4th Parliament · 1st Session
Mr. Speaker took the chair at 10.30 a.m., and read prayers.
– Will the Acting Treasurer draw the attention of the Minister of Defence to the report in to-day’s Age of the incident which occurred yesterday at the Williamstown Rifle Range, when markers who struck work were replaced by the military? Has he any information regarding it from the Minister of Defence?
– This morning I had a conversation on the telephone with the Minister, and ascertained that the markers employed at Williamstown are under the control of the Victorian Rifle Association, and, consequently, such matters as were referred to last night by the honorable member for Melbourne donot come directly under the notice of the Defence Department. A strike of markers occurred while shooting was taking place, and Colonel Sellheim, after a consultation with the officer controlling the shooting, took upon himself the responsibility of ordering members of the Royal Australian Artillery who were on duty at the time as check registrars, to go into the trenches and do the marking. The order was given without reference to the Minister, and without his authority. A preliminary inquiry was held this morning by the Minister, at which Colonel Sellheim was present; Colonel Stanley being out of town, his attendance could not be secured. As the result, the Minister has instructed the Inspector-General to sit as n Board of Inquiry, and report on Colonel Sellheim’s action.
– Will the Minister of Home Affairs supply honorable members with data showing how citizens who are willing can obtain employment in the Government offices throughout Victoria?
– I shall attend to the matter.
– Following upon the statements read by the honorable member for Melbourne Ports yesterday from mi article published in the Bradford Observer, I wish to draw the attention of the Minister of External Affairs to the following paragraph, which appeared in this morning’s Argus -
Messrs. Veitch and Powell, two immigrants whose grievances have recently excited attention, have sent statements to tha Premier (Mr. Wilson), denying that they had anything to do with the article that appeared in the Bradford Observer, attacking West Australian land administration.
– I shall be pleased to bring the matter under the notice of my -colleague.
– As the Fitzroy Dock, in Sydney, has recently been intrusted with the construction of a destroyer, I should like to know why it is to be deprived of the opportunity to repair the other vessels of the Naval Unit. Is not an establishment which can construct a vessel entitled to the opportunity to do repair work also? Does the Minister recognise that the Imperial Government intrusts the Fitzroy Dock with the repair- of its vessels, notwithstanding that it has workshops of its own on Garden Island, in Port Jackson?
– The Government does not for a moment suggest that the docking facilities of Sydney are not sufficient to provide for the putting together of the destroyers and their refitting, but the Minister of Defence has informed me that, “for the refitting of the two destroyers now coming to Australia, it will be more convenient to send them to Williamstown or Brisbane, because at Sydney we should have to employ State officials, whereas at the places I have mentioned we have men and material of our own for doing the work.
– Has the Government received any authoritative statement from the Imperial Government as to its alleged intention to make Auckland the naval base for Australasia?
– I do not know whether the Acting Prime Minister has received any information- on the subject.
– The Minister of Trade and Customs promised to institute inquiry :is to the use of rice straw for the making of brooms, which were passed off as millet brooms. Has he done so. and, if so, with what result?
– Inquiries have been made where brooms are chiefly manufactured, and it has been ascertained that in one case rice straw, with an outer covering of millet, was used, but the manufacturers say that they have discontinued the practice. I caused a paragraph to be published in the press to the effect that I looked upon this as an impudent fraud, and adulteration of the worst kind, and that if possible I would deal with those guilty of it as I should with boot manufacturers who used cardboard for the soles of boots.
– The Minister promised, three months ago, to obtain an immediate decision from the Cabinet regarding a proposal to place an export duty on hides. Has he consulted the Cabinet? If so, what decision has been arrived at?
– -The Cabinet is not favorable to the imposition of an export duty on hides and skins. Such a duty would not be imposed without inquiry, but as to whether an inquiry will take place, that is another matter.
– Two or three weeks ago I asked the Minister of Home Affairs whether he would ascertain what it would cost to lay down a third rail on the railway track from Melbourne to Albury. Has he yet got the information?
– I have made inquiries, and, as soon as I have’ obtained information which is of use, I shall make it available to the honorable member. The Departments are very slow.
– Will the Minister ascertain from the South Australian Government what was the effect of laying a third rail between Bordertown and Wolseley? These was a third rail on that line for manyyears, and it was found to be useless.
– I shall have the matter looked into.
asked the AttorneyGeneral, upon notice -
Willhe take steps to avoid the inconvenience under which honorable members are placed in consequence of the practice of omitting to accompany amending measures with a printed copy of the sections proposed to be amended, by which constant reference to the Commonwealth Statute Book will be obviated ?
– I shall be very glad to do what the honorable member has suggested.
asked the Acting
Prime Minister, upon notice -
– I have not read the answer given by the Chancellor of the Exchequer, but I shall do so with a view to giving consideration to the suggestion which the honorable gentleman says is therein contained.
asked the Minister of Home Affairs, upon notice -
– The Public Service Commissioner reports -
This is a question of ways and means as well as of remuneration in its relation to the value of work performed. The payment of 8s. per diem would in many cases be excessive and out of proportion to the services rendered. The Go vernment must have regard to its responsibilities in other directions before involving the Commonwealth in an additional expenditure of £62,000 per annum, which the adoption of this proposal represents. The question is, therefore, one that can only receive consideration when the Government is dealing with the finances of the Commonwealth generally.
– Is that the reply of the Commissioner or of the Government?
– Of the Commissioner.
– Why does he make use of the word “ Government” ?
– Order ! The honorable member for Maribyrnong must not interject across the chamber.
Debate resumed from 18th October(vide page 4715), on motion by Mr. Hughes -
That this Bill be now read a second lime.
.- While feeling and expressing every appreciation of the speech of the Acting Prime Minister last evening, he will not misunderstand me when I say that it appeared quite inadequate to the subject we have in hand. I hasten to add that my own speech most certainly, and probably every other speech which may be delivered, will be open to somewhat the same imputation. So many and so grave are the issues involved in this series of alterations of the Constitution that an attempt, strictly on the line and in the light of principle and not of detail, to deal with them satisfactorily and fully would surpass the endurance, if it did not surpass the ability, of any member of the House. My own contribution in the way of criticism, therefore, will be offered subject to those reservations. In fact, the proper place for a specific and detailed consideration of much in these fundamental alterations of our Constitution is in Committee.
The only manner in which I feel able to approach a consideration of the measure is not only with an admission of the necessary inadequacy of any treatment I may offer, but also with an admission that, even with that restriction, I shall be of necessity compelled, as well as by choice induced, to confine myself to the principles involved. No doubt something was required from the Attorney-General in relation to other Constitutions which claim the title of Federal, but I may be permitted to remark that the practical considerations were not touched upon. He gave us in rough outline the familiar features of the several Constitutions capable of being grouped together formally under the title of Federal. That review was almost irrelevant, inasmuch as every one of these, was under careful and continuous review in our Conventions lasting for many months - in the case of the country, for some years - before ours was adopted. Those who framed our Constitution, those who submitted it to the people, those who opposed it, and the overwhelming majorities which indorsed it having all these choices before them preferred our form of Federation, and it is late in the day, therefore, to revive the question, as if it were an open one, or now required to be solved. Of course, every precedent is open to reconsideration, but it should not be a reconsideration of that elementary character. It ought to be conducted in the light of our own particular circumstances, for it is a Constitution for Australia that we want, and not a Constitution for Canada or South Africa j a Constitution which shall, as far as possible, fit our own circumstances, and not dictated to us by abstract doctrinaires or a slavish copying of any system adopted in another country.
For instance, the one Constitution of all others which most commends itself to my honorable and learned friend was “made in Germany,” but it was made for that country. Are there two countries in which either the political, or the social, or the industrial, not to say the geographical, conditions are more dissimilar than are those between Germany and Australia ? I say less of the differences between the peoples. We came originally from the same stock, and we have reason to be proud of our Teutonic relations and relationship ; that is by way of admission. But they have followed for centuries a different path and to-day still represent the principle of absolutism in European politics rather than the principles of the democracy which is struggling with that absolutism.
I, too. might be tempted into these fertile, but rather unproductive, comparisons by the point of view from which the AttorneyGeneral chose to approach this question, but-so far as possible, must needs husband my resources in this vaguer portion of the arena, in order to come into closer grip with the subject. lt is not only that we may lack time to fully conduct an inquiry into the proposed amendments, but because at this stage, unless we prolong our sitting into next year, we shall not be afforded sufficient opportunities for the consideration of these five important measures, each of them fundamentally and vitally affecting the Constitution of this country, and, together, of immeasurable influence on its political future.
During this session we have led a strenuous life. Never before in the Commonwealth Parliament has there been such a pace kept, or so distinct a grouping of parties. For the first time, a single party with an absolute majority of its own - quite apart from the peculiar characteristics of that party - reigns in each House of this Parliament. Those who sat for constituencies prior to the last election will recollect the very adverse circumstances under which the simplest of measures had then to be faced. But, even allowing for the overwhelming numbers of my honorable friends opposite, our progress has been, when fairly measured by the legislation of local Parliaments in similar circumstances, extremely rapid. In fact, we have been suffering from “ quick lunch “ legislation to an inordinate degree, and already the process of resorting to the usual stimulants, such as the sacrifice of the business of the unhappy private member, has happened early in October - a thing never known to occur before.
AVe not only have forced upon us the consideration of a series of Government measures which call for the most thoughtful review, but superimposed upon them we have five proposals which go to the root of the whole Constitution. Such a burden is almost more than this House can bear in one session, if we are to proportion our efforts to the magnitude of the subjects with which we are faced. This does not mean extending the length of our speeches, but the much heavier charge of taking every practical point into full consideration. If we do that we shall do well. Partially exhausted, overdrugged with legislation, we ‘ approach these questions towards the close of a session when physical weariness becomes an important factor, since it carries with it inevitably a certain amount of mental weariness. We must regret that this is so, and also regret that it may not be possible for us to see these questions approached from both sides of the Chamber with that complete and entire openmindedness which allows every one to weigh proposals of a national and permanent character without consideration of party ties and responsibilities.
– Hear, hear ! I expect a good deal of help from the honorable member.
– Let me do my best to begin, and I trust that I shall not disappoint so amiable a critic as my honorable friend. But does any one expect that, or really hope for it? Is it not a fact that, although this need not be, and ought not to be, a Ministerial question, we commence the consideration of it with the knowledge that, whatever case may be put by us we have no reasonable prospect of seeing any of these proposals materially altered ? That is a very discouraging condition with which to open a debate on questions which ought to be considered apart from party. I have not had an opportunity of ascertaining whether honorable members on this side are all at one. My personal opinion is that there will be differences of opinion in regard to some proposals; although I hope that if they exist we shall, by a fair process, arrive at an agreement as to what ought to be done in each instance in the public interest. If that could be done by the House as a whole, we should then be adopting the right attitude in circumstances which would give us ground for hope. I must confess, however, that, while members opposite are evidently good enough to give our case a thoughtful hearing, their decision is weighted, to begin with, very adversely against us.
– Oh, no; only that we mean to make it effective.
– If by “it” the honorable member means a Federal Constitution in the sense in which this Constitution was federal when it was adopted, I am entirely with him; but if what he wishes to make effective is an anti-federal or unfederal Constitution, I sincerely hope he will not succeed. Whether it is or is not is a point which I shall reach shortly.
One of the most suggestive portions of the speech of the Attorney-General last night was that in which he stated that the party opposite were returned to carry out their full programme, to impose a graduated land tax, to legislate in regard to trusts and combines, to take power to nationalize monopolies, and to accomplish several other radical changes in our constitutional system this session.
– And to give effect to new Protection.
– He mentioned that also. The Attorney- General was perfectly right in making that claim. He and most of his followers made that assertion directly and repeatedly during the late electoral campaign. In the face of it they got a majority in this House, as I have already pointed out, out of proportion to the voting in the country. They got a majority in the country, but very small, and in the House, one very large, but they got both on that programme. I am not one to dispute it. I called attention to it over and over again at public meetings, and put it in the strongest possible fashion.
More, after the present Prime Minister’s prediction of the number of seats that he expected to win in the different States, giving him a majority, instead of joining in the chorus of derision which arose, speaking on the first night after that estimate was made I said the honorable member for Wide Bay was prophesying on excellent information, and, so far as I could see, it was quite likely that his forecast would be realized. At every meeting addressed after that I told the same story, at all events in Victoria, where I think I was then touring. Pointing to the platform and the prophecy, I said the prophecy was quite likely to be realized, and that if it were the whole platform would be carried out. I could get scarcely any of my own side to believe either statement. They ridiculed the forecast of the numbers to’ be returned, and many others, some friendly to the Labour party, assured me over and over again that when the party got into office nine-tenths of their programme would be laid aside, merely the other tenth, which was acceptable, would be carried out, with perhaps a few little reforms thrown in. Personally, therefore, I have the sad satisfaction of having prophesied correctly. Not being the least surprised, I make no protest against my honorable friends’ actions. They stated what they were going to do, and are quite justified in doing it. The responsibility rests on this community, which chose to rely upon its own theories in its action or want of action. A sufficient proportion acted, or failed to act, in consequence of that opinion. Therefore, we start fair here, and my critics opposite have no ground for complaint on that score.
– The honorable member will believe in our “ crowd “ yet.
– Some of them are very pleasant, and some verydangerous, persons.
I am addressing members opposite, whose opinions with regard to this Constitution were made up before they came here, and who were returned on those opinions, but if they had not made up their minds beyond all recall, I should commence by asking what is wrong with the Constitution we have. At all events, what is wrong with it that is not capable of being put right without wrenching it apart or breaking into it by violence? Why not bring any powers that are insufficient In the Constitution to their natural flower and fruit wherever an amendment is needed? When all we suffer is from irritating symptoms attending some slight, but rather aggravating, complaints, why not adopt a simple change of diet and a few ordinary constitutional household remedies? Why rush to the surgeon at once and ask for five operations in five different portions of the body politic? Health is not to be achieved by violent means. It is achieved in spite of them, if at all. No one desires to break into the human constitution, seeking to carve its vital organs with the knife, except in cases when desperate circumstances demand desperate remedies. Does any one pretend that the state of Australia to-day is in a desperate state calling for desperate remedies?
– Socially and industrially it is.
– No; socially and industrially, comparing like with like, the honorable member can show me no part of the world where the state of society is healthier than in Australia. All things human are imperfect; some of our affairs are out of joint, and we encounter various maladies. Apparently these conditions are incident to humanity in its present stage. All desire to see it outgrown ; but who can say that Australia’s condition is such that it calls for these novel and heroic remedies? Shall we not certainly run the risk of begetting more, and perhaps more serious, ills than those we are endeavouring to cure by this hasty and hazardous method ?
– But that only applies after some operations.
– Putting South Africa aside, as the Attorney-General properly did, with its unitary constitution, the Australian is still the youngest of the federal Constitutions in the world. Not only that, but it comes more closely to the intentions of those who framed and those who adopted it than any existing Constitution of a similar kind. Naturally that is so, because it is only ten years old. This is the Constitution to which we are proposing, not what might be called a natural or forced, or even hasty, ripening, but changes, some of which are both fundamental and perilous. We shall deal with them seriatim presently.
The people of Australia ten years ago voted this Constitution in four States by two to one, and, after some important, but not vital, alterations, voted it in five States by nearly three to one. Consequently here is a Constitution, so to speak, fresh from the hands of its makers ; comparatively recently approved by the people by large majorities; and yet about to be amended, not in a curative, but in a reckless fashion. That in itself must suggest to honorable members the query whether we are justified in sanctioning the five-fold operation now proposed. I do not say that the Constitution when passed was perfect. I do not say it is perfect now. On the con.trary, to be a Constitution, it ought to be, and I think it is in this case, something mora than an ordinary statute or piece of legal machinery. A Constitution is, and was in our case, made by a nation; is made, as in this case, for a nation, and lives with the life of the nation - a growing organism that should naturally and without undue convulsion re-adapt itself to changing circumstances.
If this were the “dead hand,” as it was sometimes termed by those who originally opposed its adoption, there might be a legitimate cry that what we wanted was a living and not a fixed Constitution ; but we have a growing Constitution. As the Attorney-General pointed out, three amendments have been already proposed ; two of them have been carried and form a part of the Constitution. Others can be carried without any great difficulty. In fact, Ministers are sanguine that here they can carry the whole of these extraordinary proposals. If they do, one will be obliged to admit that not only is our Constitution living and growing, but that it possesses a capacity for self-mutilation not exercised by many living creatures.
– Self-mutilation is scarcely compatible with life and growth.
– Unfortunately it sometimes occurs, but I shall not shock the fastidious taste of the honorable member by pushing any metaphors of that sort too far. It conveys roughly what I mean, and we need not pretend that it is flawless.
Having found already that it is not difficult to alter the Constitution, we are not now placed in the position of choosing between either a revolutionary alteration or such a partial adaptation as will meet the demands of to-day. No honorable member will pretend that we are limited to that choice. Every one will agree that if a fair case can be made out for alterations the people of this country will give us authority to make them. Consequently honorable members cannot plead any emergency of the present situation as “a ground for asking more than are actually required. We are under no pressure. We are faced with no emergency which compels us to do more than is now necessary to enable the Constitution to evolve, as it ought to do, as the life of the nation evolves. But we are asked to-day to do so very much more than this, that the Constitution we shall have to consider, if the people accept these proposals, will be a new one in every sense of the word.
May I point out that this statement is no new expression of opinion from myself. In opening the late Federal campaign at Ballarat, I took occasion to reiterate what I had often said in this House, and in a previous election campaign, that the Federal Constitution was still incomplete, and its powers needed to be rounded off ; that there were subjects which necessarily required to be included within its scope before it could be regarded as complete. I called attention to two particular proposals which were then before the country in support of this view. Consequently, I am merely emphasizing once more a conviction arrived at some years since. We do not approach this question with a mind closed against argument in any direction, or bound or pledged by anything I have said or done to view unfavorably any or all of these proposals. Any opinion I happen to express is formed on the best material now before me, with such capacity as I enjoy, and with no limitations inherited from the stormy past.
Under these circumstances, I believe that here a very admirable and comprehensive memorandum by my late colleague, the honorable member for Angas, may be quoted with advantage. When AttorneyGeneral he felt it his duty to consider the position created by certain judgments of the High Court in interpreting the Constitution, in one respect at all events in a more restrictive fashion than most of us anticipated.
– When was the memorandum written?
– About August of last year. It will be in the hands of honorable members to-day, and supplies evidence, if any were needed, that our Government immediately preceding the present Federal Government did not fear to face at once any situation created by these new decisions. This elaborate memorandum was prepared for that Government, though, as a matter of fact, the members’ of it were never, as a Government, called upon to consider it. Our hands last session, as those who were members of the House then will recollect, were more than full. We had all that we could do at that time in this House to transact the very satisfactory record of business with which we closed the session, after a most unpropitious opening of two or three months’ preliminary exercises. Consequently we never had an opportunity as a Government to take into consideration the recommendations contained in this memorandum. They were made in the light of knowledge then, and they stand now, although I have no doubt my colleague, the late Attorney-General, and my other colleagues, may read it to-day with eyes which are more open to some necessities of the case than they were when it was prepared, because since then at least one decision has been given which adds to the strength of the case put forward.
In August, 1909, so far from being blind to the situation which was being created by High Court judgments, this memorandum, which was then confidential, and is now fortunately made public, is evidence of what our Government at the time undertook as part of its every-day ordinary duty in this regard. The present AttorneyGeneral last night read some very apposite passages from the memorandum. T was very glad the honorable gentleman did so. He has relieved me of the necessity of reading them. But there is one very excellent passage which he did not read, and! which I propose to give myself the pleasure of being, the first to place before honorable members. The honorable member for Angas said -
When the apportionment of powers is being considered there. Ls no prima jacie presumption in favour of either the Commonwealth or the Stales; both alike being parts of the Federal system, the distribution among them of governmental agencies must have regard briefly to considerations of self-sufficiency and effective use. The success of a federation depends upon the nice relation and co-ordination of the parts; on the preservation: or development of local, as well as national, centres of interest, discussion, and opinion. While remembering that a strong central Government is required to cope with many modern conditions, and may, therefore, be for lonie proposals at least relatively good, we must not forget that centralization does not always assure Lue perfect working of the Democratic principle; that directness and proximity “ stimulate electoral interests and strengthen administrative control ; and that uniform regulation of all the affairs of a continent may be inexpedient, if not mischievous
There is a fair balancing. That, I take it, is the federal spirit intellectually expressing itself at its best. Here we have the true national view, which takes the people of Australia as a unit - the people indivisible, and the territory indivisible, constituting the unit to be considered. It then justifies their two organs of government, the Federal, or national, and the local, including State, municipal, and other governmental agencies- subsidiary to the Government of the State, which it is not necessary to particularize.
But the health and activity of each and all of these is essential to the well-being of the whole of the body politic. To ignore, to maim, or even to dispirit either of these organs of government, would be to defeat the ends of Federation, which are to bring both into intimate and continuous co-operation for the fulfilment of national ideals, by whichever means is most suitable to the particular end to be achieved. When this instrumentality is local, and in very many cases it must be local, then it is to the local Government we have to look. It would but impair the usefulness of a National or State Parliament if the duties proper to municipalities, trusts, boards, and other sub.sidiary instruments of Government were cast upon it. In the same way a duty which is essentially and indispensably national, no one would think of remitting to such subsidiary bodies, or even to a State Parliament. All depends upon the balance and reciprocal adjustment of the powers to the circumstances. As my honorable and learned friend, in his memorandum very aptly says, the people having a choice of means, can defeat national ends just as much by overweighting this Parliament, which is naturally their principal and national agency of Government, as they could if they unduly depended on the State or municipal or other local Governments established throughout this country.
If the Attorney-General had added last night to the passages he quoted that which I have just read from the memorandum, he would have struck its keynotes, making the contention of my able and learned friend, the honorable member for Angas, perfectly clear. It seems, therefore, that the two dangers which we have to confront are, first of all, undue centralization, which may overstrain the national heart, and greatly diminish our effective strength. Every one admits that over centralization must have such effects. I confess that I do not like the words, “centralization,” and “decentralization,” but our language is wanting in precise terms in this regard. There must be centralization and there must be decentralization. In the same way, if there be an excess of decentralization, if there is a plurality of organs of government, we shall suffer from a want of unity of purpose and lack the vertebrate life of a nation. Here we’ face a difficult division of powers which those of us who understand the demands of our nation find grave in the extreme. .
The Attorney-General last night passed with a gay bound over all those gulfs surrounding the real question at issue, which is the distribution of powers between the Federal and local Governments. He relied upon the presentation of a number of subjects to honorable members as capable of being best dealt with bv the National Parliament, and in an absolute manner. The honorable gentleman won the applause of his- party by putting before the House the argument that in achieving this programme, and for this purpose, the short and direct mute was to give this Parliament, of which we are members, the power to magnify its office and opportunities, so as to enable us to achieve the nationalization of monopolies, taxation, and other objects which he set out. The honorable gentleman put before us the objects to be attained, and, so far as absolute silence could, he diverted our attention from what we should be sacrificing in our Federal Constitution, now based upon a fairly natural and healthy balance of powers in order to achieve these immediate ends. We who take the opposite view are at a great disadvantage, because instead of being able to make concrete appeals diverting public attention to certain practical results which may be obtained more easily after an alteration of our constitutional machinery, we have thrown upon us the responsibility of defending the constitutional machinery itself. The relation of Governments to Governments to the man in the street appears a much less practical matter than the ends sought to be achieved according to his immediate programme. The real question in this House is not whether this industrial legislation supported by our honorable friends opposite is necessary. It is not even a question whether there should be a greater control over trusts and monopolies. On many, if not all, of these questions, honorable members on this side are prepared to take a progressive view. But these are not the questions immediately at issue. The question is whether we are going to endeavour to achieve these ends by a great alteration of the national machinery which will be permanent - unless the people alter it back again - an alteration in the national machinery and character of our Constitution which will continue to be operative long after the immediate and particular object of the change has been accomplished.
– We cannot get that unless the machinery is altered.
– There I venture to join issue, but that is a matter for later consideration. At the present moment the fact remains that we are handicapped, inasmuch as we appear to be fighting chiefly for constitutional machinery - for the maintenance of the present situation sb far as it allows the free play of local institutions, finds them a distinct field, and encourages them to develop it. Our position, it seems to me, can be defended on the most prac-tical of all grounds, as well as on theoretical principles. 1 venture to repeat that those who suppose that all our affairs can be governed hy 125 men at Canberra, under a system which throws on them at that one centre all the affairs of this vast continent, capable of sustaining, not only millions but tens of millions, are committing themselves to a line of constitutional concentration which must break down, .and be followed by reaction, in order to secure a more efficient government. Our people must keep their direct control of local matters, coupled with a direct control of the whole in national matters.
– We can all say “ hear, hear,” to that.
– It is the next step in the argument which justifies my position. Perhaps I have taken a little leap, but it is necessary to establish the grounds for the opinion I hold that the government of Australia from Canberra under the Constitution, altered as is proposed, must be impracticable on any satisfactory basis.
– We thought .that the original Constitution gave us the power.
– The honorable member is probably speaking for himself. But I was more than amused when the AttorneyGeneral pointed out what “ we thought “ - speaking of the electors at the time of the adoption of Federation - the Constitution empowered this Parliament to do. “ We thought, “ said the AttorneyGeneral, “ that this Constitution assured us unlimited industrial and other powers,” and “ how deceived we were.” Who were the “we”? Not the Attorney-General. He was one of the strongest and most determined opponents of the present Constitution.
– At the original referendum, yes ; because it provided for equal representation in the Senate.
– Having opposed the Constitution to the utmost of his power, energy, and ability, he may be justified in his present action, but not in his pretence of being misled into voting for it.
– I opposed the Constitution because it did not give the majority of the people an opportunity to express themselves.
– If so, then the present Government and their supporters have no right to be in office - they must have captured it by accident.
– The honorable member is evading the point. The Constitution places us here, but it does not give us the opportunity to do what die people tell us to do.
