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Wednesday, 13 April 1904


Mr GLYNN (Angas) - I have a full appreciation of the motives of those who support this Bill. I believe they are inspired by a desire to apply humanitarian principles to the relations of capital and labour. But I hope that they will credit some of us who are opposed to the Bill with an equal desire, and acknowledge that though we may differ as to the methods to accomplish the end, at the same time we are actuated by an ideal which we hold in common. In his excellent speech, the Prime Minister stated that -

There is an urgent and burning need for the passing of this legislation.

When I consider the limited scope of the provision in the Constitution, I cannot agree with my honorable and learned friend that there does exist any very imperative necessity for immediate legislation. In fact, he himself mentioned that the scope of the Bill is limited at the very outset when he said that the cases to come under its provisions may be numerous or may be extremely few. He told us that the Bill was drawn up on the most comprehensive lines - that, in other words, it was drawn up on the principle of covering anything which could possibly fall within its provisions. At the same time,- honorable members must have noticed that the opinion, of the Attorney-General of last year, and of the Prime Minister of this year, are somewhat different as to the cases which are likely to come within the constitutional provision, because we were told in the second reading speech this year that there could be no sympathetic strike, and that before jurisdiction could arise the dispute must extend bevond the limits of one State. I merely mention that now as a qualification of the statement of the Prime Minister as to the urgency for the* passage of this measure. But when honorable members bear in mind that there has been no strike within the last eight or ten years, which, by common acknowledgment, could come within the limits of the Bill, they will see that there is no pressing need for its passing.


Mr Hutchison - We had the shearers' strike of last year.


Mr GLYNN - That is the only one, and I doubt if it could be brought under the provisions of the Bill. For the present let us acknowledge that it could. The maritime strike of 1890 could undoubtedly be adjudicated upon by the Federal tribunal. We have the maritime strike of 1890, the shearers' strike of, I think, 1894, and the shearers' strike of last year, and it is open to question whether the Bill can constitutionally extend to the settlement of any disputes except maritime or shearing disputes. Even as regards the latter, as I think I can show, an extreme doubt exists. Let us exercise patience. Let us await the result of State experiments. We should remember that it was only in 1894 that the prinicple of compulsion was applied by the passing of the New Zealand Act. The Western Australian Act was passed in 1900, and the' New South Wales Act was only placed on the statute-book in 1901, so that there has really been no opportunity of testing the principle of compulsory conciliation, even within the States, up to the present. I know that in New Zealand some disputes, which had been agitating capital and labour for some years, were settled under the Act. There was the dispute in the shoemakers' trade, and I think the tailoresses' dispute was settled; but it does not for a moment follow that it could not have been settled on the voluntary principle. However, we should credit the law with the settlement of that dispute. What I would insist upon is that the principle of compulsory arbitration has never been tested on a falling market. Up to the present time the awards have been in the direction of an increase of wages, justified by the strength of industrial conditions in New Zealand. But neither in New Zealand nor in New South Wales, nor anywhere else, has a compulsory adjustment of the relations between capital and labour been tested by a fall, under an award of the Court, in the rate of wages except in one case in New South Wales,, which does not tell in favour of the introduction of the compulsory principle.


Mr Watkins - Yes, it does.


Mr GLYNN - Perhaps so; but I doubt it. At all events, the men, for one reason or another, refused to abide by the award as given. They took a technical objection to the application of the provision, and thus morally dissented from the award. It is also worth bearing in mind that even the New Zealand Act of 1894 has been amended no less than eight times, showing that even .the machinery of the law is still open to very serious criticism from the point of view of its efficacy. It all points in this direction : that, considering the very limited jurisdiction vested by the Constitution in this' Parliament, we ought not to be in too great haste to add this additional tribunal to the administrative machinery of Australia. There was a report by Judge Backhouse on the New Zealand system. He stated that the Act has, to some extent, been strained from its ori ginal purpose ; that instead of being as it was intended to be. an Act for the adjustment of disputes, it is really one for the regulation of the rate of wages. I would ask honorable members, in discussing this question, to endeavour as much as possible to keep their minds clear of mere matters of prejudice. There has been too great an inclination, both in the House and in the press, to separate parties on this Bill into those who are called socialists and those who are called anti-socialists. But I hold that the principle of individualism and socialism is not raised by its provisions - that we can still have a very large sympathy with many of the aspirations of true socialists while standing in opposition to the measure. I regard the aim of socialism as an exceedingly commendable one; it is really to raise the lot of the working classes, whatever may be said as to the efficacy of the methods adopted. Some years ago John Stuart Mill, viewing the conditions of the time, said, in his book upon Political Economy -

If the bulk of the human race remains as at present, drudging from early morning till late at night for bare necessaries, and with all the intellectual and moral deficiencies which that implies, I know not what there is which should make a person of any capacity of reason concern himself about the decline of the human race.

I acknowledge that the aim of the socialist is to put a stop to a state of affairs then commented upon by such a great writer. It is just as well, perhaps, that capital itself should be a little modest in approaching this question. There is too great an inclination on the part of capitalists to regard capital as the only essential element in production. We know that in the ultimate analysis the only essential element is really labour, and that if the accumulated wealth of the world were swept away to-morrow, there would remain in labour the power to re-create and restore. In fact, we all must agree that if the aims of socialists, as regards the position of labour, were realized, the rewards of labour would be still far short of the ideal Conditions which we would all help to attain. I merely refer to these things to avoid the prejudice which is raised by putting what I consider to be a false issue in connexion with this Bill - as if the socialists, as they are called, were arrayed on the one side, and the rampant individualists on the other. I believe that there is room for the exercise of common sense and moderation between the two extremes. I hold that the question that is really put in issue by the Bill is not the settlement of disputes by force or by strikes, as distinguished from their adjustment by conciliation, but that of the efficacy of the voluntary as against the compulsory method. We are seeking, in our impatience, not to apply the compulsion of law to the settlement of industrial disputes so much as to at once place upon our statute-book a premature declaration of the inefficacy of the voluntary method. I further submit that if we are driven to compulsion the matter lies in the sphere of the States rather than the Federation. The widest jurisdiction still rests with the States.


