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Tuesday, 9 April 1946


Dr EVATT ("Barton) (AttorneyGeneral and Minister for External Affairs) . - in reply - For the convenience of honorable members I propose to give each of them a copy of section 51 of the Constitution with the proposed amendments inserted. It is true that the history of referendums in this country shows several trends. % This debate has certainly illustrated one of them. It is the trend towards shelving matters. When during the currency of the war we last discussed a proposal that, a referendum be taken, the proposal of the Opposition was- that we should shelve it until peace came, when it could 06 looked at without the intrusion of the war. Now that peace has come, it has been suggested, at any rate by some honorable gentlemen opposite, that a constitution convention should be called before we consider these three proposals at all. I agree that if we were considering a general revision of the Australian Constitution from beginning to end in the light of the experience of the last 40 years, something might be said in favour of a, convention called specifically to deal with the whole constitution on the lines of the original conventions; but what we are asking the House and the people to consider are three reforms of the Constitution, which, in our submission, are important .and urgent. One aspect of the matter that has escaped attention in connexion with the suggestion that a convention be held is that in section 12S of the Constitution, which deals with the amending process, it is clearly contemplated that this Parliament will be the originating authority in connexion with proposed alterations. The conventions were called before the Commonwealth was established because there had to be some body representative of the six colonies that could put forward a bill for submission to the Imperial Parliament, which ultimately passed the Australian Constitution Act. That situation was entirely different from that which rules to-day. The Constitution provides for its own amendment, and the authority to commence consideration of amendments is the Commonwealth Parliament. Should we have an elected convention or a nominated convention? I do not suppose any one would advocate a nominated convention. Every one suggests an elected convention. Would it be elected as this House is elected? If so, seats would be contested, and broadly we should have representation and representatives of the s-ame type a,s we have in this House to-day. In other words, we should have in an elected convention a body constituted very similarly to the House, of Representatives. I submit that the debates in this chamber* are similar to those that would take place at a convention. Certainly, the late Mr. Curtin, during the war period, and largely because of the emergency of the war, thought that for the- purpose of post-war reconstruction it would be a good thing to hold a convention representative of all parties in the Commonwealth Parliament and the six State Parliaments so that constitution altera tions could be brought forward on a nonparty basis. That convention was held. All the State Premiers attended, as did leading members of the Opposition in this Parliament. We agreed on formulae for the temporary transfer of certain powers from the States to the Commonwealth for five years after the termination of hostilities. All the State Premiers agreed and practically all the Opposition leaders agreed. The plan was that the States would refer those matters to the Commonwealth, as they are entitled to do under section 51 of the Constitution. If honorable memhers look at section 51 (xxxvii.) they will see that this Parliament is empowered "to' make laws for the peace, order and good government of the Commonwealth with respect to matters referred to the Parliament of the Commonwealth by the parliament or parliaments of any State or States ". We tried to use that power, but what was the result? In four of the States, references were made, but in two of them the agreed formula was not followed. In the other two States, Victoria and Tasmania, the Parliaments, in effect, made ' no reference at all. The result was that the mattter had to come back to the Commonwealth Parliament, which then submitted it to the people by referendum. Some of those who at thevention, which, was not an elected convention, supported the transfer of the powers, opposed the transfer on the hustings. Something tragic is associated with attempts to make our form of government fit the needs of our .people. It is not the fault of any one party, because, at various stages of our history, we have found the opposition party, whether it has been Labour, anti-Labour or nonLabour, opposing referendum proposals because they have been submitted by their poli tical opponents. In any event, I :hin the case for a convention at this si.age to deal with the specific matters referred to in these bills has broken down. It lias not been strongly pressed. The case for a reference of powers by the States te the Commonwealth Parliament also breaks down because Of the failure to have such a reference made on the last occasion. That is why I think the print of section 51 as proposed to be altered will help members. The real question is not what might be done under legislative powers, but whether power to legislate on these three topics will ever be given to the people of Australia acting through this Parliament. If honorable members will look at section 51, I oan illustrate my point in a moment. Aa it stands, the section says -

The Parliament shall . . . have power to make laws for the peace, order and good government of the Commonwealth with respect to-

(ii)   Taxation . . .

