10th Parliament · 1st Session
Mr. Speaker (Hon. Sir Littleton Groom) took the chair at 11 a.m., and read pray ers.
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Australian Delegation to Assembly
– According to a report in this morning’s newspapers, the Australian Delegation to the Seventh Assembly of the League of Nations will comprise the Attorney-General (Mr. Latham), Sir Joseph Cook, Mr. A. G. Manning, M.P., Sir Arthur Rickard, and Miss Freda Bage. Will the Prime Minister state whether that information is correct, and, if it is, why the Government so studiously refrained from appointing anybody holding democratic views ?
– The personnel of the delegation as published in this morning’s newspapers is correct; I announced it in this Chamber last night. If the honorable member will study the list of delegates, he will come to the conclusion that the Government could not have made a more representative and democratic selection.
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Commemorative Stamp
– Will the Postmaster-General say whether he has arrived at any definite decision regarding the issue of a special, stamp to commemorate the opening of this Federal Parliament at Canberra?
– A- limited number of penny-halfpenny stamps of commemorative design will be issued. Competitive designs will be invited from all parts of the world, but the engraving and printing of the stamp will take place in Australia.
– Are not the finances of the Postal Department . flourishing enough to warrant the commemoration of this important event by the restoration of penny postage?
– Since I have been in office, awards of the Arbitration Court and superannuation have involved, my department in an increased annual expenditure of £1,000,000. The reduction of postage from 2d. to1½d. reduced the revenue by over £1,000,000, making a total of more than £2,000,000 in three years. The restoration of penny postage would reduce the revenue by yet another £1,000,000. I may add that if our telephone charges were increased to the rates charged by private companies in the United States of America the revenue of the department from that source would be £3,000,000 greater than it is.
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– I rise to make a personal explanation. A report in one of the morning newspapers attributes to me the statement that the Prime Minister had, upon the platform and in this Chamber, attacked the last President of the Arbitration Court. Although the right honorable gentleman has many sins, this is not one of them. What I said was that the right honorable member for North Sydney . (Mr. Hughes) had attacked a president of the Arbitration Court on the floor of the House, and in the press.
– May I explain that I intended to call attention to what I was sure was a mis-report, because, although I listened to the honorable member’s speech, I did not hear him make that accusation against me. If such a statement had been made it would, of course, have been quite incorrect.
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– About eight days ago the Prime Minister stated that the Government was considering the request for the payment of a bounty upon the production of cotton and cotton yarn. Since then I have received fully a dozen telegrams asking for information as to the intentions of the Government. Is the Prime Minister yet in a position to make an announcement oh the subject?
– The Government is considering the report of the Tariff Board on the proposed cotton bounty, but I am not yet able to announce any decision.
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Importation and Control
asked the Minister for Trade and Customs, upon notice -
Federal Government brought under the notice of the State Governments the desirability of taking uniform action to control the use of dangerous firearms?
– The answers to the honorable member’s questions are as follow : -
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Imports and Exports - Excise
asked the Minister for Trade and Customs, upon notice -
– The information is being obtained.
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– On the 16th June, the honorable member for Richmond (Mr. R. Green) asked the following questions : -
I am now able to furnish the honorable member with the following information : -
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In committee: (Consideration of GovernorGeneral’s message).
Motion (by Mr. Latham) agreed to -
That it is expedient that an appropriation of revenue be made for the purposes of a bill for an act to amend the Commonwealth Conciliation and Arbitration Act 1904-1921.
Resolution reported and adopted.
In committee (Consideration of bill resumed from 17th June, vide page 3267) :
Clause 3 -
The principal act, as amended by this act, and every provision of that act as so amended shall, in relation to any question of legislative power, be construed as if that act were, as from the commencement of this act, confirmed and re-enacted as so amended; to the intent that where any provision of the Commonwealth Conciliation and Arbitration Act 1904, or of that act as amended by any act or acts, -has before the commencement of this act been, or would, but for this act, have been, construed as being in excess of the legislative power of the’ Parliament, that provision shall, as from the commencement of this act, be read with and deemed to have been enacted in relation to the amendments made by this act.
– The Arbitration Act provides that certain judicial powers, including the enforcement of the act and the interpretation of awards, shall be exercised by the President and Deputy Presidents of the court; but as it limits the tenure of those officers, the High Court has held that the provisions relating to enforcement and interpretation are ineffective. It is doubtful whether an amendment of the section relating to tenure would effectively validate the provisions affecting enforcement and interpretation. Honorable members almost unanimously desire that the judges of the court shall have complete judicial power. In order, therefore, to obviate the possibility of the argument being raised that existing provisions as to judicial power, which are ineffective because that power is conferred upon unqualified persons, cannot be validated by making those persons qualified, this clause provides that the principal act as amended from time to time shall be construed as if it were confirmed and re-enacted by this bill. In other words, this clause is an explicit declaration of the intention of Parliament that the judges of the Arbitration Court shall exercise those judicial powers which the existing act purports to confer upon the President and Deputy Presidents. It will fully clothe the court with those powers which Parliament thought it had originally conferred upon it. To remove a possibility of doubt as to the meaning of the clause, I move -
That the words “ in relation to any question of legislative power” (lines 3 and 4), be left out.
– Do I understand that this clause will apply to the members of the Deportation Board?
– This legislation will not in any way affect the gentlemen who held seats on the Deportation Board.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 4 and 5 agreed to.
Clause 6 -
Sections 12, 13, and 14 of the principal act are repealed, and the following sections inserted in their stead: - “ 12. The chief judge and the other judges -
shall be appointed by the GovernorGeneral in Council; and
shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.
The qualifications of the chief judge and of each other judge shall be as follows : -
He must be a barrister or solicitor of the High Court or of the Supreme Court of a State of not less than five years’ standing. 14. (1) The chief judge shall receive a salary of £3,000 a year, and each other judge shall receive a salary of £2,500 a year, and the Consolidated Revenue Fund is to the necessary extent hereby appropriated accordingly.
The chief judge and each other judge shall be paid such travelling expenses as are prescribed. 14A. A judge, other than the chief judge, shall have and may exercise such . of the powers of the chief judge under this act as are assigned to him by the Governor-General. 14b. (1) Where a judge has served in that office for not less than fifteen years, he shall, on retiring, be entitled to an annual pension at the rateof one-half of his salary.
If a judge retires on permanent disability or infirmity, he shall, if he has served in that office for not less than five years, be entitled, on retiring, to an annual pension at the rate of twenty onehundred ths of his salary and at the additional rate of three onehundredth s of his salary for each complete year of his service after the expiration of the said five years to the date of his retirement, but so that the rate of his pension shall not exceed one-half of his salary.
The pensions of the judges shall be charged on and paid out of the Consolidated Revenue Fund.
They shall grow due from day to day, but shall be payable monthly.”
– This clause relates, among other things, to pensions for the judges of the court. The honorable member for Macquarie (Mr. Manning) has given notice of an amendment which he proposes to move to the Judiciary Bill regarding the pensions of High Court judges.
.- Will the honorable member permit me to explain? I understand that he proposes to move to this bill an amendment similar in terms to that which has been circulated by the honorable member for Macquarie (Mr. Manning) in respect of the Judiciary Bill. That matter relates to the proposed new section 14b. The earlier provisions, as honorable members have said, are also of importance. Proposed new section 12 is in the same terms as section 72 of the Constitution, because it is desired to make it perfectly clear that these judges are to exercise judicial power in the sense in which that phrase is used in the Constitution. Proposed new section 13 amends the existing provision of the act, which provides that the qualification for appointment shall be that the President shall be one of the justices of the High Court, and the Deputy President may be a justice of the High Court, a judge of the Supreme Court of a State, or other persons qualified as legal practitioners.
– Why place a limitation on the qualifications?
– I shall deal with that matter in a moment. The first point is that the existing act provides that the
President must be a justice of the High Court. That provision does not impose any obligation upon anyjustice of the High Court to accept appointment to the Arbitration Court, and, in fact, no justice of the High Court is at present willing to accept such an appointment. This amendment is therefore necessary. The other point is that the existing provision that members of the legal profession shall constitute the court, will be continued. That is necessary, because the court will exercise judicial powers by imposing penalties on members of the community. It would be unusual to give to persons without legal qualifications the power to fine citizens, and possibly to send them to jail.
– The arbitration judge will be a criminal judge as well ?
– I am speaking of the imposition of penalties under the Arbitration Act. There has never yet been a case in which such powers have been placed in the hands of persons not specially trained to determine the nature of an offence, and to pass judgment upon the admissibility of evidence in relation to it. On that ground it is necessary that the members of the court shall be members of the legal profession in accordance with the universal practice in British communities. If we had more extensive powers under the Constitution it would bepossible to insert in the bill a provision of an entirely different character relating to wages boards and committees of conciliation, which need have no power to impose penalties at all, and whose duties would be confined to industrial regulation. Under our existing powers, however, unless the enforcement of penalties is to be left in the hands of every court except the Arbitration Court, this amendmentis necessary. It is generally agreed by both sides in industry that the Arbitration Court should, in effect, administer the act judicially, and that this power should not be exclusively in the hands of other tribunals, as is the case at present.
– Is there no power under the present Constitution to appoint wages boards ?
– Under the present Constitution, wages boards, on the Victorian model, could not be appointed, because we can utilize the method of arbitration only. Wages boards act on their own knowledge, independent of parties and representations of parties.
– Could not tribunals be appointed ?
– Yes, under the Industrial Peace Act, but in that case there must be a dispute between two parties. The great advantage of the wages board is that it operates independently of the existence of disputes. Under our constitutional power, it is necessary that there should be a dispute, and even then the power of the tribunal to be constituted is limited to arbitration and conciliation for the purpose of settling that dispute. It is quite true that any tribunal appointed would be constituted in such a manner as this Parliament thought proper, but even them it would not be able to function as a wages board. It could only arbitrate or conciliate for the purpose of settling a particular dispute.
.- I hope that the Attorney-General will agree to submit each proposed new section separately. The whole body of the bill is contained in clause 6, and it would be unfair to expect us to deal with the clause in globo. I regret that the Government will not seek increased power from the people to enable us to determine the conditions under which the judges will be appointed, but I shall not labour that subject, because it has already been fully discussed. Proposed new section 13 reads -
The qualifications of the Chief Judge and of each other judge shall be as follows : - He must be a barrister or solicitor of the High Court or of the Supreme Court of a State of not less than five years’ standing.