Mr Deakin - The widest?


Mr GLYNN - Yes; the widest jurisdiction rests with the States in regard to the compulsory settlement of industrial disputes. As I have before remarked, and as the Attorney-General is beginning to recognise, the sphere of the Federation in regard to this matter is particularly limited by the Constitution. As to my statement that the voluntary principle has not yet received a fair trial; may I, without at ali repeating what I said last year, refer to the position of affairs in America and the United Kingdom. I shall first refer to the case of the United Kingdom, and in giving an outline of what is occurring there shall as much as possible rely upon the evidence of American experts. In dealing with the American position I shall refer to the reports of English experts. We must bear in mind that the first condition 'of successful conciliation is organization, and that effective organization was impossible in England until the amendment of the laws regarding conspiracy in 1873. It is from about 1870 that we have to date the beginnings of the acknowledged success of the voluntary principle in the United Kingdom. In 1866 the first experiment was tried in the hosiery trade, by the Honorable Mr. Mundeila, and in 1896, when one of the Arbitration Bills that failed in England, was under discussion in the House of Commons, Mr. Mundella said that from the time of the first organization of a conciliation board in his trade there had been no strikes.


Mr Mauger - In that case there war. a strong trades union that made the findings of the Board as powerful as if there were a Jaw.


Mr GLYNN - I do not propose to discuss that aspect of the matter. I am merely dealing with public statements of experts. Now let us refer to the case of the iron trade, which is perhaps the largest in the United Kingdom. The net output of that trade last year was valued at ,£130,000,000. In 1866 there was a most disastrous strike of .the iron workers in the North of England. The works were shut down for six months, and one of the results was that Sir Donald Dale founded the Northern Conciliation and Arbitration Board, whose jurisdiction now extends over five counties, and which has branches in Wales, as well as other affiliated bodies, which, although they are not bound by its rules, morally accept the awards given by the Board. The establishment of the Board referred to was followed by the constitution of the Midland Iron and Steel Wages Board in 1872. Mr. David Jones, one of the secretaries of the Midland Iron and Steel Wages Board, in a lecture delivered on the 30th October, 1902, says that -

Amidst all the labour troubles of the last thirty years our method of treating the relations of employers and their operatives has proved successful, not a single strike having occurred during that time.

The Board has jurisdiction over works in no less than seven counties. Under the method followed resort is first had to conciliation, which generally succeeds, and renders it unnecessary to arbitrate. The Board of Conciliation is composed of thirteen representatives of labour and an equal number of. representatives of employers. As a general rule the wages are adjusted from month to month upon a sliding scale, which moves upwards or downwards according to the prices of the manufactured article. Here we have an admirable example of the successful working of the voluntary principle, because we find a Board, having a jurisdiction over not less than 200,000 employes, successfully settling all disputes without resort to compulsion. The Durham Miners' Association affords another example of the success of the voluntary principle. That association has 192 branches, and exercises jurisdiction over 90,000 workmen. The Board consists of thirty-six members, eighteen of whom represent employers, and the remained the employes. In ninety-nine cases out of 100 conciliation is successful in settling disputes or adjusting claims made by either party.


Mr Hutchison - That is providing that the parties can be induced to conciliate.


Mr GLYNN - They do so in the cases to which I have referred. These show that, by being temperate and bringing common - sense and honesty to bear, all disputes may be settled on the voluntary principle.


Mr Hutchison - But how are we to induce the parties to submit to conciliation ?


Mr GLYNN - By persuading politicians to leave them alone. Surely we can do what has been done in England. The spirit displayed by the English employers and workmen, which has resulted so successfully, may be relied upon to prove equally efficacious here if we are not too impatient, and do not impose compulsory conditions upon the parties. Surely by travelling 13,000 miles across the seas we have not lost the benefit of our hereditary training.


Mr Hutchison - We had a Boot Trade Board in South Australia; but it is no longer in existence.


Mr GLYNN - I know the reason of that ; but I do not propose to allow reference to generalities to upset what I consider to be particular arguments. In connexion with the Durham Miners' Association, there is an Arbitration Board which is seldom called into operation. Lord Davey is the President of the Board, and two cases may be mentioned which came before him for adjudication. One of these in 1895 arose out of an appeal by, I think, the workers, whose wages were actually reduced by the award. In the other case a demand was made for ai holiday, and the decision was given against the employers. In both instances the awards were religiously observed. If honorable members wish to know the reason for this, I may refer them to a paper published in the Bulletin of the Bureau of Labour of the United States, in January, 1904. An expert named Maurice Low was sent to England to report upon the conditions there, and the results of his observations were published in extenso in the Bulletin of January last. He says: -

The awards are obeyed because in advance both sides have acquiesced in the finding, whatever it may be. In short, it is a beautiful example of all law in a highly civilized state of society depending for its enforcement upon the consent of the governed.

As a matter of fact, nine-tenths of the relations of daily life are settled without the aid of the law. We submit ourselves to " the soft collar of social esteem."


Mr Mauger - Surely the honorable and learned member would not, on that ground, argue that there should be no law ?


Mr GLYNN - The honorable member surely does not do me the injustice of supposing that that is the inference to be drawn from my arguments. What I do say is that where social order can be main tained upon the voluntary principle, where common sense, public opinion, and social esteem are sufficiently. strong to enable us to dispense with legislation, we should not like the lower civilizations, develop a system of regulation by law.


Mr Watkins - What would the honorable and learned member do- in case of a refusal by either party to a dispute to abide by an award made under the voluntary system ?


Mr GLYNN - I am not discussing that matter at. the present time. I am merely endeavouring to prove that the voluntary principle has been a success-


Mr Watkins - It has not been successful in Australia.


