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Wednesday, 1 September 1920


Mr HUGHES (Bendigo) (Prime Minister and Attorney-General) . - The new clause proposed by the honorable member for West Sydney (Mr. Ryan) raises a question of a very important and far-reaching character. Honorable members, who have perused the debates, or have had the honour of membership of the House from 1904, when the Act was first introduced, will recall the fact that it was originally considered that the Commonwealth Court of Conciliation and Arbitration had jurisdiction over industrial disputes where the parties to a dispute were the Railway Commissioners and their employees of any State of the Commonwealth. In an important judgment delivered by the Court many years ago, however, it was decided otherwise. Several efforts were made to extend the jurisdiction of the Commonwealth Court of Conciliation and Arbitration by an amendment of the Constitution, but without success. The other day the High Court, during a judgment delivered in the Amalgamated Engineers case, indicated that, upon a proper interpretation of the Constitution, the limitations that the Court had heretofore thought were imposed on the Commonwealth by the presumption which it held was to be read into every section of the Constitution in favour of the States, were not correct. To what precise extent these dicta affect the various Acts that have been passed by the Commonwealth, or extend the powers of the Commonwealth in regard to future legislation, it would be premature to say. One thing however, is quite clear. If, as a consequence of the High Court's decision or its dicta, the Commonwealth has now jurisdiction over State instrumentalities, and the presumption which was formerly held by the Court in favour of State rights is not correct, then theCourt of Conciliation and Arbitration probably has jurisdiction over an industrial dispute where the parties are the Commissioners of Railways of any State and the employees of those Commissioners. Assuming tie latter hypothesis, namely, that the decision of the High Court does in effect widen the jurisdiction of the Commonwealth so as to give the Court power to make an award binding on State servants and State Railway Commissioners, we have to consider what is the position of railway servants under the Conciliation and Arbitration Act as it now stands. We have' to see whether there is, in fact, any prohibition or hindrance in the Statute which would preclude the engine-drivers, firemen, and cleaners associations from registering in the Court to-morrow, and, having registered, from filing a plaint, and in due course having it heard, and properly heard, by a Court having jurisdiction. In my opinion there is nothing in the Act, or in any amendments introduced by the Bill before the House, which would have the effect of excluding railway servants from the benefits of the Act. This, then, is the position: If the judgment of the High Court has the effect which some believe it will have - as for myself, I express no opinion, for I have not had an opportunity to carefully peruse the judgment - but if it has the effect that we are told it will have, and will so widen our jurisdiction as to include railway servants, and give the legislature power to include them, then they are ipso facto included. If, on the other hand, the judgment of the High Court does not do that, nothing we may do to the Statute can include them. No one can dispute that for a moment.


Mr Brennan - That might be all very well if by the Act itself they had not been ipso facto excluded.


Mr HUGHES - They have not been expressly excluded.


Mr Brennan - But you have excluded them.


Mr HUGHES - Where? Show me.


Mr Brennan - In the Conciliation and Arbitration Act.


Mr HUGHES - That is not so. If the judgment of the High Court has the effect which the honorable member for West Sydney contends it has, and there is nothing in the Constitution that excludes railway servants, then ipso facto they aTe included. If, on the other hand, I repeat, the decision of the Court does not go so far, and there are constitutional limitations on our power, so that we cannot by any Statute include these servants, nothing we can do - no words we can insert- will include them. That being so, and it is undeniable, I wish to state in clear terms - and I hope honorable members will follow me - what the position of the Government is in regard to the matter. Taking the High Court's decision as including the railway servants, the Statute being silent on the matter, that has the effect, of, ipso facto, including them, provided that there are no constitutional limits upon our power. Therefore, the Government does not propose to accept any amendment. If honorable members can point to any section of the Act that excludes the railway servants, then the Government will delete that section or amend it, so as to remove the prohibition. Further than that we cannot go.

I should like to say one other word. We have now been discussing, this measure for a very long while. Honorable .members are giving it an amount of consideration that promises to be fatal both to it and to other measures, which press for our attention. This Bill must, therefore, be disposed of, and that speedily. Honorable members have been taking ample time to deal with it. They have proceeded with its consideration in a very leisurely way.

I rose for the purpose of making these two statements. I have always been a very strong supporter of the inclusion of railway servants in our Arbitration legislation. I have always endeavoured to secure the authority necessary to include them. I make this statement most deliberately, that there is nothing in this Statute that excludes them, providing the constitutional prohibition has been removed. If I am in error in supposing that, I am willing that State railway servants shall be placed in exactly the same position as other unions, and the Government will be prepared to delete any words that exclude them.

I wish to repeat the expression of my opinion, that this measure has occupied the attention of the House far too long. We must clear it off the business-paper. Honorable members cannot complain of that, because there are other measures of a very pressing character that demand our attention. I ask them to complete the consideration of this Bill at the earliest possible moment. I do not wish to refer to the Standing Orders, but honorable members know that there are means of dealing expeditiously with any measure. I have occupied the attention of the' House only a few moments in connexion with this Bill.


Mr Charlton - The right honorable gentleman said that the Industrial Peace Bill was urgent, and he introduced the guillotine in connexion with that measure, but it is still in another place.


Mr HUGHES - I do not know what stage it has reached in another place. This is the first time I have heard a complaint of the speed at which another place disposes of business. It furnishes an object-lesson to this House. I think that one of these days the people outside will ask how domes it that one House can dispose of business in twenty minutes, and another House be still in the throes of parturition after forty hours. I ask honorable members to curtail their remarks, and to come to a division upon the proposed new clause. The Government cannot accept it, because it is an obvious placard. Its intention is not to include the railway servants. They are included already, if the judgment of the High Court is that it is constitutional to include them. There is too much politics in the discussion that has taken place in this Chamber. It all emanated from a section only of honorable memberson the other side, and a very small and insignificant section at that. I venture to ask those who have the best interestsof this country at heart to agree to the withdrawal of the proposed new clause, or to let the Committee come to a division upon it.







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