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Wednesday, 20 April 1904


Mr HUTCHISON (Hindmarsh) - There is one thing which the debate has made very clear, and that is that the Constitution is not an instrument which he who runs may read. It appears doubtful whether any man of ordinary intelligence who studies that document can understand it. It was clearly demonstrated yesterday, which was a field day for the legal talent of the House, that the lawyers, at any rate, can tell us nothing definite as to the meaning of its provisions.


Mr Wilks - They hope to have a job in the High Court in interpreting it.


Mr HUTCHISON - Yes. I have the highest opinion of the ability of the lawyers who are members of this House, and who, as members of the Convention, took part in the drafting of the Constitution; but it seems to me that they are responsible for a measure which will supply them with food for disputes until the crack of doom. Therefore, we must rely upon our commonsense in determining the meaning of the Constitution. We have heard a great deal of State rights. The honorable member for New England has told us that he is a wrecker, so far as the Bill is concerned, that he is opposed to the measure because he regards it as an invasion of State rights. I think we have heard too much about State rights, and far too little about human wrongs. We cannot, by any Act which we may pass, violate the rights of the State, because if we go beyond the powers given to us by the States the High Court will declare our legislation ultra vires. But when a certain power has been handed over to this Parliament, we shall not be doing our duty to a large section of the people of the Commonwealth if we refrain from exercising it. In my opinion, the Constitution lays down the great principle that there must be no discrimination between the individuals who compose the Commonwealth. That being so, there should be no discrimination in regard . to the individuals who are to come under the operation of the Bill. No honorable member will contend that the proposed Court would do anything but absolute justice. That being so, if we are to deal fairly with all, we must place both public and private employer on the same footing, and bring both under the operation of the Bill. I would have some sympathy with the honorable member for New England if he had stated that he will not be a party to compelling the private employer to submit to the decisions of the Court unless Parliament is prepared to compel the public employer to do likewise, because we are here to legislate, not in the interests of a section of the community, but in those of the whole Commonwealth. The objections taken to the amendment are that it is neither constitutional nor expedient. Why is it not expedient? The only reason I can find for the statement that it is not expedient is in the fact that the Federal Government is not at the present time popular with some of the reactionary Governments of the States, or with an anti-democratic press, and that, therefore, we should not offend them. I take a higher stand. I say that the people of Australia are entirely with us. So far as the people of South Australia are concerned, I believe that at the last election every candidate made it a leading part of his policy to declare that all State servants should be brought under the Bill, if that were constitutional. The reservation in regard to constitutionality must always be made. The Prime Minister has urged that we should stay our hand in this matter until the States have established Arbitration Courts.


Mr Deakin - No; until they have had an opportunity to establish Arbitration Courts, and have not taken advantage of it. If they established Arbitration Courts there would be very little need for a provision of this kind.


Mr HUTCHISON - They have had for many years past the opportunity to establish Arbitration Courts. In South Australia a Factories Act was passed some years ago to deal, by the creation of Wages Boards, with four trades only. The Act was passed through both the Legislative Assembly and the Legislative Council, but it could not be brought into operation for the reason that the latter Chamber, in its wisdom, suspended the regulations.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Three-fourths of the inhabitants of Australia are now under Arbitration Acts or Wages Boards.


Mr HUTCHISON - That is an argument for bringing the remaining fourth under similar legislation as soon as possible.

If legislation of the kind has been found a good thing for three-fourths of the population


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - That has not been proved.


Mr HUTCHISON - Then legislation of the kind must be better still for the whole. The South Australian Act has been hung up simply because an objection was raised to the regulations - to my mind a thoroughly unconstitutional objection. The Act provides that the regulations are to be made for the better carrying out of, and in accordance with the provisions of, the Act. It has not been denied that the regulations are in accordance with the Act, and that they would undoubtedly carry out its provisions. But as yet there are only four trades which seek to come under its operation. I mention these facts to show that it is idle for us to expect, in a State with a Parliament constituted as is the South Australian Parliament in regard to its Legislative Council, a conciliation and arbitration law to be passed for many a day to come.


