30th Parliament · 2nd Session
Mr SPEAKER (Rt Hon. B. M. Snedden, Q.C.) took the chair at 10 a.m., and read prayers.
– Petitions have beenlodged for presentation as follows and copies will be referred to the appropriate Ministers:
To the Honourable the Speaker and Members of the House of Representatives of the Commonwealthof Australia in Parliament assembled. The petition of the undersigned citizens of Australia, respectfully showeth:
That the public library services of New South Wales are inadequate both in quality and quantity and that the burden of provision is placed too heavily upon local government.
Your petitioners therefore humbly pray that your honourable House will ensure the implementation of the recommendationsof the report of the Committee of Inquiry into public libraries as a matter of urgency.
And your petitioners as in duty bound will ever pray. by Mr Charles Jones, Mr Lucock and Mr Morris.
To the Honourable the Speaker and Members of the House of Representatives assembled, the petition of the undersigned citizens of Australia respectfully showeth:
That the delays between announcements of each quarterly movement in the Consumer Price Index and their application as a percentage increase in age and invalid pensions is excessive, unnecessary, discriminatory and a cause of economic distress to pensioners.
That proposals to amend the Consumer Price Index by eliminating particular items from the Index could adversely affect the value of future increases in age and invalid pensions and thus be a cause of additional economic hardship to pensioners.
The foregoing facts impel your petitioners to ask the Australian Government as a matter of urgency to:
And your petitioners as in duty bound will ever pray. by Dr Klugman, Mr Martin and Mr Short.
Royal Commission on Petroleum
The petition of certain members of the Service Station Association of N.S.W. Ltd, and certain members of the motoring public of N.S.W. respectfully showeth that the
Federal Government give every consideration to implementing the findings of the Royal Commission on Petroleum.
Your petitioners therefore humbly pray that your honourable House will take action to ensure that the needs of the motoring public and the retail pertoleum industry are given every consideration.
And your petitioners as in duty bound will ever pray. by Mr Dobie and Dr Klugman.
To the Right Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble petition of the undersigned concerned citizens respectfully showeth:
Your petitioners therefore humbly pray that the House of Representatives in Parliament assembled, should ensure:
Petition to the Honourable the Speaker, and Members of the House of Representatives in Parliament assembled. The petition of the undersigned citizens of the Commonwealth humbly showeth that the undersigned are deeply concerned-
That abortion is the destruction of innocent human life.
That on 10 May 1973, the House of Representatives overwhelmingly rejected the Medical Practices Clarification Bill, which sought to legalize abortion on demand in the Territories controlled by the Federal Government,
That the Legislative Assembly in Canberra should consult Parliament again before discussing and debating the opening and operations of Population Services International and Preterm Foundation in Canberra.
That the situation regarding abortions in the Australian Capital Territory is the same as that in New South Wales where the statute prohibits abortion but allows a defence.
That the situation in the Australian Capital Territory has a great impact on situations in the states.
Your petitioners therefore humbly pray that the Federal Government will act immediately to prevent the establishment and/or operation of Population Services International and Preterm Foundation, and other private clinics, in the Australian Capital Territory,
That taxpayers’ money may not be used, through Medibank, to finance abortions.
And your petitioners as in duty bound will ever pray. by Mr Carige.
To the Honourable Speaker and Members of the House of Representatives assembled. The humble petition of the undersigned citizens of Australia respectfully show showeth:
That due to the new information on whale communication, behaviour and intelligence, and to the depleted state of most of the great whale stocks and the uncertainty associated with whale population estimates, that commercial whaling is no longer acceptable to the vast majority of Australians. It is urged that immediate steps be taken to end this activity.
And your petitioners as in duty bound will ever pray. by Mr Dobie.
To the Honourable the Speaker and Members of the House of Representatives of Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth:
We therefore call upon the Government to implement such action as is necessary to permit the said Tony Cheung Siu Ping to remain in and become an Australian Citizen should he so desire.
And your petitioners as in duty bound will ever pray. by Mr Groom.
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble petition of undersigned citizens of Australia respectfully showeth:
That the existence of a system of double taxation of personal incomes whereby both the Australian Government and State Governments had the power to vary personal income taxes would mean that taxpayers who worked in more than one State in any year would:
Your petitioners therefore humbly pray that a system of double income tax on personal incomes be not introduced.
And your petitioners as in duty bound will ever pray. by Mr Morris.
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth:
That although we accept the verdict of the Australian people in the 1975 election, we do not accept the right of a Governor-General to dismiss a Prime Minister who maintains the confidence of the House of Representatives.
We believe that the continued presence of Sir John Kerr as Governor-General is a cause of division among the Australian people.
Your petitioners therefore humbly pray that your honourable House will call on Sir John Kerr to resign as Australian Governor-General.
And your petitioners as in duty bound will ever pray. by Mr Morris.
To the Honourable the Speaker and Members of the House of Representatives in Parliament assembled. The humble petition of the undersigned electors of the Division of Sturt respectfully showeth:
That they arc greatly concerned about the fact that so many people including such a large number of young people, are receiving unemployment benefits without any condition except that they arc not able to find suitable employment.
Your petitioners therefore pray that Parliament give consideration to the suggestion that to enable individuals to maintain their self-respect and dignity as human beings and for the good of the community at large, the provision of unemployment benefits carry the requirement that the recipient of such benefit bc available for service to the community for a time equal to that which would produce a similar return at minimum wage rate.
And your petitioners as in duty bound will ever pray. by Mr Wilson.
-Has the Minister for Environment, Housing and Community Development agreed with the request of the Victorian Minister for State Development and Decentralisation for a ministerial meeting on Albury-Wodonga to be held in the next 2 weeks? I further ask: Is the Minister aware of Mr Crozier’s allegations that the Federal Government was seeking an excuse to bail out of the agreement and abandon the Albury-Wodonga growth centre project?
– I have had a request from Mr Crazier for a ministerial meeting in 2 weeks time. I shall try to meet that request. In fact, we are trying to make arrangements for that meeting to be held here next week. As for the alleged allegations by Mr Crozier, I am not aware that he has said that. I would be surprised if he did say it because it is not the intention of this Government to bail out, as the honouble member said. However, I will deal with that later. Let us consider the facts of the matter. As I said yesterday, this Government has done everything it can to prosper the growth of the city. It has been extremely difficult because of the honourable member’s mishandling of the situation when he had the portfolio. His extravagances in this matter, particularly in respect of funds for land acquisition, have caused immense problems, not just for this Government but also for the governments of New South Wales and Victoria. My ministerial colleagues, including Mr Day, the Labor Minister, agree with me and readily changed tack so that we could get out of the situation the honourable member put us in.
I shall repeat again what the situation is with this Government. We have put $21m into Albury-Wodonga this financial year. We are quite happy to continue to fund AlburyWodonga next year, but we believe that the 2 governments which are concerned with us should show their responsibility and concern by coming in on sharing arrangement. Since November last year I have been trying to persuade the 2 governments to do that. For some reason they do not want to acknowledge that responsibility and join with us. I hope that at the ministerial council meeting we can arrange as quickly as possible that they will see reason and help us to prosper Albury-Wodonga on the arrangements we are suggesting.
– My question is directed to the Deputy Prime Minister. Is he aware of the report of Sir Ernest Titterton that Australia possesses at least 25 per cent of the world ‘s proven reserves of uranium oxide? Does this fact alone not put this nation in a unique position to demand control of her own exports? What steps has the Government taken to provide our own enrichment plant and our own waste reprocessing plant? How many Australian inspectors have been appointed to the Atomic Energy Control Commission in Vienna? Who represents this country on that Commission? Who represents this nation on the London Club of users? Would he not agree that if Lord Casey had still been alive we would have been the No. 1 nation in international atomic inspection and control?
-The question from the honourable member asks for a lot of detail which I am not able to give. It also makes some assumptions to which I am afraid one cannot give an answer. However, regarding the detailed matters, I will be only too pleased to see that the honourable member is supplied with the information. It is true that we have very large deposits of uranium in this country. I am told that the proven reserves represent about 20 per cent of the present Western world ‘s supply, and we believe the figure could be considerably higher than that. This would give Australia a unique position if it were to be an exporter of uranium. Of course, it would have the opposite effect if we were not going to be an exporter. It puts us in a rather questionable position in relation to other countries which are desperate to meet their future energy requirements. I believe that Australia would have some questioning to do if it were to completely deny those people access to urnaium fuel.
Another aspect on which I have made publiccomment is the objectives of President Carter’s policy for peaceful use of uranium. His objectives are hinged on the development of the uranium cycle and the avoidance of any further progress with plutonium until alternative advanced forms of energy can be considered. The American Administration, indeed most conservation groups around the world, are very fearful of the proliferation of plutonium and therefore would like to concentrate merely on the present light water reactors using uranium fuel and avoid the question of reprocessing. I hope that at this stage reprocessing will not be considered by other countries around the world. Certainly it will not be considered by Australia.
On the question of enrichment, during my discussions with Dr Schlesinger in the United States he gave me a firm indication that the American Administration would welcome Australia going into enrichment should we become an exporter of uranium. If we went into the enrichment of uranium, he saw advantage- this coincided with my point of view- in there being an inter-nation arrangement, with the countries which would be consumers of uranium and also suppliers of technology all participating. However, these answers that I give are somewhat hypothetical at this stage because the uranium question still has to be decided by the Government. We now have the second Fox report. It was presented on 25 May. The Government has set up a task group of departments to study the Fox report, under the chairmanship of the Department of National Resources. I hope that the group will be able to present a report for the Government to examine some time after the Prime Minister returns from overseas.
-I direct a question to the Acting Prime Minister. Has a directive been issued to the Public Service that responses to correspondence from members of Parliament must be signed by the permanent heads of departments? If such a directive has been issued, will the Acting Prime Minister make a statement to the Parliament on such limitations on representations by members of Parliament which have been imposed by the Government, the terms of those limitations and the manner in which they are to be carried out? Also, will he state what facilities will be provided for permanent heads of departments to cope with the work load which will be generated by normal representations made by members in writing to departments and which will turn permanent heads into clerks rather than administrators of their departments? I ask the Acting Prime Minister whether a statement or detailed letter will be issued to members so that they will be able to inform their constituents of what restrictions exist on the making of representations on their behalf?
– I am not aware of any such direction being given to the permanent heads of departments. However, I will have this matter looked at and, if there is need for a statement to be made about how correspondence will be handled and any restrictions to be applied, I will take the necessary action. I would like honourable members to know that the Prime Minister has notified all Ministers that he would like them, where they are able to do so, to direct their letters back to members of this chamber and senators. Even if the correspondence has come from State members of Parliament, he has asked that the relevent member of this House be notified of the correspondence. Whether the honourable members concerned sit on the Opposition benches or on the Government side of the House, the Prime Minister has asked that they be treated equally in respect of that correspondence and that it not be signed by staff if that can be avoided. But it is by-
-That is silly. You are giving an unreasonable work load to busy men.
– Allow me to explain the position. It is very difficult for Ministers to sign all correspondence; but I think it is a very bad habit if Ministers start having their staff sign all the correspondence. There has to be a sensible balance and members of this House should not be slighted in respect of correspondence.
-The Minister for Transport will be aware of the Major Airport Needs Study for Sydney. I ask him: What are the options on which the MANS committee will make recommendations? When will the Committee be reporting? Over what period of time will it be seeking comments from the public?
-The Major Airport Needs Study is open to members of the public as from today in Sydney. If anybody is interested in going along- I invite those who live in the Sydney region to go along- the study is at the Inquiry Centre, ground floor, 59 Goulburn Street in the city. I certainly would be pleased if as many members of Parliament as possible undertook to visit this inquiry and invited their constituents to take part in it because the purpose of the MANS study is a public inquiry as well as a joint inquiry by the Commonwealth and State governments. A committee has been set up consisting of a number of departments from the Commonwealth and a number from the States. The inquiry will remain open right to its conclusion- I hope that that will be about Christmas timewhen the committee will be able to report to both governments. The options available to the MANS study relate mostly to the further development of the Kingsford-Smith Airport with additional runways, the development of a second airport combined with additional runways at Kingsford-Smith Airport, or the development of a second airport without additional runways at Kingsford-Smith Airport. So there are several options available for study. This is probably the major question facing civil aviation in the next decade or two and therefore it is a very important study. I hope that all members of Parliament will take a particular interest in it and that the study can report back to the Government by about the end of this calendar year. 1 lay on the table for the information of members of Parliament all the information relating to the study.
-Last September the Acting Prime Minister told me that the Government had not seen the advantage to Australia in concluding a framework agreement for economic and commercial co-operation between the European Economic Community and Australia such as Canada was able to consumate last July. I ask whether in the light of his recent visit to Europe he remains of the same opinion.
– During my visit to Brussels I had discussions with 2 principals of the European Economic Community, one being Mr Brunner who is the Minister for Energy in the European Economic Community. During the course of my discussions with him he suggested that there would be advantage in a bilateral agreement between Australia and the EEC giving Australia assured access for raw materials. His concern was principally with coal and uranium and he felt that this would be of advantage to Australia. I was very keen to have the matter further examined by officials to see what the possibilities were of arriving at some sort of agreement. During those discussions I suggested that while looking at the whole question the possibility of agriculture being included in such a bilateral agreement also could be examined. However, after talking with Mr Hijzen who is the Vice-Minister for International Trade the suggestion received a negative reaction once the question of agriculture came up and I have since learned that Mr Brunner has retracted somewhat his keenness to have bilateral agreement between Australia and the EEC. However, I am of the opinion now that there would be advantage to Australia in having a bilateral agreement.
-Maybe the Leader of the Opposition feels that he has scored a point. However, I do not think that I have lost a point because this matter did need closer examination. If we can have a bipartisan attitude on this question it will be to the best advantage of Australia.
-My question is directed to the Minister for Defence. Those of us who live in northern Australia are becoming increasingly concerned about the very small number of patrol boats available for coastal surveillance, particularly as the present patrol boats are ageing and spending greater periods in maintenance. Can the Minister give an assurance that the program to build 1 5 new patrol boats will be commenced without delay?
– I should like to be in the position to give a categorical and unequivocal yes. But the issue is not free of difficulty, as I am sure my honourable friend will appreciate. I share his concern regarding the patrol boat project. It is one of the most important projects that currently occupy my attention and the Government’s attention. I should like the honourable member to know that I am in the process of having discussions with the Treasurer. He has his difficulties; that I acknowledge, but I know that he shares my concern regarding the patrol boat project. It is his anxiety to see that the program, as far as possible, will be met.
-My question is addressed to the Minister for Transport. Is it true that a curfew has been placed on Melbourne Tullamarine airport for aircraft landing at night? Can the Minister indicate which sorts of aircraft will be restricted and the hours during which they will be restricted? If all aircraft are not restricted can he explain why some aircraft will be allowed to land during the curfew hours?
– The honourable member seems to be under some misunderstanding or misapprehension. No curfew has been placed on Melbourne Tullamarine airport. It may well be that there has been a misreporting of a comment I gave to the Press yesterday in respect of the introduction of the new hush kits on aeroplane engines. Stage 1 of their introduction will come into effect in 1 980. Stage 2 will come into effect in 1985. It is proposed that following the successful introduction of hush kits a curfew will be placed on the Tullamarine airport to prevent the landing of any aircraft entering the country which are not fitted with hush kits.
-Is the Minister for Primary Industry aware of the extremely serious threat posed by the American lucerne aphid which has now been discovered in South Australia, New South Wales and Queensland? This insect puts at risk the Australian lucerne hay, green fodder and seed crops worth in excess of $ 100m. In addition to the decision of the Standing Committee of the Australian Agricultural Council of 4 May, will the Minister take urgent steps to set up a high level committee to co-ordinate Commonwealth and State work to control this new aphid? What financial and other assistance will the Minister give in conjunction with the States to control this threat to the rural areas?
– The honourable gentleman has correctly identified the very serious consequences that could flow to the Australian lucerne pastures as a result of the introduction of this spotted aphid. I am told that it is not known how it came into Australia. This disease has apparently now spread through all the eastern States and, more recently, it has been detected in South Australia. Apparently, its native habitat is in the eastern Mediterranean where it causes little damage. It became a serious pest when it entered the North American continent in about 1954. As an example of the kind of damage that can occur, I point out that dense infestation causes rapid deaths of seedlings and reduces the yield of dry matter and mature plants by from 60 per cent to 75 per cent. In California alone, in 1955, I am told, the aphid cost growers about $ 1 3m in losses and extra pesticide treatment.
As the honourable gentleman has correctly said, the value of Australian hay, green fodder and seed crops is somewhere between $120m and $150m. It is most important that means of control be identified. There are apparently 3 different forms of control. Spray programs have a temporary benefit. Biological controls might have some prospect of success, particularly as it is understood that a parasitic wasp has been used with some success in the United States. The Commonwealth Scientific and Industrial Research Organisation has initiated investigations to see whether that wasp can be similarly effective in Australia. The third and equally successful means of control is the development of resistant strains of lucerne. I am told that an aphid tolerant strain of lucerne has been developed by the Commonwealth Scientific and Industrial Research Organisation at Deniliquin. The variety is known as Falkinder. Unfortunately there are not many plants of this particular variety and consequently seed for establishment of Falkinder lucerne is not as available as it might be. In the meantime, by management practices, it is possible to control the infestation of the aphid and the crops of Australia are protected to a degree.
The honourable gentleman asked whether a high level working committee could be established. Last week the Standing Committee on Agriculture set up a working party to deal with the spread and control of the aphid. Its objective is to co-ordinate Commonwealth and State control measures. It will meet next Wednesday in Sydney to see what can be done. There is no doubt that if something is not done, Australian lucerne pastures in particular are liable to be very severely affected. One would hope that in the meantime, as a result of management practices there will be some way of minimising the otherwise quite disastrous effect the spotted aphid could have.
-I ask the Minister for the Environment, Housing and Community Development: Have officers of his Department had discussions with appropriate State officials with a view to the cessation or lessening of Australian Government involvement in environmental protection? If so, what measures are being taken to ensure that the States adopt minimum standards for environmental protection and what are these minimum standards?
-May I say at the outset that I welcome the chance to speak on this subject. First of all, to answer the honourable member’s question, not only have my officers been concerned in these negotiations, but so also have I. The Government is concerned to strengthen the administrative procedures that are required under the Environmental Protection Act. I have no doubt that the honourable member for Maribyrnong would readily agree with me that when he was administering this Act the problem of doing so in a Federal system was very difficult. The sorts of problems which he struck and which I have had are things like the need to have cooperation and co-ordination with the States, the need to avoid duplication- duplication between governments going over the same ground and duplication between industry and governmentsthe need to give industry early warning of requirements in the environmental consideration of the project, and the need to make sure that the people nearest to the problem are helping to solve the problem. What we have been doing is negotiating with the States an agreed set of administrative procedures.
The state of play is that I have signed, I suppose a formal agreement with Western Australia that achieves effective and simple administrative procedures and avoids those things about which I have just spoken. We have exchanged letters with Tasmania. I believe that we are almost in a position to say that we have finished negotiations with Victoria and South Australia. I am hoping to see Mr Bjelke-Petersen, who is the responsible Minister in Queensland, soon. I am sure that he will be impressed with the record of achievement on negotiations that we have had already with the other States. The only other thing I should like to say, because I think that the record should be clear here, is that this Government has a good record in its concern for the environment and conservation. Under the Environmental Protection Act, we have directed successfully, environmental impact statements on iron ore projects in Western Australia, major coal projects in Queensland, highway projects in South Australia and woodchipping in New South Wales. That record is a record of concern and a record of action. We will continue to keep it that way.
-I direct my question to the Minister for Aboriginal Affairs. Is the Minister aware that today marks the decennial anniversary of the granting of constitutional power to the Commonwealth to make laws for Aborigines? What progress has been achieved for Aborigines over that period of time?
– It is most appropriate for the honourable member for Parramatta to have asked this question as he is Chairman of the House of Representatives Standing Committee on Aboriginal Affairs. He brings to the attention of the House a very notable event, that is, the tenth anniversary of the 1967 referendum which gave to the Commonwealth, through an amendment to the Constitution, the power to make special laws with regard to Aboriginal citizens of Australia and also to treat Aborigines as full citizens by including them in the census. It is as well to remind the House also of another notable aspect of that referendum, that it achieved the highest Yes vote in the history of referendums in Australia- 89 per cent, which is even better than some of the Yes votes that were achieved in the last referendums.
Having said that, I should like to give to the House an elaborate statement on the achievements and the progress in Aboriginal affairs over the last 10 years, but I shall not do that except to point out that in fact there has been considerable achievement. Too often members of parliament from this House and the other place and members of the public single out apparent failures, difficulties and problems in Aboriginal affairs. But of course it is the silent majority of achievements which ought to be heralded to the public by members of this House and the other place. There have been real achievements in health, education, employment and the establishment of Aboriginal Organisations. I think perhaps the greatest achievement is the fact that today more and more Aborigines- both men and womenare standing up and speaking for their own people, not simply in national forums but in their local communities and areas of activity. They have been chosen by their communities to speak for them with government and within towns and cities. When Aborigines come forward to take positions of leadership and speak for themselves in that way I think that really is the hallmark of great progress. I thank the honourable gentleman for asking this question and thereby drawing the attention of the House to what I think is a most notable event.
– I ask a question of the Minister for Employment and Industrial Relations. I ask it in the same spirit on the decennial of the passage of the Aboriginal referendum which, of course, as the Minister for Aboriginal Affairs has reminded us, was carried by an overwhelming majority in Australia, although regrettably the smallest majority was in Queensland. My question seeks information further to the statement on Aboriginal employment which the Minister for Aboriginal Affairs made yesterday on the report of the working party which he and other Ministers received on 3 1 July last. I ask the Minister for Employment and Industrial Relations: How many additional positions for vocational officers will be created in the Commonwealth Employment Service to cope with the record levels of Aboriginal unemployment? What additional funding will be allocated to the National Employment and Training scheme to assist employers in providing on the job training for Aborigines? Can the Minister explain why the numbers of Aborigines registered with the CES in March increased over the February figures when the normal seasonal pattern is for these numbers to decline?
-The Leader of the Opposition has actually asked 3 questions. So far as the additional vocational officers in the Commonwealth Employment Service are concerned, I shall get the numbers and inform him of them. Aboriginal training under the NEAT scheme is an integral part of that scheme and provision is made for training of Aboriginals in the funding of this scheme as a whole. There is not separate provision for it. The funding of the NEAT scheme for the coming year has been approved with that in mind. We anticipate the NEAT scheme being able to continue to make the major contribution to Aboriginal training that it has in the past. As to the honourable gentleman ‘s final question-that is, why Aboriginal registrations for employment increased in March when normally there is a decline at that time- I am not aware of the trend in that month over the years. I shall examine that trend and again let the honourable gentleman have whatever information is available.
-I direct a question to the Acting Minister for Foreign Affairs. I refer to yesterday’s announcement by the New Zealand Government that it had decided to declare a 200-mile territorial off-shore zone. I ask: Will the Australian Government now take similar action to protect Australia’s interests in the 200-mile zone surrounding the Australian continent, for reasons that have been canvassed so clearly during the past 2 years both in this Parliament and in other forums, including the United Nations Law of the Sea Conference?
-I have heard that the New Zealand Government made such an announcement yesterday, but I have not seen the details of it. Australia’s position remains that there is a firm intention to pursue the general extension of the territorial commercial zone within the context of the Law of the Sea Conference, if at all possible. My colleague the Minister for Foreign Affairs will be calling in at New York on his return from the Commonwealth Heads of Government Meeting, which he will be attending with the Prime Minister. At that Law of the Sea Conference it is hoped that it might be possible to achieve some general international recognition of the advantages of extending the commercial zone to the 200-mile limit. The advantages of such an international agreement to a country such as Australia are obvious. As the honourable gentleman would know from events in his own electorate, there have been many intrusions by foreign fishing boats into even the 12-mile fishing zone. Part of the difficulty for a country such as Australia is to ensure that there is adequate preservation of the rights of the zone if it is extended to 200 miles. If there can be an international accord, it obviously would be more easy to preserve those rights.
