26th Parliament · 2nd Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 3 p.m., and read prayers.
Senator MURPHY presented from the Chairman of the New South Wales Humanist Society a petition showing that there is discrimination under the Marriage Act against persons who wish to have a non-religious form of wedding ceremony; religious ceremonies may be performed outside office hours, on week-ends or evenings, and the location of the ceremony is not restricted; civil ceremonies are generally restricted to office hours, and must be conducted at the Registry Office. The petitioner prays that the Senate in Parliament assembled, should initiate such legislative or administrative action as will enable sufficient reputable persons to be authorised to celebrate non-religous ceremonies of marriage as to meet requirements as to time and place of those desiring them, on the same footing as those who desire religious ceremonies.
Petition received and read.
– Before proceeding with questions, I draw the attention of honourable senators to the circulated list of questions on notice to be answered today. Senators will see that a new procedure is proposed. On Thursday last the Standing Orders Committee further considered the manner of asking questions on notice and decided to propose that senators should indicate to the Clerk those questions on notice which it is desired be dealt with orally. What is proposed is that, before the meeting of the Senate each day, a list will be circulated in the chamber setting out the questions for which answers are ready. Then, before questions on notice are called, senators should advise the Clerk of the numbers of any questions nominated for oral answer. I will call only those questions. Other questions not nominated for oral answer will, with the concurrence of the
Senate, be incorporated in Hansard. The Committee’s report on this and other matters will be brought up later in the sitting.
– by leave- we have been examining critically the procedures in relation to question time, especially questions on notice. One day last week we had some fifty-seven questions on notice. I think that this proposal is worthy of reasonable trial by senators and I am quite certain that the Standing Orders Committee could have another meeting if this proposal proved in the event to be not the complete answer. I ask the Senate to give this procedure that you, Mr President, have indicated a reasonable testing time.
– Mr President, may I ask you a question on that point? I did not understand it clearly.
– No, the honourable senator may not ask a question, but he may seek leave to make a statement.
– I ask for leave to make a statement.
– Is leave granted? There being no objection, leave is granted.
– I merely seek clarification, for I am not certain of the proposal that has been put to the Senate. Mr President, I ask for your guidance on how we shall indicate that we propose to have these questions asked and answered verbally.
– The simple way to do that would be to call a messenger and mark your sheets with the questions that you want answered.
– It could be circulated earlier than 30 minutes before.
– by leave - In order to clarify and to be helpful in this matter, I point out that a number of pieces of paper will be circulated to senators, setting out all the questions on notice that are to be answered. On one occasion last week there were fifty-seven such questions. That list should be on honourable senators’ tables when they come in and when the President enters the chamber and prayers are read. If a senator looks at the list and sees his name appearing opposite a certain question number, he might say: ‘I do not want that one to be read’. He would then do nothing about it. But if he wanted his question read he should give a signal to the Clerk at the table, who would inform the President. This system is worth a trial. That is all the President and the Standing Orders Committee ask. Do not make a judgment until we give it a trial. After a trial we can have another look at it to see whether it is appropriate.
– by leave- With Senator Lacey I represent the Opposition on the Standing Orders Committee. There was a discussion among Labor senators in relation to this problem of questions on notice. As a result of that discussion I asked the Standing Orders Committee to consider a proposal whereby the number of the question and the name of the questioning senator be read out and the relevant senator be given an opportunity to decide whether he wishes to put the question orally or have it automatically included in Hansard. The proposal was that the details of the questions that were to be the subject of this scheme should be circulated on the day of sitting.
On the day that we met it was reported to the Standing Orders Committee that this was the procedure that was adopted in this House, and that there had been some complaints from the listening public that they were unable to understand what was going on when all they heard was the number of the question and the name of the senator who had asked it. For instance, Senator Murphy might have five such questions answered on the one day, and all the listening public would hear would be the number of each question, together with Senator Murphy’s name. This would be repeated five times, and it was pointed out that this was not attractive to the listening public.
Therefore, the suggestion was that, rather than having the numbers and the names of the questioners going over the air when the questions were not asked and answered orally, the questions be dealt with silently. The list would be circulated and the senators who wanted to ask their questions orally would have the right to do so. They could indicate to the Clerk of the Senate whether they wished their questions to be dealt with orally or otherwise.
I agree with the Leader of the Government when he says that this should be given a trial. This proposal is in accordance with what I thought from the discussion was the desire of Opposition senators. It will stop this practice of merely reading out numbers and the names of senators and will give a senator the opportunity of having the question heard over the air as a question asked and answered orally.
– I wish to inform the Senate that the Minister for External Affairs, Mr Freeth, left Australia on Sunday, 18th May, for Bangkok. He will attend the fourteenth meeting of the SEATO Council on 20th and 21st May and the meeting of the Vietnam Force Contributors on 22nd and 23rd May. Mr Freeth expects to return to Australia on Sunday, 25th May. During his absence the Minister for Defence (Mr Fairhall) will act as Minister for External Affairs.
– My question is directed to the Leader of the Government in the Senate. I refer to the national dislocation of industry that has arisen in connection with the Australian Tramway and Motor Omnibus Employees Association. In order to restore industrial peace and because of the extraordinary circumstances which surrounded the imposition of lines on the tramways union, will the Government announce that the fines imposed on the union will be remitted by the Government in order to clear the way for the release of Mr O’Shea? Will the Government announce also that it will introduce immediately legislation to repeal or, at the very least, to modify the penal clauses of the Conciliation and Arbitration Act?
