4th Parliament · 1st Session
The President took the chair at 2.30 p.m., and read prayers.
Report (No. 2) presented by Senator
MINISTERS laid upon the table the following papers : -
Commonwealth Land Tax Bill.- Comparative Table ofLand Taxation and proposed Land Taxation in Australia and New Zealand.
Ordered to be printed.
Return in reply to Question -
Telephones : Exchanges and Subscribers in each State, &c.
– I beg to ask the Minister representing the Minister of External Affairs whether he has received a report from Dr. Brynell, of the Tropical Institute at Townsville, and if so whether he will lay it upon the table of the Senate?
– If the report has been received, I shall lay it upon the table.
asked the Minister representing the Postmaster-General, upon notice -
– The answers to the honorable senator’s questions are -
– I move -
That this Bill be now read a second time.
In submitting this second amending Bill, I wish to point out that, as far as possible, defence ought to be a non-party question, because it affects all sections of the community. The question is, what is the best system of defence to adopt? In that regard, we have to consider the existing system, the system which is provided for in the unproclaimed Defence Act of last session, and the amendment of that Act, which is embodied in this Bill. I do not propose to enter into a long discussion of the present system. Roughly, it provides for a Military Force of 25,000 more or less trained men scattered over an area which may be represented by a line 6,000 miles long. The obligation is cast on that force to provide fortress troops for the principal forts at the six capitals, besides a number of other fortified positions, and, in addition, a field force to meet an enemy landing at any other points. Little more need be said to illustrate the total inadequacy of the present force to protect the Commonwealth against a threatened danger of considerable consequence. Ithink we can also say that the present system is unfair because it depends upon the voluntary action of citizens sacrificing their time, and, in some cases, their prospects. It penalizes the patriot, and lets free the “ tired” man. It does not give us an effective Defence Force. I am able to-day to quote the opinion of Lord Kitchener, who visited Australia, saw the country and its people, and inspected the DefenceForce in the best possible circumstances. In paragraph 9 of his introductory remarks, he says -
The conclusion I have come to is, shortly, that the present forces are inadequate in numbers, training, organization, and munitions of war, to defend Australia from the dangers that are due to the present conditions that prevail in the country as well as to its isolated position.
That is an opinion to which no Australian can shut his eyes. Whatever opinions we may hold as to the capabilities of Lord Kitchener as a soldier, we must all admit that he is recognised everywhere as an eminent organizer. He came to Australia, not only after seeing European armies, but after visiting the East, including Japan, and having an opportunity of studying various military organizations. I recognise that the officers and mer. who compose our Defence Force have made great sacrifices of time on behalf of the Commonwealth. T do not desire to derogate from the value of their service. I recognise to the fullest extent that they have rendered patriotic service, and if the defence they provide is not adequate, the fault is not theirs. Let me now point out another defect of the voluntary system. In the first place, we do not get the number of men that we want; in the second place, we do not get the men in the arms in which they are wanted ; and in the third place, we do not get the men in the places and distributed in the manner that we want. An army is a composite body. It has to be balanced in its various parts. With ,a voluntary system, you must give men not only the choice of joining, but of electing in which arm they shall join. The result is that there are some arms which are more popular than others, and which will always be at their full strength. Indeed, pressure will be brought to bear upon the authorities to extend the establishment of an arm of that kind. As regards other arms, which may be even more necessary, it is found impossible to keep them up to anything like a peace establishment. Whilst there are in every State corps which have never been up to their peace establishment, side by side, there is a continual agitation for the establishment of other corps of different arms, or possibly the same arm, with a different designation. In Western Australia, there is a regiment on the goldfields which is not up to its strength. At the same time, in the very head-quarters of that regiment, we have a request for the establishment of another corps of the same arm, but to bear a different designation. The Act of 1909, which is not yet proclaimed, established the principle of universal training. It did not establish the principle of compulsory service.
– I hope it never will.
– The honorable senator is somewhat belated, because the liability to compulsory service was embodied in the first Defence Act. It empowered the Government, by proclamation, to call upon every man, from the age of sixteen years to the age of sixty years, to take his place in the firing line. The principle of compulsory service has been affirmed by successive Parliaments, and the only question now is, are we going to put the men into the firing line untrained or trained ? The Defence Act of 1909 provides that the universal training of our youth shall commence at the age of twelve years ; that from that age to fourteen years, as junior cadets, they shall receive training as prescribed ; that from the age of fourteen )7ears to the age of eighteen years they shall receive elementary military training and musketry instruction as senior cadets ; and that they shall serve in the Citizen Force from the age of eighteen years to the age of twenty years ; that from the age of twenty years to the age of twenty-six years there shall be no compulsory training, but one inspection or muster parade per annum.
– Does the condition as to physical fitness run right through.
– Yes, the first step is to be a physical examination. The Defence Act of 1909 provides for the establishment of a Military College of a mixed character - a college which was intended to train the permanent officers, and also to give education to the Militia officers. After the passing of that Act, we had the visit from Lord Kitchener. There may be a few persons who question his ability as a soldier, but I do not think there are any who question his ability as an organizer. I think that the great service which he has rendered to the Empire in various places has been in the exercise of his organizing power. He was specially fitted to report on our Defence Force from that point of view. He had before him the ideas of Parliament when it legislated. He also had before him the existing forces as an indication of what the people are capable of. He saw our forces, I repeat, in the best conditions. He saw them when they were brought into the camp, and the whole of their time was practically devoted to military exercises. He also saw them under the best conditions as to field muster, because at these camps we get a better percentage muster than at an ordinary halfday or full-day parade. He also saw the country. He travelled by railway from one end of Australia to the other. He was given facilities by the State Governments to inspect possible landing places. He had an opportunity of making himself acquainted with our resources in the way of transport, and with the material thus obtained in his possession he was able to express a valuable opinion as to what was wrong and what we ought to do.
– How long was he in the Commonwealth?
-I think that he landed in the Commonwealth in December, and left about May.
– He had his chief of staff here beforehand, working out data for him.
– Lord Kitchener was supplied with all necessary data some months before he arrived in the Commonwealth. This is what Lord Kitchener said as to our requirement -
In estimating the strength of the land forces necessary to meet this requirement, three principal factors should be considered -
The great ocean distances which lie between Australia and the territory of any possible enemies.
The armed strength and power of transportation over sea of any conceivably hostile nation.
The vast extent, and railway communication, of the Australian’ Continent, which covers an area of 2,948,366 square miles, and possesses a coast line of 12,210 miles; as contrasted with the smallness of its population, 4,275,000 souls, of whom 1,295,000 are males of a fighting age.
Consideration of these factors leads me to estimate the land forces required at 80,000 fighting troops. Of these numbers, half would be required to secure the larger cities and defended ports from attack, and so to maintain the public confidence and national credit, while the other half would befree to operate as a mobile striking force anywhere in Australia.
Then he went on to describe in detail the organization required. The paragraphs dealing with that subject are of a technical character, and therefore I do not propose to read them. But he gave his reasons in paragraph 10 for the departures which he proposed from the Act of 1909. He said -
In this connexion I wish to explain that, while taking the Defence Acts 1903-1909 as the basis of my proposals, I have departed from the training periods therein prescribed, because -
While the cadet training is valuable as a preparation, it cannot, in my opinion, replace recruit training, which is a necessary preliminary to the production of an efficient and trained citizen soldier. For this reason I class the 18-19-year men as recruits, over and above the peace establishment of 80,000 men, but liable to be put in the ranks in war.
– Does Lord Kitchener explain the meaning of “ recruit training” as against “cadet training”?
– Recruit training is more advanced than is senior cadet training.
– I presume that the same training as was contemplated by the 1909 Act would be regarded as recruit training ?
– That is so. Regarding the number of men provided for, there will be some 18,000 or 19,000 cadets between the ages of eighteen and nineteen years. Lord Kitchener does not take them into consideration in estimating the number required at 80,000. If the senior cadets be taken into consideration, their numbers run to 100,000.
– Surely a senior cadet is more than a recruit.
– No, because senior cadet training is a limited form of training. For instance, the senior cadets are armed with the Wesley-Richards rifle, whereas our Citizen Forces are armed with the . 303 magazine rifle. Again, the rifle shooting of the senior cadets is of a limited character, whereas the recruit will be taken even to battle firing, which the senior cadet will not be called upon to do.
– And also cadets are only trained in limited numbers.
– They are trained in battalions, whereas recruits are trained sometimes in divisions, and certainly in brigades. Lord Kitchener adds -
For this reason I advise that camp training in time of peace should be extended, and I consider that, having regard to the natural military aptitude of the Australian, favoured by the’ conditions of his civil life, the training should consist of six clear days annually, i.e., from a Monday to a Saturday inclusive, in addition to all home training.
I am of opinion that, if fully utilized under thoroughly competent officers, this training will meet requirements up to the 25th year. In the 25th-26th year a muster parade would suffice.
Lord Kitchener also made a proposal, which, so far as I know, was a novel one, and one which needs considerable attention. He proposed that, in order to organize and work these forces, Australia should be divided up into areas. That involves decentralization, as far as training is concerned. He proposed that we should divide the whole of Australia into training areas, and that we should have in those areas officers responsible for the training of the units. He deals with this matter in paragraphs 26, 27, and 28. I do not propose to read them, as the report is a parliamentary paper, and they are somewhat lengthy. Lord Kitchener proposed also that each of these training areas should be placed under the command of a permanent officer, who should be responsible for the training of the troops, and for the general administration of the area under his command. His ideas on this subject are set out in paragraph 31, where he speaks of the duties of the officer in charge -
The duties of the officer in charge of an area would include : -
The inspection of the junior cadets training in the schools.
The organization and training of the senior cadets.
The enrolment, equipment, and training of the adult from eighteen to nineteen years of age.
The equipment, organization, and training of the trained soldier from nineteen to twenty-five years of age.
The supervision of the registration of all male inhabitants under clause 142 of the Act.
The maintenance of lists of males twenty-five to twenty-six years of age who have just completed their training.
Communication to other areas of all changes of residence of men under training, with particulars of their military proficiency.
Information regarding the numbers, residence; and classification of the reserve men in the areas, and the organization and maintenance of rifle clubs.
A thorough acquaintance with the inhabitants of his area.
Paragraph 42 reads -
The proposed organization contemplates the formation of 215 areas, which arerequired to produce a lighting force of 80,000 men. The officers in charge of each of these areas may be of the rank of captain or lieutenant. In addition, 22 majors will be required, one to supervise every ten areas. The six district staffs require 25 officers, mostly of field rank; head-quarters willabsorb 12; the Military College 8; and the Permanent Forces (on the present scale) 48.
Lord Kitchener also proposed the appointment and allotment of permanent noncommissioned officers to these areas, who would carry out the duties of drill instructors, and who would act under the orders of the permanent officers in the area.
– Does the Minister understand Lord Kitchener to mean that one trained non-commissioned officer would be sufficient ?
– One permanent non-commissioned officer for each training area, and that may mean several permanent non-commdssioned officers in a battalion area. That is to say, there may be more than one training area in a battalion area. There may be two or three.
– Does the Minister understand that 215 instructional officers are all that will be required ?
– No. We have some 200 instructional non-commissioned officers now. The 215 will be in addition to them. Of that total a certain proportion will be allocated to the training areas. Lord Kitchener also proposed that a Military College should be established on thelines of the West Point College in the United States, for the purpose of the training and education of the permanent officers - that is to say, the administrative and instructional officersand for the training of those permanent officers who would be appointed to the administrative charge of the training areas. So that eventually we should have in each of these areas an officer who was a graduate of the Australian Military College and was qualified to take charge.
– If an officer who had not been trained in the college were otherwise qualified, would he be excluded from command ?
– Lord Kitchener’s idea is that these permanent positions should, in the future, be completely filled from the graduates of the Military College. We are to take in hand the education of our officers, and if a man desires to become a permanent officer in the Australian Military Forces he must commence his career as he would enter any other profession, as a youth. We should educate him, and he should pass on in due course.
– Would the Military College train naval officers as well ?
– No; it would provide for military officers only.
– The Bill expressly provides that, after a period of five years, a permanent officer must be a graduate of the Military College.
– He must be in order to get a permanent position in the forces. Paragraphs 35, 36, and 37 of Lord Kitchener’s report set out in detail his ideas as to the matters to which I have been referring. In paragraph 40, he recommends the formation of a staff corps to provide officers for all the requirements to which he has been alluding in the earlier paragraphs of the report ; that is, officers for the areas, the district and head-quarters staffs, and the permanent troops. Then he says -
This Staff Corps should be entirely drawn from the Military College, and its members should further be sent abroad to study, and be attached to the other land forces of the British Empire, so that an officer of this Staff Corps would be the equal, if not superior, in military education to the officers of any army in the world.
I have had an opportunity of reading something about West .Point College in the United States, and I find that it is generally admitted by military writers to be the best Military College in the world. The training given to officers is of the very highest character, .and the United States Government have certainly spared neither expense nor trouble in providing the students with the very best military education that can be obtained anywhere in the world.
– Has it ever been shown in practice that graduates of the West Point College have accomplished much?
– West Point has also turned out some of the brightest men in America following civil avocations.
– Of course, that is so. I come back to the point in regard to the training of permanent officers. The Act of 1909 proposed that the Military College should train the permanent officers, and should also train and educate the militia officers. But, obviously, if the college is to follow West Point lines, it must be located somewhere. It could not be a travelling college. Equally obviously, it would be impossible for militia, officers in a vast country like Australia - men following their civil avocations - to go to a college situated in any part of Australia, at considerable sacrifice of time, money, and prospects. Therefore, it must be assumed that a very large proportion of the militia officers of Australia would find it impossible to avail themselves of the opportunities for training afforded by the college. Lord Kitchener recognises, therefore, that the training of militia officers should be taken away from the Military College altogether, and that they should be trained by an instructional staff under the direction of the Chief of General Staff of the Central Administration.
– Would that training be taken to them?
– That was Lord Kitchener’s proposal. He also approved of the principle of promotion from the ranks, lt has to be remembered that the Act of 1909 made promotion from the ranks extremely difficult, if not impossible. There was, for instance, under that Act, no possibility of a youth, no matter how brilliant and how qualified, if trained in the senior cadets, and having obtained a commission, becoming a commissioned officer in the Citizen Forces on his being passed into that force. On entering the Citizen Forces such a youth had to revert to the ranks, and to again compete for his’ commission. In addition to that, as the Citizen Forces consisted of men between the ages of eighteen and twenty, and as the Act refused to recognise service in the senior cadets as qualifying for a commission, there were only two years within which these men could qualify as officers. Of course, it may be said that the voluntary system, from which officers were to be selected, must necessarily be unsatisfactory. But it was recognised that the voluntary system had broken down, and the singular thing was that the system brought forward as a better one was to provide no officers, whilst the system which had failed was to provide all the officers. Lord Kitchener therefore pointed out that if we were to get officers for the new force, a more lengthy period of service must be required from them; and he went so far as to say that, not only would officers be unable to get the additional service between the ages of twenty to twenty-five years, but that any man who took a commission in the new force ought to be called upon to serve a term as an. officer for twelve years. Inthe paragraph dealing with that matter, he points out that the additional training and instruction required to enable a man to acquire the knowledge and experience necessary to make him fit to be placed in command of troops in the field would necessarily mean a minimum of twelve years service. The question of training is “dealt with in paragraphs 78, 79, and 80 of Lord’ Kitchener’s report, where he emphasizesthe absolute necessity of home training being made compulsory, and of an additional term of. camp training.
– May I point out that, while the Minister sets out Lord Kitchener’s view with regard to the training of officers, he has not stated whether those suggestions are incorporated in this Bill.
– I am now brieflyrunning through Lord Kitchener’s report, so far as it deals with the Act of 1909. Later on, I will state what we propose, how far we have digressed from Lore?
Kitchener’s recommendations, and why we have clone so. In the 1909 Act it was stipulated that a man should be trained for sixteen days, or their equivalent, annually. That obviously left a very large loophole in this respect - that it was not made in any sense obligatory upon a man to go into camp at all. Of course, that difficulty might have been met by a regulation, but it is equally true that it might not have been. The result might have been that we would have had a very large number of men who had had no real training at all, because the whole of their sixteen days might have been made up in half-day or full-day parades, without going into camp at all. Accordingly, Lord Kitchener recommended that there should be a compulsory term of camp training. Before passing to the Bill itself, I desire to point out that, after Lord Kitchener’s visit to Australia, he went over to New Zealand. His recommendations, as to the Defence of the Dominion, were exactly on the same lines as his recommendations with regard to Australia. I am pleased to be able to say that New Zealand has adopted his recommendations, in toto, and that there is an Act on the New Zealand statute-book in which is specifically embodied everything which we have in the Act of 1909, and in this amending Bill. The present Bill largely follows Lord Kitchener’s recommendations ; and I am also pleased to say that, in many respects, it follows amendments which the members of the party to which I belong moved when we sat in opposition. Clauses 13 and 14 of the Bill contain, perhaps, the most important provisions in it. They extend the time for which persons are called upon to train in the Citizen Forces from the twentieth to the twenty-fifth year. We say that the quotations which I have made from Lord Kitchener’s report practically inform the Commonwealth Government that the defence scheme provided for in the 1909 Act is inadequate and insufficient. The Government, therefore, are faced with the responsibility of determining whether they will disregard that warning and advice. In this Bill we are endeavouring to meet the position so that if any catastrophe were to overtake the country, the charge could not be justly made against Parliament and the Government that, having had the scales removed from their eyes, they refused to see and refused to act upon the recommendations of so eminent an authority. But, quite apart from Lord Kitchener’s recommendation, and viewing :the matter from a common-sense point of view as a layman, it must appear that it is not advisable, if it is safe, to leave the defence of the country .entirely in the hands of men between the ages of nineteen and twenty years. When we remember that the term of service provided for in the existing Militia and Volunteer Forces is three years, it will be admitted that to replace those forces with a force called upon to train for only two years could scarcely be described as substituting an effective for an ineffective force. We say, therefore, that the provision in the 1909 Act is inadequate, and gives an insufficient opportunity for the training and selection of officers. It has to be borne in mind also that the forces raised under the existing Act would be constantly changing. The units would not remain with any organization for more than twelve months. Under the existing law provision is made for a youth to go from the senior cadets at eighteen years of age into another organization, similar to that provided for in this Bill, but he would remain with that organization, and under the same officers, for no more than twelve months. He would then be transferred to another organization with a different set of officers, and, possibly, a different set of comrades, and remain with that organization again for only twelve months. He would then pass into the reserve, when he would be obliged only to report himself annually to show that he was alive. One has only to think of such a system to realize that it could never secure homogenity in the land force. There could be no esprit de corps, no fellow-feeling between officers and men, and no comradeship promoted under such a system. In such a constantly changing organization there would of necessity be all the weaknesses which must follow from continual change of leadership and association. Again, under the system provided for in the Act of 1909, the men would disappear from the first fighting line in their most effective year. Men of from nineteen to twenty years of age form the first fighting line, and, at an age when they would be most efficient, they would disappear for all practical purposes from the fighting line and pass into the reserve. This measure, if it is adopted, will secure six years of training and association in one organizationfor the men. It will give a fighting force of men in the prime and heyday of life, at the height of their physical vitality, and neither raw youths nor men in their decline, but men whose fighting capacity it at its highest. We shall have the advantage of an organization which will provide for continuous association, comradeship, and esprit de corps, and retain the men while they are most effective and able as fighting units. Clause 14 makes it compulsory that eight of the sixteen training days shall be spent in a camp of continuous training so far as the infantry is concerned. Without such a provision, as 1 have already said, the time might be frittered away in parades. We have had experience of camps under the old system, and the general consensus of opinion of militia officers and of men is that four days’ continuous training is of little or no value, six days is a little better, and an eight days’ camp for continuous training would be by no means too long. That opinion is held very strongly by the officers, and is shared in by the men. There is no lack of willingness on the part of the rank and file to spend a longer time in camp. The only matter about which they are concerned is the difficulty of getting away from their ordinary avocations to attend the camp. They have no desire to avoid camp duty.’ I believe we can arrange for these eight days camps of continuous training without much difficulty. For instance, if the men go into camp on the Saturday, they will lose at the most on that day four of five “hours’ work at their daily avocations, and, if they leave camp on the second Sunday, they will be able to resume their ordinary work on Monday. I see no reason why these camps of continuous training for eight days should not be established with a minimum dislocation of labour and industry .
– How will that suit the farming community?
– I think it will suit the farming community admirably. We may assume that whoever happens to be Minister of Defence and charged with the administration of the Act will have sufficient common-sense to arrange for a camp in a country district at a period of the year when farm work is slack. As ont,who has lived on a farm, I know that there are many periods of the year when the greater part of the labour might be spared without much inconvenience. We have had little or no experience in Australia of the dislocation of industry by military training, but I may inform honorable senators of what goes on in Switzerland under a similar system, with a much more extended term of continuous training. I have here a pamphlet written by LieutenantColonel W. T. Reay, as special commissioner of the Melbourne Herald. He visited Switzerland and supplied to his newspaper a report of the Swiss system. Dealing with this question of interference with industries, he said -
How do employers regard a military system which takes their employees away for at least 44 days (the new law contemplates 70), and afterwards for the prescribed course of repetition. . . . The answers varied little, and then only in some matter of degree. While there may be exceptional cases, it was said that employers generally are in loyal accord with the system, and that employees tlo not sutler disadvantage because of the occasional enforced absence from their civilian posts. The employers themselves are, of course, for the most part, in the army - often as officers.
Very often that position is reversed, and it is the employer who is in the ranks, and the employe who is in charge. It is proposed in this Bill that the remaining eight days of the term of military training provided for shall be compulsory. This training will .take place in convenient localities, and the men will have what our land forces have never had before, permanent officers to make arrangements for their drill which will suit their convenience, so as to interfere as little as possible with their working hours. The same principles will be observed in connexion with the training of technical corps, such as the artillery and engineers, with this difference, that as these technical corps need very much more instruction, the compulsory training in their case is extended, and the term of the continuous camp is to be not less than seventeen days. Any one who has noted the intricate mechanism of !:he modern 18-pounder field gun, and who knows the work required of engineers, will admit that the training provided for is not long enough to enable the men of these’ corps to be thoroughly grounded in the arm with which they have to fight. I have stated that Lord Kitchener recommended that the training of militia officers should not take place in the Military College, and that duty will, under this measure, fall upon the Chief of the General Staff. I wish to say what is the intention of the Government in regard to this training. We propose to have a number of officers whose duty it will be to visit the localities in which militia officers reside, and at their convenience, in the time they can devote to this work, give them such instruction and training as they would be able to get if they could attend schools for the purpose in the larger centres. We propose that in the metropolitan centre schools of instruction shall be formed which will be attended by militia officers. In this way we hope to be able to give the militia officer as much instruction as he has the time to avail himself of. It must be remembered, also, that the fact that the period of training and continuous camp is extended will give the militia officers opportunities for acquiring military knowledge which they were denied under the old system. On the whole we propose, so far as the militia officers are concerned, gradually to adopt the recommendations of Lord Kitchener. We propose to ask persons who accept a commission in the Citizen Forces to bind themselves for twelve years.
– Under what bond ?
– In this way - they will undertake to serve for twelve years, and, if they do notdo so, they will not be regarded as having fulfilled their military service, and must go back into the ranks, where they must serve the same time as they would be obliged to serve as men in the ranks. That is to say, if a man serves for six years as an officer, and then, without permission, throws up his commission, he has to commence, as if he were only twenty years of age, a six years’ service. He must attend eight days in camp and comply with the other conditions of training.
-Colonel Sir Albert Gould. - In the case of the ordinary rank and file, is there not some punishment provided for the man who absents himself from training?
– Yes; the 1909 Act provides for that, and, moreover, the punishment does not expiate the offence. The offender may still be called upon to undergo his training. This course of binding officers to serve for twelve years is proposed in order that we may have officers in the forces long enough to thoroughly understand their duties, and get into close touch with the troops they would have to lead in time of war. The experience of Switzerland on this point leads us to believe that this will not cause so much difficulty as some people anticipate. In that country it is looked upon not as a hardship or drudgery which must be gone through, but, on the contrary, it is regarded as the greatest possible disgrace that a young fellow should be discarded as being unfit.
– Or a great misfortune.
– Yes. They find no difficulty in Switzerland in securing officers for their forces, notwithstanding the fact that the claims they make upon their servitors are incomparably greater than any we propose to make upon bur officers under this Bill. It is proposed to repeal section 29 of the existing Act, because, as I have stated, the military part of it is being dealt with under the provision for the Military College. Here I may answer an interjection made by Senator Guthrie. I have to inform the honorable senator that the question of a Naval College will be dealt with in another Bill. In clause 7 we have introduced certain exemptions applicable to time of war. It has been thought advisable that these exemptions should be placed in the Act, but I wish to remind honorable senators particularly that they relate to service in time of war and not to training. All the persons included in the list of exemptions must thereafter, unless they are otherwise exempt, undergo training.
– What is the use of training them if they are not to be available for war?
– I remind Senator Long that we have not yet repealed the provisions of the 1903 Act, under which every male from sixteen years of age to sixty may by proclamation be called upon to take his place in the field in time of war.
– There are no exemptions in the original Act for any reason.
– Paragraph i of clause 7 is included for the purpose of enabling the Government to exempt classes of men, such, for instance, as those employed on the railways. We do not want to exempt them as individuals, but as a class, because it might be necessary during hostilities to keep the railways running. In the same way, since it might be necessary to keep the mercantile service going, it might be advisable to exempt men employed in shipping, and this would be done by the issue of a proclamation exempting them as a class.
– Why should members of Parliament be exempt from military training?
– Because it might he necessary to call Parliament together. As a rule, one of the first things done upon the outbreak of hostilities is to call Parliament together. I dare say my honorable friend will also recognise the unfitness of a member of Parliament for war. With regard to the exemptions proposed in paragraphs /, g, and h, honorable senators will see that the exemption is to be only from the duties .of combatants. We exempt, for instance, persons who .have conscientious scruples or objections, such as my honorable friend Senator W. Russell, to bearing arms.
– That also exempts them from non-combatant duties?
– No. If a man’s conscience does not allow him to bear arms, he can be made to cook the meals, or to wash up the dishes, or to join the Army Medical Corps.
– I am willing to fight yet, but I do not believe in compulsory service.
– The desire of the Government is to respect the conscientious belief of a person, but the provision for the exemption of such persons is safeguarded in such a way that the shirker will not be able to evade his responsibility. It must be borne in mind that these exemptions do not extend to training. Clause 8 of the. Bill is of considerable importance, in that it enables us to get officers at an earlier age. It enables us to commence to train our officers in the senior cadets. They can take a commission, receive a certain amount of training, and then, at the age of eighteen years, they can apply for a position as second lieutenant in the Citizen Forces. That will put them on an equal footing with those who are provided for in a section of the Act, and who have served for three years in the Defence Force. We think that the provision will have an important effect in hastening the time at which officers will become fully competent. Clause 10 and the first part of clause ti deal with formal matters, which can better be discussed in Committee. But the second part of clause n, proposed new section 123E, introduces a new principle. We propose to supply all uniforms free of cost. The cost of uniforms has undoubtedly barred many men from accepting commissions. The only test for a commission ought to be merit and efficiency. A man who has the merit and the efficiency ought not to be penalized by being called upon to provide a costly uniform. This provision will also simplify matters as to the kind of uniform to be supplied, because it will enable the Government to settle such questions. Clause i”6 merely repeals sections of the Defence Act of 1909, which divided the recruits and Citizen Forces into two separate organizations. The object of clause 18 is to obviate cases of hardship. I am informed that on the west coast of Tasmania there are some places where it would be as difficult to travel 4 miles as it would be to travel 40 miles in the very flat country in Western Australia. Wherever it can be shown that it is extremely difficult for a man to reach his training depot, although he is in the training area, he and others living in the district can be exempted. Under the Defence Act of 1909, it was possible for the Government to take certain steps to give effect to the Act, keeping in view, however, the possibility of this Bill being enacted. It is the intention of the Government, if possible, to issue, in September next, a proclamation bringing the Act into force on the 1st January of next year. With that object in view, we have selected probationary officers, who have been put into a camp at Albury, where they are undergoing training in the duties of area non-commissioned officers. In regard to the ‘areas under the Chief of General Staff, the whole of Australia has been mapped out. It has been a huge work, and entailed a large amount of labour. The maps were sent to the State Commandants, and by them referred to their various commanding officers and other authorities. After the receipt of their comments, the maps were revised, and they are now ready for final approval. If this Bill is passed, the areas will be gazetted. The equipment will be provided as fast as the Votes of Supply will permit, having in view that we shall have to provide for 100,000 senior cadets, and, in 191 2, for the first draft into the Citizen Forces.
– You do not propose to commence training persons of eighteen years of age on the 1st January of next year ?
– No; there will be some persons at that age who will be training as senior cadets next year, but the first draft will pass out of the senior cadets into the Citizen Forces in 1912. Until such time as the Military College can provide us with the officers who will take charge of the training areas, we shall have to provide temporary officers. In order to meet that difficulty, it is proposed to invite properly-qualified militia officers in the districts to take charge of the areas as executive officers. It is recognised that this will call for considerable extra sacrifice on our part; we therefore propose to deal with them as militia adjutants are dealt with;, that is, to give them an additional grant. There may be districts in which there are no military forces. There, we propose to offer to existing militia officers in other districts an annual vote, such as we believe will induce them to go there, and allow them to follow whatever vocations they please, merely asking them to give up to us a portion of their time.
– Will the amounts be fixed, or varying.-‘
– The amounts will vary according to the sacrifice which, in our opinion, is made by our officers; they will receive a kind of training fee. We do not want to appoint permanent officers who do not meet the requirements laid down by Lord Kitchener. I now come to the question of the Military College. General Bridges has been appointed Commandant of the college, and the syllabus for admission is being drawn up. lt has been submitted to the Directors of Education in the States. We are anxious to make the entrance examination sufficiently high to insure our getting lads of more than the average mental and physical ability. At the same time, we want to make it so low that the son of poor parents can, by utilizing the means of education which are provided in most of our large centres, qualify himself for admission. We have put that view to the Directors of Education in the syllabus, with the question whether, in their opinion, it complies with those conditions, and the four replies which we have received have been in the affirmative. Lord Kitchener suggested that
– Presuming that a State has a more highly qualified number ot applicants, what then?
– Suppose that Western Australia is allotted three entrants to the college, the three lads who get the highest marks at the competitive examination held in that State would be entered at the college.
– Although they might be lower than other applicants in other States ?
– That is provincial, if you like.
– We think it advisable, as far as possible, to give each State an opportunity of sending in some pupils to the college. Of course, every system which can be suggested is open to some*, objection.
-You make admission to the college by examination, and then you immediately’ destroy your own principle.
– No. .1 venture to say that in each State there will be five times as many applicants as are desired. The Government want to follow, as far as possible, the lines of the West Point College. Perhaps my honorable friend would prefer us to adopt the system which obtains there. At West Point the entrants are recommended by the senators. My honorable friend will see that we have really done a great injustice to our senators.
– I would be quite satisfied with a purely competitive examination, irrespective of areas.
– In his report Lord Kitchener recommended that, inasmuch as our requirements would not be sufficient to keep the Military College going, New Zealand should be invited to co-operate. The negotiations are not finally concluded, but we believe that we shall receive a number of her cadets, bearing, of course, a portion of the expense. A staff is being selected. The provisional choice of a site at the Federal Capital for the college is being made, and we hope to get an early start with its erection.
– How many entrants at the college do you expect?
– The number of entrants will be regulated by our possible annual requirements. There are one or two other important alterations proposed in connexion with the Defence Force which, as they are partly of a financial character,’ I do not propose to discuss, as they will be dealt with in the Budget Speech.
– What do you anticipate this scheme will cost?
– Wc find that Lord Kitcheners system is slightly under the mark. The approximate numbers which wc shall get are 100,000. senior cadets, and an annual draft of from 18.000 to 19,000 cadets, into the Citizen Forces. When the scheme is in full operation, which will not be until 1:919-20, there will be 114,000 men from eighteen to twenty-five years of age in training, with 13,000 men between twenty-five and twenty-six years of age in the first line of reserve, making a total fighting force of 127,000 men. The first draft will come in in 1912, and it will take until 1920 before the scheme is in full operation. As regards the cost, I do not propose to give an estimate of what the cost is going to be years hence. I can only say, that, so far as I have been able to judge, Lord Kitchener’s estimate of .£1,800,000 will be exceeded. I believe that, in round numbers, it may be said that the Defence Force, when in full operation, will cost us no less than £2,000,000 per annum.
– The honorable senator is moderate.
– I dare say that I am. Of course, it has to be remembered that the expenditure in the first few years will be heavier than it will be later on, because in those earlier years, we have to provide the material which afterwards we shall only have to replace as it wears out. That consideration accounts for the enormous increase that will be observed in the military estimates for last year and the coming year. Another vexed question is : What are we going to . do with the existing forces, militia and volunteers? I have given much consideration to that point. It is a matter that deserves thought. I have come to this conclusion : I think that those forces should remain until we have something better to put in their place. I do not think that it would be wise to make up our minds to abolish the existing forces until we see the new force in actual being, and know what its operations are likely to be. Consequently, so far as the immediate future is concerned, there i3 no intention to dis turb the existing forces. As to the junior cadet system, I can only say this : The Act of 1909 provided that the junior cadets should be “trained as prescribed.” There has been considerable heartburning amongst certain people who believe that we intend to interfere with them in a drastic manner. I have no such intention. But what we do intend to provide is this : The first principle we lay down is that the junior cadets must be medically inspected, and the second requirement is that there shall be physical training. We contend that, when we get the junior cadet, we should begin to build up his physical frame, and so fit him for the military duties which afterwards we shall call upon him to perform. We do not want to make a miniature soldier of him; to take him into the parade-ground, to make him participate in field manaevures and so forth. But we do want to train him and make him physically fit. We want to drill him so as to expand his lungs, and also to give him some elementary musketry instruction. The Commonwealth has, in a very generous manner, done the latter by providing miniature rifle ranges at most of the public schools. That policy will be continued, and also the policy of giving to the cadets elementary military drill.
– But the Minister abolishes the uniform.
– The honorable senator’s Government did that.
– No; we said, “uniforms as prescribed.”
– So far as the present Government are concerned, we will not accept any amendment in the direction of restoring the cadet uniforms. It would cost, according to our estimate, ,£100,000 per annum to provide uniforms for the various cadet corps. We have not £100,000 to play with, this year at any rate. Certainly there is not on the horizon £^100,000 for the Defence Department to throw away. ‘ If I had ,£100,000 more to spend for defence purposes, I could name a dozen things for which it would be required, and on which it could more advantageously be spent than in providing uniforms for the junior cadets. To sum up, this Bill is offered to the Senate as part of a policy of sound insurance against attack. In this matter we cannot afford to take risks. We cannot afford to put up with anything that is merely “ nearly good enough ‘ ‘ - with anything that may nearly meet the case. We must, as a mere matter of insurance, insist upon being fully and adequately protected. We believe that this Bill provides for that. We believe that it imposes no conditions or burdens that are harsh in their nature upon the citizens of this country. It calls for no unduly large financial sacrifice. A country whose wealth is estimated at a round billion cannot be said to be unduly burdened when it is called upon to pay £2,000,000 per annum towards an insurance fund against disaster. Further, I say that this measure of protection is necessary. No one of us can read the signs of the times without admitting so much. I was recently reading a book called Terre Napoleon, by Mr. Ernest Scott, in which the author uses a very significant figure of speech. He says -
A map of the globe coloured crimson as to those countries where blood has flowed in armed conflicts between men would present a circling splash of red….. Australia alone would show up white in the spacious diagram of carnage.
