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Wednesday, 11 December 1912


Senator FINDLEY - Half of the people have not any effective voice in the Upper Houses of Australia.


Senator MILLEN - Am I to take it, then, that if the State Parliaments were constructed upon a basis sufficiently democratic to satisfy Senator Findley, he would say that these proposals were unnecessary ?


Senator Findley - That is an aside. The honorable senator has been arguing that the people have self-governing powers through their State Governments.


Senator MILLEN - It is clear that my question has swept the Minister " aside." What I want to nail him to is this - Are these alterations proposed in the. Federal Constitution because the State Parliaments, as at present constituted, are not elected in conformity with his ideas of selfgovernment? Is that the reason?


Senator Findley - I am asking the honorable senator to qualify his previous statement.


Senator MILLEN - I am dealing with what is proposed here now, and I repeat that taking away from the people powers which they have exercised through their State agencies, in order that they may be able to exercise them through the Federal agency, does not in any way enlarge those powers.


Senator E J RUSSELL (VICTORIA) - The powers cannot be exercised properly by the State Parliaments because of the Legislative Councils.


Senator MILLEN - I quite recognise the skill with which, when one raises one question, honorable senators opposite seek to meet it by asking another. I shall repeat my proposition - that you are not going to enlarge the power which the people enjoy by these proposals. You will not confer upon the Federal Parliament one atom of power which the people do not already possess.


Senator Givens - But we shall enlarge the power of the people.


Senator MILLEN - I take my honorable friend to mean that the people of Tasmania will have the right to determine that certain things shall be done affecting the people of New South Wales, whilst in return the people of New South Wales will have a right to determine what shall be done in regard to the concerns of the people of Tasmania. If that as his idea of enlarging the powers of the people, he ia welcome to his opinion.


Senator Givens - The powers are not exercised, and cannot be exercised under present conditions.


Senator MILLEN - Some of them may not be exercised.


Senator Givens - They cannot be, because the power of action of the StateGovernments is too limited to deal with matters for which these amendments of the Constitution have been proposed.


Senator MILLEN - There is nothing inthat contention for this reason : New South Wales, or any other State, beforeFederation could have passed any law it liked, and given effect to it. That power- has not been destroyed. It is still in existence. If any power which has been transferred to the Federation had not been transferred, it would still have remained' with New South Wales.


Senator Givens - How could New South Wales deal with trusts operating all' over Australia?


Senator MILLEN - New South Walesretains to-day every power which she enjoyed before Federation except suchpowers as have been transferred. No new powers were created by Federation. Powerswere merely transferred so that they mightbe exercised over a wider area.


Senator Givens - The powers were limited because the area in which they were exercised was too limited.


Senator MILLEN - The argument that the powers were inoperative because thearea was too limited may easily be shown to be unsound. It is idle for the Government to say that the powers of any StateGovernment cannot be exercised, because- they are exercised over too limited an area, for the reason that if any one of those States was surrounded by hostile countries it would still be able to make its laws effective within its own boundaries, no matter how limited they were.


Senator Givens - Could a State Parliament enforce the policy of new Protection?


Senator MILLEN - I may answer that by putting another question to Senator Givens. It is frequently said that the Government are only asking for powers which the State Governments possess to-day. One of the most frequently used arguments by our Labour friends is, " Why should not the National Parliament exercise the same powers as the State Parliaments do?" When they put that question again, I ask them to remember that it is idle to claim that the Federal Parliament should exercise the same powers as do the State Parliaments, unless they make the admission that the State Parliaments already enjoy those powers.


Senator Gardiner - Why should not the Federal Parliament enjoy them as well?


Senator MILLEN - The answer to that is that the people of Australia do not require two Parliaments to exercise the same power. I am very glad that that interjection has been made. Those who make that claim are Unificationists ; and my honorable friend will not deny it for his own part, because he has made the declaration frequently, and openly. Others of his party have, however, denied it.


Senator Gardiner - I want one legislative body to deal with matters affecting Australia, but the honorable senator wants to leave some of them in the hands of six bodies.


Senator MILLEN - My objection to these proposals is not to any necessary enlargement of Federal powers. I have already made that clear. My objection is to the exercise of certain powers by an unwieldy body instead of by bodies which can exercise them with greater advantage to the people. It has been said by Senator Findley that the State Parliaments do not represent the people, and are not exercising the powers intrusted to them.


