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Thursday, 17 June 1926


Senator NEEDHAM (Western Australia) . - I appreciate the importance of this bill, and also of the Constitution Alteration (Essential Services) Bill, the second reading of which the Minister for Home and Territories (Senator Pearce) has just moved. It is to be regretted that measures ofsuch vital import should be dealt with in the hasty manner the Government proposes, thus preventing the Parliament and the people giving them the consideration they deserve. During the three years the Bruce-Page Government has been in office an amendment of the Constitution in the manner proposedhas never before been suggested. Whilst the Minister was speaking on another bill under which it is proposed to amend the Constitution in certain respects an honorable senator opposite interjected that there had just been an appeal toa great jury. I presume the honorable senator was referring to the general election. During the campaign I do not think one honorable senator opposite mentioned the subject of amending the Constitution.


Senator Duncan - We all did.


Senator McLachlan - I did.


Senator Drake-Brockman - So did I.


Senator NEEDHAM - It was not in issue at the elections.

Senatorcox. - It was.


Senator Findley - There was no issue; it was all tissue.


Senator NEEDHAM - The amendment of the Constitution was not in issue at the recent general election. The deportation of two Australian citizens was the principal topic discussed on all the political platforms in Australia. That was the cry of all those who are now supporting the Government. During the 1922 elections reference was made by re sponsible leaders to an amendment of the Constitution. The then Prime Minister, in his policy speech, stated -

Time has shown that in certain respects it (the Constitution) is unsuited to the everexpanding needs of this young but rapidly progressing country. . . . The need for amendment of the Constitution has long been recognized. . . The Government being of the opinion that some amendments of the Constitution are necessary, and that those recommended by a convention are much more likely to be approved by the people than any put before them by Parliament, will during the first session of the new Parliament legislate for the election of a constitutional convention.

That statement was made by the right honorable member for North Sydney (Mr. Hughes) when, as Prime Minister, he appealed to the electors for a renewal of their confidence in his Government. He made a definite promise then that in the first session of the succeeding Parliament legislation would be introduced to appoint a Federal convention to consider these matters.


Senator Drake-Brockman - But he was not returned with a majority.


Senator NEEDHAM - Theproposal of the right honorable gentleman was to appoint a convention to review the Constitution with a view to determining what defects, if any, existed, so far as the powers of the Federal Parliament were concerned. Three years have elapsed, yet that promise has not been fulfilled. It is true that a bill was introduced, but, despite the assurance given, nothing more was done in the direction indicated. The present Treasurer (Dr. Earle Page), who is the leader of one wing of the composite Government which is to-day controlling the destinies of Australia, in his policy speech in 1922. said: -

The party offers a definite plan of constitutional reform. Its plan of constitutional reform will obtain economy and efficiency in administration. To bring this about we advocate the early holding of a Federal convention to consider the revising of the Constitution.

Dr. Page'sdefinite plan has, however, not yet materialized. Senator DrakeBrockman interjected just now that Mr. Hughes, after having made the promise to which I referred, was not returned with a majority. That may be so; but Dr. Page is still a member of a Government which has had a majority in both Houses since 1922. While I admit the necessity for an amendment of the

Constitution in the direction suggested by this bill. I contend that this legislation is being rushed through too hurriedly. I repeat that sufficient time to consider the effect of the Government's proposals is not given to members of this Parliament; and, what is more important, the people of Australia, who will have to decide the matter, will not have sufficient time to understand them.


Senator McLachlan - That was said in 1911.


Senator NEEDHAM - Much greater time was given to the people to consider the proposals submitted in 1911 and in 1913 than is being given to them on this occasion.


Senator McLachlan - The people have had thirteen or fourteen years to think about it.


Senator NEEDHAM - The Government has announced its intention to hold a constitutional session at Canberra next year, and it would have been wise to have left this bill over until Parliament had assembled there. I point out that, even should this bill be passed by both Houses, and obtain the ratification of the people, the necessary legislation arising out of the alteration of the Constitution cannot be put into operation until next year, when, probably, the Seat of Government will have been transferred to Canberra. I understand that it is the Prime Minister's intention to proceed to Great Britain shortly to attend the Imperial Conference, and that during his absence Parliament will not assemble, so that any necessary legislation resulting from an alteration of the Constitution cannot be introduced until next year. I mention these facts to show the unreasonable haste of the Government in connexion with the proposed alteration of the Constitution. It might be wise to adopt the policy of making haste slowly. There is another aspect of this question. Voting will be compulsory in connexion with the proposed alteration of the Constitution. Many thousands of young people voted for the first time a few months ago. They have little or 710 knowledge of the policies of the various political parties, or of the Constitution. To give them time to understand the position better, it would be wise to delay these proposals until the promised constitutional session. I admit that the Federal Parliament should be endowed with greater powers than it possesses to-day. The party to which I have the honour to belong, realizing the handicap under which the Federal Parliament was endeavouring to legislate for the benefit of the people of Australia, on two occasions appealed to the people for additional power. In 1911, and again in 1913, the Labour Government then in power submitted its proposals to the people; but on each occasion they were defeated. The alteration of the Constitution presents great difficulties, because any amendment must be approved by a majority of the electors and a majority of the States. In 1915 a conference of representatives of the States was called to discuss whether the Commonwealth should ask for extended powers at another referendum, or whether certain powers would be surrendered by the States to the Commonwealth; but nothing eventuated.

