4th Parliament · 1st Session
Mr. Speaker took the chair at 10. 30 a.m., and read prayers. ‘
LIEUTENANT McFARLANE. Mr. FRANK FOSTER’. - I wish to know from the Minister representing the Minister of Defence if he will lay on the table the papers connected with the appointment of Lieutenant McFariane on probation.
Mr. FRAZER. - There is no objection to’ laying the papers on the table of the Library.
In Committee (Consideration resumed from 4th August, vide page 1166) :
Clause 8 -
Section forty of the principal Act is repealed and the following section substituted in its stead : - “ 40. The Court, by its award, or by order made on the application of any organization or person bound by the award, may prescribe a minimum rate of wages or remuneration, and in that case shall, on the application of any party to the industrial dispute, or of any organization or person bound by the award -
make provision for fixing, in such manner and subject to such conditions as are specified in the award or order, a lower rate in the case of employees who are unable to earn the minimum wage so prescribed; and
direct that, as between members of organizations of employers or employees and other persons offering or desiring service or employment at the same time, preference shall be given to such members, other things being equal.”
– I move -
That all the words after the word “ stead,” line 3, be left out, with a view to insert in lieu thereof the following words : - “ 40. (1) The Court, by its award, or by order made on the application of any organization or person bound by the award may -
direct that, as between members of organizations of employees or employers and other persons offering or desiring service or employment at the same time, preference shall, in such manner as is specified in the award or order, be given to such members, other things being equal ; and
prescribe a minimum rate of wages or remuneration (in which case the Court shall, on the application of any party to the industrial dispute, or of any organization or person bound by the award), make provision for fixing, in such manner and subject to such conditions as are specified in the award or order, a lower rate in the case of employees who are unable to earn the minimum wage so prescribed.
Whenever, in the opinion of the Court, it is necessary, for the prevention or settlement of the industrial dispute, or for the maintenance of industrial peace, or for the welfare of society, to direct that preference shall be given to members of organizations as in paragraph (a) of, subsection (1) of this section provided, the Court shall so direct.”
The clause as it stands fails to cover the whole ground. It limits the power of the President to make preference to unionists contingent upon prescribing a minimum rate of wage. There have been several instances in our Arbitration Court, and very many in the State Courts, in which a minimum rate of wages has not been prescribed. It may be desirable that the President should provide for preference to unionists even where he does not fix a minimum rate of wage. We provide in the amendment, therefore, for the granting of preference without any restrictions. It may be granted whenever the Court thinks fit, irrespective of the number of persons in the organization applying, or whether the organization is using its funds for political purposes. And preference must be granted whenever, in the opinion of the Court, the granting of preference is necessary for the prevention or settlement of the industrial dispute, for the maintenance of industrial peace, or for the welfare of society. I take it that the new section which we now propose to substitute for section 40 more effectively does what we desire than that in the clause as it stands in the Bill, and removes some of the grounds for objection in respect to it.
– I am glad that the amendment has been moved by the Government. It removes a great objection to the clause, which originally provided that the Court should have no discretion in the matter of granting preference to unionists. This new provision gives the Court discretion. I have never given my personal adherence to the principle of preference to unionists. Our views are liable to change with time, but I have never come to believe that to give preference to unionists is fair as betwen man and man. Neither justice nor necessity can be urged in support of it in the present case. The unionists are only a part of the workers of Australia. About 2,250,000 persons have the franchise in the Commonwealth, a considerable number ofwhom are working men and working women, but probably not one-fifth of them are unionists. I am informed that there are only about 150,000 unionists.
– There are more than 200,000 unionists.
– The honorable member’s knowledge on this subject is greater than mine, and, therefore, I accept his figures; but, as there must be 1,000,000 industrial workers in Australia, they prove that only one-fifth of the total are unionists. On the ground of necessity, I cannot see why unionists should desire this advantage over other men. It cannot be said that unionism is languishing, because we know that members of the Ministerial majority in both Houses owe their seats to the fact that they are nominated by unionists, and the unionists are in a position of such influence that they were at the last election able to return a majority in both Houses. I always understood that one of the great planks of the Labour party was equality of mankind and equality of opportunity - that one man is as good as another. Of course, there are people who do not agree with that idea, and Burke regarded it as “a monstrous fiction.” Perhaps, if it be analyzed, we’ shall fmd it to be so. At any rate, equality of mankind and equality of opportunity is the shibboleth of the Labour party ; but where is that equality when one man is given an advantage over another? I am not now referring to men who are not in the ranks of Labour - men who have inherited wealth, or may have risen from the ranks of Labour - but to the competition between one poor man and another poor man, both very anxious to earn their living and support their families. This strong party, which is able to return a majority in the Federal Parliament, is not satisfied with their present advantageous position, but demands further preference. In my opinion, however, preference is not the real object of this clause. Unionists already have the power in all the great industries which extend beyond the limits of one State. I have heard it said in the House that .in the great shearing industry and the shipping industry there is not a man employed who i? not a unionist; and, therefore, their interests cannot be affected. Unionists are strong enough to look after themselves; indeed, that has been admitted by the honorable member for Darling. What is really desired is to make preference to unionists compulsory, and to leave no discretion to the Judge, as at present, and then to make it difficult for persons to obtain a livelihood unless they join the unions. This power is not sought, in my opinion, for industrial purposes, but for political purposes.
– Why do they seek political power if they already have the majority in Parliament?
– They desire to drive all the workers into unions, with the object of increasing their political power. However, I shall not further deal with that point.
– It is a very weak point !
– It is strong enough for my purpose, and I believe that with others I shall raise, will prove strong enough Q for the honorable member. I must say that I think too much power is given to the Judge of the Arbitration Court. I have nothing to say against the distinguished men on the. High Court Bench; indeed, it would be unbecoming in me to do so, and, as a matter of fact, I have no thought of the kind. In a great industrial matter like this, however, covering the whole of Australia, the Bill, by bestowing this unlimited power, places unreasonable reliance on any single man, no matter whom he may be. In private disputes of the most ordinary kind there is opportunity for .appeal to several higher tribunals before an ultimate decision is obtained, but in a matter which interferes with the living of almost every man in the country,, and which has a far-reaching influence on the daily lives of us all, we rely on the unfettered discretion and decision of one man. This seems to me the most foolish step possible to conceive. We provide* a number of Judges to decide comparatively small cases in order that ultimate decision may be arrived at, but in industrial matters, which are more important than all - the doing of justice between employer and employed - it is proposed to take the decision of one individual, without appeal. This system must break down, as, indeed, it has already broken down in all the States. However eminent . and conscientious a Judge may be, it is impossible for him, under all the circumstances, to give satisfaction. If we are going to adhere to this policy, we should have a strong Court of, at least, three Judges. We are told that in the multitude of counsellors there is safety ; and the Bill, in my opinion, is inadequate in this connexion. I ought to have some sympathy from honorable members opposite seeing that, together with my friend, Mr. Howe, of South Australia, I was instrumental in having this section placed in the Constitution. Its inclusion was proposed by Mr. Howe, and I seconded the motion, and, though there was a good deal of opposition at first, it was eventually adopted. Further, I was, I think, the first Premier in Australia to introduce a Conciliation and Arbitration Bill into a State Parliament, though I do not think I was the first to carry such a measure, because its discussion extended over two sessions.
– Was it not Mr. Kingston who introduced the first Conciliation and Arbitration Bill into an Australian Parliament ?
– But I do not think that Mr. Kingston’s measure was really ever acted upon.
– Yes, it was.
– At any rate, it was not a compulsory measure, and I believe that it broke down on the first case, and has never been in operation since. Compulsory conciliation and arbitration on the lines of the New Zealand Act was first introduced by me in the Western Australian Parliament in 1899, and was passed in 1900. In the meantime, however, Mr. Bernhard Wise had succeeded in putting the New South Wales Act through, though this was not quite so similar to the New Zealand Act as was that of Western Australia. A section in the West Australian Act declared strikes to be criminal and illegal, and we all thought that strikes would be at an end. like every reasonable person, I was very much opposed to strikes, and it was thought that conciliation and arbitration, which were anxiously desired by the leaders of the Labour party, would be better for everybody concerned. I must say, however, that I have been disappointed in many ways. I am, however, very glad to admit that this legislation has done some good, and that it has prevented a good many strikes. At the same time, we must remember that most of the decisions have been in favour of the men ; and I have found - though perhaps the honorable member for Darling having had more experience than myself may differ from me - that in very few instances have the men willingly subscribed to any award made against them in the same way that the employers have been compelled to. Of course, the employers, being few, can be compelled to obey, but an award cannot be enforced against thousands of men. I remember that when the original Bill was about to be submitted to this Parliament, by my late lamented friend, Mr. Kingston, I objected to the proposed penalty of £1,000 as ridiculous. It was even proposed, I think, to add imprisonment as an alternative penalty ; but I asked Mr. Kingston how it would be possible to enforce the payment of .t, I,000, or to imprison large numbers of men. However, Mhr. Kingston was strongly of opinion that the penalties ought to be preserved, and he said to me many times that, in his opinion, when the Act was passed, there would be no more strikes, as the men knew the Act was intended for their advantage.- In the principal Act there is a provision that no person or organization shall, on account of any industrial dispute, do anything in the nature of a strike or lock-out, or continue any lockout or strike under a penalty of ^1,000; but that penalty, I think, has proved a dead letter for all practical purposes. We remember the story of the working man who, when he went to arbitration and had a decision given against him, exclaimed, “ You call this arbitration - they have given it against me!” So long as the award is in favour of the men all goes well, but, when it goes against them, difficulties arise. I have some records here showing the cases in which the aw.ards of the Court in different States have not been obeyed. I have not prepared all of these records myself, but have had them supplied to me, and I should like to read them for the information of the House. This is a list of cases of employes in New South Wales who are reported to have struck work, after having obtained, and during the existence of, an award of the Court of Arbitration, in an industrial dispute to which they were parties, and as a refusal to obey the award. The cases are - 13th January, 1904, the Rhonda Northumberland and Northern Extended Mine ; on 24th July, 1904, the East Greta miners ; on 10th November, 1905, the Sydney wharf labourers ; on 7th February, 1906, the Sydney coal lumpers; on 22nd January, 1907, the Sydney wharf labourers. There was a succession of strikes by that organization, in which, I understand, the AttorneyGeneral holds office. On 16’th March, 1907, the Sydney coal lumpers again ; on 2nd March, 1907, the Occidental miners; on 3rd April, 1907, the Queen Bee (Cobar) miners; on the nth April, 1.907, the Cobar miners (several mines) ; from the 12th April, 1907, to 18th July, 1908, the Sydney coal lumpers for the third time ; on the 16th April, 1907, the wire netting workers; on the 17th May, 1907, the Cobar miners (several mines) once more; on the 31st January, 1908, the sawmillers ; on the nth February, 1909, the ironworkers’ assistants and boiler makers (Messrs. R. Tulloch and Company’s Phoenix Ironworks); and on 22nd February, 1909, the employes, ironworkers’ assistants, &c, of the Meadowbank Manufacturing Company. Then the Teralba miners are reported to have struck work on 12th November, 1909, in face of the award of a Royal Commission on Coal Mining Disputes in the Newcastle and Gunnedah districts, and as a refusal to obey such award. I am glad to inform honorable members that there has been no occasion of employes striking work in the face of the award of an industrial board in New South Wales j so that it seems that that system, which has been advocated in this House as preferable, has been a success in New South Wales as far as it has gone.
– There has been no arbitration court in New South Wales for some years now, so that some of those cases took place during the existence of the boards.
– I have given a list of the organizations and the dates on which strikes took place, contrary to law, during the past five years. In Victoria there was a strike of bread workers in 1907 against the decision of Mr. Justice Hood, sitting as a Court of Industrial Appeals. Not only did they strike, but they abused the Judge to such an extent that he resigned from the Court. As soon as the wages in that trade were reduced by the ultimate award of Mr. Justice Hood, the union intimated that, unless the men were paid at the rate fixed by the Wages Board - which Mr. Justice Hood had reduced on appeal - the members of the union would be called out. Honorable members can find that set out in the report of the Chief Inspector of Factories for Victoria, of 30th April, 1909. The employers had to give way, the law was flouted, and the strike was at an end. Queensland has been fairly free from strikes, but I have a note of one by the slaughtermen at the Redbank, Murrarrie and Pinkenba Meat Works. They would not obey the Wages Board decision, and struck. After a conference, the strikers succeeded in obtaining the wages asked for and the strike came to an end. In Western Australia we have, unfortunately, been subject to a great many strikes. The Conciliation and Arbitration Act in that State was introduced by my Government, and I was told by the unions that they considered it was a very beneficent measure, that they would be for ever grateful to me, and that we should be for ever blessed if we passed it. We passed the Bill, and it is the law of that State now, but I have not seen much of the promised gratitude displayed since then. Instead of being grateful to me and remembering me with affection ever after, they have tried to destroy my political life at every opportunity. In one of the first cases under that Act the award of the Judge was not favorable to the employes. They commenced a practice that, I regret to say, continues, of abusing the Judge, and the Labour Council passed a resolution deploring “ the exhibition of bias by the majority of the Court.” That majorityconsisted of the Judge and the employers’ arbitrator. This resolution, passed on the 14th October, 1902. also notified that “ the council appreciate the action of their representative,” a Mr. Lobstein. Shortly afterwards, however, Mr”. Lobstein did not give them satisfaction, and they abused him and turned him out. They appreciated him when he was with them, but when he was not with them so much as they thought he ought to be they abused him and turned against him.
– The right honorable member does not know all the circumstances.
– I only know the broad facts. The Labour council deplored the existence of bias when the award was against them, and gave commendation when it was in their favour. One of the Labour party, Senator de Largie, said at the meeting of the council on that occasion -
They all recognised that the presiding Judge (Mr. Justice Moorhead) of the Arbitration Court, was not friendly to Labour. It was evident that he was letting his spleen and bygone events get the better of his judgment. While he was President the Labour bodies would not get justice.
