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Tuesday, 19 April 1904


Mr DEAKIN (Ballarat) (Minister for External Affairs) . - The amendment submitted by the honorable member has been proposed by him in a manner that is absolutely unexceptionable. He has stated his case with his customary fairness and consideration for the views of others who differ from him ; but I have to submit, in the first instance, that the honorable member approaches the consideration of this amendment and its effects from a stand-point which is not open to him or to any of us. He may be, and is, entirely justified in enunciating as a main principle of his political action the doctrine that he seeks to extend Commonwealth and State industries into the region of private employment, so far as that may be possible." That may be the first article of his political creed. He is perfectly justified in adopting any means which come to his hand in order to give effect to it ; but I contend that he has no such means to his hand as a member of the Federal Parliament, -and that the people of Australia, when they created this Commonwealth, not only refrained from endowing the Parliament with that power, but distinctly determined that they would not do so. From the very first time that this question was launched on the political platform, I have striven to avoid taking a merely legal, or what might be termed a strict constitutional position," and under those circumstances have realized the force of an argument which was put before the House last week very forcibly by the honorable member for Northern Melbourne. In the course of his address he used words of warning with reference to any possible curtailment of our powers that might follow from the refusal to include this amendment, on the ground that it was unconstitutional. I do not know that that is an argument which ought to appeal much to honorable members on> the whole, but I have always thought that it is one which ought to appeal to the Attorney-General of the day who may be called upon, in discharging one or other of his duties, to advise on such issues in a fashion which might prove very decisive. When this measure first came into my custody, under circumstances which we all still regret, it was as Attorney-General that I spoke, and it was in response to an interjection, I think by the honorable member for West Sydney in the course of the debate, that I replied that I would not willingly give utterance to an opinion which might have the effect, directly or indirectly, of curtailing, or seeming to curtail, the powers of the Federal Parliament. I spoke as AttorneyGeneral, under the special obligations which attach to that office ; but now, exercising a somewhat greater freedom, I have still refrained, as far as possible, from appealing to considerations of that character, for the reasons given a few days ago, and I propose to-day to continue to oppose to those arguments only those legal and constitutional statements which seem likely to. affect the minds of honorable members. This has tied and will tie my hands, but the mode has its compensations. I am not addressing the High Court, a Court of Appeal, or a Court of first instance. I am addressing a House of Parliament, which, though it contains a number of professional men, approaches1 these questions on grounds which include the legal and the constitutional, but which also embrace political considerations. Consequently I have no complaint to offer because the honorable member who moved this amendment thought fit to avoid what really will be the crux of this question - the strictly legal and constitutional issue - which must certainly be raised. I regard that issue as of immense importance ; I regard the principle embodied in this amendment as lying at the very foundation of our Federal form of government; if that be destroyed, in my opinion it will bring to inevitable wreck and ruin, the whole superstructure, so far as it is Federal. ' But while I take that ground on the question of principle, I am free to admit, as the honorable member has candidly admitted, and as the honorable and learned member for Northern Melbourne most frankly admitted last week, that, looked at from the practical stand-point, it might be difficult for a bystander to discover precisely what was the vital issue on which we are divided. The amendment proposes to substitute a positive for a negative. The Bill contains an express provision that it shall not include the servants of the States, and the Bill as proposed to be amended will contain a positive provision that it shall. We are faced by two propositions : First, that we have power to bring the servants of the States under the control of the Commonwealth; and, next, that, having the power, this is the proper time and place to exercise it. The amendment moved by the honorable member is similar to the one which was moved in the last Parliament by the honorable member for Kennedy. That proposal was negatived, and it was negatived probably because a number of those honorable members who agreed with him, thought with the honorable and learned member for Northern Melbourne, that the word "industrial," in the particular grant of power with reference to arbitration and conciliation excludes public servants, as well as private employes, who are not engaged in an industry, and that, therefore, this was obviously an extension of authority to which we could lay no sound claim. Assuming that the opinion in the House will follow something of the same trend, as the amendment includes all public servants, I shall not be unfairly taking an advantage of the honorable member in replying, if I deal only with the strongest case to be submitted - that on behalf of the railway servants, which wiM be laid before the Chamber very shortly.


Mr McDonald - Why not deal with it when it comes up?


