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Thursday, 21 April 1904


Mr BROWN (Canobolas) - I wish to say a few words with regard to some of the addresses which have been delivered since the Bill was taken into Committee. In the debate on the second reading, particularly in that very able speech by the Prime Minister, the position which is being considered now was discussed at some length. At that time the honorable and learned gentleman put forward the plea against the inclusion of State servants within the scope of the Bill, on a twofold ground - first, that, in his opinion, it was unconstitutional; and, secondly, that it was not desirable, if constitutional. At this stage I do not wish to' discuss these positions at any length. The House may form its own opinion as to whether the inclusion of State servants is constitutional or not. The point has been debated by some of the best lawyers in the Commonwealth, and their opinions are as far apart as the poles.. The High Court is the custodian and the interpreter of the Constitution. It will be the function of that body to determine whether this proposal is constitutional or otherwise. With reference to the expediency of including State servants within the scope of the Bill, that is a matter of opinion upon which wide differences are permitted. I have already expressed my views on that point, and I do not propose to repeat them. I now come to the third position taken up by the Prime Minister, in the course of this discussion, and reiterated by several honorable members, that is, that those who support the proposal now before the Committee are using it to attack the Constitution with a view to bringing about a unitary, rather than a Federal, form of government. I yield to no man in my loyalty to the Constitution, and in my desire to see its provisions carried into effect. I do not wish to see them subverted, and if I were convinced that the contention of the Prime Minister, that the amendment is an insidious attack on the basic principles of that instrument, is correct, I should be compelled to reconsider my position with regard to it. It appears to me, however, that there is nothing in his contention, and that he has only manufactured a bogy. Any attack upon the Constitution must fail because of the safeguards provided in the instrument itself. In the first place, the Bill, if amended and passed by this Chamber, would have to undergo the scrutiny of the members of the Senate, whose particular duty it would be to look at its provisions from the stand-point of State interests. We in this House more particularly represent the people of the Commonwealth as a whole, and though it would not redound to our credit or common-sense to unwarrantably attack State rights, it is not bur particular obligation to regard them. That is the function of the Senate, and if they considered the provision which we wish to insert an invasion of the rights of the States, they would veto the measure, and no power .which we possess would enable us to compel them to pass it. But there is a further safeguard. The High Court of Australia has been created, riot only to interpret the Constitution, but to act as its custodian. To a large extent it has been modelled upon the American Supreme Court, and I do not consider the departure from British precedent altogether wise, because in my opinion Parliament should be the custodian of the Constitution. The creation of the High Court, however, was provided for by the Federal contract; and if after the Bill, as we propose to amend it, became law, an application was made to the Court for a decision as to its constitutionality or otherwise, the Court, if it considered that there was an unwarrantable invasion of State rights, would declare the measure invalid. If that were done, nothing short of an alteration of the Constitution would replace it upon the statutebook, and such an alteration is so hedged round with difficulties, that it would require a long political struggle to bring it about. No matter how large the majority of electors in favour of an alteration, any considerable opposition by a minority would render it practically impossible. Therefore, it seems to me that the statement of the Prime Minister was only the drawing of a red-herring across the path of those who feel disposed to support the amendment, but who have not quite made up their minds whether they will desert the Government for the sake of a principle. I wish to make this phase of the question as clear as I can, because if the exact position of affairs is not placed before the Committee, and, through the Committee, before the country, great injustice may be done to those who support the amendment. It is . far from my wish to destroy the Federal contract in order to bring about unification instead of a Federal form, of government. Possibly in years to come unification will be the result of Federation, but, if so, it will come about by the gradual development of public opinion. I think I have shown that the Constitution itself contains sufficient safeguards to maintain the basis upon which it was established so far as concerns the transferred services. But the Constitution also lays down specifically to what extent the functions of the States Governments shall be transferred, and what powers shall be reserved to the States. The Constitution provides that the States may transfer to the Federal Government the control of the railways, and it also provides for the consolidation of the national debt. But it reserves to the States the fullest power of determining whether those functions of government shall be transferred or not. In view of the clear and specific manner in which the Constitution has been drafted in those respects, I contend that there are no grounds for the charges which have been made against the supporters of this amendment. If I believed that unification was preferable to Federation in respect to the functions of government which are reserved to the States, I should be prepared to fight for that principle in the constituencies, and to get the sanction of the people of Australia to it. As to the inclusion of the civil servants within the operation of this Bill, I have already indicated that I consider it to be a wise provision. If it is found to be necessary to apply this Bill to private enterprise, as far as the Constitution enables the Federal Parliament to legislate in that direction, I fail to see the wisdom of drawing the line to exclude those persons who happen to be in the employment of the States. I can quite see that there are conditions in State employment that invite some tribunal of this character to deal with grievances that are constantly arising. The provisions of -the Bill will not meet the whole of those grievances. There are matters that the States Parliaments only can deal with by means of special tribunals for the purpose of holding the balance evenly between the different sections. But, as far as concerns the railways, and in many other directions, State employes are proper subjects for the Arbitration Court. We must not overlook the fact that there is a strong tendency on the part of the States to engage in a number of industrial enterprises that have hitherto been left entirely to private enterprise. Practically, all the railways of the Commonwealth are under State control and management. They are worked by servants of the States. There are not wanting indications that State operation will extend- to similar avenues of employment. Proposals are constantly being submitted in favour of the State taking a hand in the matter of mining development, in respect to working coal mines, and in the construction and repairing work of the railways. These incursions of the States into productive avenues will mean the employment of a larger number of persons who will be under State control. If that tendency is to continue and extend, undoubtedly there will be disputes which will call for the intervention of a Conciliation and Arbitration Act. If the States Legislatures can deal with those disputes so much the better. But if an acute condition of affairs arises it means that a dispute in one State may spread into other States. In that case the

