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Tuesday, 31 May 1904


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - I admit at once that I cannot say that. But, as there is a long list of amendments, there must be, in some respects, a remodelling of the Bill.


Mr Hughes - To the best of my knowledge, they do not affect the matters to which the honorable member refers.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - They may not have a direct bearing to the honorable and learned member's mind, but a number of us would feel more satisfied if an assurance to recommit were given. The Government would be quite right in opposing a recommittal if we had had an opportunity since the Bill has been in the hands of the present Government of considering the questions raised in the amendments.


Mr Watson - There is no objection lo recommit the clauses preceding that under consideration.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Many of the observations made by the Prime Minister have been replied to, and I shall not take up the time of the Committee by repeating the arguments. I will merely allude - to what the honorable gentleman said, to the effect that those who supported the amendment of the honorable and learned member for Corio would be acting as though they were determined to kill the Bill. Although I am an opponent of the proposal of the honorable and learned member for Corio, I in no way seek by indirect means to kill the measure. I made my attitude perfectly clear to the House on a former occasion. No one desires to see strikes abolished - whether they be on the part of States employes or private employes - more ardently than I do. I doubt, however, whether such a measure as this will accomplish that end. I consider that it would be better to wait until we have had some experience of Acts already in existence such as the New South Wales Act. In the light of that experience we could probably arrive at a more effective measure for accomplishing the purpose thai those who support this measure - honestly I believe - desire to accomplish. But I accept the decision of the House. So far as I am concerned resistance to the Bill had gone when the House, by a large majority, accepted its general principles. I shall do nothing to destroy the Bill, but shall adopt such an attitude as will, in my opinion, make it a better measure and more effective for the avowed purpose of those who are supporting it. I think that most honorable members are taking up that attitude. They made their position clear at an earlier stage.- I have no doubt that they will honestly support anything which they consider will have the effect of improving the Bill. The Prime Minister has said that my statement that he had abandoned his position in connexion with the States servants was not justified. I should be very sorry to misrepresent the honorable gentleman in any way. But I will read a few lines from the remarks of the present Minister - of Trade and Customs when he was moving the amendment which led to the defeat of the late Government. I will also read a few lines from the speech of the Prime Minister in support of that amendment. , As has already been pointed out, the amendment did not merely propose the omission of certain words, although the division was taken on the question of their omission. We also had to deal with the words proposed to be inserted. What were they ? The words would have made the clause read: -

And includes a dispute relating to employment in the Public Service of the Commonwealth or of a State, or to employment by any public authority constituted under the Commonwealth of a State.

The arguments used throughout the debate were to the effect that there should be no restriction on the part of this Parliament with regard to the provisions of the Bill - that the fullest powers should be claimed, and that it was only after they had been claimed that the High Court should settle whether Parliament possessed those powers. It was said that any relinquishing of that position would have an influence on the High Court, and that it ought to be shown by every means which we possess that our reading of the Constitution was that the Federal Parliament could, under its conciliation and arbitration powers, control all States or Commonwealth servants. It was urged that any withdrawal from that position was a sign of weakness which would lead to the defeat of those who supported the amendment moved' by the Minister of Trade and Customs. But what was said to-night? It was contended that we cannot go beyond the meaning of the word " industrial " in the Constitution. The Prime Minister used these words: - "That he, in his position, and his Ministry, must observe the Constitution in regard to the manner in which they interpreted it;" that is to say, that they must create an interpretation of the Constitution for themselves. -


Mr Watson - Every Ministry is bound to do that. I suppose?


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) -I will show that the late Ministry were rebuked for doing it. The late Prime Minister argued that the late Government must themselves interpret the Constitution, and, having done so, must in their measures stand by the meaning which they applied to it. Why were the Deakin Ministry attacked for adopting that very attitude ?


Mr Watson - I think that I attacked them only because they made a vital question of it six months ago.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - I do not say that the Prime Minister attacked them. At the same time, I can quote his words to show the opinions which he entertained.

He, too, has changed his views on some matters. When he spoke on this subject he said -

But the question which is immediately at issue - that of whether we have power to extend the provisions of this Bill to the public servants of the States, and of the Commonwealth, admits of no doubt whatever-


Mr Watson - 1 was referring then to our general power.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The honorable gentleman continued - because the limitations and exemptions which appear in other sub-sections of section 51 of the Constitution are 'absent - and I say significantly absent - from this particular provision.


Mr Watson - I was speaking there of the general power of the Commonwealth to include within the scope of the Bill any civil servants. That was the point at issue.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The power to include any of the public servants of the States would, I take it, mean the power to include all.


Mr Watson - Not necessarily. The question then being argued was as to whether the Commonwealth have a right to include even the railway employes.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - If we have power to include any of the public servants we must have power to include all.


Mr Watson - That depends on the interpretation which is placed on the word " industrial."


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The Deakin Ministry was taken to task for refusing to allow the High Court to decide this matter. On that occasion the Minister of Trade and Customs said -

It is illogical to include railway servants within its provisions -

They are included in this Bill - and to exclude from its operations the employes of printing offices, wharf labourers, dock labourers, and others.