Power to tax is incidental to sovereignty. What would have been the position if at the original Constitution convention. members had risen and said, " Taxation! But

I do not believe in direct taxation. Therefore put a provision in the Constitution giving power to impose taxation, but only indirect taxation ". That would have been supported because of the great opposition in those days to direct taxation, which existed in 1901, I think, in only one State. Others might have held' the opposing view and claimed, that the only form of taxa'tion should be direct taxation. I ask honorable members to look down the list of powers in section 51. In paragraph (iv.) we have "borrowing money on the public credit of the Commonwealth This Parliament can pass laws for that purpose. But the critic who. does not like Constitution reform will say, " Oh yes, but what rate of interest are you going to pay?" Some might say, "No more than the cost of issuance", others, "Not more than 3 per cent ", others " not less than 4 per cent." and so forth. You might have in a situation like that - a body divided, not on whether the people should have the power over the subject-matter, but on how the legislation should be drafted when the power is granted. The same fallacy runs through the whole of this debate. The fathers of federation did not look at the matter in that way. They said that the Commonwealth Parliament should have power to make laws with respect to "banking, other than State banking". That, of course, protects the interests of the States in their institutions; but if that were proposed to-day, you would have the argument, " There might be an attempt to socialize or monopolize banking. Yes, we shall give the Parliament power over banking, but so that there shall not be nationalization of banking". That would be interfering with the discretion, not of the existing Parliament or succeeding parliaments, but of the people of Australia. Take paragraph (xiv.), which refers to insurance. The fathers of the Constitution did not say " The Commonwealth Parliament can deal with insurance, other than State insurance, but not so that there shall be nationalization of fire, life, marine, or any other form of insurance ". Neither did they say that there had to. be nationalization of insurance. They left it to the wisdom and discretion of the Parliament acting in the interests of the . people of Australia. It is possible to get even more controversial topics if one examines the list of' 39 subjectmatters. The subject of divorce and matrimonial causes, for instance, is a fruitful field for disputation and provides the same sort of argument that we' have had here. Take, for instance, subject-matter number xxvii, which deals with immigration and emigration, the great power of controlling the movements of people to. or from Australia.. We might say, " We want to insert a provision in the Constitution that in no circumstances or at no particular time should a person of a particular race come into Australia ". That, might have been reasonable in 1901; but the Constitution provides that it, is a matter for the Parliament to deal with. It is possible to give similar illustrations in -respect of every one of these powers. The question is whether .in relation to th*e three topics chosen by the Government the peoples should be given an opportunity to express their will on an Australia-wide basis. Whilst debate on the possible abuse of power .is interesting and often, informative, and invaluable as a guide to the legislation that may be passed, it is not a help to us in making the Constitution. The honorable member for Maranoa (Mr. Adermann) is well known in connexion with the controlling of pools for the marketing of primary products. He knows a great deal about this work. The theme of his criticism was that orderly marketing of primary products must be under grower control, which he believes to' be a better form of control than one in which there are too many representatives of the Government or the consumers. But the very slightest consideration will demonstrate that such a limitation could not be placed on such a power. Discretion must be left to the Government in exercising the power. The right honorable member for Cowper (Sir Earle Page) referred to the condition of hospitals in certain parts of the north coast of New South Wales. We accept his description of them, which reveals a very serious state of affairs mainly resulting from too few beds being available. Notwithstanding that that is a fact, I do not believe that is any argument against giving to the Commonwealth Parliament some authority to deal with hospital and medical services. On the contrary, 1 believe it to be an argument in favour of the granting of such authority to the Commonwealth. The authorities which, have had a practical monopoly in that regard have been the States themselves, and apparently the exercise of this power by the State of New South Wales has not been altogether successful. There i? no argument, I submit, against the power which is sought here.

Dealing with the industrial power ether honorable members have said that a law might be made in this Parliament which would override a decision of the Arbitration Court. The honorable member for Gippsland (Mr. Bowden) suggested that possibility. Whilst it is a possibility, it is a very unlikely one; I cannot imagine this Parliament ever making such a law. If this Parliament is clothed with power to legislate in relation to terms and conditions of employment in industry it might, however, in an appropriate case have to intervene in some great .crisis. However, I suggest, that that would be just as exceptional and unlikely as intervention by a State. Parliament after a decision had been made by the Arbitration Court or by the Industrial Commission of the State. I cannot remember a single case of that having happened in Australia. Criticism of this kind is but .another illustration of the fallacy that in order to determine whether a power should be granted to the Commonwealth Parliament one should conjure up possible abuses of such a power. Abuses could, of course, have taken place under every power vested in the Commonwealth. Under the power of taxation the Commonwealth could take away from a man everything that he owns. The Commonwealth's power in respect of taxation is not limited to income tax; it extends to the imposition of a tax on capital values. In these matters we have to trust to the wisdom of the legislature.

One of the most extraordinary arguments was advanced by the honorable member for New England (Mr. Abbott), who said there was something sinister in the bill relating to the power dealing with organized marketing. The honorable member saw something sinister even in the word " organized ". Yet we find tha t word in the published platform of the Australian Country party of the 1st June, 1938.


