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V
CHARACTERISTICS OF VICTORIAN LEGISLATION

Comparisons between the Australasian Upper Houses—Conflicts between the two Houses in Victoria—The proposed obviation of deadlocks—The utility of the Legislative Council—The antagonism between Town and Country—The Factory Acts, their justification and provisions—State Socialism: Railways, Irrigation Works, the encouragement of Mining, Subsidies and Bonuses, State advances to Settlers—The Unemployed and the Leongatha Labour Colony.

The Victorian Legislative Council is, from the democratic point of view, the most objectionable of all the Australasian Upper Houses. In Queensland, New South Wales, and New Zealand, the members of the Council are nominated for life and receive no remuneration for their services; but, as their number is not restricted, their opposition to measures passed by the Assembly is limited by the dread that the Executive may exercise the power of making additional appointments. In the other Provinces the Councils are elective; in South Australia, Western Australia, and Tasmania, as in the Provinces already mentioned, the Members are subject to no property qualification, and in New Zealand, South Australia, and Tasmania they are paid at the rate, respectively, of £150, £200, and £50 a year. In Victoria, on the other hand, there is a property qualification for membership which consists in the possession of a freehold estate of the clear annual value of £100, which confines eligibility to a small fraction of the population; and the area of selection is restricted further by the absence of remuneration and by the size of the electoral districts, which necessitates heavy expenditure on the part of a candidate at a contested election. Under these circumstances, the comparatively low electoral franchise, which admits upon the rolls two-thirds of the voters for members of the Assembly, is absolutely useless to the democratic electors: they are unable to find candidates who will adopt their views, and have been obliged, as at the last elections, to allow all the retiring members to be re-elected without opposition. It should be stated that the members are elected for a period of six years in ten provinces, and retire in rotation at intervals of two years.

The Victorian Assembly consists of ninety-five members who are elected for three years upon the basis of manhood suffrage and receive remuneration at the rate of £270 a year. Conflicts between the two Houses were incessant during the first twenty-five years of Responsible Government. Immediately after its establishment in 1855 a struggle arose as to the right of selection upon pastoral properties, in which the Council supported the interests of the squatters. The issue could not be doubtful, as the squatters, who had been allowed to depasture enormous tracts of land in the early days of the Province, had no fixed tenure and were impeding the settlement of the country. In 1865 the Assembly passed a protective tariff which was distasteful to the Council as representative of the producers, and tried to secure its enactment by tacking it on to the Appropriation Bill. They relied upon the section of the Constitution Act which provides that "all Bills for appropriating any part of the revenue of Victoria, and for imposing any duty, rate, tax, rent, return or impost, shall originate in the Assembly, and may be rejected but not altered by the Council." Upon the refusal of the Council to submit to such coercion, the Ministry arranged with various banks that they should advance the funds required for public purposes, levied a tax upon a resolution of the Assembly and paid the civil servants without parliamentary authority. A general election followed, at which the Ministry were successful; the Assembly and Council repeated their action of the previous session, and, finally, the Council agreed to accept the new tariff provided it was submitted to them in the form of a separate Bill. Similar constitutional struggles occurred in 1867 upon the proposed grant to ex-Governor Darling, and in 1877 upon the Bill to provide for the payment of Members of the Assembly. During the following years peace reigned between the two Houses, owing at first to the great prosperity of the Province, which caused universal confidence, and the predominance of material considerations; afterwards to the equally great reaction which compelled politicians to sink their differences and combine to save the credit of their country.

