chapter 011-_p51_subsection 51(xx) & (xxxv)
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Chapter 011 Subsections 51(xx) & (xxxv)* Gary, is the High Court of Australia right about Subsection 51(xx) of the Constitution regarding
Industrial Relations usage? And is this a subsection (xxxv) that can be circumvented by using
Subsection 51(xx)?
**#** INSPECTOR-RIKATI, I will address both questions, with the second part later, but as
I have not as yet read the judgment but if it did then I view the judges should resign from the
bench and let more competent judges adjudicate. Below are quotations of the 26-7-2005
correspondence to John Howard. As such, he should have been aware that Subsection 51(xx)cannot be used for Industrial Relations, as the Framers of the Constitution made clear that as they
had provided for Banks to be under federal law, other then State Banks they desired to do the
same in regard of corporations. And, as they made clear it could not be used to deny a foreign
company to operate in the Commonwealth of Australia but merely that it would operate withinregistration provisions. Quotations of the Hansard (Official Record of the Debates of the
National Australasian Convention) can be traced back in Chapter 33 of the CD.QUOTE 26-7-2005 CORRESPONDENCE
Hansard 17-4-1897Constitution Convention Debates
Sub-section XV.-Banking, the incorporation of banks, and the issue of paper money.
Mr. ISAACS: Anticipating another subsection, I notice that insurance, including State insurance, is to bedealt with by the federal authority. As regards banking, I believe in South Australia there is a State bank. It
will be a question to seriously consider whether the Commonwealth is to deal with purely private banks, andnot State banks. I understand that it is intended to have uniformity of legislation in banking matters throughout
the whole of the Commonwealth, that financial institutions shall know exactly what laws they have to complywith, and that the laws shall apply equally over the various parts of the Commonwealth. But where a State
Bank carries on business purely in its own State, I desire to know why that should come under the operation ofthe Commonwealth?
Dr. COCKBURN: I am glad that this matter has been called attention to. It is a very serious one to thosecolonies which want to go ahead.
Mr. GLYNN: How is that?
Dr. COCKBURN: Because the federal authority may take the power out of the hands of a State to carry on
the business of banking. This would be a concurrent power, and in its exercise in such a matter as the issue ofnotes, for instance, it would be very easy for the Federal Parliament by implication to compel any State to
discontinue it. It [start page 779] might also explicitly forbid the States to undertake it. A hostile majority inthe Federal Parliament, which might be Conservative, might readily do this. The exercise of concurrent powers
is a difficult question in a Federation. We should carefully scrutinise this power before giving it over to thefederal authority.
Sub-section as read agreed to.
Sub-section XVI.-Insurance, including State insurance extending beyond the limits of the State concerned.
Mr. HIGGINS: I desire to understand whether by the word "State" here is meant a particular colony, or is itused in the general sense-the State as distinct from the individual? I apprehend that the word "State" means a
particular colony, but I confess I do not understand the meaning of the term.
Mr. O'CONNOR: This is a new subsection. It proposes to include insurance, and I think it is a very
desirable inclusion amongst the list of powers. However, it involves a principle. The part the hon. memberreferred to is for this purpose: It was suggested that colonies might undertake State insurance, as was done in
New Zealand, and it was held that State insurance should not come under the general laws. From that view Ientirely dissent; but this clause was drawn in accordance with the views of the Constitutional Committee. The
hon. member will see, therefore, that the words "State insurance" simply indicate that whereas a State withinits own boundaries should have control of all its insurance business, and the regulation of its insurance under
any State system, so far as it deals with the people within its own boundaries, any part of its system thatproposes to deal with people beyond its boundaries should come under the general laws. "State" is used to
designate colony. I should support the hon. member if be moved to strike out:
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Including State insurance extending beyond the limits of the State concerned.
Mr. ISAACS: It would include all insurance then?
Mr. O'CONNOR: Yes; and I think it ought to. If a State chooses to go into the business of insurance-I donot say it is wise or not-I do not see why any departure should be made as to the uniformity of laws withregard to insurance. The State should be subject to the same limitations as the individual if it goes in for State
insurance. It would be absurd to say it should not. Supposing every State adopted a system of State insurance,
according to this exception each State would be able to adopt a different method, so long as it kept within itsown boundaries, and you might have five different Systems of insurance outside the general law.
Mr. ISAACS: Is that not States rights?
Mr. O'CONNOR: No; because you start with the proposition that general insurance laws must be the samethroughout the colonies.
Hansard 17-9-1897 Constitution Convention Debates
The Hon. E. BARTON: The finality in all constitutions, I have always pointed out, is furnished by the senseof the people, and it is furnished by the action of that sense in adopting ordinary constitutional methods of
government. If we require to go further and I for one at once concede that public opinion does require us to go
[start page 750] further-if I am to make that further step, I must consider, and I am bound to consider, whetherthe step I am asked to take is just. I cannot come to the conclusion, at present, at any rate, that the nationalreferendum will be a just solution of certain of these affairs. I admit its effectiveness. It is the most effectual
thing in the world. It is as effective as the guillotine but that is no argument that the guillotine was always just .
The Premier of New South Wales pointed out yesterday that he would be very glad to submit to have thematters which gave rise to questions of state interest so defined in the constitution that, with respect tothem, the dual referendum would obtain, whilst with respect to all others which might be regarded as purely
national interests, the general or national referendum should obtain.
The Right Hon. G.H. REID: "State rights" was the expression I used!
The Hon. E. BARTON: I will concede that state rights was the expression that my right hon. friend used. Iused the expression "state interests" because I can see that what is at the root of this discussion is not merely
state rights, but also state interests. No one knows better than the right hon. gentleman the eloquence of whosespeech, of course, I admired that it is exceedingly hard to define what is a national interest purely, and what is
a state interest purely. We may define what are state rights that is to say, what are the rights of legislation of
states. We may leave undefined altogether what are national interests; but we shall not escape from thisdifficulty that, in carrying out the legislation of a federal commonwealth, there must and will be repeatedinstances in which the decision of questions remitted to the commonwealth must gravely and perhaps vitally
affect state interests. That is the one point from which we cannot escape, and we must, in coming to ourconclusion, at any rate, hold this position in view if we have ultimately, under some circumstances which I
cannot yet foresee, a national referendum, let us recollect that we may decide that a great public interestrequires finality, and yet confess to ourselves that, for the sake of finality, we may be committing an injustice,
although we may suppose the one end to be so vital that its vast importance excuses the injustice of the means.
The Hon. Sir J.W. DOWNER: That is a dangerous position!