Sir Earle Page - We could supply the right honorable gentleman with more up-to-date platforms.


Dr EVATT - Although the document from which I am quoting may not be up to date it contains the phrase "assistance for organized marketing". The honorable member for New England made a great point, too, about " primary products ", which, I admit is a difficult term to define. The honorable member and others argued that it was quite clear that butter could not be a primary product, claiming that butter made on the faim by the producer was quite different from butter made in a factory under a process more do? 'y approaching what wo regard as 'manufacturing.


Sir EARLE PAGE (COWPER, NEW SOUTH WALES) - It is quite different in the income tax legislation.


Dr EVATT - That is so, but that legislation defines, jot a primary product but a primary producer. We are dealing, not with a person, but with a product. It cannot be claimed that butter made on a farm is a primary product, tut that if its manufacture takes place at a later stage in a butter factory it is not a primary product. At all events there seemed to be no doubt in the minds of members of the Australian .Country party when the party's platform' was drafted in 1938, because what they were then aiming at was the establishment of fair market values for butter and other primary products. Whatever the parties in Opposition may say against these proposals the question should be approached from the point of view, not of the possible misuse of a power, but, whether that power is national in character and should be exercised by this Parliament.

I propose to refer briefly to each of the three powers, in order to meet if I can some of the difficulties which have been expressed by . honorable members in rela-tion to them. The first is the. industrial power which we ask be given to this Parliament to make laws with respect to " terms and conditions of employment in industry, but not so as to authorize any form of industrial conscription ". This aim is expressed slightly differently in various proposals that have come before this Parliament ; but, broadly, it is intended to give the Commonwealth Parliament power to fix terms and conditions of industrial employment. Support for such a power during the last 20 or 30 years has been very, great. It has come from persons of all parties who have studied this problem and experienced the difficulties of administering the power. One of those whom I think I should mention is Mr. Justice Higgins, the famous Judge who was one of the early presidents of the Federal Arbitration Court. He had vast experience in that jurisdiction, and established the codes on which the later judges built. He is famous throughout the world for his work in that connexion. When, in 3920, the government of the day asked Mr. Justice Higgins for a suggested amendment of the power, he put forward a proposal that power should be given to this Parliament todeal with industrial matters generally, because the existing power dealt with " conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of one State ". As the Leader df the Opposition has pointed out, almost every word and every sentence of that has led to litigation. I was looking through the cases summarized in the book on the Australian Constitution that has just been published, and I found that they covered page after page on every clause. In these eases questions were asked as to what was meant by conciliation, what did arbitration mean, and what constituted an industrial dispute. It took twenty years for the High Court to lay down rules which would determine how an industrial dispute was created. In order to bring the case within the jurisdiction of the court there had to be a dispute ; the court could not deal with the matter until there was a dispute. There arose out of that a system under which logs were served by one side and counter demands by the other; but that was not enough. It was often argued in the court that the logs were not pressed forward, or that there was not enough seriousness about the demands, or perhaps not enough dislocation of industry to bring the case within the jurisdiction of Mie court. If a strike occurred it was apparent that the dispute was real, but it was at a very late stage that the court intervened in these matters. Under the system which grew up under the- existing power in 1935, disputes were very often manufactured.


Mr Menzies - Is not that still the case'


Dr EVATT - In connexion with conciliation and arbitration, it is still the case.


Mr Menzies - And will continue to be the case?


Dr EVATT - It is still the case if that is the power which remains in the Constitution. It will not he the case if this proposed alteration be made.


Mr Menzies - Placitum (xxxv.) is not amended.


Dr EVATT - That is so, but placitum (xxxv.) does not govern the proposed new placitum (xxxiv.a.).


Mr Menzies - Placitum (xxxv.) will still have the same meaning.


Dr EVATT - Yes, but the' new placitum (xxxiv.a.) will have an entirely broader meaning, as I shall show. Apart from Mr. Justice Higgins's opinion in support pf this proposal, there is the advocacy of the right honorable member for North Sydney, who put up various proposals with this object in view. Some of them were very nearly adopted. The most striking support of all is contained in two speeches by the Leader of the Opposition (Mr. Menzies) in 1933 and 1V)38. Those statements put the case so well for this power being conferred upon the Commonwealth that it is hardly necessary for me to add one word to them. The right honorable. gentleman has never said in this debate that he does not still hold those opinions. I do not twit him with having changed his opinion. I submit that he still holds that opinion', and that the case is unanswerable. After having dealt with other possible courses, the Leader of the Opposition said in 1933-

The third course, and, in spite of past heresies, 1 am to-day driven to it, is to amend section 51 by giving to the Commonwealth Parliament, power to legislate generally in respect of all industrial matters.

