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Tuesday, 19 April 1904


Mr ISAACS (Indi) - I desire to say a few words on the amendment before the Chamber. Before I address myself closely to the matter in its legal aspect, and then in its aspect of desirability, I should like to point Out distinctly that, in voting for or against this amendment, it ought to be thoroughly understood that we are not mingling two matters which may, on the face of the amendment, be involved. These two matters are the relation of the Commonwealth servants, as well as that of the State servants, to the measure. This amendment touches both; and entirely different considerations will prevail with regard to the Commonwealth servants as distinguished from the State servants ; because, if this amendment be lost, the Bill will, exclude both Commonwealth and State servants. But the debate has proceeded, and, as I understand, will continue upon the basis that we are discussing the question of applying the Conciliation and Arbitration Bill to the public servants of the various States. We must all recognise, as has just been said by the leader of the Opposition, that the occasion is one of great importance. In the remark that a change of Government is always" a matter of importance, I agree with' the leader of the Opposition, but with the epitaph he has pronounced on the retiring Administration I do not agree. I shall only say of the Government, as a supporter who, I think, has been at once independent and loyal, that I believe the memory of this Administration, which has been substantially the same throughout, will be for all time associated with measures great in themselves, and especially great in that they mark, in many instances, the initial steps in the building up of this great Commonwealth. There is a matter of greater importance than that of a change of Government involved in this question, and that is the relation, present and future, of the Federation and the States. That is a matter of enormous gravity, and I feel that, while maintaining the attitude I took up in the last session of the previous Parliament, I should say a few words on the legal aspect of the question, to which I did not address myself on the last occasion. I have maintained, as I have said, the same opinions, confirmed by further thought, that I had the honour to address to the Chamber on the point of expediency. With regard, to the legal position, after the best thought I am able to give to the matter, I regret to say that I do not believe any man can pronounce definitely as to whether this proposal is constitutional or not, until the matter has been decided by the tribunal to which the Constitution has intrusted its decision - namely, the High Court-


Mr O'Malley - There a lawyer speaks. . Mr. Reid. - The Ministry would find the honorable and learned member's advice worth taking.


Mr ISAACS - If any justification were needed for the expression of so guarded an opinion as that it is to be found in the diversity of the opinions expressed by legal members of the House.


Mr Higgins - How is your vote going?


Mr ISAACS - We find arguments of great weight in the observations of the Prime Minister, who quoted portions of the Constitution indicating that State servants are by implication excluded from the operation of certain sub-sections of section 51. We have' had observations of equal weight from the honorable and learned member for Northern Melbourne, pointing out portions of the Constitution the direct inference from which is that they are included bv implication in the provisions of the Constitution. We have had to night most important speeches from the honorable and learned member for Darling Downs and the honorable and learned member for Bendigo. All these honorable and learned members have thrown a vast amount of light upon the subject, and have contributed much erudition to the dis cussion. I was going to say to the solution of the question, but that is beyond our capacity at 'the present time. If we look at section 51, sub-section 11., which confers upon the Commonwealth Parliament the power of dealing with taxation, and if we then note that under section 114 State property is excluded, the natural inference is that, but for that express exclusion, the States would come within the former section. Then, if we turn to the preceding sub-section of section 51, under which the Commonwealth Parliament is given power to deal with trade and commerce with other countries, and among the States, we shall find that, by section 98, State railways are declared to be within the province of the Federal Parliament in regard to trade and commerce, and yet, apparently, without that express mention they would be outside our jurisdiction. We have in the provisions of two consecutive sub-sections of section 51 and other co-relative sections of the Constitution, material for exactly diverse opinions. When we go further, and refer to the banking and insurance sub-sections, great weight is to be given to the argument of the honorable and learned member for Northern Melbourne, because it is impossible to say, that we can ignore those words, " other than State banking," and " other than State insurance," and giving the weight which a lawyer would be disposed to give to those words, the Constitution must mean that, if those words were not there, State banking and State insurance would undoubtedly be included in our powers. Then we have sub-section xxxii, referred to by the honorable and learned member for Darling Downs, dealing with the control of railways for the transport of naval and military forces. Surely it could not be thought, for an instant/ that State railways would be excluded in connexion with such a matter. It would be idle to put in the Constitution a provision that the Commonwealth Government should have the power of controlling and regulating the transport of troops, naval and military, over the railways of Australia, and to read it as meaning that it should apply only to private railways. That would be futile. Other sections may be referred to in the same way, and therefore we are left, as the Constitution now stands, in a state of indecision. It has been said, notably by the honorable and learned memher for Bendigo, that the well-known maxim of English law, that an Act is not to bind the Crown unless the Crown is expressly mentioned, or unless there is a necessary intendment, clearly shows that the Convention that framed this Bill, and the people of Australia who accepted it, never contemplated the inclusion of the States within the purview of its provisions, unless they were expressly mentioned.


