to catch up the work to be done, without sitting an extra day.

Senator STEWART:
Queensland

– I favour sitting four days a week, or even five if necessary. As a matter of fact, ever since the Senate has been in existence, the convenience of the New South Wales and South Australian senators has been particularly considered in connexion with our times of sitting. They, however, have shown no consideration whatever for the convenience and comfort of senators who come from outlying States. Some honorable senators are able to return to the bosom of their families every week end. Others of us are exiled in a strange country. We can get home only once or twice in a session. Very naturally, therefore, we desire to get the business of the session completed, in order that we may retire to our fastnesses in Western Australia and Queensland. On the other hand, our friends from New South Wales and South Australia are inclined to dawdle over the business of ‘the country. Thev wish to take it bv easy instalments. They want to go home every week end, and to come back on Tuesday morning would be a severe interference with their physical comfort. We wish to get the business of the session finished as quickly as possible.

Senator Drake:

– We shall not finish any sooner by sitting four davs a week.

Senator STEWART:

– Why not?

Senator Drake:

– Because we should have to wait for the other House to do the work.

Senator STEWART:

– Surely we can do more work in four days than in three?

Senator Drake:

– But that would not enable us to get away any sooner.

Senator STEWART:

– The more quickly we can dispose of the Conciliation and Arbitration Bill, the more likelihood will there be of , the other House dealing with our amendments. It is quite within the bounds of possibility that if we dawdle with this measure until the other House has dealt with the Estimates, on its return the Prime Minister - being assured that his purse will not be empty within a reasonable time - will make a break for recess.

Senator Lt Col Gould:

– He cannot do anything until the Estimates are agreed to by both Houses.

Senator STEWART:

– And when he does he may go at once into recess.

Senator Lt Col Gould:

– Then do not give him his Estimates.

Senator STEWART:

– The sooner this measurehas been disposed of by the Senate the better it will be, and that is why I think it should sit four days a week. It will not be a very great hardship for the representatives of New South Wales to come over here for, say, a couple of weeks in succession on Tuesday, instead of Wednesday, and if they do, it will probably enable honorable senators from the other States to ger. away a week or two earlier. I can easily understand that honorable senators opposite, especially those from New South Wales, wish to string out the consideration of this Bill. The Parliament has been in session since March, and when it is prorogued it will have done practically nothing. It has done nothing so far. During this session we have had three Governments, and not one of them has done anything. So far as appearances go, I do not see that the present Government is going to be much of an improvement on the others.

Senator Sir Josiah Symon:

– But the honorable senator admits that it is going to be an improvement?

Senator STEWART:

– I hope that it will. I trust that we shall be able to do some work, and that is the reason why I am anxious that the honorable and learned senator should agree to sit four days a week. I know that, whatever his followers may be, he is a very hard worker. He never spares himself, and I hope that, in connexion with this Bill, he will not spare his supporters, but will insist on them coming here on Tuesday, Wednesday, Thursday, and Friday.

Senator DAWSON:
QUEENSLAND · ALP

– And Saturday?

Senator STEWART:

– The honorable senator lives in Melbourne, and very seldom goes to Queensland, but I like to go up to the State occasionally. I do not care about being confined to Melbourne all the time.

Senator Gray:

– But the honorable senator has not been here always.

Senator Walker:

– He has scarcely been here at all.

Senator STEWART:

– The Senate was not sitting at that time, and as I could not go home every week, I stayed away.

Senator MACFARLANE (Tasmania).I hope that the Attorney-General will consider the proposal that the Senate should sit four days a week, but I think it should npt be agreed to at the present time. When he has had an opportunity to see what progress is being made with business, and he thinks that time may be gained by sitting four days a week, then it will be time enough for him to accede to the request. At present there are other ways of facilitating business, for instance by shortening our speeches. We might do that.

Senator DAWSON:
QUEENSLAND · ALP

– After the honorable senator has got the Loongana placed at his disposal ?

Senator MACFARLANE:
TASMANIA

– I hope that the Loongana will enable me to get home every week.

Senator DOBSON:
Tasmania

– May I ask the Attorney-General whether he proposes to go on with the debate on the second reading of the Conciliation and Arbitration Bill to-morrow afternoon at 2.30 o’clock? If he does, and that involves asking a favour at the hands of private senators who have business on the paper, may I suggest that they should give precedence to the Conciliation and Arbitration, Bill, so that we may debate it while our minds are well seized of the subject?

Senator Stewart:

– Why’ did not we go on with it to-night?

Senator DOBSON:

- Senator McGregor must have the whole subject athis fingers’ ends, and I was disappointed when he asked for an adjournment.

Senator McGregor:

– Let some opponent of the Bill continue the debate.

