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(Argument FOR the Proposed Law)

COMMONWEALTH OF AUSTRALIA.
The Referendum (Constitution Alteration) Act.

REFERENDUMS
to be taken on the Proposed Laws
CONSTITUTION ALTERATION (SOCIAL SERVICES) 1946.
CONSTITUTION ALTERATION (ORGANIZED MARKETING OF
PRIMARY PRODUCTS) 1946.
CONSTITUTION ALTERATION (INDUSTRIAL EMPLOYMENT) 1946.

The Case
FOR and AGAINST
Pamphlet containing—

ARGUMENTS IN FAVOUR OF the Proposed Laws authorized by a majority of the
members of both Houses of the Parliament who voted for the Proposed Laws;
and

ARGUMENTS AGAINST the Proposed Laws authorized by a majority of the
Members of both Houses of the Parliament who voted against the Proposed Laws.

The Arguments FOR
The Arguments AGAINST

V.F. TURNER,
Chief Electoral Officer for the Commonwealth.
Canberra, 20th July, 1946

2

 (Argument FOR the Proposed Law)

STATEMENT showing Section 51 of the Constitution,
with the proposed additions inserted in black type.

51. The Parliament shall, subject to this Constitution, have power to make laws for
the peace, order, and good government of the Commonwealth with respect to :—
(i)
Trade and commerce with other countries, and among the States
:
(i.a.)
Organized marketing of primary products :
(ii.)
Taxation: but so as not to discriminate between States or parts of
States :
(iii.)
Bounties on the production or export of goods, but so that such
(Organized
bounties shall be uniform throughout the Commonwealth :
marketing of
(iv.)
Borrowing money on the public credit of the Commonwealth :
primary
(v.)
Postal, telegraphic, telephonic, and other like services :
products).
(vi.)
The naval and military defence of the Commonwealth and of the
several States, and the control of the forces to execute and
maintain the laws of the Commonwealth :
(vii.)
Lighthouses, lightships, beacons and buoys :
(viii.)
Astronomical and meteorological observations :
(ix.)
Quarantine :
(x.)
Fisheries in Australian waters beyond territorial limits :
(xi.)
Census and statistics :
(xii.)
Currency, coinage, and legal tender:
(xiii.)
Banking, other than State banking; also State banking extending
beyond the limits of the State concerned, the incorporation of
bands, and the issue of paper money :
(xiv.)
Insurance, other than State insurance : also State insurances
extending beyond the limits of the State concerned :
(xv.)
Weights and measures :
(xvi.)
Bills of exchange and promissory notes :
(xvii.)
Bankruptcy and insolvency :
(xviii.)
Copyrights, patents of inventions and designs, and trade marks :
(xix.)
Naturalization and aliens :
(xx.)
Foreign corporations, and trading or financial corporations
formed within the limits of the Commonwealth :
(xxi.)
Marriage :
(xxii.)
Divorce and matrimonial causes ; and in relation thereto,
parental rights, and the custody and guardianship of infants :
(xxiii.)
Invalid and old-age pensions :
(xxiii.a.) The provision of maternity allowances, widows’ pensions,
(Social
child endowment, unemployment, pharmaceutical,
Services)
sickness and hospital benefits, medical and dental
services (but not so as to authorize any form of civil
conscription), benefits to students and family allowances:
Legislative
powers of
the
Parliament.

2

 (Argument FOR the Proposed Law)

(Industrial
employment.)

(Organized
marketing of
primary
products.)

(xxiv.) The service and execution throughout the Commonwealth of the
civil and criminal process and the judgements of the courts
of the States :
(xxv.) The recognition throughout the Commonwealth of the laws, the
public Acts and records, and the judicial proceedings of the
States :
(xxvi.) The people of any race, other than the aboriginal race in any
State, for whom it is deemed necessary to make special laws
:
(xxvii.) Immigration and emigration :
(xxviii.) The influx of criminals :
(xxix.) External affairs :
(xxx.) The relations of the Commonwealth with the islands of the
Pacific :
(xxxi.) The acquisition of property on just terms from any State or
person for any purpose in respect of which the Parliament
has power to make laws :
(xxxii.) The control of railways with respect to transport for the naval
and military purposes of the Commonwealth :
(xxxiii.) The acquisition, with the consent of a State, of any railways of
the State on terms arranged between the Commonwealth and
the State:
(xxxiv.) Railway construction and extension in any State with the
consent of that State :
(xxxiv.a.) Terms and conditions of employment in industry, but not
so as to authorize any form of industrial conscription :
(xxxv.) Conciliation and arbitration for the prevention and settlement of
industrial disputes extending beyond the limits of any one
State :
(xxxvi.) Matters in respect of which this Constitution makes provision
until the Parliament otherwise provides :
(xxxvii.) Matters referred to the Parliament of the Commonwealth by the
Parliament or Parliaments of any State or States, but so that
the law shall extend only to States by whose Parliaments the
matter is referred, or which afterwards adopt the law :
(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 :
(xxxix.) Matters incidental 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.
(2.) Without in any way limiting the generality of the expression
“primary products” in paragraph (i.a.) of sub-section (1.) of this section,
that expression shall be deemed to include flour and other wheat
products, butter, cheese and other milk products, dried fruit and other
fruit products, meat and meat products and sugar.
(3.) The power of the Parliament to make laws under paragraph
(i.a.) of sub-section (1.) of this section may be exercised notwithstanding
anything contained in section ninety-two of this Constitution.

3

 (Argument FOR the Proposed Law)

THE CASE FOR YES.

INTRODUCTION.

The electors are asked to decide whether their Australian Parliament is to have
new powers in relation to three matters. Described very briefly, these are:—
 Social Services.
 Organized Marketing of Primary Products
 Terms and Conditions of Employment in Industry.
The full wording of the proposed new powers is printed in heavy black type in
this pamphlet.
You are required to vote separately on each of the three questions. You may
vote “Yes” or “No” on each exactly as you think fit. This Case, though, will show
why it is of vital interest to you and to every Australia to vote “Yes” on all three.
On referendum day you will be called on to discharge a heavy responsibility.
Your vote will have a far-reaching influence not only on your own future, but also on
that of your family. There is a strong obligation on you to understand properly what is
at stake.
Parliament has passed three Bills for altering the Constitution. These
alterations cannot take effect until they have been approved by the people at a
referendum. It is the people who are sovereign in this country—not the
Commonwealth or the States. It is for the people to say finally whether any particular
power should be exercised by the Commonwealth, or by the States, or not at all. So it
is for you to decide. The object of this Case is to satisfy you that the progress of
Australian nationhood calls for three “Yes” votes.

4

 (Argument FOR the Proposed Law)

THE FIRST QUESTION.
CONSTITUTION ALTERATION (SOCIAL SERVICES) 1946.

SOCIAL SERVICES
New paragraph to be added to section 51 of the Constitution.
(“xxiii.a.) The provision of maternity allowances, widows’ pensions,
child endowment, unemployment, pharmaceutical, sickness
and hospital benefits, medical and dental services (but not
so as to authorize any form of civil conscription), benefits to
students and family allowances :”.
THE QUESTION FOR THE ELECTORS.

You are asked to approve an alteration of the Australian Constitution in order
to confirm the national Parliament’s power to provide the various social services that
are mentioned in the list at the top of this page.
You probably know that the Commonwealth is already providing most of
these services. It provides maternity allowances, widows’ pensions, child
endowment, unemployment, sickness and hospital benefits, and benefits to
students. But because of a legal decision last year, the Constitution now needs
altering to make sure that this can continue.
PROVISION MADE IN 1900.

When the Constitution was drawn up in 1900—and on this subject it is just the
same today—it mentioned in the Commonwealth’s list of powers only one social
service, namely old-age and invalid pensions.
“How then”, you ask, “did the Commonwealth come to provide these other
social services ?”.
NEED SOON AROSE FOR NEW SOCIAL SERVICES.