Mr DEAKIN - Because to do so would be to duplicate the debate. If I am to apply myself merely to the question whether public servants, other than railway servants, can be dealt with in this amendment, I can conclude my remarks in a very short time; but, by doing so, I cannot confine the debate to that branch of the question. Although I admit that there is a difference, and a broad difference, between them on the grounds mentioned, yet, so far as the principle is concerned, it is the same in either case, whether we take a clerk in the Chief Secretary's or the AttorneyGeneral's office, and say that his employment is not industrial, and that, therefore, he is excluded, or, whether we add him to the railway employes. Both are State servants. I do not think that honorable members who differ from me can complain that I am not meeting them fairly if I deal with what is avowedly very much the strongest part of their case. The honorable member for Wide Bay was perfectly justified when he said that one of the elements to be taken into account is the change in the conditions of industrial employment which has been brought about by the entrance of political bodies, whether State or Commonwealth into the field as employers. That marks a very considerable development on different lines from those upon which our race was accustomed to proceed a hundred years ago under forms of government such as we now enjoy. I do not dispute that this implies a difference in the application of the principles by which we are to be swayed. But, nevertheless, that argument of the honorable member's does not appear to me to be final in this matter, because, when the Constitution was drafted, these forms of State action were ' familiar to every one of its framers, and when it was voted upon they were within the knowledge and before the eyes of every citizen of Australia. When it was shaped, as I believed it was, with no view to include public servants of any class, no distinction was made, or intended to be made, .between those who could be, and those who were not engaged in what might be strictly termed indus trial disputes. The strong ground on which the argument I propose to maintain is based is that, nowhere in the Constitution can honorable members discover an indication that it was the intention of its framers, or the intention of those who adopted it on the exposition of its framers, to include State servants of any class. I put that on the broadest ground. But I do not for that reason abandon the contention to which the honorable member referred - and very- fairly referred - that, so far as any practical result is likely to follow from this amendment, we shall seek far before we find it, and probably shall never find it, under any condition of circumstances. On this subject I am happy to be supported by no less ardent an advocate of the amendment than the honorable and learned member for Northern Melbourne. He said in his speech last week -

I agree with the Prime Minister that it is difficult to see how a railway dispute could extend beyond the limits of a State.

And in almost the next sentence the honorable and learned member said -

It is hard to conceive of a case.

If so staunch an advocate of this amendment as the honorable and learned member for Northern Melbourne felt compelled at the outset of his. remarks to make that admission, we may be perfectly certain that we are safe in going that length, if not a good deal further. We must recognise that, although the ostensible - and, indeed, the real - object of the amendment moved by the honorable member for Wide Bay is to allow the railway servants to be dealt with by the Commonwealth Arbitration Court, that object is rendered in effect impossible by the terms of the Constitution. The requirement that a dispute within the jurisdiction of the Federal Arbitration Court should be one t extending beyond the limits of any one State is a requirement with which, in this instance, it. is practically impossible to comply.


Mr Wilkinson - Why ?


Mr DEAKIN - For the reasons which I have given - that as the employes of a State are controlled by the State's laws, and work under its conditions, a dispute occurring in one State would not be a dispute that could extend to another State where the laws and conditions were different. As the honorable member for Angas put it, there would be no unity of interests on the part of the employers, and no unity of interests on the part of employes.


Mr Wilkinson - That condition could be brought about.


Mr DEAKIN - It can never be brought about to the extent and in the degree which would be required to enable any such dispute to extend beyond the limits of one State, in the sense in which the honorable and learned member for Northern Melbourne, myself, and others read that provision of the Constitution.


Mr Page - The Minister for Railways in Queensland during the recent strike supplied the Victorian Railways with scabs.


Mr DEAKIN - Suppose he did- that did not make the dispute extend beyond the State in which it occurred.


Mr Page - He took sides with the Victorian Government against the workers.


Mr DEAKIN - I do not know the facts, but, if they were as stated, the Court would, in my opinion, say that no such action as that furnished the required qualification to enable the dispute to extend beyond one State, in the sense in which the authorities to whom I have alluded would read that provision.


Mr Wilkinson - Suppose the Railway Commissioners in all the States agreed to make a 10 hours' day instead of an 8 hours' day ?


Mr DEAKIN - Suppose they did, there would still be insuperable difficulties in the way of making a dispute on such a question extend beyond the limits of a State. But if there were a possibility ofl such an event the Railway Commissioners would take every care to adopt no such course as would bring them jointly under the control of the Arbitration Court.


Mr Groom - Does the Prime Minister say that it is legally impossible or practically impossible?


Mr DEAKIN - Practically impossible; and I have the authority of the honorable and learned member for Northern Melbourne in support of my contention. That being the case, it may be said - ".Well, if the amendment' cannot afford to the railway employes the protection intended - if that is admitted even by some of the strongest supporters of the amendment - for what reason is the amendment being pressed to this issue ?" It is being pressed to this issue in order to determine, as I have said, two questions. The first question is whether the Commonwealth has power to include the servants of a State at all - and especially the railway servants. If we do not possess the power, confessedly, we are beating the air - confessedly, Ave are taking a step which can have no result, and can bring no relief. That question, as the honorable and learned member for Northern Melbourne said, can only be finally 'determined by the Court - the High' Court in the first instance, and possibly the Privy Council in the second instance. The question therefore, is one of power or no power, at the very outset; yet that is a question which, although we are engaged upon it, we cannot determine.


