Asian Studies Program

Chinese Australia

Digital Documents Record

1252 Clarke, J.L., The Chinese Case Against the Chinese Employment Bill, Melbourne, 1907

Full Document Caption:
This pamphlet was written by J.L. Clarke drawing on a similar pamphlet written by William Ah Ket and also with Ah Ket's assistance. The pamphlet argues against the introduction of the 1907 Factories (Employment of Chinese) Bill on a number of levels. It discredits arguments put forward by the proponents of the Bill, suggests that the Bill is unnecessarily harsh, that legislation should not discriminate on the basis of race and that this issue should be seen separately from immigration issues. The paper also questions the legal veracity of the Bill questioning whether States have the power to restrict the rights of naturalised citizens.

Source: Clarke, J.L., The Chinese Case Against the Chinese Employment Bill, Melbourne, 1907

Region: Date From: 1907 To: 1907

This document is available in two possible forms:

1. Scanned original version

"Sorry no scanned document available"

2. Searchable text version (below)

The Chinese Case against the Chinese Employment Bill

"How comes it to pass that the sight of that flag always raises the spirits of Englishmen? Is it because it has always been associated with the cause of justice, with opposition to oppression, with respect for national rights, with honorable commercial enterprise, but - if it were never to be hoisted except as it is now hoisted on the coast of China, we should recoil from its sight with horror."

Arbuckle, Waddell & Fawckner, Printers, 20 McKillop Street.



The following pages were written at the request of several of the leading Chinese manufacturers, and of others who were desirous that public attention should be drawn to the objectionable features of the Chinese Employment Bill. The facts stated in the pamphlet are not assumed on hearsay, but are throughout the results of independent enquiry and investigation. I am considerably indebted to a somewhat similar pamphlet published last year by Mr. W. Ah Ket, of Selborne Chambers, Barrister-at-Law, and have had throughout the benefit of his knowledge and experience. It must be understood, however, that for the legal opinions expressed the responsibility is mine.

The pamphlet in no way assumes to be a complete statement of the objections that may be urged against the proposed Chinese Employment Act 1907. Various political, social and legal considerations have been left untouched, partly because of a desire to avoid undue length, and partly, that their effective treatment would demand a detailed and ethnical legal argument, unacceptable to laymem. The Chinese on the present occasion can only appeal to the moral sense of the community, and ask that English administration and English justice should not be tarnished by the acceptance of a proposal that violates every principle of fair, honest, and Christian-like dealing.

September 16, 1907.

The Chinese Case against
The Chinese Employment Act 1907.

The proposed "Chinese Employment Act 1907" merits more than a passing inquiry. In its main provisions it provides that no Chinese person, whether employer or employee, shall, after November, 1901, he allowed to work in any factory or workroom unless during the month of September he has been similarly engaged and has obtained from the Chief Inspector a license authorising him so to work or to be employed. The application for the license must be made within one month from the commencement of the Act, and the onus of proof that the Chinese person so worked or was employed is thrown upon the applicant. The license remains in force for twelve months, and must be annually renewed and a fee paid. No distinction is drawn between aliens and British subjects the Act applies to "Chinese persons," and by section 69, sub-section 6, of the Factories' and Shops' Act No.1975, "Chinese" includes persons having a Chinese father and mother. Section 2 (15) of the proposed Bill, however, provides that the measure shall not apply to any subject of His Majesty born within Victoria. Under different titles, a similar Bill has been presented to Parliament for the past three years, but on each occasion has failed to become law. The pertinacity of its introduction warrants the assumption that on the present occasion its ministerial sponsors will frankly state the arguments they advance for a proposal so subversive of the usual fairness of English legislation.


The meaning of the proposed Act is fairly clear. Its object is the ultimate extinction of Chinese employment, and among all Asiatic races singles them out for special treatment. Japanese, Hindus, etc., are not affected; but unless a "Chinese person" shall have been engaged in work during September, he is practically deprived of all opportunity of gaining a livelihood. The text of the Bill is somewhat difficult to construe. Whether the suggested license will permit of employment generally, or in only one branch of trade, are matters upon which it is not necessary to offer any definite opinion at the present stage. It is sufficient to observe that the Bill strikes a direct blow at the Chinese, singles them out for special treatment, and subjects a section of the Victoria community to a denial of many of the liberties of free citizens. Is such a course of action warranted by facts, or approved by the people of this State, who agreed to unite in one indissouble Commonwealth, "humbly relying upon the blessing of Almightly God"?


The Bill introduced by Sir Alexander Peacock, and as outlined above must appeal to every reasonable man as a desperate remedy. Admittedly its object is to lessen the reputed evils of Asiatic labour and stamp out the alleged unfair competition which (to follow a leading European manufacturer) "is fast ruining the furniture trade." The justification of the suggested legislation is based upon the assumption that the Chinese in that trade work at lower rates than the established minimum wage; that their hours of employment are longer; that they persistently break the law; and are such shameless liars that neither the ingenuity of factory inspectors nor the utmost efforts, of the police are sufficient to secure a conviction for undoubted offences. Hence the supporters of the anti- Chinese agitation have of late years adopted a new line of attack. They urge; the uselessness of existing factory legislation. The Chinese must be swept away, root and branch; the articles they produce must be removed from the market, and the European worker, having disposed of his troublesome competitor, may then at his leisure proceed to show that he is infinitely the better man. Meantime there is no lack of assertion that the European worker is superior in artistic refinement, greater in skill, and faster in manufacture. Yet, notwithstanding these manifold advantages, he is said to be seriously embarrassed by his Chinese rival, and can only demonstrate his powers when he has removed his inferior from all possibility of competition.

