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Thursday, 24 June 1926


Senator GARDINER (New South Wales) . - I am surprised at the attitude that has been taken up by Senator Payne. He has depicted terrible happenings in Melbourne. I am so accustomed to reading the reports which appear in the New South Wales newspapers regarding Melbourne outrages that I am almost afraid to come over here; but when I do I find that I can walk through the. Melbourne streets with the same degree of security that I have when walking through the streets of Sydney. Senator Payne appeared to think that if, when the police strike occurred in Victoria and the State Nationalist Government failed to keep law and order, the Commonwealth Government had had the power that it is now seeking it would have been able to prevent the disturbances that took place. There was very little wrong-doing on that occasion. It reflects credit upon such a thicklypopulated city that when police protection was withdrawn all that happened was the looting of a shop window here and there. Nothing serious occurred.


Senator Pearce - A man was robbed and killed on Princes-bridge, in the full glare of the electric light. Was that not serious ?


Senator GARDINER - Such things happen under the most strict governmental control. No system of government will prevent occasional outrai.ee of that kind. Bub the position will be made worse if there are two authorities dealing with the one set of circumstances, Strength comes from the placing of responsibility upon one body. The maintenance of civil order is 'the duty of the State. There will be occasions when matters will get out of hand. I can remember the time when the military forces rioted in Melbourne. I was a Minister in the Government of the day. I joined the soldiers and walked up and down the street with them to find out what was the matter. I wanted to learn at first hand why they had set law and order at defiance and taken possession of the streets. They had the false idea that the civil police had killed a light horseman, and they were determined to " get even." I spoke to about a dozen men. In those days there was a press censorship, and very little appeared in the newspapers regarding the incident. I am' pleased to say that Major Mclnerney handled that matter very skilfully and ably. But for two hours the soldiers held possession of the Melbourn© streets. Those happenings are quite unavoidable, and they do not warrant a change in authority. What does this bill propose? It asks that power shall be conferred upon the Commonwealth Parliament to take whatever action it may deem necessary in case of a probable or actual interruption of essential services. _ What are essential services? Senator Payne said that necessarily all important services must be essential. I ask honorable senators in all seriousness whether they think that all necessary services should be handed over to this Government. Has it shown the capacity to handle those matters ? The outrages in Melbourne that were depicted by Senator Payne were as nothing compared with the action which was taken by the Commonwealth Government prior to the last election. It took two innocent men from their families, imprisoned them, and endeavoured to prejudice their case by saying that they would be deported before the elections. I have never known the equal of that outrage in any part of the world. Where are those men to-day J


Senator THOMAS (NEW SOUTH WALES) - Fighting one another.


Senator GARDINER - They are carrying on exactly as they did before. So long as a man exercises his liberties in such a way that he does not trespass upon the liberties of others, the more he is allowed to exercise his freedom, the better it is for the safety and good government of the people. One of the chief aims in amending the Constitution should be to 'express clearly what is required. What essential services does the Government wish to control ? Surely they ought to be shown in cold type. Is the Federal Parliament, sitting in Melbourne, in a better position to control the police force in Queensland or Western Australia than the authorities who are on the spot? Can it control the essential services of Tasmania as well m the Tasmanian Government? The Government proposes to undertake duties that it cannot properly perform. If this were a unified Australia, with departments in every province to carry on the government, it might be possible to do as the Government sug.gests. Merely because there are Labour Governments in control in five States the Commonwealth Government takes the view that it must obtain power to do for itself what those Governments will not do for it. Last September and October it was asserted, with emphasis, that the strike of British seamen must be ended and the strike inciters deported forthwith. The Government obtained a majority at the poll, but it did not deport . those men. It had no intention of doing so. Neither has it any intention of exercising the powers which it is now seeking. After 25 years of federation the time is ripe for the amendment of the Federal Constitution; but the way in which that matter should be approached is to call a convention, and have amendments brought forward and discussed with deliberation by those who are competent to discuss them. Why should the Government say, " "We will have a referendum in two months, the shortest period that the Constitution allows"? The people will not understand the matter; but that does not concern the Government.


