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Thursday, 17 June 1926


Senator PEARCE (Western Australia) (Minister for Home and Territories) . - I move -

That the bill be now read a second time.

The bill provides for the insertion in section 51 of the Constitution of a new paragraph (v) a. - "Protecting the interests of the public in case of actual or probable interruption of any essential service." It is a necessary power for the Commonwealth to possess, because neither the Commonwealth Parliament nor the Government has constitutional power to take any action when the economic life of the country is threatened by an actual or probable interruption of essential services. Profiting by the experience of other countries, and realizing that the Commonwealth Government has not the power effectively to intervene, even should the very existence of the people be endangered, it must be admitted that there is necessity for an amendment of the Constitution in this direction. Nationally, the Commonwealth must be empowered to ensure the noninterruption of essential services, and that is the aim of this proposal. Without such power no Government can be deemed to be national. Essential services are services upon which industries are dependent for the continuance of their operations without interruption. There can be no doubt as to the meaning of the term. It is conceivable that, internally, a position might arise as disastrous as external war ; yet the Commonwealth authority has now no power to intervene for the protection of the nation. This bill seeks power to deal with abnormal circumstances. Under the Crimes Act of 1926, the GovernorGeneral is empowered, where he is of opinion that there exists in Australia a serious industrial disturbance threatening interstate trade or commerce, to issue a proclamation to that effect. During the currency of the proclamation, participation in, inciting to or aiding a lockout or strike in relation to employment connected with such trade or commerce, or with the provision of a public service by the Commonwealth, are made offences. These provisions, however, only exercise a deterrent effect in advance of the offences, and only enable the Government to act in relation to the offences by prosecuting and obtaining the infliction of penalties. In the case of an upheaval such as that just ended in England, the Commonwealth would have no power to step in to prevent loss and suffering to the public. If essential services - food supply, transport, fuel, &c. - were interrupted, the Commonwealth could do nothing but prosecute in cases where a law, such as that I have already mentioned, had been broken. It is true that a State could assume general control of its own territory and of all persons in it. The State could commandeer supplies, and arrange for rationing the public, but in the case of an extensive strike affecting, say, coal, it would be quite impossible for South Australia, for instance,, to do anything to assist the position. Thus, some States might suffer most severely owing to the withholding of essential supplies from other. States. The Commonwealth has no general power to preserve good order in the community. Section 119 of the Constitution provides that the Commonwealth shall, upon the request of a State, protect it against domestic violence, but this power depends upon the request of the State. This section is based upon the view that domestic violence is a matter which concerns only the State within whose borders it takes place. That is not a true view. In so far as it is merely violence, it may be a true view, but in so far as it leads to an interruption of essential services to the public of other States, it is unsound in principle. The object of this amendment, therefore, is to confer upon the Commonwealth greater power than that of imposing; penalties for breaches of the law - to enable the Commonwealth to intervene, if necessary, for the protection of the interests of the public. The power to protect the community in the case provided for should exist in an effective form. It does not exist in an effective form at present, and it cannot be made so to exist unless it is conferred upon the Commonwealth ; and unless the people approve of this power being vested in the Commonwealth,, the Constitution will leave the Commonwealth Parliament devoid of a power that should be constitutionally conferred upon it.. This power is necessary to enable it to exercise what is the very essence, the raison d'etre, of every national Government ; that is to say, the power to effectively act or intervene in cases of serious disturbances or crises disrupting interstate trade and commerce or threatening the very economic existence of the whole community.

I now desire to refer to one or two occurrences to show that this is not in any sense panic legislation or a bill for an amendment of the Constitution that is not warranted by facts that are within the recent knowledge of the public- of Australia.. It is assumed by those, who oppose the extension of power that a

State is always able, if it is willing, to protect the public; but I want' to give an instance of a State being unable to protect the public. I refer to the police strike in Victoria. The State Government was quite willing to protect the people on that occasion, but it was helpless, because the arm upon which it depended to afford that protection refused to function. I happened to be in Melbourne on the occasion of that strike. There were only two Commonwealth Ministers here, at that time - the then AttorneyGeneral, Sir Littleton Groom and myself. There was at the time a state of absolute violence. Property was wrecked, and a man was murdered in the streets of Melbourne, so that nobody can deny that there did exist a state of violence threatening the well-being of the community. That violence^ however, was not carried on by those' who had gone on strike. It was not due to the police who had refused duty, but it was the work of practically the whole of the criminal element in and around Melbourne,, who-, knowing that the power that restrained them- from their evil deeds had been withdrawn, assembled and proceeded to wreck and rob in the heart of the city. Now, it must be remembered that the Commonwealth Government, in order to function, has to have in ©very capital city of Australia certain properties and certain services. It is true that the Victorian Government, when it found the situation developing in ' such a way as to be beyond its control, could at that time under the section of the Constitution that I have quoted, have appealed to the Commonwealth Government for protection against that domestic, violence.


Senator Needham - Did it ?


