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Tuesday, 19 April 1904


Mr FISHER (Wide Bay) - I move-

That after the word "State," line 12, the words " but does not include " be omitted, with a view to insert in lieu thereof the words " and includes."

I believe that upon this particular clause there will probably be a considerable amount of discussion and great diversity of opinion, not only as to the form of its drafting, but also as to the persons to whom the Bill should be made applicable, and as to its restrictive character in this connexion. I desire to briefly define my attitude upon this provision. When the measure was before the House last year, I expressed the view - which I still entertain - that in a Bill of tin's sort, Parliament ought not to insert anything in the nature of an ex parte statement regarding its constitutional powers. These, I take it, can be determined only by a tribunal which has been duly established by the Commonwealth for that express purpose. For this reason I have always contended that upon a broad matter of this kind we ought-not to attempt to restrict our powers under the Constitution. At no time has the Prime Minister or any of the legal authorities in this House, definitely declared that the proposal which I have - submitted is absolutely unconstitutional. I confess freely that those honorable members who are possessed of high legal knowledge, and whose opinions are entitled to all respect, have affirmed that its constitutionality admits of very grave doubt. But the strongest contention that has been urged against it, is that it would be inexpedient to give legal effect to it. I maintain that the question" of expediency is one of which this Parliament has no right to take serious cognizance, if the principle involved be a good one. Indeed, that question can arise only when honorable members are in doubt as to the wisdom of adopting a certain line of action. I hold that in this case the argument as to expediency is all in favour of my contention. If a Conciliation and Arbitration Act is desirable, I claim that its provisions should be applicable to the whole of the workers, irrespective of whether they are. in the employ of private individuals, of the States, or of the Commonwealth. I should like to know the difference between an employe* in the service of the Commonwealth and an employe in the service of a private individual. In the one case the private employer has to risk his own money and his own business. If he meets with a reverse the loss is his. In the case of the States, however, the people themselves have to find the money that is necessary to insure the just treatment of their public servants. I contend that Parliament is not a competent Court to deal with any of our public servants. We have reached different times from those to which the precedents that have been quoted by the other side in this connexion were applicable. The functions of the States are no longer restricted to the performance of police duties, and to the maintenance of law and order. Both the States and the Commonwealth have entered upon almost every class of undertaking. They .have attempted to carry out works which were never dreamed of in older countries. Unquestionably the State has entered into competition with private enterprise in many respects, and there is scarcely an influential section in Australia which condemns it for so doing. Its operations have bv no means been limited to our railways and our postal service. In this connexion I wish to instance another form of State industrial enterprise which some honorable members undoubtedly favour. It has reference to the establishment either byone of the States or the Commonwealth of the iron industry. If one of the States or the Commonwealth embarked upon that undertaking, does any one suggest that it would be fair to exclude from the operation of a Bill of this character the public employes engaged in that industry, whilst insisting that the private employer should conform to its provisions? It is unnecessary to enlarge upon, that point because, as will have been gathered from the series of interviews recently published in a Melbourne newspaper, there is a large number of honorable members who believe that the Commonwealth should take over and work any and every industry that has become a monopoly. That is surely an additional reason why we should endeavour to extend the operation of this Bill to all public servants. It has been argued with some force, and, perhaps with some truth, that even if the scope of the Bill, were so extended very few public servants would take advantage of it. It is urged that some of them have no desire to take advantage of such legislation, but that is entirely beside the question. It will be quite time enough to deal with that phase of the question when it actually arises. Why deny public servants the right to participate in such legislation? Why deny a particular body of public servants the right to come under a measure which is to embrace all servants in private employment? I hold that it would be undesirable to do so. The legal aspect of the question of interference with States rights is one which must be left to the lawyers of this House to determine. The contest will rage round the point whether we have the constitutional power to extend the Bill in the direction I propose. If we have that power, then undoubtedly the sole question to be determined is that of expediency. On the other hand, if the Parliament exceeds its rights by extending the operation of the Bill to the public servants of the States the corrective will be administered by the competent Judges of the High Court - by men who are an honour to the Australian Judiciary. I have heard it said that we should be exceedingly careful not to exceed our powers. I am not one of those who entertain that opinion, nor do I believe that it would be well if it were open to us before taking