Senator H Hays - They will understand what are essential services.


Senator GARDINER - That is the very thing which I think they will hot understand. The words " essential services " are most misleading. If we were honest we should specify the services and ask the people whether they favoured their being handed over to the Commonwealth Parliament. " Essential services " is a vague term which might mean much or little. There is one thing that I have never done in my public career, and that is to fool myself. These words have been chosen deliberately by the Government with the object of fooling first- itself and then the people. Has not the public the right to know what services are to be transferred from the States to the Commonwealth ? When the Constitution was drafted the clearest language imaginable was used to show exactly where State authority ended and Commonwealth, authority began. Why not continue that plain method? The Constitution at present enumerates 39 subjects upon which this Parliament has the power to legislate. Why not mention specifically the subjects that the Government considers ought to be added to those 39 ? Surely the public ought to know to what extent they would be depleting the powers of the States and increasing the powers of the Commonwealth if they voted for this proposal! I agree with those who believe that the Commonwealth Parliament should be supreme, but any additional powers conferred upon it should be obtained in a straightforward manner. Although this bill and the previous measure have been debated for about a week, the majority of the people will know very little about them when, they are asked to record their votes at the referendum. The average man, if he is a Nationalist, will vote in favour of granting the increased powers, because the Bruce-Page Government has brought in the bill, and if he is a Labour man he will vote " No " for the same reasonIn my opinion, Labour electors will.be well advised to adopt that course, because they cannot expect any good from the present Administration, I have no doubt that the answer of the people at the referendum will be in the negative, as it generally has been.


Senator Thompson - Is it always to be so?


Senator GARDINER - I almost hope so, except when' the people are asked to vote for or against, the abolition of the liquor traffic, and then I hope that their reply will be. "Yes." Naturally the electors will he opposed to any transfer of powers from the States to the Commonwealth, and the railway motto of " Safety first " will be adopted. The easiest method of settling any such question is to vote "No," thereby leaving matters as they stand.


Senator H Hays - Did the people adopt that attitude at the last election ?


Senator GARDINER - I realize that on that occasion they were induced, by means of falsehood, misrepresentation, and fraud, to support the present Government. But when they realize that its object is to exploit the States, as indicated by this bill, they will oppose the granting of the increased powers sought. If it is desirable that the issues should be voted upon intelligently, the Government should summon the long-promised convention for the revision of the Constitution. I say quite candidly that I do not know what the Government means when it asks for the control of "essential services." It has been said that Ministers desire power to " Fire low and lay 'em out," a remark made some years ago regarding what, in the opinion of certain persons, should be done to workers who sought to improve their industrial conditions. There should be a frank statement in the bill of the exact power the Government desires to have transferred from the States to the Commonwealth. Senator Payne based his support of the bill on some little disturbance in Melbourne - serious, but unimportant as compared with groat events.


Senator Payne - No. I should not have mentioned that affair had it not been for Senator Findley's remarks.


Senator GARDINER - Above the power of this Parliament is that of the High Court, which can say whether any action by the Government is constitutional. If the Government proceeded to control a servicethat is now dealt with by a State Government, and the latter appealed to the High Court, claiming that the Commonwealth had usurped its power, the court would immediately say that the words "essential service" conveyed nothing. A vague " Yes," expressed by the people at a referendum, would not give the Commonwealth Parliament the right to control the minds of the electors. The education of children may be regarded as an essential service; but would the State Governments allow this Parliament to interfere with them and take over the control of their education systems? Are not religious services essential ?


Senator Pearce - I think that the honorable senator had better read the bill. I am sure he has not yet done so.


