12th Parliament · 1st Session
The President (Senator the Hon. W. Kingsmill) took the chair at 3 p.m., and read prayers.
asked the Minister representing the Prime Minister, upon, notice-
– The Prime Minister has not seen the reported statements referred to by the honorable senator, and is not, therefore, prepared to reply to questions based thereon.
Benefits of Arbitration Awards
asked the Minister representing the Prime Minister, upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the Minister representing the Minister for Trade and Customs, upon notice -
– The information is being obtained.
Treatment of Commission Officers
asked the Minister representing the Minister for Home Affairs, upon notice -
– The answers to the honorable senator’s questions are as follow : -
asked the Minister representing the Minister for Trade and Customs, upon notice -
– The answers to the honorable senator’s questions are as follow : -
Bill received from the House of Representatives and (on motion by Senator Daly) read a first time.
Agreement with German Government : Paper.
Motion (by Senator Daly) proposed -
That the paper (presented to the Senate on the 1st May last) - viz.: - Agreement between the Commonwealth Government and the
Government of the German Reich regarding the release of property rights and interests of German nationals subject to the charge created in pursuance of the Treaty of Versailles - be printed.
Senator Sir GEORGE PEARCE (Western Australia) [3.7]. - It was at my request that the Leader of the Government in the Senate placed this motion on the notice-paper. My object was not that I had any particular objection to the agreement arrived at with the German Government, but that I thought it was only right that the Senate should have an opportunity, if it desired, to express an opinion on a subject of such importance as an international agreement. That opportunity was afforded to another place. It is desirable, I think, that in all such matters, a motion should be moved to enable honorable senators if they so desire to express an opinion upon them, particularly when they are of so much importance as the ratification of an agreement between the Commonwealth and some other country. The agreement itself I have no desire to criticize, because it seems to me the only one possible in the circumstances, and I thank Senator Daly for having given the Senate an opportunity to discuss it.
Question resolved in the affirmative.
Debate resumed from 21st May (vide page 1938) on motion by Senator Daly -
That the bill be now read a second time.
– I regard the Commonwealth Constitution as a deed of partnership between the States themselves and between them and the Commonwealth, and it appears to me that all the parties to it should be consulted before any proposed alteration of it is submitted to the people. Is it not only just and proper that the amendment or amendments should be discussed by the State Parliaments, and some decision obtained there, before going to the referendum? Such amendment or amendments affect the constitutions of the States as well as the Constitution of the Commonwealth. There is no provision in the Constitution to enable the views of the State Parliaments to be obtained upon a proposed amendment, but I submit that such a provision would be a good thing, and would lead to greater harmony between the partners to the federal agreement. No proposals for the amendment of the Constitution are of value which do not recognize the vital importance of the functions allotted to the State Governments. The proposal now before the Senate absolutely transgresses that idea. This measure, if agreed to, would convert the Commonwealth into a unified parliamentary autocracy.
In conclusion, I desire to say that I was sent here to represent the smallest and fairest State in this Commonwealth of sovereign States. Because I sec great and grievous danger to that State in this proposal. I shall do my utmost by speech and action to bring it to nought. I wholeheartedly oppose the bill.’
.- In the concluding paragraph of the. ministerial statement of policy which was read to this chamber by the Leader of the Government in the Senate on behalf of the Prime Minister, these words will be found -
The difficulties confronting Australia are serious, and a proper realization of them should result in whole-hearted co-operation of all sections in the working out of a satisfactory solution. Indeed, at the present juncture, the Parliament might fittingly become an economic conference of representatives of the people meeting to discuss the general position.
Of all times that could be chosen for a discussion of these matters of vital and fundamental importance to the Commonwealth, none is more inopportune than the present. In support of that contention I call to my aid that concluding paragraph in the ministerial statement of policy where unity is the watchword. I am aware that practically the last refuge of the “do nothing” party, the party that would stagnate, is to say in regard to any proposal “ the time is not ripe.” I admit that” in one sense the time is ripe for a review of the Constitution. That is generally admitted by all parties. Various efforts have been made by the Commonwealth Parliament to obtain the sanction of the people to amendments of the Constitution, but, except in very slight particulars, they have failed. It may be said that the people were wrong, and that Parliament was right in those attempts. But those who pin their faith to democracy and declare that the voice of the people is the voice of God can hardly use that argument. It may be that Parliament was in error and that the people, whose voice is supreme, were right in their previous decisions in regard to constitutional amendments.
The fact that some review is necessary has not only been recognized by those who have from time to time made spasmodic attempts to alter the Constitution; but there has been a general recognition by all parties that a sufficient period of time has elapsed, and that we have had sufficient experience in the working of our instrument ,of government, to justify an overhaul, to ascertain wherein lies its weakness, where it requires to be buttressed, and in what respect it may stand in need of radical amendment. But surely the time to carry out such a work is not when we are in dire straits, facing what the Government describes as “ serious difficulties “ ? The Government has indicated that in , its view the crisis is of sufficient magnitude to justify the setting aside of those differences which would ordinarily divide us into opposing camps, so that we may combine and unitedly concentrate in an endeavour to find a solution of the difficulties which beset our country.
We know that the Government is hard pressed for money, that we have to face the prospect of very heavy burdens in the way of increased taxation, that there is a certain measure of apprehension as to the financial stability of the country, and that it will require all our strength, ability and resources to weather the . storm and find a way through. We in this chamber are sufficiently optimistic to believe that we can win through ; that the recuperative capacity of the country and the quality of its citizens are such that we are not likely to go under, but will come out satisfactorily. At the same time this is not a period when money should be spent unnecessarily. These proposed alterations of the Constitution will satisfy no vital immediate need, nor meet any present emergency. They are not required at this juncture. Yet what does the Government propose? It proposes to spend a sum of approximately £100,000 in submitting those referendums to the people at a time when we have to wring money from the taxpayers and place upon their shoulders burdens grievous to be borne. The Government proposes to fritter away some £100,000 in seeking amendments of the Constitution which, in my judgment, are not immediately necessary, and are not vital to the present situation. If the Government could show that these amendments are vital to the welfare of Australia it might have some justification in pushing on in an urgent way with the passage of these measures, and their subsequent submission to the people. I am confident, however, that no one who considered the subject impartially -would venture the opinion that the amendments are of vital necessity at this juncture. The Government contemplates something rather startling. It says : “ Times are bad, money is scarce and difficult to obtain, and the public exchequer is far from full. We, therefore, propose not to distribute the pamphlet which is usually issued when a referendum is taken.” This pamphlet sets forth the arguments for and against the proposals and informs the public mind upon them. I understand that the referendum itself would cost £100,000 and that the publication of the pamphlet giving the arguments of the propounders and opponents of the proposal would cost £25,000. If the Government’s argument that this £25,000 should be saved is sound, it should go further and get to the root of the matter. If the Government would say that, in view of existing circumstances, with an impoverished treasury and an almost depleted exchequer, it would not submit the proposals at the present time, but would choose a more convenient season, I could applaud its attitude. But to be prepared to spend £100,000 on a referendum and nt the same time to deny to the electors an opportunity to consider calmly and dispassionately in their own homes the arguments for and against these proposals, is to act in a monstrous and preposterous way. Does the Government wish the people to vote blindly in battalions, without any impartial or intelligent individual consideration of the proposals? I ask the Government to reconsider that aspect of the matter. Even if this chamber rejects these proposals, they may still be submitted to the people. If they are to be submitted to the people, then the public mind should be informed regarding them, not merely through the medium of the press, or of party propaganda and election pamphlets, but also by the considered statements for which the statutes of this country provide. The very fact that the Government proposes to save £25,000 by not issuing the usual pamphlet is a sweeping condemnation of the taking of the referendum at all. It is tantamount to an admission by the Government that, in the existing circumstances, this expenditure of public money is not justified. My first point, therefore, is that, at the present time, we shall do our country a serious injury if we waste public money in the taking of a referendum. The position would be different if we were living in happy, normal, care-free times.
These proposals come with ill grace from a Government which has sent out a call for harmonious co-operation between all sections of the community. Had the Government itself shown any real desire for co-operation, the members of the party to which I belong would have gone more than half way to meet it.
– Then why not meet the Government in this matter? It is asking for the co-operation of honorable senators.
– The reason that I have given should,- 1 think, be -sufficient. I propose now to say a few words regarding the merits of the proposals.
– Does the honorable senator think that the High Court would declare them illegal ?
– I shall refer to that matter before I conclude my speech. The taking of a referendum would not only be a wasteful expenditure of public funds; it would also dissipate the strength of our people. This is not the time for class feuds or party warfare, or for the division of the people into hostile camps. It is a time when, in the language of the Government itself, “ the Parliament might fittingly become an economic conference of representatives of the people to discuss the general position “. Is not that statement an implied call to unity, and concentration of purpose ? In a time of crisis the strength of the people should not.be dissipated in feuds, disputes and arguments, nor should public, private or party funds be expended unnecessarily. We should do nothing at such a time to divide the people. The energies which, if the proposals are submitted to the people, will be expended in fighting party shibboleths should be employed in greater unified effort and concentration of purpose. On those grounds also I condemn this proposal.
I said earlier that there is a general feeling that the time is ripe for a review of the Constitution. To that end the Bruce-Page Government appointed a royal commission, of which Senator Sir Hal Colebatch was a distinguished member. The appointment of that commission was an indication that the former Government realized that the time was ripe for a reconsideration of certain aspects of this instrument of government. After the fullest inquiry, extending over a considerable time, the commission presented a voluminous and valuable report containing a number of suggestions for the amendment of the Constitution, but not one of those suggestions is incorporated in the proposals submitted to us for consideration. Following the report of the commission, the Bruce-Page Government proposed that there should be a special session of Parliament to consider constitutional amendments. Those things go to show, first, that this instrument of government is not sacrosanct; and, secondly, that it is no reflection on the framers of the Constitution to say that, after 30 years’ experience, it has been found that certain amendments are necessary or desirable. Experience teaches, and experience has shown that in many respects the Constitution is weak. Its framers made it flexible. They placed in section 128, which is being so much added to by this bill, the power of amendment. But -
The best laid schemes o’ mice and mcn
Gang aft a-gley
And leave us naught but grief and pain
For promised joy.
The truth of those lines was realized by the late Government. It proposed to hold a special session of Parliament to consider constitutional amendments; but fate decided otherwise. It was powerless to fulfil its promise. The present Government, in the full plenitude of its power and the enthusiasm of its accession to office, determined to make wholesale amendments of the Constitution. I read with interest the treatise of the VicePresident of the Executive Council (Senator Daly) in introducing this bill. It was both interesting and illuminating; but I was not convinced. I gathered from it that there had been so many conflicting opinions of the High Court regarding interpretations of the Constitution that in the view of the Government the only thing to be done was for Parliament itself to interpret the Constitution. It therefore sought to give to Parliament itself the full power to make such amendments as it saw fit.
The amendments of the Constitution proposed by this bill are not clear from a legal point of view. Apparently, the Leader of the . Senate (Senator Daly) thinks that all doubt, obscurity or difficulty of interpretation will disappear when this measure becomes law and is embodied in the Constitution. That seemed to be the general purport of the arguments ho used. I. have observed, however, that eminent constitutional authorities are doubtful, both as to the efficacy of this proposal and also as to its constitutionality. The arguments advanced in this chamber have revealed a real doubt on the part of honorable senators as to the effect of this measure should it become law. For example there is doubt as to whether this proposal would abrogate the last paragraph of section 128 of the Constitution. Eminent legal authorities doubt the capacity of this Parliament to pass this particular measure. They contend that it is ultra vires of the Constitution. I do not desire, at this stage, to debate that aspect of the subject ; I mention it merely as an answer to the implied statement of the Leader of the Government in this chamber, that by this simple amendment, which would transfer to the Parliament itself the power to amend the Constitution without reference to the people, we shall clear away all doubt, make the Constitution as clear as crystal, and overcome all difficulties of interpretation. Even while this measure is under consideration by the Federal Parliament, a grave doubt has arisen as to its legal significance and effect.
All honorable senators know of the carious efforts that were made to bring about the federation of the Australian colonies. They are aware of the conferences aud conventions that preceded the conception of Sir John Quick that a popular convention that would be inspired by the vote of the people, and into which the spirit of life would be breathed by the people, should be held. I venture to suggest that that inspiration did more to hasten the bringing about of an agreement between the colonies of Australia at that time than any other single idea. It grew in strength and spirit at the referendum, and in that way the Constitution found its birth. What” does this Government propose to do? it proposes to wipe out the referendum. This Government, composed of members of a party that has advocated the initiative, referendum and recall for the past 30 or 40 years - a party that has spoken of democracy and the voice of the people - now says that the people’s voice shall not be heard, except insofar as by an expression of opinion at a general election. He would, indeed, be a bold man who would interpret in the fullest detail a mandate or decision of the people at a general election. The issue in one State might be quite different from that in another State; it would be almost impossible to confine an election to a single issue such as a proposed . amendment of the Constitution. That is not the way in which a Government can obtain a mandate from the people. The Leader of the Opposition in this chamber referred to what might happen if the Labour party were in power. The right honorable gentleman said that merely by the change-over of three seats in the Senate the Labour party might obtain full control in both branches of the legislature, and then all safeguards, all the restrictions which are to buttress the liberties of the people and preserve the sanctity of this contract between the Commonwealth and the States, would disappear. Not only is that possible under an amendment of this kind, but the reverse would be equally true. The swinging-over of a few votes, the loss of a few seats, and a reactionary party might be placed in authority and have the same power to amend the Constitution without reference to the people.
From the point of view of the Labour platform that might be just as inimical to that party’s interest or to its progress. The proposal might not always be advantageous to the party represented by the present Government. It is full of danger.
