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1898 Australasian Federation Conference

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Commonwealth of Australia Bill-Hours of Sitting.

The PRESIDENT took the chair at half-past ten o'clock a.m.


The Convention resolved itself into committee of the whole for the further consideration of the Commonwealth of Australia Bill.

Discussion (adjourned from Tuesday, 25th January) was resumed upon clause 52 (Powers of the Parliament), and on the following new sub-section, proposed by Mr. Higgins, to follow sub-section (33):-

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

Dr. QUICK (Victoria).-I supported this proposal at Adelaide, and I see no reason for not doing so again. It may be that there would be very little scope in the Federal Constitution for the operation of such a provision as this, but I think that a fair and comprehensive survey of the federal arena will show that there will at least be some scope for its operation, though somewhat limited. Even in the Constitution as drawn there is a provision giving the Federal Parliament jurisdiction in the case of navigation and shipping, and this would apply to labour disputes in connexion with navigation and shipping. This new sub-section would give the Federal Parliament jurisdiction in regard to labour disputes commencing within a state, and extending beyond the limits of that state. There is no doubt that there are difficulties connected with this subject. It may be that we are passing on to the Federal Parliament another insoluble problem-insoluble apparently as regards the method of settlement and the enforcement of the award-but I do not know that we are bound at the present stage to suggest solutions or methods of solution. It will be for the Federal Parliament to devise [start page 183] some means of giving jurisdiction to a competent tribunal, and of conferring upon that tribunal power to enforce its decisions. At any rate, I concur with Mr. Higgins in his argument that industrial disputes of late years have assumed such magnitude and importance in all civilized countries that it is incumbent upon any Parliament having jurisdiction to grapple with the question and to find some means of solving it. Take the great dispute which has been raging in England during the last few months; consider the millions of money lost through there being no machinery for the settlement of the dispute, and for the enforcement of the settlement. I am not without hopes that Parliament in the future-I may even say at the present time-will be able to find some means of the acquiring jurisdiction and enforcing its decisions. At any rate, I think the Convention should show its appreciation of the importance of this question by not shunting it from the Federal Constitution but finding a place for it there, leaving it to the Federal Parliament to discover some means of introducing conciliation and arbitration of the kind proposed.

Sir WILLIAM ZEAL (Victoria).-I think, sir, it goes without saying that this proposal of Mr. Higgins is one which should commend itself to the good sense of the Convention. It seems to me that the difficulty in dealing with such disputes will arise when the decisions is given against the men. So far as the masters are concerned, there will be no difficulty whatever in enforcing penalties against

them; but if the award goes on the other side, how is any machinery which human ingenuity can devise to be put in force to compel the men to observe the award? That is the great difficulty.

Mr. HIGGINS.-That is true.

Sir WILLIAM ZEAL.-We have at the present time on the statute-book of Victoria and Act of Parliament which gives power to deal with disputes somewhat in this fashion, but so far it has been a dead letter, because, as Mr. Higgins will probably say, up to the present time no event had occurred which has called for the application of the provisions of that Act.

Mr. BARTON.-Does the Victorian Act provide for compulsory arbitration?


Sir WILLIAM ZEAL.-I think that the Convention might accept the new sub-section. There is no harm in it, but there will be great difficulty in giving effect to it under certain circumstances.

Mr. MCMILLAN (New South Wales).-This is just one of the matters on which we ought to pause, and that we should weigh very carefully before we come to any definite decision. It is one that opens up a vast area for discussion. We cannot hide ourselves the development that has taken place in connexion with this question during the last few years. I am aware that there are in this Convention honorable members-especially, perhaps, the Premier of South Australia-who have given enormous attention to this subject. But to those who look upon this question as having enormously dangerous possibilities, it is a matter of vital importance as to whether it should be put as a federal power or left entirely to the states.

Mr. ISAACS.-What are the dangerous possibilities?

Mr. MCMILLAN.-Well, I do not wish to argue any of these questions in detail.

Mr. ISAACS.-It is a mere matter of information.

Mr. MCMILLAN.-I do not think we have to discuss the policy of any of these matters, or to enter upon any long arguments with regard to their desirability or otherwise. We are here to say, especially in connexion with the particular proposal under consideration, whether any power should be given to the Federal Parliament, or whether the power should not be left entirely to the states. I am strongly of opinion that this matter ought to be left absolutely to the states, and the present stage of our proceedings, whatever may be the future of the Federation, we ought not even to indicate [start page 184] that this is a subject for federal control. It seems to me that, in many of these questions in which it is attempted to give federal control and to clear away difficulties in the future, we shall by giving that federal control simply be laying the foundation of greater difficulties. Looking at this subject from a practical stand-point we have this point to consider. These labour disputes will arise in different states owing to special conditions existing in those states. They may overflow into another state They may purposely be made to overflow in order that advantage may be taken of any provision of this kind. Then are you going to say that the Commonwealth Government is to interfere in a dispute simply because it goes over the range of two states, when it may be a dispute in some particular industry which has nothing to do with the general welfare of the Commonwealth. There is another very serious aspect of this question. There is a clear line to be drawn between the functions of the Federal Parliament and the functions of the state Government. Up to the present time we have laid it down as a principle that the whole industrial life, the inner life of each community, which can be better regulated over a moderate area, should be left entirely to the state. I can conceive of no more potent influence of trouble in the future than the giving of paramount power to the Federal Parliament to interfere in trade disputes. It is all well enough to say that it is only to apply when more than one state is affected, and it, is all well enough to say that the power need not be exercised at all. That very weak argument has been running through many of the proposals made to overload this Constitution.

Once you put a power in clause 52, you give by implication practically the whole case away to the Federal Parliament. Now, I do not of course profess-and I always make this admission when I have not studied a question very closely-to understand this subject of conciliation and arbitration in trade disputes as thoroughly as some honorable members who have given years of attention to it. But, on the other hand, we have not to consider the merits of this question in itself. We have to consider whether it is one of those things which, at the present stage of our federal evolution, so to speak-we ought to include in the powers which are to be more or less exercised by the Federal Parliament. I am as anxious as any one to see that all large national questions that should come under a Supreme Parliament like that of the Federation are given over to it. But, at the same time, I believe that a great deal of the success of our efforts will depend upon the fact that, while keeping clearly in view the sovereign character of that Parliament, we do not infringe in the slightest degree upon that local autonomy which is the basis of federation. I am therefore strongly against the inclusion in the clause of this subsection, even with the qualification that it is only to refer to trade disputes extending beyond the limits of any one state. I hold-and every year of my political life has made it a more sacred principle to me-that the less the Government do, except in acting as policemen in trade disputes, the better for the community. I do not want to insert in this Constitution a provision which by implication will show a trend of thought of a certain character, to which I need not further refer. I do not want it to be presumed for one moment that we desire to give to the Federal Parliament the right to interfere in trade disputes and in the ordinary business and commerce of the country. The less the Government has to do with these things the better, and the more clearly it is understood that the Government is not to interfere excepting for the preservation of law and order the sooner these disputes will be likely to end.

Mr. KINGSTON (South Australia).-I trust that the amendment will be carried. It seems to me that it will probably be a mistake to discuss the mode in which this [start page 185] power, if given to the Federal Parliament, is likely to be exercised. We might better confine our attention to the consideration of the question whether a power of this sort is capable of being beneficially exercised in the interests of the community, and in that regard it seems to me there is no room for doubt. What have we chiefly to deplore at the present day in connexion with our various industries? The prevalence of strikes and lock-outs-barbarous modes of settling differences, which should, if possible, be adjusted amicably. I need hardly refer to what has recently been happening in Great Britain-the engineers’ strike. There we have had a protected struggle ending, so it seems, in the success of the masters. but, however that may be, productive of injury, not only to both men and masters, but to the great industry in which all are engaged; and various particulars which have already been supplied show how it has affected the trade of Great Britain. It was argued by the honorable member (Mr. McMillan) that the State should only act as the policeman, but it seems to me preferable to provide against the necessity for police interference at all. I think we can do that, not by arranging for the arbitrary interference of the Government in matters of this sort, but by giving power to a competent authority to provide facilities which will enable the parties to a dispute to agree by the establishment of courts of conciliation, and, if they desire it, of courts of arbitration, which should have the power to enforce their award upon those who invoke their interference. The subject is a difficult one, and we recognise its difficulties, and I think we might give the Federal Parliament credit for as much wisdom. The members of that body will recognise these difficulties just as we do, and will avoid any arbitrary or unwise interference. The position to-day is that whilst in each state we have the power of making what provision we please in regard to a matter of this sort, there is no Parliament which can interfere with any efficacy where the dispute extends beyond its provincial boundaries. The honorable member (Mr. McMillan) has been kind enough to refer to the interest which I have taken in this matter for some considerable time. I recollect that upon the very first occasion when I rose to introduce a scheme of this sort to the South Australian Parliament I felt oppressed by the consideration that, whilst we could provide satisfactorily for local disputes, we could do nothing in regard to disputes which extend over a larger area, because, of course, those outside our boundaries could resent the interference of a court of limited control. What I feared then has since been proved by case after case, and notably by the maritime strike, which affected not only ourselves, but other colonies. We have, however, been able to provide for the passing of a measure for industrial conciliation. That measure has not as yet been attended with the success which we hope it will have in the future, but there is no doubt that it

has had some effect; and, as regards a similar scheme which has been adopted by the New Zealand Parliament, statistics show-and we have also the word of the Premier of New Zealand to the same effect-that it has been productive of the very best results. I do not, however, desire to discuss what will be the probable course of legislation upon this subject, though I am inclined to attribute the greatest influence and importance to efforts in the way of conciliation rather than to the declaration by any court of arbitration of an enforceable award. I put it to honorable members, will it not follow as a matter of course that a tribunal created under federal authority will command greater respect and influence than one which owes its jurisdiction to a more limited authority?

Mr. MCMILLAN.-Might you not say that of almost any measure of local autonomy.

Mr. KINGSTON.-I might. I might say that the High Court of Australia will, [start page 186] in the natural course of things, command a greater respect than any of our local courts, great as is the respect which they very properly command. Where a strike of the dimensions to which I have already referred occurs, will it not be a good thing that there should be a body charged with the duty of reconciling the parties by peaceable persuasion and all the arts of conciliation, before the struggle has developed to a degree of intensity when pacific interference is worse than useless? I am a strong believer in the propriety of assisting the parties to a dispute to establish courts of conciliation in times of peace. Such courts are much more likely to be productive of good results if the trouble can be nipped in the bud than if you allow it to develop, and you have no means ready in initial stages to prevent its extension. It seems to me that you might just as well attempt to organize a fire brigade satisfactorily in the midst of a conflagration as attempt to establish a court of conciliation when the parties to a dispute are practically at each other's throats and determined to do all they possibly can to use to the utmost the strength which they possessed.

Mr. LYNE.-How can you do any good, unless you make arbitration compulsory?

Mr. KINGSTON.-By these courts we only provide facilities for the settlement of disputes. In South Australia we have a State Board, the president of which is charged at all times to reconcile the parties to industrial disputes by all peaceable means whenever the nature of these disputes is of such a character as to become a matter of public concern. The masters and men are equally represented, and where the efforts of the president fail the board has power to inquire into the matter, and to make a non-enforceable report. It frequently happens, however, that in cases of this description it is of the utmost advantage that the public should be enabled to form a right conclusion by having a declaration of the merits of the dispute by a body compelling such respect as one composed of equal representations from masters and men, and presided over by an impartial president. I think it would also be a good thing-I am merely showing how the powers asked to be given to the Federal Parliament might be advantageously exercised-if provision was made to afford facilities for the registration of local boards of conciliation, which might similarly be ready at all times at the instance of the parties to their constitution to do what is necessary to prevent strikes and lock-outs.

Mr HIGGINS.-That is the arrangement in New Zealand.

Mr. KINGSTON.-Yes, the New Zealand and South Australian provisions are very much alike. I think you might go further, however, as we do in South Australia, and provide for the creation of a private board by a simple agreement between the parties. I do not ask the Convention to come to any conclusion as to the mode in which this power should be exercised; but I ask honorable members to say that it is a right and proper thing to give to the Federal Parliament the power of dealing with these questions in such a way as it may think fit whenever they assume an aspect of federal importance. The leading feature of this Constitution is that the Federal Parliament should have power to legislate “for the peace, order, and good government of the Commonwealth." By what means are the peace and order of the various colonies most disturbed, and their good government threatened, at the present time? By strikes and lock-outs. Shall we not then be wanting in our duty if we do not give to the Federal Parliament power to legislate in such a way as will prevent strikes and lockouts, and enable

industrial questions of the greatest difficulty to be amicably settled between the parties, upon considerations of right and wrong rather than because of the relative strength of the disputants.

Sir JOHN DOWNER (South Australia).-I entirely disagree with the Premier of South Australia. I think this proposal is [start page 187] quite unnecessary. It goes to the root of the preservation of the entities of the states and the rights of contract possessed by their citizens. In my opinion, the proposal must be a failure unless there is added to it something which those who advocate it will not be disposed to agree to. No law of this kind can be effective without a sanction. There must be a vindicatory power somewhere. Where is your vindication to come in here? Are you going to have a federal army to control the people in times of a trade dispute? If that is the proposal, who are the people who will rave against it more than those whom my honorable friend says he is assisting?

Dr. COCKBURN.-The Federal Parliament will have power to maintain the laws of the Commonwealth.

Mr. GLYNN.-How could it make men work for a fixed rate of wages for, say, six months?

Mr. HIGGINS.-In New Zealand the payment of penalties is enforced against the funds of the unions?

Sir JOHN DOWNER.-Even the argument that New Zealand has done something is not sufficient to satisfy me of the correctness of the present movement.

Mr. HIGGINS.-I am aware that nothing will satisfy the honorable member.

Sir JOHN DOWNER.-Nor do I object to it because it comes from New Zealand. What I say is, that this is not a federal question at all. The people of the various states make their own contracts amongst themselves, and if in course of their contractual relations disagreements arise, and the state chooses to legislate in respect of the subject-matter of them, it can do so. It has been done in South Australia and in New Zealand-not in any of the other colonies, I believe.

Sir WILLIAM ZEAL.-It has been done here.

Mr. DEAKIN.-No; it is merely nominal here.

Sir JOHN DOWNER.-I think it is nominal everywhere, so far as its practical effect is concerned.

Mr. DEAKIN.-It is effective in New Zealand, and fairly effective in South Australia.

Sir JOHN DOWNER.-Well, I don't know. My honorable friend knows, perhaps, better than I do how effective it is in South Australia.

Mr. DEAKIN.-I know what the Judge said who has had charge of its administration.

Sir JOHN DOWNER.-I am not aware that it has been of the slightest effect in South Australia. I have yet to learn that it has been of any use at all. I was rather in favour of making the experiment in this direction when it was proposed in South Australia; and I am now watching the working of these arbitration courts with great interest, although, as I have just said, I have seen no advantage arising from them in South Australia at present. We are now asked to hand over to the Federal Commonwealth a power of legislating with regard to internal concerns affecting every man, woman, and child in every state. Every agreement they make, so long as a sufficient number of them combine together to kick up a row, may be made subject to review before a tribunal. To pass legislation of this sort is in itself an invitation to extend the area of raising quarrels. Such legislation will tend to make such quarrels national, so as to create a power of interfering between individuals who are not satisfied with the contracts they have entered into. In the end it, must result in the establishment of some

military or other force strong enough to vindicate the decisions of the court, which step I am certain would not accord with the view of those who advocate the establishment of these courts. I hope that honorable members will think a little carefully about this question, because if they do I believe that they will come to the conclusion that the power which each state has at the present time to legislate in respect to its own industrial [start page 188] disputes is quite sufficient. An industrial dispute cannot extend beyond the limits of any state. These are individual disputes. A certain class of workmen say-"We are going to insist on being paid so much a day" in one part of Australia, and they arrange with other workmen in other colonies to make the same demand. But the disputes are confined to each state.

Mr. GLYNN.-What about American disputes?

Mr. KINGSTON.-What of the shearers' strike?

Mr. HIGGINS.-Cannot you prove concert, or conspiracy, or agreement to act together?

Sir JOHN DOWNER.-Suppose you do, that would not do anything to prove the wisdom of making complaints originating in an unimportant place extend to the rest of Australia, and of giving jurisdiction to a court to determine between the whole of the parties.

Mr. HIGGINS.-There has never been any practical difficulty in showing the existence of an organization either on one side or the other.

Sir JOHN DOWNER.-When an organization makes a demand in one colony there has never been any difficulty in getting other organizations elsewhere to extend the dispute. It is really compulsory arbitration that is asked for. It is called conciliation, but it is main force.

Mr. MCMILLAN.-“There is no compulsion, but you must."

Sir JOHN DOWNER.-I want to know what you can do when you have exercised your main force? What is asked for cannot be done, and, in the meantime, so far from being a source of producing peace and quiet, a power of this sort will actually invite the very differences which it is sought to prevent, and will deceive unfortunate persons by the supposition that in the event of there being a dispute there is a court of law that can not only decide, but that can compel their masters to concede what they desire. I think we should not overload this Bill too much. This is certainly a question on which there will be great difference of opinion, and which, if decided in the affirmative, will interfere very materially with the rights of each state to make, its own laws with respect to the contracts of its own people, and with regard to its own internal concerns.

Mr. ISAACS (Victoria).-I have the misfortune to differ altogether from my honorable and learned friend (Sir John Downer), and I desire very strongly to support the amendment of my honorable and learned friend (Mr. Higgins) in this respect. I do not agree with the proposition that providing a remedy for a known evil invites a recurrence or an extension of that evil. We know that, unfortunately, these great evils of labour disputes do arise, and are, in fact, becoming more extensive as time goes on; and we are all desirous of providing some comprehensive and sufficient power of dealing with them. We have before us now a most lamentable instance of a trade dispute in England, and, unfortunately, there is no authority which is powerful enough to cope with the difficulty, notwithstanding that it is causing immense uneasiness and distress and loss in the realm of England. I do think that if there were in existence here a distinct and powerful enactment on the part of the state for the constitution of a tribunal, both sides having confidence in its capacity to decide satisfactorily and in the wisdom of its decisions, we should, by constituting such a court, avert a national danger that might face us at any time.

Sir JOHN DOWNER.-How would you enforce the court's decision?

Mr. ISAACS.-We are not discussing a form of Bill to deal with the matter now, but we are debating the wisdom of giving power to the Federal Legislature to consider this question in the future, or to refrain from dealing with it if it think fit. If the Federal Legislature see its way in the course of the development of events [start page 189] to legislate satisfactorily, it should have power to do so, and if it find that its attempt to do so is not effectual, it will be able to repeal its enactment.

Mr. LYNE.-Would it not weaken the power to deal with the matter in the states if the Federal Parliament were to legislate?

Mr. ISAACS.-I do not think that this proposal affects the power of the states at all, because we know that at the present time trade disputes do extend in many cases, at all events, beyond the limits of particular states.

Mr. LYNE.-Take a case where a dispute does not extend.

Mr. ISAACS.-Then this provision does not apply at all. That is just the distinction which I wish to bring home to the minds of honorable members.

Mr. MCMILLAN.-Suppose one state does not believe in this power, and a dispute arises which involve every state; would not this provision give power to the Federal Parliament to interfere in the state that did not believe in the provision?

Mr. ISAACS.-Undoubtedly.

Mr. HIGGINS.-So it should.

Mr. ISAACS.-It would give power to the Federal Parliament, just as the power to regulate inter-state trade and commerce enables the Federal Parliament to prevent any obstruction of that inter-state trade and commerce. It is only when the matter becomes an inter-state dispute interfering with trade and commerce-which is, by general consent, a concern of the Federal Parliament-that the power can be exercised. This appears to me to be only the natural complement of the first sub-section of clause 52. Its tendency will be in the direction of peace, and to quieten fears and give confidence in the calm and easy working of the trade and commerce provision of the Federal Constitution.

Mr. SYMON (South Australia).-I rise to say that I hold strongly to the same opinions as I entertained when this subject was debated at considerable length and with great earnestness in Adelaide. I think that the insertion of this power in our Constitution is unnecessary, and will be absolutely mischievous. In fact, if this is to be carried out, it will create the greatest possible difficulty and complication, notwithstanding which all it does is simply to embody an expression of the sentiment of kindliness and good-will.

Mr. KINGSTON.-That is something.

Mr. SYMON.-But I say that this Constitution is not the place in which to introduce a merely barren expression of good-will. Unless it is going to be made use of in the strongest possible way-in a way which will have the effect, as Sir John Downer has pointed out, of creating the greatest possible difficulty between the various states-it is no use putting it in at all. We all, as Mr. Isaacs says, deplore most deeply the industrial strife which results in wide spreading and most mischievous strikes. There is not a man in this chamber who would not gladly join in bringing about some means-if it were possible-of preventing them by what is called conciliation. But this amendment in its very terms is a contradiction. It provides for “conciliation and arbitration for the prevention and settlement of industrial disputes." How on earth are you to apply conciliation, to apply arbitration, at all, unless first of all you have a dispute? To insert this amendment as it stands seems to me to be simply the insertion of a series of words; and stripped of these idle words the amendment simply means that the federal authority is to exercise complete power over all industrial matters. Is that the wish of this Convention?

Is it the desire of the representatives of any state that their industrial affairs shall be placed under the control of the federal authority?

Mr. DOBSON.-That is hardly what it means.

Mr. WISE.-The authority constituted could fix the rate of wages for the whole of Australia.

[start page 190] Mr. SYMON.-The illustration which Mr. Wise has given is a good one. This provision means enforcing the same wages all over Australia.

Mr. WISE.-It deprives the workers of local self-government.

Mr. SYMON.-Why should you interfere with the laws in the different colonies affecting the relations of masters and servants, which are purely a matter of domestic legislation? Why should you hand over that purely state function to the federal authority?

Mr. BARTON.-Would it be a benefit to the workers to have the same rate of wages fixed throughout the Federation?

Mr. SYMON.-That is undoubtedly a practical way of putting the question. I do not want to now occupy time in dealing with the question in detail as to industrial matters, but what I particularly want to point out is that, however blessed this word “conciliation" may be (and there is not one of us who would not give almost everything if we could see it properly applied), but whatever virtue there may be in the blessed word, it is a contradiction in terms as applied to these industrial disputes. You cannot bring about conciliation in disputes of that character without compulsion.

Mr. HIGGINS.-It has been done in New Zealand.

Mr. SYMON.-We have had on our statute-book for some years a law framed with the greatest care, displaying in every line the greatest ability, and the strongest desire to give effect to this system, and it has practically been a dead letter.

Mr. WISE.-So it has been in New South Wales.