Mr GLYNN - Has it been fairly tried ?


Mr Watkins - Yes.


Mr GLYNN - I doubt it. As I have previously pointed out, organization, even in England, is of quite recent origin.


Mr Watkins - In New South Wales the principle of voluntary arbitration was tried for years in the case of certain industries.


Mr GLYNN - But the honorable member knows that even ten years ago the principles of unionism were practically banned by the law. Were not prosecutions instituted in Broken Hill as the result on the whole of the legitimate development of unionism ? Indeed, the old oppressive spirit has not yet entirely disappeared from Australia. It is disappearing gradually, but it takes more than a generation to attain those conditions which will yet establish themselves, and which form the very basis of the success of the voluntary principle. It may be said - it was stated last year - that we still have strikes in England. But I would point out that within the last, ten or fifteen years every large strike in the United Kingdom has been followed by the formation of a Conciliation Board, having for its object the prevention of its repetition. Take the case of the engineers' strike of 1897 as an example. That strike affected no less than 27,000 men. It was followed by the ratification of an agreement between the parties to the dispute, under which all future differences are to be referred to a voluntary Board of Conciliation, and I do not think there has been a strike since 1897. Another instance is provided by the great dockers' strike of 1889. That was followed by the formation of the London Labour Conciliation and Arbitration Board, which contains representatives, of the Chamber of Commerce and of twelve groups of London trades. Practically all disputes within the jurisdiction of the London County Council are now settled by this board. Take still another great trade - the Boilermakers, and the iron and steel shipbuilding trade. That organization has not been involved in a strike during the past twenty years, although about 97 per cent, of all the workers have voluntarily placed themselves under the jurisdiction of a board. Does not that indicate a greater measure of success than the Prime Minister has shown to have followed the operation of the New Zealand Act of 1894? In England the workers voluntarily place themselves under the jurisdiction of the Board, whereas in New Zealand we find that the number of unionists has not kept- pace with the increase in the number of workers. Although the whole principle underlying the New Zealand Act is to force the workers to join the trades unions, we find that they display reluctance to do so, whereas in England 97 per cent, of them have joined those organizations voluntarily. In 1902, 678 claims which never reached the stage of disputes were settled in England by 57 voluntary boards. There were 442 disputes, affecting 256,000 workers, and of these disputes only three were followed by strikes. Surely that is an indication of the growing success of the voluntary principle in the old country.


Mr Mauger - The honorable and learned member is referring to the disputes which came under the notice of those boards.


Mr GLYNN - I say that in England there were 442 disputes altogether.


Mr Mauger - The honorable and learned member is wrong.


Mr GLYNN - I do not think so. If I am, the honorable member can correct me. I repeat that there were 256,000 persons affected by 442 disputes, and in any case the fact that only three resulted in strikes, attests the success of the voluntary system, there being no law against a strike.


Mr Mauger - The honorable and learned member will find that the cases to which he refers are those in which the parties to disputes voluntarily agreed to submit their differences to Conciliation Boards.


Mr GLYNN - I do not think so. At any rate, 678 cases never reached the stage of disputes," and I think that these claims cover all that were made in England. In that country the voluntary system has been pioneered. America is about twenty-five years behind England in this respect. In the mother country the voluntary system was opposed at every step by law, prejudice, and lack of sympathy on the part of public opinion. Nothing is a finer subject for contemplation, or more inspiring to those who hope for and believe in the possibility of a higher social state, than the steady, unfaltering march of the masses, against the obstacles of law and privilege, towards a recognition of their claims to fair conditions of remuneration and hours of labour, and to some share in the control of public affairs. But that march was conducted against opposition - opposition which is still potent in America. The law which is operative there may be q'uite as liberal as is that of England ; but, as we know, the machinery of government in America i ; more often brought into operation to suppress combinations and unions than it is in the old country. As a matter of fact, those amenities which soften the relations between employer and' employe exist to a very small extent in America. There, capital is more callous and insensible to the welfare of the working classes. This- results from the fact that to a large extent the trust system controls the operations of labour. Thus, if we find very many instances of social unrest in America, we must remember that the system of "cornering" markets has made employment there exceedingly fitful, and the result of course ii a popular discontent, all aggravating the still unsettled relations between capital and labour, and preventing that degree of success which has been attained in England under the voluntary principle. Nevertheless, events- are shaping themselves fairly well there. In the report of Mr. John B. McPherson - a report which appears in the Bulletin of the Department of Labour for May, 1900, and which deals with the working of the English system - we find, the following: -

Notwithstanding the severity of some great strikes in England, and the reputed success of the compulsory law in New Zealand, the writer could find little or no sentiment favouring arbitration by means of a Statute.


Mr Deakin - Who is Mr. McPherson?


Mr GLYNN - He seems to be an expert, because his report in the publication to which I have referred, and which is issued by the Government, covers, if I remember aright, some 70 or 80 pages. He states in the preface to his report' that he went to England to examine the voluntary system.


Mr Deakin - I am informed that he is secretary to the Bureau.


Mr GLYNN - That fact in itself proves that he is an authority upon the subject. He goes on to say -

All previous legislation in respect to labour and wages has been ineffectual, and the opinion expressed more than twenty years ago by Mr. Compton that " the law and our tribunals, adminable and worthy of veneration as they often are, cannot be the means of reconciling capital and labour," finds as nearly a response as when first written. The prevailing opinion among employers and employed favours conciliation first, arbitration rather than a strike, and then a referee or umpire, to whom appeal can be made for final decision and settlement.

Another reason of the want of success in America is that unionism there is almost in its infancy- The Prime Minister, in moving the second reading of the Bill, referred to an article in Harper's Weekly denouncing unionism. But we had a similar state of affairs in England twenty years ago. It is nothing more than the reprisals of capital at being collared.


Mr Mauger - The article refers to only some portions of the United States of America.


