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Tuesday, 19 April 1904


Sir JOHN QUICK (Bendigo) - I am sorry that I have the misfortune to differ from my honorable and learned friend, the member for Darling Downs, in the main drift of his argument on this important question. It will be very unpleasant for us to have to part company in the coming critical division. But, at the same time, I am bound to say for my part, as he has said for his, that I shall have to vote against this amendment, not only on conscientious grounds, but also legal and constitutional grounds. I certainly agree with mv honorable and learned friend that we ought to take the responsibility of our views, however disagreeable may be the consequences. The honorable and learned member, in the course of his speech, has broken fresh ground which is certainly entitled to consideration. There is an aspect of novelty in his suggestion that the Federal Parliament has. under the trade and commerce sections, jurisdiction to deal with industrial disputes upon Inter-State railways. I never suspected that such a power was to be found in the sections of the Constitution relating to trade and commerce, and I venture to say that on a careful analysis, examination, and scrutiny, it will be found that no such power does' exist. If anything, I believe that the trade and commerce power of the Federal Parliament, under sub- section i of section 5r, has been cut down in our Constitution to much smaller dimensions than exist in the trade and commerce section of the United States Constitution. Because, in our Constitution, there are a large number of special sections which have been inserted especially, to deal with special matters; and every special section which has been put in, to the extent fro rata that that section goes, tends to cut clown the trade and commerce power. For instance, we have certain sections dealing with the railways. No railway can be constructed in a State without the consent of the State. Under the unlimited and unqualified trade and commerce power of the United States Constitution, it has been held that the Federal Parliament there can construct Inter-State railways, or authorize their construction, without the consent of the States affected. So that these special sections tend rather to cut down the delimitation of the trade and commerce power. In the same way also, the section which my honorable and learned friend has referred to, whilst it apparently extends the trade and commerce power to railways, is- practically a limitation, whan compared with this special sub-section xxxv. of section 51, relating to conciliation and arbitration. Therefore, the inference is, that the trade and commerce power vested in the Federal Parliament by the Constitution relates purely to the interchange of Inter-State goods, and also to trade and commerce beyond the Commonwealth. Therefore, also, it cannot possibly be construed to mean and to include the power to deal with industrial matters which are covered by another section. I apprehend, consequently, that section 98 should be construed to mean that power is given to the Federal Parliament to promote InterState commerce, and to abolish obstructions, or to minimize possible restrictions ; but, certainly, it cannot be extended to the wide sense of interference with State institutions, such as State railways. That section was inserted on the motion of the leader of the Convention, upon a doubt which was previously expressed, and which was entertained by the drafting committee, that the trade and commerce power contemplated by sub-section 1, was not wide enough to extend to State railways. It was put in solely and exclusively for the purpose of enabling the Federal Parliament to facilitate Inter-State trade and commerce, and to remove obstructions, or rather to strengthen the power to prohibit discriminations and preferences, which tended to in- 2 n 2 terfere with the free flow of trade and commerce between the States. It is a startling proposition to hear it suggested that the trade and commerce power is to be utilized to deal with industrial disputes for which other provision is made in special sections of the Act. I think it will be found on consideration that we shall have to rely solely and exclusively on the special sub-section for dealing with industrial disputes. And if the power contended for is not to be found there, I venture to predict that it will not be found in any other part of the Constitution. I should like to say this : that I view this Bill from a sympathetic attitude. I do not view it from the point of view of any desire to defeat it, or any desire to prevent the free operation of the power granted by the Constitution. I was a party to the granting of the power in the Constitution, and I should be very sorry indeed to cast any reflection upon the grant, or to impede its free, fair, and fullest operation. Therefore, I approach this question not so much from the standpoint of expediency, or the desirability of bringing it into operation, but from the standpoint of whether we have the power under this sub-section to extend the jurisdiction of the Conciliation and Arbitration Court to disputes in which public servantsare involved. For my part, I strongly believe - and I do not entertain any reasonable doubt upon the point - that thissubsection does not extend, and was never intended to extend, to publicservants and others employed- in StatesDepartments, railways or otherwise. I believe that it was intended tooperate solely and exclusively upon private individuals and private corporations,, and that it was not intended by the Convention to extend to State institutions or State agencies or instrumentalities. I believe that if any such idea had been suggested in the Convention it would have been scouted. The sub-section was passed by a Convention where the States rights party was strongly represented. It was supported by a large number of the representatives of smaller States solely on the ground that it would be advisable to put in the four corners of the Constitution some provision to prevent any such industrial disputes, or such calamitous troubles, as had previously taken place, and were then within the mind and contemplation of the Convention - such as the maritime strike, or the shearers' strike, and other disputes between employers and employed, which it was desirable to prevent and suppress if possible. But it was never suspected, and certainly not intended, that this power should extend to State agencies. Such a suggestion would have been contrary . to the resolution upon which the Constitution was founded. The resolution upon which the Constitution was founded expressed the view that - the powers, privileges, and territories of the several existing Colonies shall remain intact, except, in so far as they were expressly surrendered to the central Government, in matters which demanded or justified uniformity of law and administration, and in matters of common interest. It was never intended to be an invasion of the States Government Departments. It is quite true that the Constitution has taken from the States Parliaments a large number of their powers, and a number of their legislative functions, so far as powers and functions relating to private individuals are concerned. But, with reference to industrial matters, it was never intended, and it could not be contended in a court of law with any hope of success, that sub-section xxxv. was intended to withdraw from the States Governments and States Parliaments the control of their own governing agencies. I should like to present the case from two points of view, or to summarize the arguments under two headings. First, I submit that sub-section xxxv., which reads -

Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond Hie limits of any one State - does not, on its face, or by any reasonable intendment, cannot be said to extend to the King's Government in the States. That leads me to the argument which I was very sorry to hear the Attorney-General somewhat minimize - the argument that this section does not bind the Crown. There is a great deal of force in the contention that this section does not bind the Crown as a constituent part of the States Governments. I cannot be denied that the Queen, at the time the Constitution was passed - and the King now - forms an important feature, as well as an active part and principle in States Governments, both in matters of administration and matters of legislation. The King is the head of the Executive, and one of the partners in the legislative organization. When we use the word " prerogative," it should not be in the limited technical sense which is sometimes implied, namely, as some ancient right of the Crown relating to its own dignity. The argument could, and ought to be applied in the wider sense, that where we find the Crown or King in possession of either common law powers or statutory powers granted by Imperial Act, those powers are generally granted to be exercised by the Crown, or its representative, as the trustee for the people - not for any particular advantage, honour, or glory of the Crown, but in the interests of the people as part of the general organization of the States or the Federal Government. I submit that the ancient maxim that the Crown cannot be bound in an Act of Parliament, except expressly named or by reasonable intendment, applies with great force to subsection xxxv. Before Federation the Colonies were governed by various Constitutions granted under Imperial Acts, and in each of the States there .was the Government of the Crown. The Queen was head ; the Crown was not merely the ornamental head, but the trustee, so to speak, for the newlyformed communities, and certain powers were vested in the Crown. What has been the effect of the Federal Constitution Act? The effect of this Act has not been in any way to deprive the States of their governing machinery or to destroy the States as branches of the King's Government. The States remain as branches of the King's Government on a par, and fart passu, with the branch of the King's Government as represented by the Commonwealth. The States Governments and the Commonwealth Government form parts of a dual system, under which the whole of the people of Australia are now governed. There is no badge of inferiority to be attached to the King's Government in a State, as compared with the King's Government in the Commonwealth. It is not necessary, in order to sustain an argument of this kind, to go to America or any other part of the world, because we find that very recently the Full Court of New South Wales has had occasion to consider this branch of the subject. The case was that of The Attorney-General of New South Wales versus The Collector of Customs, and is reported in the 9th Argus Law Reports, Current Notes, page 22. It was affirmed in the case that no distinction can be drawn between the rights and prerogatives of the Crown in respect of its Imperial rights, and the rights and prerogatives of the Crown with respect to, and in operation in, the Colonies. The point involved in the case is very interesting and important, and, apart from its specific effects, it may be utilized to illustrate certain points which have been raised in connexion with this discussion. This was an action by the Attorney-General of New South Wales to recover from the Federal Government certain Customs duties, amounting to £600 or £700, which had been paid in respect of importations of railway material, the property of the State of New South Wales. The Government of New South Wales sued to recover this money on the ground that it had been improperly levied. The plaintiff's case rested on two grounds; first, on the ground of the prerogative, that this material being Crown property, was therefore exempt from taxation ; and, secondly, on the ground that it was specially exempt by section 114 of the Constitution. While the Acting Chief Justice held that this material, as railway material, was liable to taxation and was not exempt by section 114, he went on to take the ground that inasmuch as the Crown was not mentioned in the Customs Tariff Act as intended to be bound and made liable for taxation of its property, therefore this property was exempt - it. was exempt because the Crown was not named in the Federal Customs Act.


Mr Groom - That is a statute which was passed by the Commonwealth Parliament.


Sir JOHN QUICK - The majority of the Court, however, went further, and dealt with the case on a much wider basis. Mr. Justice Owen and Mr. Justice Pring both decided that in their opinion these were State imports, and, being the property of the Crown, were exempt from taxation, firstly by section 114 of the Constitution, and secondly on the common law ground that there was nothing in the Constitution to show that it was intended by the Imperial Parliament, when it passed the Constitution, to abate or surrender the prerogative rights of the Crown.


Mr Crouch - The Prime Minister is going to appeal against that judgment.


Sir JOHN QUICK - The observations made by Mr. Justice Owen and Mr. Justice Pring are very interesting, and I think thev will help us. Mr. Justice Owen said : -

The case for the plaintiff was presented from two points of view - first, the Crown's prerogative ; second, the construction ' of sec. ir4 of the Constitution Act. . . . The King is the head of the Commonwealth and of each State, and the revenues of the Commonwealth and of each State are raised by Parliament as a grant to the King at- the King's request, and are ap propriated by Parliament to the several services of the King in the Commonwealth and in the States respectively. . . . The prerogative of the King, when it has not been expressly limited by local law or statute, is as extensive in His Majesty's colonial possessions as in Great Britain.

Mr. JusticePring in his judgment draws a very interesting comparison, remarkably accurate and vivid, between the position of the Colonies as self-governing communities before the passing of the Federal Constitution, and the position of those Colonies when they became States under the Constitution. I hope honorable members will bear with me while I read Mr. Justice Pring's remarks -

I think it may be useful to consider the position of the Australian Colonies before the advent of Federation. Before that event, each one of the Colonies was autonomous. Each had its Constitution granted by the Sovereign of England, and was entitled under that Constitution to regulate its own domestic concerns, and to pass its own laws, subject only to the veto of the Imperial Government. Each was a dependency of the British Crown. And the Government in each case was the Government of the British Sovereign. . . . Such being the state of things until the passing of the Commonwealth Constitution Act, I proceed next to inquire how far that Act affected the status of the Colonies, or States, as they became after Federation. Now, I find nothing in the Act which reduces the Government of the States from their former position as branches of the Queen's Government.

That is a most significant pronouncement of opinion by one of the Judges of the Full Court in New South Wales - that there is nothing in the Act which in any way impairs, prejudices, or diminishes the position of the Governments of the States as branches of the King's Government. It must be plain that, if this amendment is carried, the position of the States Governments' as branches of the King's Government will be seriously impaired ; because, if the argument be correct, their financial and administrative control of their public departments will be seriously invaded, if not entirely taken away. Quoting Lord Watson, in a Privy Council case, the learned Judge said -

The object of the Act was neither to weld the provinces into one, nor to subordinate provincial Governments to a central authority.