There is one other factor that I think is important. There is a general appreciation of the fact that quite extensive fishing resources lie outside the 12-mile zone, but at the moment many of those fishing resources are not capable of being developed commercially within the context of the Australian market. Apparently because of our European ethnic origins, most Australians tend to have a preference for northern hemisphere fish. I need only to refer to salmon and a number of other European fish which are consumed quite commonly in Australia. If it is possible to develop fisheries in the 200-mile zone it may well be necessary for Australian consumers to change some of their present preferences as far as fish products are concerned. It is in that respect that my Department-the Department of Primary Industry- has been particularly active in trying to ensure that when there is a 200-mile fishing zone those resources can be utilised by Australian fishermen to the maximum. I take on board the honourable gentleman’s reference to New Zealand. I will find out the full extent of the decision by the New Zealand Government as soon as possible and advise him on it after question time.
– My question is directed to the Acting Prime Minister. I refer him to the media release on crude oil pricing issued yesterday. I ask: Did confidential discussions between officers of the Department of National Resources and representatives of the oil industry involve informing the oil industry of decisions already made by Cabinet? Further, when will a statement be made to the Parliament on these much delayed matters so that the elected representatives and the Australian people will have the same opportunity to be informed about them as those people who have vested interests in the oil industry?
– After very deep consideration the Government has arrived at a decision as to what should be the general principles of a new arrangement for the pricing of indigenous crude oil. We will need to have discussions with sections of the industry, principally the producers and the refiners, to see whether these objectives can be achieved. There will be discussions individually and collectively with officials of the Department of National Resources. When those discussions are concluded the Government will then be in a position to make a decision and, I would hope, an announcement as soon as possible.
– Can the Minister for Health advise the House at what rate the Commonwealth Government is funding women’s refuges in the States under the community health program? Further, is there any intention of transferring his responsibility for women’s refuges to the Department of Social Security?
– I think I should make it clear that yesterday in reply to a question asked by the honourable member for Maribyrnong I mentioned that the funding of women’s refuges under the community health program was at a rate of 100 per cent. That was true for 1974-75.
What I did not say was that for 1976-77, under the block funding arrangements that we have entered into with the States, women’s refuges have been funded under the same arrangements as are other projects under that program. In other words, they are funded for 75 per cent of their capital cost and 90 per cent of their recurrent costs.
There are about 20 women’s refuges throughout the Commonwealth. As I said yesterday, the Minister for Social Security and I have had discussions about the funding of women’s refuges in the future. I am not yet able to give any firm indication of what decisions may emerge, particularly as to the financial aspects of the question, because it does have some Budget implications for 1977-78.
-Will Queensland cooperate in future?
– That, of course, remains to be seen. The Prime Minister has indicated a desire that the 2 refuges in Queensland should be funded and maintained. There have been some adverse reports about the operation of refuges. We are checking out those reports to see whether the refuges are being properly conducted.
I think it is essential to understand that there is difference between a women’s refuge and women’s health centre. They are 2 entirely different places. A refuge is not established for health purposes. It is a place which was set up by the former Government under the terms of the community health program to provide some refuge to women who had been deserted or bashed by their husbands and who had to seek refuge for a short period. For that reason the refuges have an essential purpose and use in the community.
– I desire to ask the Minister for Health a question. He will recall that his colleague the Minister for Aboriginal Affairs stated on Wednesday that he believed that the Queensland Government would not impede the national trachoma and eye health program in treating Aboriginals in Queensland. Has the attention of the Minister been drawn to a report in today’s Age that the Queensland Government is in fact hampering the program in that State by classifying it as a research project? Can he assure the House that the Government will not permit such opposition to prevent the Royal College of Opthalmologists from carrying out its vital treatment program and that if necessary the relevant clauses of the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Law) Act 1975 will be invoked to achieve this goal?
– I thank the honourable member for Fremantle for the opportunity to put the record straight concerning the Queensland situation. I saw the reports earlier in the week and they were quite untrue. As a consequence of the misstatement that there was friction between officers of my Department and the Queensland officials, the Acting Director-General of my Department wrote a letter to the Age to put the record straight. Queensland officers have been most co-operative in the provision of information which is required to enable the smooth functioning of the national trachoma program in that State. The Aboriginal community councils concerned have a uniform policy which ensures that any medical or related activity must be of recognisable benefit to a community and the individuals in it before permission is granted for the activity to proceed. This is an established principle in Queensland among Aboriginal communities.
Relevant information must be supplied to the communities concerned to enable them to evaluate the true worth of any program. Discussions concerning the best method of providing and disseminating this information are proceeding between State officers and those of my Department. I make it clear that there has been nothing untoward about the negotiations and discussions which have taken place. In relation to a misunderstanding on the part of Queensland officials about the research program, I still have not been able to ascertain whether they have misunderstood the purpose of the trachoma campaign. Quite clearly there is every co-operation between the Departments. But we have to observe the rules which are being applied by the Queensland Aboriginal communities. We are positive that we will get their full co-operation.
-I direct my question to the Acting Minister for Foreign Affairs. Is there an Australian view concerning the significance that present American proposals for the withdrawal from South Korea of American troops will have for the broad range of American Western Pacific policy? Is there any concern or even hope that guarantees given with the new American policy will differ totally in their effect from the guarantees given to China from 1946 to 1948 and to South Vietnam from 1972 to 1975?
– The general question of American policy is for Americans alone to determine. We in this part of the world have had a continuing concern as to the implications of the really alarming number of border disturbances between North Korea and South Korea and of the general statements which have emanated on occasions from North Korea. These have been a matter of some comment in the Australian Press and among Australian people. The implications, however, are not quite as easily resolved. During ministerial consultations in Japan the prospective withdrawal of American ground forces was a matter of discussion. It has been discussed by the Australian Prime Minister. I have no doubt that it may well be an issue which he will take up when he is outside Australia and meets with President Carter.
I think that at this stage it would be premature to draw too serious a conclusion on the implications of American policy. Obviously, if as a result of a decision in that theatre there were to be any suggested increase in the instability of the region, that would be of profound concern. As to implications with respect to the American attitude to China, one can only say that in the progressive integration of China into the world in recent times there seems to have been a significant change in what was previously seen as a continuing aggressive policy towards the border states of that country. As a result, I do not believe the implications might be as the honourable gentleman suggests. I believe that the present relationship between China and the rest of the world gives one hope that there will continue to be regional stability. No doubt any change in American policy will take those prospects into account.
– My question is directed to the Minister for Productivity. Does he recall the aerospace industry report of the Industries Assistance Commission of October last year- 7 months ago? Does he recall the report indicating, among other things, that maintenance of the industry at its present size could be expected to cost the taxpayer some $12m per annum in reserve capacity, or its equivalent in the case of Hawker de Havilland; that rationalisation would reduce this need for reserve capacity; and that proposals for rationalisation of the various units in the industry would lead to savings in operational costs, including reduced reserve capacity, estimated at more than $4.5m per annum? In view of the fact that the Government is exploring ways to save public expenditure-in many areas I would oppose what it is proposing but in this case it has an opportunity to save public expenditure in a commendable manner- what steps have been put in train to follow through the recommendations of the report in relation to rationalisation? How soon can the Minister make a statement to the House, not only on the precise program for achieving that rationalisation but also on a policy for the aircraft industry in Australia?
– I do recall the IAC report quite clearly. I am able to say that in recent months I have had discussions with Hawker de Havilland, the Commonwealth Aircraft Corporation, the Australian Council of Trade Unions and the other peak councils which are concerned. I expect that within the Budget context further consideration will be given to the matter by the Government and that during the Budget session an announcement will be made.
– For the information of honourable members, I present a report by the Commonwealth Bureau of Roads on national highways linking Hobart, Launceston and Burnieapproaches to Hobart- 1977.
– For the information of honourable members, I present the report of the Temporary Assistance Authority on umbrellas.
Bill presented by Mr Ellicott, and read a first time.
– I move:
This Bill has two main purposes: To establish a Commonwealth Legal Aid Commission to operate in conjunction with State and Territorial Legal Aid Commissions; and to provide for the preservation of the rights of staff of the Australian Legal Aid Office who transfer to State and territorial commissions. The Bill is a basic element in the Government’s announced policy to establish a comprehensive legal aid scheme in Australia involving a co-operative exercise between the Commonwealth and the States in the provision of legal aid. Under the scheme, legal aid will be provided in each State and Territory through a single independent statutory commission, established by legislation in each State or Territory. It is intended that each State Commission will take over the existing Australian Legal Aid Offices and any State or law society schemes in that State. The Territory Commission would do likewise. In accordance with the Government’s policy of self-management by Aborigines, the Aboriginal Legal Aid Services will continue to operate separately.
Honourable members will observe that under the Bill the Commonwealth Legal Aid Commission will have an advisory, co-ordinating and monitoring role in the comprehensive scheme. The new arrangements will eliminate duplication and confusion in the minds of the public caused by the present multiplicity of schemes. It is the Government’s intention to maintain a continuing and direct involvement in the delivery of legal aid. This financial year it is estimated that the amount expended on legal aid other than Aboriginal legal aid will total $ 17.95m. This is 43 per cent more than the amount expended in the previous year. The continuing interest of the Commonwealth in the quality and economy of the provision of legal aid in the Federal area will be given effect to in the following ways: Firstly, there will be a formal agreement between the Commonwealth and each State under which the Commonwealth will provide funds for the provision by the State legal aid commission of legal aid in the Federal area. Secondly, the legislation establishing State and territorial commissions will require them to have regard to the recommendations of the Commonwealth Commission in providing legal aid in the Federal area. Thirdly, the Commonwealth will have a nominee- ordinarily a member of the staff of the Commonwealth Commission- on each State and territorial commission and a small expert staff that will monitor the provision of aid, conduct research, maintain statistics and examine the needs of the various commissions within budgetary limitations.
I would also like to emphasise that it is the Government’s intention that the provision of legal aid through salaried officers should continue. Many of the initiatives in legal aid have come through the work in recent years of salaried officers in the Australian Legal Aid Office. Amongst these are the shopfront, the duty lawyer and the mobile lawyer service. The staff of these offices have performed and will continue to perform a very valuable community service. I know that honourable members value the relationship they have built up with the legal aid offices in or near their electorate. The salaried service is now an acknowledged pan of legal aid.
I shall now deal with the Bill. Under the functions set out in Part II of the Bill the Commonwealth Commission will keep under review the extent of the need for legal assistance in Australia and will make recommendations from time to time to the Attorney-General as to the most effective, economical and desirable means of satisfying that need. It will make recommendations to the Attorney-General and to legal aid commissions of States and Territories concerning the provision of legal assistance by those means in respect of Commonwealth matters. The Commission will be a monitoring body. It will collect and publish statistics concerning the operation of legal aid. It will report to the Attorney-General on the financing of legal aid commissions of States and Territories. It will, as requested by the Attorney-General, report as to the provision by the Commonwealth of financial assistance to legal aid commissions. It will also have power to determine applications for the provision of legal aid in specialised areas referred to it.
Under Part II, the Commission will be constituted by a chairman, a deputy chairman and 6 other members reflecting the various interests involved in legal aid. The chairman will be a judge or a former judge or a lawyer of eminence. Two members will be nominated by the AttorneyGeneral, two by the State Attorneys-General, one by the Law Council of Australia and one by the Australian Council of Social Service. I envisage that, by arrangement among the AttorneysGeneral of the States, the 2 members nominated by them will be drawn from each State in turn and will serve for an appropriate term of office agreed with the Attorney-General. All the commissioners except the deputy chairman will hold office on a part-time basis.
Considerable progress has been made towards implementing the comprehensive scheme in discussions at ministerial and officer level between the Commonwealth and the States and I have had discussions with the executive of the Law Council of Australia to explain the Government’s plans and to enlist the support of the private legal profession. Two States- Western Australia and South Australia- have already passed Acts to establish State commissions to operate in conjunction with the Commonwealth Commission. Discussions will take place with the Attorney-General of each of these States with regard to amendments to these Acts thought by the Commonwealth to be desirable. I expect that ordinances to establish commissions will be made in the Australian Capital Territory and the
Northern Territory by July or August this year. It is my hope that, before the end of the next financial year, legislation to establish commissions will have been passed in all States.
Honourable members will recall that I have previously stated the Government’s intention that salaried lawyers should have an acknowledged role in the delivery of legal aid. This was confirmed in the draft Territory ordinance circulated in March last. Thus Part IV of the Bill seeks to preserve the rights of ALAO staff who transfer to State and territorial commissions. It does this in 2 ways: Firstly, by requiring certain minimum terms and conditions to be included in any arrangement for the transfer of ALAO staff; and, secondly, by applying the second tier of the revised officers’ rights declaration scheme to staff transferred.
Honourable members will see that these provisions give effect to the statements that I have made in this House- and to undertakings that I have myself given to ALAO staff- that arrangements for their transfer to State and Territorial Commissions will be on the basis of terms and conditions of service no less favourable than those they presently enjoy.
The terms and conditions that, under Part IV, must be included in any such arrangement are the basic rights to present salary, leave and superannuation entitlements. These are minimum conditions only and, in discussions with staff associations and the States, the Commonwealth will be seeking to have included in any arrangement the preservation of various other rights such as those dealing with allowances, increments and probationary service. ALAO staff will not be asked to elect concerning transfer to a State or Territorial Commission until a satisfactory arrangement has been concluded by the Commonwealth in the relevant State or Territory and the staff are fully informed about the terms and conditions that will apply to them.
The second tier of the revised Officers’ Rights Declaration scheme is part of a proposal developed by the Joint Council of the Australian Public Service-a consultative body of staff and management- to replace the existing Officers’ Rights Declaration Act. Part IV of the Bill makes interim provision for the application of the second tier to ALAO staff transferred to State and Territorial Commissions pending the introduction by the Government during the Budget sittings of legislation to implement the full scheme for the whole of the Australian Public Service. Under part IV, ALAO staff transferred may seek transfer to or promotion in the Australian Public
Service-and may appeal against provisional promotions- as if they had remained members of that Service. They will also have access to special re-entry provisions should their employment with a State or Territorial Commission be compulsorily terminated.
To meet the concern of ALAO staff about their career prospects in legal aid, I am asking State Attorneys-General to include a provision in State legislation enabling Legal Aid Commissions to make reciprocal arrangements with each other for transfer of staff. Similar provision would be made in the Australian Capital Territory and the Northern Territory. Part V of the Bill provides, in effect, for progressive repeal of Commonwealth legislation referring to the Legal Service Bureaus and the ALAO as State and Territorial Commissions take over their functions. It also provides for the staff of the Commission to be employed under the Public Service Act 1922. The Commission will be required to provide an annual report to Parliament.
The delivery of legal aid services to those in need is a continuing aim of the Government. The provision of that aid requires, in effect, a partnership between the relevant governments, the legal profession including private and salaried lawyers, and the community. There is a need for all to be involved. This Bill provides an important part of the framework within which that partnership will be conducted.
I commend the Bill to the House.
Debate (on motion by Mr Lionel Bowen) adjourned.
Bill presented by Mr Hunt, and read a first time.
– I move:
Honourable members will be aware of the importance attached by both the Government and the community to the need for restraint on the burgeoning medical benefits expenditure on pathology services. This is a problem all over the world, but the increase in Australia in recent years has been out of all proportion to the growth in the cost of other medical services. By way of illustration, for the half year ended December 1974 the medical benefits expenditure for pathology services was $22m whilst for the half year ended 1976 it had risen to $53m.
The Government is determined that medical benefits expenditure on pathology services will be restrained. Accordingly it has accepted and acted upon proposals submitted by the pathology services working party, the final report of which was tabled on25 May 1977.
The principles inherent in the Bill have been worked out carefully over a period of 13 months by the pathology services working party. The working party is constituted by persons nominated by the Australian Medical Association, the Royal College of Pathologists of Australia, the Society of Pathologists in Private Practice, and the New South Wales Health Commission, apart from officers of my Department. The working party’s report has the support of these professional bodies. I am confident that the government’s actions, with the support of the profession and the community, will reduce the mounting costs of medical benefits for pathology services within the bounds of the proper practice of medicine.
Before becoming involved in the details of the Bill, I wish to emphasise that the working party has recommended that a new schedule of pathology services and fees for medical benefits purposes will replace the existing schedule. The existing schedule is totally out of date, and the Government has accepted this new schedule. The new schedule is set out in appendix A to the working party’s report. It will be introduced by regulations to operate at the same time as the revised pathology benefit arrangements covered by this Bill come into operation. The new schedule will maintain the current two-tiered levels of benefits. However, the present three item rule for multiple services will be replaced by in-built multiple service rules in the items, where appropriate. The Bill deletes the current provisions in the Act relating to the three item multiple services rule. New section 4b introduced by clause 4 of the Bill before the House, enables the new inbuilt multiple services rule to operate.
Clause 4 also introduces a new section 4a. This provision enables interim variations to be made to pathology services set out in the schedule. At present the schedule is updated twice each year by regulations promulgated under section 4. This method is not sufficiently flexible to cope with technical breakthroughs which almost overnight can and do substantially alter the costs of pathology services. Accordingly the Bill provides for the Medical Benefits Advisory Committee, following a reference to it by the Minister, to investigate existing or proposed pathology services and recommend whether they should be varied or included in the schedule and, if so, the level of fees applicable. The Minister may issue a determination specifying the new service and fee which will apply for medical benefits purposes for a period of six months. Within this time action will be taken to formally include the particular procedure in schedule 1. The Bill provides for the Minister’s determination to be tabled in Parliament and to be subject to disallowance on the same basis as a regulation. This arrangement will provide the necessary flexibility to adapt to technical changes while providing time to include new services in the schedule as part of the regular updating machinery.
I am sure honourable members will readily appreciate that where pathology services are rendered by a practitioner as a result of a request by another practitioner, the initiative for the rendering of unnecessary pathology services lies with the requesting practitioner. The existing legislation does not formalise, in any way, the manner in which requests must be made. The working party has recommended and the Government has accepted that requesting practitioners should be accountable for the payment of medical benefits following the rendering of services requested by them. This decision complements the approved pathology practitioner arrangements. I will spell out the details shortly.
Accordingly, clause 6 of the Bill inserts a new section 16a. The new section provides that a medical benefit is not payable in respect of a pathology service unless the service was, firstly, determined by a practitioner to be necessary; secondly, with one exception to which I will refer shortly, was rendered by or on behalf of an approved pathology practitioner; and finally, when rendered as a result of a request, the practitioner made the request in writing. The precise details that will be required to be included in the request will be set out in regulations, but in general will be: name and address of the patient’s doctor and the practitioner requested to perform the service; the date of the request; the name and address of the patient; and the pathology services to be rendered by the approved pathology practitioner. I should emphasise that the written request which each requesting practitioner must use and complete will not be a standard form. The form of the request will be up to the individual practitioner. The only requirements are that it must be in writing, signed personally by the practitioner, and include such details as I have just specified.
It is recognised that in some circumstances verbal requests for urgent pathology services are essential. The Bill acknowledges the necessity for this practice with the proviso that before medical benefits can be paid for verbal requests they have to be confirmed in writing. All written requests are to be held by the approved pathology practitioner rendering the service for a period of 1 8 months after the date on which the service was rendered and should the Minister so direct must be produced for examination by departmental officers. In view of the importance of the requests as source documents for investigations into the possible initiating and rendering of excessive pathology services, failure to hold the request for the specified period has been made an offence.
New section 16A also provides that for a medical benefit to be payable, there shall be recorded on an account, receipt or bulk-billing assignment form, prescribed details in respect of the pathology service. Where services are rendered as a result of a request, these details will be similar to those I have already mentioned in respect of the written request. Where the service does not involve a request, that is, where an approved pathology practitioner both determines the necessity for and renders the service himself, the essential details will include the name of the doctor rendering the service, the date the service was determined to be necessary and the pathology services rendered.
I mentioned earlier that there was an exception to the general rule that medical benefits would not be payable where pathology services were rendered by other than an approved pathology practitioner. Medical practitioners will still be able to provide 17 specified simple basic diagnostic pathology services for their own patients or patients of their own practice without becoming approved pathology practitioners. These tests are listed in division 9 of appendix A to the report of the pathology services working party. They are the 17 tests that were listed by the joint pathology working party on accreditation as being tests for which accreditation would not be required. The Government has accepted the working party’s proposal that certain of these tests, namely haemoglobin estimation, determination of erythrocyte sedimentation rate and microscopical examination of urine concentrate which are currently not eligible for medical benefits unless referred will be eligible in future, even when not referred. This will recognise the importance of doctors being able to carry out certain important simple basic diagnostic pathology tests on their own patients, without having to wait for results from a pathologist. In addition to the new provisions concerning the payment of medical benefits for pathology services, clause 6 of the Bill also provides for the giving and acceptance of undertakings. New section 16B provides for the Minister for Health to draw up common forms of undertaking to be given by persons wishing to become approved pathology practitioners. Provision has been made in the Bill for the form to be varied by the Minister for Health only where the variation has been agreed by the Medical Benefits Advisory Committee.
In essence the undertaking will require persons wishing to become approved to agree to provide pathology services in accordance with a code of conduct which is based on the code of conduct in the report of the joint pathology working party on accreditation. The code of conduct will cover such matters as the sharing of fees and benefits, the offering of incentives for the requesting of pathology services, billing practices of the approved person and controls on advertising to stimulate the ordering of pathology services. Persons eligible to give an undertaking are defined in new section 16C of the Bill. These are medical practitioners, persons employing medical practitioners, a State or State and Territory authority specified in writing by the Minister and a very small number of persons, who have for some years provided pathology services in country areas at the request of medical practitioners. Provision has also been made for the Commonwealth to be deemed to be an approved pathology practitioner. This means that Parliament approves the Commonwealth as an approved pathology practitioner rather than my giving and accepting an undertaking on behalf of the Commonwealth. However, the Commonwealth will, of course, abide by the code of conduct and other matters to which approved pathology practitioners are bound by their undertakings and will conform with relevant provisions of the Bill.
The Government has given careful consideration to the arguments put forward by the working party that for pathology services bulk-billing should be limited to those services provided to eligible pensioners and their dependants and not allowed for other patients of Medibank. The Government has also given full regard to the wishes of segments of the population that this restriction not be introduced. The Government has accepted on balance the views put forward by the working party, for 2 reasons. The first is that there is often not the contact between the patient and the pathologist, which allows the patient to sign the bulk-billing form. Moreover, few patients are able to sign, as they are supposed to do, the bulk-billing form after the pathology services have been performed, and certify that the services itemised on the claim form have been performed. The second is that there is a substantial correlation between the provision of large patient profiles or health screens, largely consisting of pathology services and bulk-billing. In many cases there is no indication that the patient is not well and these large profiles or screens are fostered only in a situation where the patient has nothing or little to pay. Such profiles and screens with benefits in each instance in excess of $75 were responsible for some 25 per cent of the total medical benefits expenditure on pathology services in September last. The figure in New South Wales, for instance, where this practice is more common, was nearly 40 per cent.
I wish to point out to honourable members that bulk-billing for services other than pathology services remains untouched by these changes. The question of whether there should be any changes in respect of bulk-billing for medical services other than pathology services will be considered when the Government receives a report which I have requested from my Department. At present the Health Insurance Act provides for the establishment of medical services committees of inquiry, consisting of 5 medical practitioners, whose function it is to inquire into references to them by the Minister concerning the possible rendering of excessive professional services which attract medical benefits payable by Medibank. These functions are being extended to enable the committees to also investigate the rendering of excessive services which attract medical benefits payable by private medical benefit organisations registered under the National Health Act.
The Government is conscious that breaches of pathology undertakings are also professional matters. It is therefore appropriate and just that determinations concerning breaches of pathology undertakings should be the result of consideration by a group of professional colleagues with expert knowledge of the field involved. Accordingly, provision has been made in clause 27 of the BUI to expand the functions of the medical services committees of inquiry to authorise the committees to inquire into matters arising out of pathology undertakings.
If, following an investigation, a committee considers that an undertaking should not be accepted or the undertaking has been breached, then it may, by virtue of the amendments made in clause 32, recommend to the Minister an appropriate course of action including reprimands, withholding benefits or requiring the payment of medical benefits for pathology services in respect of which the practitioner has failed to comply with the undertaking or revocation of the Minister’s acceptance of the undertaking. At this point, the existing provisions of the Health Insurance Act will apply. Therefore the Minister may give effect to the recommendation by issuing a determination against which the practitioner may appeal.
The investigating of requests for excessive pathology services is again considered to be a matter that should appropriately be handled by the medical services committees of inquiry. Accordingly, in clause 27, the Bill confers a further new function on these committees by providing for the existing powers, functions and procedures of the medical services committees of inquiry to be extended to conduct investigations into excessive requesting of pathology services. Should the committee consider that excessive services have been requested, provision is also made in clause 32 of the Bill for the committees to recommend the reprimanding of the practitioner concerned or the withholding of, or payment by the practitioner of, an amount equal to the amount of benefits, or a specified part of the benefits, applicable to the services considered by the committee as being excessive.