I can find no merit or virtue in this proposal. Let us preserve the right of the people to determine these issues. The Constitution is a contract between the Commonwealth and the States. I remember the arguments that were used when the acceptance or rejection of the Constitution Bill was before the people of this country. I remember the arguments advanced against the principle of equality of representation in the Senate, for example, but the people accepted the Constitution in good faith and were prepared to trust the Federal Parliament. Section 128 of the Constitution is the security given to the high contracting parties, yet by a stroke of the pen this Government proposes to delete that safeguard and security, and do violence to our Constitution. I trust that when this proposal comes before the public it will respond in no uncertain way. The fate of the measure, so far as this chamber is concerned, seems clear. There will be u strong majority against it, but that will not prevent its submission to the people. I know that my friends of democratic sentiment and progressive ideas say that this is a way in which to destroy the Legislative Councils of the States, which they contend are a bar to progress and handicap the parliamentary machine. And so they say, “ Let us do this thing. Let us create one central government with full authority. Let us so cripple the States that finally the Commonwealth will be divided into so many provinces and county councils.” That is the object of the Labour party. The way to amend the State constitutions is provided for. It was never contemplated by the framers of the federal instrument of government or by the people of Australia that it would be used to destroy the State constitutions. But the Labour party say, “ This is an easy, quick and accessible way to the abolition of the State Legislative Councils. We will repose the full power and authority in the Commonwealth Parliament, and by gradually encroaching on the State spheres, strangle them and render their constitutions abortive.”
– There are many appalling possibilities.
– I shall not endeavour to picture the awful possibilities that may follow the acceptance of this proposal by the people. A great deal more could be said, but as the ground has been well covered, I do not desire to unduly delay the Senate at this stage. Tor the reasons I have given, and for many others which could be advanced, I intend to record my vote against the second reading of this bill.
– As there are many matters common to this measure and the two bills providing for amendments of the Constitution which have still to be debated in this chamber, I do not propose at this stage to reply to the arguments advanced against this proposal. I therefore ask leave to continue my remarks at a later date.
Leave granted; debate adjourned.
Debate resumed from 21st May (vide page 1945) on motion by Senator Daly -
That the bill be now read a second time.
Senator Sir GEOEGE PEARCE (Western Australia) [3.41]. - After listening to the introductory speech of the Leader of the Senate (Senator Daly) on this bill and another similar measure to amend the Constitution I could not help wondering why the Government had submitted these proposals. Indulging in some musings, I endeavoured to put myself in the place of the Leader of the Government, metaphorically speaking, of course, to ascertain the underlying motive for the presentation of these amending constitution bills. Ministers and their supporters are in this position: During the election campaign last year they made a number of the wildest possible promises, never dreaming that they would be returned with a majority and called upon to honour them. Now that they are in power they find these promises hanging over their heads and at the same time they are faced with all the administrative difficulties incidental to a serious business and industrial depression which is responsible for a volume of unemployment unexampled in the history of Australia during the last 25 years. One of their election pledge’s was that, if returned, they would amend the arbitration laws. They objected to the proposal of the Bruce-Page administration to vacate the field of arbitration and posing as the champions of federal arbitration, declared that, if they were returned, they would introduce legislation to free it from legal entanglements and make the court easier of access to all industrial organizations. But like many other promises which Ministers and their supporters made, they find this impossible of fulfilment. They realize possibly that they would not be doing very much even if they did rid arbitration of its legal entanglements, and hedged about as they are with all the difficulties and embarrassment arising out of their election engagements they say: “Let us have a referendum to divert the minds of the people from our election promises and give them something to talk about. They will then forget our pledges relating to the coal trouble, unemployment and arbitration. They will ignore all these things in the excitement and fight over a referendum. Hang the cost. Let us distract the attention of the people from the real issues confronting them.”
I agree with Senator Lawson, who said when speaking to the motion for the second reading of the bill which seeks to confer upon the Parliament power to amend the Constitution, that this is the worst possible time for an appeal to the people. Their thoughts are at the moment directed to the removal of the business and industrial depression which has brought this country to its present position, and they are wondering how it will be possible to overcome the difficulties confronting them. This referendum will do nothing to relieve the situation. Even if this amendment is endorsed by the people it will be impossible to pass necessary legislation within twelve or eighteen months, and no one can honestly say that it will provide employment for one additional man in Australia; or in anyway help to lift the cloud of depression that has settled over the Commonwealth in the last year or two. Actually it will have as much effect upon the present situation of the Commonwealth as a mustard plaster would have upon a wooden leg. But since the Government has brought forward these proposals, the Senate must debate them.
This bill differs materially from the Constitution Alteration (Industry and Commerce) Bill submitted by the Bruce-Page Administration in 1926. I purpose placing on record in. Hansard the provisions of the 1926 referdum proposal so that there may be no misunderstanding or misrepresentation concerning it and the measure now before the Senate. The bill introduced in 1926 was passed by both Houses with the necessary statutory majority, but failed to receive the endorsement of the people. Its substantive provisions were -
Section 51 of the Constitution is altered -
by omitting from paragraph (xxxv.) the words “ extending beyond the limits of any one State”; and
by inserting after paragraph (xxxix. ) the following paragraphs : - “ (xl.) Establishing authorities with such powers as the Parliament confers on them with respect to the regulation and determination of terms and conditions of industrial employment and of rights and duties of employers and employees with respect to industrial matters and things: (xli.) Investing State authorities with any powers which the Parliament, by virtue of paragraph (xxxv.) or paragraph (xl. ) of this section, has vested or has power to vest in any authority established by the Commonwealth : (xlii.) Trusts and combinations (whether composed of individuals or corporations or both) in restraint of trade, trade unions, and associations of employers or of employees for industrial purposes, including the formation, regulation, control and dissolution thereof.”.
Had this proposal been adopted by the people, the Commonwealth Parliament would not have been authorized to legislate in regard to hours of labour, wages, or industrial matters, but it would have had power to establish an industrial authority to deal with all these things. This is the vital and essential difference between the proposals of 1926 and the bill we are now considering. This amendment, if adopted by the people, will turn Parliament into an industrial battlefield.
In introducing this bill, Senator Daly, I am pleased to say, drew attention to the fact that the Australian Labour party and the Australian party were allied on this issue. Although we have always known that the two parties are allied, it is very satisfactory to get that declaration. We know now where the Australian party is. I am reminded of the description I read a little while ago of the pilot fish. It is said that sharks that infest our coast - I hope honorable senators opposite will not take exception to the simile - are accompanied by pilot fish. As the latter are not able to keep pace with the sharks they attach themselves to the bodies of the sharks, and when the latter secure a victim, the pilot fish are allowed to pick up the scraps. Apparently the Australian party is to play the part of pilot fish to the Australian Labour party, and for the support it gives will be allowed to pick up any of the scraps that fall from the table of the larger party.
A peculiarity of the present Government’s proposal is that it allows for the continuance of the dual system. Senator Daly said that our powers under the Constitution are not wide enough to remove the present evil, and that the Government is submitting its present proposal for the alteration of the Constitution with a view to the removal of that evil. Are not the evils in our industrial system entirely due to the fact that we have two legislative bodies operating in the same field ?
Senator Sir GEORGE PEARCE.The honorable senator is welcome to his opinion, but in my judgment it is the last thing to be desired on behalf of this Parliament. A national parliament should be concerned with national matters. Under this proposal it will be not only possible, but almost certain, that every tin-pot industrial dispute throughout the Commonwealth will be dragged on to the floor of one or other of the chambers in this Parliament. Senator Daly said that the effect of carrying the Government’s proposal would be to make the system of arbitration more effective to remove the evils that exist. My reply is that the Government’s proposal will not have the effect of removing the dual system, and must tend to perpetuate the confusion and chaos that now exist. According to Senator Daly it will enable the Commonwealth to enter into the field now covered by the State.Will that not mean an extension or perpetuation of the existing evils? The proposal is not to remove the State from the arena, hut for the Commonwealth to further enter upon the arena. Senator Daly spoke of the service of a log by the parties as creating the dispute. If the Government’s proposal is carried will not the parties still have the choice of serving the log for hearing before either a State or the Federal tribunal? That being so, the decision will rest with the union of employers or employees. It will have the privilege of serving the log and deciding the tribunal to determine it.
Senator Sir GEORGE PEARCE.The federal law will operate only when the union desires it to operate. If it desires to go to a State court, it will have the right to do so. It is but a maintenance, of the fundamental’ principle to which the present Government committed itself absolutely at the last election - that the unions should have the choice of the State or the Federal Court; and the Government and its supporters dare not say to the unions, “We shall confine you to the Federal Court”. Senator Daly said “ What the Government is endeavouring to bring about is uniformity”. This bill will not provide means for doing so because, as I have already pointed out, the two parties will still have Federal and State courts open to them and can make their choice. Senator Daly quoted from the report of the Industrial Peace Conference held in Melbourne in 1928, as to the effect of one State competing with another in the matter of industrial and social legislation… But that is exactly what the Government is now proposing to do. It proposes that the Federal Parliament shall; h& an. even greater competitor than it has been in- the past. Its proposal -.is not to get rid of the competition between -State and State in this industrial field, not to have six competitors with partial additional competition from the Commonwealth, but to have seven competitors in the limited field of arbitration. It is also proposed that the Commonwealth Parliament should deal with all phases of industrial relations, not merely laws relating to industrial disputes, but also factory legislation, duplicating what is already so well done in all .the States, that it should invade the State arena by passing Workers Compensation legislation and such like, running the whole gamut of industrial legislation now on the statutebooks of the States. Senator Daly quoted Mr. Justice Higgins to the effect that there should not be a choice of two tribunals. I wonder that he should have done so, because this amendment, if carried, will make the choice of two tribunals a permanent feature of our Constitution. The proposal is not to have exclusive power in industrial matters, but to share a dual power between the Commonwealth and the States. There is nothing to prevent an alteration of the Constitution to give exclusive industrial power to the .Commonwealth, but the present proposal does not go that far. Senator Daly said that the Government’s proposal “is the only way to co-ordinate the dual system.” That blessed word “ co-ordination !” What does it mean? And in any case, why the need for co-ordination? Why not let each State be the” judge of its own industrial conditions? Why teach our grandmothers to suck eggs? Adult franchise operates in the States and the people elect the popular houses in which industrial legislation is initiated. Are not the people of the States the best judges of the kind of arbitration they want? We are not, by this proposed alteration, depriving them of the power to legislate, but apparently we are to say to them : “ We propose to co-ordinate your legislation with something we intend to do.” My reply to the Government is, “ Get yourselves out of the way or get the States out of the way, and there will be no need for co-ordination. Make up your minds to have one authority, Federal or State, and then there will be no need for coordination.” All this talk about co-ordination is idle. As aimed at in this bill it is mere meddlesome interference. I go sofar as to say that it is vicious interference; That is the cause of the overlapping, confusion and chaos we have had ever since the Commonwealth has entered the field. This bill will not cure it. On the contrary, it will perpetuate it.
It is the wrong time to bring forward a proposal of this sort. I agree with Senator Lawson that this country cannot afford to spend £100,000 on a wrangle over a matter that will not effect a cure or take us one step forward, but on the contrary, will have a disturbing effect on the country. Why has it been brought forward? I have been able to obtain a report of the proceedings of the Australasian Council of Trade Unions, held in Melbourne on 22nd February last, and I propose to read some very pertinent extracts from the report of its arbitration committee, to show the objective of those who are behind the Government in this matter. The committee reported as follows -
The Arbitration Act to be revised to provide for a system of sound businesslike arbitration, free from the entangling legalisms of the law court - a system framed on the lines of the Industrial Peace Act, to be handled by men of industrial experience, to ensure equitable, expeditious, and less costly methods of dealing with industrial matters.
Your committee has carefully considered the present system with the object of recommending such alterations as would most effectively assist the Government to perform its promise.
I quote that report because I wish to put on record not only what was recommended, but also the names of those who were responsible for it.
The next point is as to how the Labour party will exercise the power which the Commonwealth Parliament will have if this bill is adopted by Parliament and accepted by the people. Again, I turn to the report of the congress of the Australasian Council of Trades Unions. Having prompted the introduction of the amendment of the Constitution, it has also prompted the Government as to what it should do if it obtains the necessary power. I quote from the report of the proceedings of the congress as follows -
Prescribed Conditions. - In view of comparatively recent decisions of the High Court we understand that the arbitral power may be given conditionally that, if exercised, it must be exercised in conformity with the provisions made by Parliament. We recommend that the following conditions, among others, should be laid down by the act: -
That means to say that no fall in the cost of living is to bring down the basic wage. The report goes on - (This list is not intended to be exclusive of other conditions).
This recently found an echo in some of the administrative acts of the Government. It reads -
We suggest that the act itself should direct an employer to give absolute preference to members of that registered organization which is covered by the award. The position of nonregistered unions we propose to safeguard by making it a defence (a) that there is no award and (b) that the persons employed are members of a body recognized by the appropriate Trades and Labour Council as a bonafide trade union.
Strikes and Lookouts, and Penalties. - We propose to abolish the penalties upon strikes and lockouts, retaining for the court the power to intervene in any dispute with a view to its settlement by conciliation and arbitration.
We propose also to repeal all clauses which make awards enforcible by prosecution.
This is rather an interesting resolution. I suppose that it is to cut both ways, and that if an employer pays a man less than the award rate, he shall not be subject to prosecution. That clearly is the meaning of the resolution as it reads, but I venture to suggest that it was not so intended. These people had their eyes so glued on their own side of the case that they never looked at the other side -
That seems rather contradictory; it seems as if they woke up to the fact that whilst they wanted to let the union out they must not let the employer escape. The next resolution is a very interesting one -
I recollect having heard that when Mr. Lang was able to carry one of his arbitration bills-
We recommend that in the capitals and other large centres there should be appointed Industrial Magistrates to hear claims for wages and damages. These should have exclusive jurisdiction, subject to appeal to the President only. The Magistrate should have the right to refer to the President for his decision on difficult points of interpretation. Tn small centres State Magistrates should be given the same jurisdiction on the same terms.
Honorable senators who strongly advocate the payment of certain bounties should consider the next resolution -
I hope that the farmers of Australia will read that. It indicates that, in connexion with the compulsory wheat pool and the guarantee, which is a form of bounty, farmers must give preference to unionists as well as paying award rates -
Contracts. - We recommend that no person shall receive a Commonwealth Government contract unless -
We recommend that it shall be a condition of an increase in customs protection or a reduction of excise duty that the employers to be benefited shall give bonds to the Commissioner binding them, in respect of all employees, to give preference and comply with the award.