– I regret very much the nature and tenor of the question asked by the Leader of the Opposition. The facts are that there is an industrial dispute, that the Minister for Labour and National Service and the Commonwealth Attorney-General had a series of meetings with the executive of the Australian Council of Trade Unions under the chairmanship of Mr Monk on Sunday last, and that a compulsory conference in relation to this dispute has been called this very day: lt is equally true that the executive of the
ACTU, under its chairman, is meeting tomorrow in relation to this dispute and that following this meeting there will be another meeting, as I understand Mr Monk’s comment, between the executive of the ACTU and the Ministers concerned. In all those circumstances I think it would be disastrous to have a debate on the subject here or to have a series of questions and answers on the matter which in any way may be embarrassing to a solution of the dispute in the interests of the people of Australia. Some honourable senators opposite have had a lifetime in the trade union movement and know the procedures that are adopted in relationto the settlement of disputes. To have a provocative question on the very day on which a compulsory conference has been called and 24 hours before the ACTU executive is to meet would be most inappropriate. I decline to answer the question and also I view with grave concern the suggestion that the matter may be raised as a matter of urgency at a later hour this day.
– My question is directed to the Leader of the Government. In view of the crisis proportions that the present industrial unrest has assumed, will the Government take immediate steps to dissolve the Commonwealth Industrial Court?
– Mr President, I rise to order. I submit that the honourable senator’s question is a reflection upon a judicial tribunal, namely, the Commonwealth Industrial Court. Honourable senators will be aware that a judge of that Court has made an order in relation to an incident out of which these unhappy disputes have arisen. I submit, therefore, that the question should be ruled out of order. In so doing may I state, with the leave of the Senate, vital information which has just been handed to me?
– The Minister has not been granted leave yet.
– No. I am asking for leave, respectfully.
– Is leave granted?
– No. The Minister was speaking on a point of order.
- Senator Wright, you had better clear up the position as to whether you are speaking on a point of order or seeking leave to make a statement.
– I concluded what I had to say on the point of order. However, I think all honourable senators around me will understand that what I am about to state will considerably alter everybody’s point of view, or will be material for every honourable senator to consider. I ask for leave of the Senate to make a short statement as to material facts that have just come to my knowledge.
– Is leave granted?
– If leave is not granted, I shall move for the suspension of Standing Orders to allow Senator Wright to make a statement.
– An answer is needed first on the point of order.
– I wish to speak to the point of order. Senator Wright rose and said firstly that he was speaking to a point of order in respect of the question asked by Senator O’Byrne. I understood Senator Wright to say that the contents of the question were a reflection on a judicial body, namely, the Commonwealth Industrial Court. I have a note of the question asked by Senator O’Byrne and it amazes me that anybody could so interpret it. Senator O’Byrne asked: In view of the crisis proportions that the present industrial unrest has assumed, will the Government take immediate steps to dissolve the Commonwealth Industrial Court?
I do not understand how anybody can read into that question that Senator O’Byrne is reflecting on the Court. Therefore I suggest that irrespective of what may follow Senator O’Byrne’s question, it is in order. I cannot see in it any reflection on the Commonwealth Industrial Court and I do not understand how anyone else would. I ask you, Sir, to rule against the point of order raised by Senator Wright.
– I think I had better say one or two words before we proceed. Senator Wright was quite in order in rising to a point of order. In view of the importance of the matter with which he wishes to deal, he was equally within his rights to seek leave of the Senate to make a statement. The Senate is still its own master in deciding whether it will grant him leave. He was refused leave. I do not think Senator Wright was doing anything wrong in attempting to convey information that he thought would be of value-
– And relevant to the particular problem.
– That is so. Do not let us argue over the point of order.
– The position has been complicated because Senator Wright took a point of order instead of answering the question. I would have thought, speaking from the Government’s point of view, that the answer would have been a simple no. That would have enabled us to go on with the important business. If Senator Wright wants leave to make a statement, I, personally, think he should be able to make it. I do not know why he has chosen on this occasion to complicate the matter by raising a point of order. The practical way out of this problem is surely for the point of order to be withdrawn, or for Senator Wright to give the answer to the question. The answer is obvious and does not involve any worry about the intricacies of the O’Shea matter. The Minister’s answer to the question obviously would be no. Then he could ask leave to make a statement and no doubt he would get leave, or I would support a motion to suspend the Standing Orders to allow him to make the statement.
– I ask for leave to withdraw my point of order for the purpose of peacefully getting to the material information. Perhaps a question could be asked which would enable me to give the information.
– 1 direct a question to the Minister representing the Minister for Labour and National Service.
– Mr President, Senator O’Byrne’s question has yet to be answered.
– My understanding is that Senator Wright said that he did not propose to answer the question and asked that it be put on the notice paper. Is that not right?
– I adopted Senator Murphy’s suggestion in asking for leave to make the statement that cheques lor $8,100 and $500 were paid to the Deputy Industrial Registrar, Sydney; at 2.10 p.m. today.
– Order! We will proceed to the next question.
– My intention before this hiatus occurred, Mr President, was to seek your permission to direct a question to the Minister representing the Minister for Labour and National Service. My question is: Are there any recent developments in the industrial dispute which have come to the notice of the Minister and on which the Senate should have information?
– I wish to inform the Senate with great pleasure that information has been handed to me within the last few minutes to the effect that cheques for $8,100 and $500 were paid to the Deputy Industrial Registrar, Sydney, at 2.10 p.m. today. Those cheques represent the amount of the fines in dispute; the $8. J 00 relating to the union and the $508 relating to Mr O’Shea personally.
