2nd Parliament · 1st Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
Motion (by Mr. McLean)- agreed to - .
That the lime for bringing up. the report of the Select Committee on Electoral Act Administration be extended to Tuesday, .19th July proximo.
Motion (by Mr. Sydney Smith) agreed to -
That leave oi Absence for one month be granted to the honorable member for Parramatta, on account of illness.
– I wish to ask the Postmaster-General, without notice, if he has considered the question of providing greater facilities for telephonic communication between Sydney and the populous suburban areas lying immediately beyond the present radius’ within which city and suburban rates are charged. He will remember that I asked him a question on this subject on the 19th May last. If any reports have been received, will he lay them upon the table of the House?
– I have obtained a report from the departmental officers as to the advisability of extending the privilege of city and suburban rates for telephonic communication beyond the existing radius. The report is that the present radius includes all existing exchanges, or those likely to be established, which can in any sense be regarded as suburban, and that there is no reason for further extending the distance for free junction lines.
– I wish to know from the Minister of External Affairs if he is aware that it is asserted that many of the Japanese who are indented ostensibly as divers and tenders by certain companies engaged in the pearl-fishing industry of Torres Straits, are really ship’s carpenters and sail -makers, and are employed as such by the companies referred to. Will he make inquiries as to the truth or otherwise of the assertion, and if it be proved to be true, will he take the necessary steps to prevent what is a contravention of paragraph a of section 3 of the Immigration Restriction Act?
– I am not aware of the facts in this case, but I shall cause inquiries to be made, and if the honorable member will give notice of his question, I shall endeavour to answer it to-morrow.
– I wish to know from the Postmaster- General if he will place upon the table of the House the whole of the papers in connexion with the alleged subletting of mail contracts, and especially those dealing with the case of Vines and Levison, to which reference has been made on more than one occasion.
– I am willing to allow the papers to be placed upon the Library table, so that honorable members may peruse them, but, as they are rather bulky, and it would cost a considerable sum to have them copied, I prefer not to lay them upon the table of the House. If the arrangement I suggest will suit the honorable member it can be carried, out at once.
asked the PostmasterGeneral, upon notice -
– Replies will be given as soon as the necessary information, which has been, asked for by telegraph, can be obtained.
asked the Minister of External Affairs, upon notice -
Whether he is prepared to make a statement to the House respecting the case of the Norwegian sailors who, it is alleged, were induced to leave their ship by threats of violence or other pressure from trades unionists in New South Wales?
– I have here a lengthy memorandum upon the subject, which, I think, furnishes the information for which the honorable member asks. It is as follows : -
On the 4th May a letter was received from the secretary of the Federated Seamen’s Union of Australasia to the effect that the Inger, a Norwegian steamer, had left Melbourne on the previous day, leaving thirteen of her crew stranded ashore in Sydney without means of any sort, even their clothing having been taken away.
Mr. Cameron referred me to paragraph b of section 3 of the Immigration Restriction Act. He said that the crew had asked for the rates ruling in the Commonwealth, but were refused, although their vessel was chartered by the Pacific Island Company to trade to Ocean Islands and back, in which trade Australian rates had’ been paid with one or two exceptions. That communication was referred to the Collector of Customs, Sydney, for report. It was ascertained that as there were no coloured members of the crew, no action was taken under paragraph * of section 3 of the Act to hold a muster. The officer further reported having informed the Norwegian Consul, who made a statement to the effect that he had been requested by the master to visit the ship, as a portion of the crew refused to work. Mr. Pauss had done so, and had ascertained that the men wanted to be signed off, and on again at increased wages. The Consul interviewed two of the men, who- stated that they had been advised by the Seamen’s Union not to go at the wages they were receiving, but to insist upon coastal rates, and that if they did so the union would stick to them.
The Consul pointed out to the men that they were breaking the law, that, no complaint had been laid before him officially by them, and stating that, in his opinion, they were receiving very good pay, and were not engaged in the coasting trade.
The officer stated that he ascertained from the charterers that when the vessel was leaving the wharf, at about 6 p.m., the men deserted the ship, the captain took the vessel into the stream, picked up a sufficient crew, and sailed.
On the 7U1 May, the secretary of the Seamen’s Union was informed that, as the practice of the Government hitherto had been to construe the Act so that it did not operate against white sailors, the Minister felt that he should not take such a serious departure as would be involved by applying the Act to these seamen without previous consultation with his colleagues. At the same time, any further particulars obtainable were asked for. In acknowledging that communication on the 10th May, the secretary of the’ union stated that the Inger had arrived in Sydney under charter to the Pacific Island Company, carrying on business for the express purpose of trading on the Australian coast and to the Pacific Islands. The crew, having ascertained the rate of wages payable in the Commonwealth, asked for an increase, which was declined. The master then put thirteen of the crew on the wharf, and proceeded to sea. On his (the secretary’s) advice, the men, who were unable to speak English, were removed to the Sailors’ Home, where they are staying, and are entirely dependent on charity. The captain dumped the men on to the wharf, and steamed away in their presence,, notwithstanding the appeals of the men left behind.
On the 25th May the Collector of Customs, Sydney, was asked to make inquiries as to the condition of the men, and to report whether they were still at the Seamen’s Home, and if so, whether they were destitute; also as to whether they had any prospects of employment, and whether they were regarded as likely to become a charge On the public. If the men were still at the Seamen’s Home, and had no prospect of employment, the Norwegian Consul was to be informed, and asked whether he would make arrangements for their being sent back to Norway.
The Collector of Customs telegraphed on the following day that the men were still at the Sailors’ Home, that they had no money, nor any clothes, other than those they were wearing. They did not appear to have sought employment, as they believed that they would be able to rejoin their vessel on her return. No payment was being made to the Sailors’ Home for their keep, but the Superintendent states that they were taken there by the Secretary of the Seamen’s Union, whom he holds responsible for their maintenance. The men were described as clean, strong, and healthy-looking, but most of them speak English more or less imperfectly. It was difficult to express any opinion as to their prospects of employment. lt was doubtful whether they are the class of men likely to become a. charge on the public. The Norwegian Consul had been seen, and he hari stated that the men left their ship under very exceptional circumstances, and that he does not propose taking any action in regard to them, except with the knowledge and direction of his Government. All the circumstances had been reported to Norway, and he was awaiting instructions.
On the 27th May the Pacific Island Company was advised that the circumstances in connexion with the case had been brought under the notice of this Department, and were asked to furnish particulars of the articles on which the men were engaged, and to state whether there was any understanding that they should receive increased wages when the vessel sailed from Sydney. On the same day the Norwegian Consul was communicated with, and asked what he proposed to do in regard to the men.
On the 30th May the Pacific Island Company acknowledged my letter, and stated that the lager was under charter to Messrs. Crosbie and Co., of Melbourne, and not to the Company, though Messrs. Crosbie and Co. were arranging to carry a cargo of phosphate for them. It was understood that the men left behind were induced to break their contract, and leave the vessel, by members of the Sydney Seamen’s Union. The men had signed on the articles to serve for a period of two years, and there was no understanding or agreement for any increase of wages. The demand for an increase of wages was made on the suggestion of the union, on the ground that the vessel was to trade on the Australian coast, but the company pointed out, as the vessel was to have sailed, and actually did sail, from Sydney to Ocean Island, and will return direct from the island to Melbourne, there could be no question of trading 011 the Australian coast.
The Norwegian Consul replied on the 31st May, stating that a number of the men had explained to him that it was at the instigation and on the advice of the representatives or delegates of the Seamen’s Union that they had left their vessel, and that the delegates had promised to look after them and make the necessary arrangements for them. It was understood that, in accordance with the promise referred to, the union had arranged for board and lodging for the men at the Sailors’ Home; thus, it would appear that the men were really not suffering any distress. The majority had since made a similar explanation, stating that their only reason for leaving the vessel was because the delegates from the union not only encouraged them to do so, but even made threats of personal violence in connexion with the matter.
A letter was written to the Secretary of the union, on the 2nd June, inquiring -
Whether it is a fact that the men were incited to break their contract by the Seamen’s Union ;
Whether delegates from the Seamen’s Union not only encouraged the men to leave the vessel, but even made threats of personal violence in connexion with the matter ; and
Whether delegates from the Seamen’s Union promised to look after the men, and make the necessary arrangements for them.
A reply was received from the secretary of the union on the 6th June, stating that no inducement was held out by the representatives of the union for the men to leave their ship. On the contrary, some of the crew called at his office, and were advised by him to go on board, and under no circumstances to come ashore. The statement that personal violence was threatened is incorrect, as, so far as can be gathered, no threats of any sort were made. He was not aware of any promise having been made by any one; but when the vessel had left the wharf and the men were left stranded, he personally had them sent to the Sailors’ Home as indigent seamen, until such time as he could communicate with the Department of External Affairs.
asked the Prime Minister, upon notice -
Whether, in view of the Australian importance of the questions now being inquired into by the Victorian Royal Butter Commission and cognate questions, he will take steps -
To constitute that Commission, or some other body, a Royal Commission under Federal law?
To provide that its scope and, if neces sary, its composition shall be sufficiently extensive to deal with all Australian produce exported through the instrumentality of agents?
To guard and protect the interests of
Australian producers who hive to export and dispose of their produce by means of agents either in other States of Australia or abroad ?
– The answers to the honorable and learned member’s questions are as- follow -
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable member’s questions are as follow : -
In Committee (Consideration resumed from 14th June, vide page 2305): Clause 32 agreed to. Clause 33 -
If an agreement between the parties is arrived at, a memorandum of its terms shall be made in writing and certified by the President, and the memorandum when so certified shall be filed in the office of the Registrar, and unless otherwise ordered and subject as may be directed by the Court shall have the same effect as, and shall be deemed to be, an award…..
– Under this clause, if the parties to a dispute come to an agreement among themselves, it is declared that the agreement shall have the effect of an award. In other words, the common rule may be made to apply, and parties who are not concerned in the original dispute may be bound by- the agreement.
– I do not think so.
– There is no limitation of the effect of the agreement.
– An award does not involve the application of the common rule unless the Court so directs. An agreement could not contain any provision for the application of the common rule.
– That may be so; but under the terms of the Bill an agreement arrived at between the parties to a dispute is to have the same effect as an award. A dispute might be brought about throughcollusion between an employer and his employes, and, after an agreement had been arrived at, the Court might extend its application to every person engaged in ‘ the industry. Surely this would he giving toowide an effect to a mere agreement between the parties to a dispute. No provision is made by which parties other than’ thoseimmediately concerned in the dispute may be heard by the Court with regard to the terms of the agreement. I know that thePrime Minister has stated that some qualifying conditions in regard to the application of the common rule are to be introduced, but at present there is nothing in the Bill that would have the effect of limiting the application of an agreement. I would suggest that the clause should be amended in order to limit the application of the agreement to the parties immediately concerned.
– That is the position now.
– Then there would be no harm in making the provision more explicit. I move -
That after the word “shall,” line 7, the following words be inserted, “ as between the parties to the dispute,” and that the word “ shall,” second occurring, line 7, be omitted.
– I would point out that the dispute referred to in this case is not such a one as would come within the cognisance of the Court after the parties had failed to arrive at an agreement.
– But there are two classes of agreement under the Bill. There are industrial agreements which are not preceded by a dispute, and agreements which are arrived at during the course of a dispute. In” the latter case the parties to a dispute would ‘be able to settle the terms of the award, and to prescribe the conditions of employment for all persons engaged in the industry. An employer might, in order V.o gain an advantage over a competitor, precipitate a dispute, and arrive at an agreement which would ultimately result in the application of the common rule. If we do not wish the provision to have such a wide effect, it is for us to limit its application.
– I think the amendment is quite unnecessary.
– It will only have the effect of making the provision more explicit. It should be our desire to avoid possible litigation, and as the Prime Minister appears disposed to take a reasonable view, I would urge him to accept the amendment.
.In relation to the agreements referred to in the clause, I do not think it would be wise to accept the amendment. The case contemplated here is one in which the President has inquired into a dispute, and the parties have come to an agreement at a stage earlier than they would have done if they had depended upon the decision of the Court. . In such case, the Court might very properly consider whether parties otheT than those engaged in the dispute should not be brought under the terms of the agreement. After the agreement had been made an award, it might be considered desirable to give notice to other parties to appeaT to show cause why the terms of the award should not be extended to them under the provisions of clause 46. I think that it would be well for the honorable and learned member to afford me an opportunity to consult the Attorney-General.
– The amendment might be inserted, and the clause afterwards recommitted, if necessary.
– I shall consent to the amendment on that understanding.
Amendments agreed to.
Clause, as amended, agreed to.
Clause 34 -
In the hearing and determination of every industrial dispute the Court shall act according to equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms, and shall not be bound by any rules of evidence, but may inform its mind on any matter in such manner as it thinks just.
– I should like to know what is meant by the provision that the Court shall act according to equity, good conscience, and the substantial merits of the case. I was under the impression that every Court was guided by these principles in arriving at its decisions. What is the use of inserting a provision directing the Court to follow the principles which it might naturally be expected to observe ?
– The clause is an indication to the Court that it is not necessarily to be bound by legal forms.
– And that it is also to dispense with the rules of evidence.
– If we are to have a law, it should be cejrtain in its effects. There is nothing so bad as uncertainty.’ If a particular rule required amendment, the Court would have the power to make the necessary change. Provisions of this kind have led to more difficulties than they have ever prevented. The intention has, no doubt, been good, but the results have been almost wholly bad - so bad that all good draftsmen absolutely decline to insert such provisions. I appeal to the Prime Minister to say whether he thinks this clause is necessary.
– I do.
– It is infinitely better for the people to have a bad but certain law. than a good but uncertain enactment. If the law is bad, and the public are certain with regard to the decisions under it, they will, as far as possible, avoid appealing to it.
– This Court will not be bound by its own decisions. I suppose that the honorable and learned member is aware of that ?
– Evidently it is expected to give judgments of an extraordinary and conflicting nature’. Therefore it is not a Court in which we can have very much confidence.
– The House of Lords is not bound by its own decisions.
– But the House of Lords consistently endeavours to make the law as settled as possible. Whenever that body does effect an alteration in the law, it does so only after the most serious consideration has been devoted to the matter.
– I trust that the honorable and learned member for Werriwa will not press his objection. To my mind, no reasonable opposition can be urged against the inclusion in this Bill of a provision declaring that industrial disputes shall be decided upon their substantial merits, and without regard to legal technicalities.
– I desire to congratulate the Government upon the insertion of this clause, and I should like to see a similar provision operative in regard to all our litigation. In my capacity as a journalist I have frequently had occasion to observe the absurd way in which our States Courts have rejected important evidence by reason of some legal technicality, instead of deciding the cases upon their just merits. I hold that the tribunal which it is proposed to establish should decide all industrial disputes which come within its cognisance as between man and man. I claim, therefore, that the provision should be retained.
Clause agreed to.
Clause 35 -
Any organization interested in the matter of an industrial dispute of which the Court has cognisance, shall be entitled to be represented before the Court on the hearing and determination of the dispute, and if so represented shall be deemed a party to the dispute.
– I move-
That the words “ interested in the matter of an industrial dispute of which the Court has cognisance, shall be entitled to be,” lines i to 3, be left out; and that the words “the dispute, and if so represented,” line 5, be left out, with a view to insert in lieu thereof the words “an industrial dispute.”
I would point out to honorable members that in clause 72 machinery is provided bymeans of which any organization is entitled to secure representation before the Court. There is no necessity to repeat in this clause the words “interested in the matter of an industrial dispute.” Consequently we propose to omit them with a view to providing I that organizations which are represented before the Court on the determination of any dispute shall be deemed parties to such dispute.
– The Prime Minister has omitted to explain who is to represent the industrial organizations towhich he has referred. The Bill, I understand, contains a provision which prohibits the employment of counsel.
– We propose to insert a new clause dealing with that matter to follow clause 35.
Amendments agreed to. Clause, as amended, agreed to. Clause 36 -
The award shall be framed in such a manner as to best express the decision of the Court, and to avoid .unnecessary technicality, and shall continue in force, subject to any variation, until a new award has been made ; or, if so decided by the Court, for any term not exceeding five years from the making thereof.
– I desire to Walter the form of this clause, with a view to making its provisions clear. The amendment which I shall submit is largely one of draftsmanship. I move -
That after the word “shall,” line 3, the words “ subject to any variation ordered by the Court,” be -inserted.
– I should like to ascertain from the Prime Minister the exact effect of this proposal. Is the idea underlying it . a desire to preserve to the Court the right to vary an award from time to time ?
– I shall give a case in point if the honorable and learned member will permit me.
– The words “subject to any variation ordered by the Court “ might mean some technical alteration. They might also involve a matter of some substance.
– Quite so. Mr. GROOM.- I do not think it is desirable that there should be excessive litigation after an award has been made. The object of this measure is to permit of investigation of disputes, and our hope is that, after an investigation has been made, there will be a settlement of the difficulty for a certain fixed period. At the same time, I recognise that new conditions of trade might arise from time to time, necessitating periodic alterations being made, in the interests of both employers and employes. I do not wish to draw a hard and fast line, but I should like the Prime Minister to explain what would be the exact effect of this amendment?
– The suggestion made by the honorable and learned member for Darling Downs as to the possibility of variations of trade conditions, constitutes the reason why, in our opinion, the Court should retain power to vary its awards. In many trades, conditions have been revolutionized by the introduction of new machinery. For example, it was only recently that a lasting machine was introduced in the boot trade. If, at the time of its introduction, an award had been in existence in regard to the whole of the boot manufacturers, they might have been compelled to pay some of the men working these machines outrageously high wages as compared with what would be reasonable in view of the quantity of work to be turned out. Nearly all the work done in the boot trade is paid according to a log, in which the piece-work rates are fixed. The introduction of in proved machinery might give rise to altered conditions in many industries, and I do not think that it would be wise to compel the Court to maintain an award, when experience had shown that after a very short time it was susceptible of alteration.
– Under this provision .we should have only tentative awards.
– To the extent indicated; but the Court would not vary an award arrived at after careful investigation, without good cause. It would -be some such change as I have indicated that would necessitate an alteration.
– I would point out to the Committee that there is a safeguard. The power to vary awards is conferred on the Court by paragraph 0 of clause 46, and at the end of clause 47 honorable members will find the condition of its exercise. It is provided that - no order or award shall be varied, and no submission shall be re-opened except on the application of an organization or person affected or aggrieved by the order or award.
This clause has only a preliminary reference.
– The provision just quoted is no limitation.
– Let me deal first of all with the question of drafting. If the Prime Minister omitted the words in a previous clause with reference to any organization “interested in the matter,” because provision was subsequently made in reference to it, he ought, as a matter of drafting, to omit the words in clause 36, “subject to any variation,” because the power to make a variation is given thereafter. That is, however, a matter ‘of indifference to me. The bare power to vary an award is given in paragraph 0 of clause 46, and in the next clause we have the provision which, in the opinion of the honorable and learned member for Corinella, is really no limitation. In general -the Court has authority to exercise any of its powers on its own motion, but here is a limitation in regard to the variation of awards. The Court must be moved in these cases by some organization or person “ affected or aggrieved.”
– If they are affected.
– If they are affected or aggrieved. The limitations are certainly not numerous or severe, but in this matter* the Court cannot act on its own motion. Action must be taken by a person affected or aggrieved.
– This would give the right to a party affected by a common rule.
– It would do so.
– I confess that I cannot follow the contention of the honorable and learned member for Ballarat that this power is limited. So far as I understand the provision, the power is limited in this way : that no one except those who originally might have been affected by the award may ask to have it varied. That is not a limitation in substance, although it may be in form. There is the limitation that perhaps the Court itself cannot exercise this power, but that is just such a limitation as I would not impose if I had to make a selection.
– The honorable and learned member will see that the Court has power to act under paragraph 0 of clause 46.
An Honorable Member. - Would the Court know of the altered conditions unless some one took action?
– The theory of this Bill is that the Court is omniscient.
– We have to assume that to give it an independent power
– Quite so.
– Unless application were made, the Court would not be aware of the varying conditions.
– It is assumed that it will be cognisant of so many other matters that it might possibly become aware of these variations without application being made to it. Clause 47 provides that no order or award shall be made “ except on the application “ of an organization or person affected. I presume that means a compliance with formalities, or, in other words, that the Court will not become informed of the necessity for a variation of an award in the informal way in which it will be able to inform itself in regard to every other matter.
– Any one affected by the award might take action.
– Any one that the award might possibly reach. As the result of this provision there would be no finality, not even in regard to its smallest detail, associated with any award.
– Does the honorable and learned member see any way out of the difficulty ?
– That is another matter. I am not responsible for the drafting of the Bill. I consider that the limitation should be somewhat more stringent than the alleged limitation which now exists in the Bill. .
– The honorable and learned member will have ample opportunity to frame one before we reach clause 47.
– I do not accept responsibility for drafting, except in. regard to a Bill which is in my charge. In my opinion, this provision will open the way for persons to continually raise certain questions, and leave disputes practically unsettled. It certainly could be made most fertile in the continuance of disputes by any party who was not satisfied with a decision of the Court. It is a kind of general commission to an unsuccessful litigant to continue litigation. That would not be a desirable state of affairs in connexion with even an Arbitration Court.
– I recognise that, as the result of the introduction of improved machinery in any trade affected by a decision of the Court, an award which to-day would be quite proper and just, might be two or three years hence positively absurd. The whole of the conditions of the trade might be altered by the introduction of “machinery, or by increased competition, or the introduction ot some other new element; but I think that an award should not be varied unless the circumstances attending the making of it had also altered. If an award were made, it should not be possible for any one to apply three, six, or twelve months afterwards to have it varied.
– We are aiming, as far as possible, at the fixity of conditions. That is one of the purposes of the Bill.’
– 1 think that before application to vary an award could be made, the onus of proving that the conditions of the trade affected had changed since the making of the award, should be thrown on the applicants. That would be a sufficient safeguard. I agree with the honorable and learned member for Corinella that if it is to be possible for applications to be made at any time to vary an order, there will be no fixity of award, and that this Bill, instead of aiding the settlement of trade differences, will give rise to continuous disputes.
– I should like to know exactly why the period of five years is mentioned. Looking to the amendment in the form of sub-clause 2 I find that it states that -
After the expiration of the period so specified, the award shall, unless the Court otherwise orders, continue in force until a new award has been made.
In view of that, I take it that there is no necessity for an express period to be named.
– We do not wish to have too long a period fixed, and we, therefore, say “ not exceeding five years.” The term of five years is, of course, purely arbitrary, but as it is used here discretion is left to the Court. The intention is that there shall be a periodic inquiry at reasonably short intervals. We consider five years a reasonable term, but under the amendment, as proposed, the Court will have power to fix a shorter period. I do not think it would be wise to allow the Court to fix, for instance, a period of ten, fifteen, or twenty years.