I hope that the manufacturer, those for whom the Government claims to be doing so much at present, will take notice of the next resolution - 29.Basis of Interstate Trading. - We recommend that the following should be done under the Trade and Commerce Powers (section 51):-
no person shall export from one State to another, goods, which, owing to the industrial conditions under which they are produced, unfairly compete with the product of the State into which they arc sent.
The Government seems to have slipped a little bit there in regard to public servants. I trust that the attention of the Australasian Council of Trade Unions will be drawn to the fact that the Government has departed from that principle in respect of the regulation that it has just repealed -
Not only are these things to be done, but they are to be retrospective to 1920. I take it that every employer who has not done these things will, under the beneficent reign of the present Government, when it obtains the full constitutional power that it seeks, be dealt with as these people would desire -
That is signed by the seven gentlemen who signed the other resolution that I have read. The significant point about the whole thing is that a report appeared in the press purporting to be a record of the congress, but these resolutions were not published. That may indicate that they wanted the Government to consider the resolutions before they were given publicity. Having obtained a copy I thought it desirable to give the resolutions publicity in this debate, so that the public would know what the Government is aiming at. If the public is lured into voting for this amendment of the Constitution, it cannot grumble when these things are given effect to by the Government, at the direction of their masters.
It is also instructive to consider what will be the administration of the law when the Government has power to make any law that it likes in respect to arbitration. The party that the Government, represents is, to say the least of it, suspect in its administration of arbitration awards, because of the attitude that it adopted when in opposition. In some cases it openly aided and abetted rebellion against the law, while in other cases it condoned infringements by its silence. I have here an extract from the Sydney Morning Herald of the 10th December last, which reads -
Rival forces in the fight for leadership of the men’s side in the coal dispute came into conflict at the Newcastle Trades Hall to-night, when Mr. J. Garden (Sydney Trades and Labour Council) and Mr. Davies (general secretary of the Miners Federation) both put the case for their respective organizations before the Trades Hall Council. . . .
Mr. Garden stood as a champion of the Federal Government, especially of Mr. Beasley. He said that Mr. Brennan, Attorney-General, had definitely told the miners that the Government could not break the law by intervening in a State dispute, and the miners knew what they had to do.
The suggestion made by the Minister is that, while the Government could not break the law, the minors should break it in order to achieve their ends. The extract continues - “Have the miners’ leaders complied,” Mr. Garden demanded, “ with the promise they made to the Government - a promise set down in their minutes - to make a general strike.”
That was the attitude of the gentleman who was then championing the present
Government against the leader of the Miners Federation in respect of industrial law. Here is another extract from the Sydney Morning Herald of the 23rd May, 1929, which reads -
Aid forStrikers. the spirit of eureka.
The annual conference of the New South Wales branch of the Australian Railways Union opened at Newcastle this morning.
Secretary’s Report. “ We meet now at a time most critical for railwaymen and the Australian Railways Union, because of the private employers’ and Railways Commissioners’ onslaught in all States on our hours and wages standards,” said the report presented by the State secretary (Mr. E. A. Chapman), which, by a special suspension of standing orders, was given first place on the business-sheet. “ In the past twelve months there had been a series of industrial struggles throughout the Commonwealth. The timber-workers’ strike was the outstanding one. Judge Lukin, ‘ the ablestand most audacious legal preserver of capitalist privilege in this country,’ had snatched from the timber-workers the 44-hour week that they had enjoyed for six and a half years. Judge Lukin’s action was unconstitional, because the Full Court had directed him merely to interpret the hours clause, and given him no direction to amend or alter it in any way. But it was what employers’ organizations throughout the country, banks, foreign financiers, and loan workers had been yearning for. Judge Lukin was the Arbitration Court leader for whom they had been praying. The timber- workers had decided on a strike as their final protest against the return of the 48-hour week. They would not have 48 hours. Nor would the railwayworkers. The maintenance of wages and hours standards and resistance to a reactionary Arbitration Court, which had assumed leadership for the employing class, were the issues that confronted the union movement. . . . “
President’s Address. “ The Australian council of the union,” the State president (Mr. A. J. McAllister) added, “ at its last meeting decided against the principle of arbitration, and with good cause the federal act had been so amended that the court had to take into consideration the ability of industry to maintain existing rates or to survive increased wages. The personnel of the Bench could be relied upon to apply the principles of the act with gusto. For this reason they had been appointed.”
And on the 24th of the same month the Sydney Morning Herald reported as follows : -
” Regulation “ Strike.
Against New Log. taking over the industry.
Members of the Australian Railways Union are to counter the Railways Commissioners’ service of a new log on railway employees by methods which include a “ regulation “ strike. A motion to this effect, moved by the State secretary of’ the Australian Railways Union (Mr. E. A, Chapman), was enthusiastically and unanimously carried by the State conference of the union at to-day’s sitting.
Mr. Chapman’s motion read as follows:
This conference draws the attention of the Australian Railways Union to the conduct of the Railways Commissioners in serving a log of claims upon all railway employees for the express purpose of further delaying the hearing of the claims of the Australian Railways Union for improved conditions. We recognize in this act an attack upon existing conditions, and declare our intention of resisting the same by a strict observance of the departmental regulations. We call upon all other unions operating in the service to join with us - (1) in putting forward the maximum resistance . to the Commissioners’ log; (2) to work for the elimination of bogus organizations, non-unionism, and other undermining influences; (3) to conduct regular meetings at depots and work-shops: (4) to issue propaganda exposing the tyranny of departmental officials and the abuses perpetrated upon railway employees; (5) to set up and encourage the formation of job and shop committees, and prepare workers for the taking over of control of industry.”
Following vigorous discussion the motion was lost, and an amendment approving the Australian Railways Union Central Council’s previous decision to expose the Federal Arbitration Court as an institution of class domination was carried.
That is the attitude of many of the unions which comprise the Australasian Council of Trade Unions at whose behest this amendment of the Constitution is sought. That will be their attitude towards any law which proposes to mete out justice as between employer and employee. The only crime which the Railways Commissioner of New SouthWales had committed was that he presented a log to the court. He had not endeavoured to enforce the conditions set out in that log; he had simply presented the log to the court for that body to adjudicate upon it. Yet even that action gave rise to that violent language and those hostile resolutions.
If this bill becomes law, and the Constitution is altered accordingly, this Parliament will become an industrial Parliament. I warn the Senate of the danger associated with such a state of affairs. The various political parties would undoubtedly start bidding against one another for the votes of the industrial section of the community.
We have seen evidence of the danger of that state of affairs in connexion with old-age pensions. I could cite instances in which political parties have, in the most audacious fashion, made bids for the votes of old-age pensioners. But what happened in connexion with them would be as a drop in the ocean compared with what would happen if parties endeavoured to outbid one another for the votes of the industrialists of this country. If parties are prepared to prostitute themselves in order to gain the small number of votes represented by old-age pensioners, what would happen, if wages and conditions of labour were made the issue at any election? Such things should be decided in the cool atmosphere of arbitral tribunals, not in a parliament composed of parties bidding against each other for power.
The Government claims that it needs these additional powers to deal effectively with industrial evils in the community. Supposing it had possessed the powers it now seeks, what could it have done in the prevailing coal disputes ? The trouble in the coal-mining industry, which has extended for over twelve months, has caused tremendous losses to the community, and has been largely responsible for our present depression. If the Government had appointed a tribunal to deal with their grievances, would the coal-miners have obeyed its awards, seeing that in the past they have treated all tribunals with scorn ? Would the Government have solved the problem by nationalizing the coal-mines? The trouble with the coal industry is that the price of coal is toohigh. Have we any guarantee that the price of coal would be reduced by nationalizing the industry? Experience teaches us that coal would have been dearer still had the mines been nationalized. But even supposing that the price of coal were reduced, would that remove the possibility of industrial disputes in the coal-mines? Would a coalminer work in nationalized coal-mines any more amicably than he would work for a private employer ? We have the answer to that question in the attitude of the railway employees who were working in a nationalized industry. They talked of revolt and of taking illegal action to prevent the Railways Commissioner from even having his log presented to the court. Have we any guarantee that the coalminers would be any more reasonable than the railway employees were? This amendment of the Constitution would not have enabled the Government to solve the coal trouble.
– The right honorable leader of the Opposition (Senator Sir George Pearce) has given a number of reasons - some relevant and others irrelevant - why he will oppose this bill. I hope that other honorable senators opposite will not follow his lead, but that they will give the proposal their serious consideration, and decide its fate on its merits. The right honorable gentleman also said that even if the proposal embodied in the bill receives the approval of the people, it will not remove the evils of the dual system. In saying that, he did not state the position correctly. If the power sought in thisbill is conferred on the Commonwealth Parliament, it will be able to pass arbitration laws which will supersede the laws of the States. The co-ordination referred to by the VicePresident of the Executive Council (Senator Daly) did not refer to any attempt to bring about a union of two conflicting systems, but to a desire, on the part of those who believe in federal arbitration, to do that which is best in the interests of Australia: The State tribunals would work in conjunctionwith the Federal Arbitration Court.
It must be apparent to any honorable senator who has studied the measure that the increased powers proposed to be conferred upon this Parliament by clause 2 are about as complete as human genius can devise. That clause reads -
Section fifty-one of the Constitution is altered by omitting from paragraph (xxxv.) the words “ Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State “, and inserting in their stead the words - “ Industrial matters, including -
) employment and unemployment ;
terms and conditions of labour and employment in any trade, industry, profession, occupation or calling;
the rights and obligations of employers and employees;
strikes and lock-outs;
the maintenance of industrial peace; and
the settlement of industrial disputes “.
In that clause there is no limitation of the jurisdiction of the federal court; but, as Senator Daly pointed out, that court would naturally work in conjunction with the State courts, where possible, thereby retaining that which is best in the arbitration legislation of the States. In considering this bill we ought to review the whole incidence of legislation designed to maintain a measure of industrial peace. Let us visualize the conditions which existed over 30 years ago when the Constitution was being moulded. At that time industrial arbitration, wage fixation, and conciliation courts or tribunals were in their infancy in this country. Trade unionism also was in its infancy. We are all familiar with the circumstances which led to the formation of political and industrial organizations of labour in Australia. The rapacity of employers in the early ‘nineties, when they seized upon the prevailing depression to exact what to us now appear to be almost incomprehensible terms from their workers, caused the workers to enter the industrial field, and, later, the political field. Out of that organization there arose a measure of wage fixation and also tribunals to settle disputes between employers and employees. The whole system was in an embryo stage when the Constitution was being moulded.
The convention at which the Constitution was moulded was attended by representatives of the different States. Australian political history shows that the States were then considering this subject from different viewpoints. Some States had established wages boards and other such tribunals to determine wages and conditions of employment generally, while others were watching what they regarded as an experiment. In those circumstances one would naturally expect a lack of desire on the part of the delegates to the Federal Convention to confer anything in the nature of extended industrial powers upon this Parliament. Section 51 of the Constitution confers upon this Parliament the power to make laws in relation to disputes extending beyond the limits of any one State, but all other industrial powers were left to the States. With the development of a new industrial system, the setting up of industries for mass production adjacent to sources of power, the linking up of industrial organizations between States, the establishment of federal organizations, and the competition that ensued between manufacturers in different States, there was created a desire on the part of employers and employees to seek the shelter of the Federal Arbitration Court. With the federation of employers’ and employees’ organizations, a greater number of industries and employers and employees was gradually brought under the jurisdiction of the Federal Arbitration Court. The varying interpretations of article xxxv. of section 51 of the Constitution further widened the ambit of federal industrial legislation. As an illustration I may cite the State instrumentalities case. When federal arbitration was first introduced, it was held by the High Court that the employees of State instrumentalities were not entitled to approach the Federal Court, but later when the personnel of the High Court .Bench had been changed, this decision was reversed and State employees were brought within the ambit of the Federal Court. This, I suggest was due to some extent to the growth of public opinion and the desire for industrial peace. Thirty years ago, there were no world courts for the settlement of international disputes, but to-day, they are actually in operation.
Is it not reasonable to assume that as the people of the world are seeking international peace, so is peace being sought in the industrial arena by the use of similar machinery. That point has, I think, been admitted by the two principal sections of political thought in this country. I believe that in the main honorable senators opposite support the principle of arbitration for the settlement of industrial disputes, and for that reason I do not think they are likely to be influenced by the utterances of the Leader of the Opposition (Senator Sir George Pearce) who referred to the actions of extremists. If I were to adopt that line of reasoning, in combating the arguments advanced by the Leader of the Opposition, I could produce many instances in which employers exhibited unreasonable tendencies towards their employees, and show that they advocated schemes for the destruction of the arbitration machinery of this country. In some instances they suggested that we should revert to the law of the jungle and of individual bargaining which once obtained.
– Many unionists have made a similar suggestion.
– This issue should not be determined upon the utterances of extremists on either side, but should be considered from the viewpoint of a great majority of the employers and employees. According to the figures published in the Commonwealth Year Booh, there are approximately 700,000 trade unionists registered under the Federal Arbitration Court and over 400,000 operating under awards of that court, a great majority of whom are working satisfactorily, peacefully and consistently and obeying the awards of the court as are a majority of the employers. On the other hand, there are some on both sides in favour of the abolition of all forms of arbitration, but they are not in sufficient numbers or of sufficient importance to warrant serious consideration being given to their opinions. Generally speaking, our arbitration system has been a great success, and despite what has been said to the effect that Australia is a hotbed of industrial unrest, the statistics of other countries disclose that the working days lost in
Australia are not greater than in any other country. Under the system which has operated in Australia for many years, the Australian workers have acquired a degree of efficiency which has been favorably commented upon by overseas visitors. I quote the opinion of a gentleman who recently established an industry in Victoria as reported in the Melbourne Herald of the 22nd February, 1929 : -
A tribute to Australian labour is made by Mr. P. Kelly, managing director of the Ballarat branch of the English firm of I. and R. Morley Limited. At the outset, said Mr. Kelly to-day, we had working for us nine men and sixteen women from England, but after wehad trained them for the work, we have employed no others. There are now seventy-five and we cannot speak too highly of them. Theadaptibility and resourcefulness of the Australians, both male and female, has been exceptional, and we are gratified at the class of work producedby Australian labour, which is equal to that of the English worker. This is very creditable, particularly when one realizes that practically all the girls had to be taught the methods of our work.
