2nd Parliament · 1st Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
Chanter v. Blackwood.
The Clerk announced the receipt from the Deputy-Registrar of the High Court of Australia, under section 202 of the Commonwealth Electoral Act, of a copy of the following order of the Court of Disputed Returns: -
In the High Court of Australia, sitting as a Court of Disputed Returns :
In the Matter of the Election of a Member of the House of Representatives for the Elec toral Division of Riverina.
Before His Honour the Chief Justice.
Wednesday, the 13th day of April, 1904.
This petition, coming on for trial at Melbourne on the 10th,11th, and 12th days of March, 1904, and afterwards on the11th, 12th, and 13th days of April, 1904, and upon reading the petition of John Moore Chanter, filed herein, and the appearance of Robert Officer Blackwood, who was returned as a member of the House of -Representatives at the abovementioned election, and upon hearing the evidence of Burgess Tait, taken upon his oral examination, and upon reading the affidavit of Francis Carl Muller, sworn and filed herein, together with the exhibit annexed thereto, and the Deputy Registrar’s certificate as to the result of a recount, dated the 21st day of March, 1904, and made in pursuance of the direction given to him by order dated the 12th. day of March, 1904, and upon hearing what was alleged by Sir John Quick, of counsel for the said petitioner, and by Mr. Mitchell, and afterwards by Mr. Bryant, of counsel for the said respondent, this Court doth declare that the said Robert Officer Blackwood was not duly elected at the said election, and the said Court doth further declare that the said election was absolutely void; and this Court doth further order that the respondent do pay to the petitioner his costs of and occasioned by the said petitioner so far as the same relate to the claim by the said petitioner that he received the majority of votes, and ought to have been returned at the said election, up to and inclusive of Monday, the11th inst., such costs to be taxed by the Deputy Registrar of the High Court, and when so taxed to be paid by the respondentto the petitioner, or his solicitor, Mr. B. F. B. Rymer; and this Court doth further order that the sum of£50 deposited with the Principal Registrar by the said John Moore Chanter at the time of his filing his said petition be returned to him or to his. solicitor, Mr. B. P. B. Rymer. (l.s.) By the Court,
– The High Court having declared the election held on 16th December last for the electoral division of Riverina, in the State of New South Wales, to be absolutely void, I shall this day issue a writ for a new election for the said division. The dates appointed in the writ will be as follows : - Date of nomination, Wednesday, 4th May; date of polling, Wednesday,18th May; return to writ, on or before Saturday, 18th June, 1904.
Sir JOHN FORREST laid upon the table the following paper : -
Report of the Conference of Commonwealth Electoral Officers held in Melbourne in March, 1904.
The Clerk laid upon the table a copy of the following petition received by him from the District Registrar at Hobart of the High Court of Australia, under section 202 of the Commonwealth Electoral Act: -
Cameron, D. N., v. Fysh, Hon. Sir P. O.
Mr. SPEAKER reported the receipt of a message from His Excellency the GovernorGeneral, recommending that an appropriation be made from the Consolidated Revenue for the purposes of this Bill.
– I wish to ask the Prime Minister, without notice, if his attention has been drawn to an interview with the Minister for Trade and Customs which was published in the Melbourne Herald on Saturday evening last. The Minister for Trade and Customs is there reported to have said : -
He saw considerable difference between the position of the railway employes and that of the State servants generally, as. the former were under the control of Commissioners, whilst State servants had members and Ministers before whom they could bring their grievances.
Does that expression of opinion indicate a change of front or of policy on the part of the Government in regard to the Conciliation and Arbitration Bill ?
– I should have thought that the honorable and learned member, like other honorable members, was sufficiently familiar with the individual opinions of my honorable colleague not to have formed any such astounding assumption. ‘
– I wish to know from the Minister for Defence if his attention has been drawn to the paragraphs in the daily papers in which it is stated that several guns are to be sent to England to be re-rifled. I know that the Minister is a good protectionist, and I should like to know if that is the policy of this protectionist Government? Cannot the work be done in the States, seeing that we have a population of 4,000,000 people?
– If the honorable member will give notice of his question, I shall obtain the necessary information. This, however, is not a time” to draw the fiscal red-herring across the trail.
– I wish to know from the Minister for Home Affairs if he can state- why the reclassified list of the Commonwealth public servants has not yet been issued. When does he intend to issue it?
– The Public Service Commissioner has stated on several occasions that he hopes, to have the list completed very soon. I have no information as to the exact position of affairs, and I cannot give any reason why the list has not been issued, other than that probably the Commissioner has not yet completed his work in connexion with it. It Will, however, be ready very shortly.
– Is it the intention of the Imperial authorities to establish a coaling station at Thursday Island? If so, will the Minister use his best endeavours to induce the Admiralty to’ draw the supplies required for that ..station, as far as possible, from Queensland coal pits?
– The Government . is not aware of any such intention. In answer to the second question : no ; it is not’ the duty of the Federal Government to suggest preference to any particular State.
– I desire to ask the Minister representing the PostmasterGeneral if anything has yet .been done in the matter of improving and enlarging the accommodation at the Brisbane General Post Office?
– Will the honorable member be good enough to give notice of his question ? The Postmaster-General will be in his place to-morrow. ‘
asked the PostmasterGeneral, upon notice -
– The answers to the honorable member’s questions are as follow: -
Mrs. Wells was not retired from the service. She was an unofficial postmistress, who, in consequence of several irregularities, was asked to resign, and has done so. .
Motion (by Mr. Deakin) put -
That the Bill be now read a third time.
Mr. GLYNN (Angas)’. - I think that this is the stage at which the Bill should be recommitted for any further amendments which require to be made. I desire to ask the Prime Minister if he does not intend to move for the recommittal of some of its clauses ?
– I think that the honorable and learned gentleman is committing a great error.
-Order. I would remind the honorable and learned member for Angas that when the motion for the third reading of a Bill has once been put to the House it is too late to move for the recommittal of any of its provisions.
– I thought that the Prime Minister intended to move in that direction. If he does not, I do not propose to do so.
Question resolved in the affirmative.
Bill read a third time,
In Committee (Consideration resumed from 14th April, vide page 1037) :
Clauses 1 to 3 agreed to. Clause 4 -
In this Act except where otherwise clearly intended - “ Industrial dispute “ means a dispute in relation to industrial matters -
Arising between ian employer or an organization of employers on the one part, and an organization of employes on the other part ; or (£) Certified by the Registrar as proper in the public interest to be dealt with by the Court, and extending beyond the limits of any one State, but does not include a dispute relating to employment in the public service of the Commonwealth, or of .1 State, or to employment by any public authority constituted under the Commonwealth or a State. ; 2 m 2
– I move-
That after the word “State,” line 12, the words “ but does not include “ be omitted, with a view to insert in lieu thereof the words “ and includes.”
I believe that upon this particular clause there will probably be a considerable amount of discussion and great diversity of opinion, not only as to the form of its drafting, but also as to the persons to whom the Bill should be made applicable, and as to its restrictive character in this connexion. I desire to briefly define my attitude upon this provision. When the measure was before the House last year, I expressed the view - which I still entertain - that in a Bill of tin’s sort, Parliament ought not to insert anything in the nature of an ex parte statement regarding its constitutional powers. These, I take it, can be determined only by a tribunal which has been duly established by the Commonwealth for that express purpose. For this reason I have always contended that upon a broad matter of this kind we ought-not to attempt to restrict our powers under the Constitution. At no time has the Prime Minister or any of the legal authorities in this House, definitely declared that the proposal which I have - submitted is absolutely unconstitutional. I confess freely that those honorable members who are possessed of high legal knowledge, and whose opinions are entitled to all respect, have affirmed that its constitutionality admits of very grave doubt. But the strongest contention that has been urged against it, is that it would be inexpedient to give legal effect to it. I maintain that the question” of expediency is one of which this Parliament has no right to take serious cognizance, if the principle involved be a good one. Indeed, that question can arise only when honorable members are in doubt as to the wisdom of adopting a certain line of action. I hold that in this case the argument as to expediency is all in favour of my contention. If a Conciliation and Arbitration Act is desirable, I claim that its provisions should be applicable to the whole of the workers, irrespective of whether they are. in the employ of private individuals, of the States, or of the Commonwealth. I should like to know the difference between an employe* in the service of the Commonwealth and an employe in the service of a private individual. In the one case the private employer has to risk his own money and his own business. If he meets with a reverse the loss is his. In the case of the States, however, the people themselves have to find the money that is necessary to insure the just treatment of their public servants. I contend that Parliament is not a competent Court to deal with any of our public servants. We have reached different times from those to which the precedents that have been quoted by the other side in this connexion were applicable. The functions of the States are no longer restricted to the performance of police duties, and to the maintenance of law and order. Both the States and the Commonwealth have entered upon almost every class of undertaking. They .have attempted to carry out works which were never dreamed of in older countries. Unquestionably the State has entered into competition with private enterprise in many respects, and there is scarcely an influential section in Australia which condemns it for so doing. Its operations have bv no means been limited to our railways and our postal service. In this connexion I wish to instance another form of State industrial enterprise which some honorable members undoubtedly favour. It has reference to the establishment either byone of the States or the Commonwealth of the iron industry. If one of the States or the Commonwealth embarked upon that undertaking, does any one suggest that it would be fair to exclude from the operation of a Bill of this character the public employes engaged in that industry, whilst insisting that the private employer should conform to its provisions? It is unnecessary to enlarge upon, that point because, as will have been gathered from the series of interviews recently published in a Melbourne newspaper, there is a large number of honorable members who believe that the Commonwealth should take over and work any and every industry that has become a monopoly. That is surely an additional reason why we should endeavour to extend the operation of this Bill to all public servants. It has been argued with some force, and, perhaps with some truth, that even if the scope of the Bill, were so extended very few public servants would take advantage of it. It is urged that some of them have no desire to take advantage of such legislation, but that is entirely beside the question. It will be quite time enough to deal with that phase of the question when it actually arises. Why deny public servants the right to participate in such legislation? Why deny a particular body of public servants the right to come under a measure which is to embrace all servants in private employment? I hold that it would be undesirable to do so. The legal aspect of the question of interference with States rights is one which must be left to the lawyers of this House to determine. The contest will rage round the point whether we have the constitutional power to extend the Bill in the direction I propose. If we have that power, then undoubtedly the sole question to be determined is that of expediency. On the other hand, if the Parliament exceeds its rights by extending the operation of the Bill to the public servants of the States the corrective will be administered by the competent Judges of the High Court - by men who are an honour to the Australian Judiciary. I have heard it said that we should be exceedingly careful not to exceed our powers. I am not one of those who entertain that opinion, nor do I believe that it would be well if it were open to us before taking action to submit any doubtful question as to our legislative powers to the High Court. That, in my opinion, is undesirable, because under the Constitution a referendum may be taken in certain circumstances to enable the people to confer on the Parliament the authority to carry out any proposal to which effect cannot otherwise be given. I hold that, as a general principle, we must extend to the utmost our powers under the Constitution, provided, of course, that the majority of honorable members are prepared to accept the risk. I shall not attempt to enlarge upon this aspect of the matter further than to say that the argument that the extension of this Bill to the public servants of the States might interfere with, the States Treasurers’ Budgets is not a sound one. We have appointed a High Court, whose decisions extend to every State, and in some cases must, more or less, affect the Budgets of the various States Treasurers. It is, at best, only a question of degree ; but it is a matter of the highest importance. The assumption is that even if our action led to an alteration in a State Treasurer’s Budget, that result would have been brought about only by a decision of a Court. Some people contend that the Court would be in a sense a foreign Court. That may or may not be so ; but if, under the Constitution, we have the power to take the action proposed by us the Court will not be a foreign one. It must be an Australian Court, duly appointed under an Act passed by an Australian Parliament. ‘I have yet to learn that there is a Government or a Parliament of a State which would refuse to indorse the decision of the very highest Court in Australia - a Court which, I venture to say, is one of the most competent to be found in any part of the world. Surely it is not contended that a State Government or Parliament would refuse to honour a decision which would have the effect of altering the State Budget, or that the Court would be unjust to any State ? My contention that this Bill should be framed on the broadest basis is due to my belief that it is our duty to extend the authority of the Commonwealth and the States to every ramification of trade and industry in which it can operate to the benefit of the people generally. I desire that such an extension should be made, believing that it would be good for Australia, and for the people generally. Holding these views, as I do, it is my duty, as well as my pleasure ‘and privilege, to put them before the Committee. We should endeavour to place the Public Service upon such a footing that they will have no cause to fear vindictive or unfair treatment. Their rate of pay and conditions of labour should be determined, not by Parliaments, which may be called upon to act at a time of political panic, but by a judicial body, capable and competent to determine what is just. I have heard it said that the Commonwealth and States employes have been well treated by the various Governments and Parliaments, and while I am not going to deny that assertion, I wish to place before the Committee my own experience in this regard - an experience which I venture to say has been that of honorable members from other States. As the result of a Government remaining in power for a considerable length of time, I have known the most eminent members of the Public Service of Queensland to be afraid to express their opinions on public questions. Is that a desirable state of affairs ? The condition of affairs to which I have referred prevailed in Queensland, notwithstanding the existence of a Public Service Act and a Public Service Commission. They were mere putty in the hands of the Ministry which had reigned for so many years. It is my desire that such littlenesses of Parliaments or Ministries - and I say this advisedly - should not continue, because, I hold, Parliaments are the least competent Courts to adjust the disputes and differences of employes. The last change of Government made in Queensland led to at least half of the members of the Public Service, and perhaps five-sixths of the rail way employes feeling that once more they had absolute freedom’; that they were once more free to express their opinions in favour of or against the Government of the day. That, no doubt, is a compliment to the stand taken up by the new Ministry. Why should it have been necessary for the public servants of that State to refrain for six or seven years from giving expression to their views on public questions? What must be the effect of the suppression of honestly held opinions ? The continuance of such a position would mean the destruction of manhood. Do honorable members think that the Public Service of Queensland would have remained in that state if they had had a proper Court to which to appeal? I think not, and I feel that there are honorable members who could speak of a like position of affairs in regard to the Public Service of other States..
– The public servants of Victoria are slaves.
– I am speaking only of what I know. I appeal to honorable members to say whether it would not be more dignified from a parliamentary point of view, and better for the Commonwealth and the States, if the public servants were brought within the scope of this Bill? I have to express my extreme regret that the Prime Minister, for, whom I venture to say we all have the greatest respect, has found himself unable to go as far in this direction as some of us desire. It is no pleasure to me to find myself at variance with the honorable and learned gentleman in this respect; but those who hold views such as I have expressed are bound to come forward and seek to give effect to them, whatever the consequences may be. In such cases it is our duty to submit a proposal to give effect to our views, and undoubtedly a newly elected Parliament should be able to declare its opinion in these matters.
– The amendment submitted by the honorable member has been proposed by him in a manner that is absolutely unexceptionable. He has stated his case with his customary fairness and consideration for the views of others who differ from him ; but I have to submit, in the first instance, that the honorable member approaches the consideration of this amendment and its effects from a stand-point which is not open to him or to any of us. He may be, and is, entirely justified in enunciating as a main principle of his political action the doctrine that he seeks to extend Commonwealth and State industries into the region of private employment, so far as that may be possible.” That may be the first article of his political creed. He is perfectly justified in adopting any means which come to his hand in order to give effect to it ; but I contend that he has no such means to his hand as a member of the Federal Parliament, -and that the people of Australia, when they created this Commonwealth, not only refrained from endowing the Parliament with that power, but distinctly determined that they would not do so. From the very first time that this question was launched on the political platform, I have striven to avoid taking a merely legal, or what might be termed a strict constitutional position,” and under those circumstances have realized the force of an argument which was put before the House last week very forcibly by the honorable member for Northern Melbourne. In the course of his address he used words of warning with reference to any possible curtailment of our powers that might follow from the refusal to include this amendment, on the ground that it was unconstitutional. I do not know that that is an argument which ought to appeal much to honorable members on> the whole, but I have always thought that it is one which ought to appeal to the Attorney-General of the day who may be called upon, in discharging one or other of his duties, to advise on such issues in a fashion which might prove very decisive. When this measure first came into my custody, under circumstances which we all still regret, it was as Attorney-General that I spoke, and it was in response to an interjection, I think by the honorable member for West Sydney in the course of the debate, that I replied that I would not willingly give utterance to an opinion which might have the effect, directly or indirectly, of curtailing, or seeming to curtail, the powers of the Federal Parliament. I spoke as AttorneyGeneral, under the special obligations which attach to that office ; but now, exercising a somewhat greater freedom, I have still refrained, as far as possible, from appealing to considerations of that character, for the reasons given a few days ago, and I propose to-day to continue to oppose to those arguments only those legal and constitutional statements which seem likely to. affect the minds of honorable members. This has tied and will tie my hands, but the mode has its compensations. I am not addressing the High Court, a Court of Appeal, or a Court of first instance. I am addressing a House of Parliament, which, though it contains a number of professional men, approaches1 these questions on grounds which include the legal and the constitutional, but which also embrace political considerations. Consequently I have no complaint to offer because the honorable member who moved this amendment thought fit to avoid what really will be the crux of this question - the strictly legal and constitutional issue - which must certainly be raised. I regard that issue as of immense importance ; I regard the principle embodied in this amendment as lying at the very foundation of our Federal form of government; if that be destroyed, in my opinion it will bring to inevitable wreck and ruin, the whole superstructure, so far as it is Federal. ‘ But while I take that ground on the question of principle, I am free to admit, as the honorable member has candidly admitted, and as the honorable and learned member for Northern Melbourne most frankly admitted last week, that, looked at from the practical stand-point, it might be difficult for a bystander to discover precisely what was the vital issue on which we are divided. The amendment proposes to substitute a positive for a negative. The Bill contains an express provision that it shall not include the servants of the States, and the Bill as proposed to be amended will contain a positive provision that it shall. We are faced by two propositions : First, that we have power to bring the servants of the States under the control of the Commonwealth; and, next, that, having the power, this is the proper time and place to exercise it. The amendment moved by the honorable member is similar to the one which was moved in the last Parliament by the honorable member for Kennedy. That proposal was negatived, and it was negatived probably because a number of those honorable members who agreed with him, thought with the honorable and learned member for Northern Melbourne, that the word “industrial,” in the particular grant of power with reference to arbitration and conciliation excludes public servants, as well as private employes, who are not engaged in an industry, and that, therefore, this was obviously an extension of authority to which we could lay no sound claim. Assuming that the opinion in the House will follow something of the same trend, as the amendment includes all public servants, I shall not be unfairly taking an advantage of the honorable member in replying, if I deal only with the strongest case to be submitted - that on behalf of the railway servants, which wiM be laid before the Chamber very shortly.
– Why not deal with it when it comes up?
– Because to do so would be to duplicate the debate. If I am to apply myself merely to the question whether public servants, other than railway servants, can be dealt with in this amendment, I can conclude my remarks in a very short time; but, by doing so, I cannot confine the debate to that branch of the question. Although I admit that there is a difference, and a broad difference, between them on the grounds mentioned, yet, so far as the principle is concerned, it is the same in either case, whether we take a clerk in the Chief Secretary’s or the AttorneyGeneral’s office, and say that his employment is not industrial, and that, therefore, he is excluded, or, whether we add him to the railway employes. Both are State servants. I do not think that honorable members who differ from me can complain that I am not meeting them fairly if I deal with what is avowedly very much the strongest part of their case. The honorable member for Wide Bay was perfectly justified when he said that one of the elements to be taken into account is the change in the conditions of industrial employment which has been brought about by the entrance of political bodies, whether State or Commonwealth into the field as employers. That marks a very considerable development on different lines from those upon which our race was accustomed to proceed a hundred years ago under forms of government such as we now enjoy. I do not dispute that this implies a difference in the application of the principles by which we are to be swayed. But, nevertheless, that argument of the honorable member’s does not appear to me to be final in this matter, because, when the Constitution was drafted, these forms of State action were ‘ familiar to every one of its framers, and when it was voted upon they were within the knowledge and before the eyes of every citizen of Australia. When it was shaped, as I believed it was, with no view to include public servants of any class, no distinction was made, or intended to be made, .between those who could be, and those who were not engaged in what might be strictly termed indus trial disputes. The strong ground on which the argument I propose to maintain is based is that, nowhere in the Constitution can honorable members discover an indication that it was the intention of its framers, or the intention of those who adopted it on the exposition of its framers, to include State servants of any class. I put that on the broadest ground. But I do not for that reason abandon the contention to which the honorable member referred - and very- fairly referred - that, so far as any practical result is likely to follow from this amendment, we shall seek far before we find it, and probably shall never find it, under any condition of circumstances. On this subject I am happy to be supported by no less ardent an advocate of the amendment than the honorable and learned member for Northern Melbourne. He said in his speech last week -
I agree with the Prime Minister that it is difficult to see how a railway dispute could extend beyond the limits of a State.
And in almost the next sentence the honorable and learned member said -
It is hard to conceive of a case.
If so staunch an advocate of this amendment as the honorable and learned member for Northern Melbourne felt compelled at the outset of his. remarks to make that admission, we may be perfectly certain that we are safe in going that length, if not a good deal further. We must recognise that, although the ostensible - and, indeed, the real - object of the amendment moved by the honorable member for Wide Bay is to allow the railway servants to be dealt with by the Commonwealth Arbitration Court, that object is rendered in effect impossible by the terms of the Constitution. The requirement that a dispute within the jurisdiction of the Federal Arbitration Court should be one t extending beyond the limits of any one State is a requirement with which, in this instance, it. is practically impossible to comply.
– Why ?
– For the reasons which I have given - that as the employes of a State are controlled by the State’s laws, and work under its conditions, a dispute occurring in one State would not be a dispute that could extend to another State where the laws and conditions were different. As the honorable member for Angas put it, there would be no unity of interests on the part of the employers, and no unity of interests on the part of employes.
– That condition could be brought about.
– It can never be brought about to the extent and in the degree which would be required to enable any such dispute to extend beyond the limits of one State, in the sense in which the honorable and learned member for Northern Melbourne, myself, and others read that provision of the Constitution.
– The Minister for Railways in Queensland during the recent strike supplied the Victorian Railways with scabs.
– Suppose he did- that did not make the dispute extend beyond the State in which it occurred.
– He took sides with the Victorian Government against the workers.
– I do not know the facts, but, if they were as stated, the Court would, in my opinion, say that no such action as that furnished the required qualification to enable the dispute to extend beyond one State, in the sense in which the authorities to whom I have alluded would read that provision.
– Suppose the Railway Commissioners in all the States agreed to make a 10 hours’ day instead of an 8 hours’ day ?
– Suppose they did, there would still be insuperable difficulties in the way of making a dispute on such a question extend beyond the limits of a State. But if there were a possibility ofl such an event the Railway Commissioners would take every care to adopt no such course as would bring them jointly under the control of the Arbitration Court.
– Does the Prime Minister say that it is legally impossible or practically impossible?
– Practically impossible; and I have the authority of the honorable and learned member for Northern Melbourne in support of my contention. That being the case, it may be said - “.Well, if the amendment’ cannot afford to the railway employes the protection intended - if that is admitted even by some of the strongest supporters of the amendment - for what reason is the amendment being pressed to this issue ?” It is being pressed to this issue in order to determine, as I have said, two questions. The first question is whether the Commonwealth has power to include the servants of a State at all - and especially the railway servants. If we do not possess the power, confessedly, we are beating the air - confessedly, Ave are taking a step which can have no result, and can bring no relief. That question, as the honorable and learned member for Northern Melbourne said, can only be finally ‘determined by the Court - the High’ Court in the first instance, and possibly the Privy Council in the second instance. The question therefore, is one of power or no power, at the very outset; yet that is a question which, although we are engaged upon it, we cannot determine.
– In a matter involving the interpretation of the Constitution, would not the High Court be the Court of Appeal ?
– With the consent of the High Court an appeal could be taken to the Privy Council. On that point - although it must be due to a misunderstanding - the honorable and learned member for Northern Melbourne disagreed with me ; but I fancy that if any question could be raised, which involves the rights inter se of the Commonwealth and the States, this is one of those questions; and, on further consideration, I think that the honorable and learned member will -possibly agree with me. But I do not desire to dwell upon that point, and only mention it in order to elucidate, this question as clearly as I can, and to separate from it the theoretical and abstract considerations. It is extremely doubtful if we can touch the railway servants at all. What, then, are we contending for? For this : A number of honorable members say that we should assert the power on the chance that we have it, because if we have the power it is one that ought to be exercised here and now, and in relation to this particular measure. To which argument I make reply : That on the broad question whether the power should be exercised here or now, in my opinion, it should be exercised neither in this measure, nor at this time. I have given reasons, which I need not repeat, for taking up that ground. It appears to me that if the Commonwealth possesses this power, and can bring the railway servants within the scope of the Arbitration Court, it should at least stay its hand for a sufficient time to enable the States individually to follow the course which two of them have already taken, of establishing their own Arbitration Courts, and of remitting the consideration of the circumstances affecting their employes to those Courts. “Until that opportunity has been afforded, and has failed, and until in the meantime the Arbitration Court has been established for a sufficient period to allow its procedure to become settled, and to allow the principles upon which it acts to become known to the public generally, there is littleor nothing to be gained by including the public servants of the States, if we could include them in this measure; and certainly nothing to be gained by imposing upon the Arbitration Court, in the first hours of its creation, problems among the most complicated that it is possible to conceive, so far as they are of an industrial nature. These are problems which, I am sure, if honorable members themselves were about ito become members of the Court, they would ask to be postponed until they had had an opportunity as a court of dealing with a sufficient number of cases between private employers and private employes, to enable them to come in touch with the con”ditions of industry obtaining in Australia, and to master the relationship between employers and employes, so that they might approach the immensely intricate questions involved in the consideration of the great State services with the advantage of the experience gained in dealing with less extensive and less complicated questions, free from all political associations. I do not desire to dwell on these points, and have indicated them merely in passing. Let me now say that I listened with surprise to the honorable and learned member for Northern Melbourne in the one line of argument which he addressed to this portion of the case; that is, to the question of expediency. The honorable and learned member said -
If we once concede that it ls not in the power of this Parliament to provide for disputes in which State servants are concerned, and which extend beyond any one State, we shall lay down a precedent which will be a guide hereafter, and it will be taken for granted that we have not the power.