Well, as time went on, all political parties came to realize that it was the
community’s duty to provide for the people benefits of a social services character.
What is more, if Australians in their different States were to have these services on a
uniform basis, without artificial distinction, they could only be provided by the
national Parliament.
This was recognized not only by Labour Governments but also by their
opponents. For example, child endowment was introduced by a non-Labour
Government with the support of the Labour Party, and it was increased by the Curtin
Government. Maternity allowances, widows’ pensions, unemployment, sickness and
hospital benefits and benefits to students were introduced by Labour Governments.
ADVERSE DECISION BY HIGH COURT.

Ever since Federation, all Commonwealth Governments, irrespective of party,
have taken the view that the expenditure required to provide these benefits was
authorized by section 81 of the Constitution. This section says that Commonwealth
moneys are “to be appropriated for the purposes of the Commonwealth”.

5

 (Argument FOR the Proposed Law)

The view taken was that the Commonwealth can spend for any purposes it
thinks fit the money’s that it raises from the people. That view was acted on for nearly
forty-five years. But it was shattered by a decision of the High court of Australia late
last year.
The Present Government’s Pharmaceutical Benefits Act 1944 was attacked in
the High Court by the then Attorney-General of Victoria, at the instigation of
executive members of the Medical Association of Victoria. The Court declared that
the Act was invalid.
What the High Court said amounted in effect to this—that before any social
benefit can be “a purpose of the Commonwealth” on which Commonwealth money
can be spent, it has to be named in the Constitution, like “Invalid and Old-age
Pensions”. (These pensions, by the way, are not in danger, and are not involved in this
referendum.)
MANY PRESENT PAYMENTS NOW HAVE NO CONSTITUTIONAL PROTECTION.

None of the benefits set out in the Bill are named in the Constitution, as it
stands at present. This means that, exactly like the Pharmaceutical Benefits Act, they
are all in danger of being declared invalid too at any moment.
That is the position today with all benefits provided by the Commonwealth
through the Maternity Allowances Act, the Child Endowment Act, the Widows’
Pensions Act, and the Unemployment and Sickness Benefits Act as well as parts of
the Hospital Benefits Act and the Education Act. Obviously too, the Commonwealth
cannot safely provide any new kind of social services benefit.
If all these payments were to be suddenly discontinued, widespread distress
would be caused. Strictly, no Act of the Commonwealth Parliament is invalid until it
has been so held by the Courts. Therefore the Government, though it thinks that the
principles laid down by the High Court in the Pharmaceutical Benefits case would
also apply to these other payments if they were challenged, has taken the
responsibility of continuing them for the time being. But they are all open to attack at
any time. That is why the Government has taken this early opportunity of consulting
the electors at a referendum. By voting “Yes” you will put these other payments
out of danger.
Do not be misled into thinking that just because payments to mothers, to
widows and to the sick are still going on, this state of things can continue indefinitely.
These payments can easily be attacked, in quite a number of different ways.
HOW EXISTING SOCIAL SERVICES MAY BE ATTACKED.

Long ago, the High Court established a rule—and re-affirmed it recently in the
Pharmaceutical Benefits case—that the Attorney-General of any State may question
the validity of any Commonwealth Act. Therefore the Attorney-General of a State
can, either on his own initiative or at the request or “relation” of a taxpayer or body of
taxpayers, challenge the validity of any one or more of these social service Acts.

6

 (Argument FOR the Proposed Law)

If you think that no Sate Attorney-General or private citizens would be
so unmindful of the welfare of the people as to make such a challenge, you would be
wrong. This is the very thing that did happen—and recently too—in the
Pharmaceutical Benefits case.
A direct challenge from a private citizen can also be launched at any moment
in a very simple way. The various Acts impose penalties on persons who obtain
benefits by means of any false statement or other pretence. If such a person were
convicted, and appealed against his conviction—as he could do to the High Court—
the validity of the Act under which he was convicted would immediately be under
question. In view of the decision in the Pharmaceutical Benefits case, no defending
lawyer would hesitate for a moment to take such a case on appeal.
This shows only too plainly that these Acts, and the benefits they provide, are
in an extremely precarious position. By voting “Yes” you will confirm the
Commonwealth’s power to provide all the present benefits.
BILL INCLUDES POWER FOR NEW SOCIAL SERVICES.

The proposed new power does expressly mention these present benefits. But it
goes further, and will permit the Parliament to provide benefits which you are not now
getting, and which at present the Commonwealth has no power to give. These new
services are “pharmaceutical benefits”, “medical and dental services”, and “family
allowances”. These are benefits of very similar kind to those already provided. They
all come under the heading of SOCIAL SERVICES. To confirm the present benefits
and stop there, without also giving the Commonwealth power to provide these other
benefits, if the people’s representatives see fit, would be very shortsighted. Other
countries (such as England and New Zealand) are providing similar benefits already.
Australia once led the world in social policy. It does not want to lag behind now.
The whole purpose of social services is to ensure that people may live out their
lives in freedom from fear and from want.
Sickness is the greatest cause both of fear and of want. Serious or protracted
illness in a family may cripple its finances for many years.
The Commonwealth has not had assured constitutional power to make a just
and all-embracing law for social security. Part of such a law must be provision for
health, because health is the basis of happy living.
We cannot have such a law until you give the Commonwealth your authority
for it by voting YES.
WHAT THE NEW SERVICES COULD MEAN.

Pharmaceutical Medical and Dental Benefits.
If the people vote YES, the Commonwealth will be able to provide free
pharmaceutical medical and dental services, either through separate chemists, doctors
and dentists or at centres where general and specialist services will be available.
These vital service could be brought within reach of all, without regard to their means.

7

 (Argument FOR the Proposed Law)

Family Allowances.
This would cover any allowance which is given to a family, or to a person by
virtue of membership of a family. If Parliament thought fit it could cover, for
example, domestic help to mothers, assistance to families to buy or rent homes, and
assistance to person who maintain aged or infirm relatives.
NO QUESTION OF SOCIALIZING MEDICAL AND DENTAL SERVICES.

You will not be voting for any particular method of providing medical and
dental services. Whether or not they are to be provided, and if so how will both be
matters for your representatives in Parliament from time to time to decide, in
accordance with your wishes. At least once in every three years, you can change your
representatives if you do not approve their actions.
But there is one thing the Parliament will not be able to do. It will not be able
to bring in any form of civil conscription. That, you will see if you refer to the
heading in black type, is expressly safeguarded in the new power itself.
This means that doctors and dentists cannot be forced to become
professional officers of the Commonwealth under a scheme of medical and dental
services.
THIS REFERENDUM NOT A POLITICAL MATTER.

There is no Party question at all. The idea that doctors and dentists might be
conscripted was the only real objection of the Opposition parties in Parliament. The
Government has set that doubt at rest by agreeing to the insertion of a clause in the
power itself that there shall be no conscription. After that, only three out of all the
members of the Federal Parliament voted against the Social Services Bill—Mr. A.
Cameron (South Australia) in the House of Representatives and Senators Mattner and
McLachlan (both of South Australia) in the senate. These three are the only persons in
Australia authorized to present a Case for “No” in this pamphlet on this question.
COMMONWEALTH AS WELL AS STATE POWERS NECESSARY.

These social services can only be dealt with fairly and properly on an
Australia-wide basis. Piecemeal laws made by separate States create confusion and
unfair differences. Throughout the Commonwealth, all Australians should share
equally in social service benefits.
FOR SOCIAL SECURITY, VOTE “YES”.

