4th Parliament · 2nd Session
Mr. Speaker took the chair at 3 p.m. and read prayers.
– I wish to know, Mr. . Speaker, if your attention has been drawn to certain statements in last night’s Herald regarding the cost of refreshments served to honorable members ? Is the information correct, and, if so, is it a fair average state* ment, and was it given with your consent?
– My attention hat been drawn to the newspaper article referred to. The matter is one coming, not under my control,. but under the control of the President, as Chairman of the House Committee. On my mentioning the subject to him he was good enough to instruct the secretary of the Committee to supply me with a statement, from which I learn that the total expenditure during the month of November last year on wines, beers, spirits, &c, was £6j 5s. 6d., and the daily expenditure for twenty-seven days, £i 9s. rod. The expenditure per head, distributing it among those who, according to the newspaper article, have access to the refreshment rooms, namely, 112 members of Parliament, to Hansard officials, it> officers, and 20 journalists, would be 3$d., or, distributing it amongst members solely, Sid. It should be pointed out, however, that in addition to those named in the article as consuming liquor, there is the large number of visitors who frequent the House, and from time to time are entertained by honorable members. I- am certain that the actual expenditure by honorable members on alcoholic liquors in the month specified1, did not exceed, on the average, *iA. per man per day, and if the average were taken for a period of a year, it would not be more than a small fraction of a penny. The newspaper article would make it appear to the average reader that the refreshmentsconsumed on the premises are not paid, for by honorable members, but members and others pay for all that they get.
– Have you any objection, sir, to having a report’ prepared, and laid on the table, showing the accounts for the past twelve months, and any other information likely to be serviceable in enabling honorable members to Arrive at a proper conclusion regarding the use of the refreshment rooms ?
– I shall be pleased to procure any information desired by the (House.
– Will you be good enough to say, Mr, Speaker, on whose authority the information published in the newspaper was given ? Who was permitted to reveal the details of what goes on inside Parliament House?
– A pressman brought under my notice an article on the House of Commons appearing in one of the London newspapers, and asked me if similar information could be obtained to enable a like article to be written about this Parliament. I referred him to the President, who said that there was no objection to his being supplied with the necessary information.
– Do the figures which you read, sir, include the cost of liquors used at dinners and such entertainments?
– I understand so.
– Is there any truth in a rumour which has been current for some time that the Government contemplates appointing Commercial Agents for South Africa, South America, Japan, and the East generally? If so, when will the appointments be made?
– The Government does not recognise the utility of appointing Commercial Agents at a salary. They have never been proved worth what they got. The matter is one for the States.
– Has the Prime Minister read the report of the High Commissioner, Sir George Reid, in which he recommends the appointment of Commercial Agents in England as well as on the Continent, and, if so, has that recommendation been taken into consideration.
– I have not yet seen the report.
– Then I shall address my question to the Minister of External Affairs.
– I have not yet had an opportunity to read the report, and consequently the matter has not yet been taken into consideration.
– In view of the report submitted by a Royal Commission to the New South Wales Government as to the iron and steel supplied from the Lithgow works, will the Minister of Trade and Customs have inquiry made immediately to ascertain if the conditions of the Manufacturers Encouragement Act have been strictly complied with bv Messrs. Hoskins Limited?
– I have seen only the newspaper report, but I shall look into the matter as soon as I have time to do so. I am favorable to the request of the honorable member.
– In view of a paragraph in yesterday’s Age intimating that it is intended to appoint a Royal Commission of three to inquire into the Lithgow Iron Works, and stating that one of the gentlemen proposed to be appointed declines to act. I ask the Minister whether a Royal Commision is to be appointed, and, if so, what is its personnel to be?
– When the New South Wales Government brought an expert from Scotland, it was advised that he would be in a better position to obtain information if he were made an “authorized person” under the Bounties Act, and he and a Mr. Smith, of Sydney, were made authorized persons. He was not a Royal Commissioner. The two persons referred to are the only persons who have been appointed by this Government in this connexion, and the only persons likely to be appointed in the near future.
– Has the attention of the Prime Minister been directed to a speech addressed by Senator E. J. Russell to the Amalgamated Carpenters and Joiners Union, in which he stated that the price of bread is going up, but that if we had had the power to do so we would regulate prices ? He went on to say that if they had had the power they would have done so long ago, and that that was why they wanted the referenda proposals passed. I desire to ask the Prime Minister whether one of the objects of the referenda was to obtain, on behalf of the Commonwealth, power to regulate prices, and whether, if the Government decide to re-submit the referenda proposals, they will ask for power to enable them to regulate prices ?
– The honorable member apparently has quoted from a brief report of a statement made by Senator E. J. Russell, but I am quite sure that that summarized report does not convey his full meaning. The Government sought, by their referenda proposals last April, such power as would enable the public of Australia to protect themselves against monopolies and combines as well as other necessary powers for the good government and welfare of the people of Australia.
– I desire now to ask the Prime Minister whether the Government propose to seek power to regulate prices ?
– As referenda proposals, after being accepted by the people, cannot legally have any effect until a Bill to exercise any of the powers so conferred upon the Parliament is introduced and passed, it will be time enough to answer the honorable member’s question when such a Bill is submitted.
– I wish to ask the Minister of Trade and Customs whether any steps have been taken to secure a quarantine station in Tasmania?
– My recollection is that we secured a site to which the people residing in a certain part of Hobart objected ; but if the honorable member will give notice of his question I shall be glad to furnish him with an answer as regards the present position.
– I desire -to ask the Attorney-General whether he is aware that the strike of wharf labourers in Sydney is preventing a vast quantity of perishable products from being marketed, and that it is calculated to cause enormous loss to producers of dairy produce, market gardeners, and others. F urther, whether the strike is in defiance of a duly-signed agreement between the wharf labourers and the shipowners, and, if it is. whether he will immediately institute proceedings against the officials of the Wharf Labourers Union?
– I am aware that there is a strike in Sydney, that it is causing loss to the producers of dairy produce, market gardeners, and others, and that it is in direct contravention of an agreement entered into by the Federation on behalf of the Sydney branch. I cannot, how ever, institute proceedings, either immediately or proximately, since, until the strike has become an Inter-State dispute, we have no jurisdiction.
– -If the Attorney-General decides to institute proceedings against these officials, commencing with the president of the union, will he appear for the Commonwealth of Australia against the president, or for the president against the Attorney-General of the Commonwealth?
– As the question comes within the realms not of politics, but of metaphysics, I must decline to answer it.
– Will the AttorneyGeneral state whether the Federal Government has no jurisdiction to secure, the carrying out of an agreement which has been filed under the Commonwealth Conciliation and Arbitration Act?
– The agreement is not filed under that Act.
– I should like to ask the Attorney-General if it is not a fact that the wharf labourers in Sydney are r&fusing to handle Inter-State cargo–
– Order ! I would point out that, if the honorable member knows that it is a fact, he has no right te* ask a question with regard to it.
– I asked, “ Was it a fact?”
– No; the honorable member said, “Is it not a fact?” thereby implying that it was.
– Then I will put my question in another form by asking, “ Is it a fact? “-
– I point out to the honorable member that he has already admitted that he knows that such and such a thing is a fact, and that, therefore, he must not ask questions in regard to it.
– I wish to ask the AttorneyGeneral if the cargo which the wharf labourers are refusing to handle is InterState cargo, and whether, if it is InterState cargo, their refusal is not a breach of an agreement which comes within the scope of the Commonwealth power?
– It is a fact that they are refusing to handle, amongst other cargo, Inter-Stats cargo ; but, to constitute an InterState dispute, something more is required than the refusal of persons to handle InterState cargo.
– Has the AttorneyGeneral seen the statement made by the State Ministry that they are not able to intervene with a view to the settlement of the trouble in Sydney ? In view of the fact that he has now told the House that he cannot intervene, would he mind stating why neither Government can do anything, and how the matter stands exactly ?
– The facts are as I have already stated in reply to the honorable member for Richmond. An industrial dispute now exists between persons employed in handling cargo in ships in New South Wales ; and, until the same dispute extends to some other State, the Federal Arbitration Court is not clothed with sufficient authority to exercise its compulsory jurisdiction. It has exercised its power under section i6a, which was introduced into the Act last session, by calling the parties together ; but it has no power to compel them to settle the dispute. Yesterday, under its powers - which are doubtful - it called persons from other States in order to prevent an industrial dispute. That action was also taken under section i6a. The dispute is purely a State one ; and, so far as any statutory power over the dispute is concerned, New ‘ South Wales alone has it.
-Is the Attorney-General in a position to inform the House of the name of the President of the Wharf Labourers Union?
– Do not abuse the privilege of questions.
– 1 do not think I ought to be asked to supply information which comes to me other than through official sources. Officially, I know nothing about the President’s name. I am not ignoring the dispute; but I do not see how it concerns the House to know the President’s name. I have already stated that there is a dispute, which is in direct breach of an agreement entered into. What more can I say?
– If an agreement is filed at any time, has the Federal Government power to intervene in the case of that agreement being violated?
– The Commonwealth cannot under its statutory limitations take power to intervene except in an “ industrial dispute.” To the extent that a breach of an industrial agreement involves the creation of an “ industrial dispute,” it has jurisdiction ; otherwise, not.
Returning Officers and Poll Clerks - Redistribution of Seats
– I desire to ask the Minister of Home Affairs whether he is aware that in previous elections returning officers and poll clerks related to each other have been appointed to the one polling booth? Does he consider that that is a desirable condition of affairs, and, if not, will he frame a regulation prohibiting it, and providing for such measures as will prevent its continuance.
– I confess that I was not aware of the existence of any such relationship, but we shall endeavour, if possible, to see that relatives are not appointed to act in respect of the same polling booths.
– I wish to ask the Minister of Home Affairs whether it is correct, as reported in the newspapers, that the Divisional Electoral Officer - the SurveyorGeneral - and the Registrar-General of Western Australia have been appointed as Commissioners to redistribute that State into Federal electorates, and, if so, what time is likely to elapse before they make their recommendation.
– The Commissioners have been selected, and their formal appointment now awaits Executive action, lt has been found necessary, in order to meet the convenience of the State Government, to substitute the State Chief Electoral Officer for the Registrar-General. Mr. Oldham submitted the names, and they have been approved of.
– Are the figures that were published in the newspapers this morning the official figures with regard to the final count of the census? If so, will the Minister of Home Affairs inform the House and the country whether Queensland is now entitled to a tenth member in the House of Representatives?
– The figures are absolutely official, and Queensland is entitled to a tenth member.
– Have the statistical officers yet submitted to the Chief Electoral Officer the necessary data to enable him to give a certificate with respect to the representation of the States under the Representation Act? If that has not been done, can the Minister of Home Affairs inform the
House when the certificate is likely to be given, so that the provisions of the Act may be complied with?
– I would ask my honorable friend to give notice of the question.
– - The certificate is here.
– I ordered it to be sent up to-day.
– Can the Minister state whether the Electoral Office is inquiring what redistribution of electorates within States will be required in view of the movements of population within States during the last three years?
– The Commissioners who will be appointed to subdivide the States will attend to all that.
– Then the Minister is going to appoint Commissioners?
Unsound Telegraph Poles
– In view of the fact that a lineman recently met his death in Hurstville, a portion of my constituency, through the falling of a rotten telegraph pole, will the Postmaster-General have the remaining poles in the neighbourhood tested?
– I am having a report prepared as to the condition of the poles in the various States. When that report is to hand, I shall give it consideration.
– Have the comments of the Coroner on the death by misadventure of a lineman in the Postal Department, through the fall of a rotten telegraph pole in the neighbourhood of Melbourne, been brought to the attention of the PostmasterGeneral? If so, has he followed up the statement of the Coroner as to the impossibility of sheeting home responsibility within the Department for the state of affairs which led to that man’s death? If he has not done so, will he take steps immediately to do it, and report to the House on the matter ?
– I did notice a press report of the alleged remarks of the Coroner in connexion with the Melbourne case, and I have asked for a specific report concerning the case. That has been delayed up to the present, on account of the depositions of the Coroner’s Court not yet being available. As soon as they are available, that question will be specifically considered.
– I am reported in the Sydney papers as having spoken on Friday on the Conciliation and- Arbitration Bill, and as saying that its whole object was to bring about a general strike. As a matter of fact, 1 did not speak on Friday, and I think the words in question were used by the honorable member for North Sydney (Mr. Ryrie).
asked the Prime Minister, upon notice: -
– The answers to the honorable member’s questions are : - £4,959,048 This sum is arrived at in the following manner, viz. : -
The amount of £316,548 is portion of an amount of £619,000 which has been invested from the general Trust Funds in the following ?way, viz. : -
As funds were not available in the Notes Fund when the investments were made, the amount was invested temporarily out of the General Trust Funds. As funds accumulate in the Australian Notes Account, transfers are made to the Notes Account. ^
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the Minister of Home Affairs, upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the Minister of Trade and Customs, upon notice -
Having regard to the present composition of the Royal Commission on the Sugar Industry, and to the importance of preventing public opinion from regarding it as a partisan body; having regard, also, to the following facts : - r. That all the separate branches - the growers, the workers, and the consumers - except the refining branch are directly represented upon it by declared nominees;
That the refining branch involves a larger investment of capital than any other single trading company in Australia;
That the Royal Commission has since re fused to allow the refining interest to be represented by counsel - Will be now consider how he can otherwise insure for that branch of the industry some means of vindicating its extensive rights and interests before the Commission in the forthcoming inquiry?
– As the Government has entire confidence in the integrity and impartiality of the Commission - which estimation it is believed is indorsed by the public generally - and as each branch of the Sugar industry may rely upon the fullest opportunity being afforded of vindicating its rights and interests, and of receiving just and equitable treatment, no further action in Ihe direction indicated is considered necessary.
– If ever there was a partial tribunal this is one.
– I must ask the honorable member to withdraw that remark.
– I withdraw it.
– I further point out to the House that something more is required than a mere withdrawal of statements of the kind just made by the honorable member. Such statements are reported in the press, and are published throughout the length and breadth of the Commonwealth. They are likely to occasion misunderstanding, as having been made in this House. If honorable members will persist in making such disorderly observations, I shall, one of these days, probably take a course which I consider to be necessary to vindicate the dignity of the House.
asked the Minister of Trade and. Customs, upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the Minister representing the Minister of Defence, upon notice -
Will he inform the House to what extent the completed ships of the Naval Unit have been and are being delayed in their equipment for regular service by reason of the difficulties of obtaining and retaining their prescribed complement of men and non-commissioned officers?
– The only ships of the Naval Unit yet completed are the destroyers Parramatta and Yarra. These vessels are equipped for regular service, and have been performing such service for some considerable time.
asked the Minister of Home Affairs, upon notice -
– It is understood that the honorable member refers to the contract for supply of machinery by Messrs. Pratt and Whitney, about which my honorable colleague, the Minister of Defence, is giving information in reply to another question.
asked the Minister representing the Minister of Defence, upon notice -
In connexion with the supply of machinery for the Small Arms Factory at Lithgow -
Within what time did Messrs. Pratt and Whitney contract to supply the said machinery at Lithgow?
How much overdue is the said firm in the supply of the said machinery at Lithgow?
What penalties did the contract impose upon the contractor for the non-fulfilment of his contract within the stipulated time?
What penalties have been incurred by the contractor by reason of his not having yet carried out his contract?
Has he or the Government asked for or suggested the payment of the said penalties?
If so, with what result?
Has his Department, or any other Commonwealth Department, invalidated its claim to penalties by varying the contract in any way?
Has he consulted the Attorney-General’s Department as to the power of the Government to obtain from the contractors the amount of the penalties set out in the contract?
If so, on what grounds was it necessary to. consult the Attorney-General, and what was the Attorney-General’s advice ?
Does he think he still has any right at law to recover the said penalties?
If so, will he take immediate steps to. recover the sums due to the Commonwealth?
– The answers to the honorable member’s questions are -
Representation - Leases
asked the Prime Minister, upon notice -
What, in view of the acquisition of the Northern Territory by the Federal Government, is the position of South Australia in the matter of representation -
– The answers to the honorable member’s questions are -
asked the Minister of External Affairs, upon notice -
– The answers to the honorable member’s questions are -
Annual Leases. - r6 leases granted, 10 extant, 6 lessees. Area, 442,240 acres.
Miscellaneous Leases. - 33 leases granted, 2 extant, 2 lessees. Area, 10 acres.
Agreements for Cultivation of Cotton. - 4 leases granted, 4 extant, 4 lessees. Area; 20,000 acres.
Right of Purchase Leases. - 4 leases granted, 4 extant, 4 lessees. Area, 667 acres.
Agricultural Leases. - 55 leases, 23 extant, 12 lessees. Area, 5,490 acres.
asked the Treasurer, upon notice -
– The answers to the honorable members questions are as follow : -
asked the PostmasterGeneral, upon notice -
In view of the fact that the wireless station now being constructed at Pennant Hills, Sydney, is nearing completion, will he give instructions that the station be not accepted or paid for as completed until all tests are carried out as required by the conditions of contract as published when tenders were called, and all other conditions as specified are complied with, including the requirement that the system accepted shall be “non-interfering at will.”
– The wireless station at Pennant Hills will not be accepted or paid for until the conditions of the contract are complied with.
Mi. KELLY asked the PostmasterGeneral, upon notice -
In connexion with the contract for the erection of wireless telegraph stations at Pennant Hills and Fremantle -
Does the contract provide for installations capable of transmitting messages radially over 1,250 sea miles under all conditions?
Does he propose to insist on these stations proving themselves capable of so transmitting messages under all conditions or only under normal conditions?
If the latter, does he think it fair to the unsuccessful tenderers to make a concession to the successful tenderer which the other tenderers could not have foreseen when making their tenders on the basis of having to supply the stipulated service under all conditions?
– The answers to the honorable member’s questions are -
asked the Minister of External Affairs, upon notice -
Whether it is the intention of the Government to submit, this session, any resolution or measure for the purpose of obtaining the authority of Parliament to acquire a site for the High Commissioner’s offices in London?
MINISTERS laid upon the table the following papers: -
Representation Act - Determination of the Representation of the States in the House of Representatives. Papua - Ordinances of 1911 -
No. 17. - Animals Prohibition and Restriction.
No. 23. - Supply (No. 1) 1911-12. Representation Act - Certificate of the Chief Electoral Officer as to the numbers of the people of the Commonwealth and of the several States.
In Committee (Consideration of GovernorGeneral’s message) :
Motion (by Mr. Fisher) agreed to -
That it is expedient that an appropriation of revenue and moneys be made for the purposes of a Bill for an Act to provide for a Commonwealth Bank.
Resolution reported and adopted.