Mr Deakin - To New York.


Mr Mauger - In other parts of the United States of America the unions are strong, and are recognised.


Mr GLYNN - -Still they are in a militant stage, and the bitterness of capital appears to be very pronounced. When we come to look at what has been done in England we must see that people of the same blood and traditions in America are likely to make a great success of unionism there. I read an article the other day by Mr. Richard Bell, M.P., who is secretary of one of the biggest railway organizations in England, and who points hopefully to the possibilities of unionism in America. He states that in England it has shortened the hours of labour, increased the wages of the workers, bettered their social conditions, and improved the standard of the workers generally. Dealing with' the question of social order, he points out that no less than nine out of ten of the labour leaders are teetotallers. In proof of my contention that the want, of success of conciliation in America, to which the Prime Minister referred, is due to the imperfections of the organizations there, and to the antipathy of capital and law towards unionism, I shall quote from an article by another American, Mr. Maurice Low.


Mr Mauger - He is hardly an authority on labour.


Mr Deakin - He is a publicist, and a good authority on any, subject.


Mr GLYNN - He has written on this question, and he points out that -

Viewing the present condition of trades unionism in the United States in the light of the history of the movement in Great Britain, the men whose opinions are here presented, believe that, in the United States, trades unionism has not yet advanced to the high level it now occupies in Great Britain. This is one reason why, in their opinion, the relations between capital and labour in America are not so cordial as in England ; it also explains why strikes in America are more common than in England, and are carried with greater bitterness on both sides. .

But, nevertheless, conciliation has attained a very considerable degree of success in the United States. The British Iron Commission of 1902, reporting upon the position there, states that the bulk of the disputes are now settled by conferences between employers and employes - by meetings between organization and organization, and by industrial agreements, extending, in some cases, over several States. I would, therefore, put it to honorable members whether, in the two great English-speaking communities, we have not evidence of such a success of the method of adjustment of trade disputes, without law, as to call for the display of a-' little patience in Australia, and for the postponement of the proposal to add another tribunal to the already overweighted Federal and State machinery of the Commonwealth. On the whole, unionism in the United Kingdom has successfully modified the relations of capital and labour. When it can clearly be shown to have failed, then, and only then, does the necessity for legislative interference arise, and, when we do interfere, our interference ought to be strictly limited "to the proved necessity. I " have mentioned that the Bill is framed to cover every possible case that can be assigned to the Federal jurisdiction. It is designed, indeed, to cover not only every acknowledged but every doubtful case. The Prime Minister, in moving the second reading of this Bill, stated, according to Hansard, page 776, that -

The scope of this measure provides for all possible contingencies that can be foreseen.

It goes far beyond the necessities.


Mr Deakin - That has to be determined.


Mr GLYNN - The Prime Minister went on to say that we should recognise -

That the cases in which the Federal Court will be called upon to intervene will be those in which - at all events, in some instances - a great industrial conflict has begun, which has passed beyond the bounds and power of any one State.

This shows that the Prime Minister, at all events, in one instance, felt that his statement was having a rather peculiar effect , upon the House, and that it was necessary for him to qualify it. I put it to the honorable and learned gentleman, whether he really has not come to the conclusion, since last year, that before the jurisdiction of the Court can arise, a dispute must have extended beyond the limits of any one State - that the identical point claimed in one State must be claimed in another.


Mr Deakin - That is very probable.


Mr GLYNN - And that a mere sympathetic strike in one State to co-operate with strikers in another State, upon a different point, would not be within Federal jurisdiction.


Mr Deakin - Hear, hear.


Mr GLYNN - The Prime Minister indicates, then, that the Federal jurisdiction in these matters is greatly limited. If it is as limited as has been indicated then the Bill is to a great extent a delusion. If it can extend only to maritime matters and perhaps to shearing disputes, where are the great possibilities of social amelioration to flow from the passing of this Bill? In that event it must be to a large extent a delusion, even from the point of view of the working classes, and to the extent that it is not it means that, with a view to obtain benefits which may come from proper organization without law, they are placing themselves under a penal system which, on a falling market, would prove particularly galling. The Bill is full of provisions for the imposition of penalties. Under clause 46 a fine of £,10 may be imposed on an individual member of an organization for breach of an award, and if that breach be a wilful one he may be fined £20. Clause 57 provides that, for a breach of an award, the rights of a member under the Organization in question may be cancelled. In other words, the benefits which would come to him - the old-age pension, sick pay. and allowance in the case of death - might be abrogated by the disobedience of an award. For the future then, if an employe joins an Organization under this Bill he will be liable to these penalties. Even if he joins an organization which is not under the measure, that organization, without his consent, may be brought under it. The Governor-General has power, on the recommendation of the President of the Board of Conciliation, to proclaim any association as being one coming within the terms of the Bill. It will thus be seen that an employ^ may join a friendly society - if we choose to call it so - for purposes outside the scope of this Bill, but that that organization may be proclaimed, without his consent, as one coming within this measure. He may then be fined £10 for disobedience of an award of the Court, and £20 for wilful disobedience, while the whole of his benefits as a member of the society may be cancelled. For the mere possibility of benefits to come under this Bill there is to be an immense surrender of independence on the part of the working classes. In addition to this, an employe1 may, whilst subject to the jurisdiction of the Federal Act, be subject to a State Act. He would have to belong to one organization under the State Act, and to another, with a second set of penalties, under the Commonwealth Act; the jurisdictions are not mutually exclusive. Before the Commonwealth jurisdiction can be exercised, provision has to be made for the forming of organizations, and the same steps have to be taken under States legislation. So that in anticipation of the possibility of a dispute occurring, men will have to join two organizations, with different sets of rules, and will be subject to two Acts, and to a double set of penalties. It could not have been contemplated when the clause now in the Constitution, was drafted by the members of the Federal Convention that a Bill of this sort would be introduced, and the extensive powers provided for given, except in a few cases. The real scope of Commonwealth legislation in this matter is limited to maritime and shearing disputes, as to neither of which is there urgency. If the prevention -of maritime disputes is a pressing matter, what is to hinder us, as we are about to create an Inter- State Commission to deal with InterState commerce, from investing it with jurisdiction for the prevention and settlement of maritime disputes? If the power to regulate rates of freight between State and State is to be vested in that Commission, it will be to some extent an expert body for the settlement of maritime disputes, and by giving it jurisdiction in that regard a duplication of machinery would be prevented.. The section of the Constitution under which the Bill has been introduced speaks of legislation -

For the prevention and settlement of industrial disputes extending beyond the limits of any one State.