He said, further, that -

The Commonwealth Act did not destroy the autonomy of the Colonies, nor did it affect the Queen's Government as carried on in those Colonies. ' It merely provided a new branch of the Queen's Government for the purpose of administering certain matters of common interest to all the Colonies.

There is an interpretation of our Constitution by a Judge of the Supreme Court cf

New South Wales, on another branch of the Constitution, it is true, but laying down the general principle that the King's Go*vernment in -the States was not intended to be prejudiced or in any way impaired by any of the grants of power within the four corners of the Constitution. Accordingly he held that, even though the contention of the Federal Government were correct, viz., that goods imported by a State were not " property " exempted from Federal taxation by section 114 of the Constitution ; yet according to the argument based on prerogative alone, apart from section 114 of the Constitution, State goods were exempt from Federal interference, and from Federal taxation. I contend that, if that be so, much more, therefore, are the States Departments of States Governments free from Federal interference and Federal regulation. The same principle will apply to them with irresistible force. It has been contended by the leader of the Labour Party, in several of his arguments, and with an ability and ingenuity one cannot help admiring, that, in one or two sections of the Constitution, such as " banking, other than State banking," "insurance, other than State insurance," the States are specially excepted, and the honorable member wishes us to believe that, wherever there is no express exception of the State, the 'State is bound. Probably, without an acquaintance with the principles of statutory interpretation, according to British methods, one would think there was some force in that contention. My honorable arid learned friend, the member for Darling Downs, has this evening given great prominence to that argument, and has sanctioned it. But surely the honorable and learned member must see that he has ignored the decisions of the English Courts, and also the decision of the Full Court of New South Wales in the import duty case, where it was held that, even although State imports, goods, wares, and merchandise imported by the State were not property within the exemption of the Constitution^ they would otherwise be exempt, unless specially named as liable to taxation.


Mr Groom - Does the honorable and learned member agree with that decision?


Sir JOHN QUICK - The honorable and learned member must see that in the New South Wales case, counsel quoted, and their Honours in their judgment quoted, the well-known case of Weymouth v. Nugent, 34 L.J.M.C. 81, which, toy the way, is quoted also in the Annotated Constitution of the Australian Commonwealth, from which the honorable and learned member did Mr. Garran and myself the honour to quote. This is mentioned for the purpose of showing that in all the statutory enactments the Crown is never bound in respect of its property, power, or prerogative, unless specially mentioned. One or two exceptions or exemptions in. ah Act of Parliament ought not to lead to the inference that things which are not exempted or excepted are withdrawn from the domain of the rights of the Crown. The rule is that the exemption or exception of the Crown in one section of an Act, or in one part of a section, does not imply that the Crown is bound by other sections of the Act, or by other parts of the section, where it is not named. In one case - the Weymouth case I mentioned - an Imperial Act imposed wharfage dues on certain articles, including stones. It did not bind the Crown to pay such dues, but it exempted it from liability in respect of coals imported for the use of the Royal packets. There is a special exemption.' In the same way as under our Constitution, State banking and State insurance is excepted, coals were excepted. The harbor authorities desired to levy dues upon other articles . imported by the Crown, and they said - " Seeing that you are only exempted from paying dues upon coals, you are therefore liable to pay dues on everything else you import." The Court refused to infer from the specific exemption an intention to charge the Crown in respect of any other goods . That decision was adopted without question by the Full Court of New South Wales, in the case of The Attorney-General of that State v. The Collector of Customs, and it affords an obvious reply to the contentions regarding special exemptions of the Crown, because it shows that any special exemption, or several exemptions, are not sufficient to support the argument that in other matters -the Crown is bound. Therefore, I contend that the fact that the Crown is not. mentioned in sub-section xxxv. leads us to the obvious inference that the Crown Departments in the States are not intended to be bound. I submit that that was the intention of the framers of the Constitution,- and that that was the plan on which the Constitution was built, namely, that the King's Government, in the various States at the time of the passing of the Federal Constitution, was not to be prejudiced or hampered or in any way interfered with except to the' extent that is expressly indicated on the face' of the Constitution. If that were not a sound principle of interpretation, this section was a veritable trap, which led thousands of persons to vote for the Constitution, under the belief that it was not intended to prejudice the rights of the States. How would the Constitution have fared in Tasmania, Western Australia, or South Australia ?

An Honorable Member. - Or even in New South Wales.


Sir JOHN QUICK - New South Wales, as a predominant partner, might have been only too glad to grant increased power to the Federation.

An Honorable Member. - The Constitution would not have been approved in New South Wales if larger powers had been sought.


Sir JOHN QUICK - The Constitution would not have been accepted in the States I have named, if it had been thought that a Parliament, sitting in Melbourne, would te clothed with authority to constitute a tribunal, which would have the power to dictate the terms on which the railways cf Western Australia, Tasmania, or South Australia were to be managed. South Australia was strongly in favour of preserving State rights, and was one of the" strongest advocates of equal representation of the States in the Senate. In fact, all the smaller States were very careful to see that nothing affecting the autonomy of the States was inserted in the Constitution.