Mr Fisher - In a matter involving the interpretation of the Constitution, would not the High Court be the Court of Appeal ?


Mr DEAKIN - With the consent of the High Court an appeal could be taken to the Privy Council. On that point - although it must be due to a misunderstanding - the honorable and learned member for Northern Melbourne disagreed with me ; but I fancy that if any question could be raised, which involves the rights inter se of the Commonwealth and the States, this is one of those questions; and, on further consideration, I think that the honorable and learned member will -possibly agree with me. But I do not desire to dwell upon that point, and only mention it in order to elucidate, this question as clearly as I can, and to separate from it the theoretical and abstract considerations. It is extremely doubtful if we can touch the railway servants at all. What, then, are we contending for? For this : A number of honorable members say that we should assert the power on the chance that we have it, because if we have the power it is one that ought to be exercised here and now, and in relation to this particular measure. To which argument I make reply : That on the broad question whether the power should be exercised here or now, in my opinion, it should be exercised neither in this measure, nor at this time. I have given reasons, which I need not repeat, for taking up that ground. It appears to me that if the Commonwealth possesses this power, and can bring the railway servants within the scope of the Arbitration Court, it should at least stay its hand for a sufficient time to enable the States individually to follow the course which two of them have already taken, of establishing their own Arbitration Courts, and of remitting the consideration of the circumstances affecting their employes to those Courts. "Until that opportunity has been afforded, and has failed, and until in the meantime the Arbitration Court has been established for a sufficient period to allow its procedure to become settled, and to allow the principles upon which it acts to become known to the public generally, there is littleor nothing to be gained by including the public servants of the States, if we could include them in this measure; and certainly nothing to be gained by imposing upon the Arbitration Court, in the first hours of its creation, problems among the most complicated that it is possible to conceive, so far as they are of an industrial nature. These are problems which, I am sure, if honorable members themselves were about ito become members of the Court, they would ask to be postponed until they had had an opportunity as a court of dealing with a sufficient number of cases between private employers and private employes, to enable them to come in touch with the con"ditions of industry obtaining in Australia, and to master the relationship between employers and employes, so that they might approach the immensely intricate questions involved in the consideration of the great State services with the advantage of the experience gained in dealing with less extensive and less complicated questions, free from all political associations. I do not desire to dwell on these points, and have indicated them merely in passing. Let me now say that I listened with surprise to the honorable and learned member for Northern Melbourne in the one line of argument which he addressed to this portion of the case; that is, to the question of expediency. The honorable and learned member said -

If we once concede that it ls not in the power of this Parliament to provide for disputes in which State 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.

Parliamentary precedents are valuable ; so far as they relate to the same Parliament they are usually binding. But it is perfectly possible, as my honorable and learned friend knows, for a new Parliament, if it think fit, to sweep away all the precedents which surround it, and create new precedents.


Mr Hughes - It is difficult.


Mr DEAKIN - We have not even the obligation which rests on courts of law - more an obligation of convenience in many cases, than of principle - to follow the precedents laid down for them in similar cases. We are absolutely free, as a Parliament, to deal with every case that presents itself, although there may be a presumption - very often a weak presumption only - that future Parliaments will follow the precedents established by their predecessors. When the honorable and learned member for Northern Melbourne says -

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,

I agree with him. But I deny that it is possible for this Parliament, even by an Act which received the Royal assent, to limit its own powers under the Constitution. These constitutional powers, whatever they are, stand above and quite independent of any of our acts. They stand there, not to be sacrificed by any Parliament ; they stand there, the gift of the people of Australia, to be taken away by no less an authority than the people, when they think fit to do so, under the Constitution. When, therefore, the honorable and learned member for Northern Melbourne employed language of that kind, I asked myself with much astonishment, what could possibly be the sense in which he used it? The honorable and learned member went on to say -

It will be found practically impossible in future Parliaments to exercise the power if we fail to assert it now.

I "can only say that I have never known a State Parliament pay that amount of consideration to the acts or formulas of its predecessors. On the contrary, I have sometimes found it a most difficult task to persuade one Parliament to adopt and obey the precedents of its predecessor. In fact, the argument which I am maintaining now is very largely a difficult argument ; and why ? Because I am asking this Parliament to follow an American precedent - to adopt a. precedent established by another Parliament, but under a very similar Constitution. It is a difficult contention, because the members of this Parliament feel in that respect that if they please they can create precedents for themselves. Therefore, it appears to me that this argument of my honorable and learned friend, who is usually so powerful in his logic, is not justified by the circumstances of the situation. The honorable and learned member at page 1037 of Hansard is reported -

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 overweighs any question of expediency. If we believe that we have the necessary constitutional power, by all means let us exert it.