He went on to advise them to petition to remove the Judge from his position. This attack would, perhaps, not have had much effect on a strong man in good health, but Judge Moorhead was very ill at the time, and was so affected by this adverse comment on his honour, that, after vindicating himself in the Court, in a way which I suppose is very seldom heard of, he broke down. He never recovered, and shortly afterwards died. That was a very bad start in Western Australia.
– The same Judge had been seriously ill foi a considerable time before. He had had paralytic strokes.
– That would not make him dishonest.
– I do not say that he was dishonest, or that it made him dishonest.
– The point l want to make is that the awards of the
Judges in these Courts must be in favour of one side or the other, and that it is of no use giving the Judges authority to make awards unless they are to be obeyed. I am sure the Prime Minister agrees that there must be an alteration in that direction.
– What happened at Broken Hill? The men did not agree with the award, but they accepted it.
– The honorable member can use that case; I am not using it. I air: giving cases where the award has not been accepted.
– The right honorable member is not using the Broken- Hill case because it is against his argument.
– It does not support my point that where awards are made they are not obeyed. I do not say that they are disobeyed in every case, but every one of them- ought to be obeyed if this legislation is to be a peacemaker, and if industrial peace is such a boon to the community as the Attorney-General last night said it was. My objection is that the men go on strike instead of. taking advantage of the law which enables them to have disputes settled by conciliation and arbitration. So long as they do that, they make it veryhard for all those in this House, who want to make their position better, to help them. I know that the Prime. Minister agrees with me that if this Act is to be efficacious it must be obeyed. Unless it is obeyed, its very foundations are knocked away. The tramway strike now going on in Perth is an instance of men striking in spite of the fact that they have an opportunity of appealing to the Court and getting an award. The employes in that case have not gone to the Court, but have gone out on strike.
– I ask your ruling, Mr. Chairman, as to whether the right honorable member is in order in making a general speech on the benefits of arbitration, and going into the history of cases for several years back-
– I think we ought to have a quorum on an important matter like this. [Quorum formed.]
– Is the right honorable member in order in raising the whole question of the history of arbitration on a clause which simply provides for preference to unionists and the provision where necessary of a rate below the minimum wage?
Instead of discussing the clause, I submit that the right honorable member is trying to get in a second-reading speech.
– The right honorable member is perfectly in order. The question of awards is before the Chair.
– It is very regrettable that the tramway employes in Perth have taken the law into their own hands. In this morning’s Age there is published the opinion given yesterday by Mr. Justice McMillan in regard to the matter. In giving the Court’s decision, he said -
It is not for us to express an opinion as to the wisdom of taking away the right to strike. That is a matter of politics, but as a Judge, I ought to say, while there are sections which make conduct of this kind a criminal offence, they ought to be enforced. If the desire is that they should not be enforced, then these sections ought to be removed from the statutebook.
In that case, a mandamus was applied for, but was not granted by the Court. I believe it is made a criminal offence in Western Australia to strike instead of approaching the Court for an award, but those provisions do not seem to have the desired effect. That is the weak spot in the whole of this legislation, and T wish the Prime Minister would give his attention to it. We ought to devote all our energies to overcoming this difficulty, and endeavour to prevent men taking the law into their own hands, instead of obtaining an award of the Court. I am sure that my honorable friends in the Labour party desire that the law shall be as effective as possible, but I think I may reasonably complain that they never raise their voices against any of these illegal and improper actions on the part of the unions. Instead of applying to the Court for an award, men go on strike, thereby breaking the law, and yet honorable members of the Labour party never condemn them. They contribute, to their funds, and express sympathy with them, but we never hear them say to men who go on strike - “ Comrades, you are breaking the law, and are thus making it more difficult for us to secure any extension of the system of conciliation and arbitration. If you go on in this way you will lose this great boon that we believe to be in the interests of yourselves and of the general community.” I cannot recall to mind any case where a member of the Labour party has gone into the open, and has told men on strike that unless they obeyed the law he would have nothing to do with them.
Members of the Labour party, in such circumstances, remain quiescent. They are like “ dumb, driven cattle.”
– That may be an argument against arbitration, but it has nothing to do with this clause.
– It has a bearing on the question of the awards of the Court. I am sure that the honorable member desires that the law shall be observed, but he never calls upon men who have gone on strike to obey the law by appealing to the Court for an award. After all, I suppose that members of the Labour party are not to be blamed. How can we find fault with them, having regard to the position that they occupy? They owe their position in this House to the unions; they have been nominated by unions, and they are not prepared to jeopardize their own positions in Parliament by saying one word against their nominators. That is the position that we have reached in this House. In Western Australia there have been many strikes, in which an - award of the Court has not been sought. Apart altogether from strikes among State employes, who do not come within the purview of the Arbitration Court, except to a limited degree, there have been various industrial disputes. We had there a great strike amongst the timber workers, which disturbed the whole country. The Arbitration Court could have made an award, but no appeal was made to it until the whole community had suffered great loss by reason of the strike. We also had a strike amongst the firewood cutters, which caused the cessation of work on all the Kalgoorlie mines.
– I again call attention to the state of the Committee. [Quorum formed.’]
– The firewood cutters’ strike caused all the mines in the Kalgoorlie district to stop work - a truly extraordinary state of affairs in this twentieth century.
– What was the interest of one of the honorable member’s “ pals” in that matter?
– The employes in that case, without making any complaint to him, went on strike. A few hundred workers were able to throw into a condition of chaos the whole mining industrial community of the State. Honorable members of the Labour party would do well to direct the attention of unionists to these improper actions, instead of endeavouring to pass an amendment of the law which will be of no service to them, except for political purposes.
– The wood cutters who struck were working under contract, and did not come within the provisions of the Arbitration Act of Western Australia.
– The honorable member, and those associated with him, did not try to put a stop, to the strike. They did not say a word against the monstrous act of the men in upsetting the whole of the industrial life of the gold-fields.
– Will the honorable member admit that the men to whom he refers could not appeal to the Court?
– No. They could have done so.
– They could not ; they were employed on piece-work.
– They had no desire to appeal to the Court. They were unreasonable, and struck without giving to their employer any reason for their action. If the honorable member for Fremantle were present, he would say at once that no complaint was made to him by his men before the strike occurred. I would likewise remind the Committee of the strike of Collie miners, in connexion with which there was no application for an award. The sewerage workers also ceased work, claiming a wage of 9s. instead of 8s. per day. They did not go to the Court, although Mr. Justice Burnside was finally asked to act as arbitrator in the dispute. Is it any wonder that I and ethers who were instrumental in passing the original Conciliation and Arbitration Bill should not be satisfied with the result? That Act has done some good, but the results have not been all that we expected from it. The extent to which it has fallen short of our anticipations is due to the members of the present Ministerial party. If they had denounced the law-breaking as they would have done had they been possessed of sufficient pluck - had they not been afraid of losing their parliamentary seats - these calamitous results would not have followed.
– The honorable member is not in order in reflecting upon the action of any honorable member.
– I am referring to honorable members on the other side, not individually, but as a class. I come now to another aspect of the unions, and to which I invite the attention of honorable members. The honorable member for Darling is the most plausible man whom I have ever listened to, and has the capacity to make something that looks black against him appear to be snow-white. It is always a pleasure to listen to him, because he can make even a bad case look fairly well. He must admit, however, that it is very difficult for men to join certain unions.
– That is not correct.
– Let me cite an instance. Every candidate for admission to the Fremantle Lumpers’ Union must be a lumper ; his application for membership must be proposed and seconded, and, unless a majority approve of his application, it is rejected. If admitted he must- pay an entrance fee of 21s., and a weekly contribution of gd. per week. This seems fair and reasonable, but in practice the union is a close preserve. An applicant for admission will never secure the votes of the majority unless they view his appearance with favour. The union has been a close preserve for years.
– What a glorious occupation it is to preserve !
– It is considered to; be a good occupation for making money without being overworked. To return to the question of preference to unionists, I think that this clause as it stood was an interference with individual liberty, and was framed with only one object in view. Its object is not industrial because the unions already have all that they want in that respect. They have complete control of the industries to which they relate. A non-unionist cannot work alongside unionists without the consent of the union, and, as a rule, it is made impossible for him to work beside them. The object of this clause is not industrial but political. I do not believe in coercing a man or a woman to join a union, or any other organization, as the only means by which he or she can secure a livelihood, and that inestimable blessing so eloquently referred to last night by the Attorney-General - industrial peace. Even if the unions do not operate harshly in respect of nonunionists, there is a, system of coercion exercised in connexion with them, and a man loses his individual liberty.
– The Bill does not provide for anything of the kind. It does not say that a non-unionist shall not be employed - that is only an assumption.
– A nonunionist, to obtain employment, must join a union, and pay what he does not wish to pay. He must subscribe to the rules and regulations of a limited number of workmen who have gained the upper hand in Australia. He must subscribe to what the executive and secretaries of these unions - all of whom have their eyes on Parliament, and generally get there- think. I do not wish to reflect on any one, but I believe that nearly every member of the Labour party in this House has been the secretary or an officer of a union. Such an office is a passport to Parliament - and the Labour party naturally wish to make the unions as numerous as possible.
– Of course that is it !
– Is not the honorable member the secretary of a union ?
– Not half-a-dozen members of the party are secretaries of unions.
– Was not the honorable member the secretary of a union ?
– No ; I was President of the Trades Hall Council.
– And but for that fact the honorable gentleman would probably not have been returned to Parliament. I am not in favour of making laws to interfere with individual liberty or comfort unless it is necessary to do so, and no one can say that this clause is urgently required, even in the interests of the unions now in existence. We have been discussing for days, and during an allnight sitting, a Bill containing a provision which the Attorney-General himself says he thinks will be inoperative. . This invasion of the rights of individuals is repugnant to people of independent minds. Why should men be compelled to do these things in’ a free and sparsely-populated country, where there should be room for every one? This clause is unnecessary. Its only use will be to interfere with liberty or to destroy equality. It will be of no advantage to unionists except for political purposes.
.- I do not claim to be a legal luminary, but I do not altogether approve of the amendment which has been proposed this morning. In order to illustrate my contention, let me place myself in the position of an employer of labour. The amendment gives an evilly-disposed employer the opportunity to inflict injustice on his employes after an. award has been made. It enables the Court to fix two rates of wages, and my knowledge of the world tells me the lower rate will be generally adopted. Employers will be able to grade their men as secondclass workmen. Nothing can prevent that being done, and it will inflict great injustice on men who are not second-class. It is only right that provision should be made for aged and infirm persons who cannot compete with men of average ability, and I persuaded the body to which I belong to agree to an arrangement to that end in a State award. Under that arrangement the Registrar, with the consent of the union and the employe concerned, can give a man what is practically a certificate to the effect that, feeing unable, by reason of age or infirmity, to earn the minimum wage, he may accept less. There is nothing new in such an arrangement. Eighty or ninety years ago the men in the building trades in Glasgow used to meet yearly to fix the rates of wages for the ensuing twelve months, and provision was always made for the case of aged and infirm workmen. In dealing with matters of law and equity, I always try to see the case as my opponent would see it, and in doing that in connexion with this proposal I find that our objects will be defeated. It must not be forgotten that we are legislating, not for men who desire to be just, but for men who wish to take advantage of their fellows, even at the expense of justice and humanity.
– Does the honorable member suggest that the Registrar or some competent authority should deal with this matter?
– Yes. It is well known $1mt nowadays when men wish to tender for contracts they have no difficulty in regard to the prices they should fix for materials. I could take a specification from an architect, and get out the quantities in a few hours. The difficulty is to know where to get labour and how to get the cheapest labour. The ingenuity of the Attorney.General is of a very high order, and the difficulty which I have pointed out will give him a splendid opportunity to exercise it.
– The moving of the amendment is the best answer to those who object to secondreading debates. It shows that the Government has for once listened to arguments respecting the views of a large section of the community, and we may congratulate ourselves that the Attorney-General has come down from the topmost to the lowest branch of the tree.” But the amendment bears evidence of very crude and hasty draftsmanship. Although I have had only a few minutes in which to read it, I have observed many probable defects. No man who applies himself to the study of constitutional questions can speak positively on the constitutional points which are seen on a mere cursory reading of an amendment like this, and I do not feel disposed to deal with the constitutional aspect of the matter on such short notice. The attitude of the Government has not encouraged us to give our views regarding the constitutionality of the Bill. No doubt honorable members who have enjoyed Gilbert and Sullivan’s Mikado remember that Pooh Bah, when asked his advice regarding a proposed expenditure, replied that the subject was one of great moment, and as Chancellor he would say that the law did not permit, but, he added, “ If you want my opinion as your- family solicitor, my advice is, ‘ Chance it.’ “ The scene suggests the relations between the Prime Minister and the AttorneyGeneral in regard to some of these Bills. The Attorney-General no doubt replies to the Prime Minister, “ If you consult me as Attorney-General, I say that there is a good deal to be urged on both sides ; but if you come to me as your private adviser, my advice is ‘ Chance it.’ “ The Prime Minister has chanced it before, and is chancing it again, and the results will be more obvious later. There are two inconsistent intentions expressed in the new provision. It removes the most objectionable part of the proposal in the Bill, namely, that which obliges the Court to give preference to unionists on the appllication of any organization.
– -The provision is objectionable to some honorable members because it is effective.
– The honorable member must discuss that with the AttorneyGeneral. The new provision which it is intended to substitute for section 40 says that-
The Court, by its award, or by order made on the application of any organization or person bound by the award may -
direct that, as between members of organizations of employers or employes and other persons offering or desiring service or employment at the same time, preference shall, in such manner as is specified in the award or order, be given to such members, other things being equal.
That very largely copies the language of the Bill ; but there are these other provisions -
Whenever, in the opinion of the Court, it is necessary, for the prevention or settlement of the industrial dispute, or for the maintenance of industrial peace, or for the welfare of society.
Here we have our old friend.
– Society, what crimes are committed in thy name !
– I do not think that many crimes will be committed in connexion with this phrase, it being, to my mind, only so much palaver, adopted to please the Attorney-General.
– “ Mere circumstantial detail.”
– “To give verisimilitude to an otherwise bald and unconvincing “ amendment. These provisions can be read in two ways. It must be remembered that the Court will deal, not with trade unions, but with associations registered under the Act. To register, a trade union may have to change its constitution,
– Those restrictions are being removed.
