Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Thursday, 14 April 1904


Mr HIGGINS (NORTHERN MELBOURNE, VICTORIA) - I feel sure that we should all welcome his aid and his guidance in this matter. This measure constituted the chief plank in the platform of the Government at the last election, and was also included in their programme at the previous election. The country has pronounced with no uncertain sound its verdict in favour of the Bill ; and that party which has been most strongly identified with the advocacy of conciliation and arbitration has been re turned with increased strength. In spite of this, however, some honorable members persist in treating the proposal for conciliation and arbitration as if it were a foulminded ogre, which was seeking to devour our industries and injure our people: Yet our experience in Australia shows that wherever the Arbitration Court is, there is peace - more peace at all events than there was before. The principle of ' compulsory arbitration has been accepted

Oil the understanding that almost any peace is better than war. Those who oppose the Bill seem to lack memory or imagination, 2 l 2 and to be unable to realize the facts disclosed by the telegrams which reach us almost daily, relating to industrial struggles in the great countries of the world, which are causing pain to the workers, and terrible loss to the employers, which are devastating homes and inflicting injury upon the communities in which they occur. At the same time, I quite recognise that a measure of this kind should be closely criticised, because we are sailing in an unknown, or at least an uncharted sea. We do not know where the sunken rocks are, and we have nothing to guide us in avoiding the dangers which beset our course. The Arbitration Court, which it is proposed to erect, will be of an exceptional character. It will not have to interpret and apply definite and express laws, but will practically have to direct and conduct living industries. Difficult as is the work of the Courts under ordinary circumstances in interpreting and applying the law, I say without hesitation that the difficulty of conducting industries is far and away greater. I do not intend to inflict a long second-reading speech upon the House ; but I feel that this Bill forms part of a system of legislation based upon the feeling that if human life is to be used for the purpose of profit it must not be used to its degradation ; that after all it is our duty, as far as we can, in view of the fact that human life is the most valuable asset of any country, to see that that life, if used for the purposes of gain, is not so employed that the health and vitality of the community are lowered. This is one of the measures designed to take the weight off the delicate fibre of . human life and impose the stress upon inventions and appliances - to put weight upon dead and lifeless matter, and to as far as possible protect the vitality of the people. It is satisfactory to the supporters of the measure to be able to challenge its bitterest opponents to point to any authentic instance of injury having been done to any industry in these States by any legislation of this character. Stress has been laid upon the fact that in America and the United Kingdom the working classes have deprecated the adoption of compulsory arbitration. The votes of the unionists have undoubtedly been given against compulsory arbitration in the past ; but so far as I have been able to gather a great revulsion of feeling is taking place in America and England in regard to this matter. The reason is clear to my mind. This change in the attitude of the workers is not' the result merely of what is known as the Taff Vale case, but is the outcome of a still more extraordinary series of decisions by the foremost Judges of England - and presumably also of America - which has, in effect, deprived the unions of the right to strike or to organize for the purpose of striking. It has been decided that it is an actionable offence, and perhaps a crime, for a number of men to unite in abstaining from accepting employment themselves, or in persuading others to do so, with a view to enforce their demands for higher wages or for better conditions of employment. The result has been that the weapon of strike, upon which the unions so long relied for protection, has been taken from them. They cannot be regarded as acting legally in these matters if the decisions of the Courts hold good. In the Taff Vale case it was decided that the funds of the unions may be applied to the payment of any penalties imposed for offences committed by the unionists as such.


Mr Mauger - The American Courts have gone still further, and have decided that the furniture of the individual members of the unions can be levied upon.