Mr. KELLY (Wentworth).- I agree with the Prime Minister as to the necessity of preventing very long periods being fixed, but I suggest, in view of the proposed subclause, that it would be better to cut down the proposed period.
– The Court can fix a shorter period.
– Five years is given as a maximum period. The Court may make the period less if they wish.
Amendment agreed to.
Amendments (by Mr. Watson) agreed to- ‘
That after the word “ force,” line 4, the following words be inserted, “ for a period to be specified in the award not exceeding five years from the date of the award.
That the words “ until a new award has been made; or if so decided by the Court, for any term not exceeding five years from the making thereof,” lines 4 to 7, be left out.
– I think that it is necessary that we should conclude with the words “ from the date of the award or such variation.” However much parties may desire a variation of an award, it is hardly likely that they will go to the Court to secure it six months or three months from the end of the term during which it will apply. I think that we should provide that the Court, upon considering a variation, should have the same power to extend the time during which the varied award shall apply as thev have to provide a time during which the original award shall apply.
– I believe that sub-clause 2, just carried at my instance, meets the difficulty raised by the honorable and learned member; but I shall look into the matter, and, if necessary, will recommit the clause.
Clause, as amended, agreed to.
Clause 37 -
The award of the Court shall be binding on - (<i) all parties to the industrial dispute who are represented before the Court ;
Amendment (by Mr. Watson) agreed to-
That after the word “ who,” line 2, the words “ appear or,” be inserted.
– I propose now to move that after the word “binding,” line 13, we should insert the words “ as a common rule.”
– I have an amendment to propose before that. This clause raises the whole question of the common rule.
– We will take the Prime Minister’s amendment first.
– Without my amendment it does not raise the question.
– I have no wish to interfere with what I consider to be the necessary structure of the Bill. I wish to make a departure in principle, but I do not desire at the same time to sacrifice other parts of the measure which may be essential to its proper working. I think that in this clause the retention of the words “ organizations and persons” may be necessary. If honorable members will look at the paragraphs they will find that an award is declared to be binding, under paragraph a, upon all parties represented; then, under paragraph b, upon all parties who have an opportunity of being represented, and do not turn up. That is right enough; but we find that under paragraph c an award is to be binding upon - all organizations and persons on whom it is declared by the Court to be binding.
– The Court, or some authority, must say which of the parties represented are to be bound by an award, even though it is not made a common rule.
– I am aware of that; but I think that in paragraph c it is proposed to go beyond reasonable limits, In declar-( ing that all organizations are to be bound we go further than is necessary, because we bind all organizations, whether they are parties to the dispute or not, no matter in what part of Australia they are. and no matter how far from the centre of dispute, and also all persons, no matter how alien to the dispute. I wish to amend paragraph c so that it shall apply to all organizations who ought to be bound by an award, and to parties to the dispute.
– Then the honorable and learned member does not propose to move the amendment of which he has given notice ?
– I do not desire to interfere with the clause any more than is necessary to affirm my principle. I can see that the Government will ask for the retention of some words necessary to bind organizations, the members of which, we all admit, should be bound, and should come within the scope of the award. In lieu, therefore, of my proposal to strike out the whole of paragraph c, I propose to move that after the word “organizations” the words “in respect to which,” and then after the word “ persons “ to insert the words “ in respect to whom the industrial dispute has arisen.” The paragraph would then read -
If I move first of all the insertion of the words “ in respect to which “ after the word “ organizations,” that amendment can be taken as a test. I know it is very difficult, on the spur of the moment, to draft an amendment which will cover exactly what one desires to affirm. I wish to affirm the principle first, and if necessary, afterwards, the clause may be put into any shape which the Government may think necessary to carry out the principle.
– The honorable and learned member desires that the award shall affect the original parties only?
– Yes; I desire that the award shall affect the organization, and all persons in the employment - as well as the members of the organization whether employers or employes, all other persons in respect to whom the dispute has actually arisen.
– Looking for the moment at the other side, the honorable and learned member desires to prevent any award ever applying to people other than the original parties ?
– Yes: that would be the effect of my proposed amendment ; but I would not use the word “ parties.” I wish to limit the application of the award to the members of the organization and to persons in the same employment as the members of the organization. So that if a dispute arose, for instance, at Broken Hill, and an award were made, it should be binding upon the organization at Broken Hill, and upon all employes in the same mine.
– Employes throughout Australia?
– No, I do not desire that. This Bill gives the Court power to bind every one in the same industry. As was shown by several honorable members yesterday - the good sense of whose remarks I* recognise by limiting the amendment I had intended to move - a very wide field is covered by the word “ industry,” and . people would under the clause be bound throughout Australia, if engaged in the same industry.
– The award must extend to two States.
– No doubt, that is the very basis of the whole Bill. That shows the limitation of the Bill itself, and it shows that our jurisdiction by this Bill is limited. Surely we are not going to allow the Court to bind persons engaged in a particular industry throughout the length and breadth of Australia although they may have no connexion whatever with the particular manufactory in which a dispute has arisen. It is a very big question if a dispute arising in New South Wales is to result in the : fixing of an award applicable to a particular industry throughout Australia. It is a tremendous thing to say that in that dispute the Court should decide what are to be uniform rates of wages and hours of labour throughout Australia. But that is what the Bill provides, subject to an amendment of which the Government has given notice,, to the effect that persons outside the dispute - not outside the organization affected - are not to be bound unless they have been summoned to appear.
– What I suggested was that we should give those whom it was proposed to bring under the common rule ample notice.
– That is the same thing as I have stated.
– But I prefer to have my express language used.
– I do not care a fig about the language, so long as I get the result. The position is this : The Government wish to impose a limitation upon the application of the common rule, so as not to compel a person to be bound by it unless he has been notified. We find that in New South Wales there is a congestion of business in the Arbitration Court. Recent references made by some of the Judges indicate that the Courts are congested. Mr. Justice Cohen said that the Court was about fifteen months in arrears with its work. If the limitation proposed by the Government is put in, opportunities will be given to outsiders to come in. and we shall multiply by seven or eight the number of disputes that will come before the Court. It will be much fairer at the beginning to confine the operations of the Court as regards wages to the employers or manufacturers in respect of whom the dispute has arisen. The case of the Sugar Refining Company has already been mentioned. I believe that the facts are as I have given them - that about 3,000 persons would have been bound by an award obtained on the initiative of about 100 persons. To make a decision of that sort a common rule, operative so as to bring about uniform wages and hours of employment throughout Australia, would be a great mistake. It would be almost guaranteeing the failure, through its excessive character, of this measure from its very inception. I would ask honorable members who are inclined to take a moderate view of this matter, to come to a fair compromise at the beginning. We shall see how this Bill operates in regard to particular employments, and if it proves fairly successful’, we can extend its scope. Already the honorable member for Melbourne Ports has given notice of a motion in favour of an amendment of the Constitution, so as to extend the powers of the Commonwealth with respect to industrial legislation. We may, therefore, by other means, if the people of Australia recognise that it should be done, bring about uniform rates of wages and hours of labour throughout Australia.
– Not uniform rates of wages throughout Australia.
– Uniform legislation really means everything of that kind. Factory legislation in “Victoria prescribes the rates for piece work, and rates of wages by the week and by the day, and also the number of hours to be worked. In an application of legislation of that kind to the Federation, the same results may follow. I am not attempting to forejudge upon that point. It may be the correct method of applying the principle which is contained in this Bill, to make the conditions of employment uniform throughout Australia. But before we do that we should get the authority of the electors of Australia on the point, expressed in a’ constitutional way, by the Federal Parliament passing the necessary amendment of the Constitution, and permitting the people to speak through their constitutional methods -through the States as States, and through the people of the Commonwealth as a people. That is the prescribed method of amending the Constitution. But before that is done we really should not by what seems to be a subterfuge, endeavour to bring about uniform rates of wages, and conditions of employment throughout the length and breadth of Australia, or delegate that power to a tribunal which we establish. Because that is what it amounts to. We are not framing a law under which we as a Parliament prescribe the conditions and limitations of uniform employment throughout Australia, but we are asking the Court to take an authority which we may possess. That is worse than would be the exercise of parliamentary power to bring about a uniform law ; because we could impose some limitation on the uniform conditions. But when we leave it to a Court, we leave it to the if st dixit of a Judge with two laymen to determine under what conditions the uniform legislation is to be applied. What I ask honorable members to do is to proceed on safe and moderate lines, and to confine within reasonable limits the scope of the common rule. Then, if it is necessary afterwards to extend it, we can do so.
– I understand the honorable and learned member to be -speaking against the common rule altogether.
– I have no objection to it with some limitations. There may be something to be said for a partial common rule. There may, of course, be difficulties in confining particular rates of wages to particular factories. That is an inconvenience that has been experienced in New Zealand, where they have sought to get over it by means of a provision applying the common rule to districts. Here we are not only going to apply it to districts or to a State ; we are going to allow the Court to apply it right through the -length and breadth of the Continent. Surely that is an authority that we should not delegate to a tribunal, however great may be our anticipation of the judgment and the wisdom which it will exercise.
– The honorable and learned member believes that we should prescribe the area within which the common rule should apply ?
– Yes. I do not wish to thrash the matter out at this stage. I have said enough to indicate the principle for which I am arguing. In order to test it I move -
That after the word “organizations,” line 11, the words “in respect to which” be inserted.
– What amendment does the honorable and learned member propose to move afterwards ?
– I propose to insert after the word “ persons,” the words “ in respect to whom the industrial dispute has arisen.”
– The honorable and learned member for Angas, in answer to a question by myself, intimated that he has no objection to a common rule within certain prescribed limits. But the proposal which the honorable and learned member intends shall follow the amendment immediately before the Chair, would prevent any common rule being operative, seeing that it restricts the power of the Court, in the making of an award, to the organizations or persons in respect of whom the industrial dispute arises.
– The present amendment is a preliminary to an extension beyond the organizations.
– I do not see that there is any extension. The honorable and learned member ‘ practically says that the only persons to whom the award can apply are the original parties to the dispute. This measure will be practically valueless without a common rule. That has been the experience under similar legislation in New Zealand, New South Wales, and Western Australia. Wherever a compulsory Arbitration Act has been in operation it has been found impracticable without a common rule; and, further, I contend that not to provide for a common rule would be absolutely unfair to many classes of employers. A number of employes, who are dissatisfied with the wages paid by a certain employer, may take a case before the Court and obtain an award in their favour, while the employes of another employer, who insists on lower wages, longer hours, and generally worse conditions, may, for a thousand diverse reasons, be satisfied with their lot. Under such circumstances, a fair employer is unable to compete with an employer who pays, it may be, sweating wages.
– Or it means another case for the Court.
– Or it means another case, with all the attendant consequences. New Zealand, for the purposes of the Conciliation and Arbitration Act. is divided into four industrial districts. In one case the New Zealand Court arrived at a decision which was perfectly satisfactory to employers in three parts of the Colony; all fair employers were willing to conform to the award. But the employes in the fourth industrial district were content to receive a lower rate of wages, and the Court found itself impotent. The unfair competition was allowed to go, until the Act was amended, without let or hindrance, because the employes in this particular district were satisfied with conditions that were unfair in respect of competitive work in the market. From the point of view of the employer alone it is desirable that, after making allowance for climatic differences, general cost of living, and conditions of that character, the Court should, as far as practicable, subject all competitors to exactly the same conditions.
An Honorable Member. - The same conditions may riot prevail in different States.
– I have just said that the Court must have power to make all allowance for altered or differing conditions.
– But a person not brought before the Court may not know of the award.
– I was going to inform, honorable members last evening - some weeks ago I intimated through the press - that the Government were taking steps tot insure that before a common rule could be extended notice must be published, and opportunity given to every person likely to be made a party, to make objection and lay his case before the Court.
– If that intimation was given to the press some weeks ago, does the Prime Minister not think that honorable members should have had the proposed amendment before them ?
– I thought the honorable member was here last night when I ex-‘ plained why the proposed amendment had not been placed on the business-paper. The explanation is that the Government had not at that period drafted the amendment, and, further, that it did not seem to them to be more than a detail, seeing that the Attorney-General had some doubt whether the present provision in the Bill was not sufficient to insure that proper notice waspublished.
– But the Prime Minister is taking credit for making the intimation some weeks ago.
– As it happens, I did make the intimation to the public press then.
– But if the amendment had not been formulated, how could there be an intimation ?
– That may appeal to the subtle legal mind of the honorable and learned member, but I do not think it matters very much. What I said was that I then indicated that the Government were prepared, if necessary, to provide that no person should be brought under a common rule without having an opportunity to lodge an objection.
– No person?
– No person or organization.
– Is the suggested amendment available now?
– I can give the Committee the terms of the proposed amendment, which is intended to follow subclause /, of clause 46. It is rather lengthy, but I shall have it printed this afternoon.
– In view of that proposal, it is a pity to have a debate on the question at the present stage.
– I am very sorry that the honorable and learned member for Angas has caused the debate at this particular stage. Personally, I should have preferred to wait until we reached paragraph / or paragraph 0 of clause 46, when we could have discussed the substantative question of the common rule.
– We can test the question now.
– That is so ; but I have had this amendment prepared so that it may be circulated before we reach the point at which the question will arise. it is proposed to add to paragraph / of clause 46 the following words : -
Provided that before any common rule is so declared, the President shall, by notification in the Gazette, specifying the industry and the industrial matter in relation to which it is proposed to declare a common rule, make known that all persons and organizations interested and desirous of being heard may, on or before a day named, appear or be represented before the Court ; and the Court shall, in manner prescribed, hear all such persons and organizations so appearing or represented.
An Honorable Member. - There will be a nice job getting witnesses from Western Australia !
– The Court will probably make arrangements, before extending a common rule to Western Australia or other distant parts, to visit the places if necessary.
– Or have evidence taken on commission.
– There are various ways of meeting the circumstances. In relation to the general tenor of the argument of the honorable and learned member for Angas, honorable members will see that, by sub-clause / of clause 46, the Court has power - to declare by any award, that any practice, regulation, rule, custom, term of agreement, condition of employment, dr dealing whatsoever in relation to any industrial matter shall be a common rule of any industry affected by the award.
But that provision is safeguarded, as desired by the honorable member for Wentworth and others. Sub-clause g, of the same clause, provides that the Court shall have power - to direct within what limits of area - that will meet the case of Western Australia and other parts of the Commonwealth - if any, and subject to what conditions and exceptions, the common rule so declared shall be binding upon the persons engaged in the industry whether as employers or employes, and whether members of an organization or not, and to fix penalties for any breach or i.on-observance of the common rule so declared, and to specify the organizations or persons to whom they shall be paid.
The effect of that paragraph, which is a complement to paragraph /, is to give the Court absolute freedom to vary its award, in order to suit local conditions. If, for instance, it is an award which should become a common rule generally, the Court will take into consideration all the local conditions, and make such alterations as may appear to be necessary. Surely, with that provision, we cannot contemplate that it would be likely for a moment to insist upon the same conditions on the Coolgardie goldfields as in the ordinary settled parts of New South Wales and Victoria.
– They are not the same now.
– No, nor would they be made the same.
– They could not be made the same.
– Exactly. No Court would attempt to make the conditions the same. We must assume that the Court will exercise ordinary common sense in the administration of the Act. It does not seem, therefore, that any danger of that sort is likely to be run. The main point I desire to direct attention to is that wherever compulsory arbitration has been tried, it has been found imperative, in order to protect the fair employer, to insure that his’ unfair competitor must come under the operation of a common rule, even if the employes of tha latter are acquiescing in the form of competition which is being engaged in.
– There has never been such an extended area before.
– I admit that. Perhaps we should make more certain, as has been done in some of the States laws, that the Court shall have proper opportunities of suiting the award to the local conditions in each case, and that is where it seems to me the argument as to the greater area really comes in. I feel that we are doing that when we require the Court to give notice to the other party before an award is made a common rule, so that he shall have an opportunity of coming in and proving his case, perhaps to the full extent of not being included in the common rule. In that regard we are taking precautions which, so far, have not been taken- in any State law. In New South Wales the Court, by rule, has practically done this; because, I understand from my honorable and learned colleague, the Minister of. External Affairs, that the Court has decided that it will not extend the award to a common rule unless the parties have been notified that it is proposed that they should be brought under its operation. On the contrary, we propose to provide in the law itself, that notice shall be given, and so avoid any possibility of the Court overlooking that which, in our view, appears to be imperative from the stand-point of equity.
– The provisions as to the common rule in the New Zealand Act are much more limited than these.
– Yes, because they were, until lately, confined to industrial districts. The present movement is certainly towards abolishing the distinctions which are laid down by the division of the Colony into industrial districts. It has been found that it hampers very largely the effective work which can be accomplished by the Court. I do not feel that we are bound to follow exactly the particular lines of’ their legislation, especially in a Federal law.
– We have industrial districts in Western Australia.
– I was not aware of that. I trust that the Committee will not emasculate the Bill by carrying this amendment, because, to confine, as the honorable member for Angas proposes, the operation of an award to those who were parties to the dispute when it arose, seems to me, to begin with, to involve a greater amount of litigation than might take place under the common rule provisions. That alone, I am afraid, might lead to an enormous congestion of the business of the Court, if any disputes came up.
– Of course, this Bill is really intended to settle Inter-State disputes.
– Assuming that that is so, the fact that the disputes are of such large importance points more to the necessity of having a common rule, just to prevent their recurrence.
– The scope of the States Acts is different; there are Factories Acts, as well as Arbitration Acts.
– In New South Wales the Factories Act, valuable as it is, is of quite a different character from the Arbitration Act. Therefore, it is not correct to say that the Arbitration Act of that State partakes of the character of a Factories Act.
– -But in effect they are the same.
– It is true that they both take cognisance of the question of hours of employment; but as the honorable and learned member knows, working hours have frequently been the cause of strikes, and therefore are a proper subject for an Arbitration Court to deal with.
– I regret that this discussion should be precipitated at this particular point, because, when we come to clause 46, we shall have under review, one after another, all the powers with which it is proposed to endow the Court, and all the limitations that are to be imposed on those powers. It would therefore have been a more convenient method if we had dealt with this proposal, which is of great importance, at that stage. I think that the last interjections of the honorable and learned member for Angas are very pertinent. The application of the common rule in this measure is likely to be very different from the application of the common rule provision in any State Act. Because, if honorable members have in view the possibility of a dispute extending from Victoria to New South Wales, and of the Court proceeding to make an award which will also bind Queensland and Western Australia, I think they are looking forward to something which practically is extremely unlikely to occur. It must be a very remarkable calling which is pursued under conditions ‘ so precisely similar, and it must also be a calling in which there seems strong reason for universal intervention.
– But there might be cases in New South Wales and Victoria - the two States originally dealt with - where men would be outside the award.
– There are really two aspects, it appears to me, in which the common rule requires to be considered. One is when a dispute has overflowed from Victoria to New South Wales, or vice versa. The Court can choose to deal, as the honorable and learned member for Angas proposes, with only those immediately concerned in the dispute, or it can deal with them and all others in similar circumstances in those two States ; or, it may perhaps go further still, and deal with those in similar circumstances in other States. I would point out that, first of all, the common rule in a Federal measure can have an Australian meaning.
It appears to me that we are very unlikely to see an Australian common rule. It will need to be a very exceptional industry, carried on under very special circumstances.
– There are three big unions.
– Which are they?
– There arethe seamen.
– The seamen are not really in any State, but are on the sea, which surrounds all the States, and I regard them as being out of the question.
– There are also the shearers.
– The shearers may, if shearing conditions under the circumstances of the interior of Queensland and Western Australia and Victoria happen to be sufficiently the same.
– But they do not need to be the same.
– I am not sufficiently informed on the subject. But may I ask why the honorable member wishes to make the same provision if they are not the same ?
– I shall explain presently.
– I should like to call attention to the fact that the proposal for a common rule merely expands a power which existed in the. Bill after the award, and makes it a condition precedent. If a dispute overflows from one State to another, it is taken before the Court, and an award is made. If the Government’s amendment had not been introduced, the Court could have announced its intention to make that award a common rule in the States affected, or in other States, if it thought fit. Then, following the Bill as it was before the Government’s amendment was proposed, we found, in the paragraph of clause 46 to which I previously alluded, a power in the Court to vary its orders and awards, anc1 to re-open any question. It would have been possible for any person aggrieved by a common rule, whatever its extent was, to go before the Court, and under the latter part of clause 47 ask that the. common rule be altered, and the Court could have granted the request. What the Prime Minister is proposing is that instead of the Court first making a common rule, and then allowing the persons affected to come up and ask that the award should be varied, it must give notice in the Gazette, and fix a time after which a common rule shall come into force. That appears to me a step in the right direction. I do not know whether it goes quite so far as the Prime Minister may see his way to go when he takes into account the fact that the common rule may be sought to be applied over an immense area. The Commonwealth Government Gazette is not a publication so fondly looked for in every household, and widely read, that notices in it cannot escape the attention of interested parties in remote States.
– Notices published in the Gazette will be copied into the various newspapers. The difficulty is to secure actual citation over such an immense area.
– I admit it. No doubt the Government are willing to accept any reasonable proposal to get over the difficulty ; but the honorable and learned member for Angas appears to me more liberal in his argument than in the terms of his amendment. He proposes first to bind organizations, and next to bind persons. Reading his amendment in the light of his remarks, T take it that he wishes the Committee to limit the exercise of the common rule power to organizations before the Court, and to non-unionists engaged in the same kind of employment as those organizations.
– The amendment comes a long way short of indicating the honorable and learned member’s meaning.
– I think so. If we are to commence the discussion of the common rule, we are about to deal with a very vital matter, to which I have tried to contribute two preliminary considerations.