I come now to the attitude taken up by Labour towards the present proposals. It is well known that the party has for years advocated what it still advocates - an extension of the powers of the Commonwealth, particularly in relation to industrial matters. During the past 25 years the inadequacy of the powers of this Parliament has been emphasized over and over again. The High Court has frequently declared that we do not possess the power we thought we had to legislate in regard to certain matters. The High Court today interprets the powers of this Parliament. Again and again, when new conditionshave arisen, and we have sought to deal with them by legislation, that tribunal has decided that the Constitution has not clothed us with the power to do so. For instance, we cannot deal effectively with trusts, combines, or monopolies, nor can we protect the consumers from exploitation by them. That matter was determined when the High Court decided that certain provisions of the Excise Tariff Agricultural Machinery Act 1906 wereultra vires. The Commonwealth Parliament cannot guarantee to provide a fair and reasonable wage, or decent working conditions for the workers. The States are unable to deal with most of these vital matters, but if this bill is accepted by the people the Commonwealth Parliament will be enabled to do so. To that extent the present proposals are going a long way towards the goal of extended powers which the Labour party hopes the Commonwealth will ultimately have. A great deal of controversy has arisen since the introduction of this bill. The conservative press is solidly arrayed against it. When I see such powerful journals as the Age and Argus and others of the same calibre opposing these proposals, I begin to realize that there must be some good in them. It was the same conservative press that opposed the proposals of the Labour party in 1911 and 1913. The proposed alterations are evidently not suitable to these journals. From the able legal and constitutional advisers at their command, they must have learned that the proposed amendments of the Constitution will place the class they represent and speak for at a disadvantage. That being so, the proposals must be of advantage to the great mass of the people. The proposed amendment in regard to corporations provides for the alteration of section 51 -

(a)   by omitting from paragraph (xx. i the words " Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth '', and inserting in their stead the words "Corporations, including -

(a)   the creation, regulation, control, and dissolution of corporations;

(b)   the regulation, control, and dissolution of corporations formed under the law of a State; and

(c)   the regulation and control of foreign corporations; but not including municipal or governmental corporations, or any corporation formed solely for religious, charitable, scientific, or artistic purposes, or any corporation not formed for the acquisition of gain by the corporation ' or its members " ;

That proposal is almost, identical with the amendment suggested by the Labour party in 1911 and 1913, and, if granted by the people, will give this Parliament a power which it has not hitherto possessed. It was thought when the Constitution was framed that the provisions of section 51 would enable the Commonwealth Parliament to deal with corporations, but it was not long before the High Court upset all calculations in that regard, and declared that the Federal Parliament did not possess this power Trusts are largely formed of companies acting in combination. As a matter of fact, corporations are commonly termed companies. It is useless for the Commonwealth to make laws dealing with trusts and combines, while at the same time it cannot control those who comprise these trusts and combines. We have many instances of trusts and combines operating in Australia. One calls to mind shipping, coal, banking and other combines. They all work for their own ends, and to the detriment of the people. Unless we can deal with the individual members of trusts and combines, whether they be companies or individuals, we cannot legislate effectively with the combines themselves. I think the proposed amendment will give this Parliament the necessary power to do so. No one will deny that companies and individuals do combine to take control of industries for their own personal advantage and gain, and to the detriment of the people. They also fix prices. The Labour party has all along contended that power to control prices should be vested in the Commonwealth Parliament. When speaking on the Customs Tariff Bill I said that our ideal was not only to protect the manufacturers by imposing duties on imported goods, but also to protect the workers engaged in the factories, and, at the same time, see that the consumers were not charged exorbitant prices. That is the policy of new protection, but according to a decision of the High Court the Commonwealth Parliament does not possess the powerto enact such legislation. If the power now asked for is given by the people, it will go a long way towards carrying into effect the Labour party's policy of New Protection.


Senator Thompson - Competition is the best price fixer.


