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Thursday, 21 April 1904


Mr HIGGINS (Northern Melbourne) - I spoke on the motion for the second reading of this Bill, and gave my views on the proposal involved in the amendment under consideration. I should not have risen now except that this is my only opportunity of dealing with some animadversions of the Prime Minister on my speech. I may say, in the first place, that within my experience this is the most good-humoured political crisis I have ever known. I think we recognise that that is owing very much to the urbanity ' and courtesy of the' Prime Minister. But there is another reason which, if possible, goes even more deeply as a cause, and that is, that it is recognised that, whatever faults those who support the amendment may have, they are not engaged in a vulgar grab for office, as has been the case in so many of the crises one has known in the States Parliaments. It is to the credit of the Parliament of Australia that the first crisis of this kind has been marked by such excellent temper. There is not a vulgar grab for office, and there is not an attack upon the Government. Expressions have been used by the last speaker which I regret. The honorable and learned member will do himself more justice if he recognises that this is not a vote of want of confidence. What has happened is" that the Government wish certain words which have been inserted in the Bill to be carried. The principle of the Bill has been affirmed on its second reading. A certain compact body in the Committee says - " We do not desire to have these words in the Bill." They adopt that attitude and are acting in accordance with their well-thought-out views, whether they be right or wrong. The Government then says - "We will resign, and throw up the reins of office, unless those words are retained." When we consider that one of the principal reasons which the Government has for opposing the amendment is that if it be carried it will be nugatory, what on earth ground have they for resigning? Surely there never was a crisis and a displacement of a Government for such a little reason as this. If the provision will be nugatory if carried, why not have it tested ? It will also be noticed that the Prime Minister has not - and very advisedly has not - said that he disapproves on principle of giving the Arbitration Court power to deal with public servants. He has put it merely that he doubts whether there is power; and secondly that it is inexpedient at the present stage. I do blame the Government for taking this attitude. Constitutionally a Government ought not to resign even if it does not carry its Acts exactly in the form in which it wants them, provided it can, in its opinion, decently carry on the King's Government. Our constitutional position in Parliament will become ridiculous if, under such circumstances as these, where there is a popular Prime Minister, a Government which enjoys the general confidence of the House resigns for the mere reason that it wants to get a certain clause put into a Bill after the second reading of that Bill has been agreed to, and to reject an amendment which, if carried, will be nugatory. I think the Prime Minister will recognise that I have given an honest and independent support to the Government. I do not want the Government to be turned out. No matter what Government takes office they will be hemmed in by the banks of fate and necessity. Under our system of responsible government they will have to go in a certain course and with certain currents. This present Government would do the work as well as any that could be chosen from this Parliament. With regard to myself, however, the position is that the Prime Minister has flung at me a word which I do not like. Notwithstanding all his courtesy, he has called me - using a big word - a " unificationist."


Mr Deakin - It is not a good word, I admit.


Mr HIGGINS - It is a barbarous word, and the use of it is a barbarous unkindness to me. There are two ways of arguing. One is' to attack the argument; the other is to attack the arguer. I cannot find in the speech of the Prime Minister, which I have read with care, any attack upon my arguments, but merely an attack upon the poor arguer, showing that he is not a fit man to present such an argument to the Committee.


Mr Deakin - Oh, no.


Mr HIGGINS - I think the Prime Minister has attempted to prejudice the arguments of those who are against him on this issue by making out that they are not loyal to the Federal system. I deny that. It is quite true that, throughout the Convention and afterwards, I insisted that the people of Australia were capable of a far greater degree of unity than was given to them under the Constitution.


Mr Deakin - That is all that I intended to convey.


Mr HIGGINS - The word " unificationist" would imply that I wanted to get all the legislative power of the Commonwealth in the hands of the Federal Parliament. I have never taken up that position. I say, let us obey the Constitution ; let the Federation keep to its powers, and let the States retain their powers. If it should turn out that it is not within our province to do as we desire, we can loyally submit.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - Let the High Court decide.