– The application of a common rule is no new’ thing. At common law it is precedent which governs, and which forms the common rule until altered or over-ruled. The Prime Minister’s contention that the Court cannot deal with every dispute similar to one which has been adjudicated upon occurring in an industry, and that, therefore, we must have a common rule, is, of course, the correct one. But although we have a very pure brand of democracy in the representation of Western Australia in this Chamber, those members are willing to concede that, in regard to the application of the Navigation Bill, there are conditions to be taken into consideration. They say - “ We believe in applying the provisions of that measure to shipping after it reaches Adelaide; but until the railway from Port Augusta to Kalgoorlie is made it should not apply to shipping between Western Australia and that port.” They wish for a common rule with variations.’ So, under this measure, we must have a common rule which will take into consideration the circumstances of every individual case. The question has already been thrashed out in New South Wales and New Zealand, and I should like to read what has been written upon it by a very real democrat in every sense of the term, Mr. W. P. Reeves. I do not say that he is quite as rabid as some of my honorable friends, though, since the decease of the last Government, many of them have bucked off their brands a great part of their democratic trappings, so that one cannot be sure that their democracy is now of the same brand as that which they possessed when sitting on the other side of the chamber. I wish to cite a passage from page 159 of Mr. Reeves’ State Experiments in New Zealand and Australia. Speaking of the New Zealand Act he says : -
Perhaps the Act’s most interesting feature is the “ common rule.” This is an effort to improve upon the tentative New Zealand method of extending the regulative scope of their Court decisions, so that, instead of merely binding specific employers, they are made rules virtually dealing wilh whole industries. The New Zealand plan lias been to proceed through district after district, citing all the employers in the industry under review in each ; then, after an award has been given, any one subsequently entering the trade had to be cited too, unless he was prepared to comply with the award voluntarily.
I do not think that the Prime Minister made that point as clear as it might have been’ made, though it was evident that he understood it. Before making a common rule in- New Zealand, the surroundings and conditions of every district are taken into consideration. This Bill, however, does not contemplate’ the creation of districts, and the word “district” does not appear in it. The environment of a Chinaman at Port Darwin is not the same as that of a Cingalese in Melbourne. The difficulty in applying a common rule to diverse conditions, which is perplexing us, has struck the New Zealanders, and they endeavour to remove it by the exercise of extreme care and caution, and consistent and persistent investigation. I take it that we are all agreed that a common rule made in Melbourne should not necessarilv apply to Perth or Coolgardie. ‘Speaking of the New South Wales legislation, Mr. Reeves says, on page 160 -
On paper the New South Wales method looks to be a short cut to the goal which in New Zealand has to be reached more slowly and tediously. In practice we must wait to see to what extent the Court in New South Wales has to fix limitations, allow exceptions, and deal with protests of individuals and localities. In any case Mr. Wise’s common rule is an experiment to be watched^ If successful, it may tempt the New Zealanders to simplify a portion of their law.
I take it for granted that every man who believes in arbitration sees the need for a common rule. But none of us wish for common rules which will mar, and perhaps destroy, the usefulness of the measure, because of the dissimilar conditions to which they are applied. Our difficult” is to harmonize dissimilar conditions. The speech of the Prime Minister made it clear that he wishes to be reasonable, and therefore I appeal to him to see that his legislation is made so. The Bill provides that there shall be a common rule.
– If the Court so determines. ‘
– Let the honorable gentleman go further, and make it absolutely imperative that before imposing a common rule the Court shall consider the surroundings of the individuals and organizations concerned. I intend to ask him to consider the propriety of inserting some such provision as this -
No award shall be binding unless it takes into consideration the local conditions of each person and each organization.
No one wishes to destroy the Bill. Some of us may not approve of many of its provisions’, but every sane man in the community wishes our laws to be reasonable. Sir Henry Maine has written that every law on the statute-book which is not used or’ is not reasonable helps to destroy the fibre of the whole body of legislation. Mr. Bryce, too, in his American Commonwealth, speaks of law as being the life-blood of the democracy.
– Law often drains its life-blood.
– The value of law to a democracy is the value of protection to the weak. Under law progressive reform becomes possible; without law it is impossible. Therefore, I appeal to the Ministry not to place upon the statute-book a Jaw which appears unjust to any, or which would allow a common rule to be imposed without taking into full consideration the condition of every man bound to obey it.
– I hope that the Committee will reject the amendment of the honorable and learned member for Angas. He has indicated that he wishes to set a limit to the powers of the Court.
It would be unwise to limit the powers of the Court. The intention of the Bill is that disputes which the parties fail to settle between themselves shall be referred to the Court, and the honorable and learned member for Angas does not seem to appreciate the logical conclusion to which he would be driven if the principle which he advocates were fully applied. We must, in the verv nature of things, place absolute trust in the Court. The working classes risk very much more than do the employers by placing their reliance solely in the Court., because if there is any class bias on the part of the Court it is not likely to operate against the latter. As the question of the common rule has been referred to, I would point out that no such difficulties as those mentioned need be apprehended. It is not contemplated that the terms of an award shall be extended beyond the area to which it can be appropriately applied. The references which have been made to New Zealand in this connexion are scarcely applicable. That Colony has been divided into districts, which are very much in the nature of natural divisions. Owing to the special conditions of settlement there, and the fact that the only means of communication between many of the districts is by water, no parallel cases are to be found in Australia. The Honorable B. R. Wise, when he introduced the Arbitration Bill in New’ South Wales, proposed to divide that State into districts, but he was afterwards persuaded to abandon the idea. No difficulty has been experienced in applying the awards of the Court to the State as a whole, because the terms in each case can be modified to suit varying local conditions. Speaking of the industry with which I am most familiar, I may point out that the employers and the employes in the pastoral industry have been able to clear the ground of technical difficulties, and to arrive at an agreement in regard to a number of details relating to shearing work. The pastoral industry is the largest, and the organizations connected with it are the most powerful, in the Commonwealth. Yet really only one issue is awaiting the decision of the Arbitration Court, and that is the question of the piecework rates to be paid to shearers, and the wages to be given to other employes engaged in attending upon them. When this matter comes before the Court, evidence will have to be given by both sides as to the price which should be paid in the different States. This price will vary according to custom and local conditions. In Victoria the practice followed is to pay shearers so much per hundred, and supply them with rations, whereas in New South Wales a certain rate per hundred is paid, and the men find themselves. There is no quarrel between the workers and their employers upon that point. The only question to be decided is as to what would be a sufficient rate to enable the shearers to earn what is called a fair wage. After the Court has heard the evidence, it will give its award, which will .probably partake of a fourfold character. Certain terms will have to be applied to New South Wales and Queensland. One form of award will probably suffice to cover both those States, .and will not be objected to by either side. Another award will embrace the whole of Victoria, except, perhaps, a small tract of country near the river Murray. In regard to South Australia, two awards would have to be given, one applying to the northern districts and the other to the south-eastern districts. The application of the common rule will be restricted by the terms of these differing awards, and there is not likely to be any difficulty in imposing conditions which will be reasonable and fair to both sides. There is a strong objection to requiring the Court to settle too many details, and honorable members apparently overlook the fact that they may push their arguments too far. In the pastoral industry we have disposed of a number of details by mutual agreement. The Court could not be expected to enter into all these small matters, but the agreement arrived at between the parties regarding them could be embodied in the award. Only the. more serious matters need be brought before the Court. We have to bear itf mind that we are providing first for conciliation, and afterwards for arbitrationThe Judge will, in effect, say to the parties, “ Try and settle between yourselvesas many matters as possible, and then ask us to arbitrate with regard to the issuesupon which you cannot arrive at an agreement. Submit your evidence to us, and” we shall make an award in which we shall embody the terms upon which you havearrived at an understanding by mutual consent.” Then provision would be madefor penalties for breaches of the award. I do not see the necessity for limiting the-
I powers of the Court. The Judges of our ordinary Courts of Justice are not limited as to their powers, except as to the nature and extent of the penalty to be inflicted. We rely upon them to administer justice according to the evidence, and we should repose the same trust in the Arbitration Court. It would be foolish for us, as a Parliament, to attempt to restrict the powers of the Court in the way now proposed. As I have” already pointed out, the organization .with which I am connected has arrived at a mutual -agreement with some sections of the employers upon a number of matters. The Victorian pastoralists, for instance, have come to terms as to wages and almost every other condition. Some of the pastoralists of New South Wales and Queensland have declined to meet us and discuss terms, but when they find that we can appeal to the Court, they may be disposed to arrive at some voluntary settlement. Honorable members need not fear that the Court will be called upon to deal with small disputes. Its authority will be exercised for the most part, if not wholly, in regard to disputes in which large Inter-State organizations are involved. In connexion with these large organizations, the checks against disputes are more effective than those which exist in connexion with the smaller unions. Every writer who has studied the internal management of labour organizations, agrees that the larger the organization the less chance there is of trouble arising. The Court will experience by far the greatest difficulty in dealing with the large manufacturing industries, in which machinery is so largely employed, and in which the equipment is being constantly changed. I believe in people settling their own differences as far as possible. I have been characterized as a firebrand, but that is only because I cannot help giving expression to my indignation whenever I can see that an injustice is being done. Every right-thinking person naturally experiences a feeling of indignation when he sees a section of the community subjected to injustice. I frankly admit that the best conditions under which an industry can be conducted are those which are laid down as the result of consultation between the parties who are chiefly concerned. I am satisfied that under the operation of this Bill many voluntary settlements of industrial disputes will be effected. I trust that the clause will be retained in its present form.
– It is refreshing to note that honorable mem bers upon the other side of the House exhibit a proper appreciation of the responsibility which now rests upon them, as was evidenced by the utterances of the previous speaker. Regarding the amendment, I have always held that in a Federal measure of arbitration the application of the doctrine of the common rule is likely to be productive of very grave evils. This Bill is especially intended to apply to those great industrial organizations, the Shearers’ Union and the Seamen’s Union, and I have no objection whatever to absolutely declaring in it that the common rule shall apply to them. But to make it applicable to all industries, as is proposed by the Government, very pointedly serves to remind one of the great difference that exists between legislation of this character as applied to a State and as applied to the Commonwealth. That difference honorable members should keep steadily before them. The Prime Minister recognises that after an award has been made by the Court, the common rule cannot be applied to all those engaged in the particular industry affected until they have had an opportunity of showing cause why it should not be so extended. But surely he must realize that an enormous amount of labour will be involved in giving the necessary notice, and that the possibility is always present that it will never reach many of ‘those for whom it is intended. I fully realize that it may be a. desirable principle to introduce into State legislation of this character. It has been so introduced in New Zealand, where the State has been divided into areas to which the common rule is applicable. In other States where kindred legislation is operative, the principle is applicable only to certain districts - not to the whole of their territory. If we attempt to make an award of the Court extend to the whole of Australia Ave shall be undertaking a work the magnitude of which has not been fully appreciated. In this connexion, I might instance the mining industry. I ask those who have an intimate knowledge of that industry whether it is possible to impose the same conditions as affecting work or wages to newly-developed territory - such as is to be found in Western Australia and Queensland - that are applicable to older countries. I hold that the advocates of this Bill will damage the prospect of its successful operation if they insist upon the retention of the clause in its present form. I do not ignore ‘the fact that the Court is likely to act justly. I do not suppose that any Judge will do anything that is outrageously unreasonable. He will be actuated only by a desire to do simple justice. Nevertheless, I claim that, by retaining this provision, we are opening ‘ up the possibility of extending a dispute over the whole of the Commonwealth. I ask the Government not to make the common rule applicable to all industries throughout Australia until we have had some experience of the working of the Act. It will be a serious blot upon this measure if it unnecessarily disturbs industry. I trust, therefore, that the Government will agree to the amendment proposed.
– I think it will be generally admitted that the President of the proposed Court will be a man possessed of sound common sense, who,, in determining awards, will carefully consider the area to which they should be made applicable.
– That discretionary power is vested in him under this clause.
– The honorable member for Kooyong desires to make the common rule apply only to certain industrial organizations.
– I do not desire that at all. I have every confidence that the President of the Court, in determining an award, will not apply it to districts where the conditions obtaining are entirely dissimilar.
– It has been done in New South Wales.
– I am not aware of that. I feel sure that different treatment would be meted out to the same branches of industry at, say, Broken Hill and Ballarat. If we attempt to limit the scope of the Bill we shall land ourselves in a difficulty. At present it is impossible for any one to say what industries will come under it, and, in these circumstances, I think that it would be in a sense presumptuous for us to provide that the Bill should not apply to certain undertakings. There are industries other than those mentioned to which a common rule should apply if for no other reason than that an employer in one locality should be placed on an equitable footing with an employer in another. Employers in one State are sometimes placed at a disadvantage, as compared with those engaged in the same industry in another State. In the absence of a uniform law, employers often remove their industries from one State to another, in order to avoid the effects of humane legislation. Two cases of the kind have been brought under my own notice. The result of this want of uniformity is that a State which, through its legislation, has declared that the workers shall be fairly dealt with is penalized bv the default of another State.
– One State loses a number of its citizens, but the work is carried on in another State.
– The honorable and learned member believes that one State should not be placed at a disadvantage with another by reason of any artificial barrier, and I am sure he will recognise that if a law is allowed to operate in only one particular locality injustice will be done. Certain persons who were engaged in the manufacture of cigars, in Melbourne, where they were compelled to pay their employes a minimum wage, removed their factories to Adelaide, where they were able to secure the service of girls at a ridiculously low wage; and others engaged in the manufacture of jam have also, for the same reason, removed their factories from Melbourne to Tasmania.
– And given work to persons in another State.
– We do not desire that increased employment shall be found in any State by the continuance of conditions that may perhaps lead to the shortening of the lives of the workers. This legislation is necessary, because of the existence of a class of employers that will take advantage of the necessities of the workers. It will place humane employers on a fair footing with those who; in the absence of laws of this class, are constantly taking advantage of an over-supplied labour market, and availing themselves of the services of persons who, with starvation probably facing them, have to accept any wage that is offered. I trust that the Committee will accept the Government proposal.
– I must confess that when I first heard of the principle of the common rule, I was somewhat startled at the invasion which it involved of the ordinary, common principle of justice - well recognised, at any rate, in !he administration of justice, as between private individuals - that no person shall be bound by any decision at law except he be a party to it. It is the common rule to hear the other side before binding it by the decision of the Court. At the same time I admit that cases might arise in which legislation of this description would be ineffective, unless some uniformity of system could be established. A mere decision between A and B, as to what wages A should, pay B. whilst binding those parties, might be valueless, unless it acted as a precedent to guide and regulate others. Even in cases in which it is intended to bind others who are not originally parties to a dispute, it is only fair that those other persons or organizations should have notice, and an opportunity, to come in and take part in the discussion. I, therefore, think that, on the whole, the passing of the amendment outlined by the Prime Minister would remove many doubts which I and others have felt in regard to this subject, and that it should be considered when the proper stage is reached. I do’ not think that the amendment submitted by the honorable and learned member for Angas ought to be entertained. It would restrict to too great an extent the powers and the jurisdiction of the Court. It would, in fact, exclude the possibility of establishing something like uniformity of practice in certain organizations and trades. It would altogether exclude that possibility, and perhaps destroy a useful power. The proper stage at which to consider the Prime Minister’s proposal will be reached when we are called upon to consider paragraph / of clause 46 - when we are dealing with the common rule itself. When the Prime Minister submits his amendment, we shall be able to deal with the matter as a whole. I am very glad that the Minister in charge of the Bill has seen his way clear to put forward an amendment which will give those who are not parties to a dispute - persons in some other part of the country, or connected with some remote part of the trade in question - the opportunity to come in and take part in the discussion. If that opportunity be afforded, no one will be able to complain that he has been bound by a decision given behind his back. If the Government proposal be carried out the decisions of the Arbitration Court, like those of every other Court, will be binding only to the extent to which parties have had an opportunity to be heard.
– The proposal made by the honorable and learned member for Angas is that the award of the
Court shall apply to every organization and person in respect of whom the dispute has arisen, and ‘ on whom the Court has declared that it shall be binding. What could be more reasonable? We are simply proposing to tell the Court to whom its powers may extend. If we go any further, it seems to me that we shall be attempting, in effect, to give a legislative power to the Court which the Parliament itself does not possess. If the amendment moved by the honorable and learned member for Angas be rejected, the clause will give the Court power to frame practically a Factories Act for each of the States. That might be a very dangerous power, and should be very carefully exercised. It is true that it would be limited by the constitutional provision on which this measure is founded, and I am rather inclined to believe that the High Court would say, “The power which the Arbitration Court possesses is that of making an award which must apply to at least two States. The Court cannot differentiate between one State and another.” It seems to me that the High Court would probably hold that the Arbitration Court had no authority to frame a rate of wages that might have a purely local effect.
– Its award must certainly be applicable to at least two States.
– Does not the honorable and learned member think that if we gave the Court power to make any award of purely local application in any one of the States we should arrogate to ourselves the right to frame a local measure which, under the Constitution, we do not possess?
– Clearly so.
– In these circumstances the amendment is clearly needed. If we have not this power we ought to make it clear that we do not even assume to possess it - that we do not seek to grant to the Court a power which we as a legislative body cannot confer. I am rather surprised at the remarks which have fallen from the honorable and learned member for Bendigo, in view of the answer which he has just given to my question. Had his attention been directed, in the first instance, to this point, I do not think that he would have intimated his intention to vote against the amendment. When the honorable member for Grey spoke of the desirableness of having equal conditions in all the States it seemed to me that he was pointing out that a Factories Act might be disadvantageous to Melbourne - that persons might seek to escape it by removing their industry to a State in which like legislation did not exist. His argument appeared to be based on the principle that, if there are disadvantages in one State, like disadvantages should be created in another. It reminds one of the fable of the fox who lost his tail. Because the. Victorian State Legislature has passed a law imposing certain conditions of employment, the honorable member thinks that we should pass a law compelling the people of South Australia to work under like conditions.
– The sweater will always get away, if possible, from the rigour of the law.
– The factories to which the honorable member refers could not have been removed to another State without tending, in some small degree,_ at all events, to raise the rate of wages there.
– Because no one would accept employment in them at a lower rate of wage than he could obtain in the trade in which he was previously employed. If a new avenue of employment is opened up, it is perfectly clear that the workers must gain some advantage from it - that it possibly offers work to persons who before could not obtain it. The amendment is very reasonable. If we seek to give the Court power to make, in effect, local laws, we shall exceed our authority, and in these circumstances the Prime Minister should have accepted the proposal made by the honorable and learned member for Angas. This Bill is not designed to deal with a State -per se; and as we are dealing with the States as a united body, and only with disputes which extend beyond the limits of any one State, how can we possibly give our Court the power to deal with matters affecting a local industry. It is a power that this Parliament itself does not possess. The authority which Ave confer on the Arbitration Court to interfere with or regulate an industry can be no wider than the authority we ourselves possess. It is admitted that we could not make a law regulating industry in a State, and, therefore, I submit we cannot give an Arbitration Court power to do it. In the circumstances, we should make our Bill as clear as possible, in order that we may not be continually furnishing food for lawyers. As a lawyer myself, I am often surprised at the reckless way in which clauses are sometimes passed in this House. One honorable member will argue that a clause will have a certain effect, and another will contend that it will have an opposite effect, and yet honorable members allow it to pass in that form. If there is one thing on which we should insist, it is that whether a clause will have a good or a bad effect it should be perfectly clear what effect it will have.
– Does the honorable and learned member think it possible to get the lawyers in this Committee to agree upon any particular point?
– In hundreds of cases all the lawyers in the Committee may be absolutely agreed as to the effect which a certain clause will have, but when we find laymen and lawyers on either side unable to agree as to the interpretation which will be put upon the use of certain words in a clause, it is perfectly clear that if we pass such a clause we shall be making laws which will lead to disputes. It appears to me that the honorable and learned member for Bendigo, after the admissions he has made, should see his way to vote for the amendment.
– I believe that honorable members have to some extent overlooked the effect of the amendment. If it receives the support of the majority of the members of the Committee, the effect will be that in the case of the shearing industry, for example, should a dispute arise in a number of sheds, the parties interested in each case must come separately before the Court to have the dispute settled. That alone should show how absurd such a provision would be, and how expensive it must become. In considering the question of the common rule, honorable members have overlooked the fact that in another part of the Bill it is clearly shown how the common rule will operate. If they will turn to paragraph g of clause 46, they will find that the Court is given power to direct within what limits or area, if an, a common rule shall apply. The Court in its wisdom may confine an award to the parties interested in a particular case. It may apply it within a very circumscribed area, or, if it considers it desirable, throughout the Commonwealth. Then it must not be forgotten, that if in the wisdom of the Court an award should apply throughout the Commonwealth, there is power under the Bill for persons aggrieved to seek a variation of the award. Honorable members who contend that because of the different conditions under which similar industries are carried on in different States, the application of a common rule may do injury, may well be satisfied that as we have seen the point it is not likely to escape the notice of the Arbitration Court. If some honorable members had only made themselves familiar with the provisions of this Bill, we should not have wasted so much time this afternoon.