That Mr. Fisher and Mr. Hughes do prepare and bring in a Bill to carry out the foregoing resolution.
In Committee (Consideration resumed from 27th October, vide page 1975) :
Clause 3 -
Section four of the Principal Act is amended by omitting therefrom the definition of “ Industry,” and inserting in its stead the following definition : - “ ‘ Industry ‘ includes -
any business, trade, manufacture, undertaking, or calling of employers, on land or water;
any calling, service, employment, handicraft, or industrial occupation or avocation of employes, on land or - water; and
a branch of an industry and a group of industries.”
[3-421- - I feel sure that the Leader of the Opposition, and the Opposition generally, will not take exception if I suggest that as this measure is getting rather urgent, honorable members should confine themselves as strictly as possible to its main points.
.- There has been, and will be, every effort on this side to bring the debate to a conclusion; but it must be confessed that the manner in which the proposals are framed, and the wholesale character that has been imparted to them, whether essential or not, are such as impose a very severe responsibility upon honorable members on this side, in order that they may dissociate themselves from their legal and policy results. Otherwise. I can assure the Prime Minister that there will not be, with our concurrence, a moment of unnecessary delay with regard to this very important measure. I had the misfortune, owing to a visit of the GovernorGeneral to Ballarat, to be absent on Friday last when the discussion on this clause proceeded, but, so far as can be gathered from the newspaper, there was certainly no prolongation of the discussion on this side.
– In view of the way in which the Act has been rolled over by the High Court, we ought to take a little time over the Bill, and to do the work well.
– It is sufficient for us to dissociate ourselves. We have not the numbers to enable us to enforce our views in connexion with this, or, in fact, any other measure ; but it is encumbent upon us, in so serious a matter, to make it clear that not only do we criticise the principles of the Bill, but call attention to quite a number of very serious doubts as to the legitimacy of these proposals as they are now framed.
– I. did not quite gather from the Prime Minister whether the urgency to which he referred is made all the more extreme in view of the industrial difficulty which is taking place with regard to Inter-State cargoes in Sydney - whether an amendment of the Act is necessary in that connexion.
– Certainly it would help.
– Why, since the AttorneyGeneral says that this industrial difficulty has nothing to do with the Commonwealth ?
– It has.
– Do I understand that a former member of the Arbitration Court in Sydney, who is naturally an authority, says that this measure if passed will have some bearing on that dispute?
– I will say so.
– Then I fail utterly to gather the purport of the AttorneyGeneral’s replies to-day. I can assure the honorable member for East Sydney, who is laughing at the honorable member for South Sydney, that this is a matter with which the latter is qualified to deal, as he has sat on the Arbitration Court in New South Wales.
– I ask the honorable member to deal with the clause before the Committee.
– The matter with which I am dealing, sir, is a special appeal by the Prime Minister to the Committee as a whole.
– The question of whether the honorable member for South Sydney has been in or out of an Arbitration Court has nothing to do with the clause.
– I gathered, sir, that you were going to make a remark of that character, and I would point out that my only reason for saying what I did in regard to the honorable member for South Sydney was that, in my opinion, a very severe attack had been made upon him in the laugh of the honorable member for East Sydney. However. I shall pass that over. Nothing that the Prime Minister has said alters for one moment, it seems to me, our responsibility to carefully examine this measure. I have not been speaking upon it up to the present time, so that it cannot be charged against me that I have been endeavouring to obstruct its passage ; but I do say, in the most unqualified way, that the Opposition will neglect its duty if, because the Prime Minister has made a general statement of that character, which might lead us to believe that it had some application to the solution of the trouble in Sydney, it does not examine the measure with proper care. Unless that insinuation, was intended by the right honorable member, I fail to see why he should have risen, to speak as he did. As far as I can see,, the position- as regards urgency for the Bill is exactly the same to-day as it was on Friday. I think it was very unfair, indeed, very disingenuous, on the part of the right honorable member to make the statement which he did, especially in view of the disclaimer of the Attorney-General as to the applicability of the measure to the industrial dispute proceeding in Sydney. I assume that the honorable and learned member, being president of the union in trouble in Sydney, probably knows a good deal about the matter. It may be possible, of course, that he, as president, is slightly biased in the direction of believing that as Attorney-General he had no responsibility for quelling the actions of the union.
– He is not the president of the Sydney branch, but of the Federated branches.
– Apparently, in this case, the whole does not comprise a part ! I think that I shall not again accept my honorable friend as a person with a judicial mind, or qualifications, if he can hedge on a statement in the way which he has just attempted. I do not propose to further discuss the question at the present moment. I deeply regret the Prime Minister should have endeavoured to mislead the Opposition into believing that this measure had some applicability to the disturbance in the industry over which the Attorney-General presides.
– Nothing that the Prime Minister has said is inconsistent with the facts in any way.
– If what the Prime Minister said is not inconsistent with the facts, certainly what the Attorney-General said at question time must be inconsistent with them. However, I do not wish to canvass the question. I have pointed out the inconsistency between what the Prime Minister has said and the statement of the AttorneyGeneral. Honorable members on this side will earnestly criticise the measure without wasting time.
– So far as I am able to follow the argument of the Attorney-General he considers that it is possible for him to transform the present Act while remaining within -the scope permitted by the Constitution. If that be so, I should like to be informed in what way he can enlarge the jurisdiction so as to justify the procedure proposed in regard to craft industries. The Attorney-General will admit that the governing words in the Constitution are “conciliation” and “arbitration,” and he will recollect that arbitration has been defined by the High Court. He agrees that the principal Act can be put into operation only by judicial proceedings, yet to begin with he brushes aside the hitherto accepted definition of “industry.”
– I do not admit that it is the accepted definition - I say to the contrary.
– The honorable gentleman has said that there is some doubt as to its meaning, and he can quote judicial authority for that.
– I say there was no doubt until the High Court found it.
– He has said there is doubt whether that definition in the Act goes to the full extent which is authorized by the Constitution - that was the honorable gentleman’s point.
– It was not my point.
– Well, it is a point.
– Yes, it is a point.
– Does the honorable gentleman contend that we can ignore the definition of “ industry “ ?
– No; I say that the keynote is “ industrial dispute “ extending beyond the boundaries of a State; we can only have control over such, no matter what we do.
– Does the honorable member say that an industrial dispute can exist in which no “ industry “ is concerned, using the word in the stricter application ?
– T say that an industrial dispute can take place in connexion with the relationship between employer and employe as such - that must be an industrial matter.
– But does the honorable member say that it will be possible, under the proposal made for craft organization, for employers to be effectively and properly represented at the Court, and that there is machinery to that end?
– I should think so.
– Will every dispute, brought by any craft, necessitate a separate subdivision, so to speak, of employers associated ?
– Not to a greater extent than a rigid insistence on organization on the basis of “ industries “ does to the workmen.
– But the honorable member admits that “industries-“ at present contain many crafts?
– I have not admitted anything of the sort, but, as a matter of fact, it is so.
– The honorable gentleman admits the fact, but denies that he admitted the fact.
– The honorable member is saying that I said a lot of things. I admit I am here, but I never said I am here.
– The honorable member is here for all practical purposes, though whether that is his or our misfortune is a delicate question not needing argument. The point is that we have “ organizations “ established under the guidance of judicial decisions on their basis as “ industries,” by which employers and employed have been enabled to settle their disputes. Now many of the decisions cover large industries which might hereafter be subdivided into quite a number of crafts. Does the honorable member contend that, within the limits of the Constitution, it will be possible to maintain that scheme of organization under judicial decisions, and yet introduce under neath, above, or side by side with it a different form of organization in which the employers and employed are differently grouped, and in which, in many cases, it may be very difficult, if not impossible, to arraign the different employers associated with the crafts?
– I admit nothing but that it is proposed to avail ourselves of the organizations which are existing, and which have existed from the beginning of trade unionism.
– And any other organizations which may be formed on the same lines ?
– That does not follow.
– Does the honorable member mean that even after the passage of this Bill there may be no new crafts ?
– I do not say anything of the sort - within the limitation of this definition, any organization, of course.
– Either in existence or to come into existence?
– Does the honorable member contend that it will be possible to permit an industrial award applying to the whole of an industry, including employers and employes, to be undermined in parts by subsidiary disputes originating in particular crafts included in the industry, which launch themselves against particular employers ?
– No, I do not admit that, for the reason that an industry will comprise the whole of the employers in it, excepting those who belong to crafts.
– Order ! This conversation is very irregular.
– Although it is slightly irregular, I think, sir, you will admit that there is no better way of saving time by coming to the point than by questions of this character in relation to a measure which, when read, either by itself or in connexion with the principal Act, creates far more problems than it attempts to settle. I have been trying, in a cursory way, to discover the operation of this Bill when superimposed on the existing Act.
– If the honorable member will state a concrete case, I shall try to answer it afterwards.
– If I may no longer have the ready means of access to the waters of wisdom which was in my possession until the Chairman interposed, I must point out rather more dogmatically, that, in my opinion, this new craft organization is inconsistent, first of all in principle, with the industrial scheme, and .next in practical operation, as tending, so to speak, to a network of disputes crossing each other, some concerning industries as a whole, and others concerning particular crafts in an industry in relation to particular sets of employers. That, if it be found to be constitutional, must increase the complexity of the industrial situation enormously.. -Then, again, the attempt to deal with crafts apart will, in some cases, prevent the operation of the arbitration principle. We shall have given the go-by to our existing industrial methods, and, in addition, be faced with new bodies, the fruit of many subdivisions, yet having, on the other side, employers in very different combinations. These employers are brought into connexion with a particular craft, perhaps, by the employment of only a very few amongst the many hands engaged in their industry, most of those employes having already been dealt with in relation to the industry, and all of them capable of being so dealt with. The legitimate mode of doing what the honorable member desires would have been to amend the Act only so far as was necessary to allow existing industrial awards to be altered or added to in relation to particular persons in any vocation or craft not already provided for. Thus the rights of a craft could be fully recognised without departing from the industrial framework of the Act, or its methods of dealing with industries.
By the way, I do not know if the word “avocation “ is to be replaced by “vocation.”
– I have looked into the matter.
– I suggested the amendment, not for sentimental reasons, but to secure precision. There can be no doubt as to the meaning of “vocation.” “Avocation” has been used in many senses, originally as a negative of vocation, but assimilated later by usage. Nothing can make it, for this purpose, as good a word as “ vocation,” the meaning of which is indisputable. My protest was in the interests of plain and clear English. The honorable member for Werriwa, if not the Attorney-General himself, said that the word “ industry “ has two meanings to be taken into account.
– I did not say that.
– The proposal which the honorable member fathers implies at least two meanings. The hitherto accepted meaning must be enlarged by the addition of a subordinate or associate meaning. As a matter of clearness, therefore, the secondary meaning should be distinctly stated, but it would be better if some other word than “industry” were selected.
– Does the honorable member say that the word “ industry “ is not properly used in sub-clause b of clause 3?
– There is something to be said as regards brevity for the wording of that provision, but it contains elements which cannot be brought under the word “ industry,” either legally or colloquially. I take it that the honorable member does not think it necessary to define “ calling,” “service,” “employment,” “handicraft,” “ occupation,” or “ vocation.”
– It is not usual to define the terms of a definition. If it were, we should have to proceed ad infinitum.
– Where does “industrial subdivision” stop? Using the words “industrial occupation,” the honorable member might have dispensed with all the others. These, raise a whole series of technical problems. Is not every “occupation “ an industrial occupation?
– Professional services would be excluded. It is a word of limitation.
– Has it any other limitation ? None. Here, then, we have an open door. It is impossible to determine what may go through it. The honorable member admits that the Bill is intended to cover what he terms “unorganized” employes. How are they to be dealt with?
– They cannot file a plaint and originate proceedings, but they can be made subject to the jurisdiction of the Court.
– By a process of the Court.
– But against whom? They would have no officers - no representatives.
– They must be dealt with individually. What is contemplated is an association of persons which has neglected to register.
– Separate persons whom the honorable member proposes to bring within the scope of the law nolens volens.
– Any person who deliberately defies the law should be dealt with.
– They cannot be parties to an action except severally.
– They cannot originate an action, but they may be made parties to one.
– How can it be ascertained whether a man does, or does not, belong to an “ unorganized “ body, if there is such a creation.
– Any person concerned in an industrial dispute can be made a party to the legal proceedings connected with it.
– I understand the honorable member’s position, but what he says shows how extra judicial, if not unjudicial, these proposals are, although relating to a. measure whose judicial character is essential - which has no authority that is not judicial. In attempting to deal with “ unorganized “ employes, you are going far beyond the ordinary acceptation of any termsnow in use. If time permitted, it would be possible to multiply points of objection, because the measure can be criticised from every direction. As amended, our Arbitration Court is open to the charge that itsprinciple is not judicial, its procedure isnot judicial, and its methods are not judicial. Yet all the procedure proposed comes under that most important section of the Constitution which, beyond all ques-tion, limits its jurisdiction to industrial operations, treated, handled, and controlled” judicially. You try to deal with individuals in some artificial “ association “ while still “unorganized.” As I stated’ during the second- reading debate, every one of the proposed amendments affords another means of access of a particular character - an open door, and no one can say how far beyond it one may or may not go. Clause 3. absolutely bristles with suggestions of difficulties and novel definitions, presenting an awe-inspiring prospect, except to members qf the legal profession. Beyond that, there is the constitutional question, which has been sufficiently elaborated.
– - The point taken by the honorable member was replied to by me on the last sitting day, when he was unfornately detained elsewhere. There is nothing novel in the principle of a dual, alternate method of organization, becausethe legislation of the States, and the practice of industrial bodies, have all along followed the lines which I propose to follow. The shipping industry to-day naturally embraces all those who work for it; but there are distinct crafts in connexion with it, and any “attempt on the part of the Court to give at the same time an award covering masters and officers, engineers, sailors, cooks and stewards, and wharf labourers would be futile. It would be beyond the power of any human being, at one and the same time, to deal with occupations so widely divergent. The circumstances of a master or officer of a ship in some respects are similar to those of an engineer, a sailor, or a steward, on a ship. They are all employed on a ship on the sea : but the circumstances of the industrial callings or vocation of these men are quite different, and, therefore, it has followed that, in attempting to deal with this one industry, the Court has had to make awards dealing with different crafts. I am able to speak with knowledge in this matter since I have appeared for the masters and officers, for the engineers and for the wharf labourers, two cases being heard by the one Judge, and one in the local Court. In each case the award was made without reference to the circumstances of the other persons engaged in the industry. If you say that all these persons are to join on the basis of one industry and not by way of crafts, -what are you going to do? Are you going to make water-tight compartments, so to speak, inside the industry? If you are, you will not gain anything at all, because it will lead to a multiplicity of organizations. The organization will have to come before the Court just as if it were on a craft basis. The only argument put forward by my honorable friend, in support of that course is that, by following it an award would be given to cover the industry, the employers and the employe’s having something in common. As a matter of fact, they must have something in common; otherwise this Statute would not apply. I want here to trace the whole matter very briefly from its genesis. An “ industrial dispute “ is the basis of our power ; and whatever else an industrial dispute is, it must be something in regard to an industrial matter between persons who stand in the relationship of employer and employed. So far we are right. That being the case we have to consider, from a constitutional stand-point, not what “ industry “ means, but rather what “ industrial dispute “ means. It does not matter whether “ industry” has a narrower or a wider meaning than “industrial dispute;” in neither case can we extend our power. “Industrial dispute” is the bedrock; and to that key we set our composition. If we go beyond that, it does not matter how we attempt to deceive ourselves, we are no “forrader.” An “industrial dispute” - that is to say, a dispute about an industrial matter between an employer and employ^ —can obviously be created, whether the employe is grouped with his fellowemployes upon the basis of an industry, or the basis of a craft. We have seen quite lately - indeed, we may see every day - disputes threatening, or taking place upon the basis of a craft. The recent agricultural implement-makers’ dispute related to an industry. All the crafts were bound together; blacksmiths, engineers, turners and finishers were all in one. There the industry was co-terminous, as it were, with the persons employed therein. But if the Amalgamated Engineers had a dispute a hundred industries would be immediately involved, since, in this age of machine-production, the industry which does not depend upon steam, is very rarely found, and is not very important. A dispute amongst them goes to the very root of the whole industrial system in our midst. One clearly sees, therefore, that an industrial dispute may arise in a matter which does not come within the definition of “ industry “ as it now stands in the Act. An industrial dispute between Jones and his employer does not concern the community, because Jones can go away, and Smith can come in his place. But when there are 5,000 or 6,000 Joneses, or other persons, involved, the community is affected. In this connexion we have to remember that the statute we are amending is not one to benefit an employer or employe, except as a means to preserving industrial peace. It is an Act to promote the public welfare. A dispute can arise between an organization or union of craftsmen and employers, and we must provide for that basis of organization. It is useless to say to the Amalgamated Engineers, “ You go and organize on some other basis - on a basis different from that which you have followed for the last fifty or eighty years.” They would not do so. There are the honorable traditions of their organization to consider; and neither they nor the engine-drivers, nor the trolleydrivers and draymen would consent to organize on another basis. We have, therefore, to take advantage of the existing organization. To what extent is an employer inconvenienced or treated unjustly? If he has a dispute with his employes, what does it matter to him whether it is settled upon a craft basis or on the basis of his industry ? If there are many different crafts included in his industry, then there must be as many inquiries as there are crafts, and he is not called before the Court any more than he would be if the matter were on an industrial basis. I speak now from experience, and I take as an illustration the shipping industry, with which I am fairly familiar. The same men who are holding up their end to-day in the Court against the seamen have to meet the wharf labourers, the engineers, and the masters and officers. They settle the dispute so far as one class is concerned, and then they have to face another. That cannot be avoided. The employer has to deal separately with each different kind of craftsmen, otherwise there cannot be a proper inquiry by the Court as to what is a fit and proper award for the employes’ services. What we are trying to do, therefore, is simply to take advantage of existing organizations in order to facilitate the business of the Court, and to right a wrong that now exists. There is at present no remedy for 20,000 men in this country who desire to seek a peaceful method of redressing their grievances. I would refer the Leader of the Opposition, by the way, to a number of cases reported in the New South Wales industrial records, the awards in which do not comprise the whole of the persons employed in the industries.
– I know that.
– There is the case of the Electrical Trade Union versus the Railway Commissioners, as well as others. I wish only to say that we intend, under this Bill, to enable organizations to do under the Commonwealth Act what they have always been able to do under the State Act, and what it was thought they had a right to do under our legislation. I come now to the question as to the use of the word “ avocation,” or “ vocation.” I do not pose as a philologist, and I want to be quite sure that the use of the word “ avocation “ does what we desire. “ Vocation “ is defined in Webster’s New International Dictionary as -
A calling; a summons; a call; specif. : a convocation. … A calling to a particular state, business, or profession.