The Hon. E. BARTON: That is, as the hon. gentleman has suggested, a dangerous position; I admit it; butthere are very few vital positions connected with the decisions upon questions of this kind. Upon the
manufacture, because it is a manufacture, of a constitution for a federal commonwealth, there are very fewvital points which do not involve some danger. Do not imagine for a moment that I am speaking now in favour
of the general referendum. What I say is that if it becomes necessary in the end to have resort to thatreferendum, properly guarded, it will only be, I suppose, because we come to the conclusion that the
necessities of federation, the necessities of our position, are more binding upon us than accurate justice inevery respect. In the meantime, until I have that proof, I shall be an objector to the general referendum. When
the Premier of New South Wales spoke yesterday, he referred to nearly all the powers of legislation embodiedin clause 52 of the bill, with the view of pointing out that it would be a desirable thing if those matters in
which state rights were involved could be indicated so that upon them we might consent to a dual referendum,whilst upon those matters which were purely national interests we might enforce the claim of a general
referendum. The difficulty of this question, as I said, must be manifest to the right hon. gentleman, for themere reason that those definitions are nearly impossible, [start page 751] for the very reason that the variety of
circumstances and affairs which arise in a federal commonwealth render it impossible for you to predict with
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twenty years, to clog the wheels of commerce and finance. It is a trouble, for instance, to Victorian capitalists
to find that we have in Queensland a law which does not exist in Victoria. While the disparity in the law is not
of much moment, still it is these little grains of sand falling in between the wheels of commerce, causinghesitation in investment in different parts of Australia, which do so much to clog the whole machinery. I trusthon. members will endeavour to maintain a uniformity of law in these respects.
Sub-clause agreed to.
Sub-clause 19. The status in the commonwealth of foreign corporations, and of corporations formed in anystate or part of the commonwealth.
Mr. MUNRO: We have agreed to sub-clause 13, dealing with the incorporation of banks, and I do not seewhy a similar provision should not be made in regard to the incorporation of companies. Why should they notbe under the control of federal officers? At the present time the law as to incorporation is different in the
different colonies, and the result is [start page 686] extremely unsatisfactory in many cases. I do not see whywe should not make the same provision in regard to the incorporation of companies as we have made in regard
to the incorporation of banks. We might introduce at the commencement of the sub-clause words to this effect:
"The registration or incorporation of companies."
Sir SAMUEL GRIFFITH: I do not think we should. There are a great number of different corporations.
For instance, there are municipal, trading, and charitable corporations, and these are all incorporated indifferent ways according to the law obtaining in the different states.
Mr. MUNRO: But as to trading corporations!
Sir SAMUEL GRIFFITH: It is sometimes difficult to say what is a trading corporation. What is
important, however, is that there should be a uniform law for the recognition of corporations. Somestates might require an elaborate form, the payment of heavy fees, and certain guarantees as to the stability ofmembers, while another state might not think it worth its while to take so much trouble, having regard to its
different circumstances. I think the states may be trusted to stipulate how they will incorporate companies,although we ought to have some general law in regard to their recognition.
Sir JOHN BRAY: I think the point raised by the hon. member, Mr. Munro, is worth a little moreconsideration than hon. members seem disposed to bestow upon it. We know what some of these corporations
are; and I think joint-stock companies might be incorporated upon some uniform method. In South Australia,
a banking company is not allowed to be incorporated under the Companies Act; still, there is nothing in
Victoria of which I am aware to prevent a banking company from being registered there as a limitedcompany and opening a branch in South Australia a few days afterwards. I think it is necessary,therefore, to have some uniform law. There is nothing in which the public should have more confidence thanin banks which are in any way recognised by the state; and I think we should have some uniform system of
incorporating banks. Many companies, although doing business under different names, are, in reality, banks.
Mr. MUNRO: The banks are incorporated under the Companies Act in Victoria!
Sir JOHN BRAY: You can establish financial companies, which you do not call banks, but which answerall the purposes of banks. We have provided that the federal parliament shall legislate as to the incorporation
of banks; but there is nothing to prevent the incorporation by the states themselves, quite apart from the federalparliament, of trading companies which will do all the ordinary business of banks. If it is desirable to intrust
legislation as to the incorporation of banks to the federal government, there is no reason why we should
not say that the registration of financial companies doing all the business of banks should be dealt within the same manner.
Sub-clause agreed to.
Hansard 12-4-1897 Constitution Convention Debates
Mr. BARTON:
The status in the Commonwealth of foreign corporations and of corporations formed in any State or part of theCommonwealth.
It has so far been altered as to read:
Foreign corporations and trading corporations formed in any State or part of the Commonwealth.
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So that the Commonwealth may have the power to legislate, not merely with regard to the legal status of
corporations acting within the Commonwealth, but it may have power as far as it can legislate upon the general
subject of these corporations, over the general subject of foreign corporations, formed in any part of a State ofthe Commonwealth, for the purpose of uniform legislation.
Mr. HIGGINS: Does that give power to exclude them from trading in the Commonwealth?
Mr. BARTON: Not, I think, to exclude them , but to regulate the mode in which they conduct theiroperations. It is for the purpose of uniformity. After the old subsection, which gave the Commonwealth power
to deal with the subjects of marriage and divorce, have been added these words:
Hansard 17-4-1897 Constitution Convention Debates
Sub-section 22: Foreign corporation and trading corporations formed in any State or part of the
Commonwealth.
Sir GEORGE TURNER: With regard to this clause, we have already given power to deal with the question
of banking, and we are now giving power to deal with foreign corporations and trading corporations. I fail to
see why we should limit the sub-section to trading corporations. There are financial institutions which are notbanking institutions, and if we are going to give the Federal Parliament power to legislate with regard tobanking, and with regard to trading corporations, we should go a step further and give it power also to legislate
with regard to financial institutions.
Mr. BARTON: I do not know.
Sir GEORGE TURNER Building societies.
Mr. BARTON: I think the present wording of the sub-section covers as nearly as may be the intentionsof the Constitutional Committee, and really for the amendment, which is a desirable amendment, in the sub-clause as it stood in the Bill of 1891, we are indebted to my hon. friend, Mr. Isaacs, who put it in its present
form.
Mr. ISAACS: I suggested the word for temporary consideration.
Mr. BARTON: I Should like to be favored with any arguments in favor of the suggestion.
Mr. DEAKIN: We recently passed a law in our colony which placed a strict limitation on the meaning of
the word "banks," excluding from it particular kinds of financial companies which had hitherto been calledbanks, or treated as banks.
Mr. BARTON: You mean that kind of financial company that went down so often.
Mr. DEAKIN: We distinguish them from banks on the one hand and trading corporations on the other. Wewant to include all limited companies because the class of companies I am speaking of deal with lands andwith deposits, and they require to be carefully regulated.
Mr. MCMILLAN: You want to include everything outside private companies.
Mr. DEAKIN: Especially land and finance companies which caused so much litigation in the past.
Mr. Symon: In the original Act corporations simply are mentioned. Why this difference?
Mr. BARTON: The reason of making the difference was this: It having been seen that the word
"corporations," as it existed, covered municipal corporations, [start page 794] the term was changed to "tradecorporations."
Mr. SYMON: Why not simply use the term "company"? If you use that word it will be well enoughunderstood.
Mr. BARTON: Why not adhere to "corporation"? That governs everything under the Companies
Act.
Mr. SYMON: Why not leave out the word "trading"?
Mr. BARTON: Or add the word "financial"?