Mr HIGGINS - As to the Bill itself, the general framework is good, but in many respects the details have not been sufficiently examined. Perhaps, therefore, I may be pardoned if I refer to some of the clauses, with a view to stimulate a little inquiry before we reach the Committee stage. There are two clauses which, I understand, have been introduced to deal with a difficulty to which I referred in the last Parliament - a difficulty which ' was- not met by the previous Bill. The position then was that a station owner might have a number of shearers camped around him who refused to accept employment, save upon their own terms. If an arrangement be arrived at between the union to which they belong and the station holder, I think that, in all fairness, they should be compelled to accept employment, if ordered to do so, under the terms of the agreement. I am glad that an effort has been made to meet such a contingency. In clause 7, I think that the word "industrial " should be inserted before the word "agreement." I make this suggestion in consequence of a conversation which I have had with the honorable member for Darling. Without the insertion of that word, clause 7 may render a union liable for a breach by an individual member of his own private agreement. To my mind it should be liable to punishment only if the member commits a breach of the industrial agreement which has been made between organization and organization. Clause 8 I regard as a very dangerous one. Of course the Bill is intended to exclude railway servants and other public servants from the Arbitration Court. The effect of this clause, however, is to afford them no protection whatever. In the event of a dispute arising they have not the protection of the Arbitration Court. If we do not afford them the protection of that Court, we have no right .to do what is done by clause 8 - take away from them the only weapon which they have, namely, the power to strike. The effect of the provision is that if a dispute occurred, such as that which unhappily took place last year between the Railway Engine Drivers' Association, and the Government of Victoria, the association would be denied access to the Arbitration Court, and at the same time any committee which encouraged its members not to work would be guilty of an offence. Surely we must be consistent in this matter. If' we do not intend to make the Bill apply to railway servants, by all means let us leave them in the position which they at present occupy, whether ' it be better or worse. I am very glad that the Government have, in clause 11, adopted the principle of making the same Court a tribunal of conciliation and arbitration. I feel convinced that in New Zealand the severance of these Courts has been a great mistake, and I am sure that, upon the principle that- a horse will always run better if it is aware that its rider holds a whip in his hand, we shall get far more conciliation than arbitration if the tribunal which conciliates can also arbitrate. I understand it is intended that no decision by the Court shall be valid unless three members adjudicate. I do not think that is a wise provision. I suggest, with very great deference, that it might be well in cases where conciliation is at all possible, if the two members of the Court who represent the employers upon the one side, and the employes upon the other, were invested with power to hold a preliminary meeting, to ascertain whether, from their knowledge of the wants of both sides, they can conciliate, and also adjudicate, calling in the President only as occasion might require. I do not think that the appointment of a Justice of the High Court as President of the Arbitration Court is necessarily a wise proceeding. Indeed, I entertain very grave doubts about it. I say nothing whatever in respect of lawyers as a class, but I hold that the very qualifications which would make a Justice of the High Court a good Judge are those which are least in demand in a Court of Arbitration. . In the High Court he is bound by rules of evidence. He has to follow definite principles, and to act upon rigid laws. His course of life and practice are such as to disqualify him for entering sympathetically into a dispute between employers and employes. I sympathize very strongly with the observations which were recently made by Mr. Justice McMillan in Perth when he stated that he had been learning rules of evidence all his life, and had now been appointed President of a Court in which he was called upon to disregard those rules. A very difficult question which we have to face is whether the other two members of the Court should be appointed for a term of seven years, or only in connexion with each dispute. At first I was inclined to think that a special expert was necessary for particular disputes. Upon reflection, however, I doubt very much whether that proposal would work out well. My reason is that if a trade dispute arises, and we appoint to the Bench men representing both the employers and the employes in the particular industry affected, they will attend the adjudication as heated partisans. Their minds will be imbued with the feelings of the employers on the one side, and of the employes on the other.


Mr Deakin - They will be more advocates and less arbitrators.


Mr HIGGINS - Exactly.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - They are that now.


Mr HIGGINS - It is all a question of degree. In the very analogous case of patent examiners, a man who is skilled only in mechanical engineering is sometimes called upon to deal with soft-goods cases ; but, with a very little experience, by bestowing attention upon the particular question under his ken for the time being, he becomes sufficiently expert to arrive at a decision. I have found that the best patent examiners are very often those who know the least about a particular industry and the men engaged in it. However, I am not bigoted upon this matter, and I mention it merely to show the present state of my own mind. I do not quite see how clause ig will work out. If we pay a permanent man £700 a year I cannot see how we are to remunerate a temporary expert at the same rate. I presume that we should have to pay him for piece-work, seeing that he is called in only for a special term. Then I fail to .realize why, under clause 24, the President of the Court only should he charged with the duty of endeavouring to reconcile industrial differences. To my mind the representatives of employers and employes, if they are good men, are very often able to reconcile these differences much better than any President would be.


Mr Deakin - That would be impossible if the members were chosen only for each dispute.


Mr HIGGINS - I am assuming that the scheme of the Government is carried out. I would ask. the Prime Minister if clause 27 is valid under the Constitution? Of course our powers are limited to industrial disputes which extend beyond any one State. If a dispute occurs in New South Wales, I cannot see how the State industrial authority can delegate its powers to the Federal Court.


Mr Deakin - That provision is intended to meet disputes which may arise in one State, and then overflow. Suppose that an industrial trouble occurred in New South Wales, that the State industrial authority commenced to, investigate, it, and that it then overflowed to another State. The State authority could thereupon cease its own procedure, and request the Federal Court to deal with it.