Mr HIGGINS - Yes. The matter could be disposed of very easily. The Prime Minister refers to that section of the Constitution which provides that the powers of the States, so far as they are not expressly transferred to the Federation, shall be reserved to the States. The point, however, is that no Stale had power to deal with quarrels extending beyond its own borders. Another statement of the Prime Minister was that I had expressed contempt for the decisions of the American Judges.


Mr Deakin - Thai is, as applied to our Constitution.


Mr HIGGINS - I do not think that the matter was so put by the Prime Minister. It is very easy to make a correction now. The impression conveyed by the Prime Minister was that, from my humble position, I had expressed contempt for the great series of decisions of the American Judges.


Mr Deakin - I did not intend to convey that.


Mr HIGGINS - The effect of the Minister's remarks was as I have stated. I think that the decisions of the American Judges, which are useful and valuable, have often been the decisions of statesmen rather than of lawyers. I do not wish to undervalue lawyers under present circumstances, but I do not see where the contempt lies if I say that the decisions of American Judges have sometimes ignored the distinction between the position of lawyers and that of statesmen. What a tremendous expansion these decisions have given to the trade and commerce sections of the United States Constitution, under which the Federation has power simply to regulate trade and commerce. What have the Federal authorities done? They have taken under their control all navigation, even that upon the Hudson River, which passes through the State of New York alone. They have also taken over the control of immigration and transportation of all kinds; they have created an Inter-State Commission, and so on. The Constitution contains no provision to enable them to deal with these matters. I should like to know what members of the Convention of 1779 thought that such powers could be exercised under the Constitution. A number of honorable members appear to forget that if they want to take jam, they must sometimes also take the pill that is in the jam. That is what the Minister for Home Affairs, the only representative of Western Australia, seems to forget. Sometimes, when you are willing to swallow a certain clause, you forget that there may be certain concealed powers which will come to light in the course of time. Let me cite, for instance, the tremendous expansion given to the sections of the American Constitution in connexion with banking. From the mere power to levy taxation and borrow money the

Supreme Court of the United States have inferred the power to create a national bank - a bank of issue. Take the greenback case, in which the most extraordinary series of judicial decisions were given. First, the Supreme Court decided that no power to issue paper money was conferred upon the Federal Government by the Constitution. . Afterwards, the Bench was carefully packed, and the question was again submitted to the Court, which decided that paper money could be issued under the exercise of the war power in 1865. In 1884, when the war was over, and there was no excuse for issuing greenbacks, and no excuse for saying that the right of issue was in any way dependent on the war power, the Court decided that the issue of greenbacks was justified, by virtue of the power to borrow money conferred by the Constitution. I think that I am justified in saying that I have not expressed contempt for the American decisions, in alleging that the great Court of the United States - one of the greatest in the world - has diverged from the strict duty of legal interpretation and application, and has taken upon itself the wider duty of legislation. I stated that the Court had declared what the Constitution ought to contain, rather than what it did contain.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - The safety of the Constitution was secured by that means.


Mr HIGGINS - The honorable member is quite right. The Constitution was strained to breaking point in the " sixties," and it would have reached that stage at an earlier period if the decisions of the Court had not amplified the Constitution. Now, to revert to my duty. The proposal of the Government is to leave the States railway servants in possession of the power to strike, whilst taking it away from other employes. If honorable members will look at clause 6, they will see that it is provided that -

No person or organization shall, on account of any industrial dispute, do anything in the nature of a lock-out or strike, or continue any lock-out or strike. Penalty : ^1,000.

By the definition of "industrial dispute," railway servants are excepted from the operation of the Bill, and, therefore, they will not be deprived of the power to strike.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Under a similar law in New South Wales, workmen still have the power to strike.


Mr HIGGINS -- I am speaking of the Government proposal.


Mr Lonsdale - If workmen do not form themselves into industrial organizations, they still have the power to strike in New South Wales.