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Sir JOSEPH ABBOTT: I move:
To insert the word "financial" before "corporation."
Mr. BARTON: Would it not be better to make it thus:
Any trading or financial Corporation.
So as to separate that branch from foreign corporations?
Sir JOSEPH ABBOTT: I will consent to that and move:
To insert after trading "the words or financial."
Amendment agreed to.
Hansard 3-3-1898 Constitution Convention Debates
Mr. SYMON.-I do not think that it is necessary to frame a definition of "citizen." A citizen is one who
is entitled to the immunities of citizenship. In short, a citizen is a citizen. I do not think you require adefinition, of "citizen" any more than you require a definition of "man" or "subject."
Mr. ISAACS.-Would you include a corporation in the term "citizen"?
Mr. SYMON.-Why not?
Mr. ISAACS.-Well, in America they do not.
Mr. SYMON.-I do not see why a corporation existing in one colony should not have the rights of acorporation in another colony. Otherwise you defeat the objects of this Constitution.
[start page 1783]
Mr. ISAACS.-I agree that that ought to be so, but the word "citizen" will not include a corporation .
Mr. SYMON.-Well, in my opinion it should. I think, however, though I am not prepared to say definitely,
that other provisions in the Constitution would deal with that case. Clause 52 provides that we are to haveuniformity, and I think would prevent any difficulty in regard to corporations, quite apart from the question of
the meaning of the word "citizen." But if you ask me whether a corporation might not come within thedefinition of "citizen" to a certain extent-not, of course, in regard to the right of the voting and so on-I shouldsay that it would. The difficulty is one that requires to be met. Although I admit that the amended American
Constitution goes further than anything we require, and is directed to a particular and special condition ofthings, this provision seems to me absolutely essential, and, in my opinion, the Constitution would be
incomplete without it.
The basic understanding I have from the Constitution Convention Debates is that the registrations
and general conduct of how corporations are set up is what was the issue for giving constitutional
powers to regulate them, albeit not to exclude or otherwise deny them to operate within the
Commonwealth of Australia, even so this latter seems to be done anyhow. Nothing was thereeven remotely to suggest that it was to deal with how people were employed by such corporations
and indeed, considering other statements made by the Framers it is clear that Industrial Relationsmatters within state borders are and remain for the State to legislate.END QUOTE 26-7-2005 CORRESPONDENCE
QUOTE 26-7-2005 CORRESPONDENCE
While on the one hand the Framers were very concerned that laws enacted by the commonwealth
would be throughout the Commonwealth equally applicable on the other hand they also madeclear that other then directly relating to trade and commence they did not want the
Commonwealth to interfere with trading and commerce within a State.
A similar approach has to be taken with companies, that albeit the Commonwealth may legislate
for the structure of companies, it is another matter to purport constitutional powers being used
within this as if companies legislative powers can override the objection the Framers had for theCommonwealth to interfere with Industrial disputed within the borders of one State.
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It also ought to be noted that the Framers warn against the courts to interpret the constitution as to
the US constitutional framework, which they made clear they didnt want to be applied. Yet, far
too often the High Court of Australia precisely does this!Hansard 21-2-1898 Constitution Convention Debates
Mr. BARTON.-No. If they find that a rate is deliberately fixed low, not for the mere purpose of internal
development, on the ordinary principle of diminishing the rate in proportion to the length of traction, but ofwrongfully preventing [start page 1251] inter-state commerce from taking its ordinary course, the allowance of
that rate is a matter which they can consider. A decision which says that they cannot interfere with a ratebecause it is low is not a decision which abnegates their constant duty to prevent preferences between the
states. I do not think any decision can be found which will negative that view. Under the clause as it stands, theprohibition of preferences extends only from the ports of one state to the ports of another state. If it is wrong to
give a preference to the ports of one state over the ports of another state, it is equally wrong to give apreference to a part of a state over a part of another state. I have endeavoured to correct that anomaly. On the
other hand, the second part of the clause, making void any law or regulation made by the Commonwealth or byany state, or by any authority constituted by the Commonwealth or by any state, having the effect of
derogating from freedom of trade or commerce between the different parts of the Commonwealth, may meanmore than the Convention intends. At the instance of the Hon. Mr. Isaacs we amended clause 89 to make it
read that on the imposition of uniform duties trade and commerce, whether by intercolonial carriage or oceannavigation, between the states should be absolutely free. The words used before were "throughout the
Commonwealth." What we desire to protect is inter-state trade, and we recognise that the internal
regulation of trade must be left in the hands of the individual states. That is a principle on which we areagreed.
END QUOTE 26-7-2005 CORRESPONDENCE
Now going back to your second part of the question And is this a subsection (xxxv) that can be
circumvented by using Subsection 51(xx)? I would respond further;
of course not, the limitations are and remain applicable and the High Court of Australia 14-11-2006 judgment is what of utter disgrace and only exposes the incompetence of that court to hand
down a judgment to reflect the true intentions of the Framers of the Constitution . I will do some
extensive quoting of the Hansard so the reader may get a grip on what the Framers of the
Constitution intended with subsection 51(xxxv) of the Constitution .
Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention) (Chapter 33 of the CD)
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 andcourts 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 thewhole 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 ofthe principles principle which I think must be admitted in the present circumstances-that anythingwhatever 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.
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention) (Chapter 33 of the CD)
Mr. ISAACS.-The argument I am going to deal with refers to both, because it is said equally of both of themthat the reference to the people directly destroys representative government, and, therefore, I think I am fair in
saying that this objection, which I propose to deal with as shortly as possible, applies, if it applies at all, to bothof them equally. Now let me clear away one or two little subjects, as it seems to me, of mystification. We have
heard it clearly stated that the referendum will be destructive of representative government and of responsiblegovernment. Let me, once for all, distinguish between those two matters. Representative government is
possible without responsible government. In America they have representative government, but they have noresponsible government. Therefore, we must distinguish very clearly between these two things. If we want to
preserve representative government, as I think we must, we shall have to ask ourselves, first of all, what it is.