Senator NEEDHAM - I do not agree with the honorable senator. This Parliament had an experience of price-fixing during the war, and I think it should have the power to fix prices. I come now to the proposed amendment in relation to industrial matters. One proposal is to insert the following new paragraph in section 51 of the Constitution : - " (xl.) Establishing authorities with such powers as the Parliament confers on them with respect to the regulation and determination of terms and conditions of industrial employment and of rights and duties of employers and employees with respect to industrial matters and things ; "

Objection is taken to that proposal, on the ground that Parliament will be delegating its authority to another body, but 1 see nothing wrong in it. Parliament often delegates its authority to another body. The State Parliaments delegate to industrial tribunals their power to deal with industrial matters. If this extended power is given to the Commonwealth, and Parliament creates a body to which it delegates its authority to deal with industrial questions, it can always give a direction to that body, and will always have the power to unmake that which it has created. Personally, I should not like to see this Parliament become an industrial tribunal. I think it would be almost impossible for it to do so. It can always give a direction to the authority it creates. It never gives away its .power. It merely delegates it to some other body, and whatsoever it delegates it can always recall. The proposal in the bill is to set up a tribunal with delegated power to carry out the laws as prescribed. It was interesting yesterday to hear the Minister's effective reply to an interjection by Senator Lynch as to whether the authorities could compel a person to run a business at a loss. I would put the other aspect of the matter, and ask Senator Lynch whether they could compel a man to work at a rate of .wage that would not give him a reasonable margin to enable him to maintain himself and those dependent on him in all human comfort. Of course, it would be unreasonable to expect that to be done. I gathered from the Minister's speech that the Parliament could practically direct the authority to do as it wished.


Senator Pearce - The Parliament can delegate authority under such terms and conditions as it thinks fit.


Senator NEEDHAM - The Minister said that the Parliament could direct the authority to bring about a 44-hour week throughout Australia, but he added that it would be unwise to do so. That to my mind is the whole crux of the position. The fact remains that the Parliament will have the power to give such a direction, thus proving that whilst it will delegate its authority, it reserves to itself the full power of direction. At the present time the Commonwealth Parliament cannot make laws respecting industrial matters, confined to a State. This has been decided by the High Court. Moreover, this Parliament cannot prevent an industrial dispute. It must wait until a dispute arises, and extends beyond the boundaries of any one State. There the danger lies, and that is why the Federal Arbitration Court, although it has done splendid work, can only adjudicate, under the present law, after a dispute has arisen. When the proposed additional powers are granted, the authorities to be set up will have power, not only to settle disputes, but also to prevent them. It seems to me that their prevention is of greater importance than their settlement. Once the wheels of industry cease to revolve, injury is done to employer and employee alike. If, by means of the proposed alteration of the Constitution, it will be possible for both sides to confer prior to a cessation of work, much good will result to the community. I believe that, no matter who wins in an industrial dispute, the worker suffers all the time, and suffers most. I have always been a strong advocate of arbitration; but there are times when, after all constitutional means have been exhausted for the prevention of an industrial disturbance, there is nothing left but the drastic weapon of the strike. When the Labour party asked for this additional power in 1911 and in 1913, I laid stress upon the points that I have just mentioned. There must be power to prevent disputes by dealing with their cause, and there must be power for the Commonwealth Arbitration Court to make a common rule, to which power the conservative press is opposed. Some people, perhaps unconsciously, confound this proposed alteration of the law with another bill that will be under discussion shortly, namely, that providing for an amendment of the Commonwealth Conciliation and Arbitration Act to give life tenure to the judges of the Arbitration Court. Even if the proposed alteration of the Constitution were not made, the Arbitration Court could do all that some people think will bc done under the measure. I do not wish to anticipate a bill that is about to be introduced; but I hope that honorable senators, at any rate, will not confound the amending arbitration bill with the proposed alteration of the Constitution. The authorities to be set up may he appointed for life, and whilst I am not a keen supporter of life tenure of . such offices, I think that in industrial matters it is necessary to have it in order to give the court judicial powers, so that whatever award is given the court can enforce. The other sub-clause is for investing the State authorities with any powers which the Parliament, by virtue of paragraph xxxv. of section 51 has vested or has power to invest, in any authority established by the Commonwealth. That brings me back to my former statement that the State authorities need not necessarily be abolished if this alteration of the Constitution is made. Any Government, no matter what its political colour, that attempts to abolish those authorities will make a very grave mistake. There are wages boards in Victoria. An industrial tribunal was recently set up in New South Wales over which Mr, Justice Piddington presides. We have the Queensland Industrial Court, and an industrial court in South Australia. In Western Australia a court was recently established, presided over by Mr. Justice Dwyer who, a day or two ago, gave a decision in relation to the basic wage. In the event of the people endorsing the proposal in the bill it would be wrong for any government to abolish those State authorities. I began my speech by pointing to the danger of haste, and I shall close by making another appeal to the Government not to rush this measure through the Parliament, and not to ask the people hurriedly to consider it. After all, we are legislating, not for to-day, but for years ahead. Therefore, I urge the Government to postpone the appeal to the people until the Parliament meets in the new Federal Capital, when the constitutional session will be held. We could then revise the Constitution thoroughly, and, having given the people ample time to consider the effect of the various proposals, we could then submit them for their endorsement.







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