My opinion is that those words apply to the settlement of disputes which have extended beyond the limits of a State, and to the prevention, by anticipatory penalties, of their extension. They do not give power to the Commonwealth t? interfere before the limits of State jurisdiction have really been passed ; they merely give power to this Parliament to frame a set of laws which will become operative the moment a dispute has extended beyond the borders of a State. We are not to go into the field of State jurisdiction, and say, "We will take charge of the settlement of this dispute, lest it extend beyond the borders of the State." The moment a dispute extends beyond the borders of any one State, it is the province of the Commonwealth to interfere, But it was never contemplated by the members of the Convention that a sympathetic strike - a contention which has now been abandoned - should give jurisdiction to the Commonwealth, that if a strike of the members of an organization having a branch in another State took place in one State, it would give jurisdiction to the Commonwealth to interfere for the settlement of the dispute. The provision in the Constitution was introduced merely to cover a gap, to create a power which was not possessed by the States. It is a power rer quired in connexion with the settlement of maritime and shearing disputes, but it does not cover 95 per cent, of the disputes which honorable members appear to think fall within the province of Commonwealth legislation. The scope of the Bill is limited to the cases I have put. If the Commonwealth is to step in to settle a State dispute for fear it will extend beyond the limits of the State, the State will have no sphere of jurisdiction in industrial matters left, because every dispute may extend beyond the limits of the State in which it occurs, though, in many cases, the possibility of extension may be very small.


Mr Hutchison - If a dispute has extended, the Slate authority cannot settle it.


Mr GLYNN - When a dispute has extended, the Federal Act will come into play. But the extension of disputes within the meaning of the Constitution will be comparatively rare. For instance, if a strike occurred in the bootmakers' trade in Sydney, and another strike in the same trade occurred in Melbourne, the Commonwealth would not have jurisdiction, because the strike in New South Wales would be capable of settlement by the Arbitration Court there, and the strike in Victoria could be settled under similar local legislation if the members of the State Parliament wished to interfere.


Mr Tudor - But suppose they did not wish to interfere?


Mr GLYNN - Interference would still not be within the province of the Commonwealth authority. In many instances, no doubt, the public voice is not obeyed by, or public opinion is not properly represented in Parliament, and there are many things that call for interference by legislation ; but it is not the province of the Commonwealth to make good the apathy of the State. I might say something as regards the constitutionality of the extension of these provisions to the States, though personally, I think that a higher ground than mere constitutionality is that of expediency.


Mr Deakin - A higher ground in. this case.


Mr GLYNN - Yes. There is the test of expediency and the test df constitutionality. As to the expediency of this proposal, I would remind honorable members that the Federation is still young, and that the time has scarcely yet arrived when its strength should be tested by pushing the powers of the Commonwealth to their extreme limits. We must remember that, perhaps through misunderstanding as much as through mistakes of policy, the enthusiasm with which Federation was resolved upon has somewhat waned, that the Commonwealth has still to acquire the full moral support of popular affection, and that temperance in the exercise of even our undoubted powers is the best way to .win the confidence of the States, and to perfect their loyalty to the union. If one might apply an illustration which would come home to most of us, the end of the honeymoon, when the marital relations have lost those early attractions which for a time dulled the sense of diminished individual independence, is not the best time for experiments in the exercise of transferred powers.

The parties to the Federal tie are suffering from the reaction which inevitably follows moments of high tension. The Parliaments Of the States, although they still retain the wider sphere of jurisdiction, are undoubtedly conscious of a slight loss of dignity as well as of power. They are still composed largely of men who were members under the old conditions, and who therefore are all the more likely to resent any aggressive advance on our part into the field of doubtful jurisdiction. For these reasons, it seems to me that nothing could be more obnoxious to the States than outside interference with the internal management of any of their great Departments of the Public Service. Nothing except the strongest grounds of necessity and public interest would justify any such interference. Instead of adopting a policy which must prove irritating to the self-respect of the States and be regarded as dangerous to their autonomy, we ought, as the greater body - as the one who should display a special solicitude for the integrity of the union, that, to an extent, can, by legislation, or by the executive, contract or expand the jurisdiction of and determine the personnel of the Court that keeps the parties to the Federation to their respective spheres - to exercise a good deal of tact and delicacy in our relations with the other parties to the Union. I speak as an ardent federalist, as one who believes that the economy which must be effected in the machinery of administration, if the people are not to be crushed beneath its weight, must take the direction of an extension rather than of a contraction of the field of Federal jurisdiction. But when additional power is granted and assumed it must be accompanied by a corresponding responsibility. We can scarcely expect the States to pay the piper when we call the tune. So much as to some general grounds of expediency. But I ask honorable members is it expedient that we should take away from the Railway Commissioners of the States the power to determine the hours of work of their employes, to determine the wages, not only of the day labourers, but the salaries of those who are paid by the month, or b\' the year? Is it expedient, for instance, that the power which is vested in the Railway Commissioner of South Australia, under its Act of 1887, to prescribe the wages, the duties of the employes, their classification, the method of their compensation, their pro'motion, should be abrogated and shifted on to a Federal body, which does not take the corresponding financial responsibility ?


Mr Hutchison - Do we take these powers from them?


