6th Parliament · 1st Session
Mr. Speaker took the chair at 3 p.m., and read prayers.
– Has the Prime Minister any objection to stating whether it is intended to re-appoint Sir George Reid as High Commissioner of the Commonwealth in London?
– The matter will be considered by the Government.
High Court Judgments.
– As the Conciliation and
Arbitration Bill is based on judgments of the High Court in the Tramways case, will the Attorney-General cause copies of those judgments to be made available to honorable members?
– Reports of the judgments are obtainable only by purchase. The Commonwealth is treated in the same way as private citizens. I received a letter from the honorable gentleman on the subject, and a consultation with the Secretary of the Department strengthened my opinion that the Commonwealth should be supplied with copies of these judgments. If that is the desire of the House, I shall take further steps in the matter.
– On Monday morning I received a letter from the honorable gentleman, stating that he intended to ask for this information, and I have therefore had the following return prepared : -
New South Wales.
Frozen produce: - 370.000 carcases mutton and lamb. 25.000 quarters beef. 80.000 crates rabbits. 40.000 boxes butter, approximately (or 63,000 boxes in a week’s time).
Insulated space required - 2,897,622 cubic feet, or 72,440 tons measurement.
General cargo - no great scarcity of space.
Frozen produce and canned meats awaiting shipment at Melbourne and Geelong: - 13,751 quarters beef. 45,080 carcases calves. 467,703 carcases mutton and lamb. 508½ tons butter. 700 cases poultry. 364 crates rabbits. 6,070 cases canned meats. 2,000 packages frozen sundries.
Space required for: - 12,000 quarters beef, United Kingdom. 40,000 carcases mutton for United Kingdom. 1,000 boxes butter for United Kingdom. 2,750 boxes butter for South Africa.
Other butter shippers require space - exact quantities not obtainable.
Cargo awaiting shipment at: -
Port Adelaide. 25.000 bales wool. 3,000 bales sheep skins. 150 bales rabbit skins.
Frozen produce: - 47,000 carcases lamb. 20,000 carcases sheep. 1,500 carcases hoggets. 8,000 quarters beef. 350 sides veal. 5,000 bags beef.
Port Pirie. 65,000 tons concentrates.
Goods awaiting shipment at: -
Fremantle. 4,000 to 5,000 bales wool. 218 bags wool. 300 to 400 bales skins. 100 tons lead concentrates. 10 tons gold slag.
Albany. 2,200 bales wool and skins.
North-west Ports. 3,000 to 4,000 bales wool.
No cargo awaiting shipment overseas.
Butter, approximately, 65,000 boxes.
Beef, 58,751 quarters, and 5,000 bags.
Mutton and lamb, 946,203 carcases.
Veal, 45,630 carcases and 350 sides.
Rabbits and hares, 80,364 crates.
– Is the Minister of Trade and Customs able to say how much of the produce to which he has referred cannot be exported? How much of it must be held over?
– I do not know what vessels will be leaving Australia within the next six weeks, or how much refrigerated space will be available, but if the honorable member will give notice of his question, I shall do my best to secure the information, as I shall also do all I can to help to get the produce away.
– As Parliament re cently voted a large sum of money for the relief of distress in Belgium, I ask the Prime Minister what steps are being taken to relieve distress in this country ? I ask, particularly, what can be done to relieve the distress of a family in which there are five children, none over four years of age, the mother and the youngest child being outdoor patients at the Melbourne Hospital, and the father being an inmate of the hospital, about to undergo a serious operation there, having left only8d. in the home.
– Parliament, with the approval of nearly all the electors, voted £100,000 for the relief of distress in Belgium. This Government arranged to lend £18,000,000 to five of the State Governments to enable them to proceed with public works, and thus to prevent unemployment within their borders, and we are ready and willing to render any other aid within our constitutional power, by social and industrial legislation, to prevent or mitigate unemployment and to relieve distress.
– I ask the Assistant Minister representing the Minister of External Affairs if his attention has been drawn to a statement in. the newspapers that Colonel Pethebridge has been appointed Administrator of some islands in the Pacific that have been captured from our enemies ? If so, will the Minister tell us what are to be the duties of Colonel Pethebridge?
– Colonel Pethebridge has been appointed by the Defence Department to inquire into certain matters connected with the administration of islands north of the Equator. I have read the paragraph referred to, and, except for the statement of fact just repeated, I regard it as the product of a lively imagination.
– Has the Assistant Minister representing the Minister of Defence seen a paragraph which states that the troops on their way to Europe have been vaccinated ? If they have been vaccinated, was the vaccination compulsory ; and, if so, by whose authority was it made compulsory ?
– I have not seen the article referred to.
– Is it correct that the High Commissioner has advised that arrangements are being made whereby goods can be sent to South Africa in German ships that have been interned during the war at cost? Can the Minister of Trade and Customs say whether an arrangement cannot be made for a similar service to Australia?
– I am not sure whether that question is a matter for my Department or for that of the Minister of External Affairs. I ask the honorable member to put it on the notice-paper.
– Has the Treasurer yet fixed a date for the delivery of his Budget?
– The Budget will be delivered during the week after next. I shall be absent next week.
– Will the Minister representing the Minister of Defence take * into consideration the advisability of employing men on the defence establishments in New South Wales at Garden Island, Cockatoo1 Island, and the Small Arms Factory three shifts, in order to alleviate distress?
– The Department has already adopted the system of working two shifts at Cockatoo Island and Garden Island, with a view to giving work to the unemployed. The matter of working three shifts has not been decided upon.
– Eight-hour shifts?
– Is the AttorneyGeneral in a position to make any statement concerning the recent raid on the offices of Broken Hill companies?
– I am not in a position to give a complete report as to the searches in the Broken Hill companies’ offices, but I should like to make a statement. This, I think, ought to he made at the earliest opportunity, in regard to those cases where there has been no evidence disclosed.
– While it is to be regretted that loyal citizens should be inconvenienced or injured, in business or reputation by any action taken by the Government under the emergency legislation recently passed, it cannot be admitted that such action is not justified even when no evidence is disclosed upon which to base a charge. The safety of the Commonwealth at this juncture must be regarded as of supreme importance, and far outweighing any inconvenience or loss by individuals. Representations have been made that in some cases the premises of loyal and reputable citizens have been subjected to search by the military authorities. It may be that in some cases investigation has shown that the action taken was not warranted, but there seems to be a misapprehension of the position. It must not be assumed from the search of any citizen’s premises and the impounding of papers that there is evidence of any disloyal act or offence against the law. The circumstances demand prompt action. Information is received by the Government from very many quarters. This is in every case looked at, and where investigation seems called for the matter is pressed further, even at the risk that nothing justifying a prosecution may be disclosed. It is only by such means that the safety of the Commonwealth can be insured. It is surely better that a few individuals should suffer than that the safety of the Commonwealth should be imperilled. We are dealing with a resolute and powerful enemy who has deliberately built up, by a far-reaching system of espionage and vast expenditure of money and effort, plans menacing the national, commercial and industrial interests of this country. In order to circumvent these plans we must have freedom to act. We must, of course, take the responsibility for all that we do, and the Parliament may rest assured that we shall not act without cause. Wherever it appears, as the result of investigation, that a citizen has not acted to the detriment of the Commonwealth, we shall give publicity to the fact. The results of the inquiry so far have disclosed no evidence of trading with the enemy in regard to the Mount Morgan, Mount Lyell, Wallaroo and Moonta, Broken Hill North, and Broken Hill South Mines, and in the cases of W. S. Robinson, J. Hickmer and Sons, The Needham Carton Pierre Company, Ostermeyer, Van Rompaey and Company, R. Ritter, and Bernard and Company. The examination is not yet complete in regard to the Broken Hill Proprietary, Australian Metal Company, Max Gorier, and F. H. Snow, and George Fethers and Company.
– I notice that in his statement the Attorney-General has mentioned none of the Perth business places that were recently raided. Has the AttorneyGeneral any information with regard to those raids?
– I have no information with regard to the raids in Perth, but I shall make inquiries, and inform the honorable member as to the results as far as I can.
– Does the AttorneyGeneral recognise that the damage which is done to lawful traders by raids which in the public interest must be undertaken, arises not out of the raids but out of the publicity given to the raids? When the affairs of a company are being inquired into by the Commonwealth, will the AttorneyGeneral see that there is no publicity given where he has not evidence on which he can act?
– As far as possible, no publicity that is avoidable shall be given until evidence is disclosed.
– I would ask the Assistant Minister of Defence whether there is any truth in the statement attributed, in the Argus, to Messrs. Bernard and Company to the effect that a military raid, in its true sense, was not made on their premises, but that a military officer went there, and retired upon being assured verbally that they had not been trading with the enemy?
– I have not seen the article referred to, and, therefore, cannot give the honorable member an answer.
– Will the Minister have inquiries made?
– Will the Minister representing the Minister of Defence make inquiry as to whether the deaths of the four men in the Expeditionary Forces were the outcome of the compulsory vaccination forced on the troops?
– Is it a fact that the notice issued by the censor allowing publication of the accounts of the departure of the troops was not to expire until noon to-day? Can the Minister therefore, say why full reports of the departure of the troops appeared in this morning’s papers?
– I shall make inquiries into the matter, and give the honorable member an answer.
– Does the Assist ant Minister of Defence know that the offices of the Deutsch-Australische Dampschiffs Gesellschaft, commonly known as the German-Australian Steam-ship Company, Sydney, have been closed since war was declared; and, if so, by whose order was that step taken ? Further, is he aware that the offices are now open again, with their brass plate and other advertising media in full view of the public? Can the Minister state the nature of the business now being carried on there?
– I know nothing of the matter, but I shall make inquiries and let the honorable member know.
– I desire to ask the Assistant Minister of Defence whether there is any regulation prohibiting the introduction of temperance beverages for the officers’ mess at Broadmeadows Camp, and whether there is any power, either within or outside the camp, to prevent their introduction?
– There are no regulations prohibiting the introduction of temperance drinks into the camp, and I do not know that any one has been refused permission to take them in.
Loan of £18,000,000
– According to a cable message published in this morning’s newspapers, the Prime Minister of Great Britain, when introducing his War Loan Bill, stated that, of the total of £225,000,000 proposed to be raised, a sum of £30,000,000 was to be devoted, in the form of a loan, to Canada, South Africa, Australia, and New Zealand, so rendering it unnecessary for them to go on to the London money market. Will the Prime Minister inform the House if Australia is participating, and, if so, to what extent, in this loan?
– The Imperial Government are raising for the Commonwealth Government £18,000,000.
– In view of the fact that, with the approval of His Majesty the King, the first Sunday in January has been fixed upon as a day for intercession and prayer throughout Great Britain and Ireland, I would ask the Prime Minister if the same date could not be fixed for the Commonwealth?
– His Grace the Archbishop of Melbourne, and, I think, representatives of the Presbyterian Church and other religious bodies, waited upon me as a deputation in regard to the matter.
Without consulting my colleagues I took upon myself the responsibility of telling them that I considered the matter was one for the churches themselves rather than for the civil authorities. Whilst expressing my full sympathy with them, I felt that some of my duties did not well fit in with the proposal.
– Has the Prime Minster received any communication from the Secretary of State for the Colonies similar to that sent to New Zealand regarding the embargo on wool ?
– I ask the honorable member to address his question to the Minister of Trade and Customs, whose Department deals with the subject.
– I shall do so, and shall ask, further, whether, as the result of such a communication, the Minister is arranging to modify the embargo in favour of the United Kingdom?
– The position is that the export of wool is prohibited except with the consent of the Minister. There is no prohibition against its export to the United Kingdom.
– But there must be a guarantee that the wool will not be sent to any other country.
– There is no intention of removing’ that requirement, and I do not think the honorable member desires that it shall be removed. If the honorable member is anxious to ascertain the position regarding the export of wool to the United States or to other countries, I ask him to give notice of his question, and I shall then be able to make a complete statement.
– It is a little premature yet to deal with the subject. The honorable member had better interview the Minister himself.
– A couple of cablegrams have been despatched, but no final decision has yet been arrived at.
The following papers were presented : -
Dominions Royal Commission (Imperial) -
Despatch from Secretary of State for the Colonies in connexion with an erratum on page 35 of the Second Interim Report of the Commission (presented 15th April, 1914).
Invalid and Old-age Pensions - Statement re, for the twelve months ended 30th June, 1914.
Lands Acquisition Act -
Return of land disposed of - at Geraldton,
Queensland - Leased to Johnstone shire council, &c.
Landacquired under, at -
Kalgoorlie, Western Australia - For Rail way purposes.
Wardell, New South Wales - For Postal purposes.
Weston, New South Wales - For Postal poses.
Naval Expenditure - Copy of a return to the order of the House of Commons, showing, in detail, the Naval expenditure of the principal Naval Powers.
Post and Telegraph Act -
Regulations amended - (Provisional) - Statutory Rules 1914, Nos. 145 147.
Statutory Rules 1914, Nos. 139, 144, 146.
War, European - Papers relating to the support offered by the princes and peoples of India to His Majesty in connexion with the war.
asked the Assistant Minister representing the Minister of Defence, upon notice -
– The Department has no information that the Admiralty has placed an embargo on the issue of through bills of lading from London to Newcastle. The Admiralty is being asked to advise whether any such instructions have been issued in the matter.
Liverpool Camp: Supply of Bread - Refitting of Transport Ships - Tenders for Great Coats, Western Australia - Bushmen’s Contingent: Offer of Queensland Pastoralists - New Works and Additional Hands
asked the Assistant Minister representing the Minister of Defence, upon notice -
– The answers to the honorable members questions are -
asked the Assistant Minister representing the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are as follow: -
asked the Assistant Minister representing the Minister of Defence, upon notice -
Is this not an unreasonably short time to give to possible tenderers to make up and send in their tenders? 3. (a) Is it the practice to demand payment from a successful tenderer for the materials supplied to be made up?
– The answers to the honorable member’s questions are as follow : -
asked the Assistant Minister representing the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are as follow : - ‘
asked the Assistant Minister representing the Minister of Defence, 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 -
asked the PostmasterGeneral, upon notice -
Will he give the schedules of rates for the transmission of telegraphic messages in Canada and in the United States of America?
– The information desired by the honorable member is as follows: -
In the United States of America the charges for telegrams are calculated on a zone system, and vary according to distance.
The following are typical instances of charges from New York to other States. The figures show the day and night rates for messages of ten. words or less, exclusive of date, address, and signature, and also the day and night rates for each additional work: -
For night and day letters special rates and conditions are in force, particulars of which can be furnished if desired.
In Canada approximately the same rates apply as in United States of America.
The foregoing is according to the latest information in the hands of the Department, but it has been reported in the daily press that, by reason of the war, it was recently proposed to increase these charges.
asked the PostmasterGeneral, upon notice -
– The answer to the honorable member’s first question is “Yes.” In regard to his second question, I cannot give the information without getting reports from all over the Commonwealth, which would take a considerable amount of time and involve additional work on staffs already fully occupied.
asked the Minister of Home Affairs, upon notice -
– To afford the information in regard to all the works being carried out throughout the Commonwealth would be a large undertaking, but I will obtain the particulars in regard to the principal works in each State and lay them on the table of the House.
asked the Prime
Minister, upon notice -
– I can answer the first part of the honorable member’s question. Money has been found for Ministers for works that can. be profitably proceeded with in order to relieve unemployment as far as is consistent with the interests of the Commonwealth. The particulars are not available at the present time.
Debate resumed from 13th November (vide page 661), on motion by Mr. Hughes -
That this Bill be read a second time.
.- The adjournment since Friday has afforded me an opportunity to look more closely into the Bill, and it contains a principle of some importance. This seems to be another of those amendments of the Conciliation and Arbitration Act which have been made to overcome some of the inconveniences felt by Ministers and others in connexion with the judicial interpretation of the provisions of the Constitution. The chief provision, to which one might, in a general discussion, confine attention, is in clause 5, and in effect makes the decision of a single Judge in Chambers final as to constitutional powers as well as to the merits in the case of an industrial dispute. This clause is as follows: -
The principal Act is amended by inserting after section 21 the following section : - “ 21 AA. When an alleged industrial dispute is submitted to the Court -
The amending Act, which was introduced in 1912 by, I think, the present AttorneyGeneral, provides - and I suppose this must have been deliberately done - that in deciding a question as to the constitutional powers of the Commonwealth, the Court must be composed of all the Judges, unless a majority of all the Judges concur. Further, it was provided that, when an application was made for a certificate under section 74 of the Constitution, permitting an appeal on the question of the powers of the Commonwealth and States, inter se, and of the powers of the States inter se, the application must be heard by three Judges. The latter provision was not, I think, introduced at the instance of the members of the present Government; but, while in deciding questions other than those touching constitutional matters, the Court must be composed of at least two Judges, we now have a measure introduced to enable a single Justice in Chambers to determine the question of constitutional powers. Such a provision presents some anomalies; and the Attorney-General, I think, as becoming a lawyer, spoke with some doubt as to what the effect of the proposed amendment might be. I think, however, that it is fairly clear that the decision of the Judge in Chambers - if he is to constitute the High Court, as the Bill says he may - will only decide the question of the power in the particular case. It will be seen, therefore, that we may have on similar, though not identical, facts, quite a different view taken by another Judge as to the principle of the division of power between the Commonwealth and the States. The Bill is an attempt to make the decision of one Judge in Court or in Chambers equivalent to that of the High Court in the matter of constitutional powers relating to arbitration. We may have two Judges taking diametrically apposite views as. to whether a constitutional dispute under certain circumstances is one of which the Court can take cognisance as extending beyond the limits of one State. It may be said that, as the Bill constitutes the single Judge the High Court, the decision of the High Court will be final - in other words, that the disinclination of the High Court, except in very rare cases, to reverse its previous decision on a question of interpretation, will affect even the decision of a single Judge. This I doubt, because I find that in the Tramways case, as reported in the Commonwealth Law lieports, Vol. 18, page 58, Chief Justice Griffith said - la ray opinion it is impossible to maintain as an abstract proposition that the Court is either legally or technically bound by previous decisions. Indeed, it may in a proper, case be its duty to disregard them. But the rule should be applied with great caution, and only when the previous decision is manifestly wrong, as, for instance, if it proceeded upon the mistaken assumption of the continuance of a repeal or expired Statute, or is contrary to a decision of another Court which this Court is bound to follow; not, I think, upon a mere suggestion that some or all of the members of the latter Court might arrive at a different conclusion if the matter were res integraOtherwise there would be grave danger of a want of continuity in the interpretation of the law.