The antagonism was renewed in 1894 upon the proposals for additional taxation, by which the Premier, Mr. Turner, hoped to cope with an anticipated deficiency in the revenue of more than half a million pounds. His scheme included the repeal of the existing land-tax, under which landed estates of upwards of 640 acres in extent are taxed annually upon the excess of the capital value over £2,500—an impost which obviously penalises rural, at the expense of urban, properties and was intended to promote the subdivision of the land (though it does not appear to have had much effect in that direction); and the imposition of a tax on unimproved values at the rate of 1d. in the £, subject to the exemption of £100 when the value does not exceed £1,000, and of an income tax which, subject to the exemption of incomes not exceeding £200, was to be at the rate of 3d. in the £ on incomes derived from personal exertion and 6d. on incomes derived from property up to £2,200, above which sum the amount was in both cases to be doubled. Absentees were to pay an additional 20 per cent., and incomes from land were to be exempt where the owner paid the land-tax. These taxes, it was calculated, would yield an annual revenue of £600,000. The Finance Bill was passed in the Assembly at its second reading by a majority of twenty-two, but in committee it was amended so as to exempt from the land-tax land values of less than £500. The resultant deficiency in the proceeds of the tax was made up by a continuance of the primage duties and by an increase of the tax on incomes derived from personal exertion. Upon its transmission to the Council the Bill was summarily rejected, the Minister who was in charge of it alone, beyond the tellers, being in its favour, on the ground that the questions of a tax on unimproved values had not been submitted to the electorate and that, in the existing conditions of the Province, any further burden upon the producers would be opposed to its best interests. The Ministry accepted the decision of the Council and contented themselves with rigid retrenchment, the continuance of the existing land-tax, and the imposition of a progressive income tax which rises to a maximum of sixteen-pence upon the excess over £2,000 of incomes derived from property. According to a statement of the Premier, they intend to make the question a distinct issue at the next elections, and will in the meanwhile take no action in the matter.

In the following session the Council rejected an Electoral Bill which provided for the abolition of the plural vote and the enfranchisement of women, and disagreed with the Assembly upon several important clauses of a Factory Bill, in the legitimate exercise of the functions of a revising Chamber. The Ministry succeeded in 1896 in passing the Factory Bill in a form which met some of the objections of the Council, and reintroduced the Electoral Bill, which was subsequently laid aside by the Council on the ground that it had not secured in the Assembly the absolute majority of all the votes required in the case of amendments to the Constitution.

The value of any Second Chamber must rest upon its ability, and the exercise of its ability, to check dangerous tendencies in legislation. As regards Victoria, it must be admitted that the greatest danger has lain in the tendency to extravagant expenditure due to the fatal facility of obtaining almost unlimited advances from the British capitalist. Politicians have been tempted to outbid each other in the struggle for popular support, and to promise the outlay of vast sums of borrowed money. Judged with reference to this question, the Legislative Council cannot be regarded as having been efficient. The greatest waste of money has occurred in connection with the construction of railways from which there was no likelihood of adequate returns, and with injudicious advances to Irrigation and Water Supply Trusts. The Council has been hampered by the restrictions imposed upon it by the Constitution Act, but it has not admitted that it is debarred from amending Railway Bills, though it has done so but sparingly, owing to the opposition which such action aroused in the Assembly. It would seem that, at the time of the greatest output of the Victorian gold mines and of the high prices obtainable for agricultural and pastoral produce, the Council was as much carried away by the prosperity of the Province as the Assembly, and formed an equally false estimate as to its continuance. It appears, however, to have been the first to realise the imminence of a reaction. A comparison of the British and Victorian finances shows that while, in the former case, speaking broadly, provision is made only for the maintenance of the public services and for some matters of national importance, such as public instruction, in which all parts of the country share equally, in the latter case the expenditure includes the construction of public works which benefit particular localities, and grants and subsidies which benefit particular industries. Under these conditions members of the Assembly are subject to continual pressure from their constituents, which, it is contended, the members of the Council, owing to the greater size of the constituencies, are better able to resist. As the whole body of the tax-payers are responsible for the interest on the railways, a locality has everything to gain by the increase of its mileage; if it receives advances for works of irrigation and defaults upon the consequent obligations, it hopes to induce the Government, through its Member, to grant more lenient terms. The works in many cases are of doubtful value; the liability remains as a burden upon posterity.