Constitution has armed the Federal Parliament with the necessary power to intervene. It can certainly intervene, so far as private employment is concerned, and I contend that it should also intervene with respect to State employment. I think that the States will welcome legislation of this character to assist them in the settlement of such disputes. That is the reason why I feel compelled to make provision in the Bill for carrying out the instructions of the Constitution. We should make the measure as wide and as operative as possible for meeting any difficulties that may occur. Some criticism has been hurled at- the States Courts of Arbitration. I do not hold that these Courts are perfect. The attempts which have been made in New South Wales to render the Act more effective, have met with opposition, not from the. Labour Party, but from those who are averse to all legislation of that character. It has been the experience of New South Wales, and even the Judge of the Arbitration Court there has referred to the matter, that opposed to all legislation of this kind are those who will fight it by fair means, if they can effectively do so, but who are not above foul means if they think them more effective. They are not above- making false statements as to the operation of arbitration measures in the States and elsewhere to bias public opinion against their underlying principle. The amending Bill, passed by the Legislative Assembly during the last session of the New South Wales Parliament, was thrown out by the Legislative Council, whose special function appears to be to protect the privileges enjoyed by the propertied classes of the community. The honorable member for New England criticised the operation of the Arbitration Act in New South Wales, and stated that, in one instance, a philanthropic gentleman who had employed a nonunionist, because he desired to assist him, was brought to book by the Arbitration Court, and fined £5. The honorable member took part with myself and others, some years ago, in fighting a great democratic battle in connexion with a proposal for landvalue taxation; and, no doubt, he will remember how certain philanthropic gentlemen espoused the cause of the "poor widow." The honorable member was chased all through his electorate, owing to the representations that were made as to theinjustice which would fall upon this mythical " poor widow." I will undertake to saythat the case quoted by the honorable mem-

I ber is of very much the same character.


Mr Lonsdale - The case to which the honorable member refers was fictitious, but I have recounted nothing but facts.


Mr BROWN - I would recommend the honorable member to substantiate his facts. If he referred to Mr. Justice Cohen, I think he would obtain information which would put quite another complexion upon the matter.

M!r. Lonsdale.- Not at all ; Mr. Justice Cohen admitted that an injustice was being <3one.