Responsible government means, as I understand it, the responsibility of the leaders of political life, the
Ministers of the Crown, to one House of Parliament. Representative government means that the people,
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in providing their legislation and supervising their administration, do so through their representatives.It is of the utmost importance that we should not confuse these two matters. If we ask ourselves are we to
preserve responsible government, then I say we must not have the meeting of the two Houses, because aMinistry that brings forward a proposal, and has a majority in the House of Representatives, and yet has to facethe possibility of defeat, not by its own House, but by the joint operation of the two Houses, or by this new
creation in the world of politics-this uni-cameral combination-will find itself responsible-to what?-not to theHouse of Representatives, not to the Senate, but to this joint sitting. And I can conceive no more fatal blow at
what we understand to be responsible government than an application of this provision to the two Houses
sitting together. Therefore, this newfangled notion directs a most serious blow at responsible government, as
well as possessing the defects and disadvantages I have [start page 2183] already pointed out. Let us see as torepresentative government. Is representative government the be-all and end-all of our Constitution? It is a
matter of common knowledge-I have referred to it very often, and I have never heard it challenged-thatrepresentative government, as we have it now, is, comparatively speaking, a thing of yesterday, because until
1832 there was no representative government in the sense in which we possess it now in England. The House
of Lords and the House of Commons, as Bagehot points out, with unanswerable truth, consisted of the samepeople. The gentry of England, titled and untitled, and a few governing families, returned an absolute majorityof the House of Commons. They did not represent the people; and it was only after that memorable struggle
when the House of Commons assumed its new character, when the Constitution of England underwent anundoubted revolution, not only a reform but a revolution, that we first had the introduction of real
representative government. That has been made still more clear by the broadening of the franchise down to the
present time, and it is only by the broadening of the franchise that you get this representative government, withone essential consideration, which I will point out directly. Therefore this representative government, which
has brought in its train responsible government, and which has brought also as a necessary consequence withit, and a necessary attendant, the supremacy of the people in its present form is a matter not possessing eventhe sanctity of antiquity. And are we to assume that representative government in its present form is to
continue for ever, and to continue unchanged? I am one of those who believe that we shall always haverepresentative government, and I believe that we shall always have responsible government in British
communities. I believe that they ought to be maintained to the last, and I wish to declare here, once for all,
that I shall never be a party to changing the bi-cameral system to the uni-cameral system, or to destroyrepresentative institutions or responsible government. But, sir, there is a strong and a growing feeling thatrepresentative government is becoming inadequate by itself to fulfil the duties that are imposed upon it, and
when I suggest and support the proposal for a referendum, it is not with the design of supplantingrepresentative government-far from it; but it is with this object: That while allowing representative government
in the form of the two Houses to proceed unmolested, even by a direct vote of the people in any shape or formso long as they carry out the work of the people without hitch, without prolonged obstruction, then I say, when
that prolonged obstruction takes place, that is to say, at the crucial point where representative government fails,where it breaks down, it is time that the people should be called in to manage their own affairs, which their
agents admittedly are unable to manage for them. This is no new notion. It is not confined to Victoria. May Iquote the words of a man whose name will be accepted as that of a master in political science? What does
Goldwin Smith say?-
Parliaments are losing much of their importance, because the real deliberation is being transferredfrom them to the press and the general organs of discussion, by which the great questions are virtually
decided, parliamentary speeches being little more than reproductions of arguments already used outsidethe House, and parliamentary divisions little more than registrations of public opinion. it is not easy to
see how far, with the spread of public education, this process may go, or what value the parliamentarydebate and division list will in the end retain. If monarchy, is primeval, Parliaments are the offspring of
the Middle Ages, and for them, too, sand in the hour glass of history runs.
Mr. BARTON.-Is that a tendency to be resisted or encouraged?
Mr. ISAACS.-Any tendency that the people have manifested in the direction of liberty and self-
government ought to be [start page 2184] encouraged. Parliaments are nothing but machinery, and I
wholly dissent from the position taken up last night by some honorable gentlemen, who said that thedead-lock is only an invention by the masses of the people to prevent themselves from exercising their
constitutional functions that were intrusted to them. Is not that putting the axe above its master? Is notthat placing the created above the creator? Is not that saying that the people whose lives, whose liberties,
whose moneys are being dealt with are not the judges themselves, but that they are to be eternally thegoverned, not the self-governed. Therefore, I say that while we, from the necessities of the case, mustpreserve, and ought to preserve, representative institutions and parliamentary government, yet we ought not to
be blind to this: That with the growth of population, with the expansion of social and commercial and
industrial necessities representative government does not always carry out the duties which it is called upon to
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fulfil. And that is just the juncture where we should provide some means of allowing the action of the State to
proceed in a healthy fashion. I may be told that I am all wrong.
Mr. DOBSON.-Certainly.
Mr. ISAACS.-I am bound to be told that I am all wrong, and, therefore, if I err, I want to show that I err inmost excellent company; and I will call from the camp of my adversaries a witness whose judgment they will
not question, and whose veracity they will not deny-a conservative, but a conservative who is not blind to the
inevitable tendencies and necessities of the time. I will read a very few lines which I have extracted from Mr.Lecky's work, volume 1, page 240.
Mr. MCMILLAN.-A liberal unionist.
Mr. ISAACS.-The work was issued in 1896, and therefore embodies, I should may, the latest phase of
thought on the subject. I think that this passage answers nearly every objection that has been raised, or, as Iconceive, can be raised to the fairness of the referendum:-
If the electorate is to judge policies, it is surely less likely to err if it judges them on a clear and distinctissue. In such a case it is most likely to act independently, and not at the dictation of wire-pullers. It is to
be remembered, too, that the referendum is not intended as a substitute for representative government.All the advantages of parliamentary debate would still remain. Policies would not be thrown before the
electorate in a crude undigested undeveloped state. All measures would still pass through Parliament,and the great majority would be finally decided by Parliament. It would only be in a few cases, after a
measure had been thoroughly discussed in all its bearings, after the two Houses had given theirjudgment, that the nation would be called to adjudicate. The referendum would be an appeal from a
party majority, probably made up of discordant groups, to the genuine opinion of the country. It wouldbe an appeal on a question which had been thoroughly examined, and on which the nation had every
means of arriving at a conclusion. It would be a clear and decisive verdict on a matter on which the twobranches of the Legislature had differed.
Let me come to another writer in 1897. Professor Sidgwick, in the second issue of his work, at page 559,
having already spoken about the inadvisability in his opinion of direct legislation in ordinary cases, with whichI need hardly say I most thoroughly agree, says-
There are, however, special cases in which the direct intervention of the people in legislation appears to
me on the whole advantageous. The first case arises when in a Legislature constructed on the two-
Chamber system, it is important to avoid a dead-lock resulting in a disagreement between the twoHouses, that is, when the urgency of the need of some legislation on a particular point is generallyrecognised, but the Chambers cannot agree on the form that the legislation is to take. Under these
conditions, a reference to the citizens at large has many advantages as a method of terminating a,disagreement. The dignity of the other Chamber is saved if it has to yield to the people and not to the
rival Chamber, while by the reference of a particular measure to the judgment of the citizens a moreclear expression of the people's will is obtained than a general election of representatives can give.
Again, the process is more educating, since a single definite issue is [start page 2185] placed before thecountry. It also avoids the danger involved in the representative system that an interested or a fanatical
minority of citizens may, by concentrating the whole voting power at a general election on a particularquestion, obtain a fictitious majority of representatives pledged to support this demand.
Mr. DOBSON.-Both these quotations refer to real dead-locks, not to disagreements.
The CHAIRMAN.-Order.
Mr. ISAACS.-I do not know the difference between real dead-locks and disagreements, and if the honorable
member can give me a definition it will help us to consider the matter.
Mr. BARTON.-There is a very serious difference.
Mr. REID.-I would not like to put it to an Irishman.
The CHAIRMAN.-The honorable member must not interrupt.