There is a singular historical fact - that Australia is the only country in the world that, so far, has not been called upon to defend itself against aggression from a foreign foe. We have been remarkably fortunate in the past, but what guarantee have we that we are going to be so fortunate in the future? What guarantee can we have? Even our very powerlessness and inoffensiveness offer no guarantee that we shall never be attacked. There could not be a more inoffensive people than the Koreans. But where are they as a nation to-day? They have been brought under the control of another country, which rules them with a rod of iron. Our ideal is not to establish a standing army in Australia. Our ideal is to have a Citizen Defence Force, and every adult male citizen required to discharge the duty of taking part in the defence of the country. It is the privilege of every adult voter in a Democracy to enjoy citizen rights. But I would point out that the vote which a citizen exercises may be the very means of bringing armed invasion to our shores. Therefore, when you give a man the vote, and you give him the power of influencing the policy of his country, it is right that you should call upon him to bear his share, in case invasion should occur, in resisting it. The fact that it has not been necessary for Australia to defend herself in the past is due to the unassailable supremacy of the British Navy, and to nothing else. It is certainly not due to ourselves.
Hitherto the British Navy has been unchallenged and unchallengeable upon the seas. But to-day the British Navy is challenged seriously. To-day the British Navy in the Pacific - our ocean - the ocean, which laves our shores - is the third navy in point of strength. But, it is said, Australia is isolated; that we are so distant from the world’s conflicts that we need not fear. We were distant forty or fifty years ago, but we are not now. The sound of the guns in Manchuria almost reached our ears recently, and the storm of war has been even nearer than that to our shores. We cannot prophesy that, in future, we are going to be as exempt from attack as we have been in the past. We also have to bear in mind that we are part of the British Empire; and, whilst the British Empire has been our source of protection in the past, still our connexion with it carries the possibility of our being involved at any time in war with countries which have no immediate designs against ourselves. They may have designs against the Empire, of which we form a part, however, and consequently their attacks may be directed against us. There are great advantages in being under the protection of the British flag; but, while we have availed ourselves of those advantages fully in the past, we must be prepared in the future to take the disadvantages that come. One of those is that we may at any time be involved in a war in the causing of which we have had no voice, and in which we have no desire to take a part. But, nevertheless, by reason of the fact that we are part of the Empire, we may be called upon, willy nilly, to bear the consequences of our Imperial connexion. I say next that a Citizen Defence Force is not inconsistent with Democracy. Upon that point I should like to say one thing further. It is sometimes said that we members of the Labour party are trailing the flag of militarism when we talk about defence, and about protection for Australia. But it is because in this Australia of ours our party believe that we are nearing the realization of our industrial, social, and political ideals more than is any other country in the world, and because we believe that we can only work out those industrial, political, and social ideals so long as we are undisturbed by a foreign foe, and so long as peaceful conditions are maintained, that we advocate this policy. I know that it is sometimes said that we of the Labour party profess to believe in arbitration for the settlement of international disputes. So we do. But before arbitration is possible, you must have two things which are precedent to it. Those are, that both parties must be prepared to arbitrate, or that there must be a third power, which is stronger than either, and which will compel them to arbitrate. Look around, and you find that those conditions do not prevail. Where is the nation that is prepared to arbitrate in the event of an international misunderstanding, either with us or with the British nation? Is Japan or China prepared to arbitrate with us about our Immigration Restriction Act? And, even if they were prepared to arbitrate on that question, of course, we are not. We say that the Act is there, and is going to remain there. They may not want it to remain there, and there may be other nations that do not. Furthermore, there can be no arbitration unless both the parties are prepared to arbitrate on the question at issue, or unless there is some power that can compel them to do so. There can be no arbitration amongst the armed nations of the world until they have reached a loftier stage of civilization than the nations seem to have reached to-day, or until the ideal of the brotherhood of man is spread amongst them. For my own part, I believe that that time is coming. I believe that a better understanding formed amongst the workers of the world will bring it about. But it has not arrived yet. We have seen, in many countries, that even the workers themselves have thrown up their hats for war. Some of us have seen a mad mob rushing down the sheets of this big city - mad with the war fever. I remind honorable senators also that the best of social conditions might be upset in a day or two, unless the country in which they existed was able to defend itself. Tn times long past in Peru, the people had realized a condition of Socialism. But a few armed invaders, under Spanish conquerors, swept over their country and overthrew their Socialism at a touch. Although the Peruvians outnumbered the Spaniards by a thousand to one. still the Spaniards possessed arms, and knew how to use them, whilst the Peruvians had no arms, or merely an army in name. The fate that overcame the Peruvians suffices to show that even a perfect social and industrial system, if not efficiently defended, may go down before an armed and trained invader.. Let me again, and in conclusion, remind -honorable senators that there is in Australia everything that could tempt an invader. We have here immense wealth, a comparatively empty land, both rich and fertile, vast possibilities of expansion, a genial climate, and everything that one can think of to make an invader envious. When honorable senators think of our circumstances, and read the history of other nations, I venture to assert that they can come to no other conclusion than that it is our bounden duty to make our country absolutely safe. If there is to be a margin ac all, we should take care to make our powers of resistance even over the line of safety, and not under it. Therefore, the Government, in laying this Bill before the Senate, say that, although it may carry with it a large burden, ‘ we are not asking the people of this country to sustain a greater load than is absolutely necessary. For the reasons which I have set forth, I now ask honorable senators to agree to the second reading of this Bill.
Debate (on motion by Senator Millen) adjourned.
Debate resumed from 17th August (vide page 1606), on motion by -Senator McGregor -
That this Bill be now read a second lime.
– In this part of my speech I intend to deal with the principle embodied in various provisions of this Bill. I shall quote as I go along from the memorandum with which honorable senators have been furnished. I first direct attention to subclause 11. of paragraph b of clause 2. This provides that “industrial dispute” includes any dispute in relation to employment in an industry carried on by the Commonwealth, or a State, or any public authority constituted under the Commonwealth or a State. I believe that it will be impossible for the VicePresident of the Executive Council to contend that we have power to pass this provision, which would affect the rights of the States to carry on their functions. This is a very serious thing, in view of the fact that a case analogous to one which might arise under this provision arose under the principal Act, and was taken to the High Court, which decided against the principle. I shall quote briefly from the judgment of the High Court in the case reported in volume 4, Commonwealth Law Reports, page 489. I will quote the heading to show the substance of the judgment -
When a State attempts to give to its legislative or executive Authority an operation which, if valid, would fetter control, or interfere with the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Court, is to that extent invalid and inoperative.
A further important decision of the Court was this -
That the Commonwealth Conciliation and Arbitration Act of 1904, so far as it purports to affect State railways, is ultra vires and void, and, consequently, an organization consisting solely of employees on State railways was not entitled to be registered under the Act.
Yet in the face of that clearly laid down judgment of the High Court, the VicePresident of the Executive Council has said that one might see with his eyes shut what the Government intend, if they can, to do under this Bill. There is, in my opinion, only one way in which to describe an attempt to modify legislation in the way here proposed in the face of a judgment of the High Court to the contrary. It amounts to a deliberate attempt to ride a coach and four through the Constitution and the decision of the High Court. I hope that, in his reply to the debate, the Vice-President of the Executive Council will explain how it will be possible to carry out the provisions of this Bill, and avoid collision with the High Court. Surely, no Government is entitled to deal lightly with the decisions of the High Court, which is the guardian of the Constitution? Yet the Vice-President of the Executive Council has said that a man with his eyes shut could see that it is intended that the provisions of this Bill shall apply to the employes of the State Railways Departments. In the circumstances, it is due to Parliament and the High Court that the responsible advisers of the Government shall explain how they propose,, in giving effect to this amended legislation, to avoid direct conflict with the High Court. A further amendment proposed in the same clause extends the jurisdiction of the Arbitration Court to any threatened or impending or probable industrial disturbance. . This is certainly an attempt to strain the Constitution.
– Read paragraph xxxv. of section 51.
– Is the honorable senator referring me to section 51 of the Constitution? He will not favour me even with the courtesy of a reply.
– I should think so, seeing that the honorable senator was quoting the Constitution himself.
– It ought not to be so painful to reply to a courteous question. I was pointing out that the Government are extending the interpreta tion of “industrial dispute” so as to include any threatened, or impending, or probable dispute. It will defy the wit of man to show that the word “ dispute,” as used in the Constitution, and used there advisedly in its accepted sense, includes a threatened, or impending, or probable dispute. As a matter of fact the word is used in the Constitution in its practical application, and to the exclusion of such a qualification as is proposed in this Bill.
– How can we prevent a dispute unless we anticipate it?
– That is a domain from which the Constitution intended to exclude us, but the States have sovereign powers over all industrial disputes arising within their boundaries. It is only where a dispute extends beyond the confines of any one State that we have any jurisdiction at all, and how, then, can it be said that we have jurisdiction in the case of _ a threatened, or impending, or probable dispute?
– If we are to prevent a dispute, it must be impending or threatened.
– The jurisdiction of the Commonwealth in this matter does not begin to operate until a dispute has extended beyond the boundaries of a State.
– The constitutional words are “prevention or settlement.”
– The’ radical mistake made in the framing of this Bill is due to the fact that, because the word “ prevention “ is used in the Constitution, it is assumed that it involves a jurisdiction in the ‘Court to step in before a dispute in one State has spread to another. Common-sense, as well as the decisions of the High Court, support my contention in this matter.
– A dispute may occur in an industry at the same time in every one of the States. How is that to be prevented ?
– If a dispute occurs at the same time in an industry in every one of the States, and is localized in each State-
– It may be impending at the same time in each State.
– Whether it has occurred or is impending, if it is confined to each State, the Commonwealth Constitution gives us no jurisdiction in the matter. I do not wish to comment upon the action taken by the State in connexion with a recent serious disturbance, but we know that employers, employes, and the State authority in New South Wales in a recent industrial dispute, did their utmost to confine the dispute to the State, and I am glad to say they succeeded in doing so.
– They did not.
– The Newcastle strike, to which I refer, was happily confined to New South Wales.
– It extended all over Australia.
– The effects, but not the dispute itself.
– It is to the effects I refer.
– The effects of the strike were, of course, felt throughout Australia, but it would be difficult to maintain the position that, because the effects of the disturbance were felt beyond New South Wales, an opportunity was afforded for the exercise of the Commonwealth jurisdiction.
– It paralyzed the whole trade of the Commonwealth. Have we not. a right to look after the trade of the Commonwealth?
– Not in the way suggested under the Constitution. In connexion with the definition of “ industrial matters “ an extraordinary change is proposed in this Bill. It provides that “ industrial matters “ shall include all questions of what is fair and right in relation to any industrial matter having regard to the interests of the persons immediately concerned, and of society as a whole.
– A very good definition.
– I. venture to say it is absolutely unworkable, and, in any attempt to apply it, it will be found so cumbersome that it will be regarded as ridiculous to define industrial matters in that way. The President of the Arbitration Court is being given jurisdiction under this Bill for any and every imaginable reason. It should be remembered that we are framing laws which will be interpreted by the High Court, and their interpretation may serve to develop or retard industry. In the circumstances we are bound in duty to our constituents, and in the interests of employers, employe’s, and the Court, to enact some definite and practicable definition of industrial matters. There is another important departure .proposed. It is that the jurisdiction of the Court is to extend, not merely to an industry, but to branches and groups of industries. Under modern industrial conditions, it is well known that industries are being largely grouped, and are more or less inter-dependent. We may have nine industries grouped, and in eight of them employer and employe may be working in perfect peace and harmony ; yet an industrial disturbance in the ninth may have the effect of dragging into the Court the employers and employes in the eight industries in which they are working harmoniously, and so dislocating the industry from top to bottom. That may be the intention of the Government in proposing this alteration, and I point out that it could happen, notwithstanding the fact that the employers and employes, in the majority of the industries grouped, might resent any attempt to invoke the jurisdiction of the Court.
– I think the honorable senator is quite wrong about those intentions.
– I hope I am.
– No one rises on the other side to tell us what is right.
– That is so,, and I trust 1 am putting a little interest into the discussion of the Bill, and that, as a result, we may get some information from the other side about it. If what I have suggested is intended by this proposal, it represents a most important feature of the Bill, and requires consideration and explanation. It is proposed to introduce, in another section, the words “ the Court shall have cognisance for the purpose of prevention and settlement of industrial disputes.” In dealing with this matter the Vice-President of the Executive Council said that, although the principal Act provides that the Court shall take cognisance of an industrial dispute which is actually in existence, and the High Court will permit it to do so, the amendment now proposed has become necessary to enable the Court to take cognisance of a difficulty before it actually becomes a dispute.
– The honorable senator has hit it at last.
– I am glad to have the honorable senator’s assurance to that effect. Let me say here, that the word “ prevention “ in this connexion is apparently regarded by honorable senators opposite like that blessed word “ Mesopotamia,” and seems to afford them some blessed comfort. Whether it will serve to help them out of their difficulty, I do not know.
– We are trying to help the honorable senator.
– I do not require any help in the matter. I am making clear the difficulties of the proposed legislation, in view of the judgment of the High Court.
– The honorable senator has not yet made anything clear.
– I defy the wit of man to make this proposal absolutely clear in view of what we know to be the meaning of the Constitution.
– What is the meaning and intention of “ arbitration “ ? Will the honorable senator make that clear?
– I am not submitting this Bill. I was not consulted in framing it. Honorable senators opposite did not ask me to go into caucus with them on the matter. It is for them to make its provisions clear. So far as this Bill is concerned, it appears to be the intention of the Government that the word “ difficulty “ shall be read as synonymous with the word “ dispute,” as used in the Constitution. I do not know by what stretch of imagination these two words can be held to be synonymous. It must be evident that if, by any chance, this Bill should be . found to be constitutional, the amendment to which I have now referred will open the floodgates of litigation. I think that the Government in this matter are getting into what has been described as a Cerbonian bog, and it will be impossible for them to show that a difficulty is a dispute. The next proposal to which I intend to direct attention is that which refers to the appearance of counsel before the Arbitration Court. -Probably it will be better for me to’ defer the consideration of that point until the clause comes up in Committee, as it deals with a highly technical matter. I shall content myself at this stage with pointing out that, in the consideration of these matters, highly difficult questions of fact, and their application to law, will arise at once. Take, for instance, preference to unionists. It is reasonably certain that, within a very short time, the effect of preference to unionists, and the rights involved therein, will be the subject of a dispute between organizations. A question of intense difficulty will have to be decided, for the first time, by the President of the Court. Surely he ought to be allowed, if he thinks fit, to permit counsel to appear before him. But by this provision the Government are taking out of his hands the power to do so. That ought not to be done. Honorable senators on the other side are not treating the President of the Court fairly. They are with drawing from him a power which he ought to possess. It ought to be left entirely to the President to decide whether counsel should be heard or not. In Committee, I intend to resist this attempt to bind the hands of the President at a time when he certainly ought to be free if he pleases to obtain the assistance of counsel.
– Why does he want counsel?
– Because he will be called upon to decide, for the first time, some highly technical questions. It may be very easy for the honorable senator to decide in his own mind what is preference to unionists, how it is to be applied, and whether it is constitutional.
– Would an argument between two lawyers assist the President of the Court in deciding that?
– Certainly it would. If the honorable senator is so supremely arrogant as to say that no Court, no High Court; or even House of Lords, ever looks to counsel for assistance on matters, and can get no assistance from them, he knows nothing whatever of the procedure of Courts or the importance of counsel.
– I know what unionism is, what a unionist is, and what preference to unionists is.
– I am not disputing that fact; but the questions which the President of the Court will have to decide are, “ What does preference to unionists mean in its application to industry?” and “ Has this Parliament power to grant that privilege to unionists? “ There is not a’ man in the legal profession, not an official in a trade union, not an employer in Australia, but will say that this proposal from start to finish bristles with intense difficulties. I plead with honorable senators that the President of the Court shall be allowed a discretion in this matter, at any rate, for some time to come.
– Does not the honorable senator believe in protection to the members of an industrial organization?
– If the honorable senator means police protection, I think that the State police are quite sufficient to give it.
– Protection from boycotting.
– Why evade the question ?
– Now I understand the question. If the honorable senator is referring to the punishment for boycotting, as a means of protecting the workers and the members of organizations, I reply that the State laws are sufficient, so far as industrial disputes are confined to the State.
– The State laws have never protected a single trade unionist from boycotting.
– They do not seem able to protect any one from the boycotting of unions.
– 1 admit that it is a remarkably difficult question. I believe that many employers have not given fair play to trade unionists.
– Does not the honorable senator think that we ought to be protected ?
– -I think that if an honest, capable, and industrious workman is dismissed by an employer solely because he is a trade unionist, there should be a law to punish him for violating the natural right of a man.
– But. the employer would not give that reason.
– Possibly not. There ought to be some means by which, if a man be ill-treated in that way, the employer can be punished.
– We have always failed to secure evidence.
– I think it is a violation, to some extent, of a natural God-given right for any employer to seek to boycott any working man because he is a unionist. I would punish the employer in a case of that kind. On the other hand, we ought to have liberty and justice all round as between employers and employes. In this Bill the Government wish to grant preference to unionists. Preference is privilege, spell it how you may ; and legislative privilege is the sworn foe of Democracy. My honorable friends know how much it cost the worker that belonged to an unprivileged class, and how workers at times in the world’s history were bound down by a privileged class. It took centuries to convince the people of the world that privilege was bad, and we have happily emerged from it. No matter how it may be put, preference to any class by law is a declaration of privilege to that class, and privilege to a class is the death-knell of true Democracy.
– Does the honorable senator believe in preference to non-unionists?
– Certainly not.
– You must have one or other in practice.
– Certainly not. I would have no preference; it is by no means consistent with liberty and justice, even in the adminstration of industrial affairs. In referring to this question, the Vice-President of the Executive Council told us that voluntary preference is frequently given by many employers. I “believe that that is so, and 1 wish the practice to be extended. Very often men get preference by the inevitable exercise of a natural law of right, and that is, that when any work is going round the best men get it. But that is quite different from asking us to enact a privilege distinction to a particular class. If the relations between organized employers and organized employes were conducted more and more in a spirit
Df good faith, with a desire to promote industrial development, peace, and harmony - if that feeling were cultivated, my honorable friends would do far more to insure the natural preference to unionists than they ever will by any compulsory law. lt seems to me that this Bill, especially the preference to unionists provision, is intended to stop the growth of that finer feeling which ought to obtain between organized bodies. I think that the preference amendment is not only unconstitutional, but is to some extent a violation of a natural right of workers, as well as of employers, and is going to prove disastrous.
– The honorable senator is no judge of these matters, though.
– I have not worked with my hands, but I dare say that in some respects I have worked as hard as the honorable senator.
– I am sure that the honorable senator has done nothing of the kind.
– I know by the most intimate knowledge and association what this proposal means to the lot of the worker.
– Has the honorable senator ever been penalized by an employer because he took an active part in a union?
– No; but 1 know that boycotting is indulged in, and very probably injustice is done. I always advise workers never to inflict another injustice because an injustice has been done. Employers as a class who will oppress their workers are bound to be punished here in a way which will be felt by them sooner or later. It is only by the cultivation of a mutual feeling of good faith, trust, and hope, that both employer and employe will gradually improve their respective conditions. You cannot have preference to unionists unless the books of unions are kept fairly open. To apply preference re unionists without having the registration books of the union freely open in order to obtain workmen of a particular class, would be to create a position of unsufferable tyranny to the workers themselves. If, on the one hand, the books of the trade union are kept clean, open, and free, and if, on the other hand, employers are looking for labour, and it is available, organized labour will still suffer from the former evil, because the competitive area will not be reduced. If the books of the union are left open, labour must come in, and the conditions will be the same as before. In that case, what will be the meaning of “preference to unionists”? The Government are, I am sure, trying to improve the conditions of the worker ; but they will not achieve their object if they act in that way. If the books of the union are open, there will be no preference. What, then, is intended?
– Does the honorable senator mean that everybody will come in?
– Yes ; can the honorable senator imagine the Legislature giving preference to unionists and at the same time closing the books to men who want to register in an organized labour?
– The honorable senator means that if every one comes into the unions there will be no preference.
– That is so; and, consequently, what is the use of talking about preference, unless there is some other purpose behind it?
– Is not the honorable senator alarmed because trade unionism may drive every one into the unions ?
– It may. The position, so far as competition for labour is concerned, will be the same under this Bill as it was before any Federal Act existed.
– No; men will compete on equal terms.
– But they will have to compete all the same. The proposition is self-evident. I am afraid that this is not a proposal to give increased advantages to unionists for industrial purposes.
– There are many things that the honorable senator does not know.
– If there is anything that I thank God for it is that He did not give me an intelligence like the honorable senator’s.I am inclined to think that the trade unionism with which we are dealing is not industrial, but political; and, if so, this proposal is an ingenious form of political coercion. The word “coercion” is frequently on the lips of honorable senators opposite. If there is no practical industrial benefit in preference - and I think there can be none - and this Bill is intended to enable political engineers in the trade union movement to make political tools of their men. they are inflicting not only injustice, but positive injury upon the workers.
– Does not the honorable senator know that many members of trade unions are of the Tory type?
– I dare say that is so. In Great Britain there is a wellknown political entity called “ the Conservative working man.” I believe that we have him in large numbers in Australia. As from my point of view no industrial benefit is to be gained by preference, I repeat that it is a sort of political coercion that will be attempted to be set up.
– Not at all, because the unions do not govern the political views of their members in the slightest degree.
– But the funds of an industrial organization may be used for political purposes.
– The money is their own; cannot they do as they like with it?
– A decision has been given by the House of Lords to the effect that trade unions cannot do as they like with their funds. Suppose there is an organization which proposes to devote its funds to a campaign on behalf of a particular candidate, and that in that organization there are men who do not believe in the candidature. In that case, the money which the dissentients have put into the union funds is used to further political ends with which they have no sympathy.I call that oppressive. Do honorable senators opposite contend that, when a workman has contributed to the funds of a union for industrial purposes, his money ought to be used for political purposes against his wishes ?
– Every organization has to be governed by a majority.
– But a majority can never convert wrong into right.
– If the honorable member were a Quaker, and his country declared war on another, he would, even against his will, have to share in the cost of the war.
– In this case pressure is put on workmen who have no sympathy with a particular political campaign to contribute towards the cost of candidates with whose views they do not agree. I call that downright tyranny. Once we give to these industrial organizations political powers like those exercised by the guilds of the Middle Ages, we shall find that, having brought into existence similar causes, similar effects will follow. Nothing was more tyrannous in the Middle Ages than were the privileges exercised by the guilds. They were exercised ruthlessly, not only against employers, but against fellow-workmen. Those honorable senators who are familiar with the history of the guilds of Europe know that that was so.
– They were composed both of employers and of employes.
– But they acquired their privileges sometimes from the Parliament and sometimes from the Sovereign in the exercise of his prerogative. In hundreds of cases they used their power to oppress their own fellow-workmen.
– The guilds were composed of both employers and employes.
– The point is that guilds which were supposed to be simply industrial organizations were used for political purposes. I can refer honorable senators to a large number of references which are contained in Thorold Rogers’ Six Centuries of Work and Wages. This Bill will, of course, invite close attention in Committee. I hope that I shall not be out of order in referring to some of the effects of the principle of conciliation and compulsory arbitration. That principle is involved in this Bill. Iam against it for that reason. I believe that it will be an obstacle in the way of that beneficent system of industrial legislation which has been established by certain of the States in the form of Wages Boards. Some of the best observers who have visited our shores, and have investigated the subject from an economic and industrial point of view, have commented with pleasure and hope on the splendid advance made by the establishment of Wages Boards. Conciliation and compulsory arbitration will strike at the root of that system. Some of the best friends of unionism have vigorously de nounced compulsory arbitration. The first authorityI will quote is one who is well known to every Labour representative in Australia, William Lane, the founder of the Labour Socialistic party. When this proposal was considered by him, he said that compulsory arbitration was “ a capitalistic dodge to delude the worker.” John Mitchell, the President of the United Mine Workers of America, says -
Arbitration has been advocated by many eminent and worthy people for many years, but I am glad to note that the advocates of compulsory arbitration are proving fewer in each succeeding year, andthat there is a corresponding increase in the number of those who favour voluntary arbitration. Compulsion and arbitration are in themselves contradictory terms. Were the people of our country forced to agree that arbitration should become compulsory, and that penalties should be inflicted upon either the employed or the employing classes for a failure to accept the award of aBoard of Arbitrators, it would destroy every principle of free government.
That is a deliberate declaration from an eminent trade unionist.
– That means that he favoured resort to strikes.
– And he gave his reason for that. He said that there was even a greater evil than the evil of a strike, and that was that a man should give up the liberty to refuse to work under degrading conditions.
– Does the honorable senator know that John Mitchell is an anti- Socialist ?
– I hope he is. Samuel Gompers. President of the American Federation of Labour, says -
To the student of history it is an open book - that the workers of Great Britain in that lime (the fifteenth century) were practically enslaved, and that only through violent revolution was a change brought about by which the labourers were permitted to quit their employment at will, and, from that revolution, by slow and painful processes, the industrial progress of Great Britain has developed.
He goes on further to show that compulsory arbitration is inconsistent with the liberal spirit of Democracy. I could quote the authority of other Labour leaders, but I have said enough on this point. All that we can do now is to warn the Government of the consequences to industry that will flow from this proposal, and to do the best we can to amend the Bill. If we are wrong in what we anticipate as to the industrial effects of the measure - if we are wrong in our anticipations as to its conflict with the Constitution - may I ask that the other side, through their leader, or some representative member, will throw additional light on the subject by a contribution to the debate, and by elucidation of the important amendment sought to be made in the law?
– I should like to explain my position with regard to this measure. The honorable senator who has just resumed his seat seemed to be rather distressed because some one on the Government side of the Chamber did not precede ‘him in the debate. For my own part, I like to do business on the lines followed at our unions and conferences. If a proposal is moved and seconded, and nobody opposes it, it is forthwith put by the Chairman. It would be a very good thing to adopt such a rule here- But I am desirous of saying a few words on the Bill, because, during my election campaign, I always claimed to be a unionist of thirty-five years’ standing, and 1 made it my boast that I had never worked alongside a non-unionist. On one occasion I remember saying that I hoped I should never do so. This remark roused the ire of an old friend of Senator Millen, who, in his newspaper, on the following day, said, “ Will that boastful man, when he wears the parliamentary gold medal on his watch-chain, travels first-class to Melbourne, and sits on the crimson benches of the Senate, dare to say that he never worked alongside a non-unionist?” That gentleman was somewhat of a prophet. I am here ; I am wearing the parliamentary medal on my watch-chain ; and I have sat on the crimson benches of the Senate. I am here to say that I never have worked alongside a nonunionist, and that I hope I never shall. I have belonged to a union for thirty-five years, during which time I have given to it all my leisure time. I have worked, not only for the benefit of my trade, but in the interests of the workers in general. I have suffered for doing so. Possibly, if I had not suffered in the cause I should not be here to-day. During the time that T was honorary secretary of that union we were always able so to arrange our affairs with our employers that every dispute was settled without the intervention of the Arbitration Court or a Wages Board. An honorable senator has said that there must be two sides to arbitrate. There always have been two sides, and, if the law of the land compels us to arbitrate, we should be given some recompense. The recompense for which we ask is preference to unionists. We have had it in our own right for years, and it has never done any harm. It will be necessary to abide by the law if it is passed. I was one of those who, when the obnoxious Industrial Disputes Act was passed in New South Wales, advised unionists to abide by it until it could be abolished, just as it had been created, by means of the ballot-box.. The time is coming when it will be abolished. I should like to say that, during the time we had so much industrial peace, there was no union amongst our employers. Now we have employers’ unions, and have suffered. Our society has suffered a groat reduction of wages, and I want to say that we are not going to work at the reduced wages, and I do not think any one here would advise us to do so. We are not going to fall out with the law of the land. We are simply going to leave our employment. “I can read something on this subject for honorable senators which will, no doubt, surprise them and many others.
– Do I understand the honorable senator to say that the award which the members of the union will not accept is an award of the Court?
– We will accept it, certainly ; but we will leave the work.
– The members of the honorable senator’s union will not work under an award of the Court.
– The secretary if our society writes -
Early in February the Board gave its decision, and, as you all know, it is a scandalous and ridiculous one. The Board has altered the term “ Plater “ which has been in use for the past seventy years, to the terni “ Assembler,” and has reduced the wages of those workers by 12s. per week. The wages of rivetters if on £-inch work have been reduced by 15s. per week; and if on jj-inch work by 10s. per week. Could anything be more ridiculous than that? When working on machines, no matter of what sort, our wages are reduced by 12s. per week. It is needless to say that we have not by any means accepted the Award, but have appealed against it. The engineers, who fared worse than we did, and the blacksmiths, who have been shamefully reduced, have also decided to appeal. To strengthen our position we are appealing conjointly. The appeal which has now been before the Court for over four months was called last Monday, and adjourned till Friday, the 5th instant. I do not know when our case will be decided, because the Judge may not grant the application for leave to appeal. If the application is granted, then it may be months before the appeal will be heard, as the Court is now so overcongested with work, and the Society has decided not to proceed any further with other Boards until this appeal is settled.
The secretary of the branch in Adelaide writes -
And we recommend your Society, in the interests of the whole trade in Australia, to get out of the jurisdiction of the State Industrial Court and Wages Boards as soon as possible, and at all costs. We have been able to maintain our minimum rate all the years we have been in existence, and we are quite satisfied that by the classification of work we are not going to be able to do so in future, as the experience of others has taught us.
– What union is the honorable senator referring to?
– The United Society of Boilermakers and Iron Shipbuilders. These are some of the reasons why I should like to see the Conciliation and Arbitration Act amended. I am sorry that the Constitution does not allow us to amend it in the way I should like* and, personally, I may say that I should prefer that we should leave it alone, rather than try to do something which we may not have the power to do. I look upon the granting of preference to unionists as merely giving them some reward for the efforts they have made to compel employers to give work to those who have obeyed the law of the land, and have been bold enough to go to the front and into the Court to try to do something for their fellow men.
– How do honorable senators propose to give preference to employers ?
– We can give preference to employers, as it is given to members of the profession to which the honorable senator belongs, by statute law. The lawyers possess one of the strongest unions I know of. They have had preference conceded to them. I say, “ Good luck to them ! “ They boycott any one who is not a member of their union who attempts to go near their place of work.
– Not on account of their political principles.
– Not only that, but, if an unfortunate member of their union makes a little mistake, they hound him down, it may be for life. I know that, in one case, they hounded a man down for fourteen years, and, although the State Court said that he was a fit person to be re-instated in the union, the Law Institute followed him to the High Court and put him out for another term, which may, perhaps, mean for the rest of his natural life. That is an example of boycotting, tyranny, and coercion, worse than any ever exercised by a trade union.
-Colonel Sir Albert Gould. - All those powers to which the honorable senator has referred are exercised in the interests of the public.
– That is a polite fiction.
– The powers of this Bill will be exercised with a similar object.
-Colonel Sir Albert Gould. - No; in the interests of a section of the community.
– Trade unions have been of great use to the community. They have been able to secure better conditions and wages for their members, and have been able to regulate work in the interests of employers. I shall quote an instance of unionism in the society to which I belong, which may astonish some honorable senators. An employer had a vessel in his dock that could only stay there two or three days, or a week at most. His men immediately demanded a rise of 2s. a day, knowing that they must get it. The employer conceded it, but protested to the executive of the union. The executive of Ihe union told the employer to pay the 2s. extra per day demanded, and that it would afterwards be refunded. Then the union compelled every man who received the 2s. extra per day to return the money to the employer, and fined them as well. That union was congratulated by the press, and by political opponents upon the action taken. If unions are to be congratulated upon actions of that description, they have a right to be given credit for every other good work they have done. I should like to say a word with reference to the appearance of lawyers in the- Arbitration Court. Under this Bill they may appear with the consent of all parties to a dispute. I am not one of those who think that it is in the best interests of unionism that lawyers should be kept out of this Court. I do not object to lawyers at all. What I object to about them is their minimum wage,” and their habit of wasting valuable time. We had an exhibition here to-day and yesterday of the waste of valuable time by members of the profession. If the President had been allowed yesterday to put the question we should now be dealing with some other useful business. The time wasted by members of the profession might have been better employed. It must not be supposed that there are not men in the unions as competent to appear before the Court as any lawyer.’ I can give the instance of the secretary of the Shipwrights’
Union in Sydney, who went into the Arbitration Court single-handed against a row of members of the legal profession, and beat every one. of them. Then, when the Judge gave his award, he beat the Judge on a point of law. The Judge included in his award a provision to enable aged and slow workers to receive something below the ordinary wage, and the gentleman to whom I refer pointed out that the Judge had no right to do this, because the matter was not referred to in the plea. The question raised was not one of wages, but of overtime and other such conditions. The Judge admitted at once that he was wrong, and erased that portion of his award. That was not so bad for a layman, and there are plenty of such men in the unions. They are as competent to deal with these matters as any member of the legal profession, if not more so, because of their knowledge of the technicalities of their trade. If there had not been lawyers before the Wages Board in our case, the ridiculous award to which I have referred would not have been made. I wish to say, while on this question, that there are good, honest employers in New South Wales who, in common with unionists, refused to obey the law of the land. They refused toreduce the wages of their workmen, and ate to-day paying themthe same wages as they paid before fee award was made. Dohonorable senators opposite think that they should be gaoled because they have refused to comply with the terms of the award? I do not think they do. Another matter to which I refer is the boycott of employers by unions of employers. There was a time in the history of unionism when trade unions were all on the side of the employes,but now the employers have their own unions, and they ; are very vindictive unions. Recently, a man whostarted in business for himself was boycotted by a union of employers. When they found thathe was doing well, they refused to supply him with the material he needed for his work. That was as bad as any boycott by a trade union. What is right for one side should be right for the other. I hope this Bill will pass, but I should like to see some alteration made inthe provision withrespect to paid agents, because it is totally unfair to a certain class of men.
– An amendment has been circulated.
– I have seen the amendment, and it does not suit me, either.
I should like to see some better proposal made to deal with the appearance of agents in the Court. I hope that not very much more time will be wasted in the discussion of the motion for the second reading of the Bill.
– It is very natural that the honorable senator, having made his own speech, should express a hope that no more time will be wasted. I take that as a confession from the honorable senator that he has been wasting time. We should immediately recognise candour of that sort. I am unable to approach the consideration of this Bill with the enthusiasm with which I once hailed the introduction of legislation providing for arbitration and conciliation. Many years ago, when such measures were first introduced, I hoped for great things from the introduction of this new principle into our industrial world. We were then led to believe, and did believe, that we should have arbitration instead of strikes. Unfortunately, that hope has only been partially realized, because we have arbitration and strikes.