Parliamentary precedents are valuable ; so far as they relate to the same Parliament they are usually binding. But it is perfectly possible, as my honorable and learned friend knows, for a new Parliament, if it think fit, to sweep away all the precedents which surround it, and create new precedents.
– It is difficult.
– We have not even the obligation which rests on courts of law - more an obligation of convenience in many cases, than of principle - to follow the precedents laid down for them in similar cases. We are absolutely free, as a Parliament, to deal with every case that presents itself, although there may be a presumption - very often a weak presumption only - that future Parliaments will follow the precedents established by their predecessors. When the honorable and learned member for Northern Melbourne says -
We are the repositories of a most important trust for the people of Australia, both present and future, and we ought not, unless there is good ground, to surrender any of the powers conferred upon us by the Constitution,
I agree with him. But I deny that it is possible for this Parliament, even by an Act which received the Royal assent, to limit its own powers under the Constitution. These constitutional powers, whatever they are, stand above and quite independent of any of our acts. They stand there, not to be sacrificed by any Parliament ; they stand there, the gift of the people of Australia, to be taken away by no less an authority than the people, when they think fit to do so, under the Constitution. When, therefore, the honorable and learned member for Northern Melbourne employed language of that kind, I asked myself with much astonishment, what could possibly be the sense in which he used it? The honorable and learned member went on to say -
It will be found practically impossible in future Parliaments to exercise the power if we fail to assert it now.
I “can only say that I have never known a State Parliament pay that amount of consideration to the acts or formulas of its predecessors. On the contrary, I have sometimes found it a most difficult task to persuade one Parliament to adopt and obey the precedents of its predecessor. In fact, the argument which I am maintaining now is very largely a difficult argument ; and why ? Because I am asking this Parliament to follow an American precedent - to adopt a. precedent established by another Parliament, but under a very similar Constitution. It is a difficult contention, because the members of this Parliament feel in that respect that if they please they can create precedents for themselves. Therefore, it appears to me that this argument of my honorable and learned friend, who is usually so powerful in his logic, is not justified by the circumstances of the situation. The honorable and learned member at page 1037 of Hansard is reported -
We are asked to refuse to extend the operation of this Bill to the public servants of the States upon the ground that we do not possess the constitutional power to take such action. With me that consideration overweighs any question of expediency. If we believe that we have the necessary constitutional power, by all means let us exert it.
It will be remembered that the honorable and learned member was then considering the question of expediency, and his answer is - “ If we have the power, let us exert it.” The honorable and learned member went on -
Now is the only time for us to exercise it. We must speak now, or be for ever silent.
I wonder under what circumstances it could be said that a Parliament “ must speak now, or be for ever silent.” That Parliament remains to be created. The honorable and learned member proceeded -
When we are told by the Government that we do not possess this power, we must insist upon testing the question.
As a mere matter of expediency, as honorable members will see. At page 1035 the honorable and learned member is reported -
The mere fact of that ground, that we have not the power, being put before us, makes it expedient to test the question, whether we have it or not.
That is the most unusual view of expediency, and of consideration of expediency, to which it has been my privilege to listen. I could understand the honorable and learned member basing his argument on such a ground in a matter of principle; but when confessedly weighing arguments for and against expediency, he argues that we must exercise every power we have on the first occasion, and to the utmost possible extent, I ask, where does expediency, or its possibility, begin? However, these remarks were prepared in the hope that my honorable and learned friend would have had an opportunity of listening, and, perhaps,, replying to them, if he thought necessary. * I do not propose to take honorable members once more through the constitutional considerations submitted to them a few weeks ago. These have not yet been challenged, except by the honorable and learned member for Northern Melbourne; and I shall wait until they are further traversed. Allow me to point out that the honorable and learned member and one or two other honorable members - the honorable member for South Sydney parti>cularly - who, looking at the Constitution, find that in a number of places, where it is intended to restrict the power of the Commonwealth with reference to the States, there is in these cases specific mention of the States, appear to proceed on an assumption, justified when dealing with most Acts of Parliament, that it is a fair inference, when they find States specifically mentioned in one part of the Constitution, that they are not deemed to be dealt with, unless they are also specifically included, in other parts of the Constitution. I must submit with great deference to the honorable and learned member for Northern Melbourne any citation from American authorities, after the wholesale fashion in which he dismissed them. But the honorable and learned member must be aware that under the United States Constitution, which after all is the nearest to our own - which was framed under circumstances in many respects most similar - it is an accepted doctrine that so far as the Constitution is concerned the specific gift of a power does not limit any other grant of that power which may be contained within the Constitution. And if, as we have every reason to anticipate, our Court will largelybe swayed by American principles and American practice, when dealing with provisions taken from the American Constitution and based on American practice, and will, when dealing with them, attach some importance to the leading principle of the interpretation of the Constitution of the United States - if that principle be adopted, the whole series of arguments already addressed to us on the matter disappear from our view. The honorable and learned member for Northern Melbourne was unbridled in the contempt which he expressed for American decisions in relation to the interpretation of the Australian Constitution. The honorable and learned member said, as reported on page 1036 of Hansard -
Concerning American decisions, I have long held the opinion that they represent what the Judges thought the Constitution ought to contain rather than what it does contain.
– That is admitted in some cases.
– Very possibly; but the argument is entirely irrelevant just now. We are not asking that the Judges’- decisions shall be employed when interpreting our Constitution, simply because that would beadvisable. Our stand-point is not legal in the ordinary sense of the term, but is the broad, common-sense recognition of the facts and circumstances under which this Constitution was shaped. How was the Constitution shaped? With the exception of the honora’ble and learned member for Northern Melbourne, every member of the Convention had his mind full and his mouth full, as the debates were full, of citations of American practice, American principles, the American Constitution, and American judgments. If these had no value before - if they had no meaning or significance before - we then made them our own. We dealt with them in this very Chamber, and in Adelaide and in Sydney ; we breathed an atmosphere of precedents, chiefly American. The American Constitution, American authorities, and American inferences were on every hp. Sections were put into the Constitution, one, as it happens, by myself, based on nothing but a chain of American decisions. Some sections of the Constitution, which perhaps at present most embarrass those who are contending for a simple interpretation of it, arise from the fact that, instead of resting simply upon the broad powers conferred by the American Constitution, as, for instance, in the trade and commerce sections, we went on out of caution to provide against possible danger, to embody in special sections of our Constitution developments which in America are judicial decisions. There is only, one man who was a member of the Convention who has a right to follow the line of argument to which I refer, and that is the honorable and learned member for Northern Melbourne. He is perfectly consistent in the position which’ he takes up, but there were forty-nine other members of the Convention, not a single one of whom at any time adopted the honorable and learned member’s view in that respect. The honorable and learned member says, speaking of American decisions -
I do not think these cases have anything to do with this matter.
I say, with all respect, that every member of the Convention will admit that American cases and the difficulties which they raised were in our minds at every turn.
– We are not bound by the intention of the Convention in the slightest degree.
– Then’ why labour the matter ?
– But this is not merely intention. My honorable and learned friend is perfectly aware; as we all are, that in cases of difficulty, particularly in the interpretation of a Constitution, we are justi fied in looking at the circumstances under which that Constitution arose. We are justified in looking at the laws and conditions which were before the members of the Convention that drafted it. We. are justified, whenever in interpretation we are confronted by a doubt or an ambiguity, in looking at the materials out of which the Constitution is built. Let honorable members look at that Constitution with the most cursory eye, and they will be compelled to grant that four-fifths at least has been built out of materials quarried from American legislation and- American decisions, and requires to be interpreted upon American principles, if at all.
– That is the objection to it. ‘
– I know that the honorable member for New England has almost the same right to object as the honorable and learned member for Northern Melbourne, because he fought the Constitution upon the ground that it was too American.
– And too little Australian.
– Exactly ; that we imported too much of the United States Constitution. That was used by them as an argument against the Commonwealth Bill, but the argument is inverted now, because what is proposed does not suit their interpretation of a particular section. If that were a sound argument before the Convention as used by my honorable and learned friend the member for Northern Melbourne it is a sound argument now if used by him, and by those who agree with him. They argued that this Constitution should be refused because it was too Federal and too American, and I ask them why they should now assert that it is neither Federal nor American? The two positions are inconsistent. The honorable and learned member for Northern Melbourne is otherwise perfectly consistent. He never has been a federalist, and has never pretended to be one. In and out of the Convention he fought for the unitary principle, giving this Parliament,- so far as possible, the ample powers of the British House of Commmons.
An Honorable Member. - And the referendum.
– Yes, but I am speaking now only of the Parliament. His consistent contention was that we should not be hampered. He uses the same language now. How does he speak of Federation and our
Federal Constitution? At page 1034 he is reported to have said -
These rigid Constitutions are like prisons, and when we talk about whether we have this power or that, the question is one merely of the range of the walk within our prison. Unfortunately,” we are hampered, and we shall continue to be hampered in the development of legislation and in the improvement of this country by being pulled up in this way by the limits of the Constitution.
That was the honorable and learned member’s attitude in the Convention, and when the Commonwealth Bill was before the country. It is a perfectly consistent attitude upon his part; but it was an attitude which the Convention, by an overwhelming majority, repudiated. The Convention adopted a different course: It framed a Federal Constitution, and. it is common knowledge to every honorable member present that the Constitution was designed to preserve the Federal principle by a limitation of the powers of this Parliament in the interests of the States. What we had to meet on the other side was an argument against these limitations, against these restraints of the power of this Parliament, and in favour of rendering the “States Parliaments merely subordinate bodies. That was the whole fight of the Federal campaign, and it is that fight that is being renewed upon this occasion.
– The honorable and learned gentleman should not say that.
– That fight is being renewed. It is perfectly consistent for advocates of a unitary government to propose the application of this power if it exists - and I say it does not - or the use of it if it is there.
– All we are asking is that the Court shall be allowed to determine if we are wrong.
– When my honorable friend says that this is all that, he asks, he exhibits- some trace of the nationality from which he springs, because with pre-eminent caution he knows that he is bound to allow that whether he likes it or not. The honorable member is making me a very handsome present of something which he cannot keep back.
– -But we do that in every Bill.
– Never, I hope, intentionally. I take it that the duty of this House is not to find work for the High Court, or to create problems for the High Court.
– Did all this constitutional argument take place upon this matter in the Convention ?
– Certainly not. The argument then rested chiefly upon the merits, of arbitration and conciliation. This question did not arise; but, as my honorable friend raises the point, I venture to express the opinion, in the presence of men who were members of the Convention, and will recollect its proceedings, that no suggestion of this kind passed through the mind of any member of the Convention, and that if it had ‘been made it would have been absolutely fatal to this section. I voted for it each time. We voted for it three times, and carried it by the merest chance, and by the closest majority.
– With the help of Western Australia.
– State precedents were our stumbling-blocks at every turn, and I think the fact that Western Australia had passed an Arbitration Act, in which the people of that State believed, had a very important bearing upon the discussion. ,
– We had not .passed such an Act then.
– I think the Western Australian Parliament was just going to pass it.
– They had no idea of passing such an Act then.
– Then my argument is faulty to that extent. I have only one other observation to make to the honorable and learned member for Northern Melbourne. The honorable and learned member said, referring still to American de- .cisions -
The only judgments which have been given by Australian Courts are to the effect that these American decisions do not apply here.
With all respect, I take leave to differ from the honorable and learned member. American decisions have been quoted in quite a number of cases in the Courts, and have always been listened to with great respect. In two cases, when asked directly to adopt such a decision, one the Wollaston case in Victoria,, and the other the import duty case in New South Wales, the Court did not follow the American decisions, not .because they differed from them, but because they adopted in the first another view of later American decisions which were put before them in the Victorian Court. Under guidance they came to believe - and I am unable to share their belief - that there was a distinction between the cases before them and the famous case of McCulloch v. Maryland. The other case, in Sydney, was decided not upon the American decisions, but upon our statute itself and upon the relations of the Crown to the States, conditions which do not obtain in “ America. Where the circumstances differed, as they were believed to differ in these two cases, no one could expect the American precedents to be followed. The judgments were given, not in defiance of the American decisions, the value of which were fully recognised, but upon other grounds. The honorable and learned member for Northern Melbourne went on to say -
Similarly, the only judgment given by the Privy Council is one which tends to show that they do not apply even in Canada.
He was no doubt referring to the case of Lambe v. Bank of Toronto. There, again, the Privy Council held nothing like the view attributed. What they decided was that, under the express terms of a special Canadian statute, they were called upon to give a certain decision, and they gave it. It is true that they added certain obiter dicta as to the interpretation of the Canadian Constitution, but these contributed little or nothing to our knowledge, and formed no part of the actual judgment.
– We shall probably have more .light thrown upon the subject next YG6lCa-
– Yes, when the Tasmanian stamp case comes before the High Court on 26th April, we shall probably ascertain how the High Court regards American decisions. Then there is the rating case in Sydney, which will also be the subject of an important judgment.”
– Those cases may be decided independently of anything that has happened in America.
– That is quite possible, but in both cases the American decisions were largely, cited, and we shall shortly have an opportunity to judge how the High Court proposes to regard them in the future.
– That knowledge may come too late.
– Probably too late to save the Ministry, but not too late for our guidance in legislation.
– Perhaps the debate had better be suspended until the decision of the- High Court has been given.
– The suspension will hs of another character, short, sharp, and decisive. I wish now to address myself to another comment of the honorable and learned member for Northern Melbourne. He said -
The Prime Minister has attempted to apply to our circumstances the United States decisions as to taxing Federal and State incomes, and has given us the benefit of an elaborate argument, which, I understand, has led him to the conclusion that we should violate some mystic Federal principle if we were able to include State public servants within the operation of the Bill. I confess that I do not see what the principle adopted in America with regard to taxing Federal incomes by the State, or State incomes by the Federal power, has to do with the interpretation of our Constitution so far as it relates to our power of legislation in regard to conciliation and arbitration.
But for that statement, I should not have wearied the House - and I hope I shall not do so now - by even a reference to the argument. I quoted the decisions of a number of the leading judges of the United States, because they, in the clearest and briefest fashion, indicate to us the principles of interpretation pursued, whenever the State and central Governments of the country came into conflict. I thought that they made perfectly plain that the decisions were based, not on any mystic principle, but upon the plainest and most commonsense business principle. These decisions; appear to me to lay it down clearly that Federation consists in a central Government and a number of other Governments working within that Federation, and that the very essence of the Federal principle is thai each Government shall be guarded against intrusion and invasion by the other in regard to the means and instrumentalities by which each carries on its special work. I submitted that, not as a mystic principle, or as one needing elaboration, but as the solution which I venture to think would suggest itself to any body of business men gathered together “to determine the manner in which one Government, all embracing and self-contained, but limited in scope, and other Governments, retaining all except specified powers, and absolute rights of self-government in these, should work together. It seems to me that the American solution is the most common-sense and direct, since it gives the central Government the full benefit of the Federal charter, while never allowing it to cripple the States, and concedes to the States the full exercise of the residual powers which make, for their importance and allow them to carry on their work, not interfering with the agencies or instrumentalities of the Federal authority.
An Honorable Member. - But suppose there is a conflict between the Federal and the States Governments?
– The Federal charter is intended to prevent that conflict, and the manner in which it does prevent it is clearly set out in the Constitution. I venture to submit that the principle I have enunciated was in the minds of the framers of the Constitution and in the mouths of those who advocated the Constitution from the public platform when it was submitted to the people, and that it is uppermost in the minds of its defenders to-day. The principle is that there shall be no invasion or trespass on either side, but that each authority shall have absolute freedom in carrying on its work with its own agencies.
– But the whole question is as to the powers granted under the Constitution.
– No doubt; and I am mentioning how the framers of the Constitution interpreted it, how those who supported it on the public platform regarded it, and how those who are now defendingit in this House view its provisions.
– It is only with the interpretation of those who are here that we need concern ourselves.
– Honorable members are now being called upon to decide the question. They are being asked to vote for .the amendment under the belief that the High Court will hold that they have the power to achieve something practical.
Honorable Members. - No, no.
– Then is it not desired to achieve something practical?
– Yes, but we are not deceiving any one.
– If honorable members rely upon the belief that an amendment such as that now before us will afford any form of relief, they must be deceived.
– That is a question of law.
– No doubt, but honorable members will agree that, whether they accept the principle or not, there is nothing mystic or unintelligible about it. It is concrete, so that he who runs may read, and it affords an excellent working^ rule, even though it may not be contained in the Constitution. I think, however, that the Constitution favours it.
– Is it not a fact that some of the States receive back more than threefourths of the revenue from Customs, although that is not provided for by law?
– Yes; but that matter, has not been made the subject of a legal decision.
– - Then’ let us place this Bill in the same position.
– It is all very well for the honorable member to suggest that; but what would be the effect? If the High Court holds, as I believe it will, that the provision is ultra vires, no harm will be done. But suppose that the opinion of honorable members who are supporting the amendment proves to be right, the Bill will include within its scope the public servants of the States, and in regard to those servants will at once become operative. Therefore, we are not being asked to submit a question of law for the decision of the High Court, but to agree to whatever would follow a decision of the Court, even if it supported the view entertained by those who favour the amendment.
– The Prime Minister has already argued that nothing could follow.
– That is my view; but the honorable member’s view - and I hope he will appreciate the high value which I attach to his legal opinion - is that something will follow. The honorable member ought to be satisfied- with making that impression upon me, and agree npt to press the amendment in its present form. Although I have . tried to reduce to their true proportions - as I feel justified in doing - the practical results which would follow the adoption of the amendment, and have given a definite opinion upon the legal aspect of the matter, I do not pretend that the amendment is a mere detail or a mere trifle. It is as important as the whole Bill. I say again that it goes to the very root of the Federal principle. This question will divide honorable members definitely,, so that on the one side .will stand those who, Federalists in principle, believe that the Constitution is1 framed on broad lines which preserve what I call the Federal rights of the States - not those States rights which come into conflict with those of the Federation, but those which must be preserved if we are to have a Federation at all - while on the other side will be found either the advocates of a unitary form of government, or those who are prepared to take a step which will lead us in the shortest possible time to the exercise of powers which can attach only to a unitary form of government, and whose exercise will inevitably destroy the Federal principle.
– The honorable and learned gentleman should not say that.
– Why otherwise should I be found arguing against an amendment which I do not think “is good in law, and which I think, if carried, will have no legal effect? I am justified in laying this stress upon the point only because I hold it to be of great importance even when whittled down, and believe that the result of carrying the amendment, whatever the extent of its operation, would be disastrous. Why otherwise should I plead and argue with the majority opposed to me, if I did not feel the absolute necessity of putting it upon record how wide and deep the difference must . be and remain upon this question between those on the one side and those on the other? I do not say this for the purpose of altering votes, because it will not alter votes; I say it to make the situation clear. Closely as I and those with me are connected with many who upon this question will be found voting against us, the division will drive between us a deep gulf which nothing except a decision of the High Court can cross, and even that may not. We must be content to take opposite sides, and to realize the supreme importance of the issue. Would honorable members who support .the amendment be putting their force, energy, and zeal into carrying it, if there were nothing in it but the settlement of a- mere abstract question? Are they such bacl generals? Have they such a poor knowledge of the situation? I acquit them entirely of being influenced by the secondary bearing of this proposal - its bearing upon the fate of the Government. It was not moved with the object of ousting the Government, and it is not being pushed forward by them with that object. There are, of course, men who will vote for it, not because they believe in the proposal, but because they do not believe in the Government, and wish to see us depart from the Treasury benches.
– What right has the honorable and learned member to say that?
– Honorable’ members have a right to support the amendment with that object if they choose ; but if they vote for it they will afterwards find themselves unable to separate themselves from the great declaration of principle involved, which is that this Commonwealth is to cease to be a Federation, and is to become a unitary form of government, with subordinate States under the heel of the Federal Parliament. The people of Australia could say that that must come about ; they have the authority to- do so. They have only to amend the Constitution to sweep away any and every particle of Federal principle in it. They have not done so; I do not believe that they ever will. They could do so if They pleased, and those who think that they should do so are justified in advising such action. But let them recognise where they are going. It will be impossible for them afterwards, however much they desire it, to separate themselves from the consequences of this step. Those who honestly believe that this is a proper occasion for the exercise of these powers must not forget that. Why should we lay the axe to the root of the Federal tree?
– It has taken the Government three and a half years to learn and to keep to one principle.
– The honorable and learned member has, for more than three years past, been trying to make a relevant interjection, and has not succeeded yet. I wish to make another quotation from the speech of the honorable and learned member for Northern Melbourne. This was one of the legal arguments which he addressed to the House - page 1036 -
The Constitution itself gives us power to interfere even wilh railway rates. There is nothing that will so materially affect the railway estimates as the provision in the Constitution having reference to preferential rates. That will make a tremendous difference to the lines adjoining New South Wales and Victoria. It will mean a great loss of revenue in some cases, and a great increase of revenue in others. The States must submit to having their finances interfered with.
The honorable member for Wide Bay pursued a similar line of argument this afternoon, when he said that to contend that the passing of this measure involves the taxation of the States is to say nothing, because any Court to which the States have chosen, or /may choose, to submit themselves, or the High Court to which, under the Constitution, they must submit themselves, may at times by its decisions cast them in damages, declare their existing obligations, and require them to fulfil them. So far as the High Court does that, and that only, the parallel is perfect. But the High Court does a great deal more, in regard to which there is no parallel. The Bill not only creates an Arbitration Court, it creates new obligations. It is not the creation of the Court which makes any difference. The existence of another Court to which the States submit themselves to declare what their obligations are, or the addition of another half-dozen Courts, makes no difference to their obligations; it only multiplies the authorities which can say precisely what those obligations are. “ The amendment means -new taxation to the States, because it imposes upon them absolutely new obligations, obligations which do not at present exist. The Bill imposes upon private employers obligations which do not at present exist, but under the Constitution we have the right to impose them. The amendment, however, imposes new obligations upon the States, because if we accept it we say to them - “ We shall create a Federal .tribunal which will be competent to alter and regulate the employment of your servants as to wages, hours, apprentices, conditions of work, payment for piece-work, and every other detail.” These alterations may involve great increase of responsibility, and may require fresh taxation.
– And will have to be recast at the end of five years. Mr. DEAKIN.- Possibly.
– Will not the Court be a Court of Justice?
– In this case it is not the creation of the Court- that means anything, it is the creation of new obligations. No one argues that the creation of a Court will impose any fresh tax upon the Commonwealth, although the cost of its maintenance will be paid by us. But to impose a fresh obligation to pay whatever rate of wage, and to comply with whatever conditions the Commonwealth Arbitration Court may think fit to require, is to tax the States. If the measure created no Commonwealth Court, but merely laid clown these new obligations, leaving it to the Courts of the States to determine their limits, that would be the same trespass upon the rights of the States. It is not the creation of a new Court, but the creation of new obligations which imposes taxation. When honorable members refer to the powers of the Commonwealth to interfere, through the Inter-State Commission, with State railway rates, they overlook the whole point. The creation of the InterState Commission for that very purpose is provided for in the Con- ‘ stitution. The power to create it is conferred by that instrument upon the Federal Parliament. It was necessary to confer that power upon this Parliament to enable us to exercise it over the States.
– We hold that the Constitution has conferred upon us the power to legislate for arbitration affecting States servants.
– It is no argument to say that because the Constitution confers the power to interfere in regard to railway rates, through the Inter-State Commission, therefore States servants are included in the clause relating to conciliation and arbitration. The right to create the InterState Commission is expressly given in the Constitution, and the powers of that body are defined there. The last quotation I shall make from the speech of my honorable and learned friend is one of which I do not understand the purport. He is reported, on page 1032, to have said -
I see on the face of the Bill evidence that it was meant to apply to the public servants of the States, but for the insertion on page 3 of certain words.
My honorable and learned friend is in error there. As I have often said,- the Bill, without the words proposed to be amended, would not apply to the public servants or to the railway employes of the States, because we cannot deal with them. The Convention could have placed such a power in the Constitution, which, having been approved by the people, we could have exercised, but nothing short of an amendment of the Constitution in that direction will now enable ‘us to apply this legislation to the servants of the States. The words were placed in the Bill, as was explained to the House, when the right honorable member for Adelaide made his regretted departure from the Government. He held with the. honorable and learned member for Northern Melbourne, that, without those words in the Bill, the servants of the States would be included. I held, just as positively, that, without them, they would not be included. Were we, as a Government, to come down to the House, one Minister telling honorable members that’ the public servants of the States were included, although the provisions of the Bill did not expressly apply to them, while another Minister said that they were not included? Or, when the present Government inherited the Bill, were we to make no reference to the public servants of the States? Were we to tell the House that the measure did not include them, because it did not refer to them, while the honorable and learned members for Northern Melbourne and Darling Downs, and others, said that it did include them? Would it have been fair to ask the House to vote for a Bill in regard to which there was an open conflict of opinion as to whether the public servants of the States were, or were not, included? This is why these words appear on the face of the measure. They are unnecessary words in a legal sense ; indeed they are unnecessary in every sense, except that of rendering the political position perfectly plain, explicit, and straightforward upon <the face of the Bill. From their standpoint, my friends opposite are quite right <not to content themselves with striking out <these words, relying upon the public servants being necessarily brought under the operation of the Bill. That would have been a devious step for them to take, and one which was not worthy of them. They have adopted the straightforward course. They say what they mean, and mean what they say. They hold that even if, in the absence of these words, the provisions of the Bill really extend to the public servants of the States and the Commonwealth, the amendment submitted by the honorable member for Wide Bay cannot possibly work any harm. I have already defined exactly the Government attitude. We think that the public servants of. the States and the Commonwealth should not be brought under the operation of this Bill, for the reason that we have not the power to make if applicable to them. Consequently we put on the face of the measure words which we think are unnecessary, except for the sake of placing our intention beyond the possibility of dispute. These words permit of no doubt as “to the attitude of the Ministry upon, this question. It is the Federal attitude. Our opponents seek to shear away from the States the buttresses upon which they are relying. Such aggressions must, even more than the financial provisions of the Constitution, bring them into absolute subordination to this Parliament. So far as the finances are concerned, the people of Australia accepted our Constitution with the powers plainly contained in it, after much debate upon them in every State, and with the clear knowledge that there was a great deal involved in them. But they accepted this Bill without a hint from any platform of which I have heard, without a word in any newspaper which I have read, without a whisper at any meeting of which I can find any trace, that legislation in the direction of conciliation and arbitration should extend beyond private industrial disputes. These the man in the street would naturally interpret to mean disputes in . ordinary employment when they extended beyond any . one State. We are not taking advantage of any legal quibble, of something which was overlooked at the time - I do not suggest that my friends upon the other side of the House are - but we take up precisely the position which was adopted by the Convention, that we cannot have a Federation unless the States, in the discharge of their immediate duties, in the control of their own Departments, are selfgoverning. If they are not selfgoverning, they merely cumber the ground. They had better be swept away openly than undermined by surprise. It is because we recognise the might and majesty of the Federal principle at stake that we oppose the amendment which has been submitted.