The Court may, therefore, disregard its own decision, but it will only do so in rare cases. I doubt very much, however, if there will be much disinclination on the part of a Court of three or four Judges to reverse the decision of one Judge in Chambers on a question of jurisdiction, and which, as a matter of substance, has no obligation as a declaration of principle on any other Judge who may subsequently give a decision. That seems to be an anomaly; but I confess that I speak with a certain amount of doubt as to the effect of some of these provisions. This provision in clause 5 does not take away the power of getting prohibition; at all events, it does not take away the power of ascertaining whether the clause is valid or not. You cannot take away the power of the High Court to decide whether this particular clause is valid or not
– Oh, no.
– Nor does it take away the right of appeal in those cases in which it exists from a Justice of the High Court to the Privy Council, viz., on a question as to the limits inter se of the respective powers 01 the States and Commonwealth referred to in section 74. Then comes this further anomaly that, whether an appeal is to be given or not, will be decided, not by the Court whose decision is final - that is the Court consisting of a single Judge, if it should so consist - but by three Judges, because, as I have mentioned, the question of the issue of a certificate permitting an appeal to the Privy Council under section 74 has, according to the Judiciary Act, to be brought before three Judges. Therefore, an application may be made for liberty to appeal to the Privy Council notwithstanding clause 5.
– Do you say there can be an appeal only by leave?
– I do not say that. 1 have merely enumerated some cases that struck me. It is clear, however, that you do not take away the right of appeal by permission of the High Court.
– Oh, no.
– But what you do attempt to do is to prevent the High Court hearing an appeal from the decision of a Justice in Chambers. As to the provisions of the Constitution which led to that possible power, I will say a word later, because I dealt with that matter at the Convention; and it seems to me to indicate a weakness in drafting.
– Would that not apply in any case? Suppose the case went to the High Court, and not to a single Judge ?
– No doubt; but I am testing the Bill by its application to extreme cases, because it is an extreme action to declare that the validity of an award is to be decided, not by the highest Court in the land - which was the principle declared by the Government to which the present Attorney-General belonged previously - not by a large Court, but by a Court of one Judge only. What I may call the objections to the provisions on the merits from the point of view of expediency become more pronounced when dealing with the power of a single
Judge. It may be that the award based on the decision of the High Court or of a single Judge will be challenged by a litigant before another Federal Court. I understand that in America questions of appeal to test the validity of a judgment are generally taken when the judgment conies before the Court in the ordinary course. The fact that you have not an appeal from the award, during these proceedings, to the High Court may not prevent the question of the validity of that award being tested in other judicial proceedings, if the award is made the basis of a claim. I do not say that is so, but I merely bring the question up for consideration. Whatever view we take of judicial decisions, we ought not to make confusion worse confounded, from the point of view of the Government, and it seems to me that this Bill goes some way in the direction of doing that. Then you may have a case stated, or a prohibition of the. High Court, on similar facts in another dispute. The case may be stated by another Judge and a different Full Court will determine the application of certain facts to the Constitution, and completely reverse the decision of this Judge, in principle, leaving, by the way, the award, which, according to the decision of the Full Court, ought never to have been made,, absolutely valid, as a necessary result of this clause. I do not know of any other anomalies, but I would just support, by quotation from English cases, what I said about the appeal to the Privy Council. You may have an appeal, not -only on certificate, which is an appeal by permission of the High Court, to the Privy Council, but by special permission of the Privy Council itself. In other words, the Constitution does not take away the right in certain cases of getting leave to appeal to the Privy Council from the Privy Council itself, but the real Court of Appeal at Home, which, for our purposes,, is the Privy Council, doe? not grant leave in such cases where the litigant has chosen to go first to the final Court of Appeal in the State or Commonwealth. That is to say, if the litigant goes first to the High Court, and then asks the Privy Council to decide the question, the Privy Council will not, except in rare cases, grant leave to appeal. That Court will say “No, you have chosen your tribunal, and you must abide by its decision.”
– In other words, the Privy Council recognises the High Court to be as high as the Privy Council itself.
– Yes, in some cases. In this Bill we are compelling a man to accept the decision- of a single Judge, and are declaring that Judge equal to the Court of Appeal. A man has to go to a Court on a question of merits, and you may have that very Judge constituted a High Court for the purpose of interpreting his own power in that particular case. At all events, he or some other Justice may be the High Court of Appeal. There may be a decision given, and the party who did not bring the matter for interpretation before the Court appeals to the Privy Council. The Privy Council would grant the right of appeal, because they will say that if a man has been compelled to go to the other Court, the principle is different. As a rule, they will not obstruct his right of appeal to them. We, therefore, find it decided, in the case of Clergue v. Murray, that where a person has elected to go to the Supreme Court it is not the practice to allow him to come to the Board, except in a very strong case, but that it is different when a man is taken before the Supreme Court and cannot help it. That practically is the effect of these provisions. I always take the view that if the principle of a Bill is sound, and there is an opening for a difference of opinion as to the powers of the Parliament, we ought to risk matters, it being the function of the High Court to determine the constitutional limits of our powers. Still, we can discuss whether there is prima facie evidence of power, which is what I am attempting to do now. As regards prohibition, it will be conceded that in the one case I put as to whether the section is valid, that is not taken away. In ex parte Whybrow, the bootmakers’ case, Griffith, Chief Justice, put the view, which was the decision of the High Court in two cases, in these words -
Then the point is put another way, thus : - Under the Constitution (section 73) an appeal lies to the High Court from every Federal Court unless otherwise enacted by Parliament. . . But it does not follow that enforcement of a judgment may not be prohibited by a Court having jurisdiction to make such order, although no appeal lies to the prohibiting Court.
Under the Bill no appeal is to lie to the prohibiting Court ; but that does not take away the power of the Court in cases in which at present it has the power by prohibition to decide as to the validity of a provision. As to the question of expediency, I shall devote only a few words to that matter; it seems to me that it would deepen confusion so far as it really does exist. There will be conflicting views of power. I think that the provision is inconsistent with the Federal system. In the American, as in other Federal systems of jurisprudence, it is not intended that the final word on law is to be that of a single Judge.
– Is not the existence of a dispute a question of fact?
– The decision of the question of fact is not final as to the existence of a dispute within the meaning of the Constitution. We are unconsciously deceived by the misuse of words.
– The High Court has declined to say what is a dispute - to lay down the legal limits of a dispute.
– What the High Court has decided - I think last of all in the Felt Hatters’ case - is that it will not, in general, answer merely hypothetical questions. The Court is not going to take the risk of saying what would be the meaning of a particular part of the Constitution if certain assumed facts existed. When a question arises, it must be sure of the facts. In the Felt Hatters’ case, the Court refused to answer some questions, on the ground that they were hypothetical; but it went a long way to help - as I think a Court ought to do if the way is fairly open to it-to give an interpretation that would go beyond the limits of the case itself, by answering one particular question, I think question No. la. The provision we are considering seems to me to run counter to the spirit of the Judiciary provisions of the Constitution in another respect. Although we think certain judicial decisions inconvenient, if we find that the High Court has been protected by all sorts of provisions in the Constitution against any attempt to. undermine its independence and discretion - provisions relating to the tenure of office of the Justices, the fixing of their salaries, and other provisions, pointing to a desire on the part of the people of the Commonwealth, who adopted the Constitution, to place beyond possibility political interference with the Court-we must acknowledge these facts. I do not say that there is an attempt here to interfere, but when certain decisions are found to be inconvenient, it is proposed to jump from the decision of a majority of seven Justices interpreting the Constitution to the decision of one Justice sitting in chambers.
– One Justice will be called on to interpret a Statute; that is all.
– I am drawing attention to the constitutional provisions relating to the High Court and to the temper of the Constitution with respect to it. In dealing with questions of policy we should consider the spirit of the measure to a far greater extent than the Justices are capable of doing on the Bench, because the law which they are called on to interpret may contain provisions which prevent them from applying their sense of what ought to be. We are not obliged, if we find that the Constitution is against it in spirit, to make one Judge the final arbiter on any constitutional question.
– What did the people mean by an industrial dispute?
– The Minister asks me to give a definition across the chamber of the meaning of a much discussed provision in the Constitution. I have not the temerity to do that.
– Every one knows perfectly well what is meant.
– I hope that I have a keener sense of the limitations of the human intellect than to attempt to offer a definition now. Let us see what the Justices have said on this point. According to Bacon - I shall not quote the exact text, because it is in Latin - the province of a Judge is not to make or give, but to interpret the law. Let us remember that dictum when we are tempted to criticise rather severely under a sense of inconvenience caused by an interpretation of the law that a Court may have been compelled to find as. the correct one. As to the meaning of an industrial dispute, there is a consensus among the Justices, although they may differ as to the evidence required to establish a certain position. I am thoroughly sympathetic with every attempt to promote expedition and to prevent double hearing. I have not the remotest sympathy with the attempts which have been made - successfully in some cases - to wear out litigants by the consistent pressing of technicalities which ultimately would prove futile.
– That is the lawyer’s way of slowing down.
– Not necessarily ; sometimes it is the litigants’ way-. In the Broken Hill case, nine out of ten or elevencompanies arrived at agreements which were subsequently made the basis of Mr. Justice Higgins’ award, but others persisted in what seemed technical objections, and secured a pyrrhic victory, which was neutralized by a retrospective amendment of the law. But in legislating we should try to feel the pulse of the Constitution, and should not go in a direction opposite to the flow. Mr. Justice Higgins has stated, in more than one award, that a dispute must embody a real claim, fairly definite, and of real substance. He took those words from Conway and Wade, an English case, as to what constitutes a trade dispute, and used them in his judgment in the case of the Merchant Service Guild of Australia v. the Commonwealth Steam-ship Owners. There must be a real claim, fairly definite, and of real substance. I do not think that any Justice holds the opinion suggested by the AttorneyGeneral, that there is no mean between recognising -a mere paper demand and refusal as constituting a dispute and a strike.
– I did not say that.
– I have not read the Hansard report of the honorable and learned gentleman’s speech, but the comprehension of his hearers was that, if a mere demand and refusal were not to constitute a dispute, there was nothing for it but to manifest the feeling which existed by a strike.
– I quoted from Mr. Justice Isaacs’ judgment.
– I shall emote from that judgment, too. Mr. Justice Higgins, in the case of the Engine-drivers and Firemen v. the Broken Hill Company and others, said, on the 12th May, 1911 -
It is true that last year I dismissed a plaint filed by this very association, on the ground that there was no genuine dispute outside New South Wales. I found that certain employes in other States, had joined in the proceedings, not under thepressure of grievances of their own, but in order to help their comrades in New South Wales collieries; treating a New South Wales dispute as a dispute extending beyond New South Wales, so as to gain access to this Court. But this case is very different.
In that case Mr. Justice Higgins refused to acknowledge the existence of a dispute, notwithstanding that the claim was made, and that there was an implied refusal; but it would not do to rush forward an amendment of the law because of the sense of inconvenience that might be caused by such a decision. In the Felt Hatters’ case -18 Commonwealth Law Reports, p.109 - Mr. Justice Higgins said -
Primâ facie the request made is that the log sent on the 2nd August is to be treated as real, genuine, and intended to be pressed by any appropriate means. But it was open to the respondents to prove to the contrary, as respondents proved it in the case of the Federated Engine-drivers, &c, Association versus Caledonian Coal Company.
Mr. Justice Higgins will accept the demand and refusal as primâ facie evidence throwing on the respondent the onus of showing that there was not a real and genuine dispute. Let me now give the views of the Chief Justice. I happen to have been in one or two of these cases. In the Jumbunna case, he gave a general definition of what constitutes an industrial dispute -
An industrial dispute exists where a considerable number of employes engaged in same branch industry make common cause in demanding from or refusing to their employers (whether one or more) some change in the condition of their employment, which is denied to them or asked of them.
Mr. Justice Barton says what Mr. Justice Higgins, in effect, does in the quotations I have given -
Surely disputants in different States may make common cause to defend a common interest when it is attacked or threatened, provided that mere sympathy is notconfounded with material interest.
Now, let us get on to the case of the Federated Sawmillers and others James Moore. Here we have one of the constituents of an industrial dispute as declared by the Chief Justice-
The term “ industrial dispute “ connotes a real and substantial difference, having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. It must be a real and genuine dispute, not fictitious or illusory. Such a dispute is not created bya mere formal demand and refusal without more. … In considering industrial disputes we are concerned with real facts, not words or word spinning.
He says there must be real discontent existing, and he mentions that there must be large bodies of men, Such large bodies of men in two or more States acting, in fact, with one accord.
– Does the honorable member say that large numbers are a vital element in the matter ?
– No, nor, without qualification, does the Chief Justice. He says that mere sporadic discontent here and there does not indicate a dispute of the magnitude that would make it fall within the industrial power given by the Constitution.
– Does he say that a further demand after a refusal is evidence of the existence of a dispute?
– I am not giving my view; I am simply saying what the Justices say. The other day the AttorneyGeneral did not altogether make an attack on the Judiciary, but he used fairly strong language as to the effect of their recent decisions. With all due respect, after reading the interpretations of the Justices, I do not think that the honorable gentleman was justified in so severely criticising the Court.
– I did not do so; I simply attacked the system which made the position possible, and I said that the Judiciary would be very glad if there were some means by which the matter could be settled.
– Surely, if men strike, it is evidence of the existence of a dispute?
– The Court says that it - a. demand and refusal alone - is not conclusive, and, on the question of substance and material interest, the same view is taken in England, as I could show from the Imperial report on trade disputes for 1894. Mr. Justice Isaacs says -
It must; of course, be a real dispute. A demand and refusal may bc made in terms and in circumstances which indicate that they are merely tentative or that they are an ultimatum. In the one case they would probably not constitute a dispute: in the second the President might think they did.
Right through all the decisions of the Judges we may find differences as to the amount of evidence necessary to support a demand, but we shall find that the Court does not regard the fact of a demand having been made as conclusive evidence of the existence of such discontent as will constitute a dispute, or as to the question of whether the dispute extends beyond the limits of a particular State. I could refer to Conway and Wade to show that the same opinion is held by the English Justices.
– Are not the definitions of all the Justices of what constitutes a dispute nearly all the same, while the views of the Justices as to the facts differ?
– The definitions are nearly all the same ; it is simply a question of evidence as to facts, and therefore it is not right for this Parliament to attack the majority of the Court, on the ground that they have produced an inconvenience which could have been avoided.
– Is not the position now that an award fairly given may be upset by technicalities?
– Certainly not in all cases. I have seen only the newspaper report of the Tramways case. The Chief Justice held that “every one of the four fundamental rules as to disputes was entirely disregarded in the institution and promotion of the alleged dispute,” and he further held that “ a Federal character was not given to the association according to the rules.”
– Who made the rules?
– The Association. The Bill before us is dealing with each of these points. There are many provisions in the measure with which I agree; but I maintain that the High Court took the view that they were compelled to take. At any rate, I hold that a reasonable difference of opinion could be taken on the point as to whether the dispute was a genuine one, or whether, in the institution and conduct of it, the rules had been violated. The Chief Justice also held that “ the attempts to validate what had been invalid” were futile, and were in themselves invalid. He held that the resolution passed by the organization was, at its best, a resolution attempting to validate what had been done, and which the organization probably found was invalid - that “ it was an attempt at the rectification by unappointed agents of their own unauthorized acts.” Mr. Justice Isaacs differed from tlie Chief Justice and Mr. Justice Barton on the question’ of the existence of a dispute, but the question with us is not which Justice was right or which Justice was wrong. I hold that there was room for a difference of opinion among the members of the Court, and that we should not say that the Judiciary were not acting within a reasonable sense of their duty in not exercising their constitutional powers coincident with the views of some Minister of the Crown. I hope that we shall not use language which conveys an unfair imputation upon the common sense of the Judiciary. Mr. Justice Isaacs points out some lines on which, perhaps, it is desirable that our legislation should be amended. I think that he mentions the inconvenience of having the question of fact as to the existence of a dispute settled by two different tribunals. We all agree with him there. It is most harassing for an organization, after a hearing of, perhaps, twenty or thirty days, to have to go to another Court and have the matter threshed out again; but it is one of the inconveniences of the power given in the Federal Constitution. I do not think the Bill before us will alter the matter in that regard, because the power given in the Constitution must, from time to time, be interpreted by the High Court, and that interpretation will involve inquiry into the facts as to whether a dispute exists. Therefore, I do not see how we can avoid going to the High Court on the point. Also, there is provision in the Arbitration Act by which the President may reserve a point for the High Court. Mr. Justice Higgins has said that he found it very difficult to decide on the question of jurisdiction until he had really heard all the facts. I do not think he decides many questions of jurisdiction now,, but he used to postpone his final decision on the question of jurisdiction until he’ had heard all the facts, those affecting the merits of the case as well as those affecting the existence of an Inter-State dispute. Therefore, it will not be so easy, in some cases, at least, to get the High Court to shorten the procedure without there being a liability to error. The Bill proposes that the whole question of the existence of a dispute should be referred to the High Court first of all. In that case the question of hearing evidence as to the facts must be cut out. All these matters touch ‘ upon the usefulness of the provision in the Constitution, and raise the question of whether the apportionment of the industrial power is a proper one; whether Ave could not find some better means of expediting these disputes, and attaining the end less expensively, and with less harassment to the organizations through the waste of time. In regard to the matter of insistence on rules, Schloesser, in a recent work on trade unionism, points out that trade unions are the most insistent on the strict ob servance of their rules by officers and others. He says -
In all trade unions the power and authority are vested in numbers. The governing body cannot act without their sanction, either as expressed in the certified rules, or as determined by a specific vote. In a properly constituted trade union there is no such thing as anarchy. The unions recognise the fact that order is the law of progress, and they act upon the principle with Conservative tenacity in all they do. *
That is dealing with the fact that no men are more jealous as to the observance of their own rules than are the trade unions of the United Kingdom. What was done by some Justices of the High Court in the Tramways case was to say that the action of some officers of the organization was in disregard of the rules which were framed by and accepted by the organization itself. As I waa saying, a good deal of this trouble has arisen from the apportionment of the industrial power, and from the way in which that power was amended in the Federal Convention. As originally introduced by Mr. Higgins, the power waa “ to make laws in regard to industrial disputes extending beyond the limits of any one State,” and had the power been left at that, the limitation to Commonwealth arbitration would not exist; but Mr. Kingston did not believe in the States surrendering all the industrial powers, nor did Mr. Wise. Both spoke strongly against the current view that the industrial powers should be’ given over to the Commonwealth.