– I ask the Minister representing the Minister for Labour and National Service the following question: In view of the Australia-wide industrial unrest brought about by the unjust and severe penal provisions of the Commonwealth Conciliation and Arbitration Act and culminating in the detention in gaol of the Secretary of the Victorias branch of the Australian Tramways and Motor Omnibus Employees Union, Mr ©’Shea, will the Minister, in consultation with the Australian Council of Trade Unions, formulate a plan for the trade union movement along the same lines as the Woodward agreement which is embodied in the general report of the National Stevedoring Conference of April 1967?
– Senator Drury puts a question which is very comprehensive and which requires, the consideration of important questions of policy. A court order has been made; a citizen of this country is restrained by reason of that order; and the material facts that T stated a few minutes ago have been disclosed, namely, that all the fines have been paid within the last halfhour. In this context I ask the honourable senator to consider me justified in refraining from further comment on this question, as it may more appropriately be discussed next week after the Commonwealth Industrial Court has had an opportunity to deal with the situation that has developed in the light of the payments I have mentioned.
– Has the attention of the Leader of the Government been drawn to a report by the Canadian emergency measures organisation? Is the Government aware that the report forecasts the effect of a medium scale nuclear attack on north America, which is described as completely plausible? The report states that the effect might be to cause the death of 8,530,000 Canadians and that 8 million of those killed would be residents of urban centres and the rest would be rural inhabitants. I ask: Does the Minister agree that the great growth of capital cities in Australia suggests that there is a head in the sand attitude on the part of governments, State and Federal, to demands by sections of the community for greater attention to decentralisation of our population?
– Many questions have been asked in this and other places about decentralisation but this is the first occasion that one has been linked with a statement arising from the Canadian emergency legislation proposals about which I have no knowledge. It is true, of course, that we do not necessarily need to think in terms of nuclear explosions to visualise a situation in which built up areas are more vulnerable than rural areas. This was revealed in World War I and World War II. I will seek information about the Canadian emergency legislation proposals and read it with considerable interest. I will then make a judgment as to whether I should undertake a reply to the honourable senator’s question.
– My question is addressed to the Minister representing the Minister for Labour and National Service. Ir» view of the information he gave about the court costs and fine having now been paid into court, does the Government intend to make an announcement, in order to remove a large amount of discontent among workers now on strike or proposing to go on strike, to the effect that it will act speedily to support the release from gaol of Mr O’Shea?
– The honourable senator will recall that public announcements were made last evening by the Minister for Labour and National Service and the Attorney-General and by Mr Monk of the Australian Council of Trade Unions. Mr Monk made a separate statement and it was issued independently by him. Part of his statement said that Mr O’Shea had been found guilty of contempt and was committed to gaol and that only the Commonwealth Industrial Court could order his release. Mr Monk said that the Government Ministers had told him that it was the Government’s duty to uphold the decisions of the Industrial Court. As part of the same statement Mr Monk said that he had been told by the Ministers on Sunday, at the conference in Sydney, that if such a satisfactory arrangement were made - there was then a proposal for time payment of the fines - the Court could be informed that it was no longer desirable to proceed with the examination of the accounts of the union and it could be expected that the Court could order his immediate release.
– What is your answer to my question?
– I should have thought that that was a very quiet answer to your question; one which deserves study and consideration by you.
– I desire to ask a question of the Leader of the Government in the Senate. Will the Leader of the Government seek to ascertain who paid the fines for the Australian Tramway and Motor Omnibus Employees Association and Mr O’Shea? Was it the same authority that paid the fines of the boilermakers in Western Australia when an industrial dispute threatened? Does this mean that while the penal provisions of the Conciliation and Arbitration Act will still operate, any well supported industrial opposition to payment of penalties imposed will result in payment by unknown authorities? In effect, has
Clarence O’Shea defeated the undesirable penal provisions of the Conciliation and Arbitration Act?
– In the light of my first answer, I ask the honourable senator to put his question on notice.
– My question is directed to the Minister representing the Minister for Social Services. 1 ask: Is it a fact that the amount of the repatriation pension paid to a disabled person is taken into account in relation to the means test when deciding the eligibility of that person to receive the age pension? If so, will the Minister consider whether this provision should be eliminated in the forthcoming Budget?
– I will get a detailed reply for the honourable senator. Of course, all matters concerning social services are reviewed at Budget time.
– 1 direct a question to the Leader of the Government in the Senate. What action has the Government taken to detect and punish the Ustashi element which intimidated David Jones (Canberra) Pty Ltd to withdraw major symbols of Yugoslavia from the international display in its store? In view of the current visit to Australia of the Yugoslav Trade Mission, does the Minister not consider that the Commonwealth authorities should exercise the same zest to deal with the ultra right wing elements as they do with those of the far left?
– All 1 am aware of at this stage is that a series of anonymous telephone calls were made to the manager of the company concerned in relation to its display and that the matter is in the hands of the Criminal Investigation Branch of the Canberra Police Force, which is actively investigating the anonymous telephone calls.
– I wish to direct a question to the Leader of the Government in the Senate. Is the present confrontation between the trade unions and the courts the first of a series of attempts by the Government to create an environment of unrest and discontent in Australia in anticipation of an early election?
– I can see the fear of a general election on the face of the honourable senator. The honourable senator’s question is completely absurd. The truth is, as 1 said at the outset, that the Government’s approach to the industrial situation which has arisen, and indeed the approach of the trade union movement, is to find a solution. That is what is happening at the moment.
