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Senate
18 August 1910

4^th Parliament · 1^st Session

PRINTING COMMITTEE
- Henderson
PAPERS
QUESTION
- TROPICAL INSTITUTE
QUESTION
- WIRELESS TELEGRAPH STATION
DEFENCE BILL
- Second Reading
COMMONWEALTH CONCILIATION AND ARBITRATION BILL
NAVAL LOAN REPEAL BILL

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

page 1660

PRINTING COMMITTEE

Report (No. 2) presented by Senator

Henderson

page 1660

PAPERS

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.

page 1660

QUESTION

TROPICAL INSTITUTE

Senator ST LEDGER:
QUEENSLAND

– 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?

Senator McGREGOR:
Vice-President of the Executive Council · SOUTH AUSTRALIA · ALP

– If the report has been received, I shall lay it upon the table.

page 1660

QUESTION

WIRELESS TELEGRAPH STATION

Senator NEEDHAM:
WESTERN AUSTRALIA

asked the Minister representing the Postmaster-General, upon notice -

Is it the intention of the Department to transfer men from New South Wales to Western Australia to man the new wireless telegraph station proposed to be erected at Fremantle?
Is the Department aware that there are men in Western Australia competent to carry out the new duties in connexion with wireless telegraphy ?
Will it be the policy of the Government to give preference to men in the respective Stales where wireless telegraph stations are erected who are capable of efficiently carrying out the new duties entailed?

Senator FINDLEY:
Minister (without portfolio) · VICTORIA · ALP

– The answers to the honorable senator’s questions are -

No.
Yes.
Yes.

page 1660

DEFENCE BILL

Second Reading

Senator PEARCE:
Minister of Defence · Western Australia · ALP

– 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.

– 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.

Soldiers to be efficient should be exercised in camp annually, otherwise the men lose the incentive to home training, the habit of working in units, of moving and living in numbers and of ready obedience to orders.

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.

– 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 .

Senator W Russell:

– How will that suit the farming community?

Senator PEARCE:

– 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.

– 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

fee of £80 per annum should be charged, but the Government have decided that there shall be practically five years’ scholarships, and that so far from a fee being charged, the lads shall be paid a certain sum to recoup them for their outofpocket and other expenses, taking power, of course, to levy a fine for any delinquency of a minor character. Before a lad is entered, he will have to sign an undertaking, and his guardians to enter into a bond, that he will serve for a certain time as an officer of the forces. Immediately he enters the college, he becomes subject to the military law, and is practically in the same position as a permanent officer. Admission to the college will be only by competitive examination, and the lads chosen to enter it will be those who have passed best the competitive examination on the syllabus. The entrants to the college will be distributed on a population basis amongst the States. Each State will be given its quota on a population basis, and the competitive examination will be held therein.

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.

page 1672

COMMONWEALTH CONCILIATION AND ARBITRATION BILL

Debate resumed from 17th August (vide page 1606), on motion by -Senator McGregor -

That this Bill be now read a second lime.

Senator ST LEDGER:
Queensland

– 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.

– 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?

Senator MCDOUGALL:
New South Wales

– 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.

Senator Millen:

– 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?

Senator MCDOUGALL:

– We will accept it, certainly ; but we will leave the work.

Senator Millen:

– The members of the honorable senator’s union will not work under an award of the Court.

Senator MCDOUGALL:

– 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.

Senator Lt:

-Colonel Sir Albert Gould. - No; in the interests of a section of the community.

Senator MCDOUGALL:

– 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.

Senator McGregor:

– An amendment has been circulated.

Senator McDOUG ALL:

Senator McDougall:

– They have struck’ it out.

Senator MILLEN:

– 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.

– Is that the union of which the honorable senator was a member?

Senator MILLEN:

– 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-

Senator Long:

– That states what the branches “ may “ do, not “ shall “ do.

Senator MILLEN:

– 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.

To prevent lock-outs and strikes in re lation to industrial disputes;

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 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 ?

Senator Keating:

– It will affect Commonwealth public servants, but it will not tarry the matter any farther so far as the States are concerned.

Senator VARDON:

– 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.

Senator Blakey:

– Is not prevention better than cure?

Senator VARDON:

– 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 -

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;”

Senator W Russell:

– That is good enough-.

Senator VARDON:

– Will the honorable senator define it?

Senator Rae:

– The Judge can find time to do that.

Senator VARDON:

Senator W RUSSELL:

– 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.