It will be remembered that the honorable and learned member was then considering the question of expediency, and his answer is - " If we have the power, let us exert it." The honorable and learned member went on -

Now is the only time for us to exercise it. We must speak now, or be for ever silent.

I wonder under what circumstances it could be said that a Parliament " must speak now, or be for ever silent." That Parliament remains to be created. The honorable and learned member proceeded -

When we are told by the Government that we do not possess this power, we must insist upon testing the question.

As a mere matter of expediency, as honorable members will see. At page 1035 the honorable and learned member is reported -

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.

That is the most unusual view of expediency, and of consideration of expediency, to which it has been my privilege to listen. I could understand the honorable and learned member basing his argument on such a ground in a matter of principle; but when confessedly weighing arguments for and against expediency, he argues that we must exercise every power we have on the first occasion, and to the utmost possible extent, I ask, where does expediency, or its possibility, begin? However, these remarks were prepared in the hope that my honorable and learned friend would have had an opportunity of listening, and, perhaps,, replying to them, if he thought necessary. * I do not propose to take honorable members once more through the constitutional considerations submitted to them a few weeks ago. These have not yet been challenged, except by the honorable and learned member for Northern Melbourne; and I shall wait until they are further traversed. Allow me to point out that the honorable and learned member and one or two other honorable members - the honorable member for South Sydney parti>cularly - who, looking at the Constitution, find that in a number of places, where it is intended to restrict the power of the Commonwealth with reference to the States, there is in these cases specific mention of the States, appear to proceed on an assumption, justified when dealing with most Acts of Parliament, that it is a fair inference, when they find States specifically mentioned in one part of the Constitution, that they are not deemed to be dealt with, unless they are also specifically included, in other parts of the Constitution. I must submit with great deference to the honorable and learned member for Northern Melbourne any citation from American authorities, after the wholesale fashion in which he dismissed them. But the honorable and learned member must be aware that under the United States Constitution, which after all is the nearest to our own - which was framed under circumstances in many respects most similar - it is an accepted doctrine that so far as the Constitution is concerned the specific gift of a power does not limit any other grant of that power which may be contained within the Constitution. And if, as we have every reason to anticipate, our Court will largelybe swayed by American principles and American practice, when dealing with provisions taken from the American Constitution and based on American practice, and will, when dealing with them, attach some importance to the leading principle of the interpretation of the Constitution of the United States - if that principle be adopted, the whole series of arguments already addressed to us on the matter disappear from our view. The honorable and learned member for Northern Melbourne was unbridled in the contempt which he expressed for American decisions in relation to the interpretation of the Australian Constitution. The honorable and learned member said, as reported on page 1036 of Hansard -

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.


Mr Watson - That is admitted in some cases.


Mr DEAKIN - Very possibly; but the argument is entirely irrelevant just now. We are not asking that the Judges'- decisions shall be employed when interpreting our Constitution, simply because that would beadvisable. Our stand-point is not legal in the ordinary sense of the term, but is the broad, common-sense recognition of the facts and circumstances under which this Constitution was shaped. How was the Constitution shaped? With the exception of the honora'ble and learned member for Northern Melbourne, every member of the Convention had his mind full and his mouth full, as the debates were full, of citations of American practice, American principles, the American Constitution, and American judgments. If these had no value before - if they had no meaning or significance before - we then made them our own. We dealt with them in this very Chamber, and in Adelaide and in Sydney ; we breathed an atmosphere of precedents, chiefly American. The American Constitution, American authorities, and American inferences were on every hp. Sections were put into the Constitution, one, as it happens, by myself, based on nothing but a chain of American decisions. Some sections of the Constitution, which perhaps at present most embarrass those who are contending for a simple interpretation of it, arise from the fact that, instead of resting simply upon the broad powers conferred by the American Constitution, as, for instance, in the trade and commerce sections, we went on out of caution to provide against possible danger, to embody in special sections of our Constitution developments which in America are judicial decisions. There is only, one man who was a member of the Convention who has a right to follow the line of argument to which I refer, and that is the honorable and learned member for Northern Melbourne. He is perfectly consistent in the position which' he takes up, but there were forty-nine other members of the Convention, not a single one of whom at any time adopted the honorable and learned member's view in that respect. The honorable and learned member says, speaking of American decisions -

I do not think these cases have anything to do with this matter.

I say, with all respect, that every member of the Convention will admit that American cases and the difficulties which they raised were in our minds at every turn.


Mr Hughes - We are not bound by the intention of the Convention in the slightest degree.


