51. (xxxiv.) Railway construction221 and extension in any State with the consent of that State : HISTORICAL NOTE.-The report of the Committee of the Privy Council in 1849 proposed that the General Assembly should have power to make laws as to "The formation of roads, canals, and railways traversing any two or more of the Colonics." (See p. 85, supra.) The report of Wentworth's Committee in 1853 contained a similar provision (See p. 91, supra) Wentworth's Memorial in 1857 proposed that the Federal Assembly should have power with respect to the gauges of connecting railways. (See p. 94, supra.) At the Adelaide session in 1897 Mr. McMillan proposed a new sub-clause : "Railway construction and extension with the consent of any State or States concerned." This was agreed to. (Conv. Deb., Adel., p. 1199.) At the Melbourne session, a suggestion by the Legislative Council of New South Wales, to insert "but only" after "extension," was negatived. Mr. Deakin called attention to the vagueness of the word "concerned," and the sub-clause was amended to its present shape. Mr. Reid objected to the whole sub-clause, unless restricted to defence purposes, as a dangerous temptation to the Commonwealth, but after debate withdrew his opposition for the time being. (Conv. Deb., Melb., p. 163-80.) § 221. "Railway Construction." As the preceding sub-section provides an opening for the gradual transfer of established railways from the States to the Commonwealth, so this sub-section affords scope for the initiation of a federal policy of railway construction and extension. It will, no doubt. be first used to authorize the construction of trans-continental lines, such as those already projected to connect the railway system of South Australia, at Port Augusta, with that of Western Australia, and to extend the South Australian railway at Oodnadatta northward, to join the Northern territory railways, running southward from Port Darwin. So it could be used to authorize the connection of such a trans-continental line, when constructed, with the railways of Queensland and New South Wales. The only condition precedent to the exercise of the power is the consent of the State, or States, through which the proposed Federal railways are to run. 51. (xxxv.) Conciliation and arbitration222 for the prevention and settlement of industrial disputes extending beyond the limits of any one State: HISTORICAL NOTE.-In the Sydney Convention of 1891, Mr. Kingston proposed a new sub-clause: "The establishment of courts of conciliation and arbitration, having jurisdiction throughout the Commonwealth, for the settlement of industrial disputes." Sir Samuel Griffith expressed the opinion that the amendment ought to be moved in the chapter dealing with the Federal Judiciary, and Mr. Kingston accordingly withdrew it. (Conv. Deb., Syd., 1891, pp. 688-9.) Subsequently he proposed to insert, in sec. 1 of Chap. III., the words "including courts of conciliation and arbitration for the settlement of industrial disputes." This was criticized as an interference with the functions of the States, and was negatived by 25 votes to 12. (Id. pp. 780-5.) At the Adelaide session in 1897 Mr. Higgins proposed the sub-clause as it now stands ; but after debate it was negatived by 22 votes to 12. (Conv. Deb., Adel., pp. 782-93.) At the Melbourne session Mr. Higgins moved the sub-clause again, and after considerable debate it was agreed to by 22 votes to 19. (Conv. Deb., Melb.. pp. 180-215.) $ 222. "Conciliation and Arbitration." In the Convention of 1891, when Mr. C. C. Kingston proposed that the Federal Parliament should have the power to establish Courts of Conciliation and Arbitration, having jurisdiction throughout the Commonwealth for the settlement of industrial disputes, he pointed out that the object was to deal with labour conflicts, the ramifications of which might extend beyond the limits of a State. It was proposed to create a Federal tribunal, which would be able to settle such matters more effectually than could be done by State tribunals, under State legislation; but there was no intention to deprive the States of the powers which they possessed to legislate concerning conciliation and arbitration for the settlement of industrial disputes within their respective boundaries The principal objection urged against the proposal was that it would involve an interference with private property and civil rights, and that it would be expedient to leave such questions within the control of the States. In the Convention of 1898 Mr. Kingston's pioneer proposals with reference to this subject were found of great service. By that time political thought had developed and public sentiment had ripened in the direction indicated by him in 1891. At Adelaide Mr. H. B. Higgins submitted a sub-clause "Industrial disputes extending beyond the limits of a State." "I want simply to give the Federal Parliament a power to establish these courts if it thinks fit. Therefore there will have to be an incidental alteration in the judicature part of the Bill. so as to enable the Federal Parliament to create a court for the purpose. It may be said, 'Leave the industrial disputes to the States;' but it is well known that these disputes are not confined, in their evils, to any one State. If there is a shipping dispute in Sydney it is sure to be felt in Melbourne; if there is a coal dispute in Newcastle it is sure to be felt at Korumburra. Any one State is unable to cope with the difficulty." (Mr. H. B. Higgins, Conv. Deb., Adel., p. 782.) "When first I attempted to deal with it I thought that for the purpose of making any effectual provision on the subject federal legislation was necessary on account of the extent of the