– We have had pseudoarbitration.
– No; we have had a law called for, supported, and framed by leaders , of the Labour movement who, when they have seen it resisted and defied, have never publicly expressed their disapprobation of that defiance.
– Why should they ?
– I am glad to get that candid admission from the honorable senator. It is, as much as to say that the law is only to be observed by unionists when it suits them.
– Not at all.
– Every other section of the community is to obey the law, whether its members like it or not ; but unionists are only to obey the law when it suits them, and may defy it if it does not.
– They are subject to penalties, the honorable senator is aware.
– The honorable senator knows that the penalties are an absolute fiction.
– Peter Bowling does not regardthem as a fiction.
– He wasnot imprisoned under an Arbitration Act.
– Under an Industrial Disputes Act.
– He is in gaol today as the result of a verdict of his fellow countrymen.
– No; the verdict of a Judge without a jury.
– Honorable senators are not going to draw me from my argument by their interjections.
– A packed jury.
– These remarks are not accurate, and they do not refute what I am saying. As one who, a few years ago, hailed with enthusiasm this new method of dealing with industrial disturbances, I am expressing disappointment, whichI believe is shared by honorable senators opposite, that the arbitration principle has not been found to work as successfully as we hoped it would.
– Or as it will yet work.
– I shall come to that later. I am not speaking as an opponent of the principle.
– I never expected that it would bring about the millennium.
– I am pointing out that the chief difficulty which so far has developed is, to my mind, the one to which I have just referred, that men claim the right to disobey the award of a Court if it does not square with their ideas, and, so far, those who have been the champions of this principle of arbitration, and who are their leaders, have tacitly approved of this disobedience to the law. Not one of them has ventured publicly to reprimand the men who have broken the law from which they had so much to expect.
– What about the masters in the Newcastle strike?
– Whether they did right or wrong, does that make the disobedience of the law by the men right? Senator Gardiner has been quite candid in the matter. He says that it is quite right; and that if the men do not like a decision of the Court under the law they have a right to break it.
– I made no such statement, and I shall not have any such statement put into my mouth.
– The honorable senator need not get at all warm about the matter. I am prepared to recast my statement. I have no desire to misrepresent the honorable senator, and I am not so foolish as to deliberately attempt to do so in the presence of those who heard what the honorable senator said. I was stating that the leaders of the Labour party had never publicly rebuked those who had broken the law, and the honorable senator asked, “ Why should they?”
– Hear, hear ; and I say so now.
– My answer is that because they were the leaders, and because day in and day out they were urging that arbitration is the alternative to strikes, there was upon them an obligation to say to the men, “ Even though you do not like this particular decision, be loyal to a principle from which you and society have so much to expect. Although you think that the decision does not give you a full measure of justice, accept it loyally to-day, because only by that means can you thoroughly establish and buttress this principle of arbitration which is so dear to the workers.”
– Is the honorable senator sure that there is no Labour leader who has advocated that course?
– I am not saying that no Labour leader has, but I have stated that in the recent cases in New South Wales no Labour leader publicly rebuked the unionists for disobeying the law.
– They would have been cravens if they had, in my opinion.
– What the honorable senator has said is an admission of my contention. The claim is distinctly put forward by him that the leaders would have been cravens if they had urged their fellow-unionists to abide by the law.
– They should abide by an award, but not by a rotten and unjust law.
– So a unionist is to be free to break the law if he likes to call it a rotten law?
– It was gagged and bludgeoned through the State Parliament by the Liberal party.
– Once a measure is placed on the statute-book, no section of the community is entitled to challenge it except in the right way.
– Did not , any members of the Labour party advise the unions to accept the Industrial Disputes Act in New South Wales, and give it a trial?
– I know that the Trades Hall Council of Sydney distinctly urged unionists not to register under the Act.
– The honorable senator knows that the Labour party advised the other way.
– I know that the unions refused to follow the Trades Hall Council, and the result has justified them in the action which they took. What happened then has nothing to do with the point which I am now raising, and which has been frankly admitted by Senator Rae. It justifies the doubt which I have in my mind as to the ultimate success of the principle of arbitration. We have had, not one, but frequent, instances where the award of the Court has been ignored. Senator McDougall mentioned one case just now. I am not quarrelling with the action taken by those for whom he spoke.
– I would rather leave New South Wales, if a resident of that State, than obey their Arbitration Court.
– I do not think that the honorable senator is really complaining about the industrial law of the State. I shall refer later to the point which I think is in his mind. It is not the Industrial Disputes Act which he is quarrelling with, but the decisions which are given thereunder.
– No ; it is vice versa.
– We have just had an admission that a decision has been given which the union, for reasons of its own, declined to accept. It makes one doubt whether we have yet struck the right solution of our industrial difficulties.
– The employer has not accepted it either.
– No; the employer was at liberty to give as much more than the amount of the award as he liked ; therefore he has not broken it.
– The men simply said that they had got a job elsewhere. Surely they can go from a place if they like. ‘
– That is one of the factors which have created a doubt in my mind as to whether we have struck the proper key to the solution of this great industrial problem. When we find that the only awards of the Court which are to be observed are those which square with the ideas of the men, and that all other awards are to be put on one side or ignored, one cannot resist the doubt as to whether or not we can hope for very much from legislation of this kind. In Sydney we have had a recent instance in connexion with the butchers’ strike. A body of men working at the Albion Meat Preserving Works, under an arrangement with their employers, were without any sort of grievance, but mainly out of sympathy with their fellowunionists who were on strike they threw up their jobs. That is a case of flouting a law which decrees that there shall be no strikes. There have been dozens of strikes since we enacted that a strike was illegal. You may say, as Senator Long said, that there are penalties for breaking the law. There are on paper, but not in reality. There can be no question of penalizing any large body of men who decline to accept the award of a Court. It is unthinkable that you would sell up the goods of the nien for the purpose of realizing the amount of a fine. It is equally unthinkable, and, perhaps, less possible, that you would put the men in gaol.
– They have put men in gaol by the dozen.
– That is not. accurate.
– It was not the conspiracy law which put Burns, Brennan, Gray, and the others in gaol.
– It is not accurate to say that men have been put in gaol for declining to follow an award of the Arbitration Court. When these things have happened on a rising market, although the awards have invariably secured to the men some better conditions, what can we hope for when we are on a down grade, and Australia is enjoying a lesser measure of prosperity ; when, perhaps, a drought has overtaken us, and the prices of primary products have fallen heavily ?
– What is the honorable senator’s alternative - to abolish the Arbitration Act?
– I recognise that there is no turning back at this juncture. We have put our hands to the plough and must go on ploughing the furrow until we can overcome ‘the difficulties I have referred to, or the whole system breaks down. It was because I believe’ that we have not yet exhausted this experiment that I referred to the remissness of Labour leaders in not having called upon the men to loyally ob serve the law. I think that they would do the greatest possible service to those whom they can influence if they would point out and insist that it is only by showing ready obedience to the law that they can expect the rest of the community to give it that moral support which is essential to its continuance.
– During the six years the Arbitration Act was in force in New South Wales, can the honorable senator instance one case when the leaders supported the men on strike or failed to call upon them not to strike?
– There has not been a single strike under the Act in New South Wales where the leaders have publicly said that they did not approve of it, and recommended the men to obey the law.
– The honorable senator is confusing Wages Boards with the Arbitration Court.
– I am not doing anything of the kind. At one time, in Newcastle, there was a strike of some section nearly every week.
– I wish to make a suggestion which I have as much opportunity of carrying out as has anybody else, but which I recognise could no.t be carried out without the co-operation of the unions. It is for that reason that I offer it to my honorable friends opposite, ‘knowing that their influence would go a long way towards .securing its adoption. I believe that if I were to put to them the question whether or not they could honestly say that any law should be on the statute- b.ook having a penalty for one side that breaks it and none for the other, they wo,u,id agree with me that such an Act would not be just. lt is impossible to penalize workmen who have failed to observe the law, but I think that there is one way in which some arrangement might be mapped out. This measure provides for preference to unionists in some form or other. Might it not be provided that any man or any union that refused to observe a decision of the Court should forfeit that preference? That seems to me a -practical suggestion, and one which, I believe, in the absence of a dispute, the unions; would admit the reasonableness of. Preference to unionists is a privilege. I think that if you put the question to unionists when they are in a calm frame of mind, they would say t*.t mine is not an unfair proposition. It would make the Act better balanced than it is. Passing on, I come at last to the Bill . It seems to me to deal with two major matters. 0.ne is preference to unionists, and the ot,h.er is. the evident desire on the part of its framers to enlarge the duty and the jurisdiction of the Federal Arbitration Court. There are other matters which T can deal with better in Committee. In. considering the question of preference, we have to remember what is the basis of an Arbitration Act. It presupposes and requires for its effective working organiza tions of employes and of employers. If you go a s’tep further you will find that the Act requires organization for its working, and will be an incentive to the multiplication of organizations and their establishment on a sounder basis than ever before. As it is an appeal and a direction to the men to organize for the purposes of the Act, it does not seem to me anything but a reasonable proposition that preference should be given to those who have to meet its requirements by organizing. I draw attention to the fact that I have used the words “ organization for the pur-poses of the Act.” So far as any organization has been created for the purposes of the Act or any organization previously in existence is concerned which comes before the Court for the purposes of the Act, and which is limited to those purposes, I cannot see why preference should be denied. If it stopped at that I should’ be perfectly satisfied, but I am afraid that the Bill will carry us somewhat beyond that. It is quite clear from what has happened in the past, and from what is taking place to-day, that an effort is being made to obtain this preference, not merely for those organizations which are necessary to the working of the Act, but for organizations which are political to-day and which have the appearance of becoming more and more political as time goes on. If that is so, I shall endeavour to show that preference to members of organizations having a political side would be one of the most monstrous acts of tyranny and coercion of which we have any knowledge.
– What is criminal in being political?
– Nothing at all; but there is a great deal criminal in telling me that if I will not subscribe to a certain political faith I shall be deprived of my means, of livelihood. I am not prepared to support that doctrine. I believe in preference to members of organizations neces-.sary for the purposes of the Act. In New South Wales there have been, unions which had a rule inflicting a monetary penalty on. any man who worked against the parliamentary candidate whom the union, was supporting. We have heard a good deal about the iniquity of employers, but does an act which is iniquitous when it is perpetrated by one man become righteous when it is perpetrated by another man?
– The honorable senator knows that no such rule could be regis..tered under the present Arbitration Act.
– Under this Bill it might.
– The powers of the Registrar *are riot interfered with in the slightest degree.
– The question of granting preference is to be left solely to the Judge. Previously, the Registrar could only register rules which complied with the Act. The Act said that the unions should provide reasonable facilities’ for the admission of members, and should be free from political objects. When those two safeguards are removed’ from the law by this Bill, the Registrar will Be free to register rules- which he cannot register now.
– What’ union has rules which it cannot register?”
– I’ do not’ know of any- to-day.
– None at all.
– I know that’ under compulsion; the Shearers’ Union struck out the’ very rule to which I have referred.
– They have struck’ it out.
– If; the- prohibition against’ such rules Is removed-‘ no ‘ doubt the1 Shearers’ Union will revive that rule. I’ quite conceive the reasonableness of the’ claim’ for preference- to ‘organizations ‘necessary “ for’ the ‘ purposes’ of the’ Act; but I cannot see that,there is any justice in granting preference te ‘a body’- of’ men’- who are’ joined together for political purposes. Let me remind’ honorable senators of what h’a’s taken place before the Arbitration Court of” NeW- South1 Wares’., 0’ Dwyer’’ versus The Wharf Labourers’ Union was, I ‘.think; the’ first” case which came up. In dealing with that case, the President of ‘the Court said-
THe’” recognition which the Act extends ‘ to trade unions was evidently because the Act could not be administered without organizations, and as trade unions were the only organizations among the men the Legislature availed itself of them. But was it the’ intention of the Legislature that the trade union, when by registration it has secured to’ .itself the great advantages conferred by the Act, should be at liberty to say who should or should not share those advantages?
I remind honorable senators that that would largely depend upon the right of a union to exclude a man from its ranks ; and the Judge points out that a union, having obtained the advantage of preference, ought not to be able to say that a workman shall be excluded1 from if. The President went 011 to say -
I’f a person voluntarily join an association with a rule of this kind, which, by depriving him of important privileges, in a sense punishes him. for doing that which he was quite free and entitled to do, that is his business; but this Court should’ not’ compel a man either to join a body which has established this imperium in imperio, or to remain aloof from the benefits which the Act we are administering contemplates.
That seems to’ me to’, lay down’ a’ mere abstract piece’ of justice. When1 Parliament passes a law professing to give a privilege, or a measure of justice, to unions, th’o’se unions ought not to have it in their power to say who shall or shall not ‘share in the benefits’ which’ Parliament has conferred. In other words,- there’ ought to be some reasonable assurance that the right of admission to those unions is. reasonable of access to ‘ordinary men. But that is one safeguard, which it is proposed to take away. As showing something of the view which’, the Judge took in that case, I may remark that he concluded by saying -
These acts speak for themselves. The c»nduct of the union in 1904 was characterized by the then Court, as “ autocratic and tyrannical in the extreme.” The conduct set out above is, to my mind, tricky, underhand, and dishonest m the extreme.
We have there the verdict of two Judges up’on the action” of th’at union “in trying to prevent admission’’ to its ranks. Those statements’ are strong. They are not only strong’ in themselves, but the fact that two Judges, with a lapse of time between their statements, used’ the strongest, language which we have heard in a Court for sortie time’, ought to have some’ weight with us.
– Were they Arbitration Court ‘ Judges ?
– Yes, the statements were made by Mr. Justice Cohen and Judge Heydon. These facts ‘go’ to show that we ought to be careful before we’ place in the hands of unions the right to exercise a power as tyrannical as was sought to be exercised in this case. But in this Bill we propose to tike away the safeguards, leaving the’ unions to put into their rules whatever restrictions they like.
– Where is that shown ?
– In the Bill itself, which takes away the safeguards contained: i’i the existing Act, one of which is that the conditions of admission to a union whose members enjoy preference ought to* be reasonable..
– But there is no direction as to the conditions on which preference shall be granted under this Bill. The matter is left to the discretion of the Court.
– Exactly. We are leaving out certain specific safeguards ; and, when there is a safeguard in one Act of Parliament, and it is struck out in another, that is an indication to the Judge that Parliament does not regard the safeguard in question as one of the factors that ought to be taken info consideration.
– The safeguard in the principal Act means anything or nothing.
– Does it? Let us take the case of the Shearers’ Union.
– Give the union its proper name.
– I allude to the Australian Workers’ Union; but I was employing the name by which we knew it of old.
– It has greatly extended its membership.
– Is that the union of which the honorable senator was a member?
– I never was a member of it, though I should not have considered it disgraceful if I had been. This union sought preference before the Arbitration Court. The Registrar was compelled to take notice of its rules, one of which I will now quote. He said, in his finding -
Rule 113 of 1901 provides for a contribution of 2s. 6d. from each member’s annual subscription to this journal.
The reference was to The Worker, published in Sydney, which is admittedly a Labour newspaper. The Registrar also said -
Rule 120 of 1902 provides for such subscription being 5s., and Rule 121, that each branch may expend an additional sum, not exceeding is. 6d. per financial member per year, in support of newspapers owned and controlled by the union.
He went on to say -
This subscription for the present year would amount to ^5,250, in addition to a possible subscription from the four branches of ^1,575-
– That states what the branches “ may “ do, not “ shall “ do.
– I am simply quoting the Registrar. He had only to deal with the rules of the union, and not to trouble himself with how they were being worked. The question was whether the union was entitled to preference. We. all know, as a matter of fact, that these contributions to The Worker have been made. The Registrar went on to quote rule 54 -
Branches may expend a sum not exceeding is. per financial member per year for parliamentary purposes, providing always that a twothirds majority of their members declare through a plebiscite vote in favour of such expenditure.
The Registrar also quoted the following rule-
Branches deciding in favour of expending is. per member for parliamentary purposes shall place same to credit of a parliamentary fund, which may be used in connexion with either State or Federal elections.
Later he quoted this rule -
Any member of the union voting or working against the selected Labour candidate approved of by the union shall be fined the sum of ^3.
When a union claims to exercise a power of this kind over its members, I am quite unable to understand why the principle of preference should be extended to it. When a union becomes a mere political organization and declares that, if a member does not vote for a political candi-date, a fine shall be imposed upon him for doing what every man in this country has a right to do, I say that an act of tyranny is committed. Every man in Australia has the right to vote as he likes. Whenever that principle is interfered with, in this manner we are drifting back to a tyranny for a parallel to which we have to look back to the dark ages. What would be said of an employer who posted up in his factory the notice, “ No man. shall be employed here who does not vote as I want him to vote, and any employewho votes against my candidate shall be fined £3”?
– Practically some employer? have done that.
– What does thehonorable senator say about it?
– I think it all right. Senator MILLEN. - No, the honorable senator does not ; he would say that an employer who acted in that way was guilty of an act of coercion. Every one in this Senate condemns that sort of thing. Are we to support it when the same measureof tyranny is sought to be exercised by some other authority?
– Is the honorable senator aware that he has sitting onhis own side of the chamber now one who has practised boycotting?
– It is a wrong and iniquitous thing for any employer to use any pressure or any power; which he may havein this manner. I do not know whom- my honorable friend Senator E. J. Russell is referring to, but if there is any one on this side of the chamber who has attempted to influence any man in such a fashion, it was a wrong action ; and it does not become right when that coercion is exercised by unionists or any other body of men. The point is this : Whether it be right or wrong for any individual or any body to do such a thing, it certainly is not right that Parliament should place in any person’s hands the power of saying, “ Unless you conform to union rules, handing yourself over body and soul to the domination of the union, your right to earn a livelihood shall be taken from you.”
– Will the honorable senator tell us when that rule of the Australian Workers Union was enforced ? What is the date?
– I can give the date of the quotation. It is taken from the reports of the New South Wales Arbitration Court, volume 1, page 21. When I bring forward instances of this kind, it merely shows the weakness of the position occupied by honorable senators opposite if they say, “ Somebody else has done worse.” That is no answer at all. Let me put the matter in a specific form. Do honorable senators say that it is right that Parliament should endow any body of men with power to deprive persons of their livelihood unless those persons vote as they are told? That is the question which I put specifically.
– No, absolutely no.
– Then, why should we drag out of the Act which we are now amending the only safeguard against coercion by unscrupulous unions? That is the whole point I desire to make in reference to this matter. I am a believer in granting preference to industrial .organizations so far as that is necessary for the purposes of the conciliation and arbitration law, but I do not think that Parliament should for a single moment place in the hands of any body of men the power to compel one of their number to do one of two things - either to give up his opportunity of earning a livelihood under the law of the land, or hand over his political conscience bound and fettered to the keeping of some majority of his fellow- workers. Let me give instances as to how this proposal may work. Let us assume that the fiscal question is not settled in this country ; that it becomes again a burning question at a coming election. There may be a question of a high 01 a low Tariff, of Free Trade or Protection.
– We thought that the Fusion party had settled that issue.
– No political question in this country is settled for ever. That question, in my judgment - I may be right or I may be wrong - will again come to the front. Take the case of a union which decides to support a Protectionist candidate. Say that there are in the ranks of that union some Free Traders. What then do you ask them to do? Either to stultify themselves and to spend their money in securing the return cf a Protectionist candidate, or, at any rate, of a man in whose views they do not believe, or to accept the alternative of leaving the union, and giving up the right to earn a livelihood. I say that that is tyranny pure and simple. Take another case. The Minister of Defence has today moved the second reading of a Defence Bill, which provides for compulsory training in this country. There are, as we all know, people in Australia who, for conscientious reasons, absolutely object to the element of compulsion in that measure. It may be that that question will be a crucial test at an election. If that be so, imagine the case of a union deciding to support the compulsory principle, and assisting a candidate pledged to support it. It would immediately call upon its members, some of whom might strongly object to the compulsory principle, to support its candidate, and to st end the money which they had contributed to the union funds in upholding a principle which was absolutely repugnant and abhorrent to the very conscience of these men. The alternative would be to leave the union and starve in the streets. I ask the Senate - Is it fair and equitable to give to any body of men power to eyerci.se a tyranny of that character?
– We are not authorizing unions to exercise this power. We are giving a power to the Judge.
– But the present law distinctly decrees that preference shall not be granted where political factors come into account. That element of safety is to be removed. Consequently, the Judge will only be able to say that Parliament intended that the political factor should have no weight with him, and he will give preference to any union which may have in its rules such a provision as I have quoted from the rules of the Australian Workers’ Union.
– The Registrar will still be able to .exercise some restriction in the inn tier of the rules.
– The registration of rules will be subject to the Act, and we are removing the only restriction. This Bill says that no union is to have preference unless the rules provide for certain things. Why do honorable senators want an alteration made? We are actually removing from the law a restriction which previously obtained, and which prevented the preference provision from being used, in.’ a tyrannous manner. Let me take another case. The liquor question is likely to be an important matter at the next election in New South Wales. Suppose that a union decided, for reasons best known to itself, to support a candidate who was a strong advocate either of temperance or of the liquor interest. Some member of the union might be a strong and enthusiastic teetotaller. Yet. in the event of the union supporting an upholder of the liquor interest, this man would be called upon to vote for an advocate of a trade, and a system which is absolutely abhorrent to him. He must vote for a candidate who is going to support the very things which he has a horror of, and unless he does so, he will have to throw up his means of livelihood;, and leave the union. And this thing is being done when we have in power a party which has always been striving to keep down monopoly, and which professes an abhorrence of the boycott, Surely we have not been striving for all these years to break down tyranny and monopoly in certain directions in order to enable them to be exercised, in another direction. Tyranny exercised by one man is just as bad as tyranny exercised by another. I ask honorable mem-bers opposite to be loyal to the principles they profess, and to say that they are not prepared, by destroying safeguards in the existing law, to secure political advantages in the interest of one class. I leave that question, and approach the second matter to which, as I have indicated, I propose to refer, and that is the evident intention of the framers of this Bill to. as far as possible, enlarge the scope and powers of the Federal Arbitration Court. One is tempted to ask - Why th,is feverish desire to bring all industrial matters under the Federal Arbitration Court?
– Why should one enjoy a privilege denied to others?
– It is a privilege, then, to come under the Federal Court?
– That is a matter of opinion. Those who have registered under the Federal Act evidently think so.
– I want to ask what is the privilege? It is not a difference in the law. That does not account for the way in which certain people appear to be troubled. My honorable friends opposite are aware that throughout Australia there i.s in their ranks a feverish anxiety displayed to come under the jurisdiction of tlie Federal Court. Those who are striving to come under it have never tested the State Courts to find whether or not they can obtain what they want through them. I say, without any hesitation at all, and after due consideration of the words I am about to utter, that the only reason why there is on the part of unionists such a feverish anxiety to come under the Federal Arbitration Court is that they believe they have in Mr. Justice Higgins a partisan rather than a Judge.
– Shame !
– I rise to a point of order. 1 wish to know whether it is in order for any honorable senator, even indirectly, to impugn the integrity of a Judge of the High Court? I have always understood that if an honorable senator, desired to do anything of that kind, he must do so by a direct motion, and not by innuendo.
– I did not understand Senator Millen to make a direct reference to Mr. Justice Higgins. I understood the honorable senator to .say that those w.ho would prefer to bring their cases before the Federal Arbitration Court were of a certain opinion.
– A distinction without a difference.
– No; there is a very great difference,, and I am; glad that the President has correctly interpreted what I said. I do not say that I in any way indorse that view, but I do say that there is on the part of certain persons the belief I have stated-., and I can find- evidence of it in the utterances of Labour members.
-. - We have always said that we believe Mr. Justice Higgins tobe a fair man.
– Some members of the- pasty opposite have said a great deal more than that. Some have even gone so- far as to say that, with the Labour party in power, they would see that Judges were appointed who would suit the Labour party.
– Can the honorable senator give any proof of that statement?
– I have not the time now to stop to give my honorable friend proof of anything. If honorable senators opposite desire proof of what I have said, let them turn up Hansard, where they will find that one of the members of their party apologized for having made the remark.
– There is no foundation whatever for the statement.
– Then why did the honorable member to whom I refer apologize for it?
– He denied it, and did not apologize for making it.
– He did not apologize, but explained what he really had said.
– Having regard for the extreme sensitiveness of honorable senators opposite, I will only say that the remark and the explanation of it will be found in Hansard. An honorable member representing an electorate in New South Wales not long since made a remark of a similar character.
– Could the honorable senator quote the remark, not in a loose way, but giving the actual words used ?
– The honorable member to whom I refer now is Mr. Riley. He made a remark of a very similar character. I have no reference to it by me, but I have no doubt that Senator Rae knows what it was as well as I do.
– I do not.
– It was published broadcast in the newspapers.
– I do not remember what the precise words used were.
– The statement attributed to the honorable member was not denied. When we see a statement in the press that is not denied, we may take it for granted that it is substantially correct.
– The press will not publish a denial. They published statements about me during the Newcastle strike, and, when I asked them to publish a denial, they would not do so. One of the honorable senator’s colleagues used the statement against me on the platform, but it did not do him much good.
– We are evidently all in the same boat, but we cannot stop to square accounts with the press. I was saying that, rightly or wrongly, there is a belief in the ranks of the workers of Australia that they will obtain from Mr. Justice Higgins a decision more favorable to them than they are likely to obtain from any other Judge.
– No; they will obtain justice from him.
– Justice, in their view, would be a more favorable decision than they think they would get from any other Judge. Surely I could not state the matter more reasonably ? They wish to be able to come before Mr. Justice Higgins in the Federal Arbitration Court, because they believe they will obtain from him a more favorable decision than they could obtain from any other Judge in Australia.
– Have they not appeared before other Judges?
– What about Mr. Justice Cohen - a most humane and fair Judge, and one of the best in Australia?
– I quite agree with the honorable senator, but I do not think that any one will seriously dispute my contention that, in the minds of the great body of Australian workers, there is a belief that they will get–
– Fair play. Let the honorable senator put it in that way.
– That they will obtain a larger instalment of what they regard as fair play from Mr. Justice Higgins than from any other Judge.
– They expect to get fair play from him as against unfair play from others.
– I thank Senator Henderson for his interjection. He has stated the matter exactly. They expect to get fair play from Mr. Justice Higgins as against unfair play from other Judges. I have been striving for about a quarter of an hour to make my point clear, and Senator Henderson has done it in a few seconds. I again thank him for his interjection. It means that they anticipate something more favorable to them- and whether it be fair play or not I am not questioning now- from Mr. Justice Higgins than from any other Judge.
– We deserve it, too.
– I am not arguing that point. I want to remind honorable senators of the danger of what they propose. It is admitted now that unionists anticipate fair play from Mr. Justice Higgins as against unfair play from other Judges.
– The honorable senator ought to be fair. Did not the Australian Workers’ Union submit their case to Mr. Justice O’Connor in the Federal Arbitration Court without any demur or question?
– There is no need for my honorable friends opposite to get warm about the matter. I say that there is a belief amongst the workers of Australia that, as Senator Henderson has stated, they will get fair play from Mr. Justice Higgins, as against unfair play from other Judges. In other words, it is not the Federal Arbitration Court that they desire as against a State Court, but the individual judge who for the time being happens to be the President of the Federal Arbitration Court, as against the Judge of a State Court.
SenatorHenderson. - The honorable senator quite misconceives the matter.
– If Mr. Justice Higgins happened to be the President of the New South Wales Arbitration Court, and some other Judge happened to occupy the position now occupied by Mr. Justice Higgins, would the same feverish anxiety be displayed by certain persons to come under the jurisdiction of the Federal Court ?
– Most decidedly.
– I take the liberty of doubting it very much. Senator Henderson just now stated as the reason why the workers wish to come under the Federal Court that they do not believe they would obtain fair play from other Judges.
– Does not the honorable senator believe Mr. Justice Higgins to be a fair and impartial man?
– I have never questioned the impartiality of Mr. Justice Higgins.
– Does the honorable senator believe that he is an impartial man?
– I express no opinion on the matter. I have always regretted the absurd restrictions upon parliamentary discussion, under which we may say complimentary things about Kings and Judges, and have no right to say uncomplimentary things about them. I decline to say one thing or the other.
– The honorable senator is at liberty to take a proper course if he wishes to discuss the conduct of a Judge.
– I do not wish to do so. I am not impugning the conduct of Mr. Justice Higgins in any way. I am trying to make it clear to the Senate that the real reason why such a large number of people are striving to come under the jurisdiction of the Federal Arbitration Court is not that it is the Federal, as opposed to the State Court, but because an accident of the day has made Mr. Justice Higgins President of that Court.
– The honorable senator is absolutely wrong, and he has no right to try to make such a point clear, as he says.
– Senator Henderson admitted it just now.
– I said nothing of the kind. I said that people were appealing to him because they got fair play from him, and most unfair play from other Judges. But I am not assuming that if another Judge were President of the Federal Court, with similar powers, he would not be quite as fair as Mr. Justice Higgins.
– If I have Senator Henderson’s permission, I will continue. I accept the honorable senator’s explanation, but I wish to say that a very large number of people who do not know the facts as well as the honorable senator, and do not think as clearly, and who are quite unable to understand the difference between the jurisdiction of a Federal and State Court are, for some reason or other, imbued with the belief that from Mr. Justice Higgins they would obtain a more favorable verdict than from any other Judge.
– A different interpretation again.
– Exactly ; if the honorable senator cares to put it in that way. We had in Victoria some little time ago a decision given by a certain Judge which gave rise to a great deal of hostile comment. One can easily understand that different Judges will hold different views, and will give different interpretations. My object in these remarks is to show the danger into which my honorable friends opposite are running, in seeking to bring every industrial matter within the jurisdiction of the Federal Court. Today, with Mr. Justice Higgins as President of the Court, they are probably safe in doing so; but, later on, when circumstances have altered, they may regret that they ever brought one of these disputes into that Court. It is an accident of the day that there is at present a President of the Federal Arbitration Court whose decisions give the workers greater satisfaction than do the decisions of State Judges. The position may be reversed to-morrow. As I understand the matter, the feverish desire to which 1 have referred springs solely from the view held concerning Mr. Justice Higgins.
– The honorable senator is wrong in his deductions.
– I am expressing an opinion which has not been formed without some close study of the views animating large bodies of electors. Whenever I have had an opportunity of testing the question, that has been given as the reason.
– The honorable senator may, as we do, appreciate the difference between the State laws and the Federal laws.
– But a great many of those who wish to come under the jurisdiction of the Federal Arbitration Court do not know one law from the other. They do,however, know the decisions which the various Courts have given, and they see that, on the whole, the decisions of the Federal Court have been more favorable to their hopes and aspirations than have been the decisions of State Judges. If that be so, one can understand the desire of the great body of the people to come under the Federal Court ; but there is a very important responsibility thrown upon honorable senators who are here to speak and act for them, and I repeat that a time may come when those who are now so anxious to federalize industrial matters in Australia, may regret bringing them all under the jurisdiction of one Court. Before I resume my seat, let me clear up any misapprehension which may exist as to what I wish to say about Mr. Justice Higgins. I in no sense father or indorse the opinion which, I have said, is held by a large number of people. I should be very sorry to do so, and, though I declined to answer Senator Henderson’s questions, 1 wish it to be understood that Mr. Justice Higgins is a man for whom I have a very high regard.
Sitting suspended from 6.26 to 7.45 p.m.
-In his speech, Senator St. Ledger said that no honorable senator on this side had contributed to the discussion.
-I did not quite say that.
– I mean after the VicePresident of the Executive Council had spoken. When an honorable senator on this side rose to speak, Senator St. Ledger showed his appreciation by promptly leaving the chamber. I listened with very close attention to his address, and also to that of Senator Millen, and no doubt, from their own point of view, their addresses were exceedingly clever. For some time I have entertained strong opinions regarding the admission of legal practitioners to the Arbitration Court. But whatever doubt I may have previously entertained on that question has been entirely removed by the speeches of those two honorable senators, because I could not imagine a Judge being more confused or bewildered than he would be by the deluge of argument and quotations from ancient and modern history to which we had to listen this afternoon. In my opinion it would be impossible for the President of the Arbitration Court to give close attention to the subject-matter of a dispute when he had to listen to a dissertation such as we had to listen to this afternoon. For many years the members of the trade unions have been advised - and, no doubt, some honorable senators on the other side have assisted in giving advice -to forego methods of violence and strikes, and to adopt perfectly constitutional means for the redress of their wrongs. I would remind honorable senators opposite that that course has been adopted. After many years’ agitation, trade unionists have been enabled to place in this Parliament a majority who more fairly represent their views than did those who formerly controlled the affairs of the Commonwealth. Therefore, we are perfectly justified in supporting this Bill, believing as we do that it more correctly and more fairly represents the views of the great majority of the people than did the legislation initiated by previous Governments.
– I did not see anything to that effect in the Prime Minister’s manifesto to the people.
– That was the utterance of an individual ; and, although I am prepared to adopt it almost in its entirety, yet I would point out that it was not submitted to a meeting of our party before it was published all over Australia. To my mind, the vital question before the Senate is the settlement of industrial disputes and the prevention of strikes. This may not be the most perfect method of settling industrial disputes,but, from our point of view, it is the best. Surely honorable senators opposite will agree that we have progressed sufficiently in Australia to apply ourselves diligently to’ the task of promulgating some scheme, based on justice, which will prevent in the future industrial dislocation, and, better still, prevent the creation of that class feeling and bitterness which we know have been engendered by past disputes. However bad this measure may be from the point of view of certain honorable senators, surely it is preferable that we should pass it than that we should have a continuance of the conditions to which I have referred. Honorable senators have stated that this legislation has hitherto been a failure. It has been a failure because those who were responsible for the legislation did not show, to my mind, that sincere desirefor the settlement of disputes which they ought to have exhibited. Whatever may have been the decisions of the various Courts, which are differently constituted, we have had to accept the inevitable; and, notwithstanding what Senator Millen said, I do not think that there is any member of our party who has ever impugned the purity of the motives of the Judge who, for the time being, was administering the law.
– It was public talk. The honorable senator’s ears must be shut when he travels in railway trains.
– Without any desire to be offensive, I would remark that one fool can deny more in ten minutes than ten philosophers can prove in ten months. We have had all kinds of negative assertions from the other side–
– Did not Mr. Beard, a member of another place, actually withdraw an expression which he had used about the High Court?
– Then the newspapers misreported him.
– Absolutely ; and that is what he explained. He took the first public opportunity to place himself right with the people. The decisions of the various industrial tribunals have been accepted by the Labour party ; no doubt with some grumbling, but never once have imputations of an improper character been levelled against the Judge. Just now we find a Judge of the High Court administering an Act of Parliament, which is materially different from any similar law which obtains in any of the States. Under the authority of that law he has given decisions which, in my opinion, and in the opinion of the vast majority of the people of Australia, have been based on considerations of justice. And now, because there has been a turn in our favour we have, not because of the man, but because of the law which he is administering, all kinds of statements directed against the honour of that Judge.