The cogency of the above logic is not too apparent. The Chinese are not called upon to prove a negative. They may reasonably ask for something more than the obiter dicta of Messrs. Fallshaw and Johnston, something better than sweeping assertions from the Secretary of the Furniture Employees' Union, unbacked by evidence and unsupported by a fair statement of facts. If the Chinese persistently break the law and fail to adhere to the requirements of the legislature, the administration can but do its duty; Chinese law-breakers can expect neither favour nor consideration from the community. British justice, however, demands that the accusation of guilt should be fairly proved before the punishment is awarded. Hitherto as against the Chinese, assertion has taken the place of proof, and prejudice received the imprimatur of disinterested philanthropy. The evils of Chinese labour form a favourite topic of would-be members of Parliament (and it is said that the workers' union comprise not a few), and of those who, for lack of a more popular subject, are content to use one already hackneyed and well worn. Apparently in some quarters it is of little use appealing to boasted British justice. The appeal in the present instance is made to the common sense of the community, and to that spirit of national righteousness which we have been told "exalteth a nation," and establishes its supremacy above all others! It is to be hoped that the appeal will not be made in vain.


It must be carefully borne in mind that the question now at issue is not the expediency or desirability of prohibiting further Chinese immigration. On that matter the Commonwealth Parliament has already spoken, and the duty of Europeans and Chinese resident within Australia is to loyally accept the decision. The Victorian Parliament has no power to interfere in the question of immigration. Matters affecting the external relations of the Commonwealth are entirely in the hands of the Federal government. The existing legislation provides ample guarantees that the policy of a White Australia will be faithfully observed. Upon the merits or demerits of the principles adopted there is no need to dilate. It is sufficient to observe that even the most rabid of the Chinese opponents must admit that those who have legally taken up their abode in Victoria are entitled to fair and equitable treatment. Rightly or wrongly, the State conceded certain rights and privileges; it cannot without grave inconsistency take away the original concessions. So far as the State Parliament is concerned, the question of allowing further immigration does not arise. Sir Alexander Peacock's Bill deals on with Chinese who are already in Victoria, and who from time to time have settled there under the provisions of the law and in pursuance of existing treaties. Shall the few Chinese who remain receive fair and equitable treatment, or, shall they be persecuted by a course of action wholly unwarranted by principle or expediency, and condemned alike by the professed doctrines of Liberalism and of the Labour party? Official statistics indicate that during the last sixty years there has been a steady diminuation of Chinese in Victoria. During the early fifties the number was estimated at 45,000. The census returns of 1861 gave the number at 24,732. In 1891 the Chinese had decreased to 9,377, while in 1901 there was a further falling off to 6,814. Thus, between 1850 and 1902, the Chinese population had decreased by 38,186. Subsequent immigration returns show a continued decrease, and it is absurd to suppose that the existing number of Chinese should occasion any heart-burning on the part of the community. Australians of all peoples are bound to recognise the need of national comity and it is to be presumed that in any legislation affecting the people of other countries, the Federal authorities paid due regard to international obligations. If Australians desire to limit their intercourse with other peoples, their legal right to do so cannot be denied. Great Britain, in one instance, saw fit to urge a contrary doctrine towards China, and did not hesitate to spend both blood and money in its assertion.

The question under consideration does not involve the assumption that the Chinese of Victoria are at liberty to disregard the industrial conditions that Parliament has been pleased to impose. On matters affecting the rates of wages, sanitary surroundings, and hours of labour, the proper authorities have already decided, and if the Chinese break the law, they must suffer the consequences which the law provides. So long as they desire to remain Australian citizens, so long must they give ready and willing obedience to the obligations of citizenship. All persons are equal before the law; all are subject to duties, and every man is the possessor of certain inalienable rights. Such is the fundamental creed of democracy; and the Labour party, of all parties, cannot afford to permit of any variation of its main principles.


Briefly, the subject matter of this pamphlet may be stated as:-
1. Do the Chinese work under different conditions to Europeans? Do they accept lower rates of pay? Do they persistently break the law?
2. Does the conduct of the Chinese warrant the drastic legislation proposed?
3. Is it constitutional for the Victorian Parliament to pass special legislation materially affecting the rights of naturalised and natural born British subjects. In other words, is it competent for the Victorian Parliament to abrogate privileges already conceded by law and confirmed by the Commonwealth?


Factory legislation in Victoria aims at securing to the worker a reasonable rate of wage. No one questions the wisdom of the determination, and the law provides adequate means of enforcing the intentions of Parliament. Yet the assertion is persistently made that the Chinese work for less than the minimum wage, and so act to the detriment of the European employee. According to the last report of the Chief Inspector of Factories, the average wage paid to European workers was £1 15s. 11d. "The statistics supplied by the Chinese," remarks Mr. Ord, "indicate that they pay an average wage of £2 10s. 6d. per week, or 14s. 7d. more than the European."