Senator GARDINER - I have. Apparently the Minister himself has not carefully read it. It is a billfor a proposed law to alter the provisions of the Constitution in relation to essential services," and it states -

Be it enacted by the King's Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, with the approval of the electors, as required by the Constitution, as follows: -

1.   This act may be cited as Constitution Alteration (Essential Services) 1926.

2.   Section fifty-one of the Constitution is altered by insertingafter paragraph (v.) the following paragraph:- (v.) a. Protecting the interests of the public in case of actual or probable interruption of any essential service: ".


Senator Pearce - Is there one word in is about taking over essential services ? That has been the whole burden of the honorable senator's speech.


Senator GARDINER - The object, as indicated by the words " protecting the interests of the public in case of actual or probable interruption of any essential service," is to obtain control over all essential services. The question is not "What are the Government's intentions?" but "What do the words in the bill mean ? ". If the bill is passed and the referendum carried, the Government will have power to take over the control of the police. Senator Payne suggested that if the Federal Government had held this power the deplorable happenings in Melbourne some time ago would not have occurred. The power sought by the Government should be stated in precise terms. Are the sovereign powers that have always been enjoyed by the States to be transferred to the Commonwealth at the behest of this Government? Suppose there was a lockout in the coal-mining industry and this so-called democratic Government decided that the owners should not be allowed to prevent the men from working. If the Government proceeded to operate the mines, the owners would naturally appeal to the High Court, and that tribunal would want to know what power had been conferred upon the Commonwealth authorities to iustify their action. The lawyer appearing on' behalf of the Government would say that the Commonwealth had received power to deal with "esential services," but the court would probably reply that the powers ought to be set out in plain English. The proposal is so absurd that no government but the present one would introduce it. I remember that I strongly urged the Government not to proceed with certain legislation which it introduced into the last Parliament, but because it suited its purpose to continue, and as the public had to pay, it went on, only to find that the legislation was invalid. Wo cannot transfer powers from the States except in clear and definite language. Vague terms willnot suffice to transfer authority from the States to the Commonwealth. The Government wants the people to decide these questions within two months-the minimum period provided in the Constitution. No information will be given to them. The framers of the Constitution had a difficult problem. There was not only the difficulty of draftsmanship, but they also had to consider the conflicting interests of both small and large States. It is to their credit that, in language unmistakably clear, they drew a line of demarcation between the powers which should be exercised by the Federal authority and by the sovereign States. They made the position so clear that the wayfaring man, though a fool, should not err therein. This Government, however, has ceased to be definite and clear. It took two innocent men from their wives and families, and placed them in prison ; but the High Court declared that the law under which that action was taken was invalid. Yet, because an election was imminent, and the decision of the Deportation Board might have affected the result, Senator Pearce did not make that decision public for three weeks. No outrage by a mob could be worse than that. Some honorable senators will probably say that the two men concerned were strike leaders, and that anything was good enough for them. But the same honorable senators, if taken from their families at daybreak, and told that they would be kept in prison until they could be deported from the country, would regard such treatment as an outrage. They would wonder that such a thing could happen inany British community. Nothing couldbe more brutal than to place innocent men in prison, and to cause theirchildren to betaunted wherever they went with the remark that their fathers were in jail.


Senator Thompson - If the seamen's wives and children could have gothold of those men in London, they would have torn them to pieces.