– However thinly veiled they are, they are a sort of reflection on the Judge.
– Exactly. These remarks are not directed to Senator Millen, who, I regret, is not in his place, because I accepted without any hesitation the explanation which he made in the concluding portion of his address in reference to Judge Higgins. But honorable senators know that in certain circles,not only in Victoria, but in the other States, we are constantly hearing imputed motives of the character which we have heard here this afternoon. I desire now now to refer to the question of whether arbitration has been a failure as applied to industrial disputes. Where, I ask, has arbitration ever had a fair trial?
– In New Zealand.
– Will any honorable senator have the temerity to say that arbitration, as a means for the settlement of industrial disputes, has been a failure in New Zealand ?
– Will the honorable senator take something from the last New Zealand Act, and put it in this Bill ?
– Let us deal with one question at a time. In New Zealand about 1,000 awards have been given by the Arbitration Court during a period of sixteen years, and only three strikes have occurred, one lasting two days, and the other two about a day between them. Yet, in the face of that experience, we have honorable senators standing up here and telling us that arbitration has been a failure. It never would have been a failure here if we had had the same law as obtains in New Zealand, and it had been administered with as much backbone.
– Will the honorable senator explain why New Zealand passed a special Act in 1908?
– That measure extended, and in no way limited, the application of the original Act.
– It enforced penalties against the parties to a dispute very effectively.
– Quite right. We do not say that there ought to be arbitration for one side and not for the other. There ought to be a constituted authority to stand between the disputants, and in the interest of the public, who suffer just so much, settle the industrial trouble on a basis fair to the parties and fair to the public. There ought to be substantial penalties imposed for a breach of any award ; no member of the Labour party, inside or outside Parliament, has ever expressed or held a contrary view. Is it not remarkable that in the matter of industrial legislation we meet with failure only when the powers of Parliament are invoked on behalf of the workers? We are told that it is impossible to regulate wages or to alter conditions by . Act of Parliament; and that there ought to be freedom of. contract. It is just as competent for this Parliament to deal effectively with that class of dispute as it is to deal with any other class of dispute which comes before a Court of competent jurisdiction. This afternoon a great deal was said about preference to unionists, and from the point of view of honorable -senators opposite some striking statements were made - statements which had to be dug up out of the vaults of the long agoto the effect that preference to unionists could only result in creating a system of class tyranny. I venture to say that the standard of social and industrial life in Australia is higher than it is in any other part of the civilized world. That, I think, will be generally admitted. To whom is the credit due for the position which our people occupy in that respect? Is it not due to the efforts of trade unionists of Australia? Is it not they who have made it possible for men, women, and children to obtain work under decent conditions, both as to hours and -wages? All over Australia there are employers who are prepared to extend the fairest conditions to their employes without mw compulsion” being exercised. But on the other hand, there are employers who are not so well disposed, and it is to them that we wish to apply a measure of this character. If trade unions did not result 5n bringing about the improved conditions which we know exist in Australia, why are not industrial conditions better in Tasmania than they are on the mainland ? Except in regard to one or two trades, there is absolutely np trade unionism in Tasmania, I speak with some authority, because I was a member pf a Royal Commission which was engaged for six months in investigating the conditions of the workers in different industries. The wages of the working classes in that State are from 20 to 30 per cent, lower, and the hours of employment 25 per cent, longer than is the case in any other part pf the Commonwealth.
– And no Wages Boards.
-We have np industrial legislation.
– Showing how anxious employers are to assist the workers when there are no trade unions.
-Exactly ; that was my object in discussing this phase of the question. If there is no need for trade unions, why have not the employers in Tasmania brought the conditions of their employes up to the standard enjoyed by workers on the mainland? We know, as do honorable senators on the other side, that the reason is to be found in the .absence of industrial combination amongst the workers. Preference to unionists is viewed with alarm by honorable senators opposite, because it will, undoubtedly, have the tendency of bringing all and sundry within the trade unions,
– What class of workers have you in Tasmania that you could not get trade unions established? *
– Many of the workers dare not join a trade union. In .some places the men must sign a contract to the effect that they will no.t become members of a trade union, and it is because ,of that fact tha.t we ask the Senate to agree ,to the provision for preference to unionists. The clause, as it stands, gives a discretionary power to the Judge, but I should like to see it definitely enacted- that he shall grant preference to unionists. But I know .that there are .constitutional difficulties 5 that the powers of the Parliament axe limited,, and, of course, we can only legislate within the four corners of the Constitution,
– What does the honorable senator propose to do for the men who will not join a .union.?
– I would say to the honorable senator .that if the coercive measures used by a trade union to induce men to join had the effect of imposing an obligation of an unfair character, or if men were not to participate in all the benefits to be obtained by joining, then I should admit that the methods were, as he described them, of a tyrannous character.
– They used to make the same plea in the old days when men were burned for religion. The principle is the same.
– No, the principle is not the same. There was always an element of doubt as to whether the person to be incinerated had the right religion or not ; but there is no doubt about the benefit derived by a man who becomes a member of a trade union. Let me come now directly to the question of preference to unionists. Nearly all the freedom we enjoy in Australia to-day is due to trade unionism.
– How many trade unionists are there in the Commonwealth?
– I like to be accurate in giving information on a public occasion, and I cannot inform the honorable senator from memory.
– There are 200,000.
– I can neither contradict nor indorse that statement. But, as honorable senators know, at the head of our trade unions there are a number of men who are intrusted with the leadership and direction of the affairs of the unions. These men, because they have become the mouthpieces of their fellow unionists - like Peter Bowling, in New South Wales - have been sacrificed. It has been so with trade unionism all over Australia. The leaders are called upon to act in their official capacity, and, for so doing, they become marked men. No effort is spared, not only to shift them from their employment, but to boycott them from employment elsewhere. I know, from my own bitter experience, and from statements that I have heard from others, that such is the case. I know men who took a prominent part in the Miners’ Union in Tasmania. Because of the action they took in securing fair conditions in the mines - such as proper ventilation, sanitation, and decent wages - they were promptly dismissed, and the blackball was sent round to the mines in other districts, so that it was impossible for them to secure employment. The tragedy of it all is this - that many of these men are married, and have wives and families depending upon them. But that does not worry some of the employers. They know that the most effective way to strike at union leaders, and to crush their feelings of loyalty to their comrades, is to bring pressure to bear on them through the suffering inflicted on their wives and children.
– But the honorable senator knows that some unionists have burned buildings and destroyed machinery. There are two sides to the picture.
– For the moment I can only see my side of it.
– That is not a fair way in which to legislate.
– The honorable senator cannot see either side fairly. He does not want legislation of this kind at all.
– I did not say so.
– The honorable senator conveyed that impression clearly. I understood from the tenor’ of his remarks that he was totally opposed to legislation of this character.
– I am certainly opposed, at all points, to this Bill.
– The honorable senator implied the absolute failure of Parliament to deal with industrial matters by legislation.
– On the contrary, I praised the Wages Board system.
– The honorable senator contended that this kind of legislation is an interference with the States in the proper administration of their own industrial laws. But the State laws have never been effective. Take the Victorian Wages Board system. It is quite true that that system revolutionized industrial conditions in Victoria, but it is still imperfect, because the authority best able to deal with the issues raised is a Wages Board itself, and there should be no appeal from its decision.
– Not on matters of law?
– How can the question of wages and hours give rise to a point of law? Take a case that occurred some time ago, and which was decided by Mr. Justice a’Beckett. Of course, he had to administer the law as he found it. I am not finding fault with the decision of the Judge.
– The difficulty in that case was the interpretation put upon the words “ fair and reasonable.” Mr. Justice a’Beckett took one view, and Mr. Justice Higgins took another. There was a conflict of law at once.
- Mr. Justice a’Beckett was asked to take into consideration the interests of the wives and ‘families of the workmen, but held that he was not entitled, under the law, to take cognisance of those factors. It will be agreed that such a law as that cannot be characterized by any other term than immoral. Because of such decisions, we take the view that the laws of the States have not been effective, in dealing with industrial questions. In New South Wales there was a case arising out of a Wages Board, where the Judge admitted that the employes had made out an excellent case for an increase in wages, but held that he could not give the increase, because, by so doing, he would place New South Wales manufacturers in an unfair position in relation to their competitors in Victoria. Where is that sort of thing going to end ? I believe that the only way to get effective and uniform legislation is by handing over complete power to the Federal Government. The question is one upon which I feel keenly, for reasons that I need not disclose to the Senate just now.
– The honorable senator has been a sufferer through being a trade unionist.
– Amongst my acquaintances are some of the finest workmen and truest citizens that any State ever bred ; and I have seen them victimized because of their loyalty to their unions and their fellow men. We want to prevent that kind of thing, and it can be prevented only by inducing those who are not members of unions to enter within their pale. It is only by the effective combination of employers and employes that we can have effective arbitration. It is then that we shall call upon a constituted authority in the shape of the Federal Arbitration Court to settle these disputes, which affect not only the two parties, but the public, who are large sufferers through industrial strife. I hope, therefore, that this amending Bill, although it is not all that I should .like it to be, will receive, if not the unanimous indorsement, of the Senate, at least the indorsement of an overwhelming majority.
. - lt seems to be a habit on the part of members of the Opposition to leave the chamber after they have delivered their speeches. Indeed, in the Senate, we seem to be in the habit rather of replying to interjections than of making speeches. Whether that is our notion of maintaining the dignity of the Senate, I do not know. I wish to refer to one or two matters which were mentioned by the Leader of the Opposition. He urged that the removal of the restrictions which exist in the principal Act in regard to trade unions which are also political bodies may lead to a system of tyranny. I suppose that we may frankly admit at once that all organizations are potentially capable of tyrannous acts. I am not going to assert that trade unions are absolutely perfect instruments by any means. But, as experience of political action develops, we find it becoming absolutely necessary to settle industrial problems by political methods. Therefore, to deprive trade unions of the right of political action would be to emasculate them, and reduce them to impotence. As is well known, it is really by the power of trade unionism directed into political channels that we have succeeded in securing a Labour majority in the Senate and the House of Representatives. To ask us deliberately to cut off that which has proved so advantageous to us, and, as we believe, to the whole of Australia, would be to ask us to commit suicide, which we have no present intention of doing. In order to show that there is no tyranny in what is proposed, let me point out that, in the original Act, provision was made for unions doing various things which come very close to political purposes. “ Political purposes,” under section 55 of the principal Act, was defined as - not including, obtaining, or maintaining provisions applying to all persons in any particular industry, without discrimination’ as between those who are and those who are not members of an organization, with respect to the regulation of the following matters; and then are mentioned the preservation of life and limb, compensation for injuries or death, sanitation, hours of labour, remuneration, and protection of salaries and wages. We may take it that all those subjects, which are permitted to be dealt with under the rules of unions under the principal Act, come fairly close to the sphere of political action. Therefore, it seems to me that, to forbid a union from receiving the benefit of preference if it devotes any of its funds to political objects is really unwise. I take no exception whatever to the action of the Leader of the Opposition in quoting extracts from speeches and articles by Labour leaders in other countries in opposition to compulsory arbitration. I admit that there is a great deal to be said on both sides. But I maintain that, if we are to have arbitration at all - and the framers of the Constitution provided for it - we must, if it is to be effective, have arbitration which is not surrounded by all kinds” of pitfalls providing food for our legal friends, and enabling them to deplete the funds of the unions. It is by removing restrictions that we shall tend to make our arbitration law more effective. We cannot make it as effective as we desire, owing to the constitutional limitations imposed upon us. We hope, in the future, to remove such restrictions as impede our progress.
– Are we not putting the cart before the horse?
– We cannot remove these restrictions without a referendum, which, no doubt, we shall secure in good time. But it is wise to do what we can while we can. I wish to refer to what Senator Millen said in regard to the Australian Workers’ Union. He quoted an alleged rule of that union. Now, I was present officially, taking the report of the proceedings, when that rule was passed. It never would have been passed except for a misunderstanding, and, as a matter of fact, it was repealed within two or three months. There was no election while the rule was on the books of the union, so that it was never brought into operation. There was a bare quorum present when it was passed. In regard to preference to unionists, I maintain that, unless preference be granted to unionists, it must of necessity be given to non-unionists. Let us suppose that there are a number “of employers who would be very glad to break up unionism. Without some method of obtaining preference for unionists, such employers would deliberately exclude unionists from employment / and that would be giving preference to non-unionists. I have in my possession a letter written to the Melbourne Age, dated 8th December of last year, by a “prominent fruit-grower in this State, in which he said that he had instructed his son to discharge some twenty-five or thirty men who were members of the Rural Workers’ Union, or the Gardeners and Nurserymen’s Union - I forget which. That union was formed to include employes in the agricultural and horticultural industries. Because a certain number of this man’s employes joined the union, he admits, over his own signature in a letter which has not been repudiated in any way. that he told his son to discharge these men. and they were discharged because they had joined a union, their object being to secure an increase of wages. I mayrefer now to my experience in the little State of Tasmania.. I went over there about three years ago to try to organize a branch of the Australian Workers’ Union. Some of the sheep-owners did not know that the gun was loaded when I first visited the State, and they tolerated me. The second year I went there to carry on the work of organization during the shearing season, more than one pastoralist advertised for men, agreeing to give them, more than the union rate of wages, on condition that they were not unionists, and enforced an agreement under which they would forfeit the whole of their wages if it turned out that they had joined the union on the quiet. In New South Wales, when I was a member of the Legislative Assembly, and shortly before the election at which I was defeated, a squatter and manager of Buckinbong and Lake Midgeon stations told their men that if they went in to vote at the election, and I was returned, they might find a job elsewhere.. The number of men on those two stations was greater than the number by which I lost the election, so that I can claim that I lost my seat on that occasion as the result of the coercion of the managers of those two stations. We find that members of the party that claim to be Liberal, and boast about British freedom and the liberty of the subject, do not hesitate when the opportunity offers to curtail the freedom of others. I admit at once that two wrongs do not make a right. There is no use in one party trying, to become the dominant party in the country in order to perpetrate upon others the wrongs from which it suffered in the past. This would be only moving in a vicious circle. I contend that politics and industry are inextricably bound up. Parliament under modern conditions is principally concerned with the amelioration of the economic conditions of the masses of the people. Men who use their industrial arms to secure what they can by the power of combination would be fit subjects for a lunatic asylum, if they refused to use the same combination to return to Parliament men pledged to carry out economic reforms, which are obtainable only through the Legislature. Until the unions adopted this course, all that they gained by industrial organization was filched from them by the parties in possession of the political machine. This would have gone on through all eternity if the workers had not realized that it was foolish of them to tie one arm behind their backs and attempt to carry on an ineffectual fight with the other.
– The workers in England will not have this interference with economic conditions.
– They are not as advanced as we are, and we should not step backwards to imitate them. I do not entirely agree with Senator Long’s references to industrial arbitration. I decline to indorse his assertion that we adopted arbitration in lieu of strikes and violence. That is merely using the misleading expressions of our opponents. There is nothing violent about a strike. The word is inappropriate to describe what it is generally understood to mean. It certainly conveys the idea of violence, but ceasing to work because the conditions do not suit is not striking in the ordinary sense of the term. It is merely passive resistance. There is no violence about sitting down and declining to do anything. I am not in accord with a law which prohibits men from availing themselves of that which I believe to be a natural right. So long as employers are permitted, under various pretexts, to stop their operations, and lock men out, it will be impossible to prevent men from ceasing to work.
-The honorable senator wants both barrels loaded.
– I do. I tell the honorable senator so straight out. I contend that the very basis of arbitration, as we have it now, requires alteration. The kind of constitutional amendment which would suit me would be on these lines. At present the words used in paragraph xxxv. of section 51 of the Constitution are -
Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.
I should like to add to that the words, “ and in such disputes to provide, as far as practicable, that an increased quantity of the wealth produced shall go to the producer.” I want to see arbitration founded on the idea that those who create the wealth of the country have a right to use the political machine to secure an everincreasing proportion of that wealth until they ultimately eliminate the middleman and the speculator, and secure the whole of it. Until we realize that at the back of arbitration there is on the part of the producers a desire which no mere palliative measure can meet, to secure the wealth they produce, instead of its being filched from them in the shape of rent, interest, and profits, such measures must be ineffective from my point of view. I adopt absolutely the Socialistic view, that the wealth of the world belongs to the world’s workers.
– Does the honorable senator hope that this Bill will be a step in that direction?
– I do hope so; and, if it is found in practice to be ineffective, I shall as readily vote to destroy it as I do now in support of it. That should be frank enough for the honorable senator. My object in politics is to get what I can by my vote and influence for the classes who are wronged and plundered under existing conditions. Anything that will lead to that end will receive my support. I shall be prepared to vote for it, just as in any industryI should be prepared to make experiments to discover improved methods of production.
– The honorable senator is on exactly the same plane as William Lane.
– I should not be on a low plane if I were. I never knew any man who kept William Lane’s company for long who did not learn something, and was not bettered by the association. An interjection of mine was twisted to show that I was in favour of force in the matter of preference; but it does not matter what I am in favour of.We know well that, behind all law, is force.
– Instead of going to war, we merely count noses, to see which is the stronger party.
– That is so. On the question of preference, it is an absolute misrepresentation, either through prejudice or stupidity, for any honorable senator to say that preference to unionists would deprive any one of employment. If there are more men looking for a job than there are jobs to go round, some one must go without work, whether there is preference or not. If we give preference to unionists, all that we say is that those who have done all the work and endured all the risks and suffering to secure better conditions for the workers, shall have the first look in when they are secured. The contention of honorable senators opposite that there should not be preference to unionists is like saying that if a body of co-operators succeed in obtaining goods more cheaply than those who are not co-operators, they should share their goods at the lower price with persons who have contributed nothing to their venture. We contend that our organization has enabled us to win concessions from the employing <-lass that would never have been conceded otherwise. It is well known that in trades and avocations, where thu workers are not organized, the conditions are deplorable, as compared with those in which organization existed. But, while organization can secure to the workers a larger share of the wealth they produce, it cannot, of itself, find employment for any one. Whether preference is given or nor, if there are more men or women offering than work can be found for, some must go without employment. That at once disposes of the assertion from the other side that we want to starve those who are not in our unions. We merely say that those who have put their money into organizations, and have endured the injustice and suffering which have resulted from the opposition shown to their work, have the first claim to the benefits which their organization has won.
– The spoils to the victors.
– The honorable senator can call it what he pleases.
– The man who .catches the hare should enjoy the eating of it.
– Of course he should. With reference to the disposition shown by workers to come under the Federal Act, let me say that, apart from the decisions of Wages Boards, the conditions of industry in the States at present are such that each State is competing against all the others and, unless we have a settlement of wages and industrial conditions which will put the industries in each State on a fairly even footing, we must expect dissatisfaction to continue.
– The States in which the highest wages are paid will have the largest population.
– Senator St. Ledger must be aware that the employers in more than one industry in which wages have been increased as the result of the determination of a Wages Board, have complained that they should be asked to pay higher wages than are paid by their competitors in other States, and have said that if the wages in other States are not similarly increased, they must go to them and establish their factories there. It is to prevent the dissatisfaction arising in this way that the rush is taking place for registration under the Federal Act. Senator Millen, very unfairly, I think, attributed it to some supposed leniency or sympathy shown in a particular direction by the President of the Arbitration Court. The” union of which I am proud to have been a member for twenty-four years, found that an award given in the State of New South Wales was of no use, since the industry in which its members were employed extends, throughout the Commonwealth. An award which operated only in New South Wales was useless to the members of that, union ; and, as soon as the Federal Act was passed, we applied for registration under it. Without reference to the supposed leanings of the President of the Federal Arbitration Court at the time, we claimed, and secured, an award, and, whether Mr. Justice Higgins or any other Judge were in the position to-day, we should be compelled to apply for a renewal of that award this year. It will be admitted that some Judges are more sympathetic and broadminded than are others. A Judge is not such a sacred person that a unionist should have no right to express an opinion about him. What is the cause of the modern tendency to elevate a Judge into a kind of demi-god, who is not to be spoken of but with bated breath? Judges are but flesh and blood, like ourselves, and, if one of them does not act on the square, or show good judgment, there is no reason why we should not say so.
– When Parliament had the power to remove Judges, the people were in a very bad way.
– Order ! These interjections are leading Senator Rae away from the Bill.
– I have not very much more to say upon the Bill. I hope that, when it gets into Committee, one or two amendments will be accepted. I should like to see certain somewhat ambiguous phrases struck out. I feel sure that the Bill, if passed, will be found to effect a very considerable improvement in the existing Act. There are organizations now waiting an opportunity to register under the Federal law. I have referred to the organization of workers in the agricultural and horticultural industries, and no class of employes require organization more. I have had considerable experience as a practical farmer and orchardist - the industry in which I am now engaged - and I know that the wages paid to employes in these industries are simply scandalous. I hope that, when this Bill is passed, the workers in these industries will be registered under the Act. and will be able to secure an award which will improve their conditions.
– I am free to admit that we should have very little of this restrictive legislation if it were not for the fact that there are some unprincipled employers. It is such people who are responsible for this kind of legislation. I think that a prior amendment in the principal Act ought to have been proposed in this Bill. The first amendment should have Been made in subsection1, of section 2, which reads -
The chief objects of this Act are -
In my opinion, if this Bill is to be put in operation, the word “prevent” ought to be taken out of that section and replaced with the word “encourage.” That, I take it, is really what is going to happen under the Bill. Section 6 of the principal Act says -
No person or organization shall, on account of any industrial dispute, do anything in the nature’ of a lock-out or strike, or continue any lock-out or strike.
Penalty : £1,000.
I ask any honorable senator whether that penalty can possibly be enforced except against one side. It can be enforced against the employer, because he has premises, plant, and book debts, but I should pity any man who wanted to enforce it with regard to 500 or 1,000 men who refused to obey an award. Who would try for a moment to bring men before a Court or put them in gaol because they were not prepared to accept an award?
– There have been much worse things than that done to men.
– That does not make it right. What we ought to do is to pass a law which will be righteous in its application. Why should an award be enforced against a man? I take it that an organization is the best judge as to what the labour of its members is worth. If its members chose to say, “ We will not sell our labour except at a certain price,” who could force them to sell it for less?
– No one.
– Undoubtedly. On the other hand, there ought not to be a law which forces the employer to carry out his part of the bargain. What I. should like to do would be to sweep the Arbitration Court out of existence.
– And every other law.
– No. If you have a law it ought to be as enforceable against one side as against the other. In Canada a strike or lock-out cannot take place until the matter has been submitted to an Arbitration Board. The Board takes evidence with open doors, publishes the whole of its procedings, and makes an award. Then the men can strike if they like; they are not bound to follow the award nor are the employers. The whole of the facts in regard to the dispute have been made public, and public opinion really decides which party is right. I believe that as a rule it stands on the side of right. I would sweep, I said, the Arbitration Court out of existence. It has been good so long as it has been the instrument for raising wages. It has never been good unless it has done that.
– That is quite right, but it has not gone nearly far enough yet.
– The proportion of the share to the worker is still a very small one.
– That is not the point. Unless the Court or the Board raises wages every time it is not satisfactory.
– It has a good long way to go before it raises them far enough.
– That is altogether a matter of opinion. I admit that some law is necessary. I do not believe in absolute freedom of contract. I do not believe in sweating a man simply because of his poverty. We may need some law for the purpose of settling affairs between employer and employe. To my mind the Wages Board system is an ideal one for that purpose.
– Keep within the narrow limits of glorious competition and you are right.
– I would clothe the Boards with power to settle any dispute in conference. My belief is that the best way of settling disputes is to perfect the Wages Board system. In a Wages Board it is a matter of conciliation, a matter of consideration between the parties who know all about the trade affected and its conditions. I. would go so far as to lock up disputants until they agreed, and then I would give the force of law to their decision. With regard to section 4 of the principal Act, the Government propose to amend the definition of ‘ ‘ Industrial dispute ‘ ‘ so as to make it read -
Industrial dispute ‘ means an industrial dispute extending beyond the limits of any one State and includes- (1.) any dispute as to industrial matters arising between an employer or an organization of employers on the one part and an organization of employees on the other part ;
I take it that action can be taken against a single employer if there is no organization, although, it does not imply, that action can be taken against an employe unless there is an organization. (11.) any dispute in relation to employment in an industry carried on, by or under the control of the Commonwealth or a State, or any public authority constituted under the Commonwealth or a State, and (111.) any threatened or impending or probable industrial dispute;”’
I want to know how comprehensive that proposal is, because so far it has not been explained. In what way can it apply to a dispute in relation to an industry, carried on by or under the control of the Commonwealth. Will civil servants be affected by the provision ?
– It will affect Commonwealth public servants, but it will not tarry the matter any farther so far as the States are concerned.
– I am not sure, because I find that according to section, 4 of the principal, Act - “ Industry “ means, business, trade, manufacture, undertaking, calling, service, or employmentonland or water, &c.
It seems to me that we may, even have the Arbitration Court, called upon to decide some dispute with regard to the Commonwealth itself, and certainly it may do so with regard to a State, because there are States which carry on industries, South Australia , for instance, manufactures castiron water pipes, and has a produce depot where a number of slaughtermen and others are employed. Is an industry which is carried on by a State to be brought within the Commonwealth arbitration law ? I disagree with that. I think that the States are supreme in this matter. The electors in the States have always their own representatives to appeal to, and the latter can see that, so far as State law is concerned, they are properly looked after. I notice that the definition of” Industrial dispute ‘ ‘ is enlarged to include; -
Any threatened or impending or probable industrial dispute.
These are very wide terms, and give an immense power to the Court to intervene if there seems even to be a suspicion for taking that step.
– Is not prevention better than cure?
– I think I have heard that remark once before, and it may be true. At any rate, I am not going to dispute it. Again’, we are asked to enlarge the definition of “ Industrial matters.” The words of the clause are -
– That is good enough-.
– Will the honorable senator define it?
– The Judge can find time to do that.
– It seems to me that it would be a matter of considerable difficulty to determine how far society as a whole is concerned with regard to anindustrial dispute. I am drawing attention to the proposed enlargement of the powers of the Court in these respects; because, in his opening speech, Senator McGregor made no reference to the subject, nor has any other speaker. So far as the definition of “ Industry” is concerned, I notice that at present it reads - “Industry,” means business, trade, manufacture, undertaking; calling; service, or employment, on land or water; in which persons are employed, for- pay, hire, advantage, or reward, excepting only persons engaged in domestic service, and persons engaged in agricultural, vili- cultural,. horticultural, or dairying pursuits;
I take it that under this Bill the whole of the persons who areexempted from that definition areto be brought under the purview of the Arbitration Court. There, again, its powers are tobevery considerably enlarged. The definition of”employee” is also to be amended to include “ any person whose usual occupation is that of employee in any industry.” There is no escaping from the fact that the Bill, as it is framed, is a drag-net big enough to get within its sweep any industry in the Commonwealth.
– Why not ? If it is good for one it is good for another.
– I simply want to point out what the effect of the Bill will be. I am not discussing at present the right oor the wrong of it. but I think that honorableenators wwill admit that it is a fact that every industry will be brought under the Bill.
– I . said so when I was introducing the Bill.
– I am very glad to hear that the honorable senator did say so. lt was certainly information which the Senate had a right to know. It is now admitted ali round, I think, that every industry in the Commonwealth is to be brought under the operation of the law.
– If it were not so this Bill would be no good.
– It is all a matter of opinion whether it is good or bad. No doubt the honorable senator believes that the whole measure is good, otherwise he would not have introduced it. I give him credit for sincerity in the matter; if he did not imagine that it was a good Bill he would not have introduced it. I want not only the Senate, but the public generally, to understand that it is now intended to bring all our industries, including the horticultural, agricultural, viticultural and dairying industries, within the purview of the Act.
– That was our declaration at the elections; that is why we got in here.
– I am very glad to hear that. If the honorable senator had only told me that a declaration of that kind would get a man in, I might have helped somebody else to get in. I notice that an alteration is proposed to be made in section 27 of the principal Act. which provides that no legal gentleman shall be admitted to the Court except by the consent of both parties or by leave of the President. Under this Bill the. President is to have no discretion in the matter, because it says that no party is to be represented by counsel or solicitor or paid agent. I confess that I am not quite sure that we ought to strike out the reference to the President in section 27. I rather think that he should be allowed a discretion to admit counsel. How much labour do my friends on the other side desire to impose upon the President?
– Not half so much as the lawyers would.
– I venture to say that my honorable friend does not know. A Judge sits on the Bench, and the duty of the Bar is to expound the law to him.
– And the facts in their proper sequence.
– Honorable senators opposite want to impose upon the Judge the whole labour of looking up the law- and ascertaining the facts.
– He must do that.
– There is no other judicial officer who is called on to do such a thing.
– Exactly. I feel quite sure that no one Judge of the High Court could compass the whole of this work. If a case comes before the Court which bristles with technicalities, and he feels that the knowledge of the legal profession would help him, why should he be denied that assistance?
– If a case bristled with technicalities, probably the parties themselves would desire it.
– Probably, if the honorable senator had been trained to the law he would have recognised the necessity for leaving a discretion to the Judge. I now wish to say a few words in regard to preference to unionists. I believe in trade unionism. I have always done so.
– I am surprised to hear that.
– How long has the honorable senator known me ?
– Not very long.
– Evidently. If I were not an employer I should certainly be a trade unionist. Why should not men combine in their own interest? Trade unions have done a great deal to better the conditions of labour. I shall not detract from their value. As an employer I have had to work with unions, and have never experienced the least difficulty. Whenever I have met representatives of the union in my trade, we have been able to come to a satisfactory decision acceptable to both parties in a very short time. I believe that employers also should be organized, and that their organization and that of the employes should work together. As to preference to unionists, I would point out that, at present, members of unions do practically obtain preference in employment. If a nonunionist comes to me and asks to be engaged, I immediately advise him to join the union. As a rule the best men are membars’ of unions, and the good men do not experience much trouble in getting employment. Every employer wants the best men he can get to do his work. I asked Senator Long, while he was speaking, how many trade unionists there are in the Commonwealth. He did not know, but a member of his party informed me that there were over 300,000.
– There are more than 100,000 in New South Wales.
– What proportion is that of the whole number of the workers of Australia ? Does it amount to 25 per cent. ? If not, what right have 25 per cent, to secure legal preference over all the other employes in the Commonwealth? While I believe in trade unionism, I am sure that unionists have no right to say to nonunionists, “ We will not allow you to work.” But that is what preference to unionists means.’’ How will this principle of preference work? Will trade unionists refuse to work, or will they be forbidden to work, for a firm that does not belong to the employers’ organization? Because, unless there is also preference for unionist employers this Bill is a mere piece of humbug and pretence.
– The unionist will always give preference to the employer who will pay him best for his labour.
– I saw it stated in another place, when this Bill was under discussion there, that this principle of preference was to apply to both parties. But 1 do not see how it is to be of any benefit to an employer or an organization of employers.
– Not to the employer, because he is always looking for the cheapest man.
– That is a very uncharitable thing to say. I doubt whether the honorable senator believes that there is an honest employer anywhere.
– I have not met many of them.
– The honorable senator appears to hold the opinion that employers generally are a set of thieves, getting as much as they can and paying as little as they can.
– So they do.
– What good can employers expect to derive from “this preference provision?
– They will benefit through unionist workers refusing to work for nonunionist employers.
– I have known good trade unionists to accept work in a nonunionist establishment.
– That was to do a bit of good missionary work.
– I think not ; but we are really getting some information from a member of the Government at last. I am glad to see, however, that the Judge is to have the right to prescribe a minimum rate of wages, and to make provision for fixing it in such a manner as will permit of a living being earned by men who are not able to earn the amount fixed. It is an unfortunate and heartbreaking fact that very often, as soon as a man’s hair begins to turn grey his employer says that ‘he does not want him any longer. The conditions of trade are such that an employer is forced to get the best men he can. That is one of the cruelties of the competitive system under which we are living. Provision ought to be made for the case of these old workers.
– It always is made.
– I differ from the honorable senator.
– I have been a trade unionist longer than the honorable senator has, and I know.
– I was talking to a trade unionist a few weeks ago, and he said, “ If a man cannot earn the wage fixed he ought to go out of the trade and get a living elsewhere.” But if a man could not earn a living at the trade at which -he had been trained, how could he earn one at any other occupation?
– There are always exemptions.
– There are exemptions under the State Factories Acts in the case of old and infirm workers, but not, I think, for men who are merely slow.
– Yes, provision is made for them.
– It has been one of the cruelties of this class of legislation that it has led to men being turned adrift as soon as their hair turns grey.
– That state of things existed before there was arbitration legislation.
– We have a buggy boy in New South Wales who is 72 years old.
– And probably he can do his work as well as a- younger man. That has been my experience in my own business.
– Does the honorable senator pay an old man high wages if he is as competent as a younger one?
– I do so gladly. Why is it proposed to amend the principal Act in regard to the reasonable safeguard that was provided in relation to the grant of preference to unionists? I do not think that the Judge has used the powers conferred upon him unfairly. But suppose that trade union funds are used for political purposes? That will mean that coercion will be exercised upon those members of a union who do not agree with the majority. While unionism is good in many respects, it ought not to be in any way tyrannous, and, therefore, the Judge should be given power to act in accordance with the provisions laid down in the principal Act. I want to know how this measure is to be carried out. We are told that -this is merely a preliminary piece of legislation,and is to be followed up by the passing of a Bill whicli is to be submitted to a referendum, the object being to hand over to the Commonwealth Arbitration Court, not merely the power to deal with disputes extending beyond the limits of one State, but the regulation of the whole of the industries of the Commonwealth.
– Surely the honorable senator would not object to that if the majority of the people decided for it.
– I should have to bow to such a law, but I should certainly object to it. In Victoria there are 72 Wages Boards controlling the various industries of the State. In South Australia there is an increasing number of Wages Boards. There is an Arbitration Court in Western Australia. There is a mixed system of Wages Boards and Arbitration Court in New South Wales. There is industrial legislation in Queensland. ‘Every State of the Commonwealth, with the exception of Tasmania, has its own legislation. It takes all these Courts and Wages Boards in different parts of the Commonwealth to deal with industrial conditions. Yet the present Government propose that all this work shall be done by one Judge in one Court.
– We do not propose to abolish the Wages Boards.
– Not by means of the next Bill that is to be brought before Parliament, and afterwards to be submitted to a referendum?
– I am inclined to think that the idea is to sweep away all the legislation of the States on ‘the subject and put all the power in the hands of the Commonwealth.
– The honorable senator is in error, then.
– Why, then, does the Government wish to interfere?
– Because the States do not do everything they ought to do.
– Then why not pass a law to say to the States that they shall do what they ought to do, and if they do not comply, give power of appeal to the High Court? If a State refuses to pass the necessary laws regarding industries the High Court could take up the matter.
– Tasmania, has re» fused to pass industrial legislation.
– Then make a law applying to Tasmania.
– We cannot legislate for one State only.