Mr HIGGINS - I am afraid that the clause will, mislead if it applies only to the case where a dispute has overflowed from one State.


Mr Robinson - Elsewhere in the Bill provision is made for the overflow.


Mr Deakin - But that provision will not prevent the State industrial authority, if it thinks fit, from concluding an inquiry which it has commenced, and. from making an award which may or may not be overridden.


Mr HIGGINS - Perhaps by a little reconsideration of this clause we may be able to meet limited cases-


Mr Isaacs - The term " Industrial disputes " in the interpretation clause means disputes which extend beyond the limits of" any one State.


Mr HIGGINS --I am aware of that. At the same time the Bill makes it appearthat the .State industrial authority has-, power to refer any dispute to the Federal authority. Clauses 28 and 31, I think, will allay some of the apprehensions of our critic's. .The opinion is entertained by some honorable members, including the acting leader of the Opposition, that this Bill is intended to involve the reference of every petty industrial quarrel to the Arbitration Court. " The provisions of clause 31, I think, are ample to prevent the time of the Court from being" abused in that way. Before a case can be brought before the Court it will be necessary to obtain a certificate from the Registrar, or the approval of the President. ' Mr. Dugald Thomson. - It is necessary under the New South Wales Act to obtain the certificate of the Registrar.


Mr HIGGINS - I am glad to hear that that is so. Then it is provided that no industrial dispute shall be submitted- to the Court by an organization unless the Registrar gives a certificate setting forth the consent of the organization, according to its rules, to the institution of proceedings. It will be necessary to show that the organization has given its consent at a general meeting, convened in a certain way.


Mr Deakin - That is an alternative.


Mr HIGGINS - Quite so; or that the consent has been given in writing, under the hands of the majority of the committee pf management. It appears to me that clause 36 is rather ambiguous; I do not know whether it is meant to provide that an award which is found to operate unjustly shall nevertheless be binding for all time. The clause provides that- the award shall continue in force " until a new award has been made," and if we turn to section 47 we find that an organization may apply to have an award varied.


Mr Deakin - Clause 46, paragraph o, gives. the Court power at any time to vary an award.


Mr HIGGINS - But, except in certain circumstances, application cannot be made to the Court to vary an award. If the power to strike is to be absolutely taken away - not merely conditionally upon an organization being brought under the measure - it is difficult to see how a dispute can arise, and if no dispute can arise, how will it be possible to obtain at variation pf. an award?


Mr Deakin - Application. may be made to have an award varied without the occurence of a dispute. An award can be reopened on the application of the person or organization aggrieved.


Mr HIGGINS - I trust that lis so= I come, now to clause -37. I regard .that clause, .and especially the provisions contained in paragraph c, with great apprehension. The paragraph provides that the award of the Court shall be binding on -

All organizations and persons on whom the award is declared by the Court to be binding.

That is to say, an award may be binding on all organizations and persons who may not have been heard by th'e Court.


Mr Deakin - It is the common rule power as conferred on the Court.


Mr HIGGINS - Provision is made in paragraph / of clause 46 for the common rule, and it is to apply to all persons "in the same industry." But I think we should go to extremes if we gave to the Court power to declare, in the case of a dispute between industries A and B, what rule should bind industry C. I admit that at the basis of legislation of this kind lies the assumption that the Court will exercise common-sense, and that we must assume that the men who will be called upon to administer tlie measure will act reasonably, and with judgment But I object to a proposal to give the Court control over the liberties of persons who have never been heard - who have had no opportunity to "put their case before it. Some kind of limitation should be imposed. It is, to my mind, remarkable that it is the workers who, as a class, are most anxious to secure the passage of this Bill. I can foresee that powers are to be given to this Court, which, unless fit men occupy seats on the Bench, the employes may some day find injurious to their position. I cannot help recognising that, cf the three members of the- Bench, there will be two at least with bourgeois tendencies, with sympathy for the wage-paying, classes, as distinguished from the wage-earning classes, and it is a sign of the intense desire of the wage-earners of Australia, for peace, order, and good government at all hazards, that they are so anxious, in spite of these risks, to submit to a Court of this kind. We should be careful; however, to refrain from giving unnecessary powers to the Court. I am strongly in favour of endowing it with large powers in respect of parties who will have an opportunity to be heard, but I do not consider that we should give power to a Court, however pure and incorruptible it may be, to deal with parties who have no voice in the disputes dealt with by it. The Government propose to give power to the Court to deal with industries which have no voice in disputes. that come before it.