Senator Vardon:

– The honorable senator was a good old Tory where the agricultural industry was concerned.

Senator W RUSSELL:

– 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.

Senator Vardon:

Senator McCOLL:

– 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.

Senator E J Russell:

– He did not get the fee.

Senator McCOLL:

– 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.”

Senator MILLEN:
New South Wales

– 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.

The CHAIRMAN:

– I shall put the paragraphs separately.

Paragraph a agreed to.

Senator KEATING:
Tasmania

– 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.

The CHAIRMAN:

– I shall put the subdivisions of paragraph b separately in response to Senator Keating’s request.

Senator ST LEDGER:
Queensland

– 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.

Senator Keating:

– We cannot do that here.

Senator ST LEDGER:

– 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?

Senator Gardiner:

– 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.

Senator Millen:

– 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.

The CHAIRMAN:

– 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.

Senator ST LEDGER:

– 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.

Senator Needham:

– 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.

The CHAIRMAN:

– I rule that, so far, the honorable senator has not been guilty of tedious repetition.

Senator ST LEDGER:

– 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.”

Senator Vardon:

– We ought to have a quorum present, as this is a very important subject. Q110rum formed?^

Senator ST LEDGER:

– 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.

– 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.

Senator McGregor:

– I should like to know. Mr. Chairman, whether the honorable senator is going to connect this judgment with the clause under consideration?

The CHAIRMAN:

– I take it that the honorable senator will try to connect the judgment with the question before the Chair.

Senator ST LEDGER:

– 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.

Senator Vardon:

– The honorable sena.tor says that we are really enacting a lawsuit.

Senator ST LEDGER:

– 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).

The CHAIRMAN:

– 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.

Senator ST LEDGER:

– 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.

Senator McGregor:

– I wish to know what this has .to do with the clause before the Committee?

Senator Lt:

-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.

Senator McGregor:

– He is dealing with the question of registration.

Senator Lt:

-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.

The CHAIRMAN:

– 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.

Senator ST LEDGER:

– 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.

-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-

prescribe a minimum rate of wages or remuneration, and in that case shall on the application of any party to the industrial dispute, or of any organization or person bound by the award, make provision for enabling some tribunal specified in the award or order to fix, in such manner and subject to such conditions as are specified in the award or order, a lower rate in the case of employes who are unable to earn the minimum wage so prescribed; and
direct that as between members of an organization of employers or employes and other persons offering or desiring service or employment at the same time, preference shall be given to such members, other things being equal ; and
appoint a tribunal to finally decide in what cases an employer or employe to whom any such direction applies may employ or be employed by a person who is not a member of any such organization.” Sections 28, 29, and 30 are as follows : - “28.(1) The award shall be framed in such a manner- as to best express the decision of the Court and to avoid unnecessary technicality, and shall subject to any variation ordered by the Court continue in force for a period to be specified in the award, not exceeding five years from the date of the award. “ (2) After the expiration of the period so specified, the award shall, unless the Court otherwise orders, continue in force until a new award has been made. “29. The award of the Court shall be binding on -
all parties to the industrial dispute who appear or are represented before the Court ;
all parties who have been summoned to appear before the Court as parties to the dispute, whether they have appeared in answer to the summons or not, unless the Court is of opinion that they were improperly summoned before it as parties;
all organizations and persons on whom the award is at any time declared by the Court to be binding as a common rule; and
all members of organizations bound by the award.” “ 30. When a State law or an award, order or determination of a State Industrial Authority is inconsistent with an award or order lawfully made by the Court, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.”

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.

Senator Gardiner:

– I rise to order. Do not the Standing Orders permit you, sir, to put an end to this stupid ‘ ‘ stonewall “ ?

Senator Lt:

-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.

The CHAIRMAN:

– On two occasions I have ruled that Senator St. Ledger is quite in order in reading at full length, if he chooses, the judgment.

Senator ST LEDGER:

– 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.”

Senator Givens:

– Would the honorable senator mind speaking a little more loudly ? We cannot hear him distinctly.

Senator ST LEDGER:

– I do not mind repeating the last paragraph for the honorable senator’s benefit.

In D’Emden v. Pedder this Court said -

The CHAIRMAN:

– 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.

Senator ST LEDGER:

– 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].

Senator ST LEDGER:

– 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.

Senator Lt:

-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? “

Senator Rae:

– Hear, hear.

Senator Lt:

-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.

Senator W Russell:

– How pessimistic the honorable senator is !

