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Tuesday, 19 April 1904


Mr WATSON (Bland) - The Prime Minister, in a speech upon which we mav all congratulate him, has sought a broad line of demarcation between the supporters and opponents of this amendment, upon the ground that upon one side are ranged the advocates of unification, and upon the other the Federalists. To me it does not seem to be of any value to seek to whip that particular horse-


Mr Carpenter - It is a good cry.


Mr WATSON - It may be a good cry outside ; but when the people investigate it, they will see that the answer to it is that even if we desired unification it is beyond our power to obtain it. The custodians of the Constitution - the High Court - have already been appointed, and it rests with them to determine whether or not the amendment proposed is an infraction of State rights. I wish to say that those who think with me upon this question entertain a sincere desire to uphold the Constitution as it was adopted by the .people, with the necessary reservation - " until the electors themselves seek to alter it in some direction." The supporters of the proposed amendment are just as anxious as are the members of the Government to respect the provisions of the Constitution. We differ, however, upon the question of what the Constitution itself provides. Surely that is a legitimate difference of opinion, in view of the confession made by the Prime Minister a few days ago, that the wording of sub-section xxxv. of section 51 was capable of quite a variety of constructions. It seems singular, when we reflect, that notwithstanding that the Convention contained such a large proportion of the ablest lawyers of Australia, that they were surrounded with the atmosphere of the American Constitution, and that they had all the decisions of the United States to guide them, from those of the great Chief Justice Marshall downwards, they have succeeded in importing into the sub-section to which I am referring as much ambiguity as it was possible to import into so few words. Only the other evening the Prime Minister told us that the last seven words of that provision


Mr Deakin - I treated it as if it were divided into seven parts, and for. brevity I called them seven words.


Mr WATSON - Each of those parts, I understood the honorable gentleman to say, was capable of a different interpretation. Though I am not a lawyer, and consequently not able to argue the matter to the same advantage as is the Prime Minister, it seems to me that there is no doubt as to the interpretation which it is intended shall be placed upon the sub-section, having regard to the constitutional position. It contains no limitations of the powers of the Commonwealth Parliament beyond those relating to matters which are not affected by the contention of the honorable gentleman. The sub-section declares that we may legislate upon matters of -

Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

I admit that there is considerable doubt in my mind as to the application of the word "prevention" in relation to the words which follow. Again, as regards the construction which should be placed upon the word " industrial," there may be some disputation. There may also be some difference of opinion as to what constitutes a " dispute." But the question which is immediately at issue, that of whether we have power to extend the provisions of this . Bill to the public servants of the States and of the Commonwealth, admits of no doubt whatever, because the limitations and exemptions which appear in other subsections of section 51 of the Constitution are absent, and I say significantly absent from this particular provision. Consequent! v. I indorse the opinion which was expressed by the honorable and learned member for

Northern Melbourne, who drew attention to the fact that the very sub-sections quoted by the Prime Minister in his second-reading speech upon the Bill bore evidence of having received different treatment at the hands of the Convention from that which was accorded to sub-section xxxv. In sub-section xiii., for example, the qualification was inserted, that whilst the Commonwealth has power to legislate upon the question of banking, it must be "other than State banking." Similarly, in the following subsection, whilst we have power to deal with the matter of insurance, it must be " other than State insurance," unless these two forms of enterprise extended "beyond the limits of any one State." Then, again, subsection xxxiv. provides that the Commonwealth can undertake railway construction and extension in any State only with the consent of that State. In each of these subjections the Convention deemed it necessary to clearly express that. State enterprises were exempted from their operation. But sub-section xxxv. contains no qualification other than that which comes within the definition of a " dispute," or the limits to which a dispute must extend. There is another phase of this constitutional question to which the Prime Minister has alluded. I refer to what constitutes a " dispute." He argued that it was impossible to conceive of a " dispute " as between^ the Government and its employes "coming within the purview of this sub-section. That is to say, it could not be a dispute extending beyond the limits of any one State. As I interjected at the time, it appears tq me that, if that contention be correct, it vitiates the' whole Bill as introduced by the Government. The whole of subsection xxxv. of section 51 of the Constitution must be rendered nugatory and valueless, if the contention of the Prime Minister is- correct ; because, practically, it never occurs that there is any necessary unity, amongst employers concerned in what we generally term a strike. If there is, there is no attempt to fine down the dispute, as the Prime Minister has attempted to fine down a dispute among railway employe's which would be held to have extended beyond any one State. In interpreting the word " dispute" we must accept its generally understood meaning. We must interpret the words " industrial dispute " as meaning that which is a strike, or likely to result in a strike. The extension of nearly every large strike, or of the dispute which has led up to it, has almost invariably been by way of sympathetic action on the part of individuals other than those first affected by it, and, so far as my knowledge goes, these continued extensions have been the cause of all the serious' strikes or industrial disputes from which this and other civilized countries have suffered. If, therefore, the contention put forward by the Prime Minister is correct - and I cannot assert dogmatically that it is not - it renders the Bill as a whole valueless, and we are simply wasting our time in attempting to place any such measure on the statute-book. Except, perhaps, in the case of the employes of a ship-owner whose ships trade beyond the boundaries of any one State, and whose industry is spread over several States, there would be a difficulty in applying the provisions of this Bill. I do not see how it would be possible to apply the provisions of this measure to any dispute, even amongst private employes, which extended beyond one State, if it were necessary, as the Prime Minister contends, to prove that it was a dispute with the same employer and in respect to the same matter. I may have carried the Prime Minister's argument further than he intended to go, in saying that it must be a dispute with the same employer.