I can see noi reason for that new section, because the Government in choosing judges should not be restricted to barristers or solicitors of five years’ standing. The best men should be selected for the position, and personal qualities should be considered before judicial training. Some of the best arbitrators in the past have been men of little or no legal training. Assuming that the Government’s policy in selecting barristers or solicitors is a wise one, I wish to know why the choice should be limited to barristers or solicitors of five years’ standing. There may be many excellent men who have not actually practised at the bar, but who have excellent qualifications for the position. They may have a standing of only two or three years. I have in mind a man of about 40 years of age who was recently admitted to the bar. He is an officer of the Commonwealth service; but I am not necessarily suggesting that he should be appointed to one of these positions, although, if he were regarded from the stand-point of his probable success as a conciliator and arbitrator, his chance of appointment would be good. He has had wide experience, and has settled many disputes. I cannot see why this Parliament should tie its hands in the making of appointments of this character. Some honorable members opposite may criticize the Labour Governments of Queensland and New South Wales for not appointing lawyers to all judicial positions. They selected men who, in their opinion, would be best able to discharge judicial functions. I said last night that the right honorable member for North Sydney (Mr. Hughes) showed his wide knowledge of industrialism when he had to deal with the difficult industrial problem associated with shipbuilding. He appointed a layman, Mr. Connington, to the shipbuilding tribunal because of his wide industrial experience, his tact, and his understanding. That appointment was responsible for one of the greatest industrial successes of that troubled period.
.- A little alteration would greatly improve this clause. There may be some justification for insisting that the chief judge should be a member of the legal profession, but that limitation should not be applied to the appointment of the other judges. Many persons without legal’, training are better able to judge industrial matters than are lawyers. Knowledge of the world is sometimes of greater value than knowledge of the law, and all the wisdom of the human race is not by any means confined to lawyers. A number of the men who practise in our courts have shown marked ability in handling business problems. I do not know that business men make more mistakes than lawyers. Any judge would be sorely puzzled if be had to deal with the technicalities of my trade. The appointment of men with experience of the world would tend to bring the court into favour with the workers. My object is to make the court an institution to which the workers and the employers can look with confidence and respect. I move -
That in proposed new section 13 the words “ and of each other judge” be left out.
– This may be regarded as the vital clause of the bill, for it deals with the constitution of the court which will exercise the powers of this Parliament under paragraph xxxv., section 51, of the Constitution.I have always been a strong advocate of arbitration, but my experience has led me to believe that the most effective form of what is called arbitration - if by arbitration we mean a legalized method of adjusting industrial differences - is not a court, but a tribunal which may take the form of a wages board, or a round-table conference at which the parties are equally represented under an independent chairman. The honorable the Attorney-General (Mr. Latham) informed me, in reply to a question put to him yesterday, that we cannot set up wages boards under the limited powers conferred in our Constitution; but that is only true if we are to postulate for the wages boards power virtually to legislate in industrial matters.
– It is a matter of procedure as well.
– Wages boards under the existing industrial power could deal only with a de facto or a de jure dispute.
– And only by the method of conciliation and arbitration.
– I cannot see that that is a serious limitation of our powers. To anticipate is almost to invite a demand. It is surely enough that we should provide redress for a grievance that exists. Therefore a wages board to deal with de facto and de jure disputes would not be under any serious disability. But, if we create a tribunal that will be free to roam over the whole industrial field, anticipating industrial unrest - to create a storm where there was a placid sea - we shall invite more trouble than in the nature of things seems to be our lot. I do not accept the conclusion that the honorable the Attorney-General draws from the real limitation of our industrial power. We are about to appeal to the people for wider power, under which it is intended to create authorities. Just what those authorities are to do is not now so clear as it was a day or two ago, although there was much doubt about it even then. But, whatever they are to do, clearly from the wording of this clause it is not intended that they shall operate so as to exclude the authority which functions under our existing industrial power. There will still be a court - though one possessed of wider power - appointed for a number of years. We shall have appointed men to exercise the functions of arbitration judges. But the next Parliament may come to the conclusion that a court is, in some cases, not the best, and perhaps, in all cases, an imperfect instrument for the adjusting of industrial disputes. A judge must stand aloof,’ and the questions which arise in industrial conflict cannot be understood by those who do so. The . nature of industrial disputes is such that the relation between the person whose duty it is to settle them and the disputants ought to be intimate. A conciliator or arbitrator should not be solely dependent upon evidence; he ought to have knowledge and experience. The judges of the Arbitration Court are eminent men, learned in the law ; but it cannot be said that any of them has had much experience of industrial affairs. It is extremely difficult, in fact, to find suitable men with such experience. Under the existing system, decisions are given on the evidence adduced in court, and any one who has practised in the courts knows what such evidence usually amounts to. The procedure before a wages board is entirely different. The members of a wages board - employers and employees - know all the circumstances of the industry with which they are concerned, and it would be useless to spend time in calling evidence intended to enlighten, or, if you like, befool them. I favour a system having a court at its apex, but in which the ensuring of justice and the securing of industrial peace will rest mainly with wages boards or similar tribunals.
– The court would be a sort of an appeal court.
– The court should be an appeal court.From my experience, better results would be obtained in that way. and in less time. When the case of, let us say, the ironmoulders, is brought before the court it is necessary for the employees’ representatives to inform the legal mind on the bench of the technical details of the industry from the standpoint of the workmen, and then the employers’ representatives put the case from their point of view, and since the President of the Court has no first-hand knowledge of the industry, he is confused rather than enlightened, but a wages board would at once get down to the real issues of hours, wages, and conditions, which are always the substance of a dispute. It would be better, in my opinion, to make, these provisions more elastic. I have no objection to a court - I believe in having one - but I consider that it would achieve more satisfactory results by acting through other instrumentalities, reserving for itself only the final word, in case of some special emergency. It is proposed to appoint the judges for life. If they are so appointed some work must be found for them to do; and if another Government came into office with different views on the industrial question, it would be saddled with that responsibility. I quite understand the object of the AttorneyGeneral in submitting this proposal. He desires to give the judges, or the persona who exercise this arbitral power, the qualification necessary to enable them to impose penalties; and under the Constitution that can only be done by appointing the judges for life. It is admitted on all hands that our Arbitration Court has now inadequate powers, but, as we are going cap in hand to the people to ask for more power, we should merely consider this measure as the effecting of temporary repairs to the ship to enable her to make port, hoping later to get another which will better serve our requirements. But the alterations proposed by the bill in the existing law are so elaborate and expensive that it would appear that we have no faith that the vessel will ever be replaced by one more suited to our service. Possibly in this we are wise, for frequently those. who go to sea in fairy argosies do not weather the storms.
– The right honorable member said that the disadvantages as well as the advantages of the scheme were obvious. What are the disadvantages?
– Our experience shows that the Arbitration Court is unable to bring about industrial peace It has been quite impotent to settle the two strikes which are just at an end; nor could it settle the strike which occurred last December. Apparently the court can only settle strikes that do not matter. As soon as an interruption in an industry becomes serious, it says, “We cannot deal with it; we have no jurisdiction.” In my opinion we are more likely to get industrial peace by setting up some kind of grand industrial council, upon which the leaders of industry and tho leaders of Labour will be represented, and having subordinate to it State councils, and subordinate to them, various boards or tribunals to deal with particular industries. That scheme was suggested by me some years ago and was supported by the Labour organizations, and until we get a scheme that is acceptable to them we cannot hope for success. I realize that the Government has other ideas on the subject, so I shall not obtrude mine any further.
– The real issue raised by the amendment of the honorable member for East Sydney (Mr. West) is whether only the chief judge of the reconstituted court shall be a lawyer. He suggested that that would be quite sufficient for all purposes. But I” remind honorable members that under sections 6 and 6a of the act provision is made for the imposition of penalties up to £1,000. in certain cases; and under section 38c penalties up to £1,000 may be imposed in the case of organizations of employers and employees, and up to £10, in the case of individual members of organizations. In existing circumstances they may be inflicted by almost any court except the Arbitration Court; but only by persons who have, what I may term the constitutional qualifications. Obviously penalties of this character should be imposed only by persons who understand the rules of evidence, and whose legal training is adequate to enable them fairly to determine on the evidence whether an accused person is guilty or not guilty. It would be entirely unprecedented for us te commit the imposition of such penalties as these to persons without legal training. If only one member of this Bench is legally trained, it will mean that prosecutions from all over Australia, against organizations aswell as individuals, will have to be heard before him. That might be convenient for Melbourne unionists or employers, but it would mean that unions and employers in other States would have to bear the expense of distant proceedings; or have their cases dealt with by their State police courts.
– Would not that apply in any circumstances?
– It would not apply to anything like the same extent if the three judges were qualified to impose penalties.
– Is it intended that these three judges shall travel from State to State?
– Undoubtedly; they will sit in the various parts of the Commonwealth just as the present judges do. I point out to honorable members that if only one of the judges has judicial power to impose penalties and interpret awards, there will be great confusion, for the chief judge would be able to do so much more than his colleagues could do.
– Is it provided in the Constitution that judicial power shall be exercised only by barristers or solicitors?
– No, but I submit with great confidence that it is essential that the persons clothed with power to impose these heavy penalties and even imprisonment should have legal qualifications and a proper understanding of the law.
– If the Attorney-General means to say that only trained lawyers have any sense, he is wrong.
– My acquaintance with the honorable member should prevent me from falling into that error. In my opinion, it is essentia] to the satisfactory working of the present act that all three occupants of the bench shall be men of legal training, otherwise serious confusion would occur, and the first to complain of it would be the members of unions for whom, I presume, the honorable member for East Sydney is speaking. It would be a mistake to set up distinctions between the chief judge and theother judges; all of them should be well versed in the rules of evidence and competent to expound the law. It is just as desirable that a man should get a fair trial before the Arbitration Court as before any other court. The provision for a five years’ period is in the existing act. It has always been a requirement that there must be a minimum period of experience in the profession before a man is placed in a position of judicial power. The obtaining of a university qualification does not in itself confer upon any individual the necessary capacity for administering the law. I would say also that the mere possession of a period of five years in the profession does not confer on every man that standing for capacity; but without the experience of at least five years in the profession it is highly improbable that a man would have sufficient knowledge to enable him to deal competently with all the matters upon which he might have to pass judgment.
– The provision is for the protection of the litigant.
