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Wednesday, 3 April 1946


Mr WILLIAMS (Robertson) .- The honorable member for Barker (Mr. Archie Cameron) said a great deal, but very little of what he said was to the point. This debate is a. forerunner of the confusion that is likely to arise when the referendum proposals are before the people. It will be necessary for the Government to state its case very clearly and very simply, because there will then be many persons who, like the honorable member for Barker, will set out to confuse the minds of the people. A referendum was held in 1944 in which the Government asked the people to grant to the Commonwealth Parliament fourteen additional powers. This request was refused, and in October last, the High Court had before it a case in which the Attorney-General of Victoria brought an action against the Commonwealth of Australia in respect of the Pharmaceutical Benefits Act. In that ease it was decided that the AttorneyGeneral of a State was entitled to bring an action for a declaration that federal legislation which interferes with the public rights of the citizens of a State was invalid. The Commonwealth Parliament had passed the Pharmaceutical Benefits Act, a fine piece of legislation, designed to provide free medicines for the people of Australia through the agency of approved chemists. The Attorney-General of Victoria, when the Dunstan Government was in power, asked the High Court to declare this act invalid. The High Court gave the matter deep consideration, and after hearing argument, reserved its decision. Then, on the19th November, it declared that the Pharmaceutical Benefits Act was invalid; that, in fact, the Commonwealth Parliament had no power under the Constitution to pass an act of that kind. The judges were at great pains to state their reasons for the decision, and it is evident from those reasons that other Commonwealth legislation, providing for social services, some of which have been in operation for many years, will most probably also be invalid. The provision of such social services as maternity allowances, unemployment and sickness benefits, widows' pensions, and child endowment may be outside the power of the Commonwealth. Is it expected that the Government shall stand idly by without taking action to place beyond question the power of the Commonwealth in respect to these matters, when it is open to the AttorneyGeneral of any State, at any time, to move the High Court for a declaration that, the legislation is invalid? If such a declaration were made by the High Court in respect of other social services there might be no child endowment, no unemployment and sickness benefits, no widows' pensions and no maternity allowances. Honorable members will admit that maternity allowances represent a magnificent social benefit by which a woman may draw a certain sum of money before the birth of her child, a furthersum upon its birth, and receive still further payment later on.


Mr Abbott - Does the honorable member think that the power of the Commonwealth to legislate in respect to such matters should be written clearly into the Constitution?


Mr WILLIAMS - Yes.


Mr Abbott - And that there should be no going to the High Court for rulings regarding the validity of Commonwealth legislation ?


Mr WILLIAMS - If the honorable member for New England reads the judgment delivered by the justices of the High Court in the Pharmaceutical Benefits case, he will see that it is almost certain that if some other phases of Commonwealth social service legislation were challenged they would be declared invalid. After the decision to which I have referred, the Government had the advice of five eminent lawyers regarding the validity of Commonwealth social service legislation. All of them, including Mr. Barwick, K.C., of New South Wales, said that the powers of the Commonwealth were doubtful in respect of unemployment and sickness benefits, maternity allowances, widows' pensions and child endowment. Commonwealth power was valid in regard to old-age and invalid pensions, because it. was expressly written into the Constitution. When we read the judgment of the High Court, and study the Constitution itself, it is difficult to understand how any one could have advised the Commonwealth Government that Parliament had power to pass legislation in respect to the social services referred to. Those who gave that advice were obviously relying on section81 of the Constitution, which reads-

All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund to-be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.

Sections 51 and 52 clearly set out what powers the Commonwealth Government possesses, and some of the advisers of the Commonwealth Government have bared their advice upon flimsy arguments indeed. The High Court did not seem to have much difficulty in arriving at the conclusion that there was no legal power in the Commonwealth Parliament to legislate in regard to certain social services.

