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Thursday, 23 August 1906


Senator MILLEN (New South Wales) . - If we have power to restrain corporations from doing the public an injury, I shall be quite willing to exercise it. Therefore, I can, at least, say that in the arguments I am about to offer, I am not allowing the wish to be father to the thought. I have listened to the discussion with a view to satisfying myself as to the vote which ought to be given. It is contended that each one of the various legislative powers contained in section 51 ' must be regarded as separate and complete in itself, and that, therefore, while under paragraph i., we have a general power with regard to trade and commerce, yet, under other paragraphs, we may, also have trade and commerce powers, so far as they are carried on or affected by the particular individuals or subjects dealt with therein. Under paragraph xx., which deals with foreign corporations and trading or financial corporations formed within the limits of the Commonwealth, it is contended that we have absolute power to legislate - not merely as to the way in which corporations shall lie formed and registered, or what particulars they may publish, but as to everything which they may do or refrain from doing. If we have the power to regulate the commercial and trading operations of a corpora tion, then I want to ask honorable senators where it will land us ? Let us take, for instance, paragraph xxxv., dealing with conciliation and arbitration -

Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

That is exactly on all-fours with paragraph x., which reads -

Trade and commerce with other countries and among the States.

The two paragraphs are on all-fours, inasmuch as there is. the same limitation which prevents us from legislating unless the subjectmatter extends beyond the boundaries of any one State. I go a step further, and say that if having the power to deal with foreign corporations, we have the right to deal with their trading and commercial undertakings, so we should have the right to bring them under an arbitration law different from that which prevails for the rest of the community. We could have an arbitration law which was limited by paragraph xxxv. to " industrial disputes extending beyond the limits of any one State," but if a corporation in Melbourne had a dispute with its employes, which did not extend beyond its own factory, we could claim the right to bring it under our arbitration law, because we have full power to deal with corporations.


Senator Drake - Hear, hear ! The Minister of Defence and Senator Keating said that there is no stopping place.


Senator MILLEN - There can be no half-way house in this matter. I was not present when Senator Symon submitted a proposition by which he sought to measure the accuracy of the Government's intention, but I understand that Senator Keating agreed that any one married under a Federal law-


Senator Keating - We have the fullest power to regulate the conditions of marriages and' the consequences.


Senator MILLEN - And not their trading?


Senator Keating - And our regulations might involve the question of separate trading.


Senator MILLEN - That is exactly as I understood the matter-- that we have the right to deal with marriages as with arbitration. Suppose that we passed a marriage law. If the contention of my honorable friend be correct, any one who was married under that law could be dealt with under the trade and' commerce power. Have we a right to say to those who are married under a Federal law, " You shall be under certain trade restrictions within the State in which you live?"


Senator Keating - What I said was that we could attach, certain conditions .and consequences to marriage within the Commonwealth if we legislated with regard to that subject.


Senator Drake - Even in> regard to trading operations?


Senator Keating - They might affect trading operations.


Senator MILLEN - Do honorable senators suppose that it was ever intended that the Commonwealth Parliament should have power to legislate with regard to marriage and divorce, so as to provide in a monstrously absurd fashion how people who were married should conduct their trade?


Senator Playford - This is utterly absurd ! Of course, it is possible to reduce anything to an absurdity.


Senator MILLEN - It is not necessary for any one to make an effort to reduce things to an absurdity, so far as this Bill is concerned. I go back to my original instance. I ask Senator Best to say, if the interpretation that he gives of the point under discussion be correct, whether be will deny that we can, so far as foreign corporations are concerned, claim the right to deal with an\ industrial disputes that thev may have?


Senator Best - Undoubtedly, I deny it.


Senator MILLEN - If Senator Best affirms that each of the paragraphs in section 51 is absolutely complete in itself, and that so far as they give us power to legislate, we can legislate in and over and around the subjects, and if he then tells me that while we can restrain the trade of a foreign corporation, or a banking corporation, we cannot also deal with any industrial disputes which thev may have - all that I can say is that his argument is utterly incomprehensible.


Senator O'Keefe - Does Senator Millen contend that if Senator Best's argument is correct, we have a right to deal with foreign corporations under the paragraph respecting conciliation and arbitration?


Senator MILLEN - Exactly. We have absolute power to deal with a corporation, but we cannot touch, it in respect of industrial disputes unless they extend from one State to another.


Senator O'Keefe - Section 51 lays down a limitation with regard to industrial disputes, but it does not make any limitation with regard to corporations.


Senator MILLEN - We have absolute full and complete power to deal with foreign corporations restrained only by the limitations we find in section 51. We have absolute power to deal with foreign corporations in respect of disputes with employes limited by paragraph xxxv. We have absolute power to deal with, the trading of a corporation limited by paragraph 1. If there is a. limit in the one case there is in the other; and if there is no limit in the one case there can be none in the other. Yet Senator Best assures us, on his reputation as a lawyer, that while we must read paragraph xx. side by side with paragraph xxxv., dealing with conciliation and arbitration, we are under no obligation to read paragraph xx. side by side with the paragraph that deals with trade and commerce. I have never, in the course of not a few years of parliamentary experience, heard arguments put forward which have so little substance in them, but which at the same time have met with so rapid an acceptance. I can only assume that honorable senators have allowed the wish to father the thought before looking into the matter carefully, and arriving at a cautious conclusion. I am anxious to restrain corporations or any one else from doing a public injury. But I believe that in this case we are acting against the Constitution, and are trenching upon the domain of the States. I appeal to honorable senators to consider this matter very carefully. It has often been said that the special function of the Senate is to protect States rights. From that point of view this is a very serious matter. I believe that the majority of the members of the Senate recognise the obligation that rests upon this Chamber, and that if they could be shown that this was a provision that did entrench upon States rights they would' be with me in resisting it. But there is a doubt; and what is our duty in that case? It appears to me that we, whose special function it is to protect States rights, should in a case of doubt hesitate until we have an opportunity of satisfying ourselves upon the question in dispute. I am riot prepared to believe that the Government would desire to hurry honorable senators to a decision before there has been ample time to consider the point.


Senator Playford - I wish there was a little hurry !


Senator MILLEN - The Government has been trying to hurry matters, but more haste does not always mean more speed. The Minister cannot dispute my contention that there is a danger. If there has been any delay he has been largely responsible for resisting quite inoffensive amendments. I again appeal to honorable senators to recollect the special functions of this Chamber, and if there is a doubt, to give the benefit of it to the States whose interests they are supposed to protect.







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