– To some extent; and, in connexion with another part of the Bill, to which I am not at liberty now to refer, except indirectly, there will be an extremely important discussion. In regard to the proposal now under consideration, I ask is it intended that at the instance of an association which may consist of only a comparatively small number of the total employes in an industry, notwithstanding that its membership is not less than 100, a rule shall be made by the Court affecting only those members and the other parties to the actual dispute, or that the Court shall award preference to the members of all associations and persons connected with the industry affected? That is what the words suggest, because the Court may - direct that, as between members of organizations of employers or employes and other persons offering or desiring service or employment at the same lime, preference shall, in such manner as is specified in the award or order, be given to such members.
Those words are general in their application, and empower the Court to make a rule affecting all organizations in an industry, no matter whether they are or are not connected with the dispute which is being adjudicated upon.
– Two separate organizations cannot be registered in any one industry.
– That is so, but all the employes in an industry are not members of the organization registered in connexion with it. The Attorney-General should state to which of the two views which may be taken of the amendment It is intended to give effect. It will be seen that they are of a totally different character. In one case what is proposed may not be objectionable. If we have a number of employes in the organization coming into direct conflict with their employers, and one of the subjects of dispute is preference as between themselves- -
– That is all that is wanted.
– I should like to have an assurance from the AttorneyGeneral to that effect. I am very glad to hear the interjection of the honorable member, because, so far, ‘ it removes very largely inmy mind any remaining objection to this part of the clause. But if it i& intended that the Court is to have power at the instance of the organization to make a rule for preference to members of that organization over other persons applying, and other employers not actually parties to the dispute, we are getting on very dangerous ground.
– We all agree to that.
– It is very pleasant to receive these assurances from irresponsible gentlemen ; but we have had so many different assurances, even from members of the same Government, that I should prefer a definite statement from the AttorneyGeneral. If there is an application! that preference shall be given, and that preference is to apply to employers other than those who are parties to the immediatedispute, we at once come to the genera? principle of the common rule - I think that every one will admit that here is brought, in the whole principle underlying the common rule. I am not quite sure that I understood the Attorney-General aright, but I think that he admitted that, in his opinion, the common rule was probably not based ora constitutional grounds.
– I said it was rather doubtful.
– I am grateful for such an admission from the AttorneyGeneral. If the common rule is doubtful then the same rule which makes it doubtful will make it impossible for the Court to be invested with power to give preference affecting employers who are not actually parties to the dispute. The AttorneyGeneral, I think, follows me in that position ?
– Are we never to exercise powers until we are convinced that they are constitutional ?
– That depends on the view we take. Honorable members opposite will, I think, follow their leader and say, “ Chance it “ ; but that is not the general view I should take.
– If the honorable member’s view is correct, how are we to find out what our powers are ?
– I am inclined to think that there is a medium course. We may, to some extent, in certain cases where necessity requires, legislate when we are not absolutely sure of our powers, and leave the Court to determine them. But that is different from engaging in a course of legislation against which the bulk of the legal advice in the House is continually directed. Honorable members will admit that, so far as the legal members on this side have expressed their views, they have not been dictated by party consideration. At all events, I - and I am sure other legal members - have endeavoured to do the duty which lies on members possessing any legal qualification in a debate of this sort, and to state as clearly as we can what we conceive to be the legal effects. Under the circumstances, if it be found that a very considerable volume of legal opinion is directly opposed to any particular measure, and it is admitted that that opinion is honestly expressed, it is not always wise to flout it absolutely.
– Is not the majority the guide as to the rights in the case?
– The. majority cannot determine matters of this sort. I should like to refer, in passing, to the new part of the clause providing that whenever, in the opinion of the Court, it is necessary for the prevention of an industrial dispute, to direct that preference shall be given, preference may be given. I shall assume that to be intra vires - that if it be passed it is good law - and I make the same assumption in regard to the provision about threatened or impending disputes, in order to discuss the merits of the question. If both of these are good law, and we pass them, we shall have the rather extraordinary result that any organization, no matter whether it contained only the minority of the employes in the industry, and that the majority do not desire to have anything to do with it for reasons of their own, may apply, and may say to its employers, “ We wish you to give us preference over all others, though we have no other dispute with you - we are perfectly satisfied with our wages and conditions,” and that, thereupon, there is an intended or apprehended dispute. The Attorney-General will admit that such a case would come under the head of threatened disputes. The Court would then have no option but to say that preference was necessary for the settlement of an apprehended dispute, and an order would be made. The whole essence of such a dispute is that preference shall be given.
– Quite so.
– And, therefore, the result is that we place in the hands of a single organization, representing, it may be, only a minority of employes in the industry, the power to compel the Court to give preference, seeing that in no other way can a settlement of the dispute take place. There must necessarily be a dispute, because the organization will say that if preference be not given, there will be a dispute on that question. All these matters require some time for consideration. I am not at all confident at the present moment of what this amendment means in its full details. I see great possible defects in “it, but I will say that it does seem to me to do away with what was the essence and spirit of the clause as originally introduced. That clause was really a demand made on this House to abdicate its own functions to outside unions, seeing that it provided that, on the demand of those outside unions, the Court we are creating and investing with powers, should be compelled, on their mere demand, with. out the consideration of anything else, to give preference. Such a claim is one which is absolutely inconsistent in my mind with the continuation of the functions of this Parliament as a Parliament. If it had been carried we should have been handing over to those outside bodies, which are irresponsible, so far as Parliament is concerned, the complete control and regulation of industries, represented only by a certain number of the employes. That provision happily has now been withdrawn.
– Does that remove the constitutional difficulty ?
– It certainly removes one of the constitutional difficulties, though I see other possible difficulties, which are, perhaps, of still greater importance, seeing that constitutional difficulties are always removed elsewhere, if not here. At all events, the withdrawal of that provision removes the effect of what would have been a blow at the whole liberty of Parliament in connexion with the industrial matters.
– The criticisms that have been directed against this part of the measure have been comprehensive and contradictory. The Committee may be reminded of the present state of the law in regard to this matter. Before the Court now can grant preference, it must be satisfied that there is a majority of those interested in the industry who are favorable to its application. If preference is granted, the Court subsequently takes it away if it be shown that there is anything in the rules of the organization which, in its opinion, is inconsistent with the granting of the preference. This means,’ when read in connexion with the clause and section 55 of the Act, that the Court is given such a wide discretion as to what is unsatisfactory, or inconsistent, that I can hardly conceive of the rules of any union which might not be held fatal, to preference. One instance may be given. In 1901 or 1902 the Sydney Wharf Labourers’ Union, in connexion with the first award under the State Act, obtained preference for its members. The Court decided that, as long as the union permitted any reasonably competent and sober person to join the union, then, as between members of the organization and non-members, preference should be given to members of the union. It was found, as one of the direct effects of this condition, that a large number of men went to the employers with letters from various persons, who testified that they were very good men - that is to say, from our stand-point, very bad men. The employers in some cases even handed money to those men, who then came to the union, and said, “ Here we are, take us in.” The union, as every other union, organization, or organism in creation, claiming the right to determine who should be admitted as a member, asked itself whether this was conducive to the preservation of its existence, because, obviously, it wds opening the door of the citadel, and allowing the enemy to come inside. Tlie Wharf Labourers’ Union, to which I myself belong, said, “ Well, this preference is no doubt a very excellent thing, but it is not worth sacrificing that for which we came into existence,” and decided to abandon preference rather than the right to ballot for the admission of members. That is the right to the exercise of which Judge Cohen took exception, though it is a right common to every organization throughout the civilized world. No religious sect, no social body, lodge, or organization, ever divested itself of this right. Every club, every sporting organization, every religious body, reserves itself the right to say who shall and who shall not join, and it is the very basis of organization. If men are allowed to enter unions merely on the payment of a fee while their opinions are not essentially identical with, or may be opposed to, the opinions of the other members, an organization ceases to exist, save in name. Under the law, as it stands, then, an organization may have preference taken away, because it insists on the right to ballot for members, and preference, extremely difficult to obtain, is practically impossible to retain. In six years no organization has received it, and no self-respecting organization could hold it for five minutes. As we think this quite wrong, against the. spirit of the Act, and inimical to the con,tinuance of industrial peace, we have taken’, the very earliest opportunity of remedying it. It has been said that preference to’ unionists is unfair to non-unionists. We do not think so ; and we think, too, that the right to ballot for members is a natural corollary of legalizing organizations and ought to be conceded by every fair-minded person in the community.
– I know unions which have never asked for that privilege, and never exercised it.
– There are unions and unions. Those with which I have been associated are unions that have earned their right to what they have got by being ready to sacrifice all they had to get it. No union is worth a flapping of the fingers if it will not stand out on this question. If the difference between a unionist and a non-unionist is to be simply a matter of 10s., then all I have to say is that that is not the difference, that we have in our minds. The difference between the unionist and the non-unionist is, speaking broadly,-‘ the difference involved by holding one set of opinions and principles and another. All that we ask of any man who wishes to join an organization is that he shall pay a moderate fee, which is barely sufficient, in my opinion, to meet expenses - and no ros. ever invested in anything conceived iri the entrancing pages of the
Arabian Nights ever paid better than the investment of that 10s has paid the members of my organization - and also that he shall hold the principles the union believes in, as set forth in the rules. But, under the Act as it now stands, all barriers are thrown down, and the difference between a unionist and a non-unionist disappears. We do not believe in that, and take the first opportunity of so drafting the preference clauses as to express the conditions upon which preference should be granted. In addition to the restrictions in the principal Act, to which I have just alluded, if a union uses its funds for political purposes it cannot under section 55 obtain preference. Now, this is a distinct attempt to interfere for party purposes with the right of every citizen to obtain what he wants in a constitutional and legitimate way. There is ample precedent for what we desire. Take my own profession. It comes with extraordinarily good grace from gentlemen whose privileges have been conferred upon them and are preserved to them by the law to object to privileges being obtained by the law for members of trade unions. A unionist says, “ I want eight hours a day, or 10s. a day, or decent conditions of work, good air, and an opportunity to live as a man, instead of being a mere machine and a cog in the wheel. I shall try to get it by industrial effort.” He tries and fails. He says, “ Now I shall try to get it by political effort.” May he not do so? Has he not a perfect right to do that as a citizen? When he becomes a unionist, does he - divest himself of his rights as a citizen? Does he become less an elector? Has he no right to combine with any other elector or electors to get any privilege he desires in a constitutional and legitimate manner? The hampering of unionists by this restriction was a blow aimed at the party which sits on this side of the -House, in order to cripple it at the elections. Honorable members opposite saw clearly that the people were coming to the support of this side in ever increasing numbers, and they wanted to prevent unions using their money to alter the laws to give the workers decent conditions to live under. A unionist has a right to get decent conditions, and spend his money, to the last penny if he likes, in that direction. These being the facts, it became necessary to alter the law. But, as I said on the second reading, we are living under a legal Constitution. We cannot alter the law in any direction, but only in a certain direction. I said, and say it again with great regret, that we are unable to do what not only we desire, but what the country, and the industrial conditions of the country, urgently demand. We are unable to make such a law as will effectively cope with the increasingly complex industrial operations of Australia. Therefore, in everything we do now, we are crippled and hobbled by the Constitution. Yet we have a right to go as far as thaiConstitution will permit us. The honorable member for Flinders said that one very good principle to act upon was to “ chance it.” For days we have been sitting under an avalanche of criticism because we are chancing it, and it is rather curious that an honorable member who advised us to chance it in a certain direction should now point out that we shall inevitably overstep our powers if we move a foot in that direction.
– The honorable member for Flinders did not advise the Government to chance it.
– He suggested it.
– He said the AttorneyGeneral advised the Prime Minister to chance it.
– I did nothing of the sort. If I have done the honorable and learned member for Flinders an injustice, I apologize in the amplest possible way, and withdraw my remarks. I understand now that it is I who am supposed to have given that advice. I did not do so. We have to consider exactly how far we can go, and how far we ought to be permitted, to go. I have pointed out all along that we ought to be allowed to exercise our power in any way reasonably connoted bythe words in which it is conferred. Thatbeing so, preference to unionists inevitably springs from the granting of the power,, because it is necessary, in seven cases out of ten, for the settlement or prevention of industrial disputes. The chief objection to the clause as it stands in this Bill is. that preference can only be granted as ai corollary to the granting of a minimum wage. I understood the honorable and learned member for Flinders to say that his chief objection to sub-clause 2 of the clause as amended was that it made the granting of preference to unionists mandatory in a case where the dispute turned on that point. I admit that it is very necessary that the power should be givens to the Court to grant it in such a case. A great many disputes have occurred, and will occur, on this .very question of whether preference should be granted to unionists, and in such a case where industrial peace can best be preserved by granting the application, why should the Court not have that power? And why should we not saythat we believe the Court ought to exercise it? I think we should say so. We are perfectly right in taking power to say so by this amendment, instead of leaving it out of the power of the Court to grant any relief in such a case. In the disputes in which the organization to which I belong has been concerned, questions of money have rarely been involved. In two important cases money has been a secondary consideration. The real question at issue has been whether unionists should work with non-unionists - whether members of our organizations should have preference over non-members. Upon that question, as every honorable member knows, there is room for an industrial dispute spreading from one end of Australia to the other. It is, therefore, proposed to take power in the amendment to deal with cases of that kind, and which can only be dealt with in that very way. In it ‘we have done nothing which goes beyond the Constitution, nor anything beyond that which the industrial circumstances require. The honorable and learned member for Flinders spoke of our chancing the thing, but this amendment goes simply as far as the Constitution will permit us to go. We should be foolish to attempt to transgress those limits, which are very real at present, but which we hope will not long remain so. The clause as it now stands, gives the Court power to do something which, under the Act and the Bill, it could not have done. It gives that power in such a way that the Court may exercise it without that exercise being in danger of being declared unconstitutional by the High Court. Generally, the powers given to the Court under the amendment seem to be at once more comprehensive and more effective than those in the Bill. The honorable member for Flinders stated that organizations under the Act are not necessarily unions. Nor are they, but that argument seems to conflict with the tremendous chorus of invective to which we have listened for some time past, and in which honorable members- opposite have declared that the sole object and purpose of this amendment of the law is to serve the political ends of this party. That is to say, they allege that we are using the funds of trade unions for political purposes. As a fact, the unions of this country do not want anything from us to induce them to vote for us. They have voted and they will continue to vote for us whether they ‘get this Bill or not. That they have voted for us is very evident. The right honorable member for Swan said that there were very few unionists in Australia compared with the numbers outside the unions. The records of unionism and the returns of the last election will, I think, give two very effective replies to the right honorable member. As a fact, in all those industries which permit of organization, or which have availed themselves of organization, unionists are in an overwhelming majority. There are many industries in which unions practically absorb the whole of the workers. As the president of an organization that includes ten thousand men, and covers an industry from one end of Australia to the other, I can say that there are not two per cent, of the persons engaged in that industry outside our organization. The honorable member for. Darling, who is very much better able to’ speak on this matter than I am, can, as the head of the greatest organization in Australia, say the same. Nor is that state of affairs confined to those two industries. It extends to the coal mining industry, the shipping industry, and various others. How many men are there who are not in the Amalgamated Society of Engineers? And we could run the gamut right through the various organizations of Australia. Something has been said about preference to unionists being unfair. Is it? Take, for instance, the lawyers and doctors, the latter particularly, who will absolutely decline to meet a non-unionist, although their unfortunate joint patient should be in extremis. Thank Heaven, we do not carry things to that extreme. It is absurd to speak of unionists being in a minority in this country. They are in a minority as compared with the total population, but they are not in a minority compared with the ranks of the industrial classes of Australia. Unionism is growing every day. To talk about unionism as if it were a crime is to completely forget the purpose and the provisions of the original Act. It is an Act to encourage unionism and organizations. No one can obtain th« benefit of that Act unless he is a member of an organization..