– The Minister’s objection first, was that the Constitution could not be altered; but it has been altered twice, and nearly a third time, and now five more alterations are proposed. Next, it was said that the majority of the people would never be represented by a majority in the Senate - that it might be represented in this House, but not in another place. I ask honorable members to look at the Senate to-day. What was said by the AttorneyGeneral, and those who thought with him, at that time was not true - their calculations were hopelessly wrong. It is possible for a majority to capture both Houses, and it is possible for the Constitution to be altered. Therefore, their antagonism then, which was based on want of appreciation of the facts, was unjustified ; and that is why I contend that their antagonism now - this calling for ruthless root-and-branch alterations - is unjustified, and based on another mistaken forecast made by the same men.
Over and over again last” night the AttorneyGeneral returned, and properly, to what is the key to the whole position. He claims that the distinguishing feature of all Federal governments is the maintenance of two sovereignties within it - a sovereignty of a central government and legislature, and a sovereignty of subordinate governments and legislatures. The honorable gentleman committed himself to that sound and unanimously accepted view ; but he, further, committed himself to an extraordinary doctrine - which, so far as I know, is entirely his own - that the extent and character of the distribution of powers between the sovereignties does not matter a pin. It seems to me that here his argument committed suicide with happy despatch. What the Attorney-General first said was perfectly true. We have two sets of Governments, one local and one Federal ; and each must be sovereign within its sphere. He repeated that over and over again, though it is an axiom which every one accepts. He then went on to say that so long as we leave to the States some fragmentary power of legislation while endowing the Central Parliament with almost every power now possessed by the States, yet that such a Federation”, as a Federation, would be complete and satisfactory - “complete,” was his own word. Such a whole is “complete” only as a description of an abortion. Federation of a kind could, in that sense, continue to exist - there will still be something nominally, and in form, federal. But, in truth and in fact, the only real Government would be central, and the sham Government local. After the Central Parliament had made its meal, there might be some scraps left on the plate for the local legislatures. While the Attorney-General, w;th verbal accuracy, and in a strictly formal sense, could call such an arrangement “ Federal,” in truth and in fact we should have, a unitary Government, with a number of echoes and mockeries of Government existing as its attendants and always at its mercy.
A federal government, in the true sense of the term, is the most complex and delicate form of government yet devised by humanity. It represents the highest ideal and requires the most political culture of the most civilized races of the world. It is not even conceivable by less developed people, and cannot be carried on except by a community of highly-developed intelligence and judgment. There are examples of federation, taking the widest meaning of the term, as far apart as Germany and ourselves - and we may be regarded as, perhaps, the two opposite poles. Every federal government treads a narrow path, with an abyss on either side. Let the national parliament be weakened too much, and the government sinks to the level of a confederacy; in the absence of a national union, there is no true and effective nation. Or if the local governments dwindle while the central government is aggrandized you obtain a democratic despotism. It becomes a despotism when its central and sole Government is elected by a mere majority at a count taken over the whole of the continent. There should be a provision to insure that the deliberate and permanent will of the community prevails, and not the chance result of a particular decision registered in a single chamber. Yet that is what we are threatened with.
– The electors spoke loudly enough on the 13th April !
– Most honorable members will admit that I am justified in calling attention to the delicate and difficult task which besets any people undertaking such a Federal Government as shall establish and maintain a balance of power sufficiently to keep both local Governments and national Governments in full effectiveness, united in harmonious co-operation under the bidding of the whole people. That is the ideal we all have, and we should not admit any other. The Federal principle alone can suffice for this continent - Australia is too huge for an entire centralization. Although not pausing for authorities, let me quote the late Professor Freeman, one of those who contributed most to the history of federations, and did much to illustrate and elucidate their principles, contrasting those which made for success with those which made for failure. He points out that not only is its balance and harmony essential to the development of trade, commerce, employment, on the material side of progress, but is also essential to mental culture, particularly on the political side. In these regards a Federal Government gives the greatest results, because, a single and dominating Parliament, without local legislatures, really equipped with some share of power and responsibility, has lost its best training ground of a democratic character. No matter how vast the country may be, if truly federal in constitution every man in his own State and neighbourhood may train himself in local governments acquiring a knowledge of that part of the country, and of political practical methods, making him a much better and more efficient representative in the national parliament when his fellow-citizens send him there. The best training ground for politics, said Professor Freeman, is found In such subsidiary governments clothed with responsible powers.
– Such as provincial councils, for instance?
– Provincial councils, if of sufficient responsibility and weight, would meet the purpose. I am labouring these broader aspects of the question for this reason, that, unless I err, it is necessary that they should be stated at least once. If I relieve my colleagues upon this side of the House, or my friends upon the other, of the necessity of recalling them, that may enable us to come to closer grips afterwards. Upon the electors of Australia, under a federal form of government, more demands are made than would be made upon them under any other form of government. It is not enough for them to understand the particular question which they are asked to decide, as, for example, a tax it may be proposed to levy. They have to comprehend the balance of the Federal powers, to keep clearly before them the balance of their Federal Constitution, and to ask themselves: “ To which of our Legislatures can these powers be intrusted, or how should they be shared?” In other words, they have to determine which Legislature - Federal or State - is likely to most efficiently exercise each particular power committed to it. I venture to say that very few of the people of Australia asked themselves such questions at the last elections. They should have considered first what the particular proposals meant, and also how far they affected their two kinds of governments-
– The electors showed that they understood the questions submitted for their decision on the two referenda very well.
– Of course, we all know that a short cut is generally a tempting one; but that in many instances we are likely to find that, after all, it is the longest way round ; what appears to be a less direct path of advance is often the more permanent and satisfactory. When the people jealously support our State Governments within their spheres, and yet devote sufficient time to questions which are being dealt with by the National Parliament, we shall see them setting apart a full day for every ten minutes they now spare to their public affairs. If we take a group such as one meets in a tram or railway carriage, it is astonishing to discover how few have even read the reports of parliamentary proceedings in their daily newspapers-
– Would the honorable member have them neglect football and cricket ?
– lt is the so-called educated class who neglect to inform themselves of our parliamentary proceedings.
– To make the experiment a few times is to receive a lesson in the political education of the people. The closer the canvass conducted, the more amazing are the misapprehensions unearthed at every turn. To establish and attempt to maintain a Federal Government during a period in which this indifference and haphazard method of inquiry into the public affairs of the nation obtains, is to receive a lasting lesson in the risks which any really federal form of government runs, and must run, until an absolute transformation takes place in the attitude of our electors - until the desired information is not only supplied to the people, but is .by them weighed, measured, criticised, and consistently acted upon. Until that is done we cannot hope to have a thoroughly sound system of Federal Government.
Before I leave this aspect of the question - only touched upon here - it is scarcely necessary for me to remind honorable members of the striking fact that political developments in practically all unitary systems of Government to-day point in a Federal direction. If we look at the relatively despotic Governments of Russia, Austria, and Germany, we shall discover decentralization. If we look to our own Empire,, we shall discover it there. What is the cry in Great Britain to-day but ‘ ‘ devolution “ ? What is the cry which is to be heard in Ireland, Scotland, and Wales, but “ devolution “ ? Our own and only Imperial prospect is of some form of Federation adapted to the special circumstances of a world-wide Empire. Every Dominion will naturally adopt that form of selfgovernment which its people prefer. That is no concern of ours. But the only possible union of those Dominions and peoples in one Empire must be upon a Federal basis. I repeat that to-day the whole trend of political thought in every country is more or less in a Federal direction.
– It all depends upon what the honorable member calls “ Federal.”
– The existence of dual sovereignties, each supreme in its own sphere, and both responsible in degree to their common electorate. The ideal that we have always cherished for Australian Federation is to obtain the most highly developed of all these forms of government, though it is and will be the most difficult to establish or maintain, because it aims at a full realization of all our powers by means of two sets of Government. The strongest criticism that I have to offer of these Bills is that, judged by the standard of the highest Federalism - the complete development of local governing bodies - they fail - they proceed much too far in an opposite direction. They unduly centralize, and unduly discourage local development.
Whilst dealing with this subject, let me refer to the Budget speech of the Prime Minister in which he outlined the programme of his party for the current session. On page 2683 of Hansard he is credited with having made a rather remarkable slip. He affirmed that the industrial powers which the Commonwealth possesses through its Courts of Conciliation and Arbitration came to us in their limited form owing to the timidity of the draftsmen. So far from that being the case, there was not a proposal submitted to the several Federal Conventions which attracted so much attention and involved such a series of divisions. The Prime Minister said -
We have been more successful in our Federal Arbitration law, and I think it was nothing but the . timidity of the draftsmen of the Constitution which led them to insert the limitation.
The limitation to which he was then referring was that which permits the Conciliation and Arbitration Court to take cognisance only of industrial disputes which extend beyond the limits of any one State. If honorable members will take the trouble to look up the official debates bearing on that proposal they will see that it was first brought forward in those very terms by the late Mr. Kingston in 1891. Twelve members of the Conference voted for it, of whom I was one. When the Convention met in 11897, Mr. Kingston occupied the position of President, and consequently asked Mr. Higgins to submit his proposal for him. Upon that occasion twelve members again voted for it and twenty-two against it. Finally the matter went over to the Melbourne session in 1898 where, after a prolonged effort, and as the result of a vigorous whip, we were successful in obtaining twenty-two votes in favour against nineteen. So that even after three fights - and I remember no triple fight in the Convention on any other question - and after three divisions, the last of which was a close one, we only at the very last effort managed to secure a sufficient majority to put the section in this limited form into the Constitution at all. So far from its previous omission being due to the timidity of the draftsmen, we were fortunate indeed in securing this reward for perseverance.
– Mr. Kingston had great faith in State legislation on the lines of his own Bill, and he would be grievously disappointed if he were living to-day.
– Does the honorable member think so? Would Mr. Kingston expect nothing from the South Australian Government of to-day ?
– It is the Legislative Councils of the States that bog us always.
– All of us who have been State members of Parliament have been brought, more or less, into connexion with Legislative Councils ; but there has been no question on which the Legislative Assembly - in Victoria, at all events - made up its mind and kept its mind, which it has not managed eventually to pass.
– What about the land tax proposal?
– If you look at the political differences dividing each House you will find the key to such failures almost as much in the House in which the proposal originated as in the Legislative Council. The Prime Minister went on to sum’ up in a sentence a contention of his of considerable significance -
The occurrences of the last ten years make it impossible to take too optimistic a view of the possibilities of Australia under one central Government.
That opinion was echoed last night by the Attorney-General, in his own way, and in different forms. Three-fourths of the arguments he used put that assertion in different phraseology - that we could not take too optimistic a view of the future if the destinies of Australia were intrusted to one central Government. With that clue in hand, we are able to understand each and all of the proposals before us. Every one of them takes away from the local or State Governments what it gives to the central or Commonwealth Government, thus seeking to bring about the political redemption of Australia through its central Government, and practically through it alone. Nothing less, said the Attorney-General last night, than the entire control of industry and of trade and commerce, can make the work of the Federal Parliament easy, or worthy of itself. It would no doubt make the work of the Federal Parliament easy - I might say, free and easy. But it would be purchased at the expense of all the distant portions of the community, and of many of those that are nearer. The relevant and significant thing is- it is quite a proper thing, too - that the Prime Minister and the Attorney-General are singing exactly the same tune, or rather the same refrain.
– They are both in the same boat.
– They are both in the same boat, and evidently steering for the same port. Consequently, when the AttorneyGeneral put it - and in doing so used an old Victorian phrase, which is not patented, and was perfectly open to him - that this country was arriving at “ a parting of the ways,” I think he was quite right. These proposals do mark a parting of the ways, even more decisively than did 13th April. Because, after all, that was only a Ministerial change. This is constitutional. This is enduring. We have one Constitution to-day. Make these amendments, and it will be another Constitution. It will not only have lost its balance of powers; it will have lost its Federal character. It will have become a new kind of Constitution. Therefore, what is proposed does mark a parting of the ways - first, between those who be lieve that by amending and improving the present Constitution - amending it on its own lines, and preserving as far as possible its balance of powers - will be found the soundest road to national wellbeing, and those on the other hand who wish to make a decisive departure seeking to open up an entirely new road. On that for a long time there will be no sufficient opportunity farther on for a turning to bring us back to the path on which we have been proceeding. If we take to this new road we must go on governing Australia through one central Parliament, that is, as long as the people of Australia permit.
– In what way would these amendments of the Constitution impair or violate the Federal principle?
– I have tried to show some. I will refer to others. But let” me now turn to a portion of the AttorneyGeneral’s speech with which I am able to agree, where he rapidly referred us to the one thoroughly established and official definition of Federation - not merely recollecting that our two sovereignties should be left relatively unimpaired, to act side by side, but that fuller definition which says that the Central Government shall possess powers limited but enumerated. In a true Federation the Central Government is endowed with powers enumerated and limited in scope, set out on the face of the document in clear terms, while the States are left with powers separate and independent. Further, the interpretation to be given in any case of doubt as between the two should be against the Central Government, so far as it makes for a unitary reading of the Constitution, or would impair the_separate and independent powers of the States. Those are the principles and the rule of interpretation which mark a Federal Government.
Now, these five amendments, as proposed, depart altogether from that definition. They also make very significant an omission which surprised me in the speech of the Attorney-General. He impressed upon this House that the amendments for which he so eloquently appealed time and again, and which he deems the one thing necessary for the salvation of the Commonwealth, were an increase of Federal powers. But he did not mention - or, at all events, he did not impress the House with the fact - that each and every one of the powers under these amendments of his already exists to the full and untrammelled in each and all of the States of Australia. If he had mentioned1 that fact, he would have had to remind the House that every fresh endowment of power to us under these amendments is not taken out of the void, or some new reservoir, but is taken out of those of the States ; that every fresh endowment provided for us in these amendments must be made at the expense of the States, because each of them at present possesses it to the full.
Again, there is a still more important factor than that upon which the AttorneyGeneral did not touch, but which affords the key to the whole situation. Of course, none of those who heard the honorable gentleman in this House supposed, but nevertheless many of the public will suppose, that, after all. the amendments simply mean dipping our hands into a common pui se, and that whichever authority has the quickest hand gets most - dip and dip again. That is not the case. Section 109 of the Constitution lays it down that -
When a law of a State is inconsistent with a law of a Commonwealth the latter shall prevail, and. the former shall, to the extent of the inconsistency, be invalid.
That is to say, all of these powers are to-day possessed in each of the States, and by them alone. The amendments before us create a similar authority for the Commonwealth ; hence the Commonwealth legislation in these respects would have no limit, while all State laws would become inoperative in so far as they conflicted with any laws passed by the Commonwealth. The States take what is left, and retain only what is left. They can neither maintain the laws they have passed already, nor pass new laws in the future, except within whatever ambit that the Commonwealth chooses to leave untouched.
The Attorney-General dwelt last night with great satisfaction on the great power of the South African Government, on the power of the Canadian Government, on the power of the German Government, in each case the national legislation being, as he said, national in the true sense of the word, so that each Central Government “followed its own sweet will. Wherever it went in the State jurisdiction went out. When the public realize that these powers exist in the States to-day, and can be exercised by them to the full, without limit; while if Minister’s amendments are passed those powers can no longer be exercised by any of the States in any portion of the field covered by Commonwealth legislation; and when they remember that the programme of Ministers and their supporters, which, they propose to achieve, covers practically the whole realm of State legislation - it will surely be seen that the whole life, the whole core, of the Federation, has gone if these amendments are approved by the people. The States become outside suppliants, poor relations, lodgers, dependent for everything they possess upon the neglect or the generosity of the person in possession. They become junior sleeping partners, who need never be consulted, and must be content to accept whatever share of the profit, if any, the senior and active partner chooses to allow them. But is that Federation ? Is there any tinge of federal principle left in proposals of this kind? Do they not absolutely establish a unitary form of government?
– Who should be the judge?
– The people.
– But we want the people, as I have said, to be educated in regard to these delicate and difficult questions affecting the balance of powers and the maintenance of Federal health. We wish them well informed and instructed upon all such issues. My only objection to these proposals going to the country now is that the true question to be decided is not put directly. Tens of thousands of electors in voting will be influenced merely by industrial or monopoly considerations - considerations of substance in themselves, but concealing the constitutional consequences of seizing these powers in this fatal way. If we could, first of all, put a distinct question to the people, “ Do you wish to destroy or uphold your Federal Government and the Federal principle of your Constitution?” we should have an opportunity after they had been informed of the effect pf their votes, of learning their will, and, knowing their will, should bow to it. But this real question of national permanency will be obscured by all the very grave and important proposals of the present moment, though even they will not be put to the people so as to obtain their impartial judgment. The will of the people can be only indirectly interpretable from their verdict. It will be subject to contest on the ground that they voted for or against the merits of these commercial and industrial projects, as the case may be. The misfortune is that the constitutional case cannot be put to the people separately, authori- tatively, and officially under the present proposals. If these were preceded by the submission of a concise, concrete proposition authorizing this major operation on the body politic, we should have some hope. But with these several temptations, inducements, and baits held out to the people we shall have a vote in which the great majority will ignore all the constitutional results that must follow from their grasp at other things.
A question on which I do not propose to dwell, but that is worthy of the consideration of honorable members and the public is : What will be left to the State Legislatures and the State Governments if these proposed amendments of the Constitution are passed? One important subject. Education, will remain theirs as long as this Parliament chooses. Although of first importance, it is not a subject upon which frequent legislation is called for. What is demanded is a large expenditure of money. Unless the States can fully support a scheme of education that shall bring Australia to the front rank, and fit our people for citizenship in a perfectly Federal community, maintaining complex organs of governments with a clear recognition of their several uses, the whole Commonwealth will suffer, and fresh demands for the extension of Federal power will arise. At all events, beyond Education and the control of their local Courts and local governing bodies, there promises to be little left to the States absolutely. With our land tax we have made a first inroad upon their land policy, and it may not be the last. As to their waters, we have already under the Constitution a certain indirect control. Their railways are subject to certain necessary uses of a national character, as for defence purposes. Their mines may at any time come within the sweep of the Federal land tax.
– Freehold mines already do come within it.
– That is so. The highest Court in the country is our own High Court. The time is not remote when it will become the supreme appellate tribunal of the whole of Australia in a more absolute sense. What, then, will the State Legislatures have that is deserving of legislation? We may count on one hand the subjects of importance open to them that are not open to Federal acquisition and aggression. They are likely, consequently, to dwindle in importance and in the interest of our people. The State Legislatures must possess much less than they did, and then what further powers will go if these amendments of the Constitution are agreed to?
First of all we shall have affected, chiefly under “ trade and commerce.” agriculture, manufacture, industries, businesses, corporations, and all their organizations. These to-day, where they are under State control alone, occupying four-fifths or more of the time of the State Legislatures, and representing more than four-fifths of their powers, will all be open to invasion by this Parliament. When this Parliament is endowed with the authority to enter these fields, it will undoubtedly occupy and use them. Nothing will be left to the States. The yolk of the egg will have gone; the white of the egg will have gone, and they will have nothing but the shell. Ultimately no Parliaments attractive to men of ability and standing will exist in such State Parliaments. There will not be sufficient training or exercise, such as Professor Freeman hoped for, to fit men to occupy Federal positions later. This is our business, so far as it disturbs that balance of power and those opportunities for local development that are essential to the success of a Federal form of government.
Let us pass to another view of the effect of these amendments. At present we have six States with full power to legislate on the whole of the questions included in these amendments. If these are adopted we shall have a seventh Government operating in every one of the States in respect of all these subjects. They embrace actually the whole field of State legislation. There are some subtle considerations as to possible limitations in this regard that I must brush aside for want of time. Speaking broadly, trade, commerce, industry, occupation, and hours of employment will all pass to the Federal Government. The States will have the leavings, if there are any, but, as the boy in the story said of the apple, “ There ain’t going to be no core” in most instances. Under these amendments in each of the six States a double jurisdiction will be established. There will be the jurisdiction of the Commonwealth and the jurisdiction of the State prevailing on the same subject at the same time in the same place, and when they come into conflict the Commonwealth law must rule. If the amendments be assented to we shall establish a double jurisdiction in every State over innumerable everyday bread-and-butter questions. We shall be answerable in State Courts as well as in the
Commonwealth Courts, answerable both to the State laws and to the Commonwealth law. Is that desirable? Is not that a destruction of our Federation as a federation ?
The Acting Prime Minster’s appeals were for power, and more power, and yet again for power for the Commonwealth. He actually went so far as to say that without more power the Commonwealth would soon have nothing to do. I look back in amazement at the Governor- General’s speech, to find there twenty direct proposals for legislation, with promise of more. I have read replies of Ministers to deputations in which they have regretted that certain grave matters could not be dealt with until next session. Already one can see next session’s programme outlined fairly. It will be crowded, and when it is reached there will be yet a third programme ready. Even if these amendments were not carried, the Commonwealth Parliament would by no means have exhausted its present legitimate powers of legislation.
– For legitimate or shadowy legislation?
– Actual legislation. We have many urgent questions before us. Only in this morning’s newspapers we received an intimation that Tariff anomalies are to be dealt with this session.
– We were told in the Governor-General’s speech that they would be dealt with.
– Yes, but only now, at this late hour of the session, are the anomalies ready for ‘submission. There must be not only arectification of anomalies, but a revision of the Tariff. That cannot be postponed beyond next session. Consequently those who urge with the AttorneyGeneral that the Commonwealth has nothing to do are not merely wanting evidence in support of their theory, but have a great volume of testimony to the contrary.
– The Navigation Bill alone is a big item.
– That little measure travelling down from the Senate, and which will reach us, let us hope, by the end of the session - the Navigation Bill - will cut out a very large section of next session.
However, the key to all these difficulties lies in the fact that although we have sundry Legislatures and several Governments, we have only one Australian people. It is to the people alone we can look to decide our fortunes in this emergency. It is from them alone that the necessary help can come to enable us to maintain the Federal Con stitution which they accepted ten years ago by a three to one majority. Let me remind honorable members that even when we secure this double jurisdiction in every State the Federation itself will not be free. Section 99 of the Constitution provides that-
The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof, over another State or any part thereof.
Have honorable members considered what the effect of that section will be upon the proposals before us? “Trade and commerce “ are to come over to the Commonwealth. This Parliament is to have power to legislate in regard to trade and commerce within a State as well as between the States and other countries. When this power comes to us the Commonwealth must exercise it without giving preference to any State, or part of a State. As in the case of the taxing power, there is to be no discrimination. This practically means that in respect of all these subjects the Commonwealth is severely restricted. We shall have a power exercisable only in a uniform manner and not discriminating, as industrial or agricultural and other interests must require, between the different portions of this vast continent. We shall have our Administration at the new Seat of Government, controlled under section 99 of the Constitution on all these everyday bread-and-butter wage-earning questions. That provision is to be taken into account and the meaning of preference given consideration at every stage. We must face many new questions, because for the first time the great commerce power will be applied to the thousand and one interests within the States. This fresh endowment of power, on which the Attorney-General so joyously dwelt, will be subject to these limitations upon which he did not see fit to dwell, although they are undoubtedly of great importance.
– Does the honorable member object to uniformity of manufacture?
– Absolute uniformity is impossible over the whole area which’ stretches from Torres Straits to Hobart, whose climate, supplies, and other conditions vary enormously. It is essential that the innumerable practical questions arising out of the control of trade and commerce shall be dealt with in accordance with the circumstances of that part of our territory in which they arise. If uniformity were insisted on, we should have to apply the same conditions to our inland as to metropolitan industries, taking no account of differences of situation, with acompanying differences of cost and carriage.
– Does not the honorable member assume a little in suggesting that the Commonwealth would override all local authority?
– These proposals to amend the Constitution are an attempt to enlarge our powers to the utmost. We have already a certain authority in these matters, and are being asked to assert it to the utmost. Inevitably, if wider powers are obtained, similar pressure will be put on the Parliament to apply them fully. Thus all the operations of industry in the six States will have to be moulded to a pattern whose unsuitability to the conditions of any one State may be treated as a matter of comparative indifference. What has been said about the transfer of powers is a little misleading, since we are all citizens of the States, as well as of the Commonwealth, and as electors control the Legislatures of the States as well as that of the Commonwealth. We transfer from and to ourselves.
– These powers cannot be exercised as freely by the State authorities as they could be by the Commonwealth authorities.
– Are the results of the New South Wales and South Australian elections to go for nothing?
– The existence of Legislative Councils has to be remembered.
– How long will it take the Governments of those States to appeal to the electors for the reform of their Legislatures, if that be thought necessary?
– How can a reform be got through a Legislative Council?
– It has been done in States other than South Australia.
– I was a member of a State Parliament which reformed its Legislative Council.
– Is the honorable member proud of the reform effected ?
– Certainly. We carried not only that reform, but the legislation which we set out topass.
– There was not very much carried.
– The honorable member speaks forgetfully of something that occurred thirty years ago, when a great advance was gained by the Lower House. with the result, inter alia, that Victoria took the lead in industrial and other legislation for many years.
– What was done was quite inadequate.
– What was done then has been and can be developed. This is not the place for the discussion of State reforms, but I should be willing to maintain the thesis that the Legislative Councils are unreformed either because the people are content with them, or because party differences prevent united action. If the South Australian Government, and that which is about to be formed in New South Wales, do not bring the Legislative Councils of their States into harmony with the popular will, the responsibility will lie on their leaders and on the shoulders of the party whose members are interjecting.
– They will be dealt with.
– Then what is there to complain of?
– The charter of Federal powers is section 51 of the Constitution, in which thirty-nine are enumerated. Of these, twenty-seven are unqualified; they apply all over Australia, subject only to the interpretation of the High Court as to the consistency of their exercise with the principle of the Constitution. Of the remaining twelve, in three cases the limitations imply a certain grant of control to the Commonwealth respecting State-owned railways ; by two others, concessions are made to State banks and State insurance offices ; in another to the aborigines ; while two more preserve the equities, requiring that our taxation shall be without discrimination, and that bounties shall not be unfair. Thus thirtyfive of our thirty-nine powers are unlimited so far as this Parliament is concerned. The three subject to real limitations concern trade and commerce, corporations, and Conciliation and Arbitration. The restriction of fishing in territorial waters can be put on one side. Do honorable members realize that the purpose underlying the proposals now being discussed is the removal of the only important limitations now existing upon the Commonwealth powers already given? Trust combines and monopolies represent new growths, which, in America, have been dealt with under the trade and commerce provisions, and could be dealt with similarly here, though to that I shall revert later.