– My question is directed to the Leader of the Government in the Senate. I ask:’ Has he seen reports in today’s Press that campaigns are under way at all Austraiian universities to dissuade graduates from taking jobs with the Commonwealth Public Service? Has he also seen the reported statement by the President of the Students Representative Council of the University of Sydney that the campaign was started because the Prime Minister ignored a letter from the National Union of Australian University Students? Does he know whether these reports are correct? Has the Prime Minister ignored any letter from the National Union of Australian University Students? Does the Government know why such a campaign should be instituted by student bodies or anybody else?
– The first thing that needs to be said in relation to activists in the student movement is that they represent a very minute percentage of university students. I suggest that the overwhelming majority of students who go to university go there seeking to better their education and to obtain degrees so that they oan have a successful career. Within the framework of the Commonwealth Public Service there are many opportunities for successful careers in all the disciplines. I think we can safely disregard the stupid writings, or alleged writings, of certain elements which are rearing their heads at the present time. That points up the very thing that I am saying. Is it to be suggested seriously by this writer that because some person wrote a letter and did not get a reply in time to satisfy himself, the whole of the great university movement should move away and blackball opportunities for a career in the Commonwealth Public Service? The proposition is so blatantly stupid that I do not think we should give it any credence.
– I address my question to the Leader of the Government in the Senate or, if he is not involved, to the appropriate Minister. Has he seen statements that naval personnel are in revolt regarding the weekly wages paid to all ranks in the Services? Iri view of the urgent need for harmony within the defence forces, will the Government immediately grant wage justice not only to members of the defence forces but to other sections of the community as weir?
– Obviously the question of any disputation that has emerged in any Service department is not to be resolved at question time. If there is an element of dispute within one of the Service departments on a wage matter the normal processes will operate. If the matter comes within the jurisdiction of the Public Service Board, the appropriate legislation regarding conciliation and arbitration will apply. That is the place to leave the matter. I am sure if that is done a proper solution will be found.
– My question is directed to the Minister representing the Minister for Labour and National Service. Is it a fact that today’s industrial upheaval and the court’s decision to fine the Australian Tramway and Motor Omnibus Employees Union $8,000 are a sequel to strikes which occurred 4 years ago? Why was action so long delayed and then precipitated?
– The union’s obligation to pay fines has accrued in various stages at varying intervals of time since 1965. Delay was experienced in the payment of those fines. I remind the Senate, and the honourable senator in particular, that the court directed attention to the fact that so large an amount was outstanding that that fact itself really created difficulty about the efficacy of the court’s power to impose further fines for current breaches.
It was really then, after the court had called attention to that fact, that efforts have been sustained for some 12 months, from memory, to secure payment. For quite a long period payments were being made by instalments.
– I ask the Minister representing the Minister for Labour and National Service whether it is a fact that at least 18 months ago the Commonwealth Government was asked to remit the fines on this union on the ground that the known circumstances which surrounded the imposition of these fines contained matters of merit which were never considered by the Commonwealth Industrial Court. Further, did the union offer to pay the fines by instalments and was the offer of the union rejected by the Government?
– I have no knowledge of any offer by the union. I have no specific knowledge of any submission made as to remission of fines because of exceptional circumstances, but I reject out of hand the suggestion that any submission of that kind was not considered. I am quite sure that the Minister whom I represent in this portfolio - Labour and National Service - his Department and the Attorney-General and his Department would have given full consideration to any submissions made.
– I did not say that they gave full consideration to the submissions; I said they rejected the submissions.
– The honourable senator said that they failed to consider the submissions.
– My question is directed to the Minister representing the AttorneyGeneral. Is the Australian Government taking or contemplating taking any steps to protect computer programmes under the copyright law?
– Honourable senators will remember that the copyright law has been under revision since, I think, 1956 when the first committee was constituted to review the whole Act. I remind the Senate that for the first time proposals for legislation, following the committee’s report, were put before Parliament, I think, 2 years ago.
Those proposals were then the subject of amendment. I remind the Senate that last session a Bill was before us and it was the subject of representations on the part of people interested. Last week 1 made a statement to the Senate about the copyright legislation. My understanding would be that any programme which was the original production of an author probably would be subject to copyright. I cannot see that a computer programme would be excluded in any way from the benefits of copyright.
– Does the Leader of the Government in the Senate recall his use of the word ‘anarchy’ when replying to my recent question wherein 1 suggested that the people were bound to protest against developments in our society which were contrary to the public interest, notwithstanding that such protests-
– Order! The honourable senator should ask his question. He is making a statement now.
– T have to develop my question.
– Order! lt is a question of whether the honourable senator should develop a question or ask a question.
– I give away my right to ask it.
– Will the Minister representing the Minister for Labour and National Service seek to ascertain for the information of the Senate upon whom the cheques paid into the Sydney court for payment of the fines imposed on the tramways union and on Clarence O’Shea were drawn and what were the signatures on the cheques?
– I direct my question to the Minister representing the Minister for Primary Industry. Is it a fact that lamb prices in Australia and in particular those in South Australia are depressed? Is Australia still importing lamb from New Zealand? If so, is this having an adverse effect on the price of Australian lamb? What are the amounts of New Zealand Iamb imported into Australia in the past 3 months?