That is precisely the proposal contained in the Constitution Alteration (Industrial Employment) Bill, which proposes to alter the Constitution by inserting after placitum (xxxiv.) the following placitum : - (xxxiv.a.-). Terms and conditions of employment in industry, but not so as to authorize any form of industrial conscription :


Dr Gaha - The Leader of the Opposition is not a heretic now.

Hr. EVATT.- No, the right honorable gentleman was very careful not to put a different view. The reasons which he gave for the opinion cannot he answered, and no attempt has been made to answer them, in this debate. He dealt with the argument that the. honorable member for Northern Territory (Mr. Blain) advanced regarding centralization. That was a very important part of the argument. The contention of the Leader of the Opposition on that point was -

The immediate objection to this proposal is that it appears to involve a tremendous centralizing of ,power on a matter which, more Ulan most matters, frequently requires local and particular treatment. The answer to that objection is, paradoxical though it may seem, that you never will be able tn get a local treatment of a local dispute until you give all power to the Commonwealth. As I have endeavoured to prove, the present sub-section (xxxv.) has almost compelled the aggregation of disputes.

The matter cannot be raised in the 'Commonwealth Arbitration Court unless persons in at least two States co-operate to make an interstate dispute.


Mr Menzies - That will still be true, under the alteration proposed by the Attorney-'General.


Dr EVATT - If I make the first point good, that is the very alteration which I propose and which the Leader of the Opposition supported years ago. The right honorable gentleman adduced arguments which have not been answered, and ite repeated them with equal vigour, and just as convincingly, in .the budget debate on the 22nd November, 1938. Consequently, we have, in support of this proposal, an imposing list of names - Mr. Justice Higgins, who founded the system nf industrial arbitration, the right honorable member for North Sydney who was associated with all the great struggles in the pioneering work of arbitration in the Commonwealth and New South Wales, and the Leader of the Opposition himself, who probably has a greater working knowledge of the Commonwealth arbitration system in the last twenty years than has any other person in Australia, They all reach a similar conclusion. Why should not we accept that view? We insure a safeguard against industrial conscription, which it is reasonable to include. Why should it not be accepted? Tt is said, especially by members of the Australian Country party, that it would give to the Commonwealth Parliament power to declare a standard working week of 40 hours. That is quite true. It certainly would do that. The view which the Government takes is that, as a general rule. industrial disputes should be dealt with by a tribunal, but this proposal would certainly give such a power to the Commonwealth Parliament. Then we reach this extraordinary position: If we study the history of industrial arbitration, we shall find that the judges .exercising jurisdiction in dealing with standard hours have said repeatedly that they look to the legislature for guidance as to what should be the standard hours - that the fixing of standard hours should be a matter not, for the courts, but for the Parliament. The first -judge to make thai statement was Mr. Justice Heydon, President of the N3ew South Wales Arbitra tion Court, when a reduction of standard hours from 4S to 44, or perhaps some lesser number, was sought. Later, Mr. Justice Higgins adopted a similar view. A completely new light is thrown on this particular aspect of the controversy when we read, these references. In 1920, Mr. Justice Higgins, in the Timber Workers case, awarded a standard working week of 44 hours. Mr. Maughan, counsel for the employers, who objected to the reduction said : -

I simply want to explain that generally my association does take the view that this matter of the change in the standard hours of work for Australia is one rather for the legislature.

I do not know what legislature Mr. Maughan meant. He could ,not have meant the Commonwealth legislature, which had no power in that matter. I suppose that he meant the State legislatures. Mr. Justice Higgins then said-

I shall be very glad if the Legislature would take it in hand, but as it has not done so, I must act. The difficulty is that this question is continually coming up before me. It is not merely in th'e Timber Workers Onion case, but it is continually coining up before mc, and though I must decide only as to the Timber Workers Union I am anxious to get all the information or the light that can be thrown on it from other industries.

In his judgment (20 C.L.R., S46) Mr; Justi ce ' Higgins said -

I have waited for many years for the parliaments to speak, but they have not spoken. At present, in four of the States, there is no legislation even for a 48 hours week. In Victoria, there is no limit of hours for adults in factories other than that which may be imposed by a wages board in a particular industry. Some definite conclusion must be reached on the subject,

I do not desire to be misunderstood. I am not saying that we should express an opinion now as to whether such a matter as the standard working week should be dealt with primarily by the. legislature. My own opinion is that primarily, ,it is proper for the court to deal with the matter, but the legislature must possess authority over all aspects of industrial matters in accordance with its discretionary powers. The view of Mr. Justice Higgins showed that arbitration courts looked to the Parliament for guidance, and some States did pass legislation relating to this matter. In 1920, the Parliament of New South Wales passed an act directing the State Industrial Commission not to grant a working week exceeding 44 hours except in respect of certain industries. In 1921, the act was repealed.