On the other hand, “ avocation “ is defined as -
A calling away; a diversion; . . . state of being called away ; diversion of attention ; that which calls one away from one’s regular employment . . . customary employment; vocation; usual pursuits. . . .
It is synonymous in one of its senses with “vocation.” I think the word “avocation “ is particularly suited to the purpose we have in view. “Vocation,” as distinguished from “ avocation,” means that a man has, so to speak, a call from Heaven. We speak of a clergyman having a vocation - he has a call for the church - but “avocation” is a calling away from the spiritual and higher to the baser things of life, and it is because of that that “ avocation” is particularly applicable to mundane pursuits. I prefer it; and as it is synonymous, in no case is there any harm done. I hope that this clause will be accepted by the Committee without a protracted discussion.
.- My rejoinder to the Attorney-General must be put very briefly. Referring to certain highly-organized industries in which there are important subdivisions of employment, the honorable and learned member says very naturally that the same employers are brought before the Court to answer each of the applications of those whom they employ. That is true. I desire him, however, to realize that his argument cuts both ways. lt is just as much in favour of our proposal to maintain the present industrial procedure as it is in favour of the new craft procedure. Then again, it seems to me that while the AttorneyGeneral’s argument is applicable to particular industries, such as shearing, shipping, andsome others, it is not appropriate to a number in which we must deal directly with the industry as a whole, if justice is to be done, in regard to operations nominally the same, the occupation really differing in its methods, its responsibility, and its skill, and perhaps conducted in different portions of this great country. It is sufficient for my argument to remind the AttorneyGeneral that, granting him all that he has contended, he has not shown that the same ends as he desires cannot be attained by the existing industrial means, and within existing conditions, as to any industry,, within the words of the Constitution “industrial dispute.” I venture to suggest,, therefore, that, although by this addition he may be facilitating, and even in some cases cheapening, the process of obtaining partial or local awards, yet those additions will probably require, in many cases, to be dearly paid for. Even if the procedure be constitutional, and does not imply such a disorganization of the existing system as. may put it out of work, yet on the other hand, as several different proceedings are brought within the shipping industry’ against the same persons, who must abide by the awards in regard, say, to the engineers, the officers and men, and the stewards, it is plain that the craft difficulty is already being met, and settled, in large industries of that kind. No reason has been shown for making this alteration in our Act, unless it be that there may be some, but not necessarily much, extra expense in a few cases, and some difficulty also. There will, however, be far less expense in the long run, far less confusion, and far less delay, by maintaining the system based upon industries, instead of introducing the system based upon crafts. It appears to me that, when the remarks of the AttorneyGeneral are read, they are just as much in support of the view which I have again submitted as constitutional and practicable, as they support his own view. The Attorney-General again spoke of there being no remedy for 20,000 men. There is a remedy. It is not necessary for the engineers of engine-drivers to abandon their unions because they operate through different industrial organizations in connexion with different trades. There is nothing to prevent each of them putting forward their requests for precisely the same terms wherever the conditions and the work are of the same character, or for varying them if there is anything exceptional in a due degree.
– Does the honorable member say that two engine-drivers out of a hundred employes in an industry could adequately present their case before the Court?
– Their case, and that of a number of other men of the same grade, could be put forward in connexion with awards already been made in the greater industries. In view of the kind of work they do, and the circumstances in which they are engaged, their claims must be practically the same as those of their fellows in other industries who have already obtained awards. Their claim is simplified immensely, and the “dispute” diminished at once.
– A union cannot make a claim for any one who is not in its ranks.
– It is not necessary, so long as they are in an organization. They may contend that the terms which have been obtained, either by another union or another organization in which there are engine-drivers already fix the rates for their similar class of work. Why should not the same conditions be required? The employers would be practically out of court at once if they opposed such a claim. The case would be practically settled before it went into Court. All that would be necessary would be to have the old award in this relation amended and put on record and registered. How could the employers resist? Take the case of men driving engines in the mines at Bendigo, in the mines of the West, or in the coalmines of Newcastle. Any substantial difference in the conditions, such as the extra cost of living in the West, would bo taken into account. But here is your basis already prepared : When once you have engine-drivers paid a certain rate for working eight hours, you can derive your other amended wages and conditions deduced from it in the easiest possible way. When, once you establish your bases of arbitration bringing these crafts and others into line with their branches in the great existing industries, so far as payment is concerned, the road by which they arrive need not affect their unions, or their organizations, for trade purposes. All that is necessary is to relate their new terms to those of industrial organizations already under the Act. Once fix certain work with certain hours for certain pay, and that, with minoradditions meeting the difficulties of particular localities and circumstances could be applied all over Australia.
– Then an enginedriverwould have to be under two or more awards.
– There being a main award, other subordinate bodies would come in and get their awards, with whatever modifications were necessary. With this system once thoroughly established, amendments made necessary from time to time by changes of general or special circumstances will not be frequent. I doubt whether, even if its constitutionality be established, this short cut which the AttorneyGeneral is advocating is, after all, shorter than the main road. The Government are raising, not merely legal, but administrative difficulties. It is certainthat they are raising grave constitutional issues for no real gain. On the contrary, it is quite possible that results just as good, and probably better, could be obtained more speedily and more cheaply from the existing method without running any constitutional risks whatever.
– My point all along has been that the proposal to bring all these crafts under the control of Federal law, whether it be constitutional or not, will practically break down of its own weight. I do not think it will at all achieve the results at which the Attorney-General is aiming. It means, to begin with, that if decisions are to be given upon the basis of handicraft, as well as upon the basis of industry - and the Attorney-General has told us that he aims at making both of them relate themselves to this Court, either as alternatives or both together, as the case may most conveniently be - these decisions must necessarily be complicated and inefficient, or, on the other hand, you must have the whole of the crafts organized from end to end of Australia. Both of those seem to be rather big orders> and I do not see how they are to be accomplished.
– The crafts are already doing it.
– The honorable member has been . told again and again that they are not. The most highly and efficiently-organized craft of them all is only 50 per cent, organized, according to the speech of its secretary in this Chamber.
– The other 50 per cent, are getting the benefit of the award.
– Exactly ; that i.s what the honorable member said. He wanted this Bill to compel the other 50 per cent, to organize. I should not so much object to that if I could afterwards see a working award, but for the life of me I cannot. The Attorney-General himself admits that the principle of differentiation must be applied to these awards, and that that differentiation must be along geographical and climatic lines. It seems to me that in saying so much he admits the full force of the contention that the States would control these matters better than the Federation can ever do.
– Why do not they do it ?
– It is so stupendous a task that they cannot do it even in a State. Did not the honorable member hear Judge Heydon’s statement that his Court was breaking down - that the work was too much for him to do even iri his own State, to say nothing of the whole of Australia? The statement made by the honorable member for Cook the other night disposes of the whole of the AttorneyGeneral’s contentions. The Attorney-General says he wants to do in the Federation exactly what is being done in the States. Here is the effect in the States, according to the Judge himself, in the Railways case -
I must seek out some simpler road with regard to Boards that has been followed hitherto. I was in great hopes that the measure submitted by Mr. Beeby to the House would have resulted in relieving me of this, but the mass of Boards, the overlapping, the dovetailing, the variety of interests that are put before me when applications are made - the thing is becoming overwhelming altogether.
Altogether overwhelming in a State ! Yet that is the system which the AttorneyGeneral wants to make Federal. If it is overwhelming as applied to a State, must it not be more completely overwhelming, if that is possible, when applied over the whole of the Commonwealth?
– The honorable member’s argument was that the States could do it better. Apparently they cannot do it at all.
– If the States cannot do it, is the Federation likely to do it better?
– The thing is extremely difficult.
– If Judge Heydon says his Court is overwhelmed, how is the honorable member going to compass the work Federally by means of Judge Higgins?
– What was the date of those remarks of Judge Heydon?
– They were made lately in connexion with a case in which one of the railway unions applied for a Wages Board. The matter was quoted by the honorable member for Cook in his very clever speech the other night, as follows : -
The presiding Judge, in that case, heard Mr. Warton, for the Tramway Union, Mr. Black, secretary of the Electrical Trades Union, Mr. Sullivan, secretary of the Moulders Union, Mr. Irons, secretary of the Bricklayers Union, and Mr. Millard, secretary of the Labourers Union. They all appeared to object to the constitution of the Board to deal with certain groups of tramway men.
The Judge further said -
This very thing is an example. I have two unions, first of all, to deal with, a thing which is really quite outside my proper duties, dealing with the claims of different unions in the same industry. Then a number of different industries appear, and there are a number of existing awards, some have expired, some have not; some Boards have expired and their awards are in existence ; some Boards have expired and their awards have expired also. The thing is becoming a mass of confusion. I shall have to devise some scheme, which I shall inform the industrial world of, by which the thing shall be simplified; it is getting too troublesome and complicated.
That is precisely what the AttorneyGeneral wants to engraft upon the Federal Arbitration Court.
– Mr. Beeby, in the New South Wales Parliament, is trying to do what the Attorney-General is trying to do in this House - to simplify matters.
– How is he simplifying matters ?
– By his Bill.
– He is carrying further the principle of differentiation and grouping. But there is no provision for machinery under this Bill. There is not even an effort to begin to group industries. The industries of New South Wales are grouped statutorily. But. notwithstanding that grouping and simplification. Judge Heydon says that he is overwhelmed in confusion and absurdity.
– The Wages Board system has broken down in New South Wales.
– The Government are providing for the multiplication of disputes under this Bill. Once you depart from the idea of a Federal dispute as a basis, you enter into a mass of confusion that is bound to occasion extreme difficulty. Confusion has already been caused in a State where the machinery is, I suppose, more perfected than is the case, perhaps, in any other State, and where the grouping principle has been taken as far as Labour representatives could take it. Men who are specialists in these matters, and who have applied their intellects to the solution of the problem for the last ten years, with all their efforts to simplify procedure, have simply produced a state of affairs that has led Judge Heydon to say that he is overwhelmed.
– That is an argument against the Federal Arbitration Act altogether.
– Not by any means. It is an argument for decentralizing control - for linking up the Federal machinery with the State machinery. But it is not an argument for taking control away from the States and centralizing it under the jurisdiction of one Judge. It is humanly impossible for one man to do the work that he is being asked to take on. Mr. Justice Higgins has more than he can do now with eight or nine industries; and what, I should like to know, is he going to do with hundreds and hundreds of groups and organizations and industries? The whole aim, as it seems to me, is, to establish a statutory organizing agency, if T may so put it. The Government are going to compel the organization of more and more of these group industries. In other words, they are encouraging the making of disputes rather than the settlement of them. Only this week a case is reported in the Worker which brings out this point very clearly. One comrade, the secretary of the Rural Workers Union of New South Wales, writes to the secretary of the United Labourers Union of South Australia. I understand that there has been some little friction between them, because one organization has been trenching upon the other’s domain.; That is why Mr. McNamara, general secretary of the Rural Workers Union in New South Wales, approaches the secretary of the United Labourers Union of South Australia. This is his letter -
Dear Comrade, - I am directed by the above union to bring under the notice of your union the fact that my organization proposes to cite a case before the Commonwealth Arbitration Court on behalf of workers in the agricultural, viticultural, fruit-growing, market gardening, and dairying industries, and as it is necessary to have a dispute in more than one State, it is imperative that the union should organize in South Australia in order to provide a two States dispute in the dried fruits industry.
Here is a deliberate proposal to create a dispute in two States in order to get a case before the Federal Arbitration Court.
– Did not the honorable member for Darling say that a dispute could be worked up amongst the domestic servants in two States?
– Here is a case in which that very thing is being tried.
– Does the honorable member know that the Legislative Council of Victoria rejected a proposal to establish a Wages Board for rural workers?
– Then the honorable member’s party should try to get one for them.
– We cannot. The Legislative Council blocks us, and the honorable member’s crowd knuckles down to them.
– I am told that there is no Wages Board for rural workers even under the Labour Government in South Australia.
– There is a Legislative Council there, too.
– Of course there is, but what disability does that impose now ?
– The disability of a point-blank refusal.
– But there is no great disability in connexion with the franchise in South Australia now.
– Oh, is there not? It is shocking.
– What is?
– There is a rental qualification.
– A very small one. Here, I say again, is a deliberate attempt to create an Inter-State dispute, in order to obtain the advantage of appealing to the Federal Arbitration Court. And, strange to say, this proposal is made in connexion with two States where there are Labour Governments in office. I am reminded of the statement made recently with regard to the present unfortunate dispute in Sydney. The Federal Attorney-General tells us that he has no jurisdiction. The State Government say that they have no jurisdiction. The Federal Attorney-General says that they have. Each authority is putting the responsibility upon the other. Is there anything in the machinery proposed to be established to obviate such a condition of things ? It seems to me that, before it will be possible to compass Inter-State disputes in a proper way, our machinery must be improved. Instead of the Federal authority trying to take powers from the States, as has been the case for some years past, the whole business ought to be organized. A line ought to be struck, and rigidly adhered to. I should like to know who is responsible for interfering in the dispute that is going on in New South Wales now. It is a scandal to the country that we should have two Labour Governments in office each saying that it cannot act, and that the duty of interposing devolves upon the other authority.
– That has nothing to do with this question.
– Oh, yes. The CHAIRMAN.- The question of what two Governments are doing or not doing has nothing to do with the question before the Committee.
– Except as illustrating the futility of this machinery. I tell .honorable members opposite that this Bill is not going to work. That is my prediction. We shall have to wait only a few months to see this machinery breaking down of its own cumbersomeness, its own weight. The only object, it seems to me, is to create another argument in favour of the referenda proposals of the Government, which, we are told, will again be submitted to the electors at the next election. The Government will go before the people flaunting their helplessness instead of. their foolishness as a reason for their proposal. I say again that there ought to be some clear line drawn in regard to all this legislation. If we can act in co-operation with the States and after consultation with their Governments, so much the better. We ought to endeavour to co-operate with them, and not to overlap their legislation in every possible way. afterwards making excuses as to why neither authority does anything. I want to see this machinery work satisfactorily, but that object can only be accomplished when all the factors making up the complex industrial conditions of this continent have been put in their proper place, and accounted for under the machinery which we set up. In a little country like New Zealand, a mere strip of land a little over 200 miles in length, they have three or four separate and distinct industrial districts in order that the authorities may take into account certain factors which must modify their decisions. Here, however, our efforts are in the direction of centralization. In my judgment the machinery will break down, as the machinery established in New South Wales has broken down.
Clause agreed to.
Clause 4 -
The registration, as an .organization under the Principal Act, of any association registered before the commencement of this Act shall be deemed to be as valid to all intents and purposes, and to have constituted the association an organization as effectually as if this Act had been in force at the date of the registration.
Amendment (by Mr. Hughes) proposed -
That after the word “ association,” line 2, the words “ purporting to be “ be inserted.
.- My difficulty as to the meaning of these words is to understand what their effect will be. “ Purporting to be.” Either asociations appear on the register or they do not.
– There are some unions on the register, and it is doubtful whether they are properly registered, but they purport to be registered.
– That may not follow.
– The clause, as it stands, means those associations which are duly and legally registered.
– Is that all that is intended? If the cases intended to be covered are associations registered in fact, but not in law, then I can understand the meaning of the amendment.
– The Engine-drivers As sociation purports to be registered, but, in law, it is not registered.
– Then I am not sure that “ purporting to be “ is the best phrase to use.
– Perhaps, in the exercise of his rights as Leader of the Opposition, the honorable and learned member will suggest a phrase.
– As the AttorneyGeneral has returned to the chamber, I ask when does an association purport to be re-. gistered, and how ? We know when an industry is completely registered, and we know when it is not. Purporting to be registered, but not being registered, is something between the two. Perhaps the honorable and learned member will explain.
– The registration of certain unions, made prior to the passing of this Bill, are doubtfully valid”.
– Why not validate them in the ordinary way?
– Suppose that through some error or negligence of a union, or the registrar, or somebody else, some technical point has been overlooked, and the union is not registered. The clause validates, as far as it can validate, the registration, and its action is retrospective. How far it goes I should not care more precisely to say, but it does go as far as we intend to make it go, if we have the power, so that it will validate the registration of any union whose registration has become invalid simply by reason of the fact that it was a craft organization, and not an industrial one. We want to insert the words “ purporting to be,” because they seem to include a class of registrations which may have been omitted under the clause as it stands.
.- As far as I am concerned it is purely a question of phrase. I think that it is an ambiguous and doubtful phrase, and that the AttorneyGeneral might easily find one more express and explicit. However, that is for him to consider.
– I think that, in principle, the clause is justified in the peculiar circumstances of the enginedrivers’ case. I do not think that, in many cases, such a clause would be justifiable, because it is really retrospective legislation. To my knowledge there are only one or two cases of this class in Australian legislation, but I think that this particular provision is justifiable, because a large number of industrial agreements depend upon organizations, and it would be a great pity if they were invalidated simply because some employers denied the registration. As regards the actual drafting, I do not think that the insertion of the words “purporting to be “ is necessary, because, in the first line, it is actually described as a registration, and, in the second line, it is stated that it is not a registration. At the present moment it is assumed to be a registration, although an invalid one.
– It might be held that a registration was not a registration, and, therefore, the association would not come under the provision.
– I see the object of the amendment, but the clause seems to me to be somewhat contradictory. I do not think, however, that it will make any practical difference if the words are inserted.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 5 -
Section nine of the Principal Act is amended - (a) by inserting, after the words “ injure him in his employment,” the words “ or alter his position to his prejudice “ ; (*) by omitting the words “ Twenty pounds “ and inserting in their stead the words “Fifty pounds”; and
by inserting, after the words “ injured in his employment,” wherever they occur, the words “ or prejudiced.”
.- The proposed amendment of paragraph a of section 9 of the Act only goes to the extent of inserting the words “ or alter his position to his prejudice.” I put the view that the clause, as it stands, is quite ineffective for the purposes which we have in view, and that honorable members on both sides should stand together in the endeavour to see that no man is penalized or prejudiced in any way by reason of his accepting the invitation extended to him to become a member of an organization. I put the matter in that broad way because it may be thought that in strengthening section 9 there is an effort being made by a member of this House to unduly penalize employers. We cannot make the section toestrong, so long as it is directed to discourage employers or others from penalizing persons desirous of joining an organization ; in other words, from taking advantage of the general provisions of the Act. Section 9, as proposed to be amended, reads -
No employer shall dismiss any employe from Ii is employment or injure him in his employment or alter his position to his prejudice.
We should go so far as to say that, for the reasons mentioned -
No employer shall dismiss any employe^ from his employment, and no person shall injure such employe or other person in his employment.