Mr HIGGINS - I submit that the proposal, of the Government is to make it penal for any employes, except those in the Public Service and the Railway Service, to strike. Therefore, the employes on the railways will still have the power to strike. Looking' abroad, and considering the extent to which industries have been placed under State control, and the tendency - whether it be right or wrong - to extend such control, I must say that if the meat number of employes in the Public Services of the States are to be exempted from the operation of the Bill, the Arbitration Court will be maimed, crippled and deformed, and be rendered to a large extent useless. I have been to Broken Hill, and I am sure that the honorable member for Barrier will bear me out when I say that there is a fence along the border between South Australia and .New South Wales. I have seen there a private railway running from Broken Hill to the New South Wales border, and a public railway running from the border through South Australian territory to Adelaide. Now there was recently a great drought in the Barrier district, and water for domestic purposes had to be conveyed in tanks from the sea coast over the public railway to the New South Wales border, and thence by means of the Silverton tramway - a private line - to Broken Hill. Suppose that during a time of drought a strike occurred among the railway employes on both the public and private lines. Under the Bill, as proposed by the Government, the Arbitration Court would be powerless to interfere in the dispute between the South Australian Government and its railway servants, because their jurisdiction would be limited to the dispute between the Silverton Tramway Co. and its employes. I submit, therefore, that when applied to a case of that sort, the power proposed to be conferred to compel peace, by the application of the law of reason, becomes mutilated. Where could there be peace, and whence could the people of Broken Hill obtain their supplies of water if the Arbitration Court had not a full power of control in such a case?


Mr Conroy - Are not some things much worse than strikes, as, for example, the condition of a body of men who cannot strike - who are mere niggers and slaves?


Mr HIGGINS - I contend that the Constitution does not draw a line of demarcation between Messrs. Cobb and Co. and Mr. Tait - bet ween the proprietors of coaches and the Chief Railway Commissioner. The true line of demarcation must be drawn between those troubles which arise in the course of a definite industry, and those which do not. Let us imagine - as is quite possible - that one State of the Commonwealth embarked upon the tobacco industry, and that the other five States did not. Let us further suppose that trouble arose with the employes engaged in that industry in the different States. How could we deal with five States, hampering the private employers in them, without at the same time controlling the State Government which carried on the industry? At the time of the Federal Convention there were plenty of State industries in existence. I understand that in Queensland the Government has given power to municipal bodies to engage in all sorts of enterprises, and it is very probable that these will be multiplied rather than diminished. How are we to preserve the " peace, order, and good government of the Commonwealth," unless we are able to apply the powers of conciliation and arbitration to these industries as well as to others? I do not think that the Constitution was designed to favour State enterprises at tlie expense of private industries. That is what the Government really desire. They wish to bind the private employer, . and to allow the State employer to go free. I think the result will be very curious if those honorable members who favour the establishment of State industries work against the interests of the State employer, whilst those who, like the Prime Minister, oppose this amendment, really assist those industries. In conferring this great power upon the Commonwealth Parliament I hold that the Convention meant it to be an effective power. But it cannot be effective unless we are able to control all who are engaged in industry, irrespective of whether they are in Government employ or not. The Prime Minister asserts that we are exchanging the substance for the shadow. I maintain that, to a large extent, we shall be giving up the substance for the shadow if we exclude from the operation of this Bill the biggest body of employes in Australia. A number of cant phrases have .been used during the course of this debate. The honorable member for Darwin spoke well as to the absurd way in which it has been attempted to apply the' principle of State rights. If because the Crown is not expressly named in the sub-section of the Constitution relating to conciliation and arbitration in the case of industrial disputes, we have no power to deal with the public servants of the States, what will happen as regards any quarantine legislation which we may enact ? Under the Constitution we have power to make laws concerning the matter of quarantine. But no mention is made in sub-section ix. of State officers or State ships. Let us suppose that an outbreak of small-pox occurred amongst either the passengers or crew of the Lady Loch, or some other vessel belonging to a State Government. What would be the position if the Prime Minister's contention were right? When the ship entered Port Phillip Heads she would be boarded, and the medical officer would order her into quarantine. The officers on board could then say - "Oh, no; we are the servants of the State; why should we be placed in quarantine?" Yet, according to the Prime Minister's exposition of the law, in no sub-section of section 51 of the Constitution is the State or its officers included, unless they are expressly named.