Mr Menzies - It was, after remarks by Mr. Justice Higgins in 1920 that this Parliament provided that standard hours should be dealt with by the Full Court.


Dr EVATT - That is quite correct,


Mr Menzies - It was provided that three judges should deal with matters relating to standard hours.


Dr EVATT - That is. true. When Mr. Justice Higgins was considering a reduction of hours from 48 to 44 a week, a bill was introduced into this Parliament to prevent him from completing the inquiry unless two other judges sat with him. A lengthy debate took place in the

Parliament as to whether that law should apply to that case, and finally, it was decided that the law should not apply to the Timber Workers' case but should be the rule regarding all future cases. That point tells against the idea that' these matters should not be dealt with by the Parliament. If the Parliament considers that standard hours should be stabilized and no reduction should be made unless three judges deal with the case, that is an indication of the Parliament's will that, unless a strong .case is presented, no reduction shall be made.

I come now to the principal point made by the Leader of the Opposition in connexion with the addition of this power. Proposed new placitum (xxxiv.a.) provides -

Terms and conditions of employment in industry, but not so as to authorize any form of industrial conscription:

When honorable members read that paragraph, and the conciliation and ' arbitration power at present in the Constitution, they can appreciate the argument of the Leader of the Opposition. The right honorable gentleman declared that there will be no power under the new placitum to deal with conciliation and arbitration except in accordance with placitum (xxxv.) of the Constitution. It will still have the limitations on conciliation and arbitration which have already been expressed. That will be, he said, the code for dealing with the subject.


Mr Menzies - I put ' it this way : Either placitum (xxxv.) will continue to he the only provision in relation to conciliation and arbitration, or it will be mc arn nar] ess.


Dr EVATT - We shall assume that it will not be meaningless, so the only Dower of conciliation and arbitration will be that already in the Constitution.


Mr White - There is no obligation to use it?


Dr EVATT - That is a different point. The contention of the Leader of the Opposition is a more serious argument if it has any substance. It would be that, although we give to this Parliament power to deal* with industrial conditions generally, .we need not set up any other form of arbitration .except that contained in placitum (xxxv.). In a recent decision of the High Court in Pidoto v. Victoria (68 C.L.R., 101) I find a complete answer to that argument. The Chief Justice, Sir John Latham, said in his judgment-

The first objection to the Regulation submitted by the State of Victoria is based upon suction 51. (xxxv. ) of the Constitution-

That is the section on arbitration - which confers upon the Commonwealth Parliament power to make laws in respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State, lt is contended that this provision implies a negative - that it means not only that the Commonwealth Parliament shall have power to legislate in relation to industrial disputes there defined-

Those are the interstate disputes - and in the milliner there prescribed-

That is of conciliation and arbitration - but also that the Commonwealth Parliament shall not have power to deal with any otherindustrial matter or with any industrial dispute in any other manner.

In my opinion this argument cannot be supported. Section 51 (xxxv.) is a positive provision conferring a specific power.' The particular terms in which this power is conferred ure not, in my opinion, so expressed as to be capable of being so construed as to impose a limitation upon other powers positively conferred. Further, if section 51 (xxxv.) were construed so as to prevent the Parliament from dealing with industrial matters except under that specific provision.* similar reasoning would lead to the conclusion that the Commonwealth Parliament could not (under any legislative power) provide for the use of conciliation and arbitration in relation to any other matter than interstate industrial disputes.

That is broadly the view of the Leader of the Opposition - lt must, I think, be conceded, for example, that thu Commonwealth Parliament can, in legislating with respect to the Public Service nf the Commonwealth (Constitution, section 52 ( ii. ) , to provide for conciliation and arbitration in relation to matters such as wages, conditions and hours, whether 'or not any dispute about those matters is industrial, and whether or not it extends beyond the limits of any one State. In my opinion the objection to the Industrial Peace Regulations based upon section 51' (xxxv.) of the Constitution-

Those were the war-time regulations passed under the Commonwealth's defence power - must be rejected, 'because it finds no support in the words of this provision for the implied, prohibition suggested.