Because it may well be that a person who is not in the relationship of employer at nil may injure another person by refusing to employ him or inducing others not to employ him.
– Would the honorable member mind reading his suggestion again ?
– My suggestion is that section 9 should be amended to read -
No employer shall dismiss any employ^ from his employment and no person shall injure such employe or other person in his employment or prejudice his application for employment or alter his position or refrain from altering his position to his prejudice or injure him in any way whatsoever by reason of the fact that such employ^ or person is an officer of an organization or of an association that has applied to be registered as an organization or is seeking to become a member of such an organization or association or holds himself out to the public as such member or is entitled to the benefit of an industrial agreement or award, and no employer or other person shall exact .a promise or undertaking from any employe or person as a condition of employment not to become a member of such association or organization.
– The honorable member wants to do away with the employer,
– There is no intention to do away with the employer at all, or to unduly penalize him, but there is a general intention, which I think ought to be upheld by honorable members on each side, to prevent a person from being penalized for desiring to join an association or organization. I think 1 have pointed out that a person may refuse to give a man employment for the reason that he is a member of an association or organization, or that he wishes to join one, or induce other persons not to give the man employment for the same reasons. We should say that these reasons are not to operate or to be allowed to operate, in the minds of men against persons who wish to join organizations. Section 9 as it stands says that no employer shall alter the position of such a man “to his prejudice.” The injury may be done to the man by his employer, not by altering his position to his prejudice, but by refusing to alter his position, or by altering the position of others over his head. Again, the person who is injured may not be a member of an organization, but he may wish to become a member of an organization or association, and it may be held out to him before he is employed as a threat if he becomes or proposes to be a member of an organization or association, that he shall no longer be qualified for employment. We know, and honorable members who come from Queensland will be able to bear out my statement, that this is done openly in connexion with the Australian Tramways Association. So far as the
Queensland branch is concerned, the company lays it down as a condition that no person shall hold himself out as, or do anything to indicate that he is, a member of an association, and no person shall get employment if he proposes to join an association. . It is done also in connexion with the Melbourne Tramway Company. They exact undertakings from men before they are employed that they do not intend to join the Australian Tramways Association. It is a veryunhappy state of affairs if this House is to go on passing legislation, and inducing persons to enter organizations for the purpose of settling industrial disputes, and dealing in a more efficient manner with industrial troubles, while private individuals and companies are to deliberately and publicly penalize men for going into the organizations. I should say tha°t honorable members on both sides would be quite willing to strengthen this section.
– It is a good job that one company referred to is soon going to die 1
– That may be, but that company should not be encouraged to flout the laws of this Parliament. I use the words “ holds himself out “ as a member of an association, because, in connexion with the Brisbane branch of the Tramways Association, the men are forbidden to wear any emblem or medal which will indicate that they are members of a peacefully disposed organization.
– “ Peacefully “ is not bad !
– “ Peacefully “ is distinctly good if the scope of this law is as honorable members opposite declare it to be. The men to whom I refer had a medal struck and proposed to wear it, but they were forbidden to do so, and the medals were seized as contraband on the persons of the men while at work.
– Was that this century?
– Yes, this year. I, therefore, suggest that, in view of this contemptuous treatment df our law, we should lay it down that any man may freely and openly hold himself out - and, indeed, is doing good work in holding himself out - as a member of an organization.
– There is no law to prevent it.
– That is true, but there is a regulation of the company which forbids it. Just as men should not be prejudiced in their employment in any other way, they should not be prejudiced in this way, so long as they act in a peaceful and orderly manner as members of an organization. I, therefore, move -
That all the words after the word “ inserting,” line 2, be left ont, with a view to insert in lieu thereof the following words : - at the beginning thereof the words - “ No employer shall dismiss any employe from his employment and no person shall injure such employ^ or other person in his employment or prejudice his application for employment or alter his position or refrain from altering his position to his prejudice or injure him in any way whatsoever by reason of the fact that such employ^ or person is an officer of an organization or of an association that has applied to be registered as an organization or is seeking to become a member of such an organization or association or holds himself out to the public as such member or is entitled to the benefit of an industrial agreement or award, and no employer ot other person shall exact a promise or undertaking from any employe or person as a condition of employment not to become a member of such association or organization.
Penalty : £50.
I do not say that it is possible, but I have endeavoured to draw the amendment in such a way as to prevent persons, whether employers or not, from injuring persons, whether employes or not, by reason of the latter being members, or intending to become members, or advertising themselves as members, of an organization or association applying to be registered. It is for others to suggest objection, but any there may be will be found to the wording, and not to the spirit, of the amendment, which is eminently fair, in view of our desire to encourage men to join associations. I say this with the full knowledge of the fact, which is frequently overlooked by honorable members opposite, that it is not the employes, as a general rule, who have been in the habit of flouting Commonwealth industrial legislation, but that the persons who have shown themselves, not only hostile, but have received such legislation in a spirit of rebellion, are the employers.
– What award have the employers refused to carry out?
– I am not suggesting that the employers have actually refused to carry out any award.
– Where, then, is the rebellion?
– In answer to that I shall first say, in general terms, that it is well known that employers, as a rule, have been, and are, hostile to Commonwealth legislation in regard to industrial matters. The proof of that lies in the fact that the men, so far as I know, have hardly once come to the Court without toeing met by all manner of the most subtle technical objections.
– Is that rebellion? Mr. Fairbairn. - Is this not a free country?
– The Conciliation and Arbitration Act was held out to the workers as a speedy, simple, cheap, effective means of settling industrial troubles, free from legal technicalities ; and honorable members opposite may well laugh at the result we have reached. They know what the result has been ; and it is solely owing to the fact that money has been poured out like water in an endeavour to find technical disabilities, and thus to prevent the men obtaining the benefit of the Act.
– The honorable member is at present engaged in sowing a very plentiful crop of further technicalities.
– I am not discussing that point at present; but I do say that my argument applies to the particular case, the defect disclosed which we are trying to cure by this Bill. If it had not been for the subtle ingenuity of some legal mindwhich, of course, I commend very highlythat award would have been given and worked under harmoniously, happily, and comfortably, nobody knowing anything about legal disability.
– The honorable member, by quoting one instance, is not supporting his charge of rebellion on the part of the employers.
– I do not know but that the word “ rebellion “ is perhaps too strong ; but I say that the law has been received in a rebellious spirit, and I stand by that. Every time that this “cheap” and “effective” measure has been used in Court there has been opposition on technical grounds, and not on the merits of the employes’ claim.
– The honorable member said that the employers had ‘ flouted ‘ ‘ the decisions of the Court.
– I can assure the honorable member that I never said anything of the kind. I said that. they had received Commonwealth legislation in regard to industrial matters in a spirit of hostility, if not absolutely in a rebellious spirit; and by that I am prepared to stand, having regard to the records of the cases heard in the Court. However, that is a little outside the proposed amendment, which I commend to the sympathetic consideration of the Attorney-General and the- Com-
– The amendment seeks to more effectively protect the employes than has been found to be the case under section 9 of the Act. It is perfectly true that certain employers do penalize their employes and prejudice them in their employment. One organization waited on me during the last six or eight months and furnished me with a copy of a notice which was displayed in a prominent place in certain depots announcing in an unmistakable way some of the consequences which would follow any attempt to join any other than a certain organization, which was, and is still, I believe, under the management of the employers. In addition, representations were made to me by certain honorable members disclosing a similar state of affairs in another State. In my experience, only one conviction has been obtained under a similar section under the New South Wales Act, and that was in the case of an employer who admitted, in a moment of inexcusable aberration, that he had dismissed an employe because he was a unionist. Usually, of course, exacting such an admission from an employer is infinitely harder than getting 6 oz. to the ton from an exhausted reef. We have to consider human nature as it is ; and the question is whether we can, by any means at our disposal, effectively compel an employer to make no difference in regard to the man who is a member of an association to which the employer, rightly or wrongly, has some objection. That is one point, and another is that the Constitution effectively delimits our powers.
– That is the ‘principle of the honorable gentleman’s amendment.
– The honorable and learned member for Batman, in moving this amendment, has nought rather to exhaust the possibilities of action on the part of the employer than to gather the potentialities of the position in a general clause. I incline to the opinion that the clause, as before the Committee, covers quite as much ground. The effect, whenever one enumerates particular cases, is to omit other particular cases, which did not at the time occur to one’s mind. There is another point to which I would draw the honorable member’s attention, and it is this. He proposes to provide that no. employer shall exact a promise or undertaking from any employe as a condition of employment not to become a member of an association or organization or prejudice him in his application for employment. I admit that this is a bog or maze, and that we tread with difficulty and amazement in every winding avenue through it. But one thing has been made perfectly clear, and that is that, before the Court can have any jurisdiction at all, there has to be an industrial dispute which must extend beyond the boundaries of one State, and which must have relation to an industrial matter between an employer and an employe - not a person who may become an employe^ but a person who is de facto an employe I am not going to say that that is not subject to modification, but I do say that an application for employment is entirely outside the relationship of employer and employe. In connexion with a State Court, the position, of course, would be entirely different, but until a man becomes an employe, the Commonwealth Court of Conciliation and Arbitration has no jurisdiction. I will not mention any State in particular, but let me say that in a State other than this, there is, at the present time, an organization of employes that is not recognised by the employers, who are continuously pursuing tactics in regard to it, calculated to provoke a breach of industrial peace. Some honorable members know very well that th’at is a fact. This -Court is perfectly powerless to do anything at all in relation to such a case unless there is an industrial dispute, or something has occurred to give the Court jurisdiction. Nothing that is in the Statute, or can be put into it, can give the Court jurisdiction in respect of a matter in connexion with which it would not have had jurisdiction, if there were an active outburst of industrial hostility. So I say that, in regard to this matter, we have to keep clearly within our constitutional powers, and we have to remember what human nature is. A man seeks employment, and the employer says, “ Are you a member of the union ?” The answer is, “ Yes.” and the employer then says, “All right j where did you work last; what did you do?” and so on. Is an employer going to be so destitute of imagination and all resource that, having one hundred reasons for sacking a man, he is going openly to sack him for the very reason for which he would have to pay £50, when he slight sack’ him for any one of the other reasons, on account of which he would not have to pay anything? If the employer were such a resourceless person as that, al) $his trouble in society would never have existed: He would’ never give “us any trouble at all. But we know that ‘he is a very resourceful person. This legislation has been ‘in force now for ten years, and the only conviction under the section has been that of one employer at St. Mary’s, who admitted that he sacked a fellow because .he belonged to the union. And he said, “ I will sack all the rest.” The Court and -everybody in it were so astonished at
This outburst of unnatural candour that the lowest possible -fine was imposed, and the defendant, was- sent away almost rejoicing. T am inclined to. think, however, that there is one phrase - of the amendment which covers more than may be covered by the clause, as it - stands. . The section, if amended, as proposed by clause 5, would provide that -
No employer shall dismiss any employe’ from Iris employment or injure him in his employment or niter his position to his prejudice by reason merely of the’ fact that the employe^ is *o officer or member of an organization, or of »n association that bas applied to be registered xs an organization or is entitled to the. benefit nf .an industrial agreement 01 award.
The Bill proposes to’ amend the existing section by inserting: after the words “or injure him in his employment,” the’ words “or alter his position to his prejudice.” That is to say, to fail to promote him, or to -disrate him, as the case may be. It is conceivable that that ‘does not cover everything, and the honorable member proposes to provide for that by inserting the words “ or injure, him in any way whatever.” I think -that is a drag-net phrase which cover’s everything.
– It is such a big drag-net that it may destroy the whole clause. Mr.- HUGHES.- I do not think so. We can put that into- the Bill, without invalidating the ‘ measure. ‘ I do not ‘ know that the clause would be inoperative, in so far as it was constitutional. Clearly the Court would never say that the Legislature deliberately intended to go too far. - The phrase might not, however, cover any more ground than is covered by the clause, as it stands. .. This is- all- that could happen to an employ^. He might, lose his -job; he -might lose promotion, or benefits; he might npt progress as rapidly as he ought, and he might in short, work in the shadow instead of the sun of his employer’s approbation. This is what might happen, putting it into words; and I wish’ honorable members to consider whether there is anything that is not covered by this phrase. The employe” may not be dismissed ; he may not be injured ;’ he may not be prejudiced. If we add these words proposed by the honorable member for Batman,’” injured in any way whatever,” I think we have got it I do not see anything further that could be done. . In my opinion, the section as amended by the Bill does cover all those cases in which, taking human nature as it is, there is the remotest possibility of -our being able to effectively protect the employe”. For that reason, I ask the honorable member for Batman not to press Ins amendment.’ If, upon consideration, he thinks that the words to which I “have specially ‘ referred will strengthen trie clause, I, personally, shall offer no objection to their insertion.
– The Attorney-General has pointed out some of the difficulties in connexion with’ the amendment, and I wish to refer to one or two others. I have not had an opportunity to read it, and it is a rather complicated amendment. There are one or two things which struck me as possible results Qf its adoption which I should like to bring under the notice of the honorable member for Batman. One of the proposals made is that no employer shall not merely alter, but refrain from altering^ .the position . of an employe” by reason -.of the fact, -riot merely that he .is a .mem.be?;; of an organization or association, :b’ut that .he seeks to become , a member of .an’ organization’ or- association. T ask.’ honorable members to imagine fpr n moment -the ‘kind of prosecution that would take place under such a provision. John Jones, an ‘ employe, brings .a prosecution against his employer under this amendment^ and sets out the following offence :. -That the - employer refrained from . altering- his- position,- ‘he being a’ person who was’ seeking-‘ to obtain admittance- into an association. -That., is rather a strange thing to make the matter a criminal offence. Jones’ comes before the Court and is asked, “ What do you complain of ; are you not in the same position as before ?’ ‘ The answer is, “Yes, that is just- what I complain;, qf..” The Court then says, “You are still- employed, and still paid, and that is - what you complain of - why? Is it because you are a member of an association?” The answer is, “No; because I am thinking of becoming a member of an association. My employer has refrained in consequence of that–though how’ he found out what I was thinking about, I cannot say- - from altering my position.” I am inclined to think that that would be a very difficult matter to prove. But the honorable member for Batman gets him out of that difficulty by throwing the whole of the onus of proof on the defendant. The defendant would, first of all, have to show that there was” no opportunity of which he could have availed himself to better Jones’ position; or, if there was, since he did not know that Jones was seeking to become a member of an association, he could not have refrained from altering Jones’ position because he was seeking to become a member of an association. Could honorable members imagine anything more ridiculous to put seriously before a Court of Justice and particularly a Court of Criminal Justice, as a means of carrying this legislation into effect? I appeal to the honorable member for Batman to reconsider this proposal, because he appealed to honorable members on .this side to join with him in .doing what I suppose is the desire of every one, and that is to prevent the penalization of men because they belong to a union..
– Or because they do not..
– I am prepared to assist the honorable member in any reasonable attempts with that object, in the full and cordial expectation that he will assist lis in passing equally drastic provisions against boycotting on the part of employes. But our laws should be such as can be carried’ out. As the AttorneyGeneral has shown, the present provisions have not been effectual, and, I think, cannot be made effectual. You cannot make a criminal offence depend orr something in the mind of an employer or employe, no matter what language “you employ. To attempt to give effect to such provisions would bring about prosecutions such as have never yet been heard of or dreamt of in any Court- of Criminal Jurisdiction. It is easy to say that the onus of proof should be on the defendant. The onus of proof has been thrown, on the defendant in connexion with certain cases, especially in regard to Customs offences. But when a man imports goods, he knows all about them, having thu invoices and other papers, and it is reasonable that, the Crown having made out a prima facie case on some’ points, the duty should be thrown on the defendant of mak ing the whole position clear. I do riot think’ that the honorable member has fully considered the effect of his amendment.
– I should like to see the workmen effectively protected in this regard, but how it is to be done I do not know. I do not know any form of words which would prevent an employer from dismissing an employe. That could be done even ‘ if the honorable member’s amendment were carried. I agree with the last speaker that if you put too much into the clause you are likely to defeat the object in view. I know a man who was promoted to a position carrying a higher salary who did not rest until he got back to his old job.
– I have known men to be promoted to get rid of them. ‘
– In the case to which I refer the promotion was a genuine one. Had the man remained in the higher position, he would have become unfit for work, because the nervous strain was too great. It could be said that that man was injured by his promotion, and if he had been in a union it could have been urged that his position had been altered to his prejudice. Elementary justice requires that both sides shall be treated alike, and. protected as far as possible, but the clause as it stands is as effective as we are likely to make it..
.- I cannot pretend to be able to discuss the legal aspect of the amendment or of the clause, and I agree with the honorable member for Flinders that it is possible to push the proposal of the honorable member for Batman to a ridiculous length. Undoubtedly, however, employers attempt to interfere with and penalize employes who are members of organizations, ind the clause as it stands does not prevent that. Men in the employment of the .Brisbane Tramways Company are to-day being offered inducements, and threatened .with loss of position and employment, to get them to leave the organization to which they belong.
– They do more than threaten them here. They sack them every davy in the week.
– Over 100 men have had to resign from the Tramway Employes Union in Brisbane because they were told in unmistakable language that unless they did so they would lose their employment. We must, of course, treat both sides alike, and I am ready to protect both- employes and employers who are members of unions. Employers should recognise the men’s right to organize. If we are going to say that men shall not cease work because their employer is a member of the Employers Federation,- we should not allow employes who are members of organizations to be interfered with by their employers. One effect of this legislation will be to drive both employers and employe’s into federation.and I can conceive nothing better calculated to bring about industrial peace than the existence of strong organizations which can discuss with each other, or before an impartial tribunal, the terms and conditions under which work should be performed. If the employes require preference, the employers should be given preference, too. But there is nothing in the clause to place an employer under any. disability because he has attempted to induce his men to leave their organization. Inducements are being offered to men to leave an organization and to join another which is under the wing of their employers. Nothing is more likely to lead to industrial trouble, and I hope that the result of such conduct will be industrial trouble. If men are robbed, threatened, or intimidated to induce them to sever their connexion with an organization, trouble will continually occur, and there can be no hope of industrial peace. Some provision should be inserted, penalizing the employers who endeavour to draw men away from their organizations, or to induce them to join organizations financed, supported and encouraged by the employers.