– We can do everything if we get power from the people to do it, and the Government intend to ask for considerable powers. In my opinion, the Commonwealth should not interfere, in industrial matters, except through a Court of Appeal as between State and State. If that principle were’ adopted, I believe that we should carry on our industries much more amicably than we are likely to do if the whole of our industries are handed over to the care of the Federal Arbitration Court. I prophesy that this course, will simply result in putting the whole of the industries of the Commonwealth into a condition of turmoil, and that it will take years and years to get again into anything like a satisfactory system. What has happened already? Is it not a fact that, some time ago, the Arbitration Court of New South Wales was so congested that it had enough work to last two years ? If that be so in regard to one State, what is going to happen if the whole of this industrial business is concentrated in one Court?
– Lawyers are allowed in the New South Wales Court, where they keep up an interminable argument, and prevent business being done.
– Well, lawyers may be a bad lot, but we are very glad of their assistance sometimes, and always like to get the best we can. Whenever I have to take affairs into a Court I prefer to go under the wing of a lawyer, because I feel that he can do my business for me better than I; can do it myself. I say at once that I do not like these proposed enlargements of the powers of the Federal Court, and do not think that this Bill will work in the best interests of the industries of the Commonwealth.
– I am astounded that at this time ofday there should be any opposition to an attempt in this or in any other Parliament to extend the scope of an Act passed to secure the better control and guidance of industrial life. It has been admitted that the principle of arbitration for the settlement of industrial disputes has been evolved from the tyrannous action of those who in the past have had the control of industry. Little by little the struggle has been continued to discover a refuge in which men might shelter themselves from the injustice heaped upon them by such employers as those to whom Senator Vardon and Senator St. Ledger have referred.
– There are black sheep on the other side also.
– We cannot shut our eyes to the fact that there have been such employers, and there are some engaged in industries to-day. The duty devolves upon us as soon as may be, and bythe best means we can devise, to create some machinery to secure the greatest possible satisfaction to both sides in industrial life. We have aimed at that in providing for arbitration. I do not agree with Senator Rae as to arbitration. My ideal in industrial legislation is to bring about such a condition of affairs in industrial life that a strike would be a thing unknown, and a cessation of the wheels of industry would be impossible to contemplate.
– Strikes have done an immense amount of good.
– I am quite aware of that, but I am aware also that they have caused an immense amount of unnecessary suffering and starvation to the innocent. I say that there are more than two parties to an industrial dispute. That has always been my contention in advocating compulsory arbitration. If only the employer and the man he employs were engaged in an industrial fight,I should say, “Let them fight itout.” But they are not the only persons to be considered. There is another party deeply interested in the matter, and that party and its interests are recognised in this Bill. The intention of this legislation is to protect that third party from injury. That third party is the people, who are inconvenienced, injured, and wronged as a result of the action of the two disputing parties.
– Will this Bill stop a strike ?
– We are trying to prevent and stop strikes, and have been trying to do so for a very long time. We have realized that our existing legislation is utterly ineffective for the purpose we have in view. We must, therefore, have recourse to another measure, and must go a step further.
– How will this Bill prevent strikes?
– I think it will do a great deal of good, because it will extend the power of the Arbitration Court. I am sorry that Senator Millen is not present to listen to the statement of my view of the position he took up in this connexion. This Bill will extend the power of a Court in which the people of Australia have learned to have confidence. How has that confidence been established ? Senator Millen asks : Why this feverish anxiety on the part of the people to come under the jurisdiction of the Federal Court? The feverish anxiety is due to knowledge of the fact that the powers vested in the Federal Court give a wider field for the settlement of industrial disputes than can possibly be found in Wages Boards or Courts whose jurisdiction is confined to any one State.
– The States have supreme powers.
– We know the powers of the States, and we know that industrial disputes have occurred in various States which have extended so far as to demand interference for their settlement by a higher Court, and a more powerful tribunal than any established by a State. It is necessary to have a tribunal invested with the power to deal with such matters in the interests of the community as a whole. The question of preference to unionists need scarcely be further discussed after my honorable friends have dealt with it, but I wish to refer to the question raised as to whether the Court should have power to give preference to unionists that make a political use of their funds. Honorable senators have asked why that qualification is proposed to be struck out of the existing Act. I support its omission as proposedin this Bill for just the same reason as that which I had for fighting against its inclusion in the existing Act. As it stands it is practically an instruction to the Judge of the Arbitration Court to find out first of all what trade unionists are doing with their money. I contend that trade unionists have an unquestionable right to do what they please with their money, so long as they use it legitimately.
– ls it legitimate to fob a nian of his liberty?
– Is it legitimate for a union to spend its funds for political purposes? That is the question which the qualification upon the grant of preference in the existing Act raises. I say that it is. and if it were not all the employers in Australia ought to be in gaol.
– Suppose an organization decided to give money to Senator Vardon or myself?
– I should have no objection. I should merely say that, the honorable senators were very fortunate men. If the employers had spent money lavishly to secure my election as they did to secure the election of my opponents, I should not have tried to prevent them. Senator Rae stated the case fairly when he said that it is impossible to conceive of a useful trade union that is not also a political organization, and does not work on political lines.
– That is not the old trade unionism.
– It is the old trade unionism. It is the old trade unionism from which political trade unionism has gradually been evolved. In the early days when working men came together to talk over their grievances, they very soon realized that if there was to be no other place for them than the floor of their trade union hall, the possibility that they would ever be able to rise from a position of social dependence was so small as to leave them absolutely hopeless. The earliest pf our trade union champions very soon discovered that they must go further than that, and they did go further. How many thousands, nay how many millions of pounds have trade unionists in the Old World spent in order to reach the position in which they stand to-day? I think it was Senator St. Ledger who told us that in the old days trade unionists never attempted to attain the position which we have attained todav. But the honorable senator forgets that although they have advanced, they could not hope to succeed in advancing as far as we have done because of the circumstances in which they were placed. Whilst they may not have been in favour of compulsory arbitration as we are, they have been fighting for what they believe to be the best possible conditions in industrial life. In the Old Country even now, where voluntary methods are adopted for the settlement of industrial disputes, the conditions are altogether different from those which obtain in Australia. Working men in the Old Country are in close touch with those by whom they are employed. In Australia they are on the opposite bank of the river. Sometimes the employer for whom an Australian workman labours lives in London. The Australian workers are like machines working for other machines, a little stronger than themselves. There is here no feeling of real sympathy between employer and employe:, such as exists in the Old Country, where voluntary methods for the settlement of disputes have been successful. I am glad that this Bill has been introduced, and that the Government have been alive to the necessity of remedying the defects which have been discovered in the existing Act.. I shall hail with great satisfaction the time when we shall be able to say that by efforts of one kind and another we have reached such a position that industrial disturbances, should they arise, will be very quickly settled in Australia.
– I rise to make a very short speech indeed. My object is to say why I support this Bill. Senator Vardon, who, I see, is smiling, is a great States Righter, but he has overlooked the influence of the Legislative Council of South Australia. When both the Legislative Assembly and Council in that State passed an Act to provide for Wages Boards the Council refused for five years to confirm the regulations required to bring the la.w into force.
– That was not mv fault.
– The honorable senator magnified the South Australian Legislative Council, but I say that it stands in the way of progress. It is because it has chosen to take up that position that we should assume the power to deal with industrial affairs.
– The honorable senator was a good old Tory where the agricultural industry was concerned.
– I am to-day. When before the electors of South Australia, I said that I did not believe in the eight hours’ system as applied to farming. I said that it would be impracticable, and that, if returned, I would oppose it.
I take the same stand to-day. I told the people at the meetings I addressed, even in the park lands of the city of Adelaide, that I was a Labour man, but I was also a farmer, and that the interests of the farming community would have my consideration and support first and last. I can tell Senator Vardon about his connexion with a certain newspaper, which before the election took place published the statement that William Russell was so cocksure of being elected that he had already made arrangements for his family to live in Melbourne.
– Will the honorable senator tell me what paper did that?
SenatorW. RUSSELL.- The Critic, with which the honorable senator used to be connected.
– When Iwas before the electors I said that if it were necessary for a Wages Board to be appointed in connexion with the farming industry, I should be willing to agree to its appointment ; but my practical experience taught me that in farming an eight-hours day is out of the question. I have been for many years both a farm labourer and a farmer employing labour. I do not like to hear my honorable friends on the other side say that there are no good employers. I believe that Senator Vardon is a good employer - at any rate, he has that reputation - and I also claim to be a good one. I want to mention some of the difficulties which I experienced when I was fanning. Of course, we had no Wages Board, or Arbitration Court. About 4 o’clock in the afternoon on a nice hot day, whenI had several hundred acres to reap, my men came to me and said, “ Boss, if you do not give us an increase of pay, we will not take out the reapers to-morrow.” I had to pay the increase to them, because it would not have paid me to do otherwise. If we had a Wages Board to make employers toe the mark and do justice to their men, and at the same time compel the men to do their best, it would be far better. I see my way quite clearly in this matter. The introduction of this reform is the best thing which could happen to the farming industry. At the time to which I refer, if one employer happened to give an increase of pay, the news was soon circulated and, wherever I went, I would hear of what he had done. It caused trouble in the district. If there had been an organized body to which we could have appealed then the difficulty could have been got over. We have heard a good deal of argument to the effect that it is not right to bring politics into these organizations. I have never been connected with a workers’ union, although I belong to the Labour party. I admit that unionism is a good and necessary thing. The ‘workers gain much by it, and I hope that they will gain much more. I notice that Senator Vardon is very careful to protect his own class. So far as boycotting is concerned I have been boycotted, because I took a certain stand in reference to politics. I know that a large sheepfarmer in the neighbourhood of Jamestown went into a blacksmith’s shop and a wheelwright’s shop, and said, “I want to know what your politics are ; if you belong to the same side as I do - that is the National League - I will bring all my work to you; but if you do not, you shall get no work from me,” and he did not. I have known men to lose their employment by reason of the politics which they favoured. To-day, in Adelaide, many young men who are not getting a fair living wage dare not lift their hands or raise their voices in their own interests. I admit that the position is not so bad now as it was a few years ago, but it is bad enough. For instance, boys who enteroffices to do a lot of hard clerical work are allowed only 5s. a week and keep themselves.
– And they are not allowed to get married.
– How could they get married on that sum?
– How did they find the necessaries of life for themselves.
– I know something about that. I have some boys, and I have to provide for them. If they had not had a father or somebody else to fall back upon, goodness knows what they might not have done. That is the position, and that is what we want to remedy. The other side is continually crying out, “ Leave politics alone.” But what do they do? When I was a candidate in the first instance, a countryman came to me and said, “ Russell, I wantyou to ‘ gie ‘ up the Progressive Land Tax.”‘I said, “I cannot; if you touch my principles you touch my life.” “ Mon,” he said, “You are no Scotchman; you are a Glasgow Irishman, and a d– turncoat.” Even in Jamestown, whereI live and farmed for years, the storekeepers who dared to encourage Labour candidates, to support them, or to vote for them, were boycotted by the National League. I have no wish to prolong the debate, but in the circumstances I could not refrain from expressing my views upon this question. I shall, with the greatest pleasure in the interests of humanity, vote for the second reading of the Bill, and support it through all its stages, notwithstanding all the confusing and peculiar addesses which I have heard from Senator St. Ledger and others.
.- I do think that we can congratulate ourselves upon the important change which the Government have made in the Bill since it was introduced, and that is in leaving the preference to unionists optional. I think that for that change, which has relieved the people of this country very much, the Government should be very thankful to the Opposition who pointed out the dangerous course on which they were going. But the fact that the provision was included in the Bill shows the spirit of its framers. We hear it repeated in places that this is only an instalment of what we are to get by-and-by. I have no doubt that if it is passed, other measures of a still more drastic character will be brought down. All this is part of the squeezing process which is leading us on to unification.
– There is not much harm in that.
– I am glad to hear that admission. Of course we could scarcely expect anything else, because the majority of our honorable friends on the other side were not in favour of the Federal Constitution Bill. Most of them, I believe, were anti-Billites, when it was submitted to the people for their acceptance. They were unificationists then, and, of course, it is to be expected that when they have an opportunity, as they now have, they will try to bring about the condition of affairs which they desired at that time. This is part of the process by which it is to be brought about. They could not stop Federation from coming, and now that they think they have the opportunity, they are going to do their best to destroy it. I believe that this Bill will be unworkable. I agree with Senator Vardon that it would be absolutely impossible to get any man who could administer the measure as it ought to be administered. The angel Gabriel himself could not deal with the various conditions of industry in this enormous continent. It is quite impossible for any one man with the wisdom of Solomon to sit on a bench and profess to do justice under such a measure. He would not be physically able to do it, even if he had the mental capacity. In Victoria we have seventy-two Wages Boards whose time is wholly occupied in keeping the wheels of industry going without friction.
– This Bill will not abolish them.
– No, but it will supersede them to a great extent and bring about a conflict between the State and Federal authorities, which will in time tend to destroy Wages Boards. Since their introduction here in Victoria I suppose that the wages of Victoria have increased by£500,000, and we find scarcely anything in the shape of industrial strife. That is our condition here to-day. Things are working well, wages have been raised, conditions of employment have been enormously improved, and why should we bring in any provisions which would interfere with such a beneficent state of affairs and destroy the Wages Boards of which we are so proud ?
– It will not do anything of the kind.
– It will work in that direction. We know that the Labour party do not like Wages Boards.
– Who told the honorable senator that?
– I have seen it in print over and over again. They try to destroy Wages Boards.
– The honorable senator is making a rash and unjustifiable statement.
– I have seen it in print over and over again that the Labour men are not in favour of the Wages Board system.
– Well, I never saw that in the press.
– I did, over and over again. We are told that this measure will make for industrial peace. In my opinion it will make for industrial strife and hatred. The provisions which allow the President of the Court to deal with a threatened, or impending, or probable dispute, will tend to keep organizations and trades in a state of continued ferment in seeking an opportunity to go to the Court on the chance of getting better conditions. 1 do not believe that it will make for that industrial peace which our honorable friends on the other side anticipate from it. There is a provision which eliminates from the principal Act the exemption of rural industries. They were exempted because it was felt that we could not apply this kind of legislation to them.
– But experience has shown us that we can.
– Yes, and Senator. W. Russell, who is a farmer, has been bold enough to express his opinion to that effect. He says that you cannot bring them under the eight hours’” system.
– The” Bill does not bring them under that system.
– The rural industries stand on an entirely different footing from the industries of the city, because they are the sport of the seasons. Farmers have no certainty as to what their results are going to be. It will depend upon the season whether their’ results are good or bad. They cannot lay down any plans and say that they are going to improve their condition during the year. I represented agriculturists for nearly twenty-five years. I have seen them struggling year after year with wheat at is. c-d. or 2s. a bushel, and though they have good years “ occasionally, we know very well that, taking them on the whole, they cannot depend upon their income in the same way as a business man can. While every one of the changes that we make do good to certain persons, that good is perhaps not alto.getther unmixed. It is raising the remuneration of many people, and, so far, I do not object to it. At the same time it is raising the cost of living, and that is why city industries differ from rural industries. A man in the city can pass the extra expense on to the public.
– .Does not the honorable senator think that the Court will take these differences into account?
– I am not certain. I do not think that we should trust the Court to do so. The shopkeeper who finds that he has to raise the wages of his hands simply puts so much more on to the price of the commodities which he has to dispose of. The manufacturer who finds himself in a similar position increases his prices. But the man on the soil cannot do that. His market is the world, and as regards his staple products he is ruled, not by the price which he can get here, but the price which obtains in Paris, London, or New York. Therefore he cannot pass on the extra cost of his productions as the city man can. It is only fair ‘ that the proposed restrictions should not be imposed upon diem, seeing that their conditions industrially are so different from those of others. I am sure that if these restrictive conditions are imposed they will only be the beginning of others. We shall have by-and-by the union label and the farmer will find that unless he employs union labour his stock, wheat, and other things will not be handled. In San Francisco I have seen the union label applied to men and to goods. I know what tyranny it sets up in the town. I have always held that we have no right to bring rural industries under the Arbitration Court. I would not object so much to Wages Boards, because that is the fairest system we can possibly have. It is an ideal system by which the employers and the workmen in an industry can come together. I entirely differ from Senator Henderson, who said that he did not know of many honest employers. That is, I think, a slander on the employers of Australia. Perhaps there are not many employers among the Labour party. They. do not put out their money in that way. They do not take any risk, but that is no reason why they should slander those who are finding work for the people of this country. Therefore, I think that we should continue the exemption of the rural industries from the operation of the Act. Attempts are being made from, the Trades Hall to have export duties put on rural products. Export duties have been proposed on hides, skins, greasy wool, and wheat; and before long, I have no doubt that we shall have a proposal for an export duty on dairy stuff. This shows how the farmer is going to be squeezed, unless he strongly protests against the tyranny that is going to be put upon him. His market is the whole world, and the Trades Hall would stop him from getting there.
– Whoever proposed an export duty on wheat?
– The Trades Hall have advocated it.
– That is not correct.
– What did the Minister of Trade and Customs say, in reply to the request?
– He said he would consider the question.
– He said that he would refer it to the Cabinet.
– And the Cabinet will do what the caucus tells it to do.
– The honorable senator had to do that last session.
– The honorable senator is too old to talk such nonsense. We have heard a great deal about the tyranny and boycotting of employers. I do not think that there is much of that sort of thing nowadays. In fact, employers dare not do it. But I have seen the boycotting by working men of their fellow working men, simply because those boycotted had an opinion of their own, and dared to express it. I have seen small storekeepers boycotted by working men because they did not support a certain political candidate. That sort of thing prevailed throughout the country. The boycotting now is done by those who were formerly the strongest in their denunciation of boycotting. These things will not make for industrial peace, but for strife and class hatred. Men are to be compelled to join unions. Why are the supporters of the Government adopting that policy? Simply to make their own position secure. They know that if men join unions, they will have to vote in a certain way, and will have to subscribe to matters in which they do not believe. A man may be a teetotaller, but if the union takes up “ the Trade “ that man will have to go with it. For years the attempts made to bring the Miners’ Union into the political organization of the Labour party failed. But at last they were successful, and now the miners are compelled, not only to belong to’ the union, but to support the political candidates of the union, and if they do not, they are branded as non-unionists, and their fellows refuse to work with them. Why should we give parliamentary sanction to conduct of this description? I trust that, at any rate, the principle of preference will not be extended to the rural industries. Honorable senators should recollect that the farmers are shaking themselves up, and that at the next election they will make their power felt.
– They shook themselves up on the 13th of last April.
– We cannot look upon farming as we can upon city industries, and should give all our rural industries special consideration. If they are to be brought under regulation, let the object be secured by means of Wages Boards, so that the farmers themselves will have a voice in the settlement. As to the provision regarding permitting lawyers to appear, it is to be noticed that the VicePresident of the Executive Council has sug gested an amendment by which agents of organizations will be allowed to appear before the Court. If that is to be done, what is to stop the employers’ organization from employing a solicitor as secretary? What is to prevent the unions from doing the same? The suggested amendment will simply nullify the existing provision of the Bill. So far as expense goes, we have already had an example of a union officer appearing in Court and getting £5 5s. a day for his services.
– He did not get the fee.
– But he demanded it. It would be much more economical to employ lawyers.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clause 1 agreed to.
Clause 2 -
Section four of the Principal Act is amended -
by inserting in the definition of “ Employee “, after the word “industry”, the words “and includes any person whose usual occupation is that of employee in any industry ; “
by omitting therefrom the definition of “ Industrial dispute “ and inserting in its stead the following definition : - “ ‘ Industrial dispute ‘ means an industrial dispute extending beyond the limits of any one State and includes - (l.) any dispute as to industrial matters arising between an employer or an organization of employers on the one part and an organization of employees on the other part, and (11.) any dispute in relation to employment in an industry carried on by or under the control of the Commonwealth or a State, or any public authority constituted under the Commonwealth or a State, and (111.) any threatened or impending or probable industrial dispute
by inserting in the definition of “ Industrial matters “ at the end thereof the following words “ and includes all questions of what is fair and right in relation to any industrial matter having regard to the interests of the persons immediately concerned and of society as a whole;” and
by omitting from the definition of “ In dustry “ the words “excepting only persons engaged in domestic service, and persons engaged in agricultural, viticultural, horticultural, or dairying pursuits” and inserting in their stead the words “ and includes a branch of an industry and a group of industries.”
– Sub-clause 11. of paragraph b is virtually a repetition of a section of the principal Act, with the exception that the words specifically referring to State railway servants are included. It seems to me to be ridiculous and the height of hypocrisy to repeat that section, in view of the decision of the High Court in the railway servants case. There was a clear declaration of the Court that in that section we had exceeded the powers conferred upon us by the Constitution. It may, or may not, be desirable to widen the Constitution, but in view of the fact that the section to which I have alluded was declared ultra vires, it is simply hypocrisy to repeat it in this Bill. There can be no advantage to any one in doing so. The provision to. which I allude has merely been put in for the purpose of raising false hopes. I trust that the Chairman will put the paragraphs of the clause separately, so that we may take a division upon them.
– I shall put the paragraphs separately.
Paragraph a agreed to.
– I draw attention to the fact that paragraph b is divided into three subdivisions. I intend to ask the Chairman, in fairness, to give honorable senators an opportunity of voting aye or no upon those subdivisions. Personally, I intend to vote against the second one, because it seems to me to be merely a beating of the air. As fa’r as I can see, it is nothing better than a placard or an invitation, not to industrial strife, but to litigious strife.
– I shall put the subdivisions of paragraph b separately in response to Senator Keating’s request.
– As the Government do not seem inclined to consent to report progress, I shall take advantage of the opportunity to quote the whole of the judgment of the High Court on the matter affecting State and Commonwealth instrumentality. After the decision of the Court in the case of D’Emden v. Pedder, another decision was given in the case of the Amalgamated Railway and Tramway Servants. The Court took the greatest care to instruct and guide Parliament as to the limits of its jurisdiction. All of the Justices of the High
Court gave the most elaborate care and attention to every aspect of the question. A grosser attempt to flout the Court, which is the guardian of the Constitution, was never made in any legislative .chamber than that which is now made by the VicePresident of the Executive Council. What would be thought of either House of the Imperial Parliament if, when legislation was being passed, the members said, “ We do not care a button for the decisions of the House of Lords. We shall legislate as we please, just the same?” We know that members of the Imperial Parliament would respect the jurisdiction of . the House of Lords ; and, if they wished to alter one of its decisions, would introduce a measure expressly for the purpose.
– We cannot do that here.
– I was just about to say so. We have a written Constitution interpreted by the High Court. We are bound by the decisions of that Court, unless we alter them by the constitutional means provided. This must be so, or we should have no guiding hand. No one in Australia would have agreed to Federation if it had not been believed that the High Court would be supreme within its domain, and that its decisions would stand until altered by the constitutional methods provided. When the VicePresident of the Executive Council admits that if is intended that this Bill shall affect State public servants, and is told that that is opposed to a decision of the High Court, he says, “ A fig for the High Court and all its decisions. I shall go on all the same.” Are honorable senators going to stand that kind of thing? Are they to be driven to legislate despite the Constitution ? Are we, to use a phrase in use in South Africa, to be “ sjamboked “ into legislation?
– On a point of order, I wish to know whether Senator St. Ledger is in order in spreading himself in the way he is doing at present in discussing a clause of this Bill ? He began with a lecture to the Vice-President of the Executive Council, and has rambled into many other matters. I wish to know if he is in order, because, if he is, other honorable senators may desire to follow the same course.
– I submit that the honorable senator is perfectly in order. He is pointing out that in this instance we are being asked to do something which as a number of the members of the Committee are aware the High Court has told us we ought not to do, and his reference to South Africa was merely to ask whether we are to be flogged and driven into it.
– I take it that the honorable senator is trying to show that the High Court has ruled that it is not constitutional to bring State servants under the Federal Arbitration Act. I do not think that he has so far diverged as to justify me in ruling him out of order.
– I maintain that the attitude of the Government in this matter can only be described by an expression which is often used against honorable senators on this side. It is coercion of the worst type. The action taken by the Government in trying to force this Bill through is a menace to and coercion of the High Court itself. Honorable senators opposite often say that all parties should be. made to obey the law. We have in this matter, upon a provision analogous to one which appears in this Bill, had a direction from the High Court that it is unconstitutional. How can we ask the people to obey the law, and respect it at all hazards, when the Government of the Commonwealth asks honorable senators to treat an established law of the Commonwealth as not worth the paper on which it is printed ? We have had the admission from the VicePresident of the Executive Council that a blind man might see that the Government desire, in this Bill, to include the railway servants of the States; but the honorable senator says that it does not matter what the High Court decides. Nothing could be more reprehensible than that the Government of the Commonwealth should tell the Senate; which is one of the most important legislative bodies in the world, that they “ do not care a fig “ for the decision of the High Court, which is intended to be the guardian of the liberties and rights of the people. In order that the Committee and the country may realize the effect of that decision, I shall proceed to read the judgment in the case. ‘ The parties were the Federated Amalgamated Government Railway and Tramway Service Association, appellants, and the New South Wales Railway Traffic Employes’ Association, respondents. The case is set out in 4th Commonwealth Law Reports, at page 488. The head note is -
The Constitution (63 and 64 Viet., c. 12), sections 51, 98, 101, 102, 104 - Validity of Commonwealth legislation - Interference with State instrumentality - Limited power - Validity of
Act going beyond power - State railways - Regulation of wages and conditions of employment - Jurisdiction of President of Commonwealth Court of Conciliation and Arbitration - Appeal from Registrar - Stating case - Commonwealth Conciliation and Arbitration Act 1904 (No. 13 of 1904), sections 2, 4, 6, 17, 18, 19, 23, 24, 28 to 31, 40, 48.
Many of those sections are the subject of this amending Bill -
The rule, laid down in D’Emden v. Pedder, 1 C.L.R., 91, at page 111, namely, that when a State attempts to give to its legislative or executive authority an operation, which, if valid, would fetter, control, or interfere with the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Constitution, is to that extent invalid and inoperative, is reciprocal. It is equally true of attempted interference by the Commonwealth with State instrumentalities. The application of the ruleis not limited to taxation.
Section 51 (xxxv.) of the Constitution does not either expressly or by necessary implication authorize such an attempt.
The question was often argued in America whether railways, which in that country are held by private companies, were or were not State instrumentalities. Many learned lawyers have argued before the Supreme Court of the United States that they are State instrumentalities, despite their private ownership, whilst others have contended that they are not. There can, however, be no doubt that, inasmuch as all the railways in Australia are owned by the States, they are State instrumentalities in this country.’ I believe that the American case bearing on that point was mentioned in our own High Court, and the High Court decided that a State railway is a State instrumentality within that rule.
– I rise to a point of order. I submit that the honorable senator is guilty of tedious repetition. For the past ten minutes he has been using the phrase “ State instrumentalities,” and if he continues in that strain his speech may last for all eternity.
– I rule that, so far, the honorable senator has not been guilty of tedious repetition.
– The report goes on to say : -
The legislative authority of the Commonwealth Parliament under the powers contained in section 51 (i.) and 98 of the Constitution -
Paragraph 1 of section 51 of the Constitution contains that provision regarding peace, order, and good government which was referred to by the Vice-President of the Executive Council, while section q8 enacts that the Commonwealth legislation shall be supreme, wherever there is a conflict between State and Commonwealth legislation on a subject upon which this Parliament has power to legislate - so far as regards wages and terms of engagement, does not extend further than to prohibit, for causes affecting Inter-State traffic, specific persons from being employed in such traffic.
On that point it is yet an open question whether that authority extends so far. The next head note is as follows : -
When in the attempted exercise of a power of limited extent an Act is passed which in its terms extends beyond the prescribed limits, the whole Act is invalid, unless the invalid part is plainly severable from the valid.
Thus, if a section of this Bill, when it became an Act, were brought before the High Court, and part of it could be argued to be valid and part invalid, if the two portions were inextricably mixed together, the whole Act would have to go. The report continues -
Held, therefore, that the Commonwealth Conciliation and Arbitration Act 1904, so far as it purports to affect State railways, is ultra vires and void, and, consequently, that an organization consisting solely of employees on State railways was not entitled to be registered under that Act.
Possibly the Vice-President of the Executive Council did not appreciate my remark as to trie utter uselessness of attempting to deal in this way with State railway employes and their associations, but after hearing that clear and distinct pronouncement of the law by the High Court, he may, perhaps, see reason to alter his opinion. As to the general powers of the Arbitration Court-
The President of the Commonwealth Court of Conciliation and Arbitration, in hearing an appeal under section 17 of the above Act from the decision of the Registrar granting an application to register an organization, is acting as the Court.
The term “ proceeding before the Court “ in section 31 (2) of the above Act includes every matter brought before the President in the exercise of the judicial functions conferred upon him by that Act.
Those principles having been laid down, the head note says -
Held, therefore, that, on the hearing of an appeal from the decision of the Registrar granting an application to register an organization, the President may state a case for the opinion of the High Court.
It was thus laid down clearly that on matters of law the officials, and even the President of the Arbitration Court were wholly and entirely subject to the jurisdiction of the High Court. The case went through various stages, and each issue involved, inasmuch as it raised important questions of law, had to be considered by itself. A subsidiary point cropped up, and that had to be decided before the Court could get to work upon the main issues. Let me read now from the judgment of the Chief Justice -
This matter came before the Court as a case stated by the President of the Commonwealth Court of Conciliation and Arbitration under section 31 of the Commonwealth Conciliation and Arbitration Act 1004. The New South Wales Railway Traffic Employees Association are an association within the literal meaning of that term as defined in section 4 of the Act, which defines “Association” as meaning “any trade or other union, or branch of any union, or any association or ‘body composed of or representative of employers or employees, or for furthering or protecting the interests of employers or employees.”
– We ought to have a quorum present, as this is a very important subject. Q110rum formed?^
– The judgment proceeds^ -
They made application in due course tn the Registrar of the Arbitration Court for registration, and their application was opposed by the Federated Amalgamated Government Railway and Tramway Service Association, on various grounds, but the Registrar intimated that he would grant the application. The opponents then appealed to the President against his decision. Upon the hearing of the appeal it was objected, amongst other objections, that the applicants, being an association of State railway servants, could not be registered under the Act, and that the Act, in so far as it purported to include State railway servants within its provisions, was ultra vires and void.
There was a long fight in this Parliament over the attempt to bring railway servants within the Bill, and it was said then that such a provision would be held to be’ unconstitutional. Despite that warning, the provision was inserted, and it was held by the High Court to be unconstitutional -
The President, treating the objection as a question of law arising in a proceeding in the Arbitration Court, stated a case for the opinion of this Court.
This is a very important portion of the judgment of the Chief’ Justice, who held that the President of the Court had a right to refer the matter to the High Court for decision -
The point so stated arises under paragraph xxxv. of section 51 of the Constitution, under which the Commonwealth Parliament has powers to make laws with respect to “ Conciliation and Arbitration for the prevention and .settlement of industrial disputes extending beyond the limits of any one State,” and section- 4 of the Commonwealth Conciliation and Arbitration Act 1904, which defines an industrial dispute for the purposes of that Act as “ including disputes in relation to employment upon Slate railways.”
Honorable members will see that the very point before us now was dealt with in this judgment by the High Court. The Chief Justice continued -
I here can be no doubt that this is a question of law, nor that it is a question of great importance. But it is objected that it is not a question arising in a proceeding before the Court, and that the President has therefore no power to state a case with respect to it, and that this Court has no jurisdiction to hear such a case.
It was” contended in the Conciliation and Arbitration Court, as possibly it may be contended again under, perhaps, more favorable auspices, that that Court was beyond the control of the High Court. I am inclined to think that our honorable friends opposite would like to make the Conciliation and Arbitration Court absolutely independent of the High Court.
– The honorable senator should not give us these valuable legal opinions without a fee.
– I am glad of that interjection, because it enables me to clear up a misconception. I am not putting my own opinion’ before the Committee. I should: not venture to do so.
– It would not be worth much.
– I have guardedly expressed my view once or twice on constitutional questions in the Senate, and it so happens that I have been right when eminent lawyers coming here with a big reputation have been wrong.
– So much the worse for their reputation.
– They happened to be wrong. I am not expressing my own opinion. I am reading a judgment, and I hope that Senator Givens will understand the difference between a judgment and an opinion.
– Between an opinion which is not binding upon any one and a decision of the Court, which ought to bind us.
– Quite so. If this were a mere opinion, then the VicePresident of the Executive Council could snap his fingers at it. The judgment of the Chief Justice continues -
It is contended that the President in hearing an appeal from the Registrar, is not acting as the Court, but in the exercise of a personal authority conferred on him as President of the Court, and .that, so acting, he constitutes a different and separate tribunal, to* which the power to state a case for the opinion of the High Court does not attach. Section u of the Act provides that there shall be a Commonwealth Court of Conciliation and Arbitration which shall be a Court of record and shall consist of a President.1’ Division n of Part III. of the Act, headed ,: The Jurisdiction of the President and of the Court,” comprises three sections, the first of which (Section 16) charges the President with certain extra-judicial duties by way of mediation, to which it is not necessary to refer. Section 17 provides that - “ The President may review, annul, rescind, or vary any act or decision of the Registrar in any manner which he thinks tit;” and section iS provides that - ‘ The Court shall have jurisdiction to prevent and settle, pursuant to this Act, all industrial disputes.” In my opinion, notwithstanding the difference in language between sections 17 and iS, the duty of the. President under section 17 is judicial and not Ministerial. It is a duty cast upon him as the President and sole member of the Court constituted by the Act. I cannot accept the suggestion that in the discharge of this duty he is exercising a jurisdiction conferred upon him personally as distinguished from the Court.
– I should like to know. Mr. Chairman, whether the honorable senator is going to connect this judgment with the clause under consideration?
– I take it that the honorable senator will try to connect the judgment with the question before the Chair.
– It is connected with it, sir, although it will take me some time to reach that part of the decision which deals with the point that is really in dispute now, and which has already been decided against this Parliament.
– The honorable sena.tor says that we are really enacting a lawsuit.
– No; but I am inclined to think that the Government are lending themselves to an idle farce. The judgment continues -
The only question that remains is whether an appeal from a decision of the Registrar is a “proceeding before the COUrt” within the meaning of section 31, sub-section (2). Section 54 provides that the Registrar shall keep a register of all organizations registered under tlie Act. Section 55 provides that certain specified associations may, on compliance with the prescribed conditions] be registered as organizations. Section 60 requires the Registrar, if it appears to him that certain conditions exist in tlie case of any registered organization, to make application to the Court for the cancellation of the registration. One of them is that the organization has been registered erroneously or by mistake. If the Registrar on application to him refuses to apply to the Court for the cancellation of the registration of an organization, the Court may, on the application of any person interested, order the registration to be cancelled. There can be no doubt that an application to the Court under this section is a “proceeding before the Court” within the meaning of section 31, sub-section (2).
– I again ask, Mr. Chairman, whether the registration of an association has anything to do with clause 2 ?
– Before you decide that point, sir, I think we ought to have a quorum.
– Should I be in order, Mr. Chairman, while the quorum is being formed, in directing attention to the fact that, before calling for a quorum, Senator Millen signalled to one of his followers to walk out? I wish to direct attention to that fact, in order to show the unionists of Australia that the first “ stone- wall “ to be put up in the Senate is put up against them.