– I favour the amendment, because, at any rate, it makes it clear that the Court can apply no award outside those who have appeared before it, and whose case has been, heard. We should not pass a law which will permit any Court to impose an award upon persons whose case has not been heard. To do such a thing is against all principles of British justice, and against the recognised precept that in all judicial proceedings we should hear both sides. In connexion with matters of this kind, where the investigations will be most intricate, such a power as I have described should not be permitted to any Court. I do not believe it is possible for any Judge to be more sympathetic to the working classes than is the Judge who presides over the Arbitration Court in New South Wales. If he leans at all, and I think he does, it is in the direction of the working classes. If we look at what he has done we shall realize that he has endeavoured to act in the very best interests of working men. I do not blame him for that, although, in- my opinion, his judgment has at times been in opposition to the fundamental principle of British justice. The difficulty is that men in the country districts are refused permission to attend the Arbitration Court, by reason of the fact that country organizations are nol; registered, and honorable members must be aware that it is impossible for persons to attend the Court individually, because that would, in many instances, be extremely expensive. I say that it is “outrageous that any Court should have the power to fix an award upon persons when no opportunity has been afforded them to put their view of a case. I invite honorable members to consider such a case as this. A man in a country district has established himself in a small business, and he has not sufficient work to keep one man regularly employed. He has a son who is beyond the school age, and for whom he can get no other employment. The son assists him in his business. A common rule is fixed by the Arbitration Court covering the industry in which this man is engaged, and under it he is informed that, unless he sends his boy out of the business, he will be had up before the Court and punished. Yet he has not been heard in the dispute, and the circumstances under which he carries on the industry never come within the ^knowledge of the Court. Is there any member of this Committee who thinks that that kind of thing should be tolerated ? No matter how much we may believe in helping men, surely we should not help them in such a way as to injure persons in small businesses. I repeat that if the Government would limit the application of the Arbitration Bill to large centres of population, there would not be so much objection to it. But if we allow those employed in large centres of population to practically dictate terms to the people living in smaller centres, we shall injure the small men, who are the very persons we desire to help. I hope honorable members will exercise their intelligence in that direction, and recognise that the effect of this kind of legislation is to injure the men who wish to make a start for themselves upon a small scale. I am against the application of a common rule, even in one State. No Judge in the world, though he should be the best man we could get, can grasp the different conditions existing in the same industry as carried on in the midst of a dense population, and in a sparsely populated district. Take another case, where a common rule was applied ; the case of the boot trade. Under a common rule it has been ordered that men engaged in this trade must be paid overtime after certain hours. In the country districts men are carrying on small boot-making establishments, and employing a small number of hands. Business may ordinarily be very slack, but at times orders come in with a rush. The only way in which they can be filled is by the men working overtime. Hitherto men so situated have always done that work at the ordinary rate of pay, but the application of the common rule means that they must be paid an increased wage for any overtime work. The effect of that is to handicap the country manufacturer as against the city manufacturer. If the city manufacturer gets a rush of orders he has no need to ask his men to work overtime. He is not required to bear the extra cost of manufacturing under such conditions. All he has to do is to insert an advertisement in a newspaper, and the next morning forty or fifty men will be at his factory ready to carry out the work. That indicates the way in which this kind of legislation injures the country districts. I should not have fought this Bill as I have done if it were proposed to limit its operation to large centres of population. Such legislation might not do a great deal of injury if applied in dense populations, although even then. I believe it would do some injury. But it is quite unreasonable to apply it to country districts, and at the same time to provide for a common rule which will riot fairly meet differing conditions. If it is difficult to apply a common rule in one State, to differentiate between the conditions of industry in large and small centres of population in that State, how much more difficult will it be to apply such a rule to the varying conditions of industry all over this great continent? No matter how conscientious the Judge of an Arbitration Court may be, it is impossible for him to fix conditions which will apply equally throughout Australia. I do not think that the High Court would uphold an award by an Arbitration Court applying a common rule throughout the States. If, under the award of an Arbitration Court, an industry could be carried on at lower wages iri one State than in another, the State that was injured by the award could at once move the High Court to prevent that kind of thing being done. I am not lawyer enough to say whether it could or could not, but I think it could. Some reference has been made to a statement by the honorable member for Kooyong, that injustice might be done under the Bill, and what I say is that if it were at first limited to shearers, seamen, and railway men - as the Committee has decided to include railway men-
– No; I should not include miners. I should not greatly object if it were proposed to limit the operation of this Bill to shearers, seamen, and railway men, as the Committee has determined to include the latter. Surely it would be better for us to legislate, step by step, than to try at once to cover every industry in all the States. The spirit and intention of the men behind this Bill is, no doubt, to make this a political machine if possible. There can be no doubt that that was the spirit and intention of the amendment which was withdrawn yesterday. The attempt is made to make this a Federal machine for the purpose of controlling the States. If the Government would consent to limit the operation of the Bill to the three or four industries to which I have referred, and to which it might fairly be applied for a start, many of the objections to it would be met. The proposal in the Bill is against the principles of justice. If, under this measure, we give power to an Arbitration Court to make an award against a man whose case has never been heard, who has never been before the Court, and who has nothing whatever to do with the dispute which has led to the award, that will be against the principles of justice. Ministers have already recognised that fact, and if they are honest in their intention to introduce the amendment which has been spoken about, they should accept the amendment submitted . by the honorable and learned member for Angas, which will effect what they profess a desire to do. I have no wish in this connexion but to help the masses and to prevent this legislation doing more injury than can be avoided. The honorable member for Corangamite referred. to the mining industry. But I saythat it would be impossible for any Arbitration Court to properly control that industry. I know that had such legislation as this existed in the past it would have- destroyed the mining industry in many places. There are places where it pays well. There are other places where the capitalist has lost money, and has been paying wages whilst getting nothing in return.. If any interference is made in a case of that kind, instead of benefiting the miners, the effect would be exactly the reverse. It would shut up the mines. If the Court reduced the wages of the men, they would at once say that they did not want to have an Arbitration Court whose decisions had that effect. ‘ If those honorable members who advocate the establishment of an Arbitration Court would tell their constituents that there is a possibility of their wages being reduced, those men would at once say that they did not desire to have it established. To tell the workmen that thev will be certain to obtain better conditions by means of an Arbitration Court is simply nonsense. Wages have been reduced by the Court in New South Wales, and if justice be done, there will necessarily be times when working men will obtain worse conditions. For the reasons T have indicated, I shall vote for the amendment proposed by the honorable and learned member for Angas.
– When the honorable member for Richmond was speaking, in looking round for some case by which he could emphasize his arguments, he lighted with his usual nimbleness on Western Australia. He was very anxious to accuse the representatives of that State in this House of some little inconsistency, in asking that the exceptional conditions of that State should be recognised by the Government :in connexion with this and other measures.
– I said not “ inconsistency, “ but “variation.”-
– The honorable member accused us of an inconsistent departure from the principle of democracy. I think that in looking round for an illustration of inconsistency, he need not have gone further than the honorable member for Richmond himself. We admire his versatility, and particularly his ability to get up and on any text give us an interesting discourse - of which inconsistency as a rule is the prominent characteristic. I do not object to that in the least degree. I think that the whole of the members of this House would be sorry, indeed, if the honorable member for Richmond became so entirely logical that his inconsistencies disappeared. I, for one, - apart from my characteristic racial love of reason and logic - should be very sorry to see any such change. It would, I think, be damaging to the honorable member. The subject which we are discussing, as contained in the amendment of the honorable and learned member for Angas, is undoubtedly one that causes a good deal of anxiety to the Western Australian representatives. I have listened very carefully to the discussion, and I cannot help coming to the conclusion that the Government in this and in other matters are running a grave danger of riding a very good principle to death. So far as the common rule is concerned, I am anxious to see it applied to the utmost extent, consistent with the varying conditions that exist throughout the Commonwealth. But before I can support the Government in this particular matter, I want to be perfectly certain that any award given under this measure will be one that can be varied in accordance with local conditions. The honorable and learned member for Werriwa raised an important point, which he referred to the honorable and learned member for Bendigo. In order to obtain the opinion of that honorable and learned member, in a more definite form than he gave it by way of interjection, I spoke to him privately, and put to him a possible case. I asked if he thought that a Court constituted under this Bill could vary its judgments in respect to the local conditions of my own State. He admitted that there was very ‘ grave doubt indeed whether such a tribunal would have a power of that kind under the Constitution. If the Court would- not have that power, then I, for one, emphatically refuse to follow the lead of the Government on this matter. Unless I have a distinct pledge from them, that they will take measures to insure that the award can be varied, I shall support the amendment of the honorable and learned member for Angas. The conditions in the State of Western Australia vary to a very considerable degree. In the first place, they vary as compared with the conditions prevailing in the other States to a very large extent. Take the mining industry. The wages paid in Western Australia are, in some instances, more than -double the wages that prevail in Victoria.
– Justly so, too.
– Justly so; in fact, the special conditions that exist .in Western Australia are not sufficiently recognised even in the wages paid there. In connexion with that matter, I am of opinion that the tendency of any Arbitration Court will be to achieve as much uniformity as possible. I doubt, therefore, whether the very peculiar conditions of Western Aus? tralia would have that consideration from the Court to which they are entitled. But that is not the particular matter to which I wish consideration to be directed. It is this : that even within the Stale of Western Australia, and on one particular gold-field, the conditions vary, so far as the cost of living is concerned, within a distance of, say, twenty miles, as much as 50 per cent. In other words, if a township is on a railway line, the cost of living is much more reasonable than is the case at a mining camp some twenty miles away, where the cost of carrying provisions along a track by waggon increases their price in some instances by 50 per cent. I want to know whether this Court, in considering a dispute, say, in connexion with the mining industry, would be able to differentiate in Western Australia between two such places as I have indicated?
– Why should it not?
– I want to know, because I have the opinion of one of the best constitutional authorities in this House, that the decision of the Court must necessarily apply to the whole State. Mr. Watson. - Not at all ; we have specially provided against that.
– It must be so under section 92 of the Constitution.
– Are the Government going to take up such a position as will enable them to save this situation, if they find that they are putting what appear to be unconstitutional clauses into the Bill ?
– We have already stated that the Bill contains sufficient provision to insure that each application to extend the common rule shall be considered on its merits, and we are amending the provisions in that regard by an amendment, of which I have given notice to-day.
– I have no doubt that the Government consider that thev occupy good ground in reference to the point. But we have equally good constitutional authority to indicate that there is a likelihood - a very grave likelihood - that the Court cannot vary the conditions, even in a minute degree.
– But they can. If the honorable member looks at paragraph g of clause 46 he will see that every power is given there; and we are modifying that bv an addition to paragraph /.
– The power may be given in the Bill. I want to know whether the power that is so conferred by the Bill does not go beyond the power conferred by the Constitution. It is a very important point indeed, and I am sorry that the Government have not given us very much information on that aspect of the subject. They take it for granted that they are acting within the Constitution. But I have, as I say, authority of considerable weight-
– So have we.
– Indicating that, possibly, the Government are entirely wrong upon the question.
M!r. Watson. - There is authority of equal weight on the other side.
Mir. FOWLER. - When a question of that kind arises, I am going to be on the safe side; and, until I am absolutely certain, I am going to take no step that might possibly amount to a disastrous condition of things in my own State. As I have already said, I am afraid that the Government, in some respects, are carrying what appears to me to be, and what I believe to be, a good principle, just a little bit too far.
– We are modifying it. Mr. FOWLER.- No.
– The honorable member should not say “ No,” because we are.
– It may be so.
– It is so; it is not a matter of opinion, but of fact.
– I want to say this in conclusion - that I. am not satisfied that the position taken up by the Government is entirely a sound one ; and, until I am so satisfied, I intend to be on the safe side, and, failing the assurance that I have been asking for, shall support the amendment of the honorable and learned member for Angas.
– The discussion on this clause has revealed one of the great defects of this measure, which has been pointed out time after time. It is this - that the Bill seems to have been drafted with the intention of providing, first, a Federal Arbitration Court for cases extending beyond a State ; and, secondly, of providing a complete State Arbitration Bill for dealing with every question - not merely overflow disputes - in every State throughout Australia; while in the remaining provisions ingenious methods are inserted to evade the Constitution, and make it possible for the Federal Government to take under its control all the industries of Australia. I agree with the honorable member for Perth - at least, I agree with what his remarks would lead me to think are his conclusions - that we should, so far from centralization, have determined on decentralization as the best principle for controlling the industries of Australia. Local Courts ought to be far better able than a Federal Court to consider local circumstances. And with the honorable member for Perth I believe that there would be very grave danger - whether or not the Constitution demands equality - in placing all control in a central body, which cannot give due weight to local conditions. The amendment of the honorable and learned member for Angas is, in my opinion, a sufficient extension or the powers of the Court, at any rate at the earlier stages of a Federal law of this nature. The amendment gets rid of some of those dangers to which the honorable member for Perth has alluded, dangers which would certainly prove to be serious in the administration of ‘ this measure. A central Court cannot give that full consideration which is desirable to all the local circumstances which affect the rates of wages in different States and different portions of the States; and for that reason 1 believe it much safer to follow the course suggested by the honorable and learned member for Angas than to adopt the more extensive and more dangerous proposal of the Government. The Prime Minister has said that all the honorable member for Perth suggested is provided for in the Bill.
– I say that power is given to the Court by sub-clause g to meet all varving conditions.
– What I am pointing out is that ‘the system adopted in the Bill is one of centralization ; that is, presuming all the industries of the different States can be brought under that system. If those industries cannot be brought under the system, then the suggestion of the honorable and learned member for Angas is a good one.
– But the amendment does not go so far as the honorable and learned member for Angas indicated in his speech. With the amendment the clause could not be applied to other than the individuals immediately concerned as parties in the case.
– I do not mean as to individual members. I do not know that the honorable and learned member intended to go so far.
– The honorable and. learned member said so.
– If we are able to deal only with disputes extending beyond the limits of a State, then the proposal by the honorable and learned member for Angas is a good one; and many honorable members have declared that these are the only disputes with which we can deal. If, on the other hand, we are to deal with all disputes that may arise in any industry anywhere in the States, one Court, under this system of centralization, will have to take into consideration a multiplicity of differences in conditions, which would be far better dealt with by local Courts. There has to be considered the differences in attitude towards rates of wages. Some of the higher wages given in parts of Australia are only partly due to different climatic conditions and cost of living ; they may be due to a different attitude towards rates of wages in a place which is doing exceedingly well, such as Western Australia, where the mine-owners and others are making large fortunes. There higher wages are, for instance, given than in Queensland, where, in some parts, the conditions are not so good. Undoubtedly a Court that has to do with all Australia will not take into consideration this varying attitude together with the other climaticand social conditions. There should be decentralization, so that the body dealing, with an industry may be in close touch with the conditions and attitude of employers in a particular State, and keep in view the degree of prosperity those employers are experiencing, so that the wages in that State may be settled on local conditions. For that reason it would havebeen much wiser to adopt a different systemin the drafting of the Bill. The Federal power should have been left to deal withdisputes extending beyond the limits of anyone State, and the States authorities left todeal with local matters, of which they must have a better knowledge than could anycentral Court.
– It isevident that this amendment is being supported by some who desire in every possibleway to limit the scope of the Bill.
– We want to be fair.
– I am speaking, purelv from what fell from honorable members on the Opposition side, whom the honorable member for Corangamite, in his absence, may not have heard. We have in one or two cases had a repetition of the arguments used yesterday, when we were discussing the application of the Bill to certain classes of employes and employers, and I am justified in repeating that thisamendment affords some members another opportunity to limit the application of the Bill. The honorable and learned member for Angas admits that the words he proposes to inser; do not exactly convey what he wishes to convey. I saw the same objection that the honorable and learned member does to the sub-clause, namely, that the Court is given power to extend an award to any organization or any industry without giving that organization or industry an opportunity to make itself heard’ in the Court either for or against the proposal. Had the honorable and learned member not proposed some modification, or had we not had some assurance from the Government that the provision would* be qualified in some way, I should have taken action myself in the way of submitting an amendment. But the honorable and learned member for Angas has told the Committee that he seeks to give the Court power to apply an award to any organization that may be affected or may be connected with the industry concerned, and he said yesterday that he saw the impossibility of getting the Court to deal with unorganized labour. However we may debate the question of extending the operation of the measure, yesterday’s divisions proved, I think, that the Committee is convinced that the Bill cannot be made to apply to unorganized labour. It must deal with labour organizations. That being admitted, the honorable and ‘ learned member for Angas sees the necessity of limiting the provision to that body of workers or employers included in organizations. If the honorable and learned member could so draft his amendment so as to convey his meaning and no more, I should feel inclined to support him. I am quite with those who say that there is no necessity to extend an award to those who have not been consulted. If it can be shown that it is to be applied only to those who can be consulted - that is, any one who belongs to an organization, or who is in a position to give evidence on his own behalf- then we are on safe ground. But, as the honorable and learned member sees, there are hundreds, and, perhaps, thousands of workers connected with some of the larger industries who are not in organizations, and for whom the organizations must act. That is all that the honorable and learned member seeks to do, namely, to give the Court power to extend the award only to those organizations connected with the industry. The question of the common rule has been raised, and, rightly so, because in that is the whole issue.
– A dispute amongst miners at Bendigo or Broken Hill, which resulted in their wages being raised, might, under a common rule, cause a reduction in the wages of every man at Kalgoorlie.
– i am coming to the question of variation of awards in different districts. I am against a hard and fast application of the common rule without reference to the conditions under which it may be employed; and I do not think any one here will dispute that principle. As to the remarks of the honorable member for Richmond in reference to Western Australia, it is true, as has been stated by the honorable member for Perth, that there was, and is still, a good deal of anxiety in that State as to this common rule. I believe that the anxiety has arisen from some exaggeration of the supposed evils that might flow from an unwise application of a 4l rule. Still, the anxiety is there, and has to be removed ; and I believe it can be removed if this Committee will give, as .1 believe it will, due heed to the unusual conditions obtaining in that distant State. It is hard, perhaps, for members to realize how the conditions there vary, not only from those of the Eastern States, but in themselves over the enormous area of the State itself.
– There is ample power in. the Bill to enable the Court to act.
– I hope that it willprove to be the case. The fear arose chiefly from the intention to include seamen in the previous Bill. It was. proposed by the right honorable member for Adelaide, after he had resigned his Ministerial office, to extend that Bill if it did not already extend to seamen, and to make the application of the common rule absolute.
– To extend it to seamen on foreign ships?
– Yes. Honorable members can see at once how a proposal to deal with oversea ships might aim a very serious blow at Western Australia, in that it might destroy one of its means of communication with the eastern States. But I am glad that the Government have sought to modify the clause in a way which I believe will make it more acceptable to that State, and I am sure to the members of the Committee. Under the local Act, owing to the variation I have mentioned, Western Australia has been divided into industrial districts. A common rule applies to only a certain portion of the State, simply because, as between the coastal districts and the gold-fields, the conditions vary so widely that what may be a just rule of pay in one place would not be so in the other. Even before we had an Arbitration Act, the Railway Commissioner of the State recognised the difference in the conditions ; and for the same class of work a higher rate is paid on the gold-fields than on the coast. The reason for. this differentiation is so selfevident that it has not been questioned bv any one.
– Why should the Court question it? Why should it not also be governed bv common-sense?
– I believe that it will be so governed if our intention is made quite clear. I believe’ that the discussion of the question in relation to Western Australia has had a great deal to do with the Government’s modification, of the clause. They are only asked to do what is fair to all States. Although I am not quite prepared to accept the amendment which I have just heard read for the first time, still I am glad that the Government has taken a step to meet our views in this regard, and I hope sincerely that before the discussion on clause 46 is reached we shall be able to arrive at an agreement which will remove the fears which now exist in Western Australia. Even if we include in the Bill the proposed power, a doubt has been expressed by the honorable and learned member for Bendigo as to whether the Court could vary an award as between one part of a State and another.
– It would not be a common rule if the award were varied.
– That is simply a question of interpretation.
– There can. be a common rule for an area.
– A common rule tor Australia could not, of course, be a common, rule’ forone State only asagainst another. So long as it is made clear in the Bill that ihe Court can make a common rule for a portion of Australia - a limited rule, if you like, but still a common rule in the area - l shall be satisfied. I do not lake it that ihe term necessarily implies a rule which must be common to the whole of Australia.
– It has to be a Federal mie; but would it be a Federal rule if it were varied in its details?
– I think so. If the objection can be raised that the Court cannot exercise that power of variation, cannot a similar objection be taken to the exercise of any of its powers ?
– In New South Wales the Court exercises its discretion.
– Because it is not limited by the Constitution.
– The question here is that certain limitations in the Constitution would prevent -the Court from making a rule which was varied as between one State and another. I cannot at present see very much force in the objection, because, as I said, if it applies in one instance, it must also apply in another. Of course we are subject all the time to that one limitation, the dispute extending beyond the boundaries of any one Slate. The question of the inclusion of seamen has not yet, I understand, been definitely decided.
– An amendment will be circulated in due course.
– The opinion is held that they are not at present included in the Bill, and that a new clause will be proposed in which they will be specifically mentioned.
– Just so.
– I should like the Government to allow us to see the new clause at the earliest possible moment. Probably before the close of this sitting we shall be discussing the question of the common rule, and we are anxious to know what the Government intend to propose in reference to seamen before we are asked to vote on paragraph / of clause 46, which relates to its application. I think that the Prime Minister will see that it would be unfair to ask us to vote in the dark on the common rule and its application to seamen, unless we know exactly on what terms they are to be admitted and what qualifications or modifications the Government propose to make in reference to them. I ask the honorable gentleman to place before us at the earliest moment the new clauses which it is intended to propose.
– That will be done.
– I am glad to receive that assurance. The honorable and learned member for Angas has not quite expressed in his amendment what he wishes to do. The Government have given an assurance that what he desires to do has been, or will be,, done in another part of the Bill, and, therefore, although I am with the honorable and learned member in wishing to limit the Court in its powers of making its award a common rule, I am not prepared to support his amendment unless what he desires is expressed in a more definite form.
– It seems to me that the honorable member for Fremantle, in discussing the question of the common rule as applied to districts, has overlooked the fact that a bond fide dispute, originating and having its sole existence in one district in one State, could not be brought before the Federal Court.
– I do not imagine that for. one moment.
– The honorable member instanced the case of Western Australia, in which there are several industrial districts, and I think that one might almost infer from his remarks that a mapping out of the Commonwealth into industrial districts of a similar nature would meet with his approval. But I submit that it would be impossible for- the Federal Court to map out Australia into industrial districts, because its duty would be to adjudicate in the case of a dispute extending beyond the boundaries of any one State, and, of course, if a dispute did not so extend it would not be a bonâ fide one for a Commonwealth Court to ‘settle. The proposal of the Government to amend the application of the common rule is certainly a modification of the original provision, and, therefore, it is greatly to be approved, but it does not go quite far enough. What is the proposal ? That instead of the Court declaring the common rule absolute, as it would have had to do under the previous Bill, and then allowing, the people who objected to its application going to the Court for relief, it is now proposed that the Court shall advertise in the Government Gazette the fact that the common rule will be made absolute after a certain time. There will be hundreds of persons in an industry to which the common rule is sought to be applied, who will naturally think that they ought not to be brought within its application, and the Court will be deluged with appeals, so that its business cannot be proceeded with.
– That has not been the case in New South Wales, where a similar right exists.
– I understand that there has been a number of appeals in that State.
– I do not know of any but two, and if the honorable member knows of any others, let us hear of them.
– I am not able to speak from personal knowledge, but I know that in that State small disputes usually occupy the attention of the Court. For instance, in the first three months of this year there was not one new dispute of any magnitude heard, but only appeals arising from old disputes.
– I do not know that.
– I think that the honorable gentleman told us so last night.
– I did not say that they were not heard ; I said that they were not settled.
– What I meant to say was that no new case of any magnitude was settled during the first three or four months of this year, and that the Court was always engaged in re-hearing old troubles. “I would suggest to the Prime Minister that his proposal should include a provision for the notification, not only in the Gazette, but at every public building in the Commonwealth, of the fact that the common rule was intended to be applied to an industry. That is a more reasonable way of making the information known to the people.
– Every hotel would be a good place.
– I do not think that people there would perhaps quite realize what the common rule was. The honorable member for Darling argued that the larger an organization is, the less disposed are its members to strike or to cause trouble. But I would remind him that the most serious disturbance in. New South Wales since the creation of the Arbitration Court was caused by, perhaps, the most powerful, and certainly the largest union in the State. We are . asked to believe that the Shearers’ Union did not strike. It certainly did not work.It formed strike camps, and behaved in a manner which suggested the existence of a strike, lt is hardly a fair argument to say that the size of a union precludes ils members from striking. Certainly, under this Bill it would not have any such effect, because a minority of the union or any number of men in a union could bring about a strike; it would not be necessary l.o get a majority of the union. I take it that if the common rule is meant to be applied in its wider aspect, it will be applied in industries in States which have not an Arbitration Court. Obviously that is interfering with the self-governing rights of the States, because each State has its own Government and Parliament, and the fact that three States have not so far adopted this arbitration principle, although it has been an object lesson to them in three other States, suggests that in their opinion it has either not been tried sufficiently long to be adopted by them, or that thev do not like it.