– It is for the protection of the public, and in particular of the litigants. I am in agreement with much that the right honorable member for North Sydney (Mr. Hughes) had to say about wages boards. My own view is that, although probably it would be very desirable that inquiries into certain general questions, such as standard hours and the basic wage in industries generally, should be made by a central arbitration tribunal, serious difficulties would arise if such a tribunal were to determine the detailed conditions for all industries. The conditions laid down in awards are sometimes of very great importance to all concerned in industries. I agree that it would be very desirable if we could set up means for determining particular conditions and trade relations between workmen in varying grades other than by a court of jurists. But under our present powers wages boards cannot possibly be introduced in such a way that they could work. Our present power depends upon the existence of a dispute, and arbitration is confined to the purpose of settling that dispute. A wages board could operate only within the limits of a dispute. The description of the limits of a dispute is not easy. We should still require to continue the procedure we have at present, for the serving of the log and the like. Under the present Federal powers it would be very difficult indeed for any body of laymen sitting on a wages board to know where they were. It is not sufficient to have a dispute. The award must deal with that dispute and must not go beyond it. Under our present constitutional powers the arbitrating body is not able to determine what it thinks fair and just in order to bring a dispute to an end; it has to operate within the limits of the dispute. That has been settled by the High Court in a series of decisions that are very difficult to understand. To set up a system of lay arbitrators under our existing powers would lead to almost endless litigation.I assure honorable members that there will be a great saving of time and expense to all concerned under our present system if these powers are conferred upon men who are legally trained.
– If conciliation is to depend on the work of the boards, we should hardly need these judges.
– The judges would be needed under any system. As the right honorable member for North Sydney put it, there must be a court at the apex of the system. I understood the right honorable gentleman to intimate that he thought the court should be a general body of appeal. Personally, I do not accept that position in industrial affairs. There should be a very severe limitation upon appeals, and upon the legal element generally. At the same time, in my view it will always be necessary to have a body like this to determine certain general matters; such, for example, as standard hours and the basic wage, which it is not wise to leave to be determined by uncoordinated lay tribunals. If the extended powers to be asked for by referendum are granted, we shall have a much more elastic and much more sensible system than we have at present.
.- I am sorry that the Attorney-General (Mr. Latham) cannot accept the amendment. I have every respect for lawyers, but I have had a very unfortunate experience of their lack of practical knowledge when dealing with certain occupations in this country. I can give an illustration of this in the definition of a seam of coal laid down by a very eminent lawyer. Certain payments per inch are made where a seam of coal is less than the thickness of 5 feet, and refuse is paid for on the basis of what is known as a standard seam of 5 feet. In giving his decision,the eminent lawyer to whom I refer, instead of defining a seam of coal from the roof to the bottom, decided that where there was 15 feet of coal from the roof to the bottom, a standard seam of 5 feet might be taken out of the centre; payment should be made for the refuse in that 5 feet, and no account need betaken of the rest. In the mine in which I worked at the time, following upon that decision the practice adopted was to takeout the 5 feet in the centre, and the coal was being ruined for four solid years before any change in the definition of a seam was made. It was ultimately made by a common-sense practical arbitrator. I mention the matter to show that in the coal-mining industry, in which the conditions of the work are constantly changing, it is necessary to have boards appointed which can deal at once in a practical way with questions submitted to them.
– We need first-hand’ knowledge.
– Yes; the first-hand knowledge of practical people. Without that knowledge we must add immensely to the cost of arbitration.
– What is suggested is very sensible, but there are grave difficulties in the way of the adoption of the suggestion under the present system.
– Why not changethe system ?
– That is what the Government is trying to do in asking for additional constitutional powers.
– I agree that the imposition of penalties for refusal to comply with awards should be left to a judge, but that should not prevent the adoption of a system enabling practical men to determine the conditions in any industry. . The whole of the shearing industry was held up as the result of a huge mistake in connexion with the method of counting sheep. I heard some men talking about that only a little time ago. The reason why the arbitration system is not operating satisfactorily to-day is that the legal expenses involved are too high. Imagine unions having to pay £10,000 to secure a hearing of their case ! That is quite wrong. The sooner we get back to simplicity, andmake provision for the appointment of local and practical tribunals, able to give decisions quickly, the sooner we shall have industrial peace.
– That is where conciliation committees will be found useful.
– Conciliation, of course, has its proper place in the settlement of industrial disputes, but I am referring to the necessity for the appointment of practical boards, the members of which, because of their special knowledge of industries in which disputes occur, may be able to settle them promptly, instead of those concerned having to wait for, it may be, two years before their case can be heard. I hope that the Attorney-General will even now agree to an amendment enabling the Government to appoint boards of laymen to deal promptly with industrial disputes. It is true that we propose to take a referendum to secure additional constitutional powers, but in the meantime there is considerable “industrial trouble in the different States. There are hundreds of men out of employment at present because there is no tribunal available to promptly settle industrial differences. There should be such an amendment made in the bill as would enable the Government to appoint practical laymen to carry out a job requiring practical knowledge. If the Attorney-General will not agree to such an amendment we cannot compel him to do so because, unfortunately, we have not the numbers. We can only hope that whatever new scheme of arbitration is decided upon by the Parliament it will be based upon common sense and will not perpetuate the high costs and delays of the present system.
.- I must compliment the Attorney-General on the time it took him to explain what is proposed, and on his loyalty to the profession of which he is a member. The honorable gentleman spoke of the necessity of legally-trained men dealing with penalties. I think it will be admitted that Judge Webb has carried out his work very creditably. There is a good deal of common sense in some of his judgments, and he has not done anything outrageous, as it was suggested by the Attorney-General might happen in the circumstances he outlined. Mr. Babble, as chairman of the coal tribunal, has brought common sense to bear in his judgments. We have been told that there is no precedent for what has been proposed from this side; but one of the powers conferred by the people upon the political Labour party is to establish its own precedents. Of what use is it to . debate a question if we are to be tied to precedent? If we are to blindly follow precedent we shall never make any advance. I do not share the fear expressed by the Attorney-General that persons who have not had legal training would do injustice in the hearing of industrial disputes. I believe that they would bring their common sense and knowledge of the world into their consideration of the matters submitted to them, and if called upon to impose penalties, would be guided by the evidence submitted to them. The standing committees of this Parliament receive and weigh evidence, and although they do not include any legal members, they produce some of the most valuable reports that are made to this Parliament. We should not be wedded to precedent; ths Labour party, being a progressive organization, creates precedents. The- purpose for which the Arbitration Court was established is defeated because legal technicalities are allowed to override common sense. The reasons advanced by the AttorneyGeneral are not an effective objection to my amendment. Unless the court is popular and has the confidence of tho people it cannot be a success.
– The amendment has much to commend it. The Attorney-General (Mr. Latham) argued that if laymen were appointed to the court, its judical character would be impaired to some extent. In Western Aus tralia representative industrialists who, by long years of association with unions, have a good working knowledge of the ‘arbitration law have been appointed to the court. A tribunal composed of qualified laymen representing the workers and the employers, with an independent president to hold the balance truly ‘ between them would compel more confidence than a bench of three lawyers. Our object should be to inspire in employers and employees alike complete confidence in the court. The right honorable member for North Sydney (Mr. Hughes) said that one weakness of the present court is that all its members have had only a .legal training. Whilst legal training fits a man for judicial functions, and is of supreme importance, it does not give to him that wide knowledge of men and affairs that is so essential a qualification in a person arbitrating upon industrial matters. A court constituted as I have suggested would be a more forceful instrument for the promotion of industrial peace. What knowledge of the workers and the conditions in trades and industries can be possessed by a man whose whole life between childhood and his entry into the legal profession was spent at college and the university ? Even an industrialist can acquire a comprehensive knowledge of the conditions in different industries only by lifelong study I do not impugn the partiality of the judges, but men who have had no industrial experience undertake a hopeless task when they accept a seat on the Arbitration Court. The only members of the legal profession who are qualified to deal with industrial matters are those who have spent many years of their life amongst the workers, before lifting themselves out of the rut of manual toil. Such a one is the honorable member for Batman (Mr. Brennan), but few with his knowledge and experience of industrialism are to be found in the profession to which he belongs.
.- I understand that the Attorney-General stated yesterday, in answer to the honorable member for Swan (Mr. Gregory), that instead of delegating to the court the full industrial power that this Parliament is seeking from the people, it will prescribe the limits within which that power shall be exercised by the court. Throughout the discussion on the referendum proposals, I understood that the court would be invested with complete authority to deal with such questions as standard hours and the basic wage, and speaking to the amendment proposed by the right honorable member for Balaclava (Mr. Watt) to the bill relating to industry and commerce, I emphasized my belief that the court would deal with those issues free from political considerations and restrictions. That I considered the redeeming feature of the Government’s proposals. If, however, the powers of the court are to be measured out by Parliament as the AttorneyGeneral has stated, we shall,, in effect, whilst asking the court to fix the maximum hours of labour to be worked throughout the Commonwealth, direct it to award not more or less than, say, 44. A court so restricted could do nothing but fix a standard week of 44 hours.
– Or fix no standard hours at all.
– The AttorneyGeneral pointed out the advisability of having standard hours and the basic wage determined by a body which was entirely removed from political influence, and he said that its determinations would follow a thorough investigation of economic conditions. I should like to know from the Attorney-General whether I have taken aright his answer to the honorable member for Swan (Mr. Gregory),- and whether, when we constitute this court Parliament will have power to prescribe the limits within which the court shall exercise its power on such questions as the fixing of maximum hours pf labour and the basic wage?
, - I have already given several reasons for opposing the amendment, and have in advance, replied to the honorable member for Kalgoorlie (Mr. A. Green). The question raised by the honorable member for Fawkner (Mr. Maxwell) does not arise directly upon this bill, but, with the indulgence of the committee, I wish to say that wherever Parliament legislates for setting up an agency to perform any function, whether that agency be a commission, such as the Development and Migration Commission, appointed to discharge certain functions under an act, or whether it be an agency or authority of another kind, such as one to deal with industrial affairs, there is no means of forcing Parliament to confer any specified powers, or any specified degree of powers, upon the agency or authority. There is, however, in the case of the High Court a constitutional provision which in itself defines certain of the powers to be conferred upon an authority. Under the powers that are asked for ‘ under the Constitution Alteration Bill, it will be possible for Parliament to legislate with respect to establishing authorities with such powers as Parliament confers upon them to deal with industrial matters, &c. Those authorities would only have the power that Parliament conferred upon them to deal wilh industrial matters. For example, in the early days of the Arbitration Court the rural industries were excluded from its scope, but were subsequently includedtherein: Honorable members know of the dispute that has raged, and is still raging, respecting the exclusion of State servants from the sphere of the Arbitration Court. That is a matter entirely within the power of this Parliament to determine. In the existing act is a provision that certain determinations as to hours shall not be made by less than three judges. Accordingly, it would be possible, if Parliament thought fit, to confer only limited powers upon any authority, whether it be the existing court or any other body. Under the law as it stands, it would be possible to enact, for example, that the Arbitration Court shall settle disputes in the manner provided under the act, but that it shall not settle disputes in a given industry. This Parliament might also, under the existing powers, although it has never done so, provide that the court shall not have power to award more than a certain number of hours a week as the standard hours in any industry, or in . a given industry. Such legislation as that, however, would not fix the hours in any industry. If the Parliament limited the powers of the court, it would then be for the court to determine whether it would make an award. If it made an award, it would be bound by the limits prescribed by Parliament, whatever they might be.