– That is absolutely incorrect; but it is worthy of the honorable senator.
– There is now a quorum present.
– I contend, Mr. Chairman, that the question of the registration of unions, whether it is dealt with in the report of a judgment or in Holy Scripture, has no relation to clause 2.
– I have been waiting for some minutes to see whether the honorable senator intended to connect his remarks with that part of the clause now under consideration. I ask him to keep as close as possible to the question immediately before the Chair. It seems to me that when interrupted he was not quite within our Standing Orders.
– I understand you to say, Mr. Chairman, that you had been waiting for some time to enable Senator St.’ Ledger to state his point, and that he had so far failed to do so.
– Is the honorable senator taking another point of order?
– I have ruled that Senator St. Ledger, though close to the margin of irrelevancy, is in order, and my ruling cannot be discussed unless it is proposed to take exception to it in accordance with the Standing Orders.
– If the amendment be agreed to, the State railway servants must again form themselves into organizations and apply for registration, the question with which the judgment deals. I thought that that was abundantly evident. To continue the quotation -
If the objection now under consideration is a good one, the only result would be that the President, if he desired to obtain the opinion of the High Court, would formally affirm the decision of the registrar granting registration, where upon the objector or appellant (whom I assume to be a person interested) would apply to the registrar to make application for cancellation of the registration, and then, whether the registrar made that application or not, the Court would deal with the matter and obtain the opinion of the High Court on a case stated.
– I wish to know what this has .to do with the clause before the Committee?
-Colonel Sir Albert Gould. - The question is, Does the judgment affect the clause it is proposed to amend? What we have under consideration is our constitutional power to bring under the arbitration of a Commonwealth Court any dispute in relation to an industry carried on under the control of a State. Before such a dispute could come into the Commonwealth Arbitration Court, the State employes affected would have to go before the Registrar, and Senator St. Ledger is quoting the ruling of the High Court in a case in which the railway servants of a. State wished to go before the Arbitration Court. Surely, then, he is in order.
– He is dealing with the question of registration.
-Colonel Sir Albert Gould. - We are considering the right of this Legislature to interfere with a State-owned enterprise, and however tedious the reading of the judgment may be, the honorable senator is clearly in order in quoting, as applicable, the arguments of the Chief Justice of the High Court.
– Although some honorable senators may be impatient at the length of the judgment which is being read, it refers to the constitutional right of the Parliament to bring the employes of a State-owned service under our legislation, and I do not feel justified in ruling him out of order for so doing.
– Tn continue my quotation -
The point raised, therefore, is purely one of form, and involves no question of substance. If necessary, I think that the present case should be regarded as an appeal from a refusal to the registrar to apply for cancellation of the registration of the applicant association. But I do not think it necessary to have recourse to this fiction. The term “ proceeding “ is a term of very wide application. In my opinion the term “proceeding before the Court” includes every matter brought before the President in the exercise of the judicial functions conferred upon him by the Act.
I think also that the objectors, who were an association of persons in the railway service of New South Wales, were persons interested, since the registration of the applicants might, under section 59, have deprived them of a right of registration, which possibly they might have had.
I think, further, that the objection, being one to the status of the applicants was, in effect, one to the jurisdiction of the Court itself, and that such an objection may with the sanction of the Court be made by any person if only as amicus curia. (See Corporation of London v. Cox (1).)
It was further objected by the applicants that the question sought to be raised is as to the validity of an Act passed by the Commonwealth Parliament, and that the Court will not in its discretion decide such a question, or even allow it to be raised, except in a litigation between parties in which the point is necessarily and distinctly raised. Without disputing the general proposition, I do not think that it applies to a case in which the Court is asked to exercise a jurisdiction the existence of which depends upon the constitutional validity of the Statute in question. A point of jurisdiction, when it is seriously raised, or if it suggests itself to the Court without being taken by a party, cannot properly be disregarded. Nor is a Court justified in making an order which it has no jurisdiction to make by the mere fact that no objection is offered.
For these reasons I am of opinion that the objections taken by Mr. Shand to the hearing of the case were untenable.
BARTON, J- I concur.
O’CONNOR, J- There is nothing in the preliminary objection. The Act no doubt distinguishes between the cases in which the President acts ministerially, as in mediating between industrial disputants not judicially before him under section 16, or in annulling some act of the registrar under section 17, and the case in which he acts judicially. But Mr. Shand’s objection is founded on the view that the President has two separate judicial capacities, one as President constituting “ The Court “ as described in the Act, the other as President acting judicially in those matters which the Act expressly empowers the President to deal with. It must be admitted that in the latter case equally as in the former the President constitutes a judicial tribunal - but it is contended that in the former case that tribunal is “ The Court,” and in the latter it is not “The Court” but another tribunal, which is described as “ The President.” There is only one judicial tribunal constituted by the Act. Section 4 defines “The Court” as “ The Commonwealth Court of Conciliation and Arbitration constituted pursuant to this Act.” The’ Court is constituted by section n in the following words : - “ There shall be a Commonwealth Court of Conciliation and Arbitration, which shall be a Court of Record, and shall consist of a President.” Whenever the President sits judicially he constitutes “ The Court,” and he cannot sit judicially without constituting “ The Court.” There is no warrant in the Act for the contention that the President sitting as a tribunal hearing one class of judicial proceedings is “ The Court,” but when sitting as a tribunal hearing another class of judicial proceedings he is not “ The Court.” Reference was made to section 32, which enables certain matters to be decided by the “ President sitting in Chambers.” A Court, ordinarily speaking, conducts its business in public - but it has always been the practice in the several jurisdictions of the Supreme Court for Judges, when they so deem it advisable, to deal with a class of proceedings mentioned in section 32 in Chambers, either in public or in private. It is to make it quite clear that this method can be followed in the Federal Arbitration Court that similar Dower has been expressly conferred on the President by that section. But whether the President sits in Court in the ordinary sense of the word or in his own chambers under that section, he constitutes the Court under the Act. In other words, whenever the President sits judicially he constitutes the Court, and as he sits judicially in reviewing under section 17 a decision of the registrar, the proceeding on that review is a “ proceeding before the Court “ within the meaning of section 31, and he may state a case for the opinion of the High Court on any question of law arising in that proceeding. As to the other matters mentioned by my learned brother the Chief Justice, I entirely agree with his observations.
The case had to be taken through a number of other stages, with which I shall not trouble honorable members, before judgment was delivered by the Chief Justice on the main issue. It is almost certain that if the clause is passed the same questions will be argued again, and similar proceedings will be taken.
– But what is the value of this long quotation of the judgment?
– To remind the Committee that it is knocking its head against the judgment of the High Court.
– Have we not had an opportunity to read it?
– I should think, from the remarks of the Vice-President of the Executive Council, that honorable senators have not had an opportunity to read it, or, if they have read it, they have not appreciated it.
– The honorable senator is doing his best to obstruct the business of the Committee.
-Colonel Sir Albert Gould. - No honorable senator is in order in charging another with obstruction.
– I have got from the honorable senator the confession that he is deliberately obstructing the business of the Committee, and the Standing Orders proride that any ohe who does that may be dealt with. Once it is made evident that a member is acting in such a manner as to prevent the proper conduct of the business of the Committee, it is the duty of the Chairman–
– Is this the “gag?”
– No. The “ gag “ will never be imposed with my sanction. I hope, Senator O’Keefe, you will not regard it as dictating how you should perform your duty if I say that I think you ought to. protect the Senate against any attempt at obstructive tactics on the part of any senator.
– Is the point of order that Senator St. Ledger is obstructing theSenate?
– Yes.; he said so.
– Nothing of the kind !
-I say that I intend to obstruct this Chamber from putting its hand on the High Court or ridiculing its decisions. I am not ashamed to say that, because I regard it aspart of my duty to obstruct, to the extent of trying to prevent the Senate flouting the High Court, though I do not use the word “ obstruct “ in the sense usually understood in this Chamber. The judgment was delivered by the Chief Justice on the 17th September, 1906, after the case had been in Court about two months, and thereport, which is at page 529,is as follows: -
The Act under which the question now before the Court for decision is raised is entitled “ An Act relating to Conciliation and Arbitration for the Prevention and Settlement of Industrial Disputes extending beyond the Limits of any one State.” The objects of the Act are defined in section2, and among them are : - “ II. To constitutea Commonwealth Court of Conciliation and Arbitration having jurisdiction for the prevention and settlement of industrial disputes. III. To provide for the exercise of the jurisdiction of the Court by conciliation with a view to amicable agreementbetween the parties. IV. In default of amicable agreement between the parties, to provide for the exercise of thejurisdiction of the Court by equitable award. V. To enable States to refer industrial disputes to the Court. . . VI. To facilitate and encourage the organization of representative bodies of employers and of employes and the submission of industrial disputes to the Court by organization, and to prevent representative bodies of employers and of employes to be declared organizations for the purposes of this Act.” Section 4 is an interpretation clause. The term “ employer “ is defined to mean “any employer in any industry.” The term “ industrial dispute “ means a dispute in relation to industrial matters - ” (a) arising between an employer or an organization of employers on the one part and an organization of employes on the other part, or
certified by the registrar as proper in the public interest to be dealt with by the Court, and ex-lending beyond the limits of any one State, including disputes in relation to employment upon State railways, or to employment in industries carried on by or under the control of the Commonwealth or a State for any public authority constituted under the Commonwealth or a State.”
The term “industrial matters” includes “all matters relating to work, pay, wages, reward, hours, privileges, rights, or duties of employers or employes, or the mode, terms, and conditions of employment or non-employment; and in particular but without limiting the general scope of this definition, includes all matters pertaining to the relations of employers and employes, and the employment, preferential employment, dismissal, or non-employment of any particular persons, or of persons of any particular sex or age, or being or not being members of any organization, association, or body, and any claim arising under an industrial agreement.”
The term “ industry “ means “ business, trade, manufacture, undertaking, calling, service, or employment, on land or water, in which persons are employed for pay, hire, advantage, or reward, excepting only persons engaged in domestic service, and persons engaged in agricultural, viticultural, horticultural, or dairying pursuits.”
The term “ organization “ means any organizationregistered pursuant to this Act, and so far as applicable it also includes any proclaimed organization to which the Governor-General declared the Act to apply.”
It is claimed that the term “ employer “ is intended to include the railway Commissioners of the several States, who, under State Statutes, control the State railways.
Section 6 provides that “ no person or organization shall, onaccount of any industrial dispute, do anything in the. nature of a lock-out or strike.” This section in its terms probably applies to the State railway authorities, it being, of course, always understood that an industrial dispute is one extending beyond the limits of the State.
Section 18 provides that the Court “shall have jurisdiction to prevent and settle, ‘ pursuant to this Act,’ all industrial disputes,” i.e., all industrial disputes extending beyond the limits of aState.
Section 19 defines the disputes of whichthe Court is to have cognizance, of which it is sufficient to mention the first two, namely - “ (a) All industrial disputes which are certified to the Court by the Registrar as proper to be dealt with by it in the public interest ;
All industrial disputes which are submitted to the Court by an organization, by plaint, in the prescribed manner.”
Sections 23 and 24 are as follows : - “ 23. (1.) The Court shall, in such manner as it thinksfit, carefully and expeditiously hear, inquire into, and investigate every industrial dispute of which it has cognizance, and all matters affecting the merits of the dispute and the right settlement thereof. “ (2) In the course of such hearing, inquiry, and investigation, the Court shall make all such suggestions and do all such things as appear to it to be right and. proper for reconciling the parties, and for inducing the settlement of the dispute by amicable agreement. “24. (1) If an agreement between the parties is arrived at, a memorandum of its terms shall be made in writing and certified by the President, and the memorandum when so certified shall be filed in the office of the Registrar, and unless otherwise ordered and subject as may be directed by the Court shall, as between the parties to the dispute, have the same effect as, and be deemed to be, an award. “ (2) If no agreement between the parties is arrived at within a reasonable time, and the President so certifies, the Court shall, by an award, determinethe dispute.”
Section 40 provides that “ The Court by its award, or by order made on the application of any party to the proceedings before it, at any time in the period during which the award is binding, may-
Section 48 provides that-“ The Courtmay, on the application to any party to an award, make an order in the nature of a mandamus or injunction to compel compliance with the award or to restrain its breach under pain of fine or imprisonment.”
Section 65 (a) provides that every organization shall be entitled to submit to the Court any industrial disputes in which it is interested.
It is abundantly clear from the provisions which I have read that the jurisdiction of the Court is coercive, that if the State railway authorities are subject to its jurisdiction the effective control of the State railways may to a great extent be taken out of their hands, and, further, that the applicant association, if registered as an organization, will be able to bring the New South Wales Railway Commissioners into Court as litigants for the settlement of any industrial dispute arising between themselves and the Commissioners and, extending beyond the limit of the State of New South Wales whatever that expression may mean. Under the Constitution of the applicantassociation its members cannot, as such, have any other employers than the Commissioners.
Though New South Wales was. in asense, not a party to the dispute it had an interest in the matter, inasmuch as the State rights were affected. It asked special leave to intervene. A long argument resulted as to whether it could intervene or not, and it was decided that it was entitled to intervene in a matter in which its powers were being interfered with as wasalleged.
The original appellants have not taken any part in the argument of the appeal, but the States of New South Wales and Victoria, who were allowed by the Court to intervene, have maintained that the provisions of the Act, so far as they would operate, if effectual, to interfere with the free State controlof State railways, are not authorized bythe provisions of section 51 (xxxv.) of the Constitution, which empowers, the Parliament of the Commonwealth to make laws for the peace, order, and good government of the Commonwealth with respect to” Conciliation and Arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State,” because, they say, those general words ought not to be construed so as to import a coercive control of State instrumentalities, and also because, having regard to, theconditions under which the State railway authorities carry on their functions a dispute between them and their employes cannot in law be regarded as extending beyond the limits of the particular State. Thecounsel for the applicants on the other hand, and the counsel for the Commonwealth, which was also allowed to intervene, denied the validity of these objections, and further contended that, irrespective of paragraph xxxv., the enactment of which the validity is now in question, is within the powers of the Commonwealth Parliament to make laws with respect to trade and commerce among the States (section 51), which power is by section 98 of the Constitution expressly declared to extend to railways the property of any State. The matter has been very fully and ably argued by the counsel for all the parties, and we are much indebted to them for the assistance which they have given the Court in forming a conclusion on a question whichmust be regarded as of very great importance to the mutual relations of the Commonwealth and the Governments of the States.
The question to be determined is primarily one of construction of a written document. If the power which the Commonwealth Parliament have asserted their right to exercise is conferred bv the Constitution as properly construed, the duty of the Court is to say so. If, on the contrary, that instrument does not confer the power, we are bound to refuse to give any effect to the attempted legislation.
– I rise to order. Do not the Standing Orders permit you, sir, to put an end to this stupid ‘ ‘ stonewall “ ?
-Colonel Sir Albert Gould. - I submit, sir, that Senator Gardiner is out of order in saying that Senator St. Ledger is putting up a stupid ‘ ‘ stonewall.” It will be impossible to get on with the business if such disorderly remarks are allowed to be made.
– On two occasions I have ruled that Senator St. Ledger is quite in order in reading at full length, if he chooses, the judgment.
– The judgment continues - …
The Constitution Act is not only an Act of the Imperial - Legislature, but it embodies u. compact entered into between the six Australian Colonies which formed the Commonwealth. This is recited in the preamble to the Act itself. The rules, therefore, that in construing a Statute regard must be had to the existing laws which are modified by it, and that in construing a contract regard must be had to the facts and circumstances existing at the date of the contract, are applicable in an especial degree to the construction ‘ of such a Constitution. At the same time it must be remembered that .the Constitution was intended to regulate the future relations of the Federal and State Governments, not only with regard to then existing circumstances, but also with regard to such changed conditions as the progress of events might bring about. (See Pensacola Telegraph Co. v. Western Union Telegraph Co.) Another circumstance which, in our opinion, is to be regarded is that the Constitution as framed was to be, and was, submitted to the votes of the electors of the States. It ought, therefore, we think, to be held, prima facie, that, when a particular subjectmatter relating to the respective powers of the States and the Commonwealth was specifically dealt with, it was intended to invite the attention of the electors specifically to that subjectmatter and to the proposed manner of dealing with it. It follows, we think, from this consideration, that the rules of construction expressed in the maxims expressum facit cessare taciturn and expressio unius est exclusio alterius are applicable in a greater, rather than in a less degree, than in the construction of ordinary contracts or ordinary Statutes.
With regard to State railways, it is a matter of history that before 1890 all the six Colonies had established State railways, the control of which formed a very large and important part of State administration, and that very, large financial obligations, amounting to a sum far exceeding ^100,000,000, had been incurred by the Colonies for their construction, as is expressly recognised in section ro2 of the Constitution. In each case the actual administration of the railways was entrusted to a body specially constituted under State law for the purpose, but the revenue from the railways was ‘State revenue, and the obligations incurred by their managers were State obligations. It is a fact, also that the ability of the Colonies to meet their financial obligations in respect of loans was largely dependent upon the successful and profitable employment of the railways. It cannot, in our opinion, be disputed that the State railways were in their inception instrumentalities of the Colonial Governments, and we do not know of any authority for saying that this position was affected by the incorporation of the Railway Commissioners, which, in our opinion, was a matter of purely domestic legislation for the convenience as well of management as of the assertion and enforcement of contractual rights in respect of the commercial transactions involved in the transport of goods and passengers : R. V. McCann. These, then, were material facts existing at the time of the establishment of the Commonwealth, and which must be taken into consideration in construing the provisions of the Constitution now in question.
Section 51 enumerates amongst the specific powers with respect to which the legislative authority of the Commonwealth may. be exercised - “ (xxxii) The control of railways with respect to transport for the naval and military purposes of the Commonwealth; “ (xxxiii) The . acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State ; “ (xxxiv) Railway construction and extension in any State with the consent of that State.”
Section 98, as already pointed out, extends the power of the Parliament, as to Inter-State trade and commerce to State railways.
Section 101 provides that “ There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made hereunder.”
Section ro2 provides that “ The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission.”
Section 104 provides that “ Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for thedevelopment of the territory of the State, and’ if the rate applies equally to goods within the- State and to goods passing into the State from other States.”
It is contended for the objectors that these sections declare and define the extent of the powers of the Commonwealth Parliament so far as regards interference with State railways, and that the generality of the words of (xxxv.) must be cut down accordingly. They also contend that the authority of the Commonwealth Parliament lo interfere with State instrumentalities extends only so far as it is conferred in express words or by necessary implication, that the alleged power is not in the present case conferred by express words, and that any implication that might otherwise arise is excluded by the counter implication that it was not intended by the framers of the Constitution to authorize any such interference except for the specific purposes and within the specific limits expressed or necessarily implied from the nature of the special power in question, such as, for instance, the power to regulate currency, weights and measures, and bankruptcy. In D’Emden v v. Pedder this Court said, “ In considering the respective powers of the Commonwealth and of the States, it is essential to bear in mind that each is, within the ambit of its authority, a sovereign State, subject only to the restrictions imposed by the Imperial connexion and to the provisions of the Constitution, either expressed or necessarily implied and, again, “ It follows that when a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control, or interfere with, the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Constitution, is to that extent invalid and inoperative. And this appears to be the true test to be applied in determining the validity of State laws and their applicability to Federal transactions.”
– Would the honorable senator mind speaking a little more loudly ? We cannot hear him distinctly.
– I do not mind repeating the last paragraph for the honorable senator’s benefit.
In D’Emden v. Pedder this Court said -
– The honorable senator has already quoted that passage, and if he proceeds he will bring himself under the operation of the standing order which is aimed at preventing tedious repetition.
– I will proceed with the judgment -
In that case the question was as to an attempted invasion of the ambit of Commonwealth authority by a State authority. The present case is the converse, but the doctrine is equally applicable. Whether the alleged invasion is really one or not is an entirely different question. In Collector v. Day in which the matter in controversy was the power of Congress to tax the salary of a judicial officer of a State, the doctrine was thus forcibly stated by Nelson, J., delivering the judgment of the Supreme Court of the United States : - “ In this respect - that is, in respect of the reserve powers, the State is as sovereign and independent as the general Government. And if the means .and instrumentalities employed by that Government to carry into operation the powers granted to it are, necessarily, and, for the sake of self preservation, exempt from taxation by the States, why are not those of the States depending upon their reserve powers, for like reasons, equally exempt from Federal taxation? Their unimpaired existence in the one case is as essential as in the other. It is admitted that there is no express provision in the Constitution that prohibits the general Government from taxing the means and instrumentalities of the States, nor is there any prohibiting the States from taxing the means and instrumentalities of that Government. In both cases the exemption rests upon necessary implication and is upheld by the great law of self preservation ; as any ‘ Government, whose means employed in conducting its operations, if subject to the control of another and distinct Government, can exist only at the mercy of that Government.”
Sitting suspended from 12.10 to 12.45 a.m. [Friday].
– I think I have sufficiently impressed the Committee with the importance of the point I have raised. I do not feel inclined at this stage to press it further, but I should like to read the concluding part of the judgment, in which the following reference is made to a judgment in an analogous case in the Supreme Court of the United States -
It was urged, however, that the general description of the offence included the more limited one, and that the section was valid where such wa”s in fact the cause of denial. Hut the Court said, through the Chief Justice : - !! We are not able to reject a part which is unconstitutional and retain the remainder, because it. is not possible to separate that which is constitutional, if there be any such, from that which is not. The proposed effect is . not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not there now. Each of the sections must stand as a whole, or fall altogether. The language is plain. There is no room for construction unless it be as lo the effect of the Constitution. The question, then, to be determined is, whether we can introduce words of limitation into a penal Statute so as to make it specific, when, as expressed, it is general only. . . . To limit this Statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty.” If we should, in the case before us, undertake to make by judicial construction a law which Congress did not make, it is quite probable we should do what, if the matter were now before that body, i-t would be unwilling to do ; namely, make a Irade-mark law which is only partial in its operation, and which would complicate the rights which parties would hold, in some instances under the Act of Congress, and in others under Slate law.
The judgment of our High “Court then continues -
This reasoning appears to us conclusive. Now the Conciliation and Arbitration Act is not only limited, so far as regards its attempted application to State railways, to matters having a direct anil proximate relation to Inter-Stale- traffic, but is not limited at all to that traffic or to persons engaged in it. Even, therefore, if the Commonwealth Parliament has the implied power contended for, this provision is not a valid exercise of the po.wer
In making/this protest in the way in which I have made it, I have done only what I conceive to be my duty as a member of the Senate. I have tried to force upon the attention of honorable senators the meaning of the judgment .of the High Court in this important .matter. If die Government -have not been sufficiently impressed, and are determined to proceed with this Bill, in spite of the judgment I have quoted, I shall at least have done my duty.
-Colonel Sir ALBERT GOULD (New South Wales) [12.49 a.m.] - This is a clause’ to which I’ directed attention, in speaking on the second reading of the Bill. I do not think I should be doing my duty if I allowed it to pass without entering a protest. It is above all things necessary that we should recognise the provisions of the Constitution under which we live. Our powers as a Parliament are there clearly set forth, and we have no right knowingly to attempt to go beyond .them, I could readily understand the action taken’ in 1904 when this Parliament considered a similar provision. I have a lively recollection of the debate which then took place. It was strongly urged that under the Constitution we had no power to legislate in the way proposed. On ‘the other hand, it was. contended that it was within our power, and that it was in any case a matter of great importance that men employed by the State Governments should have the same rights under the Act as persons who were not so employed. Senator St. Ledger has dealt with the decision of the High Court on the legislation then passed. He has urged that it should have. weight and force with honorable senators in dealing with the proposal now made, which, though expressed in a different form of words, is to all intents and .purposes the same as the provision carried in the original Act. In the original Act there is special mention of railway employes, whilst in this Bill the reference is to any dispute in relation to employment in an industry “ carried on by or under the control of the Commonwealth or a State.” As the Commonwealth Parliament creates this Court, it has a perfect right to say that Commonwealth’ employes shall come within its jurisdiction. But, though the provision, so far as Commonwealth employes are concerned, cannot be objected to on constitutional grounds, there are other grounds upon which strong exception may be taken to it. I remind the Committee that every person employed in the service of the Commonwealth is in a position to come to a member of this Parliament and explain to him his difficulties and troubles. I do. not think that any Government would be unwilling to redress a real .grievance suffered by Commonwealth employes. If the Government were not prepared to treat them fairly, I am satisfied that a majority of the members of this Parliament would take good care ‘ that their interests were protected. That, I admit, is a matter of opinion, and it might be urged on the
Other side that the Government of the Commonwealth, wishing to avoid the trouble or responsibility of determining questions of this kind affecting Commonwealth employes, would be justified in saying that they should be left to the Court established by this Parliament to determine. But the provision, as it affects servants of the State Governments, is in a very different position. It is distinctly defined, not only in the wording of the Constitution, but by decisions of the High Court. Section 74 of the Constitution reads -
No appeal shall be permitted lo the Queen- in-Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, unless the High Court “shall certify that the question is one which ought to be determined by Her Majesty in Council.
I quote that section, in order to impress upon honorable senators the fact that the decision, of the High Court in this matter is one which we are bound to recognise, lt is impossible, by any process other than an amendment of the Constitution, to alter a decision of the High Court under this provision. I recollect that when the section which 1 have just quoted was under consideration, there was a strong feeling amongst a large, number of the people- that it was unwise to cut ourselves adrift, to deprive ourselves of the right of appeal to the Privy Council in any circumstances whatever. But it was contended, on the other side, that this section dealt with a matter which differed .entirely from an ordinary dispute, between citizens. It was contended that there must be somebody in a position to interpret the Constitution, and that a local body,, cognisant of local conditions and the circumstances under which the Constitution was framed, would be far better able to determine these matters in accordance with the spirit of the Constitution, the intention .of its framers, and the intent and understanding of the people who were called upon bv vote to decide whether it should be accepted or not. The question of the relative rights of the Commonwealth and the States appears to have been first brought under consideration in the case of D’Emden v. Pedder. I do not propose to inflict the judgment in that case upon the Committee, but I point out that the interpretation of the Constitution was at stake in -that case, and in the judgment these words were used, which were subsequently repeated in the case quoted by Senator St. Ledger -
The Commonwealth and the States are with respect to these matters under .the Constitution and within the ambit of their respective legislative or executive authority sovereign States subject only to the restrictions imposed by the Imperial connexion, and the provisions of the Constitution, either expressed or implied.
That is the part of the judgment in the case which, in my opinion, is most pertinent to the question we are now considering. There is another case Deakin v. Webb, in which the same provision was referred to. The decision of the Court was in these cases largely influenced by the case of McCulloch against the State of Maryland, decided by Chief Justice Marshall, in the United States Supreme Court. In that case, the law upon which the decisions of our High Court have been founded, was laid down clearly and distinctly. There is a great similarity in the matter of their respective powers and privileges, between the Commonwealth and the States of Australia, and the United States and the several States of America. In America the States have certain independent powers which have not been passed over to the Parliament of the Union, while other powers have been given exclusively to Congress. The ambit of the respective bodies is clearly defined, and each is sovereign within its own ambit. Honorable members may say that it is all very well to quote these decisions, but whither are they tending? If the High Court is the final arbiter on constitutional questions, and its power is invoked, and it gives its judgment, surely it behoves every honorable senator to recognise that judgment as a part of the Constitution under which we exist. For us to attempt to go in the teeth of a judgment of the High Court is like a man running his head against the proverbial brick wall. If we insist on passing legislation of that character, we shall be doing so with our eyes open and with a full knowledge that it can have no effect, except to create false hopes in the minds of people who are not aware of the decision of the Court, or its extent - hopes which can never be realized unless the Constitution is altered. I. put it to honorable senators whether the Bill does not hold out false hopes to men who are honestly looking to the Government of the day to have certain views which they entertain placed upon the statute-book. Is it fair to say to them, “ We are going to enact this law, which makes provision for the establishment of industrial bodies, and invoke the aid of the Conciliation and Arbitration Court in the case of every industrial dispute which” extends beyond the boundaries of any one State?” Surely ordinary common sense would lead us to suppose that those men would consider that that legislation was passed honestly and fairly by honorable members who believed that they were acting within their powers. Why then should we persist with this legislation? Is there any ulterior desire behind it? Is the object to enable the Government to go to the people again and say, “ Here is a case that has been decided against you before, and is now decided against you again. This shows how necessary it is to amend the Constitution in that respect? “
– Hear, hear.
-Colonel Sir . ALBERT GOULD. - I ask honorable senators who cheer that, whether it is right for them, with the existing decision staring them in the face, to ride deliberately for a second fall ? The Government can go to the country now and say, “ There has been placed upon our powers a limit which we think ought not to exist, and we appeal to you to remove it by amending tlie Constitution.” If they tell the people that there is a decision of the Court which they cannot get behind, and want the law altered, they are in an invulnerable position from their point of view. They could justly point out that the decision of the Court was not a mere catch decision, because a careful reading of the case will show ‘that the fullest consideration was given by the Court to the question.
– How pessimistic the honorable senator is !
– I am not pessimistic. I am simply telling honorable senators the absolute position; they cannot get away from it. Why, then, put into another Act provisions which we know cannot be given effect to under the Constitution as interpreted, but which will simply encourage false hopes in the minds of many people who may form their unions and try once more to come before the Arbitration Court, only to meet with an even stronger repulse than in the first instance ? Do not honorable senators want to respect the decisions of the Federal Court? The Constitution itself gives them an opportunity of having these matters tested. Once the test t is made, why not abide by the result? If the circumstances were different, possibly the force of my argument would not be so great, but we must recognise one part of the Constitution as much as another when making our laws, and I put it to those honorable senators who are the advisers of the Crown, whether it is right for them to attempt to put on the statutebook provisions which they not merely suspect, but absolutely know, cannot be enforced. I regard the position of Minister of the- Crown as one of great trust. I take it that Ministers advise His Excellency on matters that come before him for consideration, with a clue respect for the terms of their oath, which binds them to give their opinion and assistance to the best of their ability whenever they are called upon in consultation to do so. It may be said that this is not a matter in which the Governor-General would require to consult them, because it rests between the Parliament and the people, and that His Excellency has only to act on the advice of the Ministry, and give his assent to the Bill when passed by both Houses. But there is a responsibility from which no Ministry and no Attorney-General in particular can escape, because in the case of every Act submitted to His Excellency for approval he has to be advised by the AttorneyGeneral that it is one to which he can fairly give his assent. How then can he be honestly advised to assent to an Act which is known to violate the Constitution or the interpretation of the Constitution by the only authority entitled to interpret it? I put it to Ministers and honorable senators generally whether that is a position to which this Chamber should be driven. The other House has passed the Bill, and these views may or may not have been placed before it, but it matters not to us what the other House has done. We have our responsibility of which we cannot be relieved by any action of theirs. A certain responsibility rests on the Senate, and on every individual member of it. We want the Commonwealth Parliament to be able to enact laws that will be for the benefit of the people, not to pass sham legislation or to make promises to the people which cannot be fulfilled. We ought to protest against the possibility of a measure of this character being certified to His Excellency as a Bill to which he is entitled to assent. Of course, when he receives such a recommendation His Excellency’s duty is over, because he has to .follow the advice of his responsible Ministers. Are honorable senators going to be .false to the position that they ought to take up? What would they say in their every-day avocations if, having gone to the Courts, and been defeated on a certain position, another person advised them not to be satisfied with that decision, but to go to the Courts again, although no new circumstances were involved, and it was certain that a lot of trouble would be caused, and a great deal of expense and disappointment entailed on other people, simply in the hope that if they met with another reverse they might be able to go to the Legislature to get the law altered? In this case, when they get their second reverse, the Government may be able to go to the people, and ask them to give this Parliament authority to exercise these powers by amending the Constitution. If we are to protect the Commonwealth Parliament and the citizens of the States, we cannot do better than observe most carefully the law as authoritatively interpreted. Where is the safety of a man or a man’s property if we do not take care that the laws we pass, and the promises we make, are within the scope of our powers? I should not complain if, in a case where we had no authoritative decision, honorable senators opposite honestly believed that the Constitution carried them much further than it really did. But, this question having been tested and settled, we have no right to try to get behind the decision of the Court. Once we attempt to do so, on the chance that people will not take the matter to the High Court again for decision, what guarantee have we of the safety of any man in the community? After all. what is law, and what are Constitutions? They are simply laid down for the guidance of the community and for the protection of its interests. Once we get away from the chart, and go experimenting into regions upon which we have no right to intrude, we involve ourselves in endless trouble and difficulties. I urge Ministers and honorable senators generally not to let us get into this cul de sac. I hope they will, on reconsideration, take out this clause, against which so much has been said with such great effect. Of course, Ministers may have other reasons which I have not yet conceived, but I have not heard them urged, nor have I read of any given in the other House, to justify this attempt to fly in the face of the decision of the Court. I have endeavoured, in these remarks, to make honorable members realize the seriousness of the position. I have not spoken with a view of obstructing the business, because it is a matter on which I intended speaking all through, and possibly 1 have been a good deal briefer than I originally meant to be. I again urge honorable senators to observe the law and the Constitution under which they exist, and to bear in mind that every honorable man is bound to recognise them. He may not like the law as laid down, but he cannot disregard it in the way now proposed. If the feeling in the House and in the country is strong enough to bring about an alteration of the Constitution to enable questions of this kind to be dealt with by the Commonwealth Parliament, let the Government bring forward a Bill for that purpose, and if they can command their proper majority that Bill will go to the people, who will then have an opportunity of saying how far we may go. Whether that decision agrees with our own views or not, we have again to recognise that it is a decision arrived at in a constitutional way. As such, it becomes the law of the land, and it is our duty as honorable men and reputable citizens to observe it. If we find that it is not good law, we can take steps to alter it; but I implore honorable senators to regard the position fairly and straightforwardly. I urge them not to attempt to put upon the statutebook a provision which is not only a sham, but shows on the part of this Legislature an undeserved contempt for the decision of Justices of the highest eminence. This is neither the time nor the place for a panegyric on our Justices; but we are proud to know that we have as Chief Justice of the Commonwealth such an able lawyer and diligent student of the law. We have behind his decision on this question that of one of the greatest lawyers of the United States, the late Chief Justice Marshall, who had, with his colleagues, to settle many of these difficult questions in relation to the conflicting powers of authorities each having within their own sphere sovereign rights, and entitled to the recognition of those rights to the fullest extent
– I wish to address myself briefly to this question, and trust that honorable senators will bear with me, since I can assuredly say that no action or word of mine has been calculated, in any sense, to delay the passing of this Bill. I do feel, however, that to allow this sub-clause to pass without a protest would be a wanton derogation of duty. We have it on the best authority that a provision of a similar character in the original enactment is ultra vires of the Constitution. A statement has been made during this debate from which the inference might be drawn that the opinion is held by some honorable senators that, by passing an enactment of this kind, we can override the decision of the High Court. We can do nothing of the kind. If, in the United Kingdom, or in any country under a unitary system of government, a decision has been given by the highest judicial tribunal, it may be within the power of the legislative authority so to amend the law as to make that decision no longer the law of the land. But with us it is not so. The High Court, in relation to the Commonwealth and the States, occupies a totally different position from that of the supreme tribunal in. the United Kingdom. The High Court, from a legal point of view, is the custodian and guardian of the Constitution. That Constitution is an agreement entered into, so to speak, between the Commonwealth, as a Commonwealth, and the States, as States. The High Court itself is an integral part of the Constitution, and under it has assigned to it certain functions, responsibilities, and duties. The particular question now under consideration has been decided by it, and, so far as we are concerned, until the Constitution is altered, as might be necessary, its decision must stand. So long as the Constitution remains as it was when the High Court gave its decision, we cannot arrogate to ourselves any superiority over the High Court in regard to this matter. I would ask the Minister whether there is anything of which the Government have obtained possession since that decision was given that warrants them in introducing, in a measure of this character, such a provision as sub-clause 2 of paragraph b, which we have now under consideration. I have listened very attentively to the debate on the motion for the second reading of this Bill, and to the discussion in Committee, but have heard nothing to indicate that the Government are possessed of information which they can furnish to the Senate, as to any alteration in the circumstances as they existed when the High Court was called upon to give that decision. If there is nothing that the Ministry can furnish, then all I have to say is that in attempting to enact this legislation we are simply indulging in make-believe. It is simply a sham. We cannot carry the position any further than it was carried under our previous legislation which the Court held, so far as this particular matter was concerned, to be ultra vires. And why should we attempt to do so? We must recognise that under the principal Act the duty is cast upon the Registrar to register the different organizations that apply to him for registration, and that to a large extent, in discharging his responsibility, he is acting in a Ministerial capacity. He is not called upon to act as a judicial functionary, and it is not for him to inquire into the constitutionality of an organization. If we deliberately invite numbers of men throughout the Commonwealth to associate themselves in organizations with the idea of being registered under this measure, and then leave them to take the procedure that they think necessary to enforce their rights or to settle disputes, with the result that they find that, after all, the legislation upon which they have been relying is neither more nor less than a broken reed, we shall be practically recreant to our trust. I say this in all temperateness and believing that as far as possible we should bring under the operation of this Bill every one to whom we can legitimately and constitutionally extend it. I am quite agreeable to that being done, but when we know as an absolute matter of fact and of law that the one tribunal behind which we cannot go - and upon which we are absolutely dependent for the interpretation of our Constitution and the determination of the constitutionality of our laws - has definitely decided that legislation of this character is beyond our powers so long as the Constitution remains as it is, then we are deliberately indulging in make-believe by attempting to re-enact such a provision as this. We are also leading persons to believe that they can rely upon a
Statute of this Parliament which they will ultimately find, when they attempt to rely upon it, to be nothing more nor less than a broken reed. Senator St. Ledger made reference to a judgment that had been given, I think, by the Supreme Court of the United States, as to the implication of powers contained in the Constitution. The Constitution does not set out in extenso everything that we may or may not do. It attempts to set out as precisely, as briefly, and yet as fully as possible, the different matters in respect df which we can legislate, and we have what is known as the doctrine of implied powers applied to the Constitution by the High Court in its judgments. But whereas we have powers that are implied, although not expressly stated in the Constitution, so too have the States, and we, as well as the States, have implied obligations and implied responsibilities. That is the crucial position in relation to matters of this character. I wish it to be distinctly understood that I am not opposing as a matter of principle the inclusion within the operation of this Bill of those who are employed within the State or the Commonwealth services. I am not doing anything of the kind. But, as I understand it, our present position, according to the decision of the High Court, is, that we cannot bring State servants under this Bill. Whether we can or cannot include Commonwealth servants is a different matter. I am inclined to think that we can, but the decision in respect to the inclusion of State servants has gone forth and is irrevocable. An attempt to insert in this Bill such a provision as this, therefore, is absolutely futile. For that reason I intend to oppose that part of the clause now under consideration. I shall oppose it on constitutional grounds and not with reference to the general principle, itself. I really believe that in enacting it we shall simply be passing sham legislation and inducing a large body of the community to entertain hopes that can only prove absolutely delusive. For that reason I intend to oppose this provision.