Such a possibility on the part of the Chinese apparently shocks the conscience of Mr. Ord. He refuses to accept the position, and his reasons are more curious than convincing. "I place no reliance whatever," he writes, "on the statistics supplied by the Chinese, which indicate a minimum wage as being paid in all cases, whereas it is notorious that they are paid at piecework rates…. It seems to me to be quite clear that to complete with the furniture worker. I have never heard it alleged that they are much better or quicker work-men. On the contrary, the European is admittedly the better, and generally is also the quicker worker. The working hours of the Chinese are limited by law, and are the same as those of European workers."

Mr. Ord. assures the community that the European works no longer hours than the Chinese, and "is admittedly the better and generally the quicker worker." Then why is the competition feared? Does quality count for nothing in the manufacture of furniture, and is not increased pay amply compensated by an additional out-put? It is asserted ad nauseam that improved industrial conditions and better wages, by adding to the workers' standard of comfort, materially increases his efficiency, and is in no way a tax upon the general cost of production. Are the Chinese so foolish that they fail to recognise the common sense of that position? Inspector Bishop states, in the same report, that the Chinaman "is as fond of his leisure as any European;" possibly he takes pleasure with equal sadness; but obviously, with a limitation of his working hours, his lower rate of pay, if it exist, must have its counter-balance in a decreased efficiency.

The figures supplied by the Chief Inspector of Factories in his latest report almost suggest that he has failed to understand their meaning and import. In 1906 the number of Europeans engaged in the furniture trade, not including the wire mattress and overmantel makers, was 801. Of these, 345 were below the age of 21 years; 455 received the minimum wage, and one, curiously enough, was engaged in piece-work. Of the Chinese, 509, out of a total of 530, were employed at the minimum wage.

Thus it will be seen that of a total of 834 European workers, 345, or 42.36 per cent. may be classified as boy labour, receiving approximately an average wage of 14s. 7d. Will Mr. Ord say how much of the boy labour is engaged in producing articles similar to those manufactured by the Chinese? If he will make a fair investigation he will find that the European rate of wages, article for article, is undoubtedly less than that of the Chinese.

The Chief Inspector states that it is impossible to get definite information from the Chinese employees. The reason for the impossibility he does not give, but has he experienced any trouble in obtaining exact information from European workers in the employ of Chinese? It may be unhesitatingly asserted that in such cases the Chinese manufacturers pay not less than the full minimum wage. Mr. Ord trespasses too much on the common sense of the community when he asserts that Chinese will consent to receive less than the law allows. They at least can drive as hard, if not harder, bargains as their European brethren. As a plan matter of fact the Chinese has specialised, and his organisation of labour, article for article, has become superior to the European, and the superiority largely accounts for the difference in prices. Any fair-minded person who will watch representatives of either race at work will have no difficulty in arriving at a like conclusion. Mrs. Ord argues that if the Chinese work like hours and produce equal quality to the Europeans, they can only sell cheaper by working for less wages. It may well be asked if Mr. Ord, in any of his excursions into logic, ever paused to consider the commonplace fallacy of incomplete disjunction. His other argumentum ad hominem is too apparent for words.

Fortunately for the proper understanding of the position, several of the Chinese manufacturers are prepared to publicly pit an equal number of Chinese workers against Europeans engaged in a similar class of employment, and demonstrate that in the production of like articles Chinese skill and organisation is superior. If this challenge is accepted - and it is here authoritatively made - the outcome may possibly convince Mr. Ord that his strictures on the rate of wages need some modification. In any event, are Messrs. Fallshaw and Johnston prepared to submit to the test?


If, as asserted by Mr. Ord, the Chinese employer persistently pays less than the minimum wage, and can only "cut prices" by compelling the employees to work for less than legal rate," it becomes difficult to understand why several Chinese manufacturers employ European workers. It is unreasonable to suppose that the Chinese manufacturer will consent to lose money; his attitude under such circumstances is in no way different from his European rival. The Chief Inspector may safely assume that the Chinese are no more philanthropic in business than the representatives of any other race, and he may possibly explain why they employ Europeans, and why they pay more often than not a higher wage than the minimum.

The following Europeans are in the employ of the under-mentioned Chinese firms, and the wages paid are set out opposite the respective callings:-

At 69-71 Lonsdale Street, Furniture Manufacturer -

Sawyer £2 14 0
Cutter 2 11 0
Polisher 2 11 0
Apprentice 1 0 0
Messenger Boy and Improver 0 6 0

At 8-14 Little Leichardt Street, Furniture Manufacturer -

Turner £2 11 0
Cabinet Maker 2 11 0
Turner 2 11 0
Turner 2 11 0
Apprentice 0 12 0
Message Boy 0 9 0

In each case mentioned above the European employees and the Chinese manufacturers are prepared to make statutory declarations that they receive and pay the above wages without deduction or return of any kind. Surely evidence of this character cannot be lightly set aside!

Mr. T. Campbell, who is a French polisher to the trade, writes as follows:-

297 Exhibition Street,

Melbourne, 27 August, 1907

With reference to Europeans working for Chinese, I am in a position to inform you on the subject, having for the past fifteen years been closely in touch with them. I have my own little shop, and at times do a lot of their work, and find that an honest worker can make considerably more than the minimum wages out of their work. To substantiate what I say, I can produce a dozen polishers who I have employed at different times who could swear that I have never paid them less than the ruling wage of £2 8s., and latterly £2 11s.