The Government is confident that the adoption of this system of review provides the fairest mechanism for enforcing the approved pathology practitioner scheme. However, it recognises that as determinations of the Minister concerning breaches of undertakings vitally affect the livelihood of those practitioners, there may well be an argument that an appeal against such a determination should be heard by a court and not by a review tribunal. Accordingly the Bill provides in these circumstances for a choice of appeal against a determination of the Minister, following a recommendation of a committee of inquiry, to either a medical services review tribunal or to a prescribed court as defined in clause 38- new section 107- of the Bill. The new functions of medical services committees of inquiry will also apply to the rendering of services under pathology undertakings and the requesting of pathology services which attract medical benefits payable by either Medibank or private medical benefit organisations registered under the National Health Act.
Honourable members will be aware that for the purpose of payment by Medibank of medical benefits for optometrical consultations, the National Health Insurance Act currently provides for a participating optometrists scheme, based on undertakings given by optometrists. The extension of the functions of an optometrical services committee of inquiry to consider optometrical consultations attracting medical benefits payable by registered medical benefits organisations, has been provided in clause 35 of the Bill. The alternative of appeal to a court concerning undertakings rather than to a review tribunal should apply equally to the participating optometrist arrangements as it will to pathologists, and the Bill therefore provides accordingly.
The opportunity has been taken in the Bill to deal with 2 matters, unrelated to pathology, associated with the establishment and operation of committees and tribunals. The first of these is the discretion currently included in Health Insurance Act for the Minister to consult with professional colleges and organisations other than the Australian Medical Association in choice of members to be appointed to certain committees and tribunals established under that legislation. In practice this descretion has not been used, since the government recognises the AMA as the most appropriate body to represent the medical profession in consultations with the Government. Accordingly the Bill provides that the AMA is to be the sole body consulted by the Minister in the choosing of members for appointments to appropriate committees and tribunals established under the Act. Secondly, the Health Insurance Act at present contains common provisions which apply to both medical and optometrical services review tribunals. Provision has accordingly been made in clause 38 of the Bill to amalgamate these provisions, thus considerably simplifying the structure of the legislation.
During its investigations, the working party became aware of certain practices in which considerations are offered to induce practitioners to initiate or provide unnecessary pathology services. Provision has therefore been made in clause 50 of the Bill- new section 129AA- for the creation of a specific offence to prohibit persons from seeking or offering a payment or consideration for the requesting or providing of pathology services attracting medical benefits, other than in the ordinary course of proper professional practice. In order to determine whether an offence has been committed, provision has been made in the Bill for a person authorised by the Minister to enter premises, either with the consent of the occupier of the premises or on authority of a warrant issued by a magistrate, to search for and inspect and take copies of documents. I emphasise that a warrant would be issued only where a magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that there is on the premises evidence as to the commission of an offence. This offence relates to pathology services which attract either Medibank medical benefits or medical benefits payable by registered health insurance organisations. The Government considers that the combination of this offence, together with disciplinary action through the medical service committees of inquiry, will considerably reduce the incidence of unnecessary or extravagant use of pathology services.
The Bill also provides for increased penalties to apply in relation to offences under section 129 of the Act. The existing level of penalties for these offences, which relate to false statements or the submission of false information in connection with payments under the Health Insurance Act, have been found to be inadequate. The Bill also provides for the increased penalties under existing section 129, together with the new offence introduced by new section 129aa, to be made indictable, the maximum level of penalties relating to each provision to be set at a fine of $ 10,000 or 5 years’ imprisonment. The Government is conscious that the severity of the offences will vary and, accordingly, provision has been made in the Bill that by agreement between the prosecution and the defence, and subject to the court being satisfied that it is proper to do so, less serious offences can be dealt with summarily by a lower court, in which case the maximum penalty will be $500 or 6 months ‘ imprisonment.
Further matters included in the Bill relate to health program grants. Provision has been made in clauses 13 to 18 to broaden the scope and purpose for which health program grants may be given. At present the Health Insurance Act permits health program grants to cover only the cost of the approved health service given by an organisation, including associated management expenses. The Government considers the situation is unduly restrictive and accordingly the Bill provides for 2 additional measures to increase the scope and impact of the health program grants arrangements.
The first measure is designed to further facilitate the establishment of health maintenance organizations. Standard Medibank contributors will be able to join such an organisation when established simply by registering with it. They will then be able to avail themselves of the health services provided in the same way as members who pay their contributions to the health maintenance organisation. Where any members, whether Standard Medibank contributors or members paying contributions, need to obtain medical services elsewhere, the organisation will pay medical benefits for those services. For Standard Medibank members, the organisations will be reimbursed by way of health program grants. The second and perhaps the most important innovation is to authorise the payment of health program grants to enable the development and evaluation of new, improved health care delivery systems. This has been too long neglected and the funding of projects aimed at introducing and evaluating methods of steamlining existing practices and developing innovative alternatives will significantly increase the effectiveness of health program grants. I commend the Bill to the House.
Debate (on motion by Dr Cass) adjourned.
Debate resumed from 3 1 March, on motion by Mr Street:
That the Bill be now read a second time.
- Mr Deputy Speaker, may I have the indulgence of the House to raise a point of procedure on this legislation? Before the debate is resumed on this Bill I would like to suggest that it may suit the convenience of the House to have a general debate covering this Bill and the National Labour Consultative Council Bill as they are associated measures. Separate questions will, of course, be put on each of the Bills at the conclusion of the debate. I suggest therefore, Mr Deputy Speaker, that you permit the subject matter of both Bills to be discussed in this debate.
-Is it the wish of the House to have a general debate covering both measures? There being no objection, I shall allow that course be followed.
-Before the debate on this Bill is resumed I seek leave to make a statement in relation to it.
-Is leave granted? There being no objection, leave is granted.
-On 3 1 March last, I introduced the Conciliation and Arbitration Amendment Bill 1977. The Bill was designed to implement certain aspects of the Government’s industrial relations policy based upon the fundamental principles that: Every member of the community has rights and obligations; those rights must be protected and the obligations met. The main features of the present amending Bill provide for: Additional protection for the rights of individuals; the establishment of an industrial relations bureau to secure the observance of the Act, regulations and awards; extension of the range of consequences available to the court for breaches of industrial law.
In my second reading speech I stated the Government’s view that there was a need for time to be given not only for members of Parliament to give the proposed legislation their objective consideration but also for the principal parties to industrial relations- the peak councils of the employer organisations and trade unions, individual trade unions and employers and the community at large- to examine the contents of the Bill and to be able to make their views known to the Government. To that end I stated the Government’s intention that the Bill should lie on the table of the House. I subsequently invited representatives of the national employers and, through the Australian Council of Trade Unions, representatives of peak union councils to meet with me separately to discuss the Bill. I met with the union representatives on 1 1 May and with employers on 13 May. My discussions with them were both detailed and frank.
The unions indicated their strong opposition to many of the Government’s proposed amendments. However, at the end of the discussions, the Australian Council of Trade Unions, with the support of the Council of Australian Government Employee Organisations, provided me with a written statement which included: we put two propositions for the earnest consideration of the Government. These propositions are put in the deeply held belief that confrontation and massive economic dislocation, if avoidable whilst still adhering to principle, is against the best interests of the Australian community.
First, if the Government wishes to put the responsibility for dealing with the existing pains and penalties and processes into the hands of a body which they wish to designate as an Industrial Relations Bureau- and there is no explicit or implicit addition to those existing provisions or processes- the Trade Union Movement, while regarding such a move as unnecessary, would offer no objection.
Second, we would be prepared to join a reconstituted tripartite National Labour Advisory Council which would ave, as previously, the responsibility of discussing any issues of national concern in that area of industrial relations. Among the early issues to be considered by the NLAC it would be appropriate to include a thorough going research and analysis of the operations of the Conciliation and Arbitration Act with a view to achieving agreed improvements in that area. Such analysis could well produce positive creative functions for a Bureau concerned with improving industrial relations within this area.
The national employers, while not completely supporting the propositions put by the ACTU and stressing their view of the need to retain strong enforcement provisions in the Conciliation and Arbitration Act, indicated that they believed that the ACTU’s change of attitude in regard to the establishment of the Industrial Relations Bureau and participation in a tripartite consultative body were significant developments and their implications warranted serious consideration by the Government. The Government has given very serious consideration to the views and proposals put by both unions and employers. On 17 May I announced:
The Government welcomes the acceptance by the ACTU of an Industrial Relations Bureau and the re-constitution of the National Labour Advisory Council.
The Government has decided to pass legislation this Session to establish the Industrial Relations Bureau which will have the function of securing the observance of the Act and Awards in the terms already in the Act.
Pending the detailed consideration of the Act referred to later in this statement, the Industrial Relations Bureau will have the same powers as the Arbitration Inspectorate, no more, no less, and those powers will be exercised according to the same processes as they have been until now.
The Government will also legislate this Session to reconstitute the National Labour Advisory Council to provide a national tripartite forum for the consideration of issues of national concern in the industrial relations and manpower areas.
Both these bodies are key elements in the Government’s industrial relations policy.
The Government is also committed to legislating for the protection of individual rights in the industrial area. However, it is prepared to review the provisions of these aspects and on other matters relating to the operation of the Act contained in the present Bill in the light of their further consideration by the reconstituted National Labour Advisory Council. To enable this the Government will stand over until the Budget Session further legislation in relation to these matters.
In the light of the positive response to this statement by the conference of federal unions convened by the ACTU, and the national employers’ views, the Government now proposes that the current Bill provide, together with some machinery amendments, simply for the establishment of an industrial relations bureau. I have stressed that the functions and powers that will be excercised by the Industrial Relations Bureau when it is formed will be the same as those currently exercised by the Arbitration Inspectorate and the processes followed by the Bureau will be those followed by the Arbitration Inspectorate. The functions of the Arbitration Inspectorate are to secure the observance of the Act, regulations and of awards. Section 125 (4) of the Act states that the duties of inspectors shall be as determined by the Minister. In accordance with that sub-section my predecessors have assigned Inspectors the following duties which I have left unchanged:
to determine whether the said Act and the regulations thereunder and any award or order made under the Act are being observed and if not in what respect they are not being observed: or
For the benefit of honourable members I would point out that these duties and the legal authorities under which the Commonwealth Arbitration Inspectorate operates are set out in Appendix A of the Commonwealth Arbitration Inspectorate Report for the period from 1 July 1975 to 30 June 1976 which I tabled in this House on 24 May 1977. In August 1976 I approved criteria to be applied by arbitration inspectors in determining action to be taken to secure the observance of the Conciliation and Arbitration Act, regulations and awards. At that time I sent a copy of the criteria to the honourable member for Gellibrand (Mr Willis) as the Opposition’s shadow Minister for Employment and Industrial Relations. I now seek leave to incorporate that document in Hansard.
-Is leave granted? There being no objection, leave is granted.
The document read as follows-
Criteria to be Applied by Inspectors and Regional Offices in Determining Action to be Taken in Relation to Securing the Observance of the Conciliation and Arbitration Act, Regulations and Awards
The primary functions of the Arbitration Inspectorate are to secure, by voluntary means, the observance of relevant legal requirements and to assist employers and employees to understand and give effect to their rights, duties and obligations in this respect.
In certain circumstances it may not be possible to secure the observance of the law by voluntary compliance. In other circumstances the non observance of the law may be sufficiently serious to warrant prosecution. This paper sets down the criteria to be applied as well as the procedures to be followed by the Inspectorate in determining the various courses of action which, depending on the circumstances, may need to be taken.
Award Breaches- Proceedings Under s1 19 of Conciliation and Arbitration Act
The Inspector is to normally require a breach to be rectified within 14 days of its notification by him to the employer. As appropriate, a longer period may be allowed for rectifying breaches requiring installation of equipment or physical alteration in a place of employment or for breaches involving complex or lengthy calculations of monetary amounts.
Where an employer fails to adequately rectify a breach of an award within the stipulated time without reasonable cause or explanation the Inspector should recommend that s119 proceedings be instituted. This recommendation will not be made where the employer concerned is either bankrupt or in a state of liquidation. If an employer is in either of these situations the advice of the Deputy Crown Solicitor should be sought by the Director as to the most appropriate means, if any, of recovery of monies owing.
Where an employer refers a Notice of Demand to his agent eg, solicitor or industry association, to handle the matter on his behalf, the Inspector should immediately draw the agent’s attention in writing to the necessity for the breach to be rectified within 14 days from the date on which the matter was referred to him. Where, without reasonable cause or explanation, the employer through his agent subsequently fails to rectify the breach within the stipulated period, the Inspector should recommend s1 19 proceedings be instituted.
Subject to paragraph 7, where a breach has been voluntarily rectified it is to be accepted without proceedings being recommended. However the employer’s file is to be noted and re-submitted to ensure that a follow up visit is undertaken within twelve months, or as soon as practicable thereafter, to ensure no further breaches have been committed.
Notwithstanding the fact that an employer has voluntarily rectified a breach, the Inspector may recommend that s 1 1 9 proceedings be instituted where:
the breach is serious or deliberate; or
b) the employer has previously been in breach of a federal award/s.
For the purpose of paragraph 7:
It is not considered appropriate to define the term serious breach’. Whether a breach is serious will depend on the circumstances of each particular case. Important considerations which should be taken into account in assessing the seriousness of a breach include size of any underpayment to each individual employee concerned, and any danger to health or safety.
b ) An important consideration in determining whether a breach is ‘deliberate’ is whether the breach arose from conduct or events within the control of the employer.
Where an employer has previously been in breach of a federal award/s, important considerations in determining whether to recommend s119 proceedings will be:
the circumstances and frequency of the previous breach/es; and
the likelihood of future award breaches if proceedings are not taken.
Directors are authorised to approve recommendations by Inspectors for s 1 1 9 proceedings for breach of an award or to give such other decision on the recommendation as is consistent with the criteria.
The Director, New South Wales, is the authorised Director for the Australian Capital Territory.
- The Inspector is to submit recommendations for proceedings to the Senior Officer as designated by the Director.
The Senior Officer is to pass each recommendation to the Director with his comments. Before doing so he is to satisfy himself: that all relevant facts are available; that the award(s) has been correctly construed; that a prima facie case of breach exists; that policy governing prosecutions has been observed: that evidentiary requirements appear capable of being met to the satisfaction of the Deputy Crown Solicitor.
A copy of each recommendation for prosecution, together with the decision of the Director, is to be forwarded as soon as practicable to Central Office. In the case of approved proceedings, the documentation should be forwarded at the same time as instructions are forwarded to the Deputy Crown Solicitor. This is for recording purposes and to enable Central Office to keep in touch with decisions in Regions and ensure they are consistent with policy requirements.
The Director, or a nominated officer, will take up all approved proceedings with the Deputy Crown Solicitor and will report the outcome of proceedings to Central Office together with a full report on the case, including any observations by the Deputy Crown Solicitor.
Award Breaches by Employees
The above criteria are expressed to relate to award breaches by employers. By their very nature, federal awards are primarily directed toward the obligations of employers and award obligations upon employees are few in number and of an essentially different nature to those of employers. This difference is reflected in the fact that while the Conciliation and Arbitration Act provides for the recovery of moneys owing by an employer to an employee, the Act does not provide for the converse.
Award breaches by employees (awards are binding on employees only if they are members of a union respondent to the relevant award or the award is Common Rule) are subject to the same fundamental enforcement policy as award breaches by employers. However application ofthis policy must take account of the difference in the nature of the breaches. For this reason, and because of the complexity of the issue involved, Directors are to refer all alleged employee award breaches to Central Office for decision as to whether a breach exists and whether proceedings under section 119 will be instituted. In referring such matters, Directors should provide their assessment as to whether a breach exists.
Proceedings may be taken in the Australian Industrial Court or other courts specified in section 1 19 ( 1 ) as is considered appropriate by the Director.
Where an Inspector considers an award has been breached, but a strong doubt exists as to the interpretation of the award provision in question e.g. an employer or his agent may challenge an Inspector’s construction of an award on the basis of different, but well reasoned interpretation, the Inspector should not recommend that proceedings under section 1 19 be instituted, but should refer the matter to Central Office. Central Office will examine the matter and, if appropriate, seek an interpretation of the Conciliation and Arbitration Act. Once an interpretation has been obtained from the Industrial Court, any necessary follow-up recovery and, if appropriate, prosecution can be effected by the Inspector.
Breaches of Acts
All recommendations by Inspectors for proceedings for breach of the Conciliation and Arbitration Act or any other Act are to be conveyed by the Director, with his comments, to the Secretary, for his decision.
-I thank the House. A study of the duties of the Arbitration Inspectorate and the criteria applying to its operations makes it clear that it is to discharge its responsibilities in a completely even-handed manner and without distinction between employers and employees or between their organisations, as the case may be. The Industrial Relations Bureau will have, in the words of the ACTU statement of 1 1 May, ‘the responsibility for dealing with the existing pains and penalties and processes’ under the Act. The ACTU statement recognised the importance of adhering to principle’. This means that the Industrial Relations Bureau must be an independent statutory body; this is, and has always been, basic to its concept. Consequently, the officers of the Bureau in exercising their functions will be subject to the direction of the Director in the same way as the Arbitration Inspectorate is subject to the direction of the Minister under section 125 (4) of the Act.
At this point I should also reiterate that the Government is committed to legislating for the protection of individual rights in the industrial relations area. On 25 May, in my second reading speech introducing the Bill for the establishment of the National Labour Consultative Council, I indicated that the Government was prepared to review the provisions of these and other matters relating to the operations of the Act contained in the Conciliation and Arbitration Amendment Bill 1977, laid before the House on 3 1 March, in the light of their further consideration by the new Council. I also indicated that I would be asking the Council to consider these questions as a matter of priority. To enable this, the Government proposes to stand over until the Budget session further legislation in relation to these matters.
In conclusion, I would like to state my pleasure at what I consider to be a most reasonable outcome of the discussions I have had with representatives of the employer and employee organisations. The Government’s objective is to achieve more harmonious industrial relations. However, this objective will not be achieved unless there is mutual understanding and acceptance of their responsibilities by all parties to industrial relations. We believe that establishment of a reconstituted national tripartite consultative council and the Industrial Relations Bureau, both of which are key elements in the Government’s industrial relations policy, will substantially assist this. A Bill to establish a reconstituted national tripartite consultative council has already been introduced into this House and I will be proceeding to move the necessary amendments to the Conciliation and Arbitration Amendment Bill 1977 to give effect to the agreement reached with unions and employers for the establishment of an Industrial Relations Bureau.
-The Opposition opposes the Conciliation and Arbitration Amendment Bill 1977, both in the form in which it has been presented to this House and in the form in which it will be after it has been amended by the Government. We do not oppose the establishment of the National Labour Consultative Council. However, in the Committee stage we will be moving a couple of amendments relating to the membership provisions of the National Labour Consultative Council Bill.
We oppose the Conciliation and Arbitration Amendment Bill because we regard it, in its original form- in the form in which it is now before the House- as a totally repugnant piece of legislation that is aimed at reducing the unions in this country to a state of industrial impotence. We regard it as one of the most repugnant pieces of legislation ever brought before this Parliament by any government. After this Bill was first put before the Parliament it was considered by the Executive of the Australian Council of Trade Unions and that body passed a resolution threatening massive dislocation of the economic life of the nation if this legislation were proceeded with. That is a very serious resolution indeed for a body such as the ACTU to pass. The reason why it did so was that this legislation was so fundamental to the very ability of the trade union movement to carry out any effective representation on behalf of its members.
I think the we should look first at the environment in which this legislation was introduced. It was, in a sense, the culmination of a whole series of attacks upon both the trade union movement and the employee section of the Australian community. Since this Government took office there has been a continuing attack on the level of real wages, stemming from the breach early in 1976 of the promise to support wage indexation and the consequent continuing reduction in the level of real wages through the Government’s pressure on the Conciliation and Arbitration Commission to give less than full wage indexation. In four of the last five national wage cases less than full wage indexation has been applied. Furthermore, the Government has threatened, through statements made by the Attorney-General (Mr Ellicott), to introduce a Bill based on the corportations power that would prevent companies from granting increases in wages outside those increases given through the wage indexation system.
We also have had the introduction of legislation designed drastically to affect the operations of trade unions, namely the Trade Practices Amendment Bill. Though that legislation has been changed many times, in the form in which it has now passed through the House of Representatives it is still a very severe inhibition upon the ability of trade unions to operate. It will cover a very substantial amount of industrial activity and lay unions open to very substantial penalties indeed. In addition, the Government announced recently the setting up of an inquiry into trade union training, which is in its infancy. The terms of reference of that inquiry seem to indicate that the Government intends to launch a very severe attack upon the trade union training system as it has begun to operate. In that situation the unions were then faced with a Bill to amend the Conciliation and Arbitration Act that in many respects would have reduced them to a state of total impotence. In brief, the legislation would have had the effect upon unions of weakening them numerically and financially, of fostering dissension within their ranks, of destroying their bargaining power and of subjecting them to harassment and interference by an industrial police force.
I think that it is appropriate at this stage for me to spend some time on considering exactly what this Government had proposed to do, even though many of those provisions are now to be withdrawn. Firstly, in relation to weakening the unions numerically and financially by facilitating and encouraging non-unionism, it was going to do this by allowing conscientious objection to being a union member to be claimed by an employee for any reason. Under the Act as it currently stands, a conscientious objection certificate can be granted only where there is a preference clause in the award applying to an industry. This legislation would have greatly extended this provision by providing that an employee would be able to claim a conscientious objection certificate from the Industrial Registrar, whether or not he was employed under an award which included a preference clause. Given the very wide definition of ‘conscientious objection’, it meant that many employees would have been able to claim conscientious objection and therefore not need to be members of a union.
Furthermore, employees would have been given a financial incentive to claim conscientious objection because, unlike the current Act which says that if a person claims conscientious objection he has to pay an amount equivalent to the union fee into Consolidated Revenue, that provision was to be wiped out. So there was financial gain for employees in claiming conscientious objection. That would have meant in the case of weak unions in particular a very substantial possibility that they would have lost a vast number of their membership. This was the case because if a union, or any union member, were to take any action or place any pressure whatever to induce a person who claimed conscientious objection to join the union, the union would be deemed to be liable and be open to a fine of $400. A similar provision applied in relation to employers.
Furthermore, certain other persons, such as independent contractors, would have been substantially restricted in their ability to be union members. In some States- in Victoria and Tasmaniait seems they would have been prohibited altogether from being members of a federally registered union. So these provisions went to the heart of union membership. They were making sure there was an inducement and encouragement for people to get out of unions and they also prohibited some persons from being members of unions. Of course, if the numerical strength of unions was to be weakened, so too was their financial strength. In both respects the trade union movement would have been seriously weakened.
The second important way in which this Bill sought to undermine trade unions was in relation to weakening the solidarity of unions through encouraging dissident members to undermine union action. It did this, for instance, by prohibiting a union from taking or threatening to take any action against a member to coerce him to take part in industrial action of for refusing or failing to take part in industrial action. What this meant was that dissident union members who did not want to be involved in a particular union action decided on by the properly constituted union leadership or the majority of the union were able not only to express their objection to that action but also not take part in it. If any pressure whatever was put on the members to try to make them abide by the decision of the union that would have made the union liable to a penalty of $400 a day. This provision has been described by one person as the deification of the scab. It also provided for dissendent union members to notify the Industrial Relations Bureau of their opposition to any action or proposed action by their union and for the Bureau, after investigation, to report such notification to the Conciliation and Arbitration Commission and for the Commission then to make that report public. So quite clearly this was another means of intimidation, of trying to put some public pressure on the union movement by showing that there was a number of people who were dissatisfied with the action being taken by the union. It was a count of those who disagreed, not a count of those who agreed, which is a rather curious way of going about things.
The third way in which the Bill sought to attack the unions was by emasculating their bargaining strength in industrial disputes. The legislation did this in a number of ways. First, it did it by providing the Bureau with the power to notify the registrar of the contravention of a bans clause in an award thereby initiating procedures by which unions may be fined for engaging in strikes or other industrial action. The Act presently provides for the parties only to give such notice. So it was in fact up to the employers to initiate action to set the penal processes in train. Of course, that has not been done since 1969 when it was done in the O’Shea affair. What the Government was doing through this provision was changing the process so that the government agency, the Industrial Relations Bureau, would be able to recommence the process of imposing penalties on unions for engaging in industrial action. Of course, the penalties which are currently in the Act, which we sought to take out at least twice when we were in government, provide for fines of $1,000 or alternatively $500 a day. May I say in relation to those penal clauses for breach of a bans clause, that in the period 1957 to 1969, which was the key period in which they were effective, the unions were fined more than $280,000 in this country plus costs which would have amounted to a similar sum, whilst the employees were fined just over $2,000. There is no doubt that this area of fines operated very substantially to the detriment of the trade union movement.