Mr Deakin - It does not affect the honorable and learned member's argument, but I think that if he looks closely at the provision, he will see that it is the authority on which the common rule is afterwards made - that the common rule may apply to any industry affected, whether that industry has been heard or not.


Mr HIGGINS - If the honorable and learned gentleman turns to clause 37, he will find that there is no limitation of the award to the one industry.


Mr Deakin - Neither is there under the common rule. Clause 46 refers to " any industry affected by the award."


Mr HIGGINS - The provision in paragraph / of clause 46 would be taken to mean the common rule of any industry which is concerned in the arbitration.


Mr Deakin - Exactly.


Mr HIGGINS - Do I understand the honorable and learned gentleman to say that under clause 37 it is simply proposed to extend to the Court the power to apply the common rule?


Mr Deakin - That is what I understand it to mean. I did not draft this measure in the first instance, and have interpreted these as being two complementary provisions relating to the same action.


Mr HIGGINS - I wish now to refer to clause 48, which provides that the Court may by its award at any time - prescribe a minimum rate of wages or remuneration, with provision for enabling some tribunal specified in the award or order to fix, in such manner and subject to such conditions as are specified in the award or order, a lower rate in the case of employes who are unable to earn the minimum wage.

It seems to me from the wording of that clause that the Court cannot prescribe a minimum wage without prescribing an exception in the case of old and infirm workers. I do not deny that there are cases in which the Courtshould be able to make that exception, but it is a very dangerous power. The clause should be amended so as to make it clear that there shall be power to make an exception in respect to aged and infirm workers, and that the Court shall not be prevented from prescribing the minimum wage which may be applied, unless the exception be made. I also wish to know what is the tribunal referred to in this clause. It provides that the Court shall have power to prescribe a minimum rate of wages - with provision for enabling some tribunal specified in the award or order to fix . . . a lower rate.....

Will that provision involve more expense and more appointments?


Mr Deakin - As a rule it will not. The employers will name one man and the employes will name another to act when necessary. This procedure will not need to have anything to do with the Court.


Mr HIGGINS - There should be some explanation of the kind of tribunal which we have in view, even if the Government take the power to prescribe by OrderinCouncil what the tribunal shall be.


Mr Deakin - We take that power.


Mr HIGGINS - With regard to enforcing an award it is provided in clause 52 that -

Any organization or person entitled to - the penalty may proceed for the recovery thereof in any court of summary jurisdiction.

Who will be entitled to the penalty ? There is nothing in the Bill that gives us any information "on this point.


Mr Deakin - There is nothing in the Bill declaring who would be entitled to the penalty. How would it be possible to make such a provision ?


Mr HIGGINS - In Acts imposing penalties it is usually provided that the man who sues for the recovery of a penalty shall be entitled to the whole or to the half of it as the case may be. There is nothing here to show who will be entitled to the penalty.


Mr Deakin - The award will show that.


Mr HIGGINS - Not necessarily.


Mr Deakin - An award in that respect will be like the order of an ordinary court of justice for the payment of costs.


Mr HIGGINS - There are some penalties which can be recovered only by the Crown. Is it intended that the Crown alone shall enforce these penalties?


Mr Deakin - There are other penalties which may be recovered by individuals.


Mr HIGGINS - If the party who makes the complaint is to be entitled to the penalty that fact should be clearly set forth in the clause.


Mr Deakin - We do not intend that the same course shall be pursued in every case.


Mr HIGGINS - I observe that judgments may be enforced against the property of an organization, and I understand that they may be enforced only by filing in a Federal or State Court, and obtaining execution in that way.


Mr Deakin - That is the only form which I can at present call to mind.


Mr HIGGINS - Then in clause 54 it is provided that a member of an organization isto be liable in respect of a penalty only in the event of the execution against the organization itself being returned unsatisfied.


Mr Deakin - Where the. property of an organization is insufficient to fully satisfy the - process.


Mr HIGGINS - I think it should be clearly shown at what precise stage action is to be taken against a member. It is a very vital matter. If the funds of the organization are insufficient to satisfy a process proceedings may be taken against an individual member ; but is it necessary that the funds of the organization must first be attached, or must it be proved that, even if the funds were attached, they would be insufficient? It may be considered that I am somewhat hypercritical in dealing with the Bill in this way on the motion for the second reading; but I have found that a discussion of the details at this stage invariably assists the progress of business in Committee. There is another question which has attracted a good deal of attention. I refer to the proposal to include the railway servants of the States, and, indeed, public servants generally within the provisions of the Bill. I may be doing the Prime Minister an injustice, but I understand that he has changed his opinion upon this question - that the first Bill introduced by the- Government was such as would have included the public servants of the States.