.- I shall not press the amendment. The honorable member for Flinders has pointed to the legal labyrinths into which we may be led by the proposed amendment, but that does not get over the fact that there are many obvious cases, apart from the exceptional ones to which he referred, which would be met by the proposed amendment. The Attorney-General referred to the words “ by reason merely,” arid put the view that a man is absolved who dismisses an employe for the reasons stated in the amendment together with others. If an employer has merely to show that, although membership of a union was one reason for the dismissal of an employe, there were others, or one other, to be free from liability to a penalty, the provision is waste paper, but I direct the attention of the honorable gentleman to the fact that I left out the word merely “ to make it clear that member ship of a union must not be an operative reason at all, and chat there would be liability to a penalty wherever it could be proved to be. an operative reason. -The AttorneyGeneral has pointed out that the prosecutions under the Act have failed. I have been connected with some of them, and know that they have failed, and must fail, except in those exceptional cases where what he called “ unnatural candour “ is displayed by the person committing the offence. There was one .such case in Victoria, but we did not test it, because the employer climbed down at once.
Amendment, by leave, withdrawn.
– I hope that what I shall say will not give rise to a discussion on the ethics of this question, but I wish to make a few observations regarding the purpose of the original clause, and the proposals made by various honorable members who have dealt with it. It has always seemed to me that the best we can do in this regard is to declare as closely as possible what the majority of the members of this Parliament consider to be fair treatment as between employer and employed. We want to see some substantial justice done to any one who is injured, and I think it is the duty of the National Parliament to say what, in its opinion, would be the good conduct of a good citizen on either side. Having regard to our limited power, I do not think we can do any more.
– Unfortunately that has proved to be insufficient.
– Quite so; but I have particularly in mind the statement made by the honorable member for Brisbane that certain employers may desire to draw their employes away from the ordinary trade unions into unions or organizations formed by themselves. They might partially succeed in doing that, but I do not believe that any thinking man considers that such an effort could ultimately be successful, Organized society in these days is such that there are two conflicting interests, and those two conflicting interests will either come together in organized bodies, and deliberate with an impartial Judge between them, who will settle their differences-
– I think there are two competing rather than two conflicting interests.
– There are two competing and conflicting interests. Their interests are conflicting, because the one gains at the expense of the other. That is to say, a person who is fighting for higher profits, if he can get his workmen to work for less than the better class of employer in the same industry gives, must enjoy a distinct advantage.
– I do not think that either - side gains at the expense of the other.
– Let me return to the main point. My opinion is that we should not state anything less than we really mean as a guide to the just employers and the best workmen. The Attorney-General’s amendment, seems to me to strengthen the provision in the principal act. It will help and guide the Court in any case that may arise. I am very glad that the honorable member for Batman has seen fit to withdraw his amendment, and my belief is that these efforts on our part to establish by legislation some media for the settlement of .disputes, although ‘at best but temporary,’ are on sound, safe, logical lines.
.- I think it right that- there should be some qualification of what has been said as to the number of cases in .which employers have absolutely prevented justice being done under the Act by taking advantage of legal technicalities. May I refer, by way of example, to the engineers’ case, to which reference has frequently been made in connexion with this Bill? Not more than about twenty-one or twenty two employers have challenged the organization or registration. I know, as a fact, that about 170 or 178 voluntarily entered into an agreement, and many of them - I can speak for ten out of the eleven Broken Hill mining companies - in this case, absolutely from the start waived all points of jurisdiction so as not to embarrass the men. I could, if necessary, cite other cases. In his judgment, in the Merchant Shipping case, which was decided on sth December, 1 9 10, Mr. Justice Higgins said he had to testify to the fairness of the employers in recognising jurisdiction, where he thought it did not exist, for the purpose of enabling an amicable agreement. I do not desire to cite other cases-
– I have allowed a good deal of latitude, and I ask the honorable member not to proceed f further along his present line of argument.
Mr. - GLYNN.- With due respect, sir, I “think I am’ entitled to refer to what has been said during this debate in regard to the use of the words “ injured in his em ployment.” The argument in favour of the amendment just withdrawn was that there had been a complete blocking of justice on- the part of employers who” raised technical objections. I do not know that the_ words ‘” injured in his employment,” which were inserted at the instance, of a member of the. Labour party in the Senate, have proved ineffective. No objection has been raised, to these other words, but it must not be assumed that these additions to the stringency of the Act’ as it stands have been called for by a great many failures under the section before the amendment was made. If there have been many failures, I have not heard. of them. When the matter first came before me some twoyears ago, there were very .few cases where convictions could have been secured had the wording of the section been different from what it was. .
Mr. JOSEPH COOK (Parramatta) f6. (51.- I should not. like either the ethics or the economics of this matter,’ as .propounded bv the Prime Minister, to go unquestioned. I disagree entirely from his view that the profits, of the employer depend upon the amount that he can wring out of labour. To put it in plain language; that is what the right honorable’ gentleman said.
– I did not say that.
– The right honorable gentleman’ said there ought to be.no increase of profits by reason pf the. depressing of the wages of the labourers. The one does not follow from the other. In some of the most successful schemes’ of profit-sharing in the. world’ to-day, the employer- is. increasing- his: profits at the same time that- he is increasing very materially the earnings of his. employes.
– A great many employers do not admit that principle.
– I admit that they do not ; I wish they would. . But I’ have yet to learn that my honorable friends^ opposite are preaching any such doctrine.
– We have been preaching it for years.
– They are preaching the division, not the solidarity of labour.
– :We advocate cooperation all the way.
– Co-operation with the capitalist out. of it. I hope that the day -will come when copartnership o’f some kind or other, and co-operation will take the place of the fierce antagonisms -that now go on. But I hope, also, that :the time will never come when we shall be able to blot out and do away with the mind which is directing the whole. I rose only to correct the mistake made, in my judgement, by the Prime Minister, in alleging -that the amount of profit which an employer can make depends upon the amount he can -wring from his employes.
– The Prime Minister did udt say that.
– There is no necessary antagonism between the two forces. Rightly considered, they are the two halves of the same sphere, and it is possible to increase the profits of the employer at the same time that the return to the labourer is also very materially increased. I hope the time is not far distant when these fierce personal antagonisms between employers and employes will cease, and when we shall have more amicability than we seem to have to-day.
. - The reference by the Prime Minister to <ethical considerations started in my mind a whole crop of new thoughts with regard to the question of arbitration. He was in -one of his occasional moral spasms, and there was in his little speech an assumption that all the members of this House were putting their heads together to produce what they, as a body, thought most -beneficial to the working classes of Australia. I want to say that I am giving very little thought to such possibilities; and I venture to say that my attitude is ^shared by most honorable members on this side of the House, who feel that what- -ever we may attempt with regard to this measure is absolutely futile. I have lost all hope of being able to contribute to the debates upon questions of this sort, because we know that, by caucus process, the whole Bill is settled in black and white, as well as in details, before it comes here. We know very well that if we attempt an amendment it is simply laughed at in the consciousness of a- solid and definitelycommitted majority ; and that any -idea, such as has been suggested by the “honorable member for Parramatta, of converting arbitration into a beneficent system of co-operation, would be flouted.
– I rise to a point of order. * i* wish to know, Mr. Chairman, what this ; discussion has to do with the clause before the Committee.
– I was waiting patiently for the honorable member for Parkes to connect his remarks with the cause.
– I ‘. was just coming to the clause. . 1 am replying to; the Prime Minister, who in a moment pf ethical aspiration, talked of the Com’mittee sending to the country a Bill that would be the result of the best thought’ of both sides of Parliament upon the relationship of capital and labour. This is an entirely lop-sided measure. Every honorable member on this side, if he were asked to give his honest opinion as to the possibility of putting this or any other clause into shape, would say that he regarded it as futile, and I wish therefore to repudiate the idea that this Bill is going forth as the outcome of the best thought of both sides of the Parliament.
Clause agreed to.
Clause 6 agreed to.
Clause 7 -
Section sixteen a of the Principal Act .’is amended by inserting after sub-section’ (i.J the following sub-section : - “ (ia.) ‘Any person’ in the last preceding” sub-section includes not only persons engaged in or connected with an industrial dispute, but also any person engaged in or connected with any dispute relating to industrial matters (whether extending beyond the limits of a State or not), and related in any way to an industrial dispute;) and also includes any person, whether connected with an industrial dispute or not, whose presence at the conference the President thinks is likely to conduce to the prevention or- settlement of an industrial dispute.”
.- I callthe attention of the Attorney-General once more to the fact that nearly the whole oT” the proposed new sub-section is superfluous. If it were amended to read - “ Any person “ in the last preceding sub-section includes . . . any person, whether connected with an industrial dispute or not, whose presence at the conference the President thinks is likely to conduce to the prevention or settlement of an industrial dispute - everything”, in the provision as it stands would be covered.
– The honorable member thinks the intervening words are redundant ?
– Absolutely redundant Mr. HUGHES (West Sydney- AttorneyGeneral) [6.14]. - In drafting a measure of this sort, one has naturally to inquire how the machine has worked, “andwhere the sand has got into the bearings. I do not think we do wrong when we in- quire from those charged with the administration of the purely machinery part of .the
Act in what way this or that section lias failed to be effective. We thus find out its weaknesses just as we ascertain the shortcomings of an engine from the man who drives it. That is what we have done in this particular case. Section 16 (a), as honorable members are aware, was inserted in’ the principal Act last year, and it has proved, without exception, the most valuable in the whole scheme of the Act. But the question is : “ How far does it go ? “ During the recent sugar dispute, the question arose whether the Court could, Under section i6a, summon before it those persons who were having a dispute. There was at the time no dispute within the meaning of the Federal Act. It was a State dispute. It could not be said that there was a probability of it extending, but there was a likelihood of the consequences of the dispute being taken up by other industries. In that case the dispute, whatever it became, would extend, and, as a fact, it did extend. Thus, the wharf labourers declined to handle the sugar. When it was handled by persons other than members of the Wharf Labourers Union, it came down to southern ports, and then the trouble became an Inter- State dispute. Under section i6a whom could the fudge summon, and at what stage?
– Any person, according to section i6a.
– The honorable member knows that his answer would convey to the lay mind something entirely foreign to the real meaning of the section. Could the Judge, for instance, summon the honorable member for Flinders?
– I wish him luck if he did. I contend that he could do nothing of. the sort. As a sensible man, I am sure he would not do it if he could. Does “any person” mean any person in the country ?
– I should have thought so.
– I should very much like to hear the honorable member argue against that interpretation. Every word has to be interpreted according to tHe subject. “Any person” cannot mean any person irrespective of his position, calling, or vocation. It must mean any person who has some relation to the industrial dispute. The Court is not to be made a Court for the settlement of all cases, nor is every citizen to be dragged by it from one end of Australia to the other’
– In the original section, the power is to be exercised for preventing as well as settling an industrial’ dispute
– The final jurisdictionof the Court is tied up in the settlement, of industrial disputes. We cannot say, “ Notwithstanding that we cannot deal’ with the question, we will haul you in,”’ meaning, by “you,” “any person.” Inmy opinion, ,T any person” in the sectionmeans any person whose connexion with* the dispute is not so remote as to put him> in the position of the ordinary public. The amendment is to enable us to bring in persons whose interests are such as it indicates. -The most dangerous feature of industrial trouble is what is known as thesympathetic strike. The ordinary strike to: settle a grievance can be dealt with; but: one cannot deal with a sympathetic strike, because the people in it have no dispute1with their employers in the ordinary senseof the word. The question is, “ Can they be hauled before the Court?” We want, to make it perfectly clear that they can be. I hope the honorable member will not: think the wording of the clause redundant. Evidence has shown pretty clearly lately that, owing to the President’s interpretation of the section, he was, in a manner,, handicapped. Since this is, as it were, a voluntary jurisdiction, and since there can be no better or more expeditious way of settling anything than by bringing theparties face to face, without lawyers or’ outsiders of any sort, and letting themargue it out, we ought to give them every encouragement to come together, and’ should clothe this jurisdiction with every power which the Constitution allows.
– The Attorney-General has not gathered the point I submitted. I suggested the omission of the following words - not only persons engaged in or connected with an industrial dispute, but also any person engaged in or connected with any dispute relating ‘ to industrial matters (whether extending beyond the limits of a State or not), and related in any way to an industrial dispute ; and also includes -
What is left includes all that the AttorneyGeneral is aiming at.
– I take the words in section i6a of theoriginal Act to mean what they say. The only condition precedent to the summons is that the President of the Court should” think the attendance of any person may be necessary for the purpose of preventing or settling an industrial dispute. The At- torney-General, however, takes the view that “ any person “ in that section means some person who is either a party to the dispute or connected with the dispute. If there is any ambiguity about the original section, the amendment, of course, removes it, so that really the difference between ourselves and the Attorney-General is only a matter of language, and does not amount to much as a matter of substance. I think the original section meant just as much as the amendment does. The AttorneyGeneral thinks not. If he is right then, of course, this provision, or something like it, is necessary.
– I think the AttorneyGeneral’s new proposal makes it more certain that any person may be called.
– If the AttorneyGeneral’s view of the original section is right the amendment certainly removes all difficulty.
– I think the amendment is a limitation.
– I should have thought there was no limitation about the words used.
Clause agreed to.
Clause 8 -
After section seventeen of the Principal Act the following section is inserted : - “ 17A. The Court or President may order any party to any application to pay to any other party such costs and expenses, including expenses of witnesses, as it or he thinks lit.”
.- By section 38 (i) of the principal Act, the President may award costs and expenses, but not as between solicitor and client. I am not sure whether that is qualified by this amendment. Are the costs to include counsel’s costs for the future? I merely draw attention to this as a matter of drafting, because it may be modified by the section to which I refer. The AttorneyGeneral might consider whether there should not be some limitation upon the costs. This might be prescribed by regulation, for instance. In some applications of a minor character the costs ought to be fairly small. What is generally done at present in civil proceedings is to have a scale fixed by regulation, and as such, of course, it is subject to review by Parliament. With a view to having some limitation upon the amount that may be recovered, I suggest to the Attorney-General that the words “as may be prescribed” should be inserted after the word “costs.”
Sitting suspended’ from 6.30 to y.4’5 p.m.
– If the Attorney-General will look at section 38, paragraph i, of the Act he will see that the Court, as regards every industrial dispute of which it has cognisance, has power to order any party to the dispute to pay to any other party such costs and expenses, including expenses of witnesses as are specified in the order. But it is also provided that no costs shall be allowed for any counsel, solicitor or agent. The honorable member for Angas contended that it was essential for the sake of consistency to insert certain words in proposed new section 17(a). The case would be met if the Attorney-General would agree to put in the words-
The Court or President may, subject to regulation, order any party to any application to pay costs.
– I do not think that is necessary.
– That would leave the Attorney-General with power by regulation to define a scale of costs. As the clause stands the Court would have power to grant costs for the services of any counsel, solicitor, or agent in regard to any preliminary application.
Amendment (by Mr. Hughes) agreed to -
That after the word “ fit “ the following words be inserted : - “ but so that no costs shall be allowed for the services nf any counsel, solicitor, or agent.”
Clause, as amended, agreed to. - Clause 9 -
Section nineteen of the Principal Act is amended -
by omitting the words “ in the prescribed manner ; and “ ; and () by adding at the end thereof the words “ and *” (d) All industrial disputes as to which the President has held a conference under section sixteen A of this Act, and as to which no agreement has been reached, and which the President has thereupon referred to the Court.”
.- I move -
That the following new paragraph be added : - “ (c) an organization for the purpose of this section shall include an employer in or in connexion with any industry who has in the aggregate throughout the six months prior to the submission of an industrial dispute by plaint to the Court employed not less than one hundred employes on the average per month in that industry.”
The deletion of certain words from section 4’ of the principal Act, which defines the meaning of “ industrial dispute,”’ will have the. effect of preventing individual employers from taking advantage of any protection that the Court may afford. Under section 55 of the original Act two employers may form an organization for the purpose of registration. This clause has to ‘do with persons of whom cognisance will be taken by the Court. The memorandum which has been circulated by the Government explains that the intention is that the Court shall have cognisance of all industrial disputes submitted to the Court by an organization, of industrial disputes which are certified to the Court by the Registrar as proper to be dealt with in the public interest, and of industrial disputes with which any State industrial authority, or the Governor in Council of a State, requests the Court to deal. I wish to extend the same right to an individual employer as individual employes can get through their organizations. For instance, take the case of a. firm like J. C. Hutton and Company s which carries on the business of bacon-curing in different States. It might be an utter impossibility for a firm like that to belong to an organization of employers, though it employs hundreds of hands in different States. The employes might decline to submit a case to the decision of the Arbitration Court. The employer, as an individual, would not be able to submit his case. I think that such an employer should have a right to the protection of the Court. It is to give them that right that I move the amendment.
– I am not quite clear as to the honorable member’s object in. submitting this amendment. As far as I can make out, nothing would be gained by it. A plaint can be submitted to the Court not only by an organization,” but by an employer as an individual.
– Under what section?
– Section 5 says that any association of employers in, or in connexion with any industry employing in the aggregate 100 employes may submit a case. There is nothing to stop any employer from taking advantage of that section.
– No; there has to be an association of employers.
– Does the honorable member mean to say that there is anything in the Act to prevent one individual employer from registering?
– Is there anything in the Act which authorizes him to register?
– I do not know that there is, but what is to stop him ? ‘ I do not think there is anything. What particular object is the honorable member endeavouring to attain?
– - What the honorable member for Moreton says is that there is no provision to enable a single employer, who may have a dispute with his employes, to register as an organization, and submit his plaint to the Court. The honorable member points out that section 55 provides for the registration of an association, but that there is no provision to enable one person w”ho employs a large number of individuals to register, and to come under the cognisance of the Court by filing a plaint. The definition of “ industrial dispute,” which has been struck out, covered any dispute as to an industrial matter arising between an employer and an organization of employes. That contemplated a dispute between employes and one employer. The honorable member wants an employer who does not belong’ to an association to be able to go before the Court with his plaint. What the honorable member is asking the Attorney-General to do is, I take it, to look into the matter, and to give. an individual employer the same right as an association of employers has. It seems fair that it should be given. Under section 19 of the Act, the Court is to have jurisdiction over industrial disputes sent before it by the Registrar, industrial disputes brought by an organization on a plaint, industrial disputes referred to the Court, and then compulsory matters.
– The honorable member for Moreton does not want to make an individual employer an organization.
– No ; the honorable member only wants an individual employer to have the right to go before the Court.
– Why make an exception of that one employer?
– He is made an exception of. If three individuals happen to employ 100 men, they can get their plaint before the Court, and their case can be heard. But if one individual happens to employ 100,000 men, then, according to the suggestion made by the honorable member for Moreton, he is excluded from the jurisdiction of the Court.
– Not necessarily.
– The honorable member is right. An individual employer is not excluded from the jurisdiction of the
Court, but he cannot be a plaintiff in the Court.
– If the Registrar certifies that it is an industrial dispute, he can be a plaintiff.