Mr DEAKIN - No.


Mr Hughes - Then' why labour the matter ?


Mr DEAKIN - But this is not merely intention. My honorable and learned friend is perfectly aware; as we all are, that in cases of difficulty, particularly in the interpretation of a Constitution, we are justi fied in looking at the circumstances under which that Constitution arose. We are justified in looking at the laws and conditions which were before the members of the Convention that drafted it. We. are justified, whenever in interpretation we are confronted by a doubt or an ambiguity, in looking at the materials out of which the Constitution is built. Let honorable members look at that Constitution with the most cursory eye, and they will be compelled to grant that four-fifths at least has been built out of materials quarried from American legislation and- American decisions, and requires to be interpreted upon American principles, if at all.


Mr Lonsdale - That is the objection to it. '


Mr DEAKIN - I know that the honorable member for New England has almost the same right to object as the honorable and learned member for Northern Melbourne, because he fought the Constitution upon the ground that it was too American.


Mr McDonald - And too little Australian.


Mr DEAKIN - Exactly ; that we imported too much of the United States Constitution. That was used by them as an argument against the Commonwealth Bill, but the argument is inverted now, because what is proposed does not suit their interpretation of a particular section. If that were a sound argument before the Convention as used by my honorable and learned friend the member for Northern Melbourne it is a sound argument now if used by him, and by those who agree with him. They argued that this Constitution should be refused because it was too Federal and too American, and I ask them why they should now assert that it is neither Federal nor American? The two positions are inconsistent. The honorable and learned member for Northern Melbourne is otherwise perfectly consistent. He never has been a federalist, and has never pretended to be one. In and out of the Convention he fought for the unitary principle, giving this Parliament,- so far as possible, the ample powers of the British House of Commmons.

An Honorable Member. - And the referendum.


Mr DEAKIN - Yes, but I am speaking now only of the Parliament. His consistent contention was that we should not be hampered. He uses the same language now. How does he speak of Federation and our

Federal Constitution? At page 1034 he is reported to have said -

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 being pulled up in this way by the limits of the Constitution.

That was the honorable and learned member's attitude in the Convention, and when the Commonwealth Bill was before the country. It is a perfectly consistent attitude upon his part; but it was an attitude which the Convention, by an overwhelming majority, repudiated. The Convention adopted a different course: It framed a Federal Constitution, and. it is common knowledge to every honorable member present that the Constitution was designed to preserve the Federal principle by a limitation of the powers of this Parliament in the interests of the States. What we had to meet on the other side was an argument against these limitations, against these restraints of the power of this Parliament, and in favour of rendering the "States Parliaments merely subordinate bodies. That was the whole fight of the Federal campaign, and it is that fight that is being renewed upon this occasion.


Mr Carpenter - The honorable and learned gentleman should not say that.


Mr DEAKIN - That fight is being renewed. It is perfectly consistent for advocates of a unitary government to propose the application of this power if it exists - and I say it does not - or the use of it if it is there.


Mr Fisher - All we are asking is that the Court shall be allowed to determine if we are wrong.


Mr DEAKIN - When my honorable friend says that this is all that, he asks, he exhibits- some trace of the nationality from which he springs, because with pre-eminent caution he knows that he is bound to allow that whether he likes it or not. The honorable member is making me a very handsome present of something which he cannot keep back.


Mr Fisher - -But we do that in every Bill.


Mr DEAKIN - Never, I hope, intentionally. I take it that the duty of this House is not to find work for the High Court, or to create problems for the High Court.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Did all this constitutional argument take place upon this matter in the Convention ?


Mr DEAKIN - Certainly not. The argument then rested chiefly upon the merits, of arbitration and conciliation. This question did not arise; but, as my honorable friend raises the point, I venture to express the opinion, in the presence of men who were members of the Convention, and will recollect its proceedings, that no suggestion of this kind passed through the mind of any member of the Convention, and that if it had 'been made it would have been absolutely fatal to this section. I voted for it each time. We voted for it three times, and carried it by the merest chance, and by the closest majority.


Sir John Forrest - With the help of Western Australia.


Mr DEAKIN - State precedents were our stumbling-blocks at every turn, and I think the fact that Western Australia had passed an Arbitration Act, in which the people of that State believed, had a very important bearing upon the discussion. ,


Sir John Forrest - We had not .passed such an Act then.


Mr DEAKIN - I think the Western Australian Parliament was just going to pass it.


Sir John Forrest - They had no idea of passing such an Act then.


Mr DEAKIN - Then my argument is faulty to that extent. I have only one other observation to make to the honorable and learned member for Northern Melbourne. The honorable and learned member said, referring still to American de- .cisions -

The only judgments which have been given by Australian Courts are to the effect that these American decisions do not apply here.