Senator MATHESON:
Western Australia

– What Senator Dobson has said emphasizes the urgent necessity of agreeing to Senator Pearce’s suggestion. The honorable and learned senator suggests that private senators, who have been counting upon having to-morrow available for their business, should give way and allow Government business to take precedence.

Senator Guthrie:

– What a sacrifice !

Senator MATHESON:

– If a private senator has taken any trouble about a question of public importance, it is perfectly natural that he should desire to take advantage of the day which has been allotted for the consideration of private business. Senator Gould has appealed to other senators to consider the convenience of the representatives of New South Wales, and that formula is brought forward on nearly every occasion. Why are they not prepared to consider the convenience of those who come from other States? Why is it always the convenience of the representatives of New South Wales which is to be considered ? I ask the poor senators from that State to consider the interest or convenience of the poor senators from Western Australia, who cannot get home at the week end. Have they any notion of what it is to loaf about here on Monday and Tuesday, with nothing to do? We have no home here to go to, and we have no private business that we can do in this foreign capital.

Senator Sir Josiah Symon:

– Houseless, and homeless !

Senator MATHESON:

– Yes ; we are simply compelled to loaf in this Parliament House. I conceive that the representatives of New South Wales are paid their salaries to work here, and not to go home at the week end. I see no reason why they should expect to be in a more convenient or better situation for getting home than we are.

Senator Gray:

– The honorable senator has just been Home.

Senator MATHESON:

– I was away for three weeks, when the Senate was not sitting.

Senator Walker:

– It sat last week.

Senator MATHESON:

– The Senate met one day last week, only to adjourn within ten minutes.

Senator Lt Col NEILD:
NEW SOUTH WALES · FT

-Col. Neild. - Because the honorable senator was not here, to go on with business.

Senator MATHESON:

– The honorable senator could not have been here, otherwise he would have known that his statement is not accurate. Senator McGregor and others’ were prepared to go on with business last week, but the forms of the Senate stoodin the way, and, therefore, I missed nothing by being absent. I must protest against the assumption that the representatives of New South Wales are paid .£400 a year each simply to enable them to go home on Friday, and return on Wednesday. I maintain that when a senator is elected for that State he should abandon all hope of seeing his family from the day the Parliament meets until it is prorogued.

Senator Millen:

– Did not the honorable senator take a trip to Europe since he was elected ?

Senator MATHESON:

– Yes, in the recess. The honorable senator, with his New South Wales idea of generosity, would deny me the right to use the recess as I thought fit. I do not pretend to dictate to the representatives of that State what they shall do in the recess, but I contend that from the time Parliament assembles it is their bounden duty to remain at the Seat of Government until the business of the session is completed.

Senator Lt Col Gould:

– Parliament met on the 2nd March, but the honorable senator did not come here until the 18th May.

Senator MATHESON:

– I realize that it is hopeless to protest, because the feeling of the Senate is in favour of adjourning on Friday. At any rate, my protest will be placed on record, and will be available for reference at some future time, when it will suit the convenience of the representatives of New South Wales to sit four days a week.

Senator Millen:

– Let me remind the honorable senator that he has had leave of absence granted to him.

Senator MATHESON:

– I am not talking of leave of absence.

Senator PULSFORD:
New South Wales

– As one of the maligned senators for New South Wales, I would draw attention to the sacrifice I made here this afternoon. I do not know how many scalps I had counted upon attaching to my belt, but I gave up the right to capture them in order that we might get on with business. That is an example which the representa- tives of Western Australia can follow. If they will only make speeches of moderate length, three sittings per week will be ample to enable us to do all our work, at any rate for some time to come.

Senator WALKER:
New South Wales

– As another representative of New South Wales, I must take exception to what has been said. I have made a point of being here time after time, even when we have met to sit for only an hour or two. I have travelled many hundreds of miles, and sat here for an hour and a half. Why? Because the friends of honorable senators opposite had been talking day after day in the other House, in many cases for four hours each, when they knew that it was all useless. If honorable senators will only be content to speak for, say, a quarter of an hour on each question, we shall soon get through our work. By sitting three days a week we could, by close attention to our duties, transact a large amount of business.

Senator Staniforth Smith:

– All the honorable members who spoke for four hours came from New South Wales.

Senator GIVENS:
Queensland

– I also would urge upon the Attorney-General the desirability, and the necessity, in the interest of the country, of the Senate be ginning to sit at least four days a week. Why should the business of Parliament be made subservient to the convenience of the representatives of New South Wales?

Senator Walker:

– What about the South Australian senators?

Senator GIVENS:

– So far as I can see, the South Australian senators are willing to sit four days a week, if necessary, but those who represent New South Wales are no,t. I think that, thev would rather not sit at all, if that would conserve their own convenience, and the interests of their own particular crowd. We hear nothing now but the expression of a desire to steal into recess with the greatest .possible speed, in order that certain gentlemen who occupy the Treasury benches may be secured in that position for about another year. No one has perhaps said so in plain language, but it has been said that the present Government desire to get into recess as soon as possible.