– I rise to enter my protest against this provision. There is a good deal in the Bill with which I sympathize, and I do not desire that it shall be declared ultra vires because of this sub-clause. I hope, therefore, that it will be struck out. I have listened to the debate, and the opinion I have formed coincides with that just expressed by Senator Keating. I am not prepared to give a legal opinion upon the question, but I have read legal opinions with respect to it. I have read die judgments of the High Court, and I have also heard read during this discussion a portion of a decision of that Court bearing upon this question. I take it that Senator Keating, Senator St. Ledger and -Senator Gould from their knowledge of the law are better able to deal with the constitutional question involved than I am, but I firmly believe that if this sub-clause be retained it will destroy the Bill. Many persons will be deluded into the belief that the Bill gives them certain privileges, and when, after the matter has been tested, it is found that it does not do so. “they will curse those who inserted this provision in it. Were it not for this subclause, I should not have spoken. I abhor -strikes, and would heartily support any measure likely to prevent them, and to improve the relations between employers and -employes. But why pass a provision which, according to the best legal opinion, will be declared by the High Court to be ultra vires? We can alter the Constitution only in the manner provided by the “Constitution. If the people empower us to pass legislation of this kind, we shall be within our rights in passing it, but it will mislead and offend them if we pass it now, and tlie High Court declares it to be ultra vires. Why do honorable senators opposite, who know that the provision will be upset by the High Court, risk the wrecking of the Bill by insisting on its insertion? The Bill seeks to give the Commonwealth Arbitration Court jurisdiction in any dispute in relation to employment in an industry carried on by or under the control of the Commonwealth or a State. The words “ or a State “ are fatal. Their insertion amounts to an attempted interference by the Commonwealth with the authority of the States. I should be one of the first to protest against interference by a State with the functions of the Commonwealth, and I think it is also my duty to see that the Commonwealth does not trespass on tlie domain of the States. We should be as jealous of the inviolability Qf the rights of the States as of the inviolability of the rights of the Commonwealth. Why should we pass a provision violating the sovereign rights of the States when a similar provision has already been held by the High Court to be ultra vires f The Government, in forcing upon the Senate the acceptance of the provision, will stultify itself. The Committee is being asked to defy the law. Should a private citizen who has broken the law plead ignorance in justification of the breach, that excuse is not accepted, but we cannot even plead ignorance of the fact that we are breaking the Constitution. If Parliament does not respect the law, can the citizens of the country be expected to do so? If this provision were taken out of the Bill, the measure would pass without further trouble. Apparently, however, Ministers and their supporters have made up their minds not to be influenced by argument. Being a layman, I waited to speak until I had heard Senator Keating on the legal aspect of the question.
– The honorable senator got up when he was told to do so.
– That is not so. I should not have spoken had it not been for this sub-clause, and I waited to speak until I heard the opinions of legal gentlemen in regard to it. On behalf of the people of Queensland, I enter my protest against the step that is now being taken. Those who vote for the sub-clause cannot say afterwards that they thought it would be valid. If the Government would postpone the further consideration of the provision, the rest of the Bill would soon be passed. In mv opinion, Ministers should take the soundest legal advice they can get. If they do so. they will be convinced that they are acting wrongly in putting this provision into the Bill. I should give them every assistance in passing the measure without the sub-clause, which will do harm, because it will cause legal strife, if it has no worse effect. I hate strikes, and I have hopes that if the Bill is passed without this provision it will bring an end to such disasters - that, if reason prevails between employer and employed, we may see that happy day for Australia. I must again enter my protest against the inclusion of this sub-clause, and, if it be pressed, to a division, I shall vote in the negative.
– I desire to once more call attention to the very serious position we are in. The Government are bound to respect the decisions of the High Court, and to give them loyal obedience. It is the sacred duty of the Government, in the interests of society, to enforce the judgments of the Courts against every person to whom they may apply, but, in point of fact, the Government are telling the people that the opinion of the High Court, which has defined certain duties as between the Commonwealth and the States, does not matter one straw - that the Government not only will not enforce obedience, but will themselves flout the decisions of that tribunal. How can the Government expect the people to respect the High Court under such circumstances? Senator Gould has pointed out that this clause holds out a delusion to the people, and 1 ask how many times have the present Government been told that they were deluding, not only themselves, but the community at large. Need I refer to the Harvester cases, where they held out to the people the promise that wages could be regulated by means of the Tariff and Excise duties. The Government were then warned that the legislation would be found ultra vires, but they went on, and every worker in the industries affected was deluded, while the unions were mulcted in thousands of pounds. Were the Government not warned over and over again in the Senate, if not expressly, by very clear implication, that the new Protection would be found unconstitutional, and has it not been found so?
– This clause has nothing to do with new Protection.
– I am merely seeking to protect the people against being deluded again, and showing that, as the Government have been warned twice before, they are now warned again. I ask the Government to discharge their functions with the same loyalty and obedience they enforce in other people. It may be said that there is a “ stone- wall “ on this side; but nothing of the kind. In a metaphorical sense, of course, we, though few in numbers, are forming ourselves into a “ stonewall ‘ ‘ to guard the Constitution, and we are perfectly entitled to do so.
– A public confession !
– It is our intention, to the utmost of our parliamentary power, to form ourselves into a “ stonewall,” not to obstruct the business of Parliament, but, on an occasion like this, to guard the Constitution itself, because it is on the Constitution that this Senate and Parliament depend.
– If the honorable senator is a guardian of the Constitution, God help the Constitution !
– On account of the lateness of the hour we ought, perhaps, to excuse that very pertinent, or impertinent, remark. We should be doing less than our duty if we did not urge, even at great length, the sacred obligations that lie on the Government and on honorable senators to observe the Constitution - to erect in a constitutional way a “wall” of steel against improper methods of legislation. It was, to my mind, an exhibition of almost unparalleled callousness and audacity on the part of the Vice-President of the Executive Council, who is responsible for the conduct of business, to deliberately say that he knew this clause would, if I may be allowed to say so, “run clean bang” against the decisions I have quoted. I hope it will not be considered unparliamentary if I say that the honorable gentleman is showing a frightfully bad example, so far as concerns encouraging the people to’ loyally and honestly obey the High Court.
. -When Federation was inaugurated we were told that the Constitution was to be as firm as a rock, and as sacred as a shrine; but the “rock” is pulled down and the “‘sacredness “ of the shrine is flouted. In thirty- four )’ears and more of parliamentary experience, this is the first time I have seen a Government knowingly and deliberately attempt to humbug the people ; to do so is to poison the very ofount of legislation.
– The honorable senator has been long at the “ game,” and should be a good judge !
– I have been long at the “ game,” and I have always found Governments ready to go out of their way in order to respect the Constitution. What will be the moral effect of such conduct on the part of the Government? Will not any law breaker be able to point to it as justification of almost anything he may do? While the Government may curry a little passing favour, they are bound, sooner or later, to earn the contempt of all rightthinking people.
Paragraph b, sub-paragraph 1, agreed to.
Question - That sub-paragraph 11 of paragraph b stand as printed - put. The Committee divided.
Majority … … n
Question so resolved in the affirmative.
Paragraph b, sub-paragraph 11, agreed to.
Paragraph b, sub-paragraph111, agreed to.
– It is impossible for honorable senators to define the application of paragraph c, or for any Court to come to a decision in that regard. The President of the Arbitration Court will have to trust to Providence as to what will be the result of his interpretation of the words. We have no right to leave the whole thing in the clouds or to treat the Court in that way. In his judgment in the Harvester case, Mr. Justice Higgins pointed out the difficulty of interpreting the words “ fair and reasonable “ in the principal Act. He said -
The first difficulty that faces me is as to the meaning of the Act. The words are few, and at first sight plain of meaning; but, in applying the words, one finds that the Legislature has not indicated what it means by “ fair and reasonable “ - what is the model or criterion by which fairness and reasonableness are to be determined. It is to be regretted that the Legislature has not given a definition of the words.
I suppose that every honorable senator opposite will say at once that anybody can interpret the words, but Mr. Justice Higgins, who was one of the ablest lawyers at the Victorian Bar, and is one of our ablest Justices, pointed out at once the difficulty of interpreting them. He said, “ The Legislature has given me no means by which to interpret the words. I have to give a decision, and in the circumstances I must do the best I can.” Unless we put in some guidance by which His Honour may be able to determine accurately what the phrase “ society as a whole “ means, we shall place him in a similar difficulty. Surely honorable senators must realize that these wide words are almost incapable of definition. Why should we fling them at the head of the President of the Court, and trust to Providence as to what he may do? He has expressly called our attention to our slipshod method of framing measures, and asking the Court to interpret them. Continuing, His Honour said -
It is the function of the Legislature, not of the Judiciary, to deal with social and economic problems; it is for the Judiciary to apply, and, when necessary, to interpret the enactments of the Legislature. But here, this whole controversial problem, with its grave social and economic bearings, has been committed to a Judge, who is not, at least directly, responsible, and who ought not to be responsive to public opinion. Even if the delegation of duty should be successful in this case, it by no means follows that it will be so hereafter. I do not protest against the difficulty of the problem, but against the confusion of functions - against the failure to define, the shunting of legislative responsibility.
– How did Mr. Justice Higgins interpret the words “ fair and reasonable “ ?
– I am not dealing with that point, but pointing out the difficulty in which the Legislature left him when it used those words in a provision of the principal Act. What are honorable senators opposite doing now ? In this clause they are piling up word after word of most difficult application without giving any assistance or guidance to the Court. The quotation continues -
It would be almost as reasonable to tell a Court to do what is “ right “ with regard to real estate, and yet lay down no laws or principles for its guidance.
In his judgment in the Harvester case His Honour complained of the difficulty in interpreting what seemed ordinary words, and pointed out that it should not have been shunted on to him. But honorable senators are now piling up word after word of most difficult construction, and saying, “ We do not care one straw for His Honor’s reminder.” They are taking no heed of his request to the Legislature to relieve him of that difficulty. I feel sure that, after the result of the last division, no notice will be taken of our criticism on this provision.
Paragraph c agreed to.
– In my speech on the second reading of the Bill I referred to the proposal in paragraph d of this clause, to bring rural industries under the operation of the Act. I trust that the Government can see their way to drop the proposal. When the principal Act was under consideration this question was discussed at much length, and a large majority decided not to include rural industries in the definition of “ industry.” We cannot apply to persons working in those industries the rates that we apply to other branches of industry. I move -
That the words “ by omitting from the. definition of ‘ industry ‘ the words * excepting only persons engaged in domestic service and persons engaged in agricultural, viticultural, horticultural or dairying pursuits,1 and inserting in their stead “ be left out of paragraph d with a view to insert in lieu thereof “by inserting in die definition of ‘ industry.’ “
-Colonel Sir ALBERT GOULD (New South Wales) [2.12 a.m.]. - It appears to me that the amendment if adopted will bring the provision in accordance with section 4 of the principal Act, and at the same time deal with persons engaged in such services as ought not to be brought under the Act. I take it that persons engaged in domestic service and in agricultural, viticultural, horticultural, or dairying pursuits could be far belter dealt with by means of Wages Boards. It has been pointed out by Senator McColl and other speakers that those persons were left out of the. definition in the principal Act, because it was recognised that as regards hours of labour and the nature of employment they were differently situated from men who were employed in factories. Whatever we do we should not unduly hamper or interfere with the carrying out of our primary industries.
– Is domestic service a primary industry ?
-Colonel Sir ALBERT GOULD. - I admit that it is not, but I would remind the honorable senator that the Attorney-General, if I am not mistaken, pointed out that domestic servants were most unlikely to come before the Arbitration Court,’ because ‘ the Act only deals with disputes that extend beyond the boundaries of a State. I could understand a desire to bring domestic servants under the operation of a State Act. But when we are dealing with disputes which extend beyond the boundaries of a State we might very well omit from the operation of the law persons engaged in domestic service. ‘ With regard to the other persons, covered by paragraph’ d’, we all know that Australia is largely dependent upon her primary industries. By our legistlation we are encouraging persons to enter upon manufacturing- industries, and- we might very/ well say that, there is no diffi culty in making regulations with regard to hours of labour. But inthe farming or dairying industry a man’sduties relate to all periods of ‘the day. There is no part of the twenty-four hoursin which he might not be required to perform services for the employer. Again, in the agricultural and horticultural industries it is impossible to fix hours of labourin the same way as they can be fixed in themanufacturing industries. It can be laid” down that persons employed in a factoryshall work only eight hours in. the twentyfour, but such a rule cannot be applied to dairying. If that be attempted, the question arises - In what portion of the twentyfour hours are the eight hours to be worked? Are they to be worked duringthe day or during the night ? A man on a farm may be employed two or three hours in the morning, then he may rest for anhour or two; he may work for an hour inthe afternoon, and may have to perform more services in the evening. Allusion has been made to domestic servants. It would’ be quite impossible to arrange a set of hours during which they should be employed. Possibly the period of service actually worked by a domestic servant in a day would not be eight hours, nor would it be eight hours continuously. In many cases servants have not much to do during several hours of the day, but, at the same time, it would be impossible to fix their hours absolutely. Already there is sufficient dissatisfaction in regard to domestic sendee without further difficulty being caused if we can avoid it. Returning to the employment of agricultural and horticultural’ labourers, I should like to ask whether Senator W. Russell is prepared to say, as a practical farmer, that it is reasonable to provide for farm hands in a Bill of this character?
– Yes, as long asthe eight hours system is not included.
– Does the honorable senator intend,, then, to propose an exemption toprovide that the eight hours system shall’ not apply to agricultural and horticultural’ employes ? He knows very well that it is; sometimes necessary that these persons should work ten, twelve, or even sixteenhours in the course of the day at certaintimes of the year.
– This is not an eight hoursBill
– If it vere 1 should oppose it so far as agricultural pursuits are concerned.
-Colonel Sir ALBERT GOULD.- I support Senator McColl’s amendment. There are good reasons for the exclusion of the words to which he takes exception, and then: is no reason why the section of the principal Act should be amended in this respect. A Wages Board would be the proper body to regulate hours, rates of pay, and reasonable conditions in the industries affected.
– I desire to place, on record a word or two in reply to the terrible drivel we have just heard from the honorable senator opposite.
– Is that remark in order ?
-Colonel Sir Albert Gould. - I treat the remark with the contempt it deserves.
– There is no reason for leaving agricultural and horticultural labour out of the purview of this Bill. I wish to call attention to the fact that the champions of the Wages Boards on the Opposition benches overlook the fact that the occupations affected by the Wages Boards system in New South Wales are included in a special schedule. Instead of industries generally being dealt with in a broad and generous spirit, only scheduled industries are provided for.
– There are seventytwo Wages Boards in Victoria.
– But there are more industries than that, and those who wish to leave certain industries out of the ambit of the Federal law know very well that no Wages Boards have been constituted to deal with them. As one who has been an agricultural labourer, and also an employer of agricultural labourers, I object altogether to the statement that it is impossible to regulate hours, wages, and other matters connected with agricultural and horticultural industries just as well as we can deal with any other industrial matters. It seems to me to be a scandalous fact, of which we ought to be ashamed, that there are two or three sections of the community which are singled out to be looked upon as forming a degraded and serf-like population, to which no industrial law shall apply. Some years ago, I .was engaged in agricultural work iin New Zealand. No difficulty was experienced there in applying the eight-hours principle throughout the year ; except that in harvest time extra men were employed on the “ hour “ system, so that the longer they worked the better pay they received. There is absolutely no reason why the industries included under this Bill should not have justice done to them. As to .domestic servants, there is no section in the community which has been so unfairly treated. I trust that they will form an industrial workers’- union of a Federal character, so that their conditions may be affected by this measure. We know very well that, too often, the domestic servant is the slave of a tyrannical and pettyminded mistress, who makes her work from daylight to dark, and sometimes get up in the night to attend to the baby. That is the sort of thing which Senator Gould seems to admire. It is true that there are honorable exceptions, but, a* a rule, women and girls have been driven out of domestic work into factories because they will not submit to the conditions which mistresses seek to impose upon them. It is a thing to be proud of that the majority of Australianbred girls prefer to earn their living in factories rather than be subjected to the treatment top often meted out to domestic servants j and I hope that workers of the latter class will become scarcer and scarcer, until certain purse-proud snobs have to do their own work.
– I hope the honorable senator will do his own work.
– I am quite sure that I can do as much work as the honorable senator can. I have never been ashamed to cut into any work that was open to me. I am now defending a class who have been most shamefully treated in Australia by a number of pretending aristocrats ; and I repeatthat my hope is that this class of labour will become so scarce that the sort of mistresses to whom I have been referring will have to dp their own work. It will do them a lot of good.
– Does the honorable senator insinuate that many women do not dp work in their own homes ?
– There are many of them who, if they dropped a serviette off their lap, would call in a girl to pick it up for them. It is a tribute to the love of freedom on the part of Australian-bred girls that so many of them decline nowadays to enter domestic service. I do not say these things because I want to see a scarcity of domestic servants if they can secure employment- under decent conditions. I believe the time is approaching when the system will spring up of girls being employed by the day and rendering such service as is required during a fixed number of hours. That will be a much better system than their being employed under conditions where girls are said to have to sleep in rooms like clog kennels, and are treated as slaves.
– Shame !
– It is a- shame. But this kind of thing exists in thousands of cases. If the honorable senator does not know that that is so, I pity his ignorance.
– In the class that the honorable senator associates with perhaps; but in no other.
– I have, unfortunately, been compelled to meet such people. I do not associate with them if I can help it, though I am compelled while I am here to associate with people whom I do not much admire. There is absolutely no reason whatever why any industry should not be included under this measure. Reverting to agricultural labourers, I remember working in the State of Victoria twenty years ago for the large sum of 5s. a day. We were doing harvest work at about Christmas time, in the Western District. I, and some others, struck, I am proud to say, because, after we had worked ten hours, the employer remarked that it was not yet sundown, and wanted us to do more, although we had been at it since 6 in the morning binding sheaves. There was no opportunity to get more work then, because labourers were fairly plentiful. Senator W. Russell has stated that he himself would vote against the application of the eight-hours principle to agricultural labourers. I say to him, first of all, that there is no question of an eight-hours system for agricultural labourers- under this Bill ; and in the next place, that it is not worth while to tout for the votes of a few “ cocky “ farmers by promising them ;the unreasonable things for which they ask for the sake of obtaining their political support.
– Did the honorable senator ever meet a decent employer ?
– Yes, I did. I have seen one in the glass sometimes. I live in a district in which there are thousands of men employed in the horticultural and viticultural industries; but they are, as a rule, so badly paid that when we hear, as we did recently, that labour is unavailable for those industries, the reason is that men of grit, self-reliance, and spirit, have been driven out of them. It has become almost impossible to secure any considerable num ber of competent men to carry on these industries. Only the wasters and culls remain in them, as men who are worth their salt will have nothing to do with them. The position is just the same with girls employed in domestic service. If these industries cannot pay decent wages to those employed in them, it is better that they should die, and let others take their place. I am glad that we have here an opportunity to do simple justice to a class of employes who have been very much neglected in the past.
– I am brought to my feet again because my motives have been suspected by the last speaker, and the class to which I belong has been maligned. I cannot stand that. So far as servant girls are concerned, let me say that they are better working on farms than in cities. I have a model wife, who has had girls in her service for six and seven years continuously, and has never had any trouble with them.
– There are, of course, honorable exceptions.
– In the towns the moral atmosphere -is not anything like so good as it is in the country. In this particular matter I am prepared to trust the Court. Senator Rae has implied that I was toadying to the “cocky” farmers for their votes when I said that I was opposed to the eight hours’” system on farms. Let me explain my position. Honorable senators should know that, at harvest-time, when the wheat is ripe in the fields, it can only be reaped and gathered in mild, warm, or hot weather. On a warm day, the men can go out early to reap, and it is true that you can only make hay while the sun shines. I say that, in the circumstances, any man worth his salt would do his best for his employer. After a spell of hot weather rain very often falls, and then the: men on a farm can do little or nothing, and are compelled to be idle for a time.
– Senator Rae says the industry can die.
– I do not wish the industry to die. I pledged myself to the electors that it would have my first consideration, and I shall carry out that pledge. If the Court is sensible, it will understand the difficulties which surround the industry. I must confess that I should not like Senator Rae to be the President of the Court. I should not feel at all safe if he were. The hon. orable senator is such a Radical, and gives expression to such extraordinary opinions, that his utterances injure the credit of other more sensible members of the party. I do not wish to help the other side, but, in this matter, I know what I am talking about. I say that if a sensible Wages Board met to decide the hours which should be worked on a farm, they would never adopt the eight hours’ system, because they would know it to be impracticable. I pledged myself to the electors that, if returned, I would oppose it, and so did my colleagues who were candidates at the same time.
– It is not a question of hours, but of payment.
– That might be easily decided. As a farmer, I paid good wages, and I have worked for as low as 15s. a week; but we had not unions to help us then. We have now unions on both sides, and all I desire is that justice should be done. Such expressions as I have heard from Senator Rae make me shudder. I am sometimes called a Tory; but I think it is better to be, in some respects, considered a Tory, than to go to extremes in the other direction. I am guided by reason and common sense, andI can support this Bill heart and soul. Some reference has been made to the Caucus, but the Caucus has nothing to do with this matter, and I intend to carry out my pledges to the electors of South Australia. I have done so in the past, and I shall continue to do so.
Question - That the words proposed to be left out be left out (Senator McColl’s amendment) - put. The Committee divided.
Majority … … 14
Question so resolved in the negative.
– We do not object to the extension of legislative assistance to agricultural labourers and others mentioned in the paragraph, but feel that the matter ought to be left exclusively to the jurisdiction of the States through their wages and other boards. I can scarcely imagine how domestic servants in the different States, if they form an organization and register, can have anything in common by which Federal legislation can benefit them. Our contention is, not that they should not be dealt with by legislation, but that this is the wrong way to do it. Honorable senators opposite are doing an injury to the very class of persons whom they intend to benefit by trying to take them outside of the State jurisdiction. Surely the domestic servants of the people in the States can best be dealt with by the State tribunals. That is the object that we seek to attain, but our protest has been unavailing. I do not wish the question to go before the country on any false issue. I wish that the Government would confine their attention more closely to matterswhich are distinctly Federal, and leave as much as possible to the States those things which can be best managed by the States, such as the control and regulation of their own primary industries. In Queensland legislation has been adopted by which the employes in some agricultural industries are brought under the operation of Wages Boards. We cannot have the jurisdiction of State Wages Boards operating in one way, and that of the Federal Act acting in another, without their clashing.
Paragraph d agreed to.
Clause agreed to.
Clauses 3 to 6 agreed to.
Clause 7 -
Section twenty-seven of the Principal Act is amended by omitting therefrom the words “or by leave of the President,” and by inserting after the words “ counsel or solicitor “ the words “or paid agent.”
– I have circulated an amendment on this clause. I move -
That after the word “ amended “ the letter (a) be inserted.
– I have no doubt that the amendment has been circulated, but I cannot put my hand on a copy. We ought to know its ultimate effect. A mere statement that it is to insert the letter “a” does not enlighten us very much.
– It hasno vital significance.
– It is all very well to say there is no object in it.
– There is an object - to divide the clause into two parts.
– But what is the object of that? It is incumbent on the Minister when he brings forward an amendment of this character to tell us why, and what he proposes to ado to the clause.
– Copies of the amendment have been knocking about on the benches all day.
– I have just received a copy. There is an obligation on the Minister who gives notice of an amendment to do something more than hand it in to the printing office. He should inform the Committee of its nature and purpose. As the Minister, confident in the strength of his majority, thinks it is sufficient to throw an amendment on the benches and let it “knock about all day,” I propose to ascertain for myself what I am asked to pass. If the Minister does not think it necessary to explain his proposal I shall take the responsibility of doing so.
– I will explain the amendment. I explained it fully in my secondreading speech. The clause is to be divided into paragraphs a and b, b coming in as a proviso. We are not going to confound what is contained in the first part of the clause with the subsequent reference, either to the legal profession or to paid agents. The amendment has been circulated all day, and, in view also of what I said when introducing the Bill, I thought honorable senators would be quite satisfied.
– The Minister may be satisfied that the mere distribution of these printed forms is sufficient, but frequently, during a sitting, numbers of papers come to one, and it is not possible to turn one’s attention immediately to them. Scores of papers are placed before honorable members which they cannot look at immediately, and many of which they never look at at all. Let me show what the amendment really proposes to do. It is about the most grotesque thing in legislation that I have had an opportunity of looking at for some time. The clause, as it comes to us, sets out a proposition to exclude counsel or solicitors from appearing in the
Court. Then we are asked to turn round and provide a means by which we can defeat that proposition.
– Let it go.
– I am not going to object to the amendment, but it is playing fast and loose with the subject. On the one hand, those who father the Bill profess to shut out lawyers, and, on the other hand, they bring down an amendment to admit them.
– We only shut out lawyers in certain circumstances.
– They shut out a lawyer unless he happens to be the paid secretary of an association. A man may be a disrated lawyer, but if be is the secretary of an organization he may appear. He may be a solicitor of good standing, and he can still appear, provided that he is the secretary or a member of an organization. If the Government want to shut lawyers out, let them do so. If they are willing to admit them, let them strike out both the proviso and the clause, and leave the law as it stands to-day. Do the Government want to keep them out or let them in? . I am content to see them appear subject to the ruling of the President, but when those who profess to want to shut them out” support an amendment to let them in, it reduces our legislative work to a farce.
– A very important question arises out of this clause. I agree with Senator Millen that while the Government are apparently trying to exclude counsel from the Court they are really providing a means by which they can appear indirectly. They are going to bring in a special class of practitioners - men who will cease to be lawyers to become the paid agents of organizations. I have been furnished to-day, by a gentleman capable of giving very valuable assistance to the Committee, with an opinion on this matter. I propose to read it, but I shall not give the name of my informant. If any one wants it privately, I can assure him that it comes from an unimpeachable authority. On second thoughts, I shall not trouble the Committee with the. opinion, as the Vice-President of the Executive Council will not give us reasonable assistance or latitude in the matter. In view of what I read on a previous occasion with regard to the request made by Mr. Justice Higgins to be assisted by lawyers and the expression of opinion by the Court as to the valuable assistance given by counsel, honorable senators must recognise that to exclude lawyers from the Court will be almost a crime upon the Court itself. As the President of the Court is, or ought to be, a lawyer of very great eminence and standing in his profession, to deprive him of the discretion of saying whether or not counsel shall be allowed to appear, is to do an injustice to litigants and toinsult the Court itself. I suppose, however, that it is useless to ask the Minister to allow the Court to continue to exercise this discretion. I had intended to frame an amendment, believing that the Government would give us time to prepare amendments designed to assist in making this a workable Bill, but the order has gone forth, and I do not suppose that even if we were to stop here for hours we should induce Ministers to agree to our proposition.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [3.2 a.m.].I wish again to direct attention to a matter to which I referred on the motion for the second reading of the Bill. Under the principal Act it is clear that the Presidentof the Court may give leave to counsel to appear before him. Under it counsel are excluded unless both parties to the case before the Court are agreeable to their appearance or the President grants permission on the application of oneofthe parties, for the employment of counsel. Honorable senators should realize that that provision is all in favour of an equitabledecision being arrived at. I have heard it said during this debate that lawyers wastea great deal of time. I would point out, however, that under this Bill we place implicit confidence in the President, and if heconsidersthat in a case brought before him there are circumstances that would justify the appearance of counsel, to assist the Court, surely he should have theright to exercise his discretion.Surely he should be authorized to allow counsel to appear if application be made by either of the parties to a dispute, to be represented by counsel.Knowing the opinion of Parliament on this question, he would not allow counsel to appear unless he felt assured that they could assist him in elucidating the points that he was called upon to determine. Therecan be no question that counsel very often materially assist in simplifying a trial the hearing of which might take an unconscionable time if the Court were deprived of their assistance. Counsel are officers of the Court over which the Justice presides, and as such they are bound not only to represent their clients’ case fairly, but to abstain from any attempt to mislead the Court with regard to matters of law. They have, of course, a right to state their own views as to the construction to be placed upon a particular provision, but there can be no suggestion of any deliberate attempt on their part to mislead the Court. The President having considered it advisable in special circumstances to permit of the appearance of counsel, I think that we shall make a mistake in taking from him this power to secure the assistance of members of his own profession whose study of the law enables them to aid him in the discharge of his duties. Knowing the opinions held by Ministers and their supporters,I shall not submit an amendment ; but I feel justified in reiterating the views that I have previously expressed on this question. If Ministers decline to follow our advice, the responsibility for refusing to accept it must rest with them.
Amendment agreed to.
Amendment (by Senator McGregor) proposed -
That the following words be added- “ and- “ (b) by adding thereto the following proviso : - ‘ Provided that a bona fide member or officer of an organization, or a bond fide employee of a party not being an organization, appearing in that capacity to represent the organization or party, shall not be deemed to be a counsel or solicitor or paid agent within the meaning of this section.’ “
– It ought to be within the knowledge of Ministers that counsel and solicitors are servants of the Court, and, as such, can be punished for unprofessional conduct by being disbarred, suspended, or removed from the rolls. They may be so punished not only for dishonesty or for anything colourably criminal, but for a breach of what are known as the rules of the profession. The Court itself has the heaviest of weapons with which to punish them.
– They must be a corps of angels.
– The legal profession is as honorable a profession as there is. The Court will not have any power over paid agents. The control which it exercises over counsel is as much for the protection of litigants as for the protection of the Court itself. Under this amendment any paid agent will be able to appear before the Court, and may do what he pleases so far as his clients are concerned. I regret that the Court is to be submitted to the infliction of having appearing before it irresponsible persons, who may fleece their clients without fear of punishment by the Court itself.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 8 agreed to.
Clause 9 -
Section forty of the Principal Act is repealed, and the following section substituted in its stead : -
The Court . . may . . .
direct that, as between members of organizations of employers or employees and other persons (not being sons or daughters of employers) offering or desiring service or employment at the same time, preference shall, in such manner as is specified in the award or order, be given- to such members, other things being equal ; . . . .
– I propose to submit an amendment, and in doing so shall be very brief, because I do not wish to open up a discussion. I move -
That the word “‘repealed,” line 1, be left out, with a view to insert in lieu thereof the word “ amended.”
The object of the amendment may be shortly stated. It is proposed by the clause to repeal section 40 of the principal Act, but I should like to retain that portion of it which provides that -
In any case in which the Court directs that preference shall be given, it may subsequently suspend or qualify the direction for such time, or subject to such conditions, as it thinks fit, if, in the opinion of the Court, the rules of the organization are burdensome, or oppressive, or do not provide reasonable conditions for admission to or continuance in membership, or that the organization has acted unfairly or unjustly to any of its members in the matter of preference.