Mr GLYNN - Undoubtedly we do, if we place the States under the jurisdiction of the Court.


Mr Hutchison - The Court will merely prescribe the conditions under which a man shall work.


Mr GLYNN - It will prescribe the terms of employment, the hours, and the compensation.


Mr Hutchison - Does the honorable and learned member think that a Court would fix unfair wages?


Mr GLYNN - That is not the point. The question is whether it is expedient to hand over the power to do that when the States have not the power to check any mistake made by the Court ? I submit that we cannot afford to sever responsibility from power. What is the very essence of the British Constitution ? It is that the Parliament shall not tax unless those it taxes are represented. Why was it that the masses ultimately succeeded in carrying the principle of adult suffrage? Because the theory is that we tax a man through his daily consumption, that when we place a very heavy levy on ordinary articles of dail, use, we must give him representation, and that principle was acknowledged in the expanding suffrage of each State. It is the old principle, the non-recognition of which separated America from England. What was the cause of the quarrel? Taxation without representation. What is representation? The power of the people to control the body which imposes the tax. What honorable members are seeking to do here is to hand over to a Federal body, which the State has no right to control, the power to determine the hours, the pay, and the general conditions of employment of State employes.


Mr Carpenter - In the Court the Railway Commissioners would have representation.


Mr GLYNN - There is no special representation provided. The Railway Commissioners will become, for the future, part of an organization. I do not know how they are' to become so as a matter of practical working, but it is necessary for the machinery of the Bill that they should. Thev can be brought in as an organization by proclamation. When honorable members urge that this should be done they are mistaking what a Federation is. It is not a unitary system. Under a unitary system there is a complete absorption of power and responsibility together. If honorable members wish to have that, it would be fairer to abolish the Federation, and to adopt the unitary system throughout Australia. We were told before we federated that the Federation was to be a union of co-equal States, that the integrity of the States was to be respected in all matters not essential to the efficacy of the Federal power, that power and responsibility were not to be severed. If I may quote from the resolution which preceded the first draft of the Constitution in the Adelaide Convention, the object of our federating was not to limit the power of the States, but - in order to enlarge the powers of self-government of the people of Australia.


Sir John Quick - In matters of common interest.


Mr GLYNN - Yes. Is it enlarging the powers of self-government of the States to sever the power of controlling their institutions, at the same time leaving the financial responsibility to them ? There is no Federal Constitution under which such powers have been assumed. The German Constitution gives control as to rates, of the management of railways; but it stops short of power over the salaries and conditions of employment of the employes. Now as to the strict constitutionality of the provisions of this Bill. It is said that we have nothing to do with the constitutionality of the Bill, which is a matter. that should be left to the decision of the Judiciary. But I would point out that this principle cannot be admitted without some limitation. The Judiciary is, no doubt, the final arbiter as to the limits of our powers; but I submit that in the interests of harmony between the States and the Common-wealth, in the interests of possible litigants, "who would have to pay for the solution of these problems, which we so light-heartedly raise, we ought to apply our common sense in testing the constitutionality of the provisions of each Bill, and not to multiply recklessly occasions for litigation. What is the principle of construction? Every power must be shown to be affirmatively granted, and the burden of proof is thrown on those who allege its existence. When the power is found to be granted, it must be liberally exercised. The construction to this extent must be liberal. Not only is that principle applied to the construction of Constitutions like the American, but it is expressly embodied in our own. Section 107, which deals with the saving of the power of the States Parliaments, reads as follows: -

Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth, or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as the admission or establishment of the State, as the case may be.

The express declaration is that, unless the power is clearly granted to the Commonwealth Parliament, it remains with the State. Then the other principle of liberal construction, when a power is acknowledged to be granted, comes in under section 51, sub-section 39, which empowers the Parliament to legislate in respect to all matters which are incidental to the efficacious working of the powers conferred and specified. To say that we can give jurisdiction over the States under the implied powers of the Constitution, is going against all the decisions even in the United Kingdom, where the Crown must be expressly mentioned, and in America, where the States must be expressly mentioned. Besides, a Federal Constitution is different from a Confederal one. Under the Confederal system, the power is over the State as a body. Under the Federal system, the power is over the individual. Under the Federal system there is no power conferred over the State as such. Just after the American War of Secession it was laid down by Chief Justice Chase, in the great case of Texas v. W kite, that -

The Constitution in all its provisions looks to an indestructible union of indestructible States.

What does another great Chief Justice say? In the case of McCulloch against Maryland, Marshall says: -

To the formation of a League, such as was the Confederation, the State sovereignties were certainly competent ; but when, ir» order to form a more perfect union, it was deemed necesary to change the alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers from them, was felt and acknowledged.

Honorable members will notice the reference of Marshall to acting directly on the people. This is the federal principle, viz., to act not on the States, but directly on the units of the population. The fact that that is an essential condition of the Constitution is proved by a reference to the main powers of our own Constitution. The Constitution is conferred by the people, and when the time for amendment comes we send it back to its source, and ask the people who had granted it to amend it. We do not go to the States Parliaments, because, in our solicitude for the integrity of those bodies, we have advanced a step beyond America by placing the matter entirely beyond their sphere. Here we go directly to the people. Section 128 of the Constitution provides that amendments of the Constitution must be carried by a majority of the people of the States voting together, and by a majority of the electors in the majority of the States. Never is the State as a parliamentary unit called upon. That is the principle laid down in the great speech of Webster, which really gave us the first proper interpretation of the spirit of the American Constitution, and which', in fact, is the charter of true federalism. In his reply to Hayne, in 1 830, he said, it is -

The people's Government, made for the people, made by the people, and amenable to the people. But the National Government possesses those powers which, it can be shown, the people have conferred on it, and no more.