The evil is widely recognised, but opinions differ as to the remedy. A step in the right direction was taken by the appointment in 1890 of the Parliamentary Standing Committee on Railways, which, it is suggested, should be supplemented by a similar Committee whose duty it would be to report upon all proposals for new works of water supply involving an expenditure of a thousand pounds of State money. Others ask that the Council should be allowed to amend Money Bills, and would do so with more reason if the property qualification for membership were removed, as the electorate already includes the bulk of the stable elements of the population. But the greatest safeguard would appear to lie in the lessons of the past, and in the appointment of Standing Committees whose antecedent sanction shall be essential to proposals for the expenditure of national funds upon public undertakings. It would be advisable to define by Act of Parliament what classes of public works might be carried out upon borrowed money; all others would then form a charge upon current revenue.

The absence of any ultimate appeal in the case of a divergence of opinion between the two Houses has recently been discussed in several of the Provinces. It has been pointed out that the power of the Executive to make additional appointments to nominee Councils is an unsatisfactory device calculated to produce friction between the Governor and his responsible advisers; that elective Councils can force upon the Assembly dissolutions from which they are themselves exempt; and that, in the majority of cases, the Councils are able, owing to the variety of issues and the influence of local and personal considerations, to deny that any particular question has received the verdict of popular approval. The measures rejected by the Victorian Council since 1891 include the Land and Income Tax Bill, the Opium Bill, the Miners' Right Titles Bill, the Mallee Land Bill, and the Village Settlements Amendment Bill. The Council has rejected the Opium Bill twice, and the Bill for the abolition of plural voting three times.

The question was considered in 1894 by a Victorian Royal Commission, which recommended that:—

"(1) If the Legislative Assembly shall in two consecutive sessions pass any Bill which shall not be passed by the Legislative Council, then, notwithstanding such Bill when passed in the second session by the Legislative Assembly shall be in an amended form, if the same shall not in such second session be passed by the Legislative Council, such Bill, if the Assembly so determine by resolution, shall, in manner to be duly provided, be submitted for acceptance or rejection to the voters on the roll for the Legislative Assembly.

"(2) In the event of the said Bill being duly accepted or approved of by the majority of the voters on the said roll who shall vote when a poll is taken, and upon a certificate to that effect to be duly given by the Speaker, the said Bill shall be transmitted to the Governor for his assent. Should, however, such Bill be rejected or disapproved of, then, upon the certificate of the Speaker to that effect, the said Bill shall lapse for the session.

"(3) At least six weeks must intervene between the first and the second passing of the said Bill by the Legislative Assembly."

Measures based upon these lines were introduced during 1896 in the Assemblies of Victoria, Tasmania, and New South Wales, but, in the latter case alone, reached the Legislative Council. It was thought that that body might receive the Bill favourably, as it would be brought thereby into direct contact with the people, and might overcome the jealousy which is at present felt against it. In fact, it might attain to actual popularity by enabling the electorate to pronounce directly upon a distinct issue. But this view did not prevail with the Council, which rejected the measure in the most summary manner.

A supplementary proposal put forward in Victoria is that, upon subjects which cannot be referred in a clear and simple manner to the electors, differences should be followed by a dissolution of both Houses, and, if an agreement is still impossible, by their joint meeting as one Chamber. In New Zealand, a Bill recently introduced by the Premier, but not passed through the House of Representatives, provided that, if a measure had been twice within fourteen months passed by one House and rejected by the other, the House which had passed it might call upon the Governor to convene a joint meeting of the two Houses, which should finally dispose of it by approval, rejection, or amendment. It will be noticed that the Council might thus secure the enactment of a measure which was opposed by the majority of the popular representatives.

