This proposed amendment failed to secure constitutional ratification.

On 31st May, 1913, the following proposed new sub-section to follow sub-section (XXXV.) was submitted to the people by referendum :

“(51 (XXXA.) ). Conciliation and arbitration for the prevention and settlement of industrial disputes in relation to employment in the railway service of a State."

This proposed amendment failed to secure constitutional ratification.

Objections Stated.

These proposed grants of power, if conferred, it is contended by the opponents, would give the Federal Parliament jurisdiction to pass laws dealing with labour and employment generally without any qualification or limitation; to legislate concerning all the conditions and incidents of labour and employment even to the minutest details in all the walks of life, professional, clerical, and industrial; in all the working institutions and establishments, private or public, throughout the Commonwealth where persons are employed or render service of any kind. It would enable the Federal Parliament not only to regulate the hours of labour and the rates of pay or remuneration in all trades, callings, occupations and professions; but would authorize the passing of laws, defining the legal relations of master and servant, employer and employee, master and apprentice, the liability of employers and employees for accidents happening or any neglect of duty by either one or the other.

The proposed amendments are unnecessary, too wide, too sweeping, and too comprehensive in form, to meet any of the alleged defects in the existing distribution of constitutional power.

It would be inconsistent with the Federal principle of the Constitution, and it would lead to unnecessary and unwarrantable Federal centralization by giving the Federal Parliament authority to deal with industrial matters of a purely local, domestic and provincial character, which might well be left to the State Parliaments.

Federal industrial intervention should only be permitted in controversies and industries of inter-state dimensions, or having Australian ramifications, and in which it is possible to formulate regulations and conditions of labour of a substantially uniform character.

The powers granted, it is feared, might be exercised by some temporary majorities in Parliament, not for the purpose of promoting industrial peace, or in the true interests of labour and capital, but in a way that might lead to unnecessary restraint of personal liberty, as, by the adoption of an absolute compulsory preference to unionists, and to the boycotting and persecution of those workers who decline to wear union badges.

The present Arbitration Court properly re-organized and decentralized will be quite capable of dealing with industrial disputes of inter-state importance without any constitutional change until some amendment on the lines suggested in the opposition resolution of October 1910 is accepted.

The proposed constitutional amendments would probably result in the destruction of the present useful and effective State Wages Boards, State Industrial Courts, and State Arbitration Courts, or, at any rate, there would be a constant risk of confusion and conflict between their determinations and Federal laws.

There is no country in the world, where industrial and humane legislation in the interests of the workers is so complete and effective, and where industrial grievances when brought to light are so swiftly removed by the force of public opinion or by the strong arm of State or Federal law, as in Australia.

It would be a fatal error in policy to encourage hopes which could never be realized, and to foment demands, or to render possible legislation of an extravagant and illusory character which, if carried, may destroy the whole fabric of Australian industry and enterprise, and result in a set-back and re-action to civilization and progress. Possible Improvements in the Exercise of Arbitration Power.

Without an amendment of the Constitution it would be possible for the Federal Parliament to re-organize and improve the present method of exercising the conciliation and arbitration power. At present the jurisdiction is vested exclusively in one Court and in one Judge. It would be possible to decentralize the Court, so to speak, and instead of one Court, or in addition to one Court, which is at present over-worked and over-loaded with business, to have several industrial boards constructed on the wages' board plan, composed of representatives of employers and workers. Each industrial board to deal with such special cases or groups of cases as might be assigned

to it by law or by the President. The original Presidential Court might be preserved to entertain supervisory appeals from the several Boards on jurisdiction and other legal questions.

Constitutional Amendments which might be Advised.

The opponents of the present proposed amendments do not simply advocate a policy of negation; they are quite prepared to consider suggested alterations of the Constitution justified by necessity and consistent with the Federal principle. These, in their opinion, are the two essential conditions of any constitutional change. During the debate in the House of Representatives on the first Referendum proposals in October 1910, the Opposition (Liberal) outlined its policy in the following Resolution which, however, was defeated. "That in the opinion of this House the industrial provisions of the Constitution should not be altered except to regulate the conditions of employment in all industries that are Federal in operation or which cannot be effectually regulated by any one State; further enabling the Inter-State Commission to prevent and remove unfair competition between the same industries carried on in different States."

51. (xxxvI.) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:

§ 91.

“ UNTIL THE PARLIAMENT OTHERWISE PROVIDES.”

LEGISLATION.

The following Acts have been passed, superseding or replacing the preliminary provisions made by the Constitution "until the Parliament otherwise provides."

Const. Sec. 10.-The State electoral laws have ceased to apply to Senate elections, which since 1902 have been regulated by the Commonwealth law. Commonwealth Electoral Acts 1902-1911-1918.

Const. Sec. 24.-The mode of ascertaining the quota is determined by the Representation Act 1905, section 29; electoral divisions for the House of Representatives are provided for by the Commonwealth Electoral Act 1918, Part III.

Const. Sec. 30.-The qualification of electors of the Federal Parliament is fixed by the Franchise Act 1902.

Const. Sec. 31-The State electoral laws have ceased to apply to the House of Representative elections, which since 1902 have been regulated by Commonwealth law: Commonwealth Electoral Acts 1902-1911-1918.

Const. Sec. 34.-The qualifications of candidates for the Federal Parliament are defined by the Commonwealth Electoral Act 1918, section 70, which prescribes an additional disqualification, viz. :— Membership of a State Parliament.

Const. Sec. 47.-Questions of disputed elections since 1902, and questions of qualifications and vacancies since 1907, are determined by the Court of Disputed Returns: Commonwealth Electoral Act 1918, Part XVIII.

Const. Sec. 48.-The mode of reckoning the allowances of members of Parliament was altered by the Parliamentary Allowances Act 1902, since repealed by the Parliamentary Allowances Act 1907 which increases the allowance to £600 a year.

Const. Sec. 73.-The conditions of and restrictions on appeals from the State Supreme Courts to the High Court are now regulated by the Judiciary Act 1903-1912, at p. 35.

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Const. Sec. 87.-The Braddon clause

the Surplus Revenue Act 1908-1910.

was terminated by

Const. Sec. 97. The audit of Commonwealth accounts is provided for by the Audit Act 1901-1912.

In connection with sections 10 and 31 of the Constitution, this paragraph confers on the Federal Parliament power to regulate Federal elections; see Smith v. Oldham, (1912) 15 C.L.R., 355, at pp. 359, 362.

51. (XXXVII.) Matters referred to the Parliament of

Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:

No matters have yet been referred to the Commonwealth Parliament by the States.

51. (XXXVIII.) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power 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:

There has been no legislation under this sub-section.

51. (XXXIX.) Matters incidental92 to the execution of any power 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.

§ 92. "MATTERS INCIDENTAL.”

LEGISLATION.

The Acts Interpretation Act 1901-1916 which gives definitions. of various terms and expressions in Commonwealth Acts of Parliament is a valid exercise of the power of Parliament as being incidental to the exercise of legislative powers within the meaning of section 51 of the Constitution.

The Amendments Incorporation Act 1905 which provides for the re-printing of Acts of the Federal Parliament with amendments embodied therein is incidental to the legislative power of Parliament under section 51.

The Commonwealth Public Service Act 1902-1917 deals with matters incidental to transferred departments under section 52 (11.) and the appointment of civil servants under section 67 of the Constitution.

L. P.

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