These people have been greatly misrepresented to the public by such men as Mr. Fallshaw, who stated through the press that they did not average more than 10s. per week. I know plenty of cabinet makers that get £3 per week. There are a lot of Europeans working different branches of the trade for the Chinese, and they seem, in the majority of cases, to be in a far better position than if they were working for European employers.

The opponents of the Chinese manufacturers have learned that a certain class of furniture was recently sold to a person in Elizabeth Street at 27/- per article. Immediately the sweeping assertion was made that the rate of wages paid to the workers must have been less than the minimum. Possibly the Chief Inspector has received positive assurance to that affect.

As a matter of fact, however, the Chinese cost of the articles was as follows:-

Glass Movements
Labour, 8 hours

The following extracts are taken from the Chief Inspector's official report for 1905:-

MR. INSPECTOR BISHOP:- "It is generally represented that Chinese furniture is all rubbish. Certainly there is a good deal of it that is rightly classed under the definition. On the other hand, there is no doubt whatever that the Chinese have improved greatly, and that some of them are now turning out furniture that is really high class. At one time they ranked as copyists… but now, although several of the best makers still only copy, there are others who, in addition to doing the work from drawings, also provide their own designs. That the Chinese are advancing with the times is very evident from the fact that some fot hem are introducing the latest improvements in the way of machineryinto their factories."

"I find that the Chinese are very keen on having their factories made cleaner, and have been approached by a number who have invoked my aid or influence with the all-powerful landlord, in order to get their houses re-papers or lime-washed."

The same report throws light upon the conditions of the trade for 1905 among Europeans. It can hardly be assumed that the Chinese competition was extremely injurious.

MR INSPECTOR COLLOPY:- "The few European factories in my district have been busy throughout the year. The manager of one informed me he would employ several more Europeans if he could obtain them. Towards the end of the year a manufacturer told me he had advertised for men, and offered more than the minimum wage, but with not success.

MR INSPECTOR POWELL:- "In this trade (mantlepieces and overmantels) the determination is being easily complied with, as there is more work to do than there are men to do it. Advertisements have been put in the local papers, as well as those of Sydney and Adelaide, calling for competent hands, but none were forthcoming, so the trade has had to apprentice a number of lads."

INSPECTOR BISHOP:- "The European workmen have control of the chair-making and upholstering trade, but, although there are no Chinese to compete with the latter trade, I am continually hearing of the cutting prices at which work is performed."

The official report for the year 1906, which has recently been published, shows that during the last year the European manufacturers maintained their previous prosperous condition.

The several Inspectors report on the furniture trade for 1906 as under:-

MR INSPECTOR BISHOP:- "From what I can learn the European furniture makers have had a much improved year … The only trouble complained of, as far as I can tell, is that there is a scarcity of good workmen available."

MR INSPECTOR COLLOPY:- "I have only a few factories in my district; they have been busy throughout the year. I am informed that if more European tradesmen were available, work could easily be found for them."

Furthermore, has the Chief Inspector ever had his attention drawn to the following report in a Melbourne daily newspaper? Surely it forms a set-off to the frequently repeated statement that the Chinese cut prices!




"Chinese could not compete with Europeans in the manufacture of cheap extension tables, and they bought from Europeans for their customers."

This statement, said to have been made by Mr. H. Pang, a Chinese manufacturer, at a meeting last night, was brought to-day under the notice of the manager of the furniture department of a leading firm. He was asked if the statement was accurate, and if so, what was the reason.

The manager said that it was true that Chinese did not go in for making extension tables, and that they bought them sometimes presumably for customers…

"Is it because any special skill is required that the Chinese do not possess?"

"No, no; the Chinese are wonderful copyists. They can manufacture almost any lines they like in the furniture trade. The fact is that the prices for the manufacture of extension tables are cut very fine…."

"Then it is not due to Chinese competition that prices are low in this line?"

"No; nor is it due to such competition that prices for upholstered suites are very much lower than fifteen or eighteen years ago. Chinese do not go in for that line either."


It is hardly possible to deny that the legislation directed against the Chinese is at once sufficiently drastic and unbending. For their benefit the rules of the common law have been altered, and the old maxim, that the accused shall not be required to prove himself innocent has been practically set aside. Under such circumstances it might have been expected that the Chief Inspector of Factories would have found no difficulty in compelling a sufficient compliance with the law. He, however, with a charming frankness, confesses that the problem is beyond his powers. Despite the efforts of the police and the energy of the police, Mr. Ord has "once more to admit" that he knows "of no way of compelling: Chinese employers "to pay the legal rates." Such an admission is doubtless serious, but it prima facie suggests that the Industrial Department is insufficient for the task of administration. Are the Chinese so inordinately clever that they can evade the just demands of Mr. Ord? Is their system of organisation so perfect that the authority of the King's Representative palls into insignificance before the non possumus of the Chinese workers? Such a position is hardly credible, and yet the Chief Inspector offers this gratifying tribute to British administration and to British capacity!

