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Wednesday, 1 September 1920


Sir ROBERT BEST (Kooyong) . - The honorable member for West Sydney has quoted the original Act, which, no doubt, did contain the words - in the definition of " industrial disputes " - " including disputes in relation to employment upon State railways." Those words were originally inserted because Parliament thought it had power and jurisdiction to specifically include the State railways. But, in the same definition, Parliament employed widely embracing words which, in themselves, would have included State railways.


Mr Brennan - Why not specifically include State railways?


Sir ROBERT BEST - Will the honorable member allow me to proceed ? This question then came before the High Court, and the Court, of course, dealt with those specific words relating to State railways, because it was a State railway case; they were not interested in the other words at the time. The judgment of the Court was directed towards the specific words which appeared in the definition of " industrial disputes." As those words, including " disputes in relation to employment on State railways," were before the Court it directed its attention to those words, and therefore the argument and judgment of the Court was concentrated upon their judicial interpretation, and the power of this Parliament to include them. The Court decided in 1905 or 1906 in the New South Wales Railways case that State railways did not come within the jurisdiction of the Commonwealth. Now we come to the recent decision of the Court, and so far as we have had an opportunity of .perusing it, it appears that jurisdiction as regards employees on State railways does rest with the Commonwealth. In other words, the former decision has been overruled. In the light of that decision, amending legislation was introduced as the Court had ruled to be ultra vires' the words " including disputes in relation to employment upon State railways." Those words were excluded from subsequent legislation, and the present law, therefore, is embodied in the Conciliation and Arbitration Act 1904-15. Perusing the present Act in the light of the decision given yesterday we find that " industrial disputes " includes " 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." There is no question about the railways being a State authority. As the word " industry " occurs in the definition we have to see what it means. Its definition includes " any business, trade, manufactory, undertaking or calling of employment." I have shown that railways are a State instrumentality, and a State industry constituted by an Act of Parliament of a State, and that a State railway undertaking within the meaning of the Act is an industry under the control of the Commonwealth. An industry is an undertaking, and the conjunction of these two definitions means that any State undertaking is immediately brought within the control and jurisdiction of the present Act. Assuming that the judgment of the Court is as we have read it in the newspapers to-day, Parliament has jurisdiction to deal with disputes in connexion with State railways. I quite agree with the view expressed by the Prime Minister (Mr. Hughes) that there is nothing in this Act which excludes railways in the light of the recent judgment, as State undertakings are included in the comprehensive words in the present Conciliation and Arbitration Act. Therefore, the railway employees have the right to come to the Arbitration Court, and so far as I know there is nothing which specifically excludes them. On the contrary, the definition is wide enough to include them.


Mr Ryan - Would not my amendment place the matter beyond all doubt, and make it possible for it to be understood by laymen as well as lawyers?


Sir ROBERT BEST - What is the use of the words when the greater includes the lesser. The honorable member for West Sydney (Mr. Ryan) will not deny my statement that the railways are State undertakings. He cannot dispute that, and If the honorable member admits that State railways are already included, anything he may insert cannot make any difference. I again emphasize the fact that the more words that are employed the more likely is it that their effect will be lessened because the mere fact of including certain specific things may have the effect of excluding others. We have a wide definition which covers all State authorities, and, as railways are State authorities, they are included. The fact that these words were originally in the Act and were subsequently deleted by a decision of the High Court does not affect the position. The Court does not look to the intention of Parliament, neither does it read Hansard for guidance in arriving at its interpretations. The Court does not consider the spirit of the Act, but looks solely at the words in the Act itself. Parliament must express itself in the Acts it passes. The Court expressly refused to consider what appears in Hansard, and would not consider what the Prime Minister said in 1904, as that has nothing to do with the case. The Court simply interprets the Acts that Parliament has passed, and it cannot get behind their provisions. I am surprised at the honorable member for West Sydney reading what the Prime Minister said in support of his contention, because, like the flowers that bloom in the spring, it has nothing to do with the case. We have to decide whether our railways are State authorities or State undertakings, and if they are I challenge the honorable member to deny that they are included in the present law.


Mr Ryan - Where is " State authority " or " State undertaking " mentioned in the definition of " industrial disputes " i


Sir ROBERT BEST - " Industrial disputes " are defined in the present Act as ' ' any dispute in relation to employment in an industry carried on by or under the control of the Commonwealth or a State, or under public authority constituted under the Commonwealth or a State." The definition of industry includes an " undertaking," and I have referred the honorable member to the definition appearing in the present Conciliation and Arbitration Act. It does not matter what words the honorable member seeks to include, they cannot possibly affect the position one way or the other, and it would be idle and superfluous for him to attempt to embody them in the Bill. If. one correctly interprets the judgment of the Court given yesterday, and if by any chance that judgment does not mean that Parliament has the power to include them, no words we can insert will give us jurisdiction in that regard. We can safely rely upon the wording of the present law, and I do not think any lawyer will seriously dispute their interpretation. Whilst I contend that that is the legal position, I desire to say that we have the power, if we choose, to exclude any particular body or undertaking, including State railways, and if they were specifically excluded I would not argue as I am. The mere fact that the words were once included and are now excluded is of no concern. All the Court can look to is the law as it is embodied in the Conciliation and Arbitration Act of 1904- 15. On the merits of the case as to whether they should be included, I contend that the Federal Parliament should not permit the employees of a State instrumentality to be 'included. I have always been in favour of exclusion-


Mr Brennan - This would be a good opportunity to exclude them.


Sir ROBERT BEST - I admit that an amendment might be moved in that direction at the proper time. The control of the railways is in the hands of the several States as provided in the Constitution. The State Governments are the owners of the railways, and they have the right to control their own instrumentalities as they think fit and proper in regard to wages, freights, and other matters. The State Parliaments have always been desirous of doing what is fair and just to their employees, and, as an old member of a State Parliament, I am prepared to say that that has always been their endeavour. The State Parliaments have constituted varioustribunals for the specific purpose of dealing with disputes between the Railway Departments and their employees.


Mr PARKER MOLONEY (HUME, NEW SOUTH WALES) - Where are they in Victoria ?


Sir ROBERT BEST - In Victoria they have their Classification Boards.


Mr Tudor - Which came only after twelve years of fighting.


Sir ROBERT BEST - But the State Parliament itself has ever endeavoured to do justice to its employees. At the instance of its employees it has not hesitated to constitute tribunals to deal on the most generous lines with their disputes. The State Parliaments have to pay the wages of their railway servants, and should continue to control them. It is not reasonable to make an assault of this kind on State rights. Sovereign powers reside in the State Parliaments in so far as they have not been specifically transferred to the Commonwealth, and since there is reserved to the States themselves the ownership of the State railways, the just and reasonable conclusion is that it was intended by the framers of the Constitution that they should at least continue to control their employees whose wages they have to pay. Therefore, on the merits of the case, State railway servants should not be brought within the scope of a Federal authority. On the contrary, they should be excluded, and I do not think the honorable member for West Sydney is helping his own case by putting forward this proposition.







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