– I think it is well known that a committee was set up some time last year to watch the effect of the importation of New Zealand lamb on the Australian market. I have just forgotten the composition of the committee but I should have thought the honourable senator would have remembered that a committee was set up. Again, I remind honourable senators that this question of the effect of the importation of lamb on the Australian market could always have been referred to the Special Advisory Authority to learn whether it would have a really adverse effect on the Australian market. To the best of my recollection that was not done. I do not think there is any importation of lamb in any quantity at all. I am not completely sure of this but 1 am pretty sure of it. However I shall make inquiries and let the honourable senator know the result;
– 1 ask the Minister representing the Postmaster-General whether she is aware that there is a certain level of dissatisfaction with the postal services which is apparently being created by the inability of the Department to make reasonably prompt deliveries of mail at a time of the day acceptable to industry? Is the Minister aware that the problem which exists is affecting the efficiency of business generally and particularly affecting the collection of credit? Does the Government recognise that a problem exists at this time and will it assure us that it will take action to meet the requirements of the business community in respect of mail deliveries?
– I think it was on the last day of sitting last week but certainly it was on one of the days last week that I replied to a question on this matter in this chamber. 1 do not know whether the senator has seen the answer but I shall make a note of the points that he makes. I recall that the Postmaster-General has made the comment that as time has gone on there had been fewer complaints about deliveries. I shall put the point raised to the Postmaster-General but i refer the senator to the answer that I gave last week.
– My question is addressed to the Minister representing the Minister for Labour and National Service. ls it now obvious to the Minister that the penal provisions of arbitration legislation have been used to impoverish the unions and to limit their ability to work effectively on behalf of their members?
– In view of the closure of Cooby Creek tracking station near Toowoomba will the Minister for Supply inform the Senate whether it is intended to open any other tracking stations in Queensland in the future?
– Cooby Creek was established to carry out a certain purpose in relation to the National Aeronautics and Space Administration. Its role is coming to a conclusion. Towards the end of the year it will close down or, alternatively, it will remain open or available with the prospect that some other Government department may find a use for it. I do not think one can look at this question in the way it is put by the honourable senator - that because this project closes down another one necessarily will open. We have to keep in mind that it was a tracking station established to do certain things within the framework of NASA, with which the Department of Supply works, and that because its function is coming to a conclusion it will1 close. It carried out very useful purposes during its lifetime. Indeed, some of the live television broadcasts we saw from other parts of the world came through the Cooby Creek station.
As we know, the work force there is employed by Amalgamated Wireless (Australasia) Ltd, which is under contract to the Department of Supply, which in turn acts as an agency for the American organisation. I issued a Press statement in relation to it on the 18th May. If the honourable senator has not seen it, I suggest he might care to get & copy, for in it he will see where I have set out all the relevant elements. He will see that I have paid a tribute to the work that that station has done during its lifetime.
– Does the Minister representing the Minister for Labour and National Service say that it is the duty of the Government to uphold the decisions of the Commonwealth Conciliation and Arbitration Commission?
– 1 address a question to the Minister representing the Minister for External Affairs. Can the Minister inform the Senate in due course of the proposals now being formulated by Japanese business and financial circles for economic aid to South Vietnam once peace has been achieved?
– Yes. I shall get the information and make it available to the honourable senator and to the Senate.
– 1 ask the Minister representing the Minister for National Development: Was the uranium ore mine situated at Radium Hill in South Australia closed because of the surplus of uranium ore throughout the world at that time? Was the price on the world markets so low that it became uneconomic to continue production at Radium Hill? In view of the present world shortage of uranium, will the Minister consult with the Government of South Australia for the purpose of inquiring into the potential of Radium Hill and with a view to re-opening the mine?
– I inform the honourable senator that back in the early 1950s, when there was a great shortage of uranium, the British Atomic Energy Commission and the American Atomic Energy Commission, operating as the Combined Development Agency, issued contracts to various countries and/ or companies for the production of uranium oxide. The mine the honourable senator mentions was one of the mines, I understand, that supplied uranium oxide to the Combined Development Agency in the early 1950s. I understand also that the uranium field at Radium Hill was a low grade deposit, and it was unable to function once the contract to the Combined Development Agency was fulfilled.
However, in view of the length of time since this occurred, and in view of the fact that the honourable senator is asking about the possibility of having Radium Hill reopened, I shall take up this matter with the Minister for National Development and obtain an answer for the honourable senator.
– My question without notice is directed to the Minister representing the Minister for Labour and National Service. Is the Minister prepared to use his good offices with his colleague to have all penal sections abolished? If the answer is in the affirmative, how soon will he make such representations?
– The honourable senator will know that provisions for the enforcement of awards against any party bound by the awards have been an integral part of the arbitration system since it was created. No system oan have the slightest enforcement unless a court has some means of effectuating compliance with its awards. If the suggestion is that I should use my good offices to subvert the arbitration system, the answer is that I could not bring myself to believe that that was a desirable purpose.
– My question is directed to the Minister representing the Minister for Labour and National Service. Is the Minister suggesting that even if what are called the penal provisions of the Conciliation and Arbitration Act, that is, section 109 and the related contempt provision in section 111, were deleted, there would not be still ample and regular provisions in the Act for dealing with breaches of an award? In other words, is he suggesting that labour injunctions and contempt provisions as we have known them are an absolute necessity? Is it not true that ample provisions would still be left in the Act for achieving industrial harmony and the proper enforcement of awards without the necessity to have these Injunctions and contempt provisions?