Mr. SYMON.-There is a provision in that Act to enable trades unions and masters unions to register under it. That is the only portion of it which would enable it to be carried into its fullest effect. There are other provisions, but I do not refer to them. As far as I know, there is not at the present time one trades union or masters union which has registered under that Act. What does that mean?

Mr. HIGGINS.-Bad machinery.

Mr. SYMON.-It means that none of these bodies believe in it as a law which ought to be brought into effective operation upon them. That is all it means. At the same time, I do not say for one moment that because that Act has been on our statute-book practically inoperative, as many people believed it would be, for years, that that is any reason why this power should not be given.

Mr. DOUGLAS.-What became of the last strike in Adelaide?

Mr. SYMON.-It fizzled out. It was unfortunate, and nobody can but feel a sense of regret that it should be so, but the Conciliation Act which we have was practically inoperative to deal with the case.

Mr. BARTON.-Was not there an award?

Mr. SYMON.-There was no award under the Conciliation Act so far as I know, but there was a great deal of feeling, and many broken heads; there was a great deal of intervention by the law, which might have been avoided if there had been some system. But supposing you introduce a system of conciliation-and I frankly admit it is no reason because a statute may be inoperative in one colony that a law passed by the Federal Parliament would be inoperative-but how are you going to enforce conciliation upon 100,000 men who are engaged in a trade dispute? How are you going to enforce the award of any board or body of arbitrators in connexion with a matter of that kind? Take the case which the honorable member (Mr. Isaacs) referred to, of the engineers' strike in Great Britain, which has been a national calamity-which has driven trade from her borders, so much so that rivals in trade on the Continent have been actually contributing funds with the view of supporting this terrible strike. How on earth could the decree of any court of conciliation be enforced upon the men on strike in that case?

[start page 191] Mr. ISAACS.-Do you not think it is very probable that the British Parliament will legislate for such a case?

Mr. SYMON.-The best answer to that is that, in a unified state like Great Britain, with all the power and strength of the Imperial Parliament, they have never been able to deal with such a state of things as that. The word conciliation is mere verbiage, and it has been impossible to enforce the decree of any arbitration board.

Mr. ISAACS.-There is no reason why it should not be tried in future.

Mr. WISE.-It has been tried.

Mr. SYMON.-Would my honorable friend (Mr. Isaacs) show how it can be enforced?

Mr. ISAACS.-That is another question entirely.

Mr. SYMON.-My honorable friend will hand that over to the Federal Parliament. I do not want to hand over to the Federal Parliament too many of these difficulties. This, in my view, should be solved by the local authorities themselves. They are the people to deal with their own questions of industrialism. I do not want to enter into a discussion as to the modes of carrying out this proposal; that will be a matter for the Federal Parliament if we decide to introduce this power. But I will put to my honorable friend what is a practical question in connexion with this power. Who is to decide as to when an industrial dispute extends beyond the limits of a state? Who is to decide when a dispute originating in South Australia enters into the colony of Victoria, so that Victoria shall be put under some kind of martial law?

Mr. ISAACS.-It is a question of fact, like anything else.

Mr. SYMON.-Undoubtedly; but who is to decide it? Is it the Victorian Executive? Did I understand my honorable friend (Mr. Higgins) to say “of course"?

Mr. HIGGINS.-No, I say certainly not.

Mr. SYMON.-Then who is to decide?

Mr. JAMES.-The Federal Bill will dispose of that.

Mr. SYMON.-How is the Federal Bill to say when a strike spreads from one colony to another? Suppose one shoemaker steps over from Bordertown to Horsham.

Mr. MCMILLAN.-There might not be a lawyer at the head of affairs, and whoever was there would not know what to do.

Mr. JAMES.-You may be certain the lawyers will be there.

Mr. SYMON.-That would be the only means of carrying this out to a successful issue. As an honorable member suggests-and it illustrates the position-supposing a firm has branches in different cities, and there is a strike in the branch in South Australia, and an air of discontent in the branch in Victoria, would that be sufficient to call down the interference of the federal authorities? What I say is that it will not be in your Bill; it will not be in this Constitution; it will not be for the Executive; but it will be for the Federal Parliament to decide that, and you will hand over to the Federal Parliament one of the most pregnant sources of heat and passion that ever was invented.

Mr. HIGGINS.-Will you not trust the Federal Parliament with this as well as with the customs duties?

Mr. SYMON.-What relation has this to customs duties? The industrial life of the state is considered by all of us (subject to this exception, it may be) a thing of purely domestic concern. We do not want to interfere with the domestic life, or with industrial life, except in the last resort. If you are going to introduce such a thing as this it must be the Federal Ministry which will have to decide, subject to the Parliament, and you will introduce the greatest complication and intensity of feeling that was ever seen.

Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are intimately allied to this question.

[start page 192] Mr. LYNE.-There is the case of the Lucknow strike.

Mr. SYMON.-Take the case of that strike, or the case of any other strike where you send to another colony for free labour-that might be right or wrong, but we are not discussing that now. Free labourers come over to a colony where the feeling is intense; they had difficulties in front of them in the colony whence they came-is that the development of a strike in both colonies? Is that extending the strike to the second colony? These considerations show the boundless ramifications of such a question, and they ought to make every one of us pause before we throw such an apple of discord as this would be into the Federal Parliament. We shall have a sufficiently fine crop of difficulties without overloading the Federal Parliament, and without introducing matters of this kind, about which, undoubtedly, passion will rage in the most intense degree. We cannot help it. We all know from what is going on around us what will happen. Although we may all be desirous, as we are, of putting a stop to strikes, there is no way in which it can be accomplished except by leaving it to the law and to the states, which deal with industrial matters-with masters and servants-and which are more competent to settle the differences, and more competent to appreciate all these local necessities, than any federal body can possibly be.

Mr. DOBSON.-How can the law of a state deal with a maritime strike?

Mr. SYMON.-How can the Federal Parliament deal with it?

Mr. DOBSON.-How can any state deal with such a strike?

Mr. SYMON.-It is a local dispute in a state. My honorable friend does not seem to see that a maritime strike does not take place on the high seas. A man comes into port, and he leaves his ship.

Mr. DOBSON.-You cannot speak of that as a local strike.

Mr. SYMON.-When a maritime strike takes place the men when they come into port leave their ships.

Mr. DOBSON.-In that case it would not be a local strike-it would be national.

Mr. SYMON.-The dispute must arise in some port.

Mr. MCMILLAN.-This is an inducement to make it go to every port.

Mr. SYMON.-That is another reason. When the last maritime engineers' strike took place it began either in Melbourne or Sydney.

Mr. HIGGINS.-Where did it end?

Mr. SYMON.-In some place.

Mr. HIGGINS.-In two colonies.

Mr. SYMON.-It never took place in South Australia.

Mr. HIGGINS.-It ended in the same places where it occurred-Melbourne and Sydney-and how could the Victorian law deal with that?

Mr. SYMON.-Does my honorable friend, who is one of the most profound and acute lawyers in Australia, really put a question like that to me? The Victorian law did deal with that strike and every incident of it. The Victorian law could not bring these people together, and metaphorically knock their heads together, which would perhaps have been the best thing to do; the Victorian law did not say “Come together and let us reason out the thing." No power in the world can do that.

Mr. BARTON.-It is the original dispute and not the subsequent strike which requires to be settled.

Mr. SYMON.-A strike is the outward and visible sign of the real dispute between these parties. I appreciate the reference made by the honorable member (Mr. Dobson), but I think be must see that a maritime strike is like any other strike. The relations between the parties are determined by the contract in the place where it occurs. The maritime law of England governs all Australia; the Merchant Shipping Act, with some local modifications, is applicable everywhere, and [start page 193] there is no more difficulty in dealing in each port with a maritime strike than there is in dealing with any other strike. The point here, as the honorable member (Mr. Barton) has remarked, is the original dispute. How are you to deal with that? How are we to deal with the two bodies who join in the conflict? What is a court of law to do?

An HONORABLE MEMBER.-How does a court of law do anything at present?

Mr. SYMON.-My honorable friend knows that if a striker strikes a free labourer, or vice versa, and that goes to a court of law, you can deal with it by the instrumentality of the court of law.

Mr. JAMES.-The honorable member was saying that we should leave the parties to settle the disputes their own way. We do not allow masters and servants to do that in every case.

Mr. SYMON.-You allow them to settle their disputes in their own way by law.

Sir JOSEPH ABBOTT.-The defendant never wants to go to law.

Mr. SYMON.-Of course not. I do not suggest that we should resort to the primitive method of settling disputes by fisticuffs or trial by combat.

Dr. COCKBURN.-Strikes are almost as barbarous. We want to settle disputes by a less barbarous form.

Mr. SYMON.-Will my honorable friend tell me, first, how he is going to settle the dispute which has produced the strike; and, secondly, what possible benefit it will be to remove this from the local jurisdiction, and to hand it over to the federal authority? My view is that it is purely a matter of domestic concern, that if we hand it over to the federal authority we shall be introducing greater difficulties than we could even hope to cure, and that it will be an invitation to mischievous men-it may be on the other side, but we are not touching that question now-to increase and extend the area of the strike in order to bring about something like civil war. That is a prospect which I dread, and I trust that honorable members will not allow a mere feeling of sentiment, the pleasure of seeing the word “conciliation" in this Bill, to lead them away from the practical issue of how they are to justify the federal authority being intrusted with this great power.

Mr. TRENWITH (Victoria).-The honorable and learned representative of South Australia, who has just resumed his seat, has pointed out innumerable difficulties in connexion with leaving this question to the Federal Parliament. I respectfully submit, however, that by earnest men difficulties should be looked upon not as insuperable, but simply as things to be overcome if the end justifies the effort. I think it is impossible to overstate the importance of this question. It is true that there are many and great difficulties in dealing effectively with this question; but that all seems to me to point to the necessity of endeavouring to deal with the question and to overcome the difficulties. It is true that legislation on the question has not anywhere yet fully met the difficulties of the case; but it is true also that legislation has to some extent minimized those difficulties. It is true also that conciliation, both voluntary and legislative, has been tried, often without effect, and often with very desirable results. Wherever legislation is undertaken or considered upon this question, the desirability is discussed of securing some means that will make the decree of an arbitration board effective, and the same argument as that which was used by the honorable and learned member (Mr. Symon) is continually used with effect-how will you enforce a decree of a court on hundreds of thousands of men? All who have studied labour or industrial difficulties know that the principal base on which they are fought out is public opinion. If we could by some means create a tribunal which would inspire the people with confidence, and compel the parties in conflict to submit their case to it-and [start page 194] I think that is possible-a decision by such a tribunal would have an immense effect upon public opinion, and would, if it did not settle the matter satisfactorily, at any rate bring the struggle to a close. Industrial struggles are becoming more injurious every year, because our industrial system is becoming more complex every year. In the past it was possible for a number of men to strike and injure very few but themselves, or for a number of men to lock out and injure very few but those immediately interested. But our industrial system has become so complex that it is possible, and, indeed, it often happens, that the parties to a dispute are very few, but that the parties indirectly and seriously injured are very many. Thus it is possible for a handful of men, by refusing to go on with work under the conditions which prevail, or by throwing out of work a few under the conditions which prevail, indirectly to render workless many times more persons than those originally engaged. Having in view this important aspect of the case, it becomes all who think on this question to see if some means cannot be adopted whereby the evil of industrial conflicts shall be minimized. The honorable and learned member (Mr. Symon) points to the efficacy of state legislation for dealing with industrial disputes. In consequence of the continually increasing complexity of our industrial system there scarcely ever happens an industrial dispute of any magnitude, at any rate in the colonies, without it spreads its effect over the borders of two or three, and sometimes of all the colonies. This was notably so in the maritime strike which took place some years ago over the difficulties with the marine officers. That dispute, at some time or other of its existence, existed, I believe, in every one of the colonies, including New Zealand, and if there had been any means of compelling a decision-not necessarily of compelling acquiescence with the decision, but of compelling a decision-

Mr. O’CONNOR.-Does not that follow?

Mr. TRENWITH.-That does not seem to me necessarily to follow, although it would be a splendid thing if we could devise some means by which equitable obedience could be commanded. I would make it compulsory on the court to arrive at a decision.

Mr. MCMILLAN.-You would make it compulsory for the parties to appear.

Mr. TRENWITH.-I would make it compulsory for the parties either to appear or to submit to a decision ex parte. If it was made compulsory for them to appear, or, at any rate, compulsory for the court to arrive at a decision on such information as it could get, I think it would have an immense effect in minimizing the evil effect of industrial disputes. I have been associated for twenty odd years with one of the interests that are involved in these disputes. During that time I have been connected with the conduct of one side of the disputes, and so terrible do I consider them to be, that I can fairly and safely say that I have never counselled a strike. I have felt that if it could be avoided by any possible means it should be avoided and it was only when every other effort had been tried, as far as I could, that I have ever sanctioned or taken part in any conflict of this character. Failing some legislation on the point, these disputes must continue to occur. Evil as they are during their currency, it cannot be denied that they have done a great deal of good; but they do the good, when they do good-and they very often fail to do good-in a very brutal, cruel, and unscientific manner; and if any means can be devised by which the brutality and cruelty involved in these conflicts can be avoided, and the good assured, it is an object worthy of the efforts of the very best men that can be got to achieve it. It seems to me that, in handing over this question to the Federal Parliament-and I may say here that my views have undergone some change since I first began to consider the [start page 195] question-we do not deal with it; we merely say that it is an important subject which ought to be within the power of the Federal Parliament to deal with. It seems to me that we are not justified in troubling ourselves very much about how the Federal Parliament can deal with such questions. If the Federal Parliament finds it impossible, as up to the present time the state Parliaments have found it impossible, to deal effectively with the question, the probability is that it will not deal with it. At any rate, it seems to me that it ought to have the power to deal with the question; and I earnestly hope that, as time goes on, and as attempt after attempt is made to deal with this important question, an experience will be gained which will eventually enable the Federal Parliament and the state Parliaments to deal effectively with what, up to the present time, the latter have failed to deal with effectively. As an active participator in the disastrous maritime strike of 1888, I know that one side in the dispute was for the whole time of its currency appealing for a settlement of the dispute by conference, or by the appointment of an independent tribunal, by which the parties should agree to be guided. Unfortunately, whenever a conflict of that character arises, generally one party, and often both parties, to the dispute, feel that they are strong enough to win-that they can win anyhow-and therefore why should they submit to possible concessions? That is always the difficulty; and there ought to be imposed by the whole of the people, in defence of the whole of the people from these disastrous conflicts between sections of the people, some power to compel the parties to submit their case, and to guide them in bringing the conflicts to a close, or in continuing them if it is thought desirable so to do. Now, in the conflict which is near its close in Great Britain, the people of the civilized world have been interested. In some measure the people of the civilized world have taken a part in that conflict, only guided by such information as was conveyed to them by partisans; partisans who have an interest, and who are justified, under the circumstances, in presenting their side of the case as strongly as it can be presented, and in weakening the case of their opponents. So that the people, while acting, while fighting, while carrying on a conflict by means of this assistance and sympathy are very often misled, because of the inadequate and sometimes garbled and warped information that they receive. Surely a tribunal constituted in such a manner as we have a right to assume that it will be constituted if the Federal Parliament had power to deal with it, would at least be a tribunal so constituted and composed of such men as would give an assurance to the people that, whatever view was taken, the information submitted was reliable, and would be a fair and trustworthy guide for the people to exercise their predilections in connexion with. I hope, therefore, that this power will be given to the Federal Parliament. I confess that, like Mr. Symon, I think it highly improbable, at first, that the Federal Parliament will be able to deal with it very effectually, but I submit to the honorable gentleman and others who think with him on this question that, even in that event, the inability of the

Federal Parliament to deal with it will do no harm. We shall be no worse off than we are now if it transpires that the Federal Parliament is unable to deal with it effectively, but if there should be some sensible method of dealing with conflicts of this character in the way we contemplate, in supporting this proposal, it is necessary, in consequence of the inter-colonial rather than the state character of many of these industrial disputes, that the Federal Parliament should devise the scheme, because, in that case, however extensive the ramifications of the disputes in question, whenever they were touched by the tribunal that was to deal with them [start page 196] they would be touched in every part and corner of the Australian Continent, and, if federation becomes as complete as we hope, in every corner of Australasia, at one and the same time. Now, that seems to us to be a very desirable consummation. We had, in conjunction with the maritime strike to which I have referred, an extremely important and to these colonies extremely disastrous conflict in connexion with the pastoral industries. The shearers' strike went on at the same time as the maritime strike-a part of it.

Sir JOSEPH ABBOTT.-And it was settled the moment the two sides were brought together.

Mr. TRENWITH.-Yes, as Sir Joseph Abbott points out, it was settled eventually by means of voluntary conciliation. When the people got together, and reasoned together on the matter, when they could be induced to do that, they came to a mutually acceptable settlement. But that is the difficulty that creates the necessity for legislation-to get people who are, angry with each other, who are calling each other names, and saying bad things about each other, to get machinery by which they can be compelled, as it were, to come together-because when they do come together, experience has taught us, in hundreds of cases, that what appeared to be insuperable difficulties-what appeared to be differences of opinion about which they would fight to the death-have disappeared almost immediately. Those difficulties and differences have only required to be touched by the finger of reason, and they have vanished into thin air and left nothing behind. I remember, and, probably Mr. Symon will remember that-some eleven or twelve years ago there was a conflict in the boot trade in South Australia. They were warring to the knife and they threatened on each side to sell their shirts before they would give in. I had the honour to be sent by a trade union organization here to report whether assistance should be forwarded from this colony, and I was fortunate enough to suggest successfully that the disputants should come together, and talk the matter over. They had a conference at which they did me the honour of electing me as arbitrator. That conference sat, and drew up a set of regulations which were so satisfactory that both sides appeared to think that they had, achieved something, and were satisfied, and the result of that mediation and that conciliation was that for eleven years in Adelaide, there was never any difficulty that they were not able to settle by voluntary conciliation.

Mr. SYMON.-The difference is that that was voluntary, and this would be compulsory.

Mr. TRENWITH.-Well, I was coming to that point. Lately, within the last few months, they have had another fight there. Being so successful on the previous occasion, I felt that possibly I might bring these parties together again, and I took the trouble and went to the expense of going to Adelaide. But the circumstances were different, one party to the dispute saying at that time that it felt it had no need for conciliation, and it was so certain, of winning that it would not consent to meet the, other party voluntarily and conciliate. Now, if there had been an effective conciliation or arbitration law in South Australia-which there is not, although they have done what they could do, and what shows, perhaps, the necessity of trying to do more-if there had been an effective law upon the point, the authority created under that law could have said to those two parties-"You are breaking the law, you are causing distress to South Australia, you are doing injury to the people of this country, and you must submit your dispute to the arbitrament of a body having not only your interest but also the interests of the whole community at heart." And then, as eleven years ago, I have not any doubt that an end would have soon been put to the difficulties which divided those people, and that, were calculated to continue to divide them until one side was beaten, and [start page 197] that have led to a state of affairs in the boot trade of Adelaide now that every citizen of South Australia, I am sure, deplores, because wages have been brought down inordinately, and men are working under conditions of discontent and hardship that would not have existed, I believe, if there had been what we are aiming

to get-what all progressive men on this question are endeavouring to secure-the means by which the people who are engaged in a conflict that injures, first of all themselves, and indirectly all those who are in connexion with them-a body which when such conflicts arise, shall have power, not to take the disputants and knock their heads together, but to say that they must come together and state their cases in the presence of persons who have the capacity and the desire to sift them, to analyze them, to say to the people of the colonies which side is right, to say how far-as often happens-both sides are wrong, and how far either the one side or the other is wrong and thereby to give an accurate and fair index to the people as to how their sympathies should go. I think that if this matter is grappled with, as it will and must be grappled with, that there will be a time, difficult as the problem is, when there will be found some means not only of arriving at an equitable decision, but of enforcing obedience to an equitable decision.

Sir JOSEPH ABBOTT (New South Wales).-As one who has already recorded his vote against the proposal of Mr. Higgins, I desire to say an this occasion that I intend to vote for that proposal. It may appear somewhat inconsistent for me to do so, but I was very forcibly struck by the arguments of Mr. Kingston that the proposal, was a just and fair one, and the arguments of Mr. Symon convince me that the proposal is just and fair. Mr. Symon said that this was a mere proposal, and simply idle words. Well, if it is-

Mr. SYMON.-I said it was either that or-

Sir JOSEPH ABBOTT.-I took the honorable member's words down at the time.

Mr. SYMON.-Will the honorable member permit me; I said it was either that or a mischievous proposal.

Sir JOSEPH ABBOTT.-Did not the honorable member say it was idle words?

Mr. SYMON.-Yes, certainly.

Sir JOSEPH ABBOTT.-If the proposal is simply idle words, what harm can we do by inserting it in this Bill?

Mr. BARTON.-That would not be a good justification for altering the Bill all through.

Sir JOSEPH ABBOTT.-If the insertion of these words has the effect of satisfying a sentiment which we know largely prevails throughout a certain class in Australia-if they are only idle words, what harm will be done by inserting them in the Bill? Mr. Symon argued, in reference to the insertion of those words, more as if be were pointing out what the Bill would or would not be, rather than as on a proposal to give the Commonwealth power to deal with this question. I can really see no harm in giving the Commonwealth power to deal with the question. Mr. Trenwith has referred to the fact that very often these industrial disputes are easily settled if the parties to the disputes can be brought together. Mr Symon asks-"How can you enforce an Award or determination against 100,000 working men?" Well, we know that it is absolutely impossible to do so. But we also know that the working men, at least in this 19th century, are just as amenable to public thought and reason as anybody else, and are just as amenable to public opinion as the masters themselves. And, although these awards cannot be enforced against them as a matter of law, I can say, from my own experience, that I believe they will be accepted by both parties. I have witnessed the action of conciliation courts sitting in Dunedin. On one occasion a dispute arose, I think, between the builders and the carpenters, and the matter was referred [start page 198] to the conciliation court. An award was made, and the men's unions universally condemned that award, but every one of them loyally submitted to it, and business went on without any of those quarrels which might have disorganized the whole of that particular trade. I am not quite sure whether the dispute was in the building trade or amongst the shoemakers-it was either the one or the other.

Mr. TRENWITH.-It has often been so, anyhow.