The legislation before the House also sought to provide that the Bureau could apply for the Arbitration Commission to suspend or cancel an award. It also provided for the Minister for Employment and Industrial Relations and the Director of the Bureau to be listed amongst those who can seek deregistration of a union. It provided further grounds for deregistration which were very extensive indeed. One was where a union was engaged in industrial action which prevented, hindered or interfered with trade or commerce with other countries or among the States. That, of course, would cover a wide array of industrial action.
Another ground for deregistration was where a union engaged in industrial action that prevented or hindered or interfered with the provision of any public service of the Commonwealth or State. Another ground for deregistration was where a union had engaged in the conduct of activities not authorised by or in accordance with its rules. It appeared that that provision was aimed at strikes and bans which had a social or political aim, such as protecting the environment, protesting about the Medibank rearrangement, a particular war or whatever. Strikes of this sort are, of course, relatively rare. The other provisions relating to trade or commerce and the provision of public service were very important additions to the grounds for deregistration.
The legislation also provided additional penalties which would have been available to the Federal court to apply as an alternative to imposing fines or gaol for breach of an order, a court order or the Act or instead of deregistration of a union. These alternative penalties would have been to suspend the rights, privileges or capacities of the union, or all of a section of its members, the power to suspend a union officer or officers, power to give direction as to the exercise of any rights, privileges or capacities that had been suspended and power to restrict the use of union funds or property. Such penalties as these are almost unbelievable. What they amounted to was saying that the Federal court would have been able virtually to take over a union by suspending its officers, controlling its funds and directing its operations. These powers would have been available to the court whenever a union was, say, in breach of a bans clause. Instead of applying the fine or seeking deregistration there could have been the operation of these alternative penalties of taking over the trade union. This takeover could have occurred for up to 6 months. But then that 6 months period was renewable on application by the Bureau. So in fact what was being proposed was giving the court the ability to take over a union almost indefinitely. So long as the Bureau kept reapplying and showing to the satisfaction of the court that there were grounds for the court to continue its suspension of the union and /or its officers, the court could continue to make that order. So the union would be suspended indefinitely. It is an incredible situation that a union could be taken over by a court for as long as it and the Government thought fit.
Furthermore, the effect of the legislation was that all the members of a union or a certain group of members or some individual members could be deprived of their rights to hold any position in the union or to nominate for any position in the union. That provision seems to us to be remarkable. The severity of these alternate penalties and the fact that they would be available to the court whenever it found a union in breach of the Act or award means that these provisions could have been used completely to shackle the trade union movement. Of course, it was also provided that there was a penalty for noncompliance with a suspension order of $400 per day or 6 months’ gaol or both. Furthermore, the Commission had the power to seek a secret ballot of union members to ascertain their views as to certain existing or threatened industrial action in which they were involved. The present Act provides for such ballots in a very limited form. The legislation sought to extend that provision.
Furthermore, the legislation sought to establish a bureau which would have been able to harass and interfere with the trade union movement in many respects. Staff of the Bureau would have been able to enter union offices at any time they deemed necessary to inspect any books or documents; to require a union to make available any books or documents the Bureau wished to inspect; to require a union officer, employee, agent or returning officer to make available to the Director of the Bureau any information he may require; to require the attendance of a union officer, employee, agent or returning officer before the Director or an authorised member of his staff and for such person to produce all books, documents and papers in his custody which may be required.
As I understand the situation this power of compulsion to appear before the Director gave the Bureau a greater power than civilian police currently have in this country, without laying a charge on a person. So this is a very extensive power. Refusing to abide by an order of the Director to be summonsed to his presence means that a union official, agent or whatever could have been liable to a fine of $500 or to 6 months gaol. The Director of the Bureau would have been entirely independent and under this amended Bill he will still be independent. He will be a political appointee, so presumably he will be appointed to carry out actions which the Government really wants. Also, that person would have had a wide range of powers under the Bill as it was put before the House in the first place.
He would not have been obliged- he still will not be obliged by the amended Bill- to have regard to objectives laid down in the current Act such as promoting goodwill in industry, encouraging conciliation, providing for the means of settling disputes or encouraging the organisation of employees into trade unions. The Director does not seem to be required to pay regard to those objectives of the Act. He is required only to ensure that there is no breach of, or that there is compliance with, the Act and the regulations in awards. That is a rough summation of what the Bill, originally put before the House, proposed. It was extremely drastic legislation and therefore brought from the executive of the ACTU at the meeting on 4 May the decision to which I referred earlier. Of course, the Opposition endorses entirely the attitude of the trade union movement in relation to that legislation. It is totally repugnant legislation and we oppose it with the greatest of our ability. It was opposed not only by the unions and the Australian Labor Party, but also by the employers. As the Minister said in his statement today, the employers in discussion with him did not support the legislation.
– That is not true.
– It is not true.
-The Minister says that that is not true. My understanding of what happened is that when the employers went to see the Minister they expressed their disagreement with the legislation which the Minister had put before the House. The Minister in the statement which he has just made to the House said:
The national employers, while not completely supporting the propositions put by the ACTU and stressing their view of the need to retain strong enforcement provisions in the Conciliation and Arbitration Act. indicated that they believed that the ACTU’s change of attitude in regard to the establishment of the Industrial Relations Bureau and participation in a tripartite consultative body were significant developments and their implications warranted serious consideration by the Government.
That certainly seems to me to be saying that the employers thought that the Government should have substantial second thoughts about the Bill which it had put before the House. I also refer to a statement made by an employer, namely, the Australian Industries Development Association. It is an employer lobby group in the heavy manufacturing industry area. In its March publication in relation to the legislation it stated:
The original proposal for the IRB to act on its own initiative would represent further interference by Government in industry, in this case meddling in the industrial policies of business. There would be a danger that the IRB, acting on its own initiative, may frustrate the delicate process of conciliation and compromise being pursued by employers. For example, where a firm does not take action against unions under the present legislation due to the fear of union reprisals, it is unlikely to welcome IRB action which will provoke the same union reaction. In such a case the IRB would have the effect of increasing industrial disputation, at the expense of industry.
The IRB concept is aimed, in part, at re-establishing penal clauses as a working feature of its industrial relations policy. The aim of Government in industrial relations preferably should be to settle industrial disputes and not to attach consequences’ to them.
The proposed legislation would not solve the problem of enforcing penalties. Industrial relations legislation already has penal provisions included. If the penalties proposal merely has the effect of increasing the range and seventy of unenforceable penalties it would serve no practical purpose.
The company was quite adamant in its belief that this legislation was totally inappropriate. But it is not alone in that belief. In fact, the staff of the Department of Employment and Industrial Relations has expressed its total opposition to the concept of the Bureau. I refer to the Aus.tralian Financial Review of 3 May. The article, under the heading: ‘Public servants may boycott IRB ‘states:
The Government is facing the prospect of a boycott by Federal Public Service unions over the move to establish an Industrial Relations Bureau.
Feelings against the bureau is particularly strong within the Depanment of Employment and Industrial Relations, which will largely be responsible for staffing the new authority.
A recent meeting of the Department’s central office section committee of the Administrative and Clerical Officers’ Association, resolved that it was ‘totally opposed to the establishment of the IRB.’
The section committee went on to move that the union’s Victorian branch be asked to advise on what action could be taken ‘to black ban positions created for the Bureau’.
I emphasise that this is being said by the section of the Department of Employment and Industrial Relations-
– It is not a section. It is a section committee. Be accurate.
-Will the Minister let me make my own speech. This was said by the staff of the Department of Employment and Industrial Relations at a recent meeting of the Department’s central office section committee. The central office, of course, is where all the policy makers in the Department are found. It is a statement from a section which includes the policymaking section of the Department and it is expressing total disagreement with the establishment of the IRB. So we can see how much support this matter has from the Minister’s Department. Furthermore, the Arbitration Inspectors’ Association has made it clear that it thinks that the establishment of the Bureau is an absurdity. Mr I. G. Kidd, the President of the Association, was quoted in the Australian Financial Review of 1 1 May. The article states: he believed that as it stood, the legislation would be largely unworkable.
In this respect, Mr Kidd said his members would not bc happy about interfering in the internal conduct of union affairs, and raised some doubts about whether this aspect of the legislation would be effective.
So it is not just a matter of the Opposition saying these things. The employers are against the Bureau and members of the Minister’s own Department are against it. The Arbitration Inspectors’ Association sees a lot of problems with it. Since that time we have had various developments. I wish now to go to those because they are important in relation to the amendments which will be moved in the Committee stage. What is proposed in the Government’s foreshadowed amendments is that various provisions of the Bill will be excluded. Practically all the original Bill will be excluded except those clauses involving the establishment of the Bureau. This, in large measure, gives effect to the agreement reached between the ACTU and the Government but, in our view, it does not do this entirely. In our view the amendments proposed by the Government do not give full effect to the agreement. If the Bill is passed in its current form then, in our view, the Government will be in breach of the agreement which it reached with the ACTU. Before I come to this aspect I stress that the Government has also been involved in an enormous back-down in relation to its original proposals. The fact is that the Government has withdrawn just about the whole of its original legislation. It has withdrawn all the so-called rights of individuals clauses, all the new penal provisions and some of the more horrendous parts of the Bureau’s operations have been withdrawn.
In large measure the Government has backed off on this legislation. We applaud that. However, it is a fact that the Bill as amended will not give full effect to the agreement. I refer briefly to what was said by the ACTU and the Government to be the agreement as they understood it. The ACTU made it clear when it was putting its proposition to the Government that there should be no explicit or implicit addition to the existing provisions or processes. That is what it put when it said that it would agree to the establishment of the Bureau. In accepting that, the Government said that the Industrial Relations Bureau would have the same powers as the Arbitration Inspectorate, no more and no less, and that those powers would be exercised according to the same processes as they have been until now. In our view, that is not what is going to happen under this legislation. The effect of the Bill now before the House will be to abolish the Arbitration Inspectorate and establish the Bureau. The Bureau will have a statutory function to secure observance of the Act, the regulations and awards. It will have the power to institute court proceedings for an offence but, unlike the Inspectorate, it will not be subject to ministerial control in respect of prosecutions. That is an important difference, in our view. It will not be subject to ministerial control in respect of prosecutions. The Bureau will be at large, so to speak, not subject to ministerial control, and that is a change in the powers. That is not setting up a body which has exactly the same powers as the Arbitration Inspectorate. It is a body which is not subject to ministerial control. It is a body which is totally independent of the Minister. Yet the Minister tried to make out in the statement he delivered today that it will be subject to the Director. That is just a nonsensical comment because the fact is that the Bureau as such will be independent and will not be subject to ministerial control, and therefore there is a change in the powers.
The Bureau, like the Inspectorate, will have the power to prosecute unions for breach of a bans clause and to prosecute employees for breaches of the Act such as incitement to strike. Prosecution by the Inspectorate and by the Bureau for breach of a bans clause, of course, will be taken only after a certificate has been issued, but the Inspectorate has not used these powers. The fact is that the Inspectorate has not been involved in prosecuting where a certificate has been issued for breach of a bans clause. The Inspectorate has not been involved in prosecuting employees for breaches of provisions of the Act such as section 1 38, incitement to strike, and if it is now to start doing so, as it will be obliged to do under this amended Bill because it has a statutory requirement under the Bill to ensure that there is compliance with the Act, the regulations and the awards, there will be a change in the processes. That will certainly be the understanding of the trade union movement, I assume. It is certainly our feeling that it would be a very substantial change indeed in the processes. So the Government is changing the powers in respect of the Bureau by freeing it from ministerial control and it is then obliging the Bureau, by statutory requirement that it secure compliance with the awards, to change the processes. The unions will surely regard that as a breach of the agreement, and I do not know where that leaves us. It is for the union movement to make up its own mind on what it is going to do if the Government persists in pursuing that matter in the debate today. I hope that the Government will scrap the whole idea of the Bureau. We object to the Bureau, whether the agreement is complied with entirely or not, but I hope that if the Government is not going to scrap the Bureau it will at least make sure that the Bureau is subject to the same powers and processes which it agreed with the unions in the first place would be the case.
If I could sum up briefly, we oppose the establishment of the Bureau because we deem it to be totally unnecessary. It is a face saving device for the Government. We also oppose it because it is a breach of the agreement and does not provide the same powers and processes which the Inspectorate had. It is a breach of the agreement reached between the unions and the Government. In respect of the National Labour Consultative Council, we support the establishment of that body. In the Committee stage we will be moving amendments to the membership provisions, but I would make the point that the establishment of the National Labour Consultative Council is something which is being brought about at the suggestion of the union movement rather than the Government.
-The House is debating amendments to the Conciliation and Arbitration Act which will have the effect of establishing an Industrial Relations Bureau. At the same time, we are debating a Bill to establish the National Labour Consultative Council. I think we must take pity on the Opposition for the position in which it finds itself. Just about everything that it has had to say in this debate, as indicated by the honourable member for Gellibrand (Mr Willis), is irrelevant to the real debate. The President of the Australian Council of Trade Unions, Mr Hawke, has effectively cut the ground from under the Opposition’s feet by reaching the agreement with the Government that he has. We now find that the Opposition in this House is in the rather remarkable position of stating that it not only opposes the Conciliation and Arbitration Amendment Bill 1977, which was introduced a few weeks ago, but also will oppose the Bill as it is to be amended, according to the statement by the Minister for Employment and Industrial Relations (Mr Street). That is a rather incredible situation for members of the Opposition to find themselves in. We can imagine their chagrin at the fact that on this occasion Mr Hawke has acted as the President of the ACTU and not as the President of the Australian Labor Party, and he is to be complimented for taking that action.
The honourable member for Gellibrand did not discuss the agreement with the ACTU until the last few minutes of his speech, but he did say that the unions and the employers were totally opposed to the legislation introduced into this House by the Minister a few weeks ago. I think that to most of us who have talked to representatives of unions and employers that is palpably untrue. Representatives of employer organisations in their public statements have varied in their attitudes but, by and large, there has been subtantial agreement with the main thrust and intention of the legislation to set up an Industrial Relations Bureau. There have been comments and criticisms on particular items of the legislation, on the consequences and the provisions relating to individual rights in particular, and the Minister himself has acknowledged that. But quite apart from the employers, many of us have been in a position where we have spoken to a number of middle ranking trade union officials, who have said to us: ‘Publicly we cannot support the legislation because it would not be in our interests to do so, but privately we can tell you that we would not be greatly disappointed if the legislation went through, with a few amendments here and there’. There is in fact a greater degree of acceptance by the trade union movement of the main thrust of this legislation than honourable members opposite care to acknowledge.
Let me try to put the Government’s industrial legislation in context. There has been a history of industrial legislation which has always provoked a great deal of disagreement and sometimes conflict in this country. The trade union movement developed out of a situation where capital was more powerful than labour. During the last century, in many countries and in Austalia in particular master and servant legislation was passed which in many respects was discriminatory against employees. There were very few rights for employees. Employees who left their employment or who were absent from a day’s work faced severe consequences, quite often being thrown into gaol for what we would now regard as very minor industrial offences. They were treated by the master and servant legislation of the time as chattels or even as slaves, and I think that is the right word to use to describe the Tasmanian legislation which existed last century. So associations of labour got together and fought to redress the balance, to remove discriminatory laws, and to build up the strength of organised labour so that it could bargain with employers from a position of equal strength. Much of the trade union movement’s traditional hatred of penalties in industrial affairs has its basis in that history of struggle. But the present situation we face is that in many respects organised labour is more powerful than the vast majority of small and medium sized companies in Australia. We have a situation in which, if a large union or group of unions is ranged against one of the smaller to medium sized businesses, the balance of economic and industrial power is very strongly on the side of the trade unions. Therefore, trade unions have immense power which can be used for good or ill.
Trade unions today are recognised as organisations in our community with an accepted role to play in industrial affairs and even in national affairs. However, whilst that implies that trade unions and trade unionists have rights protected by the law, it also implies that they have responsibilities and obligations. In that respect, 2 trends in the development of industrial affairs in recent years should be noted with concern. The first is that because of the growing complexity of the economy, which means that industrial disputes have an impact far beyond their immediate effect, quite often disputes involving small numbers of people will have enormous ramifications throughout the community. For example, 230 tanker drivers in Victoria, who recently determined that they should go on strike, can bring the whole State virtually to a halt. We have seen how the actions of a few hundred air traffic controllers can have severe effects on the movement of people and goods and the carrying out of commerce in Australia and our international trade. In industries such as the power generation industry we find that if a few dozen key maintenance workers go on strike not only can they bring the power station or that power industry to a halt but also their actions have ramifications throughout the community, causing lost production and lay-offs amongst people who have had no direct interest in that dispute.
The point I want to make by citing those examples is that there is a public interest to protect. Quite often in the conduct of industrial relations the public interest is not properly asserted and the parties to a dispute carry on their dispute as if they had no obligations to anyone else. The second trend which I think is of concern and which ought to be looked at in connection with this debate is the growth in the size of trade unions and their involvement in a wider range of issues than purely industrial issues. For example, they have become involved in social, environmental and political issues. This has made it much less likely that a union can act with total membership agreement on every matter. Consequently solidarity often will be missing, particularly where unions engage in activity which goes beyond the purely industrial issues. So a need exists to protect individual rights. I refer to the rights of individuals to disagree with the actions which their union executive has determined the union should take.
The Medibank strike last year was a prime example of that. I raised in the House the case of employees at the Ringwood Post Office who were victimised by their union for turning up for work on the day of the Medibank strike. Those employees took the attitude that it was not an appropriate issue for them to strike on and they wished to turn up for work to exercise their right to work. As far as they were concerned, it was not an industrial issue, on which they would have been quite happy to strike; it was something else which should not have involved them in industrial action. Their union, the Australian Postal and Telecommunications Union, sought to fine them $20 each for taking that action. Because the matter was raised in this House and because substantial action was taken by more moderate elements in the union to withdraw that discriminatory action, eventually the Union backed away and did not impose any fines. But it certainly tried to do so. This points up the fact that, because of the size of unions and their involvement in an increasing range of non-industrial areas, individual rights can be in jeopardy and they need further protection than is provided under existing legislation.
Because of the agreement with the trade unions which the Minister for Employment and Industrial Relations has reached on behalf of the Government, the Government will proceed with the establishment of the Industrial Relations Bureau but will defer consideration of other aspects of the legislation as introduced some weeks ago.
Firstly, let me compliment the President of the Australian Council of Trade Unions for recognising the Government’s determination to legislate in this area and therefore dropping his previous blanket opposition to the legislation. Apparently, that is a development which the Opposition in this House has not quite caught up with. Honourable members opposite have not yet caught up with the fact that the trade union movement has dropped its blanket opposition to the legislation. Also, Mr Hawke is to be complimented for offering a compromise which had a reasonable prospect of being acceptable to the Government and which the Government therefore could act upon. As I mentioned earlier, in this respect he clearly acted more as President of the Australian Council of Trade Unions than as President of the Australian Labor Party.
Secondly, the Minister for Employment and Industrial Relations ought to be complimented for acting on the offer made to him by Mr Hawke on behalf of the trade union movement and thereby securing 2 key elements of the Government’s industrial relations policy with substantial union agreement. I refer, of course, to the establishment of the Industrial Relations Bureau and the setting up of the National Labour Consultative Council. The policy of the Government Parties has always been that we should reestablish what formerly was called the National Labour Advisory Council on a statutory basis and ensure that it plays a responsible and regular role in tripartite consultations between the Government, the trade union movement and the employer organisations. Because of the agreement between the trade union movement and the Government, 2 key elements of the Government ‘s industrial relations policy will be implemented with substantial union agreement.
The Minister has already outlined, in the statement he made to the House by leave earlier today, the powers of the Industrial Relations Bureau. I want to comment on one point that was made by the honourable member for Gellibrand. He alleged, as I understood him, that, because the Government is setting up the Bureau as an independent statutory body under the control of a director, this implies some breaking of the agreement with the trade union movement. That seems to be an incredible statement. It was always known that the purpose of setting up the Industrial Relations Bureau was to create an independent body with certain statutory functions of its own and with a statutory head who had certain responsibilities to carry out. That was the whole thrust and purpose of the Industrial
Relations Bureau. So it is a remarkable proposition to me for the Opposition to claim in some strange twist of logic that for the Government to proceed with that, following the agreement with the trade union movement, represents a change in the Government’s agreement with the trade union movement. But, having in mind the impossible position in which the Opposition finds itself in respect of this legislation at present, I suppose it is not remarkable that the honourable member for Gellibrand should make that statement.
I want to comment on a couple of aspects of the legislation which are to be deferred and which I believe the Government should proceed with in the longer term. Obviously, they would require more consideration in the light of representations made by employers and by the trade union movement. I am concerned that the Government must legislate in the area of individual rights. I have already outlined one area in which I believe individual rights demonstrably have been curtailed. Individuals have been disadvantaged by the way in which some trade unions have used their powers irresponsibly.
I believe that in that respect the Government is committed eventually to ensuring that, if employees want to exercise their right to work in accordance with their award or determination, they should be protected in their efforts to do so. I am not talking about bringing in strike breakers to carry out work that they normally would not carry out. I am talking about people who are employed in an enterprise and who want to continue to carry out the work for which they have been employed according to the terms of their award or determination. There is a right to strike in this country. I would not deny that; no one in this House would deny that. But surely also there is the right to work and that ought to be given equal prominence and equal protection at the very least with the right to strike. I think that in the eyes of the public and the broad range of trade unionists in this country the Government is obligated to legislate in that area.
One area that does need a great deal of consideration involves the matter of consequencesthat was the word used by the Minister in his second reading speech- and I would like to point to one aspect of a statement made by the ACTU on 1 1 May which raises some prospect that agreement can be reached on the proposition that where industrial organisations indulge in lawless activities there ought to be consequences for that activity. There ought to be ways of ensuring that industrial organisations do adhere to the law which ought to bind everyone. In the statement released by the President of the ACTU on 1 1 May he said, referring to the present Conciliation and Arbitration Act:
This existing legislation contains a range or ‘pains and penalties’ provisions. It is known that some of those provisions conflict with the policy of the Australian trade union movement. What we therefore put now does not imply into the future a change of our policy in that respect. However, that is not the current issue.
The significant point here is in the words ‘some of those provisions conflict with the policy of the Australian trade union movement’. I believe that this introduces an element of flexibility into what has been presented in the past as the trade union attitude to penalties and it ought to be explored further. I hope that in the discussions which are now to ensue in the National Labour Consultative Council on the operations of the Conciliation and Arbitration Act and the provisions of the Bill before the House, which are to be deferred for later consideration, the Minister will take up that point. I think it is a very significant note of flexibility in trade union attitudes which could indicate that in this vexed area of penalties, which has caused a great deal of conflict and ill feeling in the past, there is the possibility of reaching agreement with the trade union movement on the type of penalties which ought to be in our industrial relations legislation and which ought to be enforced against industrial organisations, of both employees and employers, which break industrial laws. So I commend to the Minister that he take up that point very vigorously.
I am pleased to see the agreement that has been reached between the Government and the trade union movement. All Australians who were concerned to ensure that there was a development in our industrial legislation to provide for the assertion of the public interest and the protection of individual rights, and who wanted to see that achieved without massive industrial dislocation, will be pleased with the agreement that has been reached and which the Government is bringing into this House today in the form of amendments to the legislation before us. The only people who can be displeased with it are the members of the Opposition who effectively have nothing to debate.
– The announcement of the Minister for Employment and Industrial Relations (Mr Street) that he has agreed to now limit the Bill to transferring the present powers of the inspectorate to the proposed Industrial Relations Bureau will satisfy no one who cares to examine the pains, penalties and processes available to the inspectorate under the existing Act. Let me begin by quoting an extract from the statement of the
Australian Council of Trade Unions which was read at its conference with the Minister on 1 1 May 1977. It stated:
First, if the Government wishes to put the responsibility for dealing with the existing pains and penalties and processes into the hands of a body which they wish to designate as an industrial relations bureau- and there is no explicit or implicit addition to those existing provisions or processes- the trade union movement, while regarding such a move as unnecessary, would offer no objection.