– In answering these questions I wish to display the utmost objectivity. When I am called upon in answer to a question to discuss gradations of pro visions which together operate for the enforcement of an award I am bound to say that there is a difference between a fine for a mere breach of an award and a fine for non-compliance with a specific order on a union that an award should be complied with. When that difference is appreciated by me it can be understood how readily it is understood by the judges who have been appointed to administer the arbitration system. I remind the honourable senator that not only must we consider the judgment of the judges but also we must consider that their judgment is reinforced by legislation which provides that these provisions shall not be. invoked until there has been a cooling off period and the processes of conciliation have had a 14-day period in which to operate. In acknowledging a difference between the two levels of enforcement it needs to be borne in mind that those who administer the system would readily appreciate the system and require that the enforcement of section 109 is safeguarded by a compulsory period of consideration of a dispute for 14 days before an injunction proceeding can be commenced.
– I desire to direct to the Minister representing the Minister for Labour and National Service a question seeking information rather than some propaganda. I ask: What effect has the enforcement of the penal provisions of the Conciliation and Arbitration Act had in respect of preventing or settling industrial disputes? What number of man hours has been lost through industrial disputes each year over the past 10 years? How many prosecutions have been conducted under the penal provisions of the Act over the same period? What fines were imposed during that period?
– I suggest that the honourable senator delete the offensive part of his question in which he implied that my answers are used for propaganda purposes, and put the remainder of his question on the notice paper. Otherwise I shall disregard it.
– I ask the Minister representing the Minister for National Development: In view of the answer given a little while ago concerning Radium Hill, can the Minister supply information as to the possibility of reopening the mining project at Mary Kathleen in Queensland? Is it likely to be reopened in the near future?
– I remind the honourable senator that last week in the Senate in answer to a question on this subject I made it quite clear, I thought, that extensive production of uranium throughout the world will be needed in the early 1970s. At present some uranium mines are in mothballs, so to speak. They will have to be reopened to meet the demand for uranium in the early 1970s. The Commonwealth Government has eased conditions under which uranium can be exported from Australia. With this in view, Australian mining companies are now busily engaged in prospecting for uranium. In fact, work is proceeding at Mary Kathleen so that if an adequate price can be obtained for the additional quantities of uranium mined there, the mine may be reopened.
– I direct my question to the Minister for Supply. Which categories of Commonwealth public servants stationed in State capital cities are entitled to the use of Commonwealth cars, and in what circumstances? ls it a fact that certain Commonwealth public servants are entitled to the use of ‘large black cars’? I understand that is the description used amongst the knowledgeable.
– One private member uses one, just like a Minister.
– Not I. Apparently it is implied that the users of such vehicles are of superior status to other less highly regarded users of Commonwealth cars, such as members of this Parliament.
– I will need to seek some information to answer the honourable senator’s question, lt should be understood that the Department of Supply is the operating body for the provision of transport to Ministers, members of another place and senators in certain circumstances, and indeed, to public servants on official duty. The conditions under which transport is provided are not made by my Depart ment. We get our instructions from other departments in that respect. We in fact provide the transport pool. However, I will seek information, including details about the big black cars to which the honourable senator referred, and will provide the Senate with that information.
– Is the Minister representing the Minister for Primary Industry aware that since the debate in the Parliament a few weeks ago on the easing of the embargo on the export of merino rams many State wool grower organisations affiliated with Federal organisations and the Australian Wool Industry Conference have, after consideration, reaffirmed their support for the Australian Wed Industry Conference’s recommendation for an easing of the ban?
– i cannot say that I was aware of that to the extent the honourable senator is; but I might add that I am no*, surprised.
– I direct a question to the Minister representing the Minister for National Development. Now that the Queensland election is over, will he please answer the questions I have asked in relation to the successful tenderers for oil leases on the Great Barrier Reef?
– Some of the questions the honourable senator has placed on the notice paper have been answered already; but, as some may be still outstanding, I will endeavour to obtain answers from the Minister for National Development and give them to the honourable senator.
– Can the Minister for Supply give me any further information in regard to the Bendix Corporation Pty Ltd and the impending dismissals?
– Yes. On 14th May Senator Mulvihill asked me a question on the situation at the Bendix Corporation Pty Ltd, of Rockdale, New South Wales, regarding the servicing of electrical components for the armed Services. I have now obtained the necessary information from my Department. The position is that the company has advised that due to the diminished work load of such servicing it will no longer be commercially viable to undertake the work, and has suggested that it be allocated elsewhere. My Department has agreed. I understand that there should be no lack of suitable offers of employment for any of the skilled staff affected by the decision. I have some figures on what is being done in relation to the placing of them, but I do not give those figures here. The company, of course, will be continuing with the manufacture of defence equipment. I am happy to say that within the last several days I have approved a contract being placed with the Bendix Corporation Pty Ltd for ninety field radio test sets required by the Australian Army. That contract alone is worth more than half a million dollars.
– My question is addressed to the Minister representing the Minister for Trade and Industry. What progress has been made in the negotiations under the Trade Practices Act between the ship owners of the Australia-Singapore and West Malaysia Outward Shipping Conference and the Singapore and West Malaysia Shippers Association? Have the provisions of the Trade Practices Act in this respect been found workable and generally satisfactory?