Senator Findley - I did not say anything of the kind. I said that we were taking power from the people with one hand and giving it to them with the other ; and I also said that the people could not exercise certain powers at present because of the existence of the Legislative Councils.


Senator MILLEN - My statement was sufficiently accurate. The position is this : It is argued that because the State Parliaments do not choose to exercise certain powers which are intrusted to them, therefore the Federal Parliament ought to step in and do so. I want to know whether this Parliament has any warrant for curing the sins of omission and commission of the State Parliaments. Surely it is no concern of this Parliament whether the State Parliaments exercise their powers or not. Certainly this Parliament has no right to set itself up as a judge of the State Parliaments. We may leave them to their "own concerns. They are responsible to their own electors, and have a right to do as they please within their own sphere of action. If we are to take upon ourselves the right to legislate upon every subject upon which a State Parliament has not legislated, we shall legislate on every subject as to which a majority can be found in this Parliament to disagree with any action taken or neglected to be taken by a State Parliament. And if, having altered our Constitution because the State Parliaments are not doing what this Federal Parliament would do, are we at a later date to be asked to reverse the process and alter the Constitution again because the Federal Parliament fails to do what our Labour friends desire, and what the State Parliaments may at some future time be expected to do? Much is being made about the action of the Legislative Councils. I want to ask for some proof of the statements that have been made. Let me take the actions of one Legislative Council of which I have some knowledge. We have had a Labour Government in office in New South Wales. The platform of that Government contains planks many of which are repeated iri the platform of the Federal Labour party. The Government went into office with a declaration that it was determined to do many things from the Labour stand-point. What law proposed by that Government has the Legislative Council blocked ?


Senator Rae - Does the honorable senator want to know one? There is the Coal Miners' Eight Hours Bill, which was thrown out only the other day. and for which Mr. Edden has been working for the last twenty years.


Senator MILLEN - The answer is this. If Mr. McGowen thinks that he has a majority of the people behind him in his opposition to the Legislative Council, let him do what Sir George Reid did in 1895, when the Legislative Council threw out his Land Tax Bill. Let him appeal to the people again.


Senator Gardiner - Is that the process which the people are to go through in regard to every piece of legislation they require ?

SenatorMILLEN. - Certainly not; but the Legislative Council does not throw out every piece of legislation which the people require. I am not concerned as to whether the Legislative Councils are right or wrong in what they are doing, but I venture to say that in New South Wales, with a Labour Government in office, the means of overcoming every objection raised by the Legislative Council rests in the hands of the Government. That power has been exercised previously by other Governments with what results we all know. The fact is that the McGowen Ministry have had to accept amendments, for instance, in their Gas Bill, and did so only because they were afraid that the people were not behind them in the measure.


Senator Rae - The Miners Bill, to which I have referred, was passed through the Legislative Assembly of New South Wales without a division six or eight times.


Senator MILLEN - If that were a measure which the people of New South Wales desired, as they desired the Land Tax Bill, introduced by Sir George Reid, there was an easy way of ascertaining the fact. Once it has been ascertained that the people of New South Wales desired the passing of a certain measure, the Legislative Council of that State have never refused to pass it.


Senator Rae - And each time, I suppose, the ceremony is to be repeated.


Senator MILLEN - I am not defending the Legislative Councils, but I say that there is no instance in New South Wales in which a Government, with the people behind them, were everprevented by the Legislative Council from passing any law which it was desired to pass Let' me turn now to another State. Honorable senators are aware that only a little while ago a Labour Government was in power in South Australia. It was said that a measure which the people wanted was passed by the House of Assembly, but was blocked by the Legislative Council. The Verran Government said, " We represent the people. What right has the Legislative Council to block the passing of this law?" The mat ter was decided on an appeal to the people, who turned down the Verran Government, and said that the Legislative Council of the State was right.


Senator E J RUSSELL (VICTORIA) - No; they did not. The majority voted the other way.