That decision, incidentally, was adopted by the Special Conference of Federal Unions held on 18 May 1977 but it is important to mention that the Australian Council for Salaries and Professional Associations rejected the proposition outright and would have nothing to do with it. It would not touch it with a 40-foot pole. In order to make the record complete I seek leave to incorporate in Hansard the full text of the ACTU statement.
-Is leave granted? There being no objection, leave is granted.
The statement read as follows-
Having expressed at length the detailed reasons for our total opposition to the Government’s proposed amendments to the Australian Conciliation and Arbitration Act, we make the following statement:
This existing legislation contains a range of ‘pains and penalties’ provisions. It is known that some of those provisions conflict with the policy of the Australian Trade Union Movement. What we therefore put now does not imply into the future a change of our policy in that respect. However, that is not the current issue.
On that basis we put two propositions for the earnest consideration of the Government. These propositions are put in the deeply held belief that confrontation and massive economic dislocation, if avoidable whilst still adhering to principle, is against the best interests of the Australian community.
First, if the Government wishes to put the responsibility for dealing with the existing pains and penalties and processes into the hands of a body which they wish to designate as an Industrial Relations Bureau- and there is no explicit or implicit addition to those existing provisions or processes- the Trade Union Movement, while regarding such a move as unnecessary, would offer no objection.
Second, we would be prepared to join a reconstituted tripartite National Labour Advisory Council which would have, as previously, the responsibility of discussing any issues of national concern in that area of industrial relations. Among the early issues to be considered by the NLAC it would be appropriate to include a thorough going research and analysis of the operations of the Conciliation and Arbitration Act with a view to achieving agreed improvements in that area. Such analysis could well produce positive creative functions for a Bureau concerned with improving industrial relations within this area.
We believe these arc manifestly constructive proposals. From many discussions we have had with a wide range of employers, we are sure that the proposals are consistent with their thinking. We are equally sure that the proposals would recommend themselves to the Australian community. There are now the clear alternatives of constructive consultation or confrontation and dislocation. We trust that, like us, the Government will opt for the former.
-Let me now examine the existing pains, penalties and processes. Firstly, they include the contempt provisions which were used to send Clarrie 0’Shea to gaol. Secondly, they include the right of the Conciliation and Arbitration Commission to insert a bans clause in an award. Thirdly, they make it an offence for a union official to advise, encourage or incite a member bound by an award- even one without a bans clause- to refrain from, or to prevent or hinder such a member from accepting employment or working in accordance with an award. Fourthly, it provides the following range of penalties on a union and upon individual members of a union: For breach of a section 32 bans clause, $ 1 ,000; for a breach of a section 4 1 bans clause, $500 a day; for a breach of section 138- that is, dealing with incitement to strike- $400; and for a breach of any other section of the Act, $250.
What are the processes? The processes are those described in section 119 which empower the Arbitration Inspectorate to prosecute for a breach of a bans clause once a section 33 certificate has been issued, which empowers it to prosecute offences against section 138 and other sections of the Act without a section 33 certifiate I want to refer to the Government’s statement which was issued after the meeting with the ACTU. It said:
The Government welcomes the acceptance by the ACTU of an Industrial Relations Bureau and the reconstruction of the National Labour Advisory Council.
Why would it not welcome the acceptance by the ACTU of the Industrial Relations Bureau in lieu of the Arbitration Inspectorate? It continued:
The Government has decided to pass legislation this session to establish the Industrial Relations Bureau which will have the function of securing the observance of the Act and awards in the terms already in the Act.
Section 125 of the Act, with the exception of a few added words dealing with regulations, is precisely in line with the Minister’s statement. The statement continued:
Pending the detailed consideration of the Act referred to later in this statement, the Industrial Relations Bureau will have the same powers as the Arbitration Inspectorate, no more, no less, and those powers will be exercised according to the processes as they have been until now.
I refer now to the reply given to this Parliament on 24 May 1977 by the Minister in answer to a question which I asked. I asked whether it was true that breaches of section 1 38 of the Act which relates to incitement to strike could be processed by the Arbitration Inspectorate without a certificate. I then asked:
If this is so, will these powers of the Arbitration Inspectorate as now operating be transferred to the IRB?
The Minister gave a reply and ended with this sentence:
So the short answer to the honourable member’s question is yes, exactly the same processes and procedures will apply as now apply.
I seek leave to incorporate the full question and answer in Hansard.
-Is leave granted? There being no objection, leave is granted.
The question and answer read as follows-
-My question to the Minister for Employment and Industrial Relations relates to the proposed Industrial Relations Bureau. Is it a fact that at present breaches of section 32 and section 4 1 of the Conciliation and Arbitration Act, which relate to bans clauses, can be prosecuted by the Arbitration Inspectorate providing that a certificate is issued by the Conciliation and Arbitration Commission? Is it also true that breaches of section 138, which relates to incitement to strike, can be processed by the Arbitration Inspectorate without a certificate? If this is so, will these powers of the Arbitration Inspectorate as now operating be transferred to the IRB?
-The honourable member will be aware that prior to the announcement by the Government of its proposals regarding this legislation the President of the Australian Council of Trade Unions issued a statement saying that whilst the policy of the trade union movement was against penalties in the Conciliation and Arbitration Act, nevertheless it recognised that the existing Act did contain, in his words, ‘pains and penalties’. He said that, provided there was no extension of these pains and penalties, and the existing processes- I think that was the word he used- were maintained, the union movement would not raise objections to the establishment of an IRB to take over the functions of the Arbitration Inspectorate. The functions that will be taken over by the Industrial Relations Bureau when it is formed will be exactly those that are exercised by the Arbitration Inspectorate at the present time, and the processes that will be followed by the Industrial Relations Bureau will be exactly those that are laid down for the Arbitration Inspectorate, including the criteria laid down and issued last year- I think, in about August. I sent a copy of those criteria to the honourable member for Gellibrand as the Opposition’s shadow Minister for Employment and Industrial Relations. So the short answer to the honourable member’s question is yes, exactly the same processes and procedures will apply as now apply.
-Of course, the Minister had every reason to be pleased with the agreement. He was like a secondhand car salesman who had asked $2,000 for a secondhand car expecting to get $1,000 but has finished up finding a buyer who was prepared to offer $1,500. No wonder the Prime Minister (Mr Malcolm Fraser) interrupted his campaign for a Yes vote in Queensland to congratulate the Minister on the deal that he had been able to extract from the Australian Council of Trade Unions. I am pleased to say that the Australian Labor Party is not bound by the arrangement made by the ACTU, the Council of Australian Government Employee Organisations and the Special Conference of Federal Unions. Labor members are firmly bound by our platform. We have all signed a pledge that we will honour and carry out the requirements of the platform. Sub-section 2 (e) of the platform states that we are obliged to: repeal all penalties for strikes and lockouts against arbitral decisions of the Commission or a conciliation committee.
Our responsibilities under the Federal rules of the Australian Labor Party are to take such action at all times as may be possible to implement the Party’s platform and Conference decisions and, for the record, I seek leave to incorporate the full text of rule 5 (d) of the Federal Rules and Constitution of the Australian Labor Party in Hansard.
-Is leave granted? There being no objection, leave is granted.
The document read as follows-
The Federal Parliamentary Labor Party shall have authority in properly constituted Caucus meetings to make decisions directed towards establishing the collective attitude of the Parliamentary Party to any question or matter in the Federal Parliament, subject to-
– I understand the attitude of the unions in not wanting a confrontation with the Government. Many officials believe that the unions could not win such a confrontation. I do not say who those officials are. I do not know whether they can be found among the officers of the ACTU who put up the proposal that the Government has now seized upon.
I do not accept the view of these people. I believe that it is quite easy for the trade union movement to win a confrontation with the government in this country or in any other country. Just as the trade union movement brought down the Heath Conservative Government in the United Kingdom, the trade union movement of this country could bring down this Government simply by bringing out a few key men. The honourable member for Casey (Mr Falconer) already admitted that by bringing out powerhouse employees representing only a few thousand men over the whole continent of Australia they could paralyse every industry in this country. Only a few men would need to be brought out. We saw what happened when a few air traffic controllers were brought out. All the airlines, international as well as commercial, were brought to a standstill. The trade union movement will not be so stupid as to bring out 4 million or 5 million workers in a confrontation with the Government. It will bring out a few key people who, when they come out, will have the effect of paralysing every industry in the country.
Given the agreement reached with the ACTU, it is not necessary for the Government to have all the other provisions of the Bill which are now being omitted. Why would it need any of those provisions now that it has got the trade union movement to say that it would not oppose the transfer to the Industrial Relations Bureau of the existing pains, penalties and processes which reside in the hands of the Inspectorate. What more power would the Government need than the existing pains, penalties and processes? Why would the Government ever want more than that? The Government must have been agreeably surprised when it found that it had been able to get the Australian trade union movement to agree to something to which the trade union movement in no other country in the free world has ever agreed. What other trade union movement in the world would have agreed to offering no objection to the existing pains, penalties and processes of the Conciliation and Arbitration Act? No wonder the Minister for Employment and Industrial Relations is sitting in this place with such a smug look on his face. He knows perfectly well that he has been able to get all and more than he ever expected to get. Who would have thought a few years ago that we would have seen the day when a special conference of Federal unions would have agreed by almost a 20 to 1 majority that they would offer no objection to the present pains, penalties and processes of the existing Act? Who would have thought that people who had subscribed to the policy of the Labor Party calling for the repeal of these pernicious provisions of the Act would have gone to a conference and agreed that they would offer no objection to them?
Let us look at the prospect of avoiding confrontation. I say that it cannot be avoided if the Industrial Relations Bureau does what the Act allows it to do and if the new Trade Practices Act is ever applied against the trade union movement. The trade union movement may as well stand up and fight now as to lay down in the forlorn hope that this Government will be any different from the governments of Germany, Spain, Italy, Portugal and Chile. The legislation that the dictators of those countries used against the trade union movement was no less tyrannical than the legislation that already stands on the statute book. If the union movement is to say that it will not object to a provision that provides for a fine of $500 a day on each single individual worker who decides to strike against an award that contains a bans clause or imposes a penalty of $1,000 upon a worker who strikes against a bans clause issued under section 32, if it is to tolerate a $400 fine on an official who incites a person to go on strike against an award, even one that contains no bans clause, if it is to accept the contempt provisions that already exist, and if it is to accept the penalties provided for in the Trade Practices Act of $250,000 upon an individual trade union, it will accept anything at all. A trade union movement which is prepared to accept these sorts of penalties is not likely to put up any fight.
I only hope I am wrong. But I am beginning to believe that some elements in the trade union movement would be prepared to accept anything that this Government dishes out to them. They are pulling their own legs if they believe that the Government will not see that the Bureau carries out the provisions that section 125 of the Act requires it to carry out. Section 125 of the Act makes it perfectly clear that the Inspectorate- in future the Bureau- has a bounden obligation to see that the awards, the provisions of the Act and the regulations are observed. That means that whenever an official seeks to exercise the right to strike against an award that contains a bans clause or to incite a person to strike against an award that does not contain a bans clause, he will be liable to the penalties contained in the Act.
I now refer to some of the remarks made by the honourable member for Casey. He said that Mr Hawke had acted properly in these negotiations with the Government on the Industrial Relations Bureau in not speaking as President of the ALP. As President of the ALP he could not have agreed not to oppose a Bureau that was armed with existing pains, penalties and processes. How could he do that? The policy of the Labor Party and the obligation upon every officer of the Labor Party are so perfectly plain that he could not have told the Government that he would offer no objection to the transfer to the Bureau of the penalties, pains and processes that the Arbitration Inspectorate now possesses. I was in the same position as Mr Hawke once when I was State Secretary of the Australian Workers Union and also State President of the Labor Party. On frequent occasions I had to change my hat. I had to take off my ALP hat and put on my AWU hat and act as a trade union official. I had to do some things then that would not have been done if I were thinking only of the political consequences to the Party of which I was State President. These things happen. They are understandable.
The honourable member for Casey referred also to the Masters and Servants Act. He said, rightly so, that the Masters and Servants Act treated workers as chattels and slaves. That is what the present Act will do if it is implemented. That is what the existing pains, penalties and processes will do if they are not objected to. How do we know that now that the Government has the green light from the trade union movement that it will not object to the existing pains, penalties and processes that it will not go the whole hog? Of course it will and when it does, it will remind all those who protest that it is merely doing something to which the trade union movement said it did not object. That is something that no government has ever before had in its armoury. I believe that the trade union movement will live to rue the day that it ever agreed to say that it would offer no objection to the transfer of the existing pains, penalties and processes to the Bureau.
If one looks at sections 32 and 41, one finds that it is possible for the Commission to put a provision in the award which says that it shall be an offence, punishable by a fine of $500 a day, for each individual worker who goes on strike against that award. No matter how justified that strike might be or how deep the grievance might be, if an individual member of a union goes on strike or breaches an award, he will be guilty of an offence rendering him liable only to a $500 a day penalty. But the employer is liable to a penalty of only $500 a day if he is engaged in a lockout. So if the 1 964 General Motors-Holden’s Pty Ltd strike had been a lock-out instead of a strike- iri other words, if General Motors had locked out the number of workers who were involved in that dispute for the number of days that that dispute lasted- the total penalty imposed upon General Motors under the existing Act, to which the unions say they have no objection, would have been a total fine of about $9,000. But if the penalties to which the unions say they will offer no objection had been imposed upon each employee of General Motors for each day that that dispute lasted, the aggregate fines would have been $220m. Now that is the sort of provision we are talking about.
The present Act that we are describing- the present Act to which the unions say they will have no objection- does not allow a member of a union executive or any union official to incite a person to go on strike or to involve himself in even a go-slow strike, no matter how justified the action might be. The employer may have sacked the union representative; it may have been a case of where the employer deliberately set out to employ union scabs; it may have been a case of where the employer was refusing to supply proper safety requirements in his factory. If anybody seeks to go on strike and incite people to strike against an employer until the grievance is remedied, he will be liable to a $500 a day fine.
A bad law, I believe, should be treated with contempt by the whole community. The penal law contained in the present Conciliation and Arbitration Act against strike action is a bad law and people ought to treat it with contempt. The only way in which a bad law can be defeated is by ignoring it and defying it until the Government is forced to remove it. Look at the history of mankind and the history of the human race. Read that great book of history, The Martyrdom of Man, and see how the tyranny of the ruling classes was thrown off. It was thrown off only by brave men defying the law as brave men always ought to defy a rotten law. A rotten law does not deserve the respect of anybody. And the strike penalties in the present Conciliation and Arbitration Act represent a rotten law and ought to be treated with contempt.
Mr DEPUTY SPEAKER (Mr Lucock)Order! The honourable member’s time has expired. The question now is, ‘That this Bill be read a second time’.
Motion (by Mr Bourchier) proposed:
That the question be now put.
Opposition members- What!
-No honourable member was on his feet. There was no-one to call. I will put the question again.
-Mr Deputy Speaker, you said that no honourable member was on his feet.
-That is right.
– I was rising out of your view.
-I could say something to that but I will not. The question is:
That the question be now put.
All those of that opinion say aye; to the contrary, no. I think the ayes have it. The question now is, That this Bill be read a second time’. All those of that opinion say aye, to the contrary no, I think the ayes have it.
- Mr Deputy Speaker, we are opposing the gag.
– I am sorry -
- Mr Deputy Speaker, earlier you said that no one was rising to his feet. Actually the honourable member for Bendigo (Mr Bourchier) was on his feet and the call was properly on the Government side. He then used that call to move that the question be now put. That meant that that question would have to be put immediately. I understood you to be putting the question for the second reading of the Bill. We are opposing that.
-No. I say to the honourable member for Corio that I put the question that the question be now put. The Opposition member at the table did not indicate that a division was required, so I went straight on to put the question as to the second reading of the Bill. That is the position now. Actually the question as to the gag has been determined. But the question now before the House is that the Bill be now read a second time and I have said that the ayes have it.
Opposition members- The noes have it.
Thatthe Bill be now read a second time.
The House divided. (Mr Deputy Speaker- Mr P. E. Lucock)
Question so resolved in the affirmative.
Bill read a second time.
Message from the Governor-General recommending appropriation announced.
Sitting suspended from 1.30 to 2.15 p.m.
Clause 1 agreed to.
– I move:
This clause provides for specified sections of the Act to come into operation on the date of royal assent and for the remaining provisions to come into operation as proclaimed. As the clause stands, the provisions to come into operation on the date of royal assent are clause 1, which is the short title of the Act; this clause; the amendments to section 8 proposed by clause 6 to ensure parity of salary, annual allowances and travelling allowances as between presidential members of the Commission and judges of the Federal Court of Australia; and the amendment to section 7 of the Conciliation and Arbitration Act 1975 that is proposed by clause 33 to correct a minor drafting error. The effect of the amendment I have moved is to include in the clauses to come into operation on the date of royal assent clause 31, which proposes an amendment to section 170 to enable a branch of an organisation as well as the organisation to apply to have elections of the branch’s Federal conference delegates officially conducted.
Amendment agreed to.
Clause, as amended, agreed to.
Section 4 of the Principal Act is amended-
any person employed in an industry, or engaged in an industrial pursuit in the State of New South Wales, Queensland, South Australia or Western Australia who-
– I move:
The paragraphs to be retained in this clause are: Paragraph (a), which relates to the definition of authorised person’; paragraph (b), which relates to the definition of ‘Bureau’; paragraph
-The Opposition opposes this amendment simply because it still seeks to include the definition of ‘Bureau’. We will be opposing all amendments that seek to incorporate the Industrial Relations Bureau into the Conciliation and Arbitration Act. Of course, we do not object to the omission of paragraphs
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 4 and 5- by leave- taken together.
Section 5 of the Principal Act is amended-
Penalty: $400. ( lc) An employer shall not refuse to employ a person in employment by reason of the circumstance that the person, being a person in respect of whom there is in force a certificate under section 144a, is not a member of an organization.
by inserting in sub-section (4), after the word reason’ (second occurring), the words ‘or intent’.
shall not take, or threaten to take, industrial action against an employer-
shall not take, or threaten to take, any action having the effect, directly or indirectly, of prejudicing a person in his employment-
shall not impose, or threaten to impose, a penalty, forfeiture or disability of any kind upon a member of the organization-
shall not impose, or threaten to impose, a penalty, forfeiture or disability of any kind upon a member of the organization by reason of the circumstance that the member has refused or failed to join in industrial action.
in any other case- a penalty not exceeding a fine of $400.
a member ofan organization who performs the function of dealing with an employer on behalf of himself and other members of the organization. shall be deemed to have been taken by the organization.
Discriminatory action’, in relation to an eligible person, means-
Amendment (by Mr Street) proposed:
Omit the clauses.
– I want to make the point that there is really a lot of doubt anyway as to the constitutional validity of clauses 4 and 5. This gives me a chance to mention some of the aspects of the powers of the national Parliament in dealing with conciliation and arbitration matters. It has been assumed in the whole preparation of this legislation that the national Parliament has virtually unlimited powers. I want to make the point that there is a fair bit of legal authority to show clearly that great segments of this legislation are very much in doubt from a constitutional point of view. In the preparation of this legislation the Government has adopted a stance which on its own legal advice it would not have the power to implement. Whilst the Government might have adopted that stance from the point of view of endeavouring to indicate to the trade union movement that it was going to do all sorts of dreadful and dire things, it ought to be looking at what is the present law as regards its powers.
If one looks at the powers concerning conciliation and arbitration one finds that they are to settle disputes. They are not just to deal with unions because unions exist as such and they are not just to deal with people because people happen to be members of unions. The law clearly says that there are 5 principles that ought to be adhered to: The Parliament does not have absolute powers. It has an obligation to set up machinery for settlement and the machinery must be related to the settlement of disputes. The disputes themselves must be industrial and must be of such a nature that they satisfy all the aspects I have mentioned. As is known, the State governments also have certain powers. For example, the State governments can legislate in any field in the industrial sense. It is only when a dispute is likely to extend beyond the limits of one State that the Commonwealth can come in.
For those reasons I say that the argument used here is not valid. For there to be an industrial dispute there must be disagreement between people or groups of people who stand in some industrial relationship upon some matter that affects or arises out of that relationship. The dispute might cause a strike, a lockout or a disturbance; but they are the consequences of the dispute, not the dispute itself. Thus, to be valid, these proposed provisions, as they were before there was deemed to be a settlement, must relate in some way to the settlement of an industrial dispute by a process of conciliation and arbitration. But what did these provisions attempt to do? They attempted to make it an offence for employers or organisations to take discriminatory action against people who refuse to join a union or refuse to join in industrial action. There cannot be an interstate industrial dispute between an individual and a union. As has been shown already, it has to be an industrial dispute that involves other than those criteria.
The intention of this legislation is quite different. The subject matter of the legislation is not the subject of conciliation and arbitration. If an individual refuses to join in industrial action or to join a union, he may be involved in an individual dispute but it is not an industrial dispute; nor is it capable of becoming an interstate industrial dispute. The fact that the national Parliament has power to create trade unions does not mean that it may pass any law it likes in relation to them. Any law passed by this Parliament must be a law within the ambit of the Commonwealth’s powers. That is clearly borne out in a number of legal decisions, particularly the Federated Ironworkers Association case where provisions relating to the election of office bearers were challenged. They were upheld on the basis that the ensuring of authentic representation of an organisation was incidental to the constitutional power. The case was not upheld simply on the ground that the Parliament can pass whatever law it likes in relation to registered organisations or that it can pass a law simply because that law has something to do with industrial relations.
Section 47 (3) of the existing Conciliation and Arbitration Act gives the Industrial Registrar power to give a certificate to conscientious objectors. However, this is incidental to the making of a preference award; that is, it is clearly made incidental to the dispute settling power. The proposed section 144a, for example, is in no way incidental to the making of awards. It is important to bear in mind that, under the Conciliation and Arbitration Act and almost certainly under the constitutional power, awards of compulsory unionism cannot be made; only awards of preference can be made. It cannot be contended that either the proposed section 144a or the proposed amendments to section 5 are in any way incidental to an award for preference to unionists. In fact on almost any test these amendments would appear to go beyond the constitutional power. They do not provide machinery for conciliation and arbitration and they are not incidental to conciliation and arbitration. They do not deal with industrial disputes and they certainly do not deal with interstate industrial disputes. They are not in any way connected with the making of awards. It cannot be said, or at least it is extremely doubtful, that they deal with industrial organisations in such a way as to be incidental to section 5 1 (xxxv) of the Constitution.
I suggest that the whole of these clauses, other than the parts dealing with the giving of information to the Bureau, could be invalid. Clause 5 would be invalid to the extent that it deals with refusal to join unions and refusal to take part in industrial action. Proposed section 144a might be considered to at least be partially invalid to the extent that it does not deal with preference awards. Accordingly, because there are many cases clearly indicating that the Commonwealth power in the field of conciliation and arbitration is limited, I should have thought it would have been appropriate for the Government to get some pretty sound legal advice as to whether itcan implement this legislation. The alternative would have been massive economic dislocation by trade union activity objecting to the legislation. But if there had been a fair test of the situation, which we may not get because of confrontation, the Government could well have found that the High Court itself said: ‘You cannot pass laws in this fashion, you have no power to do so’. For these reasons I say that if at any future date the national Parliament feels it has the right to take this action, I would respectfully suggest that the Minister should get some advice as to whether the proposed laws which he is now withdrawing could in any way be sustained in any High Court challenge.
It is a rather stupid way to deal with a situation to have to rely on the High Court all the time to tell you whether you are legislating properly, bearing in mind that in that context we could have a massive contest in the nature of the legislation itself. It is important- my comments also apply to clause 26- that the Government just cannot assume that it has unlimited powers to do what it likes with a trade union organisation simply because it has the power to settle industrial disputes. The emphasis is on conciliation and arbitration. That is the Government’s limitation. The matter has to be related to a dispute. The Government just cannot pass laws such as this relating to individuals and organisations when a dispute is not evident.
-I would like to take up the point that has just been so eloquently made by the honourable member for Kingsford-Smith (Mr Lionel Bowen). The honourable member explained the legal difficulties that exist in this area. He is very well qualified to do that. I would like to put to the Committee a practical view as compared with the legal view that was put by my colleague. I compliment the Government on its wisdom in deciding to back down on this question and to withdraw these clauses of the legislation. I believe that they would have had the effect of preventing a union from going about its practical day to day business of obtaining members, from having any discipline over its members, and from being able to prevent its members from doing things that were against the will of the majority.