As a matter of fact, the High Court in a ease in 1930, or 1931, dealt with a somewhat similar point. The argument there was that the arbitration power could not deal with railway disputes because of the reference to railways elsewhere in section 51 ; and the court, in rejecting that argument said, in substance, that it had to look at each power separately, that each was a grant of power, and the court could not read it down by reference to other powers. However, that case is riot so direct to the point as the recent edge I have mentioned. [Extension of time granted.] Is it not clear that the whole list of powers in section 51 are simply subject-matters of power*, and that there is overlapping in many. cases? Let us look at proposed new placitum (xxxiv.a.) and placitum (xxxv.) together. One would not construe the new power, by reference to placitum (xxxv.) because, for one reason, the new power comes into the Constitution 46 years later. It is not as though they were put in the Constitution at the one time. Therefore proposed paragraph (xxxiv.a) will do what the Leader of the Opposition advocated in 1.938, that is, it will give the Commonwealth complete power over industrial matters. And with what result? There would be no necessity to create a dispute. The court could deal with the matter whether it was a dispute within a single State or an interstate dispute. It, would enable the court to take up matters without the procedural difficulties contained in the federal arbitration system, and, broadly speaking, the Government and the Parliament would be in a much freer position to deal with the question of industrial justice, seeing that industries are supported by tariffs, and financially by the Commonwealth and State .Parliaments.


Mr McEwen - The Government would achieve most of that, objective by deleting the last words in placitum (xxxv.).


Dr EVATT - No. I admit that the deletion of those words would' extend the arbitration power; but arbitration connotes a dispute, one party demanding something and the other party refusing it. That is not the basis pf.. the State industrial commissions. They act upon a claim without any dispute at all.


Mr Menzies - May I put 'one further question about this matter which I think is not touched by either of the cases cited by the Attorney-General. I agreed in thecourse of my speech that the expression, " terms and conditions of employment in industry ", taken by itself would coverthe whole gamut of the settlement of wages and conditions, and under thoseawards standing by themselves you. could set up a court, or not, according to your discretion, and could legislate direct, or not according to your discretion. I take it that the Attorney-General will agree with that? If he does so, I ask what, meaning now attaches to placitum (xxxv.) ?


Dr EVATT - The honorable member's point is that the new power -is sowide and embracing that you could do what is already contained in placitum (xxxv.) under the new power. That is to say, you might do it. There is great force in that contention. For instance we could,, in a system of arbitration, if we set it. u,p .under the new power, include arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. But it is not certain that we shall deal with' if in that way. We may not do so. Parliament might think fit not to make the exerciseof the jurisdiction dependent upon the existence cf a dispute. But we are leaving something in the Constitution which. might become, unnecessary.


Mr Menzies - And the effect would: be the same in your case if you -repealed placitum xxxv. altogether.


Dr EVATT - I do not say that, itwould, but I can see the reason for theright, honorable member's contention. I am not, repealing it, because I do not want it to be stated for one moment that theGovernment' does not wish to retain, arbitration. If we did that, the argument of the Opposition would be that theGovernment was trying to get rid of conciliation and arbitration, and wanted1 to settle all industrial disputes in Canberra.


Mr Fadden - The Government is merely ring-barking arbitration - killing: it, while allowing it to stand.


Dr EVATT - The proposal to cut out. all reference to arbitration from the Constitution would be regarded as something: worse than ring-barking; it would be like- chopping down a tree which, with all its faults, has grown to considerable proportions during the last 46 years. The honorable member's course, if he is in' support of the new clause, is to move to omit placitum (xxxv.). I promise that if he moves to omit placitum (xxxv.) the Government will consider the matter. However, 1 prefer- to retain it.

I pass now to marketing. The proposed power is in relation to the organized marketing of primary products. This is covered in proposed new paragraph (i.a.) ; and proposed new subsection 2 of section 51 provides that that power will not be subject to section 92. What has the debate revealed in relation to that? The honorable member .for Indi (Mr. McEwen) made the point that that power does not deal with production. It assumes that there are primary products coming into existence and gives to the Commonwealth power to pass laws for the organized marketing of those, products. Some cornmen t was made about the term "organized"; but it is equivalent to orderly; that is to say, the power must be exer cised so 'as to provide a system of marketing which will ensure that the primary products of the country shall be marketed in a way which will produce the best possible price for the crop as a whole, or the groups of commodities treated' as a whole. That is what the phrase means as it is used in the platform of the Country party, and 1 do not think that it means anything else according to the dictates of common sense.


Mr McEwen - The Attorney-General recognizes that organized marketing is a means to the stabilization of prices.