Mr Deakin - I said that the State or State officers must be named, but not State citizens.


Mr HIGGINS - Does the Prime Minister mean to say that there is no power under our Constitution to deal with a case such as I have mentioned? Of course. I have carried the matter to a reductio ad absurdum. If a specific reference to a State or the State power is necessary in each of the sub-sections of section 51, it follows that there must also be a specific reference in regard to the question of quarantine.


Mr Deakin - But the Government officers upon a ship would not contract smallpox as State officials, but as individuals.


Mr HIGGINS - Then, again, we have power to make laws in regard to currency and legal tender. But are we to assume because no mention is made of the King, or the King's change, that if a person gives me a bad sixpence I cannot proceed against him? If that view is correct, where are we to draw the line? It is the merest pedantry to attempt to hamper us in regard to this proposal. If we believe in it. let us try it. No harm can result from that. If we do not believe in it, let us say so. Throughout the whole of .the Constitution there is a strong indication of a desire to include almost every matter with which a Parliament can deal,, and, where anything is not included, to make a specific exception in its favour. For example, covering section 5 says -

The laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted.

If, in the absence of the concluding words of that provision, it was intended that ships of war should be exempted from its operation where was the need for this specific exception? Personally I think that the most interesting contribution to the present debate was the speech of the Minister for Home Affairs. It came with a breezyfreshness from the West upon our sultry discussion. Whilst listening to the right honorable gentleman I was irresistibly reminded of the old saying, " When he gets the kettle in hand he soon makes the water boil." The right honorable gentleman harped very much upon the intention of the framers of the Constitution. But, as has since been pointed out, the opinions which he entertained at the Federal Convention are of no importance now. What he assisted to place in our Constitution, however, is important. He helped with his team to swell the majority which we had in support of the clause, and we now intend to exercise our powers under it, so far ais it may be advantageous to the people of the Commonwealth to do so. In this Bill we are taking the power to deal with widespread struggles in the case of shearers, 'seamen, and others which threaten society at its very base. We are also declaring that to strike shall be an actual offence. It seems to me, however, that in the opinion of the Government, if a difficulty arose in regard to the railway servants of the States, rendering it impossible for the public to travel by rail from place to place, or State to State, and for even the mails to be carried, we should be helpless - that no remedy would be open to us. If the Constitution were clearly against this amendment, I should willingly 'submit to the position taken up by the Government ; but if it is not clear, and our power is challenged, we must assert that power, and leave the question of constitutionality to be determined in a peaceful way. We ought not at the first show of fight against our powers to surrender what we believe to be a right that has been placed in our hands. The system of Conciliation and Arbitration has come to stay and to be developed. It has, perhaps, extended further in Australasia than it has in other countries, but the fact remains that it is spreading in other lands. In 1900 a Bill was parsed in Canada to provide for concilation and arbitration 'in ordinary disputes, and I find that on 10th July, 1903, a measure was passed in Canada to " aid in the settlement of Railway Labour Disputes."


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - By compulsory or voluntary arbitration ?


Mr HIGGINS - The arbitration is to be compulsory upon the signature of the Minister. Resort is to be had in the first instance to conciliation, but section 5 provides that -

In case the Conciliation Committee is unable to effect an amicable settlement by conciliation or mediation, the Minister may refer the difference to arbitration under the provisions of this Act.