Mr Deakin - Hear, hear. '


Mr WATSON - I certainly gathered from his assertion that a sympathetic strike of public servants in one State could not be held to be an extension of a dispute between another particular State and its employes.


Mr Deakin - Hear, hear.


Mr WATSON - Assuming that the same matter were at issue-


Mr Deakin - My contention was that it must be a real dispute, and not a sympathetic one, on both sides of the border. If the men on' the other side of the border were suffering from the same disabilities, the dispute in both States might be the same; but if the men on the other side of the border, in spite of being paid at the higher rate claimed by those on this side, took action, how could it be said that it was an extension of the dispute. Thev would be already in receipt of all for which those on this side were asking.


Mr WATSON - That is another question. I am rather inclined to think that the worst of the class of disputes, to which this Bill is specially designed to relate, would be outside the purview of the measure, even if the suggestion just made by the Prime Minister as to the meaning of the word were correct.


Mr Deakin - Possibly.


Mr WATSON - That is possibly one reason why the matter should receive further attention. I reiterate that my own " experience is that the most dangerous strikes from the stand-point of the general community are those in which there is a sympathetic extension of the original trouble. One is able to very materially localize disputes f in which there is no active sympathy shown by bodies which are directly affected. But it seems to me that if this measure is to achieve all that some of us desire, it will be necessary to make it so far-reaching as to prevent the possibility of the whole railway systems of the Commonwealth being idle because of a sympathetic strike. Another matter with which the honorable and learned gentleman dealt was the question of taxation. He replied at some length to the considerations advanced in that regard by the honorable and learned member for Northern Melbourne. There was a refreshing lucidity associated with that honorable and learned member's arguments. They appeared to me to be so clear that they must affect many in whose minds there might previously ha%'e been some doubt.


Mr Deakin - Hear, hear.


Mr WATSON - I do not know whether the Prime Minister has realized how far his argument in regard to the question of taxation is likely to carry him. If, as the honorable and learned member for Northern Melbourne argued', the contention was sound that there could be no justification for imposing conditions which might involve the rights and wages of railway employes, and consequently affect detrimentally the finances of the State, should we be justified in incurring any expenditure whatever which might detrimentally affect the finances of a State?


Mr Deakin - Oh, yes.


Mr WATSON - There is no more specific power given in that regard than there is in this. The section in the Constitution is clear, and it seems to me that there being no prohibition of expenditure in that direction, but rather an inference that we have the right to take any step necessary in carrying out this particular sub-section, there is no reason why we may not pass a proposal declaring that, if, in the opinion of the Court, certain conditions must be ' observed, they shall be complied with, notwithstanding that they may involve increased taxation.


Mr McCay - Is not the difference this : That in regard to any decision affecting the servants of the" States it is proposed to make the States raise 'whatever money may be necessary to give effect to it, while in the other case Ave are expending the money which Ave ourselves raise?


Mr WATSON - I do not say that. Let me refer to a matter of which the honorable and learned member is cognisant. Let us suppose that at a Birthday review, we expend a considerable sum of money in the firing of salutes which disappear in smoke.