Mr-Robinson. - The honorable member for Boothby stated on the public platform that the Constitution invaded States rights I too much. , I


Sir JOHN QUICK - What would he have said if it had been understood that a Parliament, consisting for the larger part of representatives from New South Wales and Victoria, was to have a voice in the management of the railways of the other States ? I hope that it will not be suggested that in the attitude which I am assuming upon this constitutional question I am wanting in sympathy for the public servants in respect of their reasonable aspirations. I have never voted for any legislation tending to harass public .servants. I have always considered that they should be treated liberally, and paid well for their work, and my present attitude is not due to the belief that they are without grievances, because I believe that they have serious causes of complaint. In this case, however, we have to admmis ten the Constitution and to harmonize conflicting rights; to reconcile the claims put forward by the Federal Parliament on the one hand, and the rights contended for by the States. Governments on the other. It is not merely a question of justice, but one of legality. As has been stated, the Federal system is essentially based on legalism. We should be guided by the legal distribution of power, and should not attempt to exercise authority simply because we desire to redress a grievance. That is not the proper test. The question is whether we have the power. We should not brandish a weapon before the eyes of the States Governments, or take up a menacing attitude towards them in matters which come within their jurisdiction, with the idea of doing

I something which we think ought to be done.

I That is the first ground on which I venture to argue that the amendment should not be adopted. It would entail an invasion of the prerogative rights of the Crown which is not mentioned in the sub-section relating to the powers to be exercised by the Federal Government in regard to conciliation and arbitration. The next argument which I desire to advance is one based upon the Federal rule of construction. It is a familiar rule of construction of the Constitution of a Federation that the sovereign powers vested in the States Governments by the respective Constitutions remain unaltered and unimpaired, except so far as they are granted to the Federal Government. A clause to that effect was not originally inserted in the United States Constitution, but by the tenth amendment provision was made in order to remove all doubt. The Government of the Union, therefore, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly- given, or are given by necessary implication. I would remind honorable members of the provision in the tenth amendment of the Constitution of the United States, to the effect that the powers not granted to the United States by the Constitution, nor prohibited, by it to the States, are reserved to the States or to the people. A similar provision is to be found in the Constitution of Switzerland, where the Cantons are sovereign, so far as their sovereignty is not limited by the Federal Constitution, and where, as such, they exercise all the rights which are not delegated to the Federal Government. The Commonwealth Constitution contains a somewhat similar provision. Section 107 provides that every power of a State Parliament shall, unless it is by the Constitution exclusively vested in the Parliament of the Commonwealth, or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth. I shall later on direct attention to States Constitutions, and show that their control over their Departments remains unaltered and unimpaired. I wish to refer to an appropriate illustration of the Federal rule of construction given by the Prime Minister. He quoted from the decision in the case of Collector v. Day, ii Wall, 113, as follows: -

In respect to the reserved powers, the State is as sovereign and independent as the general Government. The means and instrumentalities employed by the general Government to carry into operation the powers granted to it are, necessarily, and for the sake of self-preservation, exempt from taxation by the States. So also are those of the States, depending upon their reserved powers, for like reasons, equally exempt from Federal taxation. '

I do not wish to quote any more American precedents, because they have been adequately and exhaustively dealt with by the Prime Minister, but I should like to direct attention to a Canadian case which came before the Privy Council, namely, that of the Maritime Bank of Canada v. ReceiverGeneral of New Brunswick. In that case Lord Watson said -

The object of the Federation Act was neither to weld the provinces into one, nor subordinate provincial Governments to a central authority, ' but to create a Federal Government in which they shall be represented, intrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy.

Mr. JusticeOwen, referring to this decision in connexion with the case in the Full Court of New South Wales, to which I have referred, uttered the following pregnant sentence : -

This independence and autonomy of the States applies with greater force to the Constitution of the Commonwealth, for by it the States retain all the powers not taken from them and conferred on the Commonwealth, whereas in Canada the Dominion Parliament has a general power of legislation, and the Provinces receive only such powers as are reserved to them by the Constitution Act.

That is a most important interpretation of our Constitution, by a calm and impartial judicial authority, which ought, I think, to have great weight with this Parliament. As I read the Constitution, the governing organizations and Departments of the States are not affected by it unless they are expressly named. Certain Departments of the old Colonies, now States - such as the Departments of Customs and Excise, of Defence, and of Post and Telegraphs - have been taken away from State jurisdiction, and are now vested exclusively in the Federal Government. The other Departments remain intact, unaltered, and unimpaired. True, some of the powers of the States are gone, but the power of organizing and working these Departments remains intact. So far as I can gather from a searching investigation of the Constitution, the Railway Department is the only Stategoverning agency or authority which has been expressly interfered with by the Constitution. A State may still construct, use, and control its railways, subject to certain constitutional limitations which appear on the face of the governing instrument. The first of these limitations is that under paragraph xxxii. of section 51 the railways are subject to Federal control, " with respect to transport for the naval and military purposes of the Commonwealth." It may be asked why were those words placed in the Constitution since the control of the Department of Defence is vested exclusively in the Federal Government. They were placed there only for an " abundance of caution," which is the term used by Judges in interpreting special words placed in an Act of Parliament, excepting the Crown, or rendering the Crown or its Departments liable to certain interference. Those words were evidently placed in the Constitution for explanatory purposes, to make it absolutely clear that for the purposes of defence the Federal Government would have limited control of the railways. That limitation appears on the face of the Constitution, and was part of the Federal bargain. When the States entered into the Federal partnership they knew that they were surrendering the control of their railways, so far as purposes of defence were concerned. Then the control of the railways by the States is subject to the rule that the .States may be forbidden to make preferences or discriminations which ' in the judgment of the Inter-State Commission are undue and unfavorable That is an express limitation, and was part of the Federal bargain. The third qualification of State control of the railways is that it is subject to Parliament making laws relating to railways, so far as they affect InterState commerce. That, again, is an express limitation which appears on the face of the instrument. If it be asked why was the provision placed in the Constitution, my reply is that it was placed there merely to remove all doubts upon the subject. May I invite the attention of honorable members to the report of the debates which took place in the Convention during the Melbourne session, when clause 98 of the draft Constitution was introduced? Sir Edmund Barton is reported on page 2390, vol. 2, of the official record to have said -

This clause is simply for the purpose of removing a doubt as to whether the powers of the Parliament extend to State-owned railways.