The resort to arbitration rests on the will of the Minister,* and not on the will of the contending parties. There are words in the recital of the Act which appear to me to be pregnant and applicable to Australia. The recital sets forth that -

Whereas from time to time differences may arise between railway companies and their employes which the parties thereto failing to adjust, may result in lock-outs and strikes; and whereas railway lock-outs and strikes may interfere with the proper and efficient transportation of mails, passengers, and freight, interrupt the trade and commerce of the country, cause railways to fall into disrepair, to the danger of the lives of passengers and employes, and in various other ways occasion serious injury both public and private : and whereas it is desirable to aid in the settlement of such differences. Therefore His Majesty- enacts, and so forth. These are the very' difficulties that we have to fear in Australia. Every civilized country is dealing with this problem; but the principal reason for the contention that the provision in the Constitution does not apply to States servants relates, forsooth, to some old maxim that the Crown is not to be bound except by express words. It is a grave mistake to assume that that maxim applies to the powers given by our Constitution. The old maxim was that if a statute interfered with property or rights, the Crown was not to be bound except by express words. But this is not a case in which it is proposed to interfere with the property, or to curtail the rights, of the Crown. It is rather a case in which it is sought to extend the rights of the Crown - to give the King power, with the assent of two new Houses of Parliament, to make laws having a range that prior to Federation was impos sible. The whole theory of the Federal scheme is that the King was unable, with the consent of the individual States, to effectively make laws for Australia as a whole. Under the Constitution of the Commonwealth that disability has been removed, and thus the question with which we are confronted is not one relating to the binding of the King. It is rather a question of whether he should be enabled to bind others. The amendment, if carried, will be of advantage to the King, who is charged with the custody and peace of this country, in carrying out his great responsibilities and great aims. It will be an advantage to him to possess this means of preventing those" sad industrial strikes which appertain to his own servants as well as to others.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - We are seeking only to preserve the King's peace.


Mr HIGGINS - Exactly. I find that the principle in regard to the Crown not being bound except bv express words has been applied in the United States, save that in place of the word " Crown " the word " Government " is used. In Black's Interpretation of Laws, English authorities are quoted, and it is set forth that -

It is probably more accurate to say that the Crown is not excluded from the operation of a statute where neither its prerogative rights nor property are in question.

The position is different if the statute is for the benefit of the Crown. Black points out that -

It must also be observed that, although the State is not to be bound without express words or necessary implication, the same reasons do not apply when the question is as to the right of the State to take the benefit of a new law not expressly made for its advantage. Here the presumption is rather the other way ; and the Courts incline to give the Government the benefit of new rights and remedies wherever applicable. When general rights are declared, or remedies given by statute, the Government is generally to be included, though not named.

I think that all this pedantry - and I cannot refrain from so describing it - about the Crown not being bound except by express words may be safely ignored by the Committee. I would not venture to speak positively on these questions in view of the fact that there are others at least equally as competent as I am to express an opinion, who hold a different view. At the same time, I would say that I have listened very carefully to the debate, and that any doubts which I had when I first addressed myself to this question have been much lessened by what I have heard. It is remarkable that the opposition to this proposal is based on so many different grounds. We had the honorable member for Bendigo stating, I believe, that he approved of the application of this principle to State servants, but that he was bound under the Constitution not to agree to its extension to them. The honorable and learned member for Indi informed us that he had not made up his mind on the question of law, but that if we had the power he would disapprove of applying it. Then the honorable and learned member for Corinella informed the Committee that he had not considered the question of the advisableness of extending the Bill to the public servants, but he conceived that, as a matter of law, we had not the power to do that. The Prime Minister has not denied that he approves of the extension of the principle, if it be lawful to do so; but he says that it is not expedient in the present circumstances to apply it to the States' servants. We have, therefore,' opposition to this amendment on various grounds. I hope that those who vote for the amendment will be united not only in regard to the question of law, of which after all we are only second-rate judges, but as to the expediency of applying this principle to the great Public Services of Australia iti







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