Dr EVATT - Yes; so that the farmer will obtain the best possible price for his commodity in the existing circumstances. Experience of gluts has shown that this objective is achieved through orderly marketing. It is true, as the Leader of the Opposition has pointed out, that in the 1937 referendum that power was not given in this form to the Commonwealth. Alongside the Commonwealth's limited power in this respect the States had control of domestic marketing within their boundaries, with the result that co-operation between the Commonwealth and one, or more, of the

State legislatures was required. If this power is granted the Commonwealth can do everything necessary, or incidental, to the organized marketing of primary products.


Mr McEwen - But nothing in respect of the prices of primary products.


Dr EVATT - Whilst the honorable member is correct in pointing out that price is the important thing, this is a means to that end. If the Government were to ask for power under the Constitution to fix prices permanently, the discussion would be transferred to a field which could not be limited to primary products. The purpose of organized marketing is to obtain the best price for the pooled commodity. Members of the Australian Country party have always striven to get the best price- through this system ; and it will be for the representatives of that party, the Labour party and other parties, when the relevant legislation comes before Parliament, to make sure that the conditions of marketing will be such that the goods will be presented to the consumer in the most attractive form so that the producer will s.et the utmost value for his products. It is useless to say that the proposed power does not include the fixation of prices; it does. Experience has shown us that the producers get the best prices in this way. We do not take a direct power over production.


Mr FADDEN (DARLING DOWNS, QUEENSLAND) - The Commonwealth has an incidental power over production.


Dr EVATT - That may be, but the essence of this power is to deal with primary products and the marketing of primary products in an orderly way, and to the best possible advantage through the system determined by the government. It may be grower-control, or governmentp] us-grower control. There is nothing in any statute passed by any State with respect to the marketing of primary products which fixes the prices of any product.


Mr McEwen - Control- over the wheat acreage is the only control which enables this Parliament to guarantee a price for "wheat.


Dr EVATT - I am not dealing with guaranteed prices.


Mr McEwen - That is the purpose of it.


Dr EVATT - Yes ; these are the means to the end, and the end will be attained through the efficiency of the means. But there is no marketing legislation in Queensland, or New South Wales, and I do not think in any other State, which could not, be covered by this power.. [. admit that were it a matter of guaranteeing a price and purchasing a commodity, other considerations might arise. I want the House to consider only the question whether this Parliament, in the interests of the producers -of Australia, should have the power to pass laws, selected by it, which will ensure that primary products shall be marketed in an orderly manner and be sold to the best advantage. Would that be a good or a bacl thing? Not one member of the Australian Country party can say that it would be a bad thing, because the orderly marketing of primary products has always been a plank in the party's platform.

Mr.mcewen. - I should say that it would be quite inadequate. A guaranteed price is an essential feature of stability.


Dr EVATT - There is an old French saying that " the best is the enemy of the good ". I do not claim that this is the best thing; nevertheless, it will be good for the primary producer, even though it will not give to him everything he wants. It is a step forward towards the objective of better conditions for the primary producers of Australia, and it is the duty of every one who represents them to support it, subject to one qualification. The honorable members for Gippsland (Mr. Bowden), Wimmera (Mr. Turnbull) and Maranoa (Mr. Adermann) almost supported it in this House. They were puzzled in regard to one or two aspects, but obviously were anxious to overcome their doubts, if they could do so, particularly - if I may say so- by having a definition of " primary products ". I do nor, know whether the. Leader of the Australian Country party is irrevocably committed to the closing part of his speech, during which his rhetoric led him into some misstatements, one of which was very serious, namely, that the late Mr. Curtin had been responsible for a pamphlet dealing with the 1936 marketing referendum, from which he read a passage. I checked his quotation, and discovered that Mr. Curtin had had nothing whatever to do with it.


Mr Fadden - It was the case for " No ", issued on behalf of the Labour party. .


Dr EVATT - However that may be, the right honorable gentleman was in error. Mr. Curtin did not authorize the opposition to that proposal. It is perfectly true that the Labour party was divided on the matter at the time; but Mr. Curtin had no share whatever in the production of that pamphlet. I hope that the right honorable gentleman will check that statement.


Mr Fadden - It was stated to be the . official document of the Labour party.


Dr EVATT - Under the statute, it had to be authorized . by members supporting the case in Parliament, and Mr. Curtin was not one of them. I do not think that the right honorable gentleman was a member of this House at that time. I did not attempt to embody in the bill a definition of " primary products ". In my lack of knowledge of country matters, I thought that butter was a primary product, whether it was made on a farm or in a factory. I could not see how it could change from a primary to a secondary product -because it was produced in a larger quantity or its quality was slightly different. Having gone into the matter very carefully, I propose to bring down in committee an amendment which will not Jimit the meaning of " primary products ". It is in these terms -

Without in any way limiting the generality of the expression " primary products " in paragraph (iA) , that expression shall be deemed to include flour and other wheat products, butter, cheese, and other milk products, dried fruit and other fruit products, and sugar.