Mr Mauger - Sweating is rampant in the four trades referred to.


Mr HUTCHISON - That is admitted ; the press has published columns showing the extent of the sweating in these four trades. The honorable and learned member for Darling Downs, and the honorable and learned member for Bendigo both admitted that there is power in the Constitution, 1 think in section 98, for this Parliament to deal with any obstruction to trade and commerce.


Mr Deakin - Inter-State trade and commerce.


Mr HUTCHISON - Exactly ; and I think the head of the Government must see that these disputes will always be InterState.


Mr Deakin - They must be, or they will not come under the Bill.


Mr HUTCHISON - If the Commonwealth Parliament has power to deal with any obstruction to Inter-State trade and commerce, surely it will be admitted that a strike of railway servants is about the most serious obstruction we could possibly have. If we have power to deal with trade obstruction at all, it is only a matter for consideration how far we should go: if this power has been delegated to us. we can go as far as this Parliament, in its wisdom, chooses to decide. In dealing with the New South Wales arbitration law. the honorable and learned member for Bendigo stated that the Parliament of that State had surrendered its powers to an Arbitration Court simply because that Court was of the Parliament's own creation. The honorable and learned member's objection to including States servants within the Bill before us is, that the Federal Arbitration Court would not be a Court created by the States. But I take an entirely different view. I contend that there has been nothing brought before the House to prove that the people of Australia did not surrender to this Parliament the right to create a Federal tribunal, by which the States would undoubtedly be bound. That seems to be the one point we have to decide in regard to this particular question. ' It was further stated that there is no power to enforce an award ; but surely no honorable member will agree with such a position. If there is no power to enforce an award given by a Court created by the Commonwealth Parliament - that is, an award against a State - then it is in the power of any State to flout the Commonwealth Parliament at any moment. Will any honorable member concede such a position? Why, such a position is impossible ! I should like to put it to the Prime Minister whether, if a railway strike took place in any State in the- Commonwealth, and we found not only that commerce was obstructed, but that the mails were stuck up at different parts, the Commonwealth would have power to interfere ?


Mr Deakin - So far as the obstruction was Inter-State, yes.


Mr HUTCHISON - And only a minute ago the Prime Minister admitted that all these disputes must be Inter-State.


Mr McCay - No; the Prime Minister said that the only cases amenable to the Bill must be Inter-State.


Mr HUTCHISON - We have had an admission that the Commonwealth would have power to deal with such a case as I have' indicated ; and if the Commonwealth has the power to interfere in the one case, it has the power to include the whole of the States public servants within the four corners of the Bill.


Mr Deakin - The difference is that the Commonwealth has power to deal with such a case by taking its own executive action to have its own mails carried throughout the Commonwealth, in the different States. The Commonwealth does not settle the dispute, or attempt to do so, but takes care to have its own services carried on.


Mr HUTCHISON - Then I would ask the Prime Minister whether, in the case of a strike becoming a very serious matter, it would be within the power of the Commonwealth to call out the military ?


Mr Deakin - What good would that do?


Mr HUTCHISON - The good' would be the good which it was supposed would result when a similar step was taken in other cases. Personally, I "think that such a step would do a lot of evil, but the military have been called out when the forces were under the control of the States Governments. It is not so very long since it was suggested that the military should be called out in South Australia, and we were then told that the guns were ready loaded. It is not so very long since similar action was threatened in Victoria.


Mr Deakin - But only on the report of the head of the police that he could not undertake to preserve order with the forces at his command.


Mr HUTCHISON - Under similar circumstances, would it be within the power of the Commonwealth to call out the military ?


Mr Deakin - Yes, and there is an obligation in the Constitution which requires us to protect the States against domestic violence.


Mr HUTCHISON - We are now told that the Commonwealth has power to compel men to submit to the arbitrament of force.