Mr Deakin - Never ; a draft Bill as submitted to Cabinet might have tacitly included them.


Mr HIGGINS - I am not going into Cabinet secrets.


Mr Deakin - A Government Bill never did so.


Mr HIGGINS - If the Prime Minister has changed his opinion in relation to this matter, he is, of course, entitled to do so.


Mr Deakin - I am not aware' that I have in any respect whatever.


Mr HIGGINS - At all events I see on the face of the Bill evidence that it was meant to apply to the public servants of the States, but for the insertion on page 3 of certain words. Clause 4 says that " employer " means any employer in "any industry," and "employ^" any employe' in any " industry." The only modification is the definition of an industrial dispute, which is not to be taken to include a dispute in which the servants of the Commonwealth or of a State are concerned. I have read the speech of the Prime Minister with great care. Whatever we may think of the conclusions which he has reached, I am sure- that we all wish him well, and have to thank him for the frank and friendly way in which he has expounded this and other Bills which he has brought before the House. He has the goodwill of all in this Parliament, and I think of all who know him. But, in my opinion, he has. come to his conclusion regarding the railway servants of the States upon insufficient reasons. Our power of legislation is confined to "disputes extending beyond the limits of any one State," and, furthermore, we are confined to "industrial disputes." Therefore we cannot, by a mere stroke of the pen, include all public servants in the operation of the Bill. I take it that the railway officials are engaged in an industry - that of carrying passengers and goods by rail ; and that, similarly, the postal officials are engaged in an industry. But however industrious the officers in the Treasury or some other departments maybe, it can hardly be held that they are engaged in an industry. It is one thing to be industrious, and another to be engaged in an industry. Mr. Dugald Thomson. - Would not they come under the definition of industry contained in the Bill ?


Mr HIGGINS - The Bill cannot expand the meaning of the term used in the Constitution. . I take it that while the word "industry," as used in the Constitution, applies to the railway service and to the postal service, it does not apply to many of the public departments.


Sir John Forrest - Why does it apply to the postal service?


Mr HIGGINS - The carriage of mails used to be a private industry ; now it is a public monopoly.


Mr Robinson - Was it ever a private industry in Australia?


Mr HIGGINS - No ; but, no doubt, if it ceased to be a public monopoly private individuals would immediately undertake the carrying and delivery of letters. Our railway service is certainly an industry. The railway property is vested in the Commissioner. He, and not the Crown, is the employer of the railway servants. He appoints and dismisses them. He pays their wages, and he or his subordinates make the regulations which govern the service.


Mr Robinson - The Victorian Full Court has said that it is the Crown who pays here.


Mr HIGGINS - Outsiders have only to do with the Railway Commissioner. They sue him; they do not sue the Crown, when a cause of action arises in connexion with the administration of the railways. He is as much an independent employer as is the Metropolitan Board of Works. Now, if arbitration is a "good thing for private employers and employes, why is it not a good thing for public employers and employes? A quarrel between the railway servants and the Commissioner would be a more serious thing than a quarrel between a private employer and his employes, not only because of its indirect operation, but because of the fact that the railway employes have no choice of an employer. After the Victorian railway strike, expert engine-drivers were driven out of the service, and they have since been unable to find employment at the work which they were accustomed to perform. I admit that honorable members have been largely stimulated to support the ..proposal to apply the provisions of this Bill to public servants by the Victorian railway strike. I happen to know something of the inner working of that unwise and deplorable occurrence. I speak from knowledge which cannot be gainsaid, although I am not breaking any confidence, when I affirm that, if the Government of the day had been willing to submit the points in dispute to any tribunal, even a Court of law, there would have been no strike. The men were told that they must break away from the Trades Hall. Rightly or wrongly, they thought that rules to govern their conduct outside working hours were illegal, that the authorities had no power to prescribe where they should attend church, or what political, or other association, they should or should not join. If the Government had said - "We will state a. case for the Supreme Court." the men would not have struck. But, when, in place of submitting a question to a competent and independent tribunal, the Government called Parliament together for the enactment of a drastic Bill, which, under very unusual circumstances, they were able to carry, the men struck.


Mr Poynton - That Bill represented the public opinion of a past century.