Senator MILLEN - The fact remains that the Verran Government made what was probably one of the most attractive appeals to the electors - that is to say, an appeal founded on a quarrel with the Upper House, and yet the people decided to send the Verran Government into Opposition, and returned a Liberal Government with, I think, a greater majority than any Government has had in South Australia for years past. In all these circumstances, and considering all these proposals, as well as the declarations in favour of Unification and a greater centralization of power in the hands of the Government of the Commonwealth, I say there is clearly indicated a determined andset policy on the part of our honorable friends opposite to march towards the goal of Unification. That these proposals will not complete the march, I am willing to admit, but I say that they go so far in that direction, and will so paralyze the State Parliaments, and so interfere with and harass them, that in sheer desperation, if these powers are to be exercised by the Federal Parliament, the people will turn round and say, " Having done so much, it is useless for us to continue our professedly Federal system, and we had better set up a system of Unification at once, and have done with the matter."


Senator Gardiner - That would be a disaster, would it not?


Senator MILLEN - The honorable senator has not taken my point. I wish to make it clear that these proposals are distinctly in the direction of Unification. I know that Senator Gardiner is a professed Unificationist.


Senator Gardiner - Since when?


Senator MILLEN - Since the honorable senator made this declaration in the Senate -

I am a straight-out Unificationist. I do not believe in seven Parliaments in Australia. I believe in one National Parliament to rule the whole of the destinies of Australia.

Since then I take it that the honorable senator has been a straight-out Unificationist. I have had many occasions to differ from my honorable friend, and probably will have many more ; but I want to say that when Senator Gardiner takes the hit in his mouth, and speaks in that way, if it were only out of obstinacy he will stand by any declaration he has made. I do not expect the honorable senator to depart from that declaration at any time during the coming campaign. If he does, I shall feel it my not unpleasant duty to put him right.

I wish now to deal with these Bills a little more in detail. I refer, first of all, to the Constitution Alteration (Trade and Commerce) Bill. The VicePresident of the Executive Council, in submitting the Bill, said it was impossible to distinguish between Intra-State, Inter-State, and foreign trade. He asked how it could be possible to say, in the case of a shipment of goods arriving from abroad, when it ceases to be foreign commerce with which the Commonwealth Parliament can deal, when it ceases to become Inter-State commerce with which we can deal, and when it becomes absorbed in the local trade of the State into which the goods are imported. The honorable senator's argument seemed to command some approval. I reply by saying that if it is not possible to distinguish between Intra-State trade and Inter- State trade in ordinary circumstances, how is it possible to make the distinction in the case of such trade when passing over the railways. Yet we have a Bill before us which proposes that this very distinction shall be observed in connexion with commerce on the railways. If it is impossible in connexion with the ordinary volume of trade of the country to distinguish between that over which, under the commerce power of the Commonwealth, this Parliament has jurisdiction, and that over which the State Parliaments have control, it is equally impossible to make any such distinction in the case of commerce passing over the railways.


Senator E J RUSSELL (VICTORIA) - There is a great difference between the State ownership of the railways and the ownership of private corporations.


Senator MILLEN - That has nothing whatever to do with the matter. If there is a quantity of goods on a railway truck, and a similar quantity on a bullock waggon alongside, according to the contention of the Vice-President of the Executive Council it is possible, in the case of the goods on the railway truck, to distinguish between those which, under the commerce power, come under the jurisdiction of this Parliament and those which might be con trolled by the State Parliament, but it is impossible, in the case of the goods on the bullock waggon, to make that distinction.


Senator McGregor - I said nothing of the kind, nor does the Bill provide for that. We propose to take control of the railways only to the extent necessary to enable us to deal with railway disputes.


Senator MILLEN - What I am referring to deals not with the management of the railways, but with the trade and commerce power of the Commonwealth, which the Government seek to extend. Under section 51 of the Constitution, this Parliament is given power to make laws for the peace, order, and good government of the Commonwealth with respect to -

Trade and commerce, among the States and with foreign countries.

The Government propose to strike out the words "among the States and with foreign countries," except so far as they apply to trade and commerce on the State railways.


Senator McGregor - Yes, that is what it means.


Senator MILLEN - Then I say that the Government propose to distinguish between Inter-State and Intra-State commerce in respect to goods carried on the railways, while at the same time they claim that it is impossible to make such a distinction in the case of goods carried in ordinary vehicles or kept in the ordinary warehouse.