There is really no room for doubt about how you should vote. The need for
maternity allowances, child endowment, widows’ pensions and other social services is
no longer disputed by any thinking person. There is no doubt about the grave danger
that is threatening them now. In Australia’s interests, and in your own family’s
interests, the only vote is “YES”.
To vote YES, put the number 1 in the square opposite the word “YES” and the
number 2 in the other square.

8

 (Argument FOR the Proposed Law)

THE SECOND QUESTION.
CONSTITUTION ALTERATION (ORGANIZED MARKETING OF
PRIMARY PRODUCTS) 1946.

ORGANIZED MARKETING.
New portions to be added to section 51 of the Constitution.
“(1.) (i.a.)
“(2.)

Organized marketing of primary products.”
Without in any way limiting the generality of the expression
‘primary products’ in paragraph (i.a.) of sub-section (1.) of this
section, that expression shall be deemed to include flour and
other wheat products, butter, cheese and other milk products,
dried fruit and other fruit products, meat and meat products,
and sugar.”

“(3.)

The power of the parliament to make laws under paragraph (i.a.) of
sub-section (1.) of this section may be exercised
notwithstanding anything contained in section ninety-two of
the Constitution.”
THE QUESTION FOR THE ELECTORS.

You are asked to approve alterations to the Australian Constitution, so
as to give the national Parliament in time of peace authority to make effective laws for
the organized marketing of primary products similar in effect to the power exercised
during the war.
There are really two points in the question. The first is whether the
Commonwealth should have power to deal on an Australia-wide basis with the
organized marketing of primary products. The second is whether that power should
be made fully effective by removing, so far as concerns primary products alone, the
restriction which at present is imposed by section 92 of the Constitution.
Both these points need some detailed explanation which cannot be put in just a
few words. The question is a vital one for every person in Australia, and not for
primary producers only. Our national history shows that very clearly. The first point
is dealt with under the next seven headings.
ORGANIZED MARKETING NECESSARY FOR THE PRIMARY PRODUCER.

The problem of the primary producer is uncertainty as to the future. This
uncertainty is due to two main causes :—
 Bad seasons —through drought, flood, fire, frost, hail and pests.
 Fluctuating prices, and poor prices (often in good seasons).

9

 (Argument FOR the Proposed Law)

The following table shows a year-by-year change in total values of primary
production which was due not only to variation in output but also to marked rise and
fall in prices :—
Years.

Millions of Pounds.

1931–32
1932–33
1933–34
1934–35
1935–36
1936–37
1937–38
1938–39

141.4
142.9
170.5
158.2
187.5
215.2
214.4
184.9

The change was often as much as £30,000,000 in a year. This is where
organized marketing comes in. Organized marketing can ensure a better average
return to producers by—
 eliminating speculation ;
 stablizing prices ;
 ensuring a just home consumption price having regard to the interests of
consumers ;
 ensuring the best possible export price ;
 establishing reserve funds in good years to meet losses in bad year ;
 distributing proceeds fairly among the producers.
These measures will provide a return sufficient to relieve the farmer of the
constant fear that he may be unable to pay his way. This is of vast importance to every
farmer, including every serviceman who goes on the land.
Stabliization is the urgent need of every Australian primary industry. Without
organized marketing there can be no stabilization.
ORGANIZED MARKETING BENEFITS NOT ONLY PRIMARY PRODUCERS BUT ALL
AUSTRALIANS.

The benefits of organized marketing will be shared by all. The basic factor in
the prosperity of Australia is still its primary industries. The total value of our primary
production before the war was 30 per cent of the total national income. Unless our
primary industries are prosperous and stable we shall have to do without many things
we need from abroad. It must not be forgotten that the collapse of our export prices
and markets marked the beginning in Australia of the great depression of 1928–32.
The second of the new paragraphs printed in heavy black type at the top of
page 9 shows that “primary products” cover practically the whole of Australia’s foodproducing system.
Then again there are large numbers of wage earners employed directly or
indirectly through primary production. Before the war 25 per cent of all occupied
males were engaged directly in primary industry. Many others are employed
indirectly, e.g., in making agricultural machinery and fertilizers and in handling
exports. All these wage earners are dependent upon the success and stability of our
primary industries.

10

 (Argument FOR the Proposed Law)

This is the concern of everybody. Failure of primary producers
through unorganized markets and poor prices means that primary producers must
restrict their purchases in Australia. This in turn has a bad effect on all other
industries, resulting in general depression and unemployment. This again has a serious
effect on traders of every description. Shopkeepers and tradespeople of every kind
learned only too well in the last depression that there can be no money in their tills
unless the people of Australia are kept in employment. You see then that insecurity
for the primary producer means trouble and insecurity for the whole community
including you—whether you are an employer, a worker, a clerk, a shopkeeper or a
professional man.
ORGANIZED MARKETING SUCCESSFUL DURING THE WAR.

Under temporary war-time powers the Commonwealth was able to carry out
organized marketing in the main primary industries, but these war-time powers cannot
be used much longer. The great benefits which primary producers have received
during the war is one of the main reasons why they do not want the Commonwealth to
lose its marketing powers in the post-war period.
In spite of dislocation of markets at home and abroad, the incomes of primary
producers showed remarkable increases during the war period. Although there was no
increase in the number of persons engaged in primary production, the number of
primary producers reaching quite comfortable income levels actually trebled during
the first four years of the war. The number of primary producers earning more than
£400 a year increased in the five-year period from 1939 to 1944 by 200 per cent., and
this improvement was maintained throughout all ranges of income. There is the best
kind of practical test for organized marketing under national control.
DIFFICULT MARKETING CONDITIONS AHEAD.

Unless the Commonwealth is able to continue organized marketing there is a
grave danger of collapse in our primary industries.
True, there may be good markets for primary products for a few years. But we
must look ahead. Competition from other countries will increase, and also competition
by substitute products, for example, margarine. If Australia is not to go down in the
struggle, she must be able to organize her marketing efficiently.
NATIONAL MARKETING POWERS REQUIRED.

The States obviously cannot deal effectively with interstate trade, let alone
trade overseas. This difficulty was one of the main causes of Federation in 1900. Just
because the markets of the major primary industries are nation-wide and international,
the problem is a national one and must be tackled on a national basis.
PRODUCTION TO BE FREE.

Though this Bill does provide for national powers for organized marketing, it
will not give to the Commonwealth power to prohibit, restrict or regulate production
in any way. Each primary producer will be free, so far as the

11

 (Argument FOR the Proposed Law)

Commonwealth is concerned, to produce how much he likes and what he
likes. Control of this important part of the primary industries—production—will
remain with the States.
PRODUCERS CAN HAVE A SAY IN MARKETING PLANS.

Should the referendum be carried, the plans for organized marketing will have
to be laid down by parliament. There is no reason why there should not continue to be
a full measure of grower-control. Some measures of Government authority is
necessary in the interests of the community as a whole, e.g., to see that consumers in
Australia are properly protected by reasonable prices and methods of distribution.
We pass not to the second point involved in this question.
CONSTITUTION HAMPERS ORGANIZED MARKETING IN PEACETIME.