My first and strongest comment upon this measure is that the four amendments proposed by the Government should be embodied in four separate Bills. The people are not dealt with fairly when four separate propositions relating to allied, but independent and fresh gifts of power, are clubbed together in such a way as to prevent discrimination or distinction between them. The electors may approve of the removal of any limitations upon our power respecting trusts and combines, but may object to any alteration respecting corporations. Why bar them? The Government can claim no advantage for this bunching other than a party gain, which, in a matter of this kind, should not be considered. Honorable members opposite may hope that electors who favour the extension of our industrial powers, but who, if they could, would distinguish between it and the others, will be obliged to vote for all ; that the four tied together will be approved though one or two of them, if proposed separately, would be rejected.
Evidently this is merely a tactical consideration. As such it is unworthy of the plane on which this question ought to be argued or dealt with. If the people of this country cannot be trusted to choose for themselves, who can be trusted ? If they are not allowed to give a distinguishing verdict on each of these proposals, which one of them does the Ministry fear it may lose? They never would be bunched together if Ministers did not believe that by this means they will obtain a stronger vote for them than would be’ secured if put separately. Upon some of them they fear the verdict of the electors. They desire to defeat it by a trick. That is not only not playing the game in the parliamentary sense, but it is a most serious reflection upon the community as a whole. It implies that the electors are not able to distinguish between these several matters, are not able to judge for themselves whether they will have industries or corporations federalized, or whether they will have the trade and commerce power enlarged or not. It implies that the proposals are to be carried by a wave of feeling which will lead the electors to say, “ No matter how injurious some of these proposals are, we must stick to the party and to the bunch because there is no other choice left to us.”
– The honorable member must be thinking about the Fusion business now.
– No, I am thinking about what the honorable member calls the national aspect. These are great national issues, and the essence of the procedure adopted is that Ministers will not trust the nation to speak its own mind. It must either vote in shackles or hobbled, going blindfold to- the poll, or it must throw away its vote. Electors must either vote against all the proposals, some of which they believe in, or vote for some proposals in which they do not believe. Is that a state of affairs which is either honest or fair to the country? Are Ministers acting honestly according to their oaths ?
From the point of view of those who oppose these propositions nothing more advantageous could be done. From the party point of view it is to the advantage of those who resist some of these amendments that they should be tied together. Ministers hope that a number of electors will be dragooned into voting for some of these proposals in which they do not believe, against their conscience and judgment ; because if they were able to discriminate, they would exercise the power of discrimination. Why should Labour members distrust the people? What was the result of the last election ? The people chose then to support our proposal to amend the Constitution in respect to the transfer of the State debts ; although that had distinguished opponents in some of the States, including leading members of the Labour party. Yet we were able to carry it. But the people rejected, unwisely and unfortunately, the Financial Agreement, though it will come up for consideration again in ten years, and they still retain the right to speak upon it. With their verdicts we should be satisfied.
– Thanks to the Labour party, they will have another opportunity to speak.
– Yes, and I rejoice in it.
– They would have not had another oportunity to speak if they had accepted the Financial Agreement.
– Yes, they would ; if the Financial Agreement had been placed in the Constitution the power which put it in could have taken it out. The people always retain the same right of review. My point now is that the public did exercise a discrimination between our two amendments. If it had been possible, and we had tried to tie the two together, what would members opposite have said of our conduct? One probability is that we might have lost the amendment relating to the transfer of the State debts because of the objection to the Financial Agreement. But by putting the proposals separately and fairly to the people, and allowing them to act as they thought best they gave a decision which everybody accepts. The majority against the Financial Agreement was not great, but fortunately the majority in favour of the other proposal was very much greater. Thus we asked and obtained the people’s decision frankly and fairly. No one has complained of it, or can complain. Why should not our precedent be followed now ? What reason is there to depart from the course then taken? The fact that these subjects interrelate, as do all subjects connected with the employment of the people or the production of this country, does not alter the situation in the least degree.
– Each is essential to the other.
– No; the people are the judges of that as well as of the other question. If they want all four proposals because they are essential to each other they will vote for them. But if, in their opinion, some of the four proposals are not essential, they will exercise their undoubted right to say “ no “ to the one to which they object. Let us see who it is that welcomes the verdict of the people and encourages its free expression. Who is it that will oppose the people and forbid them to decide for themselves? That will tell its own tale.
Last night the Attorney-General insisted that the power which is being asked in all these respects is plenary - that is to say primary and fundamental. In these five amendments he enumerates the different powers which are to be given to the Commonwealth. Whilst he keeps to the form prescribed for a Federal Constitution by indicating the powers with which the Commonwealth is to be endowed, he denies and defeats the Federal principle by making these enumerated powers of the Commonwealth unlimited instead of limited. Take what is by far the widest and most discursive amendment of all. The trade and commerce power is wide even as it stands, although it is confined to trade and commerce with other countries and among the States. But when those limitations are struck out, and it will apply to trade and commerce within every State as well as without it, it be comes an unlimited Commonwealth power, and therefore absolutely in antithesis to the essential principle of a Federal Constitution that a Federal power must always have its limits defined. Nor, as regards the amendment proposed in relation to industrial powers, will there be any limit ; it, too, will be absolute. So that by both these amendments the Attorney-General, on his own showing, seeks to endow the Commonwealth with unlimited powers. If he does, our Constitution will cease to be in fact, as it will cease to be technically,, and even in name, a Federal Constitution.
Again, it will be remembered that the other arm of that division of authority under a true Federal Constitution requires that the powers of the State shall be separate and independent. Now the powers relating to trade and commerce, corporations, industries, and monopolies, are to become capable of being exercised by the Commonwealth in each State at the same time as the State exercises them ; and being exercised in every State excluding State legislation wherever they meet it, they leave the powers of the States not independent, but dependent. Of the four requirements of a Federal Constitution, as laid down by the Attorney-General, his own amendments strike out three, both in fact and in definition, and strike out one in fact although not in definition. Consequently, on his own showing, these amendments will leave the States without’ any separate powers covered by these amendments, and although these are nominally enumerated, yet, being unlimited, they defeat the definition again.
– It will be a harmless Constitution then.
– No; it will be harmful and it will be unitary, because it will cease to be Federal. What have we been told already? That equal representation in the State can go, and leave the Federal principle unimpaired. If these amendments are carried, all I can say is that equal representation must go. There will be no need for maintaining it, because the Constitution will have ceased to be Federal and the country will be under no Federal obligations. In a country which would be governed by a bare majority of the people it would be idle to talk about Federal considerations. The second Chamber must then harmonize with this Chamber in so far that its representatives must also be in proportion to the number of the people.
– The second Chamber must go altogether.
– It might as well go altogether now, I admit.
– Far better, because it is of no use that I can see.
– I agree with the honorable member that under present circumstances it is of no use. It only affords an opportunity for members opposite to echo one another.
– The honorable member asked for the two-party system and got it.
– We are not complaining ; in fact, I have nothing to say by way of objection to the two-party system except that both parties should be formed on the same principle. As we cannot adopt our honorable friends’, we suggest that they had better adopt ours. Now with equal representation gone and the Senate gone, because it is becoming, as honorable members say, an unnecessary replica, what about the sovereignty or the quasisovereignty of the States which,, according to the Attorney-General, is to be preserved ?
– That has to go too.
– Under this proposal it. too, will disappear.
– The sovereignty of the people will still prevail.
– The sovereign people.
– Order !
– All but the one central sovereignty will disappear; we shall have a unitary Government, and must be prepared to travel a new road in a new way. I have trespassed so long upon the patience of the House that I had better omit the part of my speech devoted to constructive proposals.
Honorable Members. - No, go on.
– It has been a highly interesting speech.
Sitting suspended from 12.56 to 2.30 p.m.
– The broad and real distinctions between the Constitutions cited :>y the Attorney-General are demonstratively exhibited in the terms deliberately adopted in each case. In the United States- Constitution1 the word “Federal1”’ nowhere occurs. In the Canadian Constitution it occurs once,, and then only in the preamble. In the Australian Constitution it occurs fifteen times, and was intentionally so employed to strike again, and ye1 again, the keynote of the whole measure. The amendments now before the House are equivalent to striking out the word “ Federal “; fifteen times, and inserting in its stead the word “ unitary “ fifteen times; so complete is the transformation which will be accomplished if the whole of them are placed upon the statute-book.
This transformation scene is one upon which none associated with the original Federal movement can possibly look without grave alarm. The whole tendency of public opinion, as expressed at that time on platforms all over Australia by men of the most opposite political opinions, was unequivocally in support of a strictly Federal Constitution in the full sense of the term. This implies, first and last, no crippling of existing organs of government whenever they are competent to discharge their duty, but the retention of them all, stimulated to their fullest activity within specific areas, subject always and only to such a general control as may be necessary to give point, effect, and practical force to the intentions of the people of Australia.
The Federal Constitution was not made to please or to serve the Federal Parliament. The Federal Parliament is Bound by the Federal Constitution. It re-shaped indirectly, but effectively, all the State Parliaments, and bringing them, wherever necessary within the Federal sphere. Something was left to the future intentionally, and more, because at that time it was almost impossible to foreshadow the particular line of development that would be followed by the thought of the Australian electors.
We are in a better position to-day by far because of our ten years’ experience, if it were only for the checks that we have sustained in the process of completing the interpretation of the Constitution. We have endeavoured to make the most of our powers within the Federal arena as it has become understood. We have been thus led to a reconsideration of many matters with which practical experience brought us face to face. As already observed, no opposition should be offered to improvements wherever possible, subject only to the ordinary requirement that the remedy adopted shall be that called for by the existing condition and plain necessities of Federal affairs. The present reference to the people is not the first, and will not be the last. We are not called upon, even if we thought we possessed the ability and knowledge requisite for such a task, to endeavour to decide the course to be followed: by the people of Australia for more- than the period for which we cam dearly see ahead.
The criticism- that I have to offer- to the whole of these five proposals, speaking generally, is that they have been drafted, not in accordance with the needs of our situation, the facts as we find them, or the immediate circumstances of the Commonwealth, but with a sole eye to furthering the vague and general programme adopted by the Ministerial party to indicate as far as they could, at the time when it was framed, the direction in which they were travelling, and the intentions which they then cherished.
– “ In the clouds,” as the honorable member has said.
– One cannot complain even if there are a certain number of cloud prospects. Honorable members opposite can continue to enjoy their view, whether it be, as they suppose, of a rising or, probably, a setting sun. But we are not dealing now with their vague party programme which may be amended wholesale by the party itself within the next year or two. We are really being asked to import that programme into the Constitution, while what we ought to be dealing with are the practical necessities of each case of grievance. The Attorney-General, in his introductory speech, passed over in an extremely light way these five .segments of that programme, but without coming to close grips with the situation. There was a bald indication of the existence of what he considered evils, obstructions, or difficulties, and there was then a proposal to remove them by drastic .provisions which would accomplish much more than was re-, quired, and go far beyond any of the evils described.
Surely the first criticism of all reasonable men upon any propositions for the amendment of the Constitution will be, “Are they sufficient for the needs of this time, and not more than sufficient for the situation, a.i we see it ? “ I submit that these wholesale and unqualified projects point to an attempt to forecast what, in the opinion of those who framed them, will be the needs of a remote future. That essay, which has been made before in the world’s experience, has uniformly led to reactions, sometimes of a severe kind. The experience of the French people furnishes a remarkable illustration of ‘the effects of a system which proceeding from the abstract to the concrete, endeavours to lay down at one particular time general rules which, according to the opinions of particular men, ought to govern the future progress and development qf a nation. The movement which, in France, is generally known as Jacobinism, was of that character. It is quite in harmony with the nature of the sweeping proposals now before us.
– Does the honorable member object to the people amending their Constitution?
– No; I am urging, not only that the people should amend their Constitution when necessary, but that they should amend it exactly where it most needs it, and as it needs it, and that they should not endeavour to exercise the gift of prophecy so as to determine what the generations to come may require. I submit that’ all the proposals before us go far beyond proved or admitted evils at the present time. They are not pertinent to the particular obstacles encountered. They do not simply step over each crevasse, but take running jumps in the clark, landing us far beyond and no one knows where.
– That is all a matter oi opinion.
– What expression is there in this House that is not an expression of opinion ? What does a decision of the Legislature express except the opinion of the majority ? The only complaint I am urging of the opinions of those on the other side of the House is that they are not founded on facts, nor confined to an admitted area of necessary operations, but on the contrary wobble widely out of bounds and out of sight..
If we do ‘Our work here as efficiently as we can to meet the clear needs of each situation, we shall have done all the future can ask of us. We had better refrain from doing a great deal now proposed which the future is almost certain to condemn, and in similar cases has had good grounds to condemn. The reaction against what I have called Jacobinism, for want of a better analogy, a movement undoubtedly characterized by thinking in the abstract and then endeavouring to make abstract rules apply to concrete instances, has in every case occasioned an extremely costly and prolonged struggle to return to a better and more natural adjustment to actual conditions. If we cut up our local governments: by the roots as these amendments practically do, we shall not merely injure the States’, but injure the Federal system as a whole, not excluding the Federal Parliament itself. In so doing we overshoot the mark: Instead of being content with remedying old difficulties or dangers, we shall be creating new ones.-
The demand to-day, therefore, is, as always under Federation, for a twofold loyalty - to the Federal Parliament on the one side, and to the local Governments on the other. We need a firm and consistent grip of the circumstances of Australia - not of Victoria, New South Wales, Queensland, or Western Australia, but of this vast continent as a whole. Some of the amendments seem to me to take no account of the great part of the continent which is as yet but thinly settled and lightly developed. They seem to me to be drafted with an eye only upon large cities and their neighbourhoods, or, to closely settled country and its needs.Then, above all, if it be possible, we should approach this national task with minds free from class prejudice or’ party aims, free from subterranean motives or greeds, or the gains of particular sections utterly indifferent to the possible cost to the fellow members of that community.
– What a lovely world it would be if we could all be like that !
– The honorable member, I hope, lives in such a world. If the Federal course is not followed, I am not by any means sure that the frank and fair way to deal with our situation would not be to face the proposal made by the honorable member for Herbert in the Bill which he has laid before the House. If there is to be such an absolute recasting of the whole system of government which obtains in Australia to-day, let us face it. Despite the claims of the existing States, and despite the fact that their railways have been developed, as a rule, from a single centre, and despite the fact that they have been developed as units, I am by no means certain that, if we are definitely going to set aside the Federal Constitution, the best way would not be to take into consideration the proposal of the honorable member, or some proposal of a similar character.
We should have to face the supersession of the State Legislatures, and the reshaping of new States or provinces with specified powers. The Government are going that road, and will reach that goal before long. If these amendments are carried to their logical conclusion, they will be pushed on to the next step necessary to make our new form of government - which is not Federal - complete. If that be done, I take it that the proposals of the honorable member for Herbert, related as they are to those lately adopted by the unitary Government of South Africa, will be well worthy the practical consideration of the House. They would save a long detour and loss of time and money. “If we are to face a unitary Constitution we had better face it at once.
– The proposal before us is the stepping stone !
– Yes ; the stepping stone is one out of a Federal arena into a unitary arena, but at the same time accepting the existing distribution of States and circumstances which will no longer have any meaning in the new regime. There is a great deal to be said for the State Governments with their historic associations and adaptation to the circumstances of their country. But if we are going to put the Federal system aside, the sooner we look the whole of the facts fairly in the face the better, and, with this as our confessed object, adjust both the endowments and the powers under the Constitution. Into that tempting subject I shall not enter further, but commend those considerations to the honorable member for Herbert and those who think with him, their clear duty being to vote against the proposals now before us, for the purpose of obtaining the better proposals he has in view.
– We propose to ask the people for an indorsement or otherwise.
– I would rather ask them that than the indirect, and in this relation misleading, questions proposed to be put in this Bill.
– The Government are simply stealing my clothes !
– I base my contention on what I hope to have proved, namely, that, providing the proposals before us are carried, only the form of Federation remains - nearly all the contents are gone, and the rest will soon follow.
– There is no power left’ for the Legislative Councils !
– The alternative to the Government proposals is not a mere negation of those proposals, unless indeed they be submitted, as at present, tied together so as to prevent an independent and full consideration of them either in this House or outside. The cumulative extension of power by the five put together I ignore. But while the first four propositions are laced together, it will be impossible for honorable members, or for the people outside, to discriminate in their choice, as they have already discriminated, or will discriminate, in their judgment. If we are about to treat the proposals in this way, and have the first four pinioned in the first Bill, such a measure comes to us and to the country handicapped in such a way that it will be extremely difficult to give a fair vote here and impossible to get a fair vote outside. If the four proposals were divided, as they ought to be, into simple and distinct proposals-
– With four ballotpapers ?
– Yes, with four ballotpapers asking the people four distinct questions, we should be placed in a fair position in regard to each. Before taking them seriatim, let me cite in respect to trade and commerce the memorandum of the honorable member for Angas, which is worthy of repetition. It is as follows - “ It is now no longer possible,” says Professor Woodrow Wilson in a recent article on “The States and the Federal Government,” “ to frame any simple or comprehensive definition of ‘commerce.’ Above all, it is difficult to distinguish the ‘ commerce ‘ which is confined within the boundaries of a single State, and subject to its domestic regulation from that which passes from State to State, and lies within the jurisdiction of Congress.” He is against arbitrary extension of the Federal power -
Professor Wilson is against the arbitrary extension of Federal power ; and why ? - being of opinion that the success of the American Federation is largely due to the spontaneity and variety, the independent and irrepressible life, of its component communities,which have preserved the people from the paralysis, which sooner or later falls on those who look to the Central Government to patronize and nurture them. “ It would be fatal,” he says, “ to our political vitality really to strip the States of their powers and transfer them to the Federal Government.”
– That is even more emphatically the case in Switzerland.
– I believe it is borne out by Swiss experience.
– Professor Wilson has not been in Australia.
– He has not enjoyed that pleasure, but he speaks of the United States of America, where the commerce power is the same, and where the circumstances are of much greater tension, trial, and difficulty than they are here. If he so speaks of that country, with its large number of well-developed States able to look after themselves, what would Professor Wilson say of a country such as this, unduly swayed at present by the large number of its population gathered into large cities with civic interests, when compared with the number of those who are making their task the subjugation of the continent?
What is it we are likely to lose? Is it not exactly, as Professor Wilson says, the ‘ ‘ spontaneity and variety ‘ ‘ and the “ independence and irrepressible life of the component communities “ of Australia? These are what are making Australia to-day, have made Australia what it is, and must make the Australia of the future. These give life to the continent as a whole; it is the life of our component communities, and we fear for them with good reason - the paralysis which sooner or later falls on those who look to the Central Government to patronize and nurture them.
– State rights !
– The cry of “ State rights “ will not offend us in Australia, where all citizens of the States are citizens of the Commonwealth, and all citizens of the Commonwealth are citizens of the States. Every one of us votes in a State election, and every one is affected by State legislation. If we, who are at present the custodians of Federal representation are, as we necessarily must be at all stages of our lives, also State citizens, and concerned with our State’s development, what have we to dread from the States since they are only ourselves in one capacity, while we are Federal nationalists in another capacity?
– Why did the honorable member’s party raise the cry at the last election ?
– If the honorable member refers to the programme of the late Government he will find nothing nearer “State Rights” than anxiety for the prevention of that “ paralysis “ which falls on those who trust too much to a Central Government. We say that the Federal Government and the local Governments should balance each other, working together for a population energetic, independent, and self-reliant.
– Did the honorable member, when Prime Minister, not propose to amend the Constitution with regard to new Protection ?
– There is ho “ paralysis” about that, I suppose?
– I have not reached that subject yet ; but am nearing it. As my preliminary criticism of the amendments applies to two or three of them, I shall not have to repeat it.
The only cure proposed by Ministers for the grievances of which they complain is that of direct legislation by this Parliament. Ministers appear to believe that every one of our problems can be met by a law to be framed in this Parliament and administered in the ordinary fashion. The view which many of us took, on reflection, was that the better means of coping with trusts and combines, for instance- which are usually associated with monopolies and industrial issues - was not to go too far in the way of direct legislation, but to take advantage of the hitherto unused -powers ‘of the Constitution, which provide for .the creation of an Inter-State Commission. Such a body in the United States of America to-day is of capital importance; and, under our Constitution, is capable of being made still more effective. An Inter-State Commission would discharge both administrative duties, and what might be termed judicial duties in all matters of actual practical concern. This Commission being provided for in advance by the Constitution, we have made more than one attempt to bring it into existence, but our efforts have not been crowned with success.
The important result to be secured by its use is that, instead of endeavouring to lay down in advance, in a Statute, all the minutia of procedure and action in connexion with industries, or trusts and monopolies, we ‘should create a body which would secure the whole of the available data relating to them or to the enterprises with which they were connected. It would act as the great organizing body of the Commonwealth, collecting and collating knowledge and studying opportunities. We proposed to bring into being an Inter-State Commission clothed with certain judicial authority, and to encourage the States to develop to the utmost all their existing machinery, or machinery to be called into being, for dealing with the problem. Wages Boards, for instance, are established throughout Australia, Tasmania alone lagging behind. Under the course we proposed to follow, any State lagging behind its neighbours and insufficiently developed in that regard, could have been brought into line, pending its own action, either by means of the Inter- State Commission, or appointments made under it. In that way we should not only have made a long stride towards the settlement of industrial disputes, but should have accompanied it by a large expansion of State energies and developments in the same direction. The
States would either have taken that course for themselves, :or would have found it provided for them. I know of only -one State that at the time of our proposal seemed to need such a stimulus, and probably it would not have needed it as soon as the situation had become clear.
The great advantage of our plan was that it wou’ld have developed in the Commonwealth, wherever necessary, local bodies able to deal efficiently with that first indication of industrial difficulty upon which the AttorneyGeneral elaborated his argument last evening. It would have brought such bodies into existence, stimulated them into action, and ‘harmonized their findings so far as might be necessary in order that the cardinal principle of Federation, free and equal competition, should obtain all over the Commonwealth, no State being allowed to take advantage of the inferior position of its neighbours. These were practical proposals, and as submitted, or with little development, appear to me personally to be sufficient to meet the needs .of the situation. Nothing would require to be undone. Everything done would be permanent. It would follow the line that public opinion, it seems to me, intends to take, broad-basing the whole of our industrial -supervision upon local Wages Boards - constituted of men in the industries concerned, familiar with the weak and the strong points of each ‘case of complaint - and, knowing the sores, better qualified to undertake the healing. It would be one of the most promising social experiments ever undertaken. It would be an undertaking unmatched in the world to-day, and certainly unmatched in any country of the size of Australia.
By way of illustration let me point out that if we had these four proposals placed before us separately, it would have been competent for us to take the opinion of the Parliament upon an amendment of each that would meet the admitted needs of the situation in this way. Those who wish to go further would have been called upon to prove to the satisfaction of the Parliament that something was ignored, the omission of which was prejudicial to the country. So far as our industrial proposals were concerned, I do not think that this could have been proved. They were practical, universal, and capable of indefinite expansion.
– The honorable member is illustrating -what would have been the position if these several proposals bad been separately before us?
– Yes, and also that our proposal in regard to industrial matters covers the whole ground so far as is necessary.
– Then the ‘honorable member admits that there is something wanting?
– Certainly. The memorandum issued by the ex-Attorney-General shows what we were doing twelve months ago - before those of 1907 and 1908.
– That has been kept a secret until now.
– Honorable members with short memories should not make such interjections. We had considered several forms of. amendment years ago. Last year, when, laying the policy of our party before the country, I explained at length the very proposal just mentioned. I dealt with it in every State in which I spoke as part of the then Ministerial programme. We were also considering another amendment twelve months, ago. Our first propositions were put before the State Premiers, and assented to by them. The all-important principle then and now is to deal with the evil you know as you know it and where you know it.
– That memorandum contemplated two amendments of the Con- stitution
– Yes, the then AttorneyGeneral, my colleague, the honorable member for Angas, submitted them, and with some minor amendments or development, I believe they represent his opinions to-day. On that point, however, he will speak for himself.
Iri a word, in respect to industrial matters we aimed at a sufficient unity of administration over the whole of Australia to secure uniformity of procedure and fair dealing, giving at the same time a strong stimulus to the creation of these practical bodies of practical men. Then, with the local stimulus so obtained, we hoped to bring about over this vast country - and we must think of it, not with its present population, but with its existing ‘population largely multiplied - a guarantee for local activity and efficiency to meet emergencies, not dependent upon a centralized control directed from Canberra to any portion of the continent. That efficiency was to be guaranteed by a system established in the occupations themselves and comprised of those engaged in them.
I pass from the industrial to the most stringent and extensive proposal made by the Government - that with relation to the trade and commerce power. I think the Attorney-General will find, on further consideration, that the amendment of the Constitution, he proposes will not leave the Commonwealth in the position in which the Dominion of Canada finds itself. The regulation of trade and commerce was provided for in the original Canadian Constitution. The point to be regarded in this connexion is that, first of all, the words to be struck out, “ with other countries and among the States,” are the only limitations imposed upon our endowment of power to legislate with respect to trade and commerce.
The Attorney-General, as it seems to me, improperly made merry because the Federal Conventions adopted those words from the United States Constitution. He pointed out that a very large number of cases, involving great expense, had been necessary to determine the meanings under this phrase. It might have occurred to him that the very existence of those cases ‘constituted a reason for their adoption. First of all, the circumstances of Australia in this regard were generally similar to those of the United States; and, secondly, by adopting the very words of the United States Constitution we took over in a general way the whole of the case law on the subject. By a long course of decisions at the expense of the Americans the relative spheres of the States and the Federation had been fairly defined, and consequently the most practical and most federal course to pursue was to adopt this phraseology. The Attorney-General would have done well to recollect in his criticism of this portion of the Constitution that no case is to be found in the Commonwealth Law Reports turning upon the precise interpretation of the limits of this power. He put forward the uncertainty existing on this point as if it were his sole ground for asking for the amendment. So far from there being any friction in that respect, the position is exactly the opposite. In no case that I can recollect has any Commonwealth litigant suffered yet because of the adoption of the United States definition.