action to submit any doubtful question as to our legislative powers to the High Court. That, in my opinion, is undesirable, because under the Constitution a referendum may be taken in certain circumstances to enable the people to confer on the Parliament the authority to carry out any proposal to which effect cannot otherwise be given. I hold that, as a general principle, we must extend to the utmost our powers under the Constitution, provided, of course, that the majority of honorable members are prepared to accept the risk. I shall not attempt to enlarge upon this aspect of the matter further than to say that the argument that the extension of this Bill to the public servants of the States might interfere with, the States Treasurers' Budgets is not a sound one. We have appointed a High Court, whose decisions extend to every State, and in some cases must, more or less, affect the Budgets of the various States Treasurers. It is, at best, only a question of degree ; but it is a matter of the highest importance. The assumption is that even if our action led to an alteration in a State Treasurer's Budget, that result would have been brought about only by a decision of a Court. Some people contend that the Court would be in a sense a foreign Court. That may or may not be so ; but if, under the Constitution, we have the power to take the action proposed by us the Court will not be a foreign one. It must be an Australian Court, duly appointed under an Act passed by an Australian Parliament. 'I have yet to learn that there is a Government or a Parliament of a State which would refuse to indorse the decision of the very highest Court in Australia - a Court which, I venture to say, is one of the most competent to be found in any part of the world. Surely it is not contended that a State Government or Parliament would refuse to honour a decision which would have the effect of altering the State Budget, or that the Court would be unjust to any State ? My contention that this Bill should be framed on the broadest basis is due to my belief that it is our duty to extend the authority of the Commonwealth and the States to every ramification of trade and industry in which it can operate to the benefit of the people generally. I desire that such an extension should be made, believing that it would be good for Australia, and for the people generally. Holding these views, as I do, it is my duty, as well as my pleasure 'and privilege, to put them before the Committee. We should endeavour to place the Public Service upon such a footing that they will have no cause to fear vindictive or unfair treatment. Their rate of pay and conditions of labour should be determined, not by Parliaments, which may be called upon to act at a time of political panic, but by a judicial body, capable and competent to determine what is just. I have heard it said that the Commonwealth and States employes have been well treated by the various Governments and Parliaments, and while I am not going to deny that assertion, I wish to place before the Committee my own experience in this regard - an experience which I venture to say has been that of honorable members from other States. As the result of a Government remaining in power for a considerable length of time, I have known the most eminent members of the Public Service of Queensland to be afraid to express their opinions on public questions. Is that a desirable state of affairs ? The condition of affairs to which I have referred prevailed in Queensland, notwithstanding the existence of a Public Service Act and a Public Service Commission. They were mere putty in the hands of the Ministry which had reigned for so many years. It is my desire that such littlenesses of Parliaments or Ministries - and I say this advisedly - should not continue, because, I hold, Parliaments are the least competent Courts to adjust the disputes and differences of employes. The last change of Government made in Queensland led to at least half of the members of the Public Service, and perhaps five-sixths of the rail way employes feeling that once more they had absolute freedom'; that they were once more free to express their opinions in favour of or against the Government of the day. That, no doubt, is a compliment to the stand taken up by the new Ministry. Why should it have been necessary for the public servants of that State to refrain for six or seven years from giving expression to their views on public questions? What must be the effect of the suppression of honestly held opinions ? The continuance of such a position would mean the destruction of manhood. Do honorable members think that the Public Service of Queensland would have remained in that state if they had had a proper Court to which to appeal? I think not, and I feel that there are honorable members who could speak of a like position of affairs in regard to the Public Service of other States..


Mr O'malley - The public servants of Victoria are slaves.


Mr FISHER - I am speaking only of what I know. I appeal to honorable members to say whether it would not be more dignified from a parliamentary point of view, and better for the Commonwealth and the States, if the public servants were brought within the scope of this Bill? I have to express my extreme regret that the Prime Minister, for, whom I venture to say we all have the greatest respect, has found himself unable to go as far in this direction as some of us desire. It is no pleasure to me to find myself at variance with the honorable and learned gentleman in this respect; but those who hold views such as I have expressed are bound to come forward and seek to give effect to them, whatever the consequences may be. In such cases it is our duty to submit a proposal to give effect to our views, and undoubtedly a newly elected Parliament should be able to declare its opinion in these matters.







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