– Would they say the same thing now1?
– I do not know. I am merely mentioning what occurred at the Convention. Mr. Kingston proposed that the power should be “ conciliation and arbitration for the prevention and settlement of industrial disputes.” Mr. Higgins moved an amendment to this, which waa subsequently accepted at the Melbourne Convention, and inserted in the Constitution, adding the words “ extending beyond the limits of any one State.” I do not think that the Arbitration Court should be abolished. It has done good work in raising and maintaining a reasonable standard in the conditions of employment, but I notice that in 1912 we had in Australia 14,500 manufacturing industries employing 312,000 hands, and paying £32,000,000 a year in wages, and notwithstanding that we have had a very energetic Arbitration Court, there have been only twenty-eight awards - I do not know how many persons were affected by them - forty-eight compulsory conferences, and, I think, 359 industrial agreements. The volume of work done since 1904 does not indicate that arbitration is the best method of settling the question of what are fair rates and conditions of employment.
– Does it not rather show that access to the Court is somewhat difficult?
– It is hard to avoid a lengthy hearing regarding the merits of a dispute. We may avoid technicalities, and I hope we shall ; but I do not know whether it is possible to avoid a double hearing. The Bill provides, as a matter of fact, for double hearings. It provides for a hearing by a Justice before the question of the merits is gone into, and unless we make the President of the Court the Justice who isto determine that question, I do not know how we can overcome the difficulty of a double hearing, in some cases, where the question of jurisdiction is raised.
– Does the honorable member say that the Conciliation and Arbitration Court takes longer to hear a case than a Wages Board would take?
– No; but I say that a Wages Board award applies to the whole industry affected, whereas an award of the Conciliation and Arbitration Court does not.
– That is the fault of the Constitution
– That is the point. The Conciliation and Arbitration Court is doing good work, but cannot cover the whole field. There were, I think, over 170 respondents in the Engine-drivers’ case, and the award was applicable only to the respondents.
-Therewere more in the Bricklayers’ case.
– In the Federated Sawmillers’ case there were 173 respondents, and more in the case to which the AttorneyGeneral has referred. But the award in each case applies only to the litigants.
– We cannot have a common rule
-As the honorable member for Melbourne Ports says, there is no power in the Court to frame a common rule, which is the logical corollary of arbi- tration. It seems to me that we shall have to consider the best method of framing a general law in relation to industry - a law directed towards the establishment of fair and reasonable conditions of employment. The President of the Conciliation and Arbitration Court has done exceedingly good work, and I say deliberately that the view which he took as to what ought to be the basis of an award is one that has been held at Home, as may be found by reference to the reports of Royal Commissions. In the final report of the Imperial Commission of 1894, for instance, the question of the usefulness of arbitration in dealing with a matter of this kind is discussed at page 144, and the very point I am now alluding to is touched on. The report states -
The points at issue are not such as admit of decision upon principles which both sides accept. . . .
It goes on to say -
If arbitration is resorted to at all with regard to this class of questions, we think it should only take place on references which (omitting all mention of fluctuations of prices, or profits, or of any abnormal year) are especially based upon an inquiry whether the existing conditions are or are not consistent with efficient citizenship.
That is practically the principle applied by Mr. Justice Higgins.
– That report was issued a long while ago. Remember how we have advanced since then.
– The Attorney-General ought not to talk about the advances we have made in this matter until he realizes the import of this report. It has been cited again and again in the Court in order to sustain a view which the honorable gentleman himself seems to take.
– It serves, no doubt, a very useful purpose.
– The view taken by Mr. Justice Higgins as to what ought to be the basis of an award as to rates of wages, namely, that it should be that of an efficient standard of living, is the very view taken in this report. I am not saying that the administration of the Act has not come fairly well up to popular expectations, nor am I impugning in the least the soundness generally of the awards made by the Court. What I do contend is that it is a difficult power to have to deal with such a matter as Australian industries. I am not going to discuss at present what amendments or modifications of this power ought to be made, but I think every member of tlie Opposition is prepared, as far as possible, to assist in trying to solve this very difficult and important problem of industrial conditions by some provision auxiliary to, if not in substitution of, the somewhat imperfect arbitration provisions that exist to-day.
– The honorable member has not directed his remarks to the proposition made by Mr. Justice Isaacs that there should be a separate Court, or that the Conciliation and Arbitration Court should be clothed with the necessary jurisdiction to decide what is a dispute.
– I mentioned that Mr. Justice Isaacs expressed tlie opinion that we ought, if possible, to avoid two hearings in the same matter. An appeal, at the present time, means threshing out the merits of the case a second time before the High Court. I do not know how that is to be overcome. An attempt is being made to overcome it by this Bill, but, if Mr. Justice Higgins’ opinion, expressed as the result of great experience, is right - that you cannot always come to a correct decision on the question of jurisdiction without a knowledge of the facts that affect the merits! - then I do not see, unless you appoint the President himself to be a Court of Appeal from himself, how you can avoid the two hearings. Even if another Judge were appointed to settle a question of constitutional power upon a preliminary application, he could not avoid going into the merits of the case. To a great extent he would have to do so in order to enable him to arrive at a decision. I agree with Mr. Justice Isaacs as to the expediency of avoiding double hearings if possible.
– Does the honorable member adopt Mr. Justice Higgins’ suggestion that the Arbitration Court should be clothed with the necessary jurisdiction to hear the facts and determine the question?
– I do not see how it would be possible to hand over to the Conciliation and Arbitration Court the decision of the extent of its own powers. The Constitution does not contemplate the decision of constitutional questions by one Justice. We all become more or less affected by the sense of authority. Even Judges on the Bench do so. Every man pushes his power to the fullest extent that his dignity will permit, and the principle that the extent of a Judge’s power, every time tlie question is raised, should be left to himself to determine, is a dangerous one.
– Do I understand the honorable member to say that the President of the Court, sitting in Chambers, might himself be the Judge of his own powers?
– I do not say it should be so, but the Attorney-General does think that a Judge in Chambers might so act, and it has been argued that the Justice to decide the question of jurisdiction might be the President of the Conciliation arid Arbitration Court himself.
– Why not?
– Surely the honorable member does not think that a Justice who decides a question on the merits should also finally decide the extent of his constitutional power?
– I should think it is very proper that he should do so.
– I can only refer my honorable friend to the Act passed in 1912, ill which it was declared that a Bench of seven Justices was necessary to decide constitutional questions unless a majority of four, of course, agreed. I do not know why there has been this extraordinary change of opinion as to the expediency of allowing the High Court to determine questions of constitutional power. It seems to me that we may legitimately infer from what has been done that there has been a change of opinion, but in any event I hope .we shall find some means of overcoming, at least, some of the acknowledged difficulties of the administration of the Act.
.- I am one of those who view almost with despair tlie present Conciliation and Arbitration Act so far as the speedy settlement of any dispute brought before the Court is concerned. I strongly favoured the principle of arbitration, with a view of causing the whole of our industrial machinery to work smoothly in the production and development of the wealth of the Commonwealth; but recent decisions of the High Court have led me to think that we should be far better off if the present Act were removed from the statute-book. No one, whether he be an employer’ or employe, knows exactly how he is going to get to the Court, and, when he does get there, how long the hearing of his case will take, or what is going’ to be the result of the inquiry.
Under most of our Acts of Parliament, the penalties for breaches of them are clearly set forth. We in the industrial movement do not want strikes, and the Act provides that if we do strike we shall not be allowed to go into Court. In order to come before the Court, however, we have to take such steps as will bring usvery near to a strike. When we do so, the question of jurisdiction is raised, as it was in the Tramways case, and members of the High Court Bench sit for twenty-three days, and finally come to the conclusion that there is no dispute. The Justices of the High Court draw from £3,000 to £3,500 per year. The Court does not sit on Saturday, so that in the Tramways case it was occupied for practically one calendar month in hearing the question of jurisdiction. It finally came to the conclusion that there was no dispute, and that the President of the Court had no jurisdiction, therefore, to try the case at all, or to make an award. But the High Court did not lay down the lines upon which a union might go to the Court.It did not say what constituted a dispute. I am not a legal man, but I claim to be one of the common-sense members of the community. I have listened with pleasure to the legal argument of the honorable member for Angas, but it does not get over what seems to me to be the common-sense view. What are the facts in regard to the Tramways case ? The Brisbane tramways employés decided to have a union, and their employers determined if possible to prevent it. The employés resolved to have a union badge, and the employers decided that if they wore such a badge they should be dismissed. The men wore the badge, and they were dismissed. A lock-out took place, and was followed by what was almost a riot. Yet we have the High Court of Australia, after a hearing extending over twenty-three days, deciding that in that case there was no dispute. The common-sense people of the community must feel some misgiving as to the ability of the High Court in such circumstances to decide an industrial question of the kind. If two or three business men were asked to decide what was an industrial dispute, they would quickly determine that where we had employés demanding a certain concession and employers refusing it, there was a dispute - that there were two parties in disagreement - but the High Court, as at present constituted, says that in such circumstances there is no dispute. Is arbitration worth fighting about if this is to be the position ? The employers and workers of this country, who have spent thousands of pounds in bringing their cases before the Court, are not at all satisfied with the way in which they have been decided.
– The employés are satisfied if the award is given in their favour.
– That is not the question. In this case the President of the Court decided that there was a dispute, with the result that five other employers came in and made industrial agreements, under which they worked. Those industrial agreements were brought about by the dispute, and yet the High Court now decides that there was no dispute, and these five industrial agreements no longer prevail. This House will have to consider its duty to the people and to say whether the time has not arrived when the Act should be repealed, and the High Court given some other useful work to do, rather than have cast upon it the duty of sitting for twentythree days to consider whether there is not a dispute in a case where a lock-out took place, which was followed by what was nearly a riot.
– Disputes should not be manufactured.
– Why did the Liberals manufacture a double dissolution?
– The double dissolution is a fact that Liberals now very much regret. For two years the parties interested in the disputes to which I refer took evidence in nearly every State, and when, after vast expenditure, they obtained an award, certain interested parties raised the question whether the Arbitration Court had any jurisdiction. The whole crux of the question discussed during the twenty-three days was whether there was a dispute; and now, after this great expense and loss of time, there is no basis on which an appeal can be made to the Arbitration Court. The whole Arbitration Act is a sham, and so is the system of the High Court appeals ; and I hope that the time will come when the workers and the people generally will cease to pay high salaries for such a return. Had working men taken up so much time over work relatively simple, the whole of the newspapers of the country would have been talking about “ the man on the job.” The position is ridiculous; and the common sense of the country will repudiate this loafing in the High Court. I confess that I have no faith in the Bill, because the only effective course is to appeal to the country for an amendment of the Constitution. After men have spent their money in the adoption of a peaceful method of remedying their grievance, they are defeated on flimsy technicalities and musty, fusty law. There is no real doubt as to the existence of a dispute ; but because the facts do not comply with some particular law or technicality, the High Court, as now constituted, takes full time to consider all the points raised, and to find all the objections that can possibly be found ; indeed, I say openly that I have read many of the High Court decisions, and I believe that the Judges read words into the Act to prevent awards standing. One clause in the Bill will prevent five Judges sitting in such cases, and taking up the time of the country, where one Judge is sufficient ; we do not desire to employ five men to do the work of one. The Bill, I believe, will he passed, but, as I say, I have no faith in it, because, doubtless, the High Court will find a way to render it useless. We have passed five or six amending Acts, and each has been quashed by the interpretation of the law by the High Court. Those who appeal to the Arbitration Court do not seem to be able to get any judgment that will stand ; and, if I could, by my vote to-morrow, I should wipe the Arbitration Act off the statutebook, knowing that we really can do nothing without an alteration of the Constitution. I support the Bill for what it is worth, but enter my protest against the waste of time in the High Court over trifling technicalities.
– So far as the Attorney-General seeks to remove technicalities from the path of those who are trying to obtain substantial justice in the Arbitration Court, he will find he has the entire sympathy of honorable members on this side. There is no desire on the part of any one that cases should be unduly prolonged or unduly costly, c-y that the real aims and intentions of the parties in a case of real and substantial dispute should be in any way frustrated; and any proposal with the object of providing cheap, effective, and direct settlement and industrial peace will be supported to the full. But constant attacks are made on the High Court, because, as it is said, it bases its judgments on technicalities. Do honorable members really think that the High Court has no object in view but to raise technical points in order to prevent justice being done? Such a suggestion is absolutely without foundation. When we examine the cases we find that so-called technical points are really points of justice and of substance, involving the interpretation of the Constitution and the distribution of powers between the Commonwealth and the States. Honorable members, of course, may, in this connexion, take different views, but the High Court has undoubtedly been most unjustly and unfairly attacked. Parliament owes to the High Courts the duty of approaching its judgments with respect - of paying some respect to the personnel of the Court whether its judgments are for or against any particular views. Of course we have the undoubted right to criticise the judgments, or otherwise our functions would be very much curtailed. But here is what the Attorney-General said in his speech upon this Bill -
I do not hesitate, indeed, to say that no citizen who desires industrial peace oan view the latest decision without alarm. It ia la decision absolutely incompatible with industrial peace - nay, more, it is nothing short of a direct provocation to industrial war. The Arbitration Court was established for the prevention and settlement of industrial disputes. But if we can gather, from the hideous entanglement of technicalities and long-drawn-out litigation in the Tramways case, any substantial principle - no man knoweth what a “ dispute1” is ! Could anything be at once more grotesque and more incompatible with the maintenance of industrial peace than such a position?
That, I say, is absolutely unfair criticism.
– Does the honorable member say that that constitutes an attack on the personnel of the Court?
– Not for one moment; but it is a piece of unjust criticism.
– I thought the honorable member read the quotation in proof of what he had just said.
– I deprecate personalities, and I also deprecate this kind of criticism. The so-called technicalities are really questions involving the interpretation of the Constitution. There are, df course, two views that may be taken > but simply because some honorable members . find that the view taken by the Court does not sustain their own opinions, they immediately jump to the conclusion; that the judgment rests on technicalities. My own opinion is that the difficulty has been created outside ratherthan within the Court. The intention of the Constitution is perfectly clear . The section is -
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to - ….. Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.
Those words show the general purport, and the intention behind, when the Constitution was drawn up, was that the Arbitration Court should deal with great national disputes, those of local significance being left to the States concerned. Verysoon after the Arbitration Act was passed,an agitation arose outside for an extension of the powers, and the method of extending them would have amounted to an attempt of perversion of the whole purpose of the Constitution. The disputes contemplated when the Constitution was settled were such as those that had been experienced in connexion with the shearing and maritime industries, and the intention was that the judicial power of the Commonwealth should be invoked to settle actual disputes extending beyond the limits of a State with a view to industrial peace. In the meantime, how ever, Wages Boards had. been growing lip in the various States, and it had become the practice to prepare comprehensive logs regulating all the details ofan industry; and difficulties arose because the leaders of the workers attempted to convert the Arbitration Court from its original intention, as a Court for the settlement of disputes, into one the object of which was really to legislate in every detail for the whole of an industry.
– The High Court has taken a very much wider view than that of the honorable member, narrow as the viewof the High Court may be.
– I am now dealing with the intention behind the section in the Constitution. I am not contending for one moment that the Court has not the powers or ought not to entertain all the substantial points at issue; but what do we find even before a case is lodged ? An attempt is, made by means of a log to settle the whole details of an industry, from A to Z, as, for instance, in the. case of, the shearers, whose rations were even regulated in all details. In the Felt Hatters’ case, there were 308 specific points raised for regulation. When there is an attempt to make this Court something that it was never intended to be under the Constitution, and the Court finds itself unable to grant some of the requests made, there is immediately the accusation of resorting to technicalities. On this point I should like to read the following from the judgment of Mr. Justice Higgins in the Tramways case: -
There are eleven respondents; and the claim really involves a study of the working conditions of eleven distinct tramway systems (or twelve when Ballarat and Bendigo are separated), with the consideration of. the wages of seventy-two classes of workers, and the examination of forty-six other complex claims, involving about eighty distinct claims in all, for each system. This case illustrates the tendency, to which I have referred in previous cases, to treat this Court as if it were it Legislature, with power to make a complete code for the employment of labour in any kind of industry, instead of a tribunal which has merely power to prevent or settle disputes.
Mr. Justice Higgins there emphasizes the very point I am making. Most of the troubles arise from the fact that the leaders of the movement outside, in seeking to extend the powers of the Court beyond the intention of the Constitution, find themselves in hopeless difficulties; and when the men are disappointed on account of the expense and delay, those leaders, instead of taking the responsibility, accuse the High Court of technicalities.
– The High Court was not unanimous, though the honorable member was assuming that it was.
– That is another question altogether. Mr. Justice Higgins, speaking generally on the methods and tendencies of the industrial leaders outside, said -
This case illustrates the tendency, to which I have referred in previous cases, to treat this Court as if it were a Legislature with power to make a complete code for the employment of, labour in any kind of industry, instead of a tribunal which has merely power to prevent or settle disputes.
That is the basic cause of the whole trouble.
– He gave a satisfactory award, at any rate!
– That may be so; but we have, for instance, the honorable member for South Sydney blaming the Presiding Judge or Judges for the slow way in which the work is carried on. Let us hear what Mr. Justice Higgins has to say on that point - .
Tha result of inattention to this obvious fact has been a great waste of time in eliminating matters not really in dispute between the partics, and in confining the award to matters which arc in dispute.