A glance at either Quick and Garran. Professor Harrison Moore’s book, or the Commonwealth Law Reports will enable honorable members generally to realize why the first of the powers with which the Commonwealth is endowed under section 51 is that relating to trade and commerce. Even with the limitation adopted by us, it takes quite a portion of a page to name all the’ authorities and subjects with which the trade and commerce power has enabled the United States Courts to deal. It is too long a story to repeat, and unnecessary to place it on record here, since it is assumed to be known to a great many, and is certainly known by all our lawyers. If honorable members will refer to the authorities I have quoted, they will see at once that “trade and commerce” extends to a. great variety of agencies - shipping, navigation, and other matters expressly mentioned in our Constitution, and implied, according to American precedents, even if they had not been specified.
In brief, all I desire to put now is that of all the powers in the Constitution probably that relating to trade and commerce, even with its present limitations, is the widest. With the whole of the undefined authority in the same subjects now vested in the States, added to that we already possess, it would be fair to say, speaking generally, that there would be no limit to the trade and commerce power of this Parliament. Wide as its range is in the United States of America, with its restrictions swept away even the Canadian experience by no means exhausts its possibilities.
What are the grounds on which we are invited to make this immense transformation - making the Commonwealth all potent in every State and responsible for the mass of law governing all the incalculable number of interests and activities included under trade and commerce, exchange and transit. Inter- State and foreign being added to the local powers, its legislation immediately overriding that of the States, what mass of circumstance, what grievances tower-high, or other justification is there to offer in order to justify the enormous extension of power with which this Parliament is to be charged, and for which it is to be made responsible ? Hosts of measures, some of them of a very minor character, would require to be brought forward and dealt with by the National Parliament as national causes, though actually provincial or merely local.
Our trade and commerce power is already buttressed by other paragraphs of section St relating to weights and measures, bills of exchange, and foreign corporations, as well as by section 98 dealing with navigation; section 100. affecting the rivers; sec- tions 101 and 102, concerning the InterState Commission, and section 103, controlling preferences on railways. Section 105, dealing with State debts, has already been amended. With this all-embracing and complex power, we already rule over an area which, so far as present necessities and circumstances go, makes any except special extensions unnecessary. Let the Government point out the particular evil or evils to be met, and submit propositions for meeting them, and they will receive the serious consideration of honorable members. Ministers should show us the need, and propose the remedy. In this case, no need has been shown, and the remedy is one for imaginary accidents or possibilities, against which no- practical Parliament would attempt to provide.
A specific case should also be made out for dealing with the foreign corporations to which the Attorney-General referred at length. I am not prepared to pronounce on the advantages of any particular course, but the proposal before us’ seems to be altogether excessive. Our present disabilities in connexion with corporations could be met by very few amendments, which would be much simpler than the casting of the whole responsibility for the management and control of corporations, their by-laws, and all their doings, on the Commonwealth. The same absence of justification applies to the case made against combinations and monopolies. Their existence is asserted, and a list of names was read, but the monopolies referred to are evidently local.
– They all extend beyond one State.
– The Sydney brickcombine, for one, does not.
– Every State has a brick combine.
– Then they are separate combines, and can be dealt with by the State Legislatures. I believe that the House as a whole, if the particular evilshere complained of, were shown, and an efficient remedy suggested, would view a proposal for legislation with favour, even for very strong legislation, if need be.
– What is a combination ?
– There is a definition in the Australian Industries Preservation Act.
– We cannot define the expression in the Constitution.
– The Attorney-General made one statement regarding combinations and monopolies which, strong though it was, I am prepared to echo. He said that such a condition of things might occur that the question would arise, “ Shall combinations and monopolies rule the Commonwealth, or some part of it, or shall the Commonwealth rule them?” There are not two opinions on that subject. Show us the actual danger, and the efficient remedy, and, no matter how strong that remedy may be, Parliament will be ready to assert the sovereignty and mastery of the Commonwealth over all combinations and monopolies, be they what they may.
– After they have assumed gigantic proportions.
– At any time the case is proved. At present, we have no proof of specific evil, and no suggestion of specific remedy.
I come now to the last of the four proposals in the first Bill. The transformation sought to be accomplished is even more baseless in this case than in the extravagant extension asked for, to the already potent trade and commerce power. Our Constitution provides for the creation of a Court of Conciliation and Arbitration with power to deal with industrial disputes extending beyond any one State. That Court has been appointed, and cases have arisen with which it ought to be, but is not, competent to deal. Legal minds think that means can be found for coping with some of them. It would be proper to direct our attention to these difficulties and to propose a remedy, but that has not been done. They have been lost sight of, and. a proposition launched having practically no relevancy to any existing situation. It would be possible to frame an amendment which would meet every difficulty that has yet occurred without practically creating a new Court and new jurisdiction as the AttorneyGeneral proposes. He is not seeking to meet difficulties which have arisen or may arise, but to embody in our Constitution the political proposals which he favours, arising out of theories more or less sound, based on experience more or less insufficient.
There is practically no relation between the judicial power of the Court, which has been found too confined, and the gift of legislative power over all employments, industries, and businesses of all the States here provided for. Wages, hours, terms, and conditions are alike to be brought under this Parliament. Every trifling industry in every part of the continent will have the right, and may be compelled, to appeal to this House for legislation to meet its ends. The whole of the industrial powers of the States are to be transferred without limitation to the Commonwealth. The minutia of every occupation throughout Australia will be the concern of the National Legislature.
The creation of an unlimited trade and commerce power, with “all its developments, and of an unlimited industrial power as it deprives the States of any control wherever their legislation comes into conflict with ours, marks an economic and constitutional revolution. This entirely alters the centre of gravity of the Australian Constitution. It changes ours from a distinctly Federal to a distinctly Unitary form of government, under which the States exist only at the pleasure of the Commonwealth, with such domains of power as may be permitted to them, because too trifling, or ‘because the exigencies of business have not permitted them to be resumed. One will not be able to buy a pennyworth of lollies, to drive a nail into a boot, to shear a sheep, to sow grain, to pick fruit, or to carry a hod, in any part of this continent without coming under the operation of Commonwealth laws. At every stage, and in every act of daily life, sleeping and walking, we shall be under Commonwealth law, if this Parliament chooses to legislate.
Let me now allude very briefly to the fifth proposal, which is closely allied to the proposition in respect to combinations and monopolies. . This elaborates the Commonwealth control of the latter, adding authority to this Parliament to take over any monopoly it pleases and carry it on at the Government expense. This, again, like all the others, is a power now existing in the States, which could have been and can be used at any time their Legislatures think fit. So far as the nationalization of monopolies is concerned, no line has yet been drawn which satisfactorily divides those of which our people have thought fit to approve, and others. In many instances the States have authorized the municipalities to enter into business as tramway proprietors. In “ New South Wales the State runs the tramways itself, and in Victoria a coal mine. No line of demarcation has yet been drawn, and, personally, I do not attempt to draw one, between the enterprises which it may be politic to deal with by the community in some one of its aspects, and those which should be left entirely in the hands of private individuals.
– It is not likely that there ‘ will be any overlapping of State and Commonwealth action there.
– Commonwealth intervention is provided for in these proposals. For me, the best defence of any proposal of this sort is made when it is shown that the controlling authority is in the same close and immediate contact with the carrying on of the particular business referred to that ordinary employers and proprietors would be. One can easily discover cases in which municipal investments can for that reason justify themselves by results, though State investments would be dangerous and Federal outrageous. The State has power, either by itself or through its municipal bodies, to carry on any businesses that it pleases. It is quite within its competence,’ and we shall watch with interest what State businesses follow the advent in South Australia and New South Wales of Governments which are favorable to experiments of that kind. They have the field open. We shall see what they do and judge them by what they do.
Any municipality is far more capable of dealing with the problems within its own boundaries, because they are small, and the ratepayers being directly concerned will not lightly consent to pay rates and taxes without getting full value. In the States the control is much less satisfactory, because the State is larger and control is further removed,’ while the taxpayers who surfer are not those who undertake the experiment or favour its continuance. Nationalization by the Commonwealth anywhere or everywhere within Australia, supervised from Canberra, is the most extravagant of all propositions, and could only be justified under the most exceptional circumstances. I know of no means by which the practical interests of the taxpayers of all Australia can be so connected with these enterprises as to insure the adoption of a business management which will prevent the people from having bad bargains and. burdens cast upon them.
Of course, in relation to the Defence Department, it is quite possible that some enterprises which we know to be unremunerative ought to be carried on under Government control. I know and approve them, because they provide supplies required in times of threatened war, not to speak of times of war. when they -could hardly be expected from abroad.
In those instances we may go into businesses knowing they will involve a loss, but in ordinary industrial matters I can conceive at present of no circumstances in which the Commonwealth ought to enter into any engagements of this kind. If it does so it will be enormously handicapped as compared with the States, and still more enormously as compared with the local bodies, which should be intrusted with this control if anybody is.
This measure is signalized by another departure, not at all serious in itself. Believing a definition of “monopoly “ to be necessary, and apparently not being able to find one wide enough, the resources of the English language not sufficing to cover all the possible variety of objects or enterprises which Ministers may wish to call a monopoly, and purchase ‘ at public expense, they have resorted to the extraordinary expedient of putting into a statute a declaration that. anything the Federal Parliament says is a monopoly shall be a monopoly. That sounds like magic. It may be nothing like any monopoly that any of us ever saw or hopes to see. It might be this Parliament itself. If so, I hope the Government will not turn it into a monopoly until we have a majority. This House, consisting of men who have all by legal reckoning at any rate, reached years of discretion, is asked to accept this extraordinary device as a substitute for a definition of monopoly. The next question that everybody will be asking is, “ When is a definition not a definition?” And the answer from the statute-book will be prompt: “When it is a resolution of both Houses of Parliament.” I should have thought that the draftsmanship of the Attorney-General would suffice to enable him to accomplish his end without such an extraordinary feat of legerdemain as the English language has never before achieved. Against this proposal as a whole there is everything to be said, and practically nothing to be urged in its favour. Fortunately we have it in a separate Bill, and, therefore, can ileal with it on its merits. We ought to have had all the other propositions in separate Bills, and dealt with them on their own merits in the same way, first discovering the specific evil, and then applying the specific remedy.
I have here some further notes on the possible developments, legislative, administrative, and judicial, which must necessarily follow if these proposed amendments of the Constitution are accepted, but they can wait for another time. We are turning the stream of national life out of the Federal channel in which it has been flowing into a deeper and narrower course, where it ceases to be Federal, and ceases to be free. It may turn a mill grinding out a certain amount of legislation purporting to govern the whole continent, although on several of its most important subjects it is forbidden to discriminate between one part and another, or between one section and another of its people. Constitutionally we cannot stop long just where we are, nor can we stop at all after these amendments are carried. The functions left to the States will be so limited and so few that it will be necessary to transfer them too. We shall come then to a reign of provincial councils having even less power than the honorable member for Herbert proposes to endow them with, under a central Parliament overburdened with work, choked with appeals from all quarters, sections, and classes, for remedies that, in most cases, cannot be satisfactory, sitting desperately all the year round, and legislating as does the United States Senate in America, at times, when in a single sitting Bills are rushed in by the score, and dumped into the waste paper basket by the dozen.
– ‘Our Senate will behave better than that.
– Our Senate will not then exist. It is gone in fact, and might as well go in name. The single Chamber which will then dispose of the destinies of Australia, will formalize, sterilize, hamper, and interfere with whatever is still left in the Australian people of that enterprise which, as Professor Wilson says, makes and maintains the United States to-day.
– This is like a burial service.
– It is a burial of Federation, if you pass these amendments. I do not envy the honorable member the prospect of sitting in such a Parliament with his colleagues.
– We will not bury British institutions.
– What have we left of British institutions? The British Constitution permits each and all of the pro’posals which are now to be made possible at the will of this Parliament under amendments of the Federal Constitution to be carried out at any moment the British Parliament thinks fit. The best comment on them is that the British Parliament has never thought fit, and, according to all appearances, never will, think fit to attempt them. Yet that is a country that could be lost to sight in Australia, and with all its millions cannot hope to cope with the number of millions that must be contained In this great continent if it is to be maintained for the white race. Yet we shall be expected to carry on the pioneering work of settling and cultivating it under restrictions dictated from a central Chamber, sitting at Canberra ! There is no possible common measure between this new system of government, and this continent with the future people of Australia, upon which and whom it is to operate. The ruling machine and the ruled will be absurdly out of all possible proportion. Why, then, instead of modestly endeavouring to determine our obstacles, and define the difficulties in our path, in order to take the necessary steps, and no more, to surmount them, while keeping on the high road of national development
– The high road of shadowy legislation.
– No; our high road is not that which the honorable member indicates. The high road of shadowy legislation is that to which he and his fellows are seeking to drive us. Its route ‘discloses no evidences of practical knowledge or judgment, but is dictated by the abstract considerations of a shadowy programme - shadowy in all its applications to the circumstances around us.
What I am pleading for is a calculation of what all these extravagances will cost us. We have a great Australia, do not let .us leave it peopled by little Australians, whose ideas of the National Government and its operations shall be founded more on those of magnified municipalities, than upon the actions of men charged with the destinies of a great country. Are we not prepared to trust the people of Australia af ter next year wilh some competence for dealing with any new situation when it arises ? Are we not prepared to trust the people of Australia to, at least, have the opportunity of saying “Aye” or “Nay” to each and every proposition for the amendment of their Constitution that is to be laid before them ? Are we not prepared to trust them to meet any of those emergencies and difficulties conjured- up in anticipation in the minds of my honorable friends opposite if they arise and when they arise? Is all wisdom to die with us, and all power to meet emergencies and contingencies to be strapped down by a statute-book? Are we to consent to the transformation of our Federal Constitution into something new, foreign, and strange, all its provisions based on mistrust of the future governing capacity of the people of this country? Let us trust them as we trust ourselves, content to do our day’s work to the best of our ability, and to go down to our rest having done that day’s work, meeting its actual trials - and God knows they are severe enough in both new and old countries even at the present day ! It is our children that are to follow us. Let us trust to them as probably more competent, more Australian in spirit, and less hampered by provincial considerations or day-dreams of redemption by mere lawmaking methods. Let us face the situation manfully to-day, leaving our country better provided than we found it with the means of progress, and, without loss of liberty, still free to meet fresh difficulties and fresh trials as they arise, strong in the faith that our race has so long justified.
.- We have listened to one of those extraordinary speeches in which the Leader of the Opposition alternately assents to and dissents from a proposition. I am sure the public outside, when they read the honorable gentleman’s speech in the hope of some light and leading, will be left as much in the dark as are some honorable members who have patiently waited for some suggested alternative to meet the difficulties which the honorable gentleman himself, and the Attorney-General in the previous Administration, admit to exist. It is acknowledged by the Leader of the Opposition that the party on this side were returned to Parliament with a distinct mandate to carry out certain great projects, which, under the Constitution at present, are impossible.
For instance, there is a mandate for the nationalization of monopolies and for the establishment of a Commonwealth bank.
– Have the State Labour parties not a mandate for the nationalization of monopolies?
– Certainly ; and I asked the honorable member whether he could indicate any circumstances under which there could be a conflict between the Commonwealth and the States in this connexion. If a monopoly is nationalized by the Commonwealth, it cannot be nationalized by the States, and vice versa; so that there can be no overlapping of jurisdiction even if both parties have a mandate. The work in this connexion, demanded at the hands of both Commonwealth and States, is so great and pressing that there will be ample room for the jurisdiction of both in their individual spheres. The nationalization of monopolies will naturally determine itself into projects which can be best handled by local authorities, whether municipalities, local Government Boards, or State Parliaments, and those which can be better handled by the Commonwealth.
There is also a mandate for the establishment of new Protection, and the provision of a union label, and a Commonwealth trade-mark. This is essential to provide for the benefits of the Protective Tariff being shared by manufacturers, workers, andconsumers.
As to industrial arbitration, all effective means at our disposal have been removed by the judgments of the High Court. Even the Leader of the Opposition imagined that the Commonwealth had greater powers, because he sought to exercise them in connexion with the new Protection aspect of the Harvesterlegislation, though, as we remember, the High Court, in its wisdom, decided against him. I might also mention the desired power to include State employés within the operation of any Commonwealth Conciliation and Arbitration Act. This is a matter of some importance in my own electorate, where there are many railway and tramway men; but when it was sought to bring those men under the Commonwealth Act, the High Court decision rendered that impossible.
Another proposal which is contained in the general platform of the Labour party is that of national assurance, which should provide against accident, unemployment, and death ; but it is very doubtful whether, under the Constitution as it stands at present, there is power to give effect to it. In each of these cases, the amendment of the Constitution is necessary as the first step towards reform.
The honorable member for Ballarat says that the Government propose to deplete the State Governments of their powers, and leave them practically useless as governing authorities. But I point out that the State Parliaments have been in existence for very many years; and have not thought fit to exercise those powers which are now sought by the Commonwealth. The States have shown no desire in the past to legislate on the questions to which I have referred, such as the nationalization of monopolies, and surely no complaint can be made when the Commonwealth Parliament seeks to exercise powers which, if the States have not forfeited them by disuse, have been so neglected as to create this demand on the Commonwealth Parliament.
Every one of those proposals was placed before my constituents at great length, not only from the platform, but in the shape of a manifesto delivered at every man’s house. A similar procedure was followed in almost every electorate in the Commonwealth. There can be no doubt that, under the circumstances, the electors of Australia gave authority to this Parliament to deal with those questions ; and now it is sought by referendum to so alter the. Constitution as to bestow the necessary jurisdiction.
As the Leader of the Opposition has said, it is impossible to explain to the electors every detail of proposed amendments to the Constitution. And, as a matter of fact, that same difficulty presented itself when the Constitutution itself was under consideration, and when the people had very largely to trust their party leaders and known public men to give effect to certain broad principles. In regard to the proposals immediately before us, we have to tell the great body of the electors that, as a party, we have given the fullest consideration to the means by which the platform on which we were elected is to be carried out, but that we cannot come before them and discuss from A to Z all the details and ramifications of great constitutional measures.
– I beg to call attention to the state of the House. [Quorum formed.]
– Whilst we shall do all in our power to place every issue in the proposals before the people, we shall have to ask them to take it for granted that what we propose is absolutely necessary to give effect to the platform.
First, we ask for power to wipe out those limitations which at present appear in the Constitution in regard to trade and commerce. That power is necessary to bring the Constitution into conformity with the powers asked for in relation to monopolies and corporations ; secondly, we ask for an alteration of the Constitution to enable us to nationalize or regulate any industry, business, or service; thirdly, we ask for power to make laws regarding corporations ; and, fourthly, for power to create, regulate, and control any corporation, including corporations formed under any State law with the exception of religious, charitable, scientific, or artistic corporations not formed for profit, and to include foreign corporations, including their regulation and control. Fifthly, we ask for an extension of the arbitration power, which is practically unlimited, and which will give us the right to deal with matters of industrial dispute without fear of our powers being whittled away, if not wholly dissipated, by the judgments of a Conservative High Court.
We have before us a Bill providing for a referendum of the people to alter the Constitution by- empowering the Parliament to make laws with respect to industries and businesses declared to be the subjects of monopoly. This is to be secured by the insertion in the Constitution of a section to be known as 51 a, providing -
When each House of the Parliament, in the same session, has by Resolution declared that the industry or business of producing or supplying any specified goods, or of supplying any specified services, is the subject of a monopoly, the Parliament shall have power to make laws for carrying on the industry or business by or under the control of the Commonwealth, and acquiring for that purpose any property used in connexion with the industry or business.
The Leader of the Opposition has sought to cast ridicule on the proposal .that the Parliament shall decide what is a monopoly, to be the subject of legislation under the power for which we are seeking. The position is that either this Parliament must decide what is a monopoly or the High Court must do so. That is the only alternative. So far as we are concerned, we say that this Parliament, which is responsible directly to the electors, should be the tribunal to decide what is a monopoly, which should be subject to nationalization or such other regulation as is provided for. Under the proposed amendment of the Constitution monopolies are to be defined by this Parliament, and we are to have power to declare how any industry, or business of producing or supplying any specified goods, or of supplying any specified services which is the subject of a monopoly, shall be dealt with. Further, we may carry on an industry or business by or under the control of the Commonwealth, and may acquire any property in connexion therewith.
In a separate Bill it is provided that a referendum shall be taken to amend section 51 of the Constitution first by omitting from paragraph1 the words - “ with other countries and among the States,” so that as amended the power will read -
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to -
Trade and Commerce.
In clause 3 of the Bill it is proposed that the people shall be asked to further increase our powers by voting for the omission from section 51 of the Constitution of the words -
Foreign corporations and trading or financial corporations formed within the limits of the Commonwealth. and inserting in lieu thereof certain other words so that section 51, paragraph xx., as amended would provide that -
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to -
Corporations, including -
the creation, dissolution, regulation, and control of corporations ;
corporations formed under the law of a State (except any corporation formed solely for religious, charitable, scientific, or artistic purposes, and not for the acquisition of gain by the corporation or its members), including their dissolution, regulation, and control; and
foreign corporations, including their regulation and control.
In the same measure there is another proposal to seek the people’s authority to so amend the arbitration power given to us under the Constitution that it will provide that-
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth in respect to -
Industrial matters, including employment and the wages and conditions of employment and also including the prevention and settlement of industrial disputes.
An additional power dealing further specifically with trusts and monopolies is proposed, which if ratified by the electors will read in the Constitution as follows -
The Parliament shall, subject to this Constitution, have power to make lawsfor the peace, order, and good government of the Commonwealth with respect to -
Combinations and monopolies in relation to the production, manufacture, or supply of goods or services.
These are the first steps towards the carrying out of the proposals that were placed before the country by the Labour party at the last general election - to enable the Parliament to commence to give effect to that national programme which has the indorsement of an overwhelming majority of the people.
The Leader of the Opposition has sought to show - although he did not go into details to prove his statement - that if these amendments be made in the Constitution practically nothing will be left to the States. He declared that the State Parliaments would be shorn of all power, that their continuance would be merely nominal, and that they would be reduced practically to the status of municipal councils. Without in any way exhausting the list I made a note, while the honorable member was speaking, of a few of the many great powers which will still be left to the State Parliaments, even if the Federation monopolized the subjectmatters of these proposed grants of power.
First of all, they have the control of land settlement, with all that that power means in the advancement and development of the whole of the States.
They have, and will continue to have, control of immigration, which is also a great power capable of being exercised with immense benefit to Australia as a whole.
Then, again, they have control over our harbors and rivers, as well as over water conservation and irrigation. In these respects alone they have sufficient to engage their attention for many years to come, if the great work which is crying aloud for treatment is honestly tackled and faithfully carried out. There is in connexion with these subjects legislation which needs to be passed, the urgency of which cannot be over-estimated.
Further, we find that they have exclusive jurisdiction regarding mining development, and all that mining development means to investors, workers, and traders. They may encourage private enterprise or institute State control. This great field of action, still rests with the State Parliaments.
The States have full power with respect to the transport services, the linking up of towns and cities, the carriage of products, and all the subsidiary details in connexion therewith, which go to make for the development and prosperity of the country.
The States may bring the surplus populations of England and other acceptable European countries to settle here, may proceed to store up our immense water supply, to carry out irrigation schemes, to develop the mining industry, and, having dealt with the land and its development, to control buildings, dwellings, and sanitation.
The State Parliaments have also power to make laws relating to the home life, the birth and training of our future citizens, and their education in the arts and sciences, as well as in technical matters designed to fit them to take their places in life.
One could dwell for hours upon the immense powers and the wide jurisdiction still retained by the State Parliaments - powers which will enable them to assist in the development of a thriving and prosperous community.
They have the care of human life and property, the control of hospitals, asylums, and gaols, the policing of our domestic legislation, the control of factories, the power to determine the conditions under which employes shall labour, to provide for compensation to workmen, and generally safeguarding the lives of the people.
Let us consider for a moment their public works powers. There is no desire to interfere with the tremendous powers in the hands of the States to develop the country through the agency of their Public Works Departments.
They have also control of public utilities, gas, electricity, and water, and all questions of local and municipal government are left in their hands.
– They also control forestry and agriculture.
– Forestry and agriculture is included under the general heading of land settlement and development.
Without ransacking the whole scope of the States’ operations, we must recognise that they have left to them tremendous powers for the development and advancement of Australia. I venture to say that if they exercise those powers to the full and do justice to the jurisdiction which they possess, they will be able to do as much in their sphere for the advancement of Australia as the National Parliament itself.
The Leader of the Opposition referred to the strenuousness of this session, and to the number of Acts that we have already placed upon the statute-book. He declared, further, that he could see a very strenuous life ahead of us. There can be no doubt that that is true, but this strenuousness has been rendered necessary by the wilful neglect of the party to which the honorable member belongs in refusing to exercise many of the powers in their hands for the protection of the people and the advantaging of the country. It is unfortunate for us that we are compelled to lead such a strenuous life in order to overtake arrears of legislation caused by the wilful neglect of the Fusion and the parties in power before it.
The Leader of the Opposition did not deny that an amendment of the Constitution was necessary to enable the Labour party to carry out the mandate of the people. He said that he did not blame the party for what it was doing, because at meeting after meeting he had placed before the electors his view of what might be expected if it was returned to power, and that, in spite of his warnings, it obtained a majority. If it refrained from seeking an alteration of the Constitution to enable it to give effect to its promises, it would be a traitor to those who sent it here. The honorable gentleman added that many members of his party could not realize that the Labour party would seek earnestly to give effect to its platform. That is conceivable, because the members of other parties have been so in the habit of making promises to their constituents, and failing to give effect to them, that it must appear strange for the members of another party to make strenuous efforts to loyally and faithfully do those things which they were returned to do.