And, again, in the same speech he said -

The object of my present proposal is to remove a doubt as to whether the Commonwealth would have power to regulate trade and commerce on State-owned railways.

The Convention inserted that provision to remove all doubt, and I ask why, if it were intended to give Parliament power to deal with industrial disputes affecting State railways, it was not expressly so stated in paragraph xxxv. of clause 51 of the Constitution? It has not been so stated, and the absence of words setting out specifically that the intention was to embrace State railways or State Departments of any kind, negatives all reasonable presumption that power over State Departments is implied. I should like to refer to, and to confirm, the argument used by the honorable and learned member for Angas in his very interesting and able speech, wherein he submitted that the laws of the Federal Parliament were intended to operate on individuals and not on the States. In support of that contention I quote the words of the Supreme Court of the United States in Hylton versus the United States, 3 Dallas. 171. That case was decided in 1796, and the following words occurred in the judgment : -

The present Constitution was particularly intended to affect individuals and not States , except in particular cases specified, and this is the leading distinction between the Articles of Confederation and the present Constitution.

In support of my contention I should like also to refer to the debates in the American Federal Convention which drafted the United States Constitution, and in which reference is made to the same question. They are reported in Bancroft's History of the Constitution of the United States, vol. 2, page 19. There it is. stated -

Lastly, the Virginia plan authorized the exercise of the force of the whole nation against a delinquent State. Madison accepting the argument of Mason, expressed a doubt of the practicability, the justice, and the equity, of applying force to a collective people. "To use force against a State," he said, " is more like a declara tion of war than an .infliction of punishment, and would be considered by the party attacked a dissolution of all previous contracts." I, therefore, hope that a national system, with full power to deal directly with individuals, will be framed, and the resource thus be rendered unnecessary.

In another passage, which is reported on page 15, Mason argued that -

In the nature of things punishment cannot be executed on the States collectively. Therefore, such a Federal Government is necessary as can operate directly on individuals.

I contend, therefore, that all the laws of this Parliament can only operate directly on individuals. It is true that the States are bound by the Constitution, and only by the Constitution.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - But suppose that the States Governments refused to carry the Commonwealth mails ?


Sir JOHN QUICK - In that case, special power is given to this Parliament to pass Federal laws dealing with the question. That power appears expressly on the face of the instrument. I refer to the power to deal with railway rates for the purpose of regulating Inter-State trade and commerce, of which postal communication forms a part. The Constitution confers on the Commonwealth express power, by the exercise of which, in the direction of special legislation, it can deal with all obstacles to Inter-State trade and intercourse.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Then we have power to coerce the States to the extent of carrying out the Constitution ?


Sir JOHN QUICK - Wherever power is conferred on the Commonwealth, this Parliament can exercise it.


Mr Fisher - That is the whole point.


Sir JOHN QUICK - My contention is that the power to make this Bill applicable to the public servants of the States is not conferred by the Constitution, because in it the States are not named in this connexion. In other parts' of the Constitution, where it is intended to bind the States by prohibition or injunction, that intention appears in express terms. For instance, it is specifically enacted that they shall not interfere with freedom of trade. The High Court could enforce these mandates by injunction against any State officer or against any private individual acting under the orders of a State. Let us suppose that a State Government authorized an individual to perform an unlawful act. He would be liable to be coerced by the judgment of the High Court; but that tribunal could not act against a State Government, except by declaring the nullification of its laws as contrary to the Constitution. I know of only one provision in the Commonwealth Constitution which contains anything in the nature of a command to the States to do a certain thing. It is to be found in section 1 20. There it is stated that the States shall make provision for the imprisonment and detention in its prisons of persons convicted of offences against the laws of the Commonwealth, and the Parliament may make laws to give effect to that provision. Therefore, where it is intended that the States shall perform a positive act, it is clear upon the face of the instrument ; and if the Constitution makes default it allows Parliament to step in and work out the problem presented as best it can. I do not know how the Commonwealth Parliament could make the Government of a State responsible for the imprisonment and detention of transgressors against Federal law. Nevertheless, it is an express mandate to the States, though there does not appear to be any particular means of enforcing it. Much more then is the argument applicable to this case, in which the States are not named. Yet we are asked to pass a law to bind the States. I wish now to invite the attention of the Committee to another question, namely, the extent to which the States Governments and Parliaments under their respective Constitutions retain control over their State-governing agencies. It is said that the bare general words of this clause practically withdraw from the States their control over their own Departments. Let us examine the Constitutions of the different States. Here I would like to say that, although these Constitutions do not appear as annexes to the Commonwealth Constitution, they are in essence chapters of that instrument of government. They must be read as part of the Federal' Constitution. What is the power of the Parliament and Government of New South Wales over its Departments? Bv the Constitution Act of that State - and I take it. as a typical one, because it was the earliest charter of government granted to these States, and all the subsequent Constitutions are founded upon the same model -

Her Majesty shall have power, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, welfare, and good government of the said Colony in all cases whatsoever.

I admit that there has since been withdrawn from the Parliament of New South

Wales and other State Parliaments a certain amount of authority which they were previously capable of exercising in reference to industrial disputes. The present Federal power over disputes which extend beyond the limits of any one State is a new and compound power. It is made up of a power which was previously enjoyed by the States and of a supplementary power. From this drag-net grant of powers in the States Constitutions which I have just quoted, some of the power which the States Parliaments previously possessed over industrial disputes has been withdrawn. But the authority so withdrawn relates exclusively to the power to deal with industrial disputes in which individuals or subjects of the King are concerned, and not the King himself or the King's departments - not the State itself, or the State Departments. I also wish to direct attention to several other very important provisions in the Constitution which are relative and material to this discussion. Section 47 of the Constitution of New South Wales declares that -

All taxes, imposts, rates, and duties, and all territorial, casual, and other revenues of the Crown (including royalties), from whatever source arising within this Colony, and over which the present or future Legislature has or may have power of appropriation, shall form one consolidated revenue fund, to be appropriated for the Public Service of this Colony, in the manner and subject to the charges hereinafter mentioned.