Mr McCay - They are not of much use, and I would cheerfully legislate against them.


Mr WATSON - I do not say that they are of use. But assuming that Ave succeeded in spending a considerable sum of money in that direction, would not the finances of the States be involved, seeing that under the Constitution they receive back not only three-fourths of the . customs and excise revenue, but any surplus in respect of the one-fourth 'which the Comonwealth may retain. Any Commonwealth expenditure, even if it is only a matter of a few pounds, has thus some effect for good or evil on the finances of the various States.


Mr McCay - That is what I say. In the case quoted by the honorable member we should spend money perhaps Avith unhappy results to the States. In the other case Ave should be requiring the States to expend money.


Mr WATSON - I do not see any distinction between the two classes of expen"diture. The objection put forward to our proposal Avas, in the first instance, that the raising of wages or the shortening of the hours of employment of the States railway employes, with the result that a greater number of men would have to be employed, would have the effect of compelling the States to increase their expenditure.


Mr Fisher - That would be only by order of the Court.


Mr WATSON - By order of a Court that had gone into the equities of the case, and which would give an equitable decision. What I desire to point out is that the result would be exactly the same if the Commonwealth expended, say, ^1,000, which would otherwise go to New South Wales as part of the surplus, and the absence of which might render it necessary for the State to resort to taxation to make good the deficiency.


Mr Johnson - The honorable member surely does not contend that the Court would compel ai Parliament to provide extra taxation to meet an increased wage 2

Mrt. WATSON.- I do not say that. I do not think that the Court could compel the Parliament to take active steps. But what I contend that it could do - although I do not suppose that there would ever be any necessity to do it - would be to insist that the railways should not run unless certain conditions were complied with. If the powers I contend for are given to us in the Constitution, then there is a latent power to insist upon the award of the Court being complied with. Beyond that I do not pretend to go. It seems to me that the Prime Minister gave away a good deal of his case when he said that if this provision were in existence probably no set of Railway Commissioners would go tq any extreme length. I understood him to make that remark in reply to an interjection.


Mr Deakin - Not precisely that. I said that they would take care not to adopt the united course of action which was mentioned.


Mr WATSON - I accept the correction; but, carrying that very little further, I think it is more than probable that the Commissioners would never go to any extreme length iri defying the decision of the Court, arrived at after lengthened argument and a

Clear presentation of the case on either side. I do not anticipate any trouble in that direction. It seems to me that any action of this, Parliament in regard to the expenditure of money must necessarily result in lessening the resources of the States, and therefore may involve extra taxation. If it is true that Ave have no right to take any step which might involve additional taxation, or some kind of complication to the State Treasuries, then it means such a crippling condition for this Parliament that the sooner it disappears the better. I do not know that it is necessary for me to, say a great deal more on the question of constitutionality. I believe that on any clear rendering of the provision in trie Constitution the amendment is quite within the powers granted by the people at the referendum. It may be said that the people accepted" the provision without the consideration having been, put to them that it might allow of State servants being included in a Conciliation and Arbitration Act. I submitthat the people did not object to the provision, because it might involve that interpretation, and further, that every one who knew the condition of affairs at that time knew that much more important questions - for instance, as to the powers of the Senate, and as to financial arrangements - practically overshadowed everything else in the Constitution. The Prime Minister knows as well as every other honorable member that it was impossible to expect an answer from the people in regard to every detail of a Constitution so comprehensive as this one is, and so I am not at all alarmed by that argument. The honorable and learned gentleman says that we who at the time of the referendum objected to the Constitution on the ground that it was fashioned too closely on the American, model, should now accept the corollary of that - of agreeing to the use of American decisions in its interpretation. It does not seem to me that there is any particular force in that argument, because in the first place our Constitution departs very widely in many respects from the American model. Although it follows primarily the American model in regard to the constitution of the Senate, still m its later provisions it differs very materially. For instance, with regard to the provisions for a joint sitting of the Houses and other matters of that -sort it differs essentially from the American Constitution.


Mr Glynn - It absolutely follows the American Constitution as to the method of apportioning the powers.


Mr Deakin - And that is all that is in question.