The fault is not that of the Judges, but that of the industrial leaders outside, who are confusing the issues, and instead of confining themselves to the points in dispute before the Court, introduce other various matters. Honorable members cannot make any complaint about the legal profession in this matter, because the profession is excluded, from the Court.
– The complaint of the honorable member for South Sydney was against tlie appeal.
– I understood that the honorable member was speaking of arbitration proceedings generally.
– I ask the honorable member if he did not refer to the lengthy time these cases took before the Court?
– T was speaking of one specific case.
– The honorable member’s language was general. Mr. Justice Higgins said-
The result of inattention to this obvious fact lias been a great waste of time in eliminating matters not really in dispute between the parties, and in confining the award to matters which arc in dispute.
That is so. In a great many cases matter was. incorporated in the log that ought never to have been there. His Honour continued -
I have had to examine 291 exhibits put in by the claimant, and 397 exhibits put in by the respondents, and many of the exhibits contain several and lengthy documents. There are more than S,300 pages of transcript from the shorthand notes. Tlie case has occupied ninety-three days - more than any case with which I have yet had to deal. The time taken in the investigation has been enormous, owing not only to the intrinsic difficulties of the subject) and to the attempt to get a labour code for so many elaborate systems, but owing, in particular, to the want of power in this Court to proceed by way of common rule, and to the want of power to deal with any disputes which do not extend beyond one State.
– That was the fault of the Constitution.
– That is only one fault he mentions; but the fault also lies with the responsible leaders, who framed the statement of the case. His Honour went on to say -
For at each stage of the case, and on each question, all the representatives of the different tramways were entitled to be heard.
Mr. Justice Higgins is not alone in that opinion. Other Judges have held the same views about the attempted perversion of this tribunal. The Chief Justice pointed that out in his remarks in the Felt Hatters’ case, at page 93 -
To this I only desire to add that, in my opinion, the power conferred on the Parliament by section 51 (xxxv) is not a power to constitute a Board or tribunal, consisting of one or more persons, with authority to regulate, by its decisions or awards, the conduct of industrial enterprise. Nor is the power to transfer the control of industrial enterprises to such a Board or tribunal, by empowering it to accede to any demands made by the employes. The authority which may be conferred upon the tribunal is authority to settle industrial disputes properly so called. I am not, for the present purpose, concerned with the distinction between actual and threatened or probable disputes. I repeat that the dispute must bc something more than a claim to have the conduct of an industry regulated. It must be a real dispute of such a nature as to indicate a real danger of dislocation of industry if it is not settled.
– What, in your opinion, constitutes a real dispute?
– I will give you the Chief Justice’s opinion ) that is more important. His Honour continued -
Unfortunately, attempts have sometimes been made to take advantage of this provision of the Constitution for the purpose of creating so-called disputes, not for the real purpose of preserving industrial peace, but for the purpose of taking the control of industry out of the hands of employers. In my opinion, such attempts are a fraud upon the Constitution, and ought to be so treated. Such machinemade disputes are not, in my opinion, industrial disputes at all within the meaning of the Constitution, and cannot be said to be disputes extending beyond tlie limits of any one State merely because of the identity of the language in which the claims are made, or because a claim relating to the operations of the same industry carried on in two or more States is comprised in a single document.
Mr. Justice Barton also pointed out, just as Mr. Justice Higgins and the Chief Justice had done, the attempt to pervert this tribunal and make it a. Board to regulate wages. At page 104 of the 18th Commonwealth Law Reports, in the Felt Hatters’ case, Mr. Justice Barton said -
The setting up of some tribunal to regulate the conditions of industry, irrespective of questions of dispute, but with a jurisdiction coextensive with any series of claims that can bc made by employes on employers, may, or may not, be an entirely desirable thing. It is not for this Court to pronounce upon any Such question. But it is as clear as can be that the Constitution does not enable the establishment of any such tribunal. The Parliament may legislate for conciliation and arbitration, not for the prevention and settlement of such claims, but of industrial disputes of Inter-State extension.
Then on the same page he added -
However morally justifiable it may be to invoke the action of the Court for the entire regulation of an industry, apart from any dispute, that is not the office which, under the Constitution, can be imposed upon the Court. The adoption of such a process may be called, in a sense by no means opprobrious, an attempt to create a dispute. But it is an attempt which cannot succeed, because the intention of the Constitution is that the Court should operate upon the pre-existing state of facts amounting to a dispute or impending dispute, and not upon some position which follows, instead of preceding, a demand which is put forward merely to open the door of the Court.
Those three Judges clearly drew attention to the perversion that has been taking place all through these cases, and every time the aim- has been frustrated, an attack has been made on the High Court, and it has been accused of technicalities. The High Court is not responsible. The responsibility is with those who formulated claims distinctly and avowedly against the intentions of the Act.
– That is the effect of the Constitution not giving power to deal with these matters.
– The honorable member may be right in asking for wider constitutional powers. I think that a wider power should be given to the Court ; that is reasonable criticism, and is very different indeed from attacking the Court, and saying that it is because of the technicalities of arbitration that the whole of this difficulty has been created. I say that so far as this section is concerned, there has not been a really substantial dispute, extending beyond the limits of any one State, and brought before the tribunal, that has not been sustained and properly sustained. Honorable members will admit that, so far as concerns the twenty-nine awards that have been given, this Court has done a great deal in the settlement of industrial disputes.
– The Court said that the Tramways case was a dispute, and heard the facts for ninety-three days.
– The Attorney-General gave only the minority Judge’s opinion. Four other Judges took a very different . view indeed. Members ou neither side have had an opportunity of studying the whole of the records, amounting, as one of the Judges remarked, to 5,300 pages of transcript alone. Has any member on either side of the House read the whole of the evidence?
– Only one Judge had the opportunity of hearing the whole of the evidence, and he decided that there was a dispute.
– It is not only a question of hearing the evidence, but of reading the transcript of the notes. I would like to know whether the AttorneyGeneral, before, making such a strong pronouncement as he gave us the other afternoon, went through the whole of the evidence that was before the High Court?
– Certainly not; and, what is more, neither did the Court. It was physically .impossible for the Justices to do it.
– We can now speak with authority of what the Attorney-General did not do ; but we cannot speak with authority of what the High Court did or did not do.
– Read what Mr. Justice Isaacs said.
– The Attorney-General read to the House the opinion of one Judge only - Mr. Justice Isaacs.
– I also read the opinion of Mr. Justice Powers.
– The honorable member gave us the opinions of the two minority Judges; but I venture to put before the House the other side of the case. I frankly say that, as I have not had an opportunity of studying the whole of the facts completely, I am npt in a position to say whether the minority or the majority of the Court was right.
– I expressed no opinion about that. What I say is that, whether the Court was right or wrong, the position is intolerable.
– We have constituted a tribunal to be the judge of these matters, and Parliament is bound by tlie decisions of that tribunal. We believe that the whole of the Judges constituting that Court are men of strict integrity and impartiality, and do their duty as they see it.
– Hear, hear!
– The honorable member for Angas gave the House the opinion of the Chief Justice, in whose judgment Mr. Justice Barton concurred. I am now about to give the House the opinion of two other Justices - Mr. Justice Rich and Mr. Justice Gavan Duffy. I am quoting from a newspaper report, which, I suppose, is substantially correct. I have not the official reports.
– No one has access to them. I have tried to get them, but have been unable to do so.
– This is the position, according to Mr. Justice Rich and Mr. Justice Duffy -
It is now well established that the language of section 51 (xxxv.) of the Constitution does permit the creation of a dispute for the special purpose of having it settled by that Court. If the dispute exists, it is nothing to the purpose to inquire how or where it originated, or whether the claims of any of the disputants are reasonable or unreasonable; but the dispute, whether spontaneous or fabricated, does exist. Did such a dispute exist in Queensland ot South Australia?
That was the question the Judges had to put to themselves -
This depends on the facts, and the evidence furnished to us is vague, fragmentary, and illarranged, and some of it is quite untrustworthy. Dealing with it as best we arc able, . wc have come to the conclusion that the employes, in both States believed that the trouble and expense of an appeal to the Court of Conciliation and Arbitration would be amply repaid if they could obtain an award, and that the chances of obtaining an award justified the necessary expenditure of time and money. They were also willing, and oven anxious, that all conditions should he fulfilled, in order to enable the Court to adjudicate on their claim. They, and those to whom they intrusted the conduct of the proceedings, probably thought that the submission of the log and the refusal by the employers constituted a sufficient dispute to give jurisdiction to the Court, and had they not thought so, they, no doubt, would have taken any further step that was considered necessary to give such jurisdiction; but they were so engrossed in the production of a satisfactory claim, and its carriage through the Court,’ that they overlooked the necessity for a substantial dispute, or pretermitted the function of creating one. The service of the log on the employers was no more than a formal step on the road to arbitration, and was not effected with the expectation, or even with the desire of obtaining. any concession from, or conference with, the employers, except in so far as they might be obtained as incidents in the arbitration proceedings. The log, as a whole, did not represent the real grievances of any body of employes - what they were determined to get, or even what they thought they were entitled to get, as a matter of fair play between themselves and their employers. It was merely the claim which those who had the carriage of the business considered would be likely to obtain the most favorable award from the Court. No doubt it contained some items which employes in all the States considered they were fairly entitled to claim, and many items which the employes in some two or more States thought reasonable. But we do not think that it contained any item about which there could be said to. exist in either Queensland or South Australia, a “ dispute “ extending beyond the limits of any one State in circumstances referred to from the Builders Labourers’ case. That being so, the Court of Conciliation and Arbitration had no jurisdiction to make an award in respect to the applicants in either case.
The Justices stated clearly that there was before them no dispute extending beyond the limits of any one State.
– They said that there was a substantial dispute.
– But the Constitution does not give the Parliament power to make laws for the prevention and settlement of merely substantial disputes.
– There was a substantial dispute extending beyond the limits of one State.
– Pour Justices held that there was not, two taking the contrary view.
– The honorable member is alluding to two cases only; I alluded to the ten cases.
– I am completing the Attorney-General’s quotations from the judgment by giving the opinions of Justices other than Mr. Justice Isaacs. The Court decided that in South Australia and in Queensland there was not a dispute extending beyond one State. .That was not a technicality.
– What about the eight cases in which there was admittedly a dispute extending beyond a State 1
– It is not just to say that the Court decided this case on a mere technicality; it dealt with a substantial issue raising the interpretation of one of the terms of the Constitution itself. If a dispute does not extend beyond the limits of any one State, it is not a matter for Federal action. Honorable members have asked for some opinions as to what constitutes a dispute. Mr. Justice-
Isaacs, Mr. Justice Rich, Mr. Justice Gavan Duffy, and Mr. Justice Powers, in Holyman’s case - XVIII. Commonwealth Law Reports, 285 - gave this wide and extended view of what constitutes a dispute. I quote from a judgment delivered by Mr. Justice Isaacs -
In order to prevent any misapprehension in that respect I state, with the concurrence of my learned brothers, Gavan Duffy, Powers, and Rich, in. a succinct form, five propositions of law which are now to be taken as expressly or by necessary implication to be definitely settled. They are : -
The phrase “ industrial disputes extend ing beyond the limits of any one State “ in sub-section xxxv. of section 51 of the Constitution is to be construed according to the natural and ordinary meaning of the words as understood at the time of the passing of the Constitution Act.
There may be an industrial dispute “ ex tending beyond the limits of any one State “ although there is no interState competition in the products or services of the industry, and although the operations and conditions of the industry in one State have no direct action or reaction with respect to the operations or conditions in another State.
The word “ dispute “ means a real dis pute in fact, and is not limited by any artificial criteria.
The words “extending beyond the limits of any one State “ as applied to a dispute mean that the dispute is one “existing in two or more States” or, in other words, “ covering Australian territory comprised within two or more States.”
The existence or non-existence of such a dispute within the meaning of subsection xxxv. is to be ascertained by this Court by the ordinary rules of evidence applicable to questions of fact.
Those rules show that a very extensive power is possessed by the Court of Arbitration.
– The Court of Arbitration cannot ascertain the facts.
– It is the duty of that Court to ascertain in the first instance if it has jurisdiction.
– It can only guess at that.
– It can take evidence, and give a decision upon the facts.
– It is not legally competent to do that.
– It is the. duty of the Arbitration Court to satisfy itself that it has jurisdiction to hear any case. If the President of the Court came to the conclusion that the dispute in question did not extend beyond one State, he would not go on with the case. The Attorney-General has stated that a dispute which was a real dispute could not be entertained in the Tramways case. That was because the High Court held that the President of the Arbitration Court had not jurisdiction.
– Only two of the Justices held that.
– That was held by the Chief Justice, Mr. Justice Barton, Mr. Justice Gavan Duffy, and Mr. Justice Rich against the two other Justices. This Bill has been brought forward to get rid of that judgment. There was an exercise of the original jurisdiction of the High Court by way of prohibition, it being held that the President of the Arbitration Court had not jurisdiction in the case under review. Under section 71 of the Constitution the judicial power of the Commonwealth is vested in the High Court’, consisting of the Chief Justice and two or more Justices. By virtue of section 75, sub-section 5, the High Court, independent of any power that we can give it, has jurisdiction to deal with writs of mandamus and prohibition against an officer of the Commonwealth. It was under that section that the High Court declared that the Arbitration Court had no jurisdiction in the case that has been referred to. Section 76 empowers the Parliament to confer original jurisdiction upon a Judge in any matter arising under the Constitution, or involving its interpretation, or arising under any law made by Parliament. Section 73 - to which the Attorney-General did not refer - says that the High Court shall have jurisdiction with such exceptions and subject to such regulations as the Parliament may prescribe, to hear and determine appeals from all judgments, decrees, orders, and sentences of Justices exercising the original jurisdiction of the High Court. Under the Bill, before a case begins in the Arbitration Court, application may be made to a J ustice of the High Court, who is to have jurisdiction to hear it, and to decide on the evidence whether, within the meaning of the Constitution, there is a dispute extending beyond one State. The Bill also provides that the decision of this Justice on the question shall be final and conclusive, and shall not be subject to any appeal to the High Court in its appellate jurisdiction, and shall not be challenged, appealed against, reviewed, quashed, or called in question, or be subject to prohibition or mandamus iu any Court on any account whatsoever. The Attorney-General asks Parliament to exercise its power to except appeals from the decision of one Justice, and so to make final an interpretation of the Constitution given by one Justice alone. The honorable and learned gentleman says that he has satisfied himself as to the constitutionality of this proposal. I ask him to give to the House the authorities upon which he claims that the High Court, notwithstanding this legislation, will be unable to exercise its powers under subsection 5 ‘of section 75 to keep a Justice of the High Court within its jurisdiction by means of a writ of prohibition. When a similar proposal to prevent the use of the writ of prohibition by the High Court was made on a previous occasion, attention was drawn in this House to the unconstitutionality of the proposal, and since then the High Court has unanimously declared that the power of prohibition cannot be taken away from it, that power being vested in it as original jurisdiction by the Constitution. Is not the Attorney-General trying to evade the Constitution ? What Court ought to be the final interpreter of the Constitution ? Ought the interpretation of the Constitution to be left to one Justice, or should it be the work of the Pull Court ? As these interpretations seriously affect the rights, not only of tlie Commonwealth, but of the States also, and of private individuals, they should be given by the highest and fullest tribunal we can get.
– What about the rights of the States ? *
– State rights are not only affected; but rights of individuals may be. Every Statute passed by the Commonwealth or by the States affects private individuals. These constitutional cases are often raised by individuals whose rights are affected. The Commonwealth and the States are entitled to the full services of the High Court in interpreting the Constitution. Honorable members opposite very properly supported a Bill, assented to on the 24th September, 1912, which required that the Full Court consisting of less than all the Justices should not give a decision on a question affecting the constitutional powers of the Commonwealth, unless a majority of all the Justices agreed in the decision, but in the case of an industrial dispute, honorable members .do not require this majority. Why is this exception made ? Is there any difference between an industrial matter and an ordinary civil matter? There is none so far as the rights of individuals are concerned. Had all the decisions of the Arbitration Court gone against the workers, had one Justice persistently given judgments against the workers, and had the suggestion of technicalities been raised, would it be claimed, that it would not be right for the workers to appeal to the highest tribunal in the Commonwealth? What may suit one party to-day may suit the other to-morrow. The sweeping aside of present conditions in regard to essentials is not the right step to take. To- prevent even the humblest subject in the land, from appealing to the highest tribunal is wrong. One of our greatest claims has been that the judgment of one Justice should not be absolutely final, and that a man who is imprisoned on the conviction of one Justice should have the right of appeal to the highest tribunal; yet, when we are dealing with a decision affecting’ the rights of thousands of citizens, honorable members seek to restrict the right of appeal, and say that important questions affecting the interpretation of the Constitution shall not be submitted to all the Justices of the High Court, but be finally determined by one. A simple procedure was followed in the Felt Hatters’ case. After considerable- evidence had been taken, the question arose as to whether the President of the Arbitration Court had jurisdiction to go on with the case, and he immediately stated a case for the High Court, submitting four or five hypothetical cases, and at the end adding the following -
On the facts stated in the case is this Court justified in finding that there is an actual, threatened, impending or probable dispute, and in proceeding to investigate the merits under section 23 f
That case occupied the High Court three days, and the Justices decided by four to two that there was sufficient evidence, and that the President of the Arbitration Court had jurisdiction. What is to prevent that course still being followed? Why has the Attorney-General provided, iu clause 5, that the right of getting a case submitted to the High Court is to be given to the complainant association only? Why have not both parties that right ?
– That is an error. We can amend the clause hy striking out the word “complainant” and making “an organization “ have the right.