– The Prime Minister, in a speech upon which we mav all congratulate him, has sought a broad line of demarcation between the supporters and opponents of this amendment, upon the ground that upon one side are ranged the advocates of unification, and upon the other the Federalists. To me it does not seem to be of any value to seek to whip that particular horse-
– It is a good cry.
– It may be a good cry outside ; but when the people investigate it, they will see that the answer to it is that even if we desired unification it is beyond our power to obtain it. The custodians of the Constitution - the High Court - have already been appointed, and it rests with them to determine whether or not the amendment proposed is an infraction of State rights. I wish to say that those who think with me upon this question entertain a sincere desire to uphold the Constitution as it was adopted by the .people, with the necessary reservation - “ until the electors themselves seek to alter it in some direction.” The supporters of the proposed amendment are just as anxious as are the members of the Government to respect the provisions of the Constitution. We differ, however, upon the question of what the Constitution itself provides. Surely that is a legitimate difference of opinion, in view of the confession made by the Prime Minister a few days ago, that the wording of sub-section xxxv. of section 51 was capable of quite a variety of constructions. It seems singular, when we reflect, that notwithstanding that the Convention contained such a large proportion of the ablest lawyers of Australia, that they were surrounded with the atmosphere of the American Constitution, and that they had all the decisions of the United States to guide them, from those of the great Chief Justice Marshall downwards, they have succeeded in importing into the sub-section to which I am referring as much ambiguity as it was possible to import into so few words. Only the other evening the Prime Minister told us that the last seven words of that provision
– I treated it as if it were divided into seven parts, and for. brevity I called them seven words.
– Each of those parts, I understood the honorable gentleman to say, was capable of a different interpretation. Though I am not a lawyer, and consequently not able to argue the matter to the same advantage as is the Prime Minister, it seems to me that there is no doubt as to the interpretation which it is intended shall be placed upon the sub-section, having regard to the constitutional position. It contains no limitations of the powers of the Commonwealth Parliament beyond those relating to matters which are not affected by the contention of the honorable gentleman. The sub-section declares that we may legislate upon matters of -
Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.
I admit that there is considerable doubt in my mind as to the application of the word “prevention” in relation to the words which follow. Again, as regards the construction which should be placed upon the word “ industrial,” there may be some disputation. There may also be some difference of opinion as to what constitutes a “ dispute.” But the question which is immediately at issue, that of whether we have power to extend the provisions of this . Bill to the public servants of the States and of the Commonwealth, admits of no doubt whatever, because the limitations and exemptions which appear in other subsections of section 51 of the Constitution are absent, and I say significantly absent from this particular provision. Consequent! v. I indorse the opinion which was expressed by the honorable and learned member for
Northern Melbourne, who drew attention to the fact that the very sub-sections quoted by the Prime Minister in his second-reading speech upon the Bill bore evidence of having received different treatment at the hands of the Convention from that which was accorded to sub-section xxxv. In sub-section xiii., for example, the qualification was inserted, that whilst the Commonwealth has power to legislate upon the question of banking, it must be “other than State banking.” Similarly, in the following subsection, whilst we have power to deal with the matter of insurance, it must be “ other than State insurance,” unless these two forms of enterprise extended “beyond the limits of any one State.” Then, again, subsection xxxiv. provides that the Commonwealth can undertake railway construction and extension in any State only with the consent of that State. In each of these subjections the Convention deemed it necessary to clearly express that. State enterprises were exempted from their operation. But sub-section xxxv. contains no qualification other than that which comes within the definition of a “ dispute,” or the limits to which a dispute must extend. There is another phase of this constitutional question to which the Prime Minister has alluded. I refer to what constitutes a “ dispute.” He argued that it was impossible to conceive of a “ dispute “ as between^ the Government and its employes “coming within the purview of this sub-section. That is to say, it could not be a dispute extending beyond the limits of any one State. As I interjected at the time, it appears tq me that, if that contention be correct, it vitiates the’ whole Bill as introduced by the Government. The whole of subsection xxxv. of section 51 of the Constitution must be rendered nugatory and valueless, if the contention of the Prime Minister is- correct ; because, practically, it never occurs that there is any necessary unity, amongst employers concerned in what we generally term a strike. If there is, there is no attempt to fine down the dispute, as the Prime Minister has attempted to fine down a dispute among railway employe’s which would be held to have extended beyond any one State. In interpreting the word “ dispute” we must accept its generally understood meaning. We must interpret the words “ industrial dispute “ as meaning that which is a strike, or likely to result in a strike. The extension of nearly every large strike, or of the dispute which has led up to it, has almost invariably been by way of sympathetic action on the part of individuals other than those first affected by it, and, so far as my knowledge goes, these continued extensions have been the cause of all the serious’ strikes or industrial disputes from which this and other civilized countries have suffered. If, therefore, the contention put forward by the Prime Minister is correct - and I cannot assert dogmatically that it is not - it renders the Bill as a whole valueless, and we are simply wasting our time in attempting to place any such measure on the statute-book. Except, perhaps, in the case of the employes of a ship-owner whose ships trade beyond the boundaries of any one State, and whose industry is spread over several States, there would be a difficulty in applying the provisions of this Bill. I do not see how it would be possible to apply the provisions of this measure to any dispute, even amongst private employes, which extended beyond one State, if it were necessary, as the Prime Minister contends, to prove that it was a dispute with the same employer and in respect to the same matter. I may have carried the Prime Minister’s argument further than he intended to go, in saying that it must be a dispute with the same employer.
– Hear, hear. ‘
– I certainly gathered from his assertion that a sympathetic strike of public servants in one State could not be held to be an extension of a dispute between another particular State and its employes.
– Hear, hear.
– Assuming that the same matter were at issue-
– My contention was that it must be a real dispute, and not a sympathetic one, on both sides of the border. If the men on’ the other side of the border were suffering from the same disabilities, the dispute in both States might be the same; but if the men on the other side of the border, in spite of being paid at the higher rate claimed by those on this side, took action, how could it be said that it was an extension of the dispute. Thev would be already in receipt of all for which those on this side were asking.
– That is another question. I am rather inclined to think that the worst of the class of disputes, to which this Bill is specially designed to relate, would be outside the purview of the measure, even if the suggestion just made by the Prime Minister as to the meaning of the word were correct.
– That is possibly one reason why the matter should receive further attention. I reiterate that my own “ experience is that the most dangerous strikes from the stand-point of the general community are those in which there is a sympathetic extension of the original trouble. One is able to very materially localize disputes f in which there is no active sympathy shown by bodies which are directly affected. But it seems to me that if this measure is to achieve all that some of us desire, it will be necessary to make it so far-reaching as to prevent the possibility of the whole railway systems of the Commonwealth being idle because of a sympathetic strike. Another matter with which the honorable and learned gentleman dealt was the question of taxation. He replied at some length to the considerations advanced in that regard by the honorable and learned member for Northern Melbourne. There was a refreshing lucidity associated with that honorable and learned member’s arguments. They appeared to me to be so clear that they must affect many in whose minds there might previously ha%’e been some doubt.
– Hear, hear.
– I do not know whether the Prime Minister has realized how far his argument in regard to the question of taxation is likely to carry him. If, as the honorable and learned member for Northern Melbourne argued’, the contention was sound that there could be no justification for imposing conditions which might involve the rights and wages of railway employes, and consequently affect detrimentally the finances of the State, should we be justified in incurring any expenditure whatever which might detrimentally affect the finances of a State?
– Oh, yes.
– There is no more specific power given in that regard than there is in this. The section in the Constitution is clear, and it seems to me that there being no prohibition of expenditure in that direction, but rather an inference that we have the right to take any step necessary in carrying out this particular sub-section, there is no reason why we may not pass a proposal declaring that, if, in the opinion of the Court, certain conditions must be ‘ observed, they shall be complied with, notwithstanding that they may involve increased taxation.
– Is not the difference this : That in regard to any decision affecting the servants of the” States it is proposed to make the States raise ‘whatever money may be necessary to give effect to it, while in the other case Ave are expending the money which Ave ourselves raise?
– I do not say that. Let me refer to a matter of which the honorable and learned member is cognisant. Let us suppose that at a Birthday review, we expend a considerable sum of money in the firing of salutes which disappear in smoke.
– They are not of much use, and I would cheerfully legislate against them.
– I do not say that they are of use. But assuming that Ave succeeded in spending a considerable sum of money in that direction, would not the finances of the States be involved, seeing that under the Constitution they receive back not only three-fourths of the . customs and excise revenue, but any surplus in respect of the one-fourth ‘which the Comonwealth may retain. Any Commonwealth expenditure, even if it is only a matter of a few pounds, has thus some effect for good or evil on the finances of the various States.
– That is what I say. In the case quoted by the honorable member we should spend money perhaps Avith unhappy results to the States. In the other case Ave should be requiring the States to expend money.
– I do not see any distinction between the two classes of expen”diture. The objection put forward to our proposal Avas, in the first instance, that the raising of wages or the shortening of the hours of employment of the States railway employes, with the result that a greater number of men would have to be employed, would have the effect of compelling the States to increase their expenditure.
– That would be only by order of the Court.
– By order of a Court that had gone into the equities of the case, and which would give an equitable decision. What I desire to point out is that the result would be exactly the same if the Commonwealth expended, say, ^1,000, which would otherwise go to New South Wales as part of the surplus, and the absence of which might render it necessary for the State to resort to taxation to make good the deficiency.
– The honorable member surely does not contend that the Court would compel ai Parliament to provide extra taxation to meet an increased wage 2
Mrt. WATSON.- I do not say that. I do not think that the Court could compel the Parliament to take active steps. But what I contend that it could do - although I do not suppose that there would ever be any necessity to do it - would be to insist that the railways should not run unless certain conditions were complied with. If the powers I contend for are given to us in the Constitution, then there is a latent power to insist upon the award of the Court being complied with. Beyond that I do not pretend to go. It seems to me that the Prime Minister gave away a good deal of his case when he said that if this provision were in existence probably no set of Railway Commissioners would go tq any extreme length. I understood him to make that remark in reply to an interjection.
– Not precisely that. I said that they would take care not to adopt the united course of action which was mentioned.
– I accept the correction; but, carrying that very little further, I think it is more than probable that the Commissioners would never go to any extreme length iri defying the decision of the Court, arrived at after lengthened argument and a
Clear presentation of the case on either side. I do not anticipate any trouble in that direction. It seems to me that any action of this, Parliament in regard to the expenditure of money must necessarily result in lessening the resources of the States, and therefore may involve extra taxation. If it is true that Ave have no right to take any step which might involve additional taxation, or some kind of complication to the State Treasuries, then it means such a crippling condition for this Parliament that the sooner it disappears the better. I do not know that it is necessary for me to, say a great deal more on the question of constitutionality. I believe that on any clear rendering of the provision in trie Constitution the amendment is quite within the powers granted by the people at the referendum. It may be said that the people accepted” the provision without the consideration having been, put to them that it might allow of State servants being included in a Conciliation and Arbitration Act. I submitthat the people did not object to the provision, because it might involve that interpretation, and further, that every one who knew the condition of affairs at that time knew that much more important questions - for instance, as to the powers of the Senate, and as to financial arrangements - practically overshadowed everything else in the Constitution. The Prime Minister knows as well as every other honorable member that it was impossible to expect an answer from the people in regard to every detail of a Constitution so comprehensive as this one is, and so I am not at all alarmed by that argument. The honorable and learned gentleman says that we who at the time of the referendum objected to the Constitution on the ground that it was fashioned too closely on the American, model, should now accept the corollary of that - of agreeing to the use of American decisions in its interpretation. It does not seem to me that there is any particular force in that argument, because in the first place our Constitution departs very widely in many respects from the American model. Although it follows primarily the American model in regard to the constitution of the Senate, still m its later provisions it differs very materially. For instance, with regard to the provisions for a joint sitting of the Houses and other matters of that -sort it differs essentially from the American Constitution.
– It absolutely follows the American Constitution as to the method of apportioning the powers.
– And that is all that is in question.
– That is no argument, so far as this particular provision is concerned, because there is no such provision in the American Constitution. Unfortunately, the people of America have had to be content with, and to suffer under, rule by injunction. For years injunctions of their Supreme Court have been used, always against the industrial classes, and never against the other side, and so it is freely stated to-day that America is governed, not bv her Constitution, but by her judge-made law.
– And bad law. too.
– I believe that from the industrial stand-point it is bad law. It is made by men who are largely prejudiced against that side of the question.
– It. is not government by representation.
– No. All that America has done in that regard is no guide to this Parliament in the interpretation of a provision that finds no place in the American
Constitution, and which affects a matter which has so far elicited no response from its legislative bodies. In view of that fact, therefore, I feel I am not bound to place any reliance on American decisions affecting a totally different question from that which we are discussing.
– But these decisions are old.
– It was not pretended that the old decisions referred to were connected with this particular matter, except so far as they appeared to affect the question of taxation. I do not think that even the question of taxation can be held to be really germane to the interpretation of this provision. I do not wish to do more at this stage than to say a few words with regard to the expediency of this amendment. Of course, I make no appeal to honorable members who, like the honorable member for Wannon, are opposed lock, stock, and barrel to the Bill. We cannot hope to convince them of the desirability of making the Bill harmonious and complete. We must leave them to the judgment of their consciences, and the tender mercies of the electors a little while hence. But to the other members of the House - and I am glad to say that there is an overwhelming majority in favour of the principle of compulsory conciliation and arbitration - I certainly do appeal not to leave outside the provisions of a measure which they declare to be beneficent in its action a large proportion of the members of this community. If strikes are disastrous - and I think there are but few persons in the community to-day who will not admit that they are - if this measure is the’ best one that can be devised under present conditions to try to prevent their occurrence, I ask, why should many thousands of those engaged in industries be excluded from the operation. of its provisions? Why should they not have an opportunity of securing that justice which it is impossible for them to obtain under present conditions? On the other hand, why should the community which says that a twopennyhalfpenny strike between an ordinary private employer and his employes shall be illegal - that it is against the interests of the Commonwealth to allow 100 men to go on strike - contemplate the possibility of tens of thousands of men going on strike, and take no step to prevent it?
– Is it not impossible for the servants of a State to go on strike in that way?
– I did not think it necessary at this stage to answer a question of that description; but the honorable member’s interjection reminds me of a contention put forward by the Prime Minister about which I think.it necessary to say a word. He stated that it was beyond the bounds of possibility to contemplate another railway strike. Well, I have had a good deal of experience of industrial matters x amongst the unions responsible for strikes, and, as a long-time trades unionist myself, I say that I would not be too ready to accept a single defeat as an indication that there would not be another strike. My experience has rather been the contrary ; and while I regret as much as any one can do the strike on the Victorian railways - though I fully admit that the men had ample justification for making a strong protest against the. manner in which they were treated - still, while I take that view, I should not like to assert that among any body of British workmen, at any rate, a single defeat would do more than accentuate their desire to get justice. And it would be a pitiful thing for the race if it were not so.
– Can they not trust their own people and their own Parliament ?
– Experience demonstrates that they could not trust them, even as far as they could see them. When they trusted them, or were prepared to do so, they were not only deprived of their rights but insulted into the bargain. I do not say for a moment that that set of conditions will be repeated in other States. I do not think that it is likely, in view of our experience, that it will be hurriedly repeated even in Victoria. But we have to contemplate the possibility at any period of the whole industrial and productive machinery of this Commonwealth being made idle by a cessation of work on the railways, and in connexion with other institutions. If this be so, is it not as well to insure against even the . remote risk of such a disaster? A business man - a merchant - may put up a big warehouse which is as fire-proof as it is possible to make it. He may introduce all the latest fire-quenching appliances which he can obtain. But he does not dispense with his insurances. The risk of a fire may be remote, but he makes “ assurance doubly sure “ by going to a good office and taking out a policy on his stock and buildings. So in this case I say that, so long as there is a possibility of a strike, it is our duty to guard against it ; and I certainly think that those who believe in the principle that it is the duty of the State to prevent these disasters, should be willing to interfere just as quickly - in the interest not only of the men concerned, but of the whole community - whenever a trouble of that description threatens amongst State servants.
– I regard the present amendment as raising the most serious question that has yet emanated from any section of the Federal Parliament. I believe that it strikes at the very root of Our Federal system; and I have no hesitation in saying that if the supporters of the amendment succeed. in placing it upon the statute-book, and it is found to be operative in practice, it will do more harm in the Commonwealth than the Federal Parliament can condone for during many years to come. I speak not as an enemy to compulsory arbitration and conciliation, as honorable members know, but as one who supports the principle wherever its operation is required. It is not for me to say whether this amendment is within the letter of the Constitution or not. But I do say, most emphatically, that it is utterly opposed to the spirit of the Constitution. It is opposed to the Constitution as explained to the people of Australia by its framers. All the leading lawyers who occupied seats in the Convention, when advising the people of Australia to accept the Constitution, probably laid more stress on this aspect of it than on any other, viz., on the rights of the States as distinct from the powers that it was proposed to hand over to the Federal Parliament. It was explained to the people most emphatically on every platform, . arid in the press of Australia, that the Federal Parliament could not interfere in any way with the Departments that were left under the control of the .States Governments. It was pointed out that the Federal Parliament had jurisdiction only in those questions that were expressly handed over to it by the Constitution. Assuming that it may be found that the framers of the Constitution were wrong - if there has crept into the Constitution power for the Federal Parliament to exercise control over the States Departments - then we should look a little further and see what is likely to follow. That is the aspect of the case about which I feel the greatest concern and anxiety. I believe, in the first place, that the States Governments would ignore any decision of the Arbitration Court which might require them to take back their Estimates and recast them. I also believe that they would ignore any decision that required them to reduce the pay of the Public Servants. In that case, what power would the Federal Parliament have to enforce the decision of the Arbitration Court?
– The same power as it would have in all other cases..
– In any other case we know that a State Government would be obeying the decision of a tribunal of its own creation.
– What about the High Court ?
– The High Court is the creation of the people of Australia, accepted in the Federal Constitution. But this Bill deals with questions that the people of Australia were told by the leading members of the Convention - in fact by every member of the Convention whom I heard speak or whose speeches I read-
– In ‘Gippsland the people only dealt with the stock tax.
– This is not a matter for indulgence in, I was going to say buffoonery ; but I would not apply that term to my honorable friend. It is a serious question, and should be dealt with in a serious manner. The people of Australia accepted the Constitution on the distinct understanding that the States Governments would have full control of every department not handed over to the Commonwealth. That, I think, will not be denied by any honorable member. The honorable and learned member for Northern Melbourne was, like myself, an opponent of the Convention Bill, believing, with me, that it had many serious defects. But had the honorable and learned member then believed that the Commonwealth would have the power to virtually take control of States Departments, he could have killed the Bill. That would have undoubtedly been the result had we been able to make the people of Victoria believe that such would be the case. There was no question on which the people felt so strongly as that of State rights ; but the honorable and learned member, in all the arguments he used against the Constitution Bill, never once told the people that they would be deprived of the control of departments which were not handed over to the Commonwealth.
– It would have only made the Bill more popular as against my views.
– Had such a result been anticipated, it would have killed the Bill, because, as I say, there was no question on which the people felt so strongly, nor is there any question, I believe, on which they feel so strongly at the present time. I am convinced that if there is a conflict between the Federal Government and the States Governments on the question of States rights, the people of the Commonwealth will range themselves on the side of the State’s, and not on the side of the aggressor.
– What evidence is there of that?
– The evidence is that the people of the Commonwealth accepted the Constitution as explained to them by the framers.
– Did the people not accept the Constitution on trust?
– The people did not consider they were accepting the Constitution on trust, because they were told emphatically that the Commonwealth could not interfere with the control of the States Departments.
– What about the Melbourne election ?
– What, in the name of common sense, has the Melbourne election to do with the question?
– In a constituency like Melbourne there was a majority of. 800 against the views the honorable member is now expressing.
– What has the Melbourne election to do with the question of a Federal Constitution?
– The honorable member says that the people are against the Commonwealth exercising its power in this matter, whereas the result of the Melbourne election shows that such is not the fact.
– I say that the people are against interference by the Commonwealth in the control of States Departments.
– Try the referendum, and see who is right.
– The honorable member for Melbourne knows that such an interference must necessarily kill the Federal Constitution as understood by the people at the present time. It would undoubtedly lead to one Government and Parliament for
Australia. What can a State Government or State Parliament do if it has not control of a single Department? How can’ a State Government or Parliament carry on under such conditions? What residuum of power will be left to the States? The proposed interference strikes at the very root of Federation, so far as I understand the position. As to the question of expediency, I may say that I sat in the Victorian Parliament for nearly a quarter of a century, and during that time I think I demonstrated that I am a friend of the work- ing classes. I do not think that I ever recorded a vote against the interests of those classes, and the best proof is that I have always received their support at elections. I am still as much in sympathy with that section of the community as I ever was. I did as much as any one in the Victorian Parliament to secure them equal power as against those who contended for what I considered undue power for the propertied classes. I opposed plural voting from the very commencement, doing my best to give one vote, and one vote only, to every man and woman in the community. But if I see that that section of the community contemplate a step which, in my opinion, will be detrimental to their own interests, and injure them, perhaps, as. much as it will injure any section, I should not be worthy of the trust they have reposed in me if I did not act upon my honest convictions. I believe no section of the community will suffer more if this proposal be given effect to than will the public service of the different States. I ought to limit my remarks to the railway servants, and, perhaps, the employes of the Postal Department, who may possibly come within the definition of “ industrial.”
– There are the Printing Departments.
– I am speaking of all who may come within the definition, but it is utterly impossible to carry on successfully a large industrial department, such as that of the railways of the States, under dual control - under control divided between the States and the Commonwealth. ‘ The public debt of Australia is largely- invested in the railways, and there is no question in which the Commonwealth is more deeply interested than that of the future welfare of the railway servants. I have not the slightest doubt that it would be fatal to the successful working of the railways to place them under dual control. Moreover, the State, as an employer, is in a very dif ferent position from that of a private employer, private firm, or private company. Private employers are personally interested in driving the hardest bargain with their employes, and in getting all they possibly can out of them. The Governments of the various States, on the other hand, reflect the will of the people, and have always been generous employers; at any rate, they have always been fair employers.
– There has been sweating by ‘some State Governments.
– It is possible there may have been errors in individual cases. Does the honorable member say that this tribunal of three men will be endowed with such omniscient powers as will enable them to do justice to every industry throughout the Commonwealth? Does the honorable member think that this Court will not be liable to error? Has the honorable, member lost all confidence in the people, whom he, I believe, did his best to endow with supreme political power?
– I have confidence in all pur Law Courts.
Mi. McLEAN. - I believe that the people are more generous than the Law Courts. The Courts do only bare justice, whereas the people may deal, and I contend, have dealt, generously with the public service. I have administered a good many Departments in my time, and, so far as mv experience has gone, I have found States employes extremely contented. I know that when a man gets into the employment of a State it takes a great deal to induce him to leave his position. Further, I know that tens of thousands of people outside the public service are continually clamouring to get in ; and that is the best proof we can have that the States have ever been generous employers.
– Employment by the State is more certain.
– No doubt employment by the State is more certain. But if they did not approve of their pay and conditions of labour they would surely not be so anxious to remain in their employment, and there would not be much difficulty in inducing them to leave it. My honorable friends who are supporting this amendment are the very persons who, up to this time, have been clamouring to bring under State control as many industries as possible. They will admit that I am correct when I say that to a man they are advocates of what is called State socialism. I do not use the word “ socialism “ in any offensive sense, but as meaning the bringing under State control as many industries as possible. The honorable member for Wide Bay ‘ in the next breath tells me that nobody is more incapable of laying down the conditions of service than is a State Government or Parliament. How can he reconcile the two statements? How can he in one breath advocate the bringing of industries under the control of the State, and in the next contend -that the State is not capable of managing them successfully ? Does he wish to bring the industries of the Country to ruin? I am sure the honorable member does not wish anything of the kind.
– It is for the same reason that Parliament has appointed judicial authorities to punish crime. It has not been left to Parliament, which would be an incompetent court to do it.
– My honorable friend is a man of common sense and extensive experience, and does he believe for one moment that these three men, though they should be the best men whom we could select in the whole of the Commonwealth, will be capable of dealing successfully, intelligently, and justly with every industry in the States?
– Yes; because they can take time to secure expert evidence, and Parliament has no time to do any such thing.
– Then my honorable friend exhibits an amount of unsophisticaton and innocence I should never have given him credit for. Let us take the railway services, for instance. We pay big salaries, and send over the whole world to secure men of extended experience and business knowledge to manage our railways. In New South Wales and Victoria, the Chief Commissioners are paid ,£3,500 a year, and here it is proposed to put over them a man who is to be paid £700 a year, and to let him take the control out of their hands. If my honorable friend thinks that the railways can be successfully worked under those conditions, I cannot agree with him’.
– They do not interfere until the Commissioners fail.
– But who is to be the judge of failure?
– The men will make their complaints.
– The Commissioners are not dealing with their own money ; they are men of wide experience, and they know, as does every large employer of experience, that if they .are to secure the best services which their employes can render, the men they employ must be fairly paid and well treated. Surely the Commissioners, having the public purse to draw upon, will not treat their men badly, when they know that such treatment would but result in a discontented service, and would render their management of the railways ineffective?
– We know that private employers employ managers at £3,000 a year and upwards.
– I have pointed out the difference. The incentive of the private employer is to get his work done as cheaply as possible, seeing that he has to pay for it out of his own pocket.
– He often employs a manager at £3,500 a year, which is as big a salary as is paid to a Commissioner of Railways.
– And he gives his manager instructions to get the work done as cheaply as possible.
– States Governments give the same instructions to their Commissioners.