Mr WATSON - That is no argument, so far as this particular provision is concerned, because there is no such provision in the American Constitution. Unfortunately, the people of America have had to be content with, and to suffer under, rule by injunction. For years injunctions of their Supreme Court have been used, always against the industrial classes, and never against the other side, and so it is freely stated to-day that America is governed, not bv her Constitution, but by her judge-made law.


Mr Maloney - And bad law. too.


Mr WATSON - I believe that from the industrial stand-point it is bad law. It is made by men who are largely prejudiced against that side of the question.


Mr Hughes - It. is not government by representation.


Mr WATSON - No. All that America has done in that regard is no guide to this Parliament in the interpretation of a provision that finds no place in the American

Constitution, and which affects a matter which has so far elicited no response from its legislative bodies. In view of that fact, therefore, I feel I am not bound to place any reliance on American decisions affecting a totally different question from that which we are discussing.


Mr O'Malley - But these decisions are old.


Mr WATSON - It was not pretended that the old decisions referred to were connected with this particular matter, except so far as they appeared to affect the question of taxation. I do not think that even the question of taxation can be held to be really germane to the interpretation of this provision. I do not wish to do more at this stage than to say a few words with regard to the expediency of this amendment. Of course, I make no appeal to honorable members who, like the honorable member for Wannon, are opposed lock, stock, and barrel to the Bill. We cannot hope to convince them of the desirability of making the Bill harmonious and complete. We must leave them to the judgment of their consciences, and the tender mercies of the electors a little while hence. But to the other members of the House - and I am glad to say that there is an overwhelming majority in favour of the principle of compulsory conciliation and arbitration - I certainly do appeal not to leave outside the provisions of a measure which they declare to be beneficent in its action a large proportion of the members of this community. If strikes are disastrous - and I think there are but few persons in the community to-day who will not admit that they are - if this measure is the' best one that can be devised under present conditions to try to prevent their occurrence, I ask, why should many thousands of those engaged in industries be excluded from the operation. of its provisions? Why should they not have an opportunity of securing that justice which it is impossible for them to obtain under present conditions? On the other hand, why should the community which says that a twopennyhalfpenny strike between an ordinary private employer and his employes shall be illegal - that it is against the interests of the Commonwealth to allow 100 men to go on strike - contemplate the possibility of tens of thousands of men going on strike, and take no step to prevent it?


Mr Willis - Is it not impossible for the servants of a State to go on strike in that way?


Mr WATSON - I did not think it necessary at this stage to answer a question of that description; but the honorable member's interjection reminds me of a contention put forward by the Prime Minister about which I think.it necessary to say a word. He stated that it was beyond the bounds of possibility to contemplate another railway strike. Well, I have had a good deal of experience of industrial matters x amongst the unions responsible for strikes, and, as a long-time trades unionist myself, I say that I would not be too ready to accept a single defeat as an indication that there would not be another strike. My experience has rather been the contrary ; and while I regret as much as any one can do the strike on the Victorian railways - though I fully admit that the men had ample justification for making a strong protest against the. manner in which they were treated - still, while I take that view, I should not like to assert that among any body of British workmen, at any rate, a single defeat would do more than accentuate their desire to get justice. And it would be a pitiful thing for the race if it were not so.


Sir John Forrest - Can they not trust their own people and their own Parliament ?


Mr WATSON - Experience demonstrates that they could not trust them, even as far as they could see them. When they trusted them, or were prepared to do so, they were not only deprived of their rights but insulted into the bargain. I do not say for a moment that that set of conditions will be repeated in other States. I do not think that it is likely, in view of our experience, that it will be hurriedly repeated even in Victoria. But we have to contemplate the possibility at any period of the whole industrial and productive machinery of this Commonwealth being made idle by a cessation of work on the railways, and in connexion with other institutions. If this be so, is it not as well to insure against even the . remote risk of such a disaster? A business man - a merchant - may put up a big warehouse which is as fire-proof as it is possible to make it. He may introduce all the latest fire-quenching appliances which he can obtain. But he does not dispense with his insurances. The risk of a fire may be remote, but he makes " assurance doubly sure " by going to a good office and taking out a policy on his stock and buildings. So in this case I say that, so long as there is a possibility of a strike, it is our duty to guard against it ; and I certainly think that those who believe in the principle that it is the duty of the State to prevent these disasters, should be willing to interfere just as quickly - in the interest not only of the men concerned, but of the whole community - whenever a trouble of that description threatens amongst State servants.







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