– There might be a maximum .and a minimum’ limit.
– That is so; and if this Parliament were sufficiently foolish it might prescribe limits very close together. If Parliament greatly limited the power of the court it would then be for the court, or other authority appointed under new legislation, to consider whether any award as to hours should be made at all. It might very well say, “ This is an industry for which no award as to hours should be made.”
– It might decide, as the result of its investigation, that it could not make an .award in view of the limitation that had been placed upon it by Parliament.
– That is so, but Parliament could not, under this power or under the proposed new power, control the discretion of the court by forcing it to make awards as to hours and wages inindustry. It is true that Parliament would be able to confer on the court only very limited powers, and thereby confine it to a considerable extent.
– la there no way of obviating that by wording the proposals for increased powers?
– There is no way of obviating that save by an amendment of the Constitution.
-(Sir Granville Eyrie). - I allowed the honorable member for Fawkner (Mr. Maxwell) to continue his remarks, which were hardly relevant to the proposed amendment, but the Attorney-General is now entering into a general discussion of the whole bill. I am afraid that if he is permitted such great latitude other honorable members will claim the same privilege.
– I regret that, in my anxiety to explain the position, I have been drawn into a general, discussion.
.- I support the clause so far as it relates to the appointment of Arbitration Court judges, and the qualifications for the position. I do not intend to support the amendment moved by the honorable member for East Sydney (Mr. West), because it is eminently desirable that we should appoint three judges with legal training, and able to weigh properly the evidence placed before them. A provision should be inserted in the bill to enable the Arbitration Court to appoint assessors to assist it.
– That power exists under the present act, but has seldom been exercised. I shall suggest that it be made more real than it is, when we are considering the general amendment of the Arbitration Act.
– It would be better if we now considered the appointment of assessors to assist the Arbitration Court judges. It would certainly entail greater expenditure for the time being, but it would be cheaper in the long run if it brought about a more satisfactory working of the arbitration system. In the absence of assessors, the findings and awards of the court might not give general satisfaction, and the expenditure incurred in the hearing of cases would thus be absolutely wasted. The case of the painters and dockers was heard by Sir John Quick last year, and the employers claimed that special rates should be paid forpermanent and casual work. Previous claims by the Painters and Dockers Union were heard by Mr. Justice Higgins and Mr. Justice Powers, and on each occasion the justices refused to grant other than a casual rate. The painters and dockers are employed practically on an hourly basis. They may be employed on various work in connexion with ships from 7.30 a.m. until 3 p.m. or 4 p.m., when their services are dispensed with. The recent award of Sir John Quick provided for permanent and casual rates, but what I take exception to is that Sir John Quick made known his proposed award, and invited the parties to the dispute to offer any suggestions. The employers took the opportunity of submitting further evidence, to which the employees were given no opportunity to reply. Yet, on that evidence, Sir John Quick materially and fundamentally altered his proposed award, with the result that the painters and dockers in New South Wales went on strike. If assessors were appointed to assist the Arbitration Court judges, there would be fewer opportunities for industrial disputes. We should insert in the bill a provision giving the judges power to appoint assessors.
– Under the existing act any party is able to insist upon an assessor being appointed, but that right has not yet been exercised.
– It is the duty of this Parliament to provide for the appointment of assessors.
– Would it not be difficult to appoint assessors who would command the confidence and respect of both parties? They would either be employers or employees.
– The assessors would need to be representative of both parties to a dispute. With the assistance of expert assessors, the judge would be in a better position to make an award that would receive the approval of both parties.
Amendment negatived.
– The amendment which I wish to move on this clause is on the lines of an amendment of which the honorable member for Macquarie (Mr. Manning) has given notice. I regret that he is not present to move it, and I have, without authority from him, adopted the form of his amendment, because it appears to me to apply to this bill just as much as to the Judiciary Bill. When I first saw the amendment I thought that the objections to it outweighed the arguments in its favour, but since I have had an opportunity of considering it, I regard it as excellent. I hope that it will commend itself to. the committee. It raises the question of the age of retirement of Arbitration Court judges. This is a particularly suitable time to discuss this question, because, as there is no judge of the Arbitration Court, the merits of the case can be discussed in the abstract without reference to individuals. The amendment which I now move is -
That after the word “ entitled “ in proposed section 14b, the following words be inserted : - “ subject to the next following sub-section.”
The proposed new section willthen read -
Where a judge has served in that office for not less than fifteen years, he shall, on retiring, be entitled, subject to the next following sub-section, to an annual pension at the rate of one-half of his salary.
The proposed new sub-section referred to in the amendment is - (1a) In the case of a Justice who retires after attaining the age of 70 years, the annual pension to which he is entitled shall be at a rate less than the rate specified in the last preceding sub-section by one-tenth for each year or part of a year of his age, in excess of 70 years, at the time of his retirement.
The effect of the amendment will be that if a judge does not retire at the age of 70 years the pension to which he is entitled will be decreased by one-tenth for each year that he continues to hold office, so that, at the end of ten years, no pension will be payable. On the other hand, if he continues on the bench his salary will be twice what he would draw as pension. A chief judgeretiring at 80 years of age would draw in salary £15,000 more, and an ordinary judge £12,500 more than if he had retired at 70 years of age. At 5 per cent. those amounts represent an income of £750 and £625 per annum respectively. Many men whose names readily occur to the mind retained their mental abilities long after 70 years of age. The late Mr. W. E. Gladstone, Lord Halsbury - who was editor-in-chief of the Encyclopaedia of the Laws of England after he was 80 years of age - and Sir Samuel Way, late Chief Justice of South Australia, are instances of public men who retained their mental abilities until they had reached a great age. Every honorable member has personal knowledge of private individuals who have retained their intellectual powers far beyond the ordinary span of life. On the other hand, it has become the general practice, in the Public Service of Australia, at any rate, to fix an age at which every one, with a few exceptions, shall retire. The idea is that, although there are isolated cases of men possessing outstanding ability at an advanced age, that is not the general experience. The retiring age varies in different States. In some States it is 65’; but the” amendment of the honorable member for Macquarie suggests that 70 should be the retiring age, and I agree with that. Such a provision is not so necessary in the appointment of High Court judges. The experience and legal knowledge accumulated by a judge in his lifetime may enable him to deliver accurate judgments long after the age of 70, but I suggest that in the Arbitration Court, in particular, we should have men as judges who cannot be described as “ old,” and who have at least some adaptability of mind. In saying that, I am not disparaging the President or Deputy Presidents of the present court; nor am I attacking old age as such, which would be the last thing that I should wish’ to do. I have omitted the second part of the amendment of the honorable member for Macquarie, which makes provision for a judge who is 70 years of age at the coming into force of the Judiciary Bill. That would not apply to this bill, because there are no judges of the Arbitration Court. I hope that my amendment will not prevent the President and Deputy President of the court from receiving, the pension which their successors will be allowed under this bill. I should like an assurance from the honorable the Attorney-General on that point. There are a number of arguments, which I do not wish to elaborate, in favour of this proposal. There is, for instance, the argument that the retirement of a judge at the age of 70 gives opportunities for the promotion of younger men. The amend ment will not make the appointment of judges any the less a life appointment, but it will be a direct inducement to a judge to retire at 70. I wish to make this point clear, if it is the only point that I do make clear : As the chief judge will draw a salary of £3,000, and a pension on his retirement of £1,500, he would be more than human, or less than human, if he did not desire to continue to draw his salary as long as possible. The inevitable result of the bill will be that every judge will retain his office to the last possible moment; but if the amendment is agreed to, his pension rights will be decreased annually if he remains on the bench after reaching 70 years of age. That, at least, will take away from him the inducement to remain on the bench. A consequential amendment, by inserting the words “before reaching the age of 70 years” after the word “ infirmity “, in proposed new subsection 2 of section 14b,- will be necessary to bring that sub-section into line with the amendment.
– The amendment raises the important and interesting point whether it is desirable that there should be an age-limit to judicial appointments. The substance of the amendment is that there should be such a limit. The Constitution, as interpreted by the High Court, makes it impossible to appoint effectively Federal judges except upon a tenure for life. I should like to take this opportunity to remove a misapprehension as to the effect of that decision upon the present justices of the High Court. Those justices were undoubtedly appointed for life, and they hold their office under the provisions of the Constitution. The decision of the court affects the tenure only of future High Court justices. It will be beyond the power of . the executive to limit the term of appointment of future judges; but, before that decision was made, the existing justices had been appointed for life. Accordingly, it is a mistake to think that the present judges have, by their own decision, given themselves seats on the bench for life.’ The honorable member suggested that it was preferable to discuss this amendment on this bill rather than on the Judiciary Bill, because by so doing it would be possible to exclude all questions relating to the personality of the present judges. In a sense that is so, but it will be impossible to avoid that issue if a similar amendment is proposed on the Judiciary Bill. If the committee passes this amendment, it will still have to consider what provision it will make with respect to the existing justices of the High Court. In other words, I suggest that if the honorable member succeeds in his amendment, the difficulty to which he referred will not be avoided, but only postponed. This amendment provides an indirect method of fixing an age limit to judicial appointments. The intention of the Constitution in providing that the remuneration of the judges shall not be terminated during their tenure of office - “ tenure of office “ means “ life “ - is that there shall be no financial pressure on a judge to retire. The passing of the amendment would be an intimation that it is desirable for judges to retire at 70 years of age. That is an important question, but I suggest that it would be desirable to postpone the discussion of it until we are dealing with constitutional questions generally. That would be better than seeking indirectly to evade the provisions of the Constitution by putting pressure upon judges to retire otherwise than in accordance with the conditions contemplated by the framers of the Constitution.