– The Arbitration Bill was defeated in the Tasmanian Assembly bv a majority of more than two to one, notwithstanding that the State franchise is the same as the Federal franchise.
– That goes to bear out my contention. In view of the fact that the common rule might, in its application, interfere with the self-governing rights of the States, we should approach the question of its inclusion in this Bill -with the greatest’ caution. Disputes, bona fide extending beyond the boundaries of a State will be very few, and I do not think it necessary to apply the common rule to all and sundry. For these reasons I shall support the amendment.
– I intend to vote against the amendment, the object of ‘which is practically to make an award binding only on the parties before the Court.
– It means more than that.
– If it means more than that, it presumably amounts to about the same thing as the Government proposition. I do not know exactly how far the honorable and learned member for Angas wishes awards to extend.
– To non-union men working in the same establishment as the union men who have gone before the Court.
– I do not think that that is far enough. I prefer the amendment suggested by the Government. The whole question is worthy of careful consideration. In the first place we must remember that, under the Constitution, we have power to make laws for the prevention and settlement of industrial disputes only. Our power to regulate trade and industry is limited, and the giving to the Court of the right to make a common rule has been objected to as equivalent to a delegation of a legislative authority which this Parliament does not possess. It is clear that we have no power to confer upon the Court general powers of legislation. If we look in the powers delegated to us under the Constitution for authority to confer the power upon the Court to make a common rule, we are thrown back on the word “ prevention.” The honorable and learned member for Angas practically wishes to confine the Bill to the settlement of industrial disputes, leaving out of consideration their prevention. The application of a common rule is to be justified only on the ground that the Court by extending an award can prevent an industrial dispute. I do not know any other authority for the making of a common rule. We can empower the Court to make awards for the prevention of industrial disputes, and consequently to extend their application beyond the parties which come before it.’ If the Court makes an award, it will have power to extend its application in order to prevent industrial disputes, but it seems to me that it will not be able to go further than that. The point raised by the honorable member for Perth,’ as to whether we can empower the Court to vary the terms of an award, is a very important one. I think that we have’ full power to give the Court jurisdiction to vary its awards. He referred to a dispute extending from Western Australia into South Australia. The Court in dealing with such a dispute would have power to make an award which would apply to both States, and in order to secure equality of treatment it could adapt it to the varying conditions under which it would have to apply. The honorable member spoke of the variation of conditions in Western Australia as extraordinary, but I think that the variation of conditions is even greater in Queensland than in Western Australia, because of the greater extent to which population has settled in the tropical and western parts of the State. The Court, in giving an award, will have full power to consider all circumstances of climate, soil, season, and the like, in order to secure equality of treatment. The only suggestion I have to make is ‘ that the Prime Minister should consider the advisability of inserting a provision similar to that in the Electoral Act, which requires the Electoral Commissioners, when dividing the States, to consider geographical situation, means of communication, and various other matters. It would be a safeguard if we put some such instruction into this measure, to make sure that the Court before announcing a common rule shall consider climatic conditions, area, and other circumstances.
– I see no objection to the insertion of some such provision as an indication of our intention.
– The honorable member for Richmond has drafted an amendment to that effect.
– I did not know that. I would suggest that the Prime Minister should ask the parliamentary draftsman to consider the matter, so that the mind which drafted the measure as a whole may provide for the fitting in of the amendments we wish to make. Another point raised by the honorable member for Perth was this - Can the Court, after it has given an award, vary its application, to different parts of Australia? I think that it will have that power. For instance, an award might be made applying to a mining field remote from a railway, so that the cost of living, by reason of the heavy expense of bringing goods there, was very high. Afterwards the construction of a railway might entirely alter these conditions. In such a case, I think that the award could be varied, so as to secure that justice should be done under it. It has been suggested that to vary the award so as to make its conditions vary in different States or parts of one State, would be a preference under section 99 of the Consti- tution. There must be no giving of a preference to one State over another, or to one part of a State over another. The object of varying an award would be, not to give a preference, but to secure equality of conditions.
– A similar provision an the Navigation Bill would create a great many exemptions.
– If seamen are included in this Bill we shall be able to extend the provision of an award to those on board foreign vessels engaged, on the Australian coasting trade, but not without expressly mentioning them. The Attorney-General, no doubt, has the matter under consideration. The Bill, however, empowers the Court to vary an award,” and a later clause, empowers it to vary an order in any way it thinks fit. As a common rule is included under an award, the Court will have power tq vary a common rule. There is nothing in the Constitution to prevent the variation of an award given to settle a dispute extending to two or more States, because such a variation would not amount to the giving of a preference, or to the exercise of a discrimination. The variation is done merely to secure equality of conditions. I view the provision dealing with a common rule with considerable apprehension, and I hope that the Court will exercise this power with the greatest discretion. Otherwise the power to prevent disputes will be converted into a delegation of power to legislate upon industrial matters, which, I think, is not the intention of the Bill, and would be opposed to the Constitution. Our desire is to prevent great national disputes, and to provide an effective means for their settlement and prevention.
– I understand that our power to provide for the application of an award to some areas of a State and not to other areas or to other parts of the Commonwealth has been questioned. Section 99 of the Constitution provides that -
The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.
I have not the slightest doubt that that provision in no way endangers the common rule. It cannot be said that preference is given by the fact that there is one regulation for one part of the Commonwealth and another for another part. For instance, in dealing with the plague or with quarantine, it would be perfectly legitimate to apply one law. to a hot climate like that of Port Darwin, and to enact different conditions in the case of a region like Hobart, where the climate is cool. It would be absurd to say that that would amount to a preference within the meaning of .the Constitution, although there is no doubt that such regulations would have their effect upon trade and commerce, and even revenue. I have had the advantage since I came to that conclusion of perusing a passage in Quick and Garran’s Annotated Constitution of the Australian Commonwealth, in which it is shown that in the United States Constitution, there is a provision, upon which that introduced into the Australian Constitution is based, that no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another. Of course, it may be urged that, to provide a wharf at one port and not at another port, would be giving a preference. But that would reduce the provisions of the Constitution to an absurdity, and it has been held, therefore, bv the authority quoted by the learned authors of the work referred to, that -
The mere improvement of a particular harbor, the clearing of the navigation of a river which involves the altering of its channel, the erection of a bridge which obstructs navigation, all these, while they may incidentally benefit one port more than another, are not preferences within the meaning of the prohibition.
– That would be an elimination of natural conditions.
– Yes. When we speak of preference we mean unequal treatment under equal conditions, or favouring one place over another. The authority previously quoted goes on to say : -
The people, in adopting the Constitution, intended to stop for ever one State requiring exactions from the people of another for its own peculiar benefit; but they never intended to prevent the Federal Government for the good of all the States from undertaking public works in a particular locality.
In discussing this very important subject it will be of some help if we can eliminate at least one difficulty, and there is now no doubt in ray mind that we are perfectly free to give the Arbitration Court the power to make distinctions between one area and another in the Commonwealth.
– I quite agree with the view just expressed by ‘the AttorneyGeneral as to the power to make a common rule, apparently not common on the face of it, although really common in its essence; that is to say, a rule which,although showing an apparent difference in the mere words and figures, is actually producing, as far as possible, equivalent results. That seems to me to be the true fundamental principle of the common rule. It is not merely possible, but absolutely necessary, to make variations in the application of the rule to different localities, in order to establish a common rule in the true sense of the term. It is just as possible to make variations as to localities as in regard to occupations. The principle involved is exactly the same in each case. The conditions vary, and, therefore, the decision of the Court should vary. I must confess that the whole question as to ‘the extent of our powers with regard to the common rule has caused me a good deal of anxious thought, not because of the section as to preference quoted by the Attorney-General, which does not affect the matter in any way, but because the application of the common rule may have this result : A dispute arises in one State and extends to another. It is brought under the notice of the Arbitration Court in the proper way, and the Court proceeds to deal with that dispute, and then, in pursuance of the powers purporting to be conferred on it by this Bill, declares what are to be the rates of pay or hours of work in the same industry in a third State. I shall presently indicate how the Constitution apparently confers the power to do this, but before doing so I wish to point out that we may be coming into conflict with its provisions. The honorable and learned member for Darling Downs suggested that we might find authority for our common rule in the muchdiscussed word “prevention.” Possibly there is something to be said in connexion with that argument, but the full analysis qf that line of reasoning would render it necessary to separate the words “ extending beyond the limits of any one State “ from the words “industrial disputes.” I could not agree to that proposition, unless some impelling force stronger than any that now occurs even to my imagination com,pelled me to do so.
– If two States were already affected, the dispute would have extended beyond the limits of any one State.
– Yes, no doubt, but I am pointing out that in a case such as I have indicated, the Federation would be enabled not merely to interfere in an industrial dispute in a State, but. to control an industry in a State in which no dispute had arisen. That strikes one, at first sight, at any rate, as a somewhat remarkable power for the Federal authorities to exercise; and it is this remarkable result - which inevitably follows if we trace to its. ultimate conclusion the establishment of the common rule - which causes me grave anxiety as to whether the application of the common rule is within the competence of the Federal Parliament through its agent the Arbitration Court. I am speaking quite apart from the question of the delegated power of legislation, with which I am not dealing for the moment. On the other hand, it may be said that once the Federal authorities obtain a foothold and find a platform on which to work ; that is, once a dispute extends be’yond the limits of any one State, there is nothing in the Constitution expressly prohibiting the exercise of their powers to any extent that logical reasoning and inference may suggest.
– In the line of the same dispute.
– Exactly. That is to say, once there is a dispute in two States which will enable the Federal authority to deal with an industry, there is nothing to prevent the exercise of control to the full extent of the ultimate ramifications of that industry throughout the Commonwealth. It is quite possible that, in support of that position, it may be argued that in these grants of power - and I think the American decisions are applicable to this at any rate - any necessary power that is not expressed in the grant, and which is required for the full exercise of the power expressed, is to be implied. It may be said that unless the power to apply a common rule is implied in the grant we have not a grant sufficient to enable us to deal thoroughly with the matters as to which express power is given. It may also be urged - although I do not -attach very great value to that point - that sub-section XXXIX. of section 51, which gives us powers in matters incidental to the powers previously conferred, furnishes an argument in the same direction. I must confess that I am unable to form an opinion one way or the other as to whether the common rule power is really within our competence. It is so far open to argument that a much wider discussion will be necessary before I shall be able to form a definite conclusion. However, we shall not reach clause 46 for a day or two. It is, therefore, well that a discussion should have arisen at this stage, because. I think we can all agree that we have derived food for thought from the various views which have been expressed here this afternoon.
– Plenty of food, but indigestible.
– That depends on the strength of the digestion. I always understood that the official digestion was capable of digesting anything, or, at any rate, of making a show’ of doing so. As regards the actual limitation to be placed on the common rule, I do not think the Government proposal is entirely satisfactory. I do not approve of the exact form of the. amendment proposed by the honorable and learned member for Angas, because I do not see how we shall be able to satisfactorily limit the power of the. Court by the method which he suggests. It seems to me that it would be difficult to accomplish the desired -end in the way proposed without opening the door to a whole army of disputes regarding some matters which ought to be settled in the one award, and, therefore, at present I do not see my way to support the amendment. I would direct the attention of the AttorneyGeneral to the limitation that is imposed, quite apart from the industrial district limit, in the New Zealand Act. I wish, incidentally, to refer to the statement of the Prime Minister,, that the trend of New Zealand was in the direction of more absolutism in the matter of the common rule.
– That is perfectly correct; at any rate, I formed that opinion eighteen months ago.
– I was in New Zealand as recently as five months ago, and, although I had many conversations with officials, I was unable to find evidence in support of the Prime Minister’s statement.
– I was speaking about the trend of the trades unions.
– The New Zealand Arbitration law was consolidated in 1900, and the Act of that year contains a provision that common rules may practically be established beyond the bounds of one industrial district. The Court is vested with -
Tower to extend the award so as to join and bind as party thereto any specified industrial union, industrial association, or employer in the colony not .then bound thereby or party thereto, but connected with or engaged in the same industry as that to which the award applies. Provided that the Court shall not act under this sub-section, except where the award relates to a trade or manufacture, the products of which enter into competition, in any market, with those manufactured in another industrial district-
I would direct attention to -these words, because, although they may not, as they stand, offer a solution of’ the difficulty, they may indicate the best method for us to follow. The clause further provides - and a majority of the employers engaged, and of the unions of workers concerned in the trade or manufacture, are bound by the award.
The Act of 1903 amended that provision by omitting the words “ and a majority of the employers engaged and of the unions of workers concerned in the trade or manufac- ture are bound by that award.” Evidently the restriction was found to be undesirable and unnecessary. Under the New Zealand law, however, if my memory serves me accurately, an award can be extended from one industrial district to another. In other words, it can be made the common rule for New Zealand only if the products of a trade or manufacture in one industrial district enter into competition in any market with those manufactured in another industrial district.
– That bears out what I said a few minutes ago, inasmuch as it constitutes some extension of the common rule.
– That is so. But the point with which I am particularly concerned is that the New Zealand law at least suggests a means by which we may arrive at a satisfactory solution of this very difficult problem.
– Would not the honorable and learned member trust the Arbitration Court in the matter?
– It is all very well to put a question of that kind. My answer is that we are trusting the Court a very great deal, and for the reason that we cannot help doing so. As I am reminded by the honorable and learned member for Ballarat, when he declared that these long definitions were unnecessary, he was informed that it was just as well to insert in the Bill signposts for the purpose of suggesting to the Court the lines along which we desired to proceed.
– Honorable members opposite would not accept some of those signposts.
– There were more signposts than anything else. As I remarked upon a previous occasion, one of them pointed the road to nowhere. We trust the Arbitration Court only as we trust an Executive to frame regulations, simply because we are unable to do the work ourselves. We have neither the time nor the skill in details necessary to satisfactorily perform it. In my judgment, we ought to declare, as’ far as we possibly can, the conditions under which the common rule shall be applied. Obviously, it would not be wise to insist that, in regard to gold-mining, there should be a common rule for Kalgoorlie and Ballarat, because there would be so many variations between that rule as it applied to Kalgoorlie, and as it applied to Ballarat, that it would consist entirely of exceptions reciprocally.
– The “ common rule “ is handy enough as a phrase.
– Perhaps it ought to be called “ the single award principle.”
– “ The general rule “ would be a better term.
– In any case, the principle is that of obtaining results by a single award. I venture to think that in many cases a general rule would consist wholly of variations, because of the difference between local conditions which obtains. It certainly would have been so had the Government carried their proposal having reference to domestic servants. That would have been an instance of putting a new lock, stock, and barrel, on the old gun. I do not suggest any form of amendment at this stage, because I am not aware of the view which the Government take of this matter. I think, however, that they have heard sufficient this afternoon to cause them to reconsider their own proposal. That proposal might work- fairly enough in the case of organizations with funds, but it’ would operate very unjustly in the case of those who are not organized, and who are without a common fund. It proceeds on the assumption that persons who are not parties to an industrial dispute will be able, effectively, to come before the Court. Obviously, small groups of individuals, who might be scattered over a large area, would not be able to take advantage of such a provision, and I do not believe in an arbitration law being used to coerce people into forming organizations. I think it is desirable to specify the class of cases to which the common rule shall apply. The method which, is adopted in New Zealand suggests, something in the nature of a solution of this difficulty. It prevents the application of a general rule to cases in which the conditions are obviously diverse and competition obviously non-existent. I shall be glad to hear if the Government think it is possible to give effect to some such method in the drafting of clause 46. It is just as well that this discussion has arisen at the present stage. It has thrown some light upon the subject, and the afternoon will not have been wasted if we can arrive at a satisfactory solution of an admittedly very difficult question.
– The Government will consider the matter.
– I listened with considerable attention, and, I trust, with some profit, to the speech made by the honorable and learned member for Corinella, and I agree with him that the points raised are of very great importance, and deserve the very fullest consideration. There is grave doubt as to whether the Constitution gives us power to enact that a Court of Arbitration may declare a common rule that will bind all persons engaged in an industry, whether they be represented before the Court or not. I give expression to my opinions on this matter with some hesitation, because the subject is a most abstruse one; but I am inclined to think that the amendment is certainly within the limits of the Constitution, and is a safe one. As I understand its purport, it is that if, for example, a dispute arose between the owners of, and the workers in, a mine at Broken Hill, and simultaneously a like dispute occurred between the Mount Lyell Company and its miners, the award of the Court in relation to it would be binding on all workmen, unionists or non-unionists, engaged in those two mines. The honorable and learned member for Angas takes exception to the proposition that in such a case the award of the Court should be made applicable to, say, the mine-owners and miners at Rutherglen, Ballarat, Chillagoe, Mount Morgan, Tarcoola, and other places. His contention is sound in equity, and hasgrave considerations of constitutional law to support it. I do not see any grounds, in equity why in such a case the award should be made applicable to the minersnot represented before the Court. The Government have informed us that they propose that industrial organizations of employers and employes, other than those participating in a case before the Court, shall be given an opportunity to be present at any attempt on the part of the Court to fix a common rule. A perusal of the Government amendment which has just been circulated shows, in my opinion, that it would go no distance towards effecting that result. It is proposed that notice shall be given in the Commonwealth Government Gazette. That would be of no advantage. I have been a member of ‘this House since 16th December last; but, although I regularly attend the sittings of the House, I have never seen a copy of the Commonwealth Gazette; nor have I met an individual outside ‘this Chamber who has- A large number of business men take the Victorian Government Gazette, because of the notices which appear in it from time to time ; but I have never met a business man who takes the Commonwealth Gazette. It, therefore, seems to me that the Government proposition that notice shall be given by means of advertisement in the Gazette is a farcical one. Such a notification would not in any way assist persons who might be affected If the Government amendment were accepted, its effect would be, to use the illustration I have previously given, that a dispute at Mount Lyell and Broken Hill could be settled by the Commonwealth Court of Arbitration; but that, if it were sought to prescribe a common rule, the mine-owners and mining representatives from all other parts of the Commonwealth would be compelled to attend the Court in order to safeguard their interests, and to produce their books, and go through the whole formula of having their case tried, although they might not wish to do so. The Government proposition would increase the work of the Court, without giving any sufficient return.
– What. else can the honorable and learned member suggest to effect the object in view?
– I think that the amendment moved by the honorable and learned member for Angas is the correct one.
– That would not permit of a common rule.
– I have the gravest doubt whether the Constitution gives us power to authorize the Court to prescribe a common rule. Notwithstanding what has been said, if the Court declares that the wages at Ballarat should be at a certain rate, at Broken Hill another, at Chillagoe another, and in Mount Morgan yet another, such a rule could not be called common or general.
– That is not a constitutional point ; it is merely a matter of terms.
– It is a question of law whether such a rule could be called common.
– We may call it what we please, as long as we make our meaning clear.
– If such a rule were made, we should have the Court going beyond its constitutional powers to interfere with a dispute that had overflown beyond one State, by fixing the wages, conditions, and hours of employment generally, in industries within the boundaries of any or all of the States, although a dispute might not have arisen in some of them. By this attempt to bring about a common rule we are proposing to allow the Court to interfere in matters which are not in dispute in certain States. The honorable and learned member for Darling Downs holds that the Constitution . gives us this power, because it’ refers to the “prevention” of industrial disputes; but I agree with the view expressed yesterday by a number of the legal members of the House that the word “prevention” is practically ejusdem generis with the word “settlement,” and that we must take it in conjunction with that word. I think that the use of the word “ prevention “ does not give us wider power than we should possess if we had simply the right to “ settle “ industrial disputes. The question is of very great importance, and the proposition to provide for the establishment of a common rule is open to so many constitutional objections that it deserves further consideration. I presume that even if we pass the clause as it stands, a further opportunity to consider the question will be given when we are called upon to deal with clause 46. I am not at present satisfied that the Constitution gives us power to establish a common rule, and I shall require very sound arguments to convince me of the correctness of the contention that the High Court would uphold a Statute that empowered the Arbitration Court, in a dispute which had arisen in two States, to fix the conditions of employment in three or four of the other ‘ States in which no dispute had occurred, and from which no dispute had been referred to the Court. Such a proposition would require much justification before the High Court, and I have notyet heard any arguments dealing seriously with the proposition raised by the honorable and learned member for Corinella, and the honorable and learned member for Bendigo. That being so, it seems to me that the safe course for us to pursue will be to vote for the amendment moved by the honorable and learned member for Angas. Under it an award would be binding upon, all persons, whether unionists or non-unionists, interested in the dispute in question ; it would enable a dispute arising simultaneously in Broken Hill and Mount Lyell to be effectually settled, and it would also enable the Court to do that which is its duty, and not to interfere with matters which had not been brought before it in the prescribed way.
– A very important question has been brought before the Committee in relation to the power of. the Federal Parliament to authorize the Court to prescribe a common rule. I recognise at once . that if this amendment were carried it would put an end to the common rule. It is not a question of modification ; the amendment in effect provides that there shall not be a common rule. Its meaning is simply this : That every employer must fight a separate battle, even with the same organization of employes.
– Surely not.
– The wording of the amendment, as I have it, is that the award is to bind only the parties to the dispute in question.
– The honorable and learned member for Angas put before the Committee what he sought to achieve, and said that he wouLd accept any alteration of the amendment that would give effect to his object.
– The moment we accept an alteration, it will become to that extent a common rule. We must have either a common rule, or separate independent litigation in every case. We may make the common rule wider or narrower; we may make it apply to a locality or to a number of employers - to the whole of a State, or to the whole of the Commonwealth - but the moment we go beyond the immediate disputants, to that extent it will become a common rule, and to that extent we shall accede to the principle of having a common rule. The substantial meaning of the amendment now before the Chair is, that the decision of the Court is to bind the particular disputants in a particular case.
– The particular organization.
– Not the particular organization.
– That is the intention.