– At present, by section 60, if it appears to the Arbitration Court that certain conditions are not fulfilled, the Court has to order the cancellation of the registration of an organization ; but it is now proposed to omit the words “ shall order,” and leave it optional for the Court to order the cancellation. The proposal is to give this power if it appears to the Court -
As a matter of policy Parliament, which is entitled to lay down certain conditions as absolute, decided that when such conditions existed in an organization it ought to be cancelled. There was no question of “may” or “may not” be cancelled. I ask the Attorney- General to explain why, instead of laying down the policy of absolute conditions being fulfilled, the matter has been converted to a purely optional case. Another serious principle is involved in section 55. Persons who are not employes in any industry are now to be allowed to become members of an organization in an industry. The object of the Act was to enable disputes between employers and employes to be dealt with, and awards binding on the employers or employes to be given; but now it is sought to bring in as members of an organization persons who are not employed in any industry concerned, and have no connexion with it, but are merely officers of the organization. A solicitor may join the Waterside Workers Union, and become its secretary, and thus get his audience in the tribunal. Honorable members may hold that such a procedure is correct, but I think it will be found inadvisable. I would like the Attorney-General to explain this point : Is the person who is not really a member of an organization to be made liable to any penalties for the non-observance of awards? What is to be the legal position of such an individual in connexion with an award and its enforcement? I also wish to know why it is necessary in clause 13 to have a de claration about organizations being deemed to be duly registered. I notice that this, provision is to apply retrospectively only, and that in future organizations who may register are not to have the benefit of this provision. It would appear that there are some existing difficulties which it is desired to remedy. Finally, the Attorney-General might tell us why there is such urgency for pressing forward with this Bill.
– We want to get it out of the way before the Tariff is brought down.
– Is that the onlyreason ?
– It is one reason.
– I did hope that during the present crisis contentious party strife might cease, and industrial peace be obtained by laying aside for the time being the industrial, as well as the political, weapons.
– The High Court would not allow us.
– Those responsible are the individuals who brought wrong cases and claims before the Arbitration Court. Honorable members of the Opposition have no sympathy with the maintenance of technical difficulties, and if the AttorneyGeneral can show that the Statute can be made even more effective in the direction of getting the cheap and expeditious settlement of industrial disputes he will find no opposition to a measure having that object.
– What is the opinion of the honorable member as to what constitutes an industrial dispute?
– I have given the opinion of the Justices of the High Court.
– We want your opinion as a legislator.
– A barrister or solicitor when asked to give his opinion as to what would constitute an industrial dispute would be guided first of all by the opinion of the Justices who had adjudicated on the point. That is just what I have given to the House for its guidance. That the existing power in the Constitution is not altogether satisfactory is admitted on both sides, but the present attempt of the Attorney-General to patch up and evade the decisions of the High Court will not make the position any more satisfactory. Good work can be done under the power already in the Constitution as long as the parties will not seek to pervert itfrom its original domain of dealing with real disputes that extend beyond one State.
.- We have heard a good deal of discussion in regard to this measure, and the whole of it has been of a legal character. Not one member of the Opposition who has addressed himself to the question has ventured to state what, in his opinion, should be done to meet the situation. As a result of the majority decision given by the High Court in the Tramways case - a decision from which we have had extensive quotations to-day - no one in the industrial world knows where he stands, and no one can say what is an industrial dispute within the meaning of the Act. That is a very serious position, and it seems to me that what we have to do is to take a common-sense view of it. We must not surround our arguments with legal technicalities ; we should rather endeavour to devise some means of overcoming the legislative difficulty with which we are faced. The principle of industrial arbitration was indorsed and placed upon our statute-book, not only to assist the actual parties to industrial disputes, but to protect the general public, who suffer in connexion with such troubles, but have no voice whatever in their settlement. The States, and, later on, the Commonwealth, introduced legislation to protect the third party - the public - and, in addition, to provide for the settlement of any industrial disputes that might arise from time to time. It is our duty, therefore, to make the path as easy as possible for the parties whom we compel to come underthis law. Recent decisions under the Commonwealth Act have done very little in that direction. What is the use of telling a body of industrial workers that they may go to the Commonwealth Conciliation and Arbitration Court because their dispute extends beyond the boundaries of one State if when they get there they are to be told by the Court that the dispute is a fictitious or manufactured one? Not one honorable member has been able to say what is a dispute within the meaning of the Act. I take the view that an industrial dispute is a difference between two parties in regard to working conditions. If one party serves a notice on the other demanding certain emoluments or hours of labour, and the other party refuses to recognise that notice, there must, in my opinion, be a dispute. In the opinion of the High Court, however, in such circumstances no dispute exists.
– That is not what the Court says:
– Then what does the High Court say ?
– It said in the Tramways case that the dispute did not genuinely extend to more than one State.
– Will the right honorable member say what is a genuine dispute? If two organized bodies in different States have a dispute with their employers, surely that dispute must be regarded as genuine. This legislation is supposed to be based on equity and good conscience, and not upon mere legal technicalities; but what is there of equity and good conscience when it is said that a dispute which really exists between employers and employes in different States is not genuine ? If such a dispute is not genuine, will the Leader of the Opposition say what is? It would seem that to make such a dispute a genuine one. it would be necessary for the employés whose claim has been rejected to cease work. Under the Act, however, the workers are told, “ You must not cease work. If you do you will be liable to certain penalties, and if you continue after the Court has dealt with your case you are liable to imprisonment. ‘ ‘ The day has arrived when the imprisonment of working men for disobeying measures of this kind must be brought to an end. No man who is fighting for his daily bread should be regarded as a criminal. I realize that compulsory industrial arbitration without some penalty is impossible; but a monetary penalty should suffice. I have heard some honorable members say that working men are never satisfied; but these working men of whom they complain are the very men who are fighting for the Empire today; and the same dogged determination which characterizes their action on the battlefield is characteristic of their industrial fight against employers. We are not justified in imprisoning a man because of a breach of an Act of Parliament of this kind. We should be satisfied to provide for a monetary penalty, and there should not even be a monetary penalty, or compulsory arbitration at all, if there is no means of deciding what is a dispute. Believing that a dispute exists within the meaning of the Act, men go to the Court, and are finally told by the High Court that that dispute is an artificial one, and that they can obtain no redress under the Act. Industrial unionism is extending from one State to another. Occupations are being linked up, and those that follow them expect to secure the advantages of this law. Surely it is not fair for a tribunal to say that there is no real dispute, although a dispute between employers and employés extends, in fact, beyond the boundaries of one State. If that is the position, let us be honest, and say to the workers, “ This legislation is of no avail.” Let us wipe it out. Do not let us tie up the workers by providing penalties if we cannot give them redress for their actual grievances. It is idle to read what this Judge or that Judge said; let us apply a little common sense to this matter, and let us decide for ourselves what, in the circumstances, is necessary. Until the Constitution is amended, we shall have great difficulty in this direction. Since I have been a member of this Parliament there have been three or four amendments of the principal Act, yet we do not know even to-day how we stand in regard to it. This state of things cannot continue. Every honorable member should be prepared to urge the people, if they believe in industrial arbitration, to give us sufficient power under the Constitution to set up a Court which can deal with industrial disputes.
– Does the honorable member mean that power should be given to enforce awards?
– Power to impose monetary penalties, but not imprisonment.
Mr.Webster. - In the event of nonpayment of the monetary penalty, what would happen?
-The offenders would not secure the advantages of the Act. This Bill is to remove as far as possible the difficulty in which we find ourselves, but it will not give satisfaction. It may to an extent alleviate the situation until the people can be appealed to and asked to grant to this Parliament larger powers. Under this Bill either party to a dispute will have the right to appeal to a Justice to decide whether it is a dispute within the meaning of the law. But compulsory arbitration was brought into force to grant the redress of grievances within a reasonable time. How can grievances be speedily remedied if there be this cir cumlocution in approaching the Court? Even under this Bill it would be necessary to have a preliminary hearing to decide whether a dispute actually existed, entitling the persons concerned to go to the Court and seek relief. That preliminary hearing would take a considerable time, and delay, we know, is killing the spirit of arbitration. Neither the workers nor the employers are satisfied to have their cases hung up month after month, and, as they are, in some instances, year after year without redress. Under this very Bill we shall have delay, but I must support it, because it provides the only means by which we can, at present, secure the determination of the question of what is a dispute. At the present time, the parties to what is believed to be a dispute within the meaning of the Act go before the Conciliation and Arbitration Court, and their case is presented and heard at considerable cost. After the award has been made, there is an appeal by the unsuccessful party to the High Court. There, again, considerable expense is incurred, and finally the workers are told that the decision of the Conciliation and Arbitration Court is invalid. We must do something to meet the position, and, therefore, I shall support this amending Bill. At the same time, I am coming to the conclusion that, unless largerpowers be granted to us under the Constitution, we shall not be right in tying down industrial bodies in Australia. We should permit them to act as they did before, and to make the best terms they possibly can for themselves. If we do that, the public will quickly realize the injury they have done to themselves by refusing so to amend the Constitution as to enable industrial disputes to be dealt with in a fair and reasonable way. In reply to the honorable member who preceded me, I would point out that this measure bears on its face the impress of its urgency. A recent decision of the High Court makes this amending legislation urgently necessary. Without it the different claims before the Court could not be dealt with. No union would feel justified in spending money in presenting its case to the Court, only to find, later on, perhaps, that its action had been of no avail. It is useless to quote the judgments of the different learned Justices. They, like ourselves, have their own opinions. The majority thought that the Tramways’ dispute was a ficti- tious one, while others considered it genuine. What we require is to secure sufficient power to enable us to pass a law- based upon common sense and permitting disputants, wherever they may be in the Commonwealth, to bring their case before the Court and have it dealt with without delay.
.- We have listened to some very exhaustive and illuminating speeches on this question. This is a further attempt to legislate for arbitration under section 51 of the Constitution; but, so far, our attempts have not been very satisfactory, and I do not know whether the Bill will improve matters very materially. Section 51 is as. follows -
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth, with respect to -
Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State…..
I suppose that, if we were to search the pages of Mansard, we should find that there is scarcely a subject that has been so exhaustively discussed as this,; indeed, it would probably surprise most of us if we could only tally proportionately the time occupied. At the same time, as I say, we do not seem, up. to the present, to be any nearer a solution of the great arbitration difficulty than we were at the beginning of Federation. We are all agreed, I suppose, that we should aim at industrial peace. I do not undervalue the importance of the agitation in favour of passing laws and creating a tribunal that will give the working men and the unions of Australia an opportunity to have their grievances settled by peaceful means, and prevent, not that discontent which is necessary to progress, but that discontent which every now and again throws the whole community into turmoil. The desire of the workers, to better their conditions is to be commended. I am not one who- believes that, high wages necessarily mean dear labour, but, rather, that cheapness of production and of manufacture is consistent with the best pay. But, slackening down an the part of the workmen,’ and their failure to realize their obligations to employers after they have secured better wages and conditions, must necessarily mean increased cost of production and* of living. A com munity that pays high wages is a better community than one that pays low wages; and, as I have said, high wages are not inconsistent with reasonable cost of production and manufacture. The fault lies in the fact that there is a disposition on the part of the organized unions to absorb individual effort, and to preach to their members a kind of gospel that means a slackening down and a loss in efficiency. We know there is a tendency to instil into members of unions the idea that there is only a certain amount of work to be done, and there is not felt that individual obligation to give increased efficiency and better service in return for increased wages and improved conditions. Evil arises when there is developed in the community a system of class warfare born of a feeling that the employers are, as it were, in illegal possession of their particular industries. This gives rise to all sorts of undesirable results, which ought not to be experienced iu a country like this with so many and such splendid opportunities. Reaching out for better wages and conditions is, in my opinion, a sign of virility - an indication that the workers are showing signs ‘of a latent ambition to improve their position until, it may be, they themselves become employers.
– Does the honorable member mean that if a workman has his position^ improved monetarily he should increase his labour I
– There are obligations on both sides - on the part of the employer to. pay good wages, and on the part of the worker, in return, to give more efficient service, not only in the interests of. himself, but in the- interests of the community as a whole. Every increase in production re-acts, not only on the workers, but on the country generally. The Bill, so far as I understand it, aims at tightening up the law in respect to dismissals, relaxing the conditions of registration, widening the opportunities for conference between employers and employed in impending or probable disputes, and reducing the High Court jurisdiction, on constitutional matters in regard to arbitration, to a single Judge. These proposals go far to destroy the present” safeguards of the Constitution and the rights of the States. From a layman’s stand-point, section ‘51 seems to indicate that tie word “prevention” should be sufficient’ to enable conferences to be called in order to avoid even the necessity, in many instances, of going to the Court. The word “ prevention “ should give the Arbitration Court sufficiently wide powers to that end, but it seems to me that the word is governed to a large extent by “dispute.” The interpretation of the High Court has shown that it really is difficult to define “dispute” under the section as it stands; and no one can regard the repeated failures in connexion with appeals to the Arbitration Court without a certain amount of regret and misgiving as to the future. “We all agree that there has been a certain straining of the law and of the Constitution in the endeavour to give effect to legislation of this character; and this has placed both unions and employers, and also the High Court in a very awkward, unfair, and invidious position.
– Does not the straining of the law show need for an amendment of the Constitution?
– It seems to me that the limitation in the Constitution at the present time compels unions, in some instances, to strain the law, and to what- we term “manufacture” disputes^ in order to gain access to the Court. Section 51 of the Constitution has, in my opinion, been used by this Parliament in an endeavour to pass arbitration laws which were never contemplated by the Convention. My reading of the Convention debates indicates that this section was inserted as a kind of reserve power, to be used for the settlement of disputes, such as that in the maritime industry in 1890, and was never intended as a wide power to enable an Arbitration Act to be passed to deal with all classes of disputes in the Commonwealth. There is no doubt that the unions of Australia to-day are looking beyond the State industrial tribunals to the Federal Court ; and the reason is very obvious. None of us can dispute the fact that in an Arbitration Court, with a sympathetic Judge, better conditions have been laid down and wages awarded at higher rates than unions have been able to obtain before the various State tribunals. Even for the unions themselves this is a very false and unsatisfactory view in respect to the operations of the Court
– The awards of tha Federal Arbitration Court tend to harmony and uniformity all over Australia.
– That uniformity is one of the strongest objections when we have regard to the great variety in climatic and other conditions over Australia. One central Court is never likely to satisfactorily lay down conditions in a great country like this, where the climate and other circumstances so widely differ.
– Does the honorable member really think that that is what was meant by the honorable member for Maribyrnong ?
– The honorable member for .Wimmera ought to read Mr. Justice Higgins on that point.
– I have read Mr. Justice Higgins on that and other points. Is it possible for a Federal Arbitration Court to do anything but insure uniformity in its decisions in regard to particular industries? It is impossible for one Judge to be able to discriminate between local conditions.
– What about the shearing industry?
– Shearing I regard as a special industry, presenting none of the intricacies which are associated with those manufacturing industries most likely to come before the Court. I admitthat the constant appeals from the Arbitration Court to the High Court must be rather heartbreaking to the unions, and the annulment of different awards is more likely to provoke industrial war than promote industrial peace.
– Still it is said that the unions “ manufacture “ disputes.
– The evidence is, I think, that disputes are manufactured; and, as I have already said, it seems to me that,, on account of the limitations in section 51, it is necessary for unions to resort to means that they would not otherwise resort to if the Court were freely open to them. There is no doubt that we are trying to do the impossible when we try to pass an arbitration law that would allow the unions, without restriction or technicalities, to have access to the Arbitration Court. The section in the Constitution is not wide enough to allow an Act of such a simple character, and there is no doubt that we shall have to recast the whole position. In my opinion, the unions throughout Australia have forgotten altogether the existence of the State tribunals, and have as their object and aim the Federal Arbitration Court; indeed, they have combined as a kind of federated union over the whole of the country with that end in view. The figures show that, in twelve months, the membership of the unions increased from about 300,000 to 433,000, and this, no doubt, is on account of the desire to gain access to the Federal Court. The strain of the present position cannot last for all time, and there are two very decided courses open to the Parliament, one of which will, in my opinion, have to be taken before long. One course is to amend the Constitution in regard to industrial matters, while the alternative is for us, as a Federal Parliament, to abandon any attempt at arbitration legislation of an initial character. We shall either have to broaden the Constitution so as to have conferred on us full industrial powers, or we shall have to limit the constitutional power to appeals from the various State tribunals. My own view, which I hope to have an opportunity of expressing when the Bills for the amendment of the Constitution are before us, inclines to the plan of leaving the whole initiation of, or original jurisdiction in, industrial legislation to the various State Parliaments. I believe that they are eminently fitted to deal with industrial matters. Wages Boards, by their simplicity, inexpensiveness, and the expedition with which they can bring about awards, together with the fact that very few of their awards have been broken, have proved eminently successful in the fixing of reasonable wages and conditions of labour, and the prevention of serious disputes. I do not see why we should not have an extension of that system. To my mind, there are two courses open to us - either to amend the Constitution so as to give this Parliament full industrial power, or, alternatively, to limit the jurisdiction of this Parliament to the hearing of appeals from wages tribunals throughout the length and breadth of Australia.
– Precisely what the Bill is trying to kill is the appeal.
– The reduction of the High Court to a single Judge in regard to industrial matters means the taking away of the rights of the people; it is a complete reversal of the policy of the Government, and must reduce the status of the High Court materially in regard to some of the most important matters that can be brought before it.
– Do I understand you to say that taking away the rights of the people is a departure from the Government’s policy? That has been their policy for a long time.
– What I have in mind is that, in 1911, the present Government introduced a Bill to increase the number of High Court Judges, and they said that there must be an absolute majority of the total number of Judges before a constitutional question could be decided. That was in order to havea greater display of wisdom by the High Court in the interpretation of the Constitution. Perhaps the Government had in mind at the time a more liberal interpretation of the Constitution. If that was the desire, why arewe to have all the important powers of the High Court relegated to a single Judge?
– That is an extravagant statement.
– I mean all the powers of the Court in respect to the important subject of arbitration.I do not intend to discuss this matter at any greater length. I believe that, no matter how much legislation we have, under the limited powers of the present Constitution the Court is bound to prove unsatisfactory.
– Then why did you oppose an amendment of the Constitution?
– I am putting forward a suggestion for a constitutional amendment, whichI doubt if the honorable member would agree to. I have already said that there are two ways in which the industrial question can be dealt with. The first is by giving complete and unlimited powerto the Federal Parliament, and the other is for the Federal Parliament to abandon its attempt to deal with industrial legislation under its present constitutional limitations. To my mind, there is a great deal to be said in favour of leaving the original jurisdiction in industrial matters to the States, conserving to the Federal Parliament only the appeal power. If we had not had so many favorable decisions by the Federal Court there would never have been all these attempts by the unions to climb over the heads of the State Courts in order to approach the Federal one.