– Could not the clause in the. bill be left unaltered, and the question, as it affects arbitration judges, be discussed on the Judiciary Bill?
– The Judiciary Bill and Arbitration Bill must be kept separate. This bill abolishes the position of President and Deputy President of the Arbitration Court, so that the honorable member is quite safe in leaving out the last portion of the amendment of which the honorable member for Macquarie (Mr. Manning) has given notice. The Government suggests that the embarrassment referred to will inevitably arise on the Judiciary Bill, and, having regard to the relatively short time involved, the importance of the issue, and the undesirability of doing anything indirectly which cannot be done directly, consideration of the amendment should be postponed.
Sitting suspended from l.3 to 2.15 p.m.
Progress reported
page 3306
– (By leave.) - For the information of the House I desire to announce certain changes which have taken place in the Government. For some time past, Senator Pearce, Minister for Home and Territories, has expressed a desire to be relieved of the position of a portfoliod Minister. He felt that the continuous and heavy administrative work of his department has precluded him from devoting the necessary time to the onerous legislative duties which his position as Leader of the Government in the Senate entail. It is also my desire that he should be able to devote more of his time to the legislative and policy side of the Government’s business. I therefore invited him to take the office of Vice-President of the Executive Council, and he has accepted that position. It is of interest that this arrangement is similar to that which obtained in the first Federal government, when the late Senator R. E. O’Connor was Vice-President of the Executive Council and Leader of the Government in the Senate. Senator Pearce will, of course, retain his seniority in the Cabinet as the third in order of precedence, and will continue as Leader of the Government in the Senate. Senator the Honorable Sir Victor Wilson, K.B.E., and the Honorable L. E. Atkinson, have tendered their resignations, which have been accepted by the GovernorGeneral. Senator the Honorable Sir Thomas William Glasgow, K.C.B., C.M.G., D.S.O., V.D., and the Honorable Thomas Paterson have to-day been sworn in as Minister for Home and Territories and Minister for Markets and Migration respectively.
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In committee (Consideration resumed) : Mr. SCULLIN (Yarra) [2.19].- The amendment does not really affect the principle involved in this clause ; its object is indirectly to alter the tenure of office of the judges, and to that extent I am prepared to accept it. But I object altogether to the granting of pensions to judges on their retirement. I take the view that judges should not be placed in a position different from that of other members of the Commonwealth
Public Service. We have many officers who are receiving salaries by no means equivalent to those paid to our judges, and they are contributing to a superannuation fund ; but it is not proposed that the judges shall do so. That, in my opinion, is wrong in principle. It may be argued that we provide old-age pensions for people who do not contribute to the scheme; but before persons can receive an old-age pension they must satisfy the authorities that they have practically no income or property; so they are in an entirely different position from the judges. I know that the judges of our courts are usually not appointed until they are at least in middle life ; they do not enter the Service in their youth like most of our officers. But, in my opinion, their case could be met by providing special conditions for them in the Superannuation Act. I have no desire to see them harshly dealt with, or to oblige them to pay exorbitant rates; but they should be subject to the same treatment as other public servants.
– It may not be possible to fix the scale of contribution for them on an exact actuarial basis, but I am sure that a reasonable rate could be determined, even though it might mean a somewhat larger contribution from the Treasury than is made under the general scheme. I object to distinctions being made in this matter between various branches of the Service. The practice of granting pensions without any contributions from the beneficiaries is unsound ; but if we are prepared to apply it to the judges, we should, to be consistent, remove all the conditions that govern the granting of old-age pensions. I do not desire to compare class with class, or the highly paid with the poorly paid officials in our Service, but I contend that no distinction should be made between them. Honorable members know that persons with very small incomes are debarred from participating in our old-age pension scheme. I realize that the amendment is moved with the object of giving the judges an incentive to retire at the age of 70, or a few years later.
– The effect of it will be to reduce the incentive for them to remain in office.
– It comes to the same thing. It makes it worth while in their own interests to retire, although appointed for life. It is a way of getting over the constitutional difficulty; but I object to the general principle, and I shall vote against the clause.
– I listened with close attentionto the speech of the honorable member for Boothby (Mr. Duncan-Hughes) in support of his amendment, the intention of which is to reduce a judge’s pension by one-tenth for every year that he remains in office after he reaches the age of 70 years with the view to encourage early retirement. I am afraid, however, that it will not have the desired effect. Let us take the case of a Chief Judge, drawing a salary of £3,000 a year, who retires at the age of 70 or at other ages up to 80 years. I am sorry I have not been able, in the time at my disposal, to ascertain the percentage of the population that reaches that advanced age, but I know that very few do so, and I am sure that a very small percentage of the persons appointed to this court will attain that age. Under the amendment, if a judge retired at the age of 70, his salary would stop immediately, but in the ten following years he could draw £15,000 in pension, and that would be his total remuneration ; if he retired at the age of 71, he would receive £3,000 in salary, and £12,150 in pension for the remaining nine years, or a total remuneration of £15,150, which is £150 more than he would have received had he retired when he attained 70 years of age; but if he retired at the age of 75 years, he would receive £15,000 in salary, and £3,750 in pension, or a total remuneration of £18,750, which would be £3,750 more than he would have received had he retired at 70 years.
– But he would have enjoyed only five years’ leisure, instead of ten.
– I shall deal with that point in a moment. If he retired at the age of 79 he would draw £27,000 in salary for nine years, and £150 in pension for the tenth year; or a total remuneration of £27,150, which would be £12,150 more than he would have received had he retired at 70 years. It must be clear, therefore, no judge would think of retiring at 70 years of age to obtain any pecuniary advantage. Ihe only inducement for retirement would be, as the right honorable member for Balaclava (Mr. Watt) has pointed out, the desire to enjoy that leisure which he would not have if he remained on the bench. I am unable to see that the amendment would achieve the desire of the honorable member who has moved it.
.- Unfortunately I did not hear the observations of the honorable member for Boothby in support of his amendment. I should like to say to the honorable member for Oxley (Mr. Bayley)’ that, although I followed his analysis with great care, experience teaches me that we ought not to be impressed by calculations such as he made. I know of State judges who would have retired at least at the age of 70 years if pensions had been available to them. They would have been, only too glad, in view of the state of their health, and the inroads made upon it by the work of the bar and the bench, to retire then. The Victorian pensions fund, however, does not permit of more than two judges drawing the full pension at the same time. When a man has had a long career at the bar, and, generally a lucrative one, followed by a period of strenuous service on the bench, the question of pounds, shillings and pence is not. of so much concern to him as his own health and comfort. Although judges may be inclined to retire at 70 years of age, they are sometimes unable to do so, unless some pension is provided upon which they can exist. I speak as a believer in pensions. I am unlike the honorable member for Yarra (Mr. Scullin) in that respect, and I take leave to doubt whether the honorable member reasoned with his usual care in instituting an analogy between judges and old-age pensioners, or ordinary members of the Public Service. I doubt whether there is one in 50 of the judges of Australia who did not make a huge pecuniary sacrifice in accepting a position on the bench. .The honorable member for Fawkner (Mr. Maxwell) could, no doubt, if he felt inclined, tell us the story of many men who voluntarily forfeited large incomes, not to enjoy a period of leisure by service on the bench, but to secure the distinction and renown in their profession which a transfer from the bar to the bench would give them. I know of one judge who cannot, with propriety, be named, who accepted a salary of £3,000 a year and forfeited an income of £7,000 a year. It was his ambition before he finished his career to serve a period on the bench. In giving judges salaries of £3,000 or £3,500 a year, we hope to secure the services of the best men before they have begun to slip down the western hill of life. Judgeships have, on many occasions, been refused in Australia because the men to whom appointments were offered did not feel justified in giving up the incomes they were earning at the bar for a judicial salary of barely half the amount. It was that reason, doubtless, which induced the men who laid the foundations of the judiciaries of the States to make provision for pensions for judges in most cases. The honorable member for Melbourne (Dr. Maloney) will bear me out when I say that, even when pensions generally were withdrawn in this State, those payable to the judges were allowed to stand. It was felt that there should be an inducement to a man, in the autumn of life, to retire from the bench, . rather than continue to serve when his faculties were failing.
– That applies to all public servants.
– To suggest that there is any analogy between judges and ordinary members of the Public Service is entirely wrong. We endeavour to secure public servants when they are young, and the younger the better. We do not proceed on that principle in the appointment of judges. We look for in them an extensive experience in the various walks of legal life, because we want ripened judgment, and, in the case of average men, we cannot expect that before they had passed middle life.
– We could not expect it by catching them young.
– No; when they are young they are not suitably equipped for the work we require of them. In the matter of pensions, the judges stand by themselves. They forfeit big incomes by their transfer from one branch of the law to another, and, if we want the best men to preside over the courts of the Commonwealth, we should be prepared to provide substantial pensions for them or to give them larger salaries. Whatever view I may take of other provisions of the bill, I am very glad that a pension provision has been inserted in this measure, and in another upon which we shall shortly de- liberate. I have not discussed the amendment of the honorable member for Boothby, because 1 did not hear the arguments with which he recommended it to the committee. It occurs to me that, if we can, we should prevent men from staying too long on the bench. I say, with very great respect of a number of men who lived to a ripe old age, that we have had distinguished men in this State, some of whom bid fair to tarnish the reputation which posterity might otherwise have attributed to them by lagging a little superfluous on the stage, because of certain circumstances. I am one who, when I had the privilege to speak for the Government in this House, accepted the responsibility of bringing down a measure to provide the first Commonwealth pension for the first Chief Justice of Australia. The late Sir Samuel Griffith was one of the most prominent men in the Federal movement, in the development of the great northern State of Queensland, and in the shaping of the early institutions associated with the Federal judiciary. When he was stricken down by illness, it seemed to me a cruel thing to ask him to remain on the bench and endeavour to discharge the then terribly irksome duties of the Chief Justice of the Commonwealth. I submitted a measure providing for a pension for him, and it was carried by this Parliament. I then said that the time would inevitably come when the whole of the judges of the High Court of Australia, and of the other courts associated with it, would, if the Parliament were wise, enjoy- similar privileges to those enjoyed by other men who in the past, in like positions, rendered distinguished service to the nation.
.- I shall not delay the committee long in speaking to the amendment. I am against pensions for judges altogether. I think that the honour of the position should be sufficient to induce any man to accept an appointment to the bench.
– What about the inducement to members of the House of Representatives ?