That could be amplified by the utterances of other employers of labour in Australia. We should not continually traduce our Australian workmen, but recognize that in the main they are doing their work well.
The Leader of the Opposition appealed to honorable senators to reject this measure, which, he said, if passed by Parliament; and approved by the people of Australia, would have the effect of making the Commonwealth Parliament an industrial Parliament. Does not that danger exist in connexion with the State Parliaments to-day? Apart from the industrial powers conferred upon this Parliament, the power to make laws governing conditions of employment is held by State Parliaments. Is it not possible under the present conditions for each State Parliament to become an industrial parliament? Is that not one of the dangers that would be avoided by conferring complete industrial power upon this Parliament? While the States possess certain industrial powers there is, in consequence of varying State policies, a real and grave danger. If the State Parliaments are permitted to legislate in the matter of wage fixation and the conditions of labour or in the appointment of tribunals to assess such wages and conditions industrial development may be seriously retarded. It has been contended both by employers and employees that with our modern forms of transport, and our huge volume of interstate trade, standard working conditions should prevail throughout Australia. We should have established principles which will operate similarly throughout Australia after making allowance, of course, for local conditions in those districts where they are of sufficient importance to justify recognition. The Federal Arbitration Court operating under the increased powers which the Government seeks to secure under this measure is the only authority capable of providing for this.
I wonder sometimes how many honorable senators opposite, who were members of this Parliament during the regime of the Bruce-Page Administration, will be able to justify a vote against this bill in view of the support which they gave to the measure introduced by the former Prime Minister.
– This bill is asking for something more than a grant of industrial power.
– The 1926 proposals sought to confer enlarged industrial powers, not on this Parliament, but on a Commonwealth tribunal, which is a vastly different thing. Parliament should not belittle its status. The former Prime Minister should not have sought for an industrial tribunal with extended powers which Parliamentitself could not exercise. This was the view taken by the majority of the people at the time, and, as a consequence, the referendum was defeated. Subsequently Mr. Bruce appealed to a conference of State Premiers and asked them to cede to the Commonwealth Parliament full industrial powers. I presume he took this action with the full knowledge of his colleagues in Cabinet, and of the members of his party. I am entitled also to presume that they approved of the course taken by the right honorable gentleman. The State Premiers refused his request, and for a time Mr. Bruce was undecided about his future course of action. The Adelaide Advertiser of the 5th June, 1929, published the following comment and report of a speech delivered by the right honorable gentleman in Sydney on the 4th June: -
A hint that the Federal Government still had hopes of obtaining full control of arbitration was dropped by the Prime Minister tonight. Mr. Bruce said he was, and always had been, of opinion that the Commonwealth, with full industrial powers, could make a better job of arbitration than the States. With limited powers, however, federal control was impossible. The people might yet decide that the Commonwealth was the proper authority to control arbitration, and it was always competent for them to do so, presumably by referendum.
Mr. Bruce clearly was of the opinion that the Commonwealth Parliament could control the arbitral laws of Australia better than the States. This opinion, it should be noted, was expressed subsequent to the refusal of the State Premiers, who represented divergent political views, to cede to the Commonwealth the power which the Prime Minister had requested should be given. In the circumstances, I contend that no honorable senator who endorsed the views of the former Prime ‘ Minister concerning this matter, can now vote against this bill, the object of which is to give effect to the policy enunciated by the former Prime Minister. Mr. Bruce emphasized that the Commonwealth, exercising full industrial powers, could make a better job of arbitration than the States. If he had any thought about enlarging the powers of the Commonwealth Arbitration Court, dr some other Commonwealth tribunal, he would have said so. Is it now suggested that it was his intention to make the Arbitration Court supreme over Parliament? This proposal asks the people to vest in the Commonwealth full industrial power, so that Parliament may direct the arbitral tribunal as to how that power shall be used. It does not seek to vest this power in a tribunal beyond the reach of Parliament, as contemplated in the 1926 proposals. In the Adelaide Advertiser of the same date, Mr. Potts, the Chairman of the Sydney Chamber of Manufactures, expressed views similar to those enunciated by the former Prime Minister. He is reported to have said -
Manufacturers view with a good deal of uncertainty the proposal of the Commonwealth to vacate the arbitration field.
From this it is clear that manufacturers at that time were apprehensive concerning the possibility of reverting to unsatisfactory industrial conditions which had been eliminated to a great extent by awards of the Federal Arbitration Court - conditions under which manufacturers in one State were in unfair competition with the manufacturers in another State, owing to the difference in the standard of wages, hours of work and the conditions of labour. The report continues -
The matter was considered by the Council of the Chamber of Manufactures to-day. After the meeting the chairman (Mr. C. D. Potts) stated that the council was unanimously of the opinion that the discontinuance of the overlapping of industrial jurisdiction was imperative. At the same time it was thought that there should be some provision whereby the burden placed upon industry should be equalized as between the States.
They believed that the elimination of dual control was imperative, and that there should be one tribunal to hold the balance fairly between the manufacturers in the various States. The only tribunal capable of doing this is the Federal Conciliation and Arbitration Court. It is obvious from the provisions of section 51 that the framers of the Constitution intended that this Parliament should be responsible for the maintenance of industrial standards in Australia. That sec1 ti on provides for uniformity in regard to the tariff, taxation, and the payment of bounties. In all matters affecting.pro1duction, business and taxation, this Parliament is directed by the Constitution to maintain an equal application of basic principles. It is specifically directed to see that the industrial conditions applied to one State are in conformity with the conditions in other States. Had the framers of the Constitution the knowledge which we to-day possess concerning the growth of arbitration systems for the maintenance of industrial peace, they would have been just as clear and specific in their direction that the Commonwealth Parliament should have full power to enact laws for the prevention of industrial disputes. Since it is established that the framers of the Constitution intended this Parliament to have full authority over conciliation and arbitration for the settlement of disputes, it is essential that full authority should be vested in the Commonwealth. Accordingly we must turn to other avenues to seek the motives for opposition to this measure. Following the failure of Mr. Bruce to induce the Premiers of the States to surrender control of industrial matters to the Federal Parliament, the Bruce-Page administration endeavoured to rid itself of responsibility. It introduced legislation providing that the Commonwealth should vacate the field of industrial conciliation and arbitration except in regard to two or three industries which are essentially federal in character. Industries which for a long period of years had been divorced from the authority of State tribunals and had come within the protective shelter of the federal tribunal, were to be driven back to the jurisdiction of the States. Strangely enough we find that whilst Nationalist members in this Parliament apparently have never wavered in their espousal of the principle of arbitration, representatives of the Nationalist party in State Parliaments have been consistently striving to abolish the system. In South Australia, to quote one instance, a Nationalist Government under the leadership of Sir Henry Barwell, who afterwards became a member of this chamber, introduced legislation in 1923 for the abolition of State industrial tribunals. At one fell swoop Sir Henry Barwell proposed to destroy the work of many years. If he had been successful, that section of the workers which for reasons mentioned earlier in my remarks, were not able to obtain access to the Federal Arbitration Court, would have been totally unprotected by any system of arbitration. Fortunately that measure was defeated, although it had the support of nearly every Nationalist member in the House of Assembly. It was only the defection of two men who placed their election pledges to retain arbitration before their party interests which saved the situation m 1923; and from that date onwards we have had the present leader of the Nationalist party in South Australia (Mr. Butler), who was a member of the State House when Sir Henry Barwell introduced this bill and strongly supported it, continually advocating the abolition of State arbitration. .
– Yes, but I am urging that if the State tribunals are disestablished the Federal Parliament should have the power to replace them by a Commonwealth tribunal. The gentleman to whom I am referring does not advocate that. When last year Mr. Bruce and his friends who are now on the opposition benches were urging the people to return them to power so that they could abolish federal arbitration, Mr. Butler in South Australia was indicating that, as soon as he could get a majority of members who would follow him, he would start on a crusade against State arbitration and that he would abolish the State Court.
Are the Opposition opposed to this bill because they do not really believe in arbitration, and is it their desire to see our- arbitration and conciliation tribunals abolished ?
– We established them.
– The honorable senator assisted in putting on the statute-book in days gone by quite a lot of legislation in which he does not now believe. It is the same with other honorable senators opposite. There are, therefore, some pages in history which do not give us any clear guidance to the future. We must, however, take cognizance of the attitude of the party as a party. One of the very first acts of the Moore Government, following upon its return to office in Queensland in May of last year, was to suspend an award of the Queensland Arbitration Court. The Bavin Government in New South Wales did the same thing. Honorable senators opposite cannot have it both ways. They cannot say in this chamber that they believe in arbitration and then go outside and seek to abolish the effects of arbitration legislation. The only means by which a clear conception of their attitude can be secured is for them to show their belief in arbitration by their support of this bill. It has been introduced with a desire to improve the federal arbitration system and make it more workable and more conducive to industrial peace by eliminating the evils of overlapping, particularly the evil that accrues through the lack of power of the Federal Court to make a common rule.
If honorable senators opposite will assist in removing the shackles imposed on the Federal Court by the limitation of the Federal Constitution their attitude will be consistent with that of their late leader, Mr. Bruce, and with their previously expressed belief in the efficacy of arbitration as a means of preventing industrial disputes and of ushering a measure of industrial peace into this country.
– The conditions most requisite for the recovery of industrial and financial health in the Commonwealth are that the people should he given as much liberty and freedom as possible to adjust themselves to the difficult state of affairs to-day, and that every possible economy both public and private should be practised in order to provide the necessary capital to carry on and restore or increase the production of commodities. What is the object of this amendment of the Constitution ? Is it to aid the reconstruction of industry and increase production? First of all, it will involve the country in a huge and unnecessary expenditure, which must be recovered from a people already staggering under a dreadful burden of taxation. Secondly, when every thought should be directed towards restoring the finances of the country, it will invite turmoil and disturbance throughout the Commonwealth. People will hesitate to start new enterprises until the question is finally settled. They will ask themselves, “ What new burdens are to be cast upon us if this amendment is carried?” Every person who has an idea of starting a new business must ask himself, “ Will a new act be passed compelling me to pay such wages or comply with such conditions as Parliament may decide?” We have already seen how an attempt has been made in the Cotton Industries Bounty Bill to impose such conditions as would deprive the growers of any benefit from it. Are we, then, tobe committed to a system by which every new industry is to be harassed and subjected to constant interference directed to secure the whole reward of labour to the worker? We have seen that every railway in Australia has been reduced to a state of bankruptcy by political control and interference. If this proposed power be secured for the Commonwealth every industry, as shown by the proposals mentioned by Senator Pearce, may expect to be reduced to the same chaotic condition. As has been pointed out, also, there is no intention to abolish the dual control of which the Leader of the Government in the Senate complained.. There is nothing in the present proposal to say that the. Commonwealth’s jurisdiction shall be exclusive. If the Government were sincere it would be easy to provide that, when assumed by the Commonwealth, this jurisdiction should be absolutely exclusive, and that the people should not be able to dodge back to a State jurisdiction if it suited them better. But, of course, Mr. Lang would never agree to that. He wants to be free to bring about a 30-hour week if he returns to power. He would be out of the limelight altogether. Exclusive jurisdiction, therefore, must not be proposed, for fear of Mr. Lang’s antagonism.
It is a fatal objection to these proposals that it will make this Parliament the arena for debates on purely local matters, such as how many hours a week the Wyndham slaughtermen should work. The State Parliaments are finding it difficult enough to keep abreast of their work in dealing with these matters of local government. If we were to start dealing with them a great increase of members in this Parliament would be inevitable, and we should have to carry on with a system of committees such as now obtains in Great Britain. That that system has proved largely a failure is evident from the proposals for home rule in Scotland and Wales and England in order to leave the National Parliament free to deal with matters of truly national importance.
The proposals before us are couched in the widest and vaguest terms that could possibly be employed. It is proposed that this Parliament shall have power to legislate with respect to the following matter s -
I invite special attention to the words “ any trade, industry, profession, occupation or calling.” We may have, under these terms, legislation regarding State servants, the admission of barristers or solicitors, or regulating the right of medical practitioners or dentists to practice their professions, or the right of teachers to open schools. The licensing of these professional gentlemen to practise could be made subject to the employment of unionists only, or to some other condition that would hamper and hinder the development of industry and employment in this country. Take then the words “ the maintenance of industrial peace.” What do they mean ? What is the object of them? It can only be that with these words and a convenient fiction which itis hoped will arise in the High Court the design is to obtain control of the whole field of legislation in as full and ample a manner as that for which the bill with which we last dealt provided, under the guise that it is necessary for the maintenance of industrial peace. For instance, State railways might be taken over by the Commonwealth. It would only be necessary to promote a general strike on the State railways and then the Commonwealth could proceed to use this power which it is now seeking to take complete control over the State railways. Yet honorable senators of the Labour party have the effrontery to pretend that the present proposal does not go further than that of the Bruce-Page Government in 1926 or the proposal which emanated from the conference of the State Premiers in 1928. Recently I saw an article in the Labor Daily in which it was contended that the only power which should be committed to the Arbitration Court was one to raise wages; that it should have no power under any circumstances to lower them. If this amendment of the Constitution is carried it will be quite competent to introduce a measure to prevent the Arbitration Court from lowering wages. It is only necessary to provide in the preamble to the measure that it is for the maintenance of indus trial peace ; the High Court would go no further. It would not consider whether the act was or was not actually designed or suitable for the maintenance of industrial peace.
– Should not Parliamentbe supreme over the High Court, which is not an elected body?
– Parliament is supreme, but it cannot override the judgment of a court. It has never been suggested that Parliament should try people charged with murder or try cases involving thousands of pounds. Why should this Parliament, in industrial matters, usurp powers which properly belong to an outside body or court? It was the intention of the Bruce-Page Government to commit these industrial mattersto tribunals which would have the opportunity to call evidence and make just awards. The present Arbitration Court has repeatedly refused to grant absolute preference to unionists, recognizing that that monopoly, if granted, would undoubtedly be abused.