Mr. ISAACS.-I shall make only one more quotation upon this subject, and it is from Cree's work upon directlegislation. The writer says, at page 16:-
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Direct popular legislation, under proper modes and forms, is at once democratic and conservative. It
accords with the tendencies and spirit of the time; it will, we think, prove to be a calming and
conservative institution. It will remedy some serious imperfections of our present system of law-making,and some evils of our political life. It will abate the rigour of our party system, break the crushing and
stiffing power of our great party machines, and give freer play to the political ideas, aspirations,opinions, and feelings of the people. It will tend to relieve us from the dominance of partisan passions,
and have an elevating and educative influence upon the voters, by inducing them to consider measureson their merits as schemes of public policy instead of as mere party proposals. Public spirit will thus be
cultivated, and intellectual exertion stimulated among the masses.
Writing, as he does, in 1892 he points out that had there been some such means in the American Constitution
of consulting the will of the people the American conflict would in all probability have been averted. He goesmuch further than we desire to go, and further than we would go. He thinks that provision ought to be made fordirect legislation in most cases. I adhere to the opinion I previously expressed, that the British Constitution is
the best, but it is whatever Parliament chooses to make it at any particular moment, and the action ofParliament is decided by the will of the people. But here we say, in a cast-iron fashion, that there never shall be
this outlet for public opinion. We say that decisions shall be arrived at only in a certain fashion, and that, if
they cannot be arrived at in that fashion, the matters in dispute shall be left undecided. I think that this isutterly wrong. It is a mistake to put a block in the path of political progress. If we are told that, by doing what Iventure to advocate, we shall sink the dignity of Parliament and destroy responsible government, this is my
answer: If we were to adopt the proposal that the matter should be referred, as in some of the American states,and as in Switzerland in the case of federal laws, to the veto of the people after the two Houses of Parliament
are agreed, the objection might be made that we were, to a large extent, destroying parliamentaryresponsibility. Mr. Lawrence Lowell, in a recent work upon Government and parties in the states of Europe,
says that that argument is not justifiable, even in the case of Switzerland, because what takes place there doesnot impair the efficiency of parliamentary action and responsibility. But we do not bring forward any such
provisions as they have in Switzerland. We say that each House, and every member of each House, shall takethe full share of responsibility for his action in supporting or repelling a measure, and that, when the two
Houses agree, there is no need for the referendum. I would refuse to allow Members of Parliament to declinetheir responsibility by the adoption of the referendum in this way. Therefore, the objection which has been
raised to the provisions in force in Switzerland in regard to federal laws do not apply to our proposal at all.What I [start page 2186] say is that, when both Houses have taken their full share of responsibility, when they
have agreed that a matter is in dispute, and that it is the only thing that they have agreed upon-when one Housemaintains that the people earnestly and urgently desire the passing of a political measure, and the other House
just as earnestly and as strenuously maintains that the people do not desire its passing; then I say, let the people
decide. I think there is one argument, and one only-it is a short one-with which my opponents may becredited. It is that this is a most democratic Constitution because the suffrage provided for is manhood
suffrage. That, as I intimated a little earlier, is in my opinion an essential provision, but it is by no meansa sufficient provision. What is the use of manhood suffrage, if you so divide the constituencies that the
minority may overpower the majority without recourse to the direct opinions of those who form theminority? When one of the Reform Bills-I think the Bill of 1867-was under consideration in England, Mr.
John Bright, writing to one of his friends in Manchester, used words which, I think, ought to be borne inmind and written in the largest possible characters, in reply to the argument that this is a most
democratic Constitution, because it provides manhood suffrage. Mr. Bright said, in effect, that disputeshad arisen as to the extent of the suffrage, and as to whether it should be pure manhood suffrage or
something short of that. But he continues-
I consider these differences of opinion upon the subject as of trifling importance when compared with
the question of the distribution of seats and members. This is the vital point in the coming Bill, andunless it be well watched you may get any amount of suffrage, and yet find, after all, that you have lost
the substance and are playing merely with the shadow of popular representation.
If his views are right, that is a complete answer to the argument that we ought to be satisfied that this is
a democratic Constitution because it contains manhood suffrage.
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention) (Chapter 33 of the CD)
Mr. LEAKE.-It is also retrospective in its effect.
Mr. SYMON.-That is the point I was coming to, and I am much obliged to the honorable member for callingmy attention to it. But I do not wish to elaborate the point, because it must be seen that the proposal has that
vice. In addition to that, what does my honorable friend (Mr. Holder) do? We all of us have the interests of the
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states at heart; but my honorable friend leaves the state law to be declared ultra vires. Under this proposal you
are to protect the laws of the Commonwealth in an extraordinary and burdensome way, but not the state laws,
which the High Court may declare to be ultra vires. Why should not the people of the states have a similarpower of saying that their law is perfectly good, and that they want it? That is what I meant by saying that thisis a lop-sided arrangement. If you want to amend the Constitution, amend it; but if you are dealing simply
with a law declared to be ultra vires, then I say that the states should be treated equally with the
Commonwealth, and it should be open to their particular citizens to say whether or not they approve ofthe proposed alteration of the law. But you would introduce the greatest complication into the Constitution
by doing anything of the kind. An amendment of the Constitution is a matter of grave importance, and to say
that a Commonwealth law declared to be ultra vires by the High Court is to be placed in a different position,and is to be treated in a special way, in which a law of a state declared to be ultra vires is not treated, is grossly
unfair. You must, to be just, deal with both the states and the Commonwealth upon the same method in regardto alterations of the Constitution.
Mr. HOLDER.-Will you support me if I put that in?
Mr. SYMON.-My honorable friend should not ask me to support such a proposition as that, because heknows that I would do nothing of the kind; but I say that if his proposal is to be adopted with regard to the lawsof the Commonwealth, it is unjust that the states should not be treated in the same way. I say that the states and
the Commonwealth should have the same advantage in this respect.
Sir JOHN DOWNER.-And why confine it only to questions of ultra vires?
Mr. SYMON.-Exactly. Why not say, that all laws of the Commonwealth shall be valid in all respects, andthat all laws of the states should also be valid? Then we should get into a nice pickle. If a law is of vital and
serious consequence to the Commonwealth, and is declared to be ultra vires by the High Court, there is underthe Bill an appeal to the people, by means of the provision for amending the Constitution. Let that appeal be
made, and let the Constitution be amended; but do not let us introduce, a further [start page 1727] opening forexpense, and also for injustice, by an inefficient means of really amending the Constitution, but which at the
same time will leave unredressed the grievances which may exist on the part of the state. I therefore hope thatthis amendment will be rejected as altogether unnecessary, and as cumbrous and expensive; and as not even
having the colour of bringing about the redress of difficulties, which my honorable friend stated at the outset,because the provision is not one which will have the effect of diminishing the possibilities of litigation under
this Constitution. No one more deeply sympathizes with the object of the clause than I do, but some moreeffectual way must be devised to deal with this question. This, instead of being an improvement, will be a
distinct blemish on the Constitution we have to frame.