– What has that to do with the question? Has the honorable member ever heard of a member of the House of Representatives being given a pension?
– We have not a life tenure, either.
– We have to be examined every three years to see if we are fit to continue our duties. No judge of whom I have ever read has had to go through such an examination. A policeman is examined periodically, and, if I had my way, I would have medical men examined every five years after they had reached 40 years of age. I agree with the right honorable member for Balaclava (Mr. Watt) that judges should always be properly cared for. There have been times when county court judges in this State were not given a square deal, but the judges of the Supreme Court were held to be sacrosanct. We had an unfortunate experience of pensions in the Public Service of Victoria. The position here was worse even than that in America when pensions were being paid to people who claimed to have taken part in the War of Independence. I had figures in connexion with the matter taken out, and they showed that in Victoria, with a population of 200,000 less than the population of New South Wales, we paid more in pensions to public servants than was paid in all the other States combined.
– The Victorian pension list rose to nearly £400,000 a year at one’ stage.
– We paid for pensions in Victoria £2 for every £1 paid in New South Wales. In my view, we should pay judges well during the term of their service. When they retire they can claim the old-age pension, just as any other member of the community is entitled to do. We give our old-age pensioners a pension of 20s. per week, and the Government proposes in this bill to give judges, by way of pension, more for one day than old-age pensioners receive in a month. We are under no great obligation to our judges for assisting to simplify and cheapen the administration of justice. In a recent divorce case the proceedings were continued for 21 days at a cost of over £5,000 for one side. That is a glaring example of the cost of legal proceedings. It will be agreed that every one who goes to court does not get justice. Privileged men are in our courts permitted to malign witnesses, and to say to them what they would not dare to say outside a court. The whole system of law should be made more simple. Judges in Denmark, where, perhaps, more justice is dispensed than in any other, country in Europe, do not receive huge salaries. No one who knows anything of the history of Denmark will impugn its courts of justice. I intend to vote for the amendment, and I am glad that a member of the profession to which the honorable member for Boothby (Mr. DuncanHughes) belongs has proposed an amendment which will give more justice than is provided for by the bill. On one occasion, I was sued by a land agent for commission alleged to be due to him. I had received a letter from him, but I had never seen the man. In court, when I was giving my evidence, the presiding judge told me to get down out of the box. The judge then asked the land agent, “ Will you have a verdict against Dr. Maloney or against Mr. Godfrey, the solicitor ? “ My solicitor strongly resented the judge’s action, and carried the matter before him in chambers, and the agent did not dare to proceed further in court. This occupant of the bench, who manifestly was unfit for his position,’ drew a pension. I do not object to any man receiving a pension, provided that all can be treated alike. If the people could by referendum declare that the aged and invalid should be paid a pension equal to that to be paid to the judges I should be happy indeed.
– Obviously, if we are to attract to the Commonwealth judiciary men of the calibre necessary to ensure its efficiency, provision must be made for the payment of pensions. When a man has reached that period of life when his faculties are failing, and he is becoming less competent to discharge his high judicial functions, he should retire. But the Constitution provides that members of the Federal judiciary must be appointed for life, although in certain circumstances a judge may be removed by the Governor-General, on resolution of both Houses of Parliament. Possibly in the near future the people in their wisdom will amend the Constitution by prescribing a retiring age for judges, but until that is done, this Parliament should not attempt to achieve indirectly an object which cannot be constitutionally achieved directly.
– Why not ask the people now to amend the Constitution ?
– For reasons I have stated previously, the referendum proposals to which this chamber has already agreed must not be mixed up with other suggested amendments of the Constitution. Believing that it would not be right to attempt to evade the Constitution by this indirect method of providing pensions, the Government cannot accept the amendment, but is quite agreeable that individual members shall vote upon it as they please.
.- The object of the amendment is to offer an inducement to judges to retire at 70 years of age; but the figures quoted by the honorable member for Oxley (Mr. Bayley) indicate that it would have the opposite effect. Therefore, it would defeat its own object, which is one with which most honorable members sympathize. To men occupying judicial positions at 70 years of age the failure of their powers may not be so apparent as to others; in fact, the older a man gets the less inclined is he to admit any infirmity. It is highly desirable, therefore, that no extra encouragement should be given to a man to remain in a responsible position after his faculties have consider-, ably declined. I regret that I cannot support the amendment.
– I understand that the honorable member for Yarra is supporting the amendment because he is opposed to the payment of pensions to judges.
– I am supporting it for the reasons put forward by the honorable member; but I am opposed to the whole clause, because I do not believe in the proposal to pay pensions to the judges.
– On that point I join issue with the honorable member for reasons that have been stated by the right honorable member for Balaclava (Mr. Watt). The objection has been voiced that the amendment is an indirect method of removing judges from the bench. I prefer to say that it will remove - or reduce - the present inducement to them to remain on the bench. Under the bill, as drafted, a judge is encouraged to continue in office as long as possible, because he can draw his full salary up to any age, and a full pension upon retirement. If my amendment be agreed to, he will receive his full salary until he retires, and, if he is then over 70, a reduced pension thereafter. The AttorneyGeneral said that this proposal should be deferred until the constitutional session. There are obvious reasons why that should not be done.Before that session can be held the judges of the Arbitration Court will have been appointed, and they will naturally resent any suggestion at a constitutional session that the terms of their engagement shall be varied and their pensions reduced. If any alteration of this nature is to be made, this is the time to make it.
Question - That the words proposed to be inserted be so inserted - put. The committee divided.
AYES: 27
NOES: 23
Majority . . . . 1
AYES
NOES
Question so resolved in the negative.
Amendment negatived.
– I move -
That the following sub-section be added after sub-section 2 of proposed new section 14b : - “ (2a). Where a Judge has, prior to his appointment, served in any other judicial office under the Commonwealth, pension shall not be payable to him except in pursuance of this Act, but the term of his prior service shall, for the purposes of this section, be added to, and be deemed to be part of, his service as a Judge.”
The object of the amendment is to prevent a judge from drawing a double pension; from this bill and from another source.
– It will also prevent him from drawing an invalid pension.
– He will not be able to do that. In computing the judicial service, it is proposed that the term of service in the Arbitration Court shall be added to that in the High Court to determine the rate and the amount of pension.
– Will the term of service of the deputy judges of the Arbitration Court count?
– No. Under the bill the office of deputy president is abolished, and, accordingly, these pension provisions will not apply to the present deputy presidents, . as such, but only to judges appointed under this act. It might be thought proper to appoint to the High Court a gentleman who has served for seven or eight years in the Arbitration Court. Unless this provision were inserted, those years of service would not count towards the fifteen years which would entitle him to a pension under the Judiciary Act.
.- I desire to have a vote taken to decide whether the proposed new section 14b shall be inserted in the act, but I am not sure whether that can be done once this amendment has been disposed of. I desire to reserve the right that I possess to move in that direction.
Amendment agreed to.
– I wish to move-
That the proposed new sub-section 14b be omitted.
The CHAIRMAN (Mr. Bayley).What the honorable member desires to do can only be done now on the recommittal of the bill.
– The Government is agreeable to its recommittal.
Clause 6, as amended, agreed to.
Clause 7 -
Section 16 of the principal act is amended by adding at the end thereof the following subsection: - “ (2) A judge shall, as from time to time required by the Governor-General, make such investigations, inquiries and reports in relation to industrial matters or to any public matter or any power of the Commonwealth as the Governor- General specifies.”
– This clause was inserted with the object of making it possible for the services of the judges of the Court to be utilized for inquiries and investigations of a public character. The wisdom of adopting that course is plainly arguable, and I therefore ask the committee to reject the clause.
Clause negatived.
Clause 8 -
After section 18a of the principal act the following sections are inserted: - “18b. (1) The Attorney-General, on behalf of the Commonwealth, may, by giving to the Registrar a notice in writing of his intention so to do, intervene in the public interest in any proceeding before the court in which the question of standard hours of work in any industry or of the basic wage is in dispute.
Upon a notice being given in accordance with the last preceding subsection, the Registrar shall cause the notice to be published in the Gazette.
Upon publication of the notice in the Gazette, any person, or organization, or association of employers or employees, may apply to the court for liberty to be heard, and the court may, if it is of opinion that the applicant is interested in the determination of the question, permit the applicant to be heard, and to examine and cross-examine witnesses.
Upon intervention by the AttorneyGeneral in accordance with this section, the court shall fix a day for hearing the question as to which he has intervened and that question shall be heard and determined by the chief judge and two other judges. 18c. (1) The Governor-General may appoint conciliation commissioners of such number and upon such terms and conditions as to remuneration,tenure, and otherwise, as he thinks fit.
A conciliation commissioner shall have such of the powers of the chief judge under sections 16 and 16a of this act as are assigned to him by the GovernorGeneral.
The appointment of a conciliation commissioner with power under section 16 or 16a of this act shall not affect the exercise by a judge of his power under those sections.”.
. -I gather from the first paragraph that it is the intention that the Attorney-General shall intervene only with respect to specified matters, such as the standard of hours and the basic wage ?
– That is so.
– I am not sure that that is made quite clear in the clause, and I consequently move -
That the following words be added to the proposed new section 18b (1) : “ in relation to either of those questions.”
– I am prepared to accept that amendment.
– There is a further point. Could not the Attorney-General achieve the same object without the use of the term “ intervention “ ? I understand that that term is applied when the Attorney-General really intervenes to argue a case before a court. In this case that is not the intention; it is desired merely to give to interested parties an opportunity to be heard. If the AttorneyGeneral were to intervene, and argue the matter personally, or instruct counsel to argue it on his behalf, the Government would be taking sides in the dispute. That meaning may be read into the clause as it stands.
– It is not intended that the Attorney-General shall do more than issue a notice. The clause goes on to provide that an order may be made permitting applicants to be heard. It draws a distinction between such applicants and the parties to the dispute. It is certainly not intended that the Attorney-General shall become a party, and be heard upon the determination of any question. I believe that the clause, as worded, is sufficiently clear, but if any honorable member can suggest words that will make it clearer I am prepared to give the matter consideration.
.- I am act so much interested in the amendment as I am in certain words in the last two lines of the proposed new sub-section under discussion. The principle of intervention for the purpose clearly outlined in the subsequent part of the clause is a wise one to adopt, and it should have been adopted years ago. Why not delete all the words after “ court,” so as to authorize the AttorneyGeneral in the public interest to intervene in any proceedings before the court after giving the prescribed notice in writing?