We are on sure grounds when we turn to the official records. From 1st January, 1897, to 18th August, 1906, there were 9 prosecutions against Chinese for breaches of the Wages Board determination, while for the same offence during the same period there were 20 prosecutions against Europeans. Likewise 12 prosecutions were instituted against Chinese for not stamping furniture and 85 against Europeans. What is the answer to this? Is the statement still persisted in that Chinese cannot be detected? What efforts have been made in that direction? Has any Chinese Inspector who can read the language ever been appointed? Mr. Ord appends to his report a summary of the prosecutions instituted under the Factories and Shops Act during 1906. Or [sic] these 43 were apparently against Chinese, and 278 against Europeans. Did his officers experience any difficulty in securing the conviction of the 43 charged? It hardly appear so, for of the individuals charged, all were convicted; there were no acquittals.


The stalking-horse of the Chinese agitation is that the average Chinaman lives cheaply. This is one of the generalities for which no statistics are quoted and no proof given. It may, however, be emphatically stated that the Chinese cabinet makers as a class spend no less on food than Europeans in the same trade. It may be that they save money by being more abstemious; for they do not as a rule take intoxicating liquor except, perhaps, at meal times. Most reasonable men, however, will commend rather than condemn for their temperate habits! Many of the proprietors of the large factories are men of excellent reputation - married men, living away from their factories in the suburbs - some of them Christians, doing good work in their respective Churches. A visit on Sunday or holiday will find such of them as have not adopted a European "table" indulging in a menu that with no stretch of imagination can be called living on "the smell of an oiled rag."

Chinese good taste forbids the tu quoque retort that the methods of living of many of the European workers are not such as to excite unqualified admiration. The records of the charity organisations, of our prisons and reformatories, unfold a sorry tale in that respect. No one denies that among the Chinese there are individuals with whose presence the community could conveniently dispense. The same holds good in regard to Europeans. The police authorities have hitherto found their efforts frustrated owing to the absence of an effective Vagrancy Act. It has never yet been pretended that the measure was desired for the control of Chinese. On the other hand the fact is undisputed that the latter as a class are a peaceful set of law-abiding citizens, patient of control, and more amenable to discipline than many of their traducers. Such, at least, is the national characteristic, and there is nothing to suggest that the free conditions of Australia have in any way altered those attributes.


In the records of Parliament will be found a petition by representative of the European employers and employees to the Legislative Council in 1906. In itself it furnished one of the strangest contributions ever made to a serious controversy. It is impossible to believe that the statements it contains are fully endorsed by the greater bulk of the workers. The petitioners assert that unless the Chinese Restriction Bill is passed, white workers will be gradually driven from the trade. As a matter of fact, Inspector Bishop in his latest report states that the number of Chinese engaged in the furniture trade has decreased. The petitioners state that in 1905 the number of workers in all branches of the furniture trade was 708 Chinese and 1,012 Europeans. The Chief Inspector of Factories reports that in 1906 the numbers were 530 Chinese and 1,165 Europeans.

Hence it appears that, without the legislation demanded by the petitioners, the number of European workers increased, while the Chinese decreased. Furthermore, there was an unsatisfied demand for good workers. It will be interesting to hear Messrs. Fallshaw and Johnson's explanation of this development. Possibly, by similar reasoning to that already in vogue, it may be ascribed to the Chinese. But it is perfectly clear that Sir Alexander Peacock's Bill, even if required, is only called to meet the circumstances of a lessening evil, if evil it can be called.


The petitioners, however, are not content to labour under an unfortunate stigma. "The Chinese," they assert plaintively, "are constantly held up as patterns of industry or law-abiding citizens." Apparently the inference is that the European is not so. No sensible man ever believed that the Anglo-Saxon would require an apology or even a vindication. But the petitioners offer both. The Chinese, they add, "are no more industrious than the white men they have displaced, and are certainly the most persistent law breakers in the State." This excellent recommendation will doubtless afford the utmost gratification to every European heart. Possibly it may add another reason for the early termination of the Japanese alliance. The sweeping assertion of the last clause, however carries its own refutation, but the petitioners give reasons in support. "In view of the devious ways in which the Gambling and Factories Acts are defeated by them [the Chinese], it is imperative that some definite period be fixed." In this statement one can only suspect the petitioners of unconscious humour. The Chinese evade the Gambling Acts! Are Europeans guiltless in that respect? Recent experience suggests that the forces of law have been flouted and defied by Europeans. The names of the Collingwood Tote and of its adherents are scarcely forgotten, but is there any sensible man in the community who believes that, notwithstanding the Gaming Act, Gambling is not practised? The petitioners' case must be weak indeed to demand an argument to laughable and absurd. Are the Chinese such persistent breakers of the gambling laws that they can be accused, as Europeans have been, of bribery, of intimidation, or ruffianism, or swindling, and of the institution of a reign of terror?


Messrs. Johnson, Fallshaw, Wright and Dobson offer, in the second paragraph of their petition, the following interesting observation:- We respectfully desire to point out," they remark "that this is no question of sentiment on racial antipathy." This admission serves to limit the enquiry, and is precisely what the Chinese have said throughout. But the old principle of Timco Danaaos et ferentes dona still holds good. If it be not a "racial question," are the petitioners not bound to condemn the Chinese as individuals, and not as a class? If it be not a racial question out one Chinese worker to suffer for the faults of his alleged law-breaking countrymen? Ought the son to be refused employment because his father has accepted less than the minimum wage? Admittedly every individual must keep the law, but the man who is willing to obey should not be denied the opportunity of proving his worth because others may or may not have acted in the opposite spirit. If it be not a racial question (and we have an authoritative assurance that it is not so), then the insulting suggestion of licenses to Chinese is wholly illogical. If it be not a racial question, where is the warrant for assuming that what one Chinaman does will be done by another?