Mr. ISAACS (Victoria).-I agree with Mr. Symon that there are difficulties raised which are almost
insuperable against the clause as it stands. There is not a single point in which more facility is given foramendment of the Constitution than already exists in the Bill. You want under this clause, as you want under
the 121st clause, an absolute majority of both Houses. You also want a majority of the states voting, and amajority of the people voting.
Mr. BARTON.-An absolute majority of both Houses directing a referendum, not for passing a law.
Hansard 17-4-1897 Constitution Convention Debates
Mr. MCMILLAN: It seems to me that we must decide whether we will give this power to the Federal
Government or leave it to the States. The object of Federation is, while federating on common matters,not to interfere with the industrial and local life of the States. This is a proposition which goes a step too
far, as you are giving a distinct power to override the States legislation. Is the power simply to beexercised with the consent of the States, or is it to be an overriding power.
Mr. KINGSTON: It is a power which the Federal Parliament may exercise.
An HON. MEMBER: If they make any law it will override any local law.
Mr. KINGSTON: Only where it is inconsistent.
Mr. MCMILLAN: I have no legal knowledge to guide me, but it seems to me that everything that we putamong these sub-sections is practically a power which necessarily overrides every other power, and therefore
there is no doubt that while in some trade disputes their ramifications extend throughout the different colonies,still they are to a great extent local matters of dispute.
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Mr. HIGGINS: It will only apply where the dispute extends outside the limits of one colony.
Mr. MCMILLAN: Here again I am met by my want of legal knowledge; but it seems to me that it is a
difficult thing for the Federal Government to interfere, even where the ramifications of the disputesextend beyond the limits of a colony, without the consent of the States. I think there are sufficient powers
in this Bill to enable some conjunction of interests between the Federal Government and the States in mattersof this kind being effected; but I do not think that there should be any power included in this Bill which
will so interfere with the local industrial life of any State as practically to dictate to the State with regardto trade disputes.
Sir JOHN DOWNER: I confess I do not understand the clause, nor do I see what it means.
Industrial dispute extending beyond the limits of one colony
are the words used, but how can that happen?
Mr. HOWE: A maritime strike affects the whole national life.
Sir JOHN DOWNER: It does not extend beyond the limits of a State. The dispute is complete in itselfin each State. Because there is the same dispute in other colonies, it does not create a dispute extending
beyond the limits of the State. Each dispute is a dispute complete in itself [start page 784] in each State,and each State will have power to deal with it. Such a provision I think will be a fertile source of dispute.
As far as the words are concerned, they appear to be simply meaningless, and I cannot conceive any
dispute which in itself can extend beyond the limits of the State.
Mr. CARRUTHERS: How about a dispute with the masters in one State and the men in another, as in theshipping trade?
Sir JOHN DOWNER: That is not a dispute extending beyond the State. It may be a very difficult thing towork out, but if it is to be done at all-and I can see great difficulty in doing anything with it, because it will beextending the limits of the Commonwealth legislation to a most dangerous degree, which I think all the
colonies will not be prepared to accede to-it will be a departure from the proposition that there must be aformula in which you can give the jurisdiction. These words, I submit, will not do it, because the dispute
will be a dispute in the State alone, and will not extend beyond it.
Mr. HOWE: I rise, as one of the laymen, in fear and trembling to give my opinion against those of the legal
luminaries here. A maritime dispute may affect the life of the nation. We have before seen the wholecommerce paralysed by these disputes, and if we give the telegraphic departments to the federal authority why
not give them authority to settle a national dispute which is endangering the commercial enterprise andindustrial life of the whole community. I am with Mr. McMillan on that point, and if these words will not
accomplish their object I want Sir John Downer to find words that will.
Mr. DEAKIN: I am entirely with my hon. and learned friend Mr. Higgins in the amendment he has moved
so far as he has indicated his purpose. I had the pleasure in 1891 of supporting the Premier of South Australiawhen he made a similar proposition. It is a cause in which he has taken a continuous and active interest ever
since. Some of the difficulties which confront Sir John Downer confront me, although I see the problem fromanother point of view. This sub-section would give concurrent federal power in dealing with industrial
disputes when they extend beyond the borders of a single State. The granting of such a power is desirable,properly belonging to a Federal Government, because the disputes may be extended over large areas, and if
they are to be dealt with as a whole they must be dealt with by the Federal Parliament. Concurrent legislativepower here differs from the concurrent power usually given in other respects in this Bill. A dispute might
arise in South Australia, where there is a law now on its Statute-book dealing with industrial disputes.
So long as that dispute remained in South Australia it would be dealt with under that law. The federalauthority will also have a law perhaps different in its provisions, in many respects, from from the law in
South Australia. Directly the dispute in Adelaide overflowed to Western Australia or the Wimmera thepower of the State law would cease and the power of the Federal law, which is a different law, wouldbegin.
An HON. MEMBER: So it ought to.
Mr. DEAKIN: Yes; but it will be difficult to determine the moment of overflow even if you can determine
the point of overflow. We can scarcely say it there is to be a law in each State that the federal law must notdiffer from some, if not from all, of these. Consequently it will be a curious problem in relation to penalties
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and observances for those concerned to know the moment when they have passed from under the dominion of
the State law to the dominion of the federal law. That is the great difficulty to settle. Although I am prepared to
support the motion of the hon. member, I see grave difficuties in this proposal which [start page 785] is toretain the State law and federal law upon the same question as both may have to be applied in times ofemergency and urgency. If you had merely left power to the State to legislate on industrial questions until the
Commonwealth Legislature intervened, then the situation would be comparatively simple. But I know thatneither of my hon. and learned friends desires that. They both desire to retain for their Several States for all
time the privilege of controlling industrial disputes within their own borders. But then they are confronted
with the difficulties to which I have referred, and upon which I would desire the Drafting Committee to throw
some light so as to enable a determination to be come to. As to the time difficulty, I suppose it could bedetermined by proclamation of the Federal Parliament that a particular industrial dispute had ceased to be a
State dispute, and had become federal. But the hon. member wants to obtain more than that. He wants, if
possible, to graft a federal law upon the State law in such a way that the federal law should only beapplied where the State law cannot be applied. If South Australia and Victoria had each a law enabling
them to deal with a dispute, it might be advisable that each State should deal with it. It might be betterthat the dispute on the Victorian side should be dealt with according to the Victorian law, and that it
should be dealt with on the South Australian side according to the South Australian law. But where theStates altogether find themselves unable to cope with an intercolonial struggle, it seems to be highly
desirable that there should be provision for federal action. I hope the hon. gentlemen will indicate to theDrafting Committee how they are going to distinguish between those two separate spheres of action.
And
Mr. WISE: It would not be fair to criticise the language of this amendment too closely, but I entirely agreewith the observations that have been made by Sir John Downer and Mr. Deakin, that the amendment as now
drawn is very unsatisfactory. The language is either too large or too limited. In one sense it is hard to say
that any industrial dispute is a dispute outside the limits of the colony. I agree with Sir John Downerthat it is impossible to say when any dispute extends outside the limits of a colony, because a dispute isalways in one colony although it may be going on in every colony. In [start page 786] another sense every
dispute extends outside the limits of a colony.