Mr Higgins - Does the honorable and learned member think that that maxim about the Crown applies to a Constitution?


Mr ISAACS - I do; and I am going to say why I do not agree with my honorable and learned friend the member for Bendigo. This Constitution, as it was passed by an Australian Convention and approved by the Australian people, was not the Constitution that Ave have before us now. The Constitution that left Australia and reached the Imperial Parliament contained iri the second section these words -

This Act shall bind the Crown.

Therefore, as the Constitution Avas accepted by Australians, and as it left Australian hands, undoubtedly the States would have been included, in my opinion. I think that if Ave recollect that it will harmonize many of the differences which have found expression during this debate, as it will show that there was no necessity' to specifically mention the States in many of the sub-sections of section 51, such, for instance, as the sub-section dealing Avith conciliation and arbitration, and that relating to railways, because in the very forefront of the Constitution were those commanding words, " This Act shall bind the Crown." The Imperial Parliament struck out those words.


Mr Batchelor - That seems to have been overlooked.


Mr Conroy - Were they not included in another part of the Constitution ?


Mr ISAACS - No. I desire to say that by the simple elimination of those words I fear and believe that the Constitution will have in many respects a different operation from that which it would have had had those words been retained. That simple fact will convince us that Ave cannot rely on the argument that it Avas not the intention of the Convention to bind the Crown. But, as a matter of law, Ave have to look at the Constitution as it stands, and to recollect that the Imperial Parliament, in the exercise of its right, however it may have grated upon the feelings of Australians who framed their own governmental agreement, did materially alter the Bill that Avas sent home to them. The High- Court will have to decide whether the Crown is bound by the measure as it stands upon the statute-book. I venture to predict that it cannot be. held that the same universal principle applies throughout the Bill. No principle of statutory interpretation is more deeply rooted in law than this, that no Act shall bind the Crown unless by express words, or by the nature of the enactment. As late as 1902 the Lord Chief Justice of England, in determining the case of HornseyUrban Council v. Bennell, 1Q02, K.B., page 80, said - " The intention that the Crown shall be bound, or has agreed to be bound, must clearly appear, either from the language used, or from the nature of the enactments."

Mr. Hardcastlein his work on Statutory Law, at page 385, and elsewhere, points out most clearly, and marshals his authorities for stating, that when the King assents to a law that is presented to him, it is understood that it is to be binding on his subjects Only, unless the King himself is specifically mentioned, or the implication that he is to be bound is so strong that it cannot be resisted. Not 'only does that apply to the Crown directly. but, as has been held in many cases, it also applies to Commissioners under the Crown. The Railway Commissioners are intrusted with Crown property or functions for convenience of administration; and no difference of result can be deduced from the fact that Railway Commissioners, and not the Crown direct, are affected.


Mr Fisher - Would the Bill extend to municipal councils ?


Mr ISAACS - They do not represent the Crown.


Mr Fisher - But would they be included in the Bill?