The plain position is that while the petitioners deny that the matter is racial, the whole of their arguments rest upon the assumption that it is racial throughout. The question undoubtedly ought not to be a racial one, and if the question of race is excluded, the petitioners have neither argument nor assertion left. "Consistency is occasionally a doubtful virtue in politics, but honesty has yet its charm."


But the petitioners are moral men, and furnish some excellent moral platitudes. "We are satisfied," they state, " that no injustice should be done any man by reason of his misfortune, and in this we have no desire to exclude any legitimate worker; all we respectfully ask is that when a Chinese leaves the trade he should not return to it or be replaced by another." Stated with the glib uncertainty of the petitioners' grammar, the sentiment thus expressed seems to be a pious industrial rendering of ethical Christianity. Stated in more blunt English, it asks Parliament to turn the existing Chinese into a close corporation of workers, deprive their children of any opportunity of learning the father's trade, and refuse to the son any right to succeed to the business his parent has created. It matters not that the son is a natural-born British subject. It is immaterial that the existing treaties between China and Great Britain provide for the protection of the person and property of the subjects of either Power when within the dominions of the other. "There is no evidence," remark the petitioners, "that any children of Chinese employed in factories would be affected" by the restriction. Then why ask for a restriction that has no evil or possibility of evil to redress?

To criticise the petition in detail would be a task at once tedious and unprofitable. The curious may read it in the records, and possibly a Chinese maxim will serve to elucidate its underlying ethical assumptions: "Principles shine like sun and star, and are immutable; practice is a lute-string, to be tuned and changed." It is well to observe, however, that if the proposed Bill of 1906 had been passed, the petitioners "did not anticipate any immediate increase of trade," although it might possibly benefit agriculture! Doubtless for this assurance the farmer will express his gratitude in due course. Apparently Messrs. Fallshaw and Johnson and Company are disinterested philanthropists, working only for posterity. Altruism of such a character is truly delightful.


Mr. Ord states that it is notorious that the Chinese employers pay piece-work rates instead of weekly wages. As usual, no evidence is offered in support of the assertion. If it be a matter of general notoriety, no difficulty should be experienced in that respect. The sting of the charge, however, lies in the innuendo that piece-work means less than the minimum wages. Mr. Inspector Bishop reports that

"in fixing the piece-work rates the Chinese workers have one advantage over their European brethren, in that, without consulting the wishes of the masters in the matter, they draw up the scale on their own ideas, have it printed, and insist on the manufacturers purchasing a copy, which runs him into a cost of 10s."

Is it to be presumed that, if the above statement is true, the Chinese workers are so blind to their own interests that they willingly force upon their employers a rate of wage less than the law allows? It is possible that some of the Chinese work at piece-work rates, and if the truth be known, some Europeans also. If this be a breach of the law, why are not prosecutions instituted against both Chinese and Europeans? Mr Bishop says that there is no doubt about the matter. Then wherein lies the difficulty of prosecuting?


Enquiries show that when piece-work is paid, it is not because it becomes cheaper to the employer, but the men sometimes demand piece-work, because they can make more at it. It is the fast men who like the piece-work; the slower ones prefer the weekly wage, and insist on getting it. To imagine that a Chinese workman is less appreciative of money than a European is quite a fallacy. He will get all he can for his work, more especially when he knows that a statute enables him to do so.

But there is another aspect of the piece-work question. The Legislature intended that piece-work rates should be fixed by the Wages Board, as well as weekly wages rates, and directed that such piece-work rates should be based upon the wages rates. Why has the Board not done so? Are the Chinese to be blamed because some of them work out for themselves a duty which Parliament has cast upon the Board? Section 88 of Act 1975 provides the "notwithstanding anything contained in this Act the price or rate of payment to be fixed by any special Board for wholly or partly preparing or manufacturing any article of furniture shall wherever practicable be both a piece-work price or rate and a wages price or rate. The piece-work price or rate shall be based on the wages price or rate fixed by the Board.


But the Bill of Sir Alexander Peacock is directed not only against the furniture trade, but all other occupations in which the Chinese may engage. Section 2 (1) provides that after the first day of November, 1907, no Chinese person, whether an employer or an employee, shall work without license in any factory of work-room. Apparently the unfortunate Chinaman, resident in Australia under the privileges conferred by treatie and existing law, is to be denied the right of work unless he can show that during the September he was engaged in a factory or work-room. Common humanity suggests that a provision of this character is beyond reason. Must the unlicensed Chinaman become a charge on the community, beg or steal, or engage in the occasionally profitable occupation of preaching the Gospel? It is tolerably certain that his services as a "labour organiser" will not be appreciated. Under the promptings of interested institutions, laundry work has been largely circumscribed to the unfortunate Chinaman.

Every Chinese Laundry (whether one or more men work therein) must be registered as a factory under the Factories' Act. No Chinese laundryman may work before seven o'clock in the morning, nor after five in the afternoon, nor on a Saturday after two o'clock, nor on Sunday at any time. Should he trespass upon these statutory limits by as much as a minute, he is haled before the court, and fined for his heinous offence: he is branded as a law-breaker.