The antagonism of the two Houses in Victoria would seem to be to a great extent a reflex of an antagonism between town and country. The population of the Province is estimated to have been 1,180,000 in 1895, that of Melbourne and its suburbs 439,000, or 37 per cent. of the whole. Under these conditions, and owing to the greater cohesion of compact electorates, a strong feeling has arisen in the rural districts that Melbourne has a disproportionate voice in the affairs of the Province, and that the balance should be redressed by the action of the Council. It is also believed that the abolition of the plural vote would lead to equal electoral districts which would increase the supremacy of the capital and the power of the Labour Party. At the present time they hold fifteen seats, all of which are urban or suburban, and, though discredited by the collapse of the Trades Unions, are not without influence upon the Government.

The percentage of the total population contained in Melbourne and its suburbs rose from 26 in 1861 to 43 in 1891, mainly as the result of the high protective tariff which aimed at making Victoria the principal manufacturing centre of Australia. Upon the consequent establishment of a large number of factories, the Government were soon compelled to intervene in the interests of the workers, and passed in 1873 the first Act dealing with the supervision of factories and workrooms. It defined a factory as any place in which not less than ten persons were employed in manufacturing goods for sale, and provided that such places should be subject, as to building, sanitation, &c., to regulations made by the central Board of Health, and that no female should be employed therein without the permission of the Chief Secretary for more than eight hours in any one day. The measure failed in its purpose through the indifference of the Municipalities, which were charged with its entire administration. They appear to have been negligent in exercising the powers entrusted to them, and to have allowed themselves to be served by officers who were unacquainted with their duties. In the following years several measures were passed which were consolidated by the Factories and Shops Act of 1890. Some new points of great importance had been introduced, which applied, however, only to cities, towns, and boroughs, unless they were extended to any shire at the request of its Council: the definition of a factory was amended so as to include all places in which four white men or two Chinamen were employed in manufacturing goods for sale; such places had to be registered, subject to the approval of the premises by the Local Council, and the employers were bound to keep a record showing the names of the persons employed in the factory, the sort of work done by them, and the names and addresses of outside workers; the employment of children under thirteen years of age was prohibited; machinery had to be fenced in in order to prevent accidents, and persons in charge of steam-engines and boilers, with a few exceptions, had to obtain certificates of competency. As regards the enforcement of these and other provisions, inspectors were authorised to enter a factory at any reasonable time, to make any pertinent inquiry and examination, to demand the production of any certificate or documents kept in pursuance of the Act, and, generally, to exercise such other powers as might be necessary for carrying it into effect. Proceedings for offences against the Act were to be taken before two or more justices, who, upon a conviction, would be guided by a prescribed scale of fines and penalties. Finally, retail shops were dealt with by a provision which limited the hours during which they might be kept open; but certain categories of shops were explicitly excluded, and Municipal Councils were given the power of altering the hours upon a petition of a majority of the shopkeepers.

The absence of finality in such legislation was soon shown by the demand for further restrictions, which was met by the Government by the customary expedient of the appointment of a Royal Commission. The census of 1891 had given the number of persons employed in connection with the manufacturing industries as 96,000, of whom less than a half were in registered factories. The remainder were working in shires, in laundries and dye works, in workrooms other than Chinese in which less than four persons were employed, or in their own homes. The Commission consequently, in the pursuance of their instructions to "inquire and report as to the working of the Factories and Shops Act, 1890, with regard to the alleged existence of the practice known as sweating and the alleged insanitary condition of factories and workrooms," had a wide field of investigation, but turned their attention principally to the industries in which the circumstances of the workers were believed to be most unfavourable. In the clothing industry they found that, beyond the common grievance of slackness of trade, those employed in factories had little to complain of in the matter of wages, but that among the outworkers, owing to the depression, competition had reduced the rate of pay to the lowest level compatible with continued existence. They were informed of many cases, which have been corroborated by factory inspectors and others, of women who, working from twelve to fourteen hours a day, were unable to earn more than ten or twelve shillings in a week. It was contended that, as in other countries, the competition was rendered more acute by those who were not dependent upon the work for a livelihood. Another result of this competition was seen in the policy pursued by several large firms which had closed factories built at a heavy cost and were relying upon their operations being carried on by contractors, because they had been unable to produce goods at the factory at the rate at which they could be turned out by those who employed the services of outworkers. An attempt had been made by the women to protect their interests by the formation of a Tailoresses' Union, which, after a fitful existence, collapsed in 1893. Since that time, in the absence of any form of combination, contractors had been able to play off the outworkers against the inworkers and against each other. It may here be noted that, according to a recent report of the Chief Inspector of Factories, the inquiry caused the rate of payment to be lowered in consequence of the publicity given to the very small wages paid by some firms engaged in the clothing trade.