The Government has said that its intention in introducing the legislation is, as it puts it, to look after the rights of individuals in unions. The fact that unions must register their rules with the Conciliation and Arbitration Commission is in itself a protection for the members. I think there is no need for the Government to go any further. There is no need for it to endeavour to legislateas the honourable member for KingsfordSmith said, probably to legislate illegally- under the guise of looking after the interests of individual members in fact to make a trade union unworkable.
It ought to be quite clear to anybody in this chamber or to anybody in the nation for that matter that we are not isolationists in our community, we engage in community activities. If we play sport we play in a team. There is not a person here who would suggest that a full forward in an Australian rules game, who was standing in front of an open goal and who kicked the ball away from the goal, would not suffer any criticism from his team mates or from his team manager. We might say: ‘Oh, people join football teams on a voluntary basis’. That is quite right. All that has ever been said by unions when they enrol members- this has been substantiated by decisions of the courts over the years- is: ‘Look at the benefits that you enjoy, the wages that you collect, the leave provisions and all the rest of the things that have been won by people acting in concert with one another’. History shows that there have not been many generous employers who have given employees something substantially more than to which they are entitled. Some employers, because their business may be prosperous, may pay something over the award. But very few, if any, give more generous leave provisions than are contained in the awards.
The Government is intent on ensuring that individuals in this area have the protection of the law which will allow them to stand away from the organisation, not to be a member of it and not to pay dues to it. In fact this changes the situation where a person who obtains a certificate of the court on the grounds of conscientious objection is required to pay to the registrar of the court a sum equal to the union dues. All that the Government is endeavouring to do with the clause is to protect those who are not prepared to pay their way.
Only recently in Melbourne we had the case of a man working at a tramway depot saying that he had been prevented from working because he would not pay his union dues. Of course, that is a complete and absolute distortion of the truth. The truth is that the man refused to join the union. He may had good reason for doing so. He could have obtained a certificate if he had good reasons for not joining the union. But the important thing is that this man did not want to pay the union dues. No fair minded person would say that someone could just come in off the street and enjoy the benefits achieved by a group of people, benefits which were gained by them or others acting in concert, without making a contribution to the union.
This is where my objection lies with this part of the legislation. I believe that it encourages free loaders. A person may be the only worker in a plant who declines to join a union. The rest of the workers are all members of the union because they wish to be members of the union. The Government is denying all those other workers their rights if it allows this free loader in the plant. The other workers have rights as well. One of their rights is to decide with whom they will work. By allowing this part of the Bill to become law the Government would have taken that collective right away from those other workers. This would have happened in spite of the fact that the men had held a meeting, discussed the matter and decided that that would be their position. The Government wanted to protect the person who would take away the rights of the other workers.
The honourable member for Casey (Mr Falconer) mentioned in his speech during the second reading debate- he did so quite erroneously- the position of a union which was to take action against some of its members for not engaging in a strike. Just to set the record straight, I presume that the honourable member was talking about some members of the Amalgamated Metal Workers Union who worked in Ballarat.
-No, members of the Australian Postal and Telecommunications Union.
-I am sorry. I have mentioned the wrong union. I made the same mistake last time. It is the Postal Workers Union in the Ballarat area. The honourable member for Ballaarat (Mr Short) raised this matter in the House. The union did not back off in this case. A strike concerning wages was called by the union.
Therefore by any definition it was a legitimate strike. Because the strike concerned Medibank it was labelled a political strike. That is a blatant misrepresentation of the position. Because these employees declined to take part in the strike and wanted to work naturally the union was bound under its rules which are registered with the Conciliation and Arbitration Commission to take action against its members. I do not know what the honourable member for Casey wants. I do not know whether he wants us to tear up the rule book. I do not know whether he wants us to cease registering rules of unions or whether he is pleased that we have rules of unions but he does not wish to see members of the unions abide by those rules. This seems to be a crazy mixed up situation. I am glad that the honourable member raised this question because he pointed up something that I said in this chamber earlier this week in respect of the Trade Practices legislation. Proposed new section 45D of the Trade Practices Act makes an organisation liable for the action of its members. Mr Chairman, if I am transgressing I am sorry but I want to make this point because it is important. That being the case, the organisation, through the action of two or more of its members, becomes liable to a fine of $250,000 which is a substantial amount. If this provision is left in the legislation it will prevent the union from taking any disciplinary action against the malcontents or the people who wanted to bring about that circumstance.
The honourable member for Casey cannot have it both ways. He can have it one way or the other. He either wants the organisation to be responsible for the action of its members- that means disciplining them if they step out of line according to the union rules- or he wants the situation which exists under the trade practices legislation whereby members of an organisation can bind the organisation whether or not the organisation is aware of their actions and whether it can control them. I understand that the honourable member is chairman of the Government’s industrial committee so he must have had a great deal to do with the drafting of this legislation. He must have put to the Government, which accepted the situation- which he wanted- that the union should have no control over its members. For those and a number of other reasons in this area I suggest that the legislation would encourage and support pimping, scabbing or freeloading. As the honourable member for Gellibrand said this morning, the situation would be almost canonised if the provision had been carried. I support the amendment which has been moved by the Minister for
Employment and Industrial Relations. I congratulate him on having the courage to back down and pull out these iniquitous provisions. His action has certainly saved a tremendous amount of industrial and economic chaos in this country.
Particular provisions are to be amended to give to individuals rights vis-a-vis their trade union and the trade union movement generally. But while we are withdrawing from the position which we had adopted previously, the Minister for Employment and Industrial Relations (Mr Street) has indicated that this matter will be reviewed in August. There will be discussions with the Trade union movement through the National Labour Consultative Council which will be established in an endeavour to put to the trade union movement the responsible nature of the course which we are pursuing and the desirability of these provisions.
I was very disappointed in the observations made by the honourable member for Gellibrand (Mr Willis) in relation to this matter. He made it very clear that the trade union movement- that is the organisation- is opposed to this matter because it thinks that it will weaken the trade union movement financially; that it will affect its membership numerically; that it will destroy the bargaining power of the unions and that it will create dissention. Yet, I come into this place and hear honourable members, like the honourable member for Gellibrand, pursuing other legislation which deals with minority interests and freedom of the individual and which imposes harsh penalties. But honourable members stand up for it and say that, in those circumstances, it is right and proper and ought to be pursued. So when we come to the companies Act and company ordinances we do not see honourable members opposite balking at the proposition that the rights of minority shareholders ought to be protected vis-a-vis the company or the board of directors. In other words, what is all right in legislation dealing with other organisations is not all right when dealing with a monopoly organisation in the form of a trade union in which individuals have no rights.
When we come down to the real reason that these proposals are being opposed, we find that they affect the vested interests, those who control, the leadership and the incumbents in the trade union movement. The people who would be called power brokers and capitalists in a company situation are different when they exercise that sort of power over individuals in a trade union situation. The crux of the matter vis-a-vis the individual is that the organisations will be weakened financially. They will not have as much money to control. They will be weakened numerically. They will not have as many members from whom to collect money. It is suggested that these clauses will destroy the union’s ability to bargain, the ability to exercise power over other people in the community and other organisations, that it will create dissention, that people who are members of the organisation, who would have been entitled to a voice and to more realistic participation, will lose that opportunity. Because we want to give them an opportunity to participate or to say that they do not wish to participate it is suggested that that will create dissention. Those are the sorts of provisions to which honourable members opposite object. Yet in relation to other people in the community, other organisations and bodies where minority and individual rights are involved, honourable members wish and ask and by past performance legislated for harsh penalties. But when we wish to treat all people equally honourable members opposite seek to deny those same rights to individuals. Quite frankly, I am disappointed in the Opposition.
-Before calling the next speaker I point out that the debate is developing into a second reading debate.
– Yes, particularly the last one.
– I do not think we can accuse one honourable member more than another. I have tried to be a little tolerant because of what happened before lunch. As I have said, the danger in these circumstances is that if the Chair allows an honourable member to say something and somebody else answers, then somebody else answers that, taking a little more time, we get to a full second reading debate in the Committee stage and the Chairman is then in trouble from all sides. I ask honourable members to restrict their remarks so that they do not wander off into a second reading debate.
-Mr Chairman, I abide by your request. I hold the Bill in my hand so that I will not stray from it. I want to answer some of the comments made by the honourable member for Parramatta (Mr Ruddock). He made an emotional plea for the rights of individuals. He spoke about the way in which these rights are being negated or neglected by the trade union movement. He is quite wrong, of course. He has told us about rights which he believes are enshrined in these clauses of the Bill which are to be deleted. As we have been reminded, the Government will legislate on this matter again later this year. But he is wrong.
I am disappointed. I thought the honourable member was a bright young lawyer. He is having some difficulty in understanding the language. The rights about which he spoke are already enshrined in the Conciliation and Arbitration Act. As I mentioned earlier, they are entrenched in every union rule book. The rule books are available to the members. The rules are vetted by the Conciliation and Arbitration Commission through the registrar. In the same way that the majority shareholders he mentioned are protected by rules, so are the rights of individual unionists. But the honourable member carried it a step further and led us to believe that individuals have some sort of inalienable right to do as they please, and that is what I want to put to rest. I would believe the honourable member for Parramatta to be a law-abiding gentleman, a law-abiding honourable gentleman, a lawabiding learned honourable gentleman, and as such he obeys the rules. In this country, if you drive a motor vehicle the rules are that you drive it on the left hand side of the road and you stop when a policeman or a sign or a red light says so. The honourable member is nodding his head, indicating that he does all those things. A friend of mine is an American and he is used to driving his car on the other side of the road. If we were to follow right through the analogy put by the honourable member for Parramatta, why should not my friend be able to exercise his right as an individual to drive his motor car on the right hand side of the road? The honourable member is laughing in glee because he can see the ridiculousness of his argument.
What we are really saying is that we live in an organised society and we recognise that we live in an organised society. We recognise that unions are organisations because that is how we refer to them in the Bill and in the Act. Having recognised that word, which crops up continuously, how can we have industrial peace unless we have organisation? I put it to the honourable member that he should change his thinking on this and update himself from the 1 7th century into the latter part of the 20th century. He should forget about the time when there were no unions to which he would care to take us back, when the individual was at the mercy of those who had power. He should recognise that people come together only to exercise power, or to accumulate funds or to accumulate members, and for no other reason. If he understands that, he will withdraw his objection, expressed in the words he has just used, and understand that it is impossible to give to or legislate for anybody to exercise an inalienable right. All of us must be subject to the rules of the communities in which we live.
– I will adhere to your earlier suggestion that we be brief, Mr Chairman, but I should like to put on record the fact that the provisions the Minister is now removing from the Bill I believe to be one of the fundamental parts of the Bill and one of those sections which the general public is awaiting most eagerly. I acknowledge that the Minister said in his public statement that these provisions will be considered again in the Budget session, and I strongly urge the Minister and the Government to be conscientious in the way that they bring them in during the Budget session. While I am on my feet, I should like to say to the honourable member for Burke (Mr Keith Johnson) that he acknowledges that one of the fundamental rights in our community today is the protection of the individual, and I am sure he will agree with me that one of the fundamentals of our democratic system is the right of free choice. If that right of free choice is taken away there must be a breakdown in democracy. One of the basic things that the Government is trying to do is to give protection to the individual to make a free choice and to ensure that once the individual has made that free choice he is given protection against intimidation, whether that intimidation be directed to him by his trade union or by his employer. That is the basis of these provisions and I am sure it is the basic intention of the Government. The provisions are not designed in any way to be a stick with which to beat the unions over the head. The provisions are evenhanded. They provide for the same basis to be applicable to either the employer or the trade union, but they are designed essentially to give protection to the individual. I am quite sure that the. honourable member for Burke and the honourable member for Gellibrand (Mr Willis) would agree that if they talked to the rank and file of the trade union movement they would find that the rank and file are seeking desperately to have that sort of provision incorporated into legislation so that their right to choose whether they will join or not join an organisation is enshrined in legislation and they are protected against powerful monopoly organisations.
-The honourable member for Parramatta (Mr Ruddock) had a few words to say about double standards. I ask him to look at section 5A (4) in the Bill, which states:
For the purposes of this section, an action taken by-
a ) the committee of management ofan organisation;
the committee of management of a branch of an organisation;
an officer, employee or agent of an organisation;
a group of members ofan organisation; or
a member of an organisation who performs the function of dealing with an employer on behalf of himself and other members of the organisation, shall be deemed to have been taken by the organisation.
In that case, for the purposes of this legislation, if a group of members of an organisation take action then the union itself will be deemed to have taken the action. In the trade practices legislation, however, an entirely different test is applied. Section 84(2) of the Trade Practices Act deems to be conduct of a body corporate only that conduct which is engaged in on behalf of the body corporate by a director, agent or servant of the body corporate or by any other person at the direction or with the consent or agreement of a director, agent or servant of the body corporate. So in the Trade Practices Act, when it comes to catching the actions of business corporations the Government regards as a necessary test whether the conduct was on behalf of a particular enterprise or whether it was at the direction of persons normally controlling the enterprise. When it comes to the matter of catching trade unions, any action by a group of trade unionists will catch the whole union. When the honourable member talks about double standards he should try dealing with that one.
Clause 6 agreed to.
Clauses 7 to 1 1- by leave- taken together.
Section 20 of the Principal Act is amended by adding at the end thereof the following sub-section:
Where the Commission, in dealing with an industrial dispute, is satisfied that-
Section 33 of the Principal Act is amended-
by inserting in sub-section (4), after the word ‘person’ (last occurring), the words ‘or the Bureau ‘.
by omitting sub-section (5).
those persons are opposed to that industrial action, the Bureau shall, subject to sub-section (2), investigate and report to the Commission, on the claims made by those persons that they are members of that organization and arc employed by that employer.
the industrial action specified in the notifications will have ceased before the Bureau is able to complete any investigation and make its report to the Commission.
Subject to sub-section (5), a report made by the Bureau to the Commission under sub-section (1 ) shall set out the position at the time when the report is made with respect to the following matters:
Where the Commission receives a report from the Bureau under sub-section ( 1 ), the Commission-
Where the Commission has, under sub-section ( 1 ), directed by an award or order, that preference shall be given to members of an organization of employees, an employer bound by the award or order is not required, by reason of the award or order, to give preference to members of the organization over a person in respect of whom there is in force a certificate issued under section 144a.’.
Amendment (by Mr Street) proposed:
Omit the clauses.
– I do not want to delay the House on these matters since they are being withdrawn, but I wish to direct attention to clause 8 of the Bill relating to the amendment of section 33. This would have been a terribly important change to the Act if it had gone through. It would have meant that the Bureau would have been able to initiate proceedings for the imposition of penalties on a union for breach of a bans clause. As I understand the current legislation, the Inspectorate nominally does have the power to launch such a prosecution once a certificate has been issued but it does not have the power to seek a certificate. This provision would have given the Bureau the power to seek a certificate and therefore join the parties to the award in being able to seek a certificate and initiate the penal procedures. The fact is that since 1969 the whole process of penalising unions for breaches of bans clauses has been in abeyance. The employers of this country have not seen fit to seek such certificates due to the actions of the union movement in 1969 when they finally declared that they were totally against complying with this section of the Act. They thought it was totally unfair, and indeed its operation had been very adverse to the trade union movement and had involved unions in very heavy fines during the previous decade and a half. This provision not only would have enabled the Bureau to seek a certificate and therefore initiate the penal process but it would also, by amendment to a later section of the Act, have given the Bureau the statutory obligation to seek such certificates because it has the statutory obligation to ensure compliance with the Act and with awards. The Bureau would therefore have been obliged to seek certificates, as I understand the legislation. By passing the Bill in the form in which it was originally presented to the House, the Government would have re-imposed the whole system of applying penal clauses against the union movement. That would not have been an isolated instance. The Bureau would have been involved full scale in the business of seeking penal action against trade unions in this country.
- Mr Deputy Chairman, I wish to speak on a matter in much the same manner as I did earlier in the debate. Clause 7 of the Bill talks about the Commission virtually being able to set in advance procedures for settling disputes which have not yet arisen. The clause states in part: the inclusion in an award of procedures for preventing or settling, by discussion and agreement, further disputes between the parties . . .
Honourable members can see in those words reference to the matter about which I was speaking earlier. Is this within the ambit of what could be called the Commonwealth’s constitutional power. In Kelley’s case, which came before the High Court of Australia in 1950, it was made clear that the power could be used only when [>eople were in dispute. It is not possible tolegisate in respect of non-disputants. This is one of the things that ought to be looked at. The Parliament cannot pass an ambitory clause on the basis that because it is dealing with a trade union and an employer it can do whatever it likes with those parties. It is stated in clause 7, in effect, that in future the parties will not be able to come to the Conciliation and Arbitration Commission as such; the Commission will tell them in advance where they must go and how they must handle the matter, and after that perhaps it might consider the situation.
The DEPUTY CHAIRMAN (Mr Giles)Order! Excuse me for butting in for one minute. I thought that the idea was to eliminate clause 7.
-It is, Mr Deputy Chairman. I am making the point that the clause should never have been placed in the legislation, if I may advance this argument.
– Ha, ha!
-Honourable members will notice that the Minister has already said that he intends to reintroduce this provision, if he can, later in the year. That is the whole point.
Whilst I can appreciate the nonsense that is going on now, I point out to honourable members that the Opposition did not introduce this Bill. What I am anxious to put forward is the view that the Government should never introduce such a provision again. I do so on the basis that there is no validity for many of the clauses the Government has introduced in the legislation. So, we are conducting a sort of shadow fight here today on the basis that if the Government had gone ahead with its instructions the Opposition would have attacked it. But, now that it has decided to pull out these clauses, what is the Opposition to do? Is it to assume that everything is all right? The point I am trying to make is that these clauses should never have been drafted in this way. In my view, there is no power to do this.
I would like to see the matter looked at in future from the point of view of where the powers lie. If a Minister comes into the Parliament and says that a certain proposition is a worthwhile one, let him support it. He should not just make a second reading speech which contains no detail as to how the power can be justified. I am advancing this argument for reasons I have mentioned. Are unions to be all the time obligated to go to the High Court in order to keep telling this Government where it has made the mistake? The more practical position I am putting is this: Does the Government expect the unions to do what it seeks or does it expect to have confrontation? I think that it expects the latter. In the middle of economic dislocation, a union may decide to take the case to the High Court. But, in the process, people lose their jobs and industry loses a large amount of money in arguing about matters that should not be in the legislation. It was for those reasons that I wanted to raise that objection.
Mr Deputy Chairman, while I am on my feet I wish to speak in relation to another matter, namely, whether an organisation or group is able to exercise its free will. Let us have a look at society as we regulate it. I point out to you, Mr Deputy Chairman, that in this case I am addressing my remarks to clause 10 of the Bill. The point I am making is this: The honourable member for Parramatta (Mr Ruddock), I know, is a member of a society. He is obliged to belong to that society; otherwise he cannot continue to practise. He did not mention that today. He is obliged to pay his fees; otherwise he cannot practise. Society has to be orderly and has to be regulated by organisations that are recognised. If people do not want to abide by the rules, that is their misfortune. They must try to change the rules. But they cannot just opt out. The honourable member talks about company meetings at which an individual might have rights to vote. Honourable members on this side of the chamber have been advancing the argument that people can have rights to vote but a person who has 1000 shares has no more rights in that vote than a person who has one share. Trade union rules do not provide for those things. When we argue here today what the individual rights are, that is subservient to the fact that the conciliation and arbitration system is built on the fact that there will be a trade union organisation. Unless there is an organisation to register, we have nothing with which to deal in conciliation and arbitration provisions.
Let us put the matter on a proper basis. If we are to have an orderly society, it ought to be built on the basis that we in this national Parliament recognise that trade unions exist, we want to promote goodwill in industry, we want to encourage the means by which we can settle disputes, we want to provide the means for the settlement of those disputes and we want to encourage the organisation of representative bodies of employers and employees. That is stated in the Conciliation and Arbitration Act itself. But the honourable member for Parramatta wants to destroy the lot. Freedom has certain limitations. An organisation is not free to destroy another organisation. People are not free to destroy the rights and conditions for which men have fought hard over a period of years. People are duty bound to abide by them. A person may want to be a loner in society, but he must adhere to the majority decision as to any penalties that may be applied to him. What we are saying here is that we cannot have people fragmenting the whole trade union organisation or a very satisfactory employer-employee relationship simply because those people want to do their own thing. We do not want to go back to the time of backyard factories in which women were making textile goods, working in conditions that were not proper and being exploited. If we are to run a society properly, it has to be on the basis that proper economic and arbitral conditions apply. Mr Deputy Chairman, it has been generous of you to listen to me to the extent that you have. For the reasons I have advanced, I believe that these provisions should never have been placed in the Bill.
The DEPUTY CHAIRMAN (Mr Giles)Before we move on, I had better try to elaborate the position in which the Chair is placed. I interrupted the speech of the honourable member for Kingsford-Smith simply to establish relevance in my own mind. He pointed out that in the original
Bill the conditions which he was debating had been set out. The problem the Chair faces is that strictly the Committee ought to be discussing the Minister’s amendments in respect of this clause. If the debate develops over a long period on what hypothetically could be the position in the future, that makes it extraordinarily difficult for the Chair. All I can do, if I am not taking too much time, is to ask honourable members to concentrate as much as possible on the amendments that are before the Committee and, if they must refer to other matters, to make only passing reference to them.
-Mr Deputy Chairman, with respect I would like to make the point that what is before the Committee at each stage of its consideration of the Bill is a clause. A clause of the Bill is put up for discussion. If the Minister moves amendments, those amendments certainly are up for discussion also. But the clause is what is being discussed. At the end of the debate on each clause, the question that is put is that the clause be agreed to. Surely Opposition members are entitled to discuss what is contained in the original Bill in relation to each clause as it comes up for discussion.
The DEPUTY CHAIRMAN (Mr Giles)-I am bending over backwards to allow honourable members to do so; but I think that the laws of debate really mean that honourable members should debate the amendment, either for or against it. However, I will not press the point for the time being.
Section 54 of the Principal Act is repealed and the following section substituted:
- Mr Deputy Chairman, I move:
The effect of the amendment is to retain in substance the existing section 54 of the Act. The words ‘authorised person’ and ‘Director of the Bureau ‘ will be substituted for the words ‘Inspector’ and ‘Secretary to the Department of Employment and Industrial Relations’. In addition, the existing section 54 enables a member of the Commission to have an arbitration inspector investigate and report on a safety issue involved in an industrial dispute. A member of the Commission was required to make the report public unless it was undesirable to do so. As it stands, in addition to substituting the words ‘authorised person’ and ‘Director of the Bureau’ for the words ‘Inspector’ and ‘Secretary to the Department of Employment and Industrial Relations’, the clause would remove the requirement to publicise the report. The effect of the amendment is to retain the words now contained in section 54 of the Act.
Amendment agreed to.
Clauses 13 to 15- by leave- taken together.
Section 109 of the Principal Act is amended-
The powers that may be exercised by the Court by order under sub-section ( 1 ) or (2 ) are as follows:
1 1 ) A person shall not fail to comply with, or obstruct or hinder the carrying out of-
Penalty: $400 or imprisonment for 6 months or both or, in the case of an offence referred to in sub-section (12), $400 for each day during which the offence is to be deemed to continue or imprisonment for 6 months or both.
Clauses (on motion by Mr Street) negatived.
Clause 16 agreed to.
Section 1 19 of the Principal Act is amended by omitting paragraphs (a) and (aa) of sub-section (2) and substituting the following paragraph:
– I move:
Clause 17 as it stands proposes an amendment to section 1 19 to enable the Bureau to seek penalties for breaches of awards and to remove that function from the registrar. The effect of the proposed alterations to that clause is to retain the registrar while adding the Bureau.
Amendment agreed to.
Clause, as amended, agreed to.
Sections 125 and 126 of the Principal Act are repealed.
– I move:
This is an appropriate time to refer to an aspect of the speech made by the honourable member for Gellibrand (Mr Willis) in the second reading debate when he alleged that the Arbitration Inspectorate was opposed to the establishment of the Industrial Relations Bureau. He used as his authority for that assertion an article which had appeared in the Australian Financial Review. I have a letter from the president of the Arbitration Inspectors’ Association and to save time I seek leave to have it incorporated in Hansard. If leave is not given I will read it.
The DEPUTY CHAIRMAN (Mr Giles)-Is leave granted? There being no objection, leave is granted.