–Quite so ; if two persons could come and could get the case brought before the Court but, being only one person, the employer cannot do so. It is fair to ask that if one employer who is carrying on an industry in several States fulfils all the conditions, and there is an industrial dispute - the evil with which we want to grapple - he shall have the right to file a plaint and go before the Court. If the Attorney-General will look at section 19, he will see that the Court has cognisance of industrial disputes which are submitted to the Court by an organization by a plaint. But if he will look at the definition of “ organization “ in section 4, he will find that it means an organization registered under the Act. What is such an organization? It is an association of employers, and not one individual employer. Perhaps the Attorney-General will promise to consider the amendment if he cannot see his way to accept it, because, in my opinion, this is a necessary power to take in the measure.
– I see now the point of the honorable member for Moreton. I think that if an amendment has to be made, it should be in section 55 of the Act by striking out the word “ associations “ in sub-section r, which would then read - Any of the following may on compliance with the prescribed conditions be registered in the manner prescribed as an organization - and inserting as a new sub-section these words - “ Any person employing 100 employes.” If the honorable member will not press his amendment here, I shall give him an opportunity, if I do not agree with him., to test the feeling of the Committee on section 55, which, in my opinion, is the proper place to put it in. I want to look into the amendment to see that, if made, it will not be superfluous; otherwise, I shall be very glad to agree to it. ‘
.- I accept the assurance of the AttorneyGeneral that he will give us another opportunity of considering this matter, and beg leave to withdraw the amendment. I would ask the honorable and learned gentleman to look at section 19 of the principal Act, and consider whether the amendment will not fit in there, seeing that that section deals with persons whom the Court recognises as having the right to bring a dispute before it..
Amendment, by leave, withdrawn.
Mr. GLYNN (Angas; [8.6].- There is no doubt that a very wide power is taken in proposed new paragraph d of section 19, but I do not feel inclined to object to it It provides that wherever the President has held a conference, he may send the matter on to the Court. I think that we have forgotten this fact, that since paragraphs a, b, and c of the section were drafted in 1904, we have extended the definition of “industrial dispute” to cover threatened or probable disputes, so thai now if there is merely a probability of a dispute and a conference is held by the President, he can send that on for investigation at once, as if it were an ordinary dispute. This is a very wide power to give; but personally, I do not see how one can reasonably object to allow the President to do what a State authority can do. The widening of the definition also affects the earlier sub-sections.
Clause agreed to.
Mr. HUGHES (West Sydney- AttorneyGeneral) T8.7l. - Of course, this provision will not give to the President the power to deal with disputes outside the Act. It will only enable him to bring within section 19, as it were, disputes which would otherwise have to be referred in one of several ways indicated therein.
– The clause has been carried as printed.
– I thought that we were still on the clause.
– If it is the desire of the Committee, I shall put the clause again.
– There art one or two dif ficulties in connexion with the clause that I wished to point out.
Clause ro -
Section twenty-one of the Principal Act is amended by omitting the words “ that any dispute relating to industrial matters is “ and inserting in their stead the words “ that a specified industrial dispute exists and is.”
.- I. do not know whether the Attorney-General has clearly in his mind the extent to which the Registrar’s power is to go. Certainly, this clause will make rather a serious innovation. Section 2r, as proposed to be amended, will read - .
A certificate by the Registrar that a specified industrial dispute exists and is an industrial dispute extending beyond the limits of any one State shall be prime facie evidence that the fact is as slated.
The Registrar’s functions are already considerable, are rapidly extending, and cover a great many matters. This clause deals with a most important matter. The Registrar may inform himself with great pains and particularity. He may not have the means to inform himself, and yet his certificate is to suffice. It may be ex parte. I presume that the Attorney-General has a special reason for vesting this exceptional power in the Registrar.
– If the honorable and learned gentleman will look at the judgment in the Engine-drivers’ case, he will see why this amendment has been proposed. On page 285 of the Argus Law Reports we read-
The Registrar’s certificate that any dispute is an industrial dispute extending beyond the limits of any one State is an evidence that an industrial dispute is in existence.
Section 21 cf the Act reads -
A certificate by the Registrar that any dispute relating to industrial matters is an industrial dispute extending beyond the limits of any one State shall be -prima facie evidence that the fact is as stated.
The Court strictly defined the power of the Registrar in this direction, and by no statement, evidence, or act of the Registrar could a dispute which was not an industrial dispute be made one. The object of this clause is to take a power with which the Registrar can be properly clothed.
.- There is no doubt that under section 21, as proposed to be amended, the Registrar’s position will be a very important one. He will have to decide on some facts as to whether a dispute exists or not. At present, as a rule, a certificate would only be given In cases where no other evidence at the time was available and the fact was notorious. But surely the same rule would not apply to the extension of the dispute; in other words, that where no evidence was available, a certificate could be given of the existence as well as the extension of the dispute. We must assume that the Registrar will go on some facts which will justify a prima facie impression. If such is the case, considering the extent to which the work of the Court is developing, he will have very important and responsible duties to discharge. In the circumstances, it might be well to consider what his position is to be in the future. At present he is an officer of the High Court, and simply holds the subordinate office of Industrial Registrar. That has, I think, been his position from the start. When I looked into his position some twelve months ago, it struck me that if the work of the Court had to be increased, we ought to think of appointing this officer straight out as the Industrial Registrar, at a salary corresponding with the great responsibilities and increased duties cast upon him. I have incidentally referred to the matter now because I have observed that on the Estimates a sum of ^600 is allotted for the position. I suppose that the Attorney-General intends to at once appoint an Industrial Registrar, perhaps to attend to these duties only, whose salary and position will approximately correspond with his responsibilities. But even then he will be below the status of similar officers in the States.
– I am glad to emphasize from this side of the House what has been said by the honorable member for Angas with regard to the increased powers, and the vastly increased duties, which will, in the future, fall on the Registrar in respect of, and irrespective of, this Bill. I express the strong hope, following the lead of the honorable member for Angas, that the position will be classified, and the salary made commensurate with the work to be performed. We have the anomaly that in New South Wales the Deputy Industrial Registrar is a public officer, receiving a much larger salary than his principal at the Seat of Government, and I hope ad vantage will be taken of this Bill to have the salary fixed by the Governor-General in Council.
– I think there is ££00 on the Estimates for the Registrar.
– There are two sums, one of ,-£410, and another of ^600, and, though I am not quite sure what the duplication means, I am afraid that the sum allotted to this officer may prove to be £410
Clause agreed to.
Clauses 11 and 12 agreed to.
Clause 13 (Awards and orders not to be challenged).
.- Has the Attorney-General anything further to say in regard to this clause? Does he still propose to retain it as affecting prohibition and mandamus?
– We are still standing to this proposal.
– And in this form?
– Yes, and in this form. Under section 31 of the Act, an effort was made to discourage litigation, and reach a conclusion as speedily as possible, making the decisions of the Court final. That, of course, has been a vain hope. I do not suppose that any Act has led to more litigation, with more decisions upset. It is clearly inseparable from the Constitution, as it now stands, that there should be this clashing of jurisdiction. We have not the power to make this Court final in the sense that the Parliament of England, the Parliament of “New South Wales, or the Parliament of “Victoria would have in respect of such a Court. But where we have the power to create a Court whose award shall be final, we propose to make this amendment so that neither by writ of prohibition nor by mandamus can decisions be quashed or called in question. There are two possible errors into which the Court may fall. It may fall into the error of excess of jurisdiction, owing to some limitation imposed by the Constitution, in which case nothing that we can do can help the situation - it is a fatal error. Then the Court may fall into the error of excess of statutory power, where we have not given some power we could have given if we had thought fit, or did not do all we intended to do. The Court will, of course, bring to the consideration of questions, in its jurisdiction, that judicial care that is the practice of judicial bodies ; and it has to be the final Court to decide whether it has exceeded its jurisdiction, where, and only where, it is in excess of the statutory power which this Legislature could have conferred on it, but did not - and that, whether we intended to do so, and did not, or whether we did not even intend to do so, provided we had the power to do it. In the State of New South Wales, the Courts have been clothed with power to make a final decision which cannot be disturbed by any Court; and we propose to do that here, so that a decision cannot be upset on a mere technicality. Nobody here, or outside, desires eternal litigation on mere technical points. The Engine-drivers’ case is one in point. If the Court had had the power to make a decision that could not be upset by any writ of prohibition, its decision would have stood despite the fact that the Statute did not confer the power on the Court to do this thing. The Court gave its decision, believing it had the power ; and, therefore, since, of all the cases that have come before the Court, at least half have been upset, owing to errors created by the shortcomings of the Statute, we propose to cure these errors once for all. This is done in a fashion which will commend itself, I am sure, to every reasonable and sensible person. The Justice of the High Court who is now acting as President of the Conciliation and Arbitration Court is one of those men who would have to decide in any case how far he should go, or howfar he should not go, in any particular. Behind every human system is one man : after all, there comes a point where we must say, “ That is the man to decide. “ We may say that we will appeal to a man who sils with two or three others; but behind every system’ is a man. It is merely a question where we shall stop ; and we propose to stop as the clause provides, believing that this will discourage litigation, and tend to the speedy settlement of differences. I say, emphatically, that this provision will make the Court extremely careful in what’ it does, considering that on its shoulders will rest the final settlement. For the rea-: sons I have given, and for others that are obvious, I hope the Committee will accept the clause.
.- Our point - which I think the Attorney-General will .not see, for I feel convinced that he can - is simply that the intention which he has now announced to make the Court absolute master in its own domain always was’ the intention, and is the intention still. . Why does the honorable member persist in framing his clause in such a way as to’ suggest that the idea is, not only to make the Court master in its own domain, but to make it what it can never be, the judge as to whether it has exceeded its own domain or not? Why will he not express himself in the clause in such terms as to put the meaning beyond dispute? The manner in which prohibition is aimed at, and the way in which the whole clause reads, undeniably conveys the contrary impression. The whole of this argument on the second reading turned on this one. point. There was no dispute as to any of the essentials, or as to the wish to set the Court free in its own domain ; and, finally, there was no denial on the part of the Attorney-General of the fact that there must be an appeal elsewhere when the Court exceeds its jurisdiction under the Constitution. Why not, then, use such terms as will leave the clause unambiguousand perfectly clear?
– I venture to say that the matter is perfectly clear and unambiguous now. The High Court has, in this and in very many other cases, sufficiently emphasized the fact, so that any man, even if pachydermatous - even if he had an elephantine hide, twice reinforced - would have been pierced by the shafts of Judicial wit long ago. ‘ But while it is perfectly true that the High Court will inquire into every case of alleged excess of jurisdiction, it can quash an award, either by writ of prohibition, or in any other way, only when that excess of jurisdiction is an excess of the constitutional limitation. If we. put that in plain black and white it would- well, I do not know whether it would- humiliate us, or whether the meaning is so obvious that nothing could reduce us any lower. It is perfectly clear, however, on the face of the statement I have now made, to what extent we desire to go, and obviously can go; and I think that nothing further remains to be said.
.- I do not think the Attorney-General is altogether correct when he says that if this amendment had been made previously in the Act, the Engine-drivers’ case would never Have come on - that that organization would not have been affected. That case was- not brought up on a writ of prohibition, but on a case stated, which we do not touch. The only redeeming feature of the amendment appears to be that we leave the President power, on application, to submit points of law on a case stated. We are now really leaving it to the President to determine in every case, not only whether an award is to be made and is valid within the Constitution, but to make an order which is a much more extensive thing. If the President’s decision is final on every point of law, so long as he proceeds, and We have proceeded, within the Constitution, he may still, if he chooses, send on doubtful points of construction, either of the Constitution or of the Act. I do not wish to object to the proposal as a matter of policy, because there is something to be said for it. “ Mr. Roberts. - It is practically the procedure in the case of the South Australian Industrial Court.
– Yes, and it is the recent procedure in New South Wales j and, doubtless, the President, in similar cases toT -those I have indicated, will exercise his. discretion.
– The Attorney-General has removed some: difficulty by the distinction which hevery properly drew between cases in which there is what is called an excess of statutory jurisdiction, and those in which there is an excess of constitutional jurisdiction. The first cases, as honorablemembers will know, are those where vehave the power to make a law, but havenot exercised that power to the full extent. The second is where the law, whichis disputed, is challenged on the ground that this Parliament has no power to make it. With regard to the latter, I understood that the intention of the AttorneyGeneral in introducing this Bill,, and that was the conclusion I derivedfrom his speech on the second reading, wasto do away with the power of the HighCourt to challenge awards on any ground: whatever. - Mr. Archibald. - He could not do. that..
– He could not do that, but I understood that that was oneof the objects of the measure. Now the honorable and learned gentleman points out,, very properly, that, with regard to challenging awards or orders of the Court onconstitutional grounds, we have no powerto do that. He goes on, however, to saythat this will have an effect in enlarging, the power of the Court with regard tomatters which the Statute we are dealing; with does not give the Court, but which this Parliament could, if it chose, give theCourt. I feel some considerable doubt about that, for reasons which I will state. The genera] principle on which the Court - not merely in certain cases in the High ‘ Court, but in a number of ‘ decisions in: England - has acted, is that no statutory’ provision can take away the right to prohibit an inferior Court from exceeding itsjurisdiction. It is very doubtful whether it admits of the distinction the AttorneyGeneral proposes. In a recent case, Whybrow’s case, known as “ The Boot Case,”’ the Court was unanimous in holding that the provision that no award of the Court should be challenged, quashed, or appealed.’ against, or questioned on any account whatsoever, did not prevent a prohibition being granted, on the ground that the Court had exceeded its jurisdiction. I have the judgment here, and none of the Judges, made any distinction between an excess of jurisdiction, so far as the constitutional’ power of Parliament is concerned, and. anexcess of jurisdiction so far as that giver’ to the Court by the Statute is concerned. In all the cases the ground was the same, the question asked being, “ Was there an excess of jurisdiction or not?” At page 21 of the second volume of *Commonwealth Law Reports, it will be found that the Chief Justice pointed out that no Act of Parliament can take away from the High Court the right, by prohibition, to decide whether an inferior Federal Court had exceeded its jurisdiction. Whether that jurisdiction was exceeded by going beyond the Act, or did not exist because the Act was not within the constitutional powers of Parliament, was a distinction that was not made in the judgment. The Chief Justice said -
Before dealing with the important question of law, raised in this case I will dispose of the preliminary objection taken by Mr. Arthur that prohibition does not lie to the Commonwealth Court of Conciliation and Arbitration. The objection is based on two grounds. First, it is said that a prohibition is within the language of section 31 of the Commonwealth Conciliation and Arbitration Act 1904, which enacts that “.No award of the Court shall be challenged, appealed against, reviewed, quashed, or called in .question in any other Court on any account whatsoever.” In Clancy’s case (1) This Court had to deal with same point raised upon identical words in the New South Wales Industrial Arbitration Act of 1901, and we held, in accordance with a uniform line of English decisions, that such an enactment does not extend to cases in which a’ Court of limited jurisdiction has exceeded its jurisdiction.
A Court of limited jurisdiction might exceed its jurisdiction by going beyond the authority vested in it by a competent Parliament, or by attempting to pursue an authority purported to be vested in it by an incompetent Parliament. In each case there might be excess of jurisdiction. Mr. Justice Barton and Mr. Justice O’Connor expressed the same view in practically similar words. Mr. Justice Barton said -
I agree that prohibition as distinct from ordinary appeal lies to this Court in respect of decisions in excess of jurisdiction pronounced by an inferior Federal Court, including the Arbitration Court.
Mr. Justice Isaacs differed in one respect in regard to the nature of the prohibition. He held that this Parliament could, by appropriate words, divest the High Court of the power to issue a prohibition in a case of that kind, but that it had not in fact done so. The majority of the Court, three Justices, held that the right of prohibition could not be taken away from the High Court with regard to any excess of jurisdiction by the Arbitration Court, or any inferior Federal Court. What were j 1 the reasons ? They were twofold. First, with regard to the power that the High Court has to prohibit any Court from exercising jurisdiction in excess on the ground that the Act under which it is constituted is unconstitutional, a majority of the Court held that that was necessarily inherent in the High Court.
– In the judicial power?
– Yes. Honorable members will see why. In every case where we have a twofold sovereignty divided between Federal and State Parliaments, that is to say, in every Federation, we must have a line of demarcation between the Federal and State authorities. We have two bodies to deal with, and where one trespasses upon the field of another, and does an act, it is as if it were not done. We must, in such a case, have some judicial authority to say whether it is the law or not. That is an inherent power. With regard to constitutional questions, there must, therefore, be an inherent right in the High Court, as being vested with the Federal jurisdiction of the Commonwealth, to determine that point in the long run. But the Justices went on to decide that that power is given by the Constitution, and not merely by necessary implication, but expressly, in section 75. That section of the Constitution, amongst other things, provides that -
In all matters -
The right, therefore, to issue a prohibition to an inferior Court is a power vested in the High Court by the Constitution. Honorable members know that if this, power, vested in the High Court by the Constitution, is not expressly stated by the Constitution to be subject to the power of Parliament, it is absolutely vested in the High Court, and is not subject to the power of Parliament.
– Is it not rather an anomaly that Parliament should have no power at all?
– Parliament has complete and unlimited power within the . range of its own authority. There is nothing to control it. The High Court cannot control it. No one can control Parliament acting within the range of its own authority. But where it purports to act outside the range of its own authority, it does not act, and some tribunal has to determine that that is so. For that purpose, it has been held that the Constitution itself gives the High Court the right to issue a prohibition. The other question is whether that right to issue a prohibition which the Constitution gives the High Court applies to the second case referred to, where a question of excess of statutory jurisdiction arises. This point has not been expressly decided. Whilst admitting that the second proposition which the AttorneyGeneral puts forward has not yet been the subject of any decision, there are certain reasons why I venture to express a doubt as to his proposition. It is as to whether, assuming the Act to be constitutional, but assuming that the President of the Court has gone beyond the statutory powers, this taking away of the right of prohibition will have any effect. The AttorneyGeneral says that in such a case it will. I am not going to say that it will not, but I shall give some reasons why I think it is very doubtful indeed. In the Boot case, to which I have referred, the Judges pointed out that the Act purported to take away the right of the High Court to issue a prohibition against an order made in excess of jurisdiction by an inferior Court, but the Judges made no distinction between an excess of statutory, and an excess of constitutional jurisdiction. They based their decision upon a previous decision of the Court in Clancy’s case in New South Wales. When we look at Clancy’s case, we find that there was no question there of excess of legislative jurisdiction, because it was under an Act of the Parliament of New South Wales, and that Parliament had no such limits as we have. The Parliament of New South Wales had passed an Arbitration Act, had created an Arbitration Court, and had provided in just the same terms that awards or decrees of that Arbitration Court should not be called in question at all in any Court.
– Were the words “prohibition” and “mandamus” mentioned in the New South Wales Act? What was the date of the Clancy case?