An HON. MEMBER: Indirectly.
Mr. WISE: Sometimes, and sometimes directly. I rose rather to call attention to another aspect of thequestion. If the effect of the amendment is really to provide for the possible establishment of a Federal Court
of Conciliation, I am at one with that object; but the essential part of the language used in the amendment-I amnot criticising casual expressions-indicates a much wider object, which would turn this power into a weapon of
very great danger. It would, I think, deprive those concerned in these industrial disputes, whether as masters oremployes, of one of their greatest safeguards. There is no matter which the industrial population of Australia
would more desire to confine to the local Parliaments, where they can make their influence upon members felt,than matters affecting industrial disputes. To give the Federal Parliament power to make laws affecting
industrial disputes gives them authority to regulate by penalties every detail of the industrial life of
every trade in the colonies.
Mr. MCMILLAN: Hear, hear.
Mr. WISE: Surely that cannot be desired or intended. There is no matter in which varied localdevelopment it; more necessary or desirable to a State than the development of its industrial conditions,
and the industrial conditions in every part of this continent in years to come may, and probably will,very largely develop.
Mr. HIGGINS: Will you not trust the Federal Parliament with the same powers as the States?
Mr. WISE: Will the working classes of this country be prepared to surrender the right of local self-government over industrial disputes?
Mr. SYMON: Hear, hear.
Mr. HIGGINS: That is not my question. Will not the Federal Parliament be equally to be trusted as the
States
Mr. WISE: I do not think the Federal Parliament or any centralised authority will be as competent asa local authority to deal with the necessary local conditions of trade.
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Sir JOHN DOWNER: Hear, hear.
And
Mr. WISE: If a clause were put in, the Federal Parliament would have power to fix a uniform rate ofwages all through Australia in any particular trade.
Mr. HIGGINS: If that is so, and if the hon. member has great confidence in the popular character of this
Parliament
Mr. WISE: I prefer local authority.
Mr. HIGGINS: If the hon. member has confidence in the popular character of this Parliament, I do not seethat there is much to fear of a uniform rate of wage being fixed below what it ought to be.
Mr. WISE: Suppose they take the Victorian standard. How will our workmen like that?
Mr. HIGGINS: I do ask hon. members on this matter to meet me in substance. Are they in favor ofpower being given to the Federal Parliament to establish Courts of Conciliation and Arbitration?
Sir EDWARD BRADDON: No.
Mr. HIGGINS: That is a fair issue, and I hope we shall meet on a fair issue. I hope that we shall not be putin fear by the criticisms of Sir John Downer, who has pointed out with legal acumen that it there in a dispute
you must have two to quarrel. You might have 100 men in the shipping trade in Sydney and 100 in Melbournequarrel. ling with the same company, and they might say they would not work for a certain wage. Let the
Federal Parliament deal with such a matter. Sir John Downer says it is impossible for the Federal Parliament to
define what is an intercolonial labor dispute. Surely we are not here to haggle over quibbles. Suppose anindustrial dispute is confined to New South Wales . I meet that at once by saying that I do not propose to
deal with a dispute like that; but when a dispute is so widespread that a State cannot possibly deal w ithit, let the Commonwealth deal with it.
Mr. SYMON: My hon. friend interposed his speech as a kind of parenthesis to the speech which I had
begun: but I take up the story where I left it off.
Mr. WISE: I call attention to the state of the House.
The CHAIRMAN: According to the Standing Orders I must report it to the President.
Mr. WISE: I withdraw it then.
The CHAIRMAN: You cannot withdraw it.
After the matter had been reported to the President, the Committee was re-constituted.
Mr. SYMON: I was about to say that I hope in the very few observations I shall make on this amendmentproposed by Mr. Higgins, I shall not do so in the spirit of that minor criticism to which be alluded, because I
do not think myself that it is possible to exaggerate the importance of the subject. I do not think that my hon.friend said one word too much in referring to the difficulties and to the widespread influence of these industrial
disputes when they arise. Nor do I think he and other speakers who followed him exaggerated one particlewhen they alluded to the very grave and really calamitous evils which follow in the train of many of these
industrial disputes. But the difficulty I feel, whilst conceding these principles, is that first of all pointed outwith so much force by my hon. friend Mr. Deakin, and secondly those others pointed out with force by my
hon. friend Mr. Wise. The substance of the amendment, putting aside the language of it altogether, is that theFederal Parliament is to be given unrestricted power of legis- [start page 788] lation in respect of industrial
disputes, where those industrial disputes overflow, or exercise an influence beyond the limit of a particularState. Now, venture to say, first of all, that an industrial dispute is really a matter of local concern. In its
essence and in its origin it is a matter of local concern. And, undoubtedly, if there is one thing more than
another which ought to be preserved to the individual States it is the power of dealing-by means ofconciliation, or by means of any other method that can be adopted-with those terrible evils which
sometimes flow from these disputes, without Interference, by the federal authority. That seems to me tobe an unquestionable principle, and we ought not to give to the Federal Government the right to
interfere with the self-government of a State in this respect. Then if we did give it that power, just thinkof what it involves. It would not be limited to the establishment of a court or tribunal of arbitration or
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conciliation. If it is to be limited to empowering the federal authority to establish tribunals of arbitrationthat is one thing, but I am not dealing now with the language of the amendment, which-as Mr. Higgins
himself admits- is not very apt, but I am dealing with the substance of it, which confers on the federalauthority power to legislate in every way on industrial disputes. That would involve-as my hon. friend
Mr. Wise pointed out in a question which he addressed to Mr. Higgins-the settlement of a uniform rateof wages applicable to the whole five or six, or it may be, if the continent was further divided into
provinces, of the seven or eight different provinces of the group where local conditions might govern anddifferentiate the rate of wages in the different trades. For instance, if you have regard to trade in a
tropical part of Australia, you could scarcely apply the same rates of wages as you would in South
Australia. Then, again, you will be handing over to the federal authority a two-edged sword, whichmight operate with equal danger in the interests of the workmen as in the interests of the employers. Itwould entirely depend upon a majority of the members in the Federal Parliament as to which way that
power would be exercised. If the majority were leaning in one direction legislation might go that way; ifa majority were leaning in another direction the legislation might be directed accordingly. -It would be
impossible to see the end of it, and I submit that it is outside the federal ambit for us to legislate in thisdirection. The point taken by Mr. Deakin appears to me to be insuperable. How is this court to act? Are
its functions to be limited to a particular State where the industrial dispute occurs, or is it to traveloutside the Commonwealth? There is no limitation. The way you get the test would be by asking
whether it escapes beyond the limits of the particular colony affected by the trouble or whether itremains within.
Mr. HIGGINS: The Commonwealth has no jurisdiction beyond its own limits.