Now it is proposed to ask the people for authority to have the powers now in doubt written indelibly intotheConstitution. The forthcoming referendum cannot be compared with the last one. The people will be asked to vote in respect of three powers only -social legislation, organized marketing and the terms and conditions of employment. I regard thelast as the provision of a 40-hours week. It is proposed t h at the people shall vote on these three proposals separately, in contra-distinction to the method followed at the last referendum, when they were required to accept or reject the Government's proposals en bloc. This time it will be competent for the electors to accept or reject any one of the powers. The referendum is to be held on the same day as the general elections. This is a very wise decision. For one thing, it will save the country the expenditure of at least £30,000, and it will enable the issue to be put more clearly. At the last referendum the people were asked to grant so many powers that they were confused, and State representatives were frightened that if the powers were granted State parliaments would be reduced to the status of shire councils. Therefore, they were naturally opposed to the granting of the powers. Another advantage of holding the referendum on election day is t hat the entire Labour organization will be mobilized to put the case before the people. The Labour candidate in every electorate will bethe advocate for the Government's referendum proposal. Let me emphasize that the Government is not asking for new powers in regard to social services. It is only asking the people to confirm the Commonwealth Parliament in the use of powers which it has long exercised. A doubt has been thrown on the validity of those powers, and the Government is asking that that doubtbe removed. This disposes of the old argument that the people should not t rust the Labour party with more power. Those who attempt to employ that argument during the forthcomingcampaign will, in effect, be confessing their belief that the Labour party is going to win the elections, whereas no one who votes on election day can be sure who will win. It would be a disaster for the country if the Government's proposals for the alteration of the Constitution were to be rejected. The people are demanding social and economic security. They are demanding the four freedoms, including freedom from want. Therefore, it is imperative that the powers which have, in fact, been exercised by the Commonwealth for many years, should be written into the Constitution for ever. The High Court has declared that certainsocial security legislation isof doubtful validity. The Government has published the opinion of eminent barristers to the same effect. What will be the position if the powers sought by the Government be refused? It is open to the Attorney-General of any State to go to the High Court and challenge the social service acts. If that happens, these acts that we have regarded in the past as being valid may be held to be invalid. What will be the position then? The people will be without this excellent legislation which was passed for the relief of the oppressed. It has been contended by honorable members opposite that the States can pass the appropriate legislation. But the States might not do so, and, even if the lower Houses in the State legislatures did agree to such laws, it is probable that the Legislative Councils would reject them. The people of Australia should know that this excellent legislation is on our statute-book and that by voting for it at the referendum they keep it there for all time.

I now come to the bill dealing with terms and conditions of employment in industry.For some time past, organized labour in Australia has been pressing the Government to take steps to introduce a 40-hour working week. The Government has said that it has no power to introduce legislation for this purpose or for the purpose of fixing the basic wage. If this bill is passed and its proposals are approved by the people at the referendum, the Government will have the power which it now lacks.


Mr Abbott - But will the Government use it?


Mr WILLIAMS - I hope so. The only industrial power granted to the Commonwealthin the Constitution relates to conciliation and arbitration in disputes extending beyond the limits of any one Stale. The late Chief Justice Knox, in the case of the Waterside

Workers Federation of Australiav. Commonwealth Steamship Owners Association, stated-

Under section '51 (xxxv.) "of the Constitution the Parliament has power 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. This power may be paraphrased as 'a power to make laws with respect to the prevention or settlement of industrial disputes subject to two conditions, viz.. that the prevention or settlement shall be effected by means of conciliation and arbitration, and that the -disputes to be dealt with shall be confined to those which extend beyond the -limits of one .State. lt is clear that this power does not .authorize the Commonwealth Parliament to regulate conditions of employment by direct legislation, e.g.. to prescribe by Act of Parliament the minimum rate of wage to be paid or the maximum number of hours to be worked.