– There will be plenty to do after the Labour party has gone. The honorable member has not yet put a stop to the sweating of which he has complained.
– The party to which the honorable member belongs is responsible for the state in which we have found things, and whatever sweating exists is a legacy from our predecessors. We are doing our best to put an end to sweating, but our resources have been limited by the action of our predecessors. We shall - remove the obstacles in our path with the greatest expedition.
The Leader of the Opposition has asked, “ What is wrong with the Constitution? Why should revolutionary amendments be proposed ; amendments which are not curative, but radical?” We contend that there are cancerous growths in the body politic, which can be effectively treated only by radical measures, and that no reform is to be obtained by mere tinkering. The Conservatives would try to deal with difficulties as they showed their heads from month to month, and from year to year, a never ending operation, whereas the Labour party seeks to go to the root of the trouble, and to effect real reforms in the social structure.
It is true, as the honorable member said, that ours is the youngest of all Federal Constitutions, but he himself pleaded for an alteration of it to meet the pressing necessities of the situation. If we followed his advice, however, and asked for a further limited and strictly denned power, we should still be in the hands of the High Court, and be at every turn thwarted bv legal injunctions, prohibitions, and decisions. That might be all very well for the wealthy, who can fight cases from Court to Court, and waste the substance of their opponents, but in the interest of the rank and file, we desire something more satisfactory.
The honorable gentleman has admitted from time to time the inadequacy of the powers with which the Parliament is clothed. It is not long since he issued some very effective memoranda, in which he showed that our powers were altogether inadequate to cope with some of the great problems which confront us. He pledged himself to the new Protection, about which he spoke a great deal ; but when asked to make effective proposals, he baulked, and was not prepared to go to the length to which he had shown that it is necessary to go. Dealing with the subject in a memorandum issued on the 13th December, 1907, he said -
The old Protection contented itself wilh making good wages possible, the new Protection seeks to make them actual.
In a long and elegant, as well as eloquent, document, he sets out the necessity for action by the Commonwealth, stating in paragraph 13 that -
Further security for the maintenance of the standard wage will be afforded by the requirement that all goods manufactured in exempt factories shall bear, either an exempt stamp, or the Commonwealth trade mark. The presence of these marks on any goods will be prima facie evidence that the conditions of exemption have been complied with, and will thus enable purchasers to distinguish between goods which have been produced under standard conditions and those which have not.
I hope that this memorandum will be printed and circulated at large among the electors, so that they may thoroughly understand the honorable gentleman’s views. He said, further, that -
To restrict the powers of the Commonwealth to the mere imposition of these duties, while the conditions under which the manufacture of protected articles is carried on differ so widely in the different States, would be to permit inequality, discrimination, and discord. The ideal of the Constitution is equality and uniformity in all national matters.
It is because the powers conferred by the Constitution have been found not to enable us to provide for equality and uniformity in regard to national affairs that we ask for their extension. On this the honorable gentleman has been as insistent as any one ; but it appears now to suit him, and the party which he leads, to argue himself out of his original position. He continued -
The ideal can hardly be realized if uniformity of protection is coupled with wide diversity in the conditions of manufacture. Effective and useful as State industrial laws have in many cases proved, their operation is circumscribed by State boundaries, and it can hardly be claimed for them that they either do or can secure uniformity in the conditions of manufacture throughout Australia. No authority but the Commonwealth Parliament can do this, and the attempt to do it, in the way that has been outlined, is in fullest harmony with the Federal aims and character of the Constitution.
One could imagine the honorable gentleman placing the proposals of the Labour party before the country, and soaring to the heights of eloquence of which he is capable, in proving that every one of the powers which we claim to be necessary is required to enable the national work to be done with the fullest harmony and in strict conformity with Federal ideals, as opposed to Unification.
In a memorandum issued on 28th October, .1908, the honorable gentleman came out of the clouds and made some practical proposals. He said, amongst other things -
As it was under the Commonwealth power of taxation that the manufacturer obtained the benefits of a protective Tariff, the same power of taxation was sought to be exercised to give protection to his employees by means of an Excise Tariff. Excise duties were placed on certain classes of goods protected by Customs duties, and an exemption from the Excise was granted in favour of goods for the making of which fair and reasonable wages were paid. It has now been decided by the High Court that the Constitution does not warrant the duties of Excise thus imposed by the Parliament of the Commonwealth.
As the power to protect the manufacturer is national, it follows that unless the Parliament of the Commonwealth also acquires power to secure fair and reasonable conditions of em- ploy ment to wage-earners, the policy of protection must remain incomplete.
The object of the proposed amendment of the Constitution will be to endow the Parliament of the Commonwealth with a grant of power to tlo economic justice in protected industries, with due regard to the unity of the Commonwealth and the diversity of local circumstances.
When the honorable gentleman was seeking an alteration of the Constitution he thought it possible to do economic justice, and to take into account the diverse conditions of the various parts of the Commonwealth ; but now that the Labour party seeks an extension of power, he tries to make the people believe that it will mean the ignoring of the diversity of conditions existing throughout the Commonwealth. He then made this proposal -
In order to carry out these objects, it is proposed to insert new paragraphs in section 51 of the Constitution, so as to enable the Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to -
*’ (xxxv.a) The employment and remuneration of labour in any industry which, in the opinion of the Inter-State Commission, is protected by duties of Customs.” (xxxv. A) The grant to the Inter-State Commission and its members of such powers of regulation, adjudication and administration as the Parliament deems necessary for giving effect to any laws made in pursuance of the last preceding paragraph, subject to such review, if any, as the Parliament prescribes.”
There is as wide a power claimed there as is now claimed by the Labour party. The honorable gentleman wished to hand over to an Inter- State Commission the full regulation of the employment and remuneration of labour in every industry affected by Customs duties. Parliament was to prescribe the jurisdiction of the Inter- State Commission, which in the exercise of these powers was to be unlimited.
Since these admissions of the curtailment of the Commonwealth powers, an Attorney-General in the last Deakin Government has issued a most important memorandum, showing that powers considerably in addition to those proposed by the Leader of the Opposition in the memorandum from which I have just quoted are needed to enable the Commonwealth Parliament to do the work required of it.
What is wanted as regards Commonwealth and State powers is more a division of subjects upon which the parties may have jurisdiction than a division giving each authority jurisdiction over some part of particular subjects. Taking the question of new Protection and the re gulation of industrial conditions, if we have a strict division of power limited by set terms in the Constitution, there will always be conflict, appeals to the Courts, delays in the settlement of disputes, and the harassing and humbugging of those who seek to take advantage of 1 Commonwealth legislation.
We do not seek to load the National Legislature with local powers. Even though the powers with which we ask to be endowed are wide, and perhaps may give us authority to exercise jurisdiction over some matters with which the local authorities deal, it is inconceivable that a National Legislature would deal with those questions that can better be regulated and controlled by local bodies, whether they be local governing bodies or State Parliaments.
The Leader of the Opposition referred to the difficulty of dealing with matters from a Commonwealth centre, such as Canberra, but we must remember that we are already dealing with the development of a country thousands of miles away from the Federal centre. We are controlling Papua with all its- questions affecting every condition of the life of the people in the Territory, and conferring upon local bodies certain subsidiary powers enabling them to deal locally with those questions which we could not effectively control from the Commonwealth centre. We are proposing to take over the Northern Territory, and are taking over an immense area in connexion with the Federal Capital. The Commonwealth Parliament will not seek to build the roads and bridges, and attend to all the details of domestic legislation that will be necessary in these territories. The’ Commonwealth Parliament, having complete control, practically extending to unification, over the territories, will endow local governing bodies with the necessary power to give effect to the domestic legislation necessary for their development and advancement. If the Commonwealth Parliament can deal with every aspect of social and domestic life in those territories, surely in connexion with the great national powers which we ate asking the people to give us by an amendment of the Constitution the Commonwealth Parliament can be relied upon to show sufficient “ nous “ and common sense not to seek to govern Australia, as a whole, from a Federal centre in re- gard to all those details of legislation which can be better attended to by local authorities.
That is merely a bogy which has been raised here, and will doubtless be raised all over the Commonwealth when the matter is being dealt with. The people will be told that this is .unification, everything being proposed to be dealt with from a common centre, whereas, on the contrary, there will be devolution and decentralization. This is a party which stands for decentralization. We do not believe in crowding the people into great cities, but in opening up the ports all round Australia, and developing our primary resources. The party of centralization is the one which is governed by the propertied interests of the great capital ‘cities, and is not the party to which I have the honour to belong.
The Leader of the Opposition is assuming a great deal when he expresses the opinion that we shall seek to exercise jurisdiction over a large’ number of subsidiary details which can be better dealt with by local authorities. To mention a concrete instance, we have just been dealing with a progressive tax upon unimproved land values. The Commonwealth Parliament has not sought to put a tax upon every foot of land, but a large exemption of £5,000 worth of unimproved land values has been allowed. The taxation of those smaller areas has been left in the hands of the States, and so it will be in connexion with every power vested .in the Commonwealth Parliament. There will be a discrimination between what should be dealt with nationally and what can better be dealt with from a local point of view. We have complete power to deal with the whole of the lands of Australia, but that does not mean that we are going to exercise it. In this particular case, as we have shown, a differentiation has been made between small and large properties. The former are left to the control and regulation of, and, if necessary, taxation by, the States, and the large properties are dealt with by the Commonwealth as a whole.
The Leader of the Opposition pleaded that there should be five separate ballotpapers when we seek to secure an extension of the jurisdiction of the Commonwealth under the Constitution next year. We all know the difficulty that existed at the last Commonwealth election, when there were separate ballot-papers for the election of senators and members of the House of Representatives, and two additional ballotpapers relating to amendments of the Constitution. There was a great difficulty all over Australia in assisting the people to see clearly the important matters dealt with at the time, and in advising them how to exercise their privileges.
– Does not the honorable member think they gave an intelligent vote upon the referenda?
– I certainly do, but it needed a good deal of time and attention to explain to them fully how to deal with all the ballot-papers. These great issues become confusing to many people who have not the opportunities of becoming as clearly informed upon them as ourselves. If we are going to increase the number this time, and ask the people to deal with five, instead of simplifying the issue, we shall complicate it, and not get so satisfactory a result. As a matter of fact, each ballot-paper will deal with those questions which are related to each other, and without which they would be incomplete. If we had five sets of ballotpapers, and some of the powers were granted, and some were not, it would mean handing over to the Commonwealth a halt and lame power to give effect to the political policy upon which this party has been returned to power. That matter has all been thoroughly considered, and the electors who sent us to power can rely upon it that matters will be put before them in the simplest possible way, so that they may be able to express their opinions most intelligently.
The Leader of the Opposition also said that we should have specific abuses named, and specific remedies asked for in connexion with them. “That is all very fine and large, and may be very cute criticism, but it would mean a never-ending argument. We should be sitting here for the next three years under that proposal, without accomplishing the work which we are seeking to do at the present juncture.
The honorable member was most contradictory when he claimed in the first place that we should seek only for such alterations of the Constitution as are necessary to meet the particular demands and necessities of to-day, and then went on to ask what would happen when this continent was peopled with millions. He wanted to know how these powers would then be exercised, and whether it would not be necessary to grant Home Rule, and so forth. In fifty or one hundred years’ time radical alterations may be necessary in the present Constitution. We are not so much concerned with that. It is our business to deal wilh the problems of the day. Democracy of the future will be well qualified and equipped to deal wilh the problems as they arise in their day and generation, just as we believe the present generation are qualified to deal with theirs. In one breath the Leader of the Opposition asked that our power should be limited, taking into consideration only the difficulties of the present, and in the next breath went on to concern himself with the problems that would confront future generations, and was in a state of great anxiety as to what would happen when the millions yet unborn came to govern themselves under the Federal Constitution as we propose to nsk the people to amend it. As a matter of fact, alterations will be required. The Constitution is not so easily amended, but from time to time it will require amendment. I have no doubt that (he powers which we are asking for to-day will not be found to fit all the circum- stances even of the next ten years. Human nature has a knack of re-adjusting itself to experimental machinery, and the monopolists, controllers of combines, and general exploiters of society will no doubt find some means of escape as time goes by from some of the legislative regulation and control which we seek to exercise over them. It may therefore be necessary from time to time to ask for further alterations of the Constitution to meet particular difficulties as they arise.
This party has been returned to power with distinct objects.
– By a minority !
– The honorable member is echoing something he has read in Conservative newspapers ; but, as a matter of fact, those newspapers take credit for votes which were really Labour votes, as witness the case of the honorable member for Gippsland and the honorable member for Hume. In the electorate of those honorable members, Labour voters had no choice but to vote for those members ; and I point out that in the case of the Senate, for which the States vote as a whole, the Labour party had a majority in every State of the Commonwealth. This party stands for the cultivation of an Australian sentiment based on the maintenance of racial purity ; the development of an enlightened and self-reliant community; the securing of the full result of their industry to all producers by the collective ownership of monopolies; and the extension of the industrial and economic func tions of the Commonwealth, State, and municipality.
These steps, which we are asking power to take, are along the road towards the ideals and objectives of the movement - ideals and objectives which have been formed by the masses of the people outside, and in connexion with- which they expect from us effective action ; and we have to prove that this party exists to loyally carry out our pledges to the constituencies - not the peculiar whims and fancies of individual members, but the wishes of the majority of the people at large. I feel quite sure that the community will take up a logical position and not stultify themselves ; and, having determined that’ the Labour party’s national programme shall be given effect to, will not now stop short of giving Parliament the necessary power to carry out the mandate of the last Federal election.
.-.! regret there is not the extended’ time one would like for. the consideration of these two Bills, which, I think, raise in a more distinctive form the question of Unification, than any measure introduced by a Ministry since the inauguration of Federation. I think I may sincerely compliment the Attorney-General, as well as the Leader of the Opposition, on the adequate way in which they discharged their tasks of exposition and criticism. It struck me when the Attorney-General was speaking that he was, perhaps more than on any previous occasion, animated by that sobering sense of responsibility that ought to attach to one who is dealing with a question that goes to the roots of our Constitution. The scope of these Bills will be properly understood only when the commerce power, without the restrictions which now attach to it under the Constitution, and when the power to deal with corporations, with the additions that are now proposed, and which we do not now possess, except, incidentally, in connexion with ohe power, have been transferred to the Commonwealth. Before dealing a little more closely than was necessary in the case of the Leader of the Opposition, with the legal import’ of the Bills, I should like to offer a few words of criticism on some propositions of the Attorney-General with which he opened his able speech. He referred to the Constitutions, of Canada, Switzerland, Germany, the United States, and Australia, with a view to arriving at what he considered the essential differences in the Federal system - those peculiarities without which the term could not be applied to the Constitution. I do not wish to deal with more than one or two of these points. 1 admit that the Canadian Constitution is not, as is ours, based on equal representation of the States. That matter was fought out here before 1900; but we cannot rely on the authority of what was done in Canada for guidance as to what may eventually be done here while still retaining the designation of “Federal,” as applied to our Constitution. Professor Dicey, in his work, The Law and the Constitution, mentions that a true Federal system can only be formed by the bringing together of communities or units which previously were separated. In the case of Canada the reverse took place. Up to 1867 there was in Canada a unitary system; and the point that struck me when the AttorneyGeneral was speaking was that the Federal test as applied by Dicey does not apply there, because it was a case of the division of united provinces for the purposes of a looser Federal tie. That was done, under the stress of historic circumstances which began in 1864, and ended in 1867 ; and the principle of Federation, to whatever extent it does apply, was reluctantly accepted. We must not, therefore, be surprised to find that they did adhere largely to the unitary system in the adjustment they came to- that they did what we refused to do, kept their nominee system for the Upper House, and a principle of representation approximately based on numbers for the Lower House. It is, therefore, to some extent a mixed system, and what I would consider its weaknesses are due to the fact that they did not fulfil the ideal accepted by Dicey. As regards the German Constitution, one cannot rely on that when we seek to find what is an essential difference in the Federal system. It is referred to by Professor Dicey as being too full of anomalies to be considered a fair representative of any form of government. The Swiss Constitution has to be considered historically. So far as I remember, the Swiss Union commenced as far back as 1215, with the drawing together of three or four communities, but there never was a true constitutional system embodied in the text of any instrument of government until, one might say, 1874, and, even then, its origins are manifest. The final arbiter is the people ; every constitutional law - and the term being more comprehensive, such laws are far more numerous than here - must automatically go to the people for final ratification. They have not yet learned the peculiarities of the true Federal system. It is true that in 1874, they set up a Federal Court ; but it is pointed out by Professor Dicey that one of the blots or imperfections of the Swiss system is that the Federal Court is not a true Federal Court, as understood in the United States. Dicey says that Swiss statesmanship has failed as distinctly as American statesmanship has succeeded in keeping the Judicial apart from the Executive, and that that failure constitutes a serious flaw in the Swiss Constitution. The reason is that they have not begun, though I think they are beginning to realize the significance and province of a Federal Court. But in Switzerland there is not the danger without a Court that would exist here, because every Bill dealing with the Constitution is directly sent to the people, who are the judges of power, and also about threefourths of the ordinary legislative powers are exercised by Parliament, and checked by referendum. As a matter of fact, the referendum is called into operation not only regularly in reference to constitutional laws, but frequently in connexion with ordinary laws. But when we come to the archetype under which Dicey tells us we have the true Federal system - that system that cannot exist if those peculiarities which the Attorney-General says are not essential differences, are. removed - he remarks-
The Union in the first place presents the most completely developed type of Federation. All the features which mark the scheme of government and, above all, the control of the Legislatures by the Courts are exhibited there in their most salient and perfect form.
That is the type we adopted, and is the one embodying the correct Federal idea. The Attorney-General referred to the War of Secession; and I may say that the only occasion in which there was Teal danger of disruption of the American Union was. when the Constitution was flouted by ignoring the province of the Judiciary. In 1860, the question of secession was being pretty strongly discussed. The Dred Scott case was decided about 1859 or1860, and declared that slavery could not be constitutionally excluded from the territories. The northern States refused to abide by that decision.
– An infamous decision.
– Whether it was right or wrong in principle, that was the decision arrived at, and there was a further proposition which is almost antipathetic to our notion of liberty ; that the blacks had no right which . a white man was bound to respect. In an article on “ Secession,” which I wrote for the Commonwealth Law Review, and which was published in June, 1906, I pointed out that -
The Northern States, however, decided to ignore the opinion of the judiciary when it was not in conformity with their own. They fell back upon the elemental ethics which Locke COn.side red to be above the most supreme law of the land, and in the interests of humanity took the risk of secession by the Southern sticklers for the Constitution.
That was the only occasion - and it was associated with an attempt at secession - in which the decision of the Judiciary was repudiated .by the Government of the day. As’ to those characteristics which the AttorneyGeneral says are not essential, - and might one after the other be removed without impairing our right to describe bur Constitution- as a Federal one, one has to regard side phases. The test applied by the ‘ honorable gentleman is the independence of each within the scope of its power. . How is that independence to be maintained after we have removed all that the Attorney-General declares to be non-essential, and have abolished the effective control of the Judiciary? As regards the power of the Judiciary I might, if I wished to extend references .to authorities on the point, refer to Lord Acton’s History of Freedom and other Essays. In one of the ablest chapters, which some honorable members have doubtless read, and from which, perhaps, they have gained some advantage - I refer to the chapter on “ Freedom in Antiquity “ - he mentions that Athens went down when it ignored its laws, and its constitutional code, and that only when it came back to the old ways was the liberty, which ought to be characteristic of every Federal power, restored -
The laws, which bad the sanction of tradition, were reduced to a code; and no act of the sovereign assembly was valid with which they might be found to disagree. Between the sacred lines nf the Constitution which were to remain inviolate, and the decrees which met from time to time the needs and notions of the .day, a broad distinction was drawn; and the fabric of a law which had been the work of generations was made independent of momentary variations in the popular will. The repentance of the Athenians came ton late to save the Republic. But the lesson of their experience endures for all times, far it teaches that government by the whole people, being the government of the most numerous and most powerful class, is an evil of the same nature as an unmixed monarchy, and requires, foi nearly the same reasons, institutions that shall protect it against itself, and shall uphold the permanent reign of law against arbitrary revolutions of opinion.
I do not wish to deal too fully with the’ speech made by the Attorney-General upon these points, because the ground has already been well and ably covered by the Leader of the Opposition, but, perhaps, I might refer with a little more detail to the effect of the taking over of the powers which are to be assumed under these Bills. As regards .the trade and commerce power,’ we can only arrive at a proper understanding of the scope of the proposed amendment by a review of the power’ that we at present possess. That power depends on an express delegation in paragraph 1 of section 51 of the Constitution, and also on. the terms of paragraph, xxxix, which gives us power to make laws in matters incidental to the execution of the express powers. That is an incidental power which in the United States is known as the power to “ make all laws necessary and proper for carrying into execution the foregoing powers. “ These have been declared by Marshall not to be necessary and proper in the sense of being absolutely indispensable, so that they were not limited to such laws as are- indispensable, and without the power would be nugatory. As a matter of fact, the commerce power in America has been very largely declaredI was almost inclined to say “extended” - by judicial decisions. In other words, the implied power in relation to commerce has been so wide’ that we find a leading writer on Inter-State commerce) - Judson - stating that -
The broad and comprehensive construction given to this co-efficient power of. selecting measures for carrying into execution the constitutional powers of the Government has made academic rather than practical the long debated distinction between tile express and implied powers of Congress.
What is that power? The word “ trade “ has a very wide significance, but is nar-, rowed down by its association with the words “with other countries and among the States.” “Commerce” practically covers all the relations that are operative under that power. I think it is Webster who dennes trade as being narrower than commerce. It is barter, exchange, buying and selling. Marshall, in the case of Mcculloch v. Maryland, in effect says that commerce is a term’ of the largest import, including intercourse for the purpose of trade in any and all of its forms. The point is that trade is barter, or something between peoples who are practically in juxtaposition, whereas commerce extends over a wider area, necessitating a change of place. I have not looked them up, but honorable members will find in the old dictionaries references to the wide meaning of the word. Writers like De Quincey tell us that the merchant dealt with commerce or foreign interchange, and the trader with purely local trade. He points out in one of the finest instances, perhaps, of perfect cadence in English, that the word “ merchant” imported some position of real dignity, while the word “ trader “ had perhaps th(i significance sought to be attached to it by Napoleon when he designated the English, as “a nation of shopkeepers.” Honorable members will probably find, in looking through the various dictionaries and judicial decisions, that the word “ trade “ implies a much smaller interchange; - questions of ordinary buying and selling - than does the word “ commerce.” For that reason, it does not effect much under the existing powers, because the moment we sweep beyond the lines of a State or States we are dealing not with trade, but with commerce. Marshall therefore refers . to commerce as being for the purpose of trade, but trade is not commerce.’ When we come to domestic trade, the significance of the word is immediately amplified by the power becoming operative. Trade then means all the local relations which are, as a matter of fact, .directly excluded under the Constitution as it stands by the association of the word with the words “ with other countries and among the States.” I mention this because it is exceedingly difficult, unless one goes into a long statement of detailed decisions, to get at what is covered by the words “ trade or “commerce.” At first, it was thought that 1 ‘ commerce ‘ ‘ only included navigation ; but finally it was decided, after the case of Gibbons v. Ogden on navigation, that it applied to transport by land. Later on, it was held that, under the implied power which dealt with transport, questions of employment, status, and contracts, as. well as various other matters associated with transport, could be dealt with. We do not seem to have gone the length of the American decisions on that point. In the railway employes case, as reported in . the Common- wealth Law Reports some five or six years ago, the High Court laid it down that what-f ever is done in the name of commerce must have some direct and substantial effect on trade and commerce, and doubted whether the question of employers’ liability could be dealt with under our power in respect of trade and commerce. The American Courts, however, have recently decided that employers’ liability can be dealt with under the commerce power. About 1908 a decision was given under an Arbitration Act of 1898 which, with the exception of our own, is perhaps the only Inter-State Arbitration Aci that has been passed. That Act was declared ultra vires by the Supreme Court of the United States because it dealt not only, with Inter-State commerce, but with domestic commerce. Its terms not being severable, the whole Act was declared bad. 1 think that Congress re-enacted the Act, omitting the provisions held to be unconstitutional ; and now in America the Iia-, bility of employers is regulated, as regards transport between the States, under the” commerce power. Following up the matter, perhaps a quotation from Cooley on the Constitution would be more suggestive of what this power at present does include, than would, perhaps, any faltering references of my own to the effect of certain decisions as to commerce between the States. Cooley writes -
To constitute commerce between States it is essential that it be not confined to one State exclusively, but concern more than one. The ordinary trade of a State, the local buying, selling, and exchange, the making of contracts and conveyances, the rules for the regulation of local travel and communication, and all the infinite variety of matters which are of local interest exclusively, are left wholly to the regulation of State law. The commerce of a Stale which Congress may control must in some stage of its progress De extra-territorial. It can never include transactions wholly internal, between citizens wholly of the same community, or extend to a polity and laws whose ends and purposes and operations are restricted to the territory and soil and jurisdiction of such community. Nor can it be. properly concluded, because the products of domestic enterprise in agriculture or manufactures or in the arts may ultimately become the subjects of commerce outside the State, that the control of the means or the encouragements by which enterprise is fostered and protected is implied in this important grant of power. The Federal Government may have the power to suppress monopolies when they operate to control Inter-State traffic; but a combination to control the production of an article -
Those are the words used in this Bill - only indirectly affects Inter-State commerce, and is not a subject for Federal legislation.