If honorable members will look at the American Constitution they will find that, like our own, it expressly places a limit in certain cases upon the powers of the States, thus showing that the abrogation of those State powers could not be implied from the genera] delegation of powers to the Federation, but must be made in express terms. In other words, State powers, which might be regarded as sovereign, must be expressly negatived. Article 1, of section 10, of the United States Constitution, gives a list of the powers which no longer belong to the States, thus showing that the withdrawal of these powers from the States was not included in the sections analogous to our section 51, which conferred general powers of legislation upon the Federal body. The control of the State as an organization can only be given expressly. As -the Prime Minister has pointed out, so jealous is the spirit of federalism regarding the integrity of the States that it has been decided in America that the Federal power of taxation does not extend to State agencies or their instrumentalities. It has been recognised that the possibility of any encroachments upon the States must not be permitted, and that, as a corollary, the States must not interfere with the agencies or instrumentali ties of the Federation. Cooley, in his Principles of Constitutional Law, says : -

The very power would take from the States a portion of their intended liberty of independent action within the sphere of their powers, and would constitute to the State a perpetual danger of embarrassment and possible annihilation. The Constitution contemplates no such shackles on State powers, and, by implication, forbids them.

Hence it has been decided in America that the Federal authorities cannot tax railways owned by the States. If the power of taxation be denied, the same principle would preclude any interference with the salaries of State officials. We cannot tax; because, if we could do so, we might destroy. The body taxed would have no power of control, because the State is not represented in the Federal Parliament, and by a parity of reasoning we could not interfere to force the States to pay higher emoluments to their servants, because, whilst having to find the funds, they could not apply a corrective. So that, if we analyze the Constitution, or recognise the very essence of the British system of government, we shall find it impossible, while respecting leading principles, to place the States under the jurisdiction of the proposed Conciliation and Arbitration Board. Our power might be tested by the consideration whether we have the necessary machinery to enable us to give effect to the decisions of the Arbitration Court. We cannot issue a mandamus to compel a State to find funds. We have taken away that power, lest, if it existed, it might be exercised. It does not exist under the Judiciary Act. I pressed the Government, when the Judiciary Bill was under consideration, to make provision for enforcing the verdicts of the High Court against the States. All that was done, however, was to provide that the Court should issue a certificate. This would be handed to the Treasurer of the State, who would presumably make provision upon the Estimates for the necessary payments; but there is no power to compel a State Treasurer to follow this course, and the non-existence of any machinery to give effect to the findings of the Arbitration Court shows that the exercise of such a power was never contemplated.


Sir John Quick - But the States can be sued only in matters within the judicial power of the Commonwealth.


Mr GLYNN - No doubt; and that raises the question whether a mandamus after an . award could be granted against a State Government. In the United States it has been expressly decided that a mandamus cannot be directed to compel a State Government to find funds for any purpose whatever. According to Baker's Annotated Constitution it is held that the United States has no jurisdiction to issue a mandamus to the Federal Secretary of the Treasury, commanding him to pay money out of the Treasury over a disputed claim. The same principle applies to the States, and we have here a recognition of the absolute severance of their spheres where representation does not exist as a corrective to abuses of power. I would point out that if we could interfere by means of an Arbitration Court we could interfere by direct legislation. An Arbitration Court is now proposed as a method, of settling disputes, but that is not the only means which could be adopted. Our power relates to the settlement of disputes that have extended beyond any one State, and, on the analogy of the States laws by means of arbitration and conciliation. That, however, is not the only method that might be followed. In the beginning of the last century an Act was passed in England to enforce the judgments of the Court by imposing penalties and to rend-w strikes penal. No board was set up in that particular case. Therefore, we might pass a Federal Act which would interfere directly with the conditions of employment' in the railway services of the States as a preventive of disputes which might ailed more than one State. I dj rot wish to labour this matter, but to discuss the inexpediency of passing the measure in its present form, and to express my extreme doubt as to its constitutionality. As the general principles of the Constitution are opposed to giving direct control over the States, honorable members ought to hesitate before overloading with doubtful provisions a Bill which might otherwise be acceptable to the majority of honorable members. I desire to refer to the question of the maritime jurisdiction. I notice that the word " industry " is defined as follows: - " Industry " means business, trade, manufacture, undertaking, calling, service, or employment on land or water.

These words "land or water " were inserted last year, I think, as the last amendment, and 'it was argued by the Prime Minister and the honorable and learned member for Darling Downs that they or the words for which they were substituted did not confer all that the right honorable and learned member for Adelaide desired to attain. I hold that they give absolute jurisdiction over all ocean-going vessels under this Bill, and that, no matter what limitation may be placed in the Navigation Bill in regard to excluding Western Australia from the operation of its coasting trade provisions by means of clause 296, these words, unless limited by the Navigation Bill, apply so far as the arbitration award is concerned. The rule, I take it - and I think my position can be established by legal decisions - is that a foreigner is bound by our laws the moment he comes within our jurisdiction. In the case of Regina v. Keyne, commonly known as the Franconia case, a majority of the Court decided that the limit of English jurisdiction was low water mark, that by the acquiescence of other international Powers, England could have assumed jurisdiction up to the range of cannon shot, or three miles, but that, as no Act had been passed by the Imperial Parliament extending its jurisdiction beyond low water mark, jurisdiction did not exist beyond that point. But the year after that decision was given, an Act was passed which provided that English jurisdiction should always be held to extend to the three miles limit. It was thus rendered certain for the future that that was the limit, and the decision was accompanied by the exercise of a power which was acquiesced in as a matter of international comity. It was laid down then, that the moment a foreigner came within the limits of English jurisdiction he was amenable to all those English laws that were not suspended as a ' matter of international comity in his favour. None of our maritime laws are suspended except by express enactment in the Merchant Shipping Act in relation to petty matters of internal order when a vessel is in any of our ports. They are not suspended in respect of crimes, wages, or anything of that sort. I hold, therefore, that the moment any British or foreign vessel approaches within three miles of our coast, it will become subject to the jurisdiction of the Arbitration Court, whose award will be binding upon it, notwithstanding any limitations - unless they expressly affect this measure - which may be imposed by the Navigation Bill. Last year the honorable and learned member for Darling Downs, referred to what is known as the "A B C " case of 1900, in which the Bankruptcy Court decided that it had no jurisdiction to declare a foreigner bankrupt. But I would point out that the foreigner in question was not resident in England, otherwise he would have been subject to all our laws. Therefore I do not think the Prime Minister will dispute that this Bill brings within the scope of an award by the Arbitration Court all foreign or ocean-going vessels engaged in the coastal trade.