(a)

The First Obstacle—Divided Control.
Both the States and the Commonwealth, sometimes separately and sometimes
together, have tried to operate plans for organized marketing for at least 30 years.
Except under war-time powers, these plans have not been successful in dealing with
industries where there are big interstate and export markets. The Constitution contains
two serious obstacles.
The first obstacle is that marketing powers are divided between the
Commonwealth and the States. The Commonwealth has no power at all in peace-time
to organize marketing within any State. For practical and constitutional reasons, a
State cannot effectively organize interstate marketing. In the major primary
industries the distinction between intrastate and interstate markets is wholly
artificial. To be efficient, marketing must be organized on a nation-wide scale. There
is no authority in Australia that has power to do this.
The Bill will remove this first obstacle by giving the necessary power to the
Commonwealth Parliament. This is done by the first paragraph of the proposed new
powers, printed in heavy black type at the top of page 9.
(b)
The Second Obstacle—Section 92.
The second obstacle is the fact that, because of a restriction imposed by
section 92 of the Constitution, neither the States alone nor the Commonwealth alone
nor even the States and the Commonwealth combined, can exercise complete power
to organize interstate marketing.
Section 92 provides that trade, commerce and intercourse amongst the States
shall be absolutely free. In the case of primary products this section has had an
unfortunate effect which its framers never intended.
The position is that there are vital parts of Australian trade which no
Government, whether it be Commonwealth or State, can touch. Those parts of
Australia’s trade are beyond all law—beyond all control by the Governments of
Australia or by the people of Australia.
The history of marketing plans in Australia shows how serious this position is.
Organized marketing was first tried by State Parliaments. It was soon found that any
State scheme could be defeated by a producer who wished to secure an unfair
advantage by sending his product into another State, or by bringing it from another
state for sale in the State where the scheme was operating. Section 92 of the
Constitution prevented any State from controlling these interstate transactions.

12

 (Argument FOR the Proposed Law)

The Commonwealth Parliament has general power over interstate trade. The
States therefore asked the Commonwealth close this loop-hole in their schemes. It
tried to do this in the dried fruit, dairy, and wheat industries. In 1936, however, the
Privy Council decided that the Commonwealth had no more power than the States to
stop these interstate evasions because it too was bound by section 92.
(c)

Uncertainty should be removed.
Section 92 had, and still has, every Australian parliament tied up in the matter
of organized marketing. The Lyons Government encountered this difficulty in 1937
and unsuccessfully endeavoured to overcome it. The trouble has gone on, and is still
there.
Since 1936, we have found that some types of marketing schemes can be
worked out between the States and the Commonwealth without running foul of
section 92. But the position is still uncertain and dangerous, because both States and
Commonwealth are tied down to a very indirect form of regulation of interstate trade.
The danger is always present that a few selfish individuals will be able to break up
any scheme for organized marketing of primary products, whether it is promoted by
the States, or by the Commonwealth, or by the Commonwealth and the States
together.
No thinking person can tolerate this. The Bill proposes to close the serious gap
which prevents organized marketing of primary products, and to give the “missing
power” to the Commonwealth Parliament.
CONSTITUTION WILL STILL PROTECT AUSTRALIA FROM BORDER BARRIERS.

The Bill does not take section 92 out of the Constitution at all. The section will
still apply to all State laws, and to all Commonwealth laws too except laws for the
organized marketing of primary products. Interstate transport, communications
and trade in manufactured goods will still be absolutely free. Section 92 was
framed to prevent trade barriers at State borders but was never intended to prohibit the
Commonwealth from organizing the marketing of primary products on a nation-wide
basis. Section 92 will still give that protection and will be supported by section 99
which prevents the Commonwealth from giving any preference to one State over
another.
FOR STABILIZED PRIMARY INDUSTRIES : VOTE “YES”.

This referendum is not a party issue at all. The Country Party has consistently
supported organized marketing of primary products. The Lyons Government
submitted a referendum directed to the same end.
In 1944, the Opposition agreed that organized marketing was necessary. They
argued, however, that to make this effective, section 92 should be amended. That is
just what the present Bill proposes to do.
Every person in Australia, no matter what party he supports, stands to gain
by voting “YES”.
To vote YES, put the number 1 in the square opposite the word “YES” and the
number 2 in the other square.

13

 (Argument FOR the Proposed Law)

THE THIRD QUESTION.
CONSTITUTION ALTERATION (INDUSTRIAL EMPLOYMENT) 1946.

INDUSTRIAL EMPLOYMENT.
New paragraph to be added to section 51 of the Constitution.

“(xxxiv.a.)

Terms and conditions of employment in industry, but
not so as to authorize any form of industrial
conscription.”
THE QUESTION FOR THE ELECTORS.

The question is whether you are in favour of altering the Australian
Constitution so that the Commonwealth Parliament will be able to make laws about
the terms and conditions of employment in industry, but will not be able to bring in
any form of industrial conscription.
With this power the Commonwealth Parliament, either directly or through a
body such as the Arbitration Court, could fix the basic wage or decide what principles
should be followed in fixing it. It could lay down a standard working week. It would
decide on holidays. It could prescribe better factory conditions—for example in
lighting, ventilation, rest-rooms and other amenities. It could introduce new and upto-date methods of smoothing out difficulties between management and workers. For
the first time in Australian history, there would be authority to lay down a common
rule for a whole industry.
INDUSTRY OVER-FLOWS STATE BOUNDARIES.

Australia has developed industrially as a nation—not as a collection of States.
Practically all of our big industries are carried on in several States at once—and the
workers and employers in all those fields have the same kind of needs and problems.
Then again, take coal and steel. These supplies which are vital for industry are
produced mainly in New South Wales but they are needed and used all over
Australia. The States are not self-contained any longer. A coal dispute in Newcastle
can put a thousand men out of employment in Adelaide.
So you see that so far as industry is concerned, State boundaries no longer
have any real meaning.
All industry needs control, and if we are to have proper conditions, bringing
peace, justice and contentment to all those engaged, the control must be national in
its scope. That is simply plain common sense.
There must be a broad Australian plan—not six different and clashing State
plans.
Yet the Constitution still stands where it did in 1900, giving general
industrial control to each of the States separately.

14

 (Argument FOR the Proposed Law)

The statesmen who worked out our present Constitution 50 years ago did not
foresee the phenomenal growth of Australian industry, or they could never have
agreed to the confused, rigid and complicated arrangement under which Australia has
had to struggle ever since, and which we next proceed to explain.
CONSTITUTION NOW PREVENTS EFFICIENT INDUSTRIAL REGULATION.

At present, power over industrial conditions is divided between the
Commonwealth and the States.
Apart from its fleeting war-time power, the only important industrial power
that the Commonwealth Parliament has is to set up conciliation and arbitration
machinery for preventing and settling industrial disputes extending beyond the limits
of any one State.
This means three things—
Firstly, it means that the Commonwealth has no power at all unless there is an
interstate dispute. Therefore people are driven to create disputes as the only means of
getting their claims before the Court.
You can see then that federal arbitration only begins to operate when peace
and order have already broken down. That is too late. What the Commonwealth
needs in the interests of everyone is the power to take proper steps before trouble
occurs.
Secondly, it means that the Commonwealth Parliament cannot itself deal in
any way with the subject matter even of an interstate dispute. Still less can Parliament
itself fix wages, hours of work or working conditions. The arbitrator only, and not the
Parliament, can legislate in these fields. The odd contrast is that the parliaments of the
States on the other hand can themselves do all these things. But they can do so only
within their own boundaries, and only so long as their laws do not conflict with
awards of the Commonwealth Arbitration Court, made in connexion with interstate
disputes.
Thirdly, it means that even where an interstate dispute does exist, the
Commonwealth’s power is still very limited. All it can do is to provide machinery for
conciliation and arbitration.
The natural result of this illogical division and limitation of authority is
confusion, uncertainty, expense, delay and injustice.
PRESENT CONSTITUTION ALSO ILLOGICAL.

Employment in industry ties in closely with tariffs for building up Australian
industries, with bounties on production and with control of overseas marketing. The
Commonwealth has these powers, but not the industrial powers that should go with
them. It is ridiculous that the Commonwealth should not have the power to make sure
that the benefits of its laws on these other subjects are shared between workers and
employers.