But the European laundries are on quite a different basis. The ordinary European laundry need not be registered, unless there are four or more persons employed therein. The result is that a very great number or Europeans working in twos and threes carry on this business without the necessity of registration, and without official control over the hours of work or rates of pay. These are not law-breakers. They have no industrial laws to break. It is quite a common thing of an evening to see in the suburbs women working at all hours, without let or hindrance. Japanese may do the same, and even Hindus; but not the Chinamen. Yet it is suggested in certain quarters that the Chinese should be still further restricted that they should be legislated out of the business altogether.

This modest request is founded on the utterly false statement that Chinese laundries are ousting the Europeans from the trade, whereas the truth is that, ever since the year 1900, there has been a steady annual increase in the number of registered European laundries. The following figures have been taken from the official reports:-

Year. Europeans Employed (male and female)
1900 412
1901 521
1902 568
1903 565
1904 594
1905 628
1906 650

No figures are available concerning the unregistered European laundries, but it will not be reasonable to infer that they have increased in proportion to the registered ones. Then there are the gigantic "religious institutions," which are specially exempted from the Act, where all the water is supplied free, where there are no rates to pay, and where there is no limit to the hours of work, and no control over the wages. That is the sort of competition which must not be interfered with, while the Chinese are to be hounded out of the trade! Certainly the ethics of the situation are somewhat difficult to follow.


In resisting the passage of a Bill so seriously affecting the welfare of a section of the community, the Chinese can only appeal to the moral sense of the people or to such rights as the law of Australia may allow. Sooner or later the question must arise, at least, in the case of naturalised Chinese, if it is competent for the Victorian Parliament to pass a law on the general basis of the Chinese Employment Act 1907.

In the first place, it may well be asked if naturalisation is to be treated as of no account. Obviously the power to restrict the general rights of naturalised Chinese involves a similar power in regard to naturalised Germans, French, Japanese, etc. Naturalisation for the present purpose may be compendiously describes as "the process defined by law by which an alien renounces his original allegiance, and is converted into a subject or citizen, entitled to all the rights and privileges of natural-born subjects and citizens in the country in which he is domiciled."

By Section 52 xix. of the Constitution of Australia, the Commonwealth Parliament has power "to make law for the peace, order, and good government of the Commonwealth with respect to naturalisation and aliens." This power is admittedly not exculsive, but when the Federal Parliament has dealt with the subject-matter, no State Parliament is at liberty to restrict or interfere with the rights, duties, or privileges conferred by the Commonwealth Act. Therefore it becomes necessary to inquire what rights and privileges are given to naturalised aliens, and how far the Commonwealth Parliament has covered the area of naturalisation.


By Section 4 of the Federal Act No. 11 of 1903 any person who, prior to the passing of the Act, had obtained in a State a certificate or letters of naturalisation, is deemed to be naturalised. Hence it follows that the State grants of naturalisation remain in full force and effect, and are given the additional security of a Federal guarantee. The State Parliament, prima facie, cannot take away from the individual any right or privilege conferred in pursuance of the Constitution.

Section 8 enacts as follows: "A person to whom a certificate of naturalisation is granted shall in the Commonwealth be entitled to all political and other rights, powers and privileges, and be subject to all obligations to which a national born British subject is entitled or subject in the Commonwealth. Provided that where by any provision of the Constitution or of any Act or State Constitution or Act a distinction is made between the rights, powers and privileges of natural born British subjects, and those of persons naturalised in the Commonwealth or in a State, the rights, powers and privileges conferred by this section shall for the purposes of that provision be only those (if any) to which persons so naturalised are therein expressed to be entitled.

Section 13 provides that "from the commencement of this Act the right to issue certificates of naturalisation in the Commonwealth shall be exclusively vested in the Government of the Commonwealth, and no certificate of naturalisation or letters of naturalisation issued after the commencement of this Act under any State Act shall be of any effect."


Taking the above Sections together, it appears that naturalisation carried within the general privileges accorded to natural-born citizens, and reserves to the Commonwealth the exclusive right to issue certificates of naturalisation. The proviso of Section 8, however, seems to subject the grant of naturalisation to the discriminations of the various States, and at first blush it may be argued that the States still retain their former right to define the rights and privileges of naturalised aliens. It is submitted that the proviso, even if constitutional, must be restricted to legislation passed prior to the Act, and does not give to the State Parliament the power to take away by future legislation the rights, privileges and immunities granted by the Commonwealth. "Exclusive right" carried with it a broad and well-defined meaning. The States have no power to issue certificates of naturalisation; the Commonwealth has no power to define or create "State citizenship." Where "exclusive power" is given, the conditions regulating the exercise of the power cannot be determined by any other body than the authority to whom the power is given. To assume that naturalisation on the one hand is an exclusive possession of the Commonwealth Parliament, but, on the other, controlled by the State legislatures, is a contradiction in terms. If a person under due process of law becomes entitled to all political and other rights, powers and privileges, and is subject to all obligations to which a natural born British subject is entitled or subject in the Commonwealth, can the States, even by delegation from the Federal power, abrogate the rights the Federal power has already granted?