– My experience is that the majority of private employers deal fairly by their servants; it is only a minority who do not deal fairly by them.
– Our Railway Commissioners are asked to do the same thing; they are asked to manage , the railways as cheaply and . efficiently as possible.
– I am sure that the honorable member, with his experience and good sense, must know perfectly well that if the railway employes can snap their fingers at the Commissioner, and those whom they are expected to obey, and can tell them that they can appeal to a Federal tribunal over their heads, a condition of things will be brought about which will utterly demoralize the service.
– In my opinion what is here proposed will bind the railway employes more than they are bound now.
– Instead of leading to an extension of that State socialism of which the honorable member is such an ardent advocate, this proposal is very much more likely to lead to the sale of the railways. That would appear to be the only logical outcome of the situation which will be created.
– Would that be such a bad thing ?
– I should not like to see it. I should like our railways to continue for a long time under the control of the
States Governments, because I believe it is necessary, in the interests of the public, and of the proper development of the country, that they should be under State control.
– The railway servants in New South Wales can appeal to an Arbitration Court there.
– Every one approves of that.
– That is a very different matter. My honorable and learned friend must see that that is an appeal to a Court which is a creation of the State Parliament. What is proposed in this Bill will be a Court, the creation of the Commonwealth Parliament, and over the heads of the States Governments.
– But a Court dealing only with disputes extending beyond the limits of any one State.
– The honorable member is arguing all the time that this Arbitration Court will do something wrong.
– I am assuming that this Court will be composed of only three men, and that two of them will necessarily be men of ordinary capacity, and of no very great business experience, if they will accept a salary of £700 a year, because no man of extensive business knowledge need accept such a salary. I do not consider that the robes of office will give to these men any knowledge which they previously did not possess. I assume they will do their work honestly according to their lights, but I do not for a moment place them on a par with Railway Commissioners paid . £3,500 a year, men who have had extensive experience in other parts of the world. If ever there were a time when people might crave to be saved from their friends, I think it is on the present occasion. I feel sure there never was a time when the best interests of the public servants were more endangered than they will be from the movements of those who with every desire to do the best they can are proceeding upon erroneous lines. So far as the interests of the Commonwealth are concerned, do honorable members think that those interests can be properly conserved if all the services of the various States are to be conducted under a dual control ? It is opposed to reason and experience.
– Would not that argument apply to dual control in private enterprise ?
– To what dual control does the honorable member refer ?
– To the control of the Federal Parliament over private industry, and the control of the proprietor of the industry.
– I assume that the object of the Arbitration Court is merely to step in in the case of exceptional employers who will not do justice to their employes. I claim that I brought more trades under the operation of the Victorian Factories Act than did all the other Victorian Ministers combined, but I did not bring a single trade under the operation of that Act until I satisfied myself that there were a few in the trade - and the number was very few in every instance - who would not do justice to their employes. The great majority of the employers were entirely with me in the action I took, and signed petitions to be brought under the Act in order that they might be saved from the competition of men who would not act fairly by their employes.
– It will be only in isolated instances that the Arbitration Court will be brought into operation.
– In private employment we find that the great majority of employers act fairly by their employes; but there are some who will not act fairly by them, and a tribunal of this kind is very useful to prevent strikes, and to prevent the waste, expense, and heart-burnings involved in the settlement of an industrial dispute by brute force. In such cases I have no doubt that intervention under a Conciliation and Arbitration Act may do a great deal of good ; but it is only in cases in which such intervention is absolutely necessary that the provisions of such an Act should be applied. I have heard my honorable friend contend that if this is a good thing it should be extended to every case, to the public servants as well as to private employes; but I do not regard this in the way in which we regard our daily food. I regard it in the light of a necessary evil. If we could do without it so much the better.
– So is all law a necessary evil.
– That is so, and it is for that reason I am not an advocate for the extension of legal tribunals further than is necessary to deal with the absolute necessities of the community. I do not think we should go any further with our law courts, and certainly not with our Courts of Conciliation and Arbitration. We have never had a complaint to justify legislation of this kind. I have not met one public servant - and I have spoken to a good many since this. question was brought forward - who has not told me that he and his fellow employes were utterly opposed to the proposal. I cannot say that that indicates the real feeling of public servants; I can only speak from my own experience.
– I have a letter conveying a resolution, arrived at by hundreds of public servants, in favour of the present proposal.
– That is not a very large number. There are 12,000 railway employes in Victoria, besides many hundreds of other public servants, and the honorable and learned member’s statement, instead of strengthening his case, seems to me to weaken it. My main objection to the amendment is that it strikes at the root of the Federal principle. It would be utterly impossible to carry on Federation successfully if the amendment proved to be operative. I do not for a moment believe that it will, because I am confident the High Court will pronounce it to be ultra vires. If, however, the contrary should prove to be the case, a deathblow will be dealt at the Federation. That would lead to the abolition of the Federation, or to unification, and I am not an advocate of either.
– -I have taken a deep interest in this question, because I feel that I shall be called upon to part company with some of those for whose opinions I have the greatest admiration and respect. I shall have to part company with the Prime Minister, than whom, I consider no man in this Parliament more truly represents national ideas and aspirations, not only in politics, but generally in regard to the Constitution. ‘ The matter to me, however, is one of conscience. I feel that it is necessary that I should satisfy myself as to our powers and duties as a Federation, and that having done this, I should have no hesitation in following the course which I deem to be right. We have to justifyto ourselves the position which we take up in regard to the question now before us, and I think that I can do this to the fullest extent. In the first place, I shall vote against the amendment in the form in which it has been presented by the honorable member for Wide Bay. It purports to embrace the whole of the public servants of the States and of the Commonwealth. I fail to see how it is possible for us, under the terms of the Constitution, to pass a Bill of this kind which would embrace the public servants connected with, say, the
Audit Department of the State of Queensland, or the Treasury Department of New South Wales. I attach great importance to the definition of the word “ industrial.” We are bound by the wording of the Constitution, according to which we can legislate only with regard to “ industrial “ disputes ; and I cannot see how Departments such as those I have mentioned could be deemed to be “ industrial.”
– Would the Patent Office be an industrial Department ?
– I would not express an opinion upon that matter. The Patent Department is not under the control of the States. Upon the question which the Prime Minister treats as vital, namely, whether we should bring any State servants within the scope of the Bill, I part company with him, and intend to support an extension of the provisions of the measure to the States railway servants. I shall do this upon two grounds. First, because I believe that it may be held to be constitutional; and, secondly, because I regard it as highly expedient. The Prime Minister, in dealing with the question of constitutionality, has laid too much emphasis upon sub-section xxxv. of section 51. He says that there is no reference whatever to the States- in the sub-section, and that therefore the States are not included within the scope of the powers to be exercised by the Federal authority in regard to conciliation and arbitration. He lays it down as a general rule for the interpretation of the Constitution that wherever a grant of power to the Federal Parliament contains no mention of the States they are not included within the scope of the powers conferred. With all deference to the Minister, I take a different view. I think that he overlooks the fact that the really vital sub-section bearing upon the matter with which we are now dealing is sub-section 1, relating to our power, to make laws with respect to “trade and commerce with other countries, and amongst the States.” This is amplified by section 98, which provides that -
The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.
The Prime Minister was eloquent when he pointed with great admiration to the American Constitution, and told us that our Federal Conventions had been largely influenced by American precedents. He informed us that these were followed in delegating to the Federal Parliament certain powers, and that we had in substance adopted the rules of interpretation which have for the past century been laid down by the United States Courts. I think he is right. I believe that where you purport to re-enact a statute which has been in force in another State, and adopt almost the identical words of the original, you incorporate in it all the rules of the interpretation given by the Courts in administering that statute. That is the rule adopted by the States, of the Empire when dealing with sections taken from the Imperial statutes. What has been the position of the United States as regards this one particular section to which I wish to direct attention for a while? The Prime Minister has told us how a provision, placed in a Constitution with the intention of meeting certain ends, may, after the lapse of years, when new conditions have arisen, lae dealt with in the light of the developments which have occurred, with the result that new meanings are imported into it, and wider applications given to it than were anticipated by the original framers. He could not have given -a better illustration than the trade and commerce provision in the Constitution of the United States. During the first sixty years of the history of the Union that provision did not come under notice more than twenty times. But since then there have been at least 200 decisions in regard to it by the Supreme Court of the United States. One text-writer has said-
This is a remarkable instance of a national power, which was comparatively unimportant for eighty years, and which, in the last thirty years, has been so developed that it lis now in its nationalizing tendency perhaps the most important and conspicuous power possessed by the Federal Government.
How has that come to be applied ? It is under that section of the American Constitution the words of which read as follow : -
The Congress shall have power to regulate commerce with foreign nations and among the several States and with the Indian tribes.
Underlying those simple words is a principle which has received the widest application. Included in it is the control of the railways.
– Has there been any attempt to interfere with wages?
– Yes ; as I shall presently show.
– But the United States railways are not State-owned railways.
– I shall answer that objection presently. The Congress, in 1888, relying upon the section I have quoted, passed an Act -
To create Boards of Arbitration or Commission for settling controversies and differences between railroad corporations and other common carriers engaged in Inter-State and territorial transportation of property or passengers and their employees.
This was the intention of that Act, as formulated in one section -
That whenever differences or controversies arise between railroad or other transportation companies engaged in the transportation of property or passengers between two or more States of the United States, between a Territory and a State, within the territories of the United States, or within the district of Columbia, and the employees of the said railroad companies, which differences or controversies may hinder, impede, obstruct, interrupt, or affect such transportation of property or passengers - certain action shall follow. Therefore, our power to regulate trade and commerce, which the Convention adopted from the Constitution of the United States, is a power to deal with railways generally. Let me first establish that proposition. Two sections of our Constitution deal with the regulation of railways; we have been dealing with one of them only. I wish to direct particular attention to this vital provision, because the control of the commerce of Australia is a national power which we must preserve to the Commonwealth. Anything which hinders or impedes the free carriage of passengers or of produce from one part of the Commonwealth to another is to be prevented, and this power to regulate trade and commerce is one which we as a national Parliament must regard as of national importance. The United States Congress in 1898 repealed the statute to which I have just referred, and passed another, an Act “ concerning carriers engaged in Inter-State commerce and their employees,” section 2 of which provides that -
Whenever a controversy concerning wages, hours of labour, or conditions of employment shall arise between a carrier, subject to this Act, and the employees of such carrier - the chairman of the Inter-State Commerce Commission and the Commissioner of Labour may mediate, and if they cannot effect conciliation or amelioration there is power to appoint arbitrators. The important point is that when the arbitrators have given a decision the award is absolutely binding upon the parties. The award has to be filed in the Clerk’s office of the Circuit Courts, and, once filed, it becomes the judgment of the Federal Court, and, as such, can be enforced against the parties.
– Does the Act relate to a railway which is wholly in one State?
– It relates to companies engaged in continuous transit, but it deals with the general question, the power to regulate Inter-State commerce. So far as the United States are concerned, it has been held that there is clearly invested in Congress power to legislate with respect to railway disputes extending beyond the area of one State. What is the provision in our Constitution? Apparently the members of the Convention wished to give to the Commonwealth all the powers which the section of the American Constitution to which I have referred gives to the Congress of the United States. They wished to give to this Parliament all the powers’ conveyed by the words they used. In the United States, Congress relies upon those words for its power to pass anti-trust laws, and I am sure that that is a power which this Parliament wishes to have. Our authority for it is the provision in the Constitution which confers upon us the power to regulate trade and commerce. The Prime Minister, in reply to the honorable and learned member for Corio, stated that this particular provision would not bind the States unless express mention was made of that intention. But in section 98 of the Constitution the railways of the States are expressly included.
– Hear, hear. That is mv point.
– That section provides that-
The power of the Parliament to make laws in respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.
– Only as regards InterState trade.
– The words used are -
To railways the property of any State.
– The provision affects only Inter-State rates.
– If in the United States there were a dispute affecting the railways in two of the States, Congress would have power to deal with it.
– How far can the award go? That is the point which touches the very substance of the Bill.
– The power of award goes with the power to interfere.
– There is no power to touch internal rates, so why should there be power to touch internal wages?
– My point is that those words include the railways of the States. The power to deal with trade and commerce includes the railways of the States, and we know that the provision in the Constitution of the United States has given Congress power to pass an Act of Conciliation and Arbitration applying to the railways. In my opinion the proper course to adopt in construing section 51/ is to add to the power under subsection 1. the power which is contained in paragraph xxxv. of section 51 of our Constitution we shall see that it confers upon Congress power to deal only with trade and commerce. There, the Parliament can adopt measures to prevent any obstacle being placed in the way of the free transit of goods, but our Constitution goes much further, and gives us power to legislate for all sorts of industrial disputes that may occur throughout the Commonwealth. It really amplifies instead of cutting down the power which is contained in sub-section 1. I submit, therefore, that, following the American Constitution, which, is our great exemplar, we clearly possess the power to deal with the States railways.
– Only as to Inter-State trade.
– That is my first proposition. Under our power to deal with trade and commerce, we have power to regulate the railways of the States. Consequently, if a railway dispute arises which extends beyond the limits of any one State the Commonwealth has power to deal with it. Let me examine the position which is taken up by the Prime Minister generally- His objection to this proposal practically rests upon four grounds. In the first place, he holds that the proposed amendment is contrary - he did not say to the “ spirit” of the Constitution, as the honorable member for Gippsland suggests - but to the general principle underlying’ the Federation. In other words, it is contrary to the distribution provided for in the Constitution, of the powers vested in the central and the States Governments. His second proposition, is that the States public servants are excluded from the operation of this Bill, because they are not specifically mentioned. His third objection is that there may be some sort of prerogative attaching to the servants of the Crown. This prerogative is an undefined one, which the Prime Minister will not touch. His fourth proposition is that the proposal is tantamount to the power of imposing taxation upon the States, and that, therefore, it is outside the limits of the Constitution. As to his first proposition, that the proposal is contrary to the spirit of the Constitution–
– Of course, I mean the power to tax the States means and instrumentalities.
– Exactly. But is the proposal contrary to the spirit of the Constitution? That Constitution provides for a distribution of power as between the central and provincial Governments. As has been laid down by many eminent authorities, each of these Governments within its own particular domain possesses sovereign powers. But what was the idea underlying the establishment of a Federation? It was that a large number of matters of Australian concern, many of which were previously dealt wilh by the States, should in future be dealt with by the Federal Parliament only.
– Those matters were expressly defined.
– They were expressed by implication in some cases.
– They were defined as the result of compromises in nearly every case.
– They were defined expressly or by implication. In the case of ex parte Siebold, which was decided in 1879, the Court laid it down that -
As a general rule, it is no doubt expedient and wise that the operations of the State and National Governments should, as far as practicable, be conducted separately, in order to avoid undue jealousies and jars and conflicts of jurisdiction and power. But there is no reason for laying this down as a rule, of universal application. It should never be made to override the plain and manifest dictates of the Constitution itself. We cannot yield to such a transcendental view of State sovereignty. The Constitution and laws of the United States are the supreme laws of the land, and to these every citizen of every State owes obedience, whether in his individual or official capacity.
I admit that that is the correct interpretation. The Prime Minister, however, by implication, imbues the advocates of socalled State rights with the belief that there is some transcendental power in those rights which overrides the provisions of the Constitution. After all, what is the meaning of this doctrine of State rights, about which the honorable member for Gippsland is so anxious? In the United States, a State right is generally accepted to be a right which belonged to a State at the time of the establishment of the Federation, and which it still retains. But many persons seem to think that a State right is a right which a State can claim to prevent the Commonwealth Parliament from exercising the powers which it undoubtedly possesses under the Constitution. They apparently imagine that they have merely to raise the cry of “ State rights,” and we must immediately stay our hands. Although the States have certain definite powers of sovereignty, the underlying principle of the Constitution is that, upon matters of general national concern, their interests are subordinate to those of the nation. What is the position for which we are fighting? It is quite possible that the whole trade and commerce of the Commonwealth may be dislocated by reason of a strike. That is a matter not merely of provincial, but of national interest. When the Victorian railway employes went out upon strike last year, although the dispute was one with which the State had power to deal, it seriously affected Australia as a whole. It interfered with the proper carriage of the mails of the Commonwealth. Where a dispute extends into two States of the union - a dispute with which neither of the States . concerned can deal with from its very nature, if it is to be dealt with satisfactorily, it must be dealt with by a national tribunal.
– Each State may deal with it within its own borders.
– But a dispute may arise as to how far each State should go. A democratic Government may be in power in one State and an aristocratic Administration in the other, or the two States may jointly refuse to come to any agreement with the other side, declaring that they will fight the trouble to the end. In the case of a great national emergency it may be utterly impossible to carry on the trade and commerce of Australia as a whole. Consequently we may require to have recourse - as was done in the United States in the case of in re Debs - to the Executive power.
– We possess that power.
– It is a power which is based upon the right of the national Government to keep open the highways of the country as a whole. It is quite possible that in the event of a dispute arising, such as the Victorian railway strike, which affected the trade and commerce of Australia, and the carriage of its mails, we might be able to step in; as the United States did, and say - “ We are going to exercise the inherent rights of the -nation as a whole.”
– How can we do that without an Arbitration . Bill ?
– It can be done. Let me quote a decision on the point. In re Debs the learned Judge said -
If the emergency arises, the army of the nation and all its militia are at the service of the nation to compel obedience to its laws.
Prentice and Egan, in The Commerce Clause of the Federal Constitution, state that -
Most cases in which this power has been considered have involved the constitutionality of State statutes. The Federal power is not limited, however, to a control of the State, but extends to the removal of any obstruction in the way of the freedom of Inter-State commerce and the execution of Federal laws.
In the judgment the learned Judge himself referred to the fact that the Federation had the power to control the States, and to prevent them from obstructing .commerce. And if they have that right over the States a fortiori, they have the same right over a voluntary association, such as a body of men on strike, and interfering with trade and commerce as a whole. The point which I wish to emphasize is that, in certain conditions which might arise in the Commonwealth, the States, in the interest of the nation as a whole, would have to be subordinated, and the Commonwealth would have to exercise its powers on behalf of the nation. The principle, therefore, is that there are two sovereignties, but that in many ways there is Federal - restraint over State action. There is, for instance, a restraint placed upon State action, both from a legislative and executive point of view in regard to coinage, interference with trade and commerce, and other different matters. There is this restraint, not only upon the State in its legislative powers, but upon the corporate powers of a State in the exercise of its own particular laws. The Prime Minister’s proposition, therefore, is not one which is applicable to the present position. What is his second point? It relates purely to the rules for the construction of a statute. The Prime Minister says that because the word “ State “ is not used in the sub-section in question, the State is not bound.
– I contend that it would have been provided for in express words if it had been intended.
– The rule of interpretation, which, I submit, is the correct one, has been clearly defined by the learned annotators Quick and Garran. In dealing with the meaning of the words “ other than
State banking,” which occur in sub-section xiii. of section 51, they lay down the rule of interpretation, and quote as an authority the case of Rhode Island v. Massachusetts. The principle laid down is that according to the rule of interpretation in the United States, wherever there is a general grant of power without any exemptions in the Constitution of the United States, it is deemed to have conferred upon Congress the right to exercise to the full extent the powers conferred upon it.
Where no exception is made in terms, none will be made by mere implication or construction.
The annotators mention that the words “ other than State banking “ were inserted in sub-section xiii., so as to exclude the general rule of interpretation ; that had it not been for the insertion of those words the general rule would have operated. That, I submit, is the correct rule of interpretation, and- if we apply the Prime Minister’s argument to other sub-sections, it will be found that it is not a good one. Let us refer to sub-section XXXII. of section 51, which provides that the Parliament of the Commonwealth shall have power to make laws for - the control of railways with respect to transport for the naval and military purposes of the Commonwealth.
In that sub-section the States are not mentioned.
– There are no other railways.
– There are private railways in Queensland, and. they may. be built in the other States of the Union. The question at issue is not whether there are such railways, but the correctness of the rule of construction put forward by the honorable and learned gentleman.
– The sub-section does not provide for the taking over of the control of the railways.
– According to the honorable gentleman’s rule of construction, the States are hot bound by this sub-section, inasmuch as there is no mention of a State in it. That is the honorable and learned gentleman’s argument.
– On the whole.
– If the rule of construction does not apply in one instance its value as a general rule disappears. Notwithstanding that the States are not mentioned in the sub-section to which I have just referred, we find that in section 65, and other sections of the Defence Act, the Federal Parliament has dealt very fully with the control of States railways for the purpose of carrying the troops of the Commonwealth. What, then, is the value of a rule as one of general construction if as soon as one applies it to a certain provision in the Constitution he finds that it breaks down ?
– There are practically -no railways in the Commonwealth save those owned by the States.
– The question at issue is the rule of construction. It is open to Victoria to dispose of all her railways to privateindividuals or corporations. In that event the4 power of the Constitution would still apply. Does the honorable and learned gentleman contend that this power relating to Defence deals only with States railways ?
– Then it has a general application, and the Prime Minister’s rule does not apply.
– Does the honorable and learned member think that sub-section
– I am pointing out that in interpreting powers which are provided for in the Constitution where a general rule has been put forward, and that rule breaks down on being applied to one of the powers under section 51, the conclusion must be that it is not a valid rule.
– I did not admit that. I pointed out that there were several cases in which apparently the rule would not apply ; but that it was of value when taken as a general rule with the restrictions and explanations which I mentioned.
– The honorable and learned gentleman contends that the rule laid down by him is a good one when it suits his own particular argument ; but it is not a rule which would guide a Court. The general rule laid down by Quick and Garran is that wherever there is a general power conferred On the Commonwealth that power is intended to be exercised to the fullest extent, unless there is any exception made. A further argument was put forward by the Prime Minister with regard to the prerogative of the Crown. As he himself admits he attaches no value to the particular instance referred to by him.
– I hold that it has a value if we take the doctrine as it stands, but I do not think it can be applied here.
– I have endeavoured to find out what are the doctrines as to the prerogative of the Crown. There is no prerogative with respect to the servants of the Crown generally. It extends to particular cases, giving the servants freedom, from arrest and certain immunities ; but there is no general prerogative of the Crowns which applies to the whole of the servantsthroughout the States. I have made a. search in several text-books, but I have not: found any such prerogative.
– We cannot bind theCrown
– The Crown cannot bebound unless it consents. If it is a prerogative of the Crown, then, according to> Canadian decisions, the Crown can give it up; but it can do so only bv assenting to> a Bill in which the Crown is mentioned. We can make this provision in the Bill, and! if the Crown opposes it because of the prerogative, it can refuse its assent to the Bill on that ground.
– The honorable and learned? member does not say that the giving of the Royal assent to the Bill gives up the prerogative of the Crown?
– Where the statute expressly binds the Crown.
– That is a different thing.
– That is what is proposed? here, and therefore I think it is right that the provision should be inserted as a safeguard.
– That does not meet thedifficulty, because we have to go beyond that and see if the Crown is bound by the Constitution.
– In Canada it has been held that the Crown can surrender its prerogative.
– That is another thing.
– The two Constitutionsare analogous.
– It was struck out of ours.
– We put in the words, “This Act shall bind the Crown,’” and they were struck out. If under our legislative authority we can deal with certains matters affecting the royal prerogative, the Crown can assent to the Bill. If it i& desired to deprive the Crown of any prerogative the only way by which it can bedone is by passing a distinct Bill.
– To which it can assent.
– The Bill will not be oF any force until it is assented to by the Crown.
– Has it been done in the Constitution by express words?
– Under the Constitution, we’ have the power to deal with certain subjects which are defined. In the Constitution of Canada similar provisions are contained, and it has been held there that, if the Parliament passes a Bill dealing with a royal prerogative, the Crown can assent to that Bill and lose its prerogative by that means. That is laid down in Lefroy.
– If it is within the Federal power.
– That is the very point. Suppose that there is a prerogative attaching to the servants of the Crown, our contention is that the legislative power does include servants. Can it be contended that we have no power to bind any of the public servants of the Commonwealth, because the Crown is not mentioned in the Constitution ?
– The honorable and learned member does not argue that we can create the power by putting in these words? -
– Certainly not.
– No one disputes the other portion.
– I am glad to hear that the honorable and learned member agrees that there is no dispute about the other portion, but the Prime Minister has suggested that other people do not agree.
– I did not understand that.
– Only as to that point.
– Yes. The question of the power of taxation is, I presume, purely a question of analogy. The power to tax certainly contains the power to destroy. Where a large number of public servants are seriously affected by a taxation measure, the power to tax may practically destroy the Federal or State agency. By that- means the instrumentality or agency could be destroyed. But this power is not to my mind at all equivalent to taxation. The result might be that the States would have to impose taxation. But we have power to regulate trade and commerce generally, and to deal with navigation generally. Surely these are matters in which the States are concerned.
– The States are not expressly mentioned as regards navigation. We may impose heavy navigation charges. Suppose that Queensland started to run a shipping company, and extended its operations to the other States of the Union, because it had to pay increased charges, would that render the measure imposing them un- constitutional? Because the State is 2 n not mentioned in that section of the Constitution, would all its ships be exempted ? Could Queensland send out ships in an unseaworthy condition ? Could it set aside all regulations as regards payment of wages in various ports? .
– I do not know that it could not.
– That is an extraordinary limitation of our powers under the Constitution. I submit that it could not. The States generally are bound by the provisions. Yet we, by our legislation dealing with trade and commerce, may lay certain charges on the States.
– Which we are expressly authorized to do within certain well-defined limits.
– Quite so. The test of the principle, which the honorable and learned gentleman lays down, is that, if a statute causes a State to raise more revenue the statute is unconstitutional, because it contains an exercise of the power to tax.
– No; I did not go so far.
– I am glad to see that we are gradually narrowing down the issue to a smaller and smaller scope. It seems to me that the exemption of the States cannot be based on these propositions at all. The last proposition - which has not been mentioned by the Prime Minister, . but which has been raised by several honorable members - is what is the value of the power? It is said that the amendment is unconstitutional, because we could not enforce the award of the Court. How can we enforce our remedies against the States? In the Constitution we have power to deal with actions against the States. Under secion 78 we may make laws - conferring rights to proceed against the Commonwealth or a State in respect of mailers within the limits of the judicial power.
In the Judiciary Act we have given to the High Court the express power of issuing injunctions against a State. It provides that the Treasurer of a State shall pay out of the consolidated revenue, on the production of a certificate, the amount of the judgment of the High Court.