15

 (Argument FOR the Proposed Law)

This was pointed out by the present Leader of the Opposition, the Right
Honorable R. G. Menzies, in a speech he made in the Federal Parliament on the
22nd November, 1938.
He said—
It seems curious, looking back on the matter at this stage, that the Constitution should have
conferred upon this Parliament power to control the problems of customs and excise, power to control
the whole fiscal policy of the continent, and made it an exclusive power, and yet, at the same time,
should have refrained from granting to this Parliament power, the ancillary power, as I would have
thought, to deal with the wages that should be paid and the conditions that should be observed in the
great industries which were bound to be established and fostered under the fiscal policy of the
country………That anomaly is one which will continue to exist until more effective treatment of it is
made possible by giving complete industrial power to the Commonwealth of Australia.
NEW METHODS NECESSARY.

The Constitution has also prevented the Commonwealth from introducing
other and newer methods of promoting better industrial relations and better working
conditions. War-time powers have shown what can be done. One example is the
successful handling of the women’s employment problems. Another is the
introduction of welfare services in many war industries. It would be unfair to allow
those who have fought for Australia in the war or worked for Australia in industry to
go back to poorer conditions of work just because the Commonwealth cannot protect
them in peace time.
During the war, when the Commonwealth exercised war-time industrial
powers, record production and an incredible expansion of industry were achieved.
NATIONAL POWERS WILL BENEFIT ALL THE PEOPLE.

This Bill, like the other two, is good for every Australian, and not only for
workers and employers in industry. Primary producers, for instance, besides getting
direct protection from a “Yes” vote on marketing will also need the demand for their
products that prosperous home industries will provide. Every professional man as well
as every trader is dependent upon good industrial conditions. This business of a
simplified national control of employment in industry in Australia is everybody’s
business. Most of all, it is the business of the serviceman wanting to re-establish
himself in industry.
Workers in industry.
You will be able to hold your national Parliament directly responsible, just as
the workers in Britain and New Zealand can, for giving you the best wages and
conditions that industry can bear. You will be able to say, at elections, whether you
are satisfied with what the Parliament has done, and whether you want these matters
dealt with by courts or other tribunals, or by your representatives in parliament, or
partly by one and partly by the other.
You will not have to wait until a dispute arises or is “manufactured” before
making a claim for improved wages and conditions.

16

 (Argument FOR the Proposed Law)

Employers in industry.
The great need of the man who has the responsibility of employing labour is to
know where he stands, so that he can plan ahead. The intolerable confusion of divided
control, and of State and Federal awards operating in the one factory or business, has
been a constant cause of worry and trouble to business men throughout the
Commonwealth. You too will be able to express your views to a national Parliament
which will have real power to decide industrial questions.
Women
If you are employed in industry, you will benefit in the same way as male
employees. The Commonwealth has been able to look after your interests under its
war-time powers, but peace conditions without those powers raise a serious problem.
Unless this referendum is carried, the Commonwealth will not have the power to
protect your interests.
If you are a housewife, you are vitally interested in this Bill through your
interest in the future of your husband and children.
To be efficient, the control of wages and of child endowment and other
allowances must go together.
FREEDOM TO CHOOSE JOBS SAFEGUARDED.

There is an express provision in the wording of the power itself to
prevent the Parliament, in exercising the new industrial powers, from authorizing any
form of industrial conscription. This means that no employee can be directed to work
in a particular industry or for a particular employer. He cannot be “pegged” in his job.
An employer will be free to choose his employees. There is a written guarantee of
freedom in these matters—“No industrial conscription”.
PRESENT ARBITRATION POWER WILL REMAIN.

The Commonwealth Parliament will still have all its present powers to
provide conciliation and arbitration. The Arbitration Court can be retained and its
functions extended. It can be enabled to make decisions without waiting for a dispute
to arise and without being limited to interstate matters. It can be enabled to make a
common rule for a whole industry. On the other hand, the Commonwealth Parliament
will be able to act directly when it sees fit. That Parliament is responsible for the
national economy but is at present without anything like adequate power over one of
the most important aspects of that economy—namely, industrial conditions. The
actions of the parliament are subject to review by the electors at least every three
years.
NOT A PARTY MATTER.

This Bill, like the other two, has nothing to do with parties. You ought
to vote “Yes” as the new powers will be exercised by all future Governments, labour
or non-labour. Prominent men of all parties have agreed for years that the powers are
necessary. Very similar proposals were made by the Hughes Government in 1919 and
the Bruce Government in 1926.

17

 (Argument FOR the Proposed Law)

You will not be giving the new industrial powers to any party, but to your
national Parliament.
As the referendum and the General Election will be held together it
will be for you, at the time you grant the new powers to the Parliament, to determine
by whom they shall be exercised.
For national control in Australian industry, vote “YES”.
To vote Yes, put the number 1 in the square opposite the word “YES”
and the number 2 in the other square.

18

 (Argument FOR the Proposed Law)

THE CASE FOR NO.
No. 1. —CONSTITUTION ALTERATION (SOCIAL
SERVICES) 1946.
Why is the Commonwealth seeking further powers over social services?
Has there ever been any interruption of your payments, of child endowment,
maternity allowances, old-age or widow’s pensions, or any other Commonwealth
Social Service? No. Yet Dr. Evatt claims that a High Court decision in the
Pharmaceutical Benefits case has shown that “the legal foundations for social service
legislation are doubtful and insecure.”…That case was decided last year. But you
are still regularly receiving every one of the established Commonwealth Social
Service Benefits.
REMEMBER THE REPATRIATION “DOUBTS”.

You may remember that similar doubts were expressed by the same
parties at the last Referendum in respect of the Repatriation powers of the
Commonwealth. But the people of Australia wisely declined to be misled by
propaganda, and refused all powers sought including the Repatriation power. Since
that Referendum, the Commonwealth has added to its then existing Repatriation
legislation, by passing the Servicemen’s Establishment Act, the War Service Homes
Act and the Solder Settlement Agreement Act!
WHAT THE HIGH COURT CASE REALLY DECIDED.

The Pharmaceutical Benefits case, the case with which the
Commonwealth is trying to panic the electors into granting further powers to the
Commonwealth, did not decide that benevolent social services were beyond the
present powers of the Commonwealth at all. What it really did decide was that the
Commonwealth cannot use its present powers over social services for exercising
bureaucratic controls over the people of Australia. In his judgement in the case the
Chief Justice of the high Court said : —“ If the Pharmaceutical Benefits Act could
properly be described as an act for the appropriation of money (for social services)
with safeguards against wrongful expenditure of that money it is valid. “If on the
other hand,” said the Chief Justice “it is an act which, although it appropriates money,
is really an act for the control of doctors, chemists, sale of drugs, and the conduct of
persons who deal with doctors and chemists (as the whole Court found it really was)
then it is invalid.” That is why the High Court declared that Act invalid—because it
sought not just to distribute moneys for the people’s benefit, but to exercise
unwarranted controls over them; and that is why the Commonwealth wants the
powers—so it can exercise more and still more control over your daily lives.
SOCIAL SERVICES ARE NOT IN DANGER

It is clear, then, that new powers are not required for the purpose of
maintaining the existing social services. Why, then, are they being sought? The
answer is that the Commonwealth seeks to gain further far-reaching powers (of which
the social service proposals appear quite innocent on the surface) and at the same
time to popularize the other dangerous referendum proposals through the superficial
attraction of the social service powers.

19

 (Argument FOR the Proposed Law)

THREE REASONS FOR VOTING “NO”.

The following are three important reasons why you should Vote “No” to No. 1
proposal, against the powers to provide specified social services: —
(1) Because through them the Commonwealth can gain further far-reaching
controls over your daily lives;
(2) Because they will enable the States to be ousted from their present role
of providing additional social services; and
(3) Because they are one step further towards the centralization of all
controls and powers in Canberra.
NO CONVENTION.