– Who has said that unionism is a crime? The honorable member declared that the Opposition had said that it was.
– I did not.
– If the honorable member did, he only told the truth. Members of the Opposition have said so dozens of times.
– The honorable member for Wentworth said a night or two ago that if he were a workman he would be a unionist. If trade unions had been built up by men like him, they. would not have done much, and they certainly would not be a force in this country. Whilst the honorable member, if he were a working man - and God forbid that he ever should be - would be perfectly willing to join a union, what would he do as soon as he became a member of it? Apparently he would exercise that careful review of his opponent’s position, which seems to distinguish him nowadays, and would regard not his own interests - which is now his leading characteristic - but only those of the men outside. He would live and, if necessary, die for the non-unionist. Now a. trade unionist, after all, is a common or garden variety of man. He is just the same as honorable members on this side and on the Opposition side of the House. He does not join a union merely to take a summer holiday; he joins it, as he has every right to do, to benefit himself and his fellow-man. Human nature is exemplified here as it is in the unions. We are here because the people sent us here to make laws for their benefit. A good deal has been said of the tyranny of unions, and it has been asserted that, under this clause, every non-unionist will be compelled either to join a union or to perish. The honorable member for Lang suggested a number of titles for this Bill, amongst them being, “ A Bill to prohibit the right to live,” or something to that effect. It is a Bill to do nothing of the sort. It is a Bill to promote industrial peace ; a Bill to settle matters in a rational instead of an irrational and desperate way. It is a Bill to enable the industrial and every other class in the community to live in peace and harmony, and to follow their various pursuits in a sensible, business-like way. We deny no man the right to live. It is assumed, however, that preference to unionists, in some inscrutable way, will deprive some men of opportunities of employment. Let us see what it will really do, and I invite the honorable member for Parramatta, who dealt with this matter in his second-reading speech, to note these facts. If IO,000 men are required in an industry, and there are only 10,000 in it, then what does preference to unionists mean? If there are 8,000 unionists, it means that they will be taken first, and the remaining 2,000 afterwards. If there are 12,000, and only 10,000 are wanted, then 2,000 must stop out, whether they be unionists or non-unionists. We say that those who stop out must be the nonunionists. The Opposition would say in such circumstances to us, “ Now, you have prevented those 2,000 men from getting work.” But should we have done so? What would be the alternative? That we should leave out the 2,000 unionists, and prevent their getting work? That is the inevitable conclusion to which we must be driven. But it has been the actual practice of employers to penalize unionists, and to keep them out because they are unionists. That- has been done, not once, but ten thousand times within the last few years.’ To my certain knowledge, unionists who have made themselves prominent have been black-listed, ostracised, and penalized in every conceivable way, merely because they were unionists. We say to every man in this country, not under this Bill, but under’ the terms of the original Act, “ Come into an organization.” That is the invitation extended under the principal Act, which the Opposition supported, and which they say has in it all that is good. That Act, I repeat, and not this Bill, says to the workers, “Come and be unionists; join an organization, and so get better conditions, and get preference if you are in a majority. ‘ ‘ The Act invites them to do that, and when we ask the Committee to approve of the necessary corollary to that Act, the Opposition oppose it. I* venture to say that unions, while they have been, in isolated cases, tyrannical, as every body of men will be under certain conditions, will compare very favorably with organizations of other kinds. We have in this country an organization, so far unconnected with trade unionism as to be at the remote end of the other pole, which says to business men, “ If you do not deal with us - if you do not take from us every pound, every ton of goods that you require - we shall penalize you. We shall decline to handle your produce, or to have anything to do with you. We shall do what we can to make it impossible for you to carry on business. If you either sell or receive goods, except through us, then we shall black-list and boycott you.”
– I ask the honorable member not to continue that line of argument.
– Very well, sir. Those, in effect, are the rules of a certain organization in the Commonwealth. What are the rules of trade unions ? If a man wishes to join a union, he must be a true unionist. He must pay a subscription, and be ballotted for, or otherwise submit himself to the members of the union, and be prepared to accept the union’s rules. My own experience is that unions admit people to their ranks with too little rather than too much discrimination and care. I speak for my own organization, which has been in existence ten years, and during that period has rejected only four applications for admission. We pass through the ranks of our organization from five hundred to eight hundred men a year. There are 3,700 men in it, and in ten years, I repeat, we have rejected only four applications. Can any religious, friendly society, or other organization show a better record? I, with confidence, ask the Committee to accept this provision, which does no injustice to the non-unionists. Under it a non-unionist cannot be affected unless there are in the trade concerned more men than can be absorbed. In that event, the non-unionist suffers only because the unionist does not. If the non-unionist is to secure the harvest, and the unionist is to suffer, then we may say that to leave the Act as it is is to penalize unionists, and to deny them the right to live. Now as any man can join an organization and have equal opportunities with unionists to secure employment, there is no injustice done to the non-unionist. The unionist has done the work of organization. He has succeeded in raising wages, and he has the best right to enjoy the advantages of unionism. I wish now to reply to the honorable member for East Sydney, who is a little doubtful as to what the effect of paragraph b as it stands will be. He desires that the Registrar shall have power to determine under what conditions and in what way a lower rate than the minimum wage shall be paid to aged, infirm, and slow workers. In my opinion clause 9 will give power to the Court to appoint a Board of Reference clothed with sufficient authority. As to the position of the Registrar, I wish to remind my honorable friend that, while under a State Act, a Registrar is able to deal with all matters because of the comparatively circumscribed area within which he works, under the Federal Act the position is different. The case of some persons in, say, Western Australia might have to be considered. The Registrar being here, it would be impossible for him to act personally and a waste of time to delegate those powers to a deputy registrar, who might be, so to speak, quite unfamiliar with the principle of the Act. These deputy registrars are registrars only for the purpose of the Act, and may be officials who are not as conversant with the principle of the Act as the Registrar himself is. I therefore think that the Registrar, having the power, which I believe he has, and the Board of Reference being established, what will happen is that the President will appoint a Board composed of representatives of both parties, in equal numbers, and that they will decide in what circumstances an exemption should be granted to slow, aged, and infirm workers. That is an excellent system which has been followed in New South Wales in many cases and has given general satisfaction.
– We are all indebted to the Attorney-General for another of those second-reading addresses which he persists in delivering in Committee, and which always carry him many miles from the actual question under consideration. In dealing with this clause we have nothing to do with the general question of whether trade unionism is good or bad. Neither has any one on this side suggested in the way of criticism anything to the detriment of trade unionism when conducted upon proper lines and in accordance with the principles which ought to guide civilized communities. The most eloquent and learned, part of the Attorney-General’s speech was all right, with one exception, and that is that his facts were all wrong. The honorable gentleman must often laugh at the way in which he succeeds in fooling those with whom he is associated. He told us this afternoon that it is the rule of the civilized world, wherever trade unions exist, that they shall have the right to ballot for the admission of new members.
– T said that every organization reserved the right to exclude undesirable applicants. I did not, in that connexion, say anything about balloting.
– The honorable member used the word “ballot.”
– That was in relation to my own union.
– There are many unions, the best in Australia, whose doors are open to all who wish to join them. The honorable member’s union made itself a close corporation, and some time ago made the monstrous charge of £5 or £6 for entrance fee.
– That statement is absolutely untrue, if it is made regarding the Wharf Labourers’ Union.
– I am not sure whether it applies to the Wharf Labourers’ Union or to the Coal Lumpers’ Union. Does the honorable member say that no maritime union has ever charged such a fee?
– Not in my time.
– The honorable member has not held his position always. One of the unions did charge such fees. The honorable member’s association with trade unions has been contemporaneous with their political development. I can remember when he was one of the severest critics of trade unions. It was part of his propaganda then to show that their opportunities were limited, because they were not socialistic. Socialism, not trade unionism, was the panacea then. One of the maritime unions used to charge £5 or £6 for entrance fees, and I have often denounced it for doing so.
– No such charge has been made during the past ten years.
– I have always opposed the way in which some of these city trade organizations have been conducted. It is only of late that the strong feeling of the country organizations towards the Sydney organizations has commenced to subside. The country organizations used to severely criticise the Sydney organizations, and kept aloof from them because of the manner in which they were controlled. My attitude towards these organizations is now what it has always been.
– Is the honorable member’s attitude on the land question now what it has always been?
– I am not now dealing with the land question. The honorable member has no faults, and, therefore, spends his time reproving those of other persons. He even goes to the churches, and criticises them. I am glad I have not his Pharisaical purity and sin lessness. In the unions with which I was associated, new members were not asked to contribute until they hadbeen working for a fortnight, when they were expected to pay 1s. as entrance fee and1s. as subscription.
Mr.hall.-That would not provide a big salary for the secretary.
– The secretary got about £10 a year for work for which such officers have since got£156 a year. Things are different from what they were, but not, on the whole, better. Ofcourse, that is only my opinion, but I shall not call my opponents by the ugly names which they have applied to me because we differ. In my time some of the city unions used to do foolish things. The miners in the country would not have anything to do with the Sydney organizations, and conducted their unions upon what they regarded as saner and wiser lines. Lately the idea of solidarity has been generally accepted, but I understand that the Newcastle coal miners still keep their unions non-political.
– They have agreed to come in with the Political Labour League.
– I am sorry to hear that: It may account for the bitter feeling which is developing, and the multiplying of strikes and disputes.
– The strikes all occurred before the affiliation.
– The negotiations are not finally settled ; the matter is only in its first stages.
– I am sorry that the unions have departed from their original position.
– The gold miners’ unions, too, have become political.
– That is not so.
– What has all this to do with the clause?
– The honorable member did not ask that question when the Attorney- General was speaking. He urged that the unions do not sufficiently exercise their power to exclude members. If we allowed the unions to close their doors against new members, and then gave preference to unionists, we should establish a privileged caste of workers, to the detriment of the general body, which would not be fair as between man and man, nor in the interests of society at large. The honorable member for Werriwa has asked, by way of interjection, whether we should refrain from passing legislation until we knew that it would be held to be constitutional. In view of the decisions of the
High Court, the honorable member cannot decide that the Bill is constitutional.
– I should not like to say that it is not.
– Why, then, does not the Government wait until it gets a larger grant of power from the people? Why should we continually bump our heads against the High Court? It is done because the Labour party wins in any case.
– Is not that a good reason?
– It is a good party move as a matter of pure politics. It does not matter whether provisions are constitutional or not, directly the High Court rules against our legislation, the honorable member for Indi says, “ Workers, the High Court is not in accord with the democratic spirit of the times.”
– I never said anything of the kind. I challenge the honorable member to produce a newspaper report of a speech in which I have used any :such expression.
– My impression is that that view has been expressed by the honorable member, as well as by the honorable member for Batman and others of the party. I shall try to find the report which I have in my mind and shall read it. Even if the honorable member did not :say it, many other members of the party have girded at the High Court. It is about the best political game they can play on the platform.
– The honorable member must not discuss that matter.
– Surely I may discuss the constitutionality of. the provisions. Instead of putting forward proposals of doubtful constitutionality, the Government should straightforwardly appeal to the people for a larger grant of power in regard to industrial matters. We are asked whether we ought never to pass legislation until we have the authority of the High Court; but I may tell honorable members that that is the plan followed in Canada. There the Government have the power to refer any proposal to the decision of the High Court in order to ascertain if it is constitutional.
– We have no power to do that here.
– We have all the power ; or, at any rate, honorable members opposite say we have. The popular will which prevailed on the 13th April will surely be available for the granting of a power of the kind. I have before said in this House that it would help us very materially if the Qovernment had the privilege of placing proposed legislation of a technical character before the High Court, and ascertaining its constitutionality, before it is crystallized into Bills, because that would save an immense amount of time, and be infinitely preferable to running our head against the constitutional wall. In my judgment, the proposal before us is only “ taking a rise “ out of the people outside. We have no right to raise expectations, even in their minds, unless we are clear they can be carried out. Since the Attorney-General and his Government intend to ask for a general grant of industrial power early in next year, why do they introduce these proposals in the meantime, not knowing whether or not they are constitutional?
– Because industrial peace has to be maintained in the interval.
– Is industrial peace being broken now, and, if so, when, where, and under what circumstances? Is industrial peace in danger of being broken without the Bill?