Senator GARDINER - The conditions in England, even in times of peace and under ordered government, are a disgrace to the British Government and the British people. The honorable senator himself has seen those conditions, but he has not raised his finger or his voice to alter them. He talks about the troubles that come upon people during times of strike. The working classes of England have been starving for centuries, while many of the wealthy classes have used their wealth and influence to resist all attempts to improve their conditions. The normal condition of England is starvation for one-tenth of the population. By that I do not mean every-day starvation; but conditions in England are such as to bring the blush of shame to the face of any man who calls himself a Britisher. That kind of thing has existed in England for centuries under callous governments, and for many years it has existed also in this country. I realize that all the evils of a system cannot be removed by a stroke of the pen; but it is strange to find men, who will do nothing to improve the conditions of the people in normal times, so concerned with their sufferings in times of strike. Iwas in England during a strike, and when travelling in first class railway carriages, I listened to the conversation regarding the dispute. On one occasion I inquired the wages ordinarily paid to the strikers, and when told that they were paid 18s. a week, I said that I did not wonder they had gone on strike; that I was amazed that they had continued to work for so long. To that the reply was that the men sometimes received a tip of 6d. or1s., so that they were not badly treated after all. I venture to say that many of the big firms in London, by regulation or otherwise, took good care to see that the tips received by their employees went into the firm's coffers. I fear to give this Government additional powers. Matters connected ' with trade and commerce may come within the Constitution; because the Government hasdefinitely stated the powers thatit-desires to secure inthat respect. But, so faras I know, "essential services " are not mentioned in the Constitution ; and becausethe term is so vague, it will mean nothing even though the electors give an affirmativevote onthese proposals. I understand that the Government is in a hurry, because the Prime Minister (Mr. Bruce) desires to attend an important conference in London. That is not the way to treat the people. A convention should be called. It could assemble at Canberra as soon as. the Seat of Government had been transferred there. But wherever it assembled, it should be representative of all Australia, and definite proposals should be placed before it, showing the alterations of the Constitution which the Government thinks necessary. The convention should be empowered to redraft the Constitution in any direction. We should then obtain the latest thought of the whole community, expressed after calm and deliberate consideration. By that means, many powers which with advantage .could be transferred from the Commonwealth to the States could be embodied in the Constitution. The present proposal is merely pretence. I do not believe that a gentleman of the political experience and ability of Senator Pearce believes that the use of the words "essential services" will convey anything from the States to the Commonwealth. The position is different so far as Mr. Bruce and Dr. Earle Page are concerned. They know nothing about politics, let alone the Constitution, otherwise they would not act as they do. They have not sufficient confidence in each other to meet in the same party room, and they do not understand the first principles of good government. The first principle of good government is that the Ministry shall have the confidence of Parliament, and that Parliament shall have the confidence of the people. Has Senator Pearce or Mr. Pratten, the confidence of the Country party ? In the opinion of the Country party, Mr. Pratten's burdensome tariff has nearly crippled our primary industries. This jazz government, in attempting to amend the Constitution, is merely whirling round the dance-room. The music is set going and the people must dance to the tune of " Essential Services." I have been told that in opposing this bill, I am flying in the face of the community, which so recently passed a vote of confidence in the "Government. I reply that the most popular songs are often the silliest, but that once they pass they are never revived. And so with governments the song which was so popular a little while ago, " Yes, thank you, we have no bananas," seems specially applicable to this Government. If an amendment of the Constitution is desired, let us be fair to the people and set out clearly the alterations we desire to make. To put the proposals in vague 'and ambiguous language is only to court defeat. Even if the people vote for the extension of this power, no one believes that such essential services as ar,e at present under the control of the States will be transferred to the Federal Parliament, because the bill does not specifically enumerate them. And, moreover, they cannot be transferred in this manner, because the Constitution cannot be altered in this way. If honorable senators care to study previous constitutional amendments that have been submitted to the people, they will find that the powers sought to be acquired have been clearly stated. No one will pretend that there is clarity in this proposal. Let us examine the position and' see what are essential services. Are religious services in that category? I say, unquestionably, that they are essential services. Will the Government, assuming that this extension of power is granted by the people, interfere with the conduct of religious services ? Again, .are drinking services essential? In other words, is a business controlled by the liquor interests an essential service, and