The letter read as follows-
Mr Anthony Hill
The Australian Financial Review
The article under your name and attributed to me is out of context with our conversation on the proposed legislation for the Industrial Relations Bureau. During our discussion on the legislation I pointed out in my opinion certain aspects of the legislation would be unworkable and this should have been reported as such. Other material used in your article was not given by me, the structure of the article gave the impression that it was.
Your article has caused embarrassment to me with the Department of Employment and Industrial Relations. It has also made my position with the Arbitration Inspectors Association invidious.
In all fairness I believe you should retract that article and use material given to you by me, in the manner in which it was given.
I reiterate the Arbitration Inspectors Association is not opposed to the Industrial Relations Bureau.
Arbitration Inspectors Association 16 May 1977.
– Clause 18 as it stands proposes the repeal of sections 125 and 126 which deal with the appointment and functions of inspectors. The effect of the proposed amendment to clause 18 is to retain section 126 while the substance of section 125 is to be re-enacted in amendments proposed to clause 19, particularly in proposed section 126A. The amendment also proposes a transitional provision to enable the Bureau to take over proceedings which already have been commenced by an inspector. In addition the amendment proposes that section 126 be amended by omitting the words ‘or an Inspector’. The effect of this amendment will be that the Commission will be able to direct the registrar to institute proceedings for an offence but will not be able to direct the inspector’s successor, the Bureau. This is consistent with the Bureau being a completely independent body.
-We oppose the amendment because we do not wish to see the Inspectorate removed from the Act. The Opposition objects to the repeal of section 125 under which the Inspectorate is established and notes particularly that once section 125 is removed from the Act what goes with it is section 125(4) which states:
An Inspector shall have such duties in relation to the observance of this Act and the regulations and of any award as the Minister directs.
What that means in effect is that the Inspectorate is under ministerial control and in relation to launching prosecutions for any breach of the Act, regulations or awards is subject to ministerial control. This has meant in the past that the Inspectorate has not sought to prosecute employees or unions for breaches of the Act.
Section 138 is an appalling section which relates to incitment to strike. If a body were established literally to look for every breach of the Act many employees in this country could be prosecuted daily for breaching section 138 relating to incitement to strike. Any one who encouraged anyone else to go on strike could be prosecuted under that section. The fact is that the Inspectorate has not been encouraged by any Minister that I am aware of to launch prosecutions against employees for breach of that section, but once we remove ministerial control and establish a body which has a statutory obligation to secure compliance with the Act and which is left free from ministerial control, we will have established a situation which will provide for a government agency to launch prosecutions of employees for breaches of the Act wherever they occur. This would mean in effect that not only would there be a duty on a body such as the Bureau, which will take the place of the Inspectorate to be repealed by clause 1 8, but also that the Bureau would have the power, obligation and duty to launch prosecutions against unions for breaches of bans clauses.
So we regard the removal of ministerial control as a terribly important factor. As I said in my speech in the second reading stage, the removal of ministerial control in our view is a breach of the agreement between the Australian Council of
Trade Unions, the Council of Australian Government Employee Organisations and the Government, and a breach of the statement made by the Minister on 17 May when he said that the Bureau would have the same powers as the Inspectorate- no more and no less- and that the processes would be the same. The fact is that by the abolition of the Inspectorate and the abolition of ministerial control factor we are giving the Bureau far more power than the Inspectorate had thus creating a quite different situation and, as I said, breaching the agreement the Government reached with the unions.
– I support what has been said by my colleague the honourable member for Gellibrand (Mr Willis). I do not know for the life of me why the Government wants the Bureau to be independent unless the Government intends to appoint someone who through his independence will be able to continue to follow Liberal Party philosophy after the Liberal Party loses the next election. Honourable members opposite should not laugh because they will lose the next election and it is important to us that the activities of the Arbitration Inspectorate, which will be taken over by the Bureau, will be subject to the policy decisions of the new Minister for Employment and Industrial Relations. I believe that the honourable member for Gellibrand when he becomes the Minister for Employment and Industrial Relations ought to be able to direct how the Arbitration Inspectorate, which then will be called the Industrial Relations Bureau, shall carry out its functions.
After all, what has the Government got to worry about? While the Government is in office the present Minister for Employment and Industrial Relations (Mr Street) will be in a position to give the Bureau directions as I did when I was the Minister. While the Government is in office it will have the right to force the Bureau to reflect Government thinking and policies, and what is wrong with that? The government of the day has a perfect right to direct the Bureau just as I had a right, which I exercised, when I was the Minister. However, if the direction of the Bureau is to be taken out of the hands of the Minister it means that the Government is going to perpetuate the kind of philosophy that the person chosen to be the director of the Bureau will be known to possess before the appointment is made.
Names have been put to me as possible appointees to the job. I have heard that Mr Justice Alley might be appointed and if that is so then the second most senior member of the firm of Moule, Hamilton and Denham would not appeal to me as being a particularly good sort of appointment to be given independent powers when the next Labor Government gains office. I have heard that it might even be Mr Tony Macken. I could not think of anything worse for the trade union movement than to have our friend Mr Tony Macken sitting there as director of the Industrial Relations Bureau and being completely independent of the people’s elected government. It may even be Mr Ed Taylor who I am told is the hot tip for the job. Judging by what he did in the recent wage indexation case when he found it important to reject the decisions given by the rest of the Bench in order to follow more closely the view put by the Government, I am beginning to think that perhaps he will be the Director of the Bureau. I could not think of anything much more disastrous than having Mr Ed Taylor appointed as the Director of the Bureau except, perhaps, the appointment of Mr Tony Macken.
Does the Government feel that it is losing power already? It must, if it can read the temperature outside. If it is, it has no moral right to say that it will give the Bureau complete independence so that when the honourable member for Gellibrand becomes the Minister for Labor he will not have the power to direct the Bureau to implement government policy in respect of industrial relations. If the Minister for Employment and Industrial Relations is genuine about this legislation he will not mind altering it in the way suggested by the honourable member for Gellibrand. He will say: ‘Fair enough, we will leave the Bureau under the direction of the Minister as the Inspectorate now is’. Really it is the Prime Minister (Mr Malcolm Fraser) who causes most of the trouble in the industrial relations area. The Minister himself is an excellent person left to his own resources. I often think that he is basically too good to be a Liberal. He ought never to have been a member of the Liberal Party. But he is not allowed to be himself because he has an arrogant, over-bearing Prime Minister-I have also had experience in this field- who stands over him and compels him to do things he knows are wrong. Therefore, he ought not to have anything to fear in keeping the Bureau under the control of the Minister. He would then be able to tell the Director of the Bureau to prosecute the unions, to send them to gaol and to fine them $500 a day every time they commit a breach of the bans clause. All the things the Prime Minister would like to see carried out could be done simply by the Minister giving a direction along those lines to the Director of the Bureau.
If this is what the Government wants- we all know that is what it wants- it can achieve that by retaining the present provisions, allowing the Director to be under ministerial control. If the Minister does not make the change for which we are asking and we find ourselves saddled with a director who is biased against the trade union movement as we know the Director to be appointed will be, then I make it quite clear that the Labor Government will not consider itself bound to continue the Industrial Relations Bureau. We will abolish the Bureau and with it the Director whom the present Government appoints. We will be able to do that. There is no way under the Constitution or law of contract that a government is required to keep on a man after the position to which he was appointed has been abolished. We will not accept an industrial relations bureau which has the powers to impose the pains, penalties and processes of the existing Act when it has been established by our political enemies to do the dirty work for the employers. Of course, that will be the prime purpose in life of the Director of the Bureau. The Minister is very foolish in trying to introduce this new element into the agreement. This is not provided for in the existing legislation. The existing processes do not allow the head of the Arbitration Inspectorate to exercise his functions and powers independently of government policy. To insist upon giving independence to the Director of the Bureau is a very serious breach of the agreement and cannot be said to be in conformity with existing processes.
-I wish to add a similar note of warning to those issued by the honourable member for Gellibrand (Mr Willis) and the honourable member for Hindmarsh (Mr Clyde Cameron) to the Minister for Employment and Industrial Relations (Mr Street). It seems to me that he is acting very much out of character by his insistence that section 125 of the principal Act be repealed. The Minister, by the very nature of the functions he performs, is a politician. There are those in this country who might even be prepared in certain circumstances to say that he is a good politician. That being the case, I should have thought that he would have recognised and understood the penalties that already exist in the Act. He should also know that there are occasions when it would be most unwise in the public interest for prosecutions to be launched as a matter of note by the Bureau or anybody else. Therefore, it is proper that there should be a safety valve in the form of direction by the Minister. Unfortunately, the Minister is misusing the Queen’s English when he talks about independence. The Government seems to have a fetish for this sort of thing. He has taken away that safety valve. He has broken the cord.
With the deletion of ministerial control all that can happen now is that pressure will build up very quickly if the Director of the Bureau no matter who he is-he may be any of the people mentioned by the honourable member for Hindmarsh or somebody else- proceeds with prosecutions under the Act believing that he is doing his duty. He is not a politician. He is under the control or direction of nobody. I assure the Minister that the time is not far distant when the pressure will build up and there will be an explosion. It would seem to me to be in the public interest, much more sensible, much saner and much safer if the Minister were in a position to be able to defuse that situation simply by saying to the Director ‘It is ridiculous for us to provoke a dispute. We are here to settle disputes. If you persist with this course you are provoking a dispute ‘. He should be able to ask him to back off, to use a vernacular. If the Labor Party were in government and it were not frustrated in another place those penalties would have been written out and the objection would have disappeared. The Minister is adamant that he will not take out those penalties. In fact, he tried to add to them. It is the view of my colleagues and the trade union movement that there ought to be ministerial control over the Director of the Bureau.
I repeat the words used by the honourable member for Gellibrand and the honourable member for Hindmarsh: This provision is a breach of the agreement with the unions. It is not the same process. It is different. The safety valve has gone. If the Minister is prepared to pursue the Bill as it now stands and is not wise enough in this area, as he has been in others, to withdraw the deletion of section 125, the consequences of that action will be on his own head. Agreement has been reached by all parties in this chamber. Honourable members on both sides of the chamber are pleased that agreement was reached. None of us was looking forward to a confrontation, the Government much less than the Opposition and the trade union movement. The Minister now seems to be hell bent on not keeping to the agreement reached with the unions. I think he should do so. An undertaking was given in terms of pains, penalties and processes. It is obvious that that agreement has been breached. The consequences must lie on the Minister’s own head. I urge him to re-think his position and give consideration to leaving section 125 of the Act as it now stands.
– I make a couple of points. I must admit that I was surprised and disappointed that the honourable member for Hindmarsh (Mr Clyde Cameron) chose to attack a Deputy President of the Conciliation and Arbitration Commission, Mr Justice Alley, and the Public Service Arbitrator, Mr Taylor, both of whom are distinguished members of the Commission. Having said that, the Government is not prepared to accept the suggestion of the Opposition. I refer to the statement I made prior to the resumption of the second reading debate today wherein I quoted from the Australian Council of Trade Unions statement of 11 May about adhering to principle. That was an important, and I am quite sure, deliberate inclusion in the ACTU statement. Quite clearly, in the terms in which we have always presented this body, that means that the Industrial Relations Bureau must be an independent and statutory body. That is and always has been basic to the whole concept of it.
That the amendment (Mr Street’s) be agreed to.
The Committee divided. (The Deputy Chairman-Mr G. O’H. Giles)
Question so resolved in the affirmative.
Clause, as amended, agreed to.
After Part VI of the Principal Act the following Pan is inserted:
PART VIa-INDUSTRIAL RELATIONS BUREAU 126a. (I) There is hereby established a Bureau to be known as the Industrial Relations Bureau.
Penalty: $500 or imprisonment for 6 months. 126R. ( 1 ) This section applies in relation to-
Penalty: $500 or imprisonment for 6 months. 126T. ( 1 ) The Bureau shall, as soon as practicable after 30 June in each year, prepare and furnish to the Minister a report of the operations of the Bureau during the year ended on that date.
The DEPUTY CHAIRMAN (Mr Giles)-Is it the wish of the Committee to take Government amendments Nos 9, 10, 11 and 12 together? Leave is granted.
– I move:
Omit proposed sections126Q and126R, substitute the following proposed section: “126Q. (1) For the purpose of ascertaining whether awards and the requirements of this Act or the regulations are being, or have been, observed, an authorized person may, at any time during ordinary working hours or at any other time at which it is reasonably necessary to do so for that purpose-
a place of business of any person in which he has reasonable cause to believe that there are books or documents relevant to that purpose;
interview any employee; and
Penalty: $500 or imprisonment for 6 months. “. ‘.
-Amendment No. 9 has the effect of correcting a drafting error. Sub-section (1) of section 126N is substituted for section 136L. Amendment No. 10 has the effect of omitting what was the proposed section 126P and amendment No. 1 1 omits the proposed sections 126Q and 126R and substitutes a proposed combined section as printed in the series of amendments which have been circulated.
-Clause 19 is the provision which establishes the Industrial Relations Bureau. It is strongly opposed by the Opposition. We oppose it in its original form and in its amended form. The Minister for Employment and Industrial Relations (Mr Street) said in his agreement with the unions that the Bureau would have the same powers as the Arbitration Inspectorate and that it would utilise the same processes. If it is to be a mere name change one cannot really see the reason for bothering to make the change. If it is a mere name change why go through all that bother? We oppose it on that ground. But in fact what the Government is seeking to do here is to give the Bureau more powers than applied to the Inspectorate. As I have mentioned already, the Bureau as established by clause 19 would be under the control of its director but would not be under the control of the Minister.
In his second reading speech the Minister tried to make out that control of the Bureau by the director was equivalent to control of the Inspectorate by the Minister. But of course that is a total nonsense. The fact is that the Inspectorate, being under the control of the Minister, is under the control of the person who is very much concerned with the industrial relations environment. He is not only concerned with compliance with the awards and the Conciliation and Arbitration Act but he is concerned also with the industrial relations environment in Australia. Successive Ministers for Labour have seen fit to instruct the Inspectorate not to take action against employees and unions for various breaches. If the Bureau is established in the form now proposed under clause 19 it will have a director and it will have an obligation- it would have no control by the Minister- to secure the observance of the Act, regulations and awards. The Bureau will also be provided with the power to institute proceedings before any court for an offence against the Act or the regulations. So what seems to be happening here is that the Bureau is being established with a statutory obligation to secure compliance with the Act, the regulations and awards and to take court action where breaches become known to it.
That is a terribly important change in powers and it will lead to a change in the processes. That is completely against the agreement reached by the Minister with the unions. That is not just some minor thing. In our view the fact that there has been this breach and that the unions will see it as a serious breach means in effect that the Government will have a massive industrial relations problem on its hands. The agreement will be virtually torn up and we will be back to the situation where the Australian Council of Trade Unions on 4 May threatened massive economic dislocation of the country if the Government went ahead with these measures. That is the situation that will face Australia if the Government goes through with the introduction of this clause as it is proposed to be amended. If the Government is really concerned with the industrial relations environment, sticking by its word and providing that the Bureau has the same powers, no more or less, and abides by the same procedures and processes it will amend the Act so that the Bureau is subject to ministerial control.
If the Government does not do that the only assumption can be that it intends the Bureau to be at large, to be quite independent of Government control with a statutory obligation to look for penalties for any breaches of the Act or awards. In that case we will see massive industrial relations dislocation in Australia and the ACTU and other union organisations certainly will not stand idly by and watch those prosecutions occur. I ask the Minister to think seriously about what he is doing here. In our view- we are not just putting this lightly- it is a serious breach of the agreement. If he is really concerned with the industrial relations environment and wishes to avoid confrontation he will have to amend the Bill before it passes so that the Bureau is subject to ministerial control.
– I wish to speak to Part VTA of the Bill which is to amend the Conciliation and Arbitration Act and which sets up the Industrial Relations Bureau. Speakers from this side of the chamber- the honourable member for Gellibrand (Mr Willis), the honourable member for Hindmarsh (Mr Clyde Cameron), the honourable member for Burke (Mr Keith Johnson) and the honourable member for Kingsford-Smith (Mr Lionel Bowen)- speaking to this provision have said that they see troubled waters in future when we would like to have industrial peace. The average Australian worker, the trade unionist, is a little upset with regulations, and this legislation will provide other regulations. The honourable member for Casey (Mr Falconer), the honourable member for Parramatta (Mr Ruddock) and the honourable member for Wilmot (Mr Burr), speaking to various clauses of the Bill have stated that there is nothing in the legislation that will upset or incite the trade union movement. I seriously hope that they and the Minister for Employment and Industrial Relations (Mr Street), who is at the table, and the Government are right. But I personally think that we are sitting on a time bomb.
The trade union movement has been with us for over 100 years and it will be with us for at least the next 100 years. We all know that workers will always unite where injustice takes place. Even if Parliament were dissolved tomorrowhonourable members should always remember this-we are all workers and worried about Australia’s future. Let us reflect that on Tuesday 17 May, 5 senior Ministers of the Fraser Government met with the President of the Australian Council of Trade Unions, Mr Hawke, and agreed to accept his proposals that the Government establish the Industrial Relations Bureau without increasing existing powers and legal obligations under the Conciliation and Arbitration Act and that the National Labour Advisory Council be reconstituted on a statutory basis. The 5 senior Government Ministers present at this meeting were: The Minister for Employment and Industrial Relations, Mr Street, the Deputy Prime Minister, Mr Anthony, the Minister for Transport, Mr Nixon, the Attorney-General, Mr Ellicott and the Minister Assisting the Treasurer, Mr Viner. Immediately after this meeting Mr Street issued a Press statement which outlined the terms of the agreement reached by Mr Hawke and the Government. In regard to the proposed role of the Industrial Relations Bureau Mr Street made the following remarks:
The Industrial Relations Bureau will have the same powers as the Arbitration Inspectorate, no more, no less, and those powers will be exercised according to the same processes as they have been until now.
Two days after this agreement had been reached, and imminent industrial warfare had been averted, at least for the time being, the Prime Minister (Mr Malcolm Fraser) made statements about the proposed role of the Industrial Relations Bureau which immediately placed the fragile agreement between the Government and the unions in jeopardy. Commenting on the intended powers of the Industrial Relations Bureau the Prime Minister stated that the IRB would still be able independently to initiate prosecutions of unions and employers. These comments were notoriously contrary to the assurances on the IRB’s powers which were given by Mr Street and the other senior Cabinet Ministers just 2 days beforehand and which formed the basis for the trade unions decision to accept the IRB legislation. Then, on the same day, another senior Government Minister, a man well known to share the Prime Minister’s rigid and despotic anti-union sentiments- the Minister for Primary Industry, Mr Sinclair- was reported to have stated that legislation to be brought before Parliament in the next week- that is today- would extend the protection available against trade union excesses and that the trade unions had accepted these new procedures and constraints.
No doubt the unions are now wondering why in the first place they ever trusted the Fraser Government to keep an agreement. The Government’s credibility has been shattered time and again since its election to office. The Government’s handling of this industrial relations agreement has just confirmed popular belief that this Government is not to be trusted. It has always acted with expediency and treachery and it always will. Mr Hawke, on behalf of the 1.8 million workers represented by the ACTU, had acted in good faith and had shown a lead in cooperative moderation. With the overwhelming support of the trade union movement he had made a genuine attempt to avoid a bitter and disastrous confrontation between the unions and the Government. The Government has treated these bids to compromise with nothing less than contempt and deception.
The working days lost per worker has been dropping steadily since the moderately high level of 1973 and the actual number of disputes has been falling since 1974. Even the wages lost through strike action were lower in 1976 than in 1 974. Last year, for example, the figure for working days lost per worker because of strikes was about 0.2 of a day for the year. In contrast, it was nearly 4 times as great at the end of the World War II, 1 1 times as great just before the Depression and more than 20 times as great just after World War I. In this light the Government’s current hard line and oppressive approach to the unions seems hardly warranted or desirable. As evidence of lack of Government support for this proposed legislation we witnessed in recent weeks the Government bending over backwards in its attempt to cause widespread strikes in a desperate bid to raise public support for its clearly unwanted proposal. In the case of the Victorian oil dispute we had the Government making repeated offers of assistance to Premier Hamer when they were distinctly not wanted or needed. Mr Street even went to the ridiculous extent of threatening to call in the troops. Over the last couple of weeks, during the air traffic controllers strike, we had both Mr Nixon and Mr Fraser threatening to bring down strong industrial relations disputes legislation if the strike continued, and we had Mr Fraser even threatening to call in the Air Force.
Since the Government first tabled the Bill, employers have voiced their strong and determined opposition to it. One employer organisation- the Australian Industries Development Association, which is a research body financed by big business- stated in its March bulletin that the new Industrial Relations Bureau to be set up under the proposed Conciliation and Arbitration Bill would meddle too much in the industrial policies of business. It argued that the legislation would create more industrial unrest, not less. That is in stark contrast with what the Minister, the Prime Minister and other champions of law and order keep telling us. AIDA pointed out that employers have to face the consequences of industrial warfare brought on by the Government’s proposed penalty legislation, and it left no doubt in one’s mind that employers are worried by the enormity of what is being proposed.
I know that it is late in the day, but I call upon the Minister for Employment and Industrial Relations to show restraint. The Trade union movement asked for a chance to come to the conference table and it did so. The Trade union movement has put all its faith in the Minister, as has been said by my colleagues. I hope that when the time comes he will carry out the promise he made to the President of the Australian Council of Trade Unions. Australia could be in turmoil if the promise is not kept.
The DEPUTY CHAIRMAN (Mr Giles)-In the same conciliatory fashion, I say that the Chair has bent over backwards to be lenient in the case of the speech of the honourable member for Sydney. It could have been a speech on the motion for the second reading of the Bill or the title of the Bill. I just mention that in passing. We obviously do not want to encourage too wide a debate at this stage.
– You have been very good, Mr Deputy Chairman, and I hope to repay you when the redistribution submissions are put in.
The DEPUTY CHAIRMAN- I have heard of your suggestions.
– I support the Australian Labor Party’s spokesman on this matter. The Arbitration Inspectorate works extremely well within the Department of Employment and Industrial Relations. The fact that very few prosecutions are being launched against employers is not the fault of the Inspectorate. The Inspectorate very properly is reflecting the views of the Minister for Employment and Industrial Relations (Mr Street), and the Minister is reflecting the views of the Prime Minister (Mr Malcolm Fraser). When I was Minister for Labor and Immigration, the Inspectorate was taking proceedings against employers at a rate of knots. I was very proud of it and pleased with the way it was carrying out its functions. I believe that we do not have enough arbitration inspectors. I notice from the latest annual report of the Inspectorate that even fewer are employed now than when I was Minister and when I was Minister we did not have as many as my ultimate goal required.
In fact, I often wonder what is going to happen to the Minister’s Department, as I look at the various segments of the Department that have been stripped away from him during the last 18 months. He has lost the immigration division. 1 think that that is probably a good thing, because immigration ought to be kept as a separate entity. In fact, I think it is wrong that the Department of Immigration does not have more of the old Department of Immigration than it now has. He has lost the productivity units that used to be attached to the Department. He is shortly to lose the Commonwealth Employment Service, which is to be run by a statutory body. He is now to lose the Inspectorate. It will not be long before the Department of Productivity- Sir Alan Cooley is a pretty good operator- puts up to the Prime Minister a powerful case pointing out that it is impossible to have the Department of Productivity unless it has control of the National Employment and Training scheme and the apprenticeship training scheme. It will want a lot more of the Department. I can see the Department of Employment and Industrial Relations being left with nothing but industrial relations. In view of what is now proposed, it will have a very tiny function; but it will make a hopeless mess of it because it will be forced to work within parameters that are not viable.
I do not believe that an inspectorate or a Bureau ought to be taking action against people who go on strike or against employers who are involved in lock-outs. I believe that an employer should have a perfect right to lock out his employees, if that is necessary to win an industrial dispute, without suffering any penalty. By the same token, I believe that an employee organisation should have the right to engage in a strike of whatever duration is necessary or if it is found to be necessary to win a collective bargaining point. We ought not to be using the Inspectorate for implementing penalties against lock-outs and strikes. The penalties with which the Inspectorate ought to be concerned are breaches of the awards in the ordinary sense. It ought not to be permissible for the Conciliation and Arbitration Commission to write a bans clause into an award. Indeed, the Act ought to be altered by the insertion of a section prohibiting the Commission from inserting a bans clause in an award.
