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Tuesday, 22 June 1926


Senator NEEDHAM (Western Australia) . - I cannot quite follow what Senator Lynch proposes. His amendment is very much involved, and he has not so far denned what he means by " State activity." In my view, the amendment, if agreed to, would defeat the object of paragraph xl., as set out in the bill. Whilst I admit that the paragraph as it stands does not go so far as honorable members on this side would like, I contend now, as I did when speaking on the second reading, that it does propose an extension of the powers of the Federal Parliament in the regulation of industrial matters. Senator Lynch's amendment would have the effect of limiting the extension proposed by the bill. The honorable senator's argument that, without an amendment of the Constitution those concerned in State instrumentalities cannot come before the Federal Arbitration Court, is fallacious. It is a considerable time since the High Court gave its decision that the Constitution permitted the Commonwealth Arbitration Court to regulate working conditions in .State instrumentalities. The only part of the paragraph I am concerned about is whether or not this Parliament will have power to give to .the authority to be created a direction in regard to hours of work.


Senator Pearce - This Parliament can amend any act it passes.


Senator NEEDHAM - When an honorable senator was speaking on the second reading, the Minister in charge of the bill said that Parliament could give a direction to the authority in such a matter


Senator Pearce - It cannot issue an instruction to the court, but it may pass an act setting out the powers of the court, and it can amend that act.


Senator NEEDHAM - I take it that Parliament will give a direction to the court by means of a bill, and at any time it may amend that measure. That opinion was confirmed by the Attorney-General in another place. It is a matter that is concerning the minds of many people in Australia to-day, particularly members of trade unions, and the Minister's admission, confirmed by the statement of the Attorney-General,, has clarified the position to a great extent. While Parliament will create an authority, and pass an act setting out the powers of the authority, it still reserves to itself the right to amend 'that act. I cannot say how I regard Senator Lynch's amendment until he gives a more explicit idea of what he means. I am seeking for an extension of the powers of the Commonwealth Parliament over industrial matters, and' I fear that Senator Lynch's amendment would contract, rather than extend those powers.

Senator SirHENRY BARWELL (South Australia) [8.48]. - I have a great deal of sympathy with what I know to be in the mind of Senator Lynch, but I do not think the amendment he has submitted properly expresses what he has in mind. I take it that his idea is that State instrumentalities should be exempted from the jurisdiction of Federal industrial tribunals except in so far as they enter into competition with similar industrial activities carried on by private enterprise.


Senator Duncan - Do not railways and tramways compete with private enterprise ?


Senator Sir HENRY BARWELL - At the present time, as a result of the decision of the High Court, State-owned railways come under the jurisdiction of Federal courts ; but I take it that Senator Lynch wants to exempt them and confine the jurisdiction of Federal courts in respect of State enterprises to such things as State meat shops, fish shops, and so on. I quite agree with Senator Pearce that if Senator Lynch wanted to amend an important bill of this sort, which provides for an amendment of the Constitution, he should have consulted the Parliamentary Draftsman so that his amendment would express exactly what he intended. I have always held that State instrumentalities such as railways should be exempt from Federal jurisdiction. When federation was consummated, certain powers were delegated to the Commonwealth Government, all other powers being retained by the States. Thus we have two sets of authorities, the Commonwealth and the various States, each with sovereign rights within its own ambit; but when Federal courts interfere with State instrumentalities there is undoubtedly direct interference with the sovereignty of the States. The States, contrary to the true Federal spirit, cease to be sovereign within their own spheres as regards those particular activities.


Senator Reid - The Federal Government is in exactly the same position in regard to its own employees. The Arbitration Court fixes their wages.


Senator Sir HENRY BARWELL - The Federal employees come quite naturally within the jurisdiction of tribunals set up by the Federal Parliament; it is no interference with the sovereign rights of the Commonwealth for Federal tribunals to adjudicate upon the wages and working conditions of Federal servants. It is, however, quite a different thing for those tribunals to exercise jurisdiction over the servants of a State.. That is what Senator Lynch has in his mind. A State railway is not an industry which is carried on in competition with a similar industry outside.


Senator Pearce - Does not motor transport come into direct competition with railways?


Senator Sir HENRY BARWELL - I was referring to a similar competitive railway. For instance, there are no private railways in Australia.


Senator Drake-Brockman - There are two private railways in Western Australia in direct competition with a Government railway.

Senator Sir HENRYBARWELL.If the servants of the Railways Commissioners of the State are to be subject to the jurisdiction of a Federal Court, so also I take it would be the employees of water and sewerage boards, harbour boards and other State activities. There is, therefore, a direct interference with the sovereignty of the States, which . 1 think ought not to exist. I quite agree with the principle underlying Senator Lynch's amendment, but I cannot vote for it. If the honorable senator could have the matter postponed, and have an amendment drawn up by the Parliamentary Draftsman, the position would be entirely different; but to place into a bill of this character an amendment haphazardly drafted, might lead us into a false position. Therefore, while I should like to support the. amendment, I cannot agree to it in its present form.







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