– I would not wish to give a reply in any depth to the honourable senator’s question. I am aware of, and my attention has been drawn to, the fact that the Deputy Prime Minister and Minister for Trade and Industry issued a Press statement on this matter as far back as the middle of February. He said, in effect, that the twelve ship owners who comprise the Australia-Singapore and West Malaysia Outward Shipping Conference had been asked to begin negotiations with shippers within the framework of the Trade Practices Act of 1965 and that this was the first such action that had been taken under the Act, which came into force at the end of 1967. I am also informed that notice was served on the shipping companies for undertakings not only to negotiate with the shipper bodies but also to permit a Government officer to be present at the negotiations. In this way Government officials should have a far more intimate knowledge of the day to day administrative functions that go on in this side of the shipping industry in Australia. I would wish to make a more considered reply to the honourable senator’s question and therefore I suggest that he put it on notice. I will get a detailed reply for him.
– My question, which is addressed to the Minister representing the Minister for Labour and National Service, is supplementary to that asked by Senator Bishop a few moments ago. In view of the fact that the Australian Council of Trade Unions and other responsible trade union organisations consistently have asked for an easing of the penal provisions of the Conciliation and Arbitration Act, .or their abolition, and in view of the fact that this request consistently has been refused by the Government, can it now be taken as a statement of fact by the Minister that the Government is prepared at long last to discuss with the union movement the abolition of the penal provisions?
- Mr President, I would like to be permitted to say, in answer to the question of the honourable senator, that I do not accept as facts such parts of his question as purport to state facts. My answer to Senator Bishop still stands: That any objections submitted to these provisions, either by the ACTU or any other responsible part of the industrial world, will be considered by the Government.
– My question also is addressed to the Minister representing the Minister for Labour and National Service. In view of the increase in recent years of man hours lost through industrial disputes, does this not indicate that as this Act has as its aim the settling and prevention of industrial disputes, some revision is desirable?
– I would have difficulty in making an assessment which woul’d permit me to accept the inference that the honourable senator has stated. I incline to another view. However, an extempore opinion on such an important question would be less than of value, either to the honourable senator or to the Senate.
– Mr President, in view of the fact that a series of strikes that we are having at the present time adversely affects the people of Australia and the further development-
– Order! Is the honourable senator asking a question?
– I am asking a question of the Minister representing the Minister for Labour and National Service. In view of the fact that these strikes adversely affect the people of Australia and the progress of this country-
– Order! The honourable senator is making a statement, not asking a question.
– 1 am nol making a statement. I am asking a question.
– Order! If the honourable senator does not ask his question in the right way it will not be permitted.
(Question No. 833)
asked the Minister representing the Minister for the Interior, upon notice:
– The Minister for the Interior has provided the following answer to the honourable senator’s question:
(Question No. 948)
asked the Minister representing the Treasurer, upon notice:
– The Treasurer has provided the following answer to the honourable senator’s question:
2 and 3. Under the 1959 Act the amount of additional grant for which a State qualified was calculated by reference to the amount ‘allocated’ each year by the State from its own resources for expenditure on roads. Under the 1964 Act the amount of additional grant for which a State qualified has been governed by the amount expended by a Stale from its own resources on roads expenditure during the year concerned plus the amount set aside during that year and, not being spent in that year, expended within 6 months of the end of that year. The sources of State funds for these ‘allocations’ or expenditures have been classified, for the purpose of administering the relevant sections of the Roads Acts, into (a) State Road Funds; (b) Consolidated Revenue; (c) Loan Funds; and (d) Other State Accounts. The amounts shown by States to have been allocated or expended from each of these sources over the period 1959-60 to 1967-68 in order to qualify for the additional grants are as follows:
(Question No. 1067)
asked the Minister representing the Minister for Civil Aviation, upon notice:
– The Minister for Civil Aviation has provided the following answer to the honourable senator’s question:
(Question No. 1143)
asked the Minister representing the Minister for Immigration, upon notice:
During the years 1950 to 1968 what was the annual intake of people of non-European origin from Fiji who were granted residence in Australia?
– The Minister for Immigration has supplied the following answer to the honourable senator’s question:
It was not until 1959 that provision existed for the entry to Australia for residence of nonEuropeans as the spouse, dependent minor child, aged parent, fiance or fiancee of an Australian citizen or of a person having resident status in Australia. Following the Government’s review of its immigration policy in March 1966 there has been provision for the migrant entry of others on the basis of their ability to integrate readily into the Australian community and their possession of qualifications positively useful to Australia. In addition to the entry of non-Europeans for residence there is provision for resident status to be accorded to those who were previously admitted on a temporary residence basis but in respect of whom an intention of indefinite stay has been accepted.
Prior to the 1966 review of policy, statistics relating to non-Europeans were maintained under four broad nationality headings only. It is not possible, therefore, to supply annual figures relating to the entry of persons of non-European origin from Fiji prior to 1966. The number of non-Europeans admitted for residence from Fiji by the calendar years since 1966 and those who after being admitted on temporary residence visas were subsequently granted resident status is:
(Question No. 1147)
asked the Minister representing the Minister for Health, upon notice:
– The Minister for Health has provided the following answer to the honourable senator’s question: 1 and 2. There are a number of corticosteroid preparations, of which cortisone is one, available as pharmaceutical benefits. However, their use as benefits is restricted to the treatment of certain specified conditions. When used as a benefit, cortisone is free to pensioners and costs nonpensioners 50c for each supply. In some circumstances increased maximum quantities of a pharmaceutical benefit may be prescribed at no extra cost to the patient.