Mr Deakin - That is a different matter.


Mr HUTCHISON - What else does it mean ?


Mr Deakin - It means to preserve peace, order, and good government.


Mr HUTCHISON - Honorable members may call it keeping order, or any thing they like; but the fact remains that men are to be compelled to submit to the arbitrament of force.


Mr Deakin - Not for any thing except to keep order.


Mr HUTCHISON - Precisely ; but the Prime Minister will see that here the Commonwealth would be interfering in a purely State matter.


Mr Deakin - When authorized by the Constitution and commanded by the Constitution to do so, but not otherwise.


Mr HUTCHISON - If it be laid down in the Constitution that there can be such an interference by force, surely we have power to interfere by reason and law.


Mr Deakin - That is the whole question.


Mr HUTCHISON - On several occasions Broken Hill, which is in New South Wales, has been subject to water famine, and has been entirely dependent on the South Australian railway service for its supplies. In the event of a dispute arising on the South Australian railways at such a time, when the lives of the people of Broken Hill would be endangered, does any honorable member mean to tell me that the Commonwealth Parliament would not have power to interfere, although the dispute would be in South Australia, and the suffering at Broken Hill? There is no arbitration law in South Australia to deal with such a matter, and it will be seen what a serious risk we are running in this connexion. Unless South Australia had been at times able to supply the Broken Hill population with water, not only would the mines have had to be shut down, but the people would have had to emigrate, those who could not afford to do so being left to die of thirst.' I contend that in the event of a dispute occurring at such a critical time, the Commonwealth would have the power, arid would not hesitate to exercise that power, to interfere. It has been mentioned that the United States Constitution was meant to affect individuals, and not States. That is precisely the position I take up in regard to our own Constitution-; and in affecting individuals, it is not meant that the Constitution affects a number, but the whole of the individuals of any State. Therefore, if we are going to interfere with employes, we ought, as we have the power, to treat alike private employes and those who are State employes only by accident. I was surprised at the attitude of the honorable and learned member for Indi, who, after contending that it was impossible to definitely say whether States servants should or shouldnot be included, refused to allow a provision including them to be inserted in the Bill, so that the matter might be decided by the High Court. Let us adopt the other view of the matter. Suppose that it is constitutional, and I believe that the honorable and learned member believes that it is-


Mr Poynton - The honorable and learned member bases his objection upon the ground of expediency.


Mr HUTCHISON - I am aware of that, and that is the flimsiest objection any one could offer. I take the strongest exception to the attitude assumed by some honorable members, because the objection offered on the ground of expediency has been taken in order to please a very small, but still an influential, section of the people, whose views are opposed to the interests of the people generally. After hearing the honorable and learned member for Indi say that it was quite competent for us to insert the proposed words in this measure, I was astonished to learn that he intended to vote against the amendment. If the amendment be carried, as I hope it will, and the High Court decides that we have acted perfectly within our rights, we shall be saved from the blunder of excluding thousands of the States public servants from the benefits of the measure. I am indebted to the honorable and learned member for Indi for the information that the Constitution, as it left the hands of the Convention, contained a provision that the Act should bind the Crown. We were told, further, that the Constitution, as approved by the people of Australia, contained those words, but that the Imperial Parliament struck them out. ' It is about time that we began to inquire how much has been omitted by the Imperial Parliament, and what bearing such omissions have upon our powers as a Parliament. After what has been stated in regard to such an important amendment as that now before us, and the restrictions upon our powers of legislation, I think the people of Australia ought to have been made acquainted with the alteration referred to, and that the amended Constitution should have been submitted for their approval. The Prime Minister has pointed out that if the amendment were adopted, we should not merely agree to submit a question of law to the High Court, but give the stamp of our approval to a provision which, if proved to be constitutional, would become immediately operative. I should hope so. I hope that we shall never- as has been suggested in some quarters - submit any question to the High Court in order to find out whether we are acting constitutionally. We ought to take up the position that in what we do we believe we are right, and acting within the Constitution, and we should not invite any other authority to guide us. It is for us to pass legislation as we think fit. If we do wrong, we shall, in due time, be set right.