Sir JOSEPH ABBOTT.-What we want to do is to give the Federal Parliament power to bring these parties together. I do not care whether any good results come from it or not. Very often these strikes occur because the parties are not brought together to talk over their differences. Take the case of the shearers' strike. Neither the pastoralists nor the shearers would agree to come together to discuss the questions in difference between them; but take the case of an ordinary dispute between masters and men, they will meet each other if these courts of conciliation are established, and they may be able to reconcile their differences. Why should not organizations of trades unionists and masters, which represent very largely the industries of the colonies, be brought together to reason out their differences, and thus prevent disastrous strikes as far as possible? No better example than that of the pastoralists' and shearers' unions could be given to show what may be done if the parties to these industrial disputes can be brought together. During that dispute I was Speaker of the Legislative Assembly of New South Wales. I did all I could to induce the Trade and Labour Council in Sydney to try and persuade their body of men to meet the pastoralists, and I did the same with the pastoralists' organization. But each side stood aloof. Neither the one nor the other would give way and say-"We ask for this conference." But finally they did come together, after all the mischief was done; each one gave the other something, and each went away perfectly satisfied that they had gained a victory. Now, we hear a great deal of blustering during these strikes, and it is an unfortunate thing for nine-tenths of the working men that their leaders talk a great deal too much, and talk a great deal of rubbish. If those labour leaders said less and worked more earnestly half the mischief that arises from strikes would not exist. But we hear a lot of this blustering. For instance, in the course, of the shearers' strike, it was said that no wool would be allowed to go out of Australia unless it was shorn by unionists. That sort of thing does not tend to bring about the settlement of disputes. However, in this particular dispute, as soon as the men and masters met in a conference extending over some days, they mutually gave way; each gave away something, and each went away satisfied that they were the victors. If this is only a sentimental proposal-if these are mere idle words-what harm can come from giving to the Commonwealth power to legislate upon this subject? Does it follow that the Commonwealth will legislate upon it? The Commonwealth may determine to leave the whole question to the states themselves to settle, but if this power is not given to the Commonwealth, in no instance can they interfere in a dispute, although they may be deeply interested in it. There is no man in this colony, I do not care what his position is, whether be is rich or poor, who is not indirectly affected by a very large strike. Men who are unconcerned with these strikes altogether, we all know too well, suffer from the strikes, and those concerned in the industrial warfare are often dragged down to poverty and discontent by means of these strikes. Well, I do not care what means you take to put a stop to this sort of thing, even if it is only by insetting a sentimental proposal-mere idle words-in this Bill, if it will have the effect of putting an end to these disastrous industrial struggles.

[start page 199] Mr. HOWE (South Australia).-I wish to say a few words in connexion with this question, because I wish to separate the national aspect from the local aspect. It has been admitted on all hands that conciliatory legislation in the various states has, at all events, done no harm if it has not achieved some good. I can imagine, myself, no greater disaster that can happen to any nation, if we are to be a federated one, than, for instance, a coal strike in the state of New South Wales. Now, supposing there was some dispute in the coal mines that might be settled by the Federal Parliament creating a tribunal that might stop it, perhaps, in its early stages, and suppose we had a continuance of that coal strike, I say that the long continuance of such a strike in New South Wales would be very disastrous to every state in Australia. I know that not long ago, when the dispute arose between the coal-owners and the coal miners, many industries in the various states of Australia were paralyzed in consequence. Now, it seems to me that this is one of those affairs in connexion with which the federal authority should have power to intervene, because such a dispute interferes with the industrial life of the individual states. It may be that hundreds, aye, thousands, of artisans and mechanics, who have no sympathy, perhaps, either with the coal mine owners or the colliers themselves, will have to suffer, and their families have to suffer, through the long continuance of the cessation of the working of the coal mines in New South Wales. That is one reason why it seems to me to be necessary to give power to the federal authority to

create a tribunal to deal with such a question as this. We remember that during the great maritime strike, not long ago, many industries were paralyzed, the workers in which had no sympathy with that strike at all. Nevertheless, great disaster fell upon the whole of the people of the states in consequence of that dispute. I submit that if we say we are willing to give to a state power to interfere, and to try to settle any industrial disputes within that state, then, if we are to create a nation, why should we not, on the same reasoning, give power to the national authority to intervene, if necessary, when the dispute interferes with the industrial life of the nation? For these reasons I intend to support the amendment of Mr. Higgins.

Mr. O’CONNOR (New South Wales).I think the honorable member who has just sat down has shown, from what is going on in his mind, a confusion of ideas with regard to the purpose and object of this amendments confusion which I think is rather prevalent. No one can have more sympathy than, not only myself, but several other members who have taken the same view with regard to the disastrous consequences of strikes which the honorable member has just pointed out, and I think that all of us in our several colonies have done our best by way of legislation-which is only in the experimental stage-to deal with the matter. It must not, therefore, be assumed that those of us who oppose the placing of this power in the Federal Constitution are any less sympathetic with those troubles and disasters, which affect not only the workers but the whole community. We base our opposition to the insertion of this clause in the Federal Constitution upon this ground only-that the matter is a matter not for federal control but for state control.

Mr. HIGGINS.-How could you deal with a shearing strike or a shipping strike in that way? How could that be a matter for state control?

Mr. O’CONNOR.-I would point out to the honorable member that, after all, when you come to deal with these cases so as to settle them, you must settle the dispute between the original parties. You don't get rid of the dispute between the original parties by settling the extension and the indirect effects of the dispute; you must settle the dispute itself. Now, the dispute occurs in one state, and the dispute generally depends on [start page 200] the terms of a contract or on the terms of employment, so that, however widespread the consequences of that one dispute may be, in order to arrive at a settlement of a strike you must settle the dispute. Therefore you have to deal with a matter arising in a particular state subject to local conditions, and referring to a contract made by parties living in that state. It is a matter, therefore, which really, except in regard to its consequences, the Federal Commonwealth has no concern with. However, I will not pursue that aspect of the question for the present; I wish rather to deal with a statement and argument of the honorable member (Sir Joseph Abbott) which seemed at first sight to have some weight; that is, that if this is a mere form of words, mere “idle words," why should we not put it in the Constitution? Now we are often asked not to regard the details of this legislation, but I say that in dealing with this question we cannot avoid that. If we give this power to the Commonwealth, it behoves us to see how it is likely to be exercised; because it depends entirely on the way in which it is to be exercised, whether it should be granted or not, even if it be within the scope of federal power.

Mr. KINGSTON.-Surely it is for the people to say how it shall be exercised.

Mr. O’CONNOR.-The right honorable member says that it is for the people to say how it shall be exercised. I quite agree with him, and it is because I see and I think any one who reflects must see-that it will be exercised in the one direction-a direction which it would be disastrous for the Commonwealth that it should be exercised in by the Commonwealth-that I am opposing this proposal. As I have said, the whole of this legislation is in the experimental stage. I think in all the colonies-certainly in New South Wales, South Australia, and New Zealand, and perhaps in other colonies-what is called conciliation has been tried. Now, I think I am not stating the case too strongly when I say that the result of that experiment has been a disastrous failure.

Mr. KINGSTON.-Oh, no; not in New Zealand, any way.

Mr. O’CONNOR.-That certainly has been the result in New South Wales, where a great deal of trouble was taken, not only to give opportunities to establish conciliation courts, but where the government actually established a conciliation tribunal presided over by a man in whom the whole community had the greatest possible confidence, and where they kept up a department with all the machinery of registration and everything else that was necessary to bring the thing into full operation. Yet, time after time, the result showed its utter futility. When we consider the number of strikes that have been interfered with and settled by means of boards of conciliation in other parts of the world, I think it must be generally admitted that we have gone through the first stage of this experimental legislation, that is, the stage which leaves these matters to conciliation and voluntary peaceful methods, and I think that if the verdict has not been given already, the verdict certainly will be, when the matter comes next to be dealt with, that that stage has shown the utter futility of voluntary methods. Then can any one doubt that the next stage will be compulsory arbitration

Mr. HOLDER.-The power of inquiry in South Australia has been most salutary.

Mr. O’CONNOR.-The compulsory power of inquiry.

Mr. HOLDER.-They get the fear of public opinion before their eyes on both sides.

Mr. O’CONNOR.-When the honorable member says they get the fear of public opinion before their eyes he means really this-that probably the business man, the manufacturer, rather than have his accounts and his books ransacked for twenty or thirty years back, often submits to what he considers injustice.

[start page 201] Mr. KINGSTON.-Oh, no.

Mr. O’CONNOR.-I do not want to go into the question of the actual working of the thing in any particular colony at all, but I say that the next stage of legislation will undoubtedly be some form of compulsion.

Mr. KINGSTON.-That means that the people will require it, and are you going to say that they shan't have it if they want it?

Mr. O’CONNOR.-The right honorable member, with all respect, is begging the question. The real question now is, not whether the people want it, but whether the power should be given to the Commonwealth, that is to say, the whole of the Commonwealth, to enforce the compulsory reference of disputes in one particular state. If this power to legislate is given at all, the next step in legislation must be, if it is to be effective, to grant compulsory powers, and you have to regard this matter as if the power was to be exercised in that way. Honorable members cannot deny that it can be exercised in that way, and the probabilities are that it will be exercised in that way.

Mr. HIGGINS.-If the Federal Parliament is wise, will it not refuse to do an unwise thing?

Mr. BARTON.-Are we not to assume, if we grant this power, that it will be fully exercised?

Mr. O’CONNOR.-I would ask the honorable member (Mr. Higgins)is he in favour of some form of compulsion?

Mr. HIGGINS.-I am not in favour of anything at present but of leaving the thing to the Federal Parliament.

Mr. O’CONNOR.-The honorable member, however, has given some attention to the subject, as he has to all subjects of a social character, and I would ask him what is his own opinion? If the honorable member is afraid to disclose his opinion to me-

Mr. HIGGINS.-I am not afraid of disclosing anything to you, but I want to make no false issue, but to leave the thing absolutely to the Federal Parliament.

Mr. O’CONNOR.-The honorable member is mistaken in saying that this is a false issue. We must consider how the power is likely to be used.

Mr. HIGGINS.-Will you trust the Federal Parliament?

Mr. O’CONNOR.-I will trust the Federal Parliament when it gets a power of this kind to do what it considers to be effective, and the only way in which it can deal effectively with this matter is to make the power in some way compulsory. I will trust the Federal Parliament with any matter which is a matter of federal concern. The best way of proving that this is not a matter of federal concern is to inquire how it is likely to operate if the power is to be exercised in the way in which it is certainly likely to be exercised.

Mr. ISAACS.-Surely that is not a correct principle to go upon? Before giving a man a vote would you inquire how he is likely to use it?

Mr. O’CONNOR.-That is not an analogy.

Mr. ISAACS.-It is very like one.

Mr. O’CONNOR.-When you are dealing with a power of this kind, the very best way to discover whether it is a federal power is to consider how it may be exercised. I do not say for a moment that I would interfere with the right of any state to place this matter upon a compulsory footing. Any state may make that experiment if it thinks fit. Personally, I am not in favour of such a provision, but I say that on this short ground I oppose the introduction of this power into the hands of the federal authority; because I feel convinced that compulsory power would be sought for, and would be obtained. Now, in the first place, it would be a most dangerous thing to bring the federal authorities into conflict-not with a particular locality and a certain number of men in dealing with one of these cases, but with the whole Commonwealth. I say, as Mr. Symon has said, that you have in that an element of difficulty and danger which we should not needlessly expose the [start page 202] Commonwealth to. I really got up, however, chiefly to point out that it is a dangerous argument to use in favour of this power being inserted in the Constitution that it consists merely of “idle words." If it is put in the Constitution it will be exercised, and if it is exercised it will be exercised in the direction of enforcing by the powers of the federal authority interference with contracts in a state, the carrying out of which must depend originally upon an agreement, and in the second place upon conditions which are undoubtedly local. The enforcement of such a power might, under certain circumstances, not only be absolutely against the best interests, but even against the wishes, of the state in which it may be required to be enforced. I hope the result of this discussion will be that, however much we may feel in sympathy with this social experiment, we shall say that it is one to be conducted in our own states, and that we shall not add this further power to those quite sufficiently large which have been vested in the Commonwealth.

Mr. DEAKIN (Victoria).-It appears to me that the reply to my honorable friend is that there are already embodied in clause 52 a number of powers which, under perfectly conceivable conditions, may involve the Federal Government in the most serious relations with certain classes in the various states, and that in no case has that been urged as a reason why we should not confer those powers. I admit that the danger depicted by the honorable member may readily occur, but the whole of the legislation with which we have to deal is subject to greater or lesser danger. We have all recently seen that in the great Republic of the West the questions which come under the headings of “currency" and “coinage" have threatened to rend the Union asunder. It is impossible to refuse to permit the settlement of great federal issues by the Federal Government simply because they involve dangers, unless the Federal Government is to deal only with minor and unimportant questions, and to be a kind

of glorified Federal Council, instead of, as we intend, the popular and central Government of the whole of Australia.

Mr. BARTON.-That is an argument for unification.

Mr. DEAKIN.-All arguments for federation are arguments for that degree of unification, necessary for national interest and national ends. Mr. O’Connor also urged that as yet this question was only in its experimental stage, and that the legislation on the subject in Australia has not been by any means conspicuously successful. It has been partially successful in New Zealand, but nowhere else, although in some form it has been attempted in several colonies. I admit that the honorable member has made a correct statement of the facts. I was under the impression that a greater measure of success had been attained in South Australia, but am now better informed. What does that lead to? Does it not lead to a recognition of the fact that in all these delicate and intricate social questions there will have to be an abundant series of cautiously-conducted experiments before we can hope to arrive at a final settlement?

Mr. O’CONNOR.-What is the next step?

Mr. DEAKIN.-I admit that I am impressed by the extreme intricacy of this question, and the difficulty the Federal Parliament will have in dealing with it. But the Federal Parliament will have the same difficulty in dealing with a variety of issues, such as the financial issue, the question of Customs and the measure of protection to be extended to Australian industry. And yet in those cases we trust the Federal Parliament. Why should we not do so in this instance also? Mr. O'Connor asks what is the next step? The honorable member's argument was that most of the experiments in Australia have been in the voluntary stage, and that the next experiment will be in the compulsory stage. So far as I can forecast the future, I agree that that is likely to be [start page 203] so. That adds to the difficulty of the situation and the complexity of the problem, but neither difficulty nor complexity need deter us if we believe this to be distinctly a federal question, that is to say, a question which will become a federal question when it has extended beyond the limits of a single state. I do not regard the proposal as a form of idle words, or as conferring a power that is to be allowed to remain unused. At the same time, this is a power, like many others, not likely to be exercised by the Federal Parliament for many years to come. The Federal Parliament will be impressed by the importance of the experiments that are proceeding in the states. It will watch them carefully, and will deal with the subject as soon as it feels it is competent to do so. It will be under no compulsion to accept any solution of these difficulties until it feels that it has obtained a satisfactory solution. The argument of “Trust the Federal Parliament" appears, to me to be applied most properly in this connexion. The other plea which I would venture to urge is one which carries weight with many other honorable members. It is that, as far as we legitimately can, we should strengthen the Federal Parliament and the Federal Government. Wherever we can detect a federal interest or power we should provide for it in advance, without waiting for public clamour or the long agitation leading up to an amendment of the Constitution. We should provide in advance for all conceivable federal contingencies, strengthen the Federal Government, and trust the Federal Parliament to use its powers wisely.

Mr. DOBSON (Tasmania).-I desire to say a few words, because I am going to support the amendment, whereas on a former occasion I voted against it. In matters of this kind it is exceedingly difficult to prevent one's sympathies running away with one's judgment, and after the able speeches of Mr. Higgins, Mr. Isaacs, and Dr. Quick, which appealed to my sympathies, came the sledge-hammer arguments of Mr. McMillan and Mr. Symon. I think it must be clear to a majority in the Convention that these honorable members have rather tried to stifle their sympathies, and have very carefully and quite unintentionally exaggerated in every particular the difficulties surrounding the simple amendment of Mr. Higgins. My honorable friend (Mr. Symon) even picks to pieces the wording of the amendment. Mr. Higgins does not mix up conciliation and arbitration in the way Mr. Symon would lead us to suppose. The amendment means conciliation for the prevention of disputes, and arbitration for the settlement of them, and I have no fault to find with the language used. Then Mr. Symon said that he would not take up the time of the Convention in considering the mode in which the Federal

Parliament might carry out this power if invested with it, but in the next breath he stated that the Federal Parliament, if it had this power, would fix wages for the whole of Australasia. Mr. Wise interjected that by giving this power we should hand over the regulation of industrial disputes of every kind to the Federal Parliament. Now, I would ask, are not these exaggerations which we have a right to call attention to? I think that they are. Mr. Symon insisted, with very great firmness, that a maritime strike was purely a local matter. Now, may I, with every respect insist with equal firmness that a maritime strike could in no sense of the word be a local matter? It must be a national matter. I am sure every honorable member knows the great and gigantic strides which are being made in all parts of the world in the direction of organization. I need only refer to the political organizations of America, to your federal labour associations, and to your federal employers' associations. These associations are becoming more scientific and powerful, and I can hardly understand any honorable member saying that a maritime [start page 204] strike would be local. Just in the same way as our Most Gracious Majesty the Queen touched the button and flashed a message of gratitude and goodwill to all the people of the empire, so the time has now come, or will shortly come, when the secretary of a federated labour society will touch a button or write out a little cablegram, which will be flashed throughout all Australasia, and will make any strike a national strike in every sense of the word. I cannot, therefore, agree with those honorable members who say that this is not a matter of federal concern. Mr. Higgins only asks us to give the Federal Parliament power to deal with those strikes the influence of which has extended beyond the borders of a single state. Mr. Symon asked what power would determine whether a strike had so extended itself. That power would, I presume, rest with the Federal Court. If the Federal Parliament, in the opinion of any individual, oversteps its authority, the Federal Court will be there to say whether it is right or wrong. I think that Mr. O'Connor was mistaken, although he has very good reasons for assuming, that the next stage in this matter will be that of compulsory arbitration. The Convention should not, however, allow itself to be influenced by that argument. I do not look forward to the time when it will necessarily be compulsory. The Federal Parliament will wait for the psychological moment. This is about the last question it will touch until it can touch it usefully, and in the interests of commercial life. Honorable members seem to think that if they give this power to the Federal Parliament the Federal Parliament will rush in and use it without reason and common sense. I can come to no such conclusion. Supposing the Federal Parliament contented itself with passing a modest Act constituting a tribunal of five persons. It might be provided that the Chief Justice or one of the Judges of the Federal Court should sit on this tribunal, and that there should be associated with him two or more gentlemen representing the employers of labour, and two or more gentlemen representing the employees. Would not a tribunal of that sort be capable of doing untold good in the settlement of labour disputes? After the first week or two of the engineers' dispute was it not seen that the employees must lose? Did not the newspapers teem with information about the hours and conditions of labour in other countries of the world which showed that the employees must lose? What happened? The Engineers' Association went on spending funds which ought to have been used in other ways, and particularly for the benefit of the widows and orphans. There ought to be a law to prevent an association from doing anything of that kind. If they had had a tribunal, and especially a tribunal with the dignity, the power, and the importance of a federal tribunal to refer the matter to, this engineering dispute might have been settled two or three months ago and millions of money saved. Why should the Convention refuse to give to the Federal Parliament the power to do so useful a work? One reason why I do not anticipate the time when this matter will be compulsory is that I believe that most industrial disputes can be settled by the force of public opinion. It is to the public that employers and employed look for sympathy and for help. As soon as either side realizes that public opinion is against them they feel the necessity of seeking a settlement. If a court or tribunal of this kind were established-and I do not care how simple or how powerless it is-it will at least be a step in the right direction. I may illustrate what I mean by reminding myself, and telling the Convention, of the first fight I had when a boy at school. The boy was about my own size.

Mr. BARTON.-Did you only have one?

Mr. DOBSON.-Yes, only one stand up fight. I do not admit for one moment that I was getting the worst of [start page 205] it, but I do admit that when a mutual friend came and took my opponent's arm and led him away in one direction, and took my arm and led me away in another direction-

Mr. PEACOCK.-You were very glad?

Mr. DOBSON.-Well, I was not sorry. I take it that there is no body of persons in the world whom it would be more difficult to persuade that they were wrong than a number of employees fighting for what they think to be right and just on behalf of themselves, their wives, and their children, against their employers. I do not see the common sense or wisdom of refusing to the Federal Parliament power to create some simple tribunal whereby the employees on the one hand, and the employers on the other hand, could be led away in the peaceful fashion I have just described, and a strike averted which would be fraught with danger to the whole of the Australian Continent.

Mr. LEAKE (Western Australia).-When this question was before the Convention in Adelaide I had no opportunity of casting my vote for or against the proposal, because with other members of the Western Australian delegation I had already returned to my own colony. For that reason, I do not wish to give a silent vote upon this occasion. It is my intention to vote against the amendment, because I am impressed with the argument that this is a matter not so much for the Federal Government as for the states Governments. The contention that to insert the proposed words would do no harm because they are more idle words does not seem to me to be based upon sound reason. If honorable members have been impressed by the warning given to us by the Premier of New South Wales a few days ago, they will see that words of this sort are not inserted in the Constitution. If this power is given to the Central Government the states Governments will be deprived of the right to legislate upon the subject.

Mr. DOBSON.-Not at all.

Mr. O’CONNOR.-When the power of the Federal Government is once exercised of course it will.

Mr. BARTON.-The moment the device of extending a dispute so as to put it under the jurisdiction of the Federal Government is adopted the state Government will be unable to act.

Mr. LEAKE.-I confess that I think the insertion of the proposed words might deprive the states of a right which they now have. If strikes and industrial disputes were always to be universal perhaps the better medium of settling them would be the Central Government, but I cannot bring myself to believe that they will always be universal. In my experience industrial disputes depend a great deal upon local conditions, and that being so, surely the best authority to settle them is the local authority. We know that, in different colonies, we have varying rates of wages, and we have unionists and non-unionists. In some of the colonies the unionists are more numerous than in other colonies. Now, how can the Central Government, without that local knowledge which is so essential in dealing with difficulties of this kind, apply themselves to the proper settlement of a dispute? Surely it is better that the states should be allowed to settle the disputes which occur within their own boundaries. If we test the practicability of the proposed arrangement by the experience of the past, we shall find that we are, asking the Central Government, to accept a very great responsibility upon an enormous scale, which the states have been-unable to meet on a small scale. It seems to me that it is unnecessary to burden the Constitution with this provision. I am entirely in accord with the views which the honorable and learned member. (Mr. Symon) has expressed upon this question. A good point was made by the honorable member (Mr. Trenwith) when he said, that perhaps the best tribunal for settling these matters was that of public opinion. After all, that is but a sentimental tribunal, but if sentimental questions are to be [start page 206] settled by some sentimental controlling power, perhaps the Central Government may be able to exercise that power. Another point occurs to me. As I said before, we must not assume that industrial disputes will always be universal throughout the continent. Under the Federation there may be a sub-division of states. Suppose, for the sake of illustration, a dispute occurred in an isolated colony like Western Australia. The chances are that if a strike were to occur in any of our big mining centres, it would, considering our peculiar conditions, in no way affect our neighbours upon this side of Australia. Could not such a dispute be better dealt with by the local authorities than by the federal authorities?