With all respect, I take leave to differ from the honorable and learned member. American decisions have been quoted in quite a number of cases in the Courts, and have always been listened to with great respect. In two cases, when asked directly to adopt such a decision, one the Wollaston case in Victoria,, and the other the import duty case in New South Wales, the Court did not follow the American decisions, not .because they differed from them, but because they adopted in the first another view of later American decisions which were put before them in the Victorian Court. Under guidance they came to believe - and I am unable to share their belief - that there was a distinction between the cases before them and the famous case of McCulloch v. Maryland. The other case, in Sydney, was decided not upon the American decisions, but upon our statute itself and upon the relations of the Crown to the States, conditions which do not obtain in " America. Where the circumstances differed, as they were believed to differ in these two cases, no one could expect the American precedents to be followed. The judgments were given, not in defiance of the American decisions, the value of which were fully recognised, but upon other grounds. The honorable and learned member for Northern Melbourne went on to say -

Similarly, the only judgment given by the Privy Council is one which tends to show that they do not apply even in Canada.

He was no doubt referring to the case of Lambe v. Bank of Toronto. There, again, the Privy Council held nothing like the view attributed. What they decided was that, under the express terms of a special Canadian statute, they were called upon to give a certain decision, and they gave it. It is true that they added certain obiter dicta as to the interpretation of the Canadian Constitution, but these contributed little or nothing to our knowledge, and formed no part of the actual judgment.


Mr Glynn - We shall probably have more .light thrown upon the subject next \YG6lCa-


Mr DEAKIN - Yes, when the Tasmanian stamp case comes before the High Court on 26th April, we shall probably ascertain how the High Court regards American decisions. Then there is the rating case in Sydney, which will also be the subject of an important judgment."


Mr Watson - Those cases may be decided independently of anything that has happened in America.


Mr DEAKIN - That is quite possible, but in both cases the American decisions were largely, cited, and we shall shortly have an opportunity to judge how the High Court proposes to regard them in the future.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - That knowledge may come too late.


Mr DEAKIN - Probably too late to save the Ministry, but not too late for our guidance in legislation.


Mr O'malley - Perhaps the debate had better be suspended until the decision of the- High Court has been given.


Mr DEAKIN - The suspension will hs of another character, short, sharp, and decisive. I wish now to address myself to another comment of the honorable and learned member for Northern Melbourne. He said -

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 able to include State 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.

But for that statement, I should not have wearied the House - and I hope I shall not do so now - by even a reference to the argument. I quoted the decisions of a number of the leading judges of the United States, because they, in the clearest and briefest fashion, indicate to us the principles of interpretation pursued, whenever the State and central Governments of the country came into conflict. I thought that they made perfectly plain that the decisions were based, not on any mystic principle, but upon the plainest and most commonsense business principle. These decisions; appear to me to lay it down clearly that Federation consists in a central Government and a number of other Governments working within that Federation, and that the very essence of the Federal principle is thai each Government shall be guarded against intrusion and invasion by the other in regard to the means and instrumentalities by which each carries on its special work. I submitted that, not as a mystic principle, or as one needing elaboration, but as the solution which I venture to think would suggest itself to any body of business men gathered together "to determine the manner in which one Government, all embracing and self-contained, but limited in scope, and other Governments, retaining all except specified powers, and absolute rights of self-government in these, should work together. It seems to me that the American solution is the most common-sense and direct, since it gives the central Government the full benefit of the Federal charter, while never allowing it to cripple the States, and concedes to the States the full exercise of the residual powers which make, for their importance and allow them to carry on their work, not interfering with the agencies or instrumentalities of the Federal authority.

An Honorable Member. - But suppose there is a conflict between the Federal and the States Governments?


Mr DEAKIN - The Federal charter is intended to prevent that conflict, and the manner in which it does prevent it is clearly set out in the Constitution. I venture to submit that the principle I have enunciated was in the minds of the framers of the Constitution and in the mouths of those who advocated the Constitution from the public platform when it was submitted to the people, and that it is uppermost in the minds of its defenders to-day. The principle is that there shall be no invasion or trespass on either side, but that each authority shall have absolute freedom in carrying on its work with its own agencies.


Mr Hughes - But the whole question is as to the powers granted under the Constitution.


Mr DEAKIN - No doubt; and I am mentioning how the framers of the Constitution interpreted it, how those who supported it on the public platform regarded it, and how those who are now defendingit in this House view its provisions.


Mr Watson - It is only with the interpretation of those who are here that we need concern ourselves.


Mr DEAKIN - Honorable members are now being called upon to decide the question. They are being asked to vote for .the amendment under the belief that the High Court will hold that they have the power to achieve something practical.

Honorable Members. - No, no.