– Do we not stop short of that ?
– No; section 66 says -
On receipt of the certificate of a judgment against the Commonwealth or a State, the Treasurer of the Commonwealth or of the State, as the case may be, shall satisfy the judgment out of moneys legally available.
– How can the Court compel him to pay ?
– Suppose that he does not ?
– If every State in. the Union but one is prepared to obey the Constitution, and that State is only going to obey so much of the Constitution as may suit itself, it will bring about a social revolution, and we shall have to call out the powers which we, as a nation, possess to deal with the matter.
– That is evading the issue.
– It is not. If the Treasurer of a State refused to do his duty, to satisfy the judgment of the Court, he would practically be guilty of treason to the Commonwealth.
– But if a private individual refused to pav ?
– He could be forced to pay. We have the power to issue an injunction against a State.
– Otherwise a State could say that it did not belong to the Federation.
– Practically it would be the secession movement in a new form. I do not believe that any responsible Minister in a State would refuse to be bound by the decision of a properly constituted, tribunal. I believe that every Minister would submit loyally- and faithfully to the Court’s decision. Every State has proved itself to be a law-abiding community, and I have every confidence that that spirit will continue.
– The Privy Council recently discounted any such argument. They said that if a judgment were given against a State they would assume that Parliament would provide the money.
– Exactly. There is now only the question of expediency to deal with. I feel that it is a right and. proper thing that the Commonwealth should at all times preserve its control over the trade and commerce of the community. Strikes are things which at times happen most unexpectedly. Perhaps the stupidity of a State Minister, or the obstinacy of a trade union executive, may be the means of causing the whole commerce’ of a community to be thrown into confusion. It would be a lamentable thing if we had repeated in the Commonwealth that which occurred recently in Victoria.
– This would- not stop it.
– If it extended beyond a State it would. If the whole of the farmers and other residents in the interior are to be placed at the mercy of a strike executive. or of a Minister, who may cause trouble at a moment’s notice, they will be in a precarious situation. They are justified in saying - “ If you are going to introduce a measure which purports to deal with the peace, welfare, and good government of the community as a whole, we demand that you should preserve, to us the highways.” For after all, what are the highways of the Commonwealth? It is,’ along these that the life-blood of the nation flows.- A citizen’s right to go over the whole of the Commonwealth depends upon his ability to travel on the highways. It is absolutely of vital importance to every citizen of the Commonwealth that he shall have the right of travelling freely along these highways of commerce, and be able to send the product of his industry along them. The railways are the only means by which the people in the interior can get their produce to the various centres; and I say that as a matter of vital importance to them, and as a matter of expediency, the railway, servants should be included in the provisions of this Bill, so as to prevent obstructions to commerce.
– I am sorry that I have the misfortune to differ from my honorable and learned friend, the member for Darling Downs, in the main drift of his argument on this important question. It will be very unpleasant for us to have to part company in the coming critical division. But, at the same time, I am bound to say for my part, as he has said for his, that I shall have to vote against this amendment, not only on conscientious grounds, but also legal and constitutional grounds. I certainly agree with mv honorable and learned friend that we ought to take the responsibility of our views, however disagreeable may be the consequences. The honorable and learned member, in the course of his speech, has broken fresh ground which is certainly entitled to consideration. There is an aspect of novelty in his suggestion that the Federal Parliament has. under the trade and commerce sections, jurisdiction to deal with industrial disputes upon Inter-State railways. I never suspected that such a power was to be found in the sections of the Constitution relating to trade and commerce, and I venture to say that on a careful analysis, examination, and scrutiny, it will be found that no such power does’ exist. If anything, I believe that the trade and commerce power of the Federal Parliament, under sub- section i of section 5r, has been cut down in our Constitution to much smaller dimensions than exist in the trade and commerce section of the United States Constitution. Because, in our Constitution, there are a large number of special sections which have been inserted especially, to deal with special matters; and every special section which has been put in, to the extent fro rata that that section goes, tends to cut clown the trade and commerce power. For instance, we have certain sections dealing with the railways. No railway can be constructed in a State without the consent of the State. Under the unlimited and unqualified trade and commerce power of the United States Constitution, it has been held that the Federal Parliament there can construct Inter-State railways, or authorize their construction, without the consent of the States affected. So that these special sections tend rather to cut down the delimitation of the trade and commerce power. In the same way also, the section which my honorable and learned friend has referred to, whilst it apparently extends the trade and commerce power to railways, is- practically a limitation, whan compared with this special sub-section xxxv. of section 51, relating to conciliation and arbitration. Therefore, the inference is, that the trade and commerce power vested in the Federal Parliament by the Constitution relates purely to the interchange of Inter-State goods, and also to trade and commerce beyond the Commonwealth. Therefore, also, it cannot possibly be construed to mean and to include the power to deal with industrial matters which are covered by another section. I apprehend, consequently, that section 98 should be construed to mean that power is given to the Federal Parliament to promote InterState commerce, and to abolish obstructions, or to minimize possible restrictions ; but, certainly, it cannot be extended to the wide sense of interference with State institutions, such as State railways. That section was inserted on the motion of the leader of the Convention, upon a doubt which was previously expressed, and which was entertained by the drafting committee, that the trade and commerce power contemplated by sub-section 1, was not wide enough to extend to State railways. It was put in solely and exclusively for the purpose of enabling the Federal Parliament to facilitate Inter-State trade and commerce, and to remove obstructions, or rather to strengthen the power to prohibit discriminations and preferences, which tended to in- 2 n 2 terfere with the free flow of trade and commerce between the States. It is a startling proposition to hear it suggested that the trade and commerce power is to be utilized to deal with industrial disputes for which other provision is made in special sections of the Act. I think it will be found on consideration that we shall have to rely solely and exclusively on the special sub-section for dealing with industrial disputes. And if the power contended for is not to be found there, I venture to predict that it will not be found in any other part of the Constitution. I should like to say this : that I view this Bill from a sympathetic attitude. I do not view it from the point of view of any desire to defeat it, or any desire to prevent the free operation of the power granted by the Constitution. I was a party to the granting of the power in the Constitution, and I should be very sorry indeed to cast any reflection upon the grant, or to impede its free, fair, and fullest operation. Therefore, I approach this question not so much from the standpoint of expediency, or the desirability of bringing it into operation, but from the standpoint of whether we have the power under this sub-section to extend the jurisdiction of the Conciliation and Arbitration Court to disputes in which public servantsare involved. For my part, I strongly believe - and I do not entertain any reasonable doubt upon the point - that thissubsection does not extend, and was never intended to extend, to publicservants and others employed- in StatesDepartments, railways or otherwise. I believe that it was intended tooperate solely and exclusively upon private individuals and private corporations,, and that it was not intended by the Convention to extend to State institutions or State agencies or instrumentalities. I believe that if any such idea had been suggested in the Convention it would have been scouted. The sub-section was passed by a Convention where the States rights party was strongly represented. It was supported by a large number of the representatives of smaller States solely on the ground that it would be advisable to put in the four corners of the Constitution some provision to prevent any such industrial disputes, or such calamitous troubles, as had previously taken place, and were then within the mind and contemplation of the Convention - such as the maritime strike, or the shearers’ strike, and other disputes between employers and employed, which it was desirable to prevent and suppress if possible. But it was never suspected, and certainly not intended, that this power should extend to State agencies. Such a suggestion would have been contrary . to the resolution upon which the Constitution was founded. The resolution upon which the Constitution was founded expressed the view that - the powers, privileges, and territories of the several existing Colonies shall remain intact, except, in so far as they were expressly surrendered to the central Government, in matters which demanded or justified uniformity of law and administration, and in matters of common interest. It was never intended to be an invasion of the States Government Departments. It is quite true that the Constitution has taken from the States Parliaments a large number of their powers, and a number of their legislative functions, so far as powers and functions relating to private individuals are concerned. But, with reference to industrial matters, it was never intended, and it could not be contended in a court of law with any hope of success, that sub-section xxxv. was intended to withdraw from the States Governments and States Parliaments the control of their own governing agencies. I should like to present the case from two points of view, or to summarize the arguments under two headings. First, I submit that sub-section xxxv., which reads -
Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond Hie limits of any one State - does not, on its face, or by any reasonable intendment, cannot be said to extend to the King’s Government in the States. That leads me to the argument which I was very sorry to hear the Attorney-General somewhat minimize - the argument that this section does not bind the Crown. There is a great deal of force in the contention that this section does not bind the Crown as a constituent part of the States Governments. I cannot be denied that the Queen, at the time the Constitution was passed - and the King now - forms an important feature, as well as an active part and principle in States Governments, both in matters of administration and matters of legislation. The King is the head of the Executive, and one of the partners in the legislative organization. When we use the word “ prerogative,” it should not be in the limited technical sense which is sometimes implied, namely, as some ancient right of the Crown relating to its own dignity. The argument could, and ought to be applied in the wider sense, that where we find the Crown or King in possession of either common law powers or statutory powers granted by Imperial Act, those powers are generally granted to be exercised by the Crown, or its representative, as the trustee for the people - not for any particular advantage, honour, or glory of the Crown, but in the interests of the people as part of the general organization of the States or the Federal Government. I submit that the ancient maxim that the Crown cannot be bound in an Act of Parliament, except expressly named or by reasonable intendment, applies with great force to subsection xxxv. Before Federation the Colonies were governed by various Constitutions granted under Imperial Acts, and in each of the States there .was the Government of the Crown. The Queen was head ; the Crown was not merely the ornamental head, but the trustee, so to speak, for the newlyformed communities, and certain powers were vested in the Crown. What has been the effect of the Federal Constitution Act? The effect of this Act has not been in any way to deprive the States of their governing machinery or to destroy the States as branches of the King’s Government. The States remain as branches of the King’s Government on a par, and fart passu, with the branch of the King’s Government as represented by the Commonwealth. The States Governments and the Commonwealth Government form parts of a dual system, under which the whole of the people of Australia are now governed. There is no badge of inferiority to be attached to the King’s Government in a State, as compared with the King’s Government in the Commonwealth. It is not necessary, in order to sustain an argument of this kind, to go to America or any other part of the world, because we find that very recently the Full Court of New South Wales has had occasion to consider this branch of the subject. The case was that of The Attorney-General of New South Wales versus The Collector of Customs, and is reported in the 9th Argus Law Reports, Current Notes, page 22. It was affirmed in the case that no distinction can be drawn between the rights and prerogatives of the Crown in respect of its Imperial rights, and the rights and prerogatives of the Crown with respect to, and in operation in, the Colonies. The point involved in the case is very interesting and important, and, apart from its specific effects, it may be utilized to illustrate certain points which have been raised in connexion with this discussion. This was an action by the Attorney-General of New South Wales to recover from the Federal Government certain Customs duties, amounting to £600 or £700, which had been paid in respect of importations of railway material, the property of the State of New South Wales. The Government of New South Wales sued to recover this money on the ground that it had been improperly levied. The plaintiff’s case rested on two grounds; first, on the ground of the prerogative, that this material being Crown property, was therefore exempt from taxation ; and, secondly, on the ground that it was specially exempt by section 114 of the Constitution. While the Acting Chief Justice held that this material, as railway material, was liable to taxation and was not exempt by section 114, he went on to take the ground that inasmuch as the Crown was not mentioned in the Customs Tariff Act as intended to be bound and made liable for taxation of its property, therefore this property was exempt - it. was exempt because the Crown was not named in the Federal Customs Act.
– That is a statute which was passed by the Commonwealth Parliament.
– The majority of the Court, however, went further, and dealt with the case on a much wider basis. Mr. Justice Owen and Mr. Justice Pring both decided that in their opinion these were State imports, and, being the property of the Crown, were exempt from taxation, firstly by section 114 of the Constitution, and secondly on the common law ground that there was nothing in the Constitution to show that it was intended by the Imperial Parliament, when it passed the Constitution, to abate or surrender the prerogative rights of the Crown.
– The Prime Minister is going to appeal against that judgment.
– The observations made by Mr. Justice Owen and Mr. Justice Pring are very interesting, and I think thev will help us. Mr. Justice Owen said : -
The case for the plaintiff was presented from two points of view - first, the Crown’s prerogative ; second, the construction ‘ of sec. ir4 of the Constitution Act. . . . The King is the head of the Commonwealth and of each State, and the revenues of the Commonwealth and of each State are raised by Parliament as a grant to the King at- the King’s request, and are ap propriated by Parliament to the several services of the King in the Commonwealth and in the States respectively. . . . The prerogative of the King, when it has not been expressly limited by local law or statute, is as extensive in His Majesty’s colonial possessions as in Great Britain.
Mr. Justice Pring in his judgment draws a very interesting comparison, remarkably accurate and vivid, between the position of the Colonies as self-governing communities before the passing of the Federal Constitution, and the position of those Colonies when they became States under the Constitution. I hope honorable members will bear with me while I read Mr. Justice Pring’s remarks -
I think it may be useful to consider the position of the Australian Colonies before the advent of Federation. Before that event, each one of the Colonies was autonomous. Each had its Constitution granted by the Sovereign of England, and was entitled under that Constitution to regulate its own domestic concerns, and to pass its own laws, subject only to the veto of the Imperial Government. Each was a dependency of the British Crown. And the Government in each case was the Government of the British Sovereign. . . . Such being the state of things until the passing of the Commonwealth Constitution Act, I proceed next to inquire how far that Act affected the status of the Colonies, or States, as they became after Federation. Now, I find nothing in the Act which reduces the Government of the States from their former position as branches of the Queen’s Government.
That is a most significant pronouncement of opinion by one of the Judges of the Full Court in New South Wales - that there is nothing in the Act which in any way impairs, prejudices, or diminishes the position of the Governments of the States as branches of the King’s Government. It must be plain that, if this amendment is carried, the position of the States Governments’ as branches of the King’s Government will be seriously impaired ; because, if the argument be correct, their financial and administrative control of their public departments will be seriously invaded, if not entirely taken away. Quoting Lord Watson, in a Privy Council case, the learned Judge said -
The object of the Act was neither to weld the provinces into one, nor to subordinate provincial Governments to a central authority.
He said, further, that -
The Commonwealth Act did not destroy the autonomy of the Colonies, nor did it affect the Queen’s Government as carried on in those Colonies. ‘ It merely provided a new branch of the Queen’s Government for the purpose of administering certain matters of common interest to all the Colonies.
There is an interpretation of our Constitution by a Judge of the Supreme Court cf
New South Wales, on another branch of the Constitution, it is true, but laying down the general principle that the King’s Go*vernment in -the States was not intended to be prejudiced or in any way impaired by any of the grants of power within the four corners of the Constitution. Accordingly he held that, even though the contention of the Federal Government were correct, viz., that goods imported by a State were not “ property “ exempted from Federal taxation by section 114 of the Constitution ; yet according to the argument based on prerogative alone, apart from section 114 of the Constitution, State goods were exempt from Federal interference, and from Federal taxation. I contend that, if that be so, much more, therefore, are the States Departments of States Governments free from Federal interference and Federal regulation. The same principle will apply to them with irresistible force. It has been contended by the leader of the Labour Party, in several of his arguments, and with an ability and ingenuity one cannot help admiring, that, in one or two sections of the Constitution, such as “ banking, other than State banking,” “insurance, other than State insurance,” the States are specially excepted, and the honorable member wishes us to believe that, wherever there is no express exception of the State, the ‘State is bound. Probably, without an acquaintance with the principles of statutory interpretation, according to British methods, one would think there was some force in that contention. My honorable arid learned friend, the member for Darling Downs, has this evening given great prominence to that argument, and has sanctioned it. But surely the honorable and learned member must see that he has ignored the decisions of the English Courts, and also the decision of the Full Court of New South Wales in the import duty case, where it was held that, even although State imports, goods, wares, and merchandise imported by the State were not property within the exemption of the Constitution^ they would otherwise be exempt, unless specially named as liable to taxation.
– Does the honorable and learned member agree with that decision?
– The honorable and learned member must see that in the New South Wales case, counsel quoted, and their Honours in their judgment quoted, the well-known case of Weymouth v. Nugent, 34 L.J.M.C. 81, which, toy the way, is quoted also in the Annotated Constitution of the Australian Commonwealth, from which the honorable and learned member did Mr. Garran and myself the honour to quote. This is mentioned for the purpose of showing that in all the statutory enactments the Crown is never bound in respect of its property, power, or prerogative, unless specially mentioned. One or two exceptions or exemptions in. ah Act of Parliament ought not to lead to the inference that things which are not exempted or excepted are withdrawn from the domain of the rights of the Crown. The rule is that the exemption or exception of the Crown in one section of an Act, or in one part of a section, does not imply that the Crown is bound by other sections of the Act, or by other parts of the section, where it is not named. In one case - the Weymouth case I mentioned - an Imperial Act imposed wharfage dues on certain articles, including stones. It did not bind the Crown to pay such dues, but it exempted it from liability in respect of coals imported for the use of the Royal packets. There is a special exemption.’ In the same way as under our Constitution, State banking and State insurance is excepted, coals were excepted. The harbor authorities desired to levy dues upon other articles . imported by the Crown, and they said - “ Seeing that you are only exempted from paying dues upon coals, you are therefore liable to pay dues on everything else you import.” The Court refused to infer from the specific exemption an intention to charge the Crown in respect of any other goods . That decision was adopted without question by the Full Court of New South Wales, in the case of The Attorney-General of that State v. The Collector of Customs, and it affords an obvious reply to the contentions regarding special exemptions of the Crown, because it shows that any special exemption, or several exemptions, are not sufficient to support the argument that in other matters -the Crown is bound. Therefore, I contend that the fact that the Crown is not. mentioned in sub-section xxxv. leads us to the obvious inference that the Crown Departments in the States are not intended to be bound. I submit that that was the intention of the framers of the Constitution,- and that that was the plan on which the Constitution was built, namely, that the King’s Government, in the various States at the time of the passing of the Federal Constitution, was not to be prejudiced or hampered or in any way interfered with except to the’ extent that is expressly indicated on the face’ of the Constitution. If that were not a sound principle of interpretation, this section was a veritable trap, which led thousands of persons to vote for the Constitution, under the belief that it was not intended to prejudice the rights of the States. How would the Constitution have fared in Tasmania, Western Australia, or South Australia ?
An Honorable Member. - Or even in New South Wales.
– New South Wales, as a predominant partner, might have been only too glad to grant increased power to the Federation.
An Honorable Member. - The Constitution would not have been approved in New South Wales if larger powers had been sought.
– The Constitution would not have been accepted in the States I have named, if it had been thought that a Parliament, sitting in Melbourne, would te clothed with authority to constitute a tribunal, which would have the power to dictate the terms on which the railways cf Western Australia, Tasmania, or South Australia were to be managed. South Australia was strongly in favour of preserving State rights, and was one of the” strongest advocates of equal representation of the States in the Senate. In fact, all the smaller States were very careful to see that nothing affecting the autonomy of the States was inserted in the Constitution.
Mr- Robinson. - The honorable member for Boothby stated on the public platform that the Constitution invaded States rights I too much. , I
– What would he have said if it had been understood that a Parliament, consisting for the larger part of representatives from New South Wales and Victoria, was to have a voice in the management of the railways of the other States ? I hope that it will not be suggested that in the attitude which I am assuming upon this constitutional question I am wanting in sympathy for the public servants in respect of their reasonable aspirations. I have never voted for any legislation tending to harass public .servants. I have always considered that they should be treated liberally, and paid well for their work, and my present attitude is not due to the belief that they are without grievances, because I believe that they have serious causes of complaint. In this case, however, we have to admmis ten the Constitution and to harmonize conflicting rights; to reconcile the claims put forward by the Federal Parliament on the one hand, and the rights contended for by the States. Governments on the other. It is not merely a question of justice, but one of legality. As has been stated, the Federal system is essentially based on legalism. We should be guided by the legal distribution of power, and should not attempt to exercise authority simply because we desire to redress a grievance. That is not the proper test. The question is whether we have the power. We should not brandish a weapon before the eyes of the States Governments, or take up a menacing attitude towards them in matters which come within their jurisdiction, with the idea of doing
I something which we think ought to be done.
I That is the first ground on which I venture to argue that the amendment should not be adopted. It would entail an invasion of the prerogative rights of the Crown which is not mentioned in the sub-section relating to the powers to be exercised by the Federal Government in regard to conciliation and arbitration. The next argument which I desire to advance is one based upon the Federal rule of construction. It is a familiar rule of construction of the Constitution of a Federation that the sovereign powers vested in the States Governments by the respective Constitutions remain unaltered and unimpaired, except so far as they are granted to the Federal Government. A clause to that effect was not originally inserted in the United States Constitution, but by the tenth amendment provision was made in order to remove all doubt. The Government of the Union, therefore, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly- given, or are given by necessary implication. I would remind honorable members of the provision in the tenth amendment of the Constitution of the United States, to the effect that the powers not granted to the United States by the Constitution, nor prohibited, by it to the States, are reserved to the States or to the people. A similar provision is to be found in the Constitution of Switzerland, where the Cantons are sovereign, so far as their sovereignty is not limited by the Federal Constitution, and where, as such, they exercise all the rights which are not delegated to the Federal Government. The Commonwealth Constitution contains a somewhat similar provision. Section 107 provides that every power of a State Parliament shall, unless it is by the Constitution exclusively vested in the Parliament of the Commonwealth, or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth. I shall later on direct attention to States Constitutions, and show that their control over their Departments remains unaltered and unimpaired. I wish to refer to an appropriate illustration of the Federal rule of construction given by the Prime Minister. He quoted from the decision in the case of Collector v. Day, ii Wall, 113, as follows: -
In respect to the reserved powers, the State is as sovereign and independent as the general Government. The means and instrumentalities employed by the general Government to carry into operation the powers granted to it are, necessarily, and for the sake of self-preservation, exempt from taxation by the States. So also are those of the States, depending upon their reserved powers, for like reasons, equally exempt from Federal taxation. ‘
I do not wish to quote any more American precedents, because they have been adequately and exhaustively dealt with by the Prime Minister, but I should like to direct attention to a Canadian case which came before the Privy Council, namely, that of the Maritime Bank of Canada v. ReceiverGeneral of New Brunswick. In that case Lord Watson said -
The object of the Federation Act was neither to weld the provinces into one, nor subordinate provincial Governments to a central authority, ‘ but to create a Federal Government in which they shall be represented, intrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy.
Mr. Justice Owen, referring to this decision in connexion with the case in the Full Court of New South Wales, to which I have referred, uttered the following pregnant sentence : -
This independence and autonomy of the States applies with greater force to the Constitution of the Commonwealth, for by it the States retain all the powers not taken from them and conferred on the Commonwealth, whereas in Canada the Dominion Parliament has a general power of legislation, and the Provinces receive only such powers as are reserved to them by the Constitution Act.
That is a most important interpretation of our Constitution, by a calm and impartial judicial authority, which ought, I think, to have great weight with this Parliament. As I read the Constitution, the governing organizations and Departments of the States are not affected by it unless they are expressly named. Certain Departments of the old Colonies, now States - such as the Departments of Customs and Excise, of Defence, and of Post and Telegraphs - have been taken away from State jurisdiction, and are now vested exclusively in the Federal Government. The other Departments remain intact, unaltered, and unimpaired. True, some of the powers of the States are gone, but the power of organizing and working these Departments remains intact. So far as I can gather from a searching investigation of the Constitution, the Railway Department is the only Stategoverning agency or authority which has been expressly interfered with by the Constitution. A State may still construct, use, and control its railways, subject to certain constitutional limitations which appear on the face of the governing instrument. The first of these limitations is that under paragraph xxxii. of section 51 the railways are subject to Federal control, “ with respect to transport for the naval and military purposes of the Commonwealth.” It may be asked why were those words placed in the Constitution since the control of the Department of Defence is vested exclusively in the Federal Government. They were placed there only for an “ abundance of caution,” which is the term used by Judges in interpreting special words placed in an Act of Parliament, excepting the Crown, or rendering the Crown or its Departments liable to certain interference. Those words were evidently placed in the Constitution for explanatory purposes, to make it absolutely clear that for the purposes of defence the Federal Government would have limited control of the railways. That limitation appears on the face of the Constitution, and was part of the Federal bargain. When the States entered into the Federal partnership they knew that they were surrendering the control of their railways, so far as purposes of defence were concerned. Then the control of the railways by the States is subject to the rule that the .States may be forbidden to make preferences or discriminations which ‘ in the judgment of the Inter-State Commission are undue and unfavorable That is an express limitation, and was part of the Federal bargain. The third qualification of State control of the railways is that it is subject to Parliament making laws relating to railways, so far as they affect InterState commerce. That, again, is an express limitation which appears on the face of the instrument. If it be asked why was the provision placed in the Constitution, my reply is that it was placed there merely to remove all doubts upon the subject. May I invite the attention of honorable members to the report of the debates which took place in the Convention during the Melbourne session, when clause 98 of the draft Constitution was introduced? Sir Edmund Barton is reported on page 2390, vol. 2, of the official record to have said -
This clause is simply for the purpose of removing a doubt as to whether the powers of the Parliament extend to State-owned railways.
And, again, in the same speech he said -
The object of my present proposal is to remove a doubt as to whether the Commonwealth would have power to regulate trade and commerce on State-owned railways.
The Convention inserted that provision to remove all doubt, and I ask why, if it were intended to give Parliament power to deal with industrial disputes affecting State railways, it was not expressly so stated in paragraph xxxv. of clause 51 of the Constitution? It has not been so stated, and the absence of words setting out specifically that the intention was to embrace State railways or State Departments of any kind, negatives all reasonable presumption that power over State Departments is implied. I should like to refer to, and to confirm, the argument used by the honorable and learned member for Angas in his very interesting and able speech, wherein he submitted that the laws of the Federal Parliament were intended to operate on individuals and not on the States. In support of that contention I quote the words of the Supreme Court of the United States in Hylton versus the United States, 3 Dallas. 171. That case was decided in 1796, and the following words occurred in the judgment : -
The present Constitution was particularly intended to affect individuals and not States , except in particular cases specified, and this is the leading distinction between the Articles of Confederation and the present Constitution.