It may be that the original concession of naturalisation was expressly subject to existing disabilities; but can the Commonwealth stultify itself by reserving to the individual States the right to make the Commonwealth grant of no avail, and of meaning less content? If the Parliament of Victoria decided that naturalised aliens should be refused admission to the military forces and forbidden to take part in the national defence, would the Victorian Act be a sufficient plea in answer to a claim by the Commonwealth Government for the service of the alien? Or, again, if the State should deny the privilege of importing goods to any naturalised alien, would such a denial hold good under the Sections of the Constitution providing for freedom of trade and intercourse? Obviously, the Commonwealth grant of power, once it is exercised, can only be altered and controlled by the Commonwealth itself. A naturalised alien becomes part of the people of the Commonwealth, and "the people of the Commonwealth are those people who are permanently domiciled within the territorial limits of the Commonwealth."

Territorially, such people may be called Australians: but constitutionally they are described as British subjects, or subjects of the "King." "They do not lose their character as people of the Commonwealth by migrating from one State to another, any more than they lose their national character by migrating from one part of the Empire to another, or sojourning in foreign countries. Their privileges and immunities as people of the Commonwealth are secured and guaranteed to them, without regard to their residence in a particular State…. Where a privilege is granted, there must be an exemption from interference or obstruction in the enjoyment of the privilege. Consequently, a State could not pass laws which would operate as burdens and impositions, and prevent the free exercise of Federal privileges." (Quick and Garran, ph. 957, 959.) The grant of naturalisation as a citizen of the Commonwealth is undoubtedly the grant of a Federal privilege.


If the above argument be allowed, and its general tenor is supported by a series of American and Canadian cases, and by general observations of the High Court, it must be conceded that, as against the Chinese who have secured naturalisation, the proposal of Alexander Peacock is illegal, and fails of effect. The broad rule of citizenship implies that "the privileges and immunities of the people of the Commonwealth exist within the sphere of Federal power, and by the Constitution itself the Federal laws are paramount and supreme; they cannot be impaired or abridged by State legislation."

The learned authors of The Annotated Constitution of the Commonwealth appear to concede that under Section 51 (xxvi.), the Federal Parliament has power to discriminate against naturalised Chinese. No arguments or precendents are adduced in support of that opinion, and it is certainly opposed in the general reasoning they adopt throughout. It is sufficient, however, for the present purpose, to maintain that "citizenship" implies equal rights and equal privileges, together with equal protection from the law.

The views of the Imperial Government are somewhat similar. English traditions have steadfastly opposed any legislation of the character proposed by Sir Alexander Peacock, although colonial pressure has compelled a modification of the first refusal. It is notorious that the existing form of the Federal Immigration Act is due to the objections raised in 1897 by Mr. Chamberlain, and previous Secretaries of State have acted in as like manner. In 1876 the Queensland Parliament, by its amending Gold Fields' Act, imposed a license fee on Chinese and Asiatic aliens. Its primary purpose was not revenue, but the restriction of alien immigration. Governor Cairns reserved the Bill for the royal assent. The measure seemed to him one of an extraordinary character, and in its existing form, likely to promote a breach of international comity. In one aspect, he stated, it was contrary to the treaty of Tien Tsin, and the Convention of Pekin, signed in 1860.

Governor Cairns' action and reasons provoked the indignation of the Queensland Ministry. The Premier urged that the action of the Governor affected the self-governing privileges of the colony. The colonial legislature had a perfect right to pass such laws as it might consider necessary for the safety and welfare of the community, and their possible external effect afforded no warrant for disallowance. The Governor, he urged, had exceeded the Royal instructions, and his attitude must be taken as seriously affecting the freedom and independence of Parliament. Measures which were deemed by the legislature as immediately necessary for the prevention of an existing evil should not be delayed by any reservation for the Royal assent.

Earl Carnarvon, the then Secretary of State for the Colonies, supported the position taken up by the Governor. In a despatch, dated March 26th, 1877, he expressed his approval of the reasons which had actuated the Imperial representative, and although most unwilling to interfere in any way with the self-governing rights of the colony, was unable to advise the Queen to consent to the Bill in its existing form. The records of colonial history supply other precedents of an entirely similar nature.


Apart from legal considerations, which in a pamphlet of this character can only receive a very meagre treatment, the main moral objection holds good. Under existing treaties, and in pursuance of the comity of nations, the Chinese immigrated to Victoria. Some of them secured naturalisation, and were received into the fellowship of the community. So far, they have comported themselves with reasonable regard to the obligations they accepted.

At the present time they ask nothing from Parliament but that they may be subject to no greater disabilities than their European brethren, and from the community that they should not be singled out for special legislation. The ex parte statements of trade rivals are not evidence; the jaundice, the arrogance of those who desire to limit the area of competition do not amount to argument. The most dignified exponents of the Anglo-Saxon spirit are not those who on the one hand proclaim the inferiority of the Chinese, and on the other hand assert that, until the backward stranger is removed, the skill and craft of the free and freedom-loving Australian cannot demonstrate to an expectant world how wonderful are the resources of those who, nurtured by Christianity and steeped in the science of the latest industrial developments, are apparently the heaven-born inheritors of the earth. But it seems if we follow Messrs. Fallshaw and Johnston, that the inheritance of over one million Victorians cannot be realised until five hundred Chinamen, of no great pretentions, "no more industrious than the white man," less skilful and less expert, have been branded with Sir Alexander Peacock's proposed suggestion, that, if the Chinaman be not licensed, he shall not work. Well may the astonished Asiatic ask: "If I work not, how shall I eat?"