disputes which occurred in industrial matters, and upon which local legislation, confined to provincial limits, is not competent to deal. The opinion I affirmed is here borne out by a variety of cases. If you had federal legislation dealing with this matter, you could establish courts which would exercise a wider jurisdiction and command greater respect and confidence than can be hoped for under any system of provincial legislation" (Mr. C. C. Kingston, Conv. Deb., Adel., p. 782.) The arguments presented in opposition to the proposal were that to interfere with a State, in the settlement of trade disputes, would be an undue and unnecessary intrusion on the local industrial life of a State; that every dispute was complete in itself in each State; that each State would have ample power to settle a dispute arising within it; that it was impossible to conceive a dispute in a State which, in itself, could extend beyond the limits of a State, in such a manner as to establish a formula determining Federal jurisdiction. In reply to this it was said that a dispute beginning in Adelaide might overflow into Western Australia or Victoria, in which case the State law, if any, relating to it would cease, and the Federal law, if any, would begin. 66 '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 if there is to be a law in each State that the federal law must not differ from some, if not from all, of these. Consequently it will be a curious problem in relation to penalties 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." (Mr. A. Deakin, Conv Deb., Adel., p. 784.) "In one sense it is hard to say that any industrial dispute is a dispute outside the limits of the colony. It is impossible to say when any dispute extends outside the limits of a colony, because a dispute is always in one colony although it may be going on in every colony. In another sense every dispute extends outside the limits of a colony." (Mr. B. R Wise, Conv. Deb., Adel., p. 785.) The proposed new sub-clause was amended in form, but on a division it was rejected by 22 votes to 10. At the Melbourne session, the sub-clause was again proposed by Mr. Higgins, and led to a prolonged debate. Mr. W. McMillan was strongly of opinion that this matter ought to be left absolutely to the States. Sir John Downer contended that it was not a federal question at all. Mr. J. H. Symon thought it unnecessary and mischievous to insert such a power in the Constitution. Mr. Wise did not think that it would be prudent to create a Federal Court, having authority to fix the rate of wages for the whole of Australia. Mr. Isaacs thought that a federal tribunal, in which both sides would have confidence, would avert a national danger that might confront them at any time. Trenwith pointed out that in consequence of the continually increasing complexity of our industrial system, there was scarcely ever an industrial dispute of any magnitude whose effect did not spread 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, extended to every one of the colonies, including New Zealand. Mr. Mr. G. H. Reid believed in the compulsory investigation of trade disputes by State authorities, but he was of opinion that the proposed sub-clause would tend to enlarge the area of trade disputes, for the very reason that the employers or the men might be disposed to extend the area of a dispute, in order to get the advantage of having it settled by the federal tribunal. Sir John Forrest supported the sub-clause, because the Federal Parliament would be better able to deal with the subject, and would deal with it more moderately than the local parliaments were likely to do. One of the principal objections raised against compulsory arbitration was that there were no means available by which an award, when made, could be specifically enforced. How, it was asked, are you going to enforce an award against a multitude of working men? The answer was found in the scheme of conciliation and arbitration legalized in New Zealand. Under the law of that country the award, when made, is in each case filed in the Supreme Court, and has the force and validity of an award made on an ordinary arbitration. Each party to the award, whether employer or workmen, or unions representing them, can obtain a judge's order exacting a penalty for breach of the award. The penalty fixed does not exceed the sum of £500 in the case of an individual employer or a trade union. Should the funds of a union be insufficient to pay the penalty, each member is liable to the extent of not more than £10. (Review of Reviews, December, 1897, p. 741.) On a division the sub-clause was finally adopted by 22 votes to 19. 51. (xxxvi.) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides223: HISTORICAL NOTE -This sub-section was added as a drafting amendment at the Melbourne session, before the first report, and was verbally amended after the fourth report. § 223. "Until the Parliament Otherwise Provides." There are no less than twenty-two provisions in the Constitution in which it is enacted that the law of the Constitution shall be to a certain effect "until the Parliament otherwise provides." By implication this confers on the Parliament authority to provide "otherwise." Sub-section xxxvi. has been introduced to give the Parliament express power to provide "otherwise." The result is that the Parliament can alter the Constitution in respect to the following matters :— (1.) Governor-GENERAL'S SALARY.--May be increased or diminished (sec. 3). (sec. 7). (3.) QUEENSLAND SENATORIAL DIVISIONS.-May be abolished (sec. 7). (4.) NUMBER OF SENATORS.-May be increased or diminished, but so that no Original State shall have less than six (sec. 7). (5.) STATE ELECTORAL LAWS.