Mr ISAACS - They would not be included in the amendment. We are deprived of any argument arising from the express inclusion of the Crown, and we have to fall back on the nature of the enactment. It would be profitless for me to go through the various arguments that could be adduced on both sides as to the nature of the Constitution - on the one hand, that it is important that it should be a great national instrument, that we should have the broad construction, as it is called in America, so that the nation shall have as little resistance as possible offered to its development, and as few fetters as possible placed upon its growth, or, on. the other hand, that the Constitution should be strictly construed, and that the States are entitled to exercise, according to the I words of the Constitution and the spirit of the enactment, all rights in respect to their own Departments retained by them, and necessary for the carrying out of their own functions. These are- matters that will have to be determined by the High Court, and it is possible that every subsection of section 51 will have to stand on its own footing. The result may be that we shall never have a decisive interpretation of any one section by reason of the meaning attached to another. We shall have to determine the form and effect of each subsection of section 51 by itself, and I foresee no very pleasant prospect for the States or the Commonwealth in the multitude of cases in which the High Court will be called upon to determine the functions of the Commonwealth and the rights of this Parliament. I think I have shown honorable members that no man can pronounce, with any degree of definiteness with regard to our powers in reference, to conciliation and arbitration. I have the misfortune not to agree with trie Prime Minister as to the application of the American cases. I think they are entirely beside the question. In the Privy Council case of the Bank of Tar onto v. Lambe, it was pointed out that the principle of the American cases did not apply to Canada. In America the States and the Federation exist side by side independently of each other, except in so far as the tie of the Constitution goes, and that there is no power above them common to both. With us, however, the Crown is above all. It radiates through every part of the British dominions, the British Islands, Canada and every Colony, State, and Possession. Such is not the case in America, and this at once marks the fundamental distinction between the American Constitution and our own. The Supreme Court of Victoria, following the line laid down by the Privy Council, has held that the American cases do not apply here.


Mr Deakin - Was that following the line of the Privy Council ?


Mr ISAACS - I think so, distinctly.


Mr Deakin - I take leave with all respect 'to doubt it.


Mr ISAACS - I say with great deference that that is my view. The honorable and learned member for Darling Downs quoted the American legislation with regard to the Arbitration Acts,- 1063 of 1888, and 370 of 1898. These measures, although they provide for arbitration between railway companies and their employes, relate only to voluntary ' arbitration, and there is no compulsory element in their provisions.


Mr Groom - But the enforcement of the judgments of the Court is compulsory.


Mr ISAACS - Only to this extent: That if the parties choose to arbitrate they are bound by their agreement, which is capable of being enforced. They are not bound in spite of themselves - they need not be bound at all. If two parties each choose to appoint an arbitrator, the arbitrators may appoint an umpire, or in the absence of an agreement as to the umpire the chairmen of the Inter-State Commerce Commission and the Labour Commission may appoint an umpire. If an agreement is arrived at it is binding upon both in the same way as a voluntary contract.


Mr Groom - They do not rely upon the contract, but upon the right of the State to interfere with trade.