will the Government, under these wider powers, regulate the liquor trade? Almost every business may be regarded as an essential service, which, according to the language of this bill, could be transferred from a State to the Federal authority. Again I warn the Government that this bill is only so much pretence at amending the Constitution, and that the first appeal to the High Court will , prove conclusively that there is no power under if to transfer what may be regarded as essential services from the States to the Commonwealth. I am opposed to the bill, because I believe that no good can come from this "jazz" Government. The country wants its legislative affairs to be handled in a straightforward way. Possibly, the referendum dealing with industry and commerce powers will be answered in the affirmative by the people, because I understand my party is in favour of it. Possibly, also, the Government will carry this question against us, but I doubt it. In my judgment, the people will prefer to play for safety and negative it. They will argue that, as we have got along very well for 26 years without the protection of the Federal Government in regard to essential services, there is no occasion for a change now. I am satisfied that if any State Government requires the assistance of the Federal Government to deal with any situation there is sufficient power under the Constitution to enable the Federal Government to intervene. We know, of course, that the real reason for the introduction of these measures is to enable ministerial supporters when addressing members of the Chambers of Commerce and Manufactures, or, say, members of the Melbourne Club, to say that the Government will " put the boot into the strikers," and, similarly, when they are addressing the working class section of the community they will be able to say that their chief concern is to protect the workers from those " dangerous agitators " who are always leading the workers into trouble against their better judgment. I want the people to understand that this constitutional amendment means nothing, and that the Government, in persevering with it, is simply wasting money. Possibly some supporters of the Government are under the impression that the carrying of this bill will endow the Government with greater powers. I feel certain that Senator Pearce does not share that belief. The essential service which he has in mind is, 1 believe, the High Commissionership. Honorable senators will note that I do not propose to banish him i.o the Northern Territory. I have a high regard for the service which he has rendered to this country, and, therefore, I do not speak lightly of it. Judged by length of service in a ministerial capacity he has, perhaps, rendered greater service to the Commonwealth than any other minister, and I am wondering whether the recent change in portfolios means that, he is shedding some of his responsibility preparatory to a transfer to another sphere of service. But I feel Hire, that if he moves to another exalted position he. will represent his country as well as he has served. it as a minister. The Government will not mislead the people by pretending that these amendments of the Constitution will take certain powers from the States. In my judgment, this Government is not to be trusted even with the power it exercises at present. I know, of course, that my judgment is not shared by the electors, but, because the majority of the people may hold the contrary view, that is' no reason why I should not express my opinion. The Government's failure to protect the people from certain agitators, even when it had an overwhelming majority in both Houses, will require a lot of explanation. The Prime Minister declared that two men would have to go out of the country. They are still here. Were they not as dangerous in December, after the election, as they were in September, before the election? Certainly they had not changed their opinions on industrial matters, and yet the Government failed to send them out of the country. The Ministry now suggests that, if extended powers be given, it will be able to protect the community more effectively. I doubt if the people can be fooled twice in twelve months, and so I believe the Government will not be granted these additional powers. The proper and manly course is to call a conference of representatives of the various States, ascertain in what direction the Constitution should be amended, submit the proposals to a convention, and then subsequently have them debated in the Federal Parliament, so that, when they are placed before the people, the electors will be in a position to give an intelligent vote upon them. If, however, the Government persists in this hurried appeal to the people, the electors, not having had reasonable time to consider their ' proposals, and believing in safety first, will negative them, I advise the Government to take the people into their confidence, and adopt the course I have suggested. The amendment of the Constitution is too serious a matter to be undertaken in the way now proposed. I understand that this bill, as well as that debated last week, must be passed by the Senate to-morrow. Within two months the people will be called upon to vote upon them. Does the Government intend to apply the compulsory voting provisions of the Electoral

Act to the referendum, or will the issues he decided by the votes only of those electors who are sufficiently interested to go to the poll? My last word on this subject to-night is that, if the Government really desires to secure an extension of the powers of the Parliament, it should state in plain language what powers it wishes to be endowed with. This bill does not say that. Because of this omission, I am satisfied that it will not stand the test of an appeal to the High Court. I intend to oppose it.







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