The clause before the Committee does not allow the Court, after it has granted preference, to subsequently suspend or qualify its direction should the rules of the organization to which it has been granted be found to be burdensome or oppressive; or “ not to provide reasonable conditions for admission to or continuance in membership, or should the organization have acted unfairly or unjustly to any of its members. Once preference has been granted, the Court will have no power to review, suspend, modify, or withdraw its direction, however circumstances might justify action. I ask the Committee to allow that power to remain with the Court.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [3.20 a.m.]. - While I shall support Senator Millen’s proposal, I would prefer to see the whole of section 40 retained. My objection to the provision which it is proposed to substitute for it is that we deprive the Court of information as to the opinion of Parliament regarding certain reasons which may be urged against the granting of preference, as to the obtaining of certain consents, and as to the affording of opportunities to persons to make their views known. Our action in repealing section 40 will be a plain intimation to the Court that Parliament no longer considers it necessary to have regard to these matters. Paragraphs a and b of section 40 are practically untouched, but paragraph c deals with special cases and circumstances, and provides for directions for the employment of persons who are not members of organizations. If advantage has been taken of this provision, it has not been frequently used, and there is no special reason for repealing it. As for preference to unionists, it is only just and fair that all concerned in an industry should have the opportunity to make known to the Court their views and opinions regarding any application for preference. It is right, too, that Parliament should require the Court to be satisfied, before granting preference, that a majority of those affected by the award have interests in common with the applicants for preference. By repealing section 40, we virtually tell the Court that there is no need to consider whether a majority of those affected by an award is in favour of it, and no need to give persons who are interested an opportunity to explain their views. The clause as it stands treats a large section with such scant courtesy and injustice that we are forced to raise our voices in protest against it. If the Minister, by way of compromise, will accept Senator Millen’s proposal, I shall not submit any amendment. Indeed, I feel that any amendment would have very little chance of obtaining consideration, because Ministers, either after or without having consulted the Caucus, have made” up ,their minds to have the Bill passed as it stands, and their supporters are not prepared to consider arguments to which I assume their attention has not yet been directed.
– Have we not as much reason to follow our leader as the Opposition have for following Senator St. Ledger ?
-Colonel Sir ALBERT GOULD. - We, on this side, are free to express our views, and to register our votes in accordance with them. If some of the followers of the Government would do the same, it, would be a welcome change, and would show that there are opposed to us men who exercise independent judgment in regard to legislative questions.
Senator McGREGOR (South Australia -Vice-President of the Executive Coun[3.25 a.m.]. - Honorable senators opposite have made a noble stand on behalf of that political section which resists every attempt to improve the condition of the workers, and should now be satisfied with the enjoyment which their efforts have given to Ministers and their supporters. Our so-called caucus-ridden followers have always had a voice in the framing of the platform of their party, and will, I hope, abide by the decisions at which they have arrived, not accepting amendments from those whose past efforts have obviously been contrary to the aims of the Government in respect to preference to unionists. To accept the proposals of Senator Millen would, to some extent, defeat the objects which we have in view. The clause is much better as it stands, and, I hope, will be passed unamended.
– Senator Gould has pointed out that if the clause is passed as it stands, the Court will be bound to interpret it as a direction to grant preference to unionists; while Senator Millen has shown that, once preference to unionists has been granted, it cannot be withdrawn, should the organization to which it applies abuse its privileges. These are very important objections. But the clause further raises the question of constitutionality, and I ask the Vice-President of the Executive Council if he will give us more time to consider it. During the secondreading discussion we could not deal with these questions as minutely as they can be dealt with in Committee. Therefore, although to do so may be as useless as it would be to fire rockets at the Fort of Gibraltar, I appeal to the Government to give us an adjournment to more thoroughly consider the effect of this provision. I protest against the rushing through of legislation at a break-neck pace.
Question - That the word “repealed” proposed to be left out be left out (Senator
Millen’ s amendment) - put. The Com mittee divided.
Ayes … … … 7
Noes … … … 19
Majority … … 12
– I move -
That the words, “ at the same time,” be left out.
The granting of preference is within the discretion of the Court” in such manner as is specified in the award or order,” and there is no necessity to complicate that discretion with directions in the clause itself. Further, I point out that, in the case of the Australian Workers’ Union, in which there are some 50,000 members, the words “ at the same time,” if retained, might be the cause of some injustice. A large proportion of those members, who are shearers, make their engagements some time beforehand, many booking their names at the termination of one engagement to resume work at the same place the next season, while others write in applications to pastoralists from a week up to three or four months before the shearing commences ; and it might be held that such men did not come within the operation of the clause, if nonunionists had applied previously. It would be useless to grant preference and kill it by the retention of words which may be interpreted in the way I have suggested.: I am further of opinion that the words “other things being equal” should also be omitted, but that is a matter for future consideration.
– I hope that Senator Rae will not persist with his amendment, because the real meaning of the words he proposes to omit isnot that he has suggested. This matter has received most serious consideration, not only from the Attorney-General and the Government, but from others connected with the very Union the honorable senator has mentioned, and it is held that the words are necessary.
– What do the words mean.?
– The time of the employment is whenever the men are engaged to work, and they are not engaged until the shearing commences. They may write in months before, but the Court will decide the point when preference is given.
– Whatever there may be in the case cited by Senator Rae, the omission of the words may bring about a consequence that he does not desire. If an employer unable to obtain a unionist, engage a nonunionist, and a day or two, or a week or two afterwards, a unionist came along, the non-unionist could be ousted unless these words were retained.
– I do not think that would happen anyhow.
– If the words were omitted the clause would read, “ offering or desiring service or employment, preference shall. . . . “ That would be to say that, when unionists desired employment at any time, they would have to have the preference; and I do not suppose that Senator Rae desires to give any unionist the right to deprive a man of his job. I do not think there is anything in the case the honorable senator has cited, though the question is arguable.
– While I am not particular whether a non-unionist be jerked out of a job or not, I can assure the honorable senator that such a contingency had never entered my mind. I am certainly not satisfied with the explanation of the Vice-President of the Executive Council. I have not had an opportunity to consult those learned gentlemen to whom he referred, and, although honorable members of another place may be satisfied, it does not follow that I am. Lawyers ofthe greatest eminence do not agree on questions of the utmost moment, and, therefore, we have to use our own common sense; indeed, I have reason to believe that prominent legal gentlemen, versed in arbitration law, are of opinion that the words I propose to omit may have the effect I fear. I cannot, therefore, consent to withdraw the amendment; andI point out that if there is any danger of such a result as Senator Millen has suggested, it can easily be avoided. If the Government will not consent to the elimination of the words they ought to alter the clause so as to remove any ambiguity, and make it clear that men who apply at different times will not run the risk of being penalized. It is not for me to propose an alteration beyond the omission of words which I regard as dangerous.
– We have not had the slightest explanation of the important words in the clause “other tilings being equal,” although they must have had some meaning in the mind of those who framed the provision. To me, however, it seems impossible to hint at an interpretation; and I should like the Vice-President of the Executive Council to give us, at any rate, some indication of what limitation they are intended to suggest.
Question - That the words proposed to be left out be left out - put. The Committee divided.
Majority … …. 14
Question so resolved in the negative.
– I move -
That paragraph a be amended by leaving out the words “other things being equal.”
I submit this amendment because I think that the retention of the words would unnecessarily complicate the interpretation of the provision. Every honorable senator must admit that, as the Court has power to give directions, the retention of these words would only leave room for argument as to what was meant by the use of them. Things are never equal when it is a case of non-unionist and unionist. I dare say that the Vice-President of the Executive
Council is willing to allow the amendment to be made.
– We cannot accept any amendment of the clause.
Question - That the words proposed to be left out be left out - put. The Committee divided.
Question so resolved in the negative.
Clause agreed to.
Clause 10 agreed to.
Clause 11 -
Section fifty-five of the Principal Act is amended by omitting from sub-section (1) all words from and including the words “ Provided that no such organization.”
No such organization shall be entitled to any declaration of preference by the Court when and so long as its rules or other binding decisions permit the application of its funds to political purposes, or require its members to do anything of a political character.
The section goes on to provide that -
No organization shall be entitled to appear before the Court to oppose an application for preference by any organization so long as its rules or other binding decisions permit the application of its funds to political purposes, or require its members to do anything of a political character.
The section then sets forth certain objects which shall not be regarded as “ political purposes “ within the meaning of the two provisos. These objects are the following: - Preservation of life and limb, compensation for injuries or death, sanitation, the sex and age of employes, the hours of labour, the remuneration of labour, protection of salaries and wages, and other conditions similarly affecting employment. These matters are not to be regarded as “ political “ purposes within the meaning of the provisos, which we are now called upon to repeal. Under the section, as proposed to be amended, the Court would have no right to consider the fact of a rule requiring the members of an organization to devote its funds to or to do anything of a political character. It could not take that fact into consideration, and say that until the rule was altered it could not grant preference. As the law stands, however, the Court possesses that power. This afternoon Senator Millen pointed out most strongly the iniquity of placing men in the position of having- either to abandon their political views or to go into the street and starve because they are unable to get employment in the trade to which they belong.
– I was not surprised to hear the honorable senator who has just resumed his seat state that this legislation is being passed for the benefit of one class. Had it not been for the fact that he and his colleagues for so many years represented only one class of the community, and failed even to understand the wants and requirements of the class that we represent, we should not be here as labour representatives now. Had the honorable senator and his colleagues taken advantage of their opportunities, instead of endeavouring to represent only the wealthy class, there would have been no need for a Labour party. But because the honorable senator and his party have governed the country so long, they seem to think’ that the class whom we represent has no right to have expression given to its views in legislation. Senator Gould has never in his whole life put forward such a strenuous fight for his class as he has done to-night. He and Senator Millen have been trying to prevent “the agricultural labourers and the domestic servants from securing an opportunity of laying their case before the Arbitration Court.
– That is not so.
– The honorable senator, and the opposition he leads, deserve every credit for the fight they have put up - a fight in the last ditch for the class they represent. They charge me and my colleagues with being class representatives. Well, I am proud of the class by which I have been chosen. I have, at least, the courage to admit what I was sent here for. But the honorable senator throughout this debate has been saying one thing and acting another. He has been endeavouring to make the people believe that he is not unfavorable to this class of legislation, whilst, at the same time, he has done his best to kill it. Yet I have no doubt that he will have the ‘ 1 front “ to go before the country and to tell the members of the Australian Workers’ Union that he did not use the power of his party - diminished as it is - to prevent even this small measure of justice being obtained for a section who have been waiting so long for it. All that is claimed is that the class of the people who have hitherto been excluded from industrial legislation shall have an opportunity of laying their case before a fair-minded Judge, who will take the whole facts of their industry into consideration and give a fair reward. We are not setting up a body to increase wages. We are simply providing a tribunal which will be able to consider reasons why preference shall be granted to - certain workers, and what conditions shall apply to their industry. During the second-reading debate Senator Gould was the first to quote a remark from Mr. W. G. Spence’s book, with the object of sneering at it. It appeared to delight him to find Mr. Spence making a jocular remark about ducking non-unionists with the object of converting them. But I remind him that the Government representing his class, in the State from which we both came, has not merely ducked the representatives of unionists, but has sent them to gaol without trial by jury.
– The Government “ has done nothing of the kind, and the honorable senator knows that.
– Does Senator Millen mean to say that the Government representing his party in New South Wales has not. at this moment, within the four walls of a gaol, a man who has been imprisoned for no other reason than that he is a unionist leader?
– He is there as the result of a trial before a jury. The honorable senator knows that.
– Let us be fair on this matter.
– If the honorable senator can be.
- Senator Millen appears to be built on such crooked lines that he cannot appreciate a fair statement. Let us deal fairly, I say, with the case I am quoting. Peter Bowling was sent to prison for twelve months after being tried by Judge Pring, without a jury. Does the honorable senator deny that? I admit that he was also convicted on a charge of conspiracy, but that followed his first imprisonment. Senator Gould can make jokes about Mr. Spence’s book, and the ducking of non-unionists, but what does he think of the action of his class Government in New South Wales in sending men to prison, some of whom urged their fellow workers not to go on strike, but who, nevertheless, preferred to serve their time in gaol than to go back upon the union to which they belonged ? Remarks have been made about boycotting. I can point to a case where a landlord, at the last election, walked up te a tenant and said to him, “ I see that you are taking hal’f-a-day’s holiday ; T suppose you have come here to vote for the Labour candidate.” The man said “Yes.” “Then,” said the landlord, “ I shall increase your rent is. a week, because, if you can afford to take half a day off to vote for a Labour candidate, you can afford to pay me more rent.”
– Can the honorable senator justify that?
– No ; but that is the sort of thing that we have had to -put up with for so many years; and when the honorable senator’s party was in power, and our section had no members to represent them, our grievances were never aired in the public life of this country. We had to endure the evils under which we suffered without . hope of relief. I am quite proud of the fact that honorable senators charge me with being a class representative.
– What ! A class representative ?
– Yes ; a class representative, doing his best to secure fair conditions for workers of all kinds. We have never demanded mole than reasonable wages, fair hours, and proper conditions. We have never asked that any industry should be upset by demanding conditions that were impossible. We have always been prepared to abide by the decision of a Judge of the Arbitration Court. Take the Arbitration Act which was in existence in New South Wales for six years. During the whole of that time there was no strike. To be perfectly fair, I will say that there may have been a few boys who, for a day or two, stopped the working of a mine, but there was no one occasion when any Labour leader or any union did anything to encourage striking during the whole of that time. When men were dissatisfied they were advised not to strike, but to appeal to the Arbitration Court, and patiently await its decision. For six years there was industrial peace in New South Wales. But, when a Government representing the class for which honorable senators opposite speak, came into, office, they upset that condition of things, and substituted another Act. which was openly proclaimed as an attempt to smash up the unions. That Government have ‘brought about an industrial crisis. They have done worse than that, for they have sent men to prison and legironed them, because they attempted to do their duty by the workmen whom they were chosen to represent. These men who have been imprisoned have committed no crime. The people know that they have not done so; and I venture to say that, in the coming election in New South Wales, that fact will be recognised to the full. I am satisfied that the good sense of the community will” not permit it to be regarded as a crime for a man to seek for better conditions of industry for his fellowworkmen.
– A duty is cast upon us to make some reply to the ‘remarks’ of Senator Gould on this clause. The honorable senator has complained that we wish to do something unfair in moving from the existing Act a provision which prevents trade unions from applying their funds to political purposes. If there is anything more legitimate or reasonable than that the citizens of this or any other country should have political aspirations, I should like to know what it is. Every man, whether he be unionist or non-unionist, has, in my opinion, political rights. Here, in Australia, at least, we invest him by law with the right to express his own opinion in the choice of a political representative. But, having done that, we decided in the existing Conciliation and Arbitration Act, by a means to which I was personally opposed, that if he combines with a number of other citizens to do the best he can to make the political rights we have given him effective, he shall not receive some of the benefits which he has a right to expect from the operation of this legislation.
– No; we prevent him from taking away the political rights of another man.
– Nothing of the kind. Unionists have never made any such attempt. I say here, and now, that the Shearers Union rule quoted to-day by Senator Millen is the greatest myth that was ever put before tlie public of Australia, and no one knows that better than does Senator Millen. When he made use of his illustration, the honorable senator knew that no such rule ever operated in this country
– I take exception to, and ask for the withdrawal of, .the remarks just now made by Senator Henderson. The honorable senator has said that when I made the statement to which he has ref erred. I knew it to be inaccurate.
– As the words complained of are regarded as offensive by Senator Millen, I ask Senator Henderson to withdraw them.
– I did not catch the exact words used, but, as Senator Millen regards them as offensive, 3 think the honorable senator should withdraw them.
– I wish to say that the words I used were these : That when Senator Millen said that the Shearers Union did a certain thing, he knew that that union had never done any such thing.
– You, sir, have, now heard the words which Senator Hendersonadmits that he used. I say that they are a distinct reflection upon my bond fidesand veracity, and I think I have a right toask that they should be withdrawn.
– I rule that the words may reasonably be regarded by Senator Millen as a reflection, upon his veracity, and they should, therefore, be withdrawn.
– Then, I have no hesitation whatever in withdrawing, them. But I will say that if Senator , Millen did net know that the rule to which he referred never applied in Australia, he ought to have known it.
– On a point of order, I wish to ask whether Senator Henderson was in order in withdrawing the statement he made in the qualified way he has done.
The TEMPORARY CHAIRMAN.Senator Henderson did withdraw the statement complained of in an unqualified way. The statement he has now made is an entirely different one, and one to which I understand neither Senator Millen nor any one else takes any exception. There is, therefore,’ no point of order.
- Senator Gould has repeated on this clause a statement he made previously in tlie debate upon this Bill, that if trade unions were allowed to use their funds for political purposes they would inflict injury upon men who are not members of trade unions. In my opinion, trade unions have a perfect right to use whatever funds they please for political purposes.
– The employers did not hesitate to spend thousands of pounds during the recent elections.
– I made a similar remark in my second-reading speech on this Bill. No man, however clever he may be, can dissociate industrial from political life. It is impossible lo conceive of any industry which has not some political significance. My experience has taught me that all our industrial development and progress have been due to our active political associations.
– Why this unnecessary “stone-walling”?
– I am not “ stone- walling,” but I feel that I am charged as a supporter of this Bill, with a desire to give trade unionists power to victimize non-unionists.
– The honorable senator, in his second-reading speech, declared in emphatic language that if as unionists we had the right to do this kind of thing, and might still be awarded preference, the only fate in front of the nonunionist would be starvation. Nothing of the kind. The honorable senator has only had a remote connexion with unionists, or he would never make such a statement. We have no desire whatever to interfere in any way with nonunionists. We say that unionists should have the right to use their funds for the purposes for which they have been contributed. That is a right which honorable senators should not attempt to deny them. As unionists, seeking preference, we say to the non-unionist, “ If you want the same privilege, all you have to do is but to come to the union.” They have only to become unionists in the true sense of the term instead of men who use unionism as a step to a higher place in the public life of the country.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [4.30 a.m.]. - Senator Henderson has told us clearly and distinctly that his intention, whichI suppose echoes the intention of the Government, is to make it absolutely within the power of the unions to make a rule that men must cast their votes in a particular way at the elections. It is just as well that we and the public should know the object aimed at. It is to enable people to obtain the right to preference, and make rules under which no man can become a member of the organization or participate in the preference unless he abandons his rights as a man to uphold his own opinions upon political subjects. Our objection is not to a number of men joining together in a trade union and making rules, one of the objects of which is that every member of the union shall vote in accordance with the desire of the majority properly ascertained. Men have the right to do that; but when they become an organization with a right to get preference for their members, then we say they have no right whatever to make it one of their rules that a man must be prepared to abandon his opinions, perhaps the political views of a lifetime, before he can be benefited by preference, or else run the risk of obtaining no work at all in his occupation, and face starvation for himself as well as deprivation for his wife and children.
– Practically all trade unionists are Labour men.
– But all Labour men are not trade unionists.
– They are at heart.
– We can only judge them by their actions, and if the large majority will, not join the unions they must have very good reasons. Senator Henderson challenged Senator Millen’s statement as to the rules of one of the big organizations, under which men were liable to punishment and fineif they saw fit to Work against the candidate selected to run for a particular electorate. I believe Senator Millen quoted from the Law Reports in support of his statements, and I have yet to learn that the Law Reports are works of fiction. An opportunity will be afforded on the third reading to produce them and to see what really are the true circumstances in that case.
– Thereis no dispute about the rule being there. We say it was never operative.
– The honorable senator now admits that there was a rule. Why was it not operative ? Because the matter was brought under the notice of the authorities. It was pointed out that preference would not be given unless the rule was altered, and it was altered accordingly. The case as put by Senator Millen is substantially correct. The rule was put there for some object. It was passed for the guidance of men who joined the organization and who were told that when they joined they would have to give up their rights as free men to cast their votes as they thought best. I have no complaint to make of senators on either side attacking the opinions expressed by others, but I do object to misrepresentation. Senator Gardiner stated that I and a few others on this side were opposed to giving justice to the hardest-worked members of the community, alluding to the farming class and others, who required help. I and others on this side said that we were not prepared to take away any right from those people, but that they ought to be dealt with by their State tribunals. We also pointed out that Wages Boards had been established, and were the proper bodies for them to approach.
– They cannot get justice from them, because they are not in the schedule.
-Colonel Sir ALBERT GOULD. - It matters not what honorable senators may say with regard to the possibility or impossibility of particular classes of people obtaining the benefits of conciliation and arbitration. There are, and have been from time to time, in all the States people who have not been enfranchised,’ if that phrase will suit honorable senators opposite. But this enfranchisement and extension of powers is going on from ‘day to day. It is the force of public opinion that will bring within their own particular sphere under State or Commonwealth the proper people to be dealt with by those bodies, so far as industrial legislation is concerned. I care not what honorable senators may say with regard to the views that I urge on the floor of the Chamber so long as they do not misrepresent me. If I had said that those men were not entitled to help or consideration the honorable senator’s strictures would have been justified. But when a man says, as I did, that of two methods available one is better than the other, it is not honest to say that he is opposed to giving relief at all. It is also boldly declared that honorable senators have come to this Chamber to represent a class in the community and to gain everything for that class at the expense of other classes.
– There is only one class in any community.
-Colonel Sir ALBERT GOULD.- Unfortunately there is more than one in this community.
– There are the workers and the shirkers. We do not profess to represent the shirkers.
-Colonel Sir ALBERT GOULD. - The honorable senator admits at once that there are two classes. The honorable senator says that the Ministry represent the working class, but the working class are not composed only of manual labourers. There is not a man in this or the other House who is not a worker either with his hands or his head. When you get bias, class prejudice, and ignorance at the helm, when men are utterly oblivious of the rights of others, and ignorant of their opinions and views-
– Does the honorable senator say there is ignorance at the helm?
– There is in this Parliament too much bias, too much class prejudice, and too much ignorance displayed in great public matters which require men of broad minds and capacities to understand and to shape legislation that will be in the interests of the community at large.
– Such as the honorable senator !
– I am not alluding to the honorable senator one way or the other. While a body may have a majority to-day, it does not follow that that majority will last for all time.
– We will make good use of it while we have it.
– Work it for all it is worth, and take the chance of having it altered byandby, but honorable senators opposite have to take the chance of something much more serious - the chance of injuring the very people they are most desirous of serving. You cannot, in any Parliament, serve any class unless you mete out fair and equitable justice to all classes. You will not do any good unless you recognise all the different grades and positions in society, and mete out even-handed justice irrespective of whether men are rich or poor. Another honorable senator saw fit to take a great deal of exception to certain action taken in New South Wales. I do not know that honorable senators are called upon to defend the members of any State Administration. We probably have quite sufficient to do to look after our own concerns, but the case to which the honorable senator alluded is one where the law, whether good or bad, passed by the representatives of the people, was invoked, and certain action was taken. Great complaints have been made, particularly with regard to the case of Peter Bowling. All sorts of things are insinuated and hinted as to the motives in that case. I do not know and do not want to know what they are. I know that this man had taken a prominent part in keeping men out on strike instead of persuading them to take advantage, as the. present AttorneyGeneral said they ought to have done, of the State Arbitration laws. My knowledge of. the Newcastle dispute has been gathered from the newspapers.
– Every lodge in the Newcastle district voted unanimously without any advice on the part of Peter Bowling.
– The miners in other parts of New South Wales were prepared to submit their case to the legally constituted tribunals, and they obtained full satisfaction.
– What was the difference of opinion at the time between Mr. Peter Bowling and Mr. Hughes?
– They were as far apart as the poles. Peter Bowling was dealt with under the law, and the offence with which he was charged was proved before Mr. Justice Pring, who is as honorable a man as ever sat on the Bench.
– One of the most biased men that we ever had on the Bench.
The TEMPORARY CHAIRMAN.Order ; the character of Mr. Justice Pring is not involved in the question before the Chair.
– The second charge against Peter Bowling was one of conspiracy, and it was preferred under a law that has existed for centuries. Under that law he was convicted by a jury of his fellowcountrymen and received a sentence. I know - and this may have been said before - that there are men so biased and so carried away by class prejudice and ignorance that they cannot give any one who differs from their views credit for honesty and integrity of purpose. One of the first symptoms of revolution is displayed by men who deliberately flout the law of the land and say, “It is not good enough for us because we do not agree with it,” and endeavour to disregard it altogether.
– As the proprietors of the Broken Hill mines did.
– They were amenable to the law. Honorable senators opposite are taking the first step towards a revolution. Our people, instead of acting as some of the South American republics have done - instead of setting up a Pinchbeck dictator here and there - have an opportunity of going to the Parliament of the Commonwealth and asking for an alteration of the law. Every man has a right to record his vote in favour of whatever law he thinks most conducive to the well-being of the community.
– The honorable senator is putting up a stubborn fight for freedom of contract.
– I am fighting to secure fair play for all men. I am reminded of the remarks made by Senator Gardiner during this debate. Last night serious exception was taken to some observations which were thought to be a reflection on a Justice of the High Court; but now at this hour of the morning we hear of an attack upon the Judges.
– Did not Judge Pring deliver a lecture against Tom Mann after he had been acquitted?
– Even the unions passed Tom Mann out.
.- Even the Broken Hill miners were glad to pass him out. I protest against clause11, as submitted by the Minister, being passed. The proviso to section 55, which it is proposed to repeal, is one that every fair-minded man ought to welcome, as showing that there isno desire to make political capital out of the ability of any man to earn a livelihood. In agreeing to this clause, the Committee will do an injustice, and. give still more room for people to charge this Parliament with being actuated by bias, class prejudice, ignorance, and everything that is ignoble. Such legislation should be cast on one side by those who wish to stand before their fellow-citizens as straightforward and honest men. I do not object to any honorable senator having an opinion of his own, and making that opinion known; but I have also a right to speak, and to protest as strongly as I can against what I believe to be an unjust and iniquitous attempt to deprive citizens of their rights and liberty.
– I have been misrepresented, and desire to make a personal explanation. I am not here to kill time ; but I wish to say that the statement made by Senator Gould that I spoke one way and voted another is positively incorrect. What I did say, in speaking to the amendment in question, was that when I found that it made no provision for the application of the eight-hours principle to the farming industry - a principle to which I am utterly opposed so far as its application to farming pursuits is concerned - I was prepared to trust the Court. At the same time, I defended the class to which 1 belong against some of the statements that had been made by certain honorable senators. But for Senator Gould to say that 1 spoke one way and voted another is positively incorrect, and if he were not excited, I think he would know that that is so. I shall be prepared to show him during the morning the Hansard proofs of my speech, in order that he may see that I have acted straightforwardly, said what 1 meant, and done what I told the electors I would do.
– I rise, with very good reason, to draw particular attention to a remarkably bitter speech made against honorable senators on this side of the chamber by Senator Gardiner. The honorable senator said repeatedly that we were representatives of a special class, who, on every occasion, opposed measures of this kind, and desired to coerce and ill-treat the workers.
– I would remind the honorable senator that we are discussing, not any particular class, but clause 11.
– Then, sir, how is it that speech after speech has been made from the other side, as well as by some honorable senators on this side of the chamber, in reference to class legislation without any protest from the Chair ? They were not called to order, and I should like to know why I am to be “ gagged “ and compelled to sit down.
The TEMPORARY CHAIRMAN.The honorable senator is trespassing very far in the direction of making a reflection on the Chair. I have been in the Chair for only a short time, and have tried to maintain order and keep honorable members to the subject-matter under discussion. I ask the honorable senator to keep as nearly as possible to the question before the Chair.
– I do not wish to question your ruling, sir, but it would help me to elucidate the situation if I were informed whether you took the Chair while Senator Henderson was speaking?
The TEMPORARY CHAIRMAN.I did.
– Then the matter to which Senator St. Ledger was referring arose before you took the Chair. I make the inquiry with a view of showing how innocent you must have been of what transpired prior to your occupancy of the Chair.
– I had forgotten, sir, that there had been a change in the occupancy of the Chair. During the discussion of this clause, two or three fairly warm speeches reflecting on the Opposition were made. Many of the ablest Socialist leaders in the world condemn, in the most vigorous language, legislation of this class as being a menace to the workers. Are those men to ba put down as enemies of labour ?
– Who are the authorities to whom the honorable senator refers?
– I have quoted two, and could quote more in the honorable senator’s own ranks in the Old Country and the United States who have condemned most severely legislation of this class.
– We have not said that trade unionists are a menace to the workers.
– Nor do I say they are. All that I say is that some of the foremost authorities on labour and the economic conditions of labour condemn root, branch, and stem legislation of this kind. Are they enemies of labour? Are they tyrants or representatives of a class who seek to rob the worker? When we seek to point out the dangers that are latent and patent in some of the clauses of this Bill, why should we be condemned ? When we point this out, is it fair to apply to us the terms which Senator Gardiner used? Men like Mitchell, Gompers, and many others who have proved themselves sincere friends of the workers, are opposed to this kind of legislation.
– I ask the honorable senator to confine his remarks to the clause. The fact that there has been digression on the part of former speakers is a reason why he should address himself closely to the question before the Committee.
– I ask honorable senators to give those who have pointed out the dangers and difficulties surrounding this legislation credit for an honest desire to benefit the workers. Some of them have asserted that the organizations have never used their powers for the oppression of non-unionists. Let me remind them of what is known as 0’Dwyer’s case, which came before the New South Wales Court. If honorable senators desire the particulars at length, I may be able to give them at the third-reading stage. The Court considered it such an abuse of the powers of an organization to refuse to allow a man who was seeking for employment to enter its ranks that, on his appealing, it ordered that his name should be put on the books, failing which it should not be allowed to enjoy certain privileges. ‘ That is an unchallengeable legal record of the ill treatment of a worker by a union, and I could point to other cases of the kind. Therefore it is idle for honorable senators to say that no organization has ever* acted unfairly or unjustly towards the workers.
– One swallow does not make a. summer. Lawyers sometimes rob their clients.
– I agree that it would be improper to assert, because of the case which I’ have cited, that all Labour organizations would act similarly, though not long since the late Chief Justice Darley spoke of the action of a union as an outrage on the ordinary instincts of liberty. No doubt there are many organisations which do not abuse their powers, but work honestly in the interests of their members. The Bill, however, will allow the abuse of powers by an organization. Honorable senators opposite have not addressed their minds to the central issue. The Bill will enable industrial organizations to use their funds for political purposes. It has been said that the result of this political use of funds will be to advance industrial interests. But is it right for a majority in an industrial organization to apply the funds of the organization to the support of a policy, .a candidate, or a party, when the minority may be totally opposed to that being done?
–An organization has as. much right to do that as it has. to institute a benefit fund against the will of the’ minority.
– The institution of a benefit fund is a totally different matter. When a man who is compelled to join an organization finds that its funds are being devoted to political objects with which he is not in sympathy, he is being as un-. justly treated as if he were robbed.
– No more unjustly treated than a member of the Society of Friends who is taxed to pay for the construction of warships’.
– A man has the same right to the free exercise of his political opinions as to the free exercise of his religious beliefs.. No Government has the right to prejudice a man because of his religious convictions, and similarly men should not be required to contribute funds for a political purpose with which they are not in sympathy. However, I have done my best to point out the evils of the proposed legislation, and to take the sting out of undeserved accusations of honorable senators opposite. Perhaps we shall get a further opportunity to show that every union is not a collection of saints and angels. It is pointed out, and very properly, that it is the greed and tyranny of some employers that leads to much of this legislation, and honorable members opposite are right in endeavouring to see that Parliament remedies injustice. But because there are evil employers, it is not fair to brand the whole of them, or existing economic and industrial conditions. It would be equally unfair on my part to refer to labour graft, say in America, and to trade unions who have got possession of municipal organizations, and to declare that the members of trade unions must be ejected from political life because of isolated iniquities. On the question of preference, I think I have shown that we on this side are being misrepresented, and that the issue is not understood or fairly put. However, the Vice-President of the Executive Council, by his manner and attitude, shows that he is not prepared to listen to suggestions or arguments however powerful. I should not have risen again but for the disgracefully bitter speech of Senator Gardiner, who accused us of being the special representatives of a class, and only here to do injury to the workers, or prevent them getting justice through the Legislature.
– Senator Gardiner is well able to take care of himself, but I may say that I do not think he was half bitter enough. Senator Gould and others have accused us on this side of being class legislators in an objectionable sense, and have twisted our words out of., their proper meaning; but Frederick. Harrison, the great English literary authority, who may,’ I think, be described as a philosopher, has’ said that the working class is the only class which is not ‘ a class, but is the nation. We are quite prepared to admit that associations of all kinds have acted tyrannically, but, Senator St. Ledger, while he pleads that we should not condemn employers, makes an attack on the probable action of trade unions, and inadequately puts the case of Dwyer. Why does he condemn us on that one case?
– I -have said no word derogatory to trade unionism.
– It is true that the Employers’ Federation has a big fighting fund with the object of damning Labour on any and every occasion.
– Does that federation ask for preference?
– The federation is strong enough to get preference for itself - a thief does not ask for what he has already fraudulently appropriated. There have been no more disgraceful tactics by the worst trade union that could be imagined than have been resorted to by Employers’ Associations in these States. One gentleman, if the term is not offensive to him, who is employed by the Employers’ Federation, travelled the length and breadth of this country declaring that for the working classes marriage is a luxury, and that employers were not supposed to pay wages sufficient for indulgence in that luxury.
– Did the honorable senator ever read Mr. Tunnecliffe?
– If the honorable senator desires to give a dissertation on Mr. Tunnecliffe’s writings, he can take his opportunity. I am speaking of the official utterances of a paid employe of the Employers’ Federation, and those utterances are disseminated by the very newspapers which are printing hypocritical leaders on the declining birthrate.
– The charge against the official of the Employers’ Federation has been refuted over and over again.
– And so it should be. Those who condemn political action on the part of the unions resort to the dirtiest political actions themselves. We are face to facewith a great war between two classes of the community, and we are told that it is a great iniquity on our part to curb individual liberty by having a political fund associated with unionism.
– The honorable senator should confine himself to the point we raised.
– The allegation is that if we apply for preference, and, at the same time, have political objects, we force men to either conform to the wishes of a majority or suffer industrial starvation.
– Is that true?
– Of course it is not.
– Explain why it is not true.
– Honorable senators opposite are simply setting up a bogy in orderto knock it down - assuming that matters political are something diametrically opposed to the interests and principles ofmembers of unions. We know, how ever, that every sane and intelligent member of a union is at one with his fellowmembers in their political objects. As a matter of fact, the political objects are on all fours with the. industrial objects, and it is only a matter of method. The great mass of the unions are working to secure to the workers a fairer share of the wealth they produce; and it is only the few, deluded by the sham philosophy of the other side, who take exception to the political aims of unionism.When we get this Bill passed, I am convinced that the way will be clearer.
Clause agreed to.
Clause 12 agreed to.
Title agreed to.
Bill reported with amendments.
– After the waste of electric light, paper and ink, and many other things during this sitting, I ask the Leader of the Opposition to. consent to a suspension of the Standing Orders, so that the Bill may be passed through its remaining stages. That would be a very proper conclusion to what, so far as the debate is concerned, has been a very pleasant evening.
– I do not feel disposed to assist the Government at this juncture. Seven hours ago I made them a very fair offer. They declined to accept it, and the responsibility for conducting the business is now on themselves.
Senate adjourned at 5.33 a.m. (Friday).
Cite as: Australia, Senate, Debates, 18 August 1910, viewed 22 October 2017, <http://historichansard.net/senate/1910/19100818_senate_4_56/>.