Senator O’Halloran contended that we should not create a court beyond the jurisdiction of Parliament. The very conception of British justice is that a court shall be absolutely beyond the control of the executive or legislature. For that reason the salaries and appointments of judges of the High Court are for a life term. Until recently it was the convention that those judges should not expect promotion. They had nothing to hope for and nothing to fear. This Government has departed from the tradition and. promoted Sir Isaac Isaacs to the position of Chief Justice. Senator O’Halloran also said that the change in the decisions of the High Court that first of all excluded State instrumentalities from Commonwealth jurisdiction and then included them was due to a change in public opinion. But what are the facts? When the referendum was taken asking for power for the Commonwealth Parliament to deal with State instrumentalities it was rejected. By judicious appointments which changed the political complexion of the High Court, a so-called change of public opinion was effected, but the rejection of the referendum proved that there had been no change of public opinion in the matter. What makes the thing appear worse is the reward by promotion of a judge of the High Court. It is quite evident that Senator O’Halloran does not want a court at all. He wants an obedient body like the Public Service Board, which at one time we fondly believed to be beyond parliamentary control.
– A Public Service Board would not suit us in this case.
- Senator O’Halloran wishes to have a board that would be the immediate slave of the Government.
– The honorable senator is misjudging Senator O’Halloran.
- Senator O’Halloran advocated that we should not have a court which would not follow the directions of this Parliament. How can there be any arbitration unless it is free from control, parliamentary or otherwise?
Senator Dunn. - Was not the appointment of Judge Drake-Brockman a political one?
– When that gentleman was a senator, I differed from him on the floor of this chamber, and I fancy I came off rather the worse in those debates. I have the highest respect for his capabilities, and I think that his decisions have been free from political bias. Although the unions made a considerable outcry when he was appointed judge, they have, for a number of months, been astonishingly quiet with regard to him. On the other hand, they have taken a dead set against Judge Lukin, who has no connexion with any political party, and who was appointed from the Queensland Bench, as a member of which he had a high and honorable record. It is only because decisions do not suit them that honorable senators opposite and their supporters refuse to adopt a fairand reasonable attitude. Their belief is, “ unless you are for us, you are against us “.
As Senator Sir George Pearce so eloquently pointed out, there is nothing in this bill to prevent the wasteful system of duplication of courts and wages boards; nothing to ensure any increase of production, or to preserve continuity of industry. It will do nothing to lighten the burdens under which our producers are laboring, and it will in no way clarify the existing legal position. The whole measure is couched in the vaguest of terms. The Government is really asking for a blank cheque to be signed in its favour. I believe that it is overreaching itself. If it were willing to circumscribe the field of this legislation along the lines of the scheme put forward by the Bruce-Page Government in 1926, it would have a greater chance of obtaining its objective.For the reasons that I have advanced, I propose to vote against the bill.
. The bill before the Senate deals directly with the system of arbitration under which the Commonwealth has been working for a number ofyears. It proposes to repeal that system and to substitute another in its stead, in accordance with clause 2, which reads -
Section fifty-one of the Constitution is altered by omitting from paragraph (xxxv.) the words “ Conciliation and arbitration for the prevention and settlement of, industrial disputes extending beyond the limits ofany one State “, and inserting in their stead the words - “ Industrial matters, including -
employment and unemployment;
terms and conditions of labour and employment in any trade, industry, profession, occupation or calling;
the rights and obligations of employers and employees’;
strikes and lock-outs;
the maintenance of industrial peace; and
the settlement of industrial disputes”.
Before dealing further with the bill, I should like to draw attention to one or two remarks on the subject that were made by Senator O’Halloran. The honorable senator contended that we, on this side of the chamber, refuse to recognize that the workers of Australia are efficient and able to perform their jobs well. I think that I speak for other honorable senators of the Opposition when I claim that we have always recognized and appreciated the efficiency of the Australian worker. We also recognize that that efficiency has been stultified to a great extent by the inefficiency of those who lead them. I, and others, have often contended that if the Australian worker were left alone by his false advisers he would be much better off than he now is, and Australia would not be suffering from much of its present unemployment.
Senator O’Halloran also made a good deal of the fact that Mr. Moore abolished the rural workers’ award when he came into power in Queensland. I point out that that was one of the undertakings given by Mr. Moore at the hustings. Is it not preferable that our jural workers should be engaged at a reasonable wage rather, than that they should- be idle, because of the inability of the farmers to pay the wages demanded under the rural award made during the regime of the McCormack Government? It was to Mr- Moore’s credit that he kept his promise, abolished the award, and so found employment for hundreds of unemployed in Queensland’.
Successive .attempts have been made by previous federal administrations to extend the industrial powers of the Commonwealth. Referendums were put before the people by Mr. Fisher in 1913, the Right Honorable W. M. Hughes in 1922, and the Bruce-Page Government in 1926. On each occasion the proposals were rejected by the people. The main issue at the 1929 election was the distribution of industrial powers between the Commonwealth and the States. The proposals of the Bruce-Page Government were almost identical with those submitted by Mr. Hughes in 1922, but because the Labour party persuaded the people that it was proposed to reduce wages and lower the standard of living, they were defeated. The proposals of the BrucePage Government, unlike those of this Government, clearly defined the respective spheres of the Commonwealth and State authorities. The Federal Court was to deal only with industries which were purely federal in their character, such as maritime industries and transport. All other matters were to be dealt with by the States. Had effect been given to those proposals, we should have got rid of that dual control which has caused so much trouble and loss to Australian industries. The referendum proposals in 1926 were an attempt to remove the hampering restrictions of dual control. Mr. Bruce then pointed out that it would be disastrous to the Commonwealth for the Federal Parliament to be constituted an industrial tribunal. He proposed to place the control of industrial matters in the hands of an outside body. It was then proposed to add a new paragraph to section 51 of the Constitution, to make it read -
The Parliament shall, subject to -this Constitution, have power to make laws for the peace, order, and good government, of the Commonwealth with respect to -
Establishing authorities with such powers as the Parliament confers on them with respect to the regulation and determination of terms and conditions of industrial employment and of rights and duties of employers and employees with respect to industrial matters and things.
That set out clearly that an outside body, not the Federal Parliament, would have charge of industrial matters. The bill now before us vests those powers in Parliament itself. Instead of the Federal Parliament dealing only with industries of a federal character, as Mr. Bruce proposed, the present Government would give it full power. The proposal before “us will not do away with the overlapping which has prevailed for so many years. Realizing the evils of dual control, Mr. Bruce asked the State Premiers in 1929 to give to the Commonwealth Parliament full power in industrial matters, but they would not agree to his proposal. Thereupon Mr. Bruce proposed that the control of industry generally should be handed over to the States, reserving to the federal authority control of the maritime industry. The people rejected his proposal. I mention these things to show how different were the proposals of 1926 and 1929 from those of the present Government. This bill contains no evidence that the evil of dual control will be abolished; nor does it indicate what the Government proposes to do if vested with the additional power it seeks. All we are told is that the granting of these powers will remove the evils now existing in industry. I believe that the people would be prepared to give the Federal Parliament greater powers in certain specified matters of a purely federal nature, such as aviation, wireless, and the maritime industry, especially if those powers were to be exercised by a body outside Parliament. The bill, however, does not propose to vest these powers in an independent body; it proposes that Parliament itself shall deal with such matters as wages, hours of labour, workers’ compensation, and early closing. Matters which are likely to cause a great deal of argument and dissension are far better left in the hands of an outside body, for differences would then be settled in a more friendly spirit than would be possible in a political atmosphere. If these matters are to be determined by Parliament, there is a danger that they will be decided, not on their merits, but according to the effect of a member’s vote on his future political career. In the proposals submitted in 1926 the sphere in which the federal authority should arbitrate was clearly defined; but in this case it is somewhat obscure. Reference is made in the bill to the “ maintenance of industrial peace.” That is a very elastic term. An industrial dispute of a federal character would come within the ambit of the Commonwealth Arbitration Court, and it would, I. submit, in certain circumstances be possible for a government so disposed to nationalize the industry in which the dispute occurred. As the socialization of all means of production, distribution and exchange has been a plank of the Labour party for many years, we should study this subject from that angle, and endeavour to determine the possibilities if such a policy should be adopted. If the Constitution Power of Amendment Bill is defeated, and this measure is passed by both branches of the legislature and accepted by the people, will the Commonwealth Arbitration Court be able to enforce a decision which is unfavorable to one party to a dispute more effectively than in the past? It is easy to enforce an award of the court which is acceptable to the workers ; but it is exceedingly difficult to do so when they are dissatisfied with its terms. Ample proof of that lias been forthcoming during the past eighteen months, when an award of the court was not acceptable to one of the parties to the dispute. “Would the Commonwealth authorities call upon the State police to protect those working under an award of the court? If the Constitution Alteration Power of Amendment Bill is not passed, the Commonwealth Government will have to rely upon the States for assistance. I trust that this bill, which has such an important bearing on the industrial life of this country, will be carefully considered by the electors. I intend to vote against it, and to do all I can to influence those electors with whom I come in contact to register a vote in opposition to the Government’s proposals.
.- My attitude towards industrial arbitration is the same as it was 25 years ago. While I have always opposed dual industrial control, and have urged and supported the granting of exclusive industrial powers to the Commonwealth, I have at all times strongly objected to make Parliament an industrial authority. If this bill proposed to grant to the Commonwealth exclusive powers within certain limitations it would probably be more difficult for me to oppose it. But, as it does not seek to give those exclusive powers, but retains the dual industrial control which now exists, and suggests the undesirable and vicious, principle of parliamentary authority, no one can for a moment give it support. One wonders why the Government has introduced this measure in view of the fact that it has already submitted to Parliament a Constitution Power of Amendment Bill, which, if carried by both Houses and accepted by the people, would give it all the authority it required. Parliament, in its wisdom, could then legislate in whatever direction it desired, but I suppose the present Government has a fear that Parliament may not always be modelled on lines that would conform to the desires of the Labour party. I congratulate the Minister (Senator Daly) upon the admirable speech, from his stand-point, which he delivered in introducing this measure; but he failed to deal effectively with the future policy of the Government in regard to arbitration. He was asked by interjection if the Government intended to’ extend its policy so that the services of State authorities could be availed of, and he replied that, possibly the Government might endeavour to do so. It would have been better had the Federal Government endeavoured to persuade the States to surrender their powers, so that the Commonwealth could exercise exclusive power in industrial matters. Can any one imagine a more unsuitable authority than a body of representative men sitting in judgment on industrial matters? In order to emphasize the ridiculousness of the situation it might be well to cite one or two illustrations. For instance, one could not imagine Senator Rae, who urges that the worker is right on every occasion, giving an unbiased opinion. One has only to recall that during the timber-workers’ strike every member of the party now in office commended the action of the timberworkers and remained silent when acts of violence were committed. The Honorary Minister (Senator Barnes) event went so far as to suggest as a solution of the problem that the present judges might be removed from office. I do not know whether that policy is being affirmed, but one judge has been promoted to another position. It shows, however, the unsuitability of this atmosphere for the settlement of industrial disputes. How could the Minister in charge of the bill (Senator Daly), whose business as a lawyer, I understand, consists largely of urging the claims of the workers, give an unbiased opinion on industrial matters? He would be in a very awkward position. Parliament as an industrial authority should be one of the last things to contemplate. This Parliament has a higher function to perform. Senator O’Halloran said that in giving power to other authorities we would belittle our own status; but in my opinion it would belittle Parliament if its time were devoted to a discussion of wages and conditions of employment, which, although important, are not matters which this Parliament should determine. Parliamentarians who are responsible to the electors are unfitted to deal with industrial questions. The Labour party receives a good deal of its political support from trade unionists, and some sensible trade unionists vote for the Nationalist candidate, but Parliamentarians should not deal with industrial questions. Senator O’Halloran’s suggestion concerning the belittling of the status of this Parliament is not borne out by our past actions. Parliament has delegated its power with respect to tariff matters to a Tariff Board. Would the Minister or Senator O’Halloran suggest that Parliament should concern itself with all the details of customs duties now dealt with by the Tariff Board? We should observe the same principle for the settlement of industrial disputes.
The electors declared emphatically that the present arbitration act must stand. Every honorable senator on this side of the chamber accepts that verdict. I do, at all events. When this matter was under consideration by the Bruce-Page Government, I had to decide between the abolition of the Federal Arbitration Court and the abolition of State arbitration machinery for the settlement of industrial disputes. In other words, I had to make up my mind on this question of dual control. I, and other members of the party to which I belong, were forced to the conclusion that if the States would not surrender their authority in industrial matters, the only course open to the Commonwealth was to retire from the field of arbitration. I believed then, and am still of the same opinion, that because of their inability to deal satisfactorily with industrial matters, eventually the States will be willing to surrender to the Commonwealth Parliament complete industrial power. However, we accept the decision of the people, but believe that the act should be improved so as to permit the Conciliation and Arbitration Court to function more efficiently. Parliament should not usurp the functions of that tribunal. The original draft of the Constitution limited the operation of the conciliation and arbitration system to disputes extending beyond the limits of any one State. It is not difficult to imagine what was in the minds of the framers of the Constitution when they were considering this provision. Undoubtedly they believed that the machinery for the settlement of intrastate disputes should be under the jurisdiction of the States, and that legislation for the settlement of interstate disputes should be the responsibility of the Federal Government. Whether this particular provision in the Constitution is wise or otherwise is another matter. I believe it would have been better if responsibility for the settlement of industrial problems had been left entirely with the States, instead of the present system of dual control, which has involved industry in so many difficulties. According to a decision of the High Court the entire field of arbitration is open to the federal tribunal. Senator Daly said the other night that the jurisdiction of the Commonwealth Conciliation and Arbitration Court was restricted to interstate disputes. He knows better than I do that practically every industrial dispute can be made interstate in character by the simple process of serving a log upon the employers. I recall, and other honorable senators no doubt will also remember, how the Prime Minister of the day intervened in. the dispute in the coal-mining industry during the war. He requested a judge of the Arbitration Court to grant the demands of the coal-miners, and allow the coal mine-owners to increase the price of coal. Fortunately we had an arbitration judge who resented political interference and told the then Prime Minister to mind his own business. That incident brings into relief the evils of parliamentary interference with our arbitration tribunal, and it should emphasize the difficulties that are likely to be created if this constitutional amendment is endorsed by the people. This Parliament will then have the right to decide questions of hours of labour, wages paid in industry, and other industrial matters. Parliament will be turned into a veritable beargarden, for it will be continually fighting over these issues.
– Surely the honorable senator does not suggest that Parliament will be asked to deal with those subjects?