Senator Rae - The position in the two cases is vastly different.


Senator MILLEN - Will Senator Rae point out how it is possible to make a distinction in this regard between, for instance, a quantity of wool on the way to port in a ' bullock waggon, and a similar quantity of wool carried on a railway? The question is one which has nothing to do with the ownership of the railway or the bullock waggon.. My contention is that if it is impossible with regard to the general commerce of the country to distinguish between what is foreign and Inter-State, and what is Intra-State, then it is equally impossible to make the distinction in connexion with commerce on the railways; and yet, under one of these Bills, the distinction is to be made in the case of commerce on the railways. If it can be made in that case, it could be made as readily with regard to goods in warehouses and shops.


Senator E J RUSSELL (VICTORIA) - Would the honorable senator support a proposal to make the Bill apply to commerce on the railways?


Senator MILLEN - No. 1 am opposed to it altogether. I think that what the Go- vernment propose in connexion with commerce on the railways is quite right, but is illogical.


Senator E J RUSSELL (VICTORIA) - The honorable senator said five minutes ago that the Bill goes too far, and now he says that it does not go far enough.


Senator MILLEN - I have never said that it does not go far enough. My contention that it goes too far should have been obvious even to Senator Russell. I say that honorable senators who claim that, with respect to a load of wool carried io the ordinary vehicles of the country, it is impossible to distinguish whether it should be under Federal or State control, while if it is carried on a railway truck the distinction may be made, are entitled to any satisfaction they can obtain from that contention ; but it will not appeal to the logical sense of the people.


Senator Rae - In one case the wool would be booked through to its destination, and in the other case it would not.


Senator MILLEN - What is the destination of wool booked from Bourke to Sydney ?


Senator McGregor - It is not a question of destination. The object is to avoid interference with State railways any more than is necessary.


Senator MILLEN - If the Commonwealth Government can so analyze commerce on the railways as to be able to say when it is foreign, when Intra-State, and when merely local commerce, they can in the same way analyze commerce that flows in other channels. I shall not weary the Senate with authorities that have been quoted with great freedom elsewhere, but I cannot pass from this Bill without placing in contrast to the opinion of the Vice-President of the Executive Council that of a gentleman who, until Senator McGregor had spoken, was accepted as a constitutional authority, not merely in his own country, but throughout the world. The Vice-President of the Executive Council has said that it is essential that we should have this additional control with regard to commerce. I put against that statement this opinion. Referring to the commerce power the statement is made -

It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.

That is the opinion of Chief Justice Marshall, and I set it against the statement of the Vice-President of the Executive Council that this power is essential and necessary. While, perhaps, we do not live in a time when we are oppressed by authority. I venture to say that the opinion of Chief Justice Marshall on such a matter is entitled to as much respect as is that of the Vice-President of the Executive Council.


Senator McGregor - Oh, but he died long ago.


Senator MILLEN - I am aware of that, and I have only one regret, which is that he did not live long enough to have the benefit of the opinion of my honorable friend. If he had, I have no doubt that his reputation would have been unsullied by the blot which must rest upon it, in view of the conflict between his opinion and that of the Vice-President of the Executive Council. We have a definite statement from a man whose .sagacity has never been doubted, that the power now asked for by the Government is quite unnecessary, and is certainly not essential.

The next Bill to which I wish to refer is that dealing with industrial matters. I remind the Senate that the purpose of the proposed amendment is said to be to increase the opportunities for securing industrial peace. It is put forward by those who profess to desire, by means of arbitration, to bring about more complete harmony and peace in industrial affairs than we have hitherto enjoyed. These professions would have much more weight with me if they were supported by the action of those who make them. But we cannot disguise from ourselves the fact that where any struggle has taken place in any part of Australia in connexion with industrial affairs there has been some recognised member of the Labour party on the spot to confer upon it his benediction. That leads one to take with a considerable measure of suspicion the statement that this large power is sought in the interest of industrial peace. I need only remind honorable senators of the two biggest strikes we have had of late years. In the prosecution of Mr. Peter Bowling evidence was given that the motion to make the coal strike in New South Wales general throughout the States was moved by the Attorney-General, Mr. Hughes.