The limits of the proposed powers have never been discussed, let alone
decided by any convention or legal tribunal. In actual fact, the extent of the powers
sought is such that it is impossible for lawyers to define or limit it. Dr. Evatt said
himself (Hansard, 26th March, 1946) “We shall be able to do everything incidental to
providing these social services. It is a very wide power”.
PRESENT SAFEGUARDS.

The Commonwealth already has wide social service powers for all
legitimate purposes. If they are ever proved to be lacking in any respect, then every
conceivable social service can be provided by the Commonwealth in co-operation
with the States under the existing powers. What State could refuse to co-operate in
any beneficial scheme at the Commonwealth’s expense? That would be political
suicide. Furthermore, Dr. Evatt himself has admitted that the Commonwealth can
“make conditional grants of money to the States” for all social services under its
present powers. The safeguard at present is that the Commonwealth’s existing social
service powers cannot be used for controlling your every-day lives, for directing the
doctor or dentist you shall consult, or requiring you to have periodical examinations
you have no wish for.
THE AUDITOR-GENERAL’S POSITION.

If the present powers are inadequate to support the present legislation,
why has not the Commonwealth Auditor-General challenged them? That is his job.
No, the real reason for seeking these social service powers, apart from their hoped-for
effect on the rest of the referendum proposals, is that enormous powers, not apparent
on the surface, are once again being sought.
THE POWERS ARE SOUGHT FOR EVER.

And remember, in conclusion, that if these enormous new powers are
granted, they are granted for ever to every Commonwealth Parliament which may
henceforth wish to use them for any conceivable purpose, ulterior or otherwise,
whether that Parliament may be Labour, Liberal, Socialist, Conservative, Communist,
or Fascist.

20

 (Argument FOR the Proposed Law)

No. 2. —CONSTITUTION ALTERATION (ORGANIZED
MARKETING OF PRIMARY PRODUCTS) 1946.
In discussing this Amendment, as well as the others, certain general
considerations are important.


Amendments to the Constitution are designed to deal with the powers of
parliament, and not with the particular way in which those powers will be
exercised by some party which claims your votes.



Consequently the amendment of the Constitution should be a non-party
matter, to be decided calmly and deliberately, away from party politics.



The present Government, by deciding to have the Referendum vote on General
Election polling day, is deliberately setting out to make the amendment of
the Constitution a party political affair.



It is doing so, not because it really believes that this is the right way to amend
the Constitution, but because it hopes to confuse the issues, and in particular
to distract attention from the real problems of industrial peace and taxation
and production and housing around which the election should turn.

These considerations alone will lead many people, who respect the Constitution and
value its basic and enduring importance, to vote “NO”. But on this Marketing
Amendment there is an additional point, which is—


The questions which have in the past arisen about the “organized marketing”
powers of the governments are legal and so intensely technical that lawyers
have never been able to agree about them. Such questions are not suitable to
be decided by popular vote; they should be dealt with by a competent
Constitutional Convention in an atmosphere of close study and careful
deliberation.

Having made these preliminary remarks, we turn to the actual merits of the
Amendment.
The argument can be put most clearly in a few questions and answers—
Question. —HAVE THE GOVERNMENTS OF AUSTRALIA BETWEEN THEM POWER OVER ORGANIZED
MARKETING TO-DAY ?

Answer. —Yes. The Commonwealth Parliament has power over trade with other
countries and (subject to section 92 of the Constitution) over interstate
trade, while the State Parliaments have power over local trade (i.e.,
within the boundaries of the State). The States also have the power to
control production, which the Commonwealth cannot do.

21

 (Argument FOR the Proposed Law)

Question.—HAVE THESE POWERS BEEN EXERCISED
Answer. —Yes, repeatedly. The latest example is the Commonwealth Government’s
Wheat Stabilization Plan, in which the Commonwealth and States,
acting in co-operation, decided upon a scheme. And incidentally, the
Commonwealth Government has never suggested that the plan is
legally doubtful, even though its Referendum has not been carried !
Question. —WHAT ARE THE ADVANTAGES
ACTION, AS AT PRESENT ?

OF JOINT

COMMONWEALTH

AND

STATE

Answer. —They are very great. It is either useless or dangerous to guarantee prices or
control overseas marketing unless there is some reference to, and if
necessary regulation of, production.
You cannot have an efficient business in which the production or purchase
of stock is done quite independently of the selling of it!
Now, as the States alone control production (land settlement, water
supply, transport, the licensing of farms or areas), the total problem of
organized marketing cannot be efficiently controlled without their cooperation.
As Mr. Scully said, in introducing the Wheat Plan to parliament only a
few weeks ago—
Co-operation with the States is an essential part of the Plan. The States control
production, and production must be regulated according to the markets
available. …In Marketing, Commonwealth and States must use their
Constitutional powers in harmony if the Plan is to be effective ; neither can
provide effective marketing unaided.

Question. —BUT IF THE PRESENT AMENDMENT IS CARRIED, WILL NOT THE NEED FOR
CO-OPERATION WITH THE STATES DISAPPEAR, SO THAT THE ONE
PARLIAMENT CAN DEAL WITH THE WHOLE MATTER ?
Answer. —No, because this Amendment gives the Commonwealth NO power over
production, but ALL power over marketing.
You see how foolish this is, and how completely it contradicts Mr.
Scully’s own words.
To have one government controlling all production, and another
separately controlling all marketing, would be fatal to producers
and general taxpayers alike.
If we are to have sensible plans, therefore, co-operation with the States
will continue to be essential.
If the Government hopes by this Amendment to enable the
Commonwealth Parliament to act independently of the State
Parliaments, it is inviting disaster, because, we repeat, it would then be
putting marketing and production into water-tight compartments.

22

 (Argument FOR the Proposed Law)

If, on the other hand, the Government realizes that co-operation with the
States will still remain essential, what does it hope to gain by the
Amendment?
Question. —ARE THERE ANY OTHER ADVANTAGES IN HAVING THE COMMONWEALTH
AND STATES BOTH CONCERNED WITH MARKETING, AS AT PRESENT?
Answer. —Undoubtedly. As each scheme has to be preceded by discussion between
Commonwealth and States Governments, and carried out by
Commonwealth and States legislation, there is ample opportunity for
those sections of the people who are affected, whether producers,
consumers, or traders, to express their views.
Marketing schemes which have to be discussed in six State Capitals are
likey to be more widely known and more effectively controlled by
public opinion than schemes which are discussed only at Canberra.
Question. —WHAT, THEN, IS THE NETT EFFECT OF THE PROPOSED AMENDMENT?
Answer. —To take away from the States their special authority over local marketing
and concentrate the whole marketing power at Canberra.
Question. —WHAT DOES THIS MEAN, IN PRACTICAL TERMS?
Answer.—At present each State Parliament has the sole power to make laws and
administrative rules regarding the selling of primary products on the
local market, i.e., the markets inside the boundaries of the State.
The expression “primary products” is a very wide one. You will notice in
the proposed Amendment references to certain specifically named and
important primary products. But the expression is not confined to those
products. It extends to all the products of the soil. All vegetables and
fruits and dairy products are included.
Under this Amendment, therefore, the sale of, e.g., local vegetables
and milk in the cities and towns and townships of any one State,
could for the first time be controlled by Commonwealth laws,
made in and administered from Canberra!
Question. —BUT WOULD NOT THE CENTRALIZING OF POWER MAKE FOR SIMPLICITY?
Answer. —You can answer this question yourselves from your experience of the past
few years.

23

 (Argument FOR the Proposed Law)

Commonwealth Governments have never learned how to decentralize
administration, and the stock answer—“I must refer it to Canberra” —
has irritated thousands of ordinary citizens from one end of Australia to
the other. The best and most efficient government exists when local
matters are dealt with by local authorities, controlled by local people.
Question.—WELL,

EVEN THOUGH THERE MAY BE SOME DELAYS AND DIFFICULTIES
ABOUT “REMOTE CONTROL” OF THE LOCAL MILK SUPPLY, WE WOULD
STILL HAVE THE ADVANTAGES OF UNIFORMITY, WOULDN’T WE?