Looking at that award- that is, an award without a bans clause- I believe that both the employers and the employees ought to be bound to observe every other provision of that award. If that award stipulates minimum rates of pay, minimum penalty rates, overtime, shift allowances, annual leave, sick leave, paid public holidays, safety regulations and the like- it can cover a broad range of things- it ought to be an offence punishable by the Inspectorate, whether the offence is committed by the employee or by the employer. If the award says that an employee shall clock on at a given time, shall not leave work until a certain hour and shall be required to present himself for work at a certain hour and the employee does not do that, or if an employee falls to observe the safety regulations incorporated in an award, the Inspectorate ought to get down on the employee, take him to court, sue him and fine him. The same ought to be done to an employer who does not pay the correct wages or does not observe the holiday and other working conditions of the award. He should be taken to court and dealt with. But we ought not to be using the Inspectorate to punish people for going on strike or for lock-outs. That has nothing to do and should have nothing to do with the Inspectorate and ought not to be in the Act.
The Australian Labor Party’s policy on this point is perfectly plain. The honourable member for Burke (Mr Keith Johnson) is looking rather surprised that I should be saying that lock-outs ought not to be punishable. When we wrote the platform of the Party it was pointed out to me that, if we are going to be consistent, when we say that people ought to be allowed to go on strike and that there should be no penalties against strike action we ought to include lockouts in the platform- and we did so. A person who lived in the days of the John Brown lockoutI suppose no one from those days is left now- would be staggered to think that he could pick up the Labor Party’s platform and find that lock-outs have been made exempt from penal provisions; but we were being fair about the matter. We said: ‘Let the same rule, the same law, apply to both employers and employees. Both ought to be free to exercise this power in the course of wage negotiations if they believe that it will help’. I support most strongly the remarks of the honourable member for Gellibrand (Mr Willis). He is absolutely correct in what he says. The Inspectorate ought to be active in carrying out the requirements of the Act.
I shall quote just another requirement of the Act. I quote it because it is against the union movement. The Act makes it clear that trade unions have to keep proper records of their financial transactions. They have to present balance sheets. They have to keep a proper record of membership in a membership roll. They have to keep certain records of union elections. Ballot papers have to be retained for a year after an election has been held. Any union that does not do all of those things ought to be prosecuted. If I were the Minister I would say to my inspectorate if it was handling the matter: ‘Not only do I want you to get right after this particular union but also I want you to get the best counsel you can, take the union to the Industrial Court and tell the court to impose the maximum penalty in order that its decision will be a deterrent against other unions breaking the Act in the same way’. That is an entirely different thing from breaking the law in respect of striking. There should be no law against strikes and lock-outs. A law against strikes and lock-outs is a bad law. It ought not be recognised by anyone. It ought to be defied and treated with contempt until it is finally discarded and thrown away. I ask honourable members to look at all the bad laws made through the centuries. They all have been broken by people ignoring them.
The DEPUTY CHAIRMAN (Mr Giles)Order! The honourable member’s time has expired.
– I want to make a couple of comments about the speech made by the honourable member for Sydney (Mr Les McMahon). The honourable member made some statements that I just cannot allow to go unchallenged-I should like to put on record that there has been no breach whatever of the agreement reached between the Government and the Australian Council of Trade Unions. I reiterate what I said earlier in this Committee debate when I quoted from the ACTU’s statement of 1 1 May which recognised the importance, in its words, of adhering to principle whilst avoiding dislocation and confrontation. This adherence to principle means that the Industrial Relations Bureau must be an independent statutory body. I repeat that is, and has always been, basic to its concept, and we have always said so.
Amendments agreed to.
That the clause, as amended, be agreed to.
The Committee divided. (The Deputy Chairman-Mr G. O’H. Giles)
Question so resolved in the affirmative.
Clauses 20 to 30- by leave- taken together.
Amendment (by Mr Street) proposed:
Omit the clauses.
– I shall speak briefly to clause 26.I know time is short but I want to make the same point as I made earlier. This clause relies on the fact that it can always be implemented because of a trade and commerce power and it is identified as such. But a whole series of legal decisions clearly shows that we just cannot legislate for a trade and commerce power in the Commonwealth. If we want to say just that, there is no restriction on any Commonwealth power at all because all actions and matters can be related to trade and commerce. I think that if we were to say that this is valid at this stage, then the clause could reintroduced. The Minister for Employment and Industrial Relations (Mr Street) has already said that he proposes to re-introduce legislation of this type.
I make the point that if this is done it will certainly meet a constitutional challenge because we cannot possibly have a clause like clause 26 and say that it is within the ambit of the Constitution. We cannot say that we can deal with trade and commerce in this fashion. It is a limited power which has to be directly related to the Constitution. A whole series of cases has defined that power. It is not as wide as is interpreted here. In my view this is a question of lack of power which is being misused. I mention this matter at this stage because if it is to be re-introduced it must certainly face a challenge. If it is to be introduced in the future I would like the Minister to get some good legal advice as to how he can justify this sort of drafting.
Clause 3 1 agreed to.
Section 1 88 of the principal Act is repealed.
This amendment will have the effect of omitting clause 32 which in turn will have the effect of leaving section 1 88 in the principal Act.
Clause 33 agreed to.
Title agreed to.
Bill reported with amendments; report- by leave- adopted.
Motion (by Mr Street)- by leave- put:
That the Bill be now read a third time.
The House divided. (Mr Deputy Speaker- Mr P. E. Lucock)
Question so resolved in the affirmative.
Bill read a third time.
Debate resumed from 25 May, on motion by Mr Street:
That the Bill be now read a second time.
Question resolved in the affirmative.
Bill read a second time.
– I have an amendment to clause 6, which states:
1 ) The Council shall consist of 16 members, namely-
Government Employee Organisations.
Basically, the Opposition seeks to do two things by this amendment. Firstly, we feel that the composition of the membership of the Council is unfair in the way it is prescribed in the Bill. It refuses any representation to one of the 3 peak councils of the trade union movement, the organisation known as the Australian Council of Salaried and Professional Associations. ACSPA, as it is known, is an important peak council. It covers quite a number of so-called white collar organisations and represents in a way that no other organisation does the trade union organisations in the white collar area. Some organisations affiliated with ACSPA are affiliated to the Australian Council of Trade Unions and some are affiliated to CAGEO, the Council of Australian Government Employee Organisations. But there are important bodies which are not affiliated to either of those organisations which are affiliated to ACSPA. In my view, it is quite contrary to the spirit of the composition of the National Labour Consultative Council to leave out such organisations, which will be done if ACSPA is not included.
In his speech the Minister for Employment and Industrial Relations (Mr Street) has given absolutely no reason for excluding ACSPA. The Opposition therefore believes that there is an obligation on the Minister to say in this debate why ACSPA is being excluded, and his reasons would have to be very good indeed. I assume that it is a deliberate omission, and I think the Minister ought to consider the industrial relations consequences of excluding an important peak council. It will clearly create jealousies, and some disaffection on the part of ACSPA. I do not think it does any good for industrial relations in this country to establish a consultative council of all the important organisations and then exclude one of them. It may be that ACSPA has been excluded in some measure for reasons of spite. It may be that the Government had some reason to exclude ACSPA because of late that organisation has not agreed with its policies. It certainly cannot be because the Government believes that ACSPA is not in favour of the National Labour Consultative Council. Within the last few days ACSPA passed a resolution at its executive which supported the recomposition of the National Labour Advisory Council, or the Consultative Council, as it is now to be known. So ACSPA does support the establishment of this body, and to leave out the organisation I think is quite wrong.
The other part of the amendment I have moved relates to appointment being by the Minister. Subsection (2 ) of proposed section 6 reads:
The members, other than the Minister and the Secretary, shall be appointed by the Minister.
That leaves it open to the Minister to veto the nomination of an organisation, and we do not think that that should be the situation. In the Trade Union Training Authority Act 1975, where there is nomination by the various organisations to the Australian Council of Trade Union Training, there is reference in relation to the ACTU to 3 members appointed by the Minister on the nomination of the ACTU. The Minister is obliged to accept the members nominated by the organisation. That is not the situation in this case. The organisations can nominate members to the Council. They are appointed by the Minister but not necessarily on the nomination of the organisation concerned. In this amendment we are adding to the words contained in the Bill the words:
If the Minister does not accept this amendment it can be assumed only that he intends to exercise some right of veto over the nominations which will come from the various organisations. I do not think that will assist in any way in bringing about good industrial relations or the harmonious operation of the National Labour Consultative Council. Indeed, if the Minister rejects or vetoes the nomination of a particular organisation it may well be that that body will withdraw altogether from the Council. In any case, it is surely right if you ask a council to be represented to accept the person the council nominates to represent it and not exercise some right of veto over it. I ask the Minister to accept the amendment because it is in the interests of good industrial relations in this country. If he is not going to accept it, then I think he has a clear obligation to tell the Committee why.
– In relation to the first part of the amendment moved by the honourable member for Gellibrand (Mr Willis) on behalf of the Opposition, I should point out that considerable discussions were held early in 1 976 about the possible composition of what we are now calling the National Labour Consultative Council, and it was at that stage that the number of 16 members was decided. The honourable member was quite correct in saying that the exclusion of the Australian Council of Salaried and Professional Associations was not accidental, and I am able to supply the reason for that exclusion. I am not happy about supplying it but I can do it. During the consultations of 1 1 May which led up to the statement of the Australian Council of Trade Unions on that date, the ACSPA representatives at the consultations indicated that, although their constitution did not allow them to bind their organisation to acceptance of the ACTU proposals, they had broad support for the proposals. Then on 1 1 May ACSPA issued a statement formulated in the light of policy decisions and discussions with affiliates. It will be noted that that date was subsequent to the informal indication, if I can put it that way, given by the ACSPA representatives at the discussions of 1 1 May. Paragraph 4 of the ACSPA document states:
ACSPA is opposed to any proposal which indicates to the Government that if it wants to put the responsibility for dealing with the existing penal sanctions into the hands of a body which it wishes to designate an Industrial Relations Bureau, the union movement would offer no objection.
ACSPA made its acceptance of NLCC membership contingent on such a proposal not going forward, which it now is in accordance with the debate this afternoon. It was in the light of that statement that ACSPA was excluded. It will be noted that 6 members are to be nominated by the ACTU, and if at some future date ACSPA changes its mind and abandons the stand it took in paragraph 4 of the statement of 1 7 May it may well be that it can persuade the ACTU that one of the 6 members nominated by that organisation should be a member of ACSPA.
– I do not know whether I heard correctly, but if I did I am appalled at what the Minister for Employment and Industrial Relations (Mr Street) has just said. He has virtually said that the Australian Council of Trade Unions and the Council of Australian Government Employee Organisations have given an undertaking to accept this deal on the Bureau as pan of the price they are prepared to pay for becoming members of the National Labour Consultative Council. That must be the inference to be drawn from what the Minister has said. Why exclude the Australian Council of Salaried and Professional Associations because it will not agree to the transfer of the powers that now reside with the Arbitration Inspectorate to the Industrial Relations Bureau, when the Government will allow the Council of Australian Government Employee Organisations and the Australian Council of Trade Unions to have that benefit?
I would like to know from the Minister whether what has been done has been done with the approval of the ACTU and CAGEO. Did those organisations know that ACSPA would be excluded from the National Labour Consultative Council? Did the ACTU and CAGEO, either explicitly or implicity, indicate that they would be prepared to adhere to the deal for allowing the Bureau to exercise all of the pains, penalties and processes that now exist as part of the price they would pay to become members of the NLCC? I cannot believe that that is the kind of deal that those 2 peak organisations would enter into. In fact, if this is the case, I think it is an appalling thing for them to do. I do not believe that they did it. I would like the Minister to say whether those organisations were in on this deal or whether it was something imposed upon them without consultation.
– All I can do for the honourable member for Hindmarsh (Mr Clyde Cameron) is to refer him back to the statement of the Australian Council of Trade Unions of 1 1 May 1977 which he himself asked to have incorporated in full in the Hansard record. So far as the Australian Council of Salaried and Professional Associations is concerned, the document of 17 May states:
A pre-condition of ACSPA participating in such a council - that is the National Labour Consultative Council- would have to be an indication by the Australian Government that it will not proceed with the present Bill and that it will refer same to the NLAC.
The document goes on to state in point No. 4 what I have just quoted. ACSPA is opposed to any proposal which indicates to the Government that if it wants to put the responsibility for dealing with the existing penal sanctions into the hands of a body which it wishes to designate an Industrial Relations Bureau the union movement would offer no objection. So far as the others are concerned, I refer the honourable member for Hindmarsh to the statement that he has already had incorporated in Hansard.
– Will the Minister for Employment and Industrial Relations (Mr Street) say what the position of the Australian Council of Trade Unions or the Council of Australian Government Employee Organisations will be in the event of the Bureau acting in accordance with what I interpret the agreement to be but which it appears the ACTU, CAGEO and the Federal unions do not interpret the agreement to be, namely, that the Bureau will have all of the powers presently possessed by the Arbitration Inspectorate to process the pains and penalties of the existing Conciliation and Arbitration Act? In the event of this occurring- that is to say, unions being prosecuted for strikes against bans clauses in awards, if the ACTU and the unions concerned then refuse to carry out the agreement in respect of the Bureau on the ground that it is doing things they did not believe it would do, and thus put themselves in the same court as ACSPA is now, will they be allowed to continue to sit as members of the NLCC?
– Obviously, I cannot speak for the organisations concerned. I can only go on what they have issued. That is already in the Hansard record. So far as the National Labour Consultative Council is concerned, obviously it will be a statutory body with an obligation to meet at least once a quarter. If organisations, for one reason or another, refuse to participate or choose not to participate, that obviously is their concern. I hope that all bodies eligible to participate in the NLCC recognise it as a constructive move towards achieving a better industrial relations climate in Australia. That is the Government’s objective, and I feel sure that that would be an objective shared by those organisations which are able to participate.
-Mr Deputy Chairman, the Government’s attitude on this matter is quite strange. The Government proposes to legislate in respect of the membership. The Bill names the persons who will be on the National Labour Consultative Council. The Australian Council of Salaried and Professional Associations is a major peak body of the trade union movement. Whether or not it accepts a position on the Consultative Council, the Government surely should be providing that the Council, in fact, is representative of the major employee organisations. I would think that that is the Government’s responsibility. If the Council concerned refuses to accept its position, that is a quite different matter.
I suggest to the Minister for Employment and Industrial Relations that he give consideration to this proposition before the Bill is presented in the Senate. If the Bill is passed in its present form and one peak council is made dependent on the goodwill of another for ultimate representationI remind the Government that it is putting this in legislative form-it is excluding a major section of employee organisations from what the Government hopes will be an effective forum. If they are excluded, then the effectiveness of the forum is reduced to that extent. I suggest to the Minister that if this proposal is accepted it means that ACSPA, to be represented, requires the agreement of the ACTU and is therefore represented in a subsidiary position because it must ask for the position of another organisation.
Provision for the representation of ACSPA on the NLCC should be included in the Bill. Whether ACSPA accepts a position is another question. There is no guarantee that anyone will accept a position on this body, although I expect that the councils will do so. But the real argument is that provision should exist in the legislation for the major employee organisations to be represented. None of those 3 major organisations should be dependent for its position on the goodwill of another organisation with which, although it may have a kindred spirit, it certainly has an independent mode of operation. I suggest that the Minister might reconsider this matter, possibly before the Bill is introduced into the Senate, and make provision in the legislation for ACSPA to be represented on the Council. If he does not do so, he is excluding its future representation as an independent, separate body.
That the amendment (Mr Willis’s) be agreed to.
The Committee divided. (The Deputy Chairman-Mr G. O’H. Giles)
Question so resolved in the negative.
Bill agreed to.
Bill reported without amendment; report adopted.
Motion (by Mr Street)-by leave- proposed:
That the Bill be now read a third time.
-The question is that this Bill be now read a third time. Those of that opinion say aye.
Honourable members supporting the Government Aye.
-And to the contrary, no.
Opposition members- No.
– I think the ayes have it.
– The noes have it. I call for a division. That is the decision of the Party.
– I suggest to the honourable member for Hindmarsh that he is not being very fair to some of his own colleagues. Under the Standing Orders of the House, if 2 members call for a division we have to proceed with it but I suggest that the honourable member give some consideration to his colleagues in view of the votes that have already been taken and the things that have happened.
– I want to vote against the third reading because that is the decision of the Caucus.
-Does any other honourable member require a division? There being no other honourable member calling for a division, the motion is carried.
Bill read a third time.
House adjourned at 4.41 p.m.
The following answers to questions upon notice were circulated:
asked the Minister for Employment and Industrial Relations, upon notice, on 9 March 1977:
What is the percentage of employees in the workforce who work a standard working week of (a) 40 hours, (b) 363/4 hours; and (c) 35 hours or less.
– The Australian Statistician has provided the following answer:
A survey of Earnings and Hours of Employees was conducted in May 1 976 and covered all wage and salary earners except: members of the defence forces; employees in agriculture; employees in private households employing staff; waterside workers employed on a casual basis; persons employed by private employers (other than hospitals) not subject to payroll tax.
The percentage of employees covered by this Survey who ordinarily worked a standard working week (excluding overtime) of the selected numbers of hours were estimated to be:
40 hours; males 70 percent, females 47 percent, total persons 62 percent
b ) 363/4 hours; males 5 per cent, females 5 per cent, total persons 5 per cent
35 hours or less; males 1 1 per cent, females 31 per cent, total persons 1 8 per cent.
The remaining employees worked a standard working week of durations other than the above, or did not work any standard hours; these were males 1 4 per cent, females 1 7 per cent, total persons 1 5 percent.
asked the Minister for Foreign Affairs, upon notice, on 9 March 1977:
How many First and Second Division officers are employed in his Department.
– The answer to the honourable member’s question is as follows:
There are 129 persons paid by the Department of Foreign Affairs at First or Second Division levels. Of these, 66 occupy Public Service Act positions in Australia and overseas and 63 are Executive Council appointees in charge of Australian missions overseas. 55 of the latter are permanent officers of the Department on leave under Section 72 of the Public Service Act for the duration of their appointment.
am asked the Minister of Foreign Affairs, upon notice, on 9 March 1977:
What steps (a) have already been taken and (b) have still to be taken by Australia to accept, as recommended by the Maritime Industry Commission of Inquiry in June 1976, the (i) 1968 Protocol to the International Convention for the
Unification of Certain Rules of Law Relating to Bills of Lading, 1924, (ii) 1969 amendments to the International Convention for the Prevetion of Pollution of the Sea by Oil, 1954, as amended in 1963 (see Pollution of the Sea by Oil Act 1972), (iii) 1971 amendments to that Convention and (iv) 1971 amendment to the International Convention on Load Lines, 1966.
– The answer to the honourable member’s question is as follows:
This Protocol has not yet entered into force. At present the Government does not have the matter under active consideration and further action will depend upon which countries become, or indicate an intention to become, contracting parties to the Protocol.
Australia accepted these amendments on 7 November 1973. The amendments will come into force internationally on 20 January 1978. It is intended that Section 3, 4 and 9 of the Pollution of the Sea by Oil Act 1972 will be proclaimed to come into force on the same date thereby enabling Australia to comply with its obligation under these amendments.
Action is being taken towards acceptance by Australia of these amendments but the matter cannot be finalised until the Commonwealth and State authorities have settled on a division of administrative and legislative functions in relation to shipping. Discussions with the States are continuing and when the matter has been resolved it will be possible to provide the honourable member with a more detailed answer.
am asked the Minister for Foreign Affairs upon notice, on 9 March 1977:
– The answer to the honourable member’s question is as follows:
1 ) ( a ) Convention on Facilitation of International Maritime Traffic, 1965: Monaco, Ghana, Zambia, United Kingdom, Dominican Republic, Yugoslavia, Norway, Union of Soviet Socialist Republics, Czechoslovakia, Belgium, Nigeria, Iceland, Ivory Coast, Trinidad and Tobago, United States, Finland, Singapore, Canada, Germany, Federal Republic of, Sweden, Netherlands, Israel, France, Denmark, Switzerland, Tunisia, Poland, Madagascar, Ireland, Greece, Italy, Fiji, New Zealand, Spain, Syrian Arab Republic, Chile, Austria, India, Bahamas, Iraq, Hungary, Surinam.
Action is being taken towards ratification of conventions (a), (b) and (c) but the matter cannot be finalised until the Commonwealth and State authorities have settled on a division of administrative and legislative functions in relation to shipping. Discussions with the States are continuing and when the matter has been resolved it will be possible to provide the honourable member with a more detailed answer.
Australia is not a party to Convention (d) but it is a signatory, having signed the Convention in October 1973. Australia is also observing the terms of the Convention under a voluntary scheme administered by the Minister for Environment, Housing and Community Development in conjunction with the relevant State Governments and industry. This Government is currently conducting negotiations with the relevant State authorities with a view to preparing suitable legislation which will enable Australia to ratify the Convention.
Overseas Travel by the Premier of Queensland in July 1976 and February 1977 (Question No. 236)
am asked the Minister for Foreign Affairs, upon notice, on 9 March 1977:
– The answer to the honourable member’s question is as follows:
In Iran the Premier called on the Prime Minister accompanied by the Australian Ambassador, and on the Minister for Agricultural and National Resources accompanied by the Mimster(Commercial)ofthe Australian Embassy.
In Denmark, Sweden, Norway, the United Kingdom, Austria and Hong Kong the Premier made his own arrangearrangements these were private visits.
In Iran, the Premier had an audience with the Shah and called on the Prime Minister and the Minister for Industries and Mines, accompanied in each case by the Australian Ambassador.
In Kuwait- in which Australia has no resident representationthe Premier made calls unaccompanied by any Australian diplomatic officials. However the Australian ConsulGeneral from Bahrain, who was in Kuwait on other business, met the Premier at the airport and returned with him on his aircraft to Bahrain.
In Bahrain, the Premier called on the Prime Minister and the Minister of Development and Industry, accompanied on both occasions by the Australian Consul-General.
In Saudi Arabia, the Premier called on the Minister of Industry and Electricity, accompanied by the Counsellor (Commercial ) of the Australian Embassy.
In Singapore, the Premier made his own arrangementsthis was a private visit.
Eye Testing Programs in Schools (Question No. 325)
asked the Minister for Health, upon notice, on 10 March 1977:
-The answer to the honourable member’s question is as follows:
Australian Broadcasting Commission: Power Without Glory (Question No. SS2)
asked the Minister for Post and Telecommunications, upon notice, on 30 March 1977:
– The answer to the honourable member’s question is as follows:
asked the Minister for Health, upon notice, on 20 April 1977:
What information can he provide to either substantiate or demolish the allegations that medical practitioners ‘incomes have increased dramatically since the introduction of Medibank.
-The answer to the honourable member’s question is as follows:
It has not been possible to quantify the increase in gross incomes of medical practitioners from available records. A comparison of Taxation Statistics for the income years 1974-75 and 1975-76 would provide an indication of the change. Income tax statistics that include information for the 1974-75 and 1975-76 income years in respect of medical practitioners are expected to be included in the supplements to the Report of the Commissioner of Taxation, Taxation Statistics 1975-76 and Taxation Statistics 1976-77. The former is expected to be tabled in Parliament later this year and the latter in 1978.
However, medical practitioners’ gross incomes have increased since the introduction of Medibank on 1 July 1975. The increases are related to:
increases in fees for medical benefit purposes. Increases in fees were implemented on 1 January 1976 and 1 January 1977, following the determination of an independent inquiry in 1975 and by agreement with the Australian Medical Association in 1 976. The increases in Medical Benefits Schedule fees from 1 July 1975 to 1 January 1977 were 24.3 per cent overall;
the introduction, particularly in New South Wales and Victoria, of sessional or modified-fee-for-service systems of payment to medical practitioners for services to standard ward patients in recognised hospitals, for those services previously rendered in an honorary capacity;
payment of medical benefits for the whole range of medical services for services to persons previously covered by the Pensioner Medical Service. The Pensioner Medical Service Scheme provided for payments to participating medical practitioners for general practitioner consultation only; and
an increase in the coverage of the population. Persons who had not previously taken out health insurance with private medical benefits funds were covered, from I July 1975, to the extent of medical benefits for medical services.
asked the Minister for Health, upon notice, on 26 April 1977:
-The answer to the honourable member’s question is as follows:
The information requested is provided in the following table. The information is current as at 5 May 1977.
Cite as: Australia, House of Representatives, Debates, 27 May 1977, viewed 22 October 2017, <http://historichansard.net/hofreps/1977/19770527_reps_30_hor105/>.