It is probable that, in a way that one can only conjecture, the power to deal with all production and manufacture may be given over to the Commonwealth under the clauses of the principal Bill. I do not wish tooverlabour this matter, but honorable members willfind that in America there has been, without any alteration of the Constitution, I shall not say a widening, but a declaration of the scope of the commerce power which, perhaps, would have staggered some of the earlier constitutionalists, but which has been found adequate for the needs of the people. I speak on this matteron the authority of men whose names throughout all British communities carry exceedingly great weight. The division of industrial and other powers between the Federal Government and the States is a problem which is being agitated at the present time in America. Professor Woodrow Wilson is, perhaps; the greatest living active writer on constitutional theories. He has written a monumental constitutional history of the American Government, and is the leading American historian at the present day, as well as Professor of Constitutional Law in one of the foremost American universities. In the North AmericanReview for 1908 he says that the problem of the present is the division of powers between the Federal Government and the States -
It is difficult to discuss so critical and fundamental a question calmly and without party heat or bias when it has come once more, as it has now, to. an acute stage. Just because it lies at the heart ofour constitutional system, to decide itwrongly is to alter the whole structureand operation of our government, for good or for evil, and one would wish never to see the passion ofparty touch it to distort it.
He continues -
No man should argue in this way or that for party advantage. Desire to bring the impartial truth tolight must in such case be the first dictate alike of true statesmanship and of true patriotism. Every man should seek to think of it and to speak of it in the true spirit of the founders of the government.
That is the temperin which we should approach it. He afterwards deals with the commerce power somewhat to the effect of the remarks which I have made, pointing out how decisions declare according to the necessities of the time and seem at the same time to amplify. It was in that relation that he wrote the passage about the unwisdom of too hastily destroying local autonomy, which 1 quoted in the memorandum drawn up to endeavour to arrive at a clear view of our duty in connexion with this matter. As regards the commerce power, at first it was granted only for the purposes of uniformity. In America, one of the tests of the relative scope of the Federal Government and the States in this matter was declared in 1851 in the case of Cooley v. Board, when it was decided that the State jurisdiction existed when the circumstances did not admit of uniform legislation. It is difficult to get a postulate for guidance on these matters. On many points the High Court here has very wisely refused to state its opinion, the questions not being directly- raised. In the Jumbunna case, a series of suggestions was offered; suggestions that might be modified out of existence in the light of subsequent discussion, not unarguable and unshakable decisions.’ In America, we find, so far as we can get at axiomatic declarations, that the commercial power is differentiated as between the Federal Government and the States on the principle that, if there is a doubt, expediency coupled with uniformity ought to be the test. The scope of the commerce power here has yet to be declared. We are groping in the dark as to the power which the Constitution unamended gives to the Commonwealth. It has been regarded by American authorities as adequate for the present needs of the people. What is the scope of our navigation power? We have a Navigation Bill based upon a presumed power, which I am pretty confident will be challenged - I do not say that it will be negatived - at the first opportunity. . It is thought, for instance, that we have power to deal with all Admiralty matters, that the Admiralty jurisdiction here is as wide as it is in America, and that, because of the desirableness of controlling Inter-State navigation, we can deal with any navigation, even between the ports of a State, if at any point of the voyage a vessel goes outside territorial limits.
– Does not the honorable member think that a terrible power for the Commonwealth to have ?
– I shall not be led off by any matter of prejudice; I am endeavouring to get at light in this matter, and to feel my way to the solution of a rather difficult question. I do not say that the navigation power ought not to be declared or extended ; I believe that it should he as wide as any Nationalist would desire. But we are beginning to amend our Constitution before we understand it.
– We understand it. The honorable member is not far wrong from a legal point of view.
– I do not profess to understand it. In connexion with a legal opinion, I fried for a week to get at the clear scope of the navigation power. Even those who are laymen mast not be too cocksure that they are right in the views that they take of these matters. The Privy Council has declined to follow American decisions on the scope of the commerce and Admiralty power. It did so ten or fifteen years ago, when it was pointed out that some of the American Judges had not gone as far as the arguments put before it, and that some of the recent American decisions had not gone to the length of the earlier .decisions as to the scope of the navigation power, so far as derived from the Admiralty. I hope that our power may be as wide as honorable members desire it to be. In America they have decided that commerce, even between port and port, is national if, at any point of the voyage, a ship goes outside territorial limits. We are somewhat in the dark as to what powers we possess in this matter. Let us see what, probably, on the decisions, will be taken over as soon as we strike out from section 51 the words “ between the States and with foreign countries.” There can be little doubt. that we ian deal with the liquor trade and with the whole question of employers’ liability. It is possible, on some of the decisions, that we- can deal with manufactures.
– Could we license hotels?
– Probably,, on the American decisions. I refer the honorable member to the Citizens Insurance Company of Canada v. Parsons, in which the meaning of trade and commerce was discussed by the Privy Council. In Canada (he trade and commerce power is affected by the enumeration of powers between I he. Dominion Government and the provinces. In the section which specifies the particular matters handed over to. the Dominion Parliament there is a . general .power to make laws for the peace, good order and government of Canada.’ At times the meaning of these general words has been discussed before the Privy Council. They came «before I hat body in this particular case, which happened to be an insurance case. It was claimed in a subsequent case that the - Dominion Parliament had power to regulate the licensing trade throughout the length and breadth of the Dominion. The only reason that the power was declared not to be in the Dominion
Government was that under the enumeration of the powers left to the provinces the licensing trade had been left to the provinces by specific words ; the general power in the Parliament to make laws for the peace, order, and good government of the Dominion could not touch a matter that had been expressly left by another section to the provinces. In volume 7 of the Appeal Cases, page 113, the Privy Council mentions that the words - “ Regulation of trade and commerce,” in their unlimited sense are sufficiently wide, if uncontrolled by the context in other parts of the Act, to include every regulation of trade ranging from political arrangements in regard to trade (rita foreign Governments, requiring the sanction of Parliament,’ down to minute rules for regulating particular trades.
The Privy Council goes on to say that - “ lt is enough for the decision of the present case to say that, in their view, its authority te legislate for the regulation’ of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, such as the business of nrc insurance in a single province, and, therefore, that its legislative authority does not in the present case conflict or compete with the power over property and civil rights assigned to the legislature of Ontario by No. 13 of 190a.
In other words, the power of trade and commerce would have’ been practically plenary, were there not an express grant of power in the same matter conferred by what is known as the civil rights clause,- and ho such limiting, power is in our Constitution. I. therefore say that we. may not understand the true effect of the words “ trade and commerce “ when divorced from the other words of the context in which they at present stand in the Constitution. We could certainly deal with carriage and all classes of contracts relating to carriage within the State, and with local. navigation. Not merely Inter-State navigation in our rivers, but all local river improvements, and all local regulations would then be. within the domain of this Parliament. So would all trade sales and agreements with regard to sales. Do honorable members realize that this will certainly give a control over the railways, the control of which was denied in the railway case in 1904?
– Under the Canadian Constitution, the ‘right of control over licences as well as property and civil rights, is reserved to the provinces.
– That is in what is called the civil rights clause. I mentioned that the enumeration of these is a limitation upon the otherwise very wide comprehension of the words “trade and commerce.”
Even in Canada, they are not as wide as they will be here, because the Canadian power is a power to regulate. The Privy Council decided that under the power to regulate, you cannot prohibit, but the American Courts decided that you can, and I believe our Courts will decide the same thing as regards’ foreign trade.
– But the railways are State instrumentalities.
– Under section 98 of our Constitution, the -power of trade and commerce extends to the railways. The point is that we have actually been given certain control over them regarding Inter-State traffic. What the High Court decided in the railway case was that so far as we applied the power of arbitration to the railways generally under the Arbitration Act, we were dealing with a State instrumentality, but the point was raised whether we could not, under the commerce power, apply the principle of arbitration to them, because the commerce power is expressly given over railways. Otherwise, we could not control them through the Inter-State Commission, and the point I now suggest, without wishing to be too emphatic upon it, is that we can, under these proposals, . deal with the domestic carriage as well as the Inter-State carriage on the railways. Section . 98 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.
I suggest, therefore, that we can, under the’ power of domestic trade which we are taking over, do what was attempted to be done under the arbitration power - bring all the railways under our industrial disputes law, or directly regulate the conditions of employment. I- merely mention these matters so that we shall understand what we are doing in connexion with the proposed transfer of powers.
– That is what we intend, at any rate.
– The matter of corporations is “fairly elaborately dealt with in the memorandum which I submitted to the honorable member for Ballarat, -when Prime Minister. I think the corporation power ought to be assumed by the Federal Parliament by -an amendment of -the Constitution. Had the last Government remained in power, I should certainly have made a suggestion to Cabinet that, so far as concerned the creation and dissolution, and I might even say the regulation, of corpora tions, the power ought to be national, because it is inexpedient that the status of a corporation with operations throughout the length and breadth of the .continent should have to be determined by seven laws. Those would be the laws of each of the States, and also, the Commonwealth law, to whatever extent we could pass one dealing with corporations. There have been many cases in which the desire of some bodies to have an Inter- State status through their corporate power has been refused, certainly by the. last Ministry, and if I am not mistaken, by the previous Labour Government, because we could only exercise it on an appeal to the Imperial Government for a charter, and, in my opinion, if we do that, we are limiting our powers of. local government. Oh the whole, the power to create corporations as juristic personalities ought to be Federal, but this: Bill goes beyond that. It does not seek merely to bring corporations under the same laws as will apply to persons - to make these artificial personalities subject to our general powers, whatever they are.
– That is the question - “ control and regulation.”
– It extends to control, and “control,” I think, has been decided to mean more than mere creation. According to the decisions of America, and of our High Court, it practically means every relation of a corporation - everything that it must do. For instance, Chief Justice Griffith, in the case of Huddart Parker v. The Comptroller of Customs, mentions that-
The denial of capacity to the corporation toenter into contracts relating to the subject-matter of domestic trade, or the particular branch of that trade, may rest with the Commonwealth. But the conditions governing the validity of a contract relating to any- subject-matter rest with-, the Legislature having control of that subjectmatter, which, is the case of domestic trade, is. the State Legislature.
He showed that, without the restraint of the domestic trade and commerce power, no’ limits could be assigned to the power overcorporations. He said it was argued that the power given in the present words of the Constitution - “ foreign corporations, -and trading or’ financial corporations formed within’ the limits of the Commonwealth “ -r-extended to the government and control’ of such corporations when ‘ lawfully engaged in domestic trade within .the State. If it did, he said, and it had been so contended, then, no limit- could be assigned to the exercise of the power, and the Commonwealth Parliament could make any laws it chose with regard to the operations of the corporation. It might, for example, prescribe what officers and servants the corporation should employ, what should be their hours and conditions of labour, and what remuneration should be paid to them. It might thus exercise complete control of the domestic trade carried on by corporations. The Chief Justice added-
In short, any law in the form “ no trading or financial corporation formed within the Commonwealth shall,” or “every trading or financial corporation formed, &c, shall,” must necessarily be valid, unless forbidden by some other provision of the Constitution.
If, therefore, the power was as wide as it will be under these measures, and as it was claimed that it was in the Huddart Parker case by counsel for the defendant, there would be, in relation to corporations, not only a power of creation, but a power that does not extend in regard to ordinary persons. I cannot, at present, see any justification for giving that power over corporations.
– What is the objection to the Parliament which has the power over the creation having also the power of control?
– One objection is that our laws ought to be uniform. There ought to be no discrimination. We have a provision protecting persons, as well as States or - parts of States, against discrimination. The Constitution protects the citizens of one State against differentiation by the laws of another, but there is no such power as regards corporations. We must, therefore, see that, as they are not subject to what I may call the Bill of Rights of our Constitution, we do not bring them under a wider power than is actually found necessary in relation to ordinary persons. It is not called for, and I believe this drafting is a mistake. All that is required is that the power of creation and dissolution shall be given. Then our ordinary laws under section 51 will apply equally to corporations as to persons. That is the limit of my suggestion for the amendment of the Constitution in that direction.
– The High Court might upset that opinion.
– The honorable member may take it from me that any Court in the land might upset in . cases the best drafted Act that ever came from any Parliament. One would think, from the Attorney-General’s remarks with reference to the Judiciary yesterday, that there are exceptional difficulties as regards construction applicable only to an Act of Parliament known as a Federal Constitution, and not to ordinary Acts. But we had litigation going on week after week before ever we bad a Federal Constitution. Points of construction, points of interpretation, differences of meaning, and all that sort of thing are constantly coming before the Courts of the States with regard to such petty instrumentalities of government as the municipalities. One must, therefore, not look for an easing off of the business of the Judiciary by the substitution of this new formula for our various powers in lieu of those which at present exist in the Constitution. The effect of the provisions of the principal Bill, dealing with trade and commerce, when industrial powers are also taken over, as they are to be by clause 4, will be cumulative. In other words, what “ trade and commerce “ does not do, this exceptional power in relation to corporations will do, as regards them, at all events. What “ industrial matters “ does not assign to us may be conveyed by “ trade and commerce.” We have a very short Bill that means a very great deal, but its full meaning we cannot at present realize. We can realizeonly the limits to which it is certain that this legislation will bring us. . In the case of the King v. Barger, for instance, our taxation power felt itself blocked by the domestic trade of the States. In that case it was decided that if the control of the domestic affairs of a State is, in any particular, forbidden by the Constitution, either expressly or by necessary implication, the power of taxation cannot be exercised so as to operate as a direct interference with those affairs in that particular. This obstacle to allowing taxation to do something which was apparently foreign to its true purpose will be removed when you give the control .of domestic trade to the Commonwealth Parliament. I would remind honorable members of the indirect effect of these amendments. If the people ratify them, the limitation of one power will then be removed by the other. The jurisdiction to settle disputes will no longer be limited by the State power in regard to domestic legislation. The power in relation to corporations will extend to the creation, conduct, and capacity to act, and their operations when acting. The power in regard to “ industrial matters “ will not be limited by the words with which they are asso- dated in clause 4, “including employment and the wages and conditions of employment, and also including the prevention and settlement of industrial disputes.” In other words, the full meaning of “ industrial matters “ will be given, and there will not be a specific or limited meaning by association with those other words. I think that is the cardinal principle of interpretation as laid down by Beale and Maxwell in their works. I was of opinion that probably the last Government should have asked for an amendment of the Constitution in order to deal with trusts, combinations, and monopolies in restraint of trade.
– And higher industrial powers as well.
– I cannot speak for all, but I think that a good many members of this party would be willing to go that length. Tt is recognised that we cannot have a division of power amongst- seven governing bodies in regard to various combinations and monopolies which are growing up too fast in Australia. I looked through the synopsis of evidence in thirtyfour or thirty-five cases, and I do’ not think there were more than five or six that could be regarded as properly falling within the commerce power of the Federal Parliament. But some trusts might operate in six States as well as between States; and it would he ridiculous to have seven different laws applying to one body. In the interests of the trusts themselves it is desirable to have some unity of law and administration; and I think I have suggested the limits of reason in the matter of constitutional amendment. In regard to industrial matters, the difficulty which faced Mr. Justice Heydon, President of the Arbitration Court of New South Wales, and Mr. Justice Higgins, of the Commonwealth Court, of declaring a fair rate of wages where there was unfair competition from the same industry in another State by reason of low wages, that could be got over by amending the Constitution giving power to an authority like the Inter-State Commission. In the memorandum which has already been quoted, there is a draft of the necessary amendment of the Constitution, and -the outlines of a Bill giving the power to that body ; and it is one of the only matters that cannot be dealt with by either States or Commonwealth. In my opinion an amendment of the Constitution is better than asking the States to delegate the power to us, though, in 1901, the present Mr. Justice Higgins, who was then a leader in industrial matters, tabled a motion providing for the States to delegate the power. In asking now for an amendment of the Constitution, we have, in the present proposals, advanced on the methods adopted by even such an authority, as Mr. Justice Higgins. As one who was a1 member of the Convention, and listened to all the debates, who knew the trend of feeling, and the final solutions and reasons for it, I should like to say a few words on the Federal principle. There is no denying the fact that Unification is in the air. A society was formed about two years ago to bring about a national system of Government based on Unification; indeed, I think the association ran a candidate or two in some of the States, but I do not know what became of them.
– One of them, the honorable member for Herbert, got to the top of the poll very easily !
– There is before us at the present time a Bill introduced by that honorable member, which, in a very honest way, as the Leader of the Opposition has said, raises the question of Unification, and it seems to me to be modelled largely on the recent South African Constitution.* Unification is a very “ fetching “ generality that must be carefully scrutinized by the people before they assent to it. It is one of those dangerous shibboleths or party cries, the very meaning of which is not apprehended by people who rather glibly repeat it. What is the justification of the Federal system? It is the system that renders the working of the Democratic principle possible in the larger States of modern times. Liberty, which ought to be, and, I believe, is, the ideal of all Democratic communities, recognises, as Lord Acton, the great writer on this question, says, the sacred right of the individual to do what he believes his duty, against the influence of authority, majorities, custom, and opinion. I say that that liberty thrives best in small States - the only States from which great things have ever come. The late Lord Beaconsfield, in one of his novels, says : - “ But for Athens and Jerusalem, neither Rome nor Macedon would have been a name to remember.” What was Athens? The capital of Attica, a State about 50 miles long by 25 miles broad; and it was that Athens which, as Newman says, was the source of European civilization and the centre of European learning - which “ first drew to her bosom and then sent back to the business of life, the youth of the Western world for a long thousand years.” “To that small corner of the earth,” he says, “as to a shrine the pilgrim students came, where they might take their fill of gazing on the emblems and corruscations of- an invisible unoriginate perfection.” But Athens was a small State, and, like many other similar States of antiquity, passed under the yoke of Empire, which is again throwing its gloomy shadows across the path of civilization.
– The latest panegyrist of Athens is Gilbert Murray, the Australianborn Greek Professor at Oxford.
– I do not think it is exaggeration when I say that almost every great thing that has come to us has come out of little States. The Federal system gives us the advantages of a large State without its disadvantages; it gives us the power or strength we require without undue limitation of local autonomy. Lord Acton, to whom I have already referred, said that, in view of increasing Democracy, a restricted Federalism is the only possible check on concentration and centralism. Professor Woodrow Wilson, to whom I have also referred previously, speaking on the attempt to destroy the spontaneity and variety of States, said -
We are too apt to think that our American political system is distinguished by ils central structure, by its President and Congress and courts, which the Constitution of the Union set up. As a matter of fact, it is distinguished by its local structure, by the extreme vitality of its parts. It would be an impossibility without its division of powers. From the first it has been a nation in the making. It has come to maturity by the stimulation of no central force or guidance, but by the abounding self-helping, self-sufficing energy of its parts, which severally brought themselves into existence and added themselves to the Union, pleasing first of all themselves in the framing of their laws and constitutions, not asking leave to exist, but existing first and asking leave afterwards, self.originated, self-constituted, self-confident, selfsustaining, veritable communities, demanding only recognition. Communities develop, not by external, but by internal forces. Else they do not live at all. Our commonwealths have not come into existence by invitation, like plants in a tended garden ; they have sprung up of themselves, irrepressible, a sturdy, spontaneous product of the nature of men nurtured in a free air.
He then goes on to deliver a panegyric on States, to which the Leader of the Opposition referred this morning, and points out the folly of endeavouring to regulate the industrial affairs of a heterogeneous com munity like the United States of America on the unification principle. For some purposes, of course, we in -Australia were bound to federate. The awakening of the East rendered Federation for Defence absolutely imperative. We cannot ignore the facts. Japan, our ally, is alert, energetic, and ambitious ; and China is answering the call of the West to attest its’ latent strength. India is departing, under the civilization which we have brought her, from her own stereotyped and slumberous civilization. In face of these facts there are possibilities before us which may make a deep draught on our patriotism and reserves of strength.
– It is not very likely that the alliance with Japan will be renewed in 1913.
– I do not touch on that point; the alliance may have been a good one, and I do not say that it has not. 1 merely desire to point out that we are here an outpost of Empire, and if ever the East becomes the centre of national disturbances or a conflict of powers, it will remain for us to maintain or sustain the civilization of the nations of Europe about 12,000 miles from its source. That in itself will make a deep draught on our patriotism and our reserves of strength. For the purposes of defence, therefore, it seems that a Federal system is imperative. Federation was also required for Inter-State trade. As far back as 1866 or 1867, the late Sir Charles Gavan Duffy attempted to bring about some arrangement between the then Australian Colonies, by which, without unnecessary machinery, there might have been reaped the advantages of free intercourse in trade and commerce. We find, however, that men will not do these things unless machinery is constructed for the purpose, and hence the Federal Constitution was adopted in 1900 with that as one of its leading objects. But the great bulk of the power, in the light of the experience of America, extending over 100 years, was deliberately left to the States. I ask the House to seriously consider, without finally declaring for or against Unification, what these amendments mean before we advance loo far. No doubt these two Bills are a perfectly legitimate exercise of the Constitution, but, before we ask the people to sanction a wide extension of our powers, we ought to consider whether it is ‘right in the light of experience to do so. The AttorneyGeneral last night mentioned that he desired that the Bill providing for an alteration of the Constitution in regard to monopolies should also be dealt with in this debate.
– We are not compelled to deal with the two Bills in the one debate.
– No; but on grounds of expediency it may be desirable to do so. The one debate may very properly cover both subjects.
– It will be very inconvenient to deal with the two Bills in one debate.
– No one is compelled to do so, but, yielding to the AttorneyGeneral’s desire, I made a few notes last night on the question of monopolies, and I propose to make a few observations on the subject. The Constitution Alteration (Monopolies) Bill will give a free hand to the Commonwealth Parliament to declare what is a monopoly, and full power to control or assume control of a monopoly. The chief objection relates to the assumption. We may assume, but we cannot so easily correct the mistakes that follow assumptions. Absolute control is justified in the case of a true monopoly that is detrimental to the public, and that policy has been applied in the United States. It is a policy the extension of which is advocated by ex-President Roosevelt, as well as President Taft.
– And it has succeeded?
– It has been tried, and it has succeeded.
An Honorable Member. - And has failed to a large extent.
– Just as some of our ordinary legislation has done. In this regard, the United States authorities have been harassed by various circumstances. For instance, the sugar corporation of the United States was prosecuted, and, I think, an injunction obtained against it. The corporation immediately dissolved, and re-formed as a single corporation, with the result that, as the then existing legislation dealt only with contracts in the way of monopolies of trade, and a corporation could not enter into a contract with itself, the second trial - I am speaking from memory - failed. It is not beyond the power of Congress, however, to amend the Act relating to corporations by striking out the provision making a contract necessary. This power of control has been exercised in America, whereas it has not been exercised in Australia. Before trying the effi cacy of the power of control given under the Australian Industries Preservation Acts - before even a case bearing on the point has come before the High Court, and just when one big test case is properly pending - we are now asking the people to say that that existing power is useless.
– We have had quite enough set-backs.
– There has not been one on this point. The danger that I see in this Bill lies, not so much in the plenary power as regards combines and trusts - I advocate that myself - as in asking that the Federal Parliament shall have carte blanche to declare what is, and to assume, a monopoly, and that it cannot be controlled in that respect by the Judiciary. The Government are asking for a transfer of the full power, so that the Federal Parliament may take over, on the terms proposed by the Bill, and conduct afterwards as a State enterprise, any or all of these undertakings.
– Would not the people punish us for our enterprise if we did wrong ?
– That would justify the assumption of full power.
– But does not the safeguard lie in that f act ?
– Had the honorable member wished to make a plausible reply, his answer would have been that the States can do all these things now. But when we find at the commencement of the second decade of the Federation a demand for these wide powers of socializing these institutions, it must be recognised that the power is sought for the purpose of use. That is the point. I do not think that I am doing an injustice to any one in saying that this Bill is really to be a means of carrying out some of the more advanced views on the question of Socialism held by certain of the electors throughout the Commonwealth. I do not say that they are supporters of the Labour party or of the Opposition.
– The parliamentary power to declare what is a monopoly is a step towards Unification.
– It must be an effective power, intended to be used. The States have the power, but they do not exercise it, and hence we are asked to agree to this extension to enable us to socialize many of our enterprises in a direction that has not yet been attempted. In determining whether or not that is expedient, we must be guided by considerations of common sense. I find that Mathew Arnold, in his Essay on Democracy, advances very far in the direction of State interference. He writes -
I propose to submit to those who have been accustomed to regard all State action with jealousy, some reason for thinking that the circumstances which once made that jealousy prudent and natural have undergone an essential change.
He thinks the disappearance of the aristocracy, as a governing or administering body in England, necessitates an extension of State control -
Democracy is trying to affirm its own essence, to live, to enjoy, to possess the world, as Aristocracy has tried, and successfully tried before it.
One can only wish Democracy success on those lines. My object is to show that we must be guided in these matters by common sense and experience rather than by prejudice. Writers who are considered mere doctrinaires and Conservatives have recognised the inevitable tendency towards some degree of Socialism which marks contemporary matters. The Athenaum, writing upon this tendency in June, 1905, asked -
Are we coming back to an organization of life on a model similar to the mediaeval in which reasonable wages and corporate control formed the basis of the economic structure and spiritual forces were admitted into the general relations of society ?
I may mention that all the great men who endeavoured to move the spiritual depths of society more or less touched upon the industrial question. They, doubtless, had the idea of an economic improvement, aiding in the reform, if not transformation, of society, at the bottom of their religious propaganda. Morley, in his Life of Burke, speaking of the influence of such men as Wesley and Whitfield, says -
In the Spiritual Order, for instance, when Burke was achieving his first successes in the House of Commons (1766) Wesley and Whitfield Were strenuously traversing the length and breadth of the land, quickening the deep hidden sensibilities, and filling with lofty and divine visions the once blind souls of men and women who had laboured blankly, as brute beasts labour, down in coal mines, in factories, over furnaces and forges, in dank fields, on barren remote moors, and who till then had known no glimpses of a wider and more joyful life than the life of a starved and ever-benumbed sense.
We all hope for opportunities for such great improvements as these, but what we have to do is to see what common-sense suggests. Might I refer honorable members, while on this question of Socialism, to a writer who is entitled to be regarded as an authority. I allude to John Stuart Mill. I do not know whether honorable members generally have seen his chapters on Socialism. I believe that they have not been republished, but they appeared in the Fortnightly Review of 1879. They were, I think, posthumous chapters .on Socialism. The work of which they were intended to form a part was never completed.
– Were they not republished more recently?