Mr BROWN - The honorable member ought to know that the principle of an Act should not be condemned on the strength of cases of injustice arising from improper administration. Even if the instance quoted by the honorable member were capable of absolute verification, it would not in any way affect the principle which underlies the Act.


Mr Lonsdale - I know all about the case, and mentioned the facts only-


Mr BROWN - I am sorry that the honorable member should be angry.


Mr Lonsdale - I am not at all angry; I am only emphasizing my original statement.


Mr BROWN - I am much surprised at the attitude assumed by the honorable gentleman on the question now before us. I have taken part with him in many good democratic battles, and I hope to do so again. The Minister for Home Affairs strongly criticised the attitude of the Labour Party towards the amendment, and more particularly its treatment of himself and the Government. He seemed to think' that he had conferred some great favour on the Party during the three years that he had had a share in controlling the destinies of the Commonwealth- He apparently believes that his administration could not be improved upon, and that we are basely ungrateful because we dare to think for ourselves in regard to this measure- He threw out a hint, which was repeated by the honorable member for Robertson, that the attitude assumed by the Labour Party towards the Government was the outcome of some meeting which had been referred to as a caucus. The honorable member for Robertson also stated that the Government had been kept in power by the force of the caucus. I may inform him that the fate of the Government has never received any consideration at the hands of the Labour Party. Unlike other parties in this House, we have a political programme, know what we want, and make no departure from the principles which we have agreed to support. In the first place, we go to the electors and invite them to formulate their claims. We then pledge ourselves to carry out the programme upon which they decide, as speedily as we can, and we are as strictly bound to adhere to that programme as free-traders and protectionists are to support their fiscal principles. A member of the Labour Party could not be recreant to his principles without being false alike to his party and to his constituents. Unfortunately, some politicians have been in the habit of making promises without seriously considering how they could be carried out, with the result that they have been obliged to substitute expediency for principle. Honorable members have been ranged on either side of the fiscal question, but so far as general legislation is concerned, particularly that of a social character, they have had no policy, and have been moved to action solely by the pressure of their environments. The Labour Party has proclaimed its political platform throughout the whole of the States, and place and power have never occupied a line in that programme. Its members have always been prepared to support those who were willing to legislate in accordance with its views. It has not attempted to " squeeze " any side in politics, but the governing powers, both in the States and the Commonwealth Legislatures, were perfectly well aware that if they wished to secure its support they must give effect to its programme. That is the only influence which has been operative in the Parliaments of Australia. There is absolutely no foundation for the charge which was made by the Minister for Home Affairs that the Labour Party has " squeezed " the Ministry. It has merely given expression to political thought outside of this House. It may be mistaken in its view of what would be the effect of its programme if put into operation, but, nevertheless, its members are pledged to that platform. Whilst they make principle their main consideration, if it falls to their lot to assume a more responsible position in this Parliament, I have no doubt that they will rise to the occasion. Nevertheless, it cannot be denied that hitherto the charms of office have not weighed with the Labour Party, and I hope they never will. I trust, therefore, that we shall hear no more of the allegation that some of its members have been coerced into voting against their own consciences. I ask the honorable member for

Robertson to recollect that some members of the Labour Party, who, like himself, are staunch free-traders, can give as good an account of their attitude on the fiscal issue as he can. We fought the Government on that matter, and supported the Freetrade Party. The Tariff would have been very different from what it is to-day had it not been for the action of the Labour members. It would have been very much more on the lines on which it was originally framed. Whilst the honorable member for Robertson may claim that the Free-trade Party was instrumental in reducing the ^burdensome items of the Tariff, I hold that no reductions could have been secured without the assistance of the Labour Party, freetraders and protectionists alike.


Mr Willis - We had not the assistance of the protectionists.


Mr BROWN - Yes. The protectionist members of the Labour Party voted in favour of reductions in the case of a large number of heavy protective duties, and in that way assisted to bring about material changes in the character of the Tariff. I trust that honorable members will be fair to each other. We have had some very warm fights in this Chamber, but the Labour Party has always fought fairly, and to charge its members with being the enemies of the Constitution, and with sacrificing their free-trade principles, is, to use a pugilistic phrase, "hitting below the belt."







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