– It was decided in 1904. The words of the Act were -
A proceeding in the Court shall not be removable to any other Court by certiorari or otherwise, and no award or proceeding of the Court shall be vitiated by reason of any informality or want of form, or be liable to be challenged, appealed against, quashed, or called in question by any Court whatsoever.
The word “ prohibition “ would add nothing to that. The words of the section, as I have quoted it, are absolute, and are absolutely general.
– Subsequent to that the Legislature made an amendment by which prohibition, mandamus, and certiorari were inserted.
– I do not think that that provision has ever come before the Court.
– Not before the High Court ; but it came before the Supreme Court of New South Wales.
– I do not know the case. The words in the Act. and in the New South Wales Act, are wide enough to cover prohibition, injunction, mandamus, or any other like procedure, the phrase “ liable to be quashed “ embracing every means of putting an end to a degree for which there is not jurisdiction. The question in Clancy’s case was not whether those words were sufficiently wide, but whether they could give the effect intended, and take jurisdiction away from the Supreme Court. The question was not whether they did nominally take away jurisdiction, but whether they could actually do so. The High Court held that they could not, because it was not possible to take from that Court the power to determine whether the decrees of an inferior Court were in excess of jurisdiction. On page 197 of the report, it is laid down by the Chief Justice that -
To hold in the face of these provisions that section 32 prevents the Supreme Court from checking any excess of jurisdiction would be in effect to give the inferior court unlimited jurisdiction. For this reason I have no doubt the Supreme Court had jurisdiction to grant a prohibition.
It is extremely difficult to put forward adequately on the floor of this Chamber arguments dealing with difficult legal questions ; but I venture to assert that the use of the word “prohibition” will have no effect whatever if a constitutional objection is taken, and if the objection is taken that the Court has exceeded its statutory jurisdiction, the decisions in Clancy’s case and the Bootmakers’ case also seem to make it clear that it will have no effect. The point itself has never been actually decided, but it is a pity to make it appear to the public that we are attempting to curb or limit the jurisdiction of the High Court to control inferior Courts in the exercise of their jurisdiction. We profess to give the Arbitration Court limited jurisdiction. Is it wise to create -a Court of limited and inferior jurisdiction, and by an indirect and irregular method to, in effect, give it unlimited jurisdiction? Parliament ought to define the jurisdiction of every Court that it creates, making that jurisdiction as wide as may be necessary for the purposes of the Court. Although the jurisdiction given to the Arbitration Court is a wide one, we have imposed limits on it ; but if we take away from the only Court that can review its decisions the power to do so - assuming that to be constitutionally possible - we in effect give the Arbitration Court unlimited jurisdiction. While we nominally hedge the Arbitration Court with statutory conditions and limitations, we really make it the Judge of its own jurisdiction. ls that a wise thing to do? Honorable members should certainly understand that that is the meaning of what is proposed. Either the legislation which we are now considering will have no effect, or it will have this effect : that, while we nominally impose on the Court of Arbitration certain restrictions and limitations, we say to it, “ We have defined the ambit of your jurisdiction, but if you go beyond it, there is no one to question your right to do so.” I think that an unwise way to legislate. However wide the jurisdiction of a Court, it should be confined within that jurisdiction. To say to a Court, “ You have a certain jurisdiction, and as much more as you choose to take, because there is no one to question the exercise of your powers,” is to take a course which has rarely been taken, and, in taking it, Parliament abdicates its function as a Legislature in favour of the Court which it creates.
– Would not that contention apply to any law limiting the right to appeal ?
– No ; because, as I have pointed out. all laws which attempt to take away the power of the highest tribunal in the land, whatever it may be, to determine whether inferior tribunals have gone beyond their jurisdiction, have no effect. That has been held in Clancy’s case, following a large number of English decisions.
– The South Australian Industrial Court is final in all its decisions and orders.
– It is quite another thing to make the decisions of a Court final. That may be a very wise course to take, especially in regard to a tribunal like an Arbitration Court, which is not concerned with legal technicalities, and has to deal with a lot of matters which are not proper subjects of regular judicial decisions. It may be wise to say of such a Court, “ We are not going to allow its decisions to be questioned, either on the ground that the Court was in error as to the facts, or that it was in error as to law.” That is a different thing from saying, “ We are going to allow the Court, not merely to be final in decisions within its own range of jurisdiction, but to determine what its own range of jurisdiction is, without’ appeal. That is the effect of what the Attorney-General proposes to do. We, on this side, cannot complain that our arguments are not listened to. Honorable gentlemen opposite extend to us that courtesy, but I am afraid that they are not prepared to go further, and our duty is done when we have pointed out these objections.
Clause agreed to.
Clause 14 agreed to.
Clause 15 -
Section thirty-eight B of the Principal Act is amended by inserting after the words “ industrial dispute “ the words “ or to the demands made by the parties in the course of the dispute.”
Amendment (by Mr. Hughes) agreed to -
That after the word “ amended,” line 2, the letter (a) be inserted.
.- I again call the attention of the AttorneyGeneral to the significance of the words “or to the demands made by the parties in the course of the dispute.” The honorable member for Darling Downs pointed out that the phrase altogether eliminates the judicial element of the proceedings, by allowing entirely unexpected claims or demands to be made during the hearing involving heavy costs without the opportunity for full inquiry, or preparation of a complete defence, and to the embarrassment of the Court by the multiplication of unexpected issues. This objection, though stated with great clearness and force, seems to have made no impression on the AttorneyGeneral, and I therefore feel it my duty to once more remind him how enormously this provision may add to the cost of proceedings, by protracting them, inviting decisions upon questions which ought to have been intimated from the outset, and presented with opportunity for full examination by all concerned.
.- I should like the Attorney-General to explain the purposes underlying the clause. As a rule, if a case comes before a Court on a plaint, the issues are submitted, and the party who has to answer knows exactly the nature of the case that has to be dealt with, and the evidence that can be called. The clause is a further extension of 38B, and its effect is to provide that, after a plaint has been submitted, the Court, in making an award or order, shall not be restricted to the specific relief claimed by the parties, or to the demands made in the course of the dispute, but may include any matter or thing which it thinks necessary or expedient for the purpose of preventing or settling a dispute. How do these matters come before the Court? First of all, they come before it by virtue of the plaint, which is filed, and secondly, by virtue of a claim made during the hearing of a case while the parties are there, and the evidence can be called. We are now going a step further and declaring that the Court is not to be limited either to the demands made in the original plaint, or to those made by the parties during the hearing of a case, but that the Judge may go further and say, “ I am going to decide something else which, in my opinion, is necessary to settle this dispute.” What is that “ something else “ to be? It must be something that is going to affect the rights of the parties on one side, or the other, because it may be included in the award. It must mean either that some one is going to get less by the order of the Court, that some one is to fulfil conditions that he may not care about, or that the employer is to do something. All these matters will apply to both sides, and there is an element of danger in allowing something to be included in an award which has not been raised by the plaint or by the parties during the hearing of a case. I should like the Attorney-General to give an explanation of the particular circumstances which necessitate such a wide power being conferred. I see no objection to the Judge dealing with all the matters in a plaint, or with anything that may arise during the hearing of a dispute. For instance, additional matters may arise during a hearing, and the plaint can be amended to meet them.- I believe it is right to provide for such a thing as that. We are considering this question in the same way as we should consider the powers and jurisdiction of the High Court, and want this Court to have every elasticity arid power to deal with anything that may arise during a hearing. Thisprovision, however, goes very much further, and I should like the AttorneyGeneral to explain what hardship has arisen to* necessitate it.
– It is well knownthat the causes of industrial disputes arenot always those that lie upon the surface, and., also, that the parties to a dispute donot always understand the causes of economic disturbances. A body of men, employers or employes, might come before theCourt, might state their differences, and believe that the settlement of those differences would promote industrial peace, whereasthey might promote industrial war. If an intelligent impartial man, with a judicialframe of mind, listening to all the evidence, sees clearly that the parties have not touched the master-key, and that, unless itis touched, they will be at loggerheadsagain, is he not to have power to do anything? Is he simply to have power to patch up the trouble, and send the parties: out in a way that will invite fresh disturbance? In the Broken Hill case His Honour went outside the plaint. He foundit necessary to do so, and the High Court: pulled him up.
– But that was in respect of matters that arose during the hearing of the case, and with which the parties could’ deal. I do not object to that; it is quiteright.
– Of course it is right,, and there are cases where the Court itself sees in the course of the hearing matters, that come within its jurisdiction, and ought, to be settled. The President of the Court is there to settle the disputes brought before him, and to prevent the occurrence of others. I think this is perfectly fair. When we were-talking about extending preference to unionists we were told that we were limiting the judicial discretion of the Judge,_ and rendering his office, a merely quasi judicial one. What we propose now to do is to give him power to settle anything that he may think is outside the plaint, although clearly inside the dispute.
– There ought to be some elasticity in a Court like this to settle disputes and to prevent them arising, but it occurs to. me that this clause goes very much further. It gives the parties to a dispute the right to ask the Judge to legislate concerning matters as to which they may have- been disappointed elsewhere. For instance, -in an Inter- State mining dispute I take it that it would be quite competent for the President of the Court to say that an eight hours, from bank to bank, rule should apply -to the industry, and be a condition necessary to the insurement of peace. In that way be could do things which a State Government has from time to time refused to do. The point is, not whether they are right or wrong,’ but whether the Judge ought to be given such powers as will enable him to undermine the legislation of the various States. That seems to me to be the most’ important aspect of the question. I agree that the Judge should have large powers -and great latitude in regard to anything affecting the dispute that has to be settled, but in this provision there are no words of limitation. Under it the President of the Court is not tied up by any plaint, nor by the demands of the parties, but anything <that they may choose to bring in while a dispute is in process is a subject upon which he may give a decision. This may lead to his abrogating or setting aside all the provisions of State regulative Statutes. 1 suggest to the Attorney-General that he -is likely to come into conflict with the High Court once more over such a provision as this, although I am beginning to doubt whether he cares very much about that. AH’ this will make an admirable argument for the honorable member and -his party at the next elections, but I hope it will go on record that ihe did not ask the Committee to pass this provision without knowing the facts of the case. It is our duty to point them out as they occur to us, and I should strongly advise my honorable friend, if he wants this measure to stand, to place some limitation on this clause. It cannot be right that the President of the Court should have power to undermine State laws -and to set them aside altogether for the purpose of making an award of this kind.
Amendment (by Mr. Hughes) agreed to-
That after the word “dispute,” line 4, the following words be added, “ and (i) by adding :at the end of the section the words ‘ or of preventing further industrial disputes.’ “
Clause, as amended, agreed to.
Clause .16 (Board of Reference). Mr. GROOM (Darling Downs) [9.11].- Under this clause it is proposed, inter alia, to. amend section 40A of the principal ;Act by inserting after the word “ fixing “ the word.” determining “ so that the Court hy its award may assign to the Board of
Reference the function of allowing the fixing, “ determining,” or dealing with any specified matters which under the award require to be “ determined.” Will the AttorneyGeneral tell us what is his object in inserting the word “determining.” Is it intended to give the Board of Reference a sort of delegated power of adjudication so as to make it a kind of Board of Decision ?
– At present a Board of Reference can only be appointed by the Court. This clause enables the Court to provide for its appointment by the parties or otherwise, and the word “ determining “ will not confer upon these Boards any subordinate legislative powers. The Court has not those powers, and therefore cannot delegate them. The word “ determining “ is to be understood quite apart from the meaning attached to it in connexion with Wages Boards, where it is used as synonymous with the decision of a Judicial Court, or as meaning a statutory declaration of conditions and rates of pay in a trade.
– Do I understand from the Attorney-General that the Boards of Reference appointed by the Judge will have no power to make final determinations, but will only have power to make recommendations to the Judge or to carry out some instruction given by him ?
– Certainly. That was not the point raised by the honorable member for Darling Downs. The word “ determination “ since the establishment of Wages Boards has attained quite a distinct meaning. The determination of a Wages Board is a kind’ of judgment or decision, because it has been held that Wages Boards are subordinate legislative bodies, and that within the ambit of their authority they are sovereign. They can make laws that our Legislature cannot make. These Boards of Reference cannot exercise the same power;
– What does “ determining “ mean?
– There may be an award, and the award of the Court is the ambit of the jurisdiction of these Boards. Under it they are able to carry out this or that.
– Still, there will always be a question as to what the award is. Are they to determine that?
– They go inside that. Mr. JOSEPH. COOK (Parramatta) award made by the President of the Court, there is nearly always certain to be a dispute as to what is the particular meaning of the award. It is in that connexion that nearly all the troubles of to-day arise. The masters interpret an award in one way and the men in another. In other words, most of the disputes arise from the “ policing “ of these awards and the carrying of them into effect. Is the Board of Reference the final judge in all these matters, or will there be a right of appeal from the Board back to the Judge?
– It all depends what the Board are doing. I could not say, unless I had a concrete case, whether or not there would be an appeal to the Court itself or to the Registrar. In a case where the Judge has the right to make a final decision, and does so, he may confer his power upon the Board, and in that case I do not see that there would be any appeal.
– In that case, the honorable member is actually restricting the rights of the parties to the dispute, because now, when there is any trouble in regard to the decision of a Judge, they may always refer the matter back to the Judge, and get from him a statement of what he actually meant in the award. This is a very important point, because nothing leads to so much trouble to-day as the understanding of the awards that have been made.
– I could say better if the honorable member would give me one case.
– Supposing we had a mining dispute determined by the Judge, and the question arose as to what payments should be made for working deficient places. Would the Board have the final say as to what the Judge meant on that point? That is a case arising almost every day in the Hunter district. If the Attorney-General means that the Board of Reference shall have the final determination in these matters, he will very quickly find that he is in for trouble.
– Suppose, in a mining award, the question of payment for dirt arose, and three men were appointed on each side to determine whether the dirt ought to be paid for at certain rates. Whether or not an appeal could be made under the award of the Judge from the decision of that Board of Reference would not be material, because, whichever party would not agree to the award would have to come before the Court as the result of an application by the other party for penalties under the award. By that means the matter would come before the Court, and be determined bv the President or the Registrar, as the case mav be.
Clause agreed to.
Clause 17 -
The Principal Act is amended by inserting,, after section fifty-eight, the following section : - “ 58A. An organization may, in the prescribed manner, and on compliance with the prescribed* conditions, change its name.”
Amendment (by Mr. Hughes) proposed -
That the following words be added : - “ and’ the Registrar shall thereupon record the changeof name in the register and upon the certificateof registration.”
– The amendment makes it obligatory upon the Registrar to record the change of name. Should that be done. Where a union or organization is registered in a certain name,, and another organization applies for thesame name, has any provision been madefor the Registrar to settle such a conflict?
– I do not think it ismandatory on the Registrar to register the change of name, unless the necessary conditions have been fulfilled. The “ prescribed’ conditions “ mentioned in the clause will provide for the point raised bv the honorable member.
Amendment agreed to.
Clause, as amended, agreed to.
Section sixty of the Principal Act is amended - (a) by omitting the words “ appears to the Registrar,” and inserting in their stead the words “ appears to the-
Court, on the application of any organization or person interested “ ;
Amendment (by Mr. Hughes) agreed’ to-
That after the word “ interested “ the words- “ or of the Registrar “ be added.
– I move -
That the following words be added : - (aa) by inserting the following subsection :’ - ” (cc) that the rules or objects of a registered organization imposepolitical conditions or include political aims or require its members to contribute to political’ funds; or to support political candidates; or subscribe to political newspapers.”
The object of this amendment is to serve the same purpose as the provision which was inserted in section 55 of the original Conciliation and Arbitration Act, as follows -
Any of the following associations may, on compliance with the prescribed conditions, be registered in the manner prescribed as an organization.
Provided that no such organization shall be entitled to any declaration of preference by the Court when and so long as its rules or other binding decisions permit the application of its funds to political purposes, or require its members to do anything of a political character.
And further provided that no organization shall be entitled to appear before the Court to oppose an application for preference by any organization so long as its rules or other binding decisions permit the application of its funds to political purposes, or require its members to do anything of a political character.
This is. or purports to be, an industrial Bill, and takes no apparent cognizance of political organizations. There are, however, many organizations which, while ostensibly industrial, are much more political than industrial in their character. It was recognition of this fact by Mr. J. C. Watson, the ex-leader of. the Labour party, and by other members of the same party, that led to the decision of the House to exclude from participation in the benefits of this particular class of legislation those organizations which had political aims, or whose funds were used for political purposes. At a later period, however, that very wise provision was knocked out of the original Act. I desire to restore it in another form, so that the Court itself may have the power to cancel the registration of an organization when it is shown that its funds are used for political purposes, that its members are required to subscribe to certain” political conditions or platforms, that its aims are political, or that its members are required to sacrifice their freedom of conscience and free will, and bind themselves to support political candidates of any special colour, or to subscribe to funds for the purpose of furthering political organization, or to subscribe to newspapers which have for their object propaganda work in connexion with the party organization.
– Why not add to that “or if any of its members are seen talking to Labour politicians?”
– I do not propose to add anything in the nature of what the Honorary Minister suggests. I want the public in general to know it if these- organizations are created, or their funds are used, for political purposes, under the guise of industrial aims. If these are political organizations they should come out into the light of day as such, and should not be made the subject of this paternal legislation. I might give a number of cases in which persons, on joining unions, were bound’ hand and foot to do certain things of a political character, quite irrespective of whether those things were in conformity with their political views. They bound themselves to support candidates for Parliament who might or might not hold views entirely opposite to theirs. They had to give up control over their consciences ; in fact, they gave themselves body and soul into the hands of the unions.
– What industrial organizations asked their members to do that?
– I have just said that I do not want to go into such particulars, but I can do so if the honorable member desires me.
– I should like to know.
– To save time, I refer the honorable member to speeches by Mr. T- C. Watson and the honorable member for Darling. Furthermore, honorable members opposite, when the original Arbitration Bill was being considered, in the year 1904, expressed such views.
– Is the Australian Workers Union one of those organizations?
– It is one of them. The Australian Workers Union was very much in evidence on that occasion. Case after case was cited to show that this sort of thing was done, and that all kinds of practices were resorted to by certain organizations, with the concurrence of the then Leader of the Labour party, supported by other leading members of the party ; as a consequence of which a clause was inserted ‘in the Bill which afterwards became law to exclude organizations which resorted to such practices from participation in the benefits of the measure.
– It is a source of satisfaction and pleasure to me to welcome a little effort of this sort which; we had thought that circumstances had so utterly demolished beneath the relentless wheels of juggernaut that it was too flat ever to gambol round the legislative halls again. I have seen this proposal before.
– The honorable gentleman voted for it before.