Mr HIGGINS - I do not wish to go too far into the matter ; I am merely emphasizing the point that that unwise and disastrous strike came about because the Government of Victoria would not submit to an impartial tribunal the question whether they were doing right or wrong. Law or . no law, they determined to act as they pleased.


Mr Robinson - So they should have done.


Mr HIGGINS - They happened to have behind them the whole forces of the metropolitan press.


Mr Robinson - And of the country press, too.


Mr HIGGINS - We saw the unusual sight of the. two Melbourne morning newspapers being on. the same side.


Mr Robinson - And the whole country was behind them.


Mr HIGGINS - We have not yet seen the ultimate consequences of that strike. It was easy to crow over the seeming victory, but in the course of a few years men will regard it as an occurrence which showed the expediency of the creation of some tribunal for the redress of industrial grievances.


Mr McColl - It showed the folly of striking.


Mr HIGGINS - The strike was an unwise one; the maddest thing that the men could have done; but we must place the blame upon the right shoulders. If the dispute had been referred to some impartial body, such as the proposed Arbitration Court, the loss and suffering . which happened would not have occurred. I agree with the Prime Minister that it is difficult to see how a railway dispute could extend beyond the limits of a State. It is doubtful if the Bill will operate as often as some people think. The organizations of the railway servants in the different States may amalgamate, but the governing authorities are not likely to act in unison. Therefore it is hard to conceive of a case in which a dispute between the Railway Commissioners, say of New South Wales, and their employes will extend beyond that State and become a dispute_ between the Commissioners of Western Australia andtheir employes. At all events, the railway in which the Minister for Home Affairs is so interested must first be constructed. It was stated during the late strike that the threat was made that the Victorian mails would not be carried by the New South Wales railway employes, but I do not think the New South Wales railway employes would have been so mad as to use their power to that extent, so long as they were well treated by their own Commissioners. I do not think that the threat emanated from any authentic source.


Mr Hutchison - Would a dispute be taken to extend to another State if the employes of that State were levied upon to assist the strikers elsewhere?


Mr HIGGINS - That is a difficult question, upon which I cannot now venture an opinion. The effect of the words, " extending beyond any one State," is difficult to define. We used those words in the Convention because we could not get better.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The members of the Convention might have used a clearer expression.


Mr HIGGINS - Yes, if the honorable member's friends would have allowed us to go as far as we wished. We could only obtain power to deal with disputes extending beyond the limits of any one State. I think that in that matter I had the assistance of the Minister for Home Affairs, who, I understand, now considers that I led him astray.


Sir John Forrest - I think the honorable and learned member did so.


Mr HIGGINS - I hope that the right honorable gentleman will change his mind upon that point. No one who is in favour of conciliation and arbitration can deny that it would be well if we could apply that principle to the railway and other servants of the States. The Prime Minister has based his objections upon two grounds. In the first place, he doubts if the Constitution confers upon us the necessary power, and, secondly, he questions the expediency, under present conditions, of extending the provisions of the Bill to States servants. I observe, however, that the Minister does not go so far as to say that if he had his own way absolutely he would not think it well to apply this beneficent provision to the States servants-


Mr Deakin - I think that every State ought to pass an Arbitration Act.


Mr HIGGINS - That may be. I hope they will. I am now, however, speaking of disputes extending beyond one State with which the individual States cannot deal.


Mr Deakin - Each State could deal with its own railway servants.


Mr HIGGINS - But if a dispute extended beyond any one State, that State would not be able to cope with it, any more, for instance, than the Victorian Government, were able to deal with the seamen's strike, or the New South Wales authorities were able to exercise jurisdiction in regard to the shearers' strike. . If it be once granted that there is a dispute extending beyond one State, the. Federal power will be required to. deal with it.


Mr Deakin - In the case of a railway strike, each State could deal with its own particular section of the employes who have struck.


Mr HIGGINS - The Prime Minister has asked us to decline to extend this provision to the States servants on the very grave ground that we have not the power. If we accept that position, it will be impossible for us to legislate in the future to bring States servants within the scope of our Arbitration law. If we once concede that it is not in the power of this Parliament to provide for disputes in which States servants are concerned, and which extend beyond any one State, we shall lay down a precedent which will be a guide hereafter, and it will be taken for granted that we have not the power. We are the repositories of a most important trust for the people of Australia, both present and future, and we ought not, unless there is good ground, "to surrender any of the powers conferred upon us by the Constitution. If I thought there was no power under the Constitution to legislate in such a way as to meet the case of the States public servants, I should submit to the inevitable, and vote with the Government. These rigid Constitutions are like prisons, and when we talk about whether we have this power or that, the question is one merely of the range of the walk within our prison. Unfortunately, we are hampered, and we shall continue to be hampered, in the development of legislation, and in the improvement of this country, by beingpulled up in this way, by the limits of the Constitution.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Our powers are bound to be limited, unless unification is brought about.