Mr Fisher - They are all included in this Bill.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The honorable gentleman continued -

Let us include the whole of them. Let us wipe away all restrictions, and allow the High Court to determine whether or not our action is constitutional.


Mr Fisher - Does the honorable member argue that the term " industrial " may not cover the whole of them ?


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - On that point I am prepared to accept the opinion of the Prime Minister and the AttorneyGeneral, who both say that it will not. They urge that such large Depart ments as the Customs, which is under the control of the Commonwealth, and the Education Department, which is in the hands of the States, will be excluded. Personally, I am inclined to* think that they are right ; but, in such matters, I do not set the same value on my own opinion as on that of the Attorney-General. The Ministry therefore, speak to some extent with two different voices. I should not take exception to the utterances of the Minister of Trades and Customs, who, doubtless, on many questions, has to subordinate his individual opinion to that of the Cabinet majority, were- it not for the fact that the whole Ministry previously entertained and expressed the same ideas. I remember the Prime Minister asking, by way of interjection - I do not know whether he did it in the course of his speech, because I am speaking from memory and not quoting from Hansard - "Why not allow the High Court to decide this matter?" That is a change of position which, I think, fully substantiates the accuracy of my statements, when speaking on the policy of the present Administration. The AttorneyGeneralhas urged that the whole of the decisions of Chief Justice Marshall on questions as between the State and Federal Governments were based on the principle that one Government may. assist another, but must . not hamper it. From that stand-point, he argued that it was not only right, as a matter of expediency, to include in the provisions of this Bill certain public servants of the States, but that it was perfectly constitutional. I wonder what could be more hampering to a State than the Government proposal ? The States Legislatures naturally exclaim - " The railways have been left in our hands. We are representatives of the people just as much as is the Commonwealth Parliament." Marshall did not say that the Federation could not hamper private concerns. As was pointed out by the Attorney-General, he based his decisions on the ground that one Government should not do anything to hamper another, unless that Government had agreed to be so hampered. "What," they ask, "could be more hampering to States than to have the control of all these services, which the Constitution specifically left in their hands, practically taken away from them. Naturally they urge that such a step ought not to be taken. They ask, " Can it be taken in the absence of specific warrant for it in the Constitution?" I shall be surprised, indeed, if the High Court decides that it can.

The very fact emphasized by the AttorneyGeneral as constituting the basis of Marshall's judgments, and which the honorable and learned gentleman used as an argument in favour of the inclusion of State public servants, is, to my mind, an argument in favour of the illegality of such a step. If the Ministry entertains the . idea that all State public servants who can be constitutionally included within the provisions of this Bill, will be so included if the amendment proposed by them be adopted, where is the need for specifically naming the railway employes? Consequently that plea, which is raised by a new special pleader on a new side - I refer to the honorable member for the Hume - falls to the ground. The Minister of Trade and Customs said that, in his opinion, the amendment would include almost all State and Commonwealth servants. The honorable member for Hindmarsh said that none of the speakers had mentioned any body of State or Commonwealth servants that would be excluded. According to the dictum of the Prime Minister, and also of the AttorneyGeneral, such enormous Departments as the Commonwealth Customs Department, the Departments of Home and External Affairs not so large, but still of some size and growing, the Education Departments of the States, and many other State Departments, employing thousands of hands in one State alone, are excluded. If there be occasion for an alteration of the Constitution, it must be when it is shown that injustice exists. The inequality of this proposal is shown by the fact that a clerical hand in the Railway Department, or in the Post and Telegraph Department, will, in the opinion of these honorable gentlemen, come under the operation of the Bill, whilst clerical hands in other Departments to which I have referred, doing practically similar work, will not. A man in the Post and Telegraph Department who is engaged only in handling mail-bags, will come under this provision, whilst men in the Customs Department handling packages, seeing them opened, and examining them, will not. There is a marked inequality there, and although I am against the interference with the States Governments involved in the inclusion of States public servants, I am still more against, and would remove, if I could, the inequality involved in bringing some States and Commonwealth public servants under this measure, and allowing others, similarly placed, and equally entitled to consideration, to re- main beyond its pale. I again emphasize the statement that, considering that this is not the Bill of the late Government, or,, at any rate, that, taken with the schedule of amendments submitted, it is the Bill of the present Ministry, it ought to" have been introduced in the ordinary way as a new measure, and should have gone through a second reading, in the course of the debate on which we might have had information laid before us which we ought to have before we deal with the clauses in detail. A few words suggested as an amendment to a clause do riot always fully disclose the intention or effect of the amendment. I contend that we should have had a full statement as to an opportunity of considering the words of each particular amendment, and the effect of the alterations which the present Government propose in the Bill.


Mr Watson - There are not many important amendments proposed.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Some of the amendments proposed may not be important, but one or two of them appear to me to involve considerable alteration in the measure.


Mr Watson - I admit that.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - I confess that I have not had time to carefully consider all the amendments. I am not complimenting the Prime Minister when I say that he can make a very clear explanation. If the honorable gentleman could, even now, under the forms of the House, or by special permission, make a statement regarding all amendments of importance, their intention and effect, it would, I am sure, be of much assistance to the Committee.







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