– I reiterate that that will not be its effect. Are we going to say that the decision of the Court is to be confined to the particular organization of employes, and the particular employer or organization of employers between whom the dispute exists ; or, that in all disputes between that organization of employes, and all other employers, the same rule shall apply? If we adopt the latter method, we shall be giving a common rule pro tanto. If this amendment were carried, it would be fatal to the common rule, and for reasons which I shall advance presently, would render the Bill unworkable. It would mean that an intolerable burden would be put upon the whole of Australian commercial enterprise - a burden which might not be compensated for by the good result that might otherwise attend the passing of the Bill. But we must face this position : that it would be an abolition of the common rule. ‘ Why is it said that there is no power to authorize the Court to declare a common rule? The reason, as advanced by some of my honorable friends, is that we cannot provide in advance for disputes; that we must wait until a particular dispute has arisen, before we can settle it. They say in effect, that we cannot prevent a dispute, because we must wait until it has actually arisen. That means the abolition of “ prevention.” If we are not to provide in advance for disputes, we must absolutely strike out the word “prevention.” Are we reduced to that position? We have the word “ prevention “ in the Constitution.If, as was said by the honorable and learned member for Wannon, a dispute occurred in an industry, and extended from Victoria to New ‘South Wales, the . contention is. or, I should rather say the suggestion - because the honorable and learned member did not express any definite opinion about it, no one can - that it would be unconstitutional for the Court to declare under whatever authority we choose to commit to it a rule which shall bind a similar dispute extending from Victoria to South Australia. If that be so, we had better tear up this Bill, and I shall show honorable members why. If we cannot authorize the
Court to make a common rule to declare what shall be the regulations of industry in relation to a dispute that has not yet arisen, how do we get the power to declare that in future all over Australia there shall be no strikes and no locks-out? We are provid-. ing for future disputes. We have proposed to enact here that if there is a dispute in future in any trade, between employers and employes, the employes shall not strike, and the employers shall not lock-out. Is that constitutional ?
– Would the . honorable and learned member try them as criminals if they did?
– That is not the question.
– It might be the only way in which we could secure prevention.
– That is not a question of constitutional power, but of expediency.
– It is a question of prevention.
– The honorable and learned member will permit me to say that it has nothing to do with the question at present under discussion. I say that if we cannot legislate indirectly, so to speak, that is by delegation - if we cannot say to a Court, “ We delegate to you the power that we do not choose to exercise ourselves of deciding what shall be the hours and conditions generally, of labour and its remuneration, in connexion with disputes in businesses or enterprises affecting Australia as a whole, then we cannot do it ourselves. Mr. Conroy. - Can we do it directly, without the intervention of this Bill ?
– That I say is not the constitutional question.
– It is part of that very point.
– I have no hesitation in saying that, in my opinion, we can provide directly, that, for the prevention of industrial disputes extending from one State to another, certain conditions shall prevail.
– Does the honorable and learned member hold that we can do that now ?
– I hold that we can. If we can say that strikes shall not occur, we can do that.
– Then this will be reallv a Bill to control the conditions of labour, and not a Bill to settle disputes.
– My honorable friend has perhaps not heard what I said. We are not now talking about the Bill, but . about a clause in the Constitution and about the powers given to us as a Parliament by the
Constitution. We are asking ourselves the question whether there is this power, in order to secure the prevention of disputes, to provide that a Court can declare a common rule - that when a dispute arises which extends between two States we may provide that an Arbitration Court may declare a rule which shall apply all over Australia. I say that if we cannot authorize a Court to do that, we cannot ourselves make a rule that shall apply all over Australia.
– Hear, hear.
– And, therefore, we cannot provide that there shall be no strikes.
– We can.
– If my honorable and learned friends are prepared to contend that this Parliament has not the power to say that in a dispute which extends from one State to another there shall not be a strike, or there shall not be a lock-out, then it would follow, in my opinion, as a logical sequence, that we could not authorize a Court to do anything in the direction in which we are seeking to go.
– That contention is correct - that part of it.
– Does the honorable and learned member hold that before a dispute has arisen we can lay down lines for its settlement ?
– Have we not done that already? I say that we have assumed the power to do that. If we are right- about that, we are right as to the power we are now discussing. If we are wrong about the power we are now discussing, we have been wrong in what we have done, already. I am putting the two things on the same basis. I am showing how radical this objection is, and that it goes to the root of the whole Bill. I therefore repeat what I set out with, that if we have not the power to do this, apart from the expediency of it, we may as well tear this Bill up at once.
– We can still settle disputes as between the parties to them.
– Then the Bill would be perfectly useless, as fresh litigation would be required for every dispute.
– I am addressing myself to the power to go further than the honorable and learned member for Werriwa suggests. I would say that it would be in the highest degree unfortunate, inconvenient, and burdensome, if, in a Bill of this kind, we were to say to every individual employer and employe, and to every organization of employers, and every organization of employes - “ You must fight every inch of the industrial ground.” If that were so, an organization of employes in Bendigo would nave to fight their position, or fight against the demands of employers; and, in the same way, Bendigo employers would have to fight their position, although a Court had dealt with matters almost exactly similar in Ballarat. Employers and employes in every town in this State, and in every town in Australia, would have to light a separate battle.
– Can this Arbitration Court award costs?
– Let us stick to the point.
– If men knew that a clear decision had been given against them in another case they would not apply to the Court the next minute.
– My honorable and learned friend must be aware that we are not talking about costs. We are talking about inconvenience to trade; about the possibility of business men being called upon at any time .10 consider, as perhaps the main part of their business, that they may have to enter upon industrial litigation. That is more than costs. I say that we should have no security of equality, not merely between States, but even between towns in the same State, or between organizations in the same city. There would be no uniformity of any kind whatever.
– Would an organization in a State be able to bring its dispute to the Arbitration Court if the dispute did not extend beyond the boundaries of the State?
– No. What I am saying is this : According to this Bill, there must be a dispute that has already extended from one State to another before it can be brought into operation, and before the jurisdiction of the Court is exercised. But if we once grant ‘that jurisdiction the question is whether we can empower the Court to make a rule which will prevent disputes of a similar kind extending in any part of Australia.
– I think the Court could deal with disputes in a single State, after “it had once dealt with the industry concerned in that State.
– It might be so. But I thought I was asked a question as to the initial jurisdiction. When an award .has been made, it is a question of a breach of the award or a breach of the common rule.
– Or a fresh, question arising in connexion with matters which had previously been decided.
– That is another question.. I am now dealing with the question of a common rule, and whether there ought tobe a common rule. If we are going to make this Bill in any sense a real Arbitration Bill, I do think we must assume a jurisdiction of this kind, right or wrong. Of course I believe we shall be right in assuming it. But, right or wrong, I should be very sorry to see a measure turned out from this Parliament which would simply say to manufacturers, business men, employers generally, and to the workers of Australia, “ The decision in one case does not settle another, but you are to be put’ into a perpetual ferment of litigation and possible litigation.” That would undoubtedly be calculated to hamper enterprise, and, instead of helping men to work their business concerns more smoothly, it would prove a serious detriment and obstacle. If that be done, I know one class in the community which will benefit very much, if the Committee determines that lawyers are to interfere at all. But whether lawyers are trusted to appear before the Arbitration Court or not, honorable members may depend upon it that, if this common rule is not allowed, they will be kept very bu’sy giving opinions, and in giving their advice and assistance, perhaps not directly before the Arbitration Court, but in guiding matters outside. I think that the legal members of the Committee can say in all sincerity that none of us desire to see anything of that kind.
– There will be no appeals against a common rule.
– The honorable and learned member must know there is no appeal on a question of fact, but there may still be an appeal to the High Court on a question of law.
– It has been taken away under this Bill.
– In this matter of jurisdiction the Constitution gives the right.
– The Constitution gives the right of appeal, and we have to vest the appellate jurisdiction in the Court.
– This takes it away.
– This Bill takes it away on a point of law.
– I understand that there is no appeal on a question of fact, but there is an appeal on a question of law.
– “ Subject t o such excep- tions and reservations “ are the words in the Constitution.
– Am I to understand that we have attempted in this Bill to say that there shall be no appeal on a question of law ?
– The honorable and learned member will find it in clause 39. “ The appellate jurisdiction is a creation of Parliament, and not a creation of the Constitution.
– The clause to which the honorable and learned member refers me, says -
Subject to the Constitution, no award of the Court shall be challenged, appealed against, reviewed, quashed, or called in question in any other Court on any account whatever.
I do not hold that that is taking away the right of appeal on a question- of law.
– That is so.
– I am glad that the honorable and learned member for Bendigo agrees with me.
– The honorable and learned member will find that it does.
– If there is excessive jurisdiction.
– That is a very different thing. That is the Court exercising a power which it does not possess.
– That is exactly what I have said. If that clause requires to be made more clear, I shall be delighted to see that done.
– I propose to try to amend it.
– There is another matter which ought not to be omitted from our consideration of this question. It is true that we have over Australia a vast variety of conditions, differences of climate, differences of accessibility, and many other differences mentioned by honorable members who have preceded me. All these things are of the highest importance in determining how far any common rule should be made to apply ; whether, indeed, it should be made at all in any particular dispute, and, if made, to what extent it should apply, and with what conditions, qualifications, or’ modifications. But that there should be the power - and it is only a power - in the Court to make a common rule is, I think, essential, not only for the reasons I have already given, but for one other reason which will commend itself, I have no doubt, to many honorable members. That is that we should endeavour to equalize the conditions of trade all over Australia. We shall be doing a very great deal to insure true equality of commercial conditions if we allow a common rule to be made. If we do not we shall have decisions given that will vary, necessarily, according to the particular evidence in each particular case, and which will, to a large extent, destroy such equality as exists, and in other cases emphasize inequalities which now exist in business and commercial dealings. As the absence of a common rule will lead to a vast amount of indecision, injurious alike to the working and employing population of Australia, if we provide, as I believe we have the power to do, for the making of a common rule, and so equalize the conditions of work in enterprises all over Australia, we shall have done a great deal of good beyond what has already been contemplated by the measure now before the Committee. ,
Mr. CONROY (Werriwa). - I should like to remind the honorable and learned member’ for Indi that if he looks at clause 39 he will see that it provides -
Subject to the Constitution, no award of the Court shall be challenged, appealed against, reviewed, quashed, or called into question in any Court on any account whatever.
It has been said that still the Court would have the power, and the honorable and learned member for Indi has said it would ; but I would ask him to look at section 73 of the Constitution, which provides -
The High Court shall have jurisdiction, with such exceptions, and subject to such regulations as the Parliament prescribes, to hear and determine appeals from al’l judgments, decrees, orders, and sentences - of any other Federal Court or State Court.
– We- have not made an exception in clause 39.
– The High Court. has no power - this not being a matter of original jurisdiction - to hear these appeals, unless this Parliament gives the power to it. When we limit the Court in this way-
– How are we limiting it?
– We expressly limit the power of the High Court in clause 39. Of course, if the Arbitration Court does something which is clearly outside its jurisdiction. I do not say that the High Court could not intervene. But on a mere matter of law, even if the Arbitration Court gave a wrong decision, this Bill prevents the High Court from exercising a power to review.
– What the honorable and learned member for Indi was arguing was the question of jurisdiction - whether we could, under the Constitution, do what is now proposed.
– Of course it was.
– In New South Wales, where there is every anxiety on the part of the Supreme Court to restrict the abnormal powers of the Arbitration Court, it has been held that the parliamentary powers granted to that Court do not allow its decisions on matters of law, even though they may be manifestly wrong, to be reviewed.
– Does not the honorable and learned member know that the Supreme Court of New South Wales has granted an application made against the Arbitration Court ?
– Because it did something which was manifestly outside the powers granted to it by Parliament. But if what the Arbitration Court did had been within the powers granted to it the Supreme Court would have had no control over it whatever.
– That is quite right, too.
– Then the ordinary right of appeal is interfered with. The honorable and learned member must recollect that he has assumed throughout the whole of his argument that the Federal Parliament can lay down laws which are practically local in ‘their application. That is to say, that it can lay down what in effect are merely factory laws or arbitration laws with respect to a particular State, and can determine- the conditions under which work shall be done. That, it seems to me, is an extension o;f power that was never conceived of previously. Unless the honorable and learned member contends that we as a Parliament can make laws affecting the wages to be paid, and the conditions of work in Victoria or New South Wales, I am unable to see how we can by delegation give the Arbitration Court greater power than we ourselves possess. That is the real point at issue between us.
– That point is not at issue.
– It is the real point which the honorable members who agree with me are insisting on. If the honorable and learned member holds that this Parliament has power to make such laws he is quite logical in seeking to give to the Court the powers proposed under paragraph c.
– Can we forbid strikes?
– No more than we can forbid a man from committing suicide. It is true that we can punish; but I . have looked through the whole Bill and I cannot find a single clause under which any man who urged that a strike should be brought about could be imprisoned. If we are to carry out the meaning of the word “ prevention “ we must put into this Bill some provision to deter any agitator from working up a strike. A strike being a method of war, we ought ‘to say that a man who goes on a platform and urges a strike shall be’ imprisoned. I may say that I do not regard a strike as a serious evil. It is the only effectual protest which a man can make under certain circumstances. I do not like to see ‘taken from a man his liberty to say, if certain work does not suit him, “ You can go hang ; I will not do it.” But if we are to give any meaning to the word prevention, it is perfectly clear that we ought to have in the Bill one or two clauses to prevent men from inciting others to go on strike, or to induce employers to lock out their workmen. Of course we must apply the law equally in both ways.
– Would the honorable and learned member imprison agitators who worked up disputes?
– If this Bill were not to pass I certainly would not imprison any man because he said to another, “ Do not take that work; I do not think it is good for you.” But the moment we pass a law for the prevention of disputes, that moment I say, “ If you are to prevent disputes you must take care that any man who urges another to enter into a dispute, or to do anything that may be likely to bring about a disturbance, shall be heavily fined or imprisoned.” In fact, he must be treated as a criminal because he does something to disturb the public peace. The honorable and learned member for Indi asked what was to prevent half-a-dozen disputes from arising. Where are half-a-dozen disputes which can be affected by this Bill likely to arise? Disputes extending beyond the limits of any one State are not so frequent in Australia.
– Already one honorable member has said, that he is going to work them up.
– If this Bill is to be passed for the purpose of enabling disputes to be worked up, it is a very good reason why we should resist it.
– The observation of the honorable and learned member for Wannon is a most unwarrantable one.
– We have it in last week’s Hansard.
– The Minister himself seems to think that strikes would be more frequent under this measure than otherwise. The honorable and learned member for Indi has asked what is to be clone in case organizations other than those directly affected by decisions create disputes. If the Court has given a decision in one case, it is not likely that a dispute will arise in another case on all-fours with the previous one, because one side or the other will be’ perfectly certain that costs must be given against it. Therefore, I do not anticipate a multiplicity of disputes arising in cases which- are on all-fours with cases which have been decided. I may remark, in passing, that there is a clause in the Bill to prevent lawyers from appearing before the Court. Yet the Government propose to appoint, as the Judge, one of the very lawyers whom they condemn- They expect to have perfect justice, a wealth of learning, and absolute fairness of mind from a man chosen from the very class they consider not good enough to appear before the Court. By seeking to bind men who are not able to appear before the Court, are we not departing from the sound principle of all administration, and condemning men unheard? Under no circumstances should we seek to bind men until they have had an opportunity of being heard. I should like to give an illustration which I will commend to the honorable member for Fremantle. He pointed out that there were certain divisional limits in Western Australia. We know that there are divisional limits in New Zealand. Let me show what might happen. Suppose that a dispute arose amongst the miners at Broken. Hill, and there was another dispute amongst the miners at Bendigo. Suppose there was a decision of the Court, fixing the wages of these miners at £z 5s. a week ?
– What minerals do they mine for at Broken Hill which they also mine for at Bendigo?
– There is no analogy whatever.
– The men may be engaged in shafting or timbering, or the number of hours which they are to work underground may be in dispute.
– Let the honorable member take Bendigo and Mount Morgan, or Bendigo and Kalgoorlie.
– I will take Bendigo, Mitchell’s Creek, or Lucknow, in New South Wales. If the current rate of wages at these places, which is about £2 5s. a week, were made a common rule by the Judge of the Arbitration Court, the wages at Kalgoorlie, which are, I believe, about ^4, would have to be brought down to the lower sum. Is that just?
– It is not; neither is it sense.
– Then the power of the Judge ought to be limited, in order to prevent any such result. Parliament itself would not attempt to make such a rule, and a Judge ought not to be allowed to do so.
– This amendment would not meet with the honorable and learned member’s view.
– If in the case of a dispute raised as between Kalgoorlie and Tarcoola, the rate of wages was fixed there at ^4 a week, would it be argued that the whole of the miners at Ballarat and Bendigo should be paid at the same rate? We know that the mines at the two latter places would, under such circumstances, be closed, and 30,000 men of Victoria would be thrown out of work.
– Who would advance such an argument ?
– If the power proposed be given to the Judge that may be the result.
– The Judge cannot make an award without hearing the other persons.
Mr.- CONROY. - Unless the amendment be accepted the power of the Judge may have the results I have indicated.
– It cannot have those results.
– I can cite other illustrations.
– All the illustrations are the same. The honorable and learned member overlooks the fact that before a common rule can be made the other persons may be heard.
– The coal miners on the south coast of New South Wales are paid for hewing at the rate of 2s. iod. per ton, and if a dispute were to arise there and extend to the Outtrim mines, in Victoria, with the result that the hewing rate was fixed at 3s. per ton, would it be said that the whole of the miners at Newcastle, must have their rate made the same?
– No. The Arbitration Court of New South Wales was asked to give an award in the case of the south coast collieries, and did so ; but that award did not affect other collieries in the slightest degree.
– But this is a Federal Court, and whatever law is made must be made applicable to all.
– The Bill does not differentiate.
– If we say that a man shall work in one colliery at a certain rate, and in another colliery at another rate, we are differentiating.
– The quality of the coal in a mine may make a difference in the wages.
– It is for the opponents of the amendment to show how the difference in wages under such circumstances mav be reconciled. All we are concerned with is to show that unless we accept an amendment .of this kind, we are assuming that the Federal Parliament has power to make laws to regulate local industries. If Parliament has the power we can delegate it, and if we have not that_power we cannot delegate it.
– Of course, if we have not the power there is an end of the matter.
– Under the circumstances we ought to be most careful. What objection can there be to limiting the award to the parties in the dispute?
– That would only mean further trials, and, practically, the rehearing of the evidence.
– Earlier in the evening I said that some honorable members argued as though more disputes were likely to arise, after the pasing of the Act, than have arisen hitherto. I think I am perfectly justified in saying that two or three honorable members, who are in favour of the Bill, said that it would be very easy to work up disputes.
– Two or three said that?
– At least two honorable members argued as if that were the case. The honorable and learned member for Indi w£3 one who argued as if more disputes are likely to arise under this measure than without it.
– I did not say that.
– Only a few minutes ago the honorable and learned member asked whether, when a dispute came before the Court, we were to have half-a-dozen more ready to ‘ follow. On the other hand we who support the amendment say that as disputes do not often arise now, they will not be likely to arise often after the Bill is passed, unless, of course, - the Bill foments disputes. When the honorable member for Corangamite asked how it was possible that disputes connected with domestic servants should ever extend beyond the boundaries of any one State, the honorable member for Darling replied that a dispute could very soon be got up. It really seems as though some honorable members regarded the Bill as designed to do that which it is introduced to prevent.
– The honorable and learned member knows that in the absence of any Bill a dispute can be worked up without difficulty.
– This Bill is for the prevention of disputes, and we Ought to take care to include some clauses making it a misdemeanor, if not a felony, to argue in the favour of a strike or lock-out.
– Why does not the honorable and learned member submit an amendment to that effect?
– It is possible that, in order that the principle which I favour may be carried out, I shall, later on, submit an amendment! in that direction. I cannot say that I have regarded men who go out on strike as criminals, and, for that, I am, it appears, regarded as rather strange by some honorable members. If it be true that men who go on strike are criminals, we ought to find some punishment for the men who foment strikes. -If we did so, I am afraid the professional agitator would soon disappear, and we could then say that a Conciliation and Arbitration Bill had had one verv good effect.
Mr. GLYNN (Angas).- The honorable and learned member for Indi puts- his points in such an attractive way, and exhibits such undoubted ability on all questions of constitutional interpretation, that I feel I ought to say a few words in reply. I have to differ from the honorable and learned member, and, as the effect of the division may be largely influenced by the correctness, or otherwise, of his views, I must make a short reference to his arguments. The honorable and learned member contends that we really have direct power to prescribe a rule in regard to wages and
Other conditions of employment right throughout Australia. The honorable and learned member argues that if we have not the power to prescribe a common rule through the medium of a Bill - that is. by the creation of a special tribunal- we have not the power to do so directly. But it is the existence of that direct power that I have always challenged. 1 took the point on the second reading that if we could, through the medium of a special tribunal - that is, by means of an award of an Arbitration Court - prescribe a common rule, we could, without delegating the power to a Court, exercise the same power by Act of Parliament; and the existence of that power is what I challenged. What was the power conferred by the Constitution? It was not to supersede the laws of the States in these matters, but to provide a bridge which was not possible under the laws of the States as they stood. This provision of the Constitution is quite unique ; every one of the other thirty-nine articles gives us power to promote uniform legislation.
– Not invariably.
– I think that the Prime Minister will find that the whole of the other thirty-seven or thirty-eight articles give that power.
– No ; there are several exceptions.
– There is one ancilliary provision that we may make incidental laws, but the general power is conferred as I “have stated. There is exclusive power as regards the Customs.
– As to banking, there is not exclusive power; State banking is specifically excluded.
– I must beg the Prime Minister’s pardon ; but that is a matter I shall deal with in a moment. Every one of the articles - I make no distinction except as regards conciliation and arbitration - gives us power to supersede the laws of the States in the interests of uniformity throughout Australia. As regards taxation through the Customs, our power is exclusive, because the moment we legislate the States powers cease. As to all the other powers, the abrogation of the States Statutes is affected either directly or through their inconsistency with the Federal Statutes. What is the meaning of those powers? It is that we may supersede the jurisdiction of the States in the interests of uniformity. But we have not a single right to interfere with local jurisdiction in regard to conciliation and arbitration. The award of a State tribunal cannot go beyond the territorial jurisdiction of a State; and a unique provision has been placed in the Constitution to cover cases which cannot be dealt with by the States. Before Federation it was impossible to sue in the Court of another State without the consent of that State ; but we have created a High Court, and by the provision of the Constitution we destroyed the demarkation that previously existed between the States in regard to Inter-State legal disputes. We have made a bridge to reach such cases as maritime disputes, dealing with wages in an employment which necessarily does not terminate within the limits of a particular State. Men ship at Fremantle for a voyage to Sydney, and the wages are paid for the through voyage; and the Western Australian Court has no power to settle disputes which may arise in relation to those employed on the vessels. Therefore, the Commonwealth steps in with a special provision in the Constitution to cover such cases, and none other. What the honorable and learned member for Indi says is that we not only have the right to settle these disputes through the tribunal created, but by direct legislation to promote uniformity of employment as regards wages, hours, and so forth, right throughout the Continent. Was that ever contemplated?