– But why allow intervention on any subject?
– And why not? Are all the present interests of arbitration confined to standard hours and the basic wage? There may be a number of other issues in regard to which a miscarriage of justice may be possible or probable, and the intervention of the AttorneyGeneral should be permitted.
– The principal questions are the basic wage and the standard of hours.
– They may be the principal, but they are not the only questions. Provision for the intervention of the Crown is made in the Victorian law relating to divorce, and it is not restricted, but enables the judicial adviser of the Crown to intervene whenever he considers that it is in the public interest to do so.
– That is a different kind of intervention from that provided for in the bill,
– It is, and it is not. Although the procedure and intention are different, that provision permits the adviser of the Crown to inform the court of certain views, and to make the application direct.
– But thatis not provided for in this bill.
– That is so, but I am asking the honorable member to notice certain important differences, as well as some striking similarities. The right of intervention in divorce matters, although it must be exercised in a different manner from that provided for in the bill, is intended to be used for the same purpose - to protect the public interest. There may be matters, other than those mentioned in the clause, in which intervention may be desirable. I suggest to the honorable the Attorney-General that the concluding words of the proposed new sub-section should be deleted so as to widen the provision and provide more facilities for interested parties, by the will of the court, to be heard.
.- I cannot understand why the honorable the Attorney-General is so anxious to confine this provision to matters affecting the basic wage and the standard of hours. No right should be given to the Crown to intervene. The influence of a government representative in the court is powerful and difficult to resist. If the Crown interferes in a case, judges naturally become nervous, because they are dependent on the Crown, and there is then a possibility of the decision of the court being materially altered to meet the views of the Crown. Although I prefer that the Crown should not have the right to intervene, if that right is allowed, it should not be restricted. To give the right to interfere only in matters of wages and hours, which are burning questions at the present moment, will convey to the minds of some people that the Government is already taking sides. Judgesshould decide on the evidence submitted to them, and in that event there is no necessity for the Crown to interfere. We should have confidence in the judges of the court. The proposal will not commend itself to those who have to appear before the court, or to the public. It will have a tendency to protract proceedings before the court, and that is the very thing we are trying to prevent. The employers - I do not blame them - will fight every case that comes before the court. Vested interests are very powerful, and the proposal will encourage them to use their power to influence decisions of the court. If honorable members had had experience of vested interests, they would not give the Attorney-General this power. Two of the States have come to a decision regarding the standard of hours, and on that subject the vested interests of Victoria alone would be sufficient to compel the Attorney-General to intervene in the court proceedings.
– This provision is not for the intervention of the AttorneyGeneral in the ordinary proceedings of the court with a view to obtaining a certain order from the court. It is designed simply to procure that certain matters shall be determined by at least three judges. Section 39 of the Act provides that on the application of the Attorney-General any question may be reopened or any award or order may be varied, and under that provision the Attorney-General, as representing the public, may ask that an award or order be varied, or that any question be reopened.
– Is not that provision a dead-letter ?
– In practice, it is. To increase the powers of intervention in this clause would mean that all the matters as to which the Attorney General intervenes would be heard by three judges. I suggest that section 39 of the act enables the Crown to protect the interests of the public in any case where it is thought that an injustice or serious injury has been done.
Amendment agreed to.
.- I move -
That in proposed new sub-section 3 of proposed new section 18b the words, “person or “ be left out.
I intimated in my second-reading speech that I wished to prevent any individual from having the right to apply to the court to be heard in a dispute. The honorable the Attorney-General suggested yesterday that the right ought to be extended to a State or Commonwealth Government department, and that he did not contemplate that individuals would be permitted to be heard. If that is the intention, I suggest that the word “corporation” or “State instrumentality “ be employed instead of “ person.” With the words “ any person or “ in the section, the court could be flooded with applications for the right to be heard.
– There are only twelve registered employers’ organizations in the Commonwealth.
– I am more concerned about leaving out the word “person” than about inserting any other word If there is a dispute before the court affecting the members of one union and their employers, the Attorney-General may intervene, and if he does so he opens the door for any number of persons to flood the court with applications for the right to be heard. In that way the proceedings can be delayed indefinitely. We do not want the delays of the past to occur in the future. The words “organization or association of employers or employees “ are surely wide enough.
– The danger feared by the honorable member for Yarra (Mr. Scullin) is unlikely to arise. The AttorneyGeneral will intervene only occasionally under these provisions when a ruling is desired from the Full Court to guide the judges in their separate cases. My reply to the inquiry of the Leader of the Opposition (Mr. Charlton), in his second reading speech as to the effect of a ruling given by the judges in such circumstances, is that it would directly affect only the specific dispute before the court, but indirectly it would be of value in guiding the judges when sitting separately. It would not be a common rule in the ordinary acceptation of that term, for there is no constitutional power to provide a common rule.
– But, in effect, it would provide a rule that would guide the judges in determining the basic wage and the standard of hours in future disputes.
– It would determine the dispute before the court at the time, and also guide the judges in other cases. The inclusion of the word “ person “ is necessary to cover big employers of labour who are not registered. The Broken Hill Proprietary Company, for instance, has only recently registered as an organization under the act. Any similar big employers of labour who are not registered should, I think, have the opportunity of applying to the court to be heard. A company, it must be remembered, is a “ person “ in the eyes of the law. What we may expect to happen in the future is what happened in the 44 hours inquiry. The Employers Federation, on the one hand, and the federated unions on the other, appointed representatives to appear in court and argue that matter. It would not be possible for the PostmasterGeneral, who is a big employer of labour, or any other Commonwealth or State authority to be heard in the court if the word “ person “ were deleted.
Question - That the words proposed to be left out stand part of the clause - put. The committee divided.
AYES: 37
NOES: 16
Majority … . 21
AYES
NOES
Question so resolved in the affirmative.
Amendment negatived.
.- I move -
Thatin proposed new section 18b (3) the words “registered under this act” be inserted after the word “ employees.”
It would then read -
Upon publication of the notice in the Gazette any person, or organization or association of employers or employees registered under this act may apply to the court for liberty to be heard and the court may, if it is of opinion that the applicant is interested in the determination of the question, permit the applicant to be heard and to examine and cross-examine witnesses.
At present, employers’ organizations are not subject to the same responsibilities and obligations as the employees’ organizations. Recently, the Australian Workers Union was obliged to appear before Mr. Justice Powers simply because an officer of the Pastoralists Association handed a. document to its general secretary at the head office of the union. The Australian Workers Union could not. as simply as that, oblige the pastoralists to appear before the court.
– Why is that?
-For the simple reason that the pastoralists’ organization is not registered. Because the Australian Workers Union is registered, it has to meet heavy responsibilities. I claim that similar responsibilities should be placed upon the employers’ organizations. Under the existing law this is not so. Recently the organization to which I belong spent £950 in postage alone in sending out claims to respondents.
– Every respondent has to be served?
– Yes.
– There is not only service of the claim required, but service of any variation of the claim.
– I give this as an illustration of our responsibilities. We go to the court as a responsible body. We have our officers to do the work. The respondents on the other hand, are represented by secretaries or officers of their organizations, who, though they are not termed “paid agents “, are in court to represent members of their organization. A great deal of argument took place during the hearing of the case to which I refer as to the right of these people to appear in the picture at all. The judge, wrongfully, in my opinion, refused to sustain the contention of the representative of the Australian Workers Union that Mr. Alien, secretary to the respondent organization, was not entitled to appearbefore the court. Briefly, we say that whatever responsibilities are imposed upon one section of the community should be imposed on the other section.
.- The amendment submitted by the honorable member for Darling (Mr. Blakeley) is intended to meet a complaint made by the whole of the trade union movement of Australia. I realize that there might be legal difficulties in giving effect to it. The Attorney-General (Mr. Latham) from his experience of this particular jurisdiction is aware that this deals with one of the provisions which is a fruitful source of expense and delay, and something should be done to improve the present position.
– This is a question which raises difficulty owing to the circumstances that there are only twelve registered employers’ associations and 146 registered employees’ associations. I do not think that the Government can accept the amendment, but it will give it consideration. The Government fully appreciates the difficulties which have been referred to with regard to the service of claims, but that is no reason for preventing employers from putting their case in the best possible way. I shall give consideration to the amendment, and if I find it at all possible, the difficulty to which the honorable member for Darling (Mr. Blakeley) has referred will be dealt with in another place.
Amendment negatived.
Clause, as amended, agreed to.
Clauses 9 to 12 agreed to.
.- I move -
That the following new clause he inserted: - 9a. Section 27 of the principal act is amended by inserting after the word “ dispute “ the words, “ or of any proceedings for the variation of an award or in relation to an award.”
The section now provides that no barrister, solicitor, or paid agent may appear in the court unless by consent of both parties. This applies only to the original dispute, but not to the hearing of an application for the variation of an award or any other proceedings in relation to it.
– The effect of the new clause proposed would be much more farreaching than the honorable member for Yarra (Mr. Scullin) contemplates or intends. It would prevent a man being defended by a member of the legal profession in a criminal prosecution for a breach of an award. Surely it would not be fair to deprive a man of legal assistance in all proceedings in relation to an award.
– That is not intended, and I am prepared to accept the omission of the words “or in relation to an award “ from my proposed new clause.
– I thought the honorable member would concede the force of my objection. The new clause proposes an amendment of the section of the act which is supposed to exclude the legal profession from the Arbitration Court. The section reads -
On the hearing or determination of any industrial dispute an organization may be represented by a member or officer of any organization, and any party not being an organization may be represented by an employee of that party; but no party shall (except by consent of all the parties) be represented by counsel or solicitor or paid agent.
What happens is that the employers have employees who are in fact lawyers. They appear in court, not as counsel or solicitor, but as employees, and they put in their whole time as industrial advocates.
– They are paid agents.