Mr ISAACS - The Acts simply provide that certain parties may enter into a voluntary bargain, and that if they do so the bargain must be carried out in a certain way. These provisions, however, throw no light whatever oh the construction to be placed on sub-section xxxv. . of section 51. Now -what is our duty ? If we are not Clear as to the powers of Parliament, should we refrain from dealing with the matter on its merits? I say "No." If the matter Were perfectly clear; if I were sure beyond all possibility of doubt that it was unconstitutional, I should refuse to fly in the face of the law, but with anything short of the most perfect assurance that it is unconstitutional, we ought not to decide this question against ourselves. We must recognise that there is a High Court which has committed to it the function to perform this very work; and, therefore, I, for One, shall not refrain from considering this question on its ' merits. On the ground of expediency, I regret to say that I shall have to vote against the amendment. Last session I expressed,' at considerable length, my views on the subject of compulsory arbitration. I endeavoured to explain why I supported it with my whole heart. I still maintain that attitude, and I do so for the very reason which will actuate me in voting against the amendment. I believe that the Arbitration Bill, as .introduced by the Government, is one of such nobility of aim, such justice, such uprightness of purpose, with such power to conse'rve industrial peace, to preserve commercial enterprise, and- to maintain commercial stability, that all classes of this community, employers and employed alike, ought gladly to welcome it. Why ought it to be welcomed ? To prevent strife, it is true; but how does that strife arise? It arises because of private cupidity, which is natural enough. Private interests, which every man is entitled tq hold and maintain, naturally prevent him from taking an altruistic view of the position of his neighbour. It is right, I believe, that to avert greater evils, to prevent internecine strife, to prohibit quarrels between employer and employe^ leading to the obstruction of production, and causing suffering, not only to the parties concerned, but to the community at large, that the public power should step in between two sets of combatants, and insist on industrial peace. But where no considerations of private greed, rapacity, or cupidity enter into the matter, where it is the whole people of a State who are the employers, I cannot recognise the analogy. There was a strike in Victoria, and it was settled by the Parlia-ment of Victoria; it did not come before the people of the State for settlement. . As a Federal legislator, I have no right to express publicly an opinion on the action of the Victorian Parliament. Whatever that may have been, I am not ready to impeach the whole people of Victoria of being unwilling or unable to do justice. The power that the amendment will give us, if the High Court should declare it to be valid, may be a necessary one to use at some future time in our history. I do not say that it is impossible that it should ever be so exerted. This Constitution is not for a day, or for a decade, but for all time. The States may in the future embark on undertakings which at present are left to private enterprise, and for the sake of securing uniformity, or for some other reason, the Commonwealth may require to step in and make a law to regulate them. But that time has not yet arrived, and merely because the employes of the Victorian people are not in our opinion justly treated, whatright have we to interpose the arm of the Commonwealth between them and the State, and to fix the agreements between the two parties ? I decline to be one ' to pass a vote of want of confidence upon the State in which I was born. Those considerations embrace pretty well all I have to say. The amendment involves the tearing up of every Act of the Victorian Legislature relating to the Public Service and to the railway service. Why should it be left to the Federal Judge to disregard everything that the Victorian Parliament has said or may say on the subject of its employes ? I speak of Victoria because that is the State from which I come, but my' remarks are applicable to every State of the Union. Why should it he tolerated that the Federal Judge - because the two assessors will be sure to disagree - should disregard every Public Service Act and every Railway Act, and determine who shall enter the Public Service of a State, how they shall enter, when they shall enter, and upon what terms, how long they shall remain, what salaries they shall receive, what hours they shall keep, what work they shall do, how they shall be treated, what privileges they shall enjoy, and the people of the State have nothing to say ' in the matter except to pay ? I cannot see that there is any justification for that It may lead to a great deal of friction between the Federation and the States.


Mr Conroy - Even if it were constitutional, the honorable and learned member would npt consider it expedient.


Mr ISAACS - I have said so. I think it would lead to a great deal of friction. I hope not. I can only do my best to give expression to the feelings and reasons which animate me at the present time. Considering the little -amount of good that it could do, because, at the most, we can deal only with disputes extending beyond the limits of a State, I think that it will not be wise to put this affront upon the people of Victoria, by interfering with the self-govern: ment of that State. As a well-wisher of the Bill, and a strong supporter of it, as one who desires to maintain and further the principles which underlie and are interwoven with it, I consider the amendment, ably as it has been moved, and eloquently as it has been supported, a mistake. I hope that it may not prove a mistake, but, as at the present" moment I believe it to be such, I feel it my duty, for the reasons I have given, to vote against it.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - As there are other speakers, and the debate cannot finish to-night, I ask the Prime Minister - seeing that the speeches which we have had have been not only interesting, hut confined within very narrow bounds- - to report progress now.


Mr Deakin - The request is being made earlier than I hoped it would be, but as there are other speakers, it is a reasonable one. I invite honorable members, however, to assist us in closing the debate to-morrow night. I think we can do without unduly curtailing the remarks any honorable- member.

Progress reported.







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