– I think my honorable and learned friend is taking my argument further than I intended.
– What I say is the natural inference from the words of the honorable and learned member, who said that without this power we could have no uniformity of any kind - no equality of commercial conditions. The honorable and learned member added that unless the power which he contends for be exercised, an award will not prove a settlement, but that every inch of the ground will have to be fought over in new disputes.
– I was then speaking about the award of the Court.
– But the honorable and learned member took the ground that we can do by direct legislation what we are empowering the Arbitration Court to do by common rule.
– Not altogether.
– The honorable and learned member drew no distinction.
– The honorable and learned member is certainly taking my argument a little further than I intended.
– John Stuart Mill said that the best test of a principle is an extreme case ; and there is not the shadow of a doubt that if a principle will not stand that test, it is bad. No matter what limitation there is, I say we have no direct power to accomplish what is now attempted by means of a common rule. The position is really, that if we are entitled by a common rule, in anticipation of the possibility of disputes, to promote uniform laws as regards wages throughout Australia, then, why was it that on the 28th June, 1901, the AttorneyGeneral, knowing that we had not that power, asked that the States should be solicited to confer it upon us?
– He was seeking to provide against another set of conditions.
– I know that there is nothing in the world which is not capable of a verbal distinction, although a substantial one may not exist.
– There is a substantial one here.
– I ask the Committee to say whether there is. One can juggle out of any position by words.
– And one can juggle anything into a position by words, too.
– No doubt one can; but equally one can get out of it by words, otherwise I fear that lawyers would not be able to exist. Of course, I am here as a politician, and not as a lawyer, and, perhaps some honorable members will say that that is evident from the tenor of my remarks. However, on the 28th of June, 1 90 1, the Attorney-General moved -
That in the opinion of this House it is expedient for the Parliament of the Commonwealth to acquire (if the State Parliaments see fit to grant it, under section 51, sub-section 37 of the Constitution Act), full power to make laws for Australia as to wages and hours and conditions of labour.
What is the object of the common rule except to promote this uniformity ? In his argument the honorable and learned gentleman said -
I desire to affirm, by resolution of the House, that we consider it expedient, if the State Parliaments think fit to grant it, that we should have power to make uniform factory legislation for Australia.
In other words, the object of the common rule is to promote this. We may differentiate between district and district, between State and State, or we may make a rule to apply throughout Australia. We propose to surrender the discretion, which we ought to exercise if we had the power, to a tribunal composed of a Supreme Court Judge, and two experts chosen for each particular case. This means that we shall almost want to have the omnipotence of Jove in order to come to a correct decision. In New South Wales they find it difficult to differentiate from six months to six months, even as regards employment in mining; they have to vary the conditions with the depth reachedBut under this clause an award can be made not only to settle for five years the conditions of employment in a particular mine, but to. apply them right throughout the length and breadth of Australia to every mining district, if the dispute can be said to be one within the cognisance of the Federal tribunal.
– Does the honorable and learned member hold that, under the Constitution, we cannot have other than uniform ‘ legislation ?
– I did not catch the question.
– Under the honorable and learned member’s amendment an award may be operative in two different States.
– In different States.
– Undoubtedly; two different States at least must be involved ; otherwise it cannot be a dispute within the meaning of the Bill.
– A dispute must have arisen which the Court can take notice of.
– Then the honorable and learned member must admit that there is power to apply a common rule to all the employe’s in an industry.
– The Minister of External Affairs and the honorable and learned member for Indi say that, in anticipation of the possibility of’ a dispute arising which may extend beyond a State, we can prescribe uniform conditions of employment and hours right throughout Australia.
– What the honorable anc! learned member says is that the Court may go as far as is necessary to settle and prevent a dispute.
– Yes, to settle a dispute by an award.
– Affecting the disputants?
– Certain! y .
– Then how can that be uniform ?
– Really, I cannot understand the Minister’s metaphysical distinctions. What am I endeavouring to say in my amendment? When an award is te* be made by the Court the assumption is that there has been a dispute which has beenproperly brought before the tribunal. Then I say that having got the jurisdiction exercised, and having come to the point of making an award, it can be applied to all the employes; the jurisdiction is unchallenged, but the contention of the Government is that we can go beyond that.
– There is nothing in the Constitution to stop that.
– According to the honorable and learned member for Indi, in order to prevent the possibility of a dispute in Ballarat extending to another State, although no dispute exists in that city, we can apply uniform conditions of labour and hours throughout Australia. Was that contemplated by the framers of the Constitution? I absolutely deny that it was.
– Does the honorable and learned member say that that is unconstitutional, and that his amendment is constitutional ?
– I am sorry that we have to differ. I cannot see the distinction which the Minister draws, and if I could I should only be too ready to grant it. The point is that if it had been intended to confer this jurisdiction on the Federal Parliament, then the Constitution, instead of providing for ‘the prevention and settlement of disputes extending beyond the limits of any one State, would have simply provided for conciliation and arbitration, and the moment a Bill like this was brought into the House we could have superseded all the factory and arbitration legislation of the States/ But we are assuming a wrong jurisdiction under the limitation put in the Constitution. As regards the banking provision, in section 51, is there any power granted for the supersession of States laws as to State Banking? Absolutely none.
– That is an instance where the Constitution has not given unlimited jurisdiction.
– There is a reference to State banking extending beyond the limits of one State; but State banking within the limits of that State we cannot touch.
– It is specifically excluded.
– It is. The distinction I am insisting on is drawn by that very subsection, because, in part, it gives us the right to impose uniform legislation as regards banking right throughout Australia. Another distinction is made as regards State banking, and it is that it shall remain absolutely within the competence of the State Parliament. But if it extends beyond the limits of the State it becomes somewhat analogous to the provision relating to arbitration. Do honorable members think that the framers of the Constitution ever thought of this legislation being proposed, and, if so, why did the Attorney-General ask that this power should be conferred on the Federal Parliament by the States? Furthermore, the Prime Minister, Sir Edmund Barton, objected to the terms of his motion, and, if I remember aright, it was amended so that we should merely ask the States to consider the expediency of granting us the power.
– The same Prime Minister assented to the language of this Bill, which the honorable and learned member is seeking to alter.
– Sometimes Ministers do funny things in Cabinet, otherwise we should riot be here to criticise their work.
– The honorable and learned member takes an authority when it suits him.
– According to the Prime Minister, every Bill which is put upon the table by a Minister bears the imprimatur of Jove, and we dare not question it. It comes ex cathedra when it comes out of the Cabinet room.
– Oh, no.
– Do honorable members wish by the application of this common rule to say that in the event of a dispute arising in relation to a carrying trade on land, say, to Hill and Co.’s coaches, on an award being made for the settlement of that dispute, it can be extended to traffic on the rivers, or to steamers between State and State ; in other words, that the conditions of employment of seamen may be prescribed through a dispute that arises on land in relation to the drivers of, perhaps, Hill and Co.’s coaches. Under the Bill that may be done, because it relates to the same industry - the Inter-State carrying industry. Again, an award in connexion with a dispute on the States railways may be applied, not only to Inter-State vessels, but also to ocean-going vessels. So that the proposal is ridiculous, and never could have been contemplated. I ask honorable members to keep within the strict letter of the Constitution, not only as evidenced by much reasoning, but as practically interpreted bv the motion of the Attorney-General here on the 28th June, 1901.
Question - That the words “ in respect to which” proposed to be inserted be so inserted - put. The Committee divided.
Question so resolved in the negative. Amendment negatived. Mr. WATSON. - I move-
That after the word “binding,” line 13, the words “ as a common rule “ be inserted.
The amendment is largely a matter of drafting, and is in anticipation of power to make a common rule being conferred upon the Court by clause 46. Paragraph c, as it stands, might bear an interpretation which would allow the Court to extend the award to persons or organizations, without the- limitations in paragraphs / and £ of clause 46. The amendment makes paragraph c limited by the conditions set forth in clause 46. Paragraphs a and b, in our opinion, give sufficient power to the Court, irrespective of the common rule, and we take power in respect to the common rule under clause 46. I may add that, with the Attorney-General, I shall take intoconsideration the suggestions which have been made by the honorable member for, Richmond, the honorable and learned mem-, bers for Darling Downs and Corinella, and others, as to the possibility of liberalizing, as some would term it. the proposal I have put forward as to the circumstances under which the application of the common rule may be extended.
Mr. McCAY (Corinella). - As a matter of drafting, I would like the AttorneyGeneral to consider whether it is clear that the power of the Court to first vary the common rule, and then to declare it as varied to be binding, is made sufficiently clear. It is desired to enable the Court to vary its award, to make that varied award a common rule, and then to make the common rule binding.
Mr. HIGGINS (Northern MelbourneAttorneyGeneral). - I thank the honorable and learned member for his suggestion, and I shall endeavour to make the matter clear, if I find that it is not so already. I might remind the honorable and learned member for Ballarat that, in a speech which I made during the debate upon, the introduction of this Bill, I said that this clause was a dangerous one as it stood, because it might be taken to mean that the Court had power to declare an award binding on any organization or person without restriction, and I was assured by him that he meant it- to apply only to the case of the common rule. We all think that common rules are to be applied with the utmost care; but, inasmuch as we provide restrictions in a later part of the Bill, we simply say here that the Court, in declaring that an award shall be binding upon any organization or person, can make it so only in the course of a guarded application of the common rule.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 38 -
When an award or order of a State Industrial Authority is inconsistent with an award or order lawfully made by the Court, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
– The use of the word “ inconsistent “ may cause a certain amount of difficulty. There may be cases in which the award of the Commonwealth Court will differ from that of a State Court. The Commonwealth Court, for instance, may be dealing with the question of hours and the State Court with the question of wages, and the fact that the award of the latter is inconsistent with that of the former may cause it to become invalid to the extent of the inconsistency.
– Does the honorable and learned member mean that it would be held to be altogether invalid ?
– I think that it would. The clause was not in the Bill as originally introduced, but the following clause, of which I gave notice, was adopted -
When the Court has made an award in an industrial dispute any award in a State made by a State Industrial Authority, relating to a similar dispute, shall cease to operate.
I think that those words were more effective than the clause we are now considering.
– They go further than this clause.
– Yes, but they are confined to “ similar “ disputes. The’ discussion to-day has shown that .it is intended that the awards of the Commonwealth Court may vary in different States. Such an award, affecting the miners at Ballarat and the miners at Coolgardie, might be inconsistent with a State award, though perhaps to a very slight degree, and might thus make it invalid. The State award should cease to operate only to the extent of its inconsistency.
– Surely that is what is meant.
– The clause is almost a transcript of section 109 pf the Constitution, which deals with a similar conflict between Federal and. State laws.
– Suppose that the New South Wales Court had ordered that the barbers of that State shall work only forty-eight hours a week, but that their hours shall be from 9 to 6, and the Commonwealth Court made a similar award as to the number of hours to be worked in a week, altering the times at which work should begin and cease, the award of the State Court would be invalid.
– In my opinion the clause is useless. If the provisions of the measure are unconstitutional, these awards will have no effect ; but if they are constitutional, the clause is mere surplusage, because the Constitution itself provides that the State authority must recognise all laws passed by this Parliament whose validity is unquestionable. The intention seems to be to apply the Bill to purely State disputes. I do not think that this interference will be effectual if the States dispute the authority of the Court, and appeal to the High Court to determine its constitutionality. To conceive the idea of a Federal dispute among the barbers requires a good imagination.
– I should like to direct the attention of the Attorney-General to one matter which seems to me unprovided for. Section 109 of the Constitution provides for conflicts between the law of the Commonwealth and the law of the States, and enacts that, if there be an inconsistency, the law of the Commonwealth shall prevail. This clause provides for a conflict between awards of a State Court and the Commonwealth Court, and states that to the extent of the inconsistency the latter shall prevail. So far as I can see, however, no provision is made fop a conflict between an award of the Commonwealth Court and the law of a State. If a State chose to make provision by Act of Parliament in conflict with an award of the Commonwealth Court there would be no means of determining which should prevail.
– This is one of the clauses which we have inherited from our distinguished ancestors in the Government, and it has been allowed to remain in exactly the form in which it first appeared in the Bill. My instructions were to make amendments only where they were absolutely necessary. As to the point mentioned by the honorable -and learned member, I can easily conceive that a Victorian Act might provide for certain wages and hours of labour in an industry, and that an award of the Commonwealth Court might fix other wages and hours. The question is, which would prevail? At first sight, I think that provision ought to be made in this particular clause with regard to that matter, and I shall look into the question with the view to drafting an amendment, and also avoiding the insertion of any words that are not absolutely necessary.
– I desire to say a word or two on behalf of a class of persons who have not received very much’ consideration under this Bill, and to whose interests less and less regard is being paid as we proceed.
– Does the honorable and learned member refer to the agricultural labourers ?
– No. We beat the Government very handsomely, so far as they were concerned.
– They are receiving no consideration under the Bill.
– I would direct attention to the fact that under the provisions of the Bill this position might arise - In Victoria we have a large number of boot manufacturers who are working under a determination of a Wages Board, constituted under the Victorian Factories Act. On the strength of this determination, as to rates of wages and other conditions, the manufacturers have entered into large contracts, possibly extending over a long period. If an industrial dispute arose, and were brought within the purview of the Federal Arbitration Court, that tribunal, by increasing the working expenses of the employers, could entirely sweep away any margin’ of profit now allowed to the manufacturers. I do not wish to press this matter, but I would point out that in this proposal, as in others, the interests of the employers are being absolutely disregarded.
– I hope that the Court would take the interests of the employers into consideration.
Mr. LONSDALE (New England).With regard to the point raised bv’ the honorable and learned member for Indi, I presume that if the Federal Arbitration Court were brought into existence, and had the power to make an award that conflicted with one given by a State Court, the State award would be set aside.
– Yes, if the two awards were inconsistent.
– - I am not a lawyer, but it seems to me that an award by a State Court which might be in conflict with one given by the Commonwealth Court, whether it were good, bad, or indifferent, would be superseded.
– Only so far as the awards might be inconsistent.
– So far as the case mentioned bv the honorable and learned member for Wannon is concerned, I might, say that, if I were disposed to deal with this measure in a provincial spirit, I should be strongly inclined to support provisions which would have the effect of placing the whole of the manufacturers of the Commonwealth on an equal footing. I am not, however, going to allow any’ such consideration to influence me. Moreover, I am entirely opposed to this class of legislation.
Clause agreed to.
Clause 39 -
Subject to the Constitution, no award of the Court shall be challenged, appealed against, reviewed, quashed, or called in question in any
Other Court on any account whatever.
– I judge from the remarks of the Attorney-General that he is anxious not to interfere with the drafting of his predecessors. His anxiety on this point is sufficiently manifested by the fact that he has tabled over a hundred amendments. Still I should like to make a suggestion with a view to clearing away any doubt that may exist as to the meaning of this clause. There is no question that the Federal High Court would have the power to restrain any tribunal from exercising jurisdiction which was not properly conferred upon it, but I think that power should also be given to appeal from the Arbitration Court to the High Court on a point of law. This clause provides that there shall be no appeal on points of law or fact; but we should make the provision similar to that of the Constitution with regard to the Interstate Commission. It is provided in that case that there shall be no appeal from the awards of the Inter-State Commission, except on a question of law. The cases which would arise would be very rare. They would relate, not to the exercise of jurisdiction by the Arbitration Court, but to the construction placed by that tribunal upon the Act under which it was working. I hope that the Prime Minister will see no objection to making an amendment in the direction I suggest.
– There are four compulsory Arbitration Acts in existence, and every one of them contains a provision similar to that embodied in the clause, and I think very properly so, with a view to minimizing litigation.
– If we do not allow the right of appeal, we shall not provide any means by which the Arbitration Court may be set right upon questions relating to the meaning of certain sections of the Act. I think that some reason more cogent than that advanced by the Prime Minister should be adduced for denying the right of appeal to the High Court on a question of law.
– It seems to me that the honorable and learned member is looking at the matter - I do not say, improperly - from the stand-point of .a lawyer. It naturally occurs .to honorable and learned members who have been concerned in the interpretation of ordinary legislation that we should allow appeal after appeal from Court to Court, until finality is reached in regard to pure interpretations of the law, as such. When Mr. Reeves first introduced his Arbitration Bill in New Zealand, I think he was amply justified in insisting that the Court should be one of equity and good conscience, rather than one for the interpretation of dry Statutes. In conformity with that general idea, and with a view to minimize litigation, he inserted a provision that no appeal should lie from the decision of the Court. He made no exception in so many words, but a similar section in the New South Wales Act has been interpreted in such a way that appeals are allowed to the Full Court in respect to matters of jurisdiction. We have inserted in this clause the words, “ subject to the Constitution,” which will practically allow - I admit that we cannot help it - appeals to the High Court on questions relating to jurisdiction. Each of the four sets of laws relating to compulsory arbitration in existence in the world to-day contains aprovision preventing appeals on either questions of fact or law, excepting - as was held in New South Wales - matters of jurisdiction. Therefore, I feel that we should be acting unwisely if we made an innovation in this regard. The New South Wales Act has worked well, and no general desire has been shown for a right of appeal. In the course of the agitation which has been raised against the Act, and which still exists, no feature has ever been made of the fact that no power of appeal is given except in matters of jurisdiction.
– I do not intend to move an amendment.
– I am glad of that, because it would be against the policy of the Bill to make the decisions of the Arbitration Court the subject of expensive litigation in which the persons concerned could very ill afford to engage.
– The New South Wales Arbitration Act contains a provision similar to that embodied in the clause, and yet three or four appeals have been made against the decisions of the Court.
– On questions of jurisdiction.
– In two or three cases the decisions of the Arbitration Court have been upset. A judgment was given against the Arbitration Court in connexion with the award in settlement of the butchers’ dispute.
– The decision of the Court was held to conflict with the Early Closing Act.
– It so happened that there was a conspiracy between certain employers and employes to crush out two butchers who were selling meat cheaply, to the advantage of the public. They managed to have the common rule applied to one man, and the other joined the employers’ organization. The man. who stood apart contended that he had the right to keep his shop open after 5 o’clock in the afternoon, the hour fixed by the Arbitration Court. The Supreme Court upheld the decision, of the Arbitration Court, but the High Court decided that the award of the Arbitration Court was wrong, and that the appellant could keep his shop open until 6 o’clock, so long as he did not employ any one contrary to the provisions of the arbitration award. There have been two or three other appeals.
– Not appeals which have been successful.
– The fact that there has been a number of appeals shows that in New South Wales the Arbitration Act is being used for tyrannical purposes. We require, therefore, to exercise extreme caution before placing such legislation on the statute-book. In my judgment we should make the right of appeal as free as possible.
– Since the legal members of the Committee are divided upon the possibility of the Federal Arbitration Court exceeding its powers under the Constitution, it seems to me that on questions of law we should provide for an appeal to the High Court. The clause states that. “ Subject to the Constitution, no award of the Court shall be challenged, appealed against. reviewed, quashed, or called in question on any account whatever.” Under such circumstances I fail to understand who is to lay the information against the Arbitration Court if that tribunal exceeds its powers.
– One of the parties will see to that.
– But they cannot appeal.
– They can appeal on a question of jurisdiction. In New South Wales it has been done, although the sameprovision operates there.
– The New South Wales; Act is slightly different from this Bill.
– Its effect is the same.
– I admit that. As a matter of draftsmanship I think that the words “ Subject to the Constitution “ might well be omitted, unless they are intended to guide the Court in the matter of the powers which it may exercise.
– They have been inserted for the guidance of the Court.
– In that case it is as well to retain them.
– I would point out to the Committee that the Court which it is proposed to establish differs greatly from other legal tribunals. The judgments of all other Courts are final, unless an appeal be made from them, whereas the Federal Arbitration Court has power to review its own decisions as often as it chooses. Consequently, it is in a position to remedy any mistakes which it may commit. Moreover, each case will be decided on its merits. I hope, therefore, that the clause will be retained in its present form. Mr. EWING (Richmond).- It is always a shock to find that any particular section of the community is denied the advantage of all the laws enacted for the protection of the people. Consequently, it is remarkable that under this Bill litigants are to be deprived of the special ability and the rare acumen possessed by the Justices of the High Court.
– In most of the States, except on matters of law,, all criminals are denied the right of appeal.
– It has been urged that the reasons which were good enough to prompt New South Wales, Western Australia, South Australia, and New Zealand to enact similar legislation should be good enough for us.
– The reduction of litigation is the crux of the whole question.
– When the honorable member for Wentworth suggested that the words “ Subject to the Constitution “ should be omitted, the reply was that their retention could do no harm. If it be true that on constitutional questions, litigants already possess the right of appeal the same argument holds equally good. No harm could result from retaining those words.
– We cannot deprive litigants of ‘the right of appeal on questions of jurisdiction.
– I would suggest that we should add to the clause the following words, “ except on a matter of constitutional law.” If litigants already possess the right of appeal on constitutional questions, the fact should be made perfectly clear.
– So far no valid reasons have been advanced by opponents of the Bill against the retention of this clause. One of the main objects of the measure is to secure finality as far as possible. The argument that we should allow litigants the right of appeal practically means that the wealthy employer will be in a position to drive his poorer rival out of Court. The aim of the Bill is to effect a reduction of litigation. There is no question of law involved.
– The honorable member is trying to make law, and to get rid of justice.
– I do not know to what the honorable member is referring. In this Parliament he has spoken so frequently about justice, that one would almost imagine that he is the embodiment of it. When I hear him characterizing the clause as tyrannical, and afterwards declaring that he has no objection to it, I naturally conclude that he simply desires to air his eloquence. I trust that the Committee will not agree to any amendment which will have the effect of encouraging litigation, and thus defeating one of the chief objects of the Bill.
– I wish to ask the Attorney-General a question. Assuming that an award given by the Court exceeds the powers conferred on it by this Bill but does not extend beyond the powers vested in the Commonwealth by the Constitution, will that award hold good? The words “ Subject to the Constitution “ mean, so far as I can gather, that unless Parliament is forbidden by the Constitution to vest the Court with power to make an’ award upon any particular matter,- the Court may choose to exceed the limits of the Bill, and do things which Parliament has declined to permit it to do, and its award will remain unchallengable in every respect. If that be so, I protest against it. I am perfectly willing to give this Court large, but certainly not unlimited powers. Is Parliament to define the limits within which the Court shall exercise jurisdiction, and afterwards to allow that tribunal to exceed those limits, or even to do that, which it has forbidden? We are to a large extent treading upon experimental and delicate ground. Whilst I do not fear to go as far as may be necessary to protect the great interests mentioned in this Bill, I mistrust any clause which provides that unless the High Court declares that the Constitution forbids a particular award, no matter to what extent the Arbitration Court may transgress this Act, the award cannot be upset. If that is the meaning of the clause, it is a verv serious matter.