– They are employees, and as such they may appear. There are many men on both sides who put in the whole of their time as paid agents, as every one knows. But because men are officers of a union, although devoting most of their time to industrial advocacy, they are not regarded as paid agents. On the. other side, lawyers in the employ of employers’ organizations, are able to appear as employees, though not as counsel or solicitors. Men have actually gone through a complete course of legal training to qualify themselves for industrial advocacy, particularly in the State courts, and have abstained from procuring their admission to the profession in order that they may continue to practise in the arbitration courts. The section which the honorable member for Yarra seeks to amend is one which obviously requires further consideration when a full revision of the Conciliation and Arbitration Act is before Parliament. It would not be proper to amend it in the patchwork way proposed by the honorable member in dealing with applications for variations of awards. The section raises the question of the extent to which the parties to an industrial dispute are entitled to obtain the skilled assistance they think proper. An application for a variation of an award is very frequently made upon a small point, and is commonly made in order that an award may work smoothly. There are no long proceedings associated with such applications. It is often more convenient for the parties, when applying possibly before a judge in a distant State, to send a solicitor to the court, than an officer or employee. I ask the committee not to accept the amendment, because it does not deal with the whole question, and would impose a considerable amount of inconvenience and additional expense in the settlement of small matters between the parties
.- The Attorney-General (Mr. Latham) has said that the use of the words “ or in relation to an award “ would deprive a man charged with the breach of an award of the assistance of counsel. That was not contemplated. The arguments advanced by the Attorney-General apply with equal force to section 27 of the act as it now stands, and if he feels so strongly on the matter, it is amazing to me that he has not attempted the repeal of that section, which has stood since the original act was passed.
– We are endeavouring to avoid controversial matters as far as possible for the present.
– It is logical to contend that there should attach to any application for the variation of an award the same conditions as those which applied to the hearing of the original dispute. Parliament has always confirmed its intention to, as far as possible, keep legal arguments out of the consideration of industrial disputes. It is felt that in the hearing of such cases the arguments should be submitted, not by legal men, but by those on both sides who know the industry affected. I ask leave to amend my proposed new clause by omitting the words “ or in relation to an award.”
New clause, by leave, amended accordingly.
Question - That the proposed new clause, as amended, be inserted - put. The committee divided.
AYES: 15
NOES: 34
Majority … … 19
AYES
NOES
Question so resolved in the negative.
Amendment negatived.
– I move -
That the following new clause be inserted : - 9b. Section forty a of the principal act is amended by adding at the end thereof the following paragraph : - “ (c) assign to the Board of Reference any matter affecting the harmonious relationship of the parties to any order or award of the court.”
At the present time the board of reference can deal only with the matters specified by the court, and the purpose of the amendment is to have a board of reference that can deal with disputes that may arise in regard to questions not mentioned in the dispute upon which the court has made an award. Often questions that were not included in a dispute upon which the court has arbitrated are very real causes of discontent and trouble. The effect of the amendment would be to bring into play real conciliation and prevent many of the irritations and stoppages of work that frequently occur.
– I agree with the object of the proposed new clause, and, if it could be effective, I would have no hesitation in accepting it. The desire of the honorable member for Yarra is to permit to be assigned to a board of reference any inharmonious conditions not covered by an award of the court. That would be a wise provision. But, unfortunately, the power of the court and boards of reference are limited to the subject of a dispute, and it is impossible to provide any means for dealing with other matters affecting harmonious relations.
– Not even with the consent of the parties.
– Not in a way that would give legal effect to their agreement. The acceptance of the amendment would only mislead the parties into proceedings before the board of reference, and any decision of the board in regard to matters which were not originally in dispute, although accepted at the time by the parties, would, under the present constitutional powers of the Commonwealth, be entirely invalid.
.- Members of the Labour party dread industrial disturbances, and are desirous of bringing into existence any machinery that will promote kindly feelings between employers and employees. The honorable member for Yarra has shown great ingenuity in proposing this new provision, and he should receive the support of the Government. Surely the intention of Parliament is to prevent industrial quarrels, and to smooth away any bad feeling that may arise between employers and employees.
– I would accept the clause if it would do any good, but it would only cause trouble.
– There is no reason why we should not make an experiment in the direction proposed. I feel confident that the Attorney-General will regret his nonacceptance of the clause.
Proposed new clause negatived.
.- I move -
That the following new clause be inserted : - 90. The principal act is amended by inserting after section 22 -
Upon a registered organization lodging a claim as to any matter upon which the court is competent to deal, the court shall cause such matter to be published in the Gazette which shall be deemed to be sufficient notice to the respondents involved in the matter lodged in court, and the court will in accordance with any further publication in the Gazette fixing a date for the hearing of the matter so lodged thereupon proceed to hear such matter.”
In some disputes, several thousand persons must be served with notices to appear before the court, and this amendment proposes to allow the summons to be by notice in the Gazette. I understand that the serving of a log by publication in the Gazette would not legally constitute a dispute, but it would save a considerable amount of trouble and expense. In one case, 9,000 respondents had to be served with copies of the log, and later with summonses and other processes. That involved great cost for printing and postage. As clause 8 provides that, in any proceeding affecting standard hours and the basic wage, in which the AttorneyGeneral intervenes, a notice in the Gazette shall be sufficient to enable all interested persons to appear before the court, I suggest that a Gazette notice by the Crown should be sufficient to summon disputants to appear before the court.
– It would be a sensible act to adopt such a provision if we could be certain that it would prove effective. The honorable member for Yarra (Mr. Scullin), however, has shown quite clearly that it would not dispense with the major portion of the expense that is now incurred in the ascertainment of the respondents in an industry, the printing of the log - which is often a bulky document - and its service upon the respondents by registered post. The amendment is designed to make advertisement in a newspaper do duty as service upon probably hundreds, or even thousands of individuals. Such a provision could probably be made if our powers were greater than those which we possess. Under our existing powers, the procedure is by way of arbitration; and arbitration means a proceeding between parties who have an opportunity of being heard. It cannot be said that it is certain that the validity of this provision would be upheld. It might be; but would it not be better to wait until the people have pronounced upon the proposals that we intend to sub- mit to them?
– If the court had the power to make a common rule, it would not matter very much.
– It would not matter at all. If proceedings were instituted upon this basis it might be held to be ineffective in an arbitration case possibly after the proceedings had continued for months, or even after an award had been made. I do not profess to be certain upon the matter, but there is an element of danger in it, and the results might be very serious.
Question - That the proposed new clause be inserted - put. - The committee divided.
AYES: 13
NOES: 32
Majority . . . . 19
AYES
NOES
Question so resolved in the negative.
Proposed new clause negatived.
Schedule agreed to.
Title agreed to.
Bill reported with amendments.
Motion (by Mr. Latham) agreed to -
That the bill be recommitted for the recon sideration of clause 6.
In committee (Recommittal) :
Clause 6 (Pensions).
Amendment (by Mr. Scullin) proposed -
That the proposed new section 14b be omitted.
Question - That the words proposed to be omitted stand part of the clause - put.
The committee divided.
AYES: 32
NOES: 12
Majority . . . . 20
AYES
NOES
Question so resolved in the affirmative.
Amendment negatived.
Clause agreed to.
Bill reported without further amendment.
Reports, by leave, adopted.
Bill, by leave, read a third time.
page 3319
Motion (by Mr. Bruce), by leave, agreed to -
That Mr. Thomas Paterson be discharged from attendance on the Joint Committee of Public Accounts, and that in his place Mr. Aubrey Abbott be appointed a member of the committee.
page 3319
The following paper was presented: -
Papuan Oilfields- Report for April, 1926, of the Commonwealth representative.
page 3319
Motion (by Mr. Bruce) proposed -
That the House do now adjourn.
– I am pleased to be in a position to inform honorable members that the sale of expropriated properties in the Mandated Territory of New Guinea, supplementary to that effected on the 31st March,1926, has been brought to a most successful conclusion. It will be remembered that the first group of expropriated properties offered for sale on the 31st March, 1926, comprised 47 plantations, 91 trading stations, 11 bungalows and business premises, and 4 lots of virgin land, and that, of these, 100 lots, officially valued at £234,588, realized £272,365, leaving 53 lots unsold. Of the latter, 15 lots were withdrawn from sale for various reasons, and the Government decided that the remainder were to be resubmitted for tender, with the official valuations disclosed. The tenders for this residue closed on the 15th June, 1926, and have now been dealt with. Of 38 properties offered for sale, 30 have been sold for £202,556, as against the official valuation of £162,511. A decision on tenders for three of the properties is pending consideration of certain technical points that have arisen, and two of the properties are being resumed for administrative purposes. There thus remain, in addition to virgin lands that are being withheld from sale for the present, only the following minor lots in the hands of the Government out of the first group of properties submitted for sale: - One trading station, valued at £21; the Kokopo Hotel, valued at £4,369; and one bungalow, valued at £201- a total of £4,591. Honorable members will be pleased to note that up to date 130 properties, officially valued at £397,159, have been sold for £474,921. A gratifying feature of the sale is that among the successful tenderers are to be found many returned soldiers, the majority of whom have been engaged on plantations in New Guinea as employees of the Expropriation Board. There appears to be no doubt but that this highly successful sale of valuable properties marks a distinct advance in the economic progress of the Mandated Territory. The catalogue of the second group of expropriated properties to be offered for sale is now in the hands of the printer, and should be available early in July, 1926.
– Honorable members will be interested to know that the first session of the Council of Scientific and Industrial Research appointed under legislation recently passed will be opened on Tuesday next. The act which was passed to re-organize the former Institute of Science and Industry provides for the appointment of a council to consist of: -
The gentlemen who have been appointed are -
Mr. G. A. Julius, B.Sc, B.E. (chairman), consulting engineer, Sydney.
Mr. W. J. Newbigin, managing director, Messrs. W. J. Adams and Company Limited, Sydney.
Professor Sir David O. Masson, K.B.E., F.R.S., &c, emeritus professor of chemistry, University of Melbourne.
Professor T. Brailsford Robertson, Ph.D., D.Sc, Department of Physiology, University of Adelaide, South Australia (acting chairman).
Mr. B. Perry, Messrs. Cuming Smith and Company Proprietary Limited, 135 St. George’s-terrace, Perth, Western Australia.
Co-opted Members.
The Commonwealth Government is fortunate in having secured the services of so many eminent men in the various branches of science and industry.. The council as constituted is very representative, and without a preponderance in anyparticular direction. It consists of two engineers (Messrs. G. A. Julius and W. J Newbigin) ; two chemists (Sir David Masson and Professor Rivett) ; two biologists (Professor Brailsford Robertson and Professor Goddard) ; one representative of agricultural science (Professor Watt) ; one geologist (Professor Richards) ; one representative of veterinary science (Professor Woodruff) ; one representative of manufacturing industries (Mr. B. Perry) ; and one representative of agricultural and pastoral industries (Mr. P. E. Keam).
Question resolved in the. affirmative.
House adjourned at 4.35 p.m.
Cite as: Australia, House of Representatives, Debates, 18 June 1926, viewed 22 October 2017, <http://historichansard.net/hofreps/1926/19260618_reps_10_113/>.