Answer.—The word “uniformity” may turn out to be our greatest curse, rivalling
even the rabbits. Why should every citizen in Australia be subject to
the same dull and uniform collection of rules?
Why should there be the same rules for selling local fruit in Queensland
and Tasmanian apples in Hobart?
Why should a system of milk distribution which works in, say, Newcastle,
be forced upon the citizens of Melbourne?
Question.—BUT DID NOT THE LYONS’ GOVERNMENT IN 1937 PUT FORWARD A SIMILAR
AMENDMENT ?
Answer.—It did not. The Amendment of 1937 left the powers of Commonwealth and
States exactly where they were, but simply sought to free them from
the operation of Section 92 of the Constitution (the guarantee of
interstate freedom of trade). You will see that this was quite different
from, and much better than, a proposal to put the whole marketing
power into the hands of the Commonwealth!
Yet the people overwhelmingly rejected even the 1937 Amendment.
Question.—YES, BUT SINCE THEN THE PROBLEM OF POST-WAR RECONSTRUCTION HAS
ARISEN, AND SURELY PLANNING IS NEEDED IF THAT PROBLEM IS TO BE
SOLVED! AND DOES NOT NATIONAL PLANNING REQUIRE GREATLY
INCREASED POWERS FOR THE NATIONAL PARLIAMENT?
Answer.—Nobody will deny the need for planning in our economic life. But does
planning require that we should have huge Departments at Canberra,
largely manned by people with no practical experience of industry or
production, and that those Departments should control our industrial or
productive activities?
As a famous economist has said, the Government does its best service by
“creating conditions under which the knowledge and initiative of
individuals is given the best scope so that they can plan most
successfully.”
The best planning the Government at Canberra can give us is to be
found in such matters as a reduced tax burden, and industrial
peace, and the maintenance of economic stability.

24

 (Argument FOR the Proposed Law)

With these conditions assured, practical men will be able to do their
own planning of their own affairs.
Question.—DOES PRACTICAL EXPERIENCE SUPPORT
QUESTION?

THE

ANSWER

TO THE

LAST

Answer.—If you are a wife, ask yourself. If you are a husband, ask your wife.
We have had many Boards during the war. Many commodities have been
controlled. It is curious, but true, that whenever something is controlled
by a Board, it seems to become scarcer, dearer, and (in some instances)
of poorer quality.
Perhaps this represents pure bad-luck on behalf of the Board!
Or perhaps it means that most decent citizens carrying on business, great
or small, can satisfy the reasonable demands of their customers better
than any Government Departments.
TO SUM UP.
The great primary industries have real problems which could never be solved
by the Commonwealth alone, but which need (as now) joint Commonwealth and State
action.
To put such matters entirely into the hands of Canberra would be disastrous.
Local primary industries can only be handicapped (and their consumers with
them) by the creation of a new mass of Canberra rules and regulations and boards.
They will best serve the people by remaining under the control of local State laws,
and in the hands of local and experience people
Under these circumstances, the case for a NO vote is overwhelming.
VOTE “NO” FOR A FAIR DEAL TO PRODUCER AND CONSUMER.

25

 (Argument FOR the Proposed Law)

No. 3. —CONSTITUTION ALTERATION (INDUSTRIAL
EMPLOYMENT) 1946.
The Chifley Government asks you to amend the Commonwealth Constitution
by transferring to the Commonwealth Parliament the whole power over the fixation of
wages, hours and industrial conditions.
You will naturally be interested to know why this matter is considered
by the Government to be of such urgency that your vote on it must be recorded at the
same time as you are required to consider the many complex issues of a general
election campaign.
WE BELIEVE THAT THE GOVERNMENT IS TAKING THIS COURSE BECAUSE
OF THE STRONG PRESSURE PUT UPON IT BY THE MILITANT ELEMENTS WITHIN
THE TRADE UNION MOVEMENT, THE COMMUNISTS ARE OUT TO SMASH OUR
ARBITRATION SYSTEM. THEY HAVE MADE NO SECRET OF THEIR OPPOSITION TO
IT.

Writing in 1942—the critical year of our war with Japan—in a
pamphlet titled “The Trade Unions”, the President of the Communist Party, Mr.
Sharkey, said—
The reformist trade union officials whole-heartedly support arbitration … They do
not want strikes and struggles to disturb their peaceful salaried existence. …The Communists regard
the State-controlled arbitration system as a pernicious, anti-working class institution, whose objective is
to keep the workers shackled to the capitalist state…Strikes, properly led and conducted and properly
timed, are a revolutionary weapon.

More recently, another leading Communist, Mr. Ernie Thornton, has
condemned the arbitration system and demanded its replacement by what he terms
“collective bargaining” but what has been described with more accuracy as “collective
bludgeoning.”
Associated with the agitation from these quarters for the elimination of
our present system of conciliation and arbitration are the demands that the
Commonwealth Government should, by Act of Parliament, introduce a 40-hour week
and prescribe a substantial increase in the basic wage. This is the background to the
proposal now submitted to you.
BEFORE YOU MAKE YOUR DECISION, WE ASK YOU TO WEIGH
CAREFULLY THE FOLLOWING FACTS : —
During the last 40 years the Australian people, through their
Parliaments, have built up the finest system of compulsory industrial arbitration in the
world.
The essence of the system has been that there should be enough
tribunals to provide ready access to disputants; that the members of the tribunals
should be impartial, competent and independent, and that the rights of employees
should be established and enforceable by law.

26

 (Argument FOR the Proposed Law)

The Commonwealth Arbitration Court has had a fine record of
achievement and has become an approved and established institution in our
community life.
Working under its Commonwealth Act it has given to hundreds of thousands
of trade unionists benefits of a notable and enduring kind.
These benefits should be remembered now that the Australian people are being
asked by this Referendum to by-pass such independent and impartial and competent
arbitration and to hand over the direct control of wages and conditions to the
Parliament at Canberra. We would remind you that when we are speaking of the
Parliament at Canberra, this can so often mean in practice a decision of Labour
Caucus, whose regimented members are unable to express any dissentient voice when
the matter comes to the Parliament itself.
HERE ARE SOME OF THE THINGS THE COMMONWEALTH ARBITRATION
SYSTEM HAS DONE FOR THE AUSTRALIAN TRADES UNIONS : —

 It has encouraged organization by making the registered trade union the
authorized representative of all its members.
 It has made trades union rules enforceable by law and has provided for
every trades unionist having a share in the control of his union.
 It has given to employees the right to have employers ordered into
conference or court.
 It has created the right in unions to secure awards creating and protecting
the terms and conditions of employment
 It has given to the Unions the right to enforce awards not only against a
respondent employer but also against his successor in business.
 It has given to the Unionist a right to sue for his legal wages and to
prosecute for breach of award.
 It has protected the active Unionist against dismissal or prejudice in his
employment by reason of his activities in some industrial dispute.
 It has been solely responsible for the important principle of the Basic
Wage, which it must be remembered was for the first time created by the
Court under the Presidency of Mr. Justice Higgins.
 It has periodically varied the basic wage in accordance with the current
cost of living.
 It has established standard hours of work, with overtime and penalty rates
of pay.
 IT HAS, IN BRIEF, CREATED FOR THE AUSTRALIAN TRADES UNIONIST
ALMOST THE ENTIRE PROTECTION WHICH HE NOW ENJOYS AGAINST
EXPLOITATION AND INJUSTICE.