Senator McGregor - He had to do that to bring the strike under Federal control; that is the evil.


Senator Barker - That was the whole desire on his part in doing that.


Senator MILLEN - That is just what I expected would come. So what is wanted is not a resort to arbitration, not a desire to get the benefit of arbitration, because that could be obtained without making a strike general-


Senator Rae - No.


Senator Needham - How can it be done under the present law ?


Senator MILLEN - What is to prevent a strike, or an industrial matter, in New South Wales, from being dealt with by the local authorities?


Senator Needham - Under the present Federal law ?


Senator MILLEN - The inter jection was that the only way in which the men could get to the Arbitration Court was by spreading the dispute from one State to another. I say that what was wanted in that case was not arbitration, but the Federal Arbitration Court.


Senator Rae - They could not spread the dispute.


Senator MILLEN - To put the thing in a few words, it was not the Federal authority which the men wanted, but Mr. Justice Higgins.


Senator O'Keefe - What about a reflection on the Judge now?


Senator MILLEN - To say that my remark is a reflection on the Judge is idle.


Senator O'Keefe - Surely there is a reflection implied?


Senator MILLEN - I have not said a word against Mr. Justice Higgins. I am speaking of the forces which impelled the men, and they show that the men desired to get before Mr. Justice Higgins.


Senator O'Keefe - No; that is a little thin.


Senator MILLEN - I am unable to understand the line of reasoning which would suggest that in my remark I have made the slightest reflection on Mr. Justice Higgins. Let me put the matter in another way. What was desired was not to get the benefits of arbitration, but to get before a Judge whose decisions had hitherto inspired the men with the belief that they would get in that Court a larger measure of what they wanted than they would get elsewhere


Senator Gardiner - To get a fair deal.


Senator MILLEN - To get what they regarded as a fair deal.


Senator Rae - They were not registered under the State Act, anyway, and could not go before the State Court at that time.


Senator MILLEN - The fact that the men were not registered under the State Act was not the fault of the Act; they could have been registered if they had liked. It all goes to prove that what was wanted was not arbitration, not a judicial tribunal to deal with the matter, because that was available, but to go before a tribunal presided over by a particular individual. That, 1 venture to say, has been the cause of more industrial unrest throughout Australia than has any other single cause to which honorable senators can point.


Senator Barker - That is damning him with faint praise, anyway.


Senator MILLEN - I am not saying whether Mr. Justice Higgins is right or wrong, because that is immaterial. What I say is that the men have been trying, and that efforts have been made, to spread the sparks of conflagration from one State to another, not to get arbitration, which was at their own door, but to get before a Judge from whom they anticipated something more than they would get from a Judge in any other Court.


Senator Rae - Owing to the insufficiency of the State laws, due to Conservative Legislative Councils.


Senator MILLEN - It does not matter what the cause is. The fact is that there exist in the States now local tribunals for dealing with an industrial matter, and whenever it has been possible there has been an effort made to spread a strike from one State to another, not to get arbitration, which could have been obtained without spreading the strike-


Senator Rae - It could not.


Senator MILLEN - In many instances it could - let it rest at that.


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir AlbertGould. - In every instance it could.


Senator MILLEN - What guarantee is there that if we centralize industrial matters in the Federal Court we have done anything to increase the possibilities of industrial peace? There is no evidence that if men are not prepared to obey a State law - an award given by a State Board or an Arbitration Court - they will be any more likely to accept a similar award when given by a Federal Court.


Senator Guthrie - They have done.


Senator MILLEN - Is it out of greater respect that they want to come to the Federal authority, or because the award has been more in accordance with their demand ?


Senator McGregor - To get reasonable justice.


Senator MILLEN - The position is not that men want to come to the Federal authority because it is the Federal authority, but because they will get more there from the Judge than they would get elsewhere. Let us assume that the employers and the men are equally concerned in getting before a particular Judge because they believe that from that Judge they will get a greater fairness in any award which he gives. Then I want to ask, Are honorable senators going to alter the Constitution from the mere accident, that we have presiding in the Federal Court a particular individual, who cannot live for ever? If it is an argument for an alteration of the Constitution, and for centralizing everything, that we have a Judge of a certain temperament to-day in the Federal Court, are my honorable friends going to alter the Constitution next year when a Judge of that temperament presides over a State tribunal, while a Judge of an entirely different temperament is presiding in the Federal Court?