– Perhaps the honorable member would like to go back to the days of strikes.
– I have already said that the various unions are to be commended for having endeavoured to have their industrial disputes settled by arbitration and peaceful means, and it is the duty of this House, knowing the value of industrial peace and progress to all sections of the community, to endeavour to frame legislation which will give an opportunity to great bodies of men, bound togetherin unions, to have speedy, simple, and inexpensive access to some sort of industrial tribunal.
Mr.Finlayson. - Do you not think that the treatment of the men by the Wages Boards was sufficient justification for their desire to go to the Federal Court?
– We have not had any concrete statement put forward in this House which would justify us in casting a serious reflection on the 120 or 130 Wages Boards which have fixed the wages and conditions of the men in various industries in Victoria.
– If we do not act we cast a reflection on the minority Justices who hold a certain opinion. We are not casting reflections on anybody, but we are doing what we believe tobe right.
– I am putting forward two alternative propositions, either the abandonment of any attempt to legislate in regard to industrial matters, or else an amendment of the Constitution. I believe this legislation will prove abortive. I do not think it is going to improve matters materially, and I think the time has come when the Government should reconsider its decision.
– Would you give any power to the Federal Parliament under your scheme?
– I should give a reserve power to the Federal Parliament to intervene in case of any industrial upheaval, such as the maritime strike of 1890, which, extending beyond the limits of any one State, calls for the intervention of the Commonwealth Parliament. So far as the general settlement of industrial disputes is concerned, there is a good deal to be said in favour of leaving the States in charge of original jurisdiction in these matters, the Federal Parliament dealing only with appeals from the decisions of the various Wages Boards.
.- At this stage I do not intend to say very much in regard to the Bill, but I propose to say a word or two on the question of what constitutes a dispute. Not that I hope for one moment to be able to throw any light upon what constitutes a dispute of a kind that is likely to give jurisdiction to a Judge of the Arbitration Court to deal with it. In regard to an important case which has been recently heard by the High Court, I should like to say that I have read the judgments of the various Judges, and they do not effect any revolution in regard to what constitutes a dispute. It is true that it shocked the understanding of a good many of us to be told that in those special circumstances there was no dispute within the meaning of the Constitution; nevertheless, the judgments of the learned Justices do not lay down any new theory as to how we are to ascertain what does constitute an industrial dispute. It is worth remarking; however, that we have progressed some distance from what honorable members of the Opposition say was the view of the framers of the Constitution in regard to the jurisdiction of this Arbitration Court. They would have us believe that the intention of the framers of the Constitution was that the Court should deal merely with industrial disputes similar to that of the shearers and the big maritime strike, or other such disputes in which there are interests involved of a clearly Inter-State and connected character, so clearly related between the States that there could be no doubt that the dispute was of an InterState character.
– What case are you referring to?
– I am not referring to any particular case, but I am directing attention to the fact that honorable members opposite are prone to tell us what the framers of the Constitution had in mind in regard to disputes extending beyond the limits of any one State, and they point to simple and obvious kinds of Inter-State disputes as those which the framers had in view.
– What they had in view doesnot matter so much as what they said in the Constitution.
– That is true, but they have said something which, in view of the majority of the High Court, is different from what honorable members opposite would have us believe the framers of the Constitution intended. The majority of the High Court now hold a much wider view in regard to a dispute extending than that referred to by Opposition members today, when they instanced the maritime and shearers’ disputes, which were obviously Inter-State in character. The Court has held that, in such enterprises as the felt-hat industry, different masters and different sets of men, all unrelated, and with no connexion through their capital or otherwise, may still have their federal organizations and an industrial dispute extending. The same thing was held, or at least stated and not denied, in regard to the Tramways case. I think it was the honorable member for Darling Downs who said that these tramway systems are quite disconnected in management and capital in the different States, but the High Court has decided that there might easily be an Inter-State dispute in enterprises of that kind. Therefore, I say that the view which the High Court now takes of an industrial dispute extending is a much wider view than was said to have been held by the framers of the Constitution. What is the view of all the Justices on the question of a dispute extending within the meaning of the Constitution to-day? The Chief Justice may be taken as the representative of a Conservative view - not to use the word offensively - of our constitutional powers, and Mr. Justice Higgins and Mr. Justice Isaacs as the representatives of a Radical view ; but their opinons of what constitutes an industrial dispute are almost identical in terms. They say that the dispute must embody a demand and a refusal, and must have substance. The demand must be a demand made with a determination to back it up, and there must be a determination to stand by the refusal. The dispute mast have substantial reality. It is not a matter of words, but facts.
– That is to say, it must be a dispute, and not a case which can be made up and called a dispute.
– It must not be a pure fiction. So far as an explanation in terms or a definition of dispute has been attempted, there is no wide difference between the Justices of the High Court.
– The difference is as to the extent of evidence required to substantiate the dispute.
– The Justices are agreed in terms as to what constitutes a dispute. But there is the widest chasm of divergence as to the conclusions to be drawn from facts evidencing a dispute. One Justice, having certain facts before him, will say that there is evidence of a substantial dispute; and another will say that the dispute is fictitious and unreal,’ and does not come within that definition. Our difficulty is due to the difference of opinion among their Honours as to facts which bring a dispute within the definition on which they are all agreed. Parties come to the Arbitration Court, and, after fighting an issue for ninety days, are told that there is no dispute. One Justice holds that there was a dispute, and another that there was only an engineered or manufactured difference, which did not constitute a dispute within the meaning of the Constitution. It is a good principle at law that it does not lie with those who have submitted to the jurisdiction of a tribunal to say, after it has given judgment against them, that it had no jurisdiction. Objections to jurisdiction are usually raised before, not after, a hearing. But in arbitration proceedings a party may go to the Court, and say to himself, “ I shall fight first upon the issue, and, if I lose on that, I shall raise the question of jurisdiction.” Thus he tosses with a double-headed penny. Mr. Justice Isaacs stated with regard to this matter -
It seems to me that it ought to be judicially determined at the threshold whether the entry of the Arbitration Court upon an arbitration inquiry is justified or not. If it is, let it proceed, and the result, whatever it may be, depend on the merits alone. If not justified, then let it be prevented at the outset. Such a shocking waste of public and private time, money, and energy as has occurred in the present instance ought not even to be possible. As the law at present stands, the Arbitration Court is only permitted to guess whether there is a dispute or not. It is bound to ask itself whether a dispute exists, and whether it is properly submitted, and it is bound to answer these questions for its own guidance only, and not by way of decision binding the party. If, in fact, its answer is right, it has jurisdiction. If wrong, there is no jurisdiction….. It is not only inimical to general welfare, but quite unfair, that one party alone should have the choice of lying by, taking the chance of a favorable judgment, and, if not then satisfied, of upsetting the whole proceeding, very possibly on some merely technical point. Thus the whole structure, laboriously and patiently built up by the Arbitration Court as an equitable settlement necessary to secure industrial peace, disappears as ah unreality in the eye of the law, but one which certainly leaves very real and very lasting evil effects behind.
Thus, in letters of fire, Mr. Justice Isaacs brands the present constitutional position in regard to the jurisdiction of the Arbitration Court.
Sitting suspended from 6.29 to 7.45 p.m.
– Prior to the adjournment for dinner I was engaged in the painful, difficult, and I might almost say impossible, task of ascertaining what is, or might be, an industrial dispute within the meaning of the Federal Constitution.
SirWilliamIrvine. - The hopeless task.
– No; hope springs as eternal in my breast as in that of the average human. All that we have established so far is the fact that no one knows what are the essential facts which constitute an industrial dispute. It does not lie on me to say what, they are, because our contention is that we should get at the root of this trouble by means of an amendment of the Constitution. We should give up this useless quest, and invest ourselves with the necessary powers to do some real good, irrespective of this subtle inquiry as to what constitutes an industrial dispute within the Constitution as it stands. If I cannot say what constitutes an industrial dispute within the meaning of the Constitution, I can at least suggest what ought to be considered an industrial dispute. I say that when an organization registers under the Federal Arbitration Act, and deliberately makes a claim representative of all, or nearly all, the persons engaged in a particular industry; when it is representative, in one sense or another, of more than one State; when it is concerned with an industry which extends, or is carried on, or operates beyond, the boundaries of one State ; when it makes that claim through its recognised officers in the form of a “ log “ or some other form which cannot be misunderstood, and when the employer, upon whom the claim is made, either declines to entertain it, or refuses, or ignores it, there is established an industrial position which, in my view, should properly be determined by the only industrial tribunal we have established to determine it. We have heard a good deal in this Chamber about manufactured disputes, disputes which are engineered, and. laboriously brought about by so-called agitators for the purpose of securing an award of the Federal Arbitration Court. What is the meaning of this manufactured dispute? Let us consider for a moment who it is that manufactures these disputes. What is an organization ? An organization is a body ofmen who, before they can be registered as such under the Federal Arbitration Act, have to abandon their right to strike. They have to give up every weapon which they previously possessed to enable themto enforce their rights before they can come under the Arbitration Act. They have to divest themselves of the only arms which were previously available to working men as a means or asserting their rights. When they register under the Act they burntheir boats behind them, and I put it to the House that, in so doing, they give an earnest of their sincere desire to settle their troubles by the peaceful method of arbitration. They commence in that way. It would be quite easy for them to stand outside of arbitration, and if it was fight they were looking for, and the pleasure of battle, they could get it outside in much greater degree than they can get it within the operation of the Arbitration Act. In coming under the Act, then, they give an earnest of their desire for a peaceful settlement of their disputes. They must come under the Act in certain numbers; they must formulate their claim. They do so in an orderly, peaceful way. They make their demands in a respectful way. Their claim may be granted or refused. I am assuming that it is refused, and, because of the very orderly course they adopt, because their means are peaceful and not militant, their actions deliberate and not thoughtless or impulsive, it is for all these reasons they are regarded as having engineered a dispute. Had they entered the contest bullheaded, had they acted wildly and impulsively, and, had they struck, there would be a dispute sure enough. But if they have done none of these things, but have merely responded to the invitation which the law has extended to them, it is strange that they should be accused of having engineered a dispute. I am often reminded of the irony of the words of promise contained in this measure - the Arbitration Act. It was to be an Act free from legal technicalities, rapid in operation, and divested of the harassing processes which some think disfigure so many of our measures of legislation. These were the words in which organizations were invited to come under the Act, and, because they have done so peacefully and with a sincere desire to have their disputes settled in the way in which it was promised they would be settled, they are told on the floor of this House, and in other places, that they have engineered a paper dispute, which has no real substance. What could give it substance?
– They take the only way legally open to them. The strike - the other way - is closed to them by the law.
– That is so, but apparently they must go as near to striking as they possibly can without actually doing so before they can prove the existence of a dispute. I say that this is a gross travesty of what was proposed to be given to the working men and women of the Commonwealth by this measure for industrial arbitration. The truth is that this alleged manufacture of a dispute represents nothing less than a meticulously careful method observed by unions in their endeavours to evade the numerous pitfalls by which they are surrounded in order to approach a Court for the settlement, not of an imaginary, but of a real, grievance.
– Why do they not go to their State Courts?
– My answer to the honorable gentleman is to ask him why they should not go to the Court provided for them if they wish to do so?
– It is not provided specially for them, and they have their State Courts.
– Does not the right honorable gentleman know perfectly well that no State Court has jurisdiction to deal with disputes of this character? He knows, or he ought to know, that no State tribunal can deal with industrial disputes extending beyond the limits of a State.
– They rarely ever do.
– I am afraid that that is not an answer to the point that I have raised, because, where disputes do not extend beyond the boundary of a State, we do not claim at present that they should be heard in the Federal Arbitration Court. What is the great charm that induces working men combined in organizations to spend their time, energy, and money also, in an effort to obtain an award of the Federal Arbitration Court? Does any one seriously believe that it is a pleasure to them ?
– They like it better than the State Courts, any way.
– Does any one pretend that there is in these long drawnout arbitration proceedings something so soothing to the sensibilities of the working man that he must get into the Arbitration Court, or does he go there impelled by a feeling that there is something which he ought to have and cannot obtain elsewhere ?
– He thinks he can do better there than in a State Court.
– Of course he thinks he can do better there. There is the Court, there is the invitation to him to go to it, and why should he not get a fair hearing of his claim ?
– He should use the tribunals of his own State.
– Does the right honorable gentleman mean to repeat what has been too often said on the other side of the House - that the sole reason why the working men of Australia in such large numbers seek the arbitrament of the Federal Arbitration Court is that they hope to get more than they deserve from a certain Judge.
– They hope to get more than they would get from a State
– Is such a contention worthy ofany honorable member on the other side?
Mr.Rodgers. - It is unworthy of the honorable member to put up an argument that has not been advanced.
– I understood that it was, and that that was what was in the honorable gentleman’s mind. I do not now know what is in his mind.
– I thought the honorable member was putting in a plea for the legal fraternity.
– I am not, and that is certainly an unworthy argument to advance. If the objection of honorable members opposite is an objection to a certain Judge, and I must say that their objection in that regard has been stated with indecency on more than one occasion, they can possess their souls in patience. There will be other Judges. If this principle is right, surely they should not oppose amendments of this law because a certain Judge presides over the Federal Arbitration Court for the time being.
– I do not think any one has made that suggestion, andI certainly dissociate myself from it.
– It has been made, and more than once. It appears to me, as one who is genuinely anxious to see these industrial troubles settled as speedily and simply as possible, that we are wasting our energies, and the Courts are wasting their energies in torturing their minds to find out whether, technically, persons who have got into this Court have arrived there by a strictly correct route, or whether there is precisely that momentum behind their demands which raises it to the doubtful dignity of a dispute. If there are merits in a claim, why not let it be heard and determined ? Why not redeem the promise in this regard made generally to the people of Australia? There are one or two matters which arise under the Bill that can perhaps be more fitly discussed in Committee. I am very pleased to see that the Attorney-General has embodied in this Bill a provision permitting officers who are not employes in an industry to become members of the organization connected with that industry. The honorable member for Darling Downs raised that question. The reason for the provision is perfectly obvious. With the greater and better organization of industrial workers, experience has shown that this is absolutely necessary - that the men who have to do the administrative work of the organizations cannot possibly be employed in the ordinary work of the industry. I am sorry to say that this fact has more than once been made the basis of groundless and cruel charges against persons, such as secretaries and others, who have borne the brunt of industrial organization. They have been accused of being agitators and of using particular organizations for their own ends, and for the salaries attaching to the positions. The answer to the point raised by the honorable member for Darling Downs is most obvious. Any organization seeking to have its affairs properly and judiciously managed naturally requires some capable person who can give his whole time to the work. When I use the word “ capable “ I do not necessarily mean a man who is not a worker in the industry.
– He may have been a person who was employed in the industry.
– Probably ; but at present he must be a person no longer employed in the industry; he must be employed by the organization.
– Should not the same concession be given to organizations on both sides ? The clause, apparently, applies to one side only.
– I do not think that that is so. For the moment I am defending the particular aspect to which the honorable member referred, and which is very easily defended. The honorable member also referred to the short amendment which seeks to remove an obligation that hitherto rested on the President of the Arbitration Court to cancel the registration of an organization because of some technical failure to comply with some preliminary in regard to registration. The necessity for this amendment has been shown by the grotesque miscarriage of justice in the Miners’ case. The miners’ organization had to be deregistered. The Judge had no discretion - by reason of the technical circumstance, as my memory serves me, that its rules made noprovision for the investment of its funds. The irony would have been more striking if the organization had not had any funds for investment, but the effectwould still have been the same. That a technicality should be the means of breaking down the whole elaborate system of an organization, and everything done for and by it, is contrary to all British law, and the Bill contemplates leaving to the wise discretion of the Judge the decision as to whether in all the circumstances there is occasion for cancelling the registration of an organization because of some failure to comply with some preliminary requirements, which are, for the most part, and as a rule, merely formal matters, matters of convenience and order rather than of substance. I was somewhat entertained this morning by reading some observations on the part of the Employers’ Federation in regard to clause 2 amending section 9 of the Act dealing with the injury of an employé because of his membership of an organization, or of an association applying for registration as an organization, or because of his having given evidence. The Employers Federation is represented as saying that the Bill assumed that if an employer dismissed such a man it was because of the latter ‘s unionism, and that the penalty for doing so was £50. The Bill does not assume such a thing. The employer may still dismiss the unionist for any one of a million reasons that he may select; he may select his own reasons; there is no limit on the absolute discretion of the employer to dismiss his employe imposedby this Bill other than the solitary circumstance of membership or association with a union.
– The employé has the equal right to dismiss the employer. Each can sever the relation with the other.
– That is perfectly true.
– Would you apply to the one party a rule which you would not apply to the other ?
– No. The section applies to both employer and employé, and reads as follows -
An employer shall not dismiss an employé, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employé-
Penalty: Fifty pounds.
An employé shall not cease work in the service of his employer by reason of the circumstance that the employer -
Penalty: Twenty-five pounds.
– That is balm for the employer.
– We know from our every-day experience - that is why the honorable member for Wannon jeeringly says that it is balm for the employer - that it is not a question of dismissing the employer. There are men looking for work; the employe, and not the employer, can be victimized. In the past it has been the employe, and not the employer, who has been victimized.
– Then why have the subclause inserted in the Bill?