Mr DEAKIN - Then is it not desired to achieve something practical?


Mr O'malley - Yes, but we are not deceiving any one.


Mr DEAKIN - If honorable members rely upon the belief that an amendment such as that now before us will afford any form of relief, they must be deceived.


Mr O'malley - That is a question of law.


Mr DEAKIN - No doubt, but honorable members will agree that, whether they accept the principle or not, there is nothing mystic or unintelligible about it. It is concrete, so that he who runs may read, and it affords an excellent working^ rule, even though it may not be contained in the Constitution. I think, however, that the Constitution favours it.


Mr Fisher - Is it not a fact that some of the States receive back more than threefourths of the revenue from Customs, although that is not provided for by law?


Mr DEAKIN - Yes; but that matter, has not been made the subject of a legal decision.


Mr Page - - Then' let us place this Bill in the same position.


Mr DEAKIN - It is all very well for the honorable member to suggest that; but what would be the effect? If the High Court holds, as I believe it will, that the provision is ultra vires, no harm will be done. But suppose that the opinion of honorable members who are supporting the amendment proves to be right, the Bill will include within its scope the public servants of the States, and in regard to those servants will at once become operative. Therefore, we are not being asked to submit a question of law for the decision of the High Court, but to agree to whatever would follow a decision of the Court, even if it supported the view entertained by those who favour the amendment.


Mr Page - The Prime Minister has already argued that nothing could follow.


Mr DEAKIN - That is my view; but the honorable member's view - and I hope he will appreciate the high value which I attach to his legal opinion - is that something will follow. The honorable member ought to be satisfied- with making that impression upon me, and agree npt to press the amendment in its present form. Although I have . tried to reduce to their true proportions - as I feel justified in doing - the practical results which would follow the adoption of the amendment, and have given a definite opinion upon the legal aspect of the matter, I do not pretend that the amendment is a mere detail or a mere trifle. It is as important as the whole Bill. I say again that it goes to the very root of the Federal principle. This question will divide honorable members definitely,, so that on the one side .will stand those who, Federalists in principle, believe that the Constitution is1 framed on broad lines which preserve what I call the Federal rights of the States - not those States rights which come into conflict with those of the Federation, but those which must be preserved if we are to have a Federation at all - while on the other side will be found either the advocates of a unitary form of government, or those who are prepared to take a step which will lead us in the shortest possible time to the exercise of powers which can attach only to a unitary form of government, and whose exercise will inevitably destroy the Federal principle.


Mr Carpenter - The honorable and learned gentleman should not say that.


Mr DEAKIN - Why otherwise should I be found arguing against an amendment which I do not think "is good in law, and which I think, if carried, will have no legal effect? I am justified in laying this stress upon the point only because I hold it to be of great importance even when whittled down, and believe that the result of carrying the amendment, whatever the extent of its operation, would be disastrous. Why otherwise should I plead and argue with the majority opposed to me, if I did not feel the absolute necessity of putting it upon record how wide and deep the difference must . be and remain upon this question between those on the one side and those on the other? I do not say this for the purpose of altering votes, because it will not alter votes; I say it to make the situation clear. Closely as I and those with me are connected with many who upon this question will be found voting against us, the division will drive between us a deep gulf which nothing except a decision of the High Court can cross, and even that may not. We must be content to take opposite sides, and to realize the supreme importance of the issue. Would honorable members who support .the amendment be putting their force, energy, and zeal into carrying it, if there were nothing in it but the settlement of a- mere abstract question? Are they such bacl generals? Have they such a poor knowledge of the situation? I acquit them entirely of being influenced by the secondary bearing of this proposal - its bearing upon the fate of the Government. It was not moved with the object of ousting the Government, and it is not being pushed forward by them with that object. There are, of course, men who will vote for it, not because they believe in the proposal, but because they do not believe in the Government, and wish to see us depart from the Treasury benches.


Mr Wilks - What right has the honorable and learned member to say that?


Mr DEAKIN - Honorable' members have a right to support the amendment with that object if they choose ; but if they vote for it they will afterwards find themselves unable to separate themselves from the great declaration of principle involved, which is that this Commonwealth is to cease to be a Federation, and is to become a unitary form of government, with subordinate States under the heel of the Federal Parliament. The people of Australia could say that that must come about ; they have the authority to- do so. They have only to amend the Constitution to sweep away any and every particle of Federal principle in it. They have not done so; I do not believe that they ever will. They could do so if They pleased, and those who think that they should do so are justified in advising such action. But let them recognise where they are going. It will be impossible for them afterwards, however much they desire it, to separate themselves from the consequences of this step. Those who honestly believe that this is a proper occasion for the exercise of these powers must not forget that. Why should we lay the axe to the root of the Federal tree?