From a perusal of that section it will be seen that all revenues of the Crown from all sources arising are intended to form one 1 Consolidated Revenue Fund, which can be dealt with only in a specific manner. That manner is set out in section 53, which provides that -

After and subject to the payments to be made under the provisions hereinbefore contained, all the consolidated revenue fund hereinbefore mentioned shall be subject to be appropriated to such specific purposes as by any Act of the Legislature of the Colony shall be prescribed in that behalf.

In the first place the money goes into the consolidated revenue fund, and then it can be appropriated or taken out of that fund only by an Act of the Legislature.


Mr Higgins - That is all over-ridden by the accompanying provision of the Constitution.


Sir JOHN QUICK - Most decidedly it' is not. The next provision in regard' to the withdrawal of revenue from the consoli-' dated revenue fund is that a vote cannot even be originated by the Legislative Assembly to provide money out of the consolidated revenue fund, unless it is recommended by a message from the Governor. It is provided by section 54 that -

It shall not be lawful for the Legislative Assembly to originate or pass any Vote Resolution or Bill for the appropriation of any part of the said Consolidated Revenue Fund .... to any purpose which shall not have been first recommended by a Message of the Governor to the said Legislative Assembly.

It is a Crown right, a Crown prerogative.


Mr Fisher - But it is nevertheless the Government for the time being.


Sir JOHN QUICK - Not at all. The honorable member may say that it is a right nominally vested in the Crown ; but under the New South Wales Constitution it is one that cannot be taken away except by an amendment of that Constitution.


Mr Fisher - I should like to see the Governor attempt to use it.


Sir JOHN QUICK - Do not let us discuss that point. I am arguing this question as a purely legal one, and I contend that the provision to which I have just referred is not a mere nullity. It is found in a practical Constitution, which has worked usefully. Under the old Victorian Constitution, an Appropriation Bill could be passed, but could not be amended by the Legislative Council of the State. In the new Constitution the Legislative Council is given a power of suggestion, such as the Federal Constitution gives to the Senate ; but once an Appropriation Bill has been passed by the Legislative Assembly it cannot be amended by any other power. It must.be passed or rejected by the Council. Now let us observe what would be the result of the. amendment now before the Committee. Honorable members desire to create a tribunal which would have power to give a decision that might have the effect of increasing the expenditure of a State, and rendering an amendment of its Estimates necessary. It is contended that the power to increase an Estimate should not be vested in a Legislative Council, and I ask honorable members whether they would vest it in an Arbitration Court. Such a power would be a complete invasion of the State Constitution.


Mr McDonald - It is possible in New South Wales. Estimates are increased there as the result of the decisions of the Arbitration Court.


Sir JOHN QUICK - But in that case the right has been surrendered to the Court by the State Parliament. I should have no objection, if it were absolutely necessary, to allow the public servants of the Commonwealth to have their grievances dealt with by a Federal tribunal, because in that case we should be dealing with our own Court. If our own Court recommended the granting of concessions to public servants of the Commonwealth we should be sure to honour its decision even if compliance with it would mean an increase of expenditure. But how could we expect the Parliament of New South Wales, for example, to recognise the awards of a Court which it had not created, and the legality of whose constitution it might challenge? I contend that sub-section xxxv. of section 51 of the Federal Constitution refers to private individuals and corporations, and not to Government Departments.


Mr Higgins - The States have surrendered this right.


Sir JOHN QUICK - It is easy to say that the States have surrendered the right to the Commonwealth to deal with their public servants in this way ; but the whole point turns on whether they have or not. I contend that there has been no such surrender. The King, as a constituent part of the States Governments, has not agreed to it, and no such surrender affects States organization unless it appears within the four corners of the Commonwealth Constitution.


Mr Higgins - We say that it does.


Sir JOHN QUICK - It is easy to make that assertion. The Constitution of New South Wales must be read together with the Constitution of Victoria, which contains similar provisions.


Sir John Forrest - The same provision is to be found in the Constitution Acts of all the States


Sir JOHN QUICK - The same power is, I know, given in the Constitution of Queensland. There is an express power of appropriation of all the consolidated revenue for the purposes of the public services of each State, and that power has not been taken away. How can it be said that so great a power as that has been interfered with by implication in a vague little sub-section of section 51, relating to industrial disputes? If the Imperial Parliament intended, in passing the Federal Constitution, to take away the power of the States over States Departments it would have expressly said so, just as it has done in regard to the Customs and Excise Department. We know that it has taken away the State power over Customs and Excise, and vested it exclusively in the Federal Parliament. There can be no doubt about that surrender. It. is made in express terms, and was part of the Federal bargain. But we cannot imply the surrender of any Department by the States to the Commonwealth. The surrender must be found in the Constitution itself. Federal power over a State Government organization presided over by the Crown cannot be implied ; in order to bind the States the surrender must be found in the Constitution itself. That is my argument, and I think that it is absolutely unanswerable.


Sir John Forrest - Hear, hear.