-Regulating the election of senators may be superseded by Federal electoral laws (sec. 10). (6.) QUORUM OF SENATE.-May be increased or reduced (sec. 22). (7.) MODE OF ASCERTAINING QUOTA.-May be altered (sec. 24). (8.) ELECTORAL DIVISIONS.-Federal electoral divisions for House of Representatives may supersede State-made electoral divisions (sec. 29). (9.) QUALIFICATION OF ELECTORS. — Federal law prescribing the qualification of electors may supersede State laws (sec. 30). (10.) STATE ELECTORAL LAWS.-Regulating the election of the members of the House of Representatives may be superseded by Federal electoral laws (sec. 31). (11.) QUALIFICATION OF MEMBERS.-May be altered (sec. 34). (12.) QUORUM OF HOUSE.-May be increased or reduced (sec. 39). (13.) PENALTY FOR SITTING WHEN DISQUALIFIED.-May be altered (sec. 46). (15.) PAYMENT OF MEMBERS.-May be increased or reduced (sec. 48). (17.) SALARIES OF MINISTERS.-May be increased (sec. 66). (18.) APPOINTMENT and REMOVAL OF NON-POLITICAL OFFICERS. — May be regu- (19.) CONDITIONS AND RESTRICTIONS ON APPEALS. --May be regulated (sec. 73). (21.) FINANCIAL ASSISTANCE TO STATES.-Ten years after the establishment of (22.) AUDIT.-Parliament may make audit laws (sec. 97). 51. (xxxvii.) Matters referred 224 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 States by whose Parliaments the matter is referred, or which afterwards adopt the law: HISTORICAL NOTE. -The genesis of this sub-section is to be found in the scheme for the establishment of a General Federal Assembly first recommended by the Committee of the Privy Council in its Report of 1849. Among the powers purposed to be conferred on the General Assembly was: "9. The enactment of laws affecting all the colonies represented in the General Assembly on any subject not specifically mentioned in this list, and on which it should be desired to legislate by addresses presented to it from the legislatures of all the colonies" (p. 85, supra). Wentworth's Constitutional Committee of 1853 recommended that the General Assembly should have power to legislate "on all other subjects which may be submitted to them by address from the Legislative Council and Assembly of the other colonies." The select Committee which drafted the Victorian Constitution, in its report, dated 9th December, 1853, recommended that provision should be made for occasionally convoking a General Australian Assembly for legislating on such questions of vital inter-colonial interest as might be submitted to it by the Act of any legislature of one of the Australian colonies. The Memorial and Draft Bill, prepared by Wentworth in 1857 for the creation of an Australian Federal Assembly, provided that the Assembly should have power to deal with certain specified subjects "and any other matter which might be submitted to it by the legislatures of the colonies represented therein.” The same idea was developed, and first received practical expression, in the Federal Council Act of 1885, sec. 15, which assigned to the Council authority, at the request of the legislatures of two or more of the colonies represented therein, to legislate concerning : (h) Any matter which at the request of the legislatures of the colonies Her Majesty by Order in Council shall think fit to refer to the Council : (i) Such of the following matters as may be referred to the Council by the legislatures of any two or more colonies, that is to say-general defences, quarantine, patents of invention and discovery, copyright, bills of exchange and promissory notes, uniformity of weights and measures, recognition in other colonies of any marriage or divorce duly solemnized or decreed in any colony, naturalization of aliens, status of corporations and joint stock companies in other colonies than that in which they have been constituted, and 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: provided that in such cases the Acts of the Council shall extend only to the colonies by whose legislatures the matter shall have been so referred to it, and such other colonies as may afterwards adopt the same. In the Bill of 1891 the sub-clause was passed substantially as it now stands ; and at the Adelaide session in 1897 that draft was followed. At the Melbourne session Mr. Deakin raised the question whether the sub-clause, though suitable enough for the Federal Council, was sufficient for the purposes of the Commonwealth, and whether it authorized legislation involving expenditure or taxation ; and he also raised the question whether a reference once made would be revocable. Dr. Quick suggested that the provision afforded an easy mode of amending the Constitution without consulting the people. Finally, after considerable debate, the sub-clause was agreed to. (Conv. Deb., Melb., pp. 215-25.) It was verbally amended after the fourth report. $ 224. "Matters Referred to the Parliament." This sub-section evidently contemplates a class of subjects which have not been transferred to the Federal Parliament by the Constitution; which are still within the competence of the State Parliaments to deal with separately and independently, but as to which it may be hereafter deemed desirable that there should be a law of general application within the referring States and such as afterwards adopt the law founded on their reference. For instance, the Parliaments of New South Wales, Victoria, and South Australia might find it consistent with their interests to refer to the Federal Parliament such questions as the utilization of the waters of the Murray for irrigation purposes; the settlement of riparian rights; the protection of game; the preservation of inland and coastal fisheries; inter-state sanitary laws and inspection laws generally. |