Senator Lt Colonel Sir ALBERT GOULD:

– 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

Senator KEATING:
Tasmania

Senator McGregor:

– The honorable senator has been long at the “ game,” and should be a good judge !

Senator McCOLL:

– 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.

AYES: 19

NOES: 8

Majority … … n

AYES

NOES

Question so resolved in the affirmative.

Paragraph b, sub-paragraph 11, agreed to.

Paragraph b, sub-paragraph111, agreed to.

Senator ST LEDGER:
Queensland

– 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.

Senator Long:

– How did Mr. Justice Higgins interpret the words “ fair and reasonable “ ?

Senator ST LEDGER:

– 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.

Senator McCOLL:
Victoria

– 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.’ “

Senator W RUSSELL:

– 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.

AYES: 6

NOES: 20

Majority … … 14

AYES

NOES

Question so resolved in the negative.

Amendment negatived.

Senator ST LEDGER:
Queensland

– 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.”

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– I have circulated an amendment on this clause. I move -

That after the word “ amended “ the letter (a) be inserted.

Court. Then we are asked to turn round and provide a means by which we can defeat that proposition.

Senator Sayers:

– Let it go.

Senator MILLEN:

– 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.

Senator McGregor:

– We only shut out lawyers in certain circumstances.

Senator MILLEN:

– 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.

Senator ST LEDGER:
Queensland

– 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.’ “

Senator ST LEDGER:
Queensland

– 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.

Senator Rae:

– They must be a corps of angels.

Senator ST LEDGER:

– 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 ; . . . .

Senator MILLEN:
New South Wales

– 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.

Senator Gardiner:

– Have we not as much reason to follow our leader as the Opposition have for following Senator St. Ledger ?

Senator Lt:

-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 ST LEDGER:
Queensland

– 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

Amendment negatived.

Senator RAE:
New South Wales

– 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.

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– 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.

Senator Rae:

– What do the words mean.?

Senator McGREGOR:

– 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.

Senator MILLEN:
New SouthWales

– 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.

Senator Rae:

– I do not think that would happen anyhow.

Senator MILLEN:

– 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.

Senator RAE:
New South Wales

– 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.

Senator ST LEDGER:
Queensland

– 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.

AYES: 5

NOES: 19

Majority … …. 14

AYES

NOES

Question so resolved in the negative.

Amendment negatived.

Senator RAE:
New South Wales

– 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.

Senator McGregor:

– We cannot accept any amendment of the clause.

Question - That the words proposed to be left out be left out - put. The Committee divided.

AYES: 7

NOES: 17

Majority …..10

AYES

NOES

Question so resolved in the negative.

Amendment negatived.

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.

– 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.

Senator Millen:

– What was the difference of opinion at the time between Mr. Peter Bowling and Mr. Hughes?

Senator Lt Colonel Sir ALBERT GOULD:

– 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.

Senator Rae:

– 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.

Senator Lt Colonel Sir ALBERT GOULD:

– 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.

Senator Pearce:

– As the proprietors of the Broken Hill mines did.

Senator Lt Colonel Sir ALBERT GOULD:

– 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.

Senator Findley:

– The honorable senator is putting up a stubborn fight for freedom of contract.

Senator Lt Colonel Sir ALBERT GOULD:

– 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.

Senator Rae:

– Did not Judge Pring deliver a lecture against Tom Mann after he had been acquitted?

Senator Chataway:

– Even the unions passed Tom Mann out.

Senator Lt Colonel Sir ALBERT GOULD:

.- 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.

Senator W RUSSELL:
South Australia

– 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.

Senator ST LEDGER:
Queensland

– 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.

The TEMPORARY CHAIRMAN:

– I would remind the honorable senator that we are discussing, not any particular class, but clause 11.

Senator ST LEDGER:

– 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.

Senator Millen:

Clause agreed to.

Clause 12 agreed to.

Title agreed to.

Bill reported with amendments.

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– 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.

Senator MILLEN:
New South Wales

– 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.

page 1746

NAVAL LOAN REPEAL BILL

Assent reported.

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/>.

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Senate
18 August 1910

Senator ST LEDGER:
QUEENSLAND

Senator McGREGOR:
Vice-President of the Executive Council · SOUTH AUSTRALIA · ALP

Senator NEEDHAM:
WESTERN AUSTRALIA

Senator FINDLEY:
Minister (without portfolio) · VICTORIA · ALP

Senator PEARCE:
Minister of Defence · Western Australia · ALP

Senator ST LEDGER:
Queensland