In the course of their inquiries into the furniture trade, the Commissioners found that the Chinese, by evasions of the Factory Act, their poor way of living, long hours of labour and acceptance of low wages, had practically ruined the European cabinet-makers. Their competition was confined to that branch of the industry, but had indirectly affected it as a whole. Statistics showed that in 1886 there were 64 registered European furniture factories employing 1,022 male hands, while in 1894 the number of factories had decreased to 46 and of employés to 320. On the other side, the number of Chinese employed as carpenters and cabinetmakers had increased from 66 in 1880 to 320 in 1886, and decreased to 246 in 1894. It appeared that the Chinese, having ousted the European workmen from the industry, had engaged in a keen competition among themselves, which had reduced prices to such a low level that many manufacturers had been compelled to close their factories and dismiss their workmen. These latter had commenced to make articles of furniture on their own account, and were reputed to be in a pitiable state of destitution. The Commissioners came to the conclusion that, while the unsatisfactory condition of trade had contributed to the distress of the European cabinetmakers, the competition of the Chinese had been the greatest factor in bringing about the existing state of affairs.

Their recommendations were embodied in a measure introduced in 1895 and passed in the following session, but limited in its operation, by the action of the Council, to a period of four years. Its most important provisions aim at the protection of the workers in those industries in which they are least able to protect themselves. The desire of the Government was to get persons as far as possible to work in factories and to deal with the difficulty of outworkers by a system of permits. Clause 13 of the Bill prohibited the making up of apparel outside a factory except by those who had received a permit from the chief inspector, which was not to be given unless he were satisfied that the person applying for it was prevented by domestic duties or bodily affliction from working inside a factory or workroom. Employers were to keep a record showing the work done by holders of permits, their names and addresses, and the amount of remuneration, which was to be forwarded periodically to the chief inspector, and might be published in the Government Gazette at the discretion of the Governor in Council. The number of outworkers would be reduced to a minimum, and the fear of publicity would act as a check upon their employers. A further protection was afforded to makers of furniture and of clothing or wearing apparel, including boots and shoes, by clauses under which the Governor in Council was authorised to appoint special Boards, consisting of a chairman and four members, of whom two were to be representatives of occupiers of factories and workrooms in which such articles were prepared or manufactured, and two of the persons employed in wholly or partly preparing such articles. The Board was to determine the lowest rate which should be paid to the employés, whether working inside or outside a factory. The Assembly added another clause which authorised the appointment of similar Boards for the determination of the hours of labour in any manufacturing industry, but the Council refused to accept it, and also rejected the clause which prohibited outside work by others than holders of permits. They introduced amendments which provided that the discretionary publication of particulars in the Gazette should be limited to cases in which an employer had been convicted for some contravention of the Factories and Shops Acts, and that the special Wage Boards should be elective, in the belief that it would be dangerous to vest the power of appointment in the Governor in Council, since it would actually be exercised by the Chief Secretary. The Government agreed to the former of these amendments, as the value of the right of publication was lessened by the Council's acceptance of the principle of the Wage Boards; but upon the other points of difference a conflict ensued between the two Houses, which resulted in the final decision that the Boards are to be elective, and that outworkers will not be required to obtain a permit, but, if engaged in the manufacture of clothing or wearing apparel, must register their names and addresses with the chief inspector, for the confidential use of the Department, and must answer all questions put to them by inspectors as to the names of their employers and the rate of remuneration. The Chief Secretary had explained in the Assembly that the Government desired to obtain the registration of outworkers in order that they might know from the individuals themselves the addresses at which they were working, and whether they were being paid in accordance with the prices fixed by the Boards. It is also provided that a sub-contractor, equally with the occupier of a factory, must keep the prescribed record of all work given out by him.