Senator Needham - There is no one suggesting that.


Senator Rae - That is not a fair way to put it.


Senator MILLEN - Nothing I do will, I know, satisfy honorable senators opposite; but I submit that, at any rate, my statement is logical.


Senator Rae - No.


Senator MILLEN - It was admitted just now that both men and employers were seeking to go to the Federal Court, because they believed that they could obtain there a more satisfactory judgment.


Senator Rae - Hear, hear ! Owing to the fact that he can deal with varying conditions, applied to the whole of the States.


Senator MILLEN - Suppose that the position is reversed, and that in the course of time the Judges who give the most satisfactory judgments are the Judges in the State tribunals, and that those who give the least satisfactory judgments are those in the Federal tribunal. Are my honorable friends going to alter the Constitution then?


Senator McGregor - There will be no necessity for doing that, because they can go then to whichever tribunal they like.


Senator MILLEN - Are men to have the option of going to theFederal authority , or to the State authorities?


Senator Rae - We have it now in many instances.


Senator MILLEN - I do not think it is necessary to continue the argument any further. The thing is altogether too childish.


Senator Rae - That position exists in many industries.


Senator MILLEN - No one has disputed that where industrial matters are in their nature Federal there should and must be someFederal authority to deal with them. But that is quite different from saying that every industrial matter, even from the remotest part of Australia, shall be concentrated under the jurisdiction and control of one Federal Arbitration Court.


Senator Rae - There are many registered under the State Acts now.


Senator MILLEN - It has been admitted by interjection that this desire to get into the Federal Court - whether it sprang from the men or the employers - was not because it was the Federal Court but because there was a greater belief and faith in the judgment of that tribunal.


Senator Barker - Yes, because its determinations were correct.


Senator MILLEN - No, because, as was admitted gust now,its judgments were fairer.


Senator E J RUSSELL (VICTORIA) - May it not be the desire to get common justice?


Senator MILLEN - Well, without indorsing the remark, if the men are going there to-day because they believe that the decisions of the Federal Court represent common justice, are we to alter the Constitution back again to-morrow when they find what they call common justice is given in the State tribunals, and uncommon justice in the Federal Court?


Senator E J RUSSELL (VICTORIA) - You are not trying to put that on to me ?


Senator MILLEN - I am.


Senator E J RUSSELL (VICTORIA) - My interjection did not lead that way at all.


Senator MILLEN - The motive power which is attracting men to the Federal Court is the presence there of the Judge who presides over it.


Senator Guthrie - No; the same thing occurred before Judge Higgins went there. It occurred when the Court was presided over by Mr. Justice O'Connor and Mr. Justice Isaacs.


Senator MILLEN - Senator Guthrie knows perfectly well that one of the pronounced movements which are visible to every one of late years has been a general desire on the part of the industrial population of Australia to have their cases, as far as they can, heard in the Federal Court.


Senator Barker - Because they think it is the best- Court.


Senator Guthrie - And that occurred before Mr. Justice Higgins went on to the Bench.


Senator MILLEN - No, it did not occur in that way.


Senator Lynch - Would it be right to say that the employers are trying to get away from the Federal Court?


Senator MILLEN - No, because just now it was interjected that the employers as well as the men want to go there. I am not finding fault with the attitude of the men or the employers, but pointing out that there 'are not enough Mr. Justice Higginses in this country to go round if all these matters are to be centralized in the Federal Court. And that is recognised by the statement that it is not intended to centralize, but to continue the existing State tribunals, or to create Federal tribunals - - Wages Boards or otherwise: - to be scattered through Australia. I venture to say that that will not satisfy the demand today. The demand to-day is not for a Wages Board constituted under Federal law, but for the opportunity to have the case stated before Mr. Justice Higgins.


Senator Guthrie - No, before the Federal Court.


Senator MILLEN - I tried to analyze that contention, and I am not going over the same ground again. If the desire is to get to the Federal Court, riot because it is the Federal Court, but because the decisions of the presiding Judge have given greater satisfaction-


Senator Barker - Suppose that Mr. Justice Higgins died to-morrow?







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