Sir JOHN QUICK - I am not one of those who entertain doubts in regard to this question. I go straight to the point, and I feel absolutely convinced that my view is the correct one. If I were not, I should tell the House so, and be quite willing to give free operation to the power proposed to be vested in the Court. If I felt' that we had the right to give effect to the amendment, I should not be afraid to join in bringing it into force; but I am so convinced that we have not the power that, whatever may be the political consequences to me, I am resolved, as far as I can, to resist the amendment, and to endeavour to induce as many as I can to view the matter from my stand-point. There is no distinction practically or in law between a Railway Department and any other Department, of a State Government. It is true that there may be a distinction in name.


Mr Hughes - There might be one in fact.'


Sir JOHN QUICK - There can be no distinction, unless it exists at law, and I contend that there is no distinction either in fact or at law. The section of the Constitution of New South Wales, to which I have referred, provides that all the revenues of the Crown shall go into the consolidated fund, and shall only be taken out by an Act of the State Parliament. We find that, although the management of the railways of the States of Victoria and New South Wales have been transferred to Commissioners, they have been so transferred merely in trust for the States - Governments - in trust for the Crown. The Commissioners have certain powers of organization and' management vested in them as the representatives of the people. .All their powers are conferred upon them on behalf of the Cro«:i. In section 70 of the Victorian Railways Act it is provided that the Commissioner shall pay such salaries and wages as shall be appropriated by Parliament. There is no surrender in that section of the parliamentary control over the revenue of the Department. Then in section 59 it is provided that the Commissioners shall prepare estimates of receipts and expenditure in such form as the Governor in Council may direct for each period of twelve months ending 30th .June in each year. Then the Treasury regulations under the Audit Act provide that the full amount of all collections of revenue of all the Departments of the Government, including the Railway Department, shall be handed to the Treasurer, accompanied by a statement of the collections, and no money is to be held in suspense by the Commissioners, or any other State authority. The Audit Act provides that no sum of money appropriated shall be used for any service other than that for which it has been appropriated in the same year. All money, before being paid out of the Treasury, has to be certified by the Commissioner of Audit as " legally available " for the purpose to which it was devoted by Parliament. In face of these constitutional provisions, in face of the Audit Acts of the States, in face of the absence of any express grant of power over States Departments, to the effect contended for, I submit that it would be futile to press these arguments too far, and if any attempt be made to enforce them it will amount practically to an invasion of the constitutional rights of the States. I do not suppose that any honorable members desire to bring about a conflict of that kind; but it undoubtedly will mean that. In the Victorian Act there is also power given to the Railways Commissioners to pass regulations for determining the relative rank, position, or grade, the duties and conduct of the employes in each branch, and such regulations, when confirmed by the Governor in Council, have the full force of law. So that there is a delegation of the power of appointment contemplated by the Constitution from the Executive Government to the Railway Commissioners; but it will be observed that the Executive Council still retains its grip over the annual expenditure. Any scheme of annual expenditure has to be submitted to the Executive, and any regulations made by the Railways Commissioners have to be approved by the Governor in Council. I hold in my hand the regulations of the Victorian Commissioners, which were confirmed by the Governor in Council on the 16th Novem ber, 1896, and in which there is what purports to be a scheme for the classification of ail railway servants. The first regulation is -

The amounts set forth in the schedules hereto shall, on the future appointment, promotion, or classification of any person, be the rates of salary or wages payable to persons holding any of the positions therein specified.

The second regulation says -

Nothing in these regulations shall apply or be construed so as to diminish or prejudicially affect the pay which any employe is receiving at the time of these regulations.

The regulations contain a scheme for the classification of officers in the traffic branch from lad porters, messengers, carriage cleaners, and labourers down to watchmen, messengers, and gatekeepers, and the whole of the pay for these various classes of men of different ages and engaged in different occupations and different grades of work, is specified. That has been approved by the Governor in Council. I ask honorable members to consider what is proposed in this amendment. It purports to confer on the Federal tribunal authority to deal with, first, the right of appointment. Honorable members may ask why I make the statement. Because the Bill enables the Federal tribunal to provide that none but union men shall be employed, or that preference may be given to union men. It may pass an award saying that the Railways Commissioners are to employ none but union men.


Mr Fisher - Hear, hear.


Sir JOHN QUICK - I should not ob ject if they had the power; who could object ? Under the Constitution the power of appointment to the railways is vested in the State Government, and that power has been delegated by the State Parliament to Railways Commissioners, subject to the approval of the Governor in Council. Do honorable members contemplate what is really possible, or what would be attempted to be done in order to give effect to this Arbitration scheme ? Suppose that a dispute did occur, that the Railways Commissioners were summoned before the arbitration tribunal - it may be that they would appear under protest - and that' they were asked to enforce an award. They would say - " However much we might like to enforce this award, we cannot increase our votes, because our Estimates are passed from year to year by the State Parliament, and here are our regulations passed by the Governor in Council." It is true that the State Parliament could override the regulations, could increase the gradation and classification, could increase the remuneration attached to each grade; but how can honorable members ask the Railways Commissioners of New South Wales or Victoria to carry out an award for which no provision has been made by the State Parliament? They would say - " Go to the State Treasurer." Suppose that they went to the State Treasurer, he might say - " I have no objection, but the State Parliament will not recommend it." What would become of the award? I submit that the test of a power is the capacity to enforce it, and if there is attached to sub-section xxxv. no provision for enforcing an award against a State Government then such a grant of this power is not intended. There is very strong power to enforce an award against private individuals - workmen and masters - by attachment, imprisonment, fine, and so forth, because without that power the provision would be a nullity and sham. But where is the power of enforcing an award against a State Government? From the absence of that power I draw the conclusion that the provision was never intended to apply to State governing institutions and State governing instrumentalities, but to only private individuals and private institutions, and those not subject to the States Constitutions. I am convinced beyond all reasonable doubt that this contention alone ] affords a fatal and an overwhelming objection to the constitutionality, as well as the practicability, of the amendment.


Mr Hughes - Would not that apply to a State Arbitration Act?