– I think it is clear that the meaning of the clause is that unless an award transgresses the Constitution it must be held to be final. I tell the Committee candidly that that is its effect. If the Judge in making an award made a mistake, . and went beyond the terms of this measure, the award would nevertheless be final as long as it did not conflict with the Constitution. The position, however, is that we contemplate giving the Court tremendous responsibility, but that we intend to place it under the control of an eminent lawyer, a Judge of the High Court, than whom a higher authority on the law could not, in my opinion, be secured. We are simply proposing to give the Arbitration Court - consisting of a President- a power which is given over our persons, and our liberty, every day and every week. I do not know exactly what is the position in the other States, but in Victoria if a man is convicted of murder, and is sentenced to be hanged, there is no appeal.
– There is the power of the Executive.
– That is not in the nature of an appeal. The life and liberty of any one of us may be subject to the tremendous power wielded by a solitary Judge.
– But we have a very certain safeguard in the jury system.
– I am speaking now of a decision going beyond the law. Honorable members know that a jury can deal only with facts, but the honorable and learned member for Indi is referring only to a mistake made by the President of the Court in regard to a matter of law.
– I am therefore confining myself to that point.
– But in the case suggested by the Attorney-General, it would be possible to have a special case stated.
– That would be voluntary. A Judge who is trying a criminal charge may state a case.
– If he refuses to state a special case on conviction, application may be made to the Full Court for a mandamus to compel him to do so.
– What I wish to convey is that in a case such as that which I have mentioned, there is at least no appeal, and that usually it is for the presiding Judge to say whether he should reserve a question for the opinion of the higher Court. I have a suggestion to make, which I should have made before the honorable and learned member for Indi raised this question. Before this matter was brought forward by the honorable and learned member I had the concurrence of the Prime Minister in a suggestion which I think will perhaps commend itself to a good many honorable members. My proposition is that we should provide that if the Court finds itself face to face with a grave question of law, the determination of which it does not care to take upon itself, it shall be at liberty to reserve a special case for a full bench to decide. In that way we should eliminate that class of case in respect of which we feel so much apprehension - those in which interested parties seek to -postpone the settlement of a dispute until the means of litigation have been exhausted, and to put the other side to all sorts of expense. I take it that every member of the Committee is anxious that, as far as possible, applications to other tribunals shall be avoided ; but our proposal is that no case shall be put before the High Court unless the President of the Arbitration Court, who will be a Judge, thinks it expedient to reserve it for the higher tribunal. Such a provision would, I think, meet all possible cases. But, to reassure honorable members, I must say that I do not think that many cases are likely to occur in which there will be danger of mistakes on the part of the President of the Court. The cases with which the Court will have to deal will be those in which mistakes as to law are not so apt to occur as are mistakes as to statements of fact. I regard with far more apprehension the tremendous power we propose to give a Judge to declare the conditions of any industry ; but still I am pleased and willing to confer it. It is far better to have peace, even at any price, than to have such strikes as have occurred in Colorado or Pennsylvania. I should risk almost anything in order to secure peace. The mistakes which we have to apprehend are mistakes of fact with regard to a particular industry. There is not much reason to apprehend mistakes as to law, especially when we remember that the Court will have the guidance of a trained Judge, such as a member of the High Court Bench must be. If honorable members think it well, I shall be willing to undertake to bring down an amendment thai will allow the President of the Court to state a case for the opinion of tha High Court, in regard to any question of difficulty. If the clause be. passed now, I shall be prepared to recommit it for thai purpose.
– I must say that I have not hitherto taken the view of this clause that has just been submitted by the honorable and learned member for Indi, and supported by the AttorneyGeneral. I have read it as if the words in the preceding clause, “ lawfully made by the Court,” were to be taken as included. I admit that .the very fact that they appear in the preceding clause, and not in this, tells against that supposition ; but I have hitherto considered it to refer to “ an award or order lawfully made by the Court.”
– That would open the whole matter.
– I admit that it would ; but do not think that it would open it too widely. This clause was. not drafted by me; but I discussed it with the right honorable member for Adelaide, who, so far as my memory serves me, did not take the view which has been submitted to-night. I understood him to read the clause as meaning - “ Subject to this Constitution “ no award of the Court which had been lawfully made should be challenged. I have always regarded the word “award” as implying an award that it would be in the defined power of the Court to make. If it were not within its expressed powers it would be beyond the jurisdiction of the Court, and would, therefore, come within the class of cases that has already been held to be open to appeal.
– If clause 38 stood alone, no doubt it would ; but clause 39 does not mean an award that is lawful. It simply means an award that is constitutionally possible.
– I admit that until the honorable and learned member suggested it I did not read this clause in that light, but invariably interpreted it in the way I have mentioned. While I agree with the Attorney-General that even if the clause were read as is now suggested, the causes of complaint that would arise under it would be extremely rare, I very much doubt whether it conveys what the honorable and learned member for Adelaide intended. I am sure that it does not express what I desired. My intention, had it been fully expressed, would have made the clause read as follows : -
Subject to the Constitution “ and to this Act “ no award of the Court shall be challenged . . . and so forth. I have never considered, and I hesitate now to believe, that an order that was made without the specific authority of this measure, could be called an award.
– It could not be challenged, appealed against, reviewed, quashed, or called in question.
– It could for excess of jurisdiction.
– Then the clause is of no use.
– It has already been determined that an award of the New South Wales Arbitration Court may be challenged for excess of jurisdiction. In the case of the Hotel, Club, Restaurant and Caterers’ Employes’ Union v. the Caterers’ and Restaurant Keepers’ Association, reported in the New South Wales Industrial Arbitration Reports, vol. ii., page 196, it was held that there was power to issue a prohibition to restrain the Court of Arbitration from exceeding its jurisdiction. I have a record of the case, as well as of two similar cases, which, sp far as my notes show, follow that decision.
– They have not in the New South Wales Act the words which appear at the beginning of clause 39, “ Subject to the Constitution,” which will be the only limitation to the rest of the clause.
– I can say, from my own knowledge, that the words, “ Subject to the- Constitution,” were not introduced with the object of limiting the power of appeal which exists under the New South Wales Act. I discussed this matter with the right honorable and learned member for Adelaide, and these words were introduced in order to make it perfectlyclear that in this prohibition against appeals of any kind there was no attempt to evade the clear meaning of the Constitution. It was pointed out at the time, both by the right honorable member and myself, that their introduction would not alter the law in any respect - that they were simply an intimation- but the Cabinet thought the clause, as expressed, so extreme that it was desirable to introduce it with these words. I must confess that the possibility of their being construed as an extension of the power of making awards outside this Bill was not presented to my mind. In these circumstances, I shall feel myself at liberty, when this clause is recommitted, to accept the excellent proposal made by the AttorneyGeneral. On its own merits, and quite independent of the clause, his proposal is very desirable. The power to refer a difficult question of law to the Full Court of the Commonwealth will mitigate many other difficulties that might arise.
– Why not omit the first four words of the clause?
– I admit that the cases will be’ extremely rare, but, having regard to the serious view of this clause which has been presented, I certainly think that when it is recommitted we shall do well to review, first of all, these introductory words, and if we retain them-
– They ought not to be passed.
– But the AttorneyGeneral asks, as any Attorney-General is entitled to do, for time to reconsider this proposal, and for an opportunity to mature his proposition, instead of drafting it at the table. I am very glad that attention has been called to the matter, so that we shall be able to put beyond doubt exactly what we intend to provide.
– I trust that the Attorney-General in the amendment, which he proposes to submit, will go further than he has indicated. I agree with the view taken by the honorable and learned member for Indi, and to which the AttorneyGeneral has assented, that if we allowed the clause to remain as it stands, the effect would be. that the President of the Court, or the Court itself, could go right outside the limits of this Bill. That would be an unreasonable power to vest in any one. Although the Court might exceed the powers granted to it by Parliament, we should have no authority over it, and its decisions could not be reviewed. Of what use is it to appoint a High Court to deal with intricate matters if we are to insert clauses in the various Bills submitted to us to take away the power of appeal to that Court? I should like to remind the Attorney-General that the President of the Arbitration Court might vote in one way while the two assessors might vote in another way.
– We have not given them a vote yet. It is pretty well understood that it is the intention of the Government that the President is virtually to be the person responsible for the finding of the Court.
– That has not yet been settled, and I submit that that would be rather a curious proposal. If the assessors are to be mere dummies and are to have no vote on any matter coming before the Court for decision we can do without them in every other way. They will not add to the ears of the President, or to his understanding. As every matter is to be discussed and settled in open Court, he must hear and know what is being done. Are the men sitting beside him to be merely ornamental ?
– Would they not be so in any circumstances on such a point as this?
– No, they would not, and that is the trouble, because so far as this Bill goes there is nothing to prevent each of them having an equal voice with the President, and they might over-rule his judgment.
– Is it not laid down in all these Acts that the President must form one of the majority of the Court?
– The honorable and learned gentleman will not find that in this Bill. I know that safe-guards might be provided, and if such a safe-guard were provided in this Bill, my argument would fall to the ground. I have, however, to deal with the Bill as presented to the Committee, and there is in it no safeguard of the kind. I am showing what might arise under this Bill, and it is incumbent on us to take care that the clause should not be allowed to remain as it is. I hope that the Attorney-General will remember that as the Bill stands there is nothing to prevent laymen deciding a question of law. Does the honorable and learned gentleman believe that it is advisable that on matters which may be of very grave importance, and which may even affect the relations between the States, a decision of an Arbitration Court should not be open to review by the High Court? Surely that would be highly inadvisable? To give the President the power to state a case is not to provide that he must do so, and, therefore, the amendment which has been suggested does not, in my opinion, go far enough. It is true that the President might avail himself of the power, but our intention is that in certain circumstances he must do so. and that if he “does not his decision may still be subject to review by the High Court.
– (Richmond).- We are given to understand by the Attorney-General that if we pass this clause now, it will be again brought before us for reconsideration, and that it is his intention that it should read, “ Subject to the Constitution and this Act, unless with the approval of the Court,” and so on.
– That is it, substantially; but the words are not my words. The honorable member should leave out the words “ and this Act.”
– Should we not limit the Court to the powers granted under the Act ?
– The AttorneyGeneral has promised to recommit the clause.
– I have promised to recommit the clause with a view to insert a provision for the statement of a special case by the Court for the High Court.
– I should like to ask the Attorney-General to consider also the constitutional point. I understand that the matter will be dealt with in its proper place.
– It is provided- for here. It leaves it open’ as well.
– I only hope it is provided for. I have already stated my views in regard to it, and I hope the AttorneyGeneral will consider them.
– I hope that the Attorney-General in deciding the matter will go a little further than he has already suggested. I believe that in the early history of the Arbitration Court a very large number of complicated questions of law will be raised, not only in reference to the interpretation of the Constitution as relating to it. but also in reference to the construction of the Bill itself.
– What would be the nature of the questions?
– Questions of law.
– I can hardly conceive that there will be very many.
– Undoubtedly there will be a great many questions of law raised in the initial stages of the Arbitration Court.
– Does the honorable and learned gentleman mean under the Bill ?
– Does the honorable and learned gentleman not think that the President of the Court will be competent to decide, being a Justice, of the High Court ?
– I think that it is necessary to provide for these questions of law being dealt with by the highest tribunal in the land, and that is the High Court. I think, also, that the parties should have some voice in the matter. I believe that either the employers or the employes should have the right to ask that a special case shall be stated for the opinion of the High Court. It should not be left solely to the President of the Court. He might rule against a point raised, and decide that he would not state a case. His ruling and interpretation of the law would be final, though it might, in the opinion of many persons, be erroneous. If there is to be no absolute finality in the Court, and there is to be some provision for review, it should ‘ be ample and complete. It should be a legal right of the parties to ask the President to state a case. If he refuses to do so, I would give them the right to go to the High Court, and apply to it to require him to state a case. That may be done now under some of our State laws. In many cases under the State laws the parties have a right to ask a Judge to state a case, and if he refuses they can go to the Full Court, and require him to do so. When that is done the whole matter is practically decided on the application to state a case.
– In what circumstances should it be made imperative?
– I can conceive of these special cases being confined to questions of law. I think that questions of fact should be finally dealt with by the Arbitration Court. Honorable members will perhaps remember that questions of law only are matters of appeal under the Constitution from the Inter-State Commission to the High Court. I do not see why in this case, in matters, of legal interpretation, the right of appeal should not be conceded to the parties interested. I, therefore, hope that the Attorney-General, in considering the matter, will go a little further than he has stated, and will give the legal right to appeal on legal questions.
– Whether this Court should be a Court from whose decision there should be no sort of appeal, and whether on a question of jurisdiction recourse should not be had to another Court, is obviously arguable. But what is the position taken up by the honorable and learned member for Bendigo? He says that the President should be compelled to state a case. I ask under what circumstances ?
– Compellable, not compelled.
– By what means?
– The persons interested could appeal to the High Court for a rule nisi. 1
– I really do not see that the position would be altered for the better in any way. There would be no end of litigation, expense, and uncertainty. If anything is to be done at all, there ought to be only one set of circumstances in which an award or any act of the Court can be set aside, and that is when it is shown that the Court has exceeded its jurisdiction, or when it has declined to act upon a matter clearly within its jurisdiction. I point out to honorable members that section 32 of the New South Wales Act provides - ,
Proceedings in the Court shall not be removable to any other Court by certiorari or otherwise, and no award or proceeding of the Court shall be vitiated by reason only of non-formality or want of form, or be liable to be challenged, appealed against, voided, quashed, or called in question by any other Court of judicature on-any account whatsoever.
That seems perfectly clear, and yet it has been held in New South Wales that it does not apply to a question involving the jurisdiction of the Court. In the case of Keogh against the Australian Workers’ Union it was held that the Court could declare that the Court of Arbitration, notwithstanding section 32 of the New South Wales Act, had gone outside its jurisdiction. While I admit, at once, that a very nice point has been raised, and that the benefits to be obtained by the adoption of one course are balanced by certain risks, still the honorable and learned member for Bendigo makes a proposal which, it appears to me, is in no way required by the clause. As the clause stands now, it gives, in certain circumstances, the right of appeal, but if it does not honorable members might now allow the clause to go, in view of the fact that the Attorney-General lias stated that the Government are prepared to recommit the clause for further consideration. The statement of the AttorneyGeneral may be regarded as a recognition on the part of the Government of the very great importance of the question raised. I regard this matter as perhaps of as great importance as anything contained in the
Bill, and when the clause is recommitted honorable members will have an opportunity to express their opinions on it.
– In view of the fact that the clause is to be recommitted, I have only one word to say. When the AttorneyGeneral tells us that the President, if given the power to state a case, will be able to appreciate the propriety or otherwise of doing so, when questions of law, and especially questions of jurisdiction are raised, the honorable and learned gentleman must not overlook the fact that the President will not have, shall I call it the advantage or disadvantage of hearing the matter argued. With .all respect to those who propose to exclude lawyers from Heaven and the Arbitration Court - the two places which they are supposed never to enter - it seems to me to be an advantage that the kind of lawyer known as a Judge, who is to preside over the Court, should hear the two views of the case argued before him. The President of this Court would not have that advantage which he would have in an ordinary Court. Therefore, I should like to see this power of appeal on questions of law not too much restricted’, much as I am desirous that there shall -not be unnecessary delay in settling questions of this kind. I think that on any question of law the power of the Judge to state a case, combined with the power of the parties to apply’ to the High Court to compel a case to be stated, would not be too wide a power ; and it would, at the same time, give a sufficient limit to prevent legal questions being wrongly decided.
Mr. ISAACS (Indi).- I should like to direct the Attorney-General’s attention to one matter which escaped my attention when I formerly spoke, and which may be, perhaps, more serious than at first sight it seems to be. It is clear, as indicated by the Attorney-General - in accord with what I suggested - that if the Arbitration Court were to make an award that was plainly beyond the powers given to it by the Constitution, it would be bad. This clause, of course, does not impede the review of such an award by the High Court. But, suppose the President of the Arbitration Court came to the conclusion that something was not within the constitutional powers of the Court, when it really was within those powers; and,, therefore, decided to limit the powers of the Court, the High Court could not be appealed to to correct such an error. If the learned President of the
Arbitration Court were of opinion that a certain thing was beyond the constitutional powers of the Court, and of this Parliament, and on appeal the High Court held that it was not, would that award still stand ? Is there to be no power to review it?
Mr. HIGGINS (North Melbourne- AttorneyGeneral). - I cannot concur with my honorable and learned friend in thinking that if the President of the Arbitration Court refused to adjudicate on the ground of not having power, he could not be compelled to state a case.
– The President’s award is not to be challenged.
– But it is to be subject to the Constitution. If the Constitution allows a certain thing to be done, it can be done.
– While all honorable members have agreed that it would be undesirable to have any appeal from the Arbitration Court on questions of fact, I think that a generous discretion ought to be allowed with reference to appeals on questions of law. The suggestion made by the honorable and learned member for Ballarat, namely, that the words should read “ subject to the Constitution and to this Act” would probably meet “many of the difficulties that have been raised. Otherwise it would be competent for the Arbitration Court to give any. award which it had no power to give under this measure, and that award could not be challenged in any Court whatsoever. We have already exempted those engaged in farming pursuits from the operation of the Bill. If the Attorney-General’s reading of this clause be correct, it -would be competent for the Arbitration Court to bring under an award all engaged in farming pursuits, and that award could not be challenged. If that be the meaning of the clause the sooner it is amended the better. If it is not amended the two exceptions to the operation of this Bill on which we have agreed can be set aside. Therefore, it seems to me that not only should the AttorneyGeneral’s suggestion’ be adopted, that the President should have power to state a case on a question of law, but that he should also be compelled to state a case on a question of law if the High Court so decides. I think, thirdly, that the suggestion of the honorable and learned member for Ballarat should be adopted, limiting the decisions of the Court to matters under the powers given to it by this Bill. The wishes of most reasonable men would then be met, and appeals would only take place on. genuine questions of law, and not on questions of fact, on which I agree that no appeal should be allowed.
Clause agreed to.
Clauses 39 to 42 agreed to.
Clause 43 -
– The honorable member for South Sydney has given notice of an amendment upon clause 42, which has just been agreed to. As he is not now present, I will give him an opportunity of moving his amendment later on. On clause 43, I move -
That the word “ may,” line 1, be left out, with a view to insert in lieu thereof the words’ “shall on the application of any original party to an industrial dispute, and ma)’ without such application, at any stage of the dispute.”
The idea of this amendment is to carry out more effectively the decision of tha Committee with regard to the constitution of the Court. We have already decided that the Court shall consist of the President, anc! it was understood that he should have the assistance of assessors in each case if the parties so desired. We wish to make itmandatory on the President that he shall appoint assessors if either party desires ; and to provide that he may appoint assessors at any stage, even if the parties do not make an application.
– Would the parties be able to ask for the appointment of assessors, just before the President proceeded to sum up ?
– I take it that the rules of Court would provide as to the time within which the parties would have a right to ask for the appointment of assessors.
– Would it not be wise to state the time in the Bill ?
– It is merely a° matter of detail to say that, within thirty days, or whatever time may be fixed, application may be made for the appointment of assessors. We can very well leave that to the rules.
– I would ask the Government to take into consideration the desirability of giving the President of the Court, sitting with three or four assessors acting for the respective parties, greater power to make awards as an arbitrator. We should be able to get more satisfactory decisions, and avoid a great deal of trouble and expense if the President had more, power in that direction. I feel certain that, in many cases, the parties would be able when they came before the Court to arrange matters without publicity and without the calling of witnesses. My object in offering the suggestion is to constitute the Court more- a Court of Conciliation with power to make an award. I do not intend to move an amendment, but I should like the Government to consider the suggestion. That would be more likely to create a better feeling than would the adoption of the common procedure of the Law Courts. I hope the Prime Minister will think the matter over.
– I shall do so.
Amendment agreed to.
Amendment (by Mr. Watson) agreed to-
That the words “ any industrial dispute involving technical questions,” lines 2 and 3, be left out, with a view to insert in lieu thereof the words” the dispute.”
Clause, as amended, agreed to.
Clause 44 -
The Court may referany industrial dis pute of which it has cognizance, or any matter arising out of the dispute, to a Local Industrial Board for investigation and report, and may delegate to that board such of its powers, including all powers of the Court in relation to conciliation and the settlement of the dispute by amicable agreement, as it deems desirable. A Local Industrial Board may be -
– In conformity with an understanding previously arrived at, I do not propose to move the omission of the words “ a Judge.” I now move, as largely a drafting or technical amendment -
That sub-clause 2 be left out, with a view to insert in lieu thereof the following : - “ (2) On the report of the Local Industrial Board the Court may, with or without hearing further evidence, or argument, or both, decide the dispute, and make its award.”
– I should like to ask the Prime Minister whether, as a matter of drafting, this clause authorizes the Local Industrial Board to make an award.
– I do not think that is intended.
– Neither do I think so, but it appears to me that the sub-clause may have that effect. I think it is intended that the Local Industrial Board shall not finally, make the award.
– That is the intention.
– But it is arguable that this clause gives power to the. Local Industrial Board to make the award, and there should be an amendment to provide that that can be done only by the Arbitration Court.
– The insertion of the words “for such purpose” after the word “ may,” line 4, would meet the case.
– I think that would meet the intention.
– The Prime Minister might also consider the advisability of striking out the words “ including all the powers of the Court,” which are ambiguous and unnecessary.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 45 agreed to.
Clause 46 (Powers of the Court).
– In view of the fact that fairly good progress has been made with the Bill, and that the Government desire to consider one or two of the suggestions put forward in relation to the power to make a common rule under this clause, I think we might report progress.
– What about the navigation proposals ?
-I hope to have those proposals ready by to-morrow or the next day ; but, in any case, they will be circulated in sufficient time for members to make themselves thoroughly acquainted with their effect.
Visit to H.M.S. EURYALUS Mr. WATSON (Bland- Treasurer).- I move -
That the House do now adjourn. I have to inform honorable members that the Captain of ‘ His Majesty’s flagship Euryalus has, at the request of the. Minister of Defence, arranged that that vessel shall be open to inspection by the members of the Commonwealth Parliament on Thursday, the 23rd instant. Honorable members will receive a circular from Mr. Speaker.
Question resolved in the affirmative.
House adjourned at .10.21 p.m.
Cite as: Australia, House of Representatives, Debates, 15 June 1904, viewed 6 July 2017, <http://historichansard.net/hofreps/1904/19040615_reps_2_19/>.