Mr HIGGINS - I am speaking of the present condition of affairs. Here we have a rigid Constitution, which it will bevery difficult to alter. No such attempt has yet been made, and the Government that would propose to alter it would be very brave. When Ministers come down and say - " You must not apply thisprovision to States public ' servants, because the Constitution does not give us the power," we must not agree with that view, unless we are perfectly clear that the power in question is not conferred upon us.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Not- if we thought it inexpedient?


Mr HIGGINS - I am putting expediency on one side for the moment, and I am assuming that we are asked to concede that we have not the power. The mere fact of that ground, that we have not the power, being put before us, makes it expedient to test the question, whether we have it or not. It will be found practically impossible in future Parliaments to exercise the power if we fail to assert it now. If it were decided by the Court that Hansard, at page 786, the Prime Minister said -

* All those sections to which I have referred show that the same conception is running through the Constitution from first to last, and that the State is only bound when the State is expressly named.

Of course the conclusion he draws from that is that, inasmuch as the State is not expressly named in the Constitution where conciliation and arbitration are referred to, the State cannot be bound by any legislation upon the subject of conciliation and arbitration. The State is not expressly named in the sub-section relating to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. That sub-section does not specify whether the disputes for which we are to legislate are to be between private or public employers and their servants. The whole matter is left open. So far as I can find, however, in all cases in which it is intended to exclude the States, or to exclude States industries from the operation of the Constitution, express provision -is made to that effect. If honorable members will glance at sub-sections XIII. and XIV. of section 51, they will find that we have power to legislate for the peace, order, and good government of the Commonwealth with respect to banking and insurance. In subsection XIII. the Commonwealth is empowered to legislate in regard to "banking." If the sub-section stopped there, State banking would, according to the Prime Minister, :be excluded ; yet the sub-section continues, Mother than State banking." If the argument of the Prime Minister is sound, those words' should not -have been necessary. Further, provision is made, for power


Mr Deakin - My argument is that those words, " other than State banking," were inserted to introduce the further provision that the powers of the Commonwealth should extend to legislation with regard to State banking . extending beyond the limits of the State concerned.


Mr HIGGINS - I do not see how that applies, because the two sets of words are in no way inter-related. According to the Prime Minister, there would be no power to tax States' properties if the States were not expressly named; but if honorable members will look at section 114, they will find that it is provided that -

Nor shall the Commonwealth impose any tax on property of any kind belonging to a State.

Full power is conferred to impose general taxation, and, according to the Prime Minister's view, that power would not apply to States; property. We find, however, in this section, that States ' properties are expressly exempted from taxation. It would be idle for me to. enter into an elaborate argument. I am no 'bigot in these matters, and I admit that the whole question will depend upon the decision of the Privy Council or the High Court, for either may be appealed to for an interpretation of the Constitution.


Mr Deakin - Surely not. Is not this a matter determining the rights inter se between the States and the Commonwealth under section 74?


Mr HIGGINS - No. My impression is that it is a question that might be referred to either the Privy Council or the High Court. After all, it is a matter of opinion, and a decision of the Court only would be final. Here, as in America, it is our business to see that we abandon nothing of the trust which we suppose to be imposed upon us by the people. The Prime Minister has attempted to apply to our circumstances the United States decisions as to taxing Federal and State incomes, and has given us the benefit of an elaborate argument, which, I understand, has led him to the conclusion that we should violate some mystic Federal principle if we were to include States public servants within the operation of the Bill. I confess that I do not see what the principle adopted in America with regard to taxing Federal incomes by the State, or State incomes by the Federal power, has to do with the interpretation of our Constitution so far as it relates to our power of legislation in regard to conciliation and arbitration. Concerning American decisions, I have long held the opinion that they represent what the Judges thought the Constitution ought to contain, rather than what it does contain. However, I do not think those cases have anything to do with this matter. The only judgments which have been given by Australian courts are to the effect that these American decisions do not apply here. Similarly, the only judgment given by the Privy Council is one which tends to show that they do not apply even in Canada. The Prime Minister, as will be seen by reference to page 781 of Hansard of the present session, further stated -

I may point out, to give a clue to the argument which I intend to follow, that if the Conciliation and Arbitration Bill embraced public servants, a decision of, the Court might have the effect of raising their wages. That would increase the taxation of the State in which they were employed. It would impose a new obligation upon the States which does not now exist. Or the Court might lower their wages ; in that case the men would not receive the amount of money which the Parliament of the State had voted for them.