In support of my contention I should like also to refer to the debates in the American Federal Convention which drafted the United States Constitution, and in which reference is made to the same question. They are reported in Bancroft’s History of the Constitution of the United States, vol. 2, page 19. There it is. stated -
Lastly, the Virginia plan authorized the exercise of the force of the whole nation against a delinquent State. Madison accepting the argument of Mason, expressed a doubt of the practicability, the justice, and the equity, of applying force to a collective people. “To use force against a State,” he said, “ is more like a declara tion of war than an .infliction of punishment, and would be considered by the party attacked a dissolution of all previous contracts.” I, therefore, hope that a national system, with full power to deal directly with individuals, will be framed, and the resource thus be rendered unnecessary.
In another passage, which is reported on page 15, Mason argued that -
In the nature of things punishment cannot be executed on the States collectively. Therefore, such a Federal Government is necessary as can operate directly on individuals.
I contend, therefore, that all the laws of this Parliament can only operate directly on individuals. It is true that the States are bound by the Constitution, and only by the Constitution.
– But suppose that the States Governments refused to carry the Commonwealth mails ?
– In that case, special power is given to this Parliament to pass Federal laws dealing with the question. That power appears expressly on the face of the instrument. I refer to the power to deal with railway rates for the purpose of regulating Inter-State trade and commerce, of which postal communication forms a part. The Constitution confers on the Commonwealth express power, by the exercise of which, in the direction of special legislation, it can deal with all obstacles to Inter-State trade and intercourse.
– Then we have power to coerce the States to the extent of carrying out the Constitution ?
– Wherever power is conferred on the Commonwealth, this Parliament can exercise it.
– That is the whole point.
– My contention is that the power to make this Bill applicable to the public servants of the States is not conferred by the Constitution, because in it the States are not named in this connexion. In other parts’ of the Constitution, where it is intended to bind the States by prohibition or injunction, that intention appears in express terms. For instance, it is specifically enacted that they shall not interfere with freedom of trade. The High Court could enforce these mandates by injunction against any State officer or against any private individual acting under the orders of a State. Let us suppose that a State Government authorized an individual to perform an unlawful act. He would be liable to be coerced by the judgment of the High Court; but that tribunal could not act against a State Government, except by declaring the nullification of its laws as contrary to the Constitution. I know of only one provision in the Commonwealth Constitution which contains anything in the nature of a command to the States to do a certain thing. It is to be found in section 1 20. There it is stated that the States shall make provision for the imprisonment and detention in its prisons of persons convicted of offences against the laws of the Commonwealth, and the Parliament may make laws to give effect to that provision. Therefore, where it is intended that the States shall perform a positive act, it is clear upon the face of the instrument ; and if the Constitution makes default it allows Parliament to step in and work out the problem presented as best it can. I do not know how the Commonwealth Parliament could make the Government of a State responsible for the imprisonment and detention of transgressors against Federal law. Nevertheless, it is an express mandate to the States, though there does not appear to be any particular means of enforcing it. Much more then is the argument applicable to this case, in which the States are not named. Yet we are asked to pass a law to bind the States. I wish now to invite the attention of the Committee to another question, namely, the extent to which the States Governments and Parliaments under their respective Constitutions retain control over their State-governing agencies. It is said that the bare general words of this clause practically withdraw from the States their control over their own Departments. Let us examine the Constitutions of the different States. Here I would like to say that, although these Constitutions do not appear as annexes to the Commonwealth Constitution, they are in essence chapters of that instrument of government. They must be read as part of the Federal’ Constitution. What is the power of the Parliament and Government of New South Wales over its Departments? Bv the Constitution Act of that State - and I take it. as a typical one, because it was the earliest charter of government granted to these States, and all the subsequent Constitutions are founded upon the same model -
Her Majesty shall have power, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, welfare, and good government of the said Colony in all cases whatsoever.
I admit that there has since been withdrawn from the Parliament of New South
Wales and other State Parliaments a certain amount of authority which they were previously capable of exercising in reference to industrial disputes. The present Federal power over disputes which extend beyond the limits of any one State is a new and compound power. It is made up of a power which was previously enjoyed by the States and of a supplementary power. From this drag-net grant of powers in the States Constitutions which I have just quoted, some of the power which the States Parliaments previously possessed over industrial disputes has been withdrawn. But the authority so withdrawn relates exclusively to the power to deal with industrial disputes in which individuals or subjects of the King are concerned, and not the King himself or the King’s departments - not the State itself, or the State Departments. I also wish to direct attention to several other very important provisions in the Constitution which are relative and material to this discussion. Section 47 of the Constitution of New South Wales declares that -
All taxes, imposts, rates, and duties, and all territorial, casual, and other revenues of the Crown (including royalties), from whatever source arising within this Colony, and over which the present or future Legislature has or may have power of appropriation, shall form one consolidated revenue fund, to be appropriated for the Public Service of this Colony, in the manner and subject to the charges hereinafter mentioned.
From a perusal of that section it will be seen that all revenues of the Crown from all sources arising are intended to form one 1 Consolidated Revenue Fund, which can be dealt with only in a specific manner. That manner is set out in section 53, which provides that -
After and subject to the payments to be made under the provisions hereinbefore contained, all the consolidated revenue fund hereinbefore mentioned shall be subject to be appropriated to such specific purposes as by any Act of the Legislature of the Colony shall be prescribed in that behalf.
In the first place the money goes into the consolidated revenue fund, and then it can be appropriated or taken out of that fund only by an Act of the Legislature.
– That is all over-ridden by the accompanying provision of the Constitution.
– Most decidedly it’ is not. The next provision in regard’ to the withdrawal of revenue from the consoli-‘ dated revenue fund is that a vote cannot even be originated by the Legislative Assembly to provide money out of the consolidated revenue fund, unless it is recommended by a message from the Governor. It is provided by section 54 that -
It shall not be lawful for the Legislative Assembly to originate or pass any Vote Resolution or Bill for the appropriation of any part of the said Consolidated Revenue Fund …. to any purpose which shall not have been first recommended by a Message of the Governor to the said Legislative Assembly.
It is a Crown right, a Crown prerogative.
– But it is nevertheless the Government for the time being.
– Not at all. The honorable member may say that it is a right nominally vested in the Crown ; but under the New South Wales Constitution it is one that cannot be taken away except by an amendment of that Constitution.
– I should like to see the Governor attempt to use it.
– Do not let us discuss that point. I am arguing this question as a purely legal one, and I contend that the provision to which I have just referred is not a mere nullity. It is found in a practical Constitution, which has worked usefully. Under the old Victorian Constitution, an Appropriation Bill could be passed, but could not be amended by the Legislative Council of the State. In the new Constitution the Legislative Council is given a power of suggestion, such as the Federal Constitution gives to the Senate ; but once an Appropriation Bill has been passed by the Legislative Assembly it cannot be amended by any other power. It must.be passed or rejected by the Council. Now let us observe what would be the result of the. amendment now before the Committee. Honorable members desire to create a tribunal which would have power to give a decision that might have the effect of increasing the expenditure of a State, and rendering an amendment of its Estimates necessary. It is contended that the power to increase an Estimate should not be vested in a Legislative Council, and I ask honorable members whether they would vest it in an Arbitration Court. Such a power would be a complete invasion of the State Constitution.
– It is possible in New South Wales. Estimates are increased there as the result of the decisions of the Arbitration Court.
– But in that case the right has been surrendered to the Court by the State Parliament. I should have no objection, if it were absolutely necessary, to allow the public servants of the Commonwealth to have their grievances dealt with by a Federal tribunal, because in that case we should be dealing with our own Court. If our own Court recommended the granting of concessions to public servants of the Commonwealth we should be sure to honour its decision even if compliance with it would mean an increase of expenditure. But how could we expect the Parliament of New South Wales, for example, to recognise the awards of a Court which it had not created, and the legality of whose constitution it might challenge? I contend that sub-section xxxv. of section 51 of the Federal Constitution refers to private individuals and corporations, and not to Government Departments.
– The States have surrendered this right.
– It is easy to say that the States have surrendered the right to the Commonwealth to deal with their public servants in this way ; but the whole point turns on whether they have or not. I contend that there has been no such surrender. The King, as a constituent part of the States Governments, has not agreed to it, and no such surrender affects States organization unless it appears within the four corners of the Commonwealth Constitution.
– We say that it does.
– It is easy to make that assertion. The Constitution of New South Wales must be read together with the Constitution of Victoria, which contains similar provisions.
– The same provision is to be found in the Constitution Acts of all the States
– The same power is, I know, given in the Constitution of Queensland. There is an express power of appropriation of all the consolidated revenue for the purposes of the public services of each State, and that power has not been taken away. How can it be said that so great a power as that has been interfered with by implication in a vague little sub-section of section 51, relating to industrial disputes? If the Imperial Parliament intended, in passing the Federal Constitution, to take away the power of the States over States Departments it would have expressly said so, just as it has done in regard to the Customs and Excise Department. We know that it has taken away the State power over Customs and Excise, and vested it exclusively in the Federal Parliament. There can be no doubt about that surrender. It. is made in express terms, and was part of the Federal bargain. But we cannot imply the surrender of any Department by the States to the Commonwealth. The surrender must be found in the Constitution itself. Federal power over a State Government organization presided over by the Crown cannot be implied ; in order to bind the States the surrender must be found in the Constitution itself. That is my argument, and I think that it is absolutely unanswerable.
– Hear, hear.
– I am not one of those who entertain doubts in regard to this question. I go straight to the point, and I feel absolutely convinced that my view is the correct one. If I were not, I should tell the House so, and be quite willing to give free operation to the power proposed to be vested in the Court. If I felt’ that we had the right to give effect to the amendment, I should not be afraid to join in bringing it into force; but I am so convinced that we have not the power that, whatever may be the political consequences to me, I am resolved, as far as I can, to resist the amendment, and to endeavour to induce as many as I can to view the matter from my stand-point. There is no distinction practically or in law between a Railway Department and any other Department, of a State Government. It is true that there may be a distinction in name.
– There might be one in fact.’
– There can be no distinction, unless it exists at law, and I contend that there is no distinction either in fact or at law. The section of the Constitution of New South Wales, to which I have referred, provides that all the revenues of the Crown shall go into the consolidated fund, and shall only be taken out by an Act of the State Parliament. We find that, although the management of the railways of the States of Victoria and New South Wales have been transferred to Commissioners, they have been so transferred merely in trust for the States - Governments - in trust for the Crown. The Commissioners have certain powers of organization and’ management vested in them as the representatives of the people. .All their powers are conferred upon them on behalf of the Cro«:i. In section 70 of the Victorian Railways Act it is provided that the Commissioner shall pay such salaries and wages as shall be appropriated by Parliament. There is no surrender in that section of the parliamentary control over the revenue of the Department. Then in section 59 it is provided that the Commissioners shall prepare estimates of receipts and expenditure in such form as the Governor in Council may direct for each period of twelve months ending 30th .June in each year. Then the Treasury regulations under the Audit Act provide that the full amount of all collections of revenue of all the Departments of the Government, including the Railway Department, shall be handed to the Treasurer, accompanied by a statement of the collections, and no money is to be held in suspense by the Commissioners, or any other State authority. The Audit Act provides that no sum of money appropriated shall be used for any service other than that for which it has been appropriated in the same year. All money, before being paid out of the Treasury, has to be certified by the Commissioner of Audit as “ legally available “ for the purpose to which it was devoted by Parliament. In face of these constitutional provisions, in face of the Audit Acts of the States, in face of the absence of any express grant of power over States Departments, to the effect contended for, I submit that it would be futile to press these arguments too far, and if any attempt be made to enforce them it will amount practically to an invasion of the constitutional rights of the States. I do not suppose that any honorable members desire to bring about a conflict of that kind; but it undoubtedly will mean that. In the Victorian Act there is also power given to the Railways Commissioners to pass regulations for determining the relative rank, position, or grade, the duties and conduct of the employes in each branch, and such regulations, when confirmed by the Governor in Council, have the full force of law. So that there is a delegation of the power of appointment contemplated by the Constitution from the Executive Government to the Railway Commissioners; but it will be observed that the Executive Council still retains its grip over the annual expenditure. Any scheme of annual expenditure has to be submitted to the Executive, and any regulations made by the Railways Commissioners have to be approved by the Governor in Council. I hold in my hand the regulations of the Victorian Commissioners, which were confirmed by the Governor in Council on the 16th Novem ber, 1896, and in which there is what purports to be a scheme for the classification of ail railway servants. The first regulation is -
The amounts set forth in the schedules hereto shall, on the future appointment, promotion, or classification of any person, be the rates of salary or wages payable to persons holding any of the positions therein specified.
The second regulation says -
Nothing in these regulations shall apply or be construed so as to diminish or prejudicially affect the pay which any employe is receiving at the time of these regulations.
The regulations contain a scheme for the classification of officers in the traffic branch from lad porters, messengers, carriage cleaners, and labourers down to watchmen, messengers, and gatekeepers, and the whole of the pay for these various classes of men of different ages and engaged in different occupations and different grades of work, is specified. That has been approved by the Governor in Council. I ask honorable members to consider what is proposed in this amendment. It purports to confer on the Federal tribunal authority to deal with, first, the right of appointment. Honorable members may ask why I make the statement. Because the Bill enables the Federal tribunal to provide that none but union men shall be employed, or that preference may be given to union men. It may pass an award saying that the Railways Commissioners are to employ none but union men.
– Hear, hear.
– I should not ob ject if they had the power; who could object ? Under the Constitution the power of appointment to the railways is vested in the State Government, and that power has been delegated by the State Parliament to Railways Commissioners, subject to the approval of the Governor in Council. Do honorable members contemplate what is really possible, or what would be attempted to be done in order to give effect to this Arbitration scheme ? Suppose that a dispute did occur, that the Railways Commissioners were summoned before the arbitration tribunal - it may be that they would appear under protest - and that’ they were asked to enforce an award. They would say - “ However much we might like to enforce this award, we cannot increase our votes, because our Estimates are passed from year to year by the State Parliament, and here are our regulations passed by the Governor in Council.” It is true that the State Parliament could override the regulations, could increase the gradation and classification, could increase the remuneration attached to each grade; but how can honorable members ask the Railways Commissioners of New South Wales or Victoria to carry out an award for which no provision has been made by the State Parliament? They would say - “ Go to the State Treasurer.” Suppose that they went to the State Treasurer, he might say - “ I have no objection, but the State Parliament will not recommend it.” What would become of the award? I submit that the test of a power is the capacity to enforce it, and if there is attached to sub-section xxxv. no provision for enforcing an award against a State Government then such a grant of this power is not intended. There is very strong power to enforce an award against private individuals - workmen and masters - by attachment, imprisonment, fine, and so forth, because without that power the provision would be a nullity and sham. But where is the power of enforcing an award against a State Government? From the absence of that power I draw the conclusion that the provision was never intended to apply to State governing institutions and State governing instrumentalities, but to only private individuals and private institutions, and those not subject to the States Constitutions. I am convinced beyond all reasonable doubt that this contention alone ] affords a fatal and an overwhelming objection to the constitutionality, as well as the practicability, of the amendment.
– Would not that apply to a State Arbitration Act?
– Certainly not, because the State Parliament created that tribunal. In the New Zealand Act the power of the State tribunal is limited within certain conditions by the Appropriation Act for the year ; it can only alter by increasing or decreasing within the limits of the classification defined in that Act; it cannot increase the grant.
– That is a detail.
– It is not a detail ; it goes to the very root of the whole scheme.
– That is not so in New South Wales.
– I understand that the Parliament of New South Wales has created a tribunal something like our Public Service Commissioner.
– It is also subject to any award made by the State Arbitration Court.
– Suppose that it is, then, as the Acting Premier of New South
Wales said, only recently in an interview, if Parliament did not grant the money, the award could not be carried out. But the Parliament of that State is not likely to dishonour a recommendation . of a tribunal which is its own creation.
– It could do so. ‘
– If it could, what control is there? The award would go for nothing, it might be disapproved of by the Parliament. It is not likely that a State Parliament or a State Government would recognise an award made by a tribunal in whose composition it had no voice or control - a tribunal which it might consider outside the Constitution.
– There is a party seeking election now for the express purpose of doing that.
– Let them seek election. If it is desired to engraft this power on the Federal Constitution, the only way in which it can be properly done is by amending the Constitution.
– That is a big question.
– We do not think it necessary.
– I have great respect for those honorable members who disagree with me, and I am merely trying to explain the difficulties which trouble my mind.
– Is there not the same difficulty in connexion with the Judiciary Act?
– How can we enforce a judgment against a State? Only on a certificate to the Treasurer of the State.
– Because in the Federal Constitution the State has surrendered to this Parliament the right to provide for an action against the State within the Judicial power. We could not give a right of action against a State at large, unless it was within the limits of the grant of power contemplated by the Constitution. I admit that if any case arose under a Federal law, justified ‘by the Constitution, then it could be enforced, but the whole thing turns on the question whether the establishment of a Federal Arbitration tribunal is justified by the Constitution. Even in our Judiciary Act there is only provision for bringing an action against a State in respect of contracts and torts, so that that would not help us in the slightest degree. The reply to that argument is that in those cases the States have submitted to the jurisdiction of this Parliament in matters arising under the Constitution. My contention _ is that such a case as this would not arise under the Constitution. My right honorable friend, the Minister for Home Affairs, has drawn my attention to section 68 of the Western Australian Industrial Conciliation Act, which provides that - all expenses incurred and moneys payable by the Commissioner of Railways in any proceedings under this Act shall be payable out of moneys to be appropriated.
The money is not actually appropriated by the Act itself. So that this Western Australian Act creating a State Arbitration tribunal does not provide for a special appropriation, but leaves it to Parliament to vote the money to meet any awards. Now I wish to conclude. I believe that the expectations and the hopes which are being held out and indulged in as to what is to flow to the public servants from the adoption of this amendment, are doomed to disappointment. But in addition to that I am afraid that if the amendment be carried it will lead to the beginning of an agitation or a movement which may, in the end, result in the break-up of this Constitution as a Federal Constitution, and in a reform that will conduce to unification and the government of Australia by one central authority.
Honorable Members. - Hear, hear.
– Well, let it be so. Sir, the framers of this Constitution, while endeavouring to create a national government for the determination of all national questions, were most anxious to preserve State autonomy and home rule in matters of local concern. On this point of the tendency to centralization, which the amendment marks, I should like to draw attention to the following passage by John Fiske in his very interesting work on The Critical Period of American History. On page 238 he writes -
If the day should ever arrive (which God forbid !) when the people of the different parts of our country shall allow their local affairs to be administered by prefects sent from Washington, and when the self-government of the States shall have been so far lost as that of the departments of France, or even so far as that of the counties of England - on that day the progressive political career of the American people will have come to an end, and the hopes that have been built upon it for the future happiness and prosperity of mankind will be wrecked for ever.
Apply that prophesy to this situation. We can only look forward with apprehension to any policy which is calculated to impair the usefulness of the States Governments, to destroy the free operation of local selfgoverning institutions, and to transfer the local autonomous power to the central
Government, situated either at Melbourne, Tumut, or Bombala. We ought rather to encourage the States. It may be that at times they may pass legislation which is distasteful to many of us. It may be that at times they may not deal out that even-handed justice to their employes which many of us would like. But I believe this - that in this democratic country our institutions and our franchise are so free and so wide and so liberal that a grievance which is pronounced and generally recognised will not remain long unrectified and unredressed. I believe, therefore, that the troubles in Victoria upon which this amendment has been practically based, and from which it has been evolved, will before long be rectified in the ordinary course of local self-government. I believe that they are capable of rectification without the intervention of this great national Parliament. We have to deal with wider Australian issues. We have to deal with Inter-State matters, with external matters and with Imperial matters. We should allow the States to work out their own salvation, and to solve their own problems as best they can. Surely we cannot doubt the democratic power and force of the Victorian people any more than we doubt the democracy of the people of New South Wales. Time rectifies all these grievances. Public opinion comes to the side of justice and rectitude. And I am sure that this grievance, about which so much has been made, and which many of us regret so much, can and will be remedied, without any attack on the autonomy of the States, and without any stretching or straining of the Federal- Constitution, which we should all regard as the palladium and bulwark of our national life and liberties, and which we should all unite in protecting and defending against unnecessary invasion.
– The Prime Minister, in speaking to the amendment moved by my honorable friend, the member for Wide Bay, disclaimed any intention of repeating any of the legal and constitutional arguments against the acceptance of the amendment. My honorable and learned friend, the member for Bendigo, has taken upon himself the duty of. very ably- and thoroughly presenting that aspect of the case once more. I am sure that the Committee is under a distinct debt to him for his clear and comprehensive presentation of the issue. I take it that the case has now been stated sufficiently from that stand-point. We have heard two legal representatives on the one side, and we have heard my’ honorable friend, the member for Gippsland, who has dealt with the matter in his own clear and characteristic fashion. So that any man who may have wished for argument and explanation has had them to the full. I should have been very glad had some other honorable member, in addition to my honorable and learned friend, the member for Darling Downs, and my honorable and learned friend, the member for Northern Melbourne, chosen to reply to the honorable and learned member who has just sat down. But I should like to be permitted very briefly to say a word or two as to why we still regard it as an essential of this measure that railway and other public servants should be included. The Prime Minister said that the Convention did not contemplate the inclusion of public servants. I take it that we may for present purposes admit that such was the case.
– Their inclusion was never mentioned.
– What the Convention did contemplate was impressed on it by an event which had then but recently occurred. The Convention contemplated the recurrence of perhaps one of the direst calamities that ever overtook Australia, and felt itself bound - the most conservative member of the Convention felt himself bound - to prevent any such catastrophe. After considerable discussion, therefore, and with great effort, and by a not very wide majority, this sub-section ‘ was in- ,serted -in the Constitution. But what have we to do with the intentions of the Convention? No one knows better than the Prime Minister and the honorable and learned member for Bendigo - and, indeed, they have admitted so much - that the intentions of the framers of this Constitution have absolutely nothing to do with the matter. And yet, having admitted so much, they refer again and again to the fact that the Convention did not contemplate the extension of this sub-section to the public servants of the States. ‘ It is a well-known and admitted fact that in this connexion debates in a Parliament or a Convention are not to be considered for ona moment; and when I interjected to that effect the Prime Minister said that, while that was perfectly true, the Court would have a right, if a sub-section were ambiguous, either in words or intention, to consider the whole of the circumstances.
That I do not deny ; but while the Court is to consider the whole of . the circumstances, ii is not to consider those circumstances as deduced from the statements of men in the Convention. I defy any honorable member to tell me of one case or one judgment where in the interpretation of an ambiguous section or statute, it is permissible to have regard to the statements of members in debate.
– It can be done sometimes.
– That the Convention did not contemplate the inclusion of public servants is not to the point, in any case. Had the railway strike, which lately occurred in Victoria, or had the other strike which occurred a little less, recently in Western Australia, taken place at the time when the Convention was sitting, does any one here say that the Convention would not then have contemplated the possibility of a recurrence, and have inserted such a sub-section to meet the occasion? I should like to point out what Mr. Justice Clark, in his Australian Constitutional Law, sets forth, and to quote in support thereof, the statement of one who is, I suppose, the greatest jurist America has brought forth - Chief Justice Marshall. On page 19 of Mr. Justice Clark’s work we read -
It lias been repeatedly stated that the fundamental rule for the interpretation of a written law is to follow the intention of the makers of it, rs they have disclosed it in the language in which they have declared the law. In cases in which the intention of the law makers was clearly limited to” a specific purpose by the use of explicit and direct language, which is not capable of application to any other purpose, there cannot be any difficulty in applying the rule.
The writer goes on to say that, where there is any ambiguity, we are to interpret the language, of the law by the process of construction, and proceeds -
A pertinent example of the application of this principle of interpretation to the language of the Constitution of the United States is found in the judgment of the Supreme Court of the United Stales of America in the famous case of Dartmouth College v. Woodward [a), in which Marshall, C. J-, said “ It is not enough to say that this particular case was not in the mind of the Convention when the article (4) was framed, nor of the American people when it was adopted. It is necessary to go further, and to say that had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception. The case being within the words of the rule must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repugnant to the gene ral spirit of the instrument as to justify those who expound the Constitution in makins it an exception.”
I take it that here we have a clear, definite statement of the principle that must guide any Court, and which must guide the High Court of Australia, when it comes to inter’pret this particular sub-section. The honorable and learned member for Bendigo has endeavoured to show - but I doubt whether it can be shown to the satisfaction of the Court - that it was the direct intention of the Convention to exclude the public servants of the States. If it is said that the Convention did not contemplate the matter at all, then obviously the Convention could not have had the intention of excluding public servants from the operation of the sub-section. If there is one feature about American decisions and the American Constitution that is worthy of attention, it is that to which I propose now to allude. The honorable and learned member for Bendigo and the Prime Minister declared that they had never heard,” on any platform in the Commonwealth, nor read in any newspaper, one word to lead any one to believe that it was the intention to apply this sub-section so as to include public servants. I ask the Prime Minister, or any other man, whether the American citizens who adopted the American Constitution, ever for a moment contemplated some of those amazing decisions of the American Supreme Court, in which it was declared that such and such a thing was within the Constitution, not in such a measure as this, which on the face of it is arguable, and which might have been contemplated, but in regard to matters that, under no conceivable circumstances, could ever have been contemplated by any set of men who “lived at the time the Constitution was framed.
– It is like the National Bank.
– Undoubtedly. It is a feature of a written Constitution - the interpreter of which is a High Court - that, owing to its rigidity, it requires some instrument to extend it and push it in this direction or that - something to render it more elastic, and less rigid, and adapt it to circumstances. It is a feature of such a Constitution that it is always capable of being adapted at the instance of the High Court to strange and uncontemplated circumstances. To say, therefore, that those conditions were not contemplated at the time, is to say no more than that which must ever happen under a written Constitution, and will continually happen with the march of progress. There has lately been a railway strike in Victoria; and it is because of that strike, and for no other reason, that the amendment is moved. We support the amendment, because at this particular time the extension of the functions of the State in various directions is one of the cardinal principles in which’ the party to whom I and the honorable member who submitted the amendment are attached, believe. If it be declared that the Constitution does not permit of a law to adjust disputes which may, and in time must, occur between a State and its employes, all I have to say is that it will not be very long before the public servants of Australia will be such an appreciable number of the whole population that to allow them to remain outside the operation of a tribunal of this sort would be neither more nor less than an outrage, and would be, I believe, a fitting subject for indignant protest by those private employers who would be compelled to abide by the decisions of such a tribunal. Quoting the words of the honorable and learned member for Northern Melbourne, my honorable friend said that a strike in a railway service which would bring it within the scope of this Bill was inconceivable. I have nothing to say upon that, but that possibilities are not supposed to be bounded by the imagination. I have already pointed out that there have been numerous decisions given by the Supreme Court of America which would have transcended the possibilities of any imagination at the time the American Constitution was framed. Any man who can say calmly and assuredly that there is no possibility of another railway strike may be gifted with some greater degree of prescience than I can lay claim to, but I am rather of the opinion expressed by the honorable member for Bland, and I say, as the right honorable member for Adelaide said during the last Parliament, that one of the results of a strike is that whichever side is beaten goes back with a sullen determination to abide its time, and when its time does come, it unsheathes its sword with added vigour, and it thrusts with the venom that comes of subdued passions and denied rights.