Senator PEARCE - It did not; but it could have done. By the time the situation had so developed that a state of domestic violence was known to exist, it would have been too late, if that criminal element had been intelligently led, to appeal to the Commonwealth Government. It was the very cupidity of those who took part in those acts of violence that eventually rendered them helpless. I ask honorable senators: to contemplate what might have occurred had these wreckers been intelligently led by some person with malevolent designs against the Government of this country,

Commonwealth and State. If, instead of directing their violence against the shops in the centre of the city, wrecking the windows and stealing the contents of those premises, they had proceeded to break up the telephone exchanges of Melbourne, and had gone to the Treasury buildings - which on the night of that riot were protected by one solitary policeman, and where there were millions of pounds in gold - or had proceeded to the Victoria Barracks some distance away where there were arms and ammunition at that. time, guarded only by an unarmed caretaker, how could the Commonwealth Government even if it had been called upon by the State Government to intervene have protected the community 'against that domestic violence? I wish to place it on record that on that occasion, the Commonwealth Ministers who were in Melbourne, realizing the danger from ocular demonstration - because we saw ourselves what was being done - took action on our own initiative to bring up armed soldiers and sailors to protect the telephone exchanges and the Treasury buildings. We saw that, if the situation developed, as it appeared to be developing, once those premises were wrecked, and the military barracks were seized, the Commonwealth Government would be powerless to intervene, even if called upon by the State Government to do so. I have reminded honorable senators of a state of violence that has actually existed. It is no imagining of a fevered brain. We have to look stern facts in the face, and realize that what has happened once may happen again. I say, therefore, that this power, which to-day reposes with the States, and has never been abused by them - no honorable senator can say that the States who have the power to-day have ' ever used it in a tyrannical fashion - should be vested in the Commonwealth. If the States can be relied upon not to use it unwisely, to the detriment of the liberties of the people, why should not the Government of the Commonwealth be equally trusted with that power? Why should it not be trusted to use it with the same wisdom and restraint as the State Governments have shown in the past ? I now came to another,, and equally unpleasant, episode in our history. It is of more recent date. I refer to the strike of British seamen. We have seen in the State of

Western Australia, not only on that occasion, but on a previous occasion when there was industrial trouble on the wharfs at Fremantle; officers of the Commonwealth who administer Federal law - quarantine officers, Customs officers, and postal officials - prevented by physical force from carrying out their duties. We have seen the Prime Minister of the Commonwealth appealing to the Premier of that State to use the power that is possessed by the State to-day, and was vested in the State at that time, to protect those Commonwealth officers in the administration of Commonwealth laws. We have had the spectacle of the Premier of that State failing to respond to the appeal, and refraining from giving the protection needed. We have seen the Commonwealth law brought into contempt by the action of irresponsible persons and defied by them. Let me give yet another instance of this kind - one that occurred in Queensland during- the British seamen's strike. In the course of the railway strike there - a strike against the State Government itself - postal officials endeavoured to enter a railway station to obtain the mails from the mail vans for the purpose of carrying out their duties - and were prevented by physical force from doing so. The Premier of that State was appealed to by the Prime Minister ; but again there was failure to give the necessary protection to enable those officials to carry out their duties under the Commonwealth law. I place those instances on record.


Senator Barnes - Has not the Commonwealth Government now the necessary power to give effect to Commonwealth law ?


Senator PEARCE - We have power under the Crimes Act to punish those who interfere with Commonwealth officials carrying out the laws of the Commonwealth ; but I am using these illustrations to show that, as in the case of the Victorian police strike, a State Government may be- impotent - that it may be without the protection necessary, or that, as in the case of the Western Australian and Queensland troubles, it may decline to use its power.


Senator Foll - In the Queensland trouble, could the Commonwealth Government, armed with these powers, have taken over control of the State railways ?


Senator PEARCE - Not being a lawyer, I am not prepared to answer that question. At all events, the facts, as I have stated them, cannot be gainsaid. They are well known to every one who is conversant with recent history. We must either be in favour of maintaining essential services under governmental direction and control, or against organized government. If we believe in responsible government


Senator Findley - We are against this Government, at all events.


Senator PEARCE - Does the honorable senator, by that interjection, mean that he believes in mob rule, if he is not in favour of a government that is in office ?


Senator Findley - I believe in trial by jury. That is what this Government denied certain people not long ago.


Senator PEARCE - The honorable senator is in this dilemma: either he believes in a government, irrespective of its political colour, having the right to maintain law and order, or he does not. I have already shown that in certain circumstances it is necessary that the Commonwealth Government should have the power to step in and maintain law and order, and protect essential services of the community.


Senator McHugh - What would happen if a State Government sought toprevent the Commonwealth from intervening?


Senator PEARCE - At present the Commonwealth Government has no right to step in except at the request of a State Government.


Senator McHugh - But what would happen if a State Government resisted intervention by the Common wealth ? We should have civil war.


Senator PEARCE -If this amendment of the Constitution is agreed to, the people will have declared that the Commonwealth Government shall have power to maintain order and good government. Surely the honorable senator is prepared to trust the Parliament of which he is a member ? Every government enjoying the support of a majority in this Parliament can be trusted to use its power as wisely as any State Government does, no matter what its political colour may be. My other point is that opponents of this proposal declare that the Government wishes to have the right to employ military forces to settle industrial disputes.