– Then we ought to have heard the facts from the AttorneyGeneral on the second reading, or we ought to hear them now before proceeding further. This would afford an admirable opportunity for the honorable gentleman to wax eloquent in another second-reading speech, though we have had about six already. He has shifted his ground this morning in his illustration. The other day he cited the case of an- industry which employed 5,000 hands, 1,000 of whom were in the union, while the other 4,000 were not.
– I think it was the other way round, but it makes no difference.
– And the honorable gentleman asked what is wrong in granting preference to the 1,000. But what is right about it?
– What advantage do they get?
– Every advantage.
– All the men are employed, and what difference does it make to a man whether he is counted as number 1 or as number 1,001 ? No belter example has been given of the uselessness of granting preference in such a case. The illustration this morning is slightly different, but it does not help the AttorneyGeneral being, as he would say, ex hypothosi. It is the case of an industry employing 12,000 men, 10,000 of whom are trade unionists, and 2,000 of whom are not. But the Bill does not touch a case like that.
– Why not?
– Because there is already power to give preference in such a case.
– Not at all. If a union uses its funds for political purposes, or ballots for members, it cannot have preference.
– But, so far as the principle of majority rule goes, there is the power under section 41 of the Act; where that principle is applied, preference may be given every day of the week, subject to the conditions mentioned. It is proposed to eliminate all those limitations as to the application of trade union funds to political purposes - to give the men in unions the right to shut their doors, which, the Attorney-General says, are not half enough shut now, and to leave the members to decide amongst themselves how the funds shall be spent in political propaganda. The Attorney-General is quietly drawing a cordon around the unions which will effectually and inevitably shut out every one else from political or other billets so far as their power goes.
– Not so.
– When the unions essay to control a man’s view of politics, I call that nothing else but unionistic tyranny. I have yet to learn that tyranny exercised by a trade union is any more or less tyranny than when exercised by any other individual or body. We here stand, not against trade unionism, but for trade unionism, stripped of all those excrescences which, in the long run, will not help the unions or give better conditions and wages. We would treat trade unionism as part of the great institutions of the country, and not as an organization for developing class feeling and disseminating hatred in the community. We would not use it as a means of separating men into a caste which declines to recognise any persons outside as having any privileges whatever.
– The Act does that.
– If s0, what more does the Attorney-General want?
– I mean to say that it gives preference to the unionists.
– What the original Act says to the unionist is, “ You claim certain privileges, and you shall have them ; but remember always that your privileges must be the measure of your, responsibilities ; so long as you comply with the obligations imposed on you, and which are deemed by Parliament to be right in the interests of society as a whole, those privileges may be yours, because then they are privileges which do not contravene the equal right of others to similar privileges.”
– What greater safeguard could we have for the welfare of society? Is not the unionist and the non-unionist both included in the term? ; Mr. JOSEPH COOK.- That is only the placard which the Attorney-General places over this proposal. Perhaps I ought not to use those terms, seeing that this morning the proposal is very much modified, and much fairer than that originally contained in the Bill. The original clause sought to ostracize men who dared to vote for any candidate but the man who* happened to be able for the time being toworm his way into the good graces of an organization and get selected. That is a denial’ of liberty, and, in its essence, the worst kind of tyranny. I never in my life would” have anything to do with a proposal of the kind. It is a poor look out when the organizations desire, not only to think for men unionistically and industrially, but also to think for them politically in relation to all the .issues which come before Parliament, and which make up the social” and industrial life of the community. T believe in doing my own thinking, and inpreserving the right of every individual intrade unions or outside of them to also do their own thinking. I am against the kind of regimentation aimed at in the Bill, and I welcome the change which has comeover the Government since we last discussed the matter. With certain safeguards - which, I hope, we may imposelater - on some such lines as laid down inthe Act, I do not find very much fault with the proposal now submitted, except that I cannot, and never could, understand some of the language used. For instance, the clause provides that the- : Court may direct that - as between members of organizations of employers and other persons offering or desiringservice or employment . . . .
That may not be technically a contradic- tion in terms, but it. is practically a contradiction. How absurd it is to say that an organization of employers should be desiring “ service or employment,” and so be entitled to preference. I suppose that this language is simply intended to make people believe that we are giving the same privileges to organizations of employers as we give to organizations of workmen, whereas, in practice - apart altogether from legal terms - the words convey no such meaning and no such application. I should like to hear from one of the ex-members of the Arbitration Court precisely when this class of provision was ever put into operation.
Mr.riley. - It has never operated.
– It is merely redundancy, meaning nothing ; but it has a good sound, like the other phrases used, such as “welfare of society,” “fair and right,” and “social justice.” All these phrases are plentifully besprinkled throughout the measure, and are only so much “ tripe” trailed across the pages. I marvel at the people outside submitting to be humbugged in this way. Then, again, the wording of the proposal is very awkward. We read -
Whenever, in the opinion of the Court, it is necessary for the prevention and settlement of an industrial dispute or for the maintenance of industrial peace, or for the welfare of society, to direct that preference shall be given, the Court shall so direct.
What does that mean? First of all, we are told that the Court may direct that preference shall be given, and then that the Court shall so direct.
– If, in the opinion of the Court, it is necessary to do so.
– But the clause goesfurther, and says that the Court shall direct after enacting that it may direct. That seems to be meaningless language, intended to throw dust in the eyes of the House.
– It is not intended for that.
– Then it seems to have no meaning at all . At first, I thought the last sub-clause was taking a very much wider power than that of the preceding sub-clause.
Sitting suspended from 1 to 2.15 p.m.
– Before the suspension of the sitting, I was expressing the opinion that the Government ought not to “chance it,” as was said this morning by the honorable member for Flinders, but ought to be more certain of its ground before proceeding to deal with these very im portant matters. I went on to say that whichever way things went they brought political grist to the mill of the party opposite, because if the High Court decided against these measures they went upon the platform and told the people how they were prevented by the High Court, as at present constituted, from giving them certain reforms. I pointed out that it was a very easy way to get political kudos by girding at the constitution of the High Court, in which respect I made a reference to some language used by the honorable member forIndi immediately after the recent elections. I find my recollection to be borne out by the quotation, which I have since obtained. The honorable member, speaking at Wodonga, is reported to have said -
The days for the obstruction of the High Court were past. “ The institutions were not in consonance with the democratic declarations of the people on 13th April, and the same people would, if necessary, be appealed to again to grant the power of wiping out the restrictions contained in the Constitution.
– What is wrong in that? The honorable member suggested this morning that I proposed to abolish the High Court.
– I have already told the honorable member that I suggested nothing of the kind. I said it was a very easy thing for the honorable member to get political kudos among his constituents by girding at the High Court when his party found themselves baffled in carrying out their proposals. The honorable member, in that speech, said that the institution was not in consonance with the democratic declarations of the people on 13th April.
– I proposed my remedy - to give the High Court a constitution that they could interpret. Will the honorable member read that?
– I have read it once; but I do not want to do the honorable member aninjustice. Healso said that the people would be appealed to to remove the restrictions contained in the Constitution. I do not see the necessary connexion between that and the former statement. The remedy which the honorable member put forward has nothing to do with the powers the High Court possesses. Speaking of the institution itself, he declared by inference that it was undemocratic. 1 hope our Courts will never be democratic or aristocratic, but will always deal out justice irrespective of which class people profess to come under. The Judges are not there to have political colouring of any kind. The Government ought not to proceed with these proposals until they are :sure of their ground. So far as I see, they mean nothing for the workers, but they may mean much for the political propaganda which the party opposite pursue. The Attorney-General this morning made the astounding statement that preference to unionists was necessary to settle one dispute in seven. Preference is not necessary to settle one dispute in seventy-seven. When granted it will have no practical application to our settled industries, where ihe operations of unionism are as wide as the industry itself. Preference cannot applyin those cases in any practical or reasonable way, and the honorable member is drawing the long bow when he declares that it is necessary for the purpose of settling all those disputes. He went on to say that at dic last elections thousands upon thousands of people voted for the Labour party, and led the House to infer that all those who voted for them were believers in preference to unionists. No more astounding statement has been made by any honorable member. The honorable member and his Government received hundreds of thousands of votes from people who do «ot believe at all in preference to unionists. The honorable member’s inference that, inasmuch as they have been returned, it has been by the votes only of those who believe in preference to unionists is very wide of the mark. However, that can go. I only want to make it clear that the Attorney-General, in his argument this morning, never once touched the position of affairs as suggested by this amendment. He argued over again the old question of preference to unionists. That is not in point at all. Nobody is objecting in this debate to preference to unionists. That was conceded years ago, and, therefore, the honorable member is arguing quite outside of what is before the Chair, when he goes off into a long, rhetorical statement about the achievements of unionism and its advantages to the workers. Every word of that may be subscribed to by every member in the House. The real question is whether preference to unionists ought to be granted without providing such conditions as will insure that it does not develop into tyranny. We argue for preference wisely conditioned, with, for instance, a reasonably open door to the unions, reasonable fees, no political coercion, and, above all, the principle of majority rule. So long as these conditions apply to preference, no democratic man can take much exception to it. We must have wise and prudent measures for the settlement of disputes, and where those conditions are provided for, no man that I know on this side objects to the granting of preference.
.- I realize that the amendment is a great modification of the clause as drafted. I contended on the second reading, and still contend, that the clause does not go far enough for me. The amendment, therefore, makes my position worse, but I quite realize that, although I hold strong opinions on this question, I must be guided by the legal minds in this Chamber. L have listened carefully throughout the debate to the legal members who have spoken, and I have come to the conclusion that there can be little doubt that the clause, as drafted, is unconstitutional. Even the Attorney-General says that he was compelled to introduce the amendment because he realized that the clause was not in conformity with the Constitution, and would, therefore, be of no avail. Like many other honorable members on this side, who believe in preference to unionists. I have to be guided by the legal opinions that have been offered, but I hope that :.a the near future wider powers will be given to this Parliament under the Constitution. The honorable member for Indi was amply justified in making the remarks which the honorable member for Parramatta has quoted. He believed that the necessary reform should be brought about in a constitutional way. The Constitution provides a method of procedure for its own amendment, and the honorable member for Indi wanted to follow that method. The clause, as drafted, made the granting of preference depend entirely on whether the Judge granted a minimum wage. In that respect it did not meet with what I think ought to hu incorporated in a measure dealing with arbitration. The amendment leaves it optional with the Judge. That is what has been contended for, to a large extent, bv honorable members on the other side of the Chamber; but I hold quite a different opinion. In I 90 1, when the Industrial Arbitration Act was brought into force in New South Wales, it contained practically the same provision as the Attorney-General is making in this amendment, leaving it optional to the Judge to grant or refuse preference. We contended then, and always have contended, that, inasmuch as these industrial organizations are based on collective action by bargaining and so forth, the power that agitated for the Industrial Arbitration Act - those very collective bodies - ought to be recognised and given preference, so as to keep intact the first principle of arbitration. Those who have been banded together for years, and have done the fighting to improve the condition of the workers,’ should get the benefit under such measures as these, more especially when they give away, in the interests of the community, the only weapon which they have - the power to strike. They say, “ Give us this measure, and allow preference to unionists, and we shall be quite prepared to abandon the old method of strikes and locks-out between employers and employes.” Although we have been advocating that for years, we now find that because the Constitution does not give us sufficient power we are compelled to accept a provision which we objected to in J90T. I admit frankly that I am greatly disappointed. The proposal now before the Committee does not go far enough for me, but I realize that the AttorneyGeneral has done right. He could not escape from the legal position that confronts him. I thought the honorable member for Flinders made the position exceedingly clear from a constitutional point of view, and I, as a layman, would not think of disputing his conclusion. We cannot get away from it, and that is why I support the Attorney-General’s modified proposal, although I still believe that the whole question should depend on organizations being registered, and being industrial unions. What exception can be taken to industrial unions? Have they imposed any disabilities on employers, or in any way restricted them in the past? I think not. It has been frequently said during the debate that it is the political aspect of the question that is objected to. The honorable, member for Parramatta asked if the Newcastle miners had yet fallen into line. I told him that they had taken the necessary initial steps, and had decided to fall in with the Political Labour League. Whilst we have always stood aloof from politics, the very fact that the New South Wales Government has passed coercive legislation which has had the effect of putting men in gaol has compelled us to take the action that we have done. Tt is not the Labour side that is bringing in the political element. It is done by the other side refusing to give us justice. Ask men who have been dealing with industrial arbitration for years whether they think that preference to unionists does any injury. Let me remind honorable members that ra New South Wales there were no less than twenty-five industrial agreements registered under the late Arbitration Court. Those were mutually arrived at by both sides, and no less than twenty-three of them granted preference to unionists.’ The employees themselves, by those agreements, granted the principle, and Judge Cohen; in the Bread-carters’ award, and in other cases, granted it also. If a man occupying his position as President of the Court thought it necessary and desirable to grant preference, there cannot be any great objection to it. Take the attitude of theemployers themselves in the case of the Typographical Association. An agreement was entered into between that body and the daily papers, and the)-, although they condemned preference to unionists in their columns, granted it in that case. If thevery people who have been brought into close touch with industrial unions have granted preference in twenty-three agreements out of twenty-five, and if the Judge of the Court has granted it in other cases, what great injury is going to befall thiscountry by including the principle in thismeasure? lt will not work the injury that honorable members opposite predict. Dry they think that I, as a unionist, would go to an employer and say that a non-unionist whom he was employing must be dismissed ? That is the last thing of which any industrial unionist would be guilty. Whether he approved or disapproved of a non-unionist, he would have sufficient principle not to desire to oust any man from a billet. All that the unionists desire is that there shall bea recognition of industrial unionism as registered under the principal Act, so that inroads shall not be made on their organizations. Employers at times get rid of certain men who have taken a prominent part in industrial unionism, and unionists desire a provision such as this to guard against such occurrences. I rose to saythat, whilst I am prepared to accept the Attorney-General’s amendment, believing that, having regard to the opinions expressed by legal gentlemen in the House,, he is compelled to make such a proposal,. I am not satisfied wilh the extent to which it goes. 1 hope that we shall be ablevery shortly to obtain an extended power in a constitutional way, and that we shall then be able to mete cut even-handed justice to both employers and employes.