– I am not very hopeful of the effect of this very mild provision that has been inserted, because the astute employer has only to state some reason, if he is ingenious enough to keep that reason well advertised, and the law cannot possibly touch him, though the real operating reason for the dismissal of an employe is that he is a member of an organization, or takes some active part in connexion with a union. However, the provision is some improvement on the Act, and seeks to meet glaring cases of what are called victimization. There have been a few convictions under the section as it stands. . On one day in Melbourne not long since, there were three cases in which employers were convicted of having dismissed employes because of the fact that the latter were members of organizations. Though convictions are not easy to secure, they may be secured in glaring cases, and there have been some cases where convictions have been recorded - under the new provision there may be a few more - but the difficulties are so great that, wordthe provision as we may, we are not likely to make it a complete security for the employe. The AttorneyGeneral appears to have done his best in drafting the new section in order that equal-handed justice may be dealt out to both employer and employé. If it operates more for the protection of the employé the answer is the history of the industrial movement in Australia has shown that the employer does not need protection as the employe does in this regard. I do not propose to detain the House much longer on the second reading.I agree with the AttorneyGeneral that we are merely patching up a measure which will be ineffective, at all events in its entirety, until we have secured an amendment of the Constitution. To-day we have heard the honorable member for Wimmera urging, as he has urged before, the amendment of the Constitution in regard to industrial matters. (Needless to say, the honorable member gives us no help when we try to get the amendment of the Constitution for that purpose. My mind goes back to the splendid, stirring, and conclusivelyreasoned passages of the honorable member for Flinders, in which he pointed out the absolute need for an alteration to the Constitution in order to give the Commonwealth Parliament the power to deal with industrial questions, and in order to prevent the gross waste of time and energy that results from our present constitutional limitation; but the honorable and lea’rned member has allowed three successive golden opportunities to go by ; he has also failed to give us any assistance towards bringing about those amendments which he has said were so imperatively necessary. In the richer experience of futile cases before our Court, and of the industrial troubles we have had since last the matter was submitted to the electors, and with his wider appreciation of the necessities of the case, I can only hope that, in the country; the honorable and learned member will not again resist our next appeal to the people to obtain the amendment of the Constitution which he has shown to be so necessary. To make stirring addresses upon this matter is idle ; to invoke great names - like that of Chief Justice Marshall, of the United States of America - is equally idle if; when the golden opportunity comes to crystallize into fact our preconceived view on these questions, we turn aside and say, as do the exAttorneyGeneral and the honorable member for Wimmera, and, I am sorry to have to say it, even the honorable and learned member for Angas, with his judicial mind, “the time is not yet ripe.”
– I am afraid that I shall be obliged to resist the almost pathetic appeal of the honorable member for Batman to enter into the discussion of the constitutional question at present. When the proper time comes I shall be only too glad to discuss the matter with him. Before dealing with the only portion of this Bill which I propose to touch at present, I would like to say a few words with regard to the attitude of the honorable member to a judgment recently delivered by the highest tribunal of the country. The High Court does not claim to be, and I for one, would not claim on its behalf, that it is in any sense immune from that criticism which Parliament is entitled to pass on every public matter in this country. But that criticism ought always, especially when applied to the highest judicial tribunal under the Constitution, to be scrupulously fair. In a somewhat lengthy disquisition on what is an industrial dispute, though no one can complain of his tone, the honorable member for Batman has certainly endeavoured to make it appear that the minority of the Court in the recent decision was right, and the majority was wrong. I do not complain of that, but when we find the Attorney-General of the Commonwealth in nearly every public utterance he makes inside or outside of this House, taking a similar position, it raises questions of a somewhat higher nature. As I have always said, the position, the authority, and the dignity of the High Court is peculiarly within the guardianship of the chief* law officer of the Commonwealth. When we find him on this occasion - it is not the first of .many occasions - using for political purposes in this House, and out oS it, a judgment which it should be his first care to fully, clearly, and correctly explain to the people of Australia; when we find him citing long passages from the judgment of one of the minority, however able he may be - and we all acknowledge him to be a very able Judge - and not in any way presenting the public or this House with the countervailing arguments which ultimately obtained the sanction of the majority of the Court-
– Do you not cite a judgment for a political purpose, too ?
– No. And I sincerely hope that I never may do so, not merely as a Minister, but as a private member. It is peculiarly in the duty of the honorable gentleman who introduced this Bill that if he refers to judgments of the High Court at all he should give them fully and fairly. And it is just as much his duty to place before the House and the country the reasons which actually prevailed with the majority of the Court as to cite those in which the minority of the Court gave expression to their views. The High Court is not immune from criticism. It is entitled to be criticised. Its Chief Justice has pointed out that it is subject to fair criticism, and cannot complain of it. But we must recognise that it is the final arbiter of con- stitutional questions under the Constitution under which we all live. We must also recognise what I should have thought the honorable member for Batman and the Attorney-General would have been the first to recognise, and that is that in the High Court, as in this House, the views and the opinions of the majority prevail. I only intend to address myself to one clause of the Sill, and that is the remarkable clause which has been analyzed fully - I was not able to be present to hear the speeches - by my learned friends, the honorable member for Angas and the honorable member for Darling Downs. Clause 5 is a very remarkable one, and, in some respects, I think it is a useful one. One of the purposes with which it is conceived, I think, is probably to effect an improvement in the extremely cumbrous machinery of the Arbitration Act. So far as it gives an opportunity for those who are engaged in the very costly, lengthy, and cumbrous litigation which this Court has given rise to - so far as it will enable them to have one important and fundamental question determined first, as far as it can be determined finally, before incurring all the expenditure of going into evidence at great length with regard to the conditions of employment; so far as it is intended to enable the fundamental question of the existence of a dispute to be determined “before the parties are to be put to the huge expense and delay dependent on that question, I, for one, cordially approve of the provision. But, so far as it is intended to convey, either to this House, or to those outside of the House, that the decision of the Judge of the High Court is a final decision on that point, it is simply one illusion added to many other illusions which have already found a place on the statute-book. With regard to this, the Attorney-General is like a man with a lantern leading the unions that accord him support through devious paths, and through great dangers and difficulties, with the hope of ultimately finding finality; and they come out just about where they went in. Clause 5, to divest it of the technical language in which it is necessarily framed, provides that where you have an industrial dispute before the Court, either party - in one case it is only the complainant ; I do not know why that is so, and I suppose it will be explained
– I said I would amend that.
– I do not complain of that, as it is a small matter. It is intended that either party should, at an early stage of the case, have the right to ask for a decision of the High Court, or of a Judge of the Court, as to whether there is a dispute or not. So far as that will enable the parties to avoid the waste and cost of going into litigation which may be ultimately set aside on the determination that there is no dispute at all, and, therefore, the foundation of the whole proceeding is gone, I cordially approve of that provision. But, where the clause goes on to say, by subclause 4 -
The decision of the Justice on the question shall be final and conclusive, and shall not be subject to any appeal to the High Court in its appellate jurisdiction, and shall not be challenged, appealed against, reviewed,, quashed, or, called in question, or be subject to prohibition or mandamus, in any Court on any account whatever. so far as that is concerned, it is a mere empty farce, a delusion, and a deception. It will convey to the people who depend upon it the idea that they will get finality when they go before this Judge; but it will not give them finality. It would be better that the clause were left out; it would be better that people should not be induced to expend the enormous sums of money which they have expended in so many useless and fruitless “inquiries under the Act, with a kind of assurance that ultimately they will, if they follow this course, arrive at actual finality; because they will not by this means arrive at finality. This, of course, is a technical question, and one which has to be dealt with in more or less technical terms. Where this clause purports to say that the High Court shall not grant a prohibition against a decision of the Justice, what does that mean ? Can the AttorneyGeneral explain what it means? What is the decision of the Justice? It is merely an answer to the question, “Is there a dispute?” How can any Court grant a prohibition against such a decision ? What does the prevention of a prohibition mean ? A prohibition only lies to prevent the Court from going on to take the steps to give effect to a decree which it has already made. A prohibition to a Judge of the High Court who has no further steps to take is perfectly meaningless. While the clause says that the High
Court cannot issue a prohibition to the Judge who has determined the question that there is a dispute, it leaves wholly untouched the weapon which is always there, that you can issue a prohibition against the carrying out of any steps to interfere with judgment by the only Court which can carry them out, and that is the Arbitration Court. So that the actual phrase is meaningless.
– Is the honorable gentleman’s argument directed against the whole of that provision, or only against the part which deals with prohibition ?
– I am dealing now with prohibition, because that is the one weapon which has been used so far for attacking the fundamental want of jurisdiction in the Court. It is a prohibition in the Tramways case, it ‘is a prohibition in the Boot case, it is a prohibition practically in all the cases. That is the method of getting the decision of the High Court as to whether the Constitution has been exceeded. I ask any honorable member who has read this clause, Was it not intended to convey, and does it not convey, to the House and to persons outside the impression that if -they can get before a Judge of the High Court in Chambers, and he gives his decision, there is an end to the matter? Is it not plain-
– Ought there not to be some finality ?
– That has nothing to do with the question I am arguing. The question is, Does this subclause obtain finality, or is it not a blind ? Is it not holding out the hope of finality when there is no finality? That is the question on which I am now engaged. I ask the Attorney-General to answer this question. There is no use in enveloping it in a cloud of words, and saying that there is no appeal. By a previous Act an appeal from the Arbitration Court to the High Court has already been taken away on questions of fact, and the only thing which is left is the weapon of prohibition. This is merely an attempt, by involving a difficult question with a mass of legal phraseology, to do the impossible. The Constitution says that if there is not, in fact, an industrial dispute, there is no power in the Commonwealth Parliament to deal with it, directly or indirectly. I pause here to say, as I have said before, that paragraph xxxv. of section 51 of the Constitution is,- of all constitutional pro visions which have ever been inserted in a Constitution, one of the worst. It contains nearly every fault which a constitutional provision, as such, could contain. If there is one thing in framing a constitution or a constitutional amendment to which honorable members ought to have close regard, they ought, in choosing their words of constitutional limitation, to’ choose them by direct reference to the subject-matter, and not to make it dependent upon the existence of particular facts in a particular case. For instance, if we look at all the other subjects of our legislative powers, in section 51 we find such subjects as divorce, marriage, bills of exchange, and bankruptcy.. These are all subjects which define themselves; but when- we come to paragraph xxxv., we find that it says, “Your constitutional power shall depend, not upon the subject-matter, but upon whether in a particular case the facts show that there is a dispute.” By adopting that particular kind of constitutional demarcation you invite all manner of constitutional trouble - constitutional paralysis in the Parliament; confusion, and, in short, every evil which arises from misshapen constitutional provisions. Tn passing, I may point out that on a former occasion when certain proposed amendments of the Constitution were under consideration I showed that, bv the use of the word “ monopoly “ the Government were breaking practically the same rule - that they were making the constitutional line of demarcation depend, not upon the subject-matter, but upon a particular set of facts existing at a particular time. That is the inherent defect of the constitutional provision with regard to industrial disputes, and no matter what remedy the Government may propose, it is utterly useless, as long as it remains, to try to go round about it, or to creep under it, or to fly over it. There it stands, and although the Government may say, by means of an ingenious ‘ arrangement, ‘ ‘ This question of whether or not there is a dispute may be heard in Chambers, and there shall be no appeal to the High Court,” it is impossible to ‘get rid of the fundamental difficulty.
– Without an amendment of the Constitution ?
– As long as the Constitution remains as it is, the Government must face the difficulty that if there is not in fact a- dispute we cannot directly or indirectly prevent the High Court from ultimately determin-‘ ing that there was not a dispute, and that there was no jurisdiction. That is the result of the recent decision in the Tramways case, in. which all the members of the High Court concurred.
– Does the honorable member say that the question of what paragraph xxxv. of section 51 of the Constitution means is not within the judicial power of the Commonwealth?
– Of course, it is a function of the Court-
– And is it within the judicial power of the Court to decide the meaning of any Statute under it?
– It is within the judicial power of the High Court to determine.
– Can we not create a special Court to determine that - not the High Court, but a Federal Court.
– Not to finally determine it. We can create as many tribunals as we please to determine it prima facie, but to say that we can create a Court that can finally determine it, and-
– I was speaking about a separate Court. I come now to a High Court Justice. Why can we not say that one Justice shall do this, and that his decision shall not be subject to the appellate jurisdiction of the High Court?
– We can limit the appellate jurisdiction of the High Court, and we have done so under a former Act, but we cannot do as the Government are attempting to do. We cannot limit, by a certain form of words, the ultimate power of the High Court to say to any tribunal - even to an officer of the High Court, “ You must not proceed with this matter, because the foundation of your jurisdiction does not exist.”
– Not when we have taken away the right of appeal ?
– Not when we deliberately take away, under the Judicature Chapter, that right of appeal?
– No. This conversation, I am afraid, is developing into something in the nature of legal question and answer. But I may be allowed to point out to .the AttorneyGeneral that, while it is true that Mr. Justice Isaacs, in the Boot case, as well as in another, I think, differed from the other members of the Court on this very point, holding that the right to. grant a writ of prohibition was in the nature of an appeal from the Lower Court to the High Court, and that the Constitution says that this Parliament may impose whatever restrictions it pleases upon the appellate jurisdiction of the Court-
– But Mr. Justice Isaacs accepted the view of the -other members of the Court in the second case - he changed his opinion.
– I was coming to that. In the earlier case His Honour took the view that what I may call the overriding power usually exercised by means of a writ of prohibition was in the nature of an appellate power, and, therefore, under the Constitution, was subject to whatever conditions this Parliament might impose. But the majority of the Court were opposed to that view, and ultimately, in the Tramways case, Mr. Justice Isaacs receded from his position, and the Court now unanimously holds that nothing that this Parliament may do under the Constitution as it ‘ exists can deprive the High Court of the ultimate right of preventing proceedings being taken against the subject,, in any form, without the constitutional foundation for those proceedings, namely, tlie actual existence of what is known as a dispute.
– Then what is a dispute?
– The honorable member must ask me something very easy. I am not dealing with that aspect of the matter. There are, I admit, infinite difficulties. The particular form of constitutional drafting followed in paragraph xxxv. is faulty. It imposes upon the Court, as a fundamental question of jurisdiction, and of constitutional power, the duty of determining in every case a matter of fact. In every case it is a question of fact about which the evidence may differ from time to time. But I am not now dealing with that. I am taking the Constitution as it is, and my contention is that the Government, in pretending,, by this Bill, to give finality to a decision of the Court as to whether there is a dispute or not, are keeping the promise to the ear and breaking it to the hope. They are holding out hope of relief to employés and employers, who have been scattering their money like water in trying to secure a settlement of their difficulties. Some of this money has produced fruit, but most of it has been sunk in the ground and has borne none. The parties on both sides have been expending money on a kind of judicial warfare which has produced fruits totally incommensurate with the amount of energy and money devoted to it. The Government, by making them believe that they will be able to secure some kind of finality, are now inviting them to go on, whereas they are leading them into the same impasse as before.
– I do not think the honorable member heard what I said when I was introducing this Bill. I said that I had very little hope of it; but I should be glad if the honorable member, after refreshing his memory by looking at sections 73 and 76 of the Constitution, would tell me whether he still holds to the same opinion.
– Those are the ordinary sections giving original and appellate jurisdiction.
– Section 73 of the Constitution provides that -
The High Court shall have jurisdiction, with such exceptions, and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments…… of any Justice or Justices…..
– The defect in the Attorney-General’s argument comes back to the point I mentioned a moment or two ago. It would be a perfectly good answer to me if Mr. Justice Isaacs’ original position were correct : that this power of issuing a prohibition or controlling the exercise of judicial functions by other Courts was an appellate power. In such circumstances, we could say that this was an appellate power subject to any conditions or restrictions that we chose to impose. We might limit the power, or even prohibit it. But the High Court has now unanimously decided that it is not an appellate power, but an original inherent power, which this Parliament cannot take away from it. It is only in regard to the appellate power that the Parliament may impose limitations. The inherent jurisdiction under section 75, which provides that -
In all matters … in which a writ of mandamus or prohibition, or an injunction is sought against an officer of the Commonwealth, the High Court shall have original jurisdiction - has been held to include every judicial officer of the Commonwealth.
– Does it include a Justice of the High Court ?
– Certainly. The Constitution declares that in all these matters the High Court shall have original jurisdiction,so that we cannot take it away from the Court. I am not going to occupy more time in discussing this question. I feel that I am dealing with a highly technical matter difficult to explain, except in technical language. I rose to point out that it is all moonshine to say in the very drastic, almost conclusive words of the sub-clause, “ The decision of the Court shall be final. You members of unions must get your dispute before a Judge in Chambers, and his decision shall be final. You can then go on indefinitely ; bring your witnesses from all parts of Australia, and spend your funds in keeping them here, while employers, on the other hand, can spend their money in producing countervailing evidence. You can go on with the assurance that you have already the final decision of the High Court on this point.” All this is absolute moonshine ! The position is just as open as it was before. It may be approached in the same way, and upon the same class of evidence, by an application to the High Court in its original jurisdiction.
– What is the remedy?
– If the hon orable member would only listen for a moment he would know.
– I have.
– Then I cannot complain. I thought I had made it fairly clear that under the Constitution there is no remedy. It is useless, therefore, to attempt to persuade the thousands who are depending upon this Parliament to give them machinery that will work well for their safety, that under this measure they will be provided with what I may describe as final machinery when they will have nothing of the kind.
– We were charged, oh’ a previous occasion, with having failed to exhaust our powers.
– Not on this point. The charge, I think, was often made with regard to certain proposed amendments of the Constitution - those, for instance, relating to trusts and combines.
– I am not opposing the honorable member. All that I say is that we must exhaust our powers.
– I must admit that seme of us took up the position that the Labour party were asking for certain amendments of the Constitution before the Parliament had exhausted the powers which it already possessed in that regard. But that does not apply to this matter. In it we ,cannot go further under the Constitution, and, when the matter of the necessary additional power that will have to be given comes to be debated in this House, if we can debate it in anything but a party -spirit, all sides of the House will concur that the present power is insufficient. The only question then to determine is in what particular shape this Parliament may wisely ask the people to enlarge or alter the power. But, in the meantime, what is the good of holding up before the people as an amendment that will do them good and enable them to go on and spend their money with some assurance of finality, a provision that will really give them nothing of the kind ?
.- The honorable member for Flinders has once more illustrated the fact that all this argument amongst the lawyers with regard to arbitration may be very interesting, but does not help us forward at all in regard to the settlement of industrial disputes. His speech only emphasizes the fact that we are in a difficulty, and that, apparently, there is no way out except the way the Labour party have proposed, and the Opposition have so unanimously refused to indorse.
– You have always bound it up with a lot of other amendments.