Mr. HOWE.-There would be no occasion for the federal authority to interfere.

Mr. HIGGINS.-The federal authority could not interfere. The dispute must be one “extending beyond any one state."

Mr. BARTON.-That gives a direct incentive for the extension of the dispute.

Mr. LEAKE.-Of course, it is not necessary for the purposes of my argument that the dispute should be a mining dispute; it might be a dispute affecting some other industry. Then, again, disputes might arise in Tropical Australia, in that part of the continent where there may ultimately be new states. A different condition of affairs would prevail there to that prevailing in any other part of Australia; but such a dispute might extend over the border of another state, in which case, if the amendment were carried, it would come under the jurisdiction of the Federal Parliament. But would not the authorities of the states in which the dispute occurred be in a better position to take steps to bring it to a conclusion than the federal authority? I apologize to the Convention for having detained them on this subject, but under the circumstances I did not wish to give a silent vote.

Mr. GLYNN (South Australia).-I should like to add to what has been said by some honorable members in opposition to the insertion of these words, speaking from the point of view of the possible efficacy of legislation upon this matter, that the question of the adoption of compulsory arbitration and conciliation was very largely gone into by a Labour Commission which sat in England some seven or eight years ago. That commission examined close upon 500 witnesses, the greater number of whom were representatives of labour, and their decision was, as expressed in an article by Mr. John Rae, in the Contemporary Review, that an Act of Parliament should not be passed to interfere with what is being done by voluntary co-operation.

Mr. HIGGINS.-But there has been a forward movement since that time even in England.

Mr. GLYNN.-I do not think the position of affairs there has altered very much during the last six or seven years, or that the well-thought-out recommendation of representatives of labour-recommendations based upon the evidence of members of the several labour societies could have been upset within that time. Here we have from Mr. Rae, who as a writer is one of the greatest upholders of labour, the statement that the witnesses who were examined on behalf of labour organizations would have nothing to do with compulsory state interference. Mr. Rae cites the evidence of several witnesses. In preface to an extract from the evidence of one of them, he says-

One thing was clear-they would have nothing to do with State arbitration or a State-appointed arbitrator. “I say," said Mr. Trow, “let Parliament mind its own business. We know better what man to select for an arbitrator than Parliament does. We do not want them to foist upon us an arbitrator."

Going further, we have the evidence of Mr. Knight, a representative of capital, who is cited by Mr. Rae in justification of his conclusions:-

"I speak," he said, “from long experience of the organization that I represent here to-day, and I say that we can settle all our differences [start page 207] without any interference on the part of Parliament or any one else."

Since 1866, when the late Mr. Mundella established a board of conciliation for the hosiery trade, there have been numerous boards of conciliation established in connexion with various trades. Their operations begin by the establishment of the board through the medium of both sides to the dispute. They discuss the matter amicably, and if they can come to no agreement it is referred to arbitration. The mode of enforcing the award of the arbitrators is expulsion from the society. If the decision is against members of a capitalist organization, the officials of that organization are supposed to enforce the mandate of the board by expelling such of its members as refuse to recognise it. If the decision of the board is against the demands of workmen, if they do not comply with that decision, they are

expelled from their organization. In Middleborough no less than 400 members of a trade society were expelled because they did not accept the wages awarded by a board of arbitration.

Mr. HIGGINS.-And yet it is said that it is impossible to enforce these awards.

Mr. GLYNN.-In these cases the decision come to is the decision agreed upon by those who are interested in the dispute, and, urged by the dictates of conscience and common sense, each side says-,"We are bound to follow out the express mandate of a committee in whose voice we have influence to the extent of one-half;" but if the arbitration were compulsory by Act of Parliament the various trades societies would say-"We know quite as well what should be done in this case as any board of compulsory arbitration, and we refuse to give you the moral adhesion which we should give to the award of any court voluntarily created. We defy the state to say that it has more than a moral power to enforce this award." If the state decreed that 10,000 or 12,000 workmen should accept for a definite time lower wages than they were asking for, could that decree be enforced?

Mr. SYMON.-On the other hand, what would prevent an employer from shutting up his shop if an award were given against him?

Mr. GLYNN.-Yes. Would a mandamus be issued if he did not open his shop?

Mr. HIGGINS.-You can impose a penalty for disobedience. Of course, while you can lead a horse to the water you cannot make him drink.

Mr. GLYNN.-I would not lead a horse to the water if he were not thirsty. We have seen the growth of voluntary machinery, which 25 years' experience in England has shown to be efficacious, and by substituting for it the principle of compulsion you must, if you do not nip in the bud, at any rate interfere with the early growth of the principle of conciliation and arbitration.

Mr. HIGGINS.-If the principle is bad the Federal Parliament will not adopt it.

Mr. GLYNN.-The honorable member must be an innocent in political life if he thinks that.

Mr. HIGGINS.-Why should not the Federal Parliament be as wise as we are?

Mr. GLYNN.-No doubt, but that is not going very far. On a simple point like this, we have had something like 25 different opinions, so that there are two sides to the wisdom of Parliament. The bulk of legislation during the last 30 or 40 years has simply repealed the efforts of earlier legislators who worked on philanthropic lines. I should be prepared to vest this power in the Federal Parliament if I thought that it would do any good or that it would not do harm, because I think we ought to arm the federal body with any power which may be efficacious for the purposes of good government, and which will not annul the existing rights of the states. But I am of opinion that you will tie the hands of the state by enacting legislation of this character, because it will be impossible to say where the line of demarcation is. [start page 208] There may be a strike in one colony, and there may be manifested sympathy and support towards the strikers from other colonies without an absolute strike taking place in those other colonies. It will then be difficult to say whether the manifestation of that sympathy and that supply of funds does not constitute an extension of the dispute. A provision of this sort would, in fact, be full of difficulties of interpretation, and, instead of having a settlement of disputes, you may have a complication. Further than that, some lawyer might apply to the court for a mandamus to prevent the Federal Parliament going into the matter at all, on the ground of possible interference with state rights. For these reasons I shall be found voting against the amendment.

Mr. REID.-In the first instance I think that the onus should be placed upon those who wish to add to the subjects on which the Federal Parliament is to have jurisdiction of giving reasons in favour of their proposals. No part of this Bill has received more careful consideration from the various bodies who have dealt with it than this particular clause, so that when an honorable member wishes to

introduce a new subject of federal jurisdiction, the onus is placed upon him of showing that there is some distinct advantage to be gained by it. I have no doubt that those who are in favour of the amendment moved by the honorable member (Mr. Higgins) do believe that a distinct advantage would be gained by making this a federal subject. There is a tendency in these days, especially among those who are very anxious to bring about an amelioration of all the ills which flesh is heir to, to intrust knotty problems to some new authority, in the pious hope, that matters which human wit has hitherto never been able to settle satisfactorily will be settled by some such tribunal. I fear that this attempt to settle the matter of trade disputes by referring them to some new jurisdiction will only lead to an extension of the evil. Because we must see at once that this proposal has a very serious disadvantage in it. The honorable member does not propose to hand over all trade disputes to settlement by the Federal Parliament. He hands over only those trade disputes which extend beyond the limit of one state. Cannot we see that giving any such power must result in a most unfortunate state of things arising? For instance, let us suppose that there are several sets of laws in existence dealing with this subject-one in a particular state, which are not interfered with by any federal law; different laws in each of the other four states; and then a federal law which may be radically different from all the others. Just consider the temptation under those circumstances to shift the venue of a particular trade dispute from a particular state. If the employers in the trade dispute in a particular state think that the federal law and its administration are more likely to suit them, look at the incentive there is to extend the mischief and evil into another state, or more than one other state, in order to shift the venue of the tribunal which will try the dispute. There is at once, I say, an incentive to shift the venue if the employers think that the federal tribunal will be likely to suit them best, and they will be tempted to extend the dispute in order to suit their own personal interests. So it will be with the other side-the working men-if they think that, the federal; tribunal will best suit their interests.

Mr. HIGGINS.-As if the Federal Parliament would not deal with such a case!

Mr. REID.-I cannot conceive of a Parliament which could deal with contingencies of that kind.

Mr. HIGGINS.-It is quite possible for the Federal Parliament to draw the line, and to allow the tribunal to decide whether a particular case referred to it is a bona fide dispute pertaining to one colony or not.

Mr. REID.-We are drawing the line here.

[start page 209] Mr. HIGGINS.-We are drawing no line here.

Mr. REID.-But we say that the dispute is only to be dealt with by the Federal Parliament when it is a dispute existing in more than one state.

Mr. HIGGINS.-Yes, that is so.

Mr. REID.-That is all I am addressing myself to; and I am showing that such a provision will tend to enlarge the area of trade disputes, for the very reason that in a given dispute the employers might be disposed to extend the working area, or the men might be disposed to extend the area, in order to get the advantage of having the dispute settled by the federal tribunal. Now, I am one of those who quite believe in the compulsory investigation of trade disputes. I have quite come to that conclusion. But a proposal that the Federal Parliament shall provide for the compulsory investigation of trade disputes passes my comprehension. It seems to me that any such proposal would put a premium upon one side enlarging the area of the mischief. Under all the circumstances, it seems to me that it will be better for each state to deal with this matter locally. I am, to a considerable extent, in sympathy with those who are agitating upon this matter, but I think that it is one that can be best dealt with by means of laws passed by the various states. While I am personally in favour, however, of the compulsory investigation of trade disputes in particular states, I am opposed to a compulsory federal investigation of local trade disputes.

Mr. DOBSON.-A compulsory federal investigation of all trade disputes?

Mr. REID.-Yes. I have pointed out how a local trade dispute may be extended and made into a federal dispute.

Mr. HOWE.-The federal law will take care of that.

Mr. REID.-I am delighted to know that these matters are to be settled so easily, but I would like to say that this Constitution settles the federal law. What are we asked to do by means of this amendment? It provides in point of fact that in case a trade dispute extends beyond one colony the Federal Parliament shall have-

Mr. KINGSTON.-"May" have.

Mr. REID.-May? This is a still more extraordinary state of things.

Mr. KINGSTON.-"May" deal with it.

Mr. REID.-If there is to be an option, and the Federal Parliament may deal with one class of trade dispute whilst the local law may deal with another-

Mr. KINGSTON.-I did not say that.

Mr. REID.-Then “may" means that There can be no word “may” used in a matter of this sort. It must be a power of active legislation to meet the circumstances of this sub-section. And it would not be competent for the federal power to go into the bona fides as to the extension of a trade dispute. If a dispute be existent between two colonies or more the federal tribunal would have to deal with it, and the local power would be disfranchised from dealing with it. That is what I am afraid of. In order that matters may be dealt with federally, we have put a power in the Constitution which enables the states to hand over any matter to the federal jurisdiction. In connexion with this matter I take up the same attitude as I took up in relation to the old age-pensions. I say that it may be a subject which may be made federal in the future. In that event, the states can hand it over under sub-section (35) to the Federal Parliament. But at present the view I take of the matter is that I think it would be better that we should not insert the proposed new sub-section.

Sir JOHN FORREST (Western Australia).-I intend to support the amendment of my honorable and learned friend (Mr. Higgins). I must, however, say that I am not generally in sympathy with the proposals of the honorable member, and I have hesitated in my own mind whether, in following the honorable member in this matter, I am on the right track. But, for all that it may not be thought so, [start page 210] I have some liberal instincts, although my liberalism is not of the type of that of the honorable member or of many of those who generally support him. I have a greater regard for individual rights, I think, than probably the honorable member has. But my reason for supporting this amendment is that I think the Federal Parliament will be better able to deal with the subject, and will deal with it more moderately, than the local Parliaments will be likely to do. I think that it will not be so likely to be influenced by party feeling as local Parliaments will be. It is no use shutting our eyes to the fact that these industrial disputes have arisen and will arise in the future, and I see no reason why this Parliament which we are to erect should not have the power to deal with these matters. I hope that it will be able to exercise that power with greater moderation and more wisdom than the local Parliaments are likely to do, and for that reason I intend to support the amendment.

[The Chairman left the chair at one o'clock p.m. The committee resumed at two p.m.]

Mr. HIGGINS (Victoria).-I desire before a division is taken to express briefly my appreciation of the fair, frank, and courteous way in which the amendment has been treated on both sides. I think the

reason why the discussion on this as well as on some other clauses has taken such a long time is that honorable members feel that they are now engaged on the final stage of this Bill, and that the people of the various colonies will appreciate the care which is taken at this stage before they make any final commitment. While I render my thanks to honorable members, I must say the unkindest cut of all came from the Right Hon. Sir John Forrest, who is supporting my amendment. The honorable member very frankly stated that I have not got a proper appreciation of the rights of property, and that I do not respect what a man has rightly earned as I ought to do. I was not aware that I had in any way interfered with his spoons or anything belonging to him, or on what ground he says I do not respect the rights of property, in this instance. I thought it was the habit of lawyers to be always upholders of property and order. The principal objection to lawyers always appears to be that in deciding the-question of meum and tuum they are apt to make them suum. But apart from the difficulties which have come from behind me, I am glad to have the support of the right honorable gentleman in that matter. The only doubt I have, after all the debate, about the correctness of my view is that I am supported from such a quarter. I must say I think the issue has on several occasions been obscured during the debate. The issue is not whether there is to be arbitration or not-the issue is not as to what kind of arbitration or conciliation there is to be-but the issue is whether the hands of the Federal Parliament are to be tied, so that no matter how distinctly federal the dispute is, how widespread that dispute is throughout Australia, the Federal Parliament shall have no power to deal with it. I would remind you that the very effect of this federal scheme is to render disputes Australian, which are at present Victorian or purely New South Wales. For instance, we are giving the Federal Parliament the whole power of dealing with the customs duties. That involves the question of particular trades and their protection. At present the dispute in the boot trade is confined to Victoria, as to the Victorian bootmakers, because they have to deal with one kind of conditions, and a dispute in New South Wales as to the bootmakers' wages, and so forth, is confined to New South Wales, because they have to deal with a different set of conditions. When we make federal the whole of the customs duties, when we deal with the colonies as a whole, you will find that the conditions of the different. trades throughout the colonies will be [start page 211] assimilated, and that there is far more likelihood of the disputes spreading over the several colonies. Assuming that a dispute spreads over the several colonies, I ask what possible remedy do the opponents of this amendment suggest? They simply stand blind and helpless before a condition of things which every one ought to face, and they offer no suggestion whatever for the purpose of meeting the most alarming condition of industrial matters that the world ever has bad to face. Then it has been said by the Right Hon. G.H. Reid that there is a danger of this proposal being abused-that if there is a local dispute, very often one side of the dispute will make it extend to another colony so as to make it come under the federal laws. That is a mere theoretical grievance. It does not follow, because a dispute has been forcibly driven to another colony, that the Federal Parliament will pass a law which will compel the court of conciliation to deal with it, or that it will not give the council of conciliation and arbitration great latitude of discretion to deal with the case. In federal legislation it will be quite competent to allow any court of conciliation to exercise its discretion as to interfering or not. Therefore, I think it all comes down to this, that we, having to face this question, have not confidence in the Federal Parliament which we are about to create. The honorable member (Mr. Glynn) says that a large number of labour organizations are against arbitration. He is speaking of a report seven or eight years old as to a particular dispute; but those who have looked at more recent events will see that the feeling of labour organizations is undergoing a very great change; besides, if labour organizations are against conciliation and arbitration the law will not be passed. Then there is no danger to be encountered. In the December number of the Review of Reviews, dealing with an article in the National Review upon compulsory arbitration, it is said that the employers are always against it. Its adoption is always favoured by the whole of the trade unionists. If there is a strong feeling amongst the workers of Australia that conciliation and arbitration are against their legitimate interests you may be sure that the law will not be passed. I agree thoroughly with the writer of this article that the resistance to conciliation and arbitration always comes from the side of the employers. One of the chief objections raised against my proposal is that there are no means of enforcing an award where there are a great number of people interested. It is said if 100,000 workers are interested, how are you to enforce the award? Now, I find that in the National Review article the scheme in New Zealand has been described. The scheme there is that to deal with such conflicts there are local boards of conciliation composed of equal numbers of masters and men, with an impartial

chairman. They are armed with full powers for taking evidence and compelling attendance. The award of the local board is not made enforceable by law, but it is a friendly recommendation to the disputants. If the disputants do not act upon the recommendation there is an appeal to a final tribunal, consisting of a Supreme Court Judge, with one assessor selected by the employers, the other by the employees. That court is able to give an enforceable award if it thinks fit, and that is final. The article says-

After inquiry into any industrial dispute the court gives its award. This can be either legally enforceable or not, as it thinks advisable. If it is to have legal force it is filed in the Supreme Court, and then has the weight of an ordinary submission to an award. That is to to say, either party to it can, by leave of a Judge, get an order exacting a penalty for its breach. The penalty, be it noted, is not to exceed £500 in the case of any individual employer or trade union. Should a union's funds be insufficient, each member is liable to the extent of not more than £10. Costs are in the arbitration court's discretion.

Sir GEORGE TURNER.-Have not all the unions to be registered? Is not that the basis of the Act?

[start page 212] Mr. HIGGINS.-I do not know whether that is the case in New Zealand, and I do not know that it would be essential but the point is this: It is said you cannot enforce these awards. But what is the fact? In New Zealand, since the Act was passed, there have been sixteen disputes referred to the boards. The article proceeds-

The trades concerned have been the bootmakers, seamen, gold miners, tailors, coal miners, bakers, furniture makers, builders, and painters. During that time there have virtually been no strikes or lock-outs. Out of twelve disputes settled about one-half of them were settled by the boards without appeal to the court.

That I also take to be a very significant fact. If the local board of conciliation gives its decision public opinion knows upon which side to veer. At present the public do not know on which side the merits stand; but if they know there is an impartial board to inquire into the dispute the chances are very strong that public opinion would veer round to and carry out the decision. And my honorable friend (Mr. Trenwith) is quite right in saying that what they look for is the play of public opinion on these disputes. There is also one great advantage which employers appear not to recognise. It gives them to a large extent a certainty for the next two or three years. The New Zealand law is that there is to be an agreement filed for a period which is not to exceed three years. If there is one thing in commercial transactions which commercial men want, it is to have some certainty as to the conditions under which they are to work for the next two or three years. The article continues:-

One of the advantages to the employer is that the verdict, filed in the court, and legally binding for three years, unless terminated by mutual agreement, enables him to make his calculations on an assured basis. If unions fear incorporation as an invitation to harassing litigation by the employers, Mr. Reeves points out that “unions can please themselves about becoming corporate bodies for general purposes;" what is not optional is their corporate liability for costs and penalties incurred under the Act.

The mode of enforcement, then, in New Zealand is by going against the funds of the union. Suppose you had, during the last shearers' strike, to enforce an award against the Shearers' Union, which we all know extends over all Australia, and whose union funds, therefore, are inter-colonial; and suppose you had a New South Wales law which bound the shearers of New South Wales, how could you reach the Shearers' Union funds when those funds would be quickly transferred to Victoria? I ask honorable members, in the interests of the employers themselves, how you are to deal with a case of that sort? Any practical man knows that the best mode of enforcing the award, if it is to be in its final result compulsory, is to go against the funds of the union, but here you have no measures to

your hand. Are we to remain helpless-are we to remain inert? Are we in no way, in making a Constitution in the year 1898, to recognise the gravest questions, involving all our social life, all our industrial life, all our private life, as these disputes do? It has been said "Oh, it is a mere dispute between man and man; every employer has a certain contract with a certain employee." That is very true. There is a contract; but are we to leave it simply to the employer and the employee to fight it out, seeing that the results are so very grave not only to those people but also to those who are behind the employer and employee? Who has suffered most by this dispute as to the engineers in England? Is it the employers or is it the employees? Is it not the families behind the employees? Is it not the general public, who find the whole trade of engineering leaving England? The State has come to this: That it cannot afford to stand idle and to allow these disputes to be carried out to their bitter consummation. It is quite too late for that. All I ask for by this amendment is that just as Victoria can deal with Victorian trade disputes, that just as New South Wales can deal with New South Wales trade disputes, that just as Great Britain and Ireland can deal with disputes in the United Kingdom, so the [start page 213] Federal Parliament shall be enabled to deal with disputes which are Australian. The fact is that we want to do just the opposite of what my friend (Mr. McMillan) has said. He said let legislation be confined as far as possible to keeping law and order. I think the true principle is to prevent as far as possible, to keep the policeman back as the ultimate sanction and ultimate means of sanction. We want to keep the policeman back to the very last. But, according to this principle, which my honorable friend (Mr. McMillan) has put forward, you are to bring the policeman in as soon as ever the employer and employee have a quarrel.

Sir WILLIAM ZEAL.-He did not say that at all.

Mr. O’CONNOR.-That is not fair. He did not say that at all.

Mr. HIGGINS.-If we take the remarkable case which my honorable friend (Mr. Dobson) referred to the other day, and which the leader of the Convention described as the battle of the spuds and the billy, in that case, strictly speaking, there were two men who could fight out the quarrel if they wished; but the state says-"No, we will not allow you to fight out the quarrel; we must keep the peace." The two are prevented by the State from resorting to fisticuffs. Then the State says-"You may do whatever you like, but you must keep the peace; and at the same time we will decide for you as individuals what your rights are with regard to this water." The State therefore interferes between private individuals, and am I to be told that the State is to interfere where there is a dispute merely affecting two individuals, and is not to interfere where there is a dispute which affects hosts of individuals, which affects whole interests of the State, which affects the peace and order of the state, and where the happiness and the means of subsistence of thousands of families perhaps are dependent on the quarrelling between these individuals? Then it is said-"We are throwing the apple of discord to the people." I ask honorable members are we throwing a bigger apple of discord here than they are in referring the whole question of free-trade or protection to the Federal Parliament? Is this a larger question than the question of free-trade or protection? Is there any, thing which excites so much difference of opinion amongst the people as the question of free-trade or protection, and the industries which will be affected by the determining of that question? All I wish honorable members to affirm in this amendment is that the hands of the Federal Parliament shall not be tied, no matter what eventualities may occur, from the making of legislation for federal purposes where the dispute is federal, and I sincerely hope that we shall be able to go to the country with a statement that here we have a means of effectually dealing with a federal matter in a federal manner.