– I regarded it then, as I regard it now, as a very ingenious, wellmeant effort to knock the stuffing out of the party to which I belong. Even if the proposal were sponsored by a gentleman who had made himself very much more useful and necessary to us than the honorable member has done, I should still be inclined to do with it as we are told is done with the wicked. I cannot possibly recommend honorable members to accept the amendment. lt is redolent of the Middle Ages - and of the very middle of those. It is an effort to sap the virtue of the measure before the Committee, and practically to declare that there shall be no industrial peace, so far as concerns any organization that dares to spend a penny, of its money to secure industrial rights by legislative means, no matter how much the country suffers. Suppose that there were two men fighting in the street, and because they had elected to spend their money in a certain way the police were called off and told, “ You must not interfere with those men, because they are outside the pale of the law.” In this instance the Courts of the country are to be told, “ You must not interfere with a union that is fighting for the employers if it has spent any of its money on political purposes. Let such a union kick up as much row as it pleases; we only interfere with unions that do not spend money in that way.” That is what the amendment amounts to. I cannot accept it. I hope the honorable member for Lang will realize, however, that we welcome the fact that time has produced no change in him, though circumstances may have effected changes in others that make these little ebullitions unnecessary and uncalled-for.
Question - That the words proposed to fee added be so added - put. The Committee divided.
Question so resolved in the negative. Amendment negatived. Clause, as amended, agreed to. Clauses 19 and 20 agreed to. Clause 21 (Term of industrial agreement).
.- Does this clause refer to agreements such as that now in question in the case of the wharf labourers’ dispute in Sydney, or is it to introduce a new kind of agreement ?
Clause agreed to.
Amendment (by Mr. Hughes) agreed to -
That the following new clause be inserted : - 4A. Section seven of the Principal Act is amended -
by omitting the words “ in any industry land
by omitting the words “ in that industry.”
– This evening the honorable member for Moreton moved an amendment which, at my request, he was good enough to withdraw. I told him that I would look into the matter, and, if necessary, give the Committee an opportunity to amend the Act in the direction which he desired. Sub-section 1 of- section 55 consists of two paragraphs, which define the kinds of organizations, and I propose to ask the Committee to amend the sub-section to read -
Any of the following associations or persons may, on compliance with the prescribed con- ditions, be registered in the manner prescribed as an organization : -
Any association of employers in or in connexion with any industry, who have in the aggregate, or any employer who has, throughout ‘the six months next preceding the application for registration, employed on an average taken per month not less than one hundred employes in that industry - The sub-section, if so amended, will enable any individual employer who has employed 100 employes to register, independently of any other employer. It will carry out literally what the honorable member desired to do. I move - That the following new clause be inserted : - i6a. Section 55 of the Principal Act is amended - [a) by inserting in sub-section one after the words “following associations” the words “ or persons “ ; and
by inserting in paragraph a of subsection 1 after the word “ aggregate “ the words “ or any employer who has.”
Proposed new clause agreed to. Mr. GREENE (Richmond) [9-50].- I move -
That the following new clause be inserted : - 21a. After section 91 of the Principal Act the following section is inserted : - “ A member of the Commonwealth or of any State Parliament shall not be an office-bearer in any organization under the Act.”
– That will cut both ways.
– Undoubtedly it will. Not only is it desirable, I think, in the public interest, that this amendment should be made ; but I believe it is becoming more and more the general desire of the unions themselves that members of Parliament should not hold positions of this description. Only so recently as yesterday a very large number of officers in the United Labourers Union, including Senators Buzacott and Needham, of Western Australia, assembled in Melbourne from all parts of the Commonwealth. At this conference to bring about an amalgamation of the United Labourers Unions, a number of motions were moved and carried, of which one was : “ The exclusion of members of any Parliament from holding office in the amalgamation.”
– Do you agree to any of the other resolutions?
– I have not studied the other resolutions, and therefore I cannot answer the question offhand, though no doubt I do agree to a number of them. To the one I have quoted I do agree, because I think it is in the public interest that, when disputes crop up or strikes come about, the holding of offices in unions puts members of Parliament in a false position. Notwithstanding the AttorneyGeneral’s denial in the House that the agreement between the Wharf Labourers Union and the ship-owners is unregistered in the Federal Arbitration Court, I find that it has been registered.
– He knows well enough that it has been registered.
– I do not know of it. When was it registered?
– I believe it was registered on the 5th of this month.
– No. Mr. GREENE. - I am not quite sure of the date when it was registered.
– I am not going to contradict the honorable member ; but I think that he should be rather careful in what he says. I do not know that the agreement has been registered.
– lt was registered on Friday last, and the Attorney-General knows that it was.
– At all events, the agreement has been registered ; and, inasmuch as it covers the whole of the States, and binds the union and the employers all over the Commonwealth to prevent a breach of the award by either a single union or a single employer, it is very doubtful whether the dispute is not distinctly under the control of this Parliament.
– It has not extended beyond the limits of any one State.
– It does not matter whether the dispute is confined to any one State or not. It is a breach of an agreement which applies all over the Commonwealth. The Attorney General is, as every one knows, a President of a Wharf Labourers Union. I think that there is no doubt that a breach of the agreement has been made.
– When was the agreement registered ?
– It was registered last week, I believe.
– The dispute was not started then.
– Nevertheless, a dispute is in existence, and the fact that it was not started last week does not. I think, make the slightest difference. In the circumstances, the Attorney-General’s position is most invidious, and, I believe, distinctly against the public interest. I think that, if a provision of this kind were inserted in the Act, it would impose no hardship upon anybody, and certainly prevent such a state of things cropping up again as we have to-day. I feel sure that it would make generally for greater public confidence than exists at present. As has been pointed out, the amendment would cut both ways. If we had an AttorneyGeneral who was the president or secretary of an Employers Federation, his position would be as invidious as that of the present Attorney-General. That is a thing which should not happen, because, in my opinion, it is distinctly against the public interest. I believe that my proposal will meet with the approval of many supporters of the Government.
Mr. HUGHES (West Sydney- AttorneyGeneral) [9.571. - This afternoon the honorable member for Richmond’ asked me whether the agreement to which he referred had been registered, and I told him that it had not been. I certainly was under that impression ; but it appears, from what I have just been told, that the agreement was registered on Friday last. 1 have not been so informed except by honorable members on the other side. The honorable member for Richmond must take my word that I thought that the agreement was not registered.
– It must be registered within thirty days.
– It has been published in all the newspapers that the agreement has been registered.
– In regard to the agreement, I, and those associated with me, all of whom but one or two are members of Parliament, have done all that men could do to induce this branch of the Federation to stand honorably by the award. I have not hesitated to say publicly in a newspaper which circulates in Sydney, as well as elsewhere, that J thought the basis of our industrial evolution must be the honorable observance of agreements ; and I say so now. I assure honorable members that whether the agreement was registered or not would not affect the jurisdiction so far as concerns the Courts having power now to do anything with the men, excepting under section i6a. The honorable member says that it is not in the public interest for members of Parliament, either of State or Commonwealth, to be office hearers in any organization under the Act. All I have to say is that ihe honorable member does not seem to realize that our organization - I am speaking now of the Labour party - is so inseparably entwined with the various industrial organizations all over the country, that, in effect, he says that no member of an industrial organization shall enter Parliament, or, if he does, his counsel, advice, and assistance shall be no longer at the disposal of the organization to which, perhaps, he owes his political existence, or to which, at any rate, he has devoted the better portion of his life. Men on this side may be mistaken, and no doubt they, like all of us, occasionally are. I am perfectly sure, however - and I have had some experience of the matter - that strikes are not fomented by members of Parliament, or men who believe in our organization, as we practise and preach it here, but by men, in very many cases, so widely differing from the views that we advocate that there is nothing, not even a similarity of sound, between us. I do not hesitate to say that some of our most virulent and unrelenting opponents in political life are men that the honorable member, apparently, would rather place at the head of associations than ourselves. For my part, I have been associated with this organization since its inception - I found them unorganized, and I organized them - and I say that no man has ever lost a day’s work through me. I am unable to accept the amendment of the honorable member. 1 should not have spoken in this strain but that the honorable member’s contradiction of what I said this afternoon made it necessary for me to explain precisely the conditions under which I spoke. I do not know that I am called upon to say any more, except to assure the honorable member, this Committee, and the country, that my opinion, and the opinion of those associated with me on the Council, is, and always has been, that an honorable agreement ought to be observed.
– It was not my intention to speak on this Bill, because 1 desire to see it passed as speedily as possible. But the amendment proposed by the honorable member for Richmond is such as to compel me to say something, as I happen to be the representative of the Waterside Workers of Tasmania. What happened when this unfortunate strike came about? We immediately met together, and consulted with the President of the organization - a man who has done more for industrial peace in Australia than any honorable member opposite, any other member of Parliament, or any individual unionist throughout the continent. The power that that gentleman wields in the union and in conference is beyond measure ; and that power is always used with the one object of securing industrial peace, with honour and to the welfare of all concerned. What did I do in compliance with the views of the Attorney-General ? I went to Tasmania, and in Hobart I saw the president of the union and at Launceston the secretary of the Launceston branch ; and I venture to say that I did something towards preventing the strike extending into that State. The men there, I hope, have every confidence in me, as the men, as a whole, have confidence in the Attorney-General. Is that not doing something for industrial peace? This is drawn from me; I had no intention of saying it, but when I hear honorable members opposite talking about members of Parliament bringing about strikes, and so forth, I feel compelled to defend myself. I, like the Attorney-General, desire industrial peace; and we have entered, on behalf of the unions, into an honorable agreement which, as we had no hesitation in. telling them, ought to be kept. The influence we were able to bring to bear, I trust, prevented the strike extending throughout the length and breadth of Australia. Is that not worth the attention of honorable members who pretend, or say, that they desire industrial peace. If the honorable member for Richmond is sincere he ought to withdraw this amendment, which is an insult- to members of Parliament who use their brains outside this House in their efforts to bring about a better state of affairs in the industrial world. Honorable members will admit that the experience and education we gain here - some, I admit, from honorable members opposite - make us better able to deal with those who represent the organized capital of Australia. We hear nothing from honorable members opposite about this organized capital, although they are continually admitting to us that capital is organized, and will be withdrawn if we do certain things, notwithstanding that such withdrawal would paralyze industry in Australia. If there is justification for organizing capital, and withdrawing it under certain circumstances, surely the employes, and those who are associated with them, are justified in meeting together and deciding whether they shall enter into an agreement which may or may not prevent a strike. If members of Parliament can assist in this work why should they not do so? The agreement referred to was brought about by the ship-owners’ representatives meeting the workers’ representatives across a table; and during the whole six weeks of the negotiations not an unkind word was spoken. The result was an agreement unanimously accepted by the unions 1 represent and satisfactory to the ship-owners. Is that not good for the country ? I hope that, under this Bill we shall, at no far distant date, be able to settle all industrial disputes at the conciliatory table.
– That is not the Arbitration Court.
– The Court is invaluable, because, if we, or the employers, ask for too much, an appeal can be made; and when we know that there is that final tribunal both sides are careful. The amendment is one that will be disastrous, not only to the trade unions, but to those who represent the organizations of the capitalists.
.- I do not wish to say anything about the direct object of the amendment, because it appears to me to be a matter for the discretion of honorable members, rather than for parliamentary prohibition. I understand, however, that the industrial agreement referred to to-day is registered ; and I incidentally call attention to the definition of “ industrial matters ‘ ‘ which includes any claim arising out of an industrial agreement, and also the definition of “ industrial disputes “ which includes any dispute as regards industrial matters. It might, therefore, seem that a dispute as to a claim under an industrial agreement is a dispute within the meaning of the Constitution. If, for instance, one side demands performance by the other it may be that there is an indusitrial dispute within the meaning of the Act; and if there is, then section 6 of the Act comes into force, and says that no strike shall take place. I shall say no more, because there may be two interpretations, but as the Federal jurisdiction has been spoken about, I thought it better to call attention to these definitions. If one of the obligations of the agreement is to perform work at a certain rate; and if there is a dispute as to that, it seems possible there may be jurisdiction.
Proposed new clause negatived.
Title agreed to.
Bill reported with amendments ; report, by leave, adopted.
Motion (by Mr. Tudor) proposed -
That the Bill be now recommitted to a Committee of the whole House for the reconsideration of clauses 3 and 7 and for the consideration of proposed new clause 8b.
.– I should like to know what object the Minister has in moving the recommittal of this Bill at this time of the night, when honorable members on this side who are interested in the subject, have gone home in the expectation that no further business would be done. It is now past the usual time for adjourning en a Tuesday night, and it is most unfair that without notice to anybody the Minister should move the House into Committee again to take up new business.
– One of the amendments is being brought in at the suggestion of the honorable member for Swan.
– That does not make the attitude of the honorable member any better. I am sure that the honorable member for Swan would have had the courtesy, if he were in the Minister’s place, to have explained what the Committee was to be asked to do.
– The House never adjourned at this hour on a Tuesday night during the whole of the time the honorable gentleman was in office.
– The honorable gentleman is quite wrong. He is too reckless for a responsible Minister, and if he will permit me to say so, he is also too perky. He ought not to mind what we did, as we have paid the penalty for it. I never knew a more ungenerous lot of individuals than the members of the present Government. Ever since they have been in possession of the pay and privileges of power they have been gibing at the men who, for the time being, are politically down. I say that that is un-British and ungenerous. However, it is the way of the Minister of Trade and Customs.
– Order ! The honorable member is not discussing the question.
– It all comes of these unruly interjections, and Ministers should set us a better example. The Minister is not treating honorable members fairly. We should have had notice that the Government proposed to take this business after the usual closing time. To say nothing else of it, it is political sweating to ask us to work these hours without any provision for overtime payment.
– There is nothing in this.
– If so, we could deal with the matter in five minutes tomorrow. I should like to have some explanation from the Minister as to why he makes this proposal at this hour of the night.
– When the Bill was previously being considered in Committee an amendment was inserted in clause 7 to give power to construct submarine signal stations. When this was brought under the notice of the Attorney-General’s Depart-: ment it was found that the matter might be more appropriately dealt with in the interpretation clause. In the circumstances, it is considered advisable to omit paragraph d of clause 7, and to deal with the matter in clause 3, the interpretation clause. That is the reason why it is proposed that these two clauses should be reconsidered. On two previous occasions when the Bill was under consideration, the honorable member for Swan expressed a fear that under the Bill the Government might be liable, in case of an accident occurring to a ship because of a light going out. At the honorable gentleman’s suggestion a clause has been drafted to deal with that matter, and I desire the recommittal of the Bill to propose its insertion.
Question resolved in the affirmative.
In Committee .- (Recommittal).
Clause 3 -
In this Act, unless the contrary intention appears - “ Marine marks “ includes lightships, beacons, and buoys.
Amendment (by Mr. Tudor) proposed -
That the word “and,” line 4, be left out.
– Would the Minister kindly condescend to explain what the amendment means? Honorable members are ignorant of what he is proposing to do, and he has told us nothing about it.
– I have already stated the reason for the amendment. Paragraph (d) of clause 7 reads - (a!) construct submarine signal stations.
It has been considered by the AttorneyGeneral’s Department that this should be omitted from clause 7, and the matter dealt with in the interpretation clause. That is the reason for the proposed alteration. It will be seen that under clause 3, “ marine marks,” includes - “ lightships, beacons, and buoys.”
It is proposed now to strike out the word “ and “ before the word “ “buoys,” and to insert after the word “ buoys” the words “and submarine signal stations,” so that a submarine signal station will be deemed to be a marine mark.
Amendment agreed to.
Amendment (by Mr. Tudor) agreed to -
That after the- word “buoys” the words “and submarine signal stations” be inserted.
Clause, as amended, agreed to.
Clause 7 -
The Minister may-
construct submarine signal stations.
Amendment (by Mr. Tudor) agreed to -
That the words “ (d) construct submarine signal stations” be left out.
Clause, as amended, agreed to.
– I move -
That the following new clause be inserted to follow clause 8 (a) : - 8 (s) An” action or other proceeding shall not be maintainable against the Commonwealth, or the Minister, or any officer of the Commonwealth by reason of any act default error or omission, whether negligent or otherwise, in relation to any lighthouse or marine mark.”
The honorable member for Swan, in discussing this Bill, pointed out that, as a result of some inadvertence in connexion with legislation on the subject in Western Australia, the Stale Government were called upon to pay damages because of an accident to a lighthouse or marine mark. In the circumstances, he considered it advisable that we should insert in this Bill a clause, similar to a section appearing in the Post and Telegraph Act, relieving the Government of any liability because of any default in connexion with ‘ a lighthouse or marine mark. The honorable gentleman was so persistent in the matter that I brought’ it before the Cabinet, and as it was held that there were _ reasonable grounds for his contention, this clause to deal with the matter is submitted.
.- I think that this clause goes a little further than the honorable member for Swan suggested. What was really in mind, I think, was that no claim’ should arise from the fact that a light or marine mark was deceptive.
– These words are in a section of the Post and Telegraph Act.
– I’ do not think that the honorable member for Swan intended to go so far.
– Yes ; I copied the words from the Post and Telegraph Act.
– We are dealing with a different matter here. A marine mark might be so placed as to lead to an accident, and though it might not be deceptive as a mark in the way the honorable member for Swan, I think, had in mind, it is proposed here to declare that the Government will be under no responsibility for damage. Perhaps the matter is not of very much consequence, since it would be very seldom that a case of the kind would occur.
– I think the Government ought to give us some “ further information on a matter of this kind. I should like to know what is the law on the subject in the Old Country.
– The Government is not liable, I think.
– We should know that. In legislating regarding lighthouses, beacons, and buoys, we must remember that any neglect on the part of those whose duty it is to attend to lights, or to the placing of beacons, may bring death to persona at sea, and everything should be done to prevent negligence. What would be the effect if the Government were not liable for negligence? Of course, if we are following the recognised maritime law of the world, I have no objection to -the clause, but it is not sufficient to be told that the clause adopts a provision of a Western Australian Act.
Proposed new clause agreed to.
Bill reported with further amendments’; report, by leave, adopted.
– I move -
That the House do now adjourn.
The first business to.morrow will be the third reading of the two Bills dealt with to-night; then will come the formal intro.duction of the Commonwealth Bank Bill, and, following it, the consideration of the Works Estimates, in order that they be sent to the Senate. After that the Budget debate will be continued. The suggestion is that members should deal with items in considering the Works Estimates, and with the policy of the Government in the subsequent debate.
Question resolved in the affirmative. House adjourned at 10.35 P m-
Cite as: Australia, House of Representatives, Debates, 31 October 1911, viewed 22 October 2017, <http://historichansard.net/hofreps/1911/19111031_reps_4_61/>.