Sir JOHN QUICK - Certainly not, because the State Parliament created that tribunal. In the New Zealand Act the power of the State tribunal is limited within certain conditions by the Appropriation Act for the year ; it can only alter by increasing or decreasing within the limits of the classification defined in that Act; it cannot increase the grant.


Mr Fisher - That is a detail.


Sir JOHN QUICK - It is not a detail ; it goes to the very root of the whole scheme.


Mr Hughes - That is not so in New South Wales.


Sir JOHN QUICK - I understand that the Parliament of New South Wales has created a tribunal something like our Public Service Commissioner.


Mr Hughes - It is also subject to any award made by the State Arbitration Court.


Sir JOHN QUICK - Suppose that it is, then, as the Acting Premier of New South

Wales said, only recently in an interview, if Parliament did not grant the money, the award could not be carried out. But the Parliament of that State is not likely to dishonour a recommendation . of a tribunal which is its own creation.


Mr Hughes - It could do so. '


Sir JOHN QUICK - If it could, what control is there? The award would go for nothing, it might be disapproved of by the Parliament. It is not likely that a State Parliament or a State Government would recognise an award made by a tribunal in whose composition it had no voice or control - a tribunal which it might consider outside the Constitution.


Mr Hughes - There is a party seeking election now for the express purpose of doing that.


Sir JOHN QUICK - Let them seek election. If it is desired to engraft this power on the Federal Constitution, the only way in which it can be properly done is by amending the Constitution.


Mr Higgins - That is a big question.


Mr Fisher - We do not think it necessary.


Sir JOHN QUICK - I have great respect for those honorable members who disagree with me, and I am merely trying to explain the difficulties which trouble my mind.


Mr Wilks - Is there not the same difficulty in connexion with the Judiciary Act?


Sir JOHN QUICK - No.


Mr Wilks - How can we enforce a judgment against a State? Only on a certificate to the Treasurer of the State.


Sir JOHN QUICK - Because in the Federal Constitution the State has surrendered to this Parliament the right to provide for an action against the State within the Judicial power. We could not give a right of action against a State at large, unless it was within the limits of the grant of power contemplated by the Constitution. I admit that if any case arose under a Federal law, justified 'by the Constitution, then it could be enforced, but the whole thing turns on the question whether the establishment of a Federal Arbitration tribunal is justified by the Constitution. Even in our Judiciary Act there is only provision for bringing an action against a State in respect of contracts and torts, so that that would not help us in the slightest degree. The reply to that argument is that in those cases the States have submitted to the jurisdiction of this Parliament in matters arising under the Constitution. My contention _ is that such a case as this would not arise under the Constitution. My right honorable friend, the Minister for Home Affairs, has drawn my attention to section 68 of the Western Australian Industrial Conciliation Act, which provides that - all expenses incurred and moneys payable by the Commissioner of Railways in any proceedings under this Act shall be payable out of moneys to be appropriated.

The money is not actually appropriated by the Act itself. So that this Western Australian Act creating a State Arbitration tribunal does not provide for a special appropriation, but leaves it to Parliament to vote the money to meet any awards. Now I wish to conclude. I believe that the expectations and the hopes which are being held out and indulged in as to what is to flow to the public servants from the adoption of this amendment, are doomed to disappointment. But in addition to that I am afraid that if the amendment be carried it will lead to the beginning of an agitation or a movement which may, in the end, result in the break-up of this Constitution as a Federal Constitution, and in a reform that will conduce to unification and the government of Australia by one central authority.

Honorable Members. - Hear, hear.


Sir JOHN QUICK - Well, let it be so. Sir, the framers of this Constitution, while endeavouring to create a national government for the determination of all national questions, were most anxious to preserve State autonomy and home rule in matters of local concern. On this point of the tendency to centralization, which the amendment marks, I should like to draw attention to the following passage by John Fiske in his very interesting work on The Critical Period of American History. On page 238 he writes -

If the day should ever arrive (which God forbid !) when the people of the different parts of our country shall allow their local affairs to be administered by prefects sent from Washington, and when the self-government of the States shall have been so far lost as that of the departments of France, or even so far as that of the counties of England - on that day the progressive political career of the American people will have come to an end, and the hopes that have been built upon it for the future happiness and prosperity of mankind will be wrecked for ever.

Apply that prophesy to this situation. We can only look forward with apprehension to any policy which is calculated to impair the usefulness of the States Governments, to destroy the free operation of local selfgoverning institutions, and to transfer the local autonomous power to the central

Government, situated either at Melbourne, Tumut, or Bombala. We ought rather to encourage the States. It may be that at times they may pass legislation which is distasteful to many of us. It may be that at times they may not deal out that even-handed justice to their employes which many of us would like. But I believe this - that in this democratic country our institutions and our franchise are so free and so wide and so liberal that a grievance which is pronounced and generally recognised will not remain long unrectified and unredressed. I believe, therefore, that the troubles in Victoria upon which this amendment has been practically based, and from which it has been evolved, will before long be rectified in the ordinary course of local self-government. I believe that they are capable of rectification without the intervention of this great national Parliament. We have to deal with wider Australian issues. We have to deal with Inter-State matters, with external matters and with Imperial matters. We should allow the States to work out their own salvation, and to solve their own problems as best they can. Surely we cannot doubt the democratic power and force of the Victorian people any more than we doubt the democracy of the people of New South Wales. Time rectifies all these grievances. Public opinion comes to the side of justice and rectitude. And I am sure that this grievance, about which so much has been made, and which many of us regret so much, can and will be remedied, without any attack on the autonomy of the States, and without any stretching or straining of the Federal- Constitution, which we should all regard as the palladium and bulwark of our national life and liberties, and which we should all unite in protecting and defending against unnecessary invasion.







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