– According to the provisions of this measure, Parliament will be expected to do that.
– Parliament, appointed a tariff board to deal with all questions affecting customs duties. Exactly the same procedure will be followed under this proposal.
– I am afraid this measure has been very crudely drafted if it is the intention of the Ministry to delegate authority to a Commonwealth tribunal.
– That is implicit in the power.
– The procedure contemplated in the 1926 proposals was clearly set out, and the same language could have been employed in this bill. If, as the Leader of the Senate has stated, the Government proposes to follow the course indicated, it should have been stated clearly in the bill, and there would have been less excuse for opposition from honorable senators on this side.
– Labour’s policy is arbitration, and we would use this power to give effect to that policy. The provisions of this bill should be read in conjunction with the policy of the party.
– We have no guarantee that the course outlined by the Leader of the Senate will be taken by the Government. If this bill is accepted by .the people, and the Constitution amended in the way indicated, there will be nothing to prevent any member of the Senate from introducing a, bill to fix the hours in industry at 44, as was done in the New South Wales Parliament.
– Before that could be done it would be necessary to alter the definition of “ arbitral “.
– If the Ministry’s intention, as outlined by the Leader of the Senate, had been definitely stated in the bill, it would have disarmed opposition.
What need is there for this amendment of the Constitution? Where is the unrest? In the main, the workers of the Commonwealth are enjoying decent conditions. With the exception of the United States of America, their wages are the highest in the world. I will not say that they have a higher standard of living than is enjoyed by the workers in the United States of America, who, I would remind the Senate, are not protected in any way by an arbitration tribunal. The industrial delegation which visited the United States of America in 1927, made some interesting comments on this phase of American industry in its report. It states on page 25 -
An important part of the management ia the conduct of industrial relations between it and the working force, and it would appear that strikes and lockouts in manufacturing industries are diminishing. During the period of great advancement, say since 1922, disturbances in manufacture have not been great.
Although industry in the United States of America is not subject to compulsory arbitration awards or fixation of wages, the wages paid to the workers have increased very substantially. Taking 1.00 as the index figure in 1913, the uniform wage rate in the United States of America in 1920 was 199, and in 1926, it was 238. During this time also, prices of commodities declined.
Sitting suspended from 6.15 to 8 p.m.
Private business taking precedence after 8 p.m.,
Question proposed -
That the report be adopted.
Amendment (by Senator McLachlan) - agreed to -
That the bill be re-committed for the reconsideration of clauses 4, 26, 67, 73a, 77, 81, 89, 94, 132 and the first, second, fourth and twelfth schedules and for the insertion of a new clause 122a.
In committee (Re-committal) :
Clause 4 (Definitions) - “ Industrial insurance business “ means that class of insurance business which consists in the issue of, or the undertaking of liability under, industrial policies and any business in relation thereto, but does not include any scheme or arrangement whereby staff superannuation benefits are provided by an employer or his employees; “ Life insurance business “ means the issue of, or the undertaking of liability under, life policies and any business in relation thereto, but does not include industrial insurance business or any scheme or arrangement whereby staff superannuation benefits are provided by an employer and/or his employees through his or their organization;
Amendments (by Senator McLachlan) - agreed to -
That after the word “ employees “ in the definition of “ industrial insurance business “ the words “or by an employer and his employees, through his or their organization,” be added.
That after the word “employees “ in the definition of “ life insurance business,” the words “ or by an employer and his employees “ be inserted.
Clause also verbally amended, and as further amended,agreed to.
– The undertaking I gave was that clause 26 would be re-committed, but I did not undertake to move any amendment because the bill is in harmony with all State legislation in. regard to foreign companies, and we should be disturbing settled practice and well settled decisions in law if we were to attempt any departure.
– I understood that Senator Colebatch desired to alter the amount payable on deposit by a company seeking registration so that there should be a difference between British companies and those whichare really foreign in the ordinary acceptation of the term. The same idea is embodied in our tariff. The definition of “ foreign company “ in the bill is- “ Foreign company “ means any company which is incorporated, or the head office of which is. outside the Commonwealth.
If that definition is retained, I am afraid it will interfere with any subsequent proposed alteration.
– Personally I have no desire to alter the provision. It is well to see how it operates for the time being ; I am afraid that for practical, as well as for legal purposes, if we made any distinction in regard to foreign companies, we should find ourselves in deep water, and I am not sure that it would not prove detrimental to Australia in the long run.
– I thought that Senator McLachlan promised he would give a satisfactory reason why the English definition of “ policy-holder “ is not preferred to the definition of “ owner “ which is found in clause 4.
– The committee has already dealt with clause 4.
– But Senator Rae was allowed to speak.
– Senator Rae was speaking of something which arises under clause 26 which has been re-committed.
– If it is decided to alter clause 26, it will be necessary to alter the definition of “ foreign company “ in clause 4.
– That is so, but I have that confidence in the good sense of the committee that I am sure that on reflection it will not alter clause 26.
– One honorable senator’s question has been answered, and surely there would be no harm if Senator McLachlan answered mine.
– 1 again remind honorable senators that clause 4, as further amended, has been agreed to.
– The committee would have a better opportunity of exercising its good sense if Senator McLachlan had circulated a printed copy of the amendments he proposes to move.
– Clause 26 has been included among the clauses recommitted solely because of the undertaking I gave, but I disagree entirely with the reasons advanced on Friday for amending the provision.
A foreign company not carrying on insurance business in the Commonwealth at the commencement of this Act shall, if it desires to carry on that business in the Commonwealth, deposit with the Treasurer, in respect of each class of insurance business proposed to be carried on by the company, money or approved securities or both to the value of twenty thousand pounds.
– I do not seek to amend this clause because of any personal dislike for foreigners or racial feeling, but because I hold that there are already more than enough insurance companies operating in Australia and we know that the more companies there are operating the more the overhead expenses are and the more intense and unfair is the competition between the companies. It would be very much to the advantage of Australia if we had no additional life insurance concerns until our population had doubled or trebled. In order to overcome the objection raised by Senator Colebatch, I move -
That after the word “company,” first occurring, the words “ other than a company incorporated in Great Britain “ be inserted.
Later, I propose to move that the deposit by foreign companies be £30,000, instead of £20,000,
– Why not make the words “ the British Empire “ instead of Great Britain?
– I prefer the words “ Great Britain.” We do not want people from the seven seas coming here.
– We at present go to South Africa, and they and other of the dominions might come to us.
– Also, such companies might be engaged in three or four classes of business and have to pay a deposit of £30,000 in respect of each.
– They would not engage in those businesses if they did not anticipate making a profit.
.- I am very doubtful whether the proposed amendment would take us anywhere. The honorable senator suggests that we should make an exception of companies whose head office is in Great Britain. If that and his proposed subsequent amendment are carried, the effect will be that a foreign company other than one whose head office is in Great Britain will be compelled to pay a deposit of £30,000 in respect of each class of insurance business that it proposes to carry on here, while there will be no provision for a company whose head office is in Great Britain to deposit anything.
– What is concerning me is the effect of reciprocal arrangements between nations in the matter of company law. If we place an embargo against a company registered say, in Canada, we must expect similar action from that company.
– That indicates the difficulty of dealing with a matter in this way. It also indicates that the committee should hearken to the advice that has been tendered by Senator McLachlan, who said that this was a dangerous thing with which to interfere. If the amendment is accepted, South Africa or any of the other dominions might take exception, and retaliate. Several big Australian mutual companies are carrying on business in various parts of the British Empire: in South Africa, New Zealand, Canada, and even Ceylon. I believe that if we accepted the amendment we should be on dangerous ground.
– I recall to the minds of honorable senators an earlier discussion that we had on this clause. I believe that I then intimated that the very point now raised was the subject of an inquiry by a commission in Great Britain. That commission decided that it was better, in the interests of everybody concerned, to leave well alone, and they did not go to the lengths that we have gone in this measure. As Senator Newlands pointed out, these companies would have to deposit £30.000 in respect of each class of business they proposed to carry on in Australia. I do not think that we should discriminate against any country. I suggest to honorable senators that Ave should not involve ourselves in a controversial issue of this character, which may give rise to very great difficulty and re-act to the detriment of our own companies carrying on business outside Australia.
– I do not wish to bring about any international complications, but I do think that when anybody in charge of a measure raises a note of alarm he should substantiate his statement. I ask honorable senators is it not a fact that when we give preferential duties to Great Britain we do not give them to other portions of the British Empire? If we do, thatis a separate provision altogether.
– We do not discriminate between English and Canadian companies coming to Australia.
– Is there any reason, because we have not yet done a thing, that we should not do it now ?
– An Australian company could not trade in Canada unless it registered there, and such an amendment as that proposed by the honorable senator might re-act against our companies.
– I object to putting foreign companies on the same level as those whose interests are concentrated in the Commonwealth. We are endeavouring to rectify our adverse trade balance, yet propose to allow foreign companies to register here and enjoy preferences in order to make profits for their shareholders on the other side of the world. If it is good policy to prevent that sort of thing in other directions, why should we not tighten up in this instance. However, I ask leave to withdraw my amendment and to substitute the words, “ British Empire,” for the words “ Great Britain.”
Amendment amended accordingly.
– I suggest that the clause could be improved by altering the amount of the deposit to £25,000 and adding the words “ a British company with headquarters within the Empire shall similarly deposit to the value of twenty thousand pounds.”
– I have not raised any bogy. This matter of differentiation between foreign and local companies was very fully considered by the commission to which I have referred. We have already differentiated between Australian and foreign companies, but have given no preferential treatment to British or dominion companies, which, apparently, Senator Rae desires should be done. To accept the amendments of the honorable senator would involve considerable drafting difficulties, and I suggest that the honorable senator should leave the clause as it stands in the main and propose an amendment on the lines suggested by Senator Thompson.
– I am quite agreeable to alter the wording if the principle that I suggest is acceptable.
– I have drafted a short proviso which may meet the case. It follows clause 26 as it stands, and would read -
Provided that in the case of a foreign company incorporated or having its head office outside the British Empire the deposit under this section shall be twenty-five thousand pounds, in respect of each class of insurance business proposed to be carried on by that company in the Commonwealth.
– I am prepared to adopt that suggestion.
Amendment - by leave - withdrawn.
Amendment (by Senator Rae) proposed -
That the following be added to. the clause: - “ Provided that in the case of a foreign company incorporated or having its head office outside the British Empire, the deposit under this section shall be Twentyfive thousand pounds, in respect of each class of insurance business proposed to be carried on by that company in the Commonwealth.”
Senator Sir JOHN NEWLANDS (South Australia) [8.30] . - I hope that the committee will not agree to any alteration of this clause. A foreign company coming here would most likely cater for different classes of business. “We should not do anything which would tend to keep out of this country persons who wish to engage in business here. We are getting too much into the habit of thinking only of ourselves. Honorable senators seem to be afraid that some of the profits of these companies will be sent to another country. Would it be a serious matter if a little money from Australia were sent to England or Canada? Foreign insurance companies should not be treated in the way that is proposed. I hope that the clause will be left as it stands.
Question - That the words proposed to be added be added - (Senator Rae’s amendment) put. The committee divided.
Majority . . . . 2
Question so resolved in the affirmative.
Amendment agreed to.
Clause, as further amended, agreed to.
Clause 67 -
In the event of any premium due on any life policy remaining unpaid for a longer period than one month, the company may charge compound interest thereon at a rate not exceeding the rate prescribed, and the policy shall, if it has been in force for three years or upwards, not lapse until the premiums due and unpaid together with the interest charged thereon are equal to the surrender value of the policy as calculated by the company after having deducted any unpaid loan with interest or other indebtedness on the policy. For this purpose the surrender value of the policy shall be computed on the assumption that all premiums up to the time of computation have been duly paid.
– I move -
That the words “ until the premiums due and unpaid together with the interest charged thereon are equal to the surrender value of the policy as calculated by the companyafter having deducted any unpaid loans with interest or other indebtedness on the policy “ be left out with a view to insert in lieu thereof the words “ unless the amount owing to the company for advances, premiums and interest exceeds the surrender value.”
Honorable senators will remember the discussion we had on this clause in an endeavour to bring about equality of treatment. The amendment will give effect to the desire of the committee.
Amendment agreed to.
Clause, as further amended, agreed to.
Notwithstanding anything contained in this act where the sum insured under any policy does not exceed One hundred pounds the policy shall not be invalidated by any non-fraudulent omission or mis-statement made in the proposal upon which the policy was issued.
– When this bill was under consideration previously I suggested that an amendment should be made to meet, for instance, the case of an insurance agent who canvasses oldage pensioners. Numbers of such cases have come before me professionally, and I should like to give one example to the committee. At Gawler, in South Australia, two old-age pensioners were approached by an insurance agent, who told them that for 6d. a week each his company would provide them with £12 at death, which, he said, would be sufficient to meet their funeral expenses. Each of them took out a policy. Four or five years later the husband was taken ill, and it was discovered that he had a cancer. Soon afterwards the insurance agent visited the house, and, after expressing his sympathy with the unfortunate man suggested that, in view of the increased cost of burials, it would be wise for him to take out a fresh policy for £15, which could be done by the payment of an extra 2d. a week. His advice was accepted. The original policy was cancelled, and a new policy, based on a proposal which contained a declaration that the man was in good health, was issued. On the death of the man his representative approached the company when it was discovered that there had clearly been misrepresentation, and the only amount refunded was that which had been paid in respect of premiums on the second policy. The payments on the first policy, extending over several years, went for nought. The amendment, I suggest, is that inthe case of policies of £100 and under - on policies over that amount the companies insist on a medical examination - the fact that the insured was in good health when accepted should be conclusive evidence. I suggest to Senator McLachlan that as in the case of policies of over £100 the companies protect themselves against risk by insisting on a medical examination; in the case of policies of £100 and under, they should not accept the premiums of the person insured, who takes all the risk as to whether the money will actually be paid, unless they are prepared to pay the amount they undertake to pay. I understand that Senator McLachlan is of the opinion that the amendment made last week to meet my suggestion might come into conflict with certain legal doctrines and raise a question of doubt concerning policies in excess of £100, but that he has an amendment which will overcome the difficulty and protect those whom I am anxious ‘to assist.