Senator Drake:

– Unfortunately, sitting for four days a week would not shorten the session.

Senator GIVENS:

– I have no desire to go into recess until the business of the country is completed. I wish to sit for four days a week, because I believe that if we did so, we should be able to give better consideration to the measures before us, and we should not have to slur over anything. It is quite a common experience in all Parliaments to find that, towards the close of a session, Bills and Estimates are hurried through in a shameful manner, and do not receive half the consideration which their importance demands. The consequence is that the legislative work is very badly done, and we should be. here to do that work as well as we can. We have before us now an exceedingly important measure which it will take us a considerable time to deal with. The public have been clamouring for this Bill, and we should give it our continued attention, instead of scrambling down here on the Wednesday from New

South Wales and South Australia, and hurrying back on the Friday afternoon. That is not the way to get through the business of the country.

Senator Guthrie:

– South Australian senators do not do that.

Senator GIVENS:

– I have already acquitted the South Australian senators of any .desire to shirk the performance of their public duties. They are willing to sit for four days a week, but New South Wales senators are not.

Senator Lt Col Gould:

– They are a bad lot.

Senator GIVENS:

– They are an exceedingly selfish lot, because they desire to suit their own convenience, irrespective of the interests of the country, and the convenience of honorable senators from other States.

Senator Millen:

– The honorable senator has not shown how the interests of the country will be served by our sitting for four days in each week.

Senator GIVENS:

– I think 1 have shown that in a way which would convince any unbiased person, though I may not have succeeded in convincing Senator Millen.

Senator Walker:

– New South Wales is the only State represented by six senators in the Chamber at the present moment.

Senator GIVENS:

– Why are honorable senators from New South Wales so regular in their attendance just now ? It is because their pet chieftain is in danger every hour of his political life. They did not attend so regularly before.

Senator Millen:

– No, because the Labour Government had nothing for us to do.

Senator GIVENS:

– A little time ago it would have been impossible to drag some of them here with a team of bullocks.

Senator Pulsford:

– That is very unfair.

Senator GIVENS:

– It is perfectly fair, and it can be proved by reference to H Hansard

Senator DAWSON:
QUEENSLAND · ALP

– There are six honorable senators from Queensland present, and also six from Western Australia.

Senator GIVENS:

– There are, I find, six honorable senators from Queensland present, and some of them have to travel over 2,500 miles to get here. If we look up the records of attendance, it will be found that honorable senators from the distant States are most regular in their attendance.

Senator Walker:

– Because they cannot get away.

Senator GIVENS:

– That is true, and it is because those honorable senators who can get away, and who get home every week, consider only their own convenience. We are prepared to give them every reasonable consideration, but we ask that they shall consider us in return.

Senator HIGGS:
Queensland

– I rise to take exception, briefly, to the manner in which the Attorney-General answered my question. I am sorry to think that the honorable and learned gentleman does not appear to consider Captain Creswell’s statement of very much importance. I may say that I have considerable respect for Captain Creswell, and I was very happy indeed to be able to use his arguments, and his speeches in favour of an Australian Navy, as opposed to the Naval Agreement. But when he ventures to take sides in the present contest between Russia and Japan, inasmuch as he is Commander of the Naval Forces of the Commonwealth, I think he is not obeving the order of neutrality. I have a verv great respect for the Russian people. The Russia of to-day is not the Russia which we read about in Stepniak’s novels. If Australia is to be neutral, let us be really neutral. I must say that I deplore some of the articles which have appeared in the Melbourne Age, and some of the cartoons which have appeared in the World’s News reflecting and throwing contempt on the Russian people. I should like to see Australia stand quite clear of the contest between Russia and Japan. I know that there are many people throughout the British Empire who feel it very much when the people of any other nation venture to take sides with England’s enemies; and I think we ought to deprecate the taking of sides by our own people in the contest now being waged. I am in hope that the time will come, when we shall have an alliance of the great Powers to enforce international -arbitration. I think that thearticles appearing in newspapers, and the ill-considered speeches of gentlemen like Captain Creswell, will tend to delay the consummation of that splendid time when we shall settle international disputes by arbitration, instead of by going to war with all its disaster and loss to the people engaging in it, and to the world in general. The reply given to me by the Attorney-General is not in keeping with the attitude which the honorable and learned senator has assumed since he took office. Those of us who knew him as leader of the Opposition in. the Senate, and admired sometimes his sturdy and perhaps truculent demeanour -

Senator Sir Josiah Symon:

– Not ‘* truculent.”