The furniture trade, as has been seen, is one of those for which the Governor in Council may cause special Boards to be elected; but it has been realised that, in the cabinet-making branch, owing to their superior numbers, the Chinese would obtain a controlling voice. This difficulty was met by an amending Bill which authorised the nomination of these Boards. Other sections of the Act also aim at the protection of the white workman: one Chinaman is to be deemed to constitute a factory, and no person employed in a factory or workroom in the manufacture of any article of furniture is to work on a Sunday, after two o'clock on a Saturday, or between five o'clock in the evening and half-past seven in the morning on any other day of the week. Furniture made in Victoria is to be stamped legibly and indelibly in such a manner as to show whether it was manufactured by white or Chinese labour. It is noteworthy that, through the Boards which will fix the minimum rate of pay in the baking and furniture trades, the Victorian Government are making their first attempt to regulate the labour of men; in the other trades affected by these Boards women form the vast majority of the workers.

The general provisions of this Act as they affect factories include greater stringency in the sanitary requirements, in the limitation of the hours of labour of women and boys, and in the precautions against accidents. Laundries and dye-works are constituted factories, and the powers of inspectors are in several respects strengthened.

The sections dealing with shops also deserve a word of notice. The necessity for further legislation was based by the Chief Secretary on the ground that under the existing law Municipal Councils were not bound to give effect to petitions received from a majority of shopkeepers, and could only bind their own districts. Besides, the penalties imposed for contravention of any law or bye-law had, in many cases, been so small that shopkeepers had been able to ignore it with practical impunity. He therefore proposed that petitions should in future be addressed either to the Governor or to the local authorities, that a metropolitan district should be constituted so as to render possible uniformity in the hours of closing shops, and that the penalties should be on a fixed scale. These proposals were embodied in the Act, as were others which provided that assistants in shops should have a weekly half-holiday, and that women and boys should not be employed for more than a fixed number of hours in a week or day, nor for more than five hours without an interval for meals, and should have the use of adequate sitting accommodation. These provisions, however, were not to apply to the categories of shops excluded from the operation of previous Acts unless extended to them under regulations made by the Governor in Council. Soon after the passage of the Act a strong feeling arose among the shopkeepers of Melbourne and its suburbs that, as assistants had to receive a weekly half-holiday, shops should be closed upon one afternoon in the week; but opinions differed as to whether the day should be Saturday or Wednesday. The shopkeepers in the city were disposed to favour the former, those in the suburbs were divided in their views.

The Act should be regarded as a humane attempt to minimise the sufferings of the outworkers and to improve the conditions of labour of the toiling masses of the population. The appointment of the special Boards is regarded with sympathy even by those who doubt the possibility of enforcing a minimum wage in the case of persons whose competition is intensified by the fear of starvation. Two general considerations suggest themselves: that a vast discretionary power is vested in the Executive, and that the inspectors will be confronted with a task of hopeless magnitude. On the first point it is to be noted that the Governor in Council, acting naturally upon the advice of the Chief Secretary, may not only exercise the powers already mentioned, but may extend the provisions of the Act or any of them to any shire or part of a shire, and make regulations upon a large number of subjects connected with the efficient administration of all the Factories, and Shop Acts. As regards the inspectors, who are eleven in number, it is to be feared that, though they may invite the co-operation of the police, they will be unable adequately to supervise factories, watch the labour of the single Chinaman, protect the home-worker from the tyranny of the contractor, and assure to assistants in shops the conditions to which they are legally entitled. They will undoubtedly be fettered by the unwillingness of the workers to supply information which may lead to the loss of their employment.