Mr McEwen - What about canned fruits ? « ,


Dr EVATT - Mr. McCarthy,secretary to the Department of Commerce and Agriculture, whom I have consulted, is satisfied that those who put fruit in a saleable form in cans will be covered, because what they produce may well be described as " other fruit products ".I regard that as a sound opinion. [Furtherextension of time granted.] I do not suppose it will be suggested that wheat is not a primary product; therefore it need not be mentioned specifically in the amendment. I believe that I have covered most of the borderline cases. I am not making provision for the obvious cases. I am sure that all the doubts of the right honorable member for Cowper (Sir Earle Page) will be resolved now that butter is being, formally declared a primary product.

The last matter with which I want to deal is social services. The honorable member for Indi, for some unknown reason, has submitted an amendment that the bill be withdrawn and 'redrafted as two bills. We are proposing to place three questions before the people. That is not enough for him ; he wants four. He desires that the first bill shall- deal with the provision of the maternity allowance, widow's pensions, child endowment, unemployment, benefits to students and family allowances ; and that the second shall deal with sickness and hospital benefits and medical and dental services. We could, or course, submit a separate question in respect of each of the social services mentioned. I have not heard in this House any objection, even by the honorable member for Indi, to legislation directed towards the provision by the Commonwealth of the social services that are dealt with in this long list. The honorable member for Indi argued that controversy might be a ro used .regarding sickness and hospital benefits and medical and dental services; therefore, they might be dealt with in a different manner. The manner of dealing with th'em will be for this Parliament to determine. For some extraordinary reason, he wants to subtract sickness and hospital benefits from the list of social services with respect to which the Commonwealth may make provision. Why should not the Commonwealth Parliament have the power to make provision with respect to that matter? Why should that question be put to the people separately? I submit that there is no case for separation.


Mr McEwen - What I said was that powerful vested interests in the medical profession will organize opposition to that proposal.


Dr EVATT - We shall cope with them ; and if the honorable member will assist us, we shall successfully combat them. There will be vested interests opposed to every alteration of the Constitution. As soon as the campaign begins it will be found that, as occurred on the last occasion, the case for the proposals will be misrepresented all over the Commonweath. We cannot help that. Wo must have our case stated fairly. I believe that the honorable member for Indi means to imply that he is against the organization of such vested interests.


Mr McEwen - Act on what I said, not on what you consider I meant to imply.


Dr EVATT - The honorable gentleman said that the reason in favour of separation is that vested interests will organize opposition against the second part of the proposal. I decline to separate them. All of them are parts of the system of social services. This proposal, if. accepted by the people, will not compel the Commonwealth Parliament to legislate in respect of any particular form of benefit. ' The form will be for the Parliament to determine. All of these matters are related to each other ; all of them belong to the system of social services. The bill is described as a' social services bill, and there is no occasion whatever for the proposed separation. .


Mr Bowden - Does not the right honorable gentleman agree that, because of the unpopularity of the proposals in relation to sickness and hospital benefits and medical and dental services, there may be a risk of the defeat of all of them?


Dr EVATT - Not if I have the assistance of independent minded gentlemen like the honorable member. Why should it be unpopular to ask the people to give to their Parliament the power to make provision on their behalf for medical and dental services? I appreciate the honorable member's desire and intention to assist, I ask him and others who have spoken in a similar strain to support the bill in its present form. .If they prefer a system of national insurance in connexion with some of these benefits, they will be a't perfect liberty to make such provision should these proposals be accepted by the people.


Mr TURNBULL (WIMMERA, VICTORIA) - Would not the last proposal, if accepted, give to the Commonwealth the power to nationalize all medical services?


Dr EVATT - In my second-reading speech, I stated that it would not, and.l now repeat that opinion. What is the most important consideration in this debate? It goes deeper than a detailed examination of the bills. It arises in this House from time to time, occasionally in debates on'international affairs and on constitutional affairs. It is this: Are we to view such questions as Australians, and not as members of a particular State or as people who object to constitutional change? The Constitution is only an instrument, and the decision will rest with the people of Australia - a self-governing democracy. In putting forward these proposals, we have, established our case. They are specific. Any rate, the case that we intend to submit - with, I hope, the support of some honorable members opposite - will be the case for Australia.

Question put -

That the wards proposed to be left out (Mr. McE wen's amendment) stand part of the question.







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