.- It would be unfair to detain the Committee by repeating replies already made to almost all the contentions just urged by the honorablemember for Hunter. In the first place, preference is alreadyon the statute-book. No one has sought to remove it.Consequently, mere arguments for preference as such areas muchout of date as a Queen Anne musket would be in modernwarfare.
– Under the Act it is optional, not compulsory.
– The honorable member stated the case for preference, which no one resists. The particular conditions under which it may be submitted are the only matters in dispute. Again, in New South Wales, certain Government action was taken as stated, but only long after a belligerent hostile course had been pursued by those opposed to the Administration, and by certain unions. But these questions are really beside the present issue. It is equally wide of the mark to suggest that the only interests to be considered against the granting of preference are those of employers. Those have their place, but the most vital interest to be considered is that of seekers for employment, who, being outside the unions, decline to take advantage of the opportunities afforded them of uniting with their fellows in unions for the achievement of their common trade purposes. As they refuse that extremely potent aid, as they have every right to do, they stand a helpless class, most in need of the protection of the law, and of their fel low-citizens. Their claim has not been met, or sought to be met.
– There is no objection to any one joining our unions.
– What has the AttorneyGeneral told us to-day on that very question? He declared that what made the unions was the fact that the men who joined them all shared a certain political and economic faith. Those who did not share that faith, he said, could not be members in fact, although they might be in form. The power of the unions was assured only when they consisted of men who shared a common political faith.
– Not political.
– A common economic faith. Economic faith forms a large part of the political creed of all politicians, and seams to form the whole of the poli tical faith of members opposite. The issues, as we put them, are: Preference? - yes! Unionism ? - yes! Encouragement to unionism besides preference ? - yes ! For what purpose ? For the prevention and settlement of industrial disputes. For organizations under the Act the one essential is that they shall be industrial bodies pure and simple. That does not exhaust the freedom of their constituents. From the president to the youngest member, each remains free to belong to any political organization that he prefers. They are free to take whatever action they think right for the protection of their own interests or those of the country, as members of any political league, seeking to alter political conditions. What we believe will be demonstrated is that for the successful settlement of industrial disputes or their prevention, we must deal with these industrial questions only on industrial grounds. To mix them with political questions is bad for politics and bad for the industrial system. Our citizens have their religious organizations, accomplishing an incomparable and indispensable work; but we know what follows from mixing religious questions with practical politics in a contested field.
– That is a very different thing.
– Not different in its effects. If we blend two great forces of human nature in this fashion in public affairs, the combination requires to be carefully studied, because sacrifices are probably made in both which may be grave, and even fatal. What can be urged against so reasonable and simple a proposal as ours ? We concede all that is asked in the way ofbonâ fide preference, provided that it be on fair lines, and be confined to industrial affairs. The honorable member for Hunter repeated the familiar fallacy that,
The unionists having given up their only weapon - the power to strike- what do you offer them instead?” Ignoring other -answers already given, I reply that they do not need anything over and above their votes. By those votes they are in possession of both Houses of Parliament, and enjoy absolute authority over both its legislation and administration.
– Subject to the Constitution.
– With the same majorities as they secured at the last general election they can amend the Constitution.
– We shall do so in time.
– If the Labour party can retain the majority they secured at the recent general election, then the Constitution will be no real obstacle in their path. What do they require more than absolute control over the Parliament, the law making, and the administration of this country ? Do men in power need to ask for additional weapons ? Who needs them ? Not a triumphant majority controlling all government, legislation, and administration ; but we on the Opposition side of the House. We are content, however, to rely upon the weapons that can be employed equally well by my honorable friends opposite, that are used daily in every department of municipal and national life. We rely on experience and argument, upon a general study of the lessons which the world’s affairs, and our own, have taught us, and upon reasonable mutual concessions in the public interest. That is all we have left with which to pierce the impenetrable phalanx, in an impregnable position before us. Let me now return once more to the embellishments by the AttorneyGeneral. They are not to be treated as mere ornamentation, although in practical effect, they are no more. What is proposed under sub-clause 2 is to give the power necessary for the prevention or settlement of an industrial dispute. Those are the terms of the Constitution; nothing more can or need be added to them. They, are in the sub-clause. But the Ministerial party are not satisfied with getting all that can be given under the Constitution. Having got that they introduce here “ the maintenance of industrial peace,” and “ the welfare of society.” There is no constitutional provision behind those phrases. What, if anything, is behind it? It is an invitation to the President of the Court, not only to set aside the ordinary rules of evidence, and to inform himself as he pleases ; not only to take advantage of this altogether unexampled liberty, which the principal Act confers upon him, but to do something more. You seek to push him into a field in which the whole of his legal knowledge can exercise but an inconsiderable influence upon his mind. He is left purely to his own individual lay judgment to determine what is best for the maintenance of industrial peace and the welfare of society. Honorable members will see that words so general, so indefinite as these, must derive their interpretation en tirely from the character and experience of the particular man on the Bench. Consequently, the very foundation of all future consistency - that the precedents established by one Judge shall be followed by and become binding upon others - cannot be secured. The precedents under this provision, so far as they are created, will not be true precedents. We shall pass from one set of decisions to another, whenever we have a new President of the Court. Long may the present occupant of the office remain. The decisions given under such provisions can only be individual judgments on individual questions. They will do little to build up that settled system of interpretation and action which is just as necessary when dealing with industrial as with legal disputes.
– We admit that.
– I think this involves a grave and unnecessary risk. There is only one other question. My honorable friends opposite are aware that the crux with which we are confronted is the dangers arising out of the too intimate association of political with industrial action and aims. Every member on the other side is a unionist. That is a title of honour, and I apply it in no other sense. They belong to organized trade unions, and bring into this Parliament just that mixture of industrialism with politics, and confusion of political with industrial objects that is certain to become prejudicial to both. In our politics in this country we must face industrial questions. There is no reason why we should shrink from the exercise of any legislative or judicial power that will enable us to diminish the many problems that modern life presents. But to do so by a half-and-half allegiance on one side to the union, with its industrial obligation, and on the other to the political party with its wider principles, is to run grave risks of failing to serve both as they ought to be served in the public interest. In addition, members of the Labour party bring into politics with their caucus an exercise of trade union authority that they have been accustomed to exercise. What is the result? Our Labour members have imported their union into Parliament. They keep apart from their fellow members of Parliament, refusing to discuss measures upon their merits. With the exception of the last speaker and one other, none of them has given us the advantage of his criticisms of the Ministerial proposals. We are unaware of the reasons which have induced them to support and to modify Government measures. None of them has assisted us in the interchange of views which is necessary for a proper understanding of their true purpose.
– The Fusion party did the same thing last session.
– We had no power, and no desire to bind our members. That was shown by the fact that half-a-dozen of our prominent supporters fought us determinedly in the House and in the country in regard to one of the principal measures brought forward. Had anything like such action been taken by any member of the Labour party he would have been instantly expelled from the party.
– The Fusion party acted in regard to the naval loan proposal and the financial agreement just as the honorable member says the Labour party have now acted.
– There is just sufficient tinge of truth in that statement to give it colour, and no more. The fact is quite other than the honorable member seeks to make it appear. Parliament is denied the benefit of the opinions of ‘the members of the Labour party regarding the Government programme. Many of them must hold views which we are entitled to know. Every one heard the opinions of our dissentients, and saw their votes. If a majority of the members of an ordinary trade union dealt with its affairs without reference to their comrades, that union would soon cease to exist, and Parliament, as we have known it, will cease to exist if this practice of the Labour party continues to be followed. On that side we have the Government and its supporters giving us no information of their real views of the proposals brought before the House, even if afterwards amended. On the other side, members have toconsider measures as best we can with the imperfect information supplied to us. If honorable members considered the consequences of these methods of political action they would realize that such a series of departures from precedent as we are now witnessing, some minor and some major, must steadily transform our industrial and social system. There are many reforms desirable ; but can we achieve them by ignoring criticism and co-operation, and the establishment of a better understanding? For thousands of years society has achieved its successes by constant differen tiations, the application of particular powers to particular purposes, and by a judicious distribution of its strength. That has obviously happened in the economic sphere. How to maintain this freedom of development, how to promote originality and invention in every branch of industry, and also in the perfection of our political powers, constitutes one of the greatest problems of federalism. No one can forecast the result of our new practice of grafting one system upon another, producing a cross breed.
– -Good will come of it.
– We hope that “all things work together for good” ; but often bitter experience drives us back to paths from which we have taken a wrong turning, which we should not have left had we realized where they would lead us. The methods of the Government add another stone to the cairn of industrial and political freedom, crushing both.
.- I do not desire to block discussion, and, therefore, I shall only give notice now of an amendment which I intend to move later. With the concurrence of the AttorneyGeneral, I shall propose the insertion, after the word “persons” in paragraph a of the amendment, of the words “ not being sons or daughters of the employers.” This will affect thousands of agriculturists, and I am glad that the AttorneyGeneral will give me the opportunity to move the amendment.
.- There are always those who are afraid to trust the people, and the, speeches of the Leader of the Opposition and the honorable member for Parramatta were as conservative as any that could fall from the most crusted Tory.
– If the honorable member is ready to trust the people, why does he try to control their politics?
– We are not trying to do so, but we wish to prevent any obstacle being placed in the way of their political development. Reforms have been won only by great effort, sacrifice, and suffering. We know what a fight took place to secure adult suffrage. It was thought that it would give the community the power of self-government ; but the honorable members to whom I refer wish to hinder the citizens from governing themselves. Their attitude to the trade unions is truly a Tory attitude. They may do certain things, but nothing which is not prescribed. They say to the trade unions, “ You, like children, cannot be trusted to manage your own affairs. We are willing that you should J do certain things, but you must not do other things.” The Act of 1904 restrains the political acts of unions. The honorable member for Parramatta, who objects to the advance of unionism, forgets that in the old days trade unions meddled in politics. Did not the miners seek for legislation for the protection of their industries? And was not that action considered legitimate? Who is the honorable member, and who are we. that these restrictions should be proposed in a Democracy? Honorable members opposite wish to say to the trade unions, “ Thus far shalt thou go and no further.” The honorable member for Parramatta thinks that they are going astray. Why did he not remain a trade unionist, and prevent that? i should be glad if he would join the union of which i am a member, and show it what it should not do. We are looking for members who will put us on the right track. We know that there are those who say that they believe in trade unionism so long as there are no strikes, but in the past it has been impossible to obtain concessions from employers without being able to threaten them with strikes. The trade unions have the right to say what action they will take to improve their position, which means, to improve the. position of the people at large. Politics is summed up in the terms economic and industrial conditions. If honorable members concede the point that the unions can do what is necessary to improve their economic and industrial conditions, they concede everything. The Opposition wishes to restrict their freedom in this matter, and to interfere with their privileges. The Labour movement has been gaining strength in spite of the Act of 1904. You cannot prevent a free people possessing adult suffrage from developing politically. That must be realized. There are unions which have been in existence for fifty years. Altogether 110 unions were affiliated with the Trades Hall in Melbourne, and there are unions all over Australia, but the honorable member for Parramatta could mention only one which charged a restrictive entrance fee, and on the other hand, he spoke of unions whose doors were open to all. I could instance several unions, such as the Australian Miners’ Association, which not only raise no trouble about men joining, but if a man, when he starts work, is un able to pay the entrance fee, will advance it to him, so as to make him free of the benefits in case of accidents and so forth. What sense, therefore, is there in seeking to influence people by quoting only one odd case? Further, nothing has been so frequent at conferences than for employers to suggest that the unions should place more restriction on their membership, so as to secure that only competent men shall join 5 but, of course, it has been pointed out to the employers that such a step is impossible under the law, and that, under the circumstances, they have the remedy in their own hands, for they can always dismiss a man who is not able to do his allotted work.
– We are now hearing the great champion of the employers !
– i am stating facts, which are worth tons of the fiction given us by the honorable member for Parramatta. The Act itself provides that there shall be no restrictions on joining a union; and surely that ought to be enough for honorable members opposite. As to the. insinuation that the desire is merely to get men into unions for political purposes, what sort of opinion of their fellow-creatures have honorable members who are opposing this Bill ? Do they think that, when a man joins a union, he completely changes his political opinions, and, like a savage, merely follows his chief? When a man joins a union he is not asked his political opinions, but, being a sensible person, he usually votes Labour. The secret of the opposition to this Bill has been let . out by the honorable member for Parramatta and the honorable member for Ballarat, who declare that it is purely for political reasons, they being afraid that these unions may become stronger, and thus add to the number of parliamentary Labour representatives. As a matter of fact, however, many trade unions stand outside the Labour movement, while others assist because they regard it as the way to secure better conditions by peaceful and constitutional methods. Whether the original section be retained or not will make no difference to the Labour movement.
Mr. mcwilliams (Franklin) [3.5].- i object to preference of any kind; and it seems strange to find the Labour party putting forth such a proposal in Australia, where we have started free of the privileges of the Old World, and opened the way for all to attain success by their own individual effort - where every man is free from every disability of class, creed, or position. Honorable members opposite admit that they are practically all unionists and nominees of unionists, and yet they seek, by legislative enactment, to give themselves preference over the rest of the community. It is well for us sometimes to think what such concessions and privileges mean. From the earliest ages, the whole progress of civilization has been one long fight against privilege. Throughout our history there has ever been a privileged class in every country of the Old World; but, as I say, we in Australia had freed ourselves-
– I wish we had.
– We are free of any privileged class, but the honorable member who interjects is joining with his party in an effort to create a class, the one object of which is to obtain a privileged position for themselves. I have no intention to detain the Committee at any great length, because I understand that some arrangement has been arrived at to close the discussion this afternoon in time for the Inter-State trains. I think that such an arrangement is a great mistake, because, when we are discussing important measures such as this, we should not be hampered, but should have sufficient time for ample consideration. However, if an arrangement has been made between the two parties, I shall do nothing on my part to break it. It is sought to bring under this measure the whole of the agricultural labourers of Australia, but I am convinced that such a law must either prove unworkable, or inflict exceedingly great hardship. I listened with great interest to the speech of the honorable member for South Sydney, because I know that, from his position, he is intimately acquainted with the subject ; but I was sorry to hear him speak of agricultural labourers as he did - men working in rags till they fell off the wearers. I have represented agricultural constituencies during the whole of my political life in the State and Federal Parliaments, and have seen much of the rural districts of Australia. I do not know Sydney very well ; but I may tell the honorable member for South Sydney that he may see more rags and wretchedness in one day in his own electorate than he could find in any agricultural district in the Commonwealth in twelve months.