– I am not sure; but in 1879 they were published in the Fortnightly Review, and referred to as very valuable contributions to the question of Socialism. John Stuart Mill started off with the assumption that the working classes were entitled to claim that the whole field of social institutions should be examined, with a view of convincing, not those who owe their ease and importance to the present system, but persons who have no other interest in the matter than that of abstract justice, and the general good of the community. Looking at the industrial side as it then was, he mentioned tha’t reward, instead of being proportioned to labour and abstinence, was almost in inverse ratio to it ; and went on to declare that -
If persons are helped in this worldly career by their virtues so are they, and perhaps quite as often, by their vices, by servility, and by sycophancy, by hard-hearted and close-fisted selfishness, by permitted lies and tricks of trade, by gambling speculations, not seldom by downright knavery.
He pointed out that persons were also helped in this world by conduct such as that referred to as ruining a rival. Honorable members will find, in Mill’s declaration, much that in principle will support some of the aspirations of our honorable friends opposite. He went on to point out, however, that we must not be too decided as to the true remedy -
The present system is not as many Socialistsbelieve hurrying us into a state of general indigence and slavery from which only Socialism, can save us.
The fact must not be overlooked, he urged, that with Socialism there would be a complete absence of stimulus. There would be a limit to the powers of managers in regard to independent action; and heasked who would fix the inevitable grades. Some, he said, must initiate reforms and organize direct experiments ; and, summingup the considerations pro and con, he declared for co-operation rather than Socialism
– Is not that a form of.” Socialism ?
– Socialism is a form of co-operation ; but he is examining that form of co-operation which is compulsory under some State law, and is proceeding to dilate upon its defects. What he seeks is to develop co-operation which, in some lines, under Individualism, has been a pronounced success - profit-sharing, for instance. He says -
It is needless to specify a number of other important questions affecting the mode of employing the productive resources of the association, the conditions of social life, the relations of the body with other associations, &c.,onwhichdifference of opinion, often irreconcilable, would be likely to arise. But even the dissensions which might be expected would be a far less evil to the prospects of humanity than a delusive unanimity produced by the prostration of all individual opinions and wishes before the decree of the majority. The obstacles to human progression are always great, and require a concurrence of favorable circumstances to overcome them : but an indispensable condition of their being overcome is, that human nature should have freedom to expand spontaneously in various directions both in thought and practice : that people should both think for themselves and try experiments for themselves, and should not resign into the hands of rulers, whether acting in the name of a few or of the majority, the business of thinking for them and of prescribing how they shall act.
– Every word of that might be applied with greater strength to the control of monopolies, which, however, did not exist in Mill’s time.
– Undoubtedly ; with far greater limitations, of course. Under complete Socialism, there is no appeal against the State. To whom could the people appeal if the State governed everything? It would be an appeal to an organ that was autocratic. But municipalities are subject to the ordinary laws. If the State had control of everything, you could only appeal to the offender to repeal its own Act. I ask honorable members not to be impatient. The limits of State interference have been widened very largely in the last generation. As soon as the suffrage was very properly extended in Great Britain, to some extent, on the Continent, and in Australia, men, with the enthusiasm that always attaches to newly-discovered energies and powers, rushed to extremes. In 1906, the Independent Labour party in England, after an extension of the suffrage a few years previously, declared that its objective was to secure the collective and communal ownership of all means of production, distribution, and exchange. The exact words of that programme were adopted or proclaimed by the then leader of the Australian Labour party, Mr. Watson; though, I believe, the policy has since been modified.
– They were not adopted.
– If they have been repudiated, I accept the honorable member’s assurance; but it is somewhat significant that that declaration was made in England, and that, at the same time, it was said to be the policy of the Labour party here. The Attorney-General has admitted that municipal enterprise, which is a form of Socialism, has developed very largely in the Old Country. It is happily developing here. State enterprise here covers fields which it ignores at Home, and elsewhere; but the nationalization of the railways is now part of the policy of some of the political parties of the United States of America, and the report of the Royal Commission on the Irish railway system, advocates nationalization. In Glasgow, as has been mentioned, municipal enterprise has extended to the control of the gas supply, tramways, and insurance connected with these instrumentalities, while the parks are owned by the public, and various other services are municipally controlled. In Canada, the Labour party, in the year to which I have referred as one in which the people were acting under a sense of new power, laid down its objective, declaring, not for Socialism, but for reform, with which I altogether sympathize. It asked for the public ownership of all franchises, such as railways, telegraphs, and waterworks ; taxation reform, the lessening of the imposts on industrials, and increasing the burden on land values ; State insurance for old age and sickness ; and proportional representation. There was not a word about the nationalization of industries; although Canada was threatened with oppression by trusts long before we were awakened on the point. I have endeavoured somewhat discursively, but as well as I could within the time afforded me, to prepare, with some approach to thoroughness, a few lines of thought on a big question for the consideration of honorable members. I agree that in the long run the matter must he settled by the people. It is our duty to keep clear of party prejudice in our endeavour to educate them upon the subject. 1 believe that they invariably act right when they apprehend correctly ; they do not always apprehend correctly, because we do not allow or help them to do so. Whatever may be the development of the future, whether it be in the direction of nationalization or the maintenance of the principles of government established in 1900 under popular sanction, the people will be alive to their responsibilities, and capable of discharging them, for theyhave the inherited capacities for government that have grown through a century of advancing Liberalism. We must endeavour to put the issues fairly, and as clearly as we can before them; at the same time pointing out, as 1 am endeavouring to do, that these Bills exhibit a tendency, that they are but “the baby figure” of the giant mass of things to come at large.
Sitting suspended from 6.24. to 8 p.m.
.- After the two long and admirable speeches to which honorable members have listened to-day, they will not be in the humour to hear ‘ another lengthy constitutional deliverance, and I do not propose to trouble them with one; what I have to say on the very momentous questions raised by the Bill will be put into comparatively small compass. In dealing with substantial amendments of the Constitution, that is, with amendments rising above those formal ones which we have hitherto considered, we are performing by far the most important function that the people have intrusted to us, a function involving greater responsibilities than are involved in the consideration of an ordinary measure, no matter how large the issues with which it may deal, because, while an ordinary Act can always be repealed, experience has shown that amendments made in a Constitution are hardly ever rescinded. This consideration imposes on us the obligation, not only to bend our whole mind honestly to the task before us, but, if it is possible, to approach it without regard to political prejudices or the state of parties in this House. I know that that is asking what is almost impossible. In other countries, notably in the United States of America, constitutional amendments have been the direct outcome of heated party controversy, sometimes attended with bloodshed; and, as we are asked in a time of peace and rest to consider deliberately a fundamental constitutional change, it is our duty to put out of our minds who sits on the Government benches and who is in Opposition. If we fail to do so, we shall fail in our performance of the most sacred trust delivered to us by the people. We, on this side, at all events, are not fettered, and are free to give expression to our honest individual judgments.
– After what occurred last night, the honorable member cannot say that we on this side are bound.
– I hope that honorable members are not ; and that, speaking metaphorically, the fashion of hobbled skirts has not found its way into this Chamber.
– Surely no representative is free to vote against his promises to his constituents?
– Certainly not. Are honorable members opposite free, apart from their promises to their constituents ?
– I, at any rate, am.
– I am glad to hear the honorable member say so. Are we to enter upon the discussion of this fundamental change in our Constitution with in front of us an array of members who, no matter what arguments may be brought forward, with that kind of unanimity which is impossible except under coercion, follow always the lead given by the gentleman who happens to be in the Ministerial chair at the moment? This Bill in its present form has never been before the country any more than the Bill on which that debate took place the other night. I admitted that the principle of the land tax had been before the people, and I am prepared to fully admit that the principle of an amendment of the Constitution to give fuller effect to the new Protection policy put forward by the Government has been before the country. I think all sides of the House are bound honestly and candidly to admit that, for what it is worth.
– You cannot submit a Bill to the people.
– Precisely. That is why I say that when members come here as representatives they are not bound to anything except the principles that were submitted to the people. They are surely not bound by the particular form in which the Government, as representing them, has chosen to embody those principles in presenting them to the House. I cannot say I object to that, because my objections are perfectly useless; but I appeal to honorable members on the other side of the House, when dealing with a proposed change in the very foundations of our Constitution, that we on this side of the House shall at least know that our arguments as to the details, as to the mode of carrying them out, and as to possible objections to some parts of them, will be listened to, and, if found worthy, be followed, by honorable members on the other side.
– Will the honorable member do the same if we convince him?
– I think honorable members will admit that I have repeatedly shown, both in this and other places, that I have the courage of my convictions, and am prepared to vote according to them.
– This Bill goes to the people.
– True, but that is no reason why it should go to the people in any form. lt is a still greater reason why, before it goes to the people, carrying with it the recommendation of the Parliament of Australia, it should receive the full and free consideration of members on all sides of that Parliament.
– We are not likely to gag it through.
– I think the experience of the last few weeks must have removed from honorable members’ minds any doubt as to what I mean. We ought to know that, if we bring forward arguments in regard to certain portions of these Bills, we shall have a full and free hearing, with the natural results of that hearing, from those who at present occupy the position of the majority of the House. I must say that I cannot complain of the hearing which honorable members on the other side have always given me. I thank them for the courtesy which they usually extend to me, but I should like to think that, in addition to getting a hearing, if I bring forward any arguments that really get behind the judgments of honorable members, they will accord me a vote also.
– I think the honorable member is asking too much now.
– I am afraid so, but I recognise in the interjector one gentleman, al all events, who broke through the trammels which had been put round him by his associates.
I propose now to deal with the Bill, the second reading of which is now before the Chair, and the purpose of which is to alter section 51 of the Constitution. It contains a number of different provisions, all of the very highest importance, but not necessarily or immediately connected. I venture to add to what the Leader of the Opposition has already said, that, unless some “division is made between the various parts of this Bill, the House, and the country to whom ultimately the appeal must be made, will not be able to deal clearly with the subjects that it covers. The drafting of the Bill shows a certain amount of crudeness. Wherever there is an attempt to include words in the Constitution, the words to be included appear not to have received that full consideration of their meaning, and the connotation that they will have in the Constitution, and what they will actually carry with them, that such alterations merit.
Leaving the question of drafting aside, let me say a few words upon the general question of amendments of the Constitution. Like every other member 1 honour in the highest degree that body of distinguished men who brought this Constitution into existence. 1 do not suppose that in any country, including even that famous body that formed the United States of America Constitution originally, were there gathered together at any time men who were more distinguished by their knowledge of affairs and experience than those who formed the Convention that sat in Adelaide, Sydney, and Melbourne. For that reason we should not approach the result of their labours prepared readily to admit that a conclusion arrived at after such long and careful debate was wrong, or is capable of amendment, but should carefully scrutinize every part of the instrument before we are prepared to strike out any part of it. But I do not hold that we ought to be, or that we ever intended to be, bound by any sacred reverence for that instrument as it was finally brought into being.
One thing which strikes one in connexion with the whole form of the Constitution, and which comes more prominently before us in connexion with one, if not more, of the amendments now proposed, is what seems to be the too rigid adherence paid to the ancient model of the United States Constitution. To say that, is not to utter an unfair criticism of those distinguished gentlemen who brought the Constitution into existence. In all our criticism, we have to remember the position in which they were placed. They were called upon to form a Constitution for a number of communities which had hitherto enjoyed complete and absolute self-government. There was no outside pressure to bring those communities together as there was in Canada, and has been recently in South Africa. There was a delicate task to perform, to bring before the people of Australia a Constitution that, in its general outlines, would find acceptance from communities which were under no immediate obligation to enter into Federation at all. It was found necessary, in order to do that, and it was a mark of wisdom, too, that they should adopt as nearly as possible one of the well-known models of the then existing Federations. It saved a great many difficulties, and would always be an argument to be used to the people, that the Constitution submitted to them was the form which had been adopted and found workable in another part of the world. I think that accounts very largely for the fact that, when the Convention were in doubt, the form of the American Constitution was, in most cases, followed. But the result, rightly or wrongly, was that in Australia at the present time, we live under one of the weakest Federal Unions in the world.
– One of the most limited.
– Perhaps the word “ weakest “ may have a dyslogistic sense. I mean a union in which the concentration of Federal power is less than in any of the other Federations that exist. That is not necessarily a fault; but it is remarkable that in the year 1901, when other forms of union were rather tending in the direction of closer and stronger Federations, we should have gone back to adopt a system of Federation more than a century old, in which the form of union was not so strong or so close as in those of later growth. That, again, I think was due to the fact that the outside pressure to bring about Federation was not very strong in Australia. It required a great deal of persuasion to do it. But, in adopting it, the framers of the Constitution deliberately included a power of amendment, by which that somewhat rigid and narrow form of Federation might be enlarged to meet the necessities of the evolution of events in this country.
I have heard it said, in connexion with these, or with any drastic proposals to alter the Constitution, that our watchword ought to be “Uphold the Constitution.” I cannot think of any better way of upholding the Constitution than by rationally, sanely, and after full consideration, using the powers which the Constitution gives us. The only question is, how far ought we to use them, and when ought we to use them?
There is no part of our Constitution in which we have given a more rigid adherence to a very ancient model than in the trade and commerce clause in section 51. It follows almost exactly the model of the United States, which, speaking from memory, refers to “ trade and commerce with other countries, and among the States, and with the Indian tribes.” Our Constitution says “Trade and commerce with other countries, and among the States.” At the time that the American Constitution was entered into, the only commerce or trade that the States had was the sea-borne traffic with the Old Country and Europe, a very little sea-borne traffic between the States on the seaboard, and a somewhat more extensive traffic of another kind with the Indian tribes. These were the conditions under which the phrase was brought into existence. It was at a time when there were practically no main roads, nearly halfacentury before Fulton’s first steam-boat turned its paddle wheels on the Delaware River, and more than half-a-century before the whistle of the first locomotive was heard on the continent. It was at a time at which the idea, for instance, of sending a telegraphic message across the various States of the continent would have been regarded, perhaps, as justification for a commission in lunacy, or, perhaps, it would have been held to form a sort of magic better fitted for the jurisdiction of the Church.
That such a form of expression, which was then sufficient to deal with and define the whole limits of the Federal power in regard to commerce, should have been found sufficient in 1901 has always seemed to me very remarkable; and it is still more remarkable when we remember that that limitation of trade and commerce between the States and with foreign countries had been the source of perpetual litigation during more than a century. It has been the battle-ground of a host of cases. The Leader of the Opposition referred to the fact that in taking over the form of expression, we had also taken over the whole of the cases which had arisen in the attempts to define the limitation. That to a large extent is true; but it was not merely taking as part of our Constitution the immense burden of accumulated cases and law knowledge which is not yet complete, or even approaching completion, and which is changing with every new vehicle of commerce and new means of communication, continually requiring new definition; it was also taking the burden over under the form of words held to be sufficient in 1789 to deal with a comparatively simple state of affairs.
If it had not been, as some honorable members know, for the judicial audacity, if I may use such an expression, of that very great Judge, Chief Justice Marshall, who has been called the second maker of the Constitution, the provision, even at the beginning of last century, would have been found utterly unworkable. He it was, and those who followed on the same lines of policy, who, from time to time, gradually extended, not the interpretation, because it was practically a judicial extension of those words, arising from the absolute necessity to govern the new conditions that arose in the development of that great country. I might multiply instances arising from the difficulty, and almost impossibility, of making distinctions within distinctions, and definitions behind definitions, in the attempt to limit the commerce power of the United States under this provision. These would sometimes make even a lawyer’s head reel with confusion in the endeavour to follow the intricacies to which the Courts are reduced in trying to divide what is really and substantially an indivisible whole - to divide the commerce of the community into parts, and to say that one part shall be under the Government of one Parliament, and another part under another Parliament. Commerce is really an organic whole, and an organic whole of continually increasing complexity. It is just as impossible in commerce to draw a line of demarcation based on local geographical conditions as it would be to commit to the care of one physician a man’s body and to the care of another physician his limbs. Each is really part of one organic whole ; and the result of the attempts has been, as I say, perfectly endless litigation and uncertainty. One or two examples I might give from memory. There was one case in which it was held, in determining whether a cargo was within the realm of Inter-State commerce or Intra-State commerce, that a small ship carrying goods from a port in a State to another port in the same State was Intra-State commerce ; but that, if that ship ventured to go outside, or was driven by stress of weather outside the 3-mile limit, the whole cargo became subject to the regulations of Inter-State commerce. That, of course, is an absolute absurdity. Another was a wellknown case, where one State Legislature had passed a law providing for a certain train to set down passengers and mails for certain purposes at a station ; and it was held that that law was good, even though it affected Inter-State mails and passengers. In another case, however, it was held that an almost exactly similar law was not good, though it affected the same people and the same mail. Why? Because, in the first case, the train had started from a point within the boundary of the State, whereas in the other case it had started from a point outside the boundary. Honorable members will ask what on earth that had to do with the Inter-State passengers or mails; but where we have, in a Constitution, legislative powers divided by an artificial line, we impose on the Court the necessity of drawing some distinction, and of resorting sometimes to the most extraordinary expedients in order to do so. One more instance and I have done. It is the celebrated instance of Brown v. Maryland, to which the Attorney-General referred. At a very early stage of this great controversy - this almost hopeless attempt to draw a> line where there is no line between Interstate and Intra-State commerce - practical difficulties had to be faced. In the case to which the Attorney-General referred, the celebrated rule of the “ unbroken package” was introduced; that is to say, the Supreme Court in America, after the fullest argument, decided that the question whether particular goods in a particular State were the subject of Inter-State trade, and, therefore, subject to Federal jurisdiction, or whether they were subject to State jurisdiction, depended on whether the package passing across the boundary was broken or unbroken. That decision governed for a time, but it was found necessary to draw a distinction within a distinction, and it was held, in regard to a certain class of goods, some years later, that the “ unbroken package” rule would not apply, and there had to be a new rule, namely, that the goods were still the subject of Inter-State commerce until actually delivered to the consignee. These are a few instances of the extraordinary artificial rules which have to be adopted in attempting to draw a line between InterState trade and Intra-State trade. I have always thought - and I am the more convinced the more I go into the matter - that, as a matter of convenience and the avoidance of sources of litigation, and from every other point of view, some change ought to be made in law.
It may be asked how it is that an active, energetic people like the Americans have tolerated this state of things so long. The answer is a simple one, and it is given by Dr. George H. Haynes in that very interesting book, The Election of Senators. Dr. Haynes is Professor of Political Science at the Worcester Polytechnic Institute, and the author of Representation in State Legislatures. The book I hold in my hand is worth reading, and I may say it is in the direction of a record of failure of some of the American institutions. He points out that the reason the American people have allowed this kind of artificial restriction to remain arises from their impotence to amend their Constitution. Why is it impossible to amend the Constitution in this particular direction? The answer is given in this book, and it is that the Senate in America has become, to a large extent, the representative of those interests which are deeply concerned in preventing an amendment. The Senate has become, as he says, largely representative of the great moneyed interests bound up in trusts and combinations, which, in later years especially, have found their bulwark in the election of Senators by the Houses of Representation in the States. I must confess that not many years ago I personally thought it would be a great deal better to have that mode of election.
– It was adopted by the Australian Federal Convention.
– Yes, at the Federal Convention of 1891 ; but, of course, it was rejected by the framers of our present Constitution. Confession, it is said, is good for the soul; and I must confess that my views have been altered by reading the results of the workings of the Constitution in America in this connexion. I should like to refer to two short passages in this book - one, at page 207, where the. Senate is dealt with. Speaking of the protest against this particular mode of election, the author says -
This protest has found its strongest support within the Senate. Yet, there have not been lacking senators who have earnestly deplored the Senate’s attitude as reactionary, and, hence, certain to entail radical consequences in the future. For the Senate is a party in interest : its character and efficiency are in question. When, therefore, it contemptuously ignores or buries in Committee every petition looking toward the submission of the question of popular elections to the people, it can but deepen the people’s apprehension and distrust, confirm the belief that the senators by their very attitude confess the existence of the alleged evils, and thus lead, not only to the thorough discrediting of the Senate as a representative body, but to a resort to revolutionary measures to secure the reforms which the Senate’s opposition makes otherwise unattainable.
There is another reason, to my mind, more potent; and I think it ought to have even more influence on honorable members, on this side of the House especially, than any arising from a mere matter of Government convenience. If we are going to maintain the system which is opposed to State Socialism, if we” are going to maintain that system which is based upon competition - regulated competition it may be, but still competition - the system under which hitherto, not only our own, but all civilized, communities have grown great, we must be prepared to effectually deal with the blots and excrescences upon it. The history of many countries, and especially that of the United States of recent years, ought to have convinced us that one of the worst dangers to that system in which we, of the Opposition, believe lies in the great aggregations of irresponsible and unscrupulous wealth that are known under the name of trusts and combines. I am not going to say that everything known as a trust or combine is injurious. Such a statement would be foolish. We cannot shut our eyes to the fact that many combinations of capital are the natural and legitimate outcome of proper co-operation in the management of business, and are often in the interests of private and public economy. They are frequently in the interests of the workmen employed in connexion with them and in the interests of the best development of the country by means of the capital at their disposal. There are, however, others which are not so. There are others which, by the powers they have come to wield and the methods by which they use those powers, are visibly becoming - although not so much yet in this country - a menace to liberty.
One does not wish to speak strongly of other countries, and especially of a country which one admires, but on these matters we must speak plainly. The truth has been borne into us that these great aggregations of irresponsible wealth in the United States are rapidly destroying the foundation of the constitutional liberties of the people. The ordinary organs of government, which ought to control them in some cases, are becoming their instruments. The experience of the United States, especially during the last fifteen or twenty years, goes to show that to deal with this growing evil the arm of the States is too short, whilst the arm of the Central Government is paralyzed by the constitutional ligature to which I have referred. There is no power to deal with these trusts in the United States, and the point has been made by Dr. Haynes in the passage to which I have referred, that with a Constitution which is practically incapable of being so amended as to do away with this ligature there may be found no other remedy than some form of revolutionary change.
– But the States can deal with these trusts?
– The States cannot; that is the whole point.
– Not with the operations of a trust within a State?
– No; the whole evil of the position in the United States is that the individual States are quite powerless. Nothing is better known than is that fact to any one who has given any consideration to the question. In Eddy’s book on Combinations, Judson’s work on InterState trade, and many common text-books, which some of us have had to study, hundreds of cases are given showing that the State machinery is absolutely inefficient to deal with these great commercial octopuses which carry on their operations over a large territory. The only power that can effectively deal with them is the central authority, and the sole question is, “ What authority ought the central power to possess to enable it to deal with these injurious combines?”
I would earnestly remind my honorable friends on” this side of the House that these ccombines are but stepping-stones to Socialism. And why ? Because no civilized community can long permit the power of its own organized government to pass into the hands of an irresponsible dominant plutocracy. These irresponsible combinations of wealth which govern the interests of hundreds of thousands of human beings, and which govern, to a large extent, the very interests that should govern them, must, in a comparatively short time, be brought under the control of the legislature. From control to management, and thence to a complete taking over by the State is but one short step.
– The honorable member is making his friends of the Opposition look sad.
– I do not think so. Those who have watched the course of events of late years, especially in the United States of America, must have come to the conclusion that those who believe in the vivifying system of regulated competition in business, must resist these vast aggregations of uncontrolled and irresponsible capital. We have but very little of that sort of thing in Australia. I am not going to follow the Attorney-General into the list of combines which, without any evidence, so far as I know, he alleged to exist. He anticipated the inquiries that are now proceeding before a judicial tribunal, and took the responsibility of pronouncing judgment, and of asking the House to pass sentence before evidence had been actually tendered. I do not propose to follow him. We see what is going on in other countries, and that, together with . perhaps the beginning of something that is going on here, should warn us to take effectual steps to prevent the growth of this state of affairs in Australia.
For that ‘ reason, personally, I am unable to see at present any halfway house between the extremely artificial restrictions in the Constitution upon our power with regard to commerce, and the proposal made in this Bill that we should have complete power over trade and commerce. It may be that during the debate on these measures, a suggestion may be made that will meet what I desire. I should willingly welcome anything that would do away with these wretched artificial distinctions, based upon something that really does not exist - distinctions based on the fallacy that commerce can be divided according to geographical lines. If something can be substituted for the present provision so as to effectively carry out the view I have put forward, and to give this Parliament practical control over the operations of these irresponsible aggregations, I shall welcome it. If not, I am disposed to favour the first amendment proposed in this Bill.
In adopting such an amendment, we should not really be going beyond what was done, after mature deliberation, in framing the Constitution of the great sister Dominion of Canada. In the Canadian Constitution power is given to make laws with respect to “ the regulation of trade and commerce.” Those are the words proposed by this amendment, except that the words “ the regulation of “ do not occur. It has been said that the proposed amendment would enable this Parliament to interfere with every concern of human life in connexion with this particular subject. Personally, I do not think it would. It has been held that these words in the Canadian Constitution do not give that power. I would refer honorable members to the case of the Citizens’ Insurance Company v. Parsons, which is discussed in Munro’s Constitution of Canada, pages 253-4. That was a Privy Council case, in which it was pointed out that the words “ regulation of trade and commerce “ are subject to certain limits.
– They are limited by an express delegation in the Civil Rights clause.
– If the honorable member has gone carefully through the case, I shall not venture to contradict him, but this is what Munro has said on the subject -
The words “ regulation of trade and commerce “ in their unlimited sense are sufficiently wide if uncontrolled by the context and other parts of the Act, to include every regulation of trade ranging from political arrangements in regard to trade with foreign Governments requiring the sanction of Parliament down to minute rules for regulating particular trades. But a consideration of the Act shews that the words were not used in this unlimited sense. In the first place, the collocation of No. 2 -
That is what I read - with classes of subjects of natural and general concern affords an indication that regulations relating to general trade and commerce were in the mind of the Legislature when conferring this power on the Dominion Parliament. If the words had been intended to have the full scope of which in their literal meaning they are susceptible, the specific mention of several of the other classes of subjects enumerated in section 91 would have been unnecessary, as 15, banking; 17, weights and measures; 18, bills of exchange and promissory notes; 19, interest; and even ai, bankruptcy and insolvency.