Mr. SYMON: The test my hon. friend would put would be as to the jurisdiction of this tribunal, and as
to whether the dispute affected some country outside its own particular limits. Then if you treat itfederally, how is the jurisdiction to be exercised as to the conditions of one colony to another? There can
be no industrial dispute in New South Wales or Victoria without the ramifications of the organisationsof employers or employes being utilised for the purpose of putting pressure-I am dealing with the matter
now with perfect moderation and treating it as applicable to both sides-to bear in one colony or theother, to affect one side or the other. That would create intense bitterness in the particular colony
affected. That might happen if there was to be a strike or a lockout. I assure you I look at this thing in amost disinterested manner. You might have such a state of tension developing as would produce
something like a civil war. We know the difficulties which arise in con- [start page 789] sequence of thesense of injustice which may be generated either on one side or the other, and the side which feels the
injustice may consider it beyond the relief of any court; and if you give power, whether by means of a
court of arbitration or of conciliation, you are importing into the Federation an element which mayresult in bitterness between the federal authority and the States when you should promote at all hazardsharmony. Above all things let us preserve to each State its own jurisdiction in this matter; let us
promote conciliation, but do not let us impose upon the federal authorities anything which by anypossibility will create occasions of difference between the State and the federal authorities. In regard totaking over the railways, I thought the Inter-States Commission would be unadvisable as compared with taking
over the railway altogether, because It might give occasion for bitterness, and the difficulty wasinsurmountable. There, however, I do not think the difficulties are insuperable. As Mr. Kingston has pointed
out, we have had efforts made that should be commended with the view of dealing in a harmonious andconciliatory spirit with difficulties which we all deplore and which, unfortunately, often arise. I say: leave
them to the States to deal with, because it is a matter of home jurisdiction, or home rule. If we have adispute in any trade it is a local matter, but if for some reason, or in pursuance of some particular policy, it is
extended into some other State let us ask the other State to deal with it as a matter of home jurisdiction.
Mr. DEAKIN: You would not object to the Federal Government dealing with it as far as two coloniesare concerned?
Sir JOHN DOWNER: They can surrender it to the Federal Government.
Mr. SYMON: I am only dealing with the position as it now stands. If two States find themselvesoverwhelmed and unable to deal locally with any Industrial dispute, and desire the aid of the federal authority,
I should be prepared to consider any scheme with that object, and if it were workable to give it every favorableconsideration, but I doubt very much whether such a scheme would be found to be practicable.
Mr. HIGGINS: There are some disputes which cannot be dealt with by one State alone.
Mr. SYMON: I think that every dispute is local to the State in which it originates.
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Mr. BARTON: If they arise in a particular State they must be determined by the laws of the place
where the contract was made.
Mr. SYMON: No doubt. There is another point I wish the hon. member to consider. You are not going to
interfere with the laws of the States dealing with contracts. If the Federal Parliament deals with disputes it will
be hampered by the varying laws relating to master and servant which may exist in the different colonies. If anindustrial dispute in several colonies were treated as one it could not be dealt with as an ordinary dispute, butthe laws of each separate State would have to be taken into consideration. Now that would be, I think-so it
strikes my mind at present-a difficulty hard to be overcome. At any rate, what I am dealing with is rather the
general proposition that is put in this amendment, not the language of it, but the general proposition, and if youare to give the Federal Parliament power to deal, as my honorable friend puts it, with industrial disputes -I will
leave out the subsequent verbiage-I for one cannot see where the limit of its operation will come in. You giveit a weapon which might be used according to the dominant majority in the Federal Parliament for the momentin a way we would not like. You are intensifying the possibilities of bitterness-that is to say, if they avail
themselves of this power-without seeing the benefit that is likely to arise. I desire to emphasise the [start page790] observation made by Mr. Deakin. It would be impossible to say at what time
the overflow into the adjoining State begins and ends. If the Federal Parliament is to decide-
Mr. FRASER: The judiciary.
Mr. SYMON: I do not think it would be the judiciary. We lawyers do pour oil on troubled waters, but
that is rather in a tribunal of contest than a tribunal of conciliation.
And
Mr. KINGSTON: Just so. As regards the question of form, I would prefer, if Mr. Higgins thought well,instead of taking the power in the limited form he suggests, to make it read:
Conciliation and arbitration for the prevention and settlement of industrial disputes.
If a provision of that sort were in the Bill, what it would accomplish would be this: power would be given to
the Federal Parliament-whom we are told on so many occasions we ought to trust, because it will beconstituted of the very best men in Australia-if it thought fit, to legislate on those matters, and I do not think
that in the interest of either State or Commonwealth a power of this sort should be denied.
Sir EDWARD BRADDON: I have the very highest possible opinion of the influence for good of boards
of conciliation in matters of industrial dispute, in spite of the fact that in South Australia, I believe, theyhave been a positive failure, But what we have to consider in framing this Constitutional Bill is that weshall [start page 792] not load the Federal Parliament with duties and obligations which can be better
fulfilled by the local Parliaments of the several States. I think if we introduce anything of this sort intoour Constitution it can only have the effect of increasing rather than diminishing the difficulties in
regard to these industrial disputes. It would have the effect possibly of interfering with trades unionismin some of the colonies, and of interfering largely with both employer and employes; and I think that
should be in every possible way avoided if we can possibly do so. There is no occasion for ourcommitting to the Federal Parliament or Government any matter whatever that the States can better
deal with. These industrial matters, I think, are distinctly more within the province of the States to dealwith than of the Federal Parliament.
And
Mr. HIGGINS: It is not a question of origin. Everything has an origin; even a river "extends," and I amspeaking of things extending to a larger area. I say, therefore, if it is admitted that all industrial disputes are notconfined to a particular colony, it is a mere question of detail to ascertain when a dispute commenced within a
colony and where it extended beyond that colony. I am prepared to accept the suggestion of my hon. friend thePresident to have before the words "industrial disputes," these words:
"Conciliation and arbitration for the prevention and settlement of" industrial disputes.
I would prefer, personally, to have the words end there, but in order to obviate the fear which somemembers entertain that this may enable the Federal Parliament to interfere in disputes purely local, I
think it better to put in the words I had originally at the end of my previous amendment:
Extending beyond the limits of any one State.
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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?
Mr. HIGGINS.-No.
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 thatwe should weigh very carefully before we come to any definite decision. It is one that opens up a vast area fordiscussion. 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 lookupon this question as having enormously dangerous possibilities, it is a matter of vital importance as towhether 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 FederalParliament, or whether the power should not be left entirely to the states. I am strongly of opinion thatthis 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 federalcontrol. 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 ofgreater 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 mayoverflow 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 particularindustry which has nothing to do with the general welfare of the Commonwealth. There is another very seriousaspect 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 thewhole 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 thegiving 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 powerneed 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 thewhole 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 intrade 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 oneof 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 seethat 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 d epend uponthe 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 theinclusion 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 moresacred 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 willshow 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
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disputes and in the ordinary business and commerce of the country. The less the Government has to dowith 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 FederalParliament, is likely to be exercised. We might better confine our attention to the consideration of the questionwhether 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 settlingdifferences, 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, inthe 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 whichwill 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 theFederal Parliament credit for as much wisdom. The members of that body will recognise thes