Mr. BARTON (New South Wales).-I have not risen for the purpose of making a long speech, because I am one of those who hold the opinion that when what one has to say has been as well. said by others it is unnecessary to express that opinion again. I should like to say a word with reference to a remark which fell from my honorable friend (Sir Joseph Abbott). When my honorable and learned friend (Mr. Symon) said the words proposed to be inserted were either idle or mischievous, Sir Joseph Abbott asked, if they were idle words, what harm was there in inserting them in the Constitution. I hope that reasons of that kind will never be accepted. With every respect to my honorable friend (Sir Joseph Abbott), we are not about to make a Constitution which we consider it advisable to fill with

this project or that project simply because we think that the insertion of it will do no harm. A federation is supposed by all of us to be something which we undertake for the positive good which it brings, for the positive improvements in certain conditions which it will bring about, and we propose to federate in [start page 214] those matters which cannot be carried out by local legislation and administration, or which cannot be so effectually carried out by those means. The contest between us here to a large extent is as to whether the questions of arbitration and conciliation may not be as effectually dealt with by the local Parliament as by the Federal Parliament, whether there will be a substantial improvement in the condition of things, and whether this is a class of dispute or a class of subject which is comprehended within the purview of what we regard as federal concerns. I am not going to traverse the ground which has been covered on that particular. As my honorable and learned friend (Mr. Symon) has so effectively and thoroughly dealt with the arguments which were used on the side of the proposers of this amendment. I intend to content myself with adopting in the main the conclusions he arrived at, and in voting with him; and I might here suggest that, as this matter has been so thoroughly canvassed, it is about time that we came to a decision.

Sir EDWARD BRADDON (Tasmania).-As one who voted in Adelaide on this subject, and as one who believes to the fullest possible extent in the value of boards of conciliation and arbitration, if such boards and courts can be arranged, I desire to justify in some measure my giving the same vote as I gave then. This amendment does not hand over to the federal power the entire dealing with industrial disputes over the whole of the Commonwealth, but only over so much of the Commonwealth as may be affected by those disputes. It therefore imposes upon the various states the necessity for having courts of conciliation and arbitration to deal with the matters affecting their states only. That seems to me to be an admission of the principles principle which I think must be admitted in the present circumstances-that anything whatever in the nature of government or administration which can be better dealt with by a state than by the Commonwealth shall be left to the state. I claim Mr. Deakin's emphatic indorsement of that principle, and I claim his vote, because his vote if he goes with me will affirm the principle. It surely must be better for the employees that their disputes should be settled by courts which know all the circumstances, which understand the condition of things best, than that they should be settled by possibly a distant tribunal which is ignorant of the environment and particular conditions affecting any industry in any one of the states. We have heard to-day something about the fixing of a rate of wage by the federal authority. That would be an absolute impossibility in the different states.

Mr. DEAKIN.-Is there power to do it? I do not think there is.

Sir EDWARD BRADDON.-That is mentioned as one of the contingent powers.

Mr. KINGSTON.-That was said by an objector.

Sir EDWARD BRADDON.-And a necessary power to be exercised for the effective settlement of a dispute.

Mr. KINGSTON.-That was said by a critic.

Mr. O’CONNOR.-It must be so.

Sir EDWARD BRADDON.-And as in the case of wages, which necessarily vary according to varying conditions within a state, so it must be remembered that there are many other matters which are largely ruled and governed by local conditions. I see the matter just as strongly now as I did in Adelaide. I see that it is a matter which should be left to the adjudication of the states; and I would urge further that, by the interference of the Commonwealth Government in matters affecting the different states as to industrial disputes, there will be a probability, possibly more than a probability, of very serious friction arising between the Commonwealth and the states. When the honorable member who moved this amendment rose, I quite thought that he [start page 215] rose with the intention of withdrawing it. After seeing that that amendment, moved by himself as an extreme

liberal, and supported by some as extreme liberals, came to be supported by extreme conservatives, or I may say tories, I was all the more confirmed in that idea when he admitted that the support of my right honorable friend (Sir John Forrest) almost convinced him that he had better leave this matter alone.

Mr. MCMILLAN.-Perhaps he will withdraw it now.

Sir EDWARD BRADDON.-I thought he would then, and I hope be will now withdraw it as something which will not be to the interest of labour or to the interest of the states.

Question-That the new sub-section proposed to be inserted be so inserted-put.

The committee divided-

Ayes. ... ... ... ... 22

Noes. ... ... ... ... 19

Majority for the sub-section ... 3


Abbott, Sir J.P. Howe, J.H.

Berry, Sir G. Isaacs, I.A.

Briggs, H. James, W.H.

Clarke, M.J. Kingston, C.C.

Cockburn, Dr. J.A. Lee Steere, Sir J.G.

Crowder, F.T. Peacock, A.J.

Deakin, A. Quick, Dr. J.

Forrest, Sir J. Trenwith, W.A.

Gordon, J.H. Turner, Sir G.

Hackett, J.W. Teller.

Hassell, A.Y. Higgins, H.B.

Holder, F.W.


Barton, E. McMillan, W.

Braddon, Sir E.N.C. Moore, W.

Brown, N.J. O'Connor, R.E.

Carruthers, J.H. Reid, G.H.

Douglas, A. Venn, H.W.

Downer, Sir J.W. Walker, J.T.

Fysh, Sir P.0. Wise, B.R.

Glynn, P.M. Zeal, Sir W.A.

Grant, C.H. Teller.

Henning, A.H. Symon, J.H.


Ayes. Noes.

Dobson, H. Fraser, S.

Henry, J. Lewis, N.E.

Question so resolved in the affirmative.

Sub-section (35).-Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any state or states, but so that the law shall extend only to the state or states by whose Parliament or Parliaments the matters was referred, and to such other states as may afterwards adopt the law.

Mr. DEAKIN (Victoria).-I wish to call attention to this sub-section, which, like several others in this portion of clause 52, represents a power first conferred upon the Federal Council, but which, as it appears to me, if allowed to remain in its present restricted form-suitable enough as that may have been to the Federal Council-is altogether unsuitable to the differing conditions of the Federal Parliament. In the original draft of the Federal Council Bill the proposal was framed in clause 16 as follows:-

The Governors of any two or more of the colonies may, upon an address of the Legislatures of such colonies, refer for the consideration and determination of the Council any questions relating to those colonies or their relations with one another, and the Council shall thereupon have authority to consider and determine by Act of Council the matter so referred to it.

The draftsman who advised the Imperial Government altered that including it in section 15 of the Imperial Act constituting a Federal Council, where it forms the last part of subsection (i). The first part of the sub-section gives the Federal Council legislative authority in respect to the several matters following, and the clause before us, freely translated, follows:-

Any other matter of general Australasian interest with respect to which the Legislatures of the several colonies can legislate within their own limits, and as to which it is deemed desirable that there should be a law of general application.

Now, that appears to be ample for all the legislation which the Federal Council could have dealt with. That body has no Executive, has no Budget, and undertakes no expenditure. That body is [start page 216] the mere creature of the colonies, is dependent upon them, except within a very limited area, and, in fact, altogether for any expenditure it may be necessary to incur. Now, during the discussion of the question of old-age pensions, when I referred to the possibility of that matter being dealt with under this sub-section, I evoked a comment from Sir John Downer, which called my

attention in a particularly pointed way to a present weakness of the sub-section in this respect. It may well be that some matters referred by the several state Parliaments to the Federal Parliament, in order that common legislation may be passed for one or more colonies, may require legislation involving some expenditure-expenditure which must be undertaken in order to give effect to that legislation. It might be for the ordinary machinery administration-the payment of salaries of certain officers-or it might be the power to levy certain fees and collect certain charges; or it might involve direct taxation; but in all such cases it appears to me that the present sub-section may be inadequate. For instance, if reference be made to sub-section (3) of this clause 52 it will be found that the Federal Parliament has only the power to raise money by systems of taxation which shall be uniform throughout the Commonwealth. Consequently, if any legislation referring to any less number of the colonies than the whole of the colonies, and which involved any expenditure, was passed by the Federal Parliament, although those colonies were willing to vote that expenditure, the Federal Parliament might have no power to raise that money. The only possible means of the Federal Parliament obtaining that power would be if it were conferred in the provisions of the referring statutes passed by the referring colonies, but unless those provisions exactly agreed-and agreement would be extremely difficult to arrive at-the probability is that the law would be inharmonious and fail in its effect. I would suggest to the leader of the Convention that he should consider whether there should not be such a modification of sub-section (3), which provides for the raising of money by the Commonwealth, as would allow of a reference by two or three colonies desiring to intrust the Federal Parliament with the task of framing legislation for them, and enabling the Federal Parliament, if so called upon, to provide for the raising of the necessary revenue in those colonies. That would be one means of meeting the difficulty. Another means might be that when two or more colonies had determined, under sub-section (35), to refer to the Commonwealth Parliament any matter which required the raising of money from their citizens, it should be possible, for the Commonwealth, in regard to those particular matters, to provide for the necessary taxation to be levied in those colonies by the central authority, instead of leaving them to the very difficult task of coming to an independent agreement among themselves as to all the details of the method by which the money should be provided.

Mr. GLYNN.-Strike the sub-section out.

Mr. SYMON.-That is the best solution of the difficulty.

Mr. DEAKIN.-That may be so.

Mr. GLYNN.-We may have a conflict of laws under the sub-section.

Mr. BARTON.-Such laws can only apply to the referring states themselves.

Mr. DEAKIN.-They would not be, in the strict sense of the term, federal laws.

Mr. BARTON.-No, they would only apply to the states which referred the matters to the Federal Parliament.

Mr. DEAKIN.-Exactly; but those laws can be adopted by the other states. If two or three colonies join in requesting the Federal Parliament to pass a statute on a particular matter applying only to those two or three colonies, and that law has been enacted and proved to work well, the remaining colonies of the group may adopt it, and finally [start page 217] you may have the Commonwealth in this position, that every colony in the group has adopted, as far as it can adopt, that particular law, which then ought to be a federal law. This contingency is perhaps provided for. That being so, it becomes necessary for us to consider whether we should not also provide for the other contingency. If all the states of the group except one, or if three of the larger colonies, or any three of the colonies, required a common statute in regard to a particular subject, and the administration of that statute involved the raising of money, the Federal Government ought to be able to provide for the levying of that money under the same law if so requested by those concerned.

Sir GEORGE TURNER.-Will you briefly restate the point?

Mr. DEAKIN.-My point is that by the requests of different colonies at different times you may arrive at a position in which all the colonies have adopted a particular law, and it is necessary for the working of that law that certain fees, charges, or taxation should be imposed. That law now relates to the whole of the Union, because every state has come under it. As I read clause 52, the Federal Parliament will have no power, until the law has thus become absolutely federal, to impose taxation to provide the necessary revenue for carrying out that law. Another difficulty of the sub-section is the question whether, even when a state has referred a matter to the federal authority, and federal legislation takes place on it, it has any-and if any, what-power of amending or repealing the law by which it referred the question? I should be inclined to think it had no such power, but the question has been raised, and should be settled. I should say that, having appealed to Caesar, it must be bound by the judgment of Caesar, and that it would not be possible for it afterwards to revoke its reference. It appears to me that this sub-section, which is certainly one of the very valuable sub-sections of this clause, affording, as it does, means by which the colonies may by common agreement bring about federal action, without amending the Constitution, needs to be rendered more explicit. One point more especially which needs to be rendered clear is whether, when we have this federal action, there shall not be a federal means of providing for the necessary revenue that may be required or for imposing the necessary charges under such legislation.

Sir JOHN DOWNER.-Is that not implied?

Mr. DEAKIN.-If it is implied, would it not be best to make it explicit? The parentage of this clause, as I have shown-originating as it does in a body with practically no financial power-casts a certain suspicion on that reading of it, although, of course, the provision when embodied in this Act would have a different effect. Still, why not make it clear whether we mean that, when the Federal Parliament has passed federal legislation for some of the colonies, we shall allow that same legislation to deal with any necessary raising of revenue from those colonies which may be required to give effect to the legislation?

Dr. QUICK (Victoria).-I think the point taken by my honorable friend (Mr. Deakin) is one well worthy of the consideration of the Drafting Committee, and probably the difficulty to which he has drawn attention could be obviated by some such provision as that which he suggested. But this matter has struck me also from another point of view, and it seems to me that the provision affords an easy method of amending the Federal Constitution, without referring such amendments to the people of the various states for their assent. Now, either when the state Parliaments have referred these matters to the Federal Parliament, and the Federal Parliament has dealt with such matters, that becomes a federal law, and cannot afterwards be repealed or revoked by the State Parliaments-that is one position, and in that case, of course, the reference once made [start page 218] is a reference for all time, and cannot be revoked, so that to that extent it becomes an amendment of the states' Constitution, incorporated in and engrafted on the Federal Constitution without the consent of the people of the various states. On the other hand, if that be not so, and the states can, after making such reference, repeal such reference, what is the result? You have a constant state of change-no guarantee for continuity or permanence-in this class of laws, and this might lead to a great deal of confusion and a most unsatisfactory state of things. My principal objection to the provision is that it affords a free and easy method of amending the Federal Constitution without such amendments being carried into effect in the manner provided by this Constitution.

Mr. BARTON.-I cannot understand how it gives an opportunity of amending the Federal Constitution.

Dr. QUICK.-In this way. At present clause 52, which we are now discussing, deals with the powers of the Federal Parliament. It defines those powers in specific terms, in specific paragraphs. Very well. Then, if under this sub-section power be given to the state Parliaments to refer other matters to the Federal Parliament, to that extent the powers of the Federal Parliament are enlarged,

and therefore there is an enlargement of the Constitution. This enlarges the power of the Federal Parliament, and when a law is passed by the Federal Parliament, it becomes binding on the citizens of the states the Parliaments of which have made reference; and if these laws are binding, I say they become federal laws, and those federal laws may be administered by federal courts. Consequently, these referred powers become federal powers, and to that extent this becomes a means of amending the Federal Constitution.

An HONORABLE MEMBER.-The state Parliaments may refer some subjects to the Federal Parliament without the consent of the people.

Dr. QUICK.-True, the state Parliaments may refer some subjects to the Federal Parliament without the consent of the people of the states-that is my point-and to that extent the powers become grafted on the Federal Constitution in a manner directly different from the mode provided by this Constitution.

Mr. BARTON.-You can make amendments in your Constitution without referring to the people.

Dr. QUICK.-That is so, but there is a distinct provision here that there is to be no amendment of the Constitution without first such amendment being passed by the Federal Parliament, and then submitted to the people of the states, and there must be a majority of the people and a majority of the states before such amendment can become law. In this case also, I have to use an expression which has been frequently indulged in by Mr. Symon, that another mischievous result will follow from this power of reference. Supposing a state Parliament is troubled and bothered with an agitation upon a certain question-say, that of old-age pensions-and the state wants to get rid of a troublesome problem, it may simply, out of its inclination to get rid of the difficulty, pass a Referring Bill shunting the question on to the Federal Parliament, and the matter may there be hung up on account of other difficulties. Once a state has referred a matter to the Federal Parliament of course it cannot deal with it itself.

Mr. BARTON.-And it cannot repeal the law referring the matter.

Dr. QUICK.-There seems to be a difference of opinion on that point. I myself agree with the Premier of Victoria that there is power to repeal, and, consequently that the power of reference is not an ultimate power; it may be repealed, and what is the result? It would lead to a most unsatisfactory state of affairs. My view is that the sub-section should be struck out altogether.

Mr. SYMON (South Australia).-I think we are greatly indebted to Mr. Deakin [start page 219] and Dr. Quick for raising this question. The only wonder is that it has not struck us at an earlier stage of our proceedings how very mischievous-to repeat a word which has just been attributed to me-this sub-section may possibly become. I do not know, whether a state, after referring a particular subject of legislation to the Federal Parliament could not revoke the reference. My own personal view is that it could. It could revoke the reference, but if the Federal Parliament has acted upon that reference, and legislated upon it, then I think that legislation becomes federal legislation, and could not be revoked or interfered with in any way by the State. If, as Mr. Deakin has said, they have appealed to Caesar, they must be bound by Caesar's decree, Caesar in this case being the Federal Parliament. The law so passed by the Federal Parliament would become federal law for all time until the Federal Parliament repealed it. Now, if the state happened to change its mind on this particular matter, what would be the result? The reference to the Federal Parliament may have been a mere political contrivance for the moment, as Dr. Quick has pointed out, to get rid of some troublesome question. But if the state at some future period desired to legislate on its own account, and to deal with the matter, which perhaps was a matter of purely local concern, it would be faced with another portion of the Constitution, which says that no state law shall prevail if it is in conflict with the federal law. A majority in Parliament, in order to get rid of a difficulty, might refer it to the federal authority, and then we might find subsequently the people of the state hampered by the impossibility of their retracing their steps, and carrying out legislation which they considered necessary and desirable. I think, myself, that the

better way would be to strike out this provision altogether. It is inconsistent, it seems to me, with the foundation of our Federal Government. We declare here specific powers to be intrusted to the Federal Parliament, and by those we should abide, except so far as the matter is controlled by sub-section (36). It ought not to be competent for any state to get rid of a troublesome matter of legislation by saying-"We will refer this to the Federal Parliament." It is obvious that, as has been pointed out by Dr. Quick, this provision would extend powers to the Federal Parliament to a degree which would depend upon the hazard of the moment. Now we are doing all we can, by debating the matter day after day, to secure that those powers may be as precise as possible, and be brought within the limits of the necessities of the case. But here we are giving to any state the power of sending on to the Federal Parliament, for debate and legislation, some matter which it is purely for themselves to deal with, and I do not think we ought to put it in the power of states to relieve themselves from their own responsibilities in legislation or administration by any such easy contrivance as this might turn out to be. I think the provision is really in by mistake. I was not aware until it was pointed out by Mr. Deakin, that it had its origin in connexion with the Federal Council Act, though I know it exists there. It might be applicable in that case, but it is not applicable to the Federal Government we are now seeking to establish. I would also point out that sub-section (36) really gives a very wide power in connexion with the exercise of legislative authority to the Federal Parliament, a power which I fancy would, if it were desired to extend power to the Federal Parliament, meet the case. Sub-section (36) enables the Federal Parliament to make laws with respect to-

The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the states concerned, of any legislative powers which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia.

[start page 220] Mr. DEAKIN.-That is a different thing altogether.

Mr. SYMON.-I am not quite sure whether that is a desirable provision to leave in.

Mr. ISAACS.-It is much too large; I intended to call attention to it.

Mr. SYMON.-I think this matter was brought up before, and it is a much more serious matter than honorable members might at the first glance be disposed to think. I believe it would enable states, in a matter of purely local legislation, to refer the matter to the Federal Parliament for it to deal with. I have not referred to the provisions of the Federal Council Act, but I think the concluding words of sub-section (36), if left in at all, should certainly be very carefully considered. I do not know what they mean or how extensive they may be.

Mr. DOBSON.-Could you give any illustration of a matter which would be referred to the Federal Parliament by one of the colonies?

Mr. SYMON.-Not of what would be referred, but of what might be referred. I will choose one which it might be very proper for us to refer to the Federal Parliament-the question of the disputed boundary between South Australia and Victoria. The reference would probably be quite ineffective, as the Federal Parliament would not deal with a subject of that kind at the invitation of one state.

Mr. BARTON.-If they did the settlement could only extend to that state.

Mr. SYMON.-But look at the invitation which this would give for the engendering of heat, passion, and discussion in the Federal Parliament. Look at the difficulties that would be raised on the part of the Federal Parliament in having a matter of that kind brought under its notice at all. There might be other matters of social concern, and one was mentioned by Mr. Deakin, that of old-age pensions.

Mr. DOBSON.-That would hardly come under this provision. The financial part of it would operate against its being referred.

Mr. SYMON.-As Mr. Deakin has put it, supposing such questions were referred, how is the Federal Parliament to deal with them without some enabling powers with regard to finance?

Mr. O’CONNOR.-If a state referred question of state finance it might be dealt with.

Mr. SYMON.-Does the honorable member say that that would be a desirable thing to do?

Mr. BARTON.-Is it not for the people of the state to determine whether it is desirable?

Mr. SYMON.-Is it desirable to shunt on to the Federal Parliament a power that we have not settled in the Constitution? Would not this reduce the powers of the federal authority to a mere fluctuating quantity? My view is that we should strike this provision out altogether, and amend if necessary the succeeding subsection (36). We could then do whatever may be desirable within proper limits.

Sir JOHN DOWNER (South Australia).-I cannot see any of the difficulties which Mr. Deakin, Mr. Symon, and Dr. Quick anticipate in connexion with this sub-section. This, of course, is to be an inelastic Constitution, which can only be altered after great thought and with much trouble. We define what are to be the boundaries of the Constitution of the Commonwealth. We leave everything else to the states. It may be that questions may afterwards arise which concern one, two, or three states, but which are not sufficiently great to require a complete revision of the whole Constitution, with all the troublesome proceedings that have to be taken to bring about a reform. It would much facilitate matters if these questions could be referred to the Federal Parliament.

Mr. DEAKIN.-It would not be an easy process. You know how hard it is to get even two colonies to agree to anything.

[start page 221] Sir JOHN DOWNER.-It would be easy compared with an alteration of the Constitution.

Mr. DEAKIN.-It would not be too easy.

Sir JOHN DOWNER.-Nothing should be too easy. We have the power to alter the Constitution, but it is a power that can only be exercised with great difficulty. We also have a power of quasi-arbitration, which the Commonwealth Parliament can exercise in an easier way, although not without some difficulty, at the request of one or more states. Now, is not that a good principle? I do not think many honorable members will say it is not. It is suggested that we are allowing the states to throw upon the Federal Parliament a responsibility they ought to take themselves. My answer is that every state wants to aggrandize itself, to increase its authority, and it will only be in very extreme cases that the states will resort to this means of getting rid of a difficulty. In an extreme case, is there any harm in having a comparatively easy method of reference, not to troublesome negotiations, nor to the Imperial Parliament, but to the Federal Parliament.

Mr. BARTON.-It might be impossible to dispose of the matter excepting in that particular way.


Mr. O’CONNOR.-Take a case of dispute regarding a boundary.

Sir JOHN DOWNER.-Yes, the cases might be infinite. Take a question of disputed territory, for instance. What could be more proper than that Victoria, if she became reasonable for once, should say-"Look here, we know we promised to do it; we know we have broken our promises; we

acknowledge our transgressions, and will refer the matter at once to the Federal Parliament"? Who would blame her? Certainly not South Australia. Even in connexion with the question of rivers some point might arise that might concern two or three colonies, and that could not concern all the colonies. That, again, might be a proper matter for reference, but it could not be a common matter of legislation in respect of every state. I will now take the points Mr. Deakin makes. He doubts whether this power of legislation will carry with it a power of raising the necessary money to give effect to the legislation.