Mr Deakin - They are engaged in it subject to the definition.


Mr GLYNN - The honorable gentleman does not define the coastal trade as beginning and ending here.


Mr Deakin - Practically, I think.


Mr GLYNN - Does not the Prime Minister say that a vessel which came from London, and shipped goods at Fremantle, intending to land them at Sydney, would be engaging in the coastal trade?


Mr Deakin - Yes ; except within the exemption.


Mr GLYNN - The representatives of Western Australia must bear in mind that all vessels coming from Fremantle, which carry passengers or freight, will, as far as this Bill is concerned, be subject to the local award of the Arbitration Court. Now as to the wisdom of the policy of bringing all ocean-going vessels within the scope of this Bill. The Premier of New South Wales stated at a luncheon which was held on the Yongala, one of the Adelaide Steamship Company's vessels, on December 30 last, that foreigners ought to be forced by British legislation to recipro- cate. I intend to deal with the question of reciprocity presently, because there is really a good deal of misunderstanding as to what foreigners are doing in regard to British trade. What is the Australian trade to be affected by these provisions ? Last year Sir Malcolm McEacharn gave us some figures which showed that the value of the Australian coastal trade carried by ocean-going vessels represented only £125,000, out of a total trade of £2.250,000. He also showed that the bulk of that trade is between Western Australia and the eastern States. Out of that £125,000, some £25,000 is represented by freight, and the balance is made up of passenger traffic. The representatives of Western Australia desire that passengers shall not be affected by this Bill. So that, for the sake of interfering with a freight trade of £25,000 annually which is done by ocean-going vessels between Fremantle and the eastern ports, we are asked to introduce harassing provisions which may militate against the large carry ing trade enjoyed in foreign waters by the British Empire. But before dealing with that matter I wish to touch upon the question of. reciprocity. In four out of seven of the principal foreign countries with oversea possessions, the trade between the home country and its oversea possessions is open to all vessels. In the cases of Germany, Holland, Denmark, Portugal, France, except in the Mediterranean, the trade between the home country and its Colonies is open to the vessels of any registration. As regards the coasting trade, that of Germany, Italy, Sweden, Norway, Denmark, Austria-Hungary, Belgium, and Greece is either open unconditionally or upon terms of reciprocity.


Mr Deakin - What coasting trade has Austria-Hungary ?


Mr GLYNN - At any rate, the bulk of the carrying trade is done by British vessels. The question is this : Are we foolish enough, for the sake of £25,000 worth of traffic, which is partly done by foreign-owned vessels in Australian waters, to introduce provisions which may strike at. the very large carrying trade which is done by British vessels in foreign waters? Take the trade of the United Kingdom with British possessions. Ninetyone per cent, of the shipping in cargoes, and 76 per cent, of the shipping in ballast, is done by British-owned vessels. Of the vessels engaged in the trade between Colonies and Colonies, 87 per cent, are of British registration. Again, let us look at the colonial coasting trade. The figures in this connexion are not, perhaps, so accurate as they might be, but it has been roughly estimated that 96 per cent, of that trade is done by British vessels. Now let us examine the other position - the trade of foreign countries. Sixty-one per cen.t. of the trade between the United Kingdom and foreign countries is done by British vessels. If we take the total British tonnage entered and cleared in foreign ports, we find that it represents 106,000,000, whereas the tonnage of foreign vessels entered and cleared in British ports amounts to only 48:600;000 tons. Taking the conclusion of one who may be regarded as an adverse witness - the economist who was specially employed to write up Mr. Chamberlain's policy in the pages of the Times - what do we find ? In a special article devoted to the shipping trade, he had reluctantly come to the conclusion that, if foreign countries wish to enter upon a game of reprisals, undoubtedly the mercantile marine of Great Britain affords a noble target. He says that even if subsidies were granted, they would only prove of great benefit to a maximum of 39 per cent, of British shipping, that they would injure 47 per cent., and would have little effect on 14 per cent. This leaves out of account possible retaliation by other governments in the form of tonnage dues. I again seriously ask honorable members why we, as a part of a noble Empire, which has hitherto ignored the petty reprisals of other countries - whose trade has attained the enormous dimensions of nearly ^950,000,000, which does the bulk of the carrying trade of the world - should, for the sake of preventing foreigners taking ^25,000 worth of a trade of ^2, 2 50,000, enter upon a policy of pin-pricks that may be disastrous to the Empire as a whole? It seems to me to be pushing pedantic adherence to principles to the most absurd limits. I shall not further trespass on the patience of honorable members, beyond saying that, in my opinion, this measure is one which might very well wait for the experience of the States, whose legislation, as I have endeavoured to prove, we can but to a slight extent supersede, and may not for years be required to supplement. Federal interference, as long as the principle of voluntary adjustment, and even State compulsion has not been shown to have failed, is not called for, and, on the whole, it is not the province of a Legislature to anticipate every possible contingency, or to set up complex political machinery against evils that may never arise. The Bill, even as now drafted, goes far beyond the powers contemplated by the members of the Federal Convention ; but if its provisions be amended so as to restrict local autonomy by transferring to a board of three business amateurs the control of a very considerable part of the Public Service of the States, . I can onlysay that public confidence in the Commonwealth will be somewhat rudely shaken at a most critical period of our Federal growth.







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