Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Wednesday, 14 May 1930

Senator J B HAYES (Tasmania) . - The Leader of the Senate (Senator Daly) asks what principle underlies the opposition to this regulation. Surely it is that honorable senators on this side desire to uphold the law. Senator Daly said that the effort to preserve peace on the waterfront was causing him a great deal of anxiety. I remind him that it is the function of the Arbitration Court to maintain peace and to settle industrial disputes; I suggest that he hand over the matter to the Arbitration Court and tell the men to obey its award. Whatever the object of the regulation, its effect will be to get something by regulation which cannot be obtained under the law as it now exists. I shall, therefore, vote for the motion. I represent. a State which is dependent on sea transport for communication with the rest of the world - a State, moreover, which depends largely on the tourist traffic for its income. I assure honorable senators that a strike, or even the fear of a strike, does incalculable harm to Tasmania. I have known people to be stranded in Tasmania, without funds, and forced to sleep in the parks, who have had to apply to the Government of Tasmania for assistance to enable them' to reach their homes, all because of a hold-up of shipping through a strike. I have known farmers who have worked hard al! 'the year to lose the reward of their labour because a number of men went on strike, and their produce could not be marketed. The late Government introduced the Transport Workers Act to meet a desperate situation. Since it has been in operation, there has been peace on the waterfront, and an unprecedented continuity of water carriage. There has been no strike or even the rumour of a strike. This regulation, if allowed, will change that happy state of affairs. The Leader of the Senate (Senator Daly) ad- vised us to leave well alone. Why did not the Government do so? This is not the time to interfere with things that are going along well. Australia has never been in a worse ' position than she is in to-day. Unemployment exists on every hand; low prices for wool have almost ruined many of our wool-growers; drought and low prices have so seriously affected our wheat-growers that they do not know which way to turn. When things are going well, especially, they should not be interfered with by regulations. This regulation seeks to override the Arbitration Court.

Senator Daly - The judgment of the court did not touch the point covered by the regulation.

Senator J B HAYES - The judge would not give any decision on that matter. I advise the Senate to allow things to remain as they are by supporting the motion for disallowance of the regulation.

Senator SirHAL COLEBATCH (Western Australia) [5.01 . - I shall be brief in discussing this matter. I compliment the Leader of the Senate (Senator Daly) on the really splendid defence he made of an utterly impossible position. Tn the course of his legal career the honorable gentleman has probably been called upon to defend a murderer caught in the act, or a chicken thief still covered with feathers ; but I doubt if he has ever felt himself in such a difficult and embarrassing position as when called upon to defend this regulation. He invited the Senate to consider it on principle. I propose to do so. If we ask ourselves under what constitutional power of the Parliament this regulation has been framed, the answer can be only that it has been framed under the trade and commerce power. It could not have been framed under the industrial power. The matter, if industrial, is one capable of settlement only by the Arbitration Court. I am not now concerned to defend the Transport Workers Act. Indeed, I should, probably, be prepared to find fault with that legislation for the same reason that I object to this regulation. But it must be admitted that it is a monstrous abuse of the trade and commerce power to frame a regulation dealing with picking-up places on the wharfs. That does not pretend to be other than a matter coming under the industrial power. It is certainly not a proper exercise of the trade and commerce power.

Senator Rae - The whole act is the same.

Senator Sir HAL COLEBATCH - I am not "defending the act. The select committee on Senate standing committees, whose report is still under consideration by the Senate, was at some pains to collect, not only from the highest constitutional authorities in Australia, but also from other sources, suggestions as to the principles that ought to guide governments in the making of regulations, and this chamber in disallowing them. One of those principles was that regulations should not unduly trespass on personal rights and liberties. This regulation tramples personal rights and liberties into the dust. It says to employers and employees who are working harmoniously, that they shall no longer be allowed to conduct their business along the lines previously followed by them; that employers shall not be allowed to pick up their labour in a way which has proved satisfactory to both employers and employees ; that another method, which they do not like, will be substituted. Why is this done? It is done simply because the different method is favoured by thar section of the workers which happens to support the Government. The Government could not go further than that in trampling on individual rights and liberties. The Leader of the Senate (Senator Daly) said that this is a portion of the experimental legislation to be introduced by the Government. Is it too late to suggest that the Government should hold its hand in the matter, of experimental legislation and give the industries of this country a chance to put themselves right? I ask honorable senators to note the term " experimental legislation," used by the Leader of the Government. Is legislation the mere executive act of a government in introducing a regulation? If we are to have experimental legislation - and I counsel both the Government and the Senate to recognize the danger of experiments in a time like this - let it be legislation, not regulation. This Government made the most extraordinary experiment ever tried by any government when it prohibited certain imports. That was done, not by legislation, but by regulation, and Parliament has had no voice in the matter. For that reason alone,

I shall vote for the motion. If it is part of further experimental government by regulation, then the sooner we turn it down the better. We should intimate to the Government that if it has any experimental notions to put into force it must first bring them before Parliament and commend them to Parliament, and must not try to bring about experimental legislation merely by the introduction of regulations. It seems clear to me that this regulation cannot possibly bring about that good understanding which the Minister desires between the two sections of workers on the waterfront.

Senator McLachlan - Is it not likely to bring about the very opposite result?

Senator Sir HAL COLEBATCH - It must have the contrary effect. I hope this experience will suggest to the Senate the danger of passing legislation which gives to the Government too wide and too unrestricted power in the 'matter of making regulations. All governments are apt to do this. A government thinks that it is making wise regulations; but along comes some other administration which takes the opposite view. Let us consider what might happen if the regulationmaking power were given in too wide terms. It would be quite competent for a government to promulgate a regulation in the closing days of a session. The statutory period within which it must be laid upon the table of Parliament might not lapse before Parliament rose, and as there might be no further sitting for three or four months, all the harm that could possibly be done under the regulation could be accomplished before Parliament would have an opportunity to disallow it. I trust that this discussion will have the effect of suggesting to Parliament the need for some such step as was recommended the other day by the select committee on the standing committee system, so that the regulation-making power should not be entirely outside the control of Parliament. Personally, I prefer that it should be confined, as it is confined in all the legislation of Great Britain, to specific sections of an act, so that Parliament would always know that it could not be used except for administrative purposes or in particular directions. So far as this particular regulation is concerned, there is not the slightest doubt that it is a monstrous abuse of the trade and commerce power of this Parliament, and likewise a monstrous invasion of the rights and liberties of individual citizens.

Suggest corrections