Mr. ISAACS.-The states themselves will determine that.

Sir JOHN DOWNER.-Yes, the honorable member has given the answer.

Mr. DEAKIN.-Read it with sub-section (3).

Sir JOHN DOWNER.-I do not think that sub-section affects the matter in the slightest degree.

Mr. O’CONNOR.-Sub-section (3) refers to the raising of money for the purposes of the Commonwealth itself.

Sir JOHN DOWNER.-Yes, and it can, in my opinion, have no relation to this question. When a matter is referred the Parliament of the Commonwealth will have unlimited powers of legislation.

Mr. DEAKIN.-To the extent of the reference.

Sir JOHN DOWNER.-Exactly; but the parliament will be entitled to make a law about it which will be as good as any other law. The only thing is that it will be limited in its area of application. Within the limits of the reference, it could deal with finances or any other question. I can see no difficulty at all in carrying out the sub-section in that respect, and I do not think that it wants any addition. We have practically to consider this from the point of view of a question of policy. Is it worth while to leave to the states a power of referring disputed questions that may concern one or more, but may not concern all? What possible difficulty can there be? It may be said that this should be left to the people, but the Parliament can decide. This Bill, before it can go home and can assume the form of an Imperial statute, will have to be submitted to a referendum of the people of each colony. It is only after that has been done that it can be made an Imperial [start page 222] statute, and why should we not give this power of reference to the states if it is a power that would work well? For my own part, I do not think the sub-section requires even verbal amendment. It will work quite well as it is so far as machinery is concerned. In regard to the principle, I think it is a very advisable power to confer, and I hope the sub-section will be agreed to.

Mr. ISAACS (Victoria).-My honorable friend (Sir John Downer) has put in better language than I could have employed many of the views I was going to present to the Convention. The object of the sub-section I take to be this. The foregoing sub-sections deal with matters upon which authority is to be given to the Federal Parliament to legislate with regard to all the colonies. They are admittedly matters of common concern. Then it was thought that there might be other matters that might turn out to be matters of common concern, but that are not yet regarded as such or have not yet arisen in any way. In the course of the existence of the Commonwealth questions may arise that we do not foresee, and without any amendment of the Constitution the states may if they choose refer them to the federal power. Or it may be that any two states, unable each of them separately to legislate beyond their own boundaries, may ask that this power to legislate may be given to them without the necessity to go to the federal authority. It is perfectly plain that two separate states, even if they legislate in exactly the same terms, cannot carry the effect of their laws beyond their own boundaries. There may be a difficulty, political or otherwise, as to leaving it in the power of any one state to refer to the Federal Parliament matters of purely local concern. If there be any objection on that ground, I suggest that it can be got rid of by saying that this power shall be limited to matters which may be referred by two or more states to the Federal Parliament. That, I think, would obviate any of the difficulties which Mr. Symon has foreshadowed, and would carry out what we really want. No state, so far as I can imagine,

requires to refer to the Federal Parliament the passing of any law that is to affect itself alone. But if it agrees with another state that some law; not to be of universal application throughout the Commonwealth, but to affect it and that other state alone, should be passed, power should be given in some such clause as this to ask the Federal Parliament to enact that what both states desire shall be of common application to them.

Mr. SYMON.-Could you put that in sub-section (36)?

Mr. ISAACS.-I do not wish to anticipate what I have to say upon sub-section (36). I think that that sub-section requires amendment, and that it is too large for more reasons than one. But in my opinion the object of sub-section (35) would be better obtained by striking out the power of one state to refer its own purely local concerns to the Legislature of the Federation, and by limiting this power to cases where two or more states desire to be bound by the federal authority.

Mr. BARTON.-Does the honorable and learned member say that sub-section (36) is too large? I would like to mention that we left out some restricting words because we thought that the provision was restricted by the whole scope of the clause.

Mr. ISAACS.-Well, I do not wish to confuse the two sub-sections. I think that Mr. Symon's objections will be met if we use the words “matters referred to the Commonwealth by the Parliaments of any two or more states." A state Parliament may say-"We will not deal with this matter; we will refer it to the Federal Parliament." Some honorable members may think that a shirking of responsibility. I do not attach any weight to that contention, but I do not think anything is substantially gained by keeping in the provision.

Mr. BARTON.-If a state Parliament wants to shirk its responsibility it can fall back upon the referendum.

[start page 223] Mr. ISAACS.-With regard to the other point that a state may repeal a law, I do not agree with that argument. If a state refers a matter to the Federal Parliament, after the Federal Parliament has exercised its power to deal with that matter the state ceases to be able to interfere in regard to it. Moreover, when the Commonwealth has passed a law at the request of any Parliament or Parliaments, and the Parliament of a third state adopts it, it adopts a Commonwealth law, and it requires the consent of the Commonwealth to get rid of that law. In my opinion, there is no power of repeal with the states, and I feel no doubt that I have read among the decisions of the United States, one which is to the effect, although I cannot just now lay my hands upon it, that when a state has, with the consent of Congress, made certain enactments the power of Congress is required to repeal those enactments.

Mr. REID.-Otherwise the provision would be perfectly idle. A state would refer a matter to the Commonwealth, and, not being pleased with the precise manner in which that matter was dealt with, it would immediately repeal the law.

Mr. ISAACS.-Yes; the state might just as well pass the law for itself.

Mr. O’CONNOR.-A law once passed under this provision becomes a federal law.

Mr. ISAACS.-Yes, and nothing less than the federal authority can get rid of it.

Mr. BARTON (New South Wales). With regard to the particular sub-section which we have now in hand, I have not been brought to see that any dangerous power is given in it, or that there is any reason for an alteration. Let us take first the suggestion of the honorable and learned member (Mr. Deakin). The Federal Parliament can only deal with such matters as a state or states refer to it. A state may refer to the Federal Legislature a certain subject without referring, or expressly excepting from the reference, any financial dealing with that subject. In such a case the Commonwealth could only

legislate upon the subject so far as its financial aspects were not concerned. If the whole subject were referred, not excepting finance, the Commonwealth could legislate to the whole extent of the reference. I think that the words used in the sub-section are ample for either case. The difference with regard to sub-section(3)is this: It is plain that that sub-section refers only to the raising of money by any mode of taxation for general Commonwealth purposes. Like all the rest of these sub-sections, with the exception of one or two which contains special provisions, it concerns matters relating to the “peace, order, and good government of the Commonwealth," and the word “Commonwealth" means prima facie the whole Commonwealth. In this sub-section, however, there are special words which prevent the law applying to the whole Commonwealth, and these are the words quoted by the honorable and learned member (Mr. Deakin):-

But so that the law shall extend only to the state or states by whose Parliament or Parliaments the matter was referred, and to such other states as may afterwards adopt the law.

It seems to me that if there is any raising of money intended by the states to be delegated to the Commonwealth-and they can only delegate their legislative authority to a certain extent, provided for by the Constitution-that will be expressed in the reference, or it can be excluded from any reference. In the one case or the other the Commonwealth can only proceed as far as the extent of the reference. Then there was the objection of the honorable and learned member (Dr. Quick), that this provision affords an easy method of amending the state Constitution without the use of the referendum. But at the present time the state Constitutions do not provide for the use of the referendum. The government of the states is by a majority of the representatives of the people, and it must [start page 224] be constitutionally assumed that when a majority of the two Houses of Parliament make a law the people speak through that law. If the people choose to speak through a law made in this way, there is no evasion of responsibility when an appeal was made to a superior authority for the settlement of a difficulty incapable of settlement by the relations of two bodies at issue. This is not a restriction but an enlargement of the legislative powers of the states, which I think is in the spirit of democracy, and one that we should grant.

Mr. HOLDER (South Australia).-I want to ask the leader of the Convention a question, his answer to which will influence my vote on the subject before us. The sub-section upon which we are dealing and the following sub-section are the only ones which provide for an extension of the powers of the Commonwealth. I have been looking up the clauses in Chapter VIII., and I do not see that under them any extension of the powers of the Commonwealth can be dealt with. I want to know whether I am right in supposing that under these clauses no extension of the powers or scope of the Commonwealth would be possible, because I think that under that chapter, if any alteration of the Constitution of the Commonwealth is desired, the states, to obtain it, must first-have a law passed by the Commonwealth Parliament? Now, suppose it is proposed to enlarge the power of the Commonwealth, by placing under its control the administration of Crown lands. First of all, the Federal Parliament would have to pass a law upon this subject, and that law might be held to be ultra vires. There would be no power to submit anything to the electors without Parliament first of all passing a Bill, which, however, would be from the outset outside its power. I should like to know from the leader of the Convention whether my view of this matter is correct?

Mr. BARTON (New South Wales).-What I understand my honorable friend (Mr. Holder) to ask is this: Suppose it were desired that extra-legislative power than now exists should be granted to the Commonwealth-as, for instance, to take under its control questions relating to Crown lands, and so on-whether an alteration in the Constitution in that direction would be ultra vires? Now, the Bill provides, in Chapter VIII., that the provisions of the Constitution shall not be altered “except in the following manner;" which, to my mind, means that if the processes specified are adopted the provisions can be altered in any way. I take the provision to mean that authority is given to the Commonwealth under the processes here specified to alter this Constitution in any manner, so far as it deals with the affairs of Federated Australia, and not with affairs outside the dominion of Australia. Consequently, if it were proposed to add a legislative power of the kind suggested by Mr. Holder, I take it that as Chapter VIII. provides first for the passage of the proposed law by an absolute majority,

and then for a referendum, the law would have no effect unless the majorities of the several states agreed to it. So that not only the Commonwealth but the states would have to agree to the passage of the law. Then any objection to that law becoming a new part of the Constitution of the Commonwealth would vanish; because, I think, so much authority is conceded by Chapter VIII.

Mr. KINGSTON (South Australia).-I think that the difficulty is that Chapter VIII. does not give power for an amendment of the Constitution, except by implication, but simply opposes limitations in the mode of the exercise of the power of amendment. I would suggest to the leader of the Convention that we might add a clause permitting the alteration of this Constitution, subject to the provisions of Chapter VIII. That would include amongst the powers of the Parliament a power which is very necessary, and which it is no doubt intended to give by the Bill, but which is not at present provided for as clearly as might be.

[start page 225] Mr. GLYNN (South Australia).-In connexion with the point raised by Dr. Quick that this provision might lead to an amendment of the Constitution otherwise than under clause 121, I would like to suggest that the reference would be as to a specific point. It might be to settle a particular matter of legislation, but not a general power. But we are still in this dilemma: That the state might, by referring the matter to the state Parliament, deprive itself of the right of repeal, and thus take away the general power of legislation from the state Parliament. As I understand, a state Parliament cannot at present abrogate its own powers. It might pass a particular Act or it might repeal an Act, but here the Parliament of the state is giving away some power without the consent of the people of the state. We are giving power to the state Parliament to give away their sovereign powers without the consent of their people.

Mr. DEAKIN.-To commit political suicide.

Mr. GLYNN.-That is really what it amounts to. It certainly requires serious consideration.

The subsection was agreed to.

Sub-section (36)-

The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the states concerned, of any legislative powers which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia.

Mr. BARTON (New South Wales.)-I might mention as to this sub-section that there is a difference between its language and the language of the corresponding sub-section in the Bill of 1891. The difference is this:-In the Bill of 1891, after the words “legislative powers" there came the words “with respect to the affairs of the territory of the Commonwealth, or any part of it." It was considered unnecessary to retain those words, because the whole scope of the legislative authority is that the legislation should be for the peace and good government of the Commonwealth itself. Inasmuch as the Commonwealth cannot make any laws except for the peace, order, or good government of the Commonwealth itself, we thought that it could not make laws except with respect to the affairs of the territory of the Commonwealth or any part of it.

Mr. KINGSTON.-Will this give power to legislate with reference to a part only?

Mr. BARTON.-Only to the extent of the reference made. It must be a matter referred with the consent of the Parliament, so that it would only apply to the extent of the reference made.

Mr. ISAACS (Victoria).-I must say that I am not very clear about this sub-section, which has puzzled me very much. In the first place, the words “exercise within the Commonwealth" of certain

legislative powers are puzzling. All our legislative powers are to be exercised, within the Commonwealth, and I do not know what the words mean in this particular instance as distinct from any other legislative power. The effect of the whole matter may extend beyond, but the exercise of the power is to be within the Commonwealth, and it is to be exercised at the request or with the concurrence of the Parliaments of the states concerned. Then the sub-section uses the words “any legislative powers which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal council of Australasia." Those last words will have to come out. Part of this Act will come into operation as soon as it is passed.

Mr. BARTON.-The covering clauses.

Mr. ISAACS.-And they repeal the Federal Council Act. So that there will be no powers remaining in that Act at the time of the establishment of the Constitution.

Mr. BARTON.-This sub-section giving an increased authority imports authority over the Federal Council of Australasia.

Mr. ISAACS.-No, it is done at the establishment of this Constitution.

[start page 226] Mr. BARTON.-I quite see that.

Mr. ISAACS.-If you keep these words in the final words will have no effect.

Mr. BARTON.-These words “at the establishment of the Constitution" might be altered.

Mr. ISAACS.-One is inconsistent with the other, but I am looking at this also. I should like to get as much power as possible in this Bill. At the same time, I should not like to send it home saying that something should be altered which the Imperial Parliament will be disinclined to do seeing that the universal assent of the colonies has been obtained. Is the Imperial Parliament likely to assent to this-that the Federal Parliament may exercise, at the request of any state, any of the powers which the Imperial Legislature may exercise? That is to say, it might exercise powers which might be in conflict with treaties, Imperial legislation, and so on, or, at all events, with the principles of Imperial legislation. The clause is very wide, and wants some modification.

Mr. KINGSTON.-It would be a Bill liable to reservation under the usual circumstances.

Mr. ISAACS.-It might or might not be; that would depend on circumstances, The power of reservation is in the hands of the Governor-General. I have not the slightest objection to see the largest powers given to the Federal Parliament; but, independent of verbal criticism, it is rather a long way to go to ask the Imperial Legislature, so to speak, to place all its powers in the hands of the Federal Legislature. It will be remembered that Lord Carnarvon was very anxious in the case of the Canadian Federation Bill that no alteration should be made.

Mr. BARTON (New South Wales).-I will undertake that the matters to which my honorable and learned friend has referred shall receive consideration when the drafting stage is reached. I dare say we shall have a short adjournment for drafting amendments, many of which are in order already. I can see the force of what the honorable member has pointed out, that we have amended in the Bill the covering clauses providing that it is the Constitution, and not the whole Act, which is delayed in its operation until the date fixed by the Queen's proclamation, and that the covering clauses have effect from the date of the Royal assent, which will probably be some months before the proclamation takes effect. In that case the words as to the Federal Council would become inoperative, as referring to the date of the establishment of the Commonwealth. It might be necessary, therefore, to put other words in this clause to meet that objection. In putting other words in the Bill it might be necessary to put in the words “Federal Council," as they may give an extension of powers which would be desirable; that

is, an extension of power at any rate equal in its elements to that which the Federal Council possesses. The same attention will be given to the other points indicated.

The sub-section was agreed to.

Sub-section (37)-

Any matters necessary for, or incidental to, the carrying into execution of the foregoing powers or of any other powers vested by this Constitution in the Parliament or the Executive Government of the Commonwealth or in any department or officer thereof.

The CHAIRMAN.-In this sub-section the House of Assembly of Tasmania have suggested an amendment to leave out this sub-section, and insert a new one. The Drafting Committee in Sydney passed a number of verbal amendments, which should first come under consideration.

Mr. BARTON (New South Wales).-The verbal amendments were made by the Drafting Committee, as shown by the Bill before honorable members. In order to put the sub-section as amended by the Drafting Committee before honorable members, I intend to omit the whole of the subsection now before the committee, and propose the substitution of the sub-section as amended by the Drafting Committee.

[start page 227] As this deals with matters necessary and incidental to other powers, it is obviously desirable to make the clause as wide as possible, so that there may be no power of legislation which the Commonwealth possesses in which it will not have fall scope, that is to say, all the necessary and incidental powers for making that legislation effective. These amendments by the Drafting Committee were made in a part of the Bill which we had not reached at the meeting in Sydney, and they still require, the assent of this committee. This alteration was practically unauthorized; but, as it was plainly verbal and for the extension of the clause, we thought we were justified in making the suggestion at that stage. Now it becomes necessary, under the Chairman's ruling, which, I think, is perfectly clear, to make these amendments formally. I beg to move that sub-section (37) be omitted, with a view of substituting the following:-

Any matters necessary for, or incidental to, the carrying into execution of any powers vested by this Constitution in the Parliament, or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

The amendment was agreed to.

Mr. BARTON (New South Wales).-I beg to move that the further consideration of clause 52 be postponed until after the consideration of clause 69. I may mention that certain members are obliged to return home, and that they will be back again on Monday. They are deeply interested in this question of rivers. Among them I might mention the honorable member (Mr. Lyne) and the honorable member (Mr. Gordon). It is questionable whether we should not postpone this clause so that it will not be decided to-morrow.

The CHAIRMAN.-We can postpone it again if we come to it.

Sir GEORGE TURNER (Victoria).I quite agree with what the honorable member has suggested. For that and other reasons it would be wise to allow the matter to remain in abeyance.

The motion for the postponement of clause 52 was agreed to.

Clause 53. The Parliament shall, subject to the provisions of this Constitution, have exclusive powers to make laws for the peace, order, and good government of the Commonwealth with respect to the following matters:-

1. The affairs of the people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorize legislation with respect to the affairs of the aboriginal native race in any state.

Mr. ISAACS (Victoria).-I am not sure that I properly grasp the meaning of the sub-section. I understand that there is to be some amendment made in the sub-section.

Mr. BARTON.-We are going to suggest that it should read as follows:-

the people of any race for whom it is deemed necessary to make any laws not applicable to the general community; but so that this power shall not extend to authorize legislation with respect to the affairs of the aboriginal race in any state.

Mr. ISAACS.-My observations were extended much further than that. The term “general community" I understand to mean the general community of the whole Commonwealth. If it means the general community of the whole Commonwealth, I do not see the meaning of saying that the Parliament of the Commonwealth shall have the exclusive authority to do that, because any single state would have the right to do it under any circumstances. If it means less than that-if it means the general community of a state-I do not see why it should not be left to the state. We should be placed in a very awkward position indeed if any particular state is forbidden to pass any distinctive legislation in certain well-known instances. For instance, if Victoria should choose to enact that Afghans shall only get hawkers' licences under certain conditions which are not [start page 228] applicable to Europeans she may be debarred by this sub-section from doing so. I do not know how it will affect our factory law in regard to the Chinese which does not operate beyond the confines of Victoria at all.

Sir EDWARD BRADDON.-Why single out the Afghans?

Mr. ISAACS.-If any other race possess the same characteristic as the Afghans I will put them in the same class. At all events, the expression “general community" means the whole community of the Commonwealth. I do not think that this has any application. If it is to have any application at all, it seems to me to be intended to debar the state from passing legislation-necessary legislation, but purely confined to that state. I do not think that that sub-section ought to be there at all if that is the meaning of it.

Mr. BARTON (New South Wales).-I think the original intention of this sub-section was to deal with the affairs of such persons of other races-what are generally called inferior races, though I do not know with how much warrant sometimes-who may be in the Commonwealth at the time it is brought into existence, or who may under the laws of the Commonwealth regulating aliens come into it. We have made the dealing with aliens, which includes a certain degree of coloured immigration, a power of the Commonwealth, and we have made the dealing with immigration a power of the Commonwealth, so that all those of the races who come into the community after the establishment of the Commonwealth will not only enter subject to laws made in respect to their immigration, but will remain subject to any laws which the Commonwealth may specially devise for them. There is no reason why the Commonwealth should not have power to devise such laws.

Sir GEORGE TURNER.-An exclusive power?

Mr. BARTON.-It ought to have an exclusive power to devise such laws.

Sir GEORGE TURNER.-If it does not exercise it can the state exercise it?

Mr. BARTON.-Once the Commonwealth legislates with reference to the question of aliens and immigration, its legislation displaces the state law.

Sir GEORGE TURNER.-Suppose it does not legislate?

Mr. BARTON.-You may suppose that it will not legislate, but I think we will have to assume that it will.

Sir GEORGE TURNER.-The difficulty is that there will be an interval before it does.

Mr. BARTON.-At any rate, we must assume that these powers will be exercised. If we are going to assume that they are not going to be exercised, we had better not put them in the Bill.

Mr. ISAACS.-Why make this exclusive?

Mr. BARTON.-I was going to explain when I was interrupted that the moment the Commonwealth legislates on this subject the power will become exclusive. Of course it is contended, and there is a great deal of force in the contention, that there is a doubt about the expression used, which comes from the Bill of 1891-"Special laws not applicable to the general community," and there is, I should imagine, considerable difficulty in coming at a right form of expression in that regard. What is intended is-and I think what was clearly intended by the Convention of 1891 was-that immediately the Commonwealth came into force there should be a law, if the Commonwealth deemed fit, passed for the regulation of the affairs of people of such races. Of course, as my honorable friend (Mr. Isaacs) suggests, the expression “general community" may raise a doubt. It may be that the words should be “not applicable to the state in which they are," but whether that be so or not, as to the question of the exclusive nature of the power, I entertain a strong opinion that the moment the Commonwealth obtains any legislative power at all it should have the power to regulate the affairs of the [start page 229] people of coloured or inferior races who are in the Commonwealth. Some persons may say that it will provoke difficulties with the states. I do not think that it will. I think that the states will be prepared to see the general importance of legislation on this subject, and legislation passed with a knowledge of what may in some cases be almost the international relations which will exist in reference to these people. I take it that the proper authority for that purpose is the Commonwealth; and whatever we may say in reference to the advisability of a mere expression here, as to which care will of course be taken-theme matters; are being carefully gone through now-the policy of the sub-section, which is that the law shall be exclusive, ought to commend itself to the members of the Convention.

Mr. WISE (New South Wales).-While I agree with the views expressed by the leader of the Convention with regard to the purport of this clause, and as to its necessity, it does not appear to me to be properly drawn in order to meet the purpose of the draftsman, and I would suggest that all the words after the word “whom," in the first line, be left out, with the view to insert the following words:-

laws have been passed by the Commonwealth in respect of their immigration into, or emigration from, any part of the Commonwealth.

If the sub-section is so altered it will give the Commonwealth exclusive jurisdiction over the affairs of the people of any race with respect to whom laws of the Commonwealth are in force in respect of their immigration into, or emigration from, any part of the Commonwealth.