Mr Conroy - It has taken the Government three and a half years to learn and to keep to one principle.


Mr DEAKIN - The honorable and learned member has, for more than three years past, been trying to make a relevant interjection, and has not succeeded yet. I wish to make another quotation from the speech of the honorable and learned member for Northern Melbourne. This was one of the legal arguments which he addressed to the House - page 1036 -

The Constitution itself gives us power to interfere even wilh 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.

The honorable member for Wide Bay pursued a similar line of argument this afternoon, when he said that to contend that the passing of this measure involves the taxation of the States is to say nothing, because any Court to which the States have chosen, or /may choose, to submit themselves, or the High Court to which, under the Constitution, they must submit themselves, may at times by its decisions cast them in damages, declare their existing obligations, and require them to fulfil them. So far as the High Court does that, and that only, the parallel is perfect. But the High Court does a great deal more, in regard to which there is no parallel. The Bill not only creates an Arbitration Court, it creates new obligations. It is not the creation of the Court which makes any difference. The existence of another Court to which the States submit themselves to declare what their obligations are, or the addition of another half-dozen Courts, makes no difference to their obligations; it only multiplies the authorities which can say precisely what those obligations are. " The amendment means -new taxation to the States, because it imposes upon them absolutely new obligations, obligations which do not at present exist. The Bill imposes upon private employers obligations which do not at present exist, but under the Constitution we have the right to impose them. The amendment, however, imposes new obligations upon the States, because if we accept it we say to them - " We shall create a Federal .tribunal which will be competent to alter and regulate the employment of your servants as to wages, hours, apprentices, conditions of work, payment for piece-work, and every other detail." These alterations may involve great increase of responsibility, and may require fresh taxation.


Mr Glynn - And will have to be recast at the end of five years. Mr. DEAKIN.- Possibly.


Mr Conroy - Will not the Court be a Court of Justice?


Mr DEAKIN - In this case it is not the creation of the Court- that means anything, it is the creation of new obligations. No one argues that the creation of a Court will impose any fresh tax upon the Commonwealth, although the cost of its maintenance will be paid by us. But to impose a fresh obligation to pay whatever rate of wage, and to comply with whatever conditions the Commonwealth Arbitration Court may think fit to require, is to tax the States. If the measure created no Commonwealth Court, but merely laid clown these new obligations, leaving it to the Courts of the States to determine their limits, that would be the same trespass upon the rights of the States. It is not the creation of a new Court, but the creation of new obligations which imposes taxation. When honorable members refer to the powers of the Commonwealth to interfere, through the Inter-State Commission, with State railway rates, they overlook the whole point. The creation of the InterState Commission for that very purpose is provided for in the Con- ' stitution. The power to create it is conferred by that instrument upon the Federal Parliament. It was necessary to confer that power upon this Parliament to enable us to exercise it over the States.


Mr Fisher - We hold that the Constitution has conferred upon us the power to legislate for arbitration affecting States servants.


Mr DEAKIN - It is no argument to say that because the Constitution confers the power to interfere in regard to railway rates, through the Inter-State Commission, therefore States servants are included in the clause relating to conciliation and arbitration. The right to create the InterState Commission is expressly given in the Constitution, and the powers of that body are defined there. The last quotation I shall make from the speech of my honorable and learned friend is one of which I do not understand the purport. He is reported, on page 1032, to have said -

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.

My honorable and learned friend is in error there. As I have often said,- the Bill, without the words proposed to be amended, would not apply to the public servants or to the railway employes of the States, because we cannot deal with them. The Convention could have placed such a power in the Constitution, which, having been approved by the people, we could have exercised, but nothing short of an amendment of the Constitution in that direction will now enable 'us to apply this legislation to the servants of the States. The words were placed in the Bill, as was explained to the House, when the right honorable member for Adelaide made his regretted departure from the Government. He held with the. honorable and learned member for Northern Melbourne, that, without those words in the Bill, the servants of the States would be included. I held, just as positively, that, without them, they would not be included. Were we, as a Government, to come down to the House, one Minister telling honorable members that' the public servants of the States were included, although the provisions of the Bill did not expressly apply to them, while another Minister said that they were not included? Or, when the present Government inherited the Bill, were we to make no reference to the public servants of the States? Were we to tell the House that the measure did not include them, because it did not refer to them, while the honorable and learned members for Northern Melbourne and Darling Downs, and others, said that it did include them? Would it have been fair to ask the House to vote for a Bill in regard to which there was an open conflict of opinion as to whether the public servants of the States were, or were not, included? This is why these words appear on the face of the measure. They are unnecessary words in a legal sense ; indeed they are unnecessary in every sense, except that of rendering the political position perfectly plain, explicit, and straightforward upon





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