– That is. not correct. That was the argument advanced in 1911, when we submitted the Constitution amendment proposals all lumped together, but when we re-submitted them separately in 1913, the honorable member’s party were just as strongly opposed to them. I have a vivid recollection of the honorable member for Flinders, in 1911, telling us that each of the words in paragraph xxxv. of section 51 of the Constitution had been a happy hunting ground for the lawyers; that they had argued what “ conciliation “ meant, what “ arbitration “ meant, what was meant by preventing a dispute or “ settling “ a dispute, what a “ dispute “ was, andwhat an “ industrial dispute “ was. The ordinary working man is getting very impatient with all this legal and technical argument, and the feeling that some very drastic step will have to be taken to remedy the existing state of affairs is growing in intensity. The honorable member for Flinders says there is no remedy. We on this side may be simple-minded, but we approach this question from the stand-point of justice and fair play. The Act of 1904, under which the Conciliation and Arbitration Court was established, distinctly states that the Court shall be guided, not by the ordinary rules of law, but by equity and good conscience. That is the point overlooked by the honorable member for Darling Downs. He said all these questions were to be dealt with according to the ordinary rules of evidence. The Act specifically lays down that that rule shall not apply to the Arbitration Court, but that justice, reason, and equity shall be the guiding principles. If the ordinary rules of legal evidence and technicality are going to be applied to these questions, we are in a morass. If the Court is in difficulties at the present time, it is simply because the Court has applied legal, instead of equity, standards. We have had ten years’ experience of conciliation and arbitration. It was introduced in 1904 as an experiment. Mr. Deakin, then Leader of the Opposition, has said that that Act was an experiment pure and simple. We have had four amendments since then, each of them an additional experiment. The Bill before us is another. It does not pretend to represent finality, and the AttorneyGeneral, in introducing it, said it was merely patchwork, and in no way pretended to be a final solution of this perplexing trouble. The fact remains that, in spite of all our machinery and efforts, the’ Arbitration Court is impotent to prevent or settle a dispute.- At any rate, the High Court has confessed its impotence to define what a dispute is, and what is an industrial dispute that extends beyond the limits of one State. The honorable member for Darling Downs said something about what the High Court had decided would be the determining factors in an industrial dispute extending beyond the limits of one State - that they had laid down a guiding rule or standard principle on which to judge the question ; and yet we know that the High Court has confessed, in the Tramways case, that, although there was a dispute existing in Adelaide and in Brisbane, both connected with tramway matters, the fact that the same terms, exactly word for word, point for point, and argument for argument, did not occur in both cases, showed that there was not a dispute. The Tramways case presents some of the most extraordinary features to the ordinary layman. It would take more than a Philadelphia lawyer to arrange the parts of that puzzle. Two Judges said the tramway employes had no case; two others said their case was good but for the fact that they had not established that it was the same dispute in Adelaide as it was in Brisbane. The Melbourne dispute had disappeared then, owing to agreements having been arrived at. Probably, had the Melbourne men been still in, the argument would have been extended to show that the position in Melbourne was different from both Adelaide and Sydney. The remaining two Judges said that the tramway men had a good case, and ought to have succeeded. An attempt has been made here to-night to show that the High Court was unanimous on the question. As a matter of fact, it was divided into three sets of two Judges each.
– Which Judges agreed with the tramway men ?
– Mr. Justice Powers and Mr. Justice Isaacs. Mr. Justice Higgins was not available, owing to absence on holidays. I am not concerned with the legal argument as to whether or not there was or could be an industrial dispute extending beyond the limits of one State; but I know - and the fact is a sufficient reply to the arguments of some honorable members, especially the honorable member for Swan - that the State tribunals could not meet the difficulty, because an ever-increasing proportion of trade and commerce, and business generally, is becoming InterState related. The tendency in that direction is continual. It is almost impossible to say that any well-established industry is confined to one State, or that you can have an industrial dispute that is actually and genuinely confined to one State. The honorable member for Swan suggested that State tribunals could deal with the trouble. If any State tribunal gave an award, it would immediately produce a desire in the same industry in another State to get a similar award to bring the men there on to equal terms.
– If the tendency of the award is upwards; but if it is downwards, they are not anxious to come in.
– The tendency cf awards of late in Australia has been on the up-grade. The time may come when the awards will have to be reduced owing to changed circumstances; but the fact that the awards have always been in the direction of improving^ the conditions of the workers, shows either that the workers have been seriously and disgracefully underpaid in the past, or that their right to better conditions than they previously enjoyed in the industries of the Commonwealth is being recognized. State tribunals can. never meet the difficulty; and, in view of the national spirit that we are trying to create, in view of the combination of workers throughout Australia, engendered by that very national spirit and the increase of the Federal idea, it will be increasingly difficult in the future to limit industrial disputes or the operation of industrial awards to any one State.
– What we are aiming at is the prevention of industrial disputes.
– I am not forgetting that point, but the system of State tribunals and awards has already created an Inter-State competition which is entirely opposed to our ideas of Inter-State Free Trade. It cuts right across the constitutional provision that there shall be a free flow of commerce and trade between the States, and it has been shown particularly on the borders of Victoria and New South Wales that two different State awards, operating on different sides of the River Murray, have led to a kind of State competition that is as bad as, if not worse than, the original competition caused through the Customs Tariff. State tribunals would be all right if each State was isolated and self-contained.
– That could be easily . got over with a Federal Court of Appeal.
– The honorable member only suggests as a remedy another circumlocutory idea. He suggests the creation of another tribunal which must be got over before the worker reaches the Federal Court. This means more delay and more expense. This House has deliberately and specifically invited the workers and employers to combine in Federal organizations to get their case before the Federal Court.
Mr.Rodgers. - The great majority could have used the State tribunals instead.
– The honorable member need not be in any doubt as to the present tendency towards Federal organization. It is as strong amongst the employers as amongst the industrial workers.
– Has that not been chiefly brought about by the existence of the Federal Arbitration Court!
– I believe it has. At any rate, the Court may be held to be largely responsible for encouraging it; but I do not think it is a bad thing. The honorable member’s argument, judging by what he said this afternoon, is that it is rather a regrettable tendency, but I do not think it is. We ought to encourage the desire for a uniform standard of life here, and if, by means of the Arbitration Court, we can enable the workers in every part of Australia to feel that, after all, they are parts of one great industrial machine, we shall be doing a great service to the Commonwealth, and therefore the Federal Arbitration Court ought to be encouraged, instead of being hindered and obstructed.
– If the Court were to be made general, would it not mean that ultimately demands would have to take the place of disputes?
– The proposals of this party include, not only a central Arbitration Court to deal with Inter-State matters, but we have also provided, in an amendment of the Act, as well as, to some extent, in the original Act of 1904, that the President of the Court shall have power to nominate deputies in any part of the States to deal with matters of purely local concern. There, immediately you have the opportunity for the retention of local State Courts, presided over by deputies of the President of the central Court.
– You would take all industrial matters out of the hands of the States?
– Certainly. There is no doubt as to the ideas of the members of this party, because we believe that Inter-State trade is becoming so increasingly inter-related that we must provide machinery to deal with disputes, whether local or universal. Unless they are all parts of one scheme, we shall never be able to accomplish satisfactory results.
– What about the sovereign powers of the States?
– The main thingto be secured is the industrial peace of the community - that is the first desideratum. To secure peace it may be necessary for, perhaps, both States and Commonwealth, to some extent, to give and take. The honorable member’s interjection reminds me of what Alexander Hamilton said of the thirteen original sovereign States of the United’ States. Those States, he said, were so jealous of what they called their sovereign rights that they would not spare a rag to cover the shivering form of the central Government. That history is being repeated in Australia. I admit the complete sovereignty of the States within their own sphere, but they are all so jealous of their State rights, of which my honorable friends opposite are the champion exponents, that they are not prepared, even when industrial peace may be secured thereby, to part with a shred of their sovereignty. What is the position to-day? Not only in Australia, but all the world over there is, I believe, a deep desire in the hearts of every member of every Parliament in the British dominions - and in other countries - to find some solution of the industrial problem. Arbitration is recognised to be a reasonable, honest, legitimate, and proper method; and we are advocating arbitration, not only in industrial disputes, but in international and other disputes.
– Does the honorable member think that arbitration is successful?
– Of course, it is. The industrial disputes of to-day bear no comparison to the disputes of ten. or twenty years ago; and I pray we may never see the scenes of those days repeated. Men are getting more intelligence, and resorting to better methods, though whether these methods are effective is, perhaps, open to dispute. The workers of the world, and particularly the workers of Australia, are, however impatient of the legal difficulties attending arbitration - of the delay, expense, and interminable appeals, prohibitions, man.damuses, and so forth - and they wish to know if there cannot be found a quicker and easier way. In 1904 two methods were adopted in the endeavour to prevent disputes. The first was that of a friendly conference to which the President of the Arbitration Court, on his own initiative could invite the two parties to talk matters over and endeavour to arrive at a mutually satisfactory decision. That method failed hopelessly, for the simple reason that an award made by a Judge in a friendly conference was binding only if both parties chose at the last moment to accept it. Then there was tried the method of compulsory conference; but when one party, accepting the summons, attended the conference, and sat back refusing to discuss matters, the Judge found himself hopelessly tied and unable to do anything. The compulsory conference failed; and there was nothing left but the Court. But what has been our experience of the Court during the past ten years ? Honorable members, I am sure, will be glad to recognise the value of the services the Court has rendered in many cases; and it is a tribute to its work, and to the wisdom of the gentlemen who have occupied the position of President, that in every case, without exception, the award nas settled matters in the particular industry affected. At any rate, there has been no disputes since in those industries, as shown in the cases of the shearers, the waterside, workers, and many other employes in other industries. Some twenty-nine awards have been given, and I claim that in every case they have made for industrial peace.
– They have only paralyzed the speech of one party, and not settled matters
– They certainly have not paralyzed the speech of one party. I remember last year reading in the Melbourne newspapers a report of the proceedings at the annual meeting of the Victorian Chamber of Manufactures, the main speech at which was made by Mr. Brookes, though the honorable member for Darling Downs ventured a few rather interesting remarks on the occasion. Mr. Brookes went out of his way to insult and misrepresent and to quarrel with the President of the Arbitration Court, concluding with the remark that if the employers had to choose between an earth quake and the Arbitration Court, they would pray God to send the earthquake, because it would mean sudden death, and their exact position would be known. The awards of the Arbitration Court have certainly not paralyzed the speech or prevented criticism by honorable members opposite and their friends. We are told that we on this side have criticised the High Court, and it is true that we have done so. I am glad to hear this afternoon that criticism is not objected to.
– The Chief Justice has upheld the right of public criticism.
– 1 have criticised the Chief Justice very severely outside, and I am prepared to do so again here. When one remembers that Sir Samuel Griffith had a good deal to do with the framing of the Constitution, one naturally feels that he will be timid about admitting the ineffectiveness and feebleness of the work of his .own creation. Mr. Groom. - Sir Samuel Griffith had nothing to do with the insertion of the particular provision by virtue of which this Bill is introduced. I think the present President of the High Court had more to do with it.
– I give Sir Samuel Griffith a good deal of credit as a very able lawyer, who has had considerable experience of parliamentary work in Queensland; but, having- been associated with the Conservative school, he naturally inclines in most matters to maintain Conservative traditions and standards. At any rate, if honorable- members opposite have any remarks to make about Mr. Justice Higgins being favorable to the workers, our retort is very simple. We can point to the fact that the previous President, ‘Mr. Justice O’Connor, was just as much disposed to favour the workers, as his decisions show, and that Mr. Justice Powers, who is at present acting for Mr. Justice Higgins, has shown an equal readiness to recognise their claims. And we have the further retort that Chief Justice Griffith and Mr. Justice Barton have shown a corresponding desire to obstruct and harass the workers in their claim to recognition. What are we going to do? Do honorable members opposite propose to go on tinkering and paltering with the question, or are they going to make a decided and determined effort to settle it? One thing may be taken for granted, and that is that, df we do not settle the matter in one way, -there is another way in which it will be settled, and in regard to which we shall not be consulted. T am not prepared to follow the honorable member for South Sydney in his proposal to abandon the Arbitration Act altogether, because I thoroughly believe in the principle of arbitration, and am prepared to apply and support it, but I join with the honorable member in saying that unless Parliament or the people can find some means whereby the Court can act quickly and cheaply-
– The Court must take evidence, must it not? In one case there were 308 points raised.
– If we cannot do something to prevent disputes as well as try to settle them, let us recognise the fact, abolish the,,Court, tear up the Act, and get back to ‘the good old method of the strike.
– In 1903 I predicted that this would be said.
– I hope the honorable member for Parkes will live long enough to see either his prophecy realized or something better in its place; and I do not think he would be disappointed if his prophecy were falsified. After all, the industrial peace of the community is a thing to be devoutly desired. Here we are treading along this path, and now “ we falter where we firmly trod.” We do not know where we are going ; and as this Bill may help us, it is worth while trying it. Until the people are again asked to give Parliament and the Arbitration Court sufficient power to deal with the problem in its broadest aspect, we ought to adopt what methods lie to our hands in order to secure the industrial peace of the community.
– There are few members who do not feel somewhat disappointed at the result of the efforts of this Parliament to secure industrial peace. The Conciliation and Arbitration Act was introduced with the highest and best objects in view, and every effort that could be made by this House towards the attainment of those objects was honestly made. Let honorable members ask their own conscience where is the root of the trouble that has arisen. The terms of the Act and of the Constitution itself are, on . the face of them, apparently clear and explicit. By reason, however, of what has taken place, and particu larly because of the action of the unions themselves, all the complication, confusion, and trouble now complained about have been created. I do not desire to speak with any degree of heat, but merely to call the attention of honorable members to the spirit and intention of the Constitution, and our experience in regard to industrial arbitration during the last ten years. There having been established in the several States tribunals for the settlement of industrial disputes to deal with local disputes, there remained to be provided for some tribunal to deal with disputes which naturally overflowed or extended beyond the “limits of any one State, and became of an Inter-State character. That was the line of demarcation; all local disputes were to be settled by the local tribunals, and splendid efforts were put forward in all the States to give those tribunals the most extended powers within State jurisdiction.
– Especially in Tasmania !
– It was ultimately done in Tasmania. The intention and spirit of the Constitution were that Inter-State matters should be dealt with by an Inter-State tribunal. Disputes in regard to great industries, such as’ shipping and shearing, would naturally come under such a tribunal, in addition to which it is inevitable that disputes in regard to other large industries, as the result of Inter-State Free Trade, would overflow from one State to another. But unions were not satisfied to resort to local tribunals for the settlement of their local disputes.
– It was more the leaders than the , unions.
– I am referring particularly to the leaders of the unions, who were not prepared to use the State tribunals, which prior to Federation were availed of, and regarded as of great value. What those leaders of the unions did was to distort the terms of the Constitution; and it is by reason of that distortion, and by a process of engineering, that they have managed to manufacture and create disputes for the Federal Court. That is the root of the whole trouble;, by a process of artificial and machine-made disputes the spirit of the Constitution has been violated, and the Commonwealth tribunal used for purposes never intended.
– Give us an illustration.
– I will. Take the woodworkers’ dispute, which originated in Western Australia. It was a local dispute between the woodworkers of that State and their employers, and, under ordinary circumstances, and according to the spirit of the Constitution, it should have been settled by the State tribunal, which had been established for the purpose. But the Western Australian woodworkers were not content with the reference of their dispute to the local tribunal. At that time the woodworkers throughout the rest of Australia were all working contentedly. The relations between them and their employers were of the most harmonious character. But what took place ? Representatives of the woodworkers of Western Australia visited South Australia, . and disturbed the employés in the same trade there. Then they went to Tasmania, and afterwards to Victoria and New South Wales. Finally, they visited the softwood workers of Queensland. The result was that, though the dispute was originally centred in Western Australia, turmoil and trouble were deliberately spread throughout the length and breadth of the Commonwealth. My honorable friends asked me to cite an example. I have done so.
– I do not appreciate it.
– My honorable friends never appreciate facts. The Arbitration tribunal thus became, not a means for the prevention and settlement of disputes, but an instrument for unsettling all the workers of Australia in that particular industry. As the result of this distortion of the terms of the Constitution and of the employment of these artificial methods, arbitration has become the confused, complicated, and expensive process of which we now complain. The example which I have quoted is a typical one. The majority of the disputes which have reached the Commonwealth Arbitration Court are the result of these same artificial methods of manufacture. In such circumstances, I ask, Can we expect anything but confusion and serious expense in regard to arbitration matters?
– What did Judge Heydon say ?
– If my honorable friend will remind me later on, I will gladly deal with that aspect of the matter. The Chief Justice of the High Court rebelled against this condition of affairs, and against this distortion of the terms of the Constitution. He said that the employment of these artificial methods was a fraud on the Constitution.
– Did not Mr. Justice Heydon, of New South Wales, say that he could not increase the wages of the boot operatives in that State because of the wages paid in Victoria?
– If my honorable friend will permit me, I will refer to that matter later. I say that the leaders of the political unions are wholly responsible for this ocean of expense and for the confusion and trouble incidental to the working of the Arbitration Court.
– The honorable member has not given an atom of proof.
– I have given facts. I have cited the woodworkers’ case in support of my statement, and I repeat that that case is a typical example of the artificial means which have been resorted to by which the Constitution has been abused. I realize at once that the object of arbitration should be simplicity, expedition, and inexpensiveness. Our aim should be the peaceful settlement of industrial disputes, and that aim we should seek to attain by every possible means. I admit the difficulty which would be experienced if there were no Federal tribunal for the settlement of these disputes. I recognise the different conditions which exist in the various States. I acknowledge that the aim of our Constitution is complete freedom of intercourse throughout the length and breadth of Australia. I realize that Inter-State disputes must occur, and that we should strive to establish some Federal tribunal for dealing with them as they arise. With this end in view, let us retain the principle laid down in our Constitution for the settlement of local disputes by State tribunals. Our Constitution contemplates only the settlement of industrial disputes extending beyond the limits of one State. Section 51, paragraph xxxv., provides -
The Parliament shall, subject to this Constitution,have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -
Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.
Cite as: Australia, House of Representatives, Debates, 18 November 1914, viewed 22 October 2017, <http://historichansard.net/hofreps/1914/19141118_reps_6_75/>.