It 'has been contended that the Commonwealth might have the power under the External Affairs powers granted by .sec tion 51 (xxix.) of the Constitution,. The Commonwealth was an original party to the Treaty of Versailles, Part XIII. of which set up a permanent labour organization. The decisions of the International Labour Office are .in the form of recommendations, or draft conventions, and it was thought that, if these recommendations wore adopted in Australia, they would have the form of- a treaty and that, acting under that power, the Commonwealth could legislate for a 40- hours week. In the case of King v. Burgess, ex parte Henry,Mr. Justice Evatt, as he then was, and Mr. Justice McTiernan said this, in a joint judgment - . the legislative power of the Commonwealth over "external affairs" certainly includes the power to execute within the Commonwealth treaties and conventions entered into with foreign powers. The legislative pi. wim- in section 51 is granted "subject to this -Constitution " .-o that such treaties and conventions could not be used to enable the Parliament to set at nought constitutional guarantees elsewhere contained, such, for instance, as sections 0. 28, 4.1, SO. 92, 99. 100, 116, or 117. But it is not to be assumed that the legislative power over external affairs " is limited to the execution of treaties or conventions: and, to pursue the illustration previously referred to, the Parliament may well be deemed competent to legislate for tin; carrying out of "recommendations" as well as the "draft international conventions" resolved upon the International Labour Organization or of other international recommenda tions or requests upon other subject-matters of concern to Australia as a member of the family of nations.

So it may still be argued by some that, if those conventions of the International La.bp.ur Office are 'adopted in Australia, the Commonwealth might be able to legislate with respect to hours ' of labour. However, a review of judicial decisions of the past and the 'opinions of the legal profession to-day indicates that the matter is extremely doubtful. I am afraid that, unless the power to legislate for a 40-hours working week is granted to the Commonwealth, the workers will not get it.


Mr Abbott - Why ?


Mr WILLIAMS - -Because it can only be granted by the Arbitration Court or by this Parliament.


Mr Abbott - Does the honorable member think that the Arbitration Court will not give justice to the workers ?


Mr WILLIAMS - It might very welt give justice, but there ' would be no disadvantage in this Parliament dispensing justice. The Leader of the Opposition said he hoped that this Parliament would not fix hours of labour. I hope that it will do so. We have been elected by the people to govern the country. Why should we hesitate to fix the hours of "labour for the workers? Once elected by the people, we have a duty to govern rightly on their behalf. If we take . the view that a 40-hours week is essential in all industries, we should have the courage to pass legislation for that purpose. We should also legislate to fix the minimum basic wage. At present, the basic wage rates fixed by the arbitration courts in the different States are: -

I consider that these rates are quite inadequate.. I trust that, if the power to legislate in respect of terms and conditions of employment be granted to the Commonwealth at the referendum, this Parliament will, immediately after the elections, enact legislation providing for a 40-hours week and an increase of the basic wage in all States by at least 30s. a week. If it does so, it will do something really decent for the workers.

I refer now to the bill dealing with organized marketing of primary products. During the war, under a Labour regime, farmers experienced prosperity. The Country party, which professes to be the friend of the farmers, shared in the administration of the Commonwealth for years prior to the war, but it did not do half so much for primary producers as the Labour party did in a few years. The Labour Government was able to achieve a great deal for the farmers because it was assisted by the defence powers which operated during the war. The Attorney-General did not state in his second reading speech what the Government proposes to do with respect to organized marketing,but doubtless the electors will be informed. Farmers want to know a great deal about organized marketing. I take the view that the power sought by the Government ought to be granted. I am confident, that, if it is granted, it will be widely used for the benefit of primary producers. Figures have been cited to prove the great prosperity experienced by farmers in recent years. We do not want the farmers to go back to the conditions of the bad old days, when they had to sell oranges, for instance, at 4s. or 5s. a case. We want to keep prices for primary products at a high level, and that can be achieved only by sound organization of marketing.

So this Government is to go to the people again with a referendum asking for the granting of threeimportant powers. The first request is for the people to place beyond doubt the right of the Commonwealth Parliament to exercise certain powers which it has used in the past and under which it has enacted some very fine social security legislation. We want the people to write that power into the Constitution for all time. We wantthe people also to giveto this Par liament the power to fix maximum hours of labour and minimum wages. There have been attacks upon the arbitration system, and such attacks will continue to be made. The system has its merits, but there are certain things which the Arbitration Court cannot do but this Parliament can do. In the important years immediately ahead, the Commonwealth Parliament should be all-powerful with regard to hours of labour, wages, and conditions of employment. I trust that the Government will state its case clearly and simply to the electors, and that the Prime Minister will state, in his policy speech, exactly what the Government proposes to do in the immediate future if it is given the powers which it seeks.







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