Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Thursday, 19 November 1914

Senator BAKHAP (Tasmania) . - It requires no very great degree of ability or acumen to come to the conclusion that this matter has been determined outside of this Chamber.

Senator de Largie - Of course it has been; it was a principle at the last elections.

Senator BAKHAP - Then the Administration in introducing this amending measure did not embody any provision for the enunciation of the principle, and it has been left to a private member of the Senate to take action, and evidently some action outside of this Chamber has been taken as a consequence of the notification which he gave. It does not need a Sherlock Holmes to indicate how the indorsement of the honorable senator's action has been arrived at by the Minister. I feel pretty sure that if we could get a declaration of his individual opinion - which is impossible in the circumstances I admit - he would acknowledge that this attempt to add a proviso to the section is in direct conflict with section 119 of the Constitution. It attempts to abrogate a clear obligation imposed by the Constitution on the National Executive.

Senator de Largie - Do you say that the Constitution provides for the Defence Forces being used for industrial purposes ?

Senator BAKHAP - I am no lawyer, but I take the responsibility of saying that if this question ever comes before the interpreting authority it will be laid down that this amendment is an attempted abrogation of section 119 of the Constitution, and is ultra vires. The section reads -

The Commonwealth shall protect every State against violence, and, on the application of the Executive Government of the State, against domestic violence.

Senator de Largie - Why should they not?

Senator BAKHAP - There is no mention of any industrial dispute.

Senator de Largie - No.

Senator BAKHAP - I do not care whether my utterances are popular or unpopular. I have a homely conception of what my duty is, and I ask honorable senators opposite, Is domestic violence arising out of an industrial dispute to be allowed to proceed untrammelled and unchecked in its force? Is that to be above every Australian law? It is not a question of interfering with any industrial dispute which is being peacefully conducted. Is it asserted that the Commonwealth Citizen Forces, as they are designated, are going to be called out to invade the precincts of the High Court and to assist in the forcible determination of any industrial dispute? No; the Forces of the Commonwealth are to be employed on the application of the Executive of a State, and with the sanction of the National Executive, to put down domestic violence irrespective of the source or the influence which caused it to arise.

Senator de Largie - A man like Denham, for instance.

Senator BAKHAP - I am not to be diverted from my point. I do not wish to see anybody shot down except our foes. I do not desire to see any of the inhabitants of Australia perish by Australian hands, but revolutions are not settled with rose-water, and the duties of government sometimes entail very stern obligations.

Senator Watson - They are not settled with shot and shell either.

Senator BAKHAP - I ask the honorable senator whether, if domestic violence arises out of an industrial dispute, it is to be regarded as above the law ?

Senator de Largie - When did it arise?

Senator BAKHAP - The honorable senator knows that it arises every day.

Senator de Largie - Give us some instances.

Senator BAKHAP - What did the strikers at Broken Hill do the other day ? They rode on the trams without paying, and they went down to houses and forcibly interfered with certain legal processes.

Senator Story - People do that in Melbourne every time they get a chance.

Senator BAKHAP - I recognise that every such occasion as that is not likely to entail the calling out of the Citizen Forces. I admit that anything of that sort can, by a capable State Executive, be satisfactorily dealt with, and it is only in some very remote contingencies, indeed, that the National Executive is likely to be invited to put in force that constitutional obligation which, undoubtedly, lies upon it to preserve a State from the effects of domestic violence.

Senator de Largie - Then you would call out the military to collect tram fares?

Senator BAKHAP - If men are forcibly interfered with in the exercise of a political or civil right, irrespective of any industrial dispute, I say unhesitatingly that force must be met with force.

Senator de Largie - Even if it is to collect tram tickets?

Senator BAKHAP - There is a tendency on the part of honorable senators who are the predominant political force in this Chamber to elevate any domestic violence arising out of an industrial dispute above the law and to exempt it from the ordinary provisions of laws designed to preserve order.

SenatordeLargie. - You are entirely erroneous.

Senator BAKHAP - Will honorable senators who are responsible for the fathering of this amendment and its embodiment in this amending measure tell me what force ought to be employed to put down domestic violence which has attained to such proportions that it is beyond the power of any one State to subdue it?

Senator de Largie - The police first, and the military afterwards.

Senator BAKHAP - There is a Federal obligation imposed by section 119 of the Constitution. I do nob know why the term "Citizen Forces" is used when " Militia and Volunteer Forces " are indicated by the sections of the Act which it is desired to amend. If the Citizen Forces are not to be called out, what force has the Commonwealth at its disposal with which to carry out its undoubted constitutional obligation ?

Senator Watson - The police.

Senator BAKHAP - What police ? Are there Commonwealth police?

Senator Watson - The police of the State where the trouble is.

Senator BAKHAP - The police is a State force. Are honorable senators so obtuse as to fail to understand that Commonwealth assistance will only be called for when the police force is found by the State Executive to be insufficient to put down domestic violence? Of course any sensible Premier or any sensible number of Ministers constituting a State Executive would, in the very first place, secure the services of the regular police to put down domestic violence. In all probability the next step would be to employ special constables, and that is an augmentation of the police force of the State. But if these forces are insufficient, and the Commonwealth is called upon to carry out its undoubted constitutional obligation, what is the next step? The section as proposed to be amended will only reserve to the Federal Executive the power to use the Permanent Forces in the subduing of domestic violence in a State. Senator de Largie has said that he is just as averse to the use of the Permanent Forces to subdue domestic violence as he is to the use of our Citizen Forces for that purpose.

Senator de Largie - I never said anything of the kind.

Senator BAKHAP - I must have completely misunderstood the honorable senator if he did not say so. When he receives the Hansard proof of his remarks I have no doubt he will see that he did say so in reply to an interjection by me.

Senator de Largie - I rise to a point of order. I have informed Senator Bakhap, by interjection, that I never said anything like what he has attributed to me. Notwithstanding my denial, the honorable senator has repeated his statement. It is the custom in this Chamber for one honorable senator to accept the denial of another. Senator Bakhap is ignoring all precedents in this matter.

Suggest corrections