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Thursday, 1 December 1938

Mr HOLLOWAY - There are some special cases.

Mr MENZIES - That is so, but I am dealing Avith two obvious possibilities. If, on the other hand, there was, in that industry, no interstate dispute, and there was no foundation for the jurisdiction of the Commonwealth Court, I am at a loss to understand how such a jurisdiction could be conferred upon the court by the request of the Minister, because juris-diction of that character is founded on section 51, paragraph 35 of the Constitution which provides for the prevention and settlement of industrial disputes extending beyond one State.

Mr Forde - A provision similar to the one provided for in my amendment was inserted in Commonwealth legislation by Sir John Latham.

Mr MENZIES - This is a matter on which nobody can say in a dogmatic fashion that any other honorable gentleman is wrong. I can only say that in my opinion there is very grave doubt as to the validity of such a provision. It is quite true that on more than one occasion, safeguarding provisions of this kind have been included in legislation by my distinguished predecessors, and perhaps this is the first occasion on which it has become necessary to give an explanation of the reasons for the doubts to which I have referred. I may sum up by saying that if there is an interstate industrial dispute, then such a provision as 'this is unnecessary; if, on the other hand, there is no industrial dispute, then I can find no warrant in the Constitution for the insertion of such a provision as this.

Mr Forde - I found it necessary to exercise the power conferred upon me by the Raw Cotton Bounty Act.

Mr MENZIES - I would describe the honorable member's action on that occasion as extremely wise and probably illegal, as many extremely wise things are. I cannot quarrel with the principle embodied in the amendment. Beyond all doubt, people who are put in a position to receive bounties, should be submitted to proper requirements in relation to their industrial conditions.

Mr White - The cotton-growers were not covered by any award at all on the occasion referred to by the Deputy Leader of the Opposition.

Mr MENZIES - That is so.

Mr Forde - It is possible that in the near future there may arise a situation similar to that in which the cotton pickers found themselves.

Mr MENZIES - What I am saying with regard to the legality of the legislation does not depend on whether or not there is an industrial tribunal in existence, although in the case of the employees affected by this bill, there probably will be one. This discussion recalls at once the discussion which took place upon what subsequently became known as " new protection ". Honorable members will recall that in that case the Commonwealth Parliament passed a law which provided a certain rate of excise, and provided for the collection of a lower rate of excise if a certificate were obtained from the president of the Commonwealth Conciliation and Arbitration Court, indicating that certain proper wages and conditions had been observed. In the famous cases of The King v. Barger, and the Commonwealth v. McKay, reported in volume 6 of the Commonwealth Law Reports, the High Court of Australia held that in examining the validity of a law of that kind, one must consider not merely its form, but its substance, and that although in form that law was an excise law, merely attaching to the excise conditions of an industrial nature, in point of substance it was a law to regulate industrial conditions themselves. Therefore it was outside the jurisdiction of the Commonwealth Parliament. By exact parity of reasoning, if the amendment of the Deputy Leader of the Opposition is agreed to, and the High Court follows the decision to which I have referred, it will declare that this provision, while professing to be a law relating to the payment of a bounty, is, in reality, a law dealing with industrial conditions in certain factories. I am bound to say, however, that the High Court was divided in Barger's case, the decision having b,en given by a majority vote. I am also bound to say that indications lately are that if 'the same issue arose again such a' view might not be upheld. I have been extremely interested, however, to notice that in a number of decisions given by the High Court of the United States of America in cases affecting the .New Deal, the principle followed by our High Court has been applied by the High Court of the United States cif America, with the result that certain laws that have been challenged have been declared invalid. No one who is in a position of authority can say positively or dogmatically, however, that this decision of the High Court would be followed to-day. As Attorney-General, having regard to the decision in Barger's case, I would not feel warranted in offering any other advice to the committee than that which I have given.

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