– I had a conference this afternoon with the Minister (Senator Daly) and directed his attention to certain features in the clause as it stands which might interfere with policies of £100 and over. I have an amendment which I think will meet the case. I move -
That after the word “ policy “ first occurring the words “ issued without medical examination “ be inserted.
The clause will then read -
Notwithstanding anything contained in this act where the sum insured under any policy issued without medical examination does not exceed £100 the policy shall not be invalidated by any non-fraudulent omission or misstatement made in the proposal upon which the policy was issued.
– I accept that amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 77 -
– During a previous debate on this clause, attention was drawn to the fact that while provision had been made to compel the acceptance of proof of age of persons holding policies issued prior to the commencement of the act, and also in respect of a policy the insured under which had died during the first year of insurance and had made no provision for proof of age in other cases such as those mentioned by Senator Payne. I therefore move -
That the words “the insured under which has died during the first year of insurance, or in respect of a policy issued prior to “ be left out with a view to insert in lieu thereof the words “ whether issued before or after.”
The clause will then apply to all policies.
– I am not quite clear whether proof of age other than an actual birth certificate is provided for in this or subsequent clauses. Many cases have been brought under my notice, particularly in connexion with invalid and old-age pensions, where it was practically impossible to obtain certificates of birth of persons born many years ago. Before the present law for compulsory registration in Great Britain was in force, the parish register was the only form of birth registration, and in many cases it was quite impossible to obtain reliable proof of age. Applicants for pensions can be brought before a stipendiary magistrate who, if satisfied, from the appearance of the applicant, and other corroborative evidence, will accept the age given by the applicant. It is infinitely easier to obtain proof of age before death. Is any documentary proof necessary prior to death?
– This is a matter involving a contract between a company and the person insured, the basis of which depends upon the age of the proponent. We have, as Senator Rae knows, made provision in earlier clauses with respect to proof of age, but to meet cases such as Senator Rae has in mind, we have adopted a procedure under which, if the company is not satisfied, the proponent can compel it to accept proof of age. Clause 76 provides -
A proposal form shall be framed so as to require a person making a proposal for a policy to supply such particulars in regard to his age as will enable the company to test the reliability of the statement as to age and it shall be the duty of the person making the proposal to supply such particulars to the best of his knowledge and belief.
We have to provide machinery to meet the case where a company declines to accept reasonable proof of age, where there is no registration, such as from the records in a family bible, or proof such as is accepted in a court of law. If the company declines to accept proof of age of a deceased person, it is open for his representative to apply to the court.
– Can that be done during the life of the insured person?
– Yes ; and acceptance of proof of age can be endorsed on the policy. If the company objects, the person insured can, during his life, approach the court, or after death, an application can be made to the court by his representative.
– I do not think Senator Rae should feelanxious concerning this clause, as under clause 78 an insured person is reminded of the necessity of proving his age. I may mention my experience as an illustration. I was. born in the North of Ireland where there was no parish registration and when I took out a life insurance policy, which was at an early age, I was confronted with the difficulty of proving my age. I produced my baptismal certificate, which most people obtain at some time or another, and also a bible containing a record of the ages of the members of the family. Both were accepted and my age having once been properly recorded I have had no difficulty in connexion with subsequent policies.
– A case somewhat similar to the experience of Senator Thompson came under my notice a few years ago when an applicant for the old-age pension asked me to assist him to establish his claim. It appears that he was born in Dublin, but both parents died whilst he was still of tender age, and he was placed under the care of a relative in another county. He was living in the county of Cork when he left Ireland to come to Australia. I wrote to the head of the church to which he belongs and in due time received a reply from the secretary to the archbishop of the diocese advising me that there were nine parishes in Dublin and that the authorities in each parish charged a search fee of 5s., so I took no further action in that direction. Subsequently I took the man to Parramatta and was able to certify that I had known him for over 30 years, and that when first I knew him he was an elderly man. My statement was taken as corroborative evidence, and the magistrate certified that the applicant was of an age to qualify for the old-age pension. Although the system of registration of births has been in force for many years, there are still some remote places in Australia where registration is neglected. One of my own sons was not registered until he was about six or seven years of age. I accept Senator McLachlan’s assurance that the bill contains the necessary provision to enable an insured person to prove age during his lifetime, and in that way to prevent trouble from arising after death.
Amendment agreed to.
Amendments (by Senator McLachlan) agreed to -
That after the word” insured “, sub-clause 4, the words “ and the bonuses, if any, declared” he inserted.
That the words “ that the premiums payable will correspond with the risk involved “, sub-clause 4, be left out, with a view to insert in lieu thereof the words “ as to correspond with the premium paid.”
Clause, as further amended, agreed to. Clause 81 -
Senator McLACHLAN (South Australia [9.8]. - I move -
That the words “ with his consent “ be left out.
Notwithstanding the strong expression of opinion upon this sub-clause in committee on Friday last, and the risks mentioned by Senator Pearce and Senator
Rae, I now ask the committee to reconsider its decision. If the sub-clause is allowed to stand in its present form it will prevent a considerable amount of useful insurance business from being done. If honorable senators will agree to the deletion of these words, I propose to add the following proviso to the subclause -
Provided that a married woman may only effect a life policy upon the life of her husband with his consent.
A great deal of industrial insurance business is done by married women in the interest of the home and family and very often in the interest of the husband, without his knowledge. My amendment is in the interests of thrift and frugality. The committee would be ill-advised to de-limit the power of the wife. As a rule these industrial policies arefor amounts of not more than £50 or £100. I hope that upon reflection, honorable senators will see the wisdom of accepting my amendment.
SenatorRAE (New South Wales) [9.12]. - There was a considerable body of opinion in favour of the insertion of the words “ with his consent”, when this sub-clause was under discussion on Friday last. I understand that Senator McLachlan is interested in the business of life insurance and naturally he is anxious that all avenues should be open to the various companies. It has been well said that you cannot make people virtuous by act of Parliament, but an eminent statesman has reminded us that Parliament can make it easy to do right and difficult to do wrong. I see no reason why we should reverse our decision of Friday last. I am aware that a considerable amount of industrial business is done by the various companies, but unfortunately it is a wasteful form of insurance, find I do not know that we should encourage it. The overhead charge is so enormous that this form of insurance is of little value to the community. Can Senator McLachlan say whether there is any limit to the amount of insurance which may be effected under an industrial policy?
– The amount is limited by the purse of the proponent; but the amount is rarely, if ever, over £100.
– I know that the amounts are small and I should like to know if the honorable senator will accept a definite limitation in the proviso he has expressed his willingness to insert. I think we should have such a limitation. Otherwise there would be a temptation to women to make use of this power to insure the lives of their husbands.
.-I trust that the amendment will not be pressed, because I am opposed to the issue of policies without the consent of husband and wife. After the death of the assured there is a great deal of detail to be cleared up in connexion with industrial policies. Conclusive proof that the party assured has been a member of a particular company must be furnished by some one other than a relative of the deceased, but as people do not usually go round advertising that they have insured for £20 or £50 under an industrial policy, it is often difficult for the company to secure the required proof. Many representatives of companies paint rosy and glowing pictures of the benefits to be derived by insuring in their companies. In some cases people are deliberately misled into paying premiums, and it is not long before they find they are not entitled to all that the agents have promised. Insurers should thoroughly understand the position before policies are foisted upon them, and there should be no secrecy about the matter. For that reason I hope the amendment will not be pressed.
– This clause is taken from the State laws of Victoria, South Australia and various other States, where it has been in operation for years without any dreadful calamities arising out of it, except in the two instances mentioned on Friday last, both of which concerned life, and not industrial, policies. The woman is very often the best judge. I am willing to accept an amendment later on to limit the amount of the policy. I feel, however, that something should be done to safeguard the wife. It is useless to go over the ground I have already put to honorable senators, but the wife is often obliged to take out an industrial policy on the life of an undesirable husband, for the sake of herself and her family. I am prepared to add the following proviso to the clause -
Provided that a married woman shall not effect a life policy on the life of her husband without his consent or an industrial policy for an amount not exceeding £100.
.- I hope that honorable senators will see their way to accept the proposal now made by Senator McLachlan. Where a medical examination is required the husband, of course, automatically gives his consent to a policy being taken out on his life for the benefit of his wife, but many insurance companies allow women to take out small industrial policies on the lives of their husbands and the latter may know nothing about them. It is done as a protection to families if disaster should overtake the bread-winners. I should like to draw the attention of the committee to the following letter which appeared recently in the Sydney Morning Herald : - “Two Eleven” writes:-
Sir, - In the Herald report . 17-5-30, appears the following: “Objection was taken by Senator Rae, to clause 18, sub-clause 1, which states : ‘ A married woman may effect a policy for her separate use on the life of her husband.’ He proposed, as an amendment the addition of the words ‘ with his consent.’ This amendment was agreed to by sixteen votes to five. Senator Pearce, in supporting the amendment, pointed out that cases had occurred in which persons had insured the lives of near relatives with sinister motives, and cited a recent murder in England in support of his point.” The major part of insurance effected in this direction is for very small amounts only on each life, the maximum being only sufficient to carry over a time of stress, pay funeral expenses, and perhaps leave a small margin to allowa woman time to adjust herself to the position to be faced when deprived of her husband. To the man with a sense of responsibility, his insurance premium is regarded in the light of a good investment, and a necessary protection. To the thoughtless and the thriftless, these matters are left to providence, the manifestation in these cases working in the matter by the wife taking this duty upon herself. I am afraid that Senator Rae had very little idea how much those three small words of hisamendment means for the future widows of the Commonwealth, and it certainly seems that Senator Pearce could really be aware of the class of business he was wiping out when he cited the recent murder in England in support of his point. As an industrial agent I hope this clause may be allowed to remain in the form as proposed by Senator McLachlan, and Senator Rae’s amendment dropped on the third reading.
It is ridiculous to suggest that a married woman may take out a policy for an amount not exceeding £100 with some sinister design on the life or well-being of her husband. Such a policy is taken out only as an act of safety, frugality and thrift; and for all the reasons so strongly and eloquently urged by Senator McLachlan, I suggest that honorable senators should agree to the amendment. They can do so with perfect safety having regard to the promise the honorable senator who is in charge of the bill has made, that in a proviso he will make ample provision against any wrong-doing or evil design. It is I think, in the interests of the home, the wife and family that these policies are taken out and I am sure that honorable senators who have opposed the amendment now before the committee will hearken to the pathetic appeal made to them in the letter I have just read. At any rate I trust that it will have the necessary influence to induce them to accept the compromise offered by Senator McLachlan.
– The humanitarian appeals which are being made are very touching, but I should like to know if medical examinations are to be departed from or insisted on in these cases. We do not want to have this clause in conflict with a previous clause which requires medical examination.
– Clause 81 is taken from State legislation with regard to the protection of policies from creditors. Part of that State legislation provides that a married woman may effect a policy upon her own life or upon the life of her husband for her separate use. The question of a medical examination or no medical examination does not arise at this stage. It is simply a question of having legal protection thrown round the policy. But if the words “ with his consent “ are retained the power of the married woman to effect an insurance on the life of her husband is limited. The proviso I have suggested should meet the ease.
.- The words “with his consent” were inserted in the clause by a swingeing majority on Friday last and not a single argument Las been adduced against them this evening which was not adduced on Friday. Senator Lawsonhas certainly re-dressed with sympathetic words arguments previously used, and has tugged at our heart strings, but we ought to consider what effect the deletion of the words “ with his consent “ is likely to have on the domestic relations of man and wife when a secret policy is effected by the wife on the life of the husband.
– Wives have been doing it for years.
– That may be so but it has been provocative of disagreement between man and wife. If there are other matters in clause81 that require revision, I can understand it being reconsidered, but I did not understand that the clause was to be recommitted.
– The clause has been recommitted.
– I know that it has been recommitted. I voted for its recommittal. In the absence of a sufficient knowledge of the different clauses an honorable senator does not know actually what he is voting for in supporting the recommittal of a measure for the purpose of reconsidering specified clauses. I certainly had no idea that this clause was to be recommitted to-night, and I see no reason why the Senate should be asked to reverse its previous decision.
– Having looked into this matter I agree with Senator McLachlan’s conclusion. Supposing that he had framed the clause in this form, “ A married woman who effects a policy upon her own life or the life of her husband may do so for her separate use “. That is exactly what the present wording means.
– That is so, but we do not want to give her power to insure her husband’s life without his consent.
– She could not be prevented from insuringher husband’s life unless a prohibitory clause were inserted. An examination of sub-clause 3 makes the position plain. As we are attempting to consolidate insurance laws we should be very careful that we do not include anything in this measure that may be criticized by somebody higher than an anonymous insurance agent. This clause says that a woman can insure her own life or that of her husband for her separate use. I. think that Senator McLachlan will agree that the latest judicial decisions go to show that the clause is really not necessary. In any case, it is simply declaratory, to obviate litigation. Senator Rae’s amendment would not overcome the difficulty that he visualizes. A married woman could still insure her husband’s life, but if he died insolvent it would be possible for the official receiver to collect the benefit that would otherwise accrue to the wife. If the honorable senator is out to protect the widow it will be better for him to allow the clause to stand in its original form.
– I do not like arguing with a lawyer, and particularly with my leader, but we have frequently been told that the inclusion of one thing implies the exclusion of another. Does not the clause imply that a wife could not take out a policy in any other way than that provided? Would it not be illegal for an insurance company to issue a policy without obtaining the consent of the husband ?
– As the clause originally stood it was not necessary for the woman to obtain the consent of her husband in orderto take out a policy on his life for her separate use.
– Could it not be provided that if a company issued a policy in contravention of the clause it should be fined £50, or any other sum that was desired? I am just as anxious as anybody else to give to a woman who is cursed with a drunkard or a waster as a husband, the opportunity to obtain a few pounds in the event of his death. It really would not matter much if the cover induced her to shuffle him off this mortal coil. But in view of the possibility of the criminal-minded person misusing the powers of insurance, it is necessary to provide a safeguard. I recall the case of Mrs. Needle, in Victoria, who poisoned her two young children in order to obtain the insurance money. One would not think it possible that anybody could be guilty of such callous brutality. That woman was also supposed to have poisoned her own husband, and it was alleged that she tried to poison her brother-in-law, in order to collect the insurances. It is necessary to provide a safeguard against that sort of thing. Perhaps the acceptance of Senator McLachlan’s proposal would confer the advantage that he claims, because both he and Senator Daly tell us that the clause provides no protection whatever. If that is so, what isthe use of the amendment with which the honorable senator is trying to fool me? Is it fair that he should trade on his legal knowledge and press me with an amendment which is as valueless as my original one is now said to be.