Mr. ISAACS.-I take it that that is merely striking out the exclusive power.

Mr. WISE.-I have not made myself clear.

Mr. DEAKIN.-It leaves the domestic control to the states.

Mr. WISE.-It leaves the domestic control to the states. The object of the clause is a proper and, indeed, a necessary one. If the Bill takes the power to regulate the entering of a foreign race into any part of the Commonwealth, then the race, the moment it enters into the Commonwealth, must be under the protection, of the Commonwealth, and it is impossible that there should be any conflicting jurisdiction between the Commonwealth and the state.

Mr. BARTON.-The Commonwealth will have the control of external arrangements.

Mr. ISAACS.-If the Commonwealth does not pass a law, you admit the right of a state to deal with the subject.

Mr. WISE.-Undoubtedly.

Mr. ISAACS.-But if the Commonwealth does pass a law, that law is paramount.

Mr. WISE.-It is paramount.

Mr. ISAACS.-What is the necessity for this sub-section then?

Mr. WISE.-I will answer that question in a moment. Until the Commonwealth passes a law relating to immigration the state has exclusive jurisdiction over that subject, and as long as the state jurisdiction can be exercised the state alone should be able to control the rights of the aliens in respect to whom it is deemed necessary to make special laws not applicable to the general community.

Mr. ISAACS.-That would not do, because we have already passed a provision which gives paramount power to the Federal Parliament.

Mr. WISE.-That is what I am pointing out, but until that power is exercised by the Federal Parliament jurisdiction remains with the state. The object of my amendment is to provide that the moment that power is exercised the regulation of the rights of the aliens in question shall be transferred from the state to the Commonwealth.

Mr. ISAACS.-Would not that be so without any further provision?

Mr. WISE.-I do not think it would.

Mr. BARTON.-Many of the persons in question are not aliens, but come in under the immigration power only.

[start page 230] Mr. WISE.-We hope to see the Commonwealth embrace the whole continent, and it might be found desirable to establish practically a colony in which black labour might be employed.

Mr. BARTON.-There is no sub-section dealing with aliens except the one dealing with the naturalization of aliens.

Mr. ISAACS.-The sub-section is “naturalization and aliens."

Mr. WISE.-If it was found desirable to establish practically a colony in which black labour might be employed, the Commonwealth would, and ought to, have the exclusive power of providing for the passage of those alien labourers from that colony into the southern parts of the Commonwealth if they were allowed, for temporary purposes, to remove from the northern to the southern colonies, and they should be absolutely under the protection of the powers of the Commonwealth. But until the

Commonwealth has passed a law dealing with the emigration of alien labour from one colony to another, it is only right that the state should retain the power it now possesses in regard to aliens.

Sir GEORGE TURNER.-Is passing from one colony into another immigration within the meaning of this Act?

Mr. WISE.-I think so. Under the terms of my amendment it certainly is.

Mr. ISAACS.-Your amendment would not touch the class who are not aliens.

Mr. WISE.-Yes, it would, because the Commonwealth would have no power to pass any law relating to the immigration of any section of the community unless they were aliens. The Commonwealth Parliament is to have no power to deal with the movement of population except paupers, lunatics, and aliens, and under section 52 it is to exercise full powers with regard to any or all of those three classes. All that is designed by my amendment-and it appears to me that some such power is necessary-is that if the Commonwealth Parliament undertakes to deal with the movement of population in regard to one or more of those three classes-paupers, aliens, and lunatics-the persons whose movements are fettered by the Federal Parliament shall have the right to look to the Federal Parliament for protection, and for the full security that the Federal Parliament can give. The words of the clause are vague, and not very easily construed. Of course, if the leader of the Convention prefers it, I will postpone the formal submission of my amendment so as to give further time for the consideration of the matter.

Mr. BARTON.-We had better leave it over for consideration.

Mr. WISE.-Then I will merely give it as a suggested amendment for consideration rather than formally propose it now.

Mr. DEAKIN (Victoria).-The difficulty is to determine why this particular sub-section should find its way into this clause instead of forming a sub-section of the previous clause 52.

Mr. BARTON.-Because the powers in clause 52 are all concurrent powers, and these are all exclusive powers.

Mr. DEAKIN.-I understood that was the difference, and a glance at the following two sub-sections of clause 53 shows that they are matters upon which the Federal Parliament will have sole authority, and upon which, naturally enough, the local Parliaments never could have, or expect to have, any authority. But, although this provision is linked with them and placed in the exclusive clause, it deals with questions which are being dealt with, which have been dealt with, and which probably in the future will be dealt with by the several states.

Sir EDWARD BRADDON.-And in which aspects they can only be dealt with by the several states.

Mr. DEAKIN.-If so, this sub-section has found its way into the wrong clause, and should be included in clause 52 rather than in clause 53. We have Acts in some of the colonies relating to the Chinese; in other colonies there are, or may be, Acts relating to Afghans. In the northern colonies there are statutes relating to kanakas. All this legislation is [start page 231] in existence at present, and the leader of the Convention admits that, until the passing of an Act by the Federal Parliament dealing with these people, the several Acts of the several Legislatures relating to these several peoples would remain in force.

Mr. KINGSTON.-So they would if this sub-section is passed.

Mr. DEAKIN.-If so, this provision is not exclusive in the strict sense of the term.

Mr. WISE.-I doubt if they would remain in force.

Mr. KINGSTON.-But they are preserved.

Mr. DEAKIN.-There is the first issue. That is the first point we have to determine. Clearly, it would be most unwise and unwarrantable to propose that, on the establishment of a Commonwealth, all laws relating to aliens should be repealed, because there would be a certain interregnum when there might be a condition of relative lawlessness.

Mr. WISE.-The amendment I propose will get over that difficulty, because it does not give the Commonwealth power until it passes a law in respect of the immigration of aliens into, or their emigration from, any part of the Commonwealth.

Mr. DEAKIN.-I am not certain that, while the honorable member's amendment will relieve us from one difficulty, it will not plunge us into another, by depriving the states of all future power of dealing with alien races. What more power do we desire for the Federation in regard to these special races than would be conveyed to the Commonwealth by the inclusion of this subsection in clause 52? What power is it that we desire to give to the Commonwealth in this matter which would not be given if there were a properly expressed sub-section introduced into clause 52, enabling the Commonwealth to legislate in regard to these matters, and casting the duty of legislating in respect of them on the Commonwealth; but until the Commonwealth passes such legislation, leaving the existing legislation of the colonies in full force and effect, and, still leaving to the colonies power to pass special legislation on the subject, in so far as it did not conflict with the federal legislation? I think it is highly desirable that such provision should be made. I am not satisfied that the state of opinion in these colonies is at that even level which would enable us at once to pass an Act, complete in every particular, and applying to the whole group. It might conflict with what was absolutely vital, for example, to Queensland, and we all hope that Queensland will eventually become a part of the Federation.

Mr. KINGSTON.-Section 100 preserves the existing legislation.

Mr. DEAKIN.-Yes; and section 101 provides that when a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. But that only brings me back to my first difficulty. Why is this sub-section included in clause 53, instead of in clause 52, and what is the effect of that arrangement? The other matters under clause 53 are clearly matters on which the Federal Parliament alone can legislate-matters on which the state Parliament could never pass legislation. This sub-section, on the contrary, relates to an issue already dealt with by the several states, and that will continue to be dealt with by them unless the absolute prohibition of this Act is imposed. If it is imposed it will be a very serious matter indeed in Queensland, Victoria, and, I think also, in New South Wales. The first question I have to put to the leader of the Convention, and upon the answer to it any further arguments I may have to address will depend, is what reason there is under these circumstances for including this in clause 53? Ought we not to transfer it again to clause 52? We desire to give to the Federal Parliament the amplest power to deal with any and all of these particular races; but there should still be reserved to the states, subject always to the supremacy of the Federation, a power to deal in any special manner with any of the people of such races who are now or may hereafter be [start page 232] within their limits. I take it the amendment proposed by Mr. Wise would absolutely prohibit that.

Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will nevertheless remain in force under clause 100.

Mr. TRENWITH.-Would the states still proceed to make laws?

Mr. BARTON.-Not after this power of legislation comes into force. Their existing laws will, however, remain. If this is exclusive they can make no new laws, but the necessity of making these new laws will be all the more forced on the Commonwealth. The amendment proposed by Mr. Wise is one that might possibly be considered desirable if this were to be converted into really a power that was not exclusive. At any rate, it might have the effect of rendering that power exclusive after legislation with regard to aliens and immigration had been adopted. I am not quite sure at present whether it would be advisable to adopt the amendment. I agree with what has been said already. My impression is stronger than ever it was before that this sub-section is one that needs amendment, but I would like to say again that it is desirable that the moment the Constitution comes into force the policy of this sub-section should prevail, which is that the Commonwealth should have exclusive legislative powers with reference to the affairs of such people as the sub-section is intended to cover. That is demonstrated to me by the fact that the Commonwealth will have control of the external relations of the whole of the continent and of Tasmania. These external relations may be very pertinent to any legislation that will have to be adopted, so that you may have the complication, if you do not insert a provision of this kind, of having the states continuing to legislate in respect to a matter in which they have no responsibility, while the external relations, the explanation of all these matters, and the responsibility for them to the Imperial Government, will rest with the Commonwealth. That would be an undesirable condition of things. There are other reasons which could be put very strongly if it were necessary to speak at length, and which would show that the Commonwealth should have this exclusive power. Questions which relate to the whole body of the people, to the purity of race, to the preservation of the racial character of the white population, are Commonwealth questions, and should be so exclusively. Of course it may be urged that it would be better for the Commonwealth to wait until it had exercised its legislative powers with regard to aliens and immigration. I venture to dissent from that view. I do not know why it is necessary for the Commonwealth to wait until it has legislated with regard to the introduction of aliens, or of coloured races not being aliens, before it deals with the affairs of those people of coloured race who are already settled in Australia. If that were so, we should for the time being be left with out exclusive powers with regard to the large number of people of coloured race already in Australia. Now, the preservation of every inch of the shores of Australia from immigration of the kind indicated, except to a certain limited extent, is one of the most desirable powers to place in the Constitution. But the very reason which makes the preservation of the continent as a continent to the Federation as a whole Federation so necessary as one of the powers is a reason that applies with just as much force to the affairs of the people of such races who have already been admitted and are at present in the Commonwealth. If it is necessary to give the Federal Parliament power to make laws for their regulation, not applying to the rest of the people of the Commonwealth, it is necessary to give it at once upon the establishment of the Commonwealth. The best way to bring about legislation of that kind is to make the power exclusive. The Commonwealth will then be in this position: The laws which at present pertain [start page 233] in the states with reference to these people will remain with nothing in them which is against the interests of the Commonwealth, unless the Commonwealth at once legislates. To make the power exclusive conduces at once to its speedy exercise by the Commonwealth. For every reason this provision should not be transferred to clause 52, but should be implanted in the Commonwealth as an instant, mild exclusive power.

Sir EDWARD BRADDON (Tasmania).-While, I quite agree with the, views of the leader of, the Convention as to this power so far as regards the immigration of coloured races and aliens, I cannot see the force of his argument with reference to the local management of these people. Aliens who have been admitted within our shores will more or less permanently settle in one state or the other, and they should, I think, be entirely under the Government of the state in which for the time being they reside. Mr. Deakin has hinted at some grave objections to giving the Federal Government an exclusive power over these people. The Attorney-General of Victoria has given one very striking example of the necessity of the Governments of the states having authority in this matter, and that is as regards, the licensing of Afghans as hawkers. It is the practice to issue to them a licence different from that which is given to other races. That might very well constitute a difficult question in the state of Victoria, whilst it might not be of the same importance in other states. In Tasmania it is quite possible that it may come to be a grave question whether the Hindostanese who are British subjects

shall be allowed to continue the practice of hawking as they have been doing for some time past. That might develop into a very large question indeed in Tasmania, and it should be a matter for settlement by the state and not by the Federal Government.

Sir GEORGE TURNER (Victoria).-I trust the leader of the Convention, will carefully reconsider his position, and the apparently strong views be holds with regard to persons of foreign race. I agree with Sir Edward Braddon, and other honorable members who have spoken, that when these people are once admitted to Australia their control and management should be strictly a local affair. It is not a matter with which the Federal Government should interfere. The Government of this and of other colonies should have full power to make such laws relating to health, to factories, and to the licensing of these persons as they may deem to be fair, just, and reasonable. The great difficulty I see with regard to this clause is in connexion with the making of the power exclusive. If we put this provision in clause 52, as soon as the Federal Parliament chose to exercise its power to legislate, the state laws now in existence would cease to exist.

Mr. KINGSTON.-Does the honorable member say that they would lapse?

Sir GEORGE TURNER.-Yes, if they were inconsistent with the federal laws. We must all realize that the first and most important business with which the Federal Parliament will have to deal will be that connected with the Tariff and other financial matters. Can we assume that for same years at least the Federal Parliament will attempt to deal with the matter mentioned in the first paragraph of this clause? For probably three, four, or five years, we shall then be in this peculiar position: The Federal, Parliament alone will have the power to legislate upon these matters, The state Parliaments will have no power to legislate, because of the exclusive power of the Federal Parliament, and thus, although there may be an absolute necessity for legislation, none will be possible. Surely honorable members will not agree to a provision which makes such a position possible. If, however, we place this provision in clause 52, the Federal Parliament would have the most ample powers to deal with the matter to which it relates whenever it chose to exercise them; but, in the meantime, the right of the states [start page 234] to regulate these matters would be preserved to them. I do not desire to move any amendment for this purpose, but I trust that the leader of the Convention will carefully reconsider the matter, because I feel that if we pass the provision as it stands, we may hereafter do a great injustice to the several states.

Mr. O’CONNOR (New South Wales).-I think it is generally admitted that there should be uniformity of law with regard to the races for whom it is necessary to make special laws. The basis of all these laws is that the particular people in question require to be dealt with specially in the general interests of the community, and if they require to be dealt with specially they should be dealt with under some uniform law. I think it will also be admitted that if they are to be dealt with by a uniform law the sooner that law is put into operation the better. Otherwise one state may deal with some particular class of aliens upon specially favorable terms, the effect of which would be that aliens from all parts of Australia would congregate in that state and make the difficulty of dealing with the whole question very much greater. I think that is admitted by Sir George Turner. It is admitted by him that there should be uniformity in these laws, but he says that if the Federal Parliament does not choose to legislate at once power ought to be given to the local Parliaments to deal with the question until the Federal Parliament chooses to legislate. I should like, however, to remind the honorable member of this fact: In the first place, where any local Parliament has made laws, those laws are continued by clause 100, and, as a matter of fact, most of the Parliaments have made laws in regard to these matters. The point at issue is: Is it desirable that the state should have power to go on making separate laws dealing with aliens until the Federal Parliament shall legislate?

Mr. ISAACS.-Why not?

Mr. O’CONNOR.-If the Federal Parliament is endowed with this power absolutely, there is no doubt that pressure will be brought by all the states to cause that body to legislate upon this matter at once, and it will legislate upon it. But if the states have power to deal with these matters locally they

may in many cases avail themselves of this power, and when the Federal Parliament comes to deal with the subject, and to apply an uniform law, it will be met by the vested interests which have been created by the laws of the states. I say that we should have as few difficulties of that kind as possible. Let us deal with these matters as they exist at the date of the establishment of the Commonwealth. Where laws exist at the time of the adoption of this Constitution they will be preserved; but do not let us give power to the states to make new laws which will create new difficulties and complications. That is my reason for differing from the view of Sir George Turner that this provision should be transferred from amongst the exclusive powers of the Federal Parliament to the powers conferred under clause 52. I should like to add a word in regard to the suggestion of the honorable and learned member (Mr. Wise). No matter what the necessity for uniformity in these laws may be, the honorable and learned member says that you must wait until some law has been made by the Commonwealth in regard to these particular races. But why should we wait? What possible connexion is there between the making of a law preventing aliens from entering the state and the making of a law to control their mode of living while in that state? I can see no necessary connexion between the two. It seems to me that it would be hampering the power of the Federal Parliament to make it a condition precedent to legislation with regard to aliens within the borders of the Commonwealth, that it should legislate with regard to outside matters. For instance, if you wish to deal with the question of legislation regarding Chinese or Japanese actually here, there would be very little difficulty, but if you wish to make a law dealing with [start page 235] their introduction into the state, you may be brought face to face with the obligations of treaties entered into by Great Britain and other difficulties of that kind which cannot be surmounted.

Mr. ISAACS.-The same thing exists now.

Mr. O’CONNOR.-That does not apply to dealings with races within your own territory. When other people come within your borders they must submit to your laws.

An HONORABLE MEMBER.-These laws must relate to the time when they are within your territory, because the distinction is drawn between them and the general community.

Mr. O’CONNOR.-Yes, but I am dealing with the amendment of the honorable and learned member (Mr. Wise). He wishes to make it a condition precedent that what may be the very difficult step of passing a law making arrangements with the outside world should be taken before you deal with aliens within your own borders.

Mr. DEAKIN.-Everything the honorable member expresses a wish to do could be done quite as well if this provision formed part of clause 52.

Mr. O’CONNOR.-I agree with the honorable and learned member, but I do not think that any opportunity should be given to the state to make laws dealing with these matters before the Legislature of the Commonwealth has dealt with them, for the reason that every law which is made dealing specially with a matter of this kind will create difficulties when a uniform law comes to be made.

Mr. DEAKIN.-The Federal Parliament can remove them.

Mr. O’CONNOR.-But you are setting up obstacles to uniformity and creating vested interests, which are always difficult to deal with.

Sir GEORGE TURNER.-Unless this clause is carefully reconsidered, we shall have to vote against it.

Mr. O’CONNOR.-I do not suppose the honorable member would suggest that the clause is unnecessary.

Mr. DEAKIN.-It is out of place.

Mr. O’CONNOR.-The question is as to its position. The honorable member objects to its position.


Mr. O’CONNOR.-With regard to the amendment of the honorable and learned member (Mr. Wise), I think the general sense of the committee will be that it is a matter of substance with which possibly the committee will deal. With regard to the position of the sub-section, that is no doubt a matter of importance, but it need not necessarily be decided now.

Mr. ISAACS.-That question means whether it is to be exclusive or not.

Sir GEORGE TURNER.-If we allow the provision to stand where it is proposed to put it, it will be decisive.

Mr. O’CONNOR.-Well, it appears to me in the right place.

Mr. TRENWITH (Victoria).-I respectfully submit in connexion with this clause that the necessity for legislation in regard to aliens differs in the various colonies, and to give to the Federal Parliament exclusive powers to legislate would produce inconvenience. This is obviously so, for the reason that what is necessary in one state in connexion with the treatment of aliens may be altogether unnecessary and perhaps inconvenient in another state. Assuming that such contingencies may arise, any uniform legislation must work to the detriment of some state; whereas if, as suggested by Sir George Turner, it is made optional on the part of the Federal Parliament, wherever any great pressure arises, or a necessity for uniform legislation occurs, to legislate, then the Federal Parliament will undoubtedly take the question up and by its act achieve exclusive control in that connexion so far as it chooses to legislate. But even then it may leave to local autonomy to deal with the question in some connexion in a manner which may be [start page 236] necessitated by the different circumstances of different localities. Take the colony of Victoria. We have legislation in the form of a new Factories and Shops Act, which affects the Chinese in a manner such as no other colony has yet thought it necessary to affect them. It may happen that no other colony will think it necessary to legislate in that way. But there can be no reason why the legislation which is thought necessary by the Victorian people should not be permitted to continue in Victoria. I have given this illustration because it appears to me that the circumstances of different localities may involve different necessities in connexion with the treatment of aliens. It maybe possible that in South Australia, or in New South Wales, or Tasmania, it may be necessary to take some action with reference to aliens that may be extremely beneficial to those colonies, and inconvenient or possibly irksome in Victoria. If the sub-section is, as suggested, taken from its present position and placed in clause 52, it will leave power for the states to legislate as they think proper until the Federal Parliament sees the necessity for bringing about some degree of uniformity. I would submit to honorable members that the whole of our work points to the necessity for giving nothing to the Federal Parliament to do that can be as well done in the interests of the states by the States themselves. What we are endeavouring to do is to constitute a new power which shall do some things which we cannot do as well as separate states. But we wish to avoid handing over to the new power anything that will take from us that sovereignty we now possess, unless it is absolutely necessary to do so. It does not seem to me to be necessary to make it imperative in the Constitution that the sovereignty of the states or their local autonomy in this connexion shall be removed. If the Federal Parliament does not wish to legislate on the subject the local Parliaments should have the power to legislate as their local requirements dictate.

Mr. DOBSON.-They can do that now.

Mr. TRENWITH.-They cannot do it if we carry this clause.

Mr. DOBSON.-Yes they can.

Mr. TRENWITH.-It seems to me that immediately the Constitution is adopted the local Parliaments can no longer carry any legislation into existence upon this subject-that they cannot perform one act of legislation after the Constitution is effected.

Mr. DOBSON.-Read clause 100. They can go on altering or repealing, if they like.

Mr. TRENWITH.-It seems to me that if you use in this Constitution the term “exclusive power" that means that you exclude all others, and once that power is created there is no other power to legislate. I confess that in a Convention such as this, where we have so many and such able lawyers, I speak with great diffidence upon such a subject.

Mr. ISAACS.-Clause 100 would not permit new legislation on the subject.

Mr. DOBSON.-It could be altered to permit that to be done.

Mr. TRENWITH.-I think we should remove this clause, and then we should not require to alter clause 100. Give exclusive power where it is essential in respect to such matters as may be deemed to be necessary to be dealt with by the central authority. That seems to me to be extremely necessary. This is an extremely perplexing question, and one which has given perhaps as much trouble as any other question to the various states.

Mr. KINGSTON.-It should be an Australian question, should it not?

Mr. TRENWITH.-For some purposes.

Mr. KINGSTON.-For all purposes.

Mr. TRENWITH.-And whenever the Federal Parliament thinks that it should be an Australian question, the Federal Parliament can, if this sub-section is, as suggested, made part of clause 52, make it an Australian question. But if the Federal Parliament does not see any reason for Australian action that [start page 237] is no reason for depriving the states of autonomy. Therefore, I hope that we shall not take away from the states the power of legislating if we can help it. I can conceive some conditions which may arise in a state where some aliens became extremely objectionable, but in another state they might be considered desirable citizens. It would be a mistake to give to the Federal Parliament exclusive power to deal with such conditions, when, in dealing with them uniformly, it might embarrass one country whilst giving satisfaction to another. Of course, the danger pointed out by Mr. O’Connor is, I see, patent. That is, a state might impose such conditions with regard to aliens as might cause the interests of other states to suffer in that respect. Whenever such conditions arise, if this clause were placed among the sub-sections of clause 52, it would give the Federal Parliament power to say to that state-"You must not continue to act in that way to the prejudice of the Commonwealth. In order to restrain your do doing, we shall pass a federal law dealing with that aspect of the alien question."