– And with a feeling of wrong and injustice.
– I hope it will always be so, while men in the’ world have to struggle against injustice.
– I say, therefore, that we need to introduce such a measure as this for the purpose of preventing that which must inevitably occur in Mie long run. As to whether we have the power to do what is proposed, I am rather inclined to adopt the attitude of the honorable member for. Bland, and say that that is a matter entirely within the province of the High Court. We have heard from the honorable and learned member for Bendigo a long and learned disquisition about the law on this point. We have had some excellent reasons put forward to show why it could not apply ; but nevertheless one thing is abundantly clear : The gentleman, methinks, doth protest too much. If it was as clear as we have been asked to believe, why these long disquisitions, why these references to authorities, and why not, relying entirely upon the weakness of the other side, put the provision in the Bill, resting calmly on the assurance that the High Court will throw it out with contempt? But my friend, the honorable and learned gentleman at the head of the Government, knows full well, and indeed admitted it this afternoon, that the danger is not that the High Court will throw it out, but that they will keep it in. The honorable and learned gentleman said - “Supposing they keep it in?” Does any honorable member mean to contend that any action of ours can coerce the High Court? Will any man say that we can dictate to the High Court the law on this point? Obviously not. But while we cannot, by any action of ours, extend the powers of the Constitution, we may easily restrict them. We cannot go one step beyond that allotted to us by the Constitution under which we live, move, and have our being ; but we may easily, from pusillanimity, or through dread of some of the bogies raised, be terrified from not going far enough. Let us then bring within the fold all those who we believe have the right to come within it, and leave to the High Court the business of saying whether it is constitutional or not that they should all be so included.
– Let us stand up for Commonwealth rights.
– It has been argued that the Crown is not bound by this section of the Constitution, and it has been said that consequently nothing we do will alter the matter. As to the Crown being bound, I admit at once that what has been said on the subject is well worthy of consideration.
Generally speaking, unless the Crown is named, the Crown is not bound. But in the case ex parte Postmaster-General, In re Bonham (1875), 10 ch., D. 595, at pp. 600, 601 ; 48 L. J. Bank, 84, at p. 87, decided by Jessel, Master of the Rolls, this judgment was given -
The question we have to decide appears to me to be a very simple one. The first point to be considered is what is the general law on the subject of the prerogative of the Crown. Now on that I think there is no dispute whatever. The general rule, as expressed in Bacon’s Abridgement, 7th ed., p. 4621, is - “ That where an Act of Parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the King shall be bound by such Act, though not particularly named therein ; but where a statute is general, and thereby any prerogative, right, title, or interest is divested or taken from the King, in such case the King shall not be bound unless the statute is made by express terms to extend to him,” and the point came before. the Court of ExcHequer in Attorney-General v. Donaldson.
In some circumstances, therefore, the Crown is bound without being specifically named, and I take it that in such a case as this the onus is upon those who say the Crown is not bound, because not named. The honorable member for Bland quoted sub-section xiii. and xiv. of section 51 of the Constitution, “and the reference to banking, “ other than State banking,” and to insurance, “ other than State insurance,” to show that the Crown was bound, and I think his point a good one. We have powers over’ these things, and the honorable member pointed out that, because, under sub-section xxxv., State servants were not specifically exempted, they were therefore included. Under sub-section xv. of section 51 we have power to make laws in reference to weights and measures, and I ask whether, supposing a State starts a store, or adopts the Gothenburg system and runs an hotel, as the State of Western Australia has already done, it can be said that that State is not amenable to the law relating to weights and measures, though the State be not named in the Weights and Measures Act? Take the navigation law ; will any man say that the King’s ships are not included in that law if they be not specially exempted? If that be the law, I ask why, in the Navigation Bill now before the Senate, the King’s ships are specially exempted ?
– Because they are exempt under the Constitution.
– That Bill is made to apply to all ships “other than the King’s ships.” But, in any case, will any man say that we have not a general power to deal with the Crown, and that the Crown may not, by assenting, assent thereto, and thereby divest itself of its prerogative? Any one would imagine that, supposing this paragraph did not read, as my honorable friend wishes that it should read, and that the prerogative of the States vested in the Crown had not been taken away, we should not have the general power to legislate as we please, subject to the Constitution, and that this legislation would not take effect and bind the Crown, even if the Crown itself afterwards assented to it. Upon this point, the case, which has already been referred to by the honorable and learned member for Darling Downs, namely, that of the Queen v. Byramjee, appears conclusive. “ It was held that, though there was a reservation of the right of the Crown, yet, as the Act in Canada was made in pursuance of an Act of Parliament of Great Britain, the powers contained in that Act did take away the prerogative of the Crown.” Thus it would seem that, in their Lordships’ view, a Colonial Act assented to by the Crown, through its authorized representative could interfere with and regulate the exercise of the prerogatives of the Crown as the fountain of justice, so far as the rights of those under its jurisdiction were concerned. If so, there must be a similar power as to other Royal prerogatives of the same character, subject, of course, to the Crown’s right of veto. And certainly it would seem that there is such power, if Gwynne, J., is correct in what he says in Lenoir v. Ritchie : “An Act of Parliament passed by the old Legislatures of the respective Provinces which now constitute the Federated Provinces of the Dominion of Canada, under the Constitutions which they had before Confederation, of which Legislatures Her Majesty was an integral part, as she is of the Imperial Parliament, upon being assented to by the Crown, was competent to divest Her Majesty of the. right to exercise within the Province any portion of her Royal prerogative.” .
I say, then, that it is clear that even if it be held that under sub-section xxxv. of section 51 the Crown is not bound because it is not named, yet, if we inserted a provision naming the Crown, and the Crown assented to the Bill, it would be bound thereby. Therefore, all the arguments of my honorable friend, with reference to the Crown not being bound, fall to the ground. If this be a Bill for the redress of a public wrong, or one which is intended to secure good government and justice, the Crown, even if it be not named, may be bound, or if this be held to be not such a measure, and that the Crown needs to be specifically named to be not bound, yet if it be not so bound under the Constitution, it may by its assent divest itself of its prerogative, and so render the legislation operative. My honorable friend says that the High Court will be governed to a large extent by the decisions of the United States Courts. That may be. I do not deny it; but that is a matter regarding which we must await the decisions of the High Court. All I know is that the American- decisions, whilst they are listened to, do not decide the law, and must be considered as entirely distinct from English or Australian cases. I now come to the statement of the Prime Minister that a case could not arise under the amendment. I have already pointed out that it is conceivable that there might be a dozen cases. The possibility of there being one such case should in itself be sufficient to induce all reasonable men to join in adopting preventive measures, no matter at what cost. With the words of the Prime Minister, uttered when the Bill was introduced into the last Parliament, still ringing in my ears, and with a remembrance of the amazing benefits that we were told would flow from the substitution of arbitration for the barbarous weapon of the strike, I cannot reconcile the attitude of the Prime Minister towards the amendment with that formerly assumed by him. He admits that the point is arguable; but that he has a doubt. Yet his doubt is not so strong but that he concedes that we may by our decision include within the scope of the measure men who he thinks ought to be excluded from its operation. Here is a Bill which is to bring abundant blessings in its train, and vet the Prime Minister seeks to deny its advantages to a deserving section of the community, a section that, in Victoria particularly, has been treated very far from fairly by the local Legislature. The public servants of Victoria are now practically disfranchised, because, although it may be said that technically they have the same proportionate representation as other sections of the community, there is a fundamental difference between their present position and that which they previously occupied. Formerly the public servants could, by voting for this man or that in different electorates, influence the election and the subsequent actions and votes of many representatives. Now they can secure the election of only the two or three representatives which are given to them under the Constitution. These representatives can do nothing but voice the grievances of their fellows - they are powerless to remedy them. The whole of the representatives of other sections of the community will feel constrained to take up an attitude of antagonism to the representatives of the public servants, and thus there will be three or four public service representatives on the one side, and all the representatives of their employers - the people - on the other. These nien are denied justice, and yet they are referred by those who oppose the amendment to the State parliamentary tribunal. In New South Wales, where the public servants have certainly not less hope of obtaining justice, the State Parliament has deliberately created an impartial tribunal for the settlement of industrial disputes. Now I wish to deal with the argument to which the honorable and learned member for Bendigo has referred. He said that because there was no method of enforcing a decree of the Arbitration Court against the States, we could not assume that it Was intended to bring States servants within the scope of the power conferred by sub-section xxxv. I interjected that his objection would apply also to the State Arbitration Act. In New South Wales there is no method, except such as are open to a Court in any case, of compelling the State Government to obey any of the decrees of the Arbitration Court. For instance, if the Commonwealth and a State Government went to law, and damages and costs, or even costs alone, were awarded against one or other of the parties, how could the verdict of the Court be enforced ? Take the case to which the honorable and learned member referred. Suppose the Railway Commissioners of New South Wales were cited to appear before the State Arbitration Court. As a matter of fact, a case is now set down for hearing in which they will be asked to give preference of employment to unionists and to grant certain increments to which the men declare that they are entitled. The Commissioners are bound by Statute and could not comply with an order of the Court requiring them to give preference to unionists or to pay certain increments without the concurrence of the State Parliament. If that authority were obdurate, what could they do? No difficulty, however, is contemplated. The State Parliament at present is in favour of the Arbitration Act ; but the party which is seeking to regain power is notoriously opposed not to the principles, but to the application of the Act. It is inimical’ to the measure, and would therefore be likely to prevent the State Parliament of New South Wales from doing anything of the sort. Can my honorable and learned friend, by ransacking his brains, discover a case in which a State has refused to do this? If he can, it will be news to us. But if he cannot, we may pass his contention to one side, as one of those numerous objections which, in times of stress and difficulty, can be evolved at will by the ingenious advocate.
– There is no power to compel any of .our Parliaments to appropriate money.
– We admit that; but is it to be forgotten that we who sit here tonight have been charged by a majority of the citizens of the Commonwealth to do this very thing which my honorable and learned friend says is a direct violation of the most sacred rights of the Federation and of the citizenship of Australia? Are not we fresh from the people? Could any Parliament more accurately reflect ‘popular opinion than we do? We come here having appealed to the people on this particular point. In some of the States other points were raised as well ; but every one of us had to toe the scratch in regard to this particular matter. I myself was asked definitely, “Are you, or are you not, in favour of this?” I think every candidate was asked that question, and many a one who was asked it wishes to-night that _he had given another answer. Those who propose to conciliate their consciences by elaborate argument and by ingenious references to difficulties, constitutional or otherwise, which exist or do not exist, cannot deny that the people were appealed to, and that every candidate was asked by the railway associations of Australia, “ Are you, or are you not, in favour of the railway servants being included in the Arbitration Act?” Every candidate replied “ Yes “ or “ No,” ‘ because those who did not answer in the affirmative were understood from the terms of the letter sent to them to answer in the negative. Therefore, every one of us is directly pledged upon this question. A species of referendum has thus been taken. How, under these circumstances, can we be told that a grievous wrong is to be inflicted upon the citizens of Australia because we propose to compel the Parliaments of the States to do something of which the people have by an overwhelming majority declared themselves in favour. That is the great wrong which is to be done to Australian citizenship. This is what the honorable and learned member for Bendigo calls the beginning of the end, a violation, and a trap. He told us that if the people of Australia had known that a Bill of this kind could be applied to the State servants they would never have voted for the Constitution. The people of Australia were told many things prior to Federation. That many of the occurrences predicted have failed to eventuate only those who have bad memories’ or unblushing effrontery can . deny. But one thing we are practically clear about, and that is that the. voice of the people has made itself heard under Federation. Some of us told the electors that possibly democracy would find itself strangled in the Federal Parliament. I was one of those miserable Jeremiahs. But I am pleased to say that Providence has made me out an arrant liar, and that the voice of democracy is stronger here even than the voice of the prophets of the chosen. Yet it is said that we contemplate a grievous wrong to Australian democracy by compelling the Parliaments of the States to vote money to do justice to their employes. Any one would imagine that the Federal Arbitration Court is to perpetrate some dire wrong, to inflict upon the States some unprovoked indignity, whereas it is being created to right a wrong. It is to require only that which justice indicates should be done ; and ought not that to be approved, and adopted, bv every Parliament in Australia? What Parliament will say, the decree having been made that the wages of this man or that man shall be increased, that it will not increase them? None of these honorable gentlemen contemplate a decrease, so that we can see how their thoughts run. Everything points to the fact that there is room for an appeal to Caesar for an increase, but not for a decrease.’ If these honorable gentlemen were so confident of the justice of their cause, and there were already in existence tribunals to which civil servants could apply, would not those tribunals have reduced or increased salaries as the occasion might demand ? Does not every one know that the employer is the least fit to decide the merits of his own case? Has it not been a maxim, accepted from time immemorial, that no man should be a Judge in his own cause? Should the States then be Judges in their own cause? We who believe in the extension of the functions of the State have set ourselves against the interference of politicians in State management. Have we not handed over to Commissioners the control of many Departments? Are we to suppose that they will not make errors, as other men do? Are not we to believe that they will some-. times be guided perhaps by a regard for commercialism rather than for the true interest of the State or the community, and should we then permit them to grind the faces of their employes in order to make surpluses; to unduly oppress their employes because there is no tribunal to which they can appeal for justice? I do not think so. It appears to me that the State Parliaments are not likely to refuse to do that which a tribunal created under this measure is likely to require. We are to assume that whatever it decides will be , characterized by justice and by’ good sense. The people of the country will have ample opportunity to watch the working of this measure. In spite of the outcry against the New South Wales Arbitration Act, I venture to say that, if a plebiscite were taken in that State to-morrow, five out of every seven persons would vote for the retention of the Act, despite the powerful influences now arrayed against it. When the Early Closing Act was introduced there a violent outcry was made against it. It was spoken of as curfew - bell legislation ; but now if a plebiscite of shop owners were taken in regard to its retention, not io per cent, would vote for reversion to the old condition of things. We do not know that a strike of railway servants will occur tomorrow or the next day. We seek to prevent .it from occurring at all. Such a calamity would do more harm to Australia in one day than all the possibilities of the alleged violation of the spirit of the Constitution would do in ten years. What wrong will be done to any man if the amendment is agreed to? If it be within the spirit and the letter of the Constitution the High Court will declare it so, and it will become operative. But, if not. it will be invalid, and there will be an end to the matter. If it be within the spirit of the Constitution, we shall do a great wrong to the States and to the Federation by refraining from bringing under the operation of the measure a section of men who are, perhaps, more likely than any other- to give occasion for the exercise of the functions of the Arbitration Court. I believe that the majority of honorable members will vote for the amendment, because the people have lately declared themselves, in the most emphatic way, in favour of its underlying principle. With nearly every powerful organ arrayed against this principle, the people in all the States have unmistakably declared for it. Under these circumstances
I cannot see anything in the argument that we propose to violate the Constitution. These States rights have been neglected by the very people who lately had an opportunity to safeguard them, and omitted to do so. These State rights, which are now safeguarded by the newly-elected senators, five-sixths of whom, I suppose, were returned upon the ticket to support it.
– No,* no.
– Yes, very nearly so.
– Of course, my right honorable friend is ‘thinking of those halcyon days when what he says now was, indeed, nothing short of the truth.
– We did good work in those days.
– But the State which the Minister represents, formerly the most tame and submissive in the Commonwealth, has lately asserted itself in a manner so surprising, that the right honorable gentleman, who has been some little distance away from it, cannot conceive of the great change that has taken place there. He does not realize that this can be that State which was formerly composed of constituencies containing from five to forty-eight electors. These were the constituencies, I believe, which returned members to the Federal Convention on “ a thoroughly representative basis.” If I do my right honorable friend a grievous injustice, I ask him how many men elected him to that Convention ?
– We were elected by the Parliament.
– How many electors returned the right honorable gentleman to Parliament ?
– The whole of them.
– The whole of them could be put under the table of this House.
– What does the honorable and learned member desire to make out of that?
– When I said that fivesixths of the newly-elected senators were supporters of the proposal to include the Commonwealth and State public servants under this Act, my statement was challenged by the Minister.
– But what was the percentage of the electors who voted ?
– If instead of five-sixths of the senators, I say that an overwhelming majority of them are pledged to support this proposal, will the right honorable gentleman correct me again?
– I do not believe that. The question was never put to the electors.
– I repeat that an overwhelming majority has been returned to the Senate who will vote for the application of this measure to the public servants of the Commonwealth and of the States. Since these guardians of the Constitution so lately crowned with the people’s approval are prepared to act thus, why should the Minister for Home Aifairs grieve his maiden soul by doubts as to whether we are violating the Constitution ? We shall do no wrong to that charter of government by making this measure applicable alike to private . employes and to the railway employes of the States. If we fail to do so, and a strike ensues. I shall hold that the right honorable gentleman has done his share towards committing one of the most grievous wrongs that any citizen can commit.
– We should still have to interfere.
– Yes. Supposing such a state of things did occur, are we to say that neither the Commonwealth nor any other authority in these States is dowered with sufficient power to intervene ? Are we to stand idly by whilst Australia is paralyzed from one end to the other by reason of a strike? Obviously not. Power is conferred by the Constitution for the settlement of these disputes. We seek to exercise that power calmly and deliberately whilst we yet may, and whilst we are not inflamed by party passion. We ask honorable members to assist us to make this Bill applicable to every person throughout the Commonwealth who is likely to be affected by industrial disputes. It appears to me that we are not singular in our support of the measure, because at the recent elections nearly every candidate was asked how he would vote upon it, and as I have already said, an overwhelming majority of the electors voted for the return of its advocates. We ask . now that the pledges given to the people shall be respected, and that the civil servants of the Commonwealth and the States, together with the railway employes of the States, shall be included in its provisions. So far as ‘ any constitutional . difficulties are concerned, if they exist, I do not regard them as serious, because in the last resort the High Court is the only tribunal which can decide the issues involved. Whether the Crown is bound or not is immaterial, providing that it assents to the pro posed legislation. Upon the question of whether or not the law, if enacted, could be enforced, I would point out that the State Parliaments are not likely to obstruct the decisions of such a tribunal as is contemplated - decisions which are given in a right cause, upon a right occasion. Therefore, I hold that the Committee should adopt the amendment proposed by the honorable member for Wide Bay.
– In addressing myself to the proposal under consideration, I may remark that during the last three and a half months I have passed through an experience to which I hope no other honorable member will ever have to submit. At the recent general election this question was certainly put before the people, so far as the district of Melbourne is concerned. In the second contest for that constituency it was made absolutely the dominant question. At every meeting which I addressed it was brought prominently forward, and only at one of those thirty gatherings was a single hand held up against this proposal. The gentleman who voted against it subsequently informed me that he did so under a misapprehension.
– He was deaf and dumb.
– He was very much awake when I explained the position to him. When I mention that no less than four meetings were held in positively the most conservative portion of Victoria - I refer to Jolimont - and not a hand was held up against the proposal, I think I may fairly claim that the question was thoroughly threshed out. I was returned to this’ House to vote for the amendment proposed ; but, even if I. had not been, I should have voted for it just the same. I utterly fail to understand why we should deny an undoubted right to any human being, irrespective of whether he draws his wages or salary from a Government or from a private individual. I have not the slightest doubt that if the Prime Minister could see his way clear to take the opinion of the people on this question by means of a referendum - and if he would consult the Consul for Switzerland he would find that that could be done at a very moderate cost - the voice of Australia would declare that every human being in our midst should be under the same law, and then the honorable and learned gentleman would be willing to carry out that mandate. We have had it indicated in the press that the writing is on the wall, “ Beware ! if you vote for justice to the public servants you must dread a dissolution !” That bogy has been manipulated by the press, but I feel satisfied that the division on this amendment will show that the representatives of Australia are determined to give justice to the people whether they be employed by Governments or by private individuals. I am somewhat at a disadvantage in having to follow two lawyers who have in succession addressed themselves to this question. One of those honorable and learned members repeatedly referred to the proceedings of the Convention, and a reference ‘ to a report of the debates of the Convention will show that I am right when I say that the introduction of the conservatism which tinges the Constitution was primarily and principally due to the representatives of Western Australia. Where are those representatives now? We find only one of them occupying a seat in this Chamber. By whom were they elected ? By the people? No; they were elected by the State Legislature of the day. And I dare say every honorable member will agree with me that the Parliament of the Commonwealth would not be what it is if the Parliaments of the States had the power to nominate its members. I feel somewhat strongly on this question. I have heard many arguments as to the meaning of words which were uttered at the Convention, because I have had some experience of the High Court of Australia. I had a flutter before that Court for about two and a-half days, with the result that I was involved in costs amounting to £200. Did honorable members imagine when they voted for the creation of that Court that it would be so expensive a tribunal? Was it not thought when it was resolved that the Court should deal with petitions against the return of members that a deposit of £50 would be enough to cover all the costs of the inquiry ? I was assured by my legal adviser, whose every contention was unanimously accepted by the three Judges, that if I carried the proceedings to their final issue costs amounting to £2,000 would be incurred.
– It was pointed out during the consideration of the High Court Bill that the cost of taking petitions before the High Court would be very heavy.
– I would far sooner be ruled by this Parliament, elected as it is by the people, than by a High Court. I have no desire to see the High Court placed in the position of the Supreme Court of the United States of America, and if at any time my vote can prevent the . possibility of such a thing, it will be at once available. The honorable and learned member for Northern Melbourne, the late Mr. John Hancock, myself, and others who opposed the Constitution Bill did so; not because we were hostile to Federation, but because we desired that the people themselves should have the high power of amending the Constitution. I have a firm and full belief in my fellowAustralians, and feel satisfied that if the matter were put to a vote of the people they would sweep aside mere legal maxims and the frequent references which we hear ‘ to the Constitution of the United States of America. The States were deluged in blood before one of the small amendments which have been made during 100 years in the Constitution of the United States could be carried out. There is not one honorable member of this Chamber who would say that he does not trust the people, and if the majority of honorable members so recently elected vote for this amendment, why should there be any suggestion of removing it? The principle at stake has been enunciated by the people of the most conservative communities, as well as by those of the far-away back-blocks, which are so well represented here. Before constitutions are mankind was, or, in the words of one of the American poets, “ Before I was a citizen, great nature made me.” Why should we be bound down in the way to which reference was made a few moments ago by the honorable and learned member for West Sydney ? Why should we be bound down to one principle if by waiving it we should do a great justice? Even if this amendment be. in contravention of the Constitution, I maintain that the people require it, that their power should be dominant, and that we should consult them. As to the suggestion that there may be another election at an early date, I have only to say that while I am rather fond of a fight, three election contests within a period of four and a-half months are rather too much for me.
– With an appeal to the High Court thrown in.
– I do not desire any further acquaintance with the High Court. I should prefer to see a change in reference to the method of dealing with election petitions ; and I hope that this House will in its wisdom ultimately make an alteration in the system. There must be a strict scrutiny of the way in which voting has been carried on throughout Australia. I trust that we shall soon go to a. division on th’is question, for I do not suppose that the vote will be varied as the result of any speech. I was once placed in a peculiar position, and was led, perhaps from motives of curiosity, to ask various celebrated politicians whether they could tell of a vote which had been changed by a single speech. I could not, however, obtain even one satisfactory answer in respect of a parliamentary experience extending over thirteen years ; and when I waited on the great people who sway the daily newspapers, I found that even they were unable to, give me any information on the subject. Doubtless, we have all made up our minds as to the way in which we shall vote, and I hope that if the majority vote, if not on this, at all events on the next amendment, for what I believe to be the right principle, there will be no attempt to waive their decision. I know that those who are opposed to my views are as honest as I am in the opinions which they entertain, and if they were in the majority I should accept their decision.
– I sympathize with the evident desire of honorable members that this should be a very brief debate. That desire is a sensible one, because the subject with which we are about to deal in a decisive way has really been discussed almost as fully as has any subject that has come before the House. I believe we shall all admit that whilst the opinions which prevail in reference to the amendment upon which we are about to vote are strongly divided, we can give one another credit for perfect honesty of conviction, and a desire not to violate any provision of the Constitution. I have often had to criticise the Government, as I suppose every leader of an Opposition has to do, but I think that in the case of this Government . the necessity is unusually pronounced. I have had many justifiable opportunities to speak in no measured language of what appeared to me to be the undue evasion by the Government, on more than one occasion, of the responsibilities which attach to their position. But I think we must all admit that in this matter the Government have pursued a perfectly fearless and straightforward course. Whatever the result-of this division mav be to my honorable and learned friend, the Prime Minister, he will have that which will probably be almost more valuable to him. than a victory - the consciousness that he has throughout maintained the highest traditions associated with the distinguished office which he fills. To my great regret, I find myself compelled to agree with the view which he has expressed. I do not wish, on the present occasion, to enter into any theoretical discussion as to whether the proposal now before us would work out in a good or bad way. I consider the matter concluded by the view which I take of the Constitution under which we live, and that the words in the Constitution which enable us to pass any measure of this sort mark out very clearly and afresh what was the main principle of the Commonwealth Constitution. We had before us a choice between the system adopted in the United States many years ago, and that adopted not so long ago in Canada. These two Constitutions, in one radical respect, are directly opposed. In the case of America, as we all know, and as was often pointed out, the States surrendered no power which was not expressly conferred by the words of the Constitution, or by necessary implication. On the other hand, in the case of Canada, it was decided to follow a different principle, and to provide in the Constitution that everything not expressly reserved to the States should be deemed to have been conveyed to the Dominion. In the Convention we had these matters before us, and after a thorough discussion amongst the elected representatives of the people of Australia it was deliberately decided that no power should be taken from the States which was not expressly given to the Commonwealth. That is the basis of the Constitution and the words in subsection xxxv. of section 51, which refer to this question - “ extending beyond the limits of any one State “ - are only a repetition of the principle which is the mainspring of the Constitution. The civil service of each State - the railway service of each State - has no possible sort of connecting link which crosses any of the borders of a State ; they are complete entities. The civil service of . New South Wales is an absolutely distinct body from that of Victoria or that of the Commonwealth. The railway service of New South Wales is an absolutely distinct body from that of Victoria, or that of any other State. . They are under absolutely different laws, absolutely different authorities, and there is no sort of connecting link. That was not the condition of things which was pointed to by the words - “ extending beyond the limits of any one State.” I think the members of the Convention, who discussed this matter very fully on many occasions will agree with me, that the object we had in view in inserting that provision - which I admit was only inserted in its closing hours - was to provide for disputes such as those which might arise with sailors passing from the port of one State to the port of another State, and perhaps right round from State to State, or persons who would work in the course of a shearing season first in one State and then in another. It was occupations of that kind and conditions of that sort which we intended to deal with in connexion with the extension of this principle of conciliation and arbitration.