– The honorable senator is misquoting me. If the words “ with his consent “ were retained, before a woman could get any benefit under the measure she would have to obtain her husband’s consent. She is already given protection up to £100 under an industrial policy, but no protection on a life policy.
– I should like the honorable senator in charge of the bill to explain whether his amendment provides that policies amounting in the aggregate to £100 may be taken out, or whether it is permissible to effect a number of insurances each of £100.
– My intention is to limit the insurance to one policy of £100.
– That is not made clear in the bill. Surely the present wording would allow a number of insurances each of £100 to be taken out.
– The words that I propose to add to sub-clause 2 are “ to the extent of £100.”
– I cannot understand why Senator McLachlan and Senator Daly, who are both lawyers, object to Senator Rae’s amendment. I see nothing in it to quibble about. If a married woman desires to insure her husband she has merely to approach him, inform him of her intention, and ask for his written consent.
– She already has the right to insure him without obtaining any consent. We merely want to throw out to her the protection of the act.
– I am a layman and like to see things plainly in writing. I do not see why the words “ with his consent “ should not be retained. We have all frequently heard of cases where wives have run up bills against their husbands, and so caused domestic trouble. The clause without these words will cause domestic trouble. Troubles of that kind are usually caused by a wife doing these things without her husband’s knowledge. I shall vote for the retention of the words inserted on the motion of Senator Rae.
Senator Sir HAL COLEBATCH (Western Australia) [9.46]. - This trouble has arisen because of the somewhat clumsy wording of the clause. I confess that untilSenator Daly spoke I was under a misapprehension as to its intention. I thought that its purpose was to give a married woman the right to insure her husband ; but I now find that its object is to give her an interest in any policy that is taken out by her. All along she has had the right to insure her husband. No objection would have been taken to the clause if it had read -
When a married womanhas effected a policy upon her own life or upon the life of her husband, for her separate use, the policy and all benefits thereof shall enure accordingly.
We have put in a qualification to take away a rightwhich a married woman now has. I should like to see the clause amended to make its meaning perfectly clear.
– We might overcome the difficulty by allowing the clause to remain in its present form and adding a new clause along the lines of the proviso suggested by Senator McLachlan. That would mean the re-committal of the bill for the purpose of inserting a clause to meet the case of policies taken out by a wife on the life of her husband without his consent. When a man marries a woman he takes her forbetter or for worse. It is true that there are isolated cases of domestic unhappiness; but I take it that the desire of honorable senators is not to meet such cases, but to protect women against insurance agents, who, like hawkers and peddlers, want to sell them something. When a woman incurs indebtedness without the consent of her husband, it is generally the husband who pays. The suggested amendment, instead of protecting -women in the way desired by honorable senators, will give insurance companies a means of evading payment on any policy taken out without the husband’s consent. Senator McLachlan acknowledged the principle in the amendment he suggested. There should be a new clause to protect a woman against an insurance agent who makes false representations to her. Some insurance policies contain the question “ Are you of temperate habits “ ? In th« case of a policy taken out by a wife on the life of her husband, the question reads, “Is your husband of temperate habits”? A wife who takes out a policy on the life of her husband who is a heavy drinker and answers that question in the affirmative, runs the risk of getting nothing from the company in the event of his death. I suggest that we allow the clause to pass on the understanding that it will be re-committed to meet the cases mentioned by Senator Bae.
– The Minister’s suggestion is a good one. If it is the desire of honorable senators to limit the amount for which a wife may insure her husband, I am willing to give effect to it; but that is all that I can do. I submit that we cannot interfere with the contractual laws of the States. It might be possible to achieve our purpose by adding to subclause 2 the words “ to the extent of £100 “. The sub-clause would then read -
The protection of the last preceding section shall extend to any such policy bona fide effected by a married woman to the extent of £100.
– If she insured her husband’s life without his consent, would she be liable to conviction?
– She would lose the protection given her by clause 80.
– The honorable senator’s proviso would not prevent a. company from suing her for unpaid premiums.
– That is so.
– Life insurance is one of the most important institutions of the present day. In connexion with this clause several conflicting problems arise. First, there is the worthless man whose wife desires to insure his life in order that she may have a few pounds in the event of his death. Then there is the unscrupulous woman who is prepared to insure her husband and then to get rid of him. There is also the woman who is not game to tell her husband what she does, but behind his back takes out an insurance policy and finds out after she has paid a fewpremiums that she has been told a lot of lies. The premiums are not kept paid up unless the husband pays them. I realize that there is the case of the surly husband who will not readily give his consent to his wife’s request to insure his life. We must leave it to the wife to gain his consent. Most women can find a way of doing so. There is something in the contention that if a woman may- insure her husband only with his written consent, a company which issues a policy without the husband’s consent, is guilty of an offence. In order to make the position clear, we should insert a clause to make it an offence on the part of a company to insure any person without his consent. I do not want to con’fine the restriction to wives and husbands. No person should insure any other person without that person’s consent. There may be women who would be prepared to do away with their husbands if they were insured for a substantial amount; but no woman would e likely to do away with her husband for less than £100. There should be a proper understanding between husband and wife before either of them enters into a transaction which will involve the other financially. It is immaterial whether the amount is £50 or £50,000. We should not lightly disturb the decision we arrived at last week.
– If we gave effect to the suggestion of Senator Rae, what would be the position of parents who insured their children ?
– No such limitation was suggested in the case of minors.
– The honorable senator said that no such insurances should be effected without the consent of the person to be insured.
– Such an amendment would not apply to children who had not reached a responsible age.
– If those words were inserted no insurance would be binding unless the consent of children assured had been obtained.
– That was not my intention.
– We should have a definite statement from the honorable senator as to what his proposal actually means, as insurances effected by parents on behalf of their children should not he included.
– In view of the discussion on this clause I should like to know whether Senator McLachlan will accept an entirely new provision to read -
Any policy effected bv a wife on behalf of her husband without his consent, shall be voidable until such consent has .been given.
– At the moment I am not quite clear as to the actual .effect of such a provision. Contractual relations between husband -and wife involve principles of general law. I doubt if it is within the competence of this committee to make the amendment suggested by Senator Rae in this bill. Insurances under this clause are effected generally on the payments made by women out of their housekeeping money, and usually by wives who wish to protect themselves against a rainy day. The Parliamentary Draftsman could consider, the suggested amendment and if considered practicable, it could be moved in another place.
– Why not accept it here?
– By doing so, we might be giving a wrong lead. I do not think that the providence of a wife should be affected by the consent of the husband. I suggest that honorable senators should allow the clause to stand in its original form on the understanding that I will see if a suitable amendment can be framed, and if necessary, again recommit the bill. I am sure the Minister (Senator Daly), must have some doubt concerning the effect of the suggested amendment upon the rights now existing as between husband and wife. There is also the point raised by Senator Herbert Hays as to its effect upon the insurance of children. If the words “ without his consent “ are allowed to remain, the position of the wife will become somewhat insecure.
– On a previous occasion, when Senator McLachlan raised the point of the contractual relations between the insurance company and the person insured, he argued the merits of the proposal. I am surprised that a legal man should have led laymen into this trap. If the honorable senator understood the legal significance of his own bill, he should have put before us last week the objection he now takes to the retention of these words. As the words have been inserted, I am not willing to allow them to be deleted unless they are to be inserted somewhere else. Senator McLachlan is asking us to revert to the status quo and that I am prepared to do, if he means the status quo of last week. On the previous occasion when he accepted defeat he did not say that he would move for the recommittal of the clause. He then accepted the decision of the committee which was substantial and determined, but he comes forward with this new idea to blow it out. The honorable senator suggested that my amendment, if practicable, could be- inserted in another place; but I contend that the clause should be left as it is and that if my proposal is found to be impracticable an amendment can be moved in another place. Why should the onus of proving that the words, “ with his consent “ are in the right place, be thrown upon this side of the chamber. Let the onus be thrown upon those who “ bungled the show.” The committee, by a large majority, placed these words in the bill, and if in consequence of a mistake on the part of the senator in charge of the measure it is in the wrong place, he should arrange for it to be put in its proper position when the bill is before another place.
.- I feel that Senator Rae and I are at variance on this point. We have to study the measure before us and to recognize that when it is passed it will bear the hall-mark of this Parliament. If a mistake was made we have to admit it and to -correct it. I suggest that the proviso mentioned by. Senator McLachlan does not get over the difficulty; as a matter of fact, it is meaningless. We need not wait until the measure is before another place to make the further amendment which has been suggested ; the clause oan be passed in its present form and when the report stage is reached, a motioncan be moved for the recommittal of the bill for the deliberate purpose of inserting the provision mentioned by Senator Rae.
– Will Senator McLachlan give an undertaking to remove the anomaly mentioned by the Minister (Senator Daly) ?
– I am surprised to hear that my exposition of this provision on a previous occasion was not clear, but on the other hand I am afraid some honorable senators were not paying sufficient attention to the subject under consideration. If Senator Rae can convince the majority of the committee that such a revolution in the insurance law will take place, I shall have to consider whether it is desirable to take the bill any further. The whole principle of the insurable interest is involved. I shall offer no objection if the majority of honorable senators favours the re-committal of the bill for the purpose of discussing the point raised by Senator Rae, but I must have an opportunity to consider the effect of any such alteration of the insurance law as I understand it.My only desire is to have as perfect a piece of legislation as it is possible to get. The principle involved is important. I do not pledge myself beyond offering no objection to the recommittal of the bill.
Amendment agreed to.
.- I take it that it is the desire of honorable senators that I should not move to insert the proviso to which I have referred till they have had an opportunity to consider the other point that has been raised. I shall, therefore, not submit the amendment.
Clause, as further amended, agreed to.
Clause 89 -
– I move-
That after the word “ made “ the words “ in duplicate “ be inserted.
As honorable senators will recall there was considerable controversy with regard to a proposal whichI made that the original assignment should be kept in the office of the company. It was urged that we should follow the old practice. The purpose of my amendment is to provide for a file of the assignment in duplicate. Consequential amendments will stipulate that the assignment shall be registered by being left in duplicate with the policy at the office of the company in the State or territory in which the policy is registered, and the secretary shall retain the duplicate of the assignment in the office of the company and return the policy with the endorsement thereon signed by himself and the assignment to the person leaving it. This provision will be a safeguard against forgery.
Amendment agreed to.
Clause also consequentially amended, and, as amended, agreed to.
Clause 94 verbally amended and, as further amended, agreed to.
– I move-
That the following new clause be inserted: - “ 122a. Any person who knowingly makes any false statement concerning any company shall be guilty of an offence. Penalty: One hundred pounds or imprisonment for one year.”
Last week Senator Newlands and Senator Rae made some strong observations with regard to the practice obtaining in certain localities of agents urging persons to insure in one company, and, having induced’ them to do so, representing a little later that some other company was a much sounder concern, with the result that they forfeited their policies and the agents secured another commission asthe outcome of their insuring with the second company. The Crown Law officers have had this matter under consideration for some time, and the only suggestion theycan offer is to insert a provision making it a criminal offence for any person to utter false statements concerning any insurance company. They realize the difficulty of proving that any person knowingly makes a false statement, but this new provision will, at all events, be a label, and it may be a deterrent.
SenatorRAE (New South Wales) [10.30]. - The committee might as well accept Senator McLachlan’s amendment, although I do not think itwill do much good, because it is absolutely impossible to get honesty into commerce. Commercial transactions are honeycombed with roguery and misrepresentation. The difficulty is to catch the offender. It is a case of the old story about jugged hare. You must first catch the hare. Misrepresentation may be done in such a way that it is very difficult to sheet home the offence. It is a strong argument for the abolition of all insurance companies except one socialized concern. Insurance companies may be competing with one another, but all are in unison in one respect, and that is to take down the public.
Senator Sir HAL COLEBATCH (Western Australia) [10.34] . - Is it wise to set up a new offence of a class thatcannot possibly be proved and attach penalties to it? Is it contemplated that it shall be an offence for an insurance agent to say that his company is better than another?
– If it is a false statement, yes.
– But even if it is a false statement, where will the new clause take us ? Beyond the common law? What additional protection does it give to the insurance company or any one else? Surely the common law is sufficient to deal with matters of this kind.
– It is a kind of criminal libel if an agent knowingly makes a false statement in regard to an insurance company, but I doubt whether any State law would apply to a false statement made by an agent in comparing the position of two insurance companies.
– Is the honorable senator making it an offence for the agent to do so?
– Yes, if he knowingly makes a false statement concerning a company. In such circumstances I think he should be punished. It is the evil about which Senator Newlands and SenatorRae were complaining. While I recognize the inefficacy in practice of what is proposed to be done, be cause there are methods of defaming insurance companies that will not lend themselves to successful prosecution, I think the least we can do is to make some gesture for the protection of these companies who do not want their agents to do that sort of thing.
Proposed new clause agreed to.
The Governor-General may make regulations, not inconsistent with thisact, prescribing all matters and things which by this act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for giving effect to this act and in particular providing for the application of this act with such modificationsas are necessary, to persons, firms or associations and for prescribing penalties ….
.- On Friday my attention was drawn to the words “providing for the application of this act, with such modifications as are necessary, to persons, firms or associations “. The bill does not contemplate persons, firms or associations engaging in the insurance business, and therefore, having consulted the Parliamentary Draftsman on the matter, I propose to ask the committee to eliminate the words. I move -
That the words “providing for the application of this act, withsuch modifications ae are necessary, to persons, firms, or associations and” be left out.
Amendment agreed to.
Clause, as amended, agreed to.
First schedule, second schedule, fourth schedule and twelfth schedule verbally amended and, as further amended, agreed to.
Bill reported with further amendments.
Senate adjourned at 10.51 p.m.
Cite as: Australia, Senate, Debates, 22 May 1930, viewed 22 October 2017, <http://historichansard.net/senate/1930/19300522_senate_12_124/>.