Mr. O’CONNOR.-Supposing one local Parliament makes laws of so severe a character as to drive all the aliens into other states.

An HONORABLE MEMBER.-That might cause a remonstrance to be made from the whole nation to the federal authorities.

Mr. TRENWITH.-Suppose that is the case, and that this clause is included in clause 52, the Federal Parliament will have all the powers which it is proposed to give it here, except that it will have to act after instead of before. That is all the difference. Whenever a necessity arises on behalf of the interests of the Commonwealth to deal with the question of aliens by one authority, the Federal

Parliament can deal with it, and at once. I object to taking away powers from the states now that may or may not be exercised by the Federal Parliament. I feel that this question of the treatment of aliens will be more difficult in the future than in the past. We have an indication of that from what was said by the right honorable member (Sir Edward Braddon) as to the difficulty in Tasmania in dealing satisfactorily with British subjects coming from Hindostan. He says that is a difficulty there, and that it will have to be met by special legislation. That has happened in the past. Other colonies have seen the necessity for special legislation, and it might as easily have happened that in some other colonies, on account of evils arising therefrom the influx of this alien population, they had instituted special legislation. Tasmania might not pass such legislation, because within its borders the evil had not previously arisen. The aliens legislated against might pass into Tasmania; then the Federal Parliament, having the power, would prevent the state which was being embarrassed by the influx of a number of these aliens from taking action on its own account so as to prevent the inflow of the aliens.

An HONORABLE MEMBER.-Cannot you give us credit for more intelligence, so that if we saw an evil existing in me part of Australia we would recognise it?

Mr. TRENWITH.-My experience has shown in this Convention that the intelligence which honorable members possess is very much circumscribed, and their mental horizon reaches their own border, but goes with great difficulty beyond it. We have seen that in the discussion we have had lately. We have had it in other discussions, and dealing with difficulties which we have not yet been able to solve. I do not see that there is any great reflection cast upon honorable members by making those remarks. It is very difficult for people to see from a distance The evils that other people are suffering. It is only another illustration of the old adage that no person can tell where the shoe pinches except the man who wears it. We are as a rule very indifferent about the pinching when we do. not wear the shoe ourselves.

[start page 238] Mr. HOLDER.-Why not take the broad view of the question?

Mr. TRENWITH.-I am trying to take the broadest possible view of it. When local difficulties arise the Federal Parliament may not deal with them. If we carry this clause, and if the Federal Parliament does not deal with those difficulties, the local Parliament will not be able to deal with them; and there certainly should be power given to the local Parliament to deal with such difficulties. There should be power given to the local Parliaments to deal with questions which are of no special concern to the Federal Parliament. I earnestly hope that this clause, instead of being where it is, will be transferred as suggested by the Right Hon. Sir George Turner, the honorable member (Mr. Isaacs), and others. We do not object to the Federal Parliament having this power when the necessity arises and when they choose to act. That is executive power to deal with a special phase of the question; but to refuse to give any power to the states in this matter, no matter how great the pressure may be on them or on any one state, will be extremely unwise, and it will be doing something which will materially prejudice the passage of this Commonwealth Bill in the respective states. There is a very strong feeling in the colonies upon this point. Some of them would very reluctantly give up their power to deal locally with the question of aliens. I dare say they would give up the power readily if there were any assurance that certainly and quickly the Federal Parliament would deal with it. But it is obvious, from the nature of the task which will be before the Federal Parliament, that it will be some very considerable time before it can deal with this question. For instance, the Federal Parliament will have to deal one way or the other with the Tariff question-with the question of free-trade and protection; we know that that will take a great deal of time. Then there are the questions of finance, quarantine, ocean lights, and a number of other things, each of them very difficult to settle, and on which there are great differences of opinion, and, consequently, it will take a long time to settle them.

Mr. BARTON.-The only way to make the Federal Parliament deal quickly with this subject is to give them the exclusive power of dealing with it.

Mr. TRENWITH.-There are so many other important questions which the Federal Parliament will have to deal with.

Mr. BARTON.-There are few questions of more importance than this.

Mr. TRENWITH.-I agree with the honorable member as to the importance of the question, and I would not have taken up so much time in dealing with it if it were not so. It will be extremely important to the Commonwealth, and to the states, and possibly it will be important in one aspect to one state, and in another aspect to another state. Uniform legislation, if it is made imperative, may possibly cause inconvenience to various portions of the Commonwealth. I recognise that in admitting aliens to the colony there ought to be uniformity, but in the treatment of aliens when they are in by the Commonwealth it might easily happen that the best interests of the Commonwealth might be served by permitting aliens to be dealt with in one way in one part of the country, and in another way in a different part.

Mr. WISE (New South Wales).-When I suggested the amendment which is now under discussion, I had no conception that there would be any difference of opinion as to the policy of the clause, and the amendment, which is purely verbal. It now, however, appears that the policy of the clause is strenuously attacked. I have listened to the observations on the other side with feelings of amazement. I have either utterly misapprehended the speech of the leader of the Convention, or I cannot apprehend the attitude taken up by the delegates from Victoria. I always thought that the guiding sentiment amongst trades unions in Australia was [start page 239] a desire to give a larger power to the Federal Government of dealing with the immigration and emigration of races whose presence we might for one reason or another think undesirable-a larger power than can be now exercised by any single state. If my ears did not deceive me, I heard the Right Hon. Sir George Turner say they did not wish to give executive power to the Federal Parliament to deal with this question.

Mr. ISAACS.-Exclusive power.

Mr. WISE.-Of what use is it to confer a power on the one hand on the Federal Parliament, and then to leave it in the power of local communities to establish little plague spots in corners of this continent which will defeat all the objects of federal legislation?

Mr. ISAACS.-That is not the question at all.

Mr. WISE.-The difficulty we have to meet in New South Wales is in connexion with a colony which has not the same stringent law in regard to Chinese immigration as we have, and whose alien population drift across oar northern border without its being possible for us to check that immigration. Of what use would it be for the Federal Parliament to pass a law declaring that every alien of a particular race shall pay a poll tax if it was open to the state Parliament, on the following day, to pass a law giving to every alien of that race a bounty of twice the amount of the poll tax?

Sir GEORGE TURNER.-Do you think for a moment that that is what we are contending for?

Mr. WISE.-I do not.

Sir GEORGE TURNER.-Then why do you put such words in our mouth?

Mr. WISE.-I will tell my right honorable friend why I do. It seems to me that the purport of this sub-section has been entirely misunderstood by the representatives of Victoria, and that in using the arguments they did they have looked at this matter having regard only to the peculiar conditions of their own colony, and disregarding altogether the wider federal aspect of the question. The difference between the honorable member (Mr. Trenwith) and the right honorable gentleman was, if I understood them aright, very marked. What I have just said does not apply to the argument of my honorable friend (Mr. Trenwith), as I understand it. I understand him to be only questioning the

position of the clause, but the right honorable gentleman, unless I misunderstood his remarks, went much further.

Sir GEORGE TURNER.-I am quite willing to put it in clause 52, but I say it is wrong to put it in clause 53, because the Federal Parliament will not deal with the question for a number of years.

Mr. WISE.-Will my right honorable friend allow me to express to him my regret for the misunderstanding which has arisen? I certainly understood the right honorable member and his Attorney-General to say-and I took their words down-that they do not desire that the Federal Parliament should have exclusive power.

Mr. ISAACS.-Exclusive power; but you do not agree with us as to the meaning of the word “exclusive."

Mr. WISE.-I think there are others at this table who are under the same misapprehension.

Mr. ISAACS.-Will my honorable and learned friend allow me to interpose for a moment?

Mr. WISE.-Certainly.

Mr. ISAACS.-The difficulty is this: If the power is put in clause 52 the Federal Parliament can deal with the subject, and, if the Federal Parliament deals with the subject, that law will be paramount, and no state can legislate against it. The meaning of giving exclusive power, in relation to any question, is that only the Federal Parliament can deal with the question, and if the Federal Parliament does not choose to deal with it then the state cannot deal with it. All we ask is that the state may have power to deal with the subject till the Federal Parliament chooses [start page 240] to make a uniform provision, and whenever it chooses to make a uniform provision the power of the state is gone.

Mr. BARTON.-Which makes matters worse.

Mr. WISE.-I do not regret that I fell into the error I did, because it has led to this explanation. I am not alone, I may say, in the error, for there are others here who were under the same misapprehension. The matter narrows itself down to a very small compass. Perhaps the Attorney-General of Victoria has not given full attention to this matter that there is no more sure means of securing that which we desire, namely, a uniform law dealing with this subject, than by depriving local Parliaments of the right to pass new legislation.

Mr. ISAACS.-I am rather of the opinion the other way.

Mr. WISE.-There is no question which is more urgent, there is no matter which the people of Australia are more likely to look to as an immediate consequence of the Federation-and in that respect I agree with my honorable friend (Mr. Trenwith) that it is one of the very first questions which will be dealt with-there is no greater assurance that the Federal Parliament will deal with this question than to remove it from the sphere of the state Parliaments, and to force it on the attention of the Federal Parliament as the first matter of their concern.

Sir GEORGE TURNER.-They can do that just as effectively if you place it in clause 53.

Mr. WISE.-If that is the only difference between us, it is a very small one.

Sir JOHN FORREST (Western Australia).-The difficulty, to me, seems to be as to what is meant by the word “affairs." Perhaps the leader of the Convention will tell us. I take it that it means the control of those people after they have arrived in Australia. If it was intended to mean their introductions I have no doubt that the most of us would be in accord, because I think every one is of the opinion that the introduction of people of any race, especially coloured races, is a matter which

should be in the control of the Federal Parliament. I take it that the word ”affairs" would mean the control of alien races after they have arrived in this continent. In my opinion the control of the people, of what ever colour they are, of whatever nationality they are, living in a state, should be in the control of the state, and for that reason I should like to see this sub-section omitted.

MY. SYMON.-Why did you vote for the question of conciliation and arbitration being a federal subject then?

Sir JOHN FORREST.-I am not dealing with that question at this moment. I do not see myself that this sub-section is necessary, because I hold that if it is passed the control of every one living in the state should be within the province of that state. Take the colony which I represent. We have made laws controlling a certain class of people. We have made a law that no Asiatic or African alien can get a miner's right or do any gold mining. Does the Convention wish to take away from us, or, at any rate, not to give us, the power to continue to legislate in that direction? We have also made laws regarding hawking. Certainly they apply to every one, I believe, at the present time. We have had to abolish hawking-not liking to offend the susceptibilities of British subjects, we had to abolish hawking altogether. But we would much rather have applied our legislation to a certain class of the people. I think I have some right to speak on this subject; and, no one, at any rate, will be able to say of me, or of the colony I represent, that we desire to encourage the introduction of coloured races, because ours if; the only colony in Australia with a law at the present time which excludes from its territory coloured people. Other colonies have talked about it a great deal.

Mr. REID.-You don't exclude them.

Sir JOHN FORREST.-Yes, we can exclude them.

[start page 241] Mr. REID.-Under the Natal Act?

Sir JOHN FORREST.-Yes, unless they can read and write English they certainly can be excluded. I think that there is no desire on our part to do anything to encourage either in Western Australia, or any other part of Australia, undesirable immigrants. I take it that under clause 52 immigration is a subject within the power of the Federal Parliament to deal with. I would not mind if it were one of its exclusive powers. There may be difficulties in regard to the introduction of persons who are not altogether desirable. But I cannot for the life of me see why we should desire to give to the Federal Parliament the control of any person, whatever may be his nationality or his colour who is living in a state. Surely the state can look after its own affairs. It may require to place a restriction on a certain class of people. As I said, we place a restriction in regard to the issue of miners' rights. We also provide that no Asiatic or African alien shall go on a township on our goldfields. These are local matters which I think should not be taken away from the control of the state Parliament. For that reason I would like not to give this subject a place in either clause 52 or clause 53, but to leave it as a matter to be dealt with by the local Parliaments in their wisdom and discretion.

Mr. REID (New South Wales).-I think the remarks which have been, made within the last 30 minutes only show how easy it is even for men of very profound knowledge to make very serious mistakes, and I include myself, not, as a man of profound knowledge, but as one who is apt to make mistakes. I think the general idea all through has-been that this sub-section of clause 53 was intended to deal with the admission of aliens.

Mr. BARTON.-Not with the admission of aliens, but with aliens after they are here.

Mr. REID.-No; but there has been as we have seen here lately, considerable confusion on that point, because I know that quite a number of commentators on this Bill have always looked on this sub-section as a provision which handed over to the Federal Parliament the exclusive power of dealing with aliens, and even this afternoon I have heard more than one observation to that effect. In

fact, it is only within the last few minutes that the discussion has gone away from that view. I venture to say that the view which Sir John Forrest expressed is the correct one, and that this sub-section really refers to the method in which aliens shall be dealt with when they become members of the community in the physical sense.

Mr. BARTON.-I don't think the speakers generally have been making the mistake you mention. Certainly Mr. Isaacs and Sir George Turner did not.

Mr. REID.-I have heard observations that would have been perfectly correct if this sub-section had not that meaning. However, that sort of thing has been happening all through; there is nothing unusual in it. I agree with Sir John Forrest that it is certainly a very serious question whether the internal management of these coloured persons, once they have arrived in a state, should be taken away from the state. I am prepared, however, to give that power to the Commonwealth, because I quite see that it might be desirable that there should be uniform laws in regard to those persons, who are more or less unfortunate persons when they arrive here. Therefore, in that sense I am prepared to say that the clause should stand as it is. But I do not know that the difficulty does not still remain-that if there is no federal law, and until there is a federal law, the local law would not go.

Mr.-KINGSTON.-No, the local laws are preserved under section 100.

Mr. REID.-Will that cover the difficulty? We will suppose that this Constitution has been created. Supposing the Imperial Parliament has originated over this continent one executive power, having exclusive authority to make laws [start page 242] for certain subjects. It is a very serious question whether, the moment that power comes into force, the existing laws remain.

Mr. BARTON.-They stand to the extent to which they do not conflict with the federal law.

Mr. REID.-It strikes me that the provision on which honorable members have based that opinion was more intended to deal with the difficulty arising under clause 52.

Mr. BARTON.-That might be the primary intention, but it covers both.

Mr. REID.-If it does, I will be perfectly satisfied, but I am afraid the words of the provision will not apply to the clause which speaks of the exclusive legislative powers of the Commonwealth. Clause 100 speaks of “All laws in force in any of the colonies relating to any of the matters declared by this Constitution to be within the legislative powers of the Parliament of the Commonwealth." Well, these are powers which are declared under this special section to be within the “exclusive" power of the Commonwealth.

Mr. ISAACS.-Therefore they are within the power of the Commonwealth.

Mr. REID.-If that is so, I have no objection to the clause as it stands.

Mr. ISAACS.-It prevents you amending your state laws.

Mr. REID.-There is a concurrent power as to the introduction of aliens which is available to the state.

Mr. ISAACS.-The concurrent power does not exist as to new legislation.

Mr. REID.-There is a concurrent power, first of all, with reference to immigration and emigration of aliens.

Mr. ISAACS.-Not after the Federal Parliament has legislated on the subject.

Mr. REID.-I quite agree; but that is the whole question. All the legislation we are aiming at is legislation preventing the introduction of certain races of aliens and their becoming members of this community. That is the salient point. Whilst they are members of the community we can deal with them in a very ordinary way.

Mr. ISAACS.-Not under that clause, because its power is exclusively in the Federal Parliament.

Mr. REID.-But you say that the laws in force in any state at the date of the commencement of the Commonwealth will remain in force until the Commonwealth Parliament legislates on the subject, and if that is so-if those laws are not annulled by the creation of the Commonwealth-I am quite satisfied to leave the Bill as it is, because if the matter is a pressing matter at all I feel perfectly confident that the Federal Parliament will deal with it by having it brought exclusively within their jurisdiction.

Mr. TRENWITH (Victoria).-I want to give an illustration which seems to me to prove the possible danger of leaving this clause as it is. In Victoria we have legislated on this question. We passed a tentative measure for three years. In one of its parts that measure deals with this question of aliens. At the expiration of three years we shall desire to legislate on the subject again. If experience proves that measure to be a wise one, we shall desire to renew it, which, of course, will be making a new law; but if this clause is carried as it stands we shall then be too late.

Mr. BARTON.-Well, you had better make haste, and renew that law before the expiration of the period within which you can re-enact such a law.

Mr. ISAACS.-But we have to wait for three years to get the experience of the law.

Mr. BARTON (New South Wales).-I beg to move, Mr. Chairman, that you report progress, and ask leave to sit again. I am sorry that we cannot pass this clause before adjourning, but I do not like to keep honorable members any longer, after they have been sitting for seven hours. I think it is the general desire of honorable members that we should adjourn at four o'clock tomorrow afternoon, or a few minutes afterwards, and, if that course is [start page 243] suggested then, I shall probably have no objection.

The motion was agreed to.

Progress was then reported.


Mr. BARTON (New South Wales).-I beg to move-

That this Convention do now adjourn.

Mr. DOBSON (Tasmania).-Might I ask the leader of the Convention to seriously consider the progress we are making with our work?

Mr. BARTON.-It is already a matter of very serious consideration.

Mr. DOBSON.-I will not trouble the honorable member then. It is not for me to say whether the progress we have made is good or bad. I hope it is good, but most certainly it is exceedingly slow, and I think the leader of the Convention has, out of consideration to honorable members, halted about calling upon us to sit in the evening in future in committee. I think we are getting on so slowly that we ought to sit two or three evenings a week now. I am perfectly certain that when we have sat here for three or four weeks, the great bulk of us will be longing to get back to our homes and our work, and the grave danger of rushing the more important matters at the last may be avoided if we seek to make

up for the time lost in adjourning over holidays, and through early rising, by sitting sometimes in the evening.

Mr. BARTON (New South Wales).-With regard to the suggestion about sitting at once at night, I am bound to have confidence in honorable members, and to believe that no undue time will be occupied in the discussions of the Convention, and I do hesitate, so early, to call upon them to make the sacrifice which is involved in sitting at night. The Convention has been summoned at such a time that the public business of the colonies does not suffer by our sitting, perhaps, a week or two longer than we otherwise would have done had some of the Parliaments been approaching the session, and we are bound to bear that fact in mind. At the same time, I do recognise the slow progress that has been made, and I think honorable members will see with me that it will be our general duty to refrain from making lengthy speeches in regard to matters that have been debated over and over again; so that I anticipate there will be a number of clauses upon which we shall have very little debate, and, therefore, this slow progress will be compensated for later on. It must be recollected that the matters about which discussion has taken place-the question of rivers, the dealing with aliens and coloured immigrants residing in the various colonies, and such questions, as that of conciliation and arbitration are of the very highest importance, and that they do justify some serious debate. We shall shortly come to clauses upon which I hope I shall not be considered as in any way unfair if I ask the Convention to say that the matters with which they deal have been settled and do not call for lengthy debate. They have received the common consent of this Convention, at any rate at two of its sittings, as well as of a previous Convention, and for these reasons I shall ask honorable members to bear with me if I suggest that when we come to those clauses we should use expedition.

Mr. DOBSON.-Is the question of deadlocks to be re-opened?

Mr. BARTON.-That question is of immense importance. Whilst I might personally be opposed to any proposal with the intention of re-opening the question, I should, nevertheless, feel bound if a request were made by any large number, of honorable members to say that it should be re-opened. The financial clauses will come before the Convention presently, and I may here intimate that the Finance Committee have made progress. They have only one more question to consider, together with the questions that have been submitted to them by the Drafting Committee with regard to their intention [start page 244] in one or two particulars. They are going to meet to-night. When they have completed their work there will be no loss of time in drafting the clauses.

Mr. SYMON (South Australia).-I rise for the purpose of protesting against the constant statement that slow progress is being made. I deny that slow progress is being made. The matters that we are engaged in debating are of the highest consequence. We have met here in this the third session of the Convention for the purpose of completing this work. It is our bounden duty not to leave the chamber finally and for good until the work is completed. If we do we shall be humiliated and discredited from one end of the country to the other. As this is the final opportunity we shall have, every point ought to be thoroughly and exhaustively dealt with. So far as I am individually concerned, I am not going to abate one jot of my interest in these subjects, or in the duty of dealing with them, because of some insinuation on the part of persons who do not attach the same importance to them that it is a waste of time. We have not wasted one moment of time. Some of us ought to protest against these constant insinuations as to the time being badly occupied.

Mr. BARTON.-I do not think there has been any suggestion made excepting now.

Mr. DOBSON.-There has been no suggestion of the kind the honorable member indicated. I hope the honorable member does not mean what he has said.

Mr. HOLDER (South Australia).-I join with Mr. Symon in saying that we have not wasted time; but I rise to ask the leader, of the Convention to consider very carefully the remarks that have been made by Mr. Dobson. I agree with him that we might give at least some evenings in the week to the consideration of these important matters. What I am afraid of is that we shall, within two or three

weeks, come to a time when some honorable members will be obliged to leave, and when we shall have to debate large questions in a thin Convention. It would be better to sit two or three evenings now than to delay matters until that contingency is reached. I would ask the leader of the Convention to consider whether we could not sit two or three evenings next week.

Mr. BARTON (New South Wales).-It makes no difference to me, because I do work in the evenings as it is, but it will make a difference in another respect. If the Convention refrains from sitting at night for the present the Drafting Committee will have more time in which to do the work intrusted to them. If there are night sittings there will have to be a long adjournment hereafter. There will, therefore, be perhaps no loss of time in continuing the present proceedings. I shall be ready to propose night sittings quite as early as will be agreeable, I think, to the majority of honorable members.

Mr. REID (New South Wales).-The labour and anxiety imposed on our Drafting Committee from the first has been so intense that in the interests of this Constitution I shall protest against any arrangement of our sittings the effect of which will be to throw on these gentlemen a strain absolutely beyond human endurance. There is no more critical work than that which the Drafting Committee has in hand-no work which would task men more in every sense-and if we sat at night, and the Drafting Committee had to sit, as they would have to do, after we adjourned, we should not only put an inhuman strain upon these gentlemen, but would practically establish conditions which would make it absolutely impossible for them to do their work thoroughly unless there was a special adjournment for the purpose. Such special adjournment might, as the leader of the Convention has pointed out, cause a greater waste of time than will be caused if we give the Drafting Committee fair time as we go on.

The Convention adjourned at seven minutes past five o'clock.