– Did not the right honorable and learned member vote against it?
– Does that affect the constitutional argument I am speaking of?
– The right honorable and learned member used the word “ we.”
– May I suggest to my honorable friend that the question whether I voted for or against the. provision has nothing to do with the interpretation of the Constitution. I am now dwelling on a matter which has nothing to do with the views of the members of the Convention. We have got beyond that, we are dealing with the law such as it is, and I am not at all sure that I did vote against it.
– I confess that I do not carry Hansard about with me from year to year ; and having a scrupulous regard for accuracy - in Victoria, at any rate - I do not wish to be committed to that statement. But I do know that the matter was expressly put in this way in order to respect the cardinal principle of the Constitution, and because it was recognised that any attempt to assume a right to interfere with any State as a State would be resisted to the uttermost. To introduce the principle which is aimed at by the amendment - that is, to omit the words in the Bill which seem to me to follow the lines of the Constitution - would, it does appear to me. be to assume a power of interference with the working of the public service and the working of the railways of the States. I do not think that we have any power of that sort, and that is sufficient for me. The clumsy expedient which was suggested of passing this amendment, whether it is constitutional or not, in order that some outside tribunal might be appealed to, was one of those amiable endeavours to bridge over a political difficulty which is inseparably connected with the name of the Minister for Trade and
Customs. I believe he was the author-
– The right honorable and learned member is quite wrong this time.
– I have not had the advantage of attending the deliberations of the House of late, but I understand that at least twelve different ways of solving this difficulty in the most peaceful fashion have been suggested by the Minister for Trade and Customs, not only to the Government, but also to the Labour Party. I believe that my honorable friend was perfectly prepared, if none of these twelve methods were accepted, to take possession of the whole affair himself.
– I never was “YesNo “ or “ No- Yes,” though.
– That was only because there was no alternative that the honorable gentleman could have adopted. If an affirmation of a negation could be divided into a larger variety of shades, I am sure that he would have advocated the application of them all in this trying situation. I do not know whether it was a public utterance, but I asked the honorable gentleman across the table to-day - “ Can you not find any way out of this difficulty?” and he said - “ I could find a dozen ways out of it.” Yet we are told that there is no dissension in the Cabinet. From what I know of my honorable friend, and the industry which he displays in political situations of this embarrassing character-
– I turned the right honorable and learned member out, though.
– On that occasion the honorable gentleman was, as he often is. the humble instrument of others.
– Quite so, like the right honorable and learned member.
– It is only fair to say that the honorable gentleman has always been ready to become the humble instrument of others, and never was more so than on the present occasion. I do regret that my honorable friends who constitute the Labour Party have not been able to accept any one of his twelve suggestions.
– We have not had any of them.
– They have not come this way yet.
– Of course the honorable member must not expect that these delicate matters are confided to a gentleman who has so recently become a member of the family circle. I have never yet discovered the Minister working in that fashion. I am in this unhappy and yet enviable position that, whilst I must by my vote give support to the Government, a number of my independent supporters assert the right of putting them out. I view the situation with mixed feelings. I feel that the Government ought to be put out. I have never ceased, to feel that since the Government came in. But if there ever was an occasion in the history of Australia when my views were pronounced I suppose this is that occasion. It is well known that this matter was threshed out in the House before the recent appeal to the people, and a large number of the members of the Opposition asserted their right of voting as they did for the amendment moved by one of the members of the Labour Party, as a number of other members of the Opposition asserted their right in voting with the Government. Since then the Opposition have gone to the country as a party, with the right reserved to every member of it to vote in this matter entirely as he thought fit. I have been censured for not exercising more actively the duties of leadership at this juncture. My honorable friend the Prime Minister thinks that I have shown an amazing want of leadership. My leadership when the Naval Agreement was at stake was masterly. It had the effect of saving the Government from a crushing defeat, and of giving them a magnificent majority, behind which - or, rather, in front of which - they assumed a very manly attitude. I have on other occasions, and the party have on other occasions, come to the rescue of the Ministry.
– The right honorable member is always their saviour.
– I think it is a noble character to give to an Opposition that it has often played the part of the saviour of the existing Administration. Every one will admit that they have always needed a saviour ; and I suppose they have never needed one more than on the present occasion. I intend to vote with the Government. When the House- met, I thought it only fair that the Government should know that, whilst I made that declaration, I did not wish then to cultivate any fictitious fearlessness under any mistaken conception.’ I guarded my utterance by telling the Government that I could only assure them of my own support, and that a large number of members of my party took a view different from my own. 1 believe that that will prove to be the case when the division is taken. But the point which surprises me most of all in the position in which we find ourselves is this : that there are some wild ideas gaining currency that the members of this party - which, with this right of giving independent votes, has gone before the people of the country, and has fought under the banner which I raised in that great struggle, and has come back victorious - must be considered, if they exercise that right, to have left the Opposition and joined the Labour Party. Well, it would be a great acquisition to the Labour Party if it could gain the allegiance of a number of those honorable members whom I have the honour to lead. But I think I may fairly say that, leading as I have always had the honour to do a party of honest and loyal men, when thev have .the slightest idea of deserting the banner under which they have fought I feel sure that the announcement will be made to me. I admit the dazzling attractions and the multitude of temptations which are illuminating the political horizon at the present time, and I can quite understand that sudden visions of Ministerial grandeur might cause even a statesman who has been one of the advanced members of the Labour Party to announce solemnly and publicly through the press, that of course when the Labour Party comes into office they will have no idea of passing the whole of their programme. Judicious excisions will be made; the demands of diplomacy will be respected, and the full prescription which is to save Australia will be reduced to homeopathic dimensions. Already we hear the language of mature statesmanship from some of the advanced members of the Labour Party. So far as I am concerned, I suppose that in this particular state of public affairs there is no man with a well-balanced mind who can envy the position of the Government. I am sure I do the Prime Minister and many of his colleagues no injustice, when I say that the present position of this Chamber is such as to make the present conditions of leadership a source of no satisfaction, and of no honour. I do not think the Prime Minister could give a stronger or a more genuine proof of what he has publicly uttered, than he has done throughout the whole of this trans- action. I only hope that any one who follows him will imitate the high example which he has set. So far as I am concerned, I believe I have so just a judgment of the serious difficulties which surround, not only this Parliament but this country, that no one could look to the prospect of Ministerial responsibility - that is to say, no one of experience could look to the prospect of assuming responsibility for public affairs - with a light heart. So far as I am concerned, as I say, I most unhesitatingly adopt the attitude which the Government have assumed on this question. . I have an absolutely clear view - it may be mistaken, but it is absolutely clear - that any such course as is now proposed would be a breach of the Constitution, and would be a serious - a most serious - assault on the integrity of a national compact, in its most vital provisions. I feel - and I wish my position at the present time to be one of absolute clearness - that, if I were in the position of the Prime Minister to-morrow, I should just as fearlessly and resolutely, to the very last, take up the position which he has taken up.
– In this matter, the right honorable gentleman means.
– I am only referring to this matter. I have no sort of objection to the principle which underlies this measure for conciliation and arbitration. I think, as I have often said, that departures have been introduced into our system of law which are of the most extreme and dangerous type, and which can be justified only by results. I am free to admit, as one who comes from a State where this experiment has been working for some time, that if our experience there during the next two years does not become more favorable than it has been during the last two years, there will not be the slightest chance of the law remaining on the statutebook of that State. I make that statement because I believe that those who will be found most opposed to the continuance of the law will be the working classes of New South Wales. But I still hope that in the course of the next two or three years the conditions surrounding this attempt to secure a great and noble end will be more promising. We must remember that this was entirely a new departure, and that a multitude of rankling grievances and dispute* were almost bound to come to the surface the moment the Act was passed. Therefore, in spite of the unfavorable experience and unfavorable effects of this Act in New
South Wales, I hope that, as matters become more settled, the experiment will be a much greater success.’ But we must remember that, all through, this has been absolutely an experiment - only an experiment. We must remember that some of the grandest representatives of labour in the world, and some of the grandest associations of the most skilled labour in the world, have just as strong views against compulsory arbitration as the leaders of labour in Australia have in favour of the system. I only mention this fact to show that even in the ranks of representative men, who stand highest in the scale of intelligence and in loyalty to the real interests of labour throughout the world, a vast majority at the present time are absolutely opposed to the principle of such legislation. In endeavouring to make Australia as we all, I am sure, are endeavouring to do, the most advanced, the most enlightened, the best governed, and the most fair and generous country in the world in relation to those who have least and who suffer most - in our desire to advance the general welfare and happiness of this Continent by a fearless spirit of progress and of experiment - we must occasionally remember that all the political intelligence and all the political insight in the world is not entirely monopolized even by the Labour Party of Australia.
– I do not think we claim that.
– I know the honorable member has not yet made any official utterance to that effect.
– I shall make an official disclaimer if the -right honorable and learned member likes.
– But the language of my friend, the honorable member for Bland, has recently, and very rightly, assumed a degree of gravity which is very interesting. One of the pleasures of these political. controversies in the Federal House is the feeling of personal esteem which we entertain for one another -leaving myself entirely out of the question - and which I entertain for the head of the Government and also for the head of the Labour Party. I have never, I hope, concealed the respect and admiration which I entertain for my friend who leads the Labour Party. I cannot fail to perceive that to restore the political state of the Commonwealth to a’ sound basis there must be a great deal of desperate political fighting. The people of Australia, whichever way they decide, must be aroused by all political parties to a keener perception of the importance of applying their intelligence and patriotism to problems affecting the common weal. One of the best and greatest advantages which we can reap for the anxieties and tribulations of a political crisis in this House is that it may tend to quicken the conscience of the Australian masses, and bring the intelligence and patriotism of an ever-increasing number of the people of the country within the sphere of active politics. As a result of the division which is about to take place, I look forward to very great changes. I look forward to the beginning of a struggle which will make history for many years to come. But, in the beginning of this great struggle, it is a source of satisfaction to me that, whilst we are on the brink of a crisis, and whilst the feelings of members are justifiably keen, there is an air of good feeling and of toleration for differences of opinion on the part of all leaders of parties, and all the members of this Parliament, which augurs well for the future of this country, whatever the result of the crisis may be.
– I desire to say a few words on the amendment before the Chamber. Before I address myself closely to the matter in its legal aspect, and then in its aspect of desirability, I should like to point Out distinctly that, in voting for or against this amendment, it ought to be thoroughly understood that we are not mingling two matters which may, on the face of the amendment, be involved. These two matters are the relation of the Commonwealth servants, as well as that of the State servants, to the measure. This amendment touches both; and entirely different considerations will prevail with regard to the Commonwealth servants as distinguished from the State servants ; because, if this amendment be lost, the Bill will, exclude both Commonwealth and State servants. But the debate has proceeded, and, as I understand, will continue upon the basis that we are discussing the question of applying the Conciliation and Arbitration Bill to the public servants of the various States. We must all recognise, as has just been said by the leader of the Opposition, that the occasion is one of great importance. In the remark that a change of Government is always” a matter of importance, I agree with’ the leader of the Opposition, but with the epitaph he has pronounced on the retiring Administration I do not agree. I shall only say of the Government, as a supporter who, I think, has been at once independent and loyal, that I believe the memory of this Administration, which has been substantially the same throughout, will be for all time associated with measures great in themselves, and especially great in that they mark, in many instances, the initial steps in the building up of this great Commonwealth. There is a matter of greater importance than that of a change of Government involved in this question, and that is the relation, present and future, of the Federation and the States. That is a matter of enormous gravity, and I feel that, while maintaining the attitude I took up in the last session of the previous Parliament, I should say a few words on the legal aspect of the question, to which I did not address myself on the last occasion. I have maintained, as I have said, the same opinions, confirmed by further thought, that I had the honour to address to the Chamber on the point of expediency. With regard, to the legal position, after the best thought I am able to give to the matter, I regret to say that I do not believe any man can pronounce definitely as to whether this proposal is constitutional or not, until the matter has been decided by the tribunal to which the Constitution has intrusted its decision - namely, the High Court-
– There a lawyer speaks. . Mr. Reid. - The Ministry would find the honorable and learned member’s advice worth taking.
– If any justification were needed for the expression of so guarded an opinion as that it is to be found in the diversity of the opinions expressed by legal members of the House.
– How is your vote going?
– We find arguments of great weight in the observations of the Prime Minister, who quoted portions of the Constitution indicating that State servants are by implication excluded from the operation of certain sub-sections of section 51. We have’ had observations of equal weight from the honorable and learned member for Northern Melbourne, pointing out portions of the Constitution the direct inference from which is that they are included bv implication in the provisions of the Constitution. We have had to night most important speeches from the honorable and learned member for Darling Downs and the honorable and learned member for Bendigo. All these honorable and learned members have thrown a vast amount of light upon the subject, and have contributed much erudition to the dis cussion. I was going to say to the solution of the question, but that is beyond our capacity at ‘the present time. If we look at section 51, sub-section 11., which confers upon the Commonwealth Parliament the power of dealing with taxation, and if we then note that under section 114 State property is excluded, the natural inference is that, but for that express exclusion, the States would come within the former section. Then, if we turn to the preceding sub-section of section 51, under which the Commonwealth Parliament is given power to deal with trade and commerce with other countries, and among the States, we shall find that, by section 98, State railways are declared to be within the province of the Federal Parliament in regard to trade and commerce, and yet, apparently, without that express mention they would be outside our jurisdiction. We have in the provisions of two consecutive sub-sections of section 51 and other co-relative sections of the Constitution, material for exactly diverse opinions. When we go further, and refer to the banking and insurance sub-sections, great weight is to be given to the argument of the honorable and learned member for Northern Melbourne, because it is impossible to say, that we can ignore those words, “ other than State banking,” and “ other than State insurance,” and giving the weight which a lawyer would be disposed to give to those words, the Constitution must mean that, if those words were not there, State banking and State insurance would undoubtedly be included in our powers. Then we have sub-section xxxii, referred to by the honorable and learned member for Darling Downs, dealing with the control of railways for the transport of naval and military forces. Surely it could not be thought, for an instant/ that State railways would be excluded in connexion with such a matter. It would be idle to put in the Constitution a provision that the Commonwealth Government should have the power of controlling and regulating the transport of troops, naval and military, over the railways of Australia, and to read it as meaning that it should apply only to private railways. That would be futile. Other sections may be referred to in the same way, and therefore we are left, as the Constitution now stands, in a state of indecision. It has been said, notably by the honorable and learned memher for Bendigo, that the well-known maxim of English law, that an Act is not to bind the Crown unless the Crown is expressly mentioned, or unless there is a necessary intendment, clearly shows that the Convention that framed this Bill, and the people of Australia who accepted it, never contemplated the inclusion of the States within the purview of its provisions, unless they were expressly mentioned.
– Does the honorable and learned member think that that maxim about the Crown applies to a Constitution?
– I do; and I am going to say why I do not agree with my honorable and learned friend the member for Bendigo. This Constitution, as it was passed by an Australian Convention and approved by the Australian people, was not the Constitution that Ave have before us now. The Constitution that left Australia and reached the Imperial Parliament contained iri the second section these words -
This Act shall bind the Crown.
Therefore, as the Constitution Avas accepted by Australians, and as it left Australian hands, undoubtedly the States would have been included, in my opinion. I think that if Ave recollect that it will harmonize many of the differences which have found expression during this debate, as it will show that there was no necessity’ to specifically mention the States in many of the sub-sections of section 51, such, for instance, as the sub-section dealing Avith conciliation and arbitration, and that relating to railways, because in the very forefront of the Constitution were those commanding words, “ This Act shall bind the Crown.” The Imperial Parliament struck out those words.
– That seems to have been overlooked.
– Were they not included in another part of the Constitution ?
– No. I desire to say that by the simple elimination of those words I fear and believe that the Constitution will have in many respects a different operation from that which it would have had had those words been retained. That simple fact will convince us that Ave cannot rely on the argument that it Avas not the intention of the Convention to bind the Crown. But, as a matter of law, Ave have to look at the Constitution as it stands, and to recollect that the Imperial Parliament, in the exercise of its right, however it may have grated upon the feelings of Australians who framed their own governmental agreement, did materially alter the Bill that Avas sent home to them. The High- Court will have to decide whether the Crown is bound by the measure as it stands upon the statute-book. I venture to predict that it cannot be. held that the same universal principle applies throughout the Bill. No principle of statutory interpretation is more deeply rooted in law than this, that no Act shall bind the Crown unless by express words, or by the nature of the enactment. As late as 1902 the Lord Chief Justice of England, in determining the case of Hornsey Urban Council v. Bennell, 1Q02, K.B., page 80, said - “ The intention that the Crown shall be bound, or has agreed to be bound, must clearly appear, either from the language used, or from the nature of the enactments.”
Mr. Hardcastle in his work on Statutory Law, at page 385, and elsewhere, points out most clearly, and marshals his authorities for stating, that when the King assents to a law that is presented to him, it is understood that it is to be binding on his subjects Only, unless the King himself is specifically mentioned, or the implication that he is to be bound is so strong that it cannot be resisted. Not ‘only does that apply to the Crown directly. but, as has been held in many cases, it also applies to Commissioners under the Crown. The Railway Commissioners are intrusted with Crown property or functions for convenience of administration; and no difference of result can be deduced from the fact that Railway Commissioners, and not the Crown direct, are affected.
– Would the Bill extend to municipal councils ?
– They do not represent the Crown.
– But would they be included in the Bill?
– They would not be included in the amendment. We are deprived of any argument arising from the express inclusion of the Crown, and we have to fall back on the nature of the enactment. It would be profitless for me to go through the various arguments that could be adduced on both sides as to the nature of the Constitution - on the one hand, that it is important that it should be a great national instrument, that we should have the broad construction, as it is called in America, so that the nation shall have as little resistance as possible offered to its development, and as few fetters as possible placed upon its growth, or, on. the other hand, that the Constitution should be strictly construed, and that the States are entitled to exercise, according to the I words of the Constitution and the spirit of the enactment, all rights in respect to their own Departments retained by them, and necessary for the carrying out of their own functions. These are- matters that will have to be determined by the High Court, and it is possible that every subsection of section 51 will have to stand on its own footing. The result may be that we shall never have a decisive interpretation of any one section by reason of the meaning attached to another. We shall have to determine the form and effect of each subsection of section 51 by itself, and I foresee no very pleasant prospect for the States or the Commonwealth in the multitude of cases in which the High Court will be called upon to determine the functions of the Commonwealth and the rights of this Parliament. I think I have shown honorable members that no man can pronounce, with any degree of definiteness with regard to our powers in reference, to conciliation and arbitration. I have the misfortune not to agree with trie Prime Minister as to the application of the American cases. I think they are entirely beside the question. In the Privy Council case of the Bank of Tar onto v. Lambe, it was pointed out that the principle of the American cases did not apply to Canada. In America the States and the Federation exist side by side independently of each other, except in so far as the tie of the Constitution goes, and that there is no power above them common to both. With us, however, the Crown is above all. It radiates through every part of the British dominions, the British Islands, Canada and every Colony, State, and Possession. Such is not the case in America, and this at once marks the fundamental distinction between the American Constitution and our own. The Supreme Court of Victoria, following the line laid down by the Privy Council, has held that the American cases do not apply here.
– Was that following the line of the Privy Council ?
– I think so, distinctly.
– I take leave with all respect ‘to doubt it.
– I say with great deference that that is my view. The honorable and learned member for Darling Downs quoted the American legislation with regard to the Arbitration Acts,- 1063 of 1888, and 370 of 1898. These measures, although they provide for arbitration between railway companies and their employes, relate only to voluntary ‘ arbitration, and there is no compulsory element in their provisions.
– But the enforcement of the judgments of the Court is compulsory.
– Only to this extent: That if the parties choose to arbitrate they are bound by their agreement, which is capable of being enforced. They are not bound in spite of themselves - they need not be bound at all. If two parties each choose to appoint an arbitrator, the arbitrators may appoint an umpire, or in the absence of an agreement as to the umpire the chairmen of the Inter-State Commerce Commission and the Labour Commission may appoint an umpire. If an agreement is arrived at it is binding upon both in the same way as a voluntary contract.
– They do not rely upon the contract, but upon the right of the State to interfere with trade.
– The Acts simply provide that certain parties may enter into a voluntary bargain, and that if they do so the bargain must be carried out in a certain way. These provisions, however, throw no light whatever oh the construction to be placed on sub-section xxxv. . of section 51. Now -what is our duty ? If we are not Clear as to the powers of Parliament, should we refrain from dealing with the matter on its merits? I say “No.” If the matter Were perfectly clear; if I were sure beyond all possibility of doubt that it was unconstitutional, I should refuse to fly in the face of the law, but with anything short of the most perfect assurance that it is unconstitutional, we ought not to decide this question against ourselves. We must recognise that there is a High Court which has committed to it the function to perform this very work; and, therefore, I, for One, shall not refrain from considering this question on its ‘ merits. On the ground of expediency, I regret to say that I shall have to vote against the amendment. Last session I expressed,’ at considerable length, my views on the subject of compulsory arbitration. I endeavoured to explain why I supported it with my whole heart. I still maintain that attitude, and I do so for the very reason which will actuate me in voting against the amendment. I believe that the Arbitration Bill, as .introduced by the Government, is one of such nobility of aim, such justice, such uprightness of purpose, with such power to conse’rve industrial peace, to preserve commercial enterprise, and- to maintain commercial stability, that all classes of this community, employers and employed alike, ought gladly to welcome it. Why ought it to be welcomed ? To prevent strife, it is true; but how does that strife arise? It arises because of private cupidity, which is natural enough. Private interests, which every man is entitled tq hold and maintain, naturally prevent him from taking an altruistic view of the position of his neighbour. It is right, I believe, that to avert greater evils, to prevent internecine strife, to prohibit quarrels between employer and employe^ leading to the obstruction of production, and causing suffering, not only to the parties concerned, but to the community at large, that the public power should step in between two sets of combatants, and insist on industrial peace. But where no considerations of private greed, rapacity, or cupidity enter into the matter, where it is the whole people of a State who are the employers, I cannot recognise the analogy. There was a strike in Victoria, and it was settled by the Parlia-ment of Victoria; it did not come before the people of the State for settlement. . As a Federal legislator, I have no right to express publicly an opinion on the action of the Victorian Parliament. Whatever that may have been, I am not ready to impeach the whole people of Victoria of being unwilling or unable to do justice. The power that the amendment will give us, if the High Court should declare it to be valid, may be a necessary one to use at some future time in our history. I do not say that it is impossible that it should ever be so exerted. This Constitution is not for a day, or for a decade, but for all time. The States may in the future embark on undertakings which at present are left to private enterprise, and for the sake of securing uniformity, or for some other reason, the Commonwealth may require to step in and make a law to regulate them. But that time has not yet arrived, and merely because the employes of the Victorian people are not in our opinion justly treated, whatright have we to interpose the arm of the Commonwealth between them and the State, and to fix the agreements between the two parties ? I decline to be one ‘ to pass a vote of want of confidence upon the State in which I was born. Those considerations embrace pretty well all I have to say. The amendment involves the tearing up of every Act of the Victorian Legislature relating to the Public Service and to the railway service. Why should it be left to the Federal Judge to disregard everything that the Victorian Parliament has said or may say on the subject of its employes ? I speak of Victoria because that is the State from which I come, but my’ remarks are applicable to every State of the Union. Why should it he tolerated that the Federal Judge - because the two assessors will be sure to disagree - should disregard every Public Service Act and every Railway Act, and determine who shall enter the Public Service of a State, how they shall enter, when they shall enter, and upon what terms, how long they shall remain, what salaries they shall receive, what hours they shall keep, what work they shall do, how they shall be treated, what privileges they shall enjoy, and the people of the State have nothing to say ‘ in the matter except to pay ? I cannot see that there is any justification for that It may lead to a great deal of friction between the Federation and the States.
– Even if it were constitutional, the honorable and learned member would npt consider it expedient.
– I have said so. I think it would lead to a great deal of friction. I hope not. I can only do my best to give expression to the feelings and reasons which animate me at the present time. Considering the little -amount of good that it could do, because, at the most, we can deal only with disputes extending beyond the limits of a State, I think that it will not be wise to put this affront upon the people of Victoria, by interfering with the self-govern: ment of that State. As a well-wisher of the Bill, and a strong supporter of it, as one who desires to maintain and further the principles which underlie and are interwoven with it, I consider the amendment, ably as it has been moved, and eloquently as it has been supported, a mistake. I hope that it may not prove a mistake, but, as at the present” moment I believe it to be such, I feel it my duty, for the reasons I have given, to vote against it.
– As there are other speakers, and the debate cannot finish to-night, I ask the Prime Minister - seeing that the speeches which we have had have been not only interesting, hut confined within very narrow bounds- - to report progress now.
– The request is being made earlier than I hoped it would be, but as there are other speakers, it is a reasonable one. I invite honorable members, however, to assist us in closing the debate to-morrow night. I think we can do without unduly curtailing the remarks any honorable- member.
House adjourned at 10.19 p.m.
Cite as: Australia, House of Representatives, Debates, 19 April 1904, viewed 22 October 2017, <http://historichansard.net/hofreps/1904/19040419_reps_2_18/>.