– I do not go out looking for rags !
– Unfortunately, the rags do not need looking for - they may be observed in the length of a tram ride.
– Does that not apply to all the capitals of the world ?
– That being so, it does not quite lie in the mouth of a man who represents such a constituency to unfairly hold another class up to ridicule. I believe that the agricultural labourers of Australia, taking them as a whole-
– Are the most sweated people in the country.
– I believe that, taken as a whole, the agricultural labourers are better off than are the unskilled labourers of the cities. A much larger percentage of agricultural labourers, by their industry, make homes of their own, and become employers, than of any other class in the community. Let the honorable member for South Sydney compare the number of such men in the country districts with the number who have been able to achieve similar successes in Alexandria, Botany, Surry Hills,’ and other places in his own electorate. To return to the subject of preference, I repeat that, from the earliest dawn of civilization, there has ever been an attempt by those in power to secure privileges for themselves, and we have been successful in Australia in breaking that attempt down. Yet trade unionists, and the nominees of trade unionists, endeavour by legislative enactment to give themselves preference over any other class of the community. But they are going to fail. They have a majority now, and, as the matter was all settled upstairs long before the Bill appeared in this House, preference will doubtless be granted from one end of Australia to the other. But do those honorable members really think that they will succeed in their attempt to shackle and confine the individuality of the people of Australia? They cannot do so; at all periods of history the men who have made attempts ofthe kind have always failed. When these benches are full, I ask you, Mr. Chairman’, to look down both sides, and see whether there is here the ability, strength of character; and justice of cause, to enable these men to do what the Cromwells and the Claverhouses of all countries have failed to do.
-The honorable member is getting away from the subject.
– Not so; I am talking of an attempt to create a privileged class, and pointing to the lessons which history teaches. In some cases tyrants have succeeded in winning privileges for themselves, but history records their failure. And the Australian Labour party, composed as they are of nominees of trade unions, will meet with failure, just as failure has always followed such efforts. Instead of this being a humanitarian movement, any Parliament or any union that will say to another man, “ You must join this union or starve; if you do not join, even against your will, you will be hounded from district to district, and will get no employment to enable you to keep yourself and wife and family,” is doing something which is absolutely brutal, and no sooner will that brutality be put into operation than it will react upon those who have created it. It will not take the people very long to discover what an absolute fraud this so-called humanitarian proposal is. They will soon see that this coercive legislation has been pushed through by men who have lost their own freedom and shackled their own consciences by signing a pledge and going into a caucus which binds them to carry out in public what is decided -upon in private, whether they agree to it or not. Those are the men who are trying to place shackles on the workers of Australia, and to drive them into the unions against their will. The people will soon realize the cant and hypocrisy of those who are promulgating such a measure, and the pendulum will swing back as soon as this clause is put into operation.
– The clause as proposed to be amended is undoubtedly an improvement on its original form, because it will, to a large extent, be constitutional, whereas it is almost certain in the light of the decision of the High Court in the Trolley and Draymen’s Union case, reported in the second Commonwealth Law Reports, that the original clause would be ultra vires as an attempt by the Legislature to coerce the judgment of the Arbitration Court. In that judgment, the High Court said that no Court could possibly give directions to, or interfere with, the discretion of the High Court, and similarly it was pointed out that the Court was a tribunal, and not a Board of Trade or any other body capable of exercising legislative functions. It was not a minor legislative body, in short, and therefore could not take directions from the Legislature. Undoubtedly, to a large extent, the present proposal will be constitutional, because it is doubtful whether the Court would not have the power to give preference if the demand were made, even if we never put it in the Bill or the Act. The power would probably be regarded as ancillary to the settlement of the dispute. Unfortunately, the AttorneyGeneral, in his anxiety to pretend to make this compulsory, whereas, in reality, it has to be made discretionary for constitutional purposes, has left in the word “ shall “ at the end of the sub-clause. At the beginning he has vested a discretion in the Court by using the words “ In the discretion of the Court.” The clause is now discretionary with the pretence of being compulsory. You cannot give a mandate to a Judge to do a thing which in the earlier portion of the clause is left absolutely to his discretion, or in accordance with his opinion. The constitutionality of the subclause probably stops at the word “ dispute,” in the second line of it. The words up to “ dispute “ are in terms of the constitutional power given by section 51 of the Constitution. What comes after is not in terms of the constitutional power, but is to some extent in accordance with powers which we are taking in this Bill in the definition clause, and which may not be within the power given by the Constitution. Honorable members will notice that in the definition clause an industrial matter is to include a question affecting the interests of society at large. Under this sub-clause preference may be granted when such a question is raised - in other words, when the dispute arising out of an industrial matter is a dispute affecting the general interests of society rather than something connected with the particular trade itself. We may possibly read all the words after the word “ dispute” in the sub-clause as being a power to give preference under the widening of the definition to which I have just referred. That is intended to bring in cases where it is not a dispute in the ordinary sense, as the Act stands at present, but a dispute alleging that something would be advantageous, taking into consideration the general welfare of society. I do not think the Court will hold that such a question is the true question within the meaning of the Constitution, and if it does not, then those words are clearly unconstitutional or superfluous. At the same time, I do not believe they are likely to imperil the validity of the whole clause, because the Court will hold that they are clearly severed from the rest, and will knock them out. Last night we somewhat hurriedly passed a clause in which we used practically similar ‘words. We gave the Court power in sub-clause 2 of clause 7, to include in its award any matter or thing which it thinks necessary or expedient, but which must be for the purpose of settling or preventing a dispute. The same words are brought in here, but they are not qualified by stating that it must be for the purpose of settling an industrial dispute. The Attorney-General mentioned that he had to knock out a good deal of section 40 of the Act of 1904, because it practically prevented preference to unionists being granted, one ground being that you could not have admission to an organization decided by a majority vote. I do not think that is so. The question has never been decided for the purposes of this Act. All that the Act says is, in section 61, that the rules must contain reasonable provision for the admission of members. You may make any conditions you like that are reasonable. You may declare that you must have a certain qualification of standing in the trade, that the applicant must be of certain character, and so on. So long as the Court considers those to be reasonable provisions, they can, under the Act, be made. You may say that if an applicant for admission does not comply with those declared conditions he must be admitted on the vote of the majority only. You thus preserve the power to decide ultimately on the vote of the majority, in case the reasonably - necessary conditions which are specifically declared are not complied with. Then it is mentioned that you are blocked because if your rules deal with political matters, and allow the application of the funds of the organization to political purposes, preference cannot be granted. But that only applies when it -is done by the “ rules or other binding decisions “ of the organization. “ Binding decision “ means something in the nature of a rule, and, as a matter of common law, it was decided about eighteen months ago in the Osborne case in England that trade unions cannot by rule provide for the application of their funds Tor such purposes.
– That is under the common law.
– But that is applicable here as the law of the Commonwealth.
– Not so far as it is superseded by statute law.
– But it has not been superseded by statute law. In the States’ sphere, at any rate, in their original organizations and as trade unions those bodies cannot put these things into their rules. As a matter of fact, they will have to leave it to a sort of understanding.
– We have nothing to do in this Act with trade unions.
– Trade unions cannot do these things, and equally, of course, organizations cannot do them, because both trade unions and organizations are prevented, the one by the words of the statute here, and the other by the common law. The Attorney-General contends that he is omitting that provision in the Act because it would block the application of the principle of preference. I say that it would not, because as a matter of fact these conditions would not be embodied in a rule of an organization. . The common law would prevent that. Under the principal Act industrial organizations cannot apply their funds to political purposes. Now that the clause has been apparently brought within the bounds of constitutionality, it seems a pity that the safeguards necessary in the interests of other than members of those organizations are not to be preserved.
Amendment of the amendment (by Mr. Sinclair) agreed to -
That in paragraph (a), after the word “ persons,” the words “ not being sons or daughters of employers “ be inserted.
.- I wish to test the question of whether unrestricted preference should be granted to unions, rather than the form of preference for which provision is made in the principal Act. I therefore move -
That the following words be added to the amendment as amended : - “Provided always that before any preference to members of organizations is directed as aforesaid the President shall, by notification published in the Gazette and in such other publications, if any, as the Court directs, specifying the industry and the industrial matter in relation to which it is proposed to direct such preference, 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.
And provided further that no such preference shall be directed to be given unless the application for such preference is, in the opinion of the Court, approved by a majority of those affected by the award who have interests in common with the applicants.
In any case in which the Court directs that preference shall be given it may subsequently suspend or qualify the direction for such time or subject to such conditions as it thinks fit if, in the opinion of the Court, the rules of the organization are burdensome or oppressive or do not provide reasonable conditions for admission to or continuance in membership, or that the organization has acted unfairly or unjustly to any of its members in the matter of preference.”
.- I cannot accept the amendment. There is no necessity for it. If a common rule be granted, paragraph f of section 38 of the principal Act will provide for everything that the honorable member desires. If a common rule be not granted, the award will apply only to the parties before the Court.
Question - That the words proposed to be added (Mr. Kelly’s amendment of Mr. Hughes’ amendment) be so added - put.
The Committee divided.
Majority … … 9
Question so resolved in the negative.
Amendment of the amendment negatived.
Amendment (Mr. Hughes’), as amended, agreed to.
Clause 1, as amended, agreed to.
Clause 9 agreed to.
Clause 10 -
Section fifty-five of the Principal Act is amended -
by omitting from sub-section (1) all words from and including the words “ Provided that no such organization “ ; and
by omitting from sub-section (2) the words “ until otherwise prescribed, be as set out in Schedule B,” and inserting in their stead the words “ be as prescribed.”
.- I ask that paragraph a of this clause may be put separately, because I wish to call for a division upon it.
Question - That paragrapha stand part of the clause- put. The Committee divided.
Majority … …. 6
Question so resolved in the affirmative.
Amendment (by Mr. Hughes) agreed to-
That the following words be left out : - “ (b) by omitting from sub-section (2) the words “ until otherwise prescribed, be as set out in schedule B,” and inserting in their stead the words “ be as prescribed.”
Clause, as amended, agreed to.
Clause 11 -
Schedule B to the principal Act is repealed.
.-I move -
That the following words be added : -“and the following Schedule shall be substituted therefor : - “ Schedule B.
Conditions to be complied with by Associa tions applying for Registration as Organizations.
The affairs of the association shall be regulated by rules specifying the purposes for which it is formed, and providing for the following matters in relation to the association : -
A committee of management and officers;
The powers and duties of the committee and of officers ;
The removal of members ofcommittee and of officers ;
The control of the committee by the members, either as a whole, or in district meetings, or by a general governing body,or otherwise ;
The mode in which industrial agreements and other documents may be executed by or on behalf of the association ;
The power of bringing industrial disputes before the Court ;
The times when and terms on which persons shall become or cease to be members ;
The mode, in which the property is to be controlled and the funds invested ;
The yearly or other more frequent audit of the accounts;
The conditions under which funds may be disbursed for ordinary and extraordinary purposes ;
The keeping of a register of the members ;
The registered office; and
The repeal and alteration of, and addition to, the rules.
The rules of an association may also provide for any other matter not contrary to law.
No two associations shall be registered as organizations under the same name.
An application, in the prescribed form, for registration of an association as an organization must be made to the Industrial Registrar, or to the Deputy Industrial Registrar in charge of the Registry in the State where the office of the association is situated, and shall be signed by two or more officers of the association.
Every application for registration shall be in duplicate and shall be accompanied by -
Two copies of a list of the members and officers of the association, so far as known to those signing the application;
Two copies of the rules of the association ; and
Two copies of a resolution passed in accordance with the rules by a majority of the members present at a general meeting of the association, in favour of registration of the association as an organization ; or
Two copies of a resolution passed by an absolute majority of the committee of management, in favour of registration of the association as an organization.”
What I am proposing to insert here are the rules taken bodily out of the regulations, so that they will now become a part of the Act, instead of a part of the regulations. I promised that I would do that. I have, in the proposed schedule, added only the words “ Conditions to be complied with by all associations applying for registration as organizations.”
– Is the new schedule proposed exactly the same as schedule B of the present Act?
– No; schedule B of the present Act is not now inforce. I am proposing to take the rules which were substituted for schedule B, and make them part of the Act.
– It is a most unusual course to submit a schedule like this, and ask the Committee to accept it before it has been circulated to honorable members for their information.
– I am indifferent as to whether the Committee will do what I now propose or not. I was asked by several honorable members to do this, and I said I would.
– I am not saying that the honorable gentleman should not do it, but that this schedule should not be included in the Bill before we have an opportunity to consider it.
– The honorable member for Angas assured the Committee, and I thought he had satisfied his own colleagues, that what I am proposing is the right thing to do. These rules are taken from regulations for which the honorable gentleman was officially responsible.
– Is the. honorable member for Angas satisfied ?
– I am.
– The honorable gentleman knows everything. That settles it.
Amendment agreed to.
Clause, as amended, agreed to.
– I move -
That the following new clause be inserted : - 6a. Section 27 of the Principal Act is amended by omitting therefrom the words, “ or by leave of the President.”
Section 27 of the principal Act relates to the conditions under which the parties may be represented before the Court by counsel. If we strike cut the words, “or by leave of the President,” the part of the clause affected will read - but no party shall (except by consent of all the parties) be represented by counsel or solicitor.
.- I do not think it is quite fair of the AttorneyGeneral to bring this matter on at present. I think he should give some notice of it. It will be conceded that we have done our best to keep our part of the compact to finish the measure this afternoon, but the proposed new clause is one of great importance. Honorable members concerned about the welfare of organizations are not concerned as to whether the men who represent them in the Court of Conciliation and Arbitration belong to this or that trade or profession, but as to whether they are to draw fees for appearing before the Court. It will be possible, under the proposed new clause, for a man who is not a lawyer to appear before the Court on behalf of a union and claim large fees for representing it. That would be just as oppressive to the union as if a lawyer did it. I wish to wipe out the system by which men are permitted to live upon organizations in this way.