27

 (Argument FOR the Proposed Law)

For the Australian employer it has meant a clear and detailed definition of
his rights and responsibilities in respect of those employed by him. Given strict
enforcement of the law by Governments, he would be able to plan his production in
an orderly way knowing the obligations for which he would have to provide.
The arbitration system has meant much also to the Australian primary
producer and to the consuming public. If a decision on industrial disputes were left
solely to the parties involved, they could be settled by making better wages available
through increased costs to the consumer. The Court has been built to stand not merely
as an independent adjudicator between the disputants but as a protector of the public
interest.
When this Referendum proposal was being discussed at Canberra on 3rd
April, 1946, the Leader of the Opposition (who has for a long time favoured a liberal
view of Commonwealth industrial power) speaking on behalf of the opponents of the
proposed amendment, suggested to the Government that the right way to strengthen
and improve the work of the tribunals was not to abolish or override the arbitration
power but to get rid of all technicalities by altering it so that it would read: —
Conciliation and arbitration for the settlement of the terms and conditions of employment in
industry.

This was a constructive proposal but the Government was not willing to
accept it.
It preferred to abolish arbitration.
WHAT DOES THE PRESENT AMENDMENT MEAN ?
Quite shortly, it means that if the Amendment is carried the
Commonwealth Parliament will be able itself to make direct laws about wages
and hours.
The Arbitration Court will be pushed on one side.
The Parliament at Canberra will have full authority to decide not only the
standard working week but what the working hours are to be in any industry,
great or small, and for any class of employees anywhere in Australia.
The Parliament at Canberra will be authorized not only to fix the basic
wage but to fix the wages of any group of employees or of any individual
employee anywhere in Australia.
It may exercise these far-reaching powers by Act of Parliament or it may
pass an Act which authorizes some Minister or official to fix the hours or wages
in question.
Do not be misled by the purely temporary and superficially attractive
argument that the passing of this amendment would enable the Commonwealth
Parliament to reduce standard hours to 40 per week or to increase the basic wage by a
pound a week.

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 (Argument FOR the Proposed Law)

WHEN YOU AMEND THE CONSTITUTION YOU AMEND IT PERMANENTLY.
What one Parliament can do under the power another Parliament can undo.
You will readily recognize that decisions upon working hours and upon wages
are of immense and far-reaching importance to the whole nation.
They ought not to be made upon some auction sale principle with political
parties bidding one against the other for election support.
They ought to be made with full knowledge of the facts, with impartiality,
with a considered judgement and with a determination to do what is best for the
people as a whole.
This brings us to the really crucial question which you have to answer :
DO YOU BELIEVE THAT MATTERS OF SUCH MOMENT, A WRONG DECISION UPON
WHICH MAY BE REUINOUS TO THE NATIONAL ECONOMY AND MAY PRECIPITATE EITHER
INFLATION OR DEFLATION, BOOM OR DEPRESSION, SHOULD BE DECIDED
ON PURELY POLITICAL GROUNDS
POLITICAL MATTERS

BY A

PARLIAMENT ELECTED

TO

DEAL

WITH

or
BY COMPETENT AND IMPARTIAL JUDGES WHO WILL HEAR EVIDENCE ON BOTH
SIDES, WILL CAREFULLY EXAMINE EXPERT VIEWS AND WILL HEAR THE
ARGUMENTS OF ALL THE PARTIES BEFORE ARRIVING AT A DECISION?
Let us illustrate this by one important current question:
The Arbitration Court has for some months been engaged in the hearing of
what is known as the “The Forty Hours Case”. It has heard a mass of carefully
prepared evidence for the Unions and another mass of carefully prepared evidence for
the Employers.
It has had the assistance of intervening Governments.
It has been able to take into account the general well-being of the community
as a whole.
Would you prefer in the interests of your country and of its future a decision
arrived at after this careful and painstaking inquiry, or a decision arrived at in a few
minutes at Canberra by politicians who were under no obligation to hear either side,
but under electoral pledges to vote in accordance with purely political considerations?
This problem obviously touches the whole question of the value of impartial
decision after careful and impartial investigation.
If you think that Members of Parliament who, after all, have a host of
problems to consider, both international and local, in the course of a year, are
qualified to determine all these matters of rates and working hours, then you are in
effect saying that industrial arbitration ought to be abolished.

29

 (Argument FOR the Proposed Law)

But if you believe that industrial justice requires calm investigation and
impartial decision, then you will vote to preserve industrial arbitration. You will not
have it messed about or overruled by party politics.
THE DECISION YOU HAVE TO MAKE IS A FATEFUL ONE. Even if the Commonwealth
Parliament, being armed by you with this new and far-reaching power, decided to
confine itself in the first instance to basic principles and to leave the working out of
the details to the Industrial Courts, we all know perfectly well that every time there
was a dispute about an Arbitration Court Award an appeal would be taken to
Parliament and enormous pressure would be exerted upon Ministers to bring in some
Bill to overrule the decision already given. This would inevitably increase the already
serious industrial chaos.

We cannot have a system of industrial justice in which the industrial
courts are liable to be overruled at any moment by people at Canberra who
know only some of the facts and have for the most part heard none of the
arguments.
The advocates of a “YES” vote try to meet this powerful contention by saying
that the State Parliaments have a power of direct legislation upon the terms and
conditions of employment and that they have not committed any of the follies referred
to above.
The answer to that is very simple; indeed, it can be put in the form of a few
questions—
How long could the industries in a State survive if its State Parliament
created hours of work and conditions of labour radically out of line with
competitors in other States?
If the Commonwealth Parliament does not propose to exercise the power
to make direct laws on wages and hours, why is it asking for the power to do so?
If the Commonwealth Government is merely anxious to get rid of
technicalities, why did it not accept the constructive suggestion of the Leader of
the Opposition?
If the Commonwealth Parliament does propose to exercise the new power
by passing some laws in relation to wages and hours, what assurance can you
have that before long it will not have so enfeebled the Commonwealth
Arbitration System that it will fall first into disuse and ultimately into contempt?
AFTER YOUR BITTER EXPERIENCES OF THE PAST FEW MONTHS, DO
YOU WANT TO WEAKEN ARBITRATION, OR STRENGTHEN IT?
The whole position therefore resolves itself into this—
ARE YOU FOR INDUSTRIAL ARBITRATION
IMPARTIAL TRIBUNALS?
If you are, you will vote “NO”.

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BY

COMPETENT, EXPERIENCED

AND

 (Argument FOR the Proposed Law)

ARE

YOU FOR CONVERTING THE DELICATE PROBLEMS OF INDUSTRIAL
ADJUSTMENT INTO MATTERS OF POLITICAL BARGAINING AND CANVASSING FOR
VOTES?

If you are, you will vote “YES”.
When in the past the Australian people and the trades union movement have
felt that the arbitration system was challenged, they have worked strenuously and
voted consistently to defend it.
Have they changed their minds?
Or is the Government, by adopting this proposal, responding to the pressures
of Communists, on whose votes it relies, but who are out to smash, not only our other
democratic institutions, but in particular the system of Arbitration we have so
carefully constructed?
FOR INDEPENDENT ARBITRATION——vote “NO”.

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 (Argument FOR the Proposed Law)

When voting at the Referendums, a voter should indicate
his vote in respect of EACH of the THREE proposed
laws—which will be separately submitted on the one
ballot-paper—as follows :—
(a) If HE APPROVES of the Proposed Law—
by placing the number 1 in the square
opposite the word “YES” and the
number 2 in the square opposite the
word “NO” ; or
(b) If HE DOES NOT APPROVE of the
Proposed Law—by placing the number
1 in the square opposite the word “NO”
and the number 2 in the square
opposite the word “YES”.

By Authority :
L.F. JOHNSTON, Commonwealth Government Printer, Canberra
(Printed in Australia.)

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