Senator Findley - And there is no doubt about that.


Senator PEARCE - Even in this chamber we get the echo of that objection.


Senator Findley - We have the Minister's own statement that military and naval forces were employed during the police strike in Melbourne.


Senator PEARCE -If the honorable senator will permit me to continue, I should like to direct his attention to the fact that every government, no matter what its political complexion may be, if it is to continue as a government, must, if it is challenged by force, meet force with force. Let me also remind him that in the early stages of the disturbance in Western Australia, the State Labour Government, because of political fear, fell down on its job. It failed to maintain law and order, until eventually public opinion became so outraged that it had to arm the police with rifles and ball cartridges, and send them down to the Fremantle wharf to protect the people. That is my reply to Senator Findley. The State Government, realizing that the lawless element of the community, encouraged by the weakness of the Government, was taking the law into its own hands, was compelled eventually to arm the police to deal with them. These are facts which cannot be disputed. There is nothing to be gained by being mealy-mouthed about this question.


Senator Findley - Hear, hear !


Senator PEARCE - Every Government, if it is challenged by force, must, in the last resort, meet force by force.


Senator Findley - And call out the military ?


Senator Lynch - What does it matter whether it is a policeman or a soldier ?


Senator PEARCE - Does it matter whether the agents of the Government wear uniforms of blue or khaki? Their duty is to protect the people and to maintain law and order. Those who use the sword must expect to have the same weapon used against them. In this country the people enjoy political equality. Are we to assume that the minority is to have an unchallengable right to defy the law and bring government to nought? Is the majority to be denied the right, through the Government, to enforce its will upon the community ? When I hear my friend opposite talking as he is talking to-day, I am wondering whether he and those who think with him have forgotten that democracy means " Government of the people by the people for the people." If this form of government is challenged, must the majority bow the knee to the minority? Lincoln would turn in his grave if he could know that such an interpretation was being applied to his principles of democratic government. Let us examine this attempt to make the people believe that if the Commonwealth Government is invested with this power it will proceed to exploit it by calling out the military whenever an industrial disturbance occurs.


Senator Findley - The Government will be able to do that if it has this extended power.


Senator PEARCE - Yes; but it is no more likely (to do that than Senator Findley is likely to walk out of this chamber and throw himself in front of a cable tram. This country is a democracy. Every man and every woman in it has equal voting power. Governments, like individuals, are not so foolish as to do anything to bring about their own destruction. Therefore, no Government will so misuse this power as to bring about its political death at the hands of the electors when next an appeal is made to them. That is the safeguard. Where people are so free and so enlightened as they are in Australia, no Government can be tyrannical. Paradoxical as it may seem, tyranny is always the result of a misuse of power by a minority. The greatest tyranny in history is the Russian soviet government, which is a minority, and the Soviet maintains its tyranny by armed force. No Government truly representative of the people would ever dare to misuse powers of this kind. The tendency has always been in the opposite direction. Democratic countries are loth to use force. Such action would be taken only in the last resort. We are asking the people to give the Commonwealth these powers, which are similar to those which the States now enjoy. We are not asking for them a moment too soon. I ask my T asm an i an colleagues, who recently have not been altogether enthusiastic supporters of the Government, if they have not realized on many occasions during the last few years, how impotent the State Government of Tasmania is to maintain essential services.


Senator H Hays - Why anticipate opposition from Tasmania?


Senator PEARCE - Within the last six or seven years there has never been industrial trouble affecting Tasmania, without the Commonwealth Government, contemporaneously with an announcement of trouble appearing in the newspapers, receiving a telegram from the Premier of that State asking us to be up and doing. I ask honorable senators to recall the maritime strike of 1917, when, under the War Precautions Act, the Commonwealth had powers similar to those it is now seeking. What happened? That strike, as is well known, was directed against the prosecution of the war. It was a strike to hold up transport and hospital ships.


Senator Payne - And it did for a while.


Senator PEARCE - Yes. What did the Commonwealth Government do? The States, our friends opposite say, had the power to do everything necessary. Every State Government in Australia appealed to the Commonwealth Government to use its power under the War Precautions Act to commandeer and distribute coal in such a way that every State would obtain a fair share of the supplies available. The Commonwealth Government did as was desired. It arranged that South Australia, which does not produce a single ton of coal, should get the same share of the supplies available as did the State of New South Wales, where it is produced. The Commonwealth Government used its powers to protect the interests of each of the States, and if it had not been forits action in that respect, not only would war services have been interrupted, as they were by the diabolical efforts of those who caused the strike, but suffering and loss would have been experienced throughout the whole Commonwealth. The Government is now asking that the power the Commonwealth then possessed to control the essential services of the Commonwealth shall be embodied in the Constitution, so that, in the event of a crisis of that character, it may be able to take like action in the interests of the people. When the electors of the Commonwealth realize what is desired I am sure they will readily grant the additional powers now being sought. In the circumstances I feel sure the bill will have the unanimous support of the Senate.

Debate (on motion by Senator Needham) adjourned.







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