Senator HIGGS:

– If not “truculent,” then rather fierce demeanour. We were rather surprised to notice the way in which, as Attorney-General, the honorable and learned senator conducted the business of the Senate after he took office. His reply this afternoon is an exception, and I hope it will be the only exception to what so far has been his general rule of strict courtesy in the conduct of the business of the Senate.

Senator Pulsford:

– The question ought never to have been allowed to appear on the notice-paper.

Senator Lt Col NEILD:
NEW SOUTH WALES · FT

-Col. NEILD (New South Wales).- I rise only in consequence of the attack which Senator Matheson has chosen to make on honorable senators from New South Wales. After carefully examining the attendance list of honorable senators for the present session, I find that the honorable senator, who has been so very earnest in his strictures, has actually managed, at great self-sacrifice no doubt, to contrive to be here on no less than fifteen occasions during the present session.

Senator Matheson:

– What work was done when we came here ? I do not come here merely to have my name entered on the records as being present. No work was done, and honorable senators came here only to adjourn.

Senator Lt Col NEILD:
NEW SOUTH WALES · FT

-Col. NEILD. - It is perfectly true that the honorable senators from New South Wales have come here time after time merely to go home again. Even the present sitting appears to be but another illustration of the same kind of thing. We have listened to a very eloquent speech, but apparently we are again to adjourn without doing any business. I protest against the frequent adjournments which have taken place lately, but I am not in favour of four sittings in the week unless some occasion can be shown for it. I echo what I think was said by Senator Macfarlane, and I say, let us go on with three sittings a week”, and when we see any necessity for four sittings in the week, let us have them, but not merely as a matter of whim and without any real reason.

Senator Sir JOSIAH SYMON (AttorneyGeneral - South Australia). - I confess that the amount of heat which has been generated over ‘ this motion for adjournment has surprised me. I have been equally surprised to find that there are so many grave differences, which I hope willyet be healed between some honorable senators opposite. I regretted to hear Senator Stewart’s powerful arguments met with the ejaculation, “ Why this indecent haste “ ? I have possibly some right to complain of the reception which his remarks have been given by some of his honorable friends. On this question I desire to say that I am absolutely in sympathy with those who wish to get on as actively as possible with the work of the country, but it should certainly be done with something like regular progression. I believe in sitting four days . in the week, but I am not prepared to move a motion to apply the order to next Tuesday. There is a sessional order now in force, which prevents our sitting on the Tuesday, and I may tell honorable senators that I have ‘ a notice of motion written out which I shall be prepared to submit when the necessity arises, and when I think that by ‘sitting on the Tuesday we shall expedite the business of the session. I do not propose to begin the Tuesday sittings next week, and honorable senators from New South Wales and from all the States will have ample notice, so that they may make their arrangements, and so that Senator Matheson mav not be a homeless, hapless wanderer on the face of the earth, without knowing what he has to do. ‘ With regard to what Senator Higgs has said I feel sure that the honorable senator cannot suggest that there was any discourtesy in the way in which I put what I had to say when he asked his question to-day. I certainly had no intention of being discourteous. My refusal to answer his question was due, as 1 said, to my belief in his own solicitude for the time and dignity of the Senate. In the form in which the question was put I thought I ought not to have been called on to answer it, nor do I think so now. It would, in my opinion, have been better if the honorable senator’s question had not been placed on the noticepaper. At the same time I do not undervalue the sentiments he has expressed in regard to Russia and international arbitration. I do not think the remarks of Captain Creswell were at all a violation of the neutrality by which we are governed in relation to the struggle now taking place . between Russia and Japan. The honorable senator will accept my assurance that my reply was made in no spirit of discourtesy. I hope I shall never be justly charged with discourtesy to- any member of the Senate. Senator Dobson has suggested that we might go on with the Conciliation and Arbitration Bill, when we meet at half-past 2 p.m. to-morrow, but the honorable and learned senator must know as well as I do, that to-morrow is private members’ day, and I should not bejustified in asking that that Bill should be gone on with without the consent of honorable senators who have private business onthe paper. If honorable senators who are in charge of . private business give their consent, I shall be pleased to arrange for the continuance of the debate on the second reading of the Bill, as soon as possible, - if that should also be found convenient to the honorable senator who has moved -the adjournment of the debate. Senator O’Keefe has made some reference to the desire of honorable senators to have proofs of my remarks in moving the second reading of the Bill. I shall, of course, desire to go through the report to check the quotations I have made, but I shall confer with the President if he will allow me, and also with those in charge of Ilansard, to see what can be done to enable honorable senators to receive proofs of my speech as soon as possible.

Question resolved in the affirmative.

Senate adjourned at 6.35 p.m.

Cite as: Australia, Senate, Debates, 19 October 1904, viewed 22 October 2017, <http://historichansard.net/senate/1904/19041019_senate_2_22/>.