Increase the taxation which the State would require to impose ! Increase the Estimates and the Appropriation made by Parliament ! Interfere with the Estimates and with the Appropriation ! Why, every additional post-office that is erected, every increase that is made in the Defence Forces of the Commonwealth, every extra supply of ammunition that is purchased, every adverse judgment which is given against the Crown, involves an alteration of the Estimates, and necessitates the submission of supplementary estimates. The thing is done every year in the different States. If an action is brought against the Crown for breach of contract, and a decision is given against it, no execution is levied on the King ; there is no enforcement of the judgment upon his drawing-room furniture, and no seizing of the assets in the Treasury buildings. We are a people who pay our debts. When a judgment is entered against a Government they make provision for its payment, and there has never yet been a case in which they refused to do so.


Sir John Forrest - There was one in Queensland.


Mr HIGGINS - I am quite sure that there was never one in Western Australia.

Suppose that a penalty were imposed upon the Railway Commissioners, under which an extra ^1,000 required to be paid. The Government would submit supplementary estimates and ask Parliament to vote that amount. It is a disagreeable course to adopt, but it is one which is followed every day. I would also point out that in framing the Constitution there' was no intention on the part of the Federal Convention to exempt the railway estimates of the States from interference. Why, the Constitution itself gives us power to interfere even with railway rates. There is nothing that will so materially affect the railway estimates as the provision in the Constitution having reference to preferential rates. That will make a tremendous difference to the lines adjoining New South Wales and Victoria. It will mean a great loss of revenue in some cases, and a great increase of revenue in others. The States must submit to having their finances interfered with.


Mr Deakin - Express power is given in that instance.


Mr HIGGINS - But throughout the entire Constitution there is no evidence of any intention to keep the railways sacred from the desecrating touch of the Commonwealth Parliament.


Mr Isaacs - Could we so legislate as to deprive the States of the whole of their three-fourths share of the Customs receipts ?


Mr HIGGINS - I have not reached that point yet. If, however, an impasse actually occurred between a State Government and the Federal Courts, I have no doubt that we could introduce a Bill to allow the Commonwealth Government to deduct from the balance of the Customs revenue payable to that State the amount of any judgment given against it.


Mr Glynn - Do not the States satisfy any judgment given against them simply because they have submitted to the action being entertained?


Mr HIGGINS - It is true that no action can be brought against the Crown unless it is permitted by Act or otherwise. I am merely endeavouring to show that at present there is no means of compelling the Crown to pay.


Mr Glynn - But the Crown says, "We have agreed to the action, and must abideby the judgment."


Mr HIGGINS - It is not a question of agreement. If the honorable and learned member obtained judgment for ^1,000 against the Government of South Australia he could not compel its payment unless Parliament made an appropriation for the purpose. But no doubt Parliament, with the sense of honour that has always characterized our public men, would see that any creditor under a judgment against the Crown was paid.


Mr Deakin - Surely no Bill which this Parliament can pass could alter the constitutional provision for the return of the fixed proportion of the surplus revenue to the States ?


Mr HIGGINS - I have no doubt that it could, by .way of a set-off. The best argument that has been advanced by the Prime Minister is that at the inception of this Act it is inexpedient to overload it. I should be strongly impressed by that argument if this question were not involved in a greater one. We are asked to refuse to extend the operation of this Bill to the public servants of the States upon the ground that we do not possess the constitutional power to take such action. With me that consideration overweigths any question of expediency. If we believe that we have the necessary constitutional power, by all means let us exert it. Now is the only time for us to exercise it. We must speak now, or be for ever silent. When we are told by the Government that we do not possess this power, we must insist upon testing the question. I would not be a party to including in the measure any provision which I thought would be nugatory and useless. At the same time, if we honestly believe that we possess this power, let us exert it and not abandon the trust which the people have reposed in us. I must apologize to the House for having trespassed upon its patience so leng. The gravity of the position is such as to justify honorable members in conveying to the Government and the House generally the direction in which their votes will be cast,, and amendments proposed.

Question resolved in the affirmative.

Bill read a second, time.

In Committee. :

Clause i - (Short title.)







Suggest corrections