– The unions cannot have a man in the Court to represent them without paying him something.
– If they are going to pay their representative in the Court, they might just as well employ a qualified workman. That is the whole thing in a nutshell. I think the Attorney-General will realize that the new clause is one which we should have some time toconsider, and, in the circumstances, I ask him to agree to postpone its consideration now, and, if necessary, move to recommit the Bill for the purpose of considering it on Tuesday next.
– It cannot be held that the new clause is one of principle.
.- I hope the Attorney-General will concede what the honorable member for Wentworth has asked. The proposed new clause involves a very important question, which should be debated at some length. If we are to do what the Attorney-General apparently desires, and that is simplify the procedure of the Court, we should not allow any representative of the parties appearing before the Court to be paid for his services.
– He could only appear by the consent of all parties.
– My point is that no one should be able to earn money by appearing for parties in the Conciliation and Arbitration Court.
– Why not?
– We have no wish to exclude the secretaries of unions, but we wish it to be clearly definedthatnoone shall be allowed to make a charge for appearing on behalf of the parties in this Court. I have had a good deal of experience, and I am satisfied that the only way in which it is possible to shorten law proceedings is to make it not worth the while of the persons appearing before the Court to prolong them. The Attorney-General might overcome the difficulty now by including in the proposed new clause a provision that no one appearing on behalf of the parties before the Court shall be paid.
– We cannot legislate to regulate wages.
– I think the question involved is one of principle. We should either exclude all persons making a charge for appearing in the Court or none. Why should we exclude trained advocates, and put in their place men who would very soon become trained”, but who in the meantime would not understand the law, and would get everything boxed up, causing delay and entailing ten times the expense? If the Attorney-General desires to secure simplicity, and the easy and economical working of the Act, the best course to adopt is to allow no payment for services rendered in the Court. Then we should have the Court made pretty well what it ought to be, namely, a sort of glorified Wages Board. I think that that is what we all want to see brought about. I believe that if the Attorney-General would add that proposal to his amendment it would go through at once.
Mr. HUGHES (West Sydney- Attor glad to do that, only this is not a Bill in which it can be done. We are very careful about not going outside the Constitution.
.-Iwas glad to hear the AttorneyGeneral say that he had no objection to the suggestion being carried out. At the same time I wish to mate it clear how far I go with the sentiment. I believe that if lawyers are to be excluded from the Court, all specially-paid laymen should likewise be excluded. I do not mean that the paid secretary to a union should be debarred from appearing in the High Court, because he is the man who above all others I should think would be useful to his union in the Court. If, however, it is intended to exclude lawyers, we must exclude “ Comrade Sutch, five guineas,” as well as “ lawyers, twenty guineas.” Will the Attorney-General frame a provision to exclude the specially-feed lay lawyers as well as the legal lawyers? Perhaps if I move the insertion of the words “ or other specially-paid person” after the word “solicitor” in the section, it will meet the case. I do not want to shut any official on either side out of the Court.
– What does the honorable member mean by the words “ specially paid “ ?
– What I mean is that the official should not be paid anything in addition to his ordinary remuneration. If my suggestion is adopted it will make things equal and fair. Otherwise we shall be setting up a body of lay specialists who will be able to exact fees, stringing out cases, and who will become just as expert in the verbiage of Acts as are lawyers at present.
– What the honorable member means is that a person who is not an official shall not be allowed to appear except by consent of both parties.
– I do not mind that.
– We might adopt the words “ or other person who is not an official.”
– Will it satisfy the honorable member if we insert after the word “solicitor” the words “or paid agent.”
– Yes, I think that that will meet the case. I move -
That the proposed new clause be amended by adding the words “and by inserting after the words ‘ counsel or solicitor ‘ the words ‘or paid agent.’ “
– I think it will make a farce of our legislation if we put in the amendment of the Attorney-General. At the present time trained men are allowed to appear before the Court, but we are asked to say that no lawyers shall be allowed to appear. If that provision is made, what will happen? We shall have a band of specialists, who will lay themselves out to do this class of business, and become a close corporation, exactly as patent agents have become. I remember the time when patent agents were outsiders, but by degrees they got legislation passed in their favour, and they now have a monopoly of the patent business. We are now asked to say that no lawyer and no person who is a paid agent shall be permitted to take part in proceedings before the Arbitration Court. If that provision is made what will happen? At the end of a year a present will be made to the secretary of a union, or the secretary of an association, or to his wife or children. Does any one expect me to believe that any person will agree to spend day after day in the Court for nothing? Honorable members may exclude certain persons if they like, but do not let them think that they will not be paid, because they will certainly be paid by some means or other.
– I hope that the Attorney-General will not accept the amendment of the honorable member for Parramatta, because, in my opinion, it would inflict a good deal of hardship in some cases. Under his own proposal lawyers will have the right to appear if both sides are willing, and probably in very many cases they will be willing. But if we adopt the amendment of the honorable member for Parramatta to exclude paid agents, some unions may find that the other side are not willing to have lawyers, and therefore they will be unable to conduct their cases for the simple reason that their officers do not possess the necessary ability. On the other side, however, we may find an employer who, though not a lawyer, has had legal training, and he will be able to conduct the case against the union.
-Would a man of that sort conduct a case better than would a lawyer?
-Yes, I have some men in my mind’s eye. For instance, I know gentlemen in New South Wales who have had a legal training - who do not practice their profession- but represent certain companies. If any union gets into Court with such a company, one of these gentlemen will conduct the case for their side, while a small union which, perhaps, does not have a competent secretary, will not be able to properly conduct its case, with the result that it will suffer. I do not think there is much need for making an amendment of this kind, because, as the honorable member for Balaclava pointed out, parties would get round it by appointing some one to conduct their case, and afterwards giving him a bonus for services rendered. I think that in the interests of the dignity of the Court, and the chance of getting the case put fairly on either side, it will be just as well for the Attorney-General to leave the amendment as it is printed. I think it will be a mistake on his part if he consents to the proposal of the honorable member for Parramatta.
– I was really surprised to hear the honorable member for Hunter use the argument which he did just now. He is not averse apparently to the regularized lawyer appearing in a case, but he wants a way left open for a man who is not in the lawyers’ union to appear. What he really wants to do is to encourage legal nonunionism. I am surprised at his conduct. He actually wants to provide that a man who is not in the lawyers’ union shall appear before this Court. He does not object to ruling out the union man so long as he is permitted to get the non-union man in. Even if the amendment does result, as he says, in an honorarium being paid at the end of the year, it will have one good effect. I believe it will lead to the hearing of these cases being shortened. We shall obtain rough, substantial justice infinitely quicker, if we have the officials of the union appearing before the Court rather than paid agents, who are not trained lawyers. I am unable to agree with the honorable member’s reasoning. We shall facilitate our object if, as far as possible, we can have the ordinary officials of the unions on both sides arguing the questions before the Court.
.- The proposal to exclude lawyers from the Court is mere fudge. It will be impossible to do without them. If we prohibit their appearance in the Court, we shall still have them behind the agents, and shall give employment to a new class of lawyers. We shall have trained agents, and get back to the very thing that we wish to avoid. We shall have appearing before the Court men who will desire to protract litigation, and the Court will have less hold upon them than it has upon the ordinary legal gentlemen. It would have been a good thing for Australia if the conduct of proceedings in our Land Courts had been restricted to lawyers instead of paid agents being allowed to appear, as is proposed in this amendment. I should prefer to allow the Act to remain as. it is, and to rely on professional agents, seeing that the Court has a better hold upon them than it would have upon an outside man. The proposed amendment will only give rise to a new order of men who will be interested in protracting litigation, and we shall have less guarantee of their not attempting to protract it than we should have if ordinary members of the legal profession were allowed to appear before the Court.
.- I wish to advance one or two reasons against the arguments raised in opposition to the contention of the honorable member for Parramatta. The honorable member for Balaclava and the honorable member for North Sydney have both pointed out that if the amendment now suggested is carried it will bring into existence a new type of advocate.
– The unions will look after that.
– I do not think that they will. I have seen already a new class of advocates appearing in Arbitration Courts. Have honorable members forgotten the bill of costs which Comrade Sutch sent to Comrade Fisher?
– Why such allusions now ?
– Because they are pertinent. In that bill of costs Comrade Sutch charged, I think, five guineas per day for appearing before the Court in connexion with a certain dispute. Unions have availed themselves, it would seem, of a second-rate lawyer at second-rate fees to do work which ought .to be performed by their own people for no payment whatever. I recognise the difficulty pointed out by the honorable member for Balaclava with regard to the possibility of special payments being made by some circuitous methods. In making this change we ought to be thorough. We ought to make absolutely sure that very heavy penalties shall be imposed in respect of any one offering or accepting payment by circuitous methods for such mercenary services as we wish to exclude from the Arbitration Court.
– On the strength of he arrangement that we made with the Opposition, I have made an appointment for a certain hour.
– Honorable members cannot accuse me of trying to break that arrangement.
– The honorable member is departing from the spirit of it.
– No; in order to facilitate business, I moved two amendments without discussion. When the arrangement to which reference has been made was entered into, we had the Bill before us. but we did not anticipate that a lot of new clauses would be proposed.
– The only new clause I proposed before this was that for which the honorable member asked.
– And that new clause was not covered by the compact.
– There was no objection to it. If this is the stage at which new clauses may be proposed, I should like to move one providing for the auditing of union funds by a qualified accountant.
– There is nothing to pre vent the honorable member proposing the. addition of such a clause.
– Except that I do not wish to prevent honorable members catching their trains. In connexion with this provision, we shall have to devise some special means of safeguarding the unions against extortion.
– Can the honorable member make a suggestion?
– Does the honorable member expect me, on the spur of the moment, to propose an amendment to meet any contingency which men of nimble intellects like the Attorney-General might devise in order to draw costs from the unions? We cannot deal with such a matter at a moment’s notice. It is too farreaching and important. If, in spite of this amendment, men with legal experience and no practice still continue to take these cases and to deplete the treasuries of the unions, the unionists will begin to regard themselves as having been tricked and defrauded by this pretence at legislation in their interest.
– But they will have Comrade Fisher behind them.
– Comrade Fisher was appealed to by Comrade Sutch, and not by the other comrades, who had to pay his costs. I am concerned not for Comrade Sutch, but for the brethren from whom he got his fees. I wish to stop the pay ment of second-class fees to third-class lawyers. The honorable member for Hunter said that he knew many men connected with unions who had legal experience, but were not practising. A man who is trained and has qualified to practise a profession generally exercises his abilities by doing so. Do I understand that the gentlemen referred to have qualified to appear before the New South Wales Courts, or that they are merely persons who have read a little law, but have not qualified to practise?
– What about the colliery proprietors ?
– My honorable friends opposite are always thinking of the employers. The honorable member for Darling urged us to vote for the Bill because the employers crave for it. I am considering the genuine and bond fide interests of the members of the organizations which we are compelling men to join. Are they to be forced to pay fees to second-rate unqualified lawyers? The Attorney-General would save time if he allowed us to discuss this provision next Tuesday.
– This amendment was foreshadowed by me during the secondreading debate. When the honorable member for Wentworth spoke, I -said that i would, if he liked, insert the regulations iri the body of the law. I have listened to a volume of objections from both sides of the chamber against the employment of lawyers, but when I agree to prohibit the employment of lawyers in the Court, I am asked, “What about the paid agent?” When I agree to eliminate the paid agent, too, the cry is raised, “ What about the poor unionist?” I am prepared, if hon=orable members think it necessary, to enact that no lawyer and no paid agent shall be allowed within 440 yards of the Court when a case is being tried.
– I think that the matters coming before this Court are so important that it is unwise to provide that the parties shall not employ lawyers to represent their cases. At the same time, I am conscious of the force of the objection that legal considerations are often overburdened with professional technicalities. I suggest to the AttorneyGeneral that the President himself may desire assistance from legally trained men, and that, therefore, we should not shut the door against them entirely.
– Under the present law, both parties may, by agreement, employ lawyers.
– But the President may desire legal assistance in a case in which one or other party is unwilling to employ a lawyer. The questions upon which he has to adjudicate are very intricate, and it might well happen that he would like to hear argument from counsel regarding points of law. I suggest that, instead of providing for the appearance of lawyers by leave of the President, we should provide that they may appear at the request of the President.
– So long as we have a Constitution, questions of law will arise in connexion with arbitration cases, and when that happens both parties must seek the assistance of lawyers. The provision which I have moved gives either party the power to say that a lawyer shall not appear in a case, and more than that ought not to be asked for.
Amendment agreed to.
Proposed new clause, as amended, agreed to.
– Will that prevent a lawyer who has joined a union, and become its secretary, from appearing on its behalf ?
– If he is a paid agent.
Title agreed to.
Bill reported with amendments.
Bill received from the Senate, and (on motion by Mr. Hughes) read a first time.
Bill returned from the Senate without amendment.
– I move -
That the House do now adjourn.
The first business on Tuesday will be the second reading of the Australian Notes Bill, and, after that, a Supply Bill.
.- Has the Minister of Home Affairs any communication to make to the House in regard to the inquiries as to the celebrated Mrs. Barrington ?
– This is the reply of Mrs. Barrington to a letter addressed to her in regard to the matter to which the honorable member refers -
Scone, Aug. 1,1910.
Re your communication on29th July. I stated on the platform that I heard it said the swagman of having voted fourteen or fifteen times and one twenty times, but that I would be sorry to vouch for the truth of it. If I were out back now I might be able to assist you in investigating the matter, but I should think those who acted as scrutineers would be able to help.
I have the honour to be, Sir,
Your obedient servant,
Organizer, Liberal and Reform Association.
Question resolved in the affirmative.
House adjourned at 4.28 p.m.
Cite as: Australia, House of Representatives, Debates, 5 August 1910, viewed 22 October 2017, <http://historichansard.net/hofreps/1910/19100805_reps_4_55/>.