With the exception of the word “interest,” all these are included under our own Constitution.
The particular wording of the proposed amendment is more a matter for discussion in Committee than for debate on the motion for the second reading of the Bill. I believe, however, that in the interests of the Constitution, in the interests of all parties in this House, and of those whom they represent, it is desirable and necessary, as I said publicly more than once long before this Bill saw the light of day, to widely enlarge the power of this Parliament over trade and commerce.
I come now to another point concerning which I desire to say also that I think it will be necessary to enlarge to some extent the powers of the Federal Parliament. I refer to our power to deal with the regulation of industrial conditions. “ Industrial conditions “ is a very vague phrase, and the expression “industrial matters” is still more vague. Clause 4, if accepted literally, would be the proper subject for all the criticism which the Leader of the Opposition has directed against it, and, of course, we must take it as it is, but I do not think that it does really express the intention of Ministers, and I am sure that it will not, after the matter has been thoroughly discussed, express the intention of their followers. I believe that the object of honorable members opposite is to give the Parliament control over conditions of employment, using as wide a phrase as I can. Conditions of employment is, by the Bill, included in “ industrial matters,”” but the latter phrase covers everything ; there is nothing which is not more or less an industrial matter.
– Is not that intended?
– If so, the AttorneyGeneral is overweighting his dinghy. I do not think that the more serious members of the Ministerial party desire it. A not unreasonable proposition, and one which should receive the careful attention of the House, is the amendment of that very illogical and impracticable provision, paragraph xxxv. of section 51 of the Constitution, whereby we are empowered to make laws in respect to - conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any State.
Within the short space of four or five years each of those words, with the exception of “ beyond the limits of any State,” has been the ground for endless battles, with their accompanying delays and expense. If the provision disappears, I shall naturally shed a tear of regret at parting with an old friend, but, no doubt, others will take its place. At all events, I bear witness that of all phrases that could have been adopted to give effect to what was a simple desire on the part of the framers of the Constitution, none more unfortunate could have been chosen. The meanings of “ conciliation,” of “arbitration,” of “prevention,” of “ settlement,” and of “ dispute “ have been debated separately and in conjuction over and over again, at great expense, with the net result - if any can be said to have been arrived at, when everything is still in the melting-pot - that it is held that the Parliament has power to provide for the settlement of industrial disputes extending over a considerable area of the country by means which, in many cases, cannot effect any real settlement. So much is practically admitted.
There are many cases in which a dispute can be effectually settled within its own limits, but in others it cannot be settled except within the limits of the whole industry in which it has arisen. The recent decision regarding the common rule, as it had the sanction of every member of the High Court Bench, must command the absolute assent of all honorable members, and shows the complete inefficiency for certain purposes of the provision to which I am directing attention. Honorable members know my views regarding the futility of a good deal of the legislation which has been attempted under this provision. Except for particular classes of regulations, the attempt to fix by law rates of wages much higher than come about through ordinary economic conditions is bound to be a failure. Therefore, I shall not be thought to be endeavouring to conciliate the opinion of honorable members opposite when I say that the people of this country properly demand that the experiment of attempting to regulate wages and conditions of labour shall be honestly and fairly carried out on all sides. That being the desire, we ought not to impose technical objections to prevent it from being carried out. Let us give to that governing body which can effectually and best carry it out the power to do so. I am not saying that this Parliament, if it possessed the power to deal with the conditions of industrial employment, unfettered by constitutional restrictions, ought to attempt to regulate all industry throughout Australia. T believe that it would not be so foolish as to do so, and that the large majority here is strongly opposed to the breaking down of that machinery which, I believe, will be found the most effectual, if not the only, means to achieve our end - 1 mean the Wages Board system, which originated in Victoria, and is being adopted in the other States with increasing success. The method whereby this Parliament has endeavoured .to regulate industrial conditions has been a colossal failure. We have established a heavy and cumbrous piece of machinery, which is bound to fail whenever it attempts to deal with the varying condi tions of industries throughout the Commonwealth.
But whatever legislation we may pass, we cannot, unless we give the central Parliament the final and super-eminent control, deal effectually with all the cases which may arise. Therefore, I say again that we should- amend paragraph xxxv. of section 51 of the Constitution to give this Parliament a wider and more general power than it has to deal with conditions of employment. I do not see what we have to be afraid of. We, on this side, should not be afraid to give this Parliament a wider power because the governing political party is strongly opposed to us on these matters.
– What does the honorable member mean by giving this Parliament super-eminent control?
– I mean the ultimate legislative power; so that the laws of the States shall be subordinate to ils laws, if it makes any. We all desire to achieve the end in view without giving much wider powers to this Parliament ; but I fail to see that anything short of what I propose will do. However, I cannot criticise now other suggestions which have been made ; the more fitting time for that will be in Committee. I, for one, am not afraid to intrust this power to the Parliament. We have a great jury to appeal to : the people of Australia. If they happen to have been carried away with enthusiasm for a new method of regenerating humanity, as to the virtues of which I think they are misled, they may not always hold to their present beliefs ; though, on the other hand, I may be mistaken and the party in power may be right. In any case, we have ultimately to appeal to an enlightened and civilized people. I am not going to flatter my fellow Australians, because I see faults in them, as most of us do. They are a light-hearted, and, with bated breath let it be said, a light-headed generation ; but they are a politically educated people, among whom the spread of general intelligence is as great as, if not greater than, among most .others. In any case, I am not afraid to trust to the sound common sense and spirit of fair play which the majority here has inherited from its British ancestors. I believe that all will come right in the end. We ought not, like the inhabitants of Lilliput, to try to tie down with a thousand strings of technical and constitutional restriction this Gulliver, who is bound to break away sooner or later. I submit that to increase the power of this Parliament will focus the public opinion of Australia sooner than any other course can do. I am not afraid to meet the issue; and we, on this side, have no reason to be afraid. If our cause is good, it will win in the long run. No member on this side has any other desire than to better the condition of the whole people. The actual wording which ought to be adopted in connexion with the extension of the powers of the Parliament regarding industrial conditions, is a matter into which I shall not enter at this stage ; and I shall conclude my remarks, which have extended to a greater length than I intended, with a few words about the other provisions of the Bill.
I understand that you have ruled, Mr. Speaker, that we are at liberty, on this motion, to discuss both this Bill and the Monopolies Bill ; but I intend to defer my remarks on the latter until it is actually before us. Clauses 3 and 5 of this Bill are too much coloured by their origin, and propose distinctly party amendments. With regard to the creation and dissolution of corporations, I am inclined to agree with the honorable member for Angas; but in regard to their control, you are dealing with something that creates two totally different branches of law with regard to two different kinds of people in the community. In his judgment in the Huddart-Parker case, Mr. Justice Higgins showed the absolute absurdity of attempting to give to this Parliament the control of corporations while the control of persons other than corporations remains with the State Parliaments. You would have one code of laws made by this Parliament applicable to corporations when they are carrying on particular businesses, and another code of laws applicable to persons carrying on similar businesses - an absolutely unworkable provision. In that case the argument for the Crown was that the power in the Constitution to make laws with regard to corporations gave power to make laws with regard to corporations for all purposes. The argument of the other side was that it was a limited power to deal with their recognition. Mr. Justice Higgins, in agreeing that it was a limited power, used these words -
If the argument for the Crown is right, the results are certainly extraordinary, big with confusion. If it is right, the Federal Parliament is in a position to frame a new system of libel laws applicable to newspapers owned by corporations, while the State law of libel would have to remain applicable to newspapers owned by individuals. If it is right, the Federal Parliament is competent to enact licensing Acts, creating a new scheme of administration and of offences applicable only to hotels belonging to corporations. If it is right, the Federal Parliament may enact that no foreign or trading or financial corporation shall pay its employes less than 10s. per day, or charge more than 6 per cent, interest, whereas other corporations and persons would be free from such restrictions. If it is right, the Federal Parliament can enact that no officer of a corporation shall be an Atheist or a Baptist, or that all must be teetotallers. If it is right, the Federal Parliament can repeal the Statute of Frauds for contracts of a corporation, or may make some new Statute of Limitations applicable only to corporations. Taking the analogous power to make laws with regard to lighthouses if the respondent’s argument is right, the Federal Parliament can license a lighthouse for the sale of beer and spirits, or may_ establish schools in lighthouses with distinctive doctrinal teaching, although the licensing laws and the education laws are, for ordinary purposes, left to the State Legislatures.
You could not have stronger instances of absurdity in constitutional regulation than those, but they are the very absurdities that will follow if we adopt the provision in clause 3 of this Bill, because in it we make corporations, including the creation, dissolution, regulation, and control of corporations, subject to the power of this Parliament. That would enable the Federal Parliament to make a whole code of laws applicable to all businesses when carried on by corporations, whereas a totally different code of laws would be applicable to the same businesses when carried on by individuals. That is a matter which, I think, has not received sufficient consideration from the Attorney-General or those with whom he is associated.
We come now to the last provision, regarding “combinations and monopolies in relation to the production, manufacture, or supply of goods or services.” What is the meaning of “combination”? This House has defined “combinations” for its own purposes. We have, or assumed that we had, power to make laws with regard to trade, and we made laws with regard to particular kinds of trade - Inter- State trade carried on by combinations of persons. For our own purposes, then, we defined the meaning of the word “combinations” which we ourselves adopted, but there is no definition of the word apart from what we have done. A partnership is a combination ; a trading company, a trade union, a friendly society, every organization in which two or three are gathered together, is a combination.
– These are combinations “ in regard to production and manufacture.”
– Then every partnership for that purpose is a combination.
– What is a combine?
– That question emphasizes the difficulty. We all use the word “combine” or the word “combination ‘ ‘ in ordinary language to express what has become a sort of general or vernacular meaning. But when we frame a Constitution we must not go by general vernacular expressions. We must use words that are capable of definite legal interpretation in a Court of Justice, or else we simply create another seed-bed of litigation. We not only introduce the word “ combinations,” but also the word “ monopolies,” which is just as vague. What is a monopoly ? Every man who has a little more brains than another man has a monopoly. Once you get away from the original meaning of monopoly, which was a sole exclusive right granted by Letters Patent from the Crown, you have no distinctive meaning for the word.
– The other Bill will give a definition of “monopoly.”
– I prefer to leave the rather remarkable definition in the other Bill until I come to it.
– What is a monopoly under the Australian Industries Preservation Act?
– That was a word used by Parliament itself, and which it could define, but which it did not attempt to define, although it did define combinations. The American Congress used the word “ monopoly “ in the Sherman Act, but did not attempt to define it, and the result has been infinite difficulty.
– I take it that a monopoly is a combination that wholly or substantially controls the output or the price of any commodity, business, or service.
– Then, a monopoly is a combination? Apparently, one of these mysterious words which, mark you, is to be embodied as a land-mark in the Constitution, has to bedefined by means of the other, which is equally mysterious. The Attorney- General apparently found himself in the other Bill, in such straits as to what a monopoly means, that the only definition he could give was to say that, if each House of Parliament decides that a thing is a monopoly, it is a monopoly.
– It asserts the supremacy of this Parliament over the High Court.
– Does that interjection represent the feeling of any number of honorable members on the other side of the House?
– I am glad to hear that “ no,” because, if you once say (hat you are going to give this Parliament power to override the decision of the High Court, you must either say that there is no tribunal to determine what is law and what is not, or that the only tribunal is not our own High Court, but the Privy Council. The honorable member surely does not understand what he says. He has probably not had an opportunity of studying the position. But 1 would remind him that, while we have heard a great deal about Federation as distinguished from Unification - and I do not believe either of those words has any magic in it to control our decisions in this matter - the one essential of what English people understand as a Federation - a written Constitution in which there are two lawmaking powers side by side - is some judicial authority that can determine when they overlap each other.
– Do these definitions very much matter, since we are going to scoop it all over?
– No, I think the inclusion of the word “ commerce “ will include a good deal of what is included in the word “ monopoly.” It will include all that is useful. If you attempt to include more, you confuse the issue. You will, so to speak, be loading the boat with such heavy cargo that in all probability she will sink. If you include with what some of us believe to be proper amendments, or what can be moulded into proper amendments, in the Constitution, other things which cannot or ought not, to be included at all in the Constitution, you will alienate the support which you might naturally expect to get. Let me venture to say, in conclusion, that I would not advise my honorable friends to rely too strongly in this respect on the verdict of the 13th April last. I think they will require every ounce of strength they have, and that of all their friends, to carry these amendments through.
– I always listen to the gentlemen of the legal fraternity with interest, although I generally disagree with them. The honorable member for Flinders has made admissions to-night as to his desires that have come upon me almost with the effect of a bombshell. I never thought to live to hear him admit himself in favour of legislation in a certain direction.
– I not only admitted it, but said it publicly, long before this Bill saw the light.
– I acknowledge that during the closing days of the last Parliament the honorable member showed in one very strong instance that he was a Federalist, and during the election campaign 1 read much of his advice to those on his side to be very careful not to get away from Federation, and to avoid being State Righters. Still, I did not expect to hear him admit that there was a necessity for legislation to regulate the enormous combines that have brought misery upon people in other places, and are doing their best to get a footing in this Australia of ours. Having listened to the legal gentlemen on the other side, especially the honorable members for Ballarat and Angas, I think the question with them narrows itself down to this, that where there is the necessity or desirability for a change, or any utility in making it, it may be made. The answer to the argument of desirability or necessity is that the people believe there is a necessity, and accordingly sent honorable members in these numbers to this side of the House. It is of no use for the newspapers, or the members of the Opposition, to endeavour to distort, by words, words, words, what the people mean. On the 13th April the people placed us in a good majority in this Parliament, and in presenting these measures to the House we are only doing that which we said on the hustings we should do, and it is our intention to carry them through. Honorable members opposite have given what may be considered much good advice, and perhaps it is true, but my experience leads me always to the conclusion that I must take a lot of their advice with a few grains of salt, lest I be tripped up and diverted from the direction in which I wish to go. While the honorable member for Ballarat was addressing the House, I interjected that I expected a good deal of assistance from him in bringing these two Bills into effect. I may be asking too much of him, but
I sat behind him on this side for two years, and gave him full support in the measures he brought before Parliament. During the last Parliament, and for twelve months prior to that in the Parliament before last, the Ministry that he led introduced certain legislation, which was afterwards held by the High Court to be unconstitutional. The honorable member for Ballarat, who was then Prime Minister, and the Attorney-General, the honorable member for Darling Downs, when asked whether they were prepared to give this Parliament power to legislate in the direction suggested, always put honorable members off with some excuse such as that it would be better to wait until a general election, and so forth. It was that attitude on their part, 1 believe, that caused the people of Australia to turn to the Labour party, the members of which they thought were imbued with a desire and determination to bring about this necessary legislation. Had the Honorable member for Ballarat then taken the course that he ought to have taken, and the one I understood him to promise to take, he would have been leading those who are endeavouring to carry out the undoubted desires of the people. Much has been said during the course of the debate about the proposals of the Government meaning Unification, and not Federation. I do not know whether the honorable member for Flinders attaches any terrible meaning to the word “ Unification,” but I should like to ask honorable members where would be the difference supposing the legislation now before us did result in that form of union? I know that there are representatives of States who are afraid that certain powers may be taken away from the local Parliaments ; and one would think, to hear them, that each State represented a complete community of interests. We know, however, that there is no more community of interests in the State of Western Australia than there is in the combined three States of Victoria, New South Wales, and Queensland. It may be necessary in the future, in the interests of the whole of the people, to divide the existing States into smaller areas; and then, no doubt, there would be a better chance of a true community of interests within each. Representatives of New South Wales, for instance, are always talking of keeping that State absolutely intact ; but there is no more reason why that State should not be divided, if such be found desirable, than there is why the
State of Western Australia, or any other portion of the continent, should not be divided. At the present time there is no more sympathy between the people . of Riverina district and those of the Richmond River district than there is between the latter and the residents of Victoria. What is the use of our perpetuating imaginary lines of demarcation, and keeping in existence this bogy of State rights? Legislation which at one stage may mean a retrogressive step may, at another stage, mean progress; and it is quite possible that, for the general benefit, the people may decide in the near future to act on the suggestion of the honorable member .for Herbert and divide Australia into ten, 01 even fifty, States. At present, however, I am rather inclined to adhere to the policy of association ; but, at the same time, when the interests of Australia as a whole are at stake, the effects of legislation on a particular State are not worth consideration for a moment. The interests of the people in the north-eastern portion of New South Wales are more bound up with Brisbane than with Sydney, just as the interests of the Riverina people are bound up with Melbourne rather than with the capital of their own State. Again, the interests of the people in the west of Victoria may incline them more to Adelaide, while others may turn to the Portland district.
– What brought about the separation of Port Phillip from New South Wales ?
– The Port Phillip settlers felt that their interests were not adequately represented in the Legislature in Sydney, just as the people on the goldfields of Western Australia to-day are howling against the legislation of the Parliament in Perth. In the western State there is a clear distinction between the interests of the gold-fields and the interests of the coast; and yet we are told that Western Australia, as a State, is representative of one community.
– I know we require more home rule and not less of it.
– I know there is such a strong feeling on the gold-fields of Western Australia that, when I was on a visit there, the people even dragged me into the agitation, and, I am afraid, my attitude was somewhat misrepresented. In Albany, again, where there has been much progress during the past ten years, the people regard the place as the best natural harbor pf Western Australia, and are willing to adopt any form of fighting to assert their supremacy in this regard. To. talk of the community of interests within the States is just so much play upon words. We do not hear so much of this in Victoria, for the reason that the area of the State is so small.
– Let the honorable member make some inquiry in the Portland and Casterton districts !
– But there is not so much feeling as elsewhere, though I admit we do hear about the desirability of decentralization. What I intend to convey is that all the talk about this legislation meaning Unification merely represents the difference between tweedledum and tweedledee. We are told that if this legislation is passed the Commonwealth will have power to make laws, whether of InterState application or otherwise, and not only laws affecting the whole of Australia; but nothing can be done in any part of the continent without affecting the whole. That is proved by the legislation to provide railway communication from Port Augusta to Kalgoorlie, and from Oodnadatta to Pine Creek; the only justification for these works being that all parts of Australia are interdependent. I happen to represent the largest manufacturing constituency in Australia ; and I can say that when my Labour associates and myself fought behind the honorable member for Ballarat for Protection we were promised, year in and year out, that, with any advantages to the manufacturers there would be consideration given to the workers and consumers. The Harvester case was a clumsy effort to carry that ideal into effect, but, as we all know, the High Court pronounced the law ultra vires. We are now trying to have the Constitution so amended that laws of the kind may be passed with the certainty of their coming into operation; and if the present legislation does not have the desired effect, then I am sure honorable members on this side will take other steps to insure that this Parliament shall obtain that control which is necessary to industrial life throughout the Commonwealth. If that result is not brought about, then all the promises in the past are so much moonshine. If the High Court should again be against us, I believe the people will make still stronger demands. As a fact, however, we scarcely know where we are in the face of the High Court decision. The honorable member for Cook declared that Parliament should be paramount over the High Court, but my opinion is that Parliament is paramount. If the High Court decides against this Parliament, then we should so frame our laws that we shall be able to dictate to the High Court what we mean to have done.
– The Constitution is in the way.
– But we have power to alter the Constitution, and all we are told about the inadvisability of any alteration will not turn me, nor, I am sure, any honorable members on this side from their purpose. I am really surprised that the High Court should allow us to take any part in taxation, in view of the decisions of the past. I quite expect the High Court to say that if we pass a taxing measure which has any other effect than that of taxation, it is ultra vires.
– The High Court did so in the Harvester case.
– The High Court apparently will allow us to pass a taxation measure; but if it has any other effect then we cannot even apply the taxation. T think it possible for the legal fraternity to give any meaning they please to a given set of words. I am jealous of our power to place measures upon the statute-book, and I wish our laws to be so framed that no one will be able to interfere with them. My desire is that they shall carry out what was our intention in passing them. I have no wish to belittle the learned gentlemen who constitute the High Court Bench, but my view is that the National Parliament ought to be paramount, and subject only to the will of the people. We are told that we should not interfere as a National Parliament with a matter that is of purely State concern, but will any one say that if a State chose to pass a law which was immoral in the extreme, the effect would not be prejudicial to the whole of Australia? We know the horror with which the people of the rest of the United States viewed the polygamy laws of Utah, and we are all familiar with the way in which they coped with the trouble. Would any one say that they had no right to interfere? If one of the Australian States, availing itself of the privileges of Inter-State Free Trade, set to work to compete with the remaining States of the Union by means of sweated labour, and unfair conditions of employment, would not this Parliament have a right to interfere? In my opinion, it would. Anything that is detrimental to one section of the community must be detrimental to the whole. The contention that we should not take over more of the powers of the States goes to the wall in view of the fact that, as far as possible, our people have community of interest. I shall not attempt to debate with the honorable member for Flinders the legal construction of any term used in these amending Bills. That is a task that I shall leave to the AttorneyGeneral and the officers of his Department. We -have in our midst to-day corporations that are battening and fattening on the people. Reference has repeatedly been made in this House to a particular corporation to which I need not specifically refer by way of illustration. I know that it is the desire of the AttorneyGeneral, as it is that of the rest of our party, that the powers of the Parliament shall be made so effective that it will be able, if necessary, to dissolve any corporation that has a baneful influence upon the people. I hope that the honorable gentleman will take care that the Bill, as finally passed, is so framed as to give effect to that desire. The honorable member for Flinders dealt largely with the question of monopolies, and admitted, as we have contended all along, that the great trusts and combines of the United States, are a sure stepping-stone to State Socialism. Many extreme Socialists welcome the extension of the powers of these combines, feeling sure that as their influence extends the people must be forced to rise up in revolt. They know that what a few men can do, the whole nation can do for itself.
– Then the honorable member admits that he is helping on these trusts ?
– No; what I said was that many extreme Socialists welcomed the extension of the operations of trusts, believing that their growth would cause the people to take action.
– Where are these harmful trusts in Australia?
– There is one in- New South Wales which was a disgrace to Australia. . I refer to the Coal Vend. I admit that many men supported that Vend, believing that it would be beneficial to the coal miners. It proved to be otherwise.
– The Acting Prime Minister has eulogised it.
– I have heard the honorable member make that statement before, but cannot say that I have heard the Acting Prime Minister speak in support of the Vend. It matters little to me if the honorable gentleman, and other honorable members of our party, did support the Vend, believing it to be in the interests of the workmen. The fact remains that it proved to be otherwise. Our experience in that regard should teach those who were willing to accept this Vend as something likely to help the men, that such combines will only assist the workers as long as it suits them to do so; and in the belief that they will get them under in the end.
– The men are getting a higher hewing rate as the result of the Vend.
– Perhaps they were not satisfied with what they were receiving ; but I shall leave the honorable member to discuss the question with another representative of his own State. The strike which resulted from the action of the Coal Vend last year, caused an upheaval throughout the industrial life of Victoria; and threw hundreds of men out of work. That was the result of the operation of one combine.
– There were more disastrous strikes when there was no Vend.
– I do not intend to dispute that statement ; but I do know that the coal strike last year was brought about because the Vend believed that it had its hands, so to speak, on the throats of the men working for it, and could impose any conditions it pleased. As the result of its operations, not only the coal-miners of New South Wales, but hundreds of others in Victoria and elsewhere, who were dependent wholly and solely on the Mother State for their supplies of coal, were seriously affected. That is one of those combines which we hope this Parliament, in the near future, will be able to dissolve, or, at all events, to frighten by reason of its increased powers, even if it does not exercise them. We have other combines, the influence of which is equally baneful. There is, for instance, the Sugar Combine. Some hundreds of men in my constituency are employed by it ; and, whilst the refiners in Australia have been making enormous profits, and distributing large dividends for years, they have paid their employes as little wages as they possibly could. The sugar refining industry is one of the most highly protected in Australia; and yet is one in which the workers are about the worst paid. It is not merely a question of wages, but a question of the conditions under which the men are employed. They are so handled that their wages at the end of the week are scarcely worth receiving.
The position is the same with all such combines; and we intend to avail ourselves of the opportunity represented by the fact that we have a majority in this Parliament to make laws guarding us, as far as possible, against such combines as prevail in the United States to-day.
– But the American trusts pay the best wages.
– It matters little to me whether they pay the highest or the lowest wages. The honorable member knows as well as I do that, as long as a corporation controls the output of a particular commodity, the rest of the community must suffer.
– I am not prepared to dispute that; but these trusts always take care to look after their workmen so far as conditions of labour are concerned.
– Trusts can operate most effectively in countries having a huge population ; and, although we have not in Australia to-day large corporations, since we have not a large population-
– The private railways in America are the chief supporters of the trusts.
– It is not long since Victorian Democrats had to vigorously advocate the retention of the railways in the hands of the State. There were business people, as well as public men here, who wished them to be taken over by private companies, and who favoured the perpetuation of the system of private railways to which the honorable member has referred. As, in Committee, opportunity will be afforded to give effect to the desires of the Government and its supporters, it is unnecessary to say much more at this stage.Honorable gentlemenopposite who have spoken have not received the measure with open arms, nor have they slobbered over it, but their criticism was such as to cause one to think that their desire is to improve it. I hope that the Attorney-General will listen to their suggestions, and, if the adoption of them will make the measure more what we desire, accept them ; but he should be careful to see that their advice does not lead us to dothe contrary of what we intend. However, I feel that we can trust him in this matter, and that the measure, when placed on the statute-book, will prevent the existence of private monopolies and trusts working injury to Australian industries, and will allow us to make laws which will enable the workers and consumers to benefit from Protection, as the manufacturers and capitalists alone do now.
Debate (on motion by Mr. Joseph
Bill returned from the Senate without amendment.
Bill returned from the Senate without request.
Mr. HUGHES laid upon the table the following papers : -
Federation - Expenditure caused by, 1910-11.
Postal Services - Royal Commission - Minutes of evidence.
House adjourned at 9.53 p.m.
Cite as: Australia, House of Representatives, Debates, 19 October 1910, viewed 22 October 2017, <http://historichansard.net/hofreps/1910/19101019_reps_4_58/>.