Mr Johnson - We might do wrong in our ignorance.


Mr HUTCHISON - That would be no reflection on our intelligence.


Mr Johnson - No; but ought we not to seek enlightenment?


Mr HUTCHISON - No, because Parliament ought to be the supreme authority in every country.


Mr McLean - What about the proposed Arbitration Court?


Mr HUTCHISON - All that the Arbitration Court will have to do will be to remove the public servants throughout Australia from the operation of political influence. There will be no more political influence in regard to wages, working hours, or other conditions, because all these questions will be dealt with by a tribunal appointed by this Parliament.


Mr Poynton - Is that the only influence at work?


Mr HUTCHISON - No j there are other influences at work which are worse than political influences, but it would" be a good thing for us to get rid of some of the defects of our present system. I have never been a believer in bringing political , influence to bear upon the employes of the States. The honorable member for Gippsland said that the States Governments were generous employers. I do not think so. They are verv generous to some of their servants no doubt; but honorable members will recollect that when the Commonwealth Public Service Bill was being considered, a good deal of sweating in public Departments was brought under their notice. In the Post Office, for instance, some of the employes were so badly treated that this Parliament decided that the wages of several thousands should be increased. If the honorable member for Gippsland were to make himself acquainted with the conditions which existed in South Australia, or even in Victoria, the State with which he is so well acquainted, he could point to a good deal of sweating in the Public Service. At one time the conditions were so bad in South Australia that Parliament had to pass a resolution declaring that no ablebodied labourer should be paid at the rate of less than 6s. per day. Strong ablebodied men were receiving as little as 4s. 6d. per day, and I know that my kindhearted friend will agree with me that that wage is not sufficient to enable a man to bring up a family.

An Honorable Member. - What class of work were they doing?


Mr HUTCHISON - They were doing the hardest kinds of labouring work, such as digging trenches and making roads, and they were paid from 4s. 6d. to 5s. 6d. per day.


Mr Wilkinson - Some men in the public service of Queensland do not receive more than that to-day


Mr HUTCHISON - Do not these facts show that it is high time that we created a tribunal to which public servants could appeal in order to secure fair treatment? At present the birth-rate is declining, and the stream of immigration into the country is not sufficient to enable us to develop our vast resources. Is this to be wondered at? It would be absolutely criminal for a man receiving only 4s. 6d. per day to marry, because he could not possibly bring up a healthy family upon such an income. He could only bring into the world a number of weaklings, which would become a danger to the race.


Mr Crouch - We pay our soldiers only 2s. 6d. per day


Mr HUTCHISON - That is a matter that might receive consideration. At any rate it is high time that ari Arbitration Court was created to which public servants could appeal. The honorable member for Gippsland took further exception to the proposed Arbitration Court because it would be constituted of gentlemen receiving a salary Df only £700. I would point out that the honorable member is receiving only ^400 per annum, and that no one would suggest that he would not, on that account, do justice to the very best of his ability, or that his ability is. not of the highest. If honorable members can perform their duties satisfactorily for such remuneration, surely we may hope to secure the services of thoroughly capable men to act as arbitrators at the salary proposed. If, however, ^700 per annum should not be regarded as sufficient to enable us to secure the best talent I should be prepared -to provide for salaries of twice or three times that amount. All cheap work is dear in the end, and the labourer is worthy of his hire, whether he is digging trenches or filling the highest position in the land. The honorable member for Melbourne remarked that no speech made in Parliament ever influenced a vote. That may be true with regard to honorable members themselves, but the speeches delivered in this House have great influence upon the great body of the electors, and assist them in arriving at a sound judgment upon the merits of the subjects discussed. The discussions in Parliament very often result in the return of men of more progressive ideas, and with more disposition to do justice to all classes of the community.







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