(Question No. 1151)
asked the Minister representing the Prime Minister, upon notice:
– The Prime Minister has provided the following answer to the honourable senator’s question:
(Question No. 1178)
asked the Minister representing the Minister for Shipping and Transport, upon notice:
– The Minister for Shipping and Transport has provided the following answer to the honourable senator’s question: 1 and 2. The charges referred to by the honourable senator have been under discussion between the container companies and exporters of the products concerned for some time. Representations on the matter have been received by the Minister for Trade and Industry and myself, and the Department of Trade and Industry is examining the questioninconjunction with shippers and the container companies. It is believed that shippers and the container companies are evolving a practical solution to the problem at the present time
(Question No. 1224)
asked the Minis ter representing the Minister for Air, upon notice:
Was a VIP aircraft used last week by the Minister for External Territories to tour the western districts of Queensland in a State election campaign?
– The Minister for Air has provided the following answer to the honourable senator’s question:
– On 30th April Senator Murphy asked me a question related to logistic support for Australian forces in Vietnam. The Minister for Defence has provided the following answer:
The arrangement under which the Australian force in Vietnam obtains the great part of its logistic support, including ammunition, from the United States forces is by far the most economical in terms of finance, manpower, shipping and storage facilities. This was confirmed by a detailed inter-departmental review of the arrangement which was carried out about 18 months ago. Nothing has happened since which would affect the findings of that inquiry. The Government has, however, been concerned to promote bulk sales of commodities to the United States Forces in Vietnam as an offset to the cost of drawings by our force from the United States depots in Vietnam. Such sales have included foodstuffs and 105 mm ammunition. No doubt the supplies drawn by the Australian force from the United States Forces have included, and will continue to include, itemsof Australian origin.
Formal Motion for Adjournment
The PRESIDENT (Senator the Hon. Sir Alister McMullin) - I have received from Senator Murphy an intimation that he desires to move the adjournment of the Senate for the purpose of discussing a matter of urgency, namely:
The urgent necessity to achieve industrial justice and goodwill by providing more effective conciliation machinery for the prevention and settlement of industrial disputes and by repealing the labour injunction and related contempt provisions of the present Conciliation and Arbitration Act.
Is the motion supported? (More than the number of senators required by the Standing Orders having risen in their places)
The urgent necessity to achieve industrial justice and goodwill by providing more effective conciliation machinery for the prevention and settlement of industrial disputes and by repealing the labour injunction and related contempt provisions of the present Conciliation and Arbitration Act.
So, the proposed motion is by its expressed terms inseparately linked with industrial justice arising out of machinery for the settlement of disputes and its suggests that the contempt provisions of the Conciliation and Arbitration Act should be repealed. So that the matter will not be proceeded upon under any basis of misunderstanding, may I be permitted to remind the Senate that earlier this afternoon the Leader of the Government (Senator Anderson) and I referred to a compulsory conference that was called by Mr Justice Gallagher. About half an hour after that reference was made I was informed that the proceedings before Mr Justice Gallagher had terminated and that he had discharged the parties he had summoned because the transport dispute did not relate to the matter directly before him. So, I do not proceed upon the basis that there are contempt proceedings at present before Mr Justice Gallagher.
There are two grounds upon which 1 submit that the proposed motion is out of order. Firstly, on Friday last Mr Justice Kerr, a judge of the Commonwealth Industrial Court, ordered Mr O’Shea to be imprisoned until he gave satisfactory answers to the court or until the court otherwise ordered. The basis upon which that order was made was Mr O’Shea’s refusal to answer questions asked of him by a judge regarding the non-payment of fines imposed by the Industrial Court. Mr President, it is my submission that the matters that the Leader of the Opposition wishes to discuss - industrial justice and contempt proceedings - directly involve the decision of Mr Justice Kerr, who, , sitting as a court of justice, made an order in enforcement of contempt proceedings which were inherent in himself and ancillary to the statutory contempt proceedings that are referred to in the motion.
I submit that it has been long established as a principle upon which the Senate proceeds that debate will not be engaged in which is calculated to have any effect upon the administration of a judge in a court of justice. I am not referring here to an officer of the Industrial Court even though he may be a judge. I am referring to Mr Justice Kerr in his strictly technical jurisdiction as a judge. The reason I submit that the Senate has adopted the practice to which I have referred of not permitting public debate upon a matter which a court of law is seized of and is required to determine is, in the language that Dr H. V. Evatt, in his capacity as Attorney-General, once used when quoting from a report:
It . is possible to poison the wells of justice before they begin to flow.
In the light of what I communicated to the Senate this afternoon - I bring back to the Senate the fact that I stated that the fines have been paid - and in the light of the statement to which Mr Monk and the Ministers have referred, namely, that if the fines were paid it would be proper, once the court had been informed appropriately of that fact - I use the word ‘appropriately’ so that no-one will misunderstand me because there are proper ways in which a matter of this kind is communicated to the court - to indicate that the prosecutor no longer was interested in asking the questions, refusal to answer which caused Mr O’Shea’s contempt. The judge therefore has a matter specifically within his responsibility, as soon as those proceedings are brought before him, to determine the appropriate justice in relation to the contempt for which a person has been imprisoned.
I submit that it is completely impossible to refuse the view that there should be no discussion in the Senate of industrial justice related to the conciliation machinery and related contempt provisions which the judge enforced on Friday, having regard to the fact that continuance of his enforcement order obviously is to come before him at the appropriate time; Dealing with the matter of imprisonment, no judge would delay the opportunity to inform a prisoner that circumstances had altered. Therefore I submit that it is as clear as day that a discussion of industrial justice in relation to contempt proceedings would contravene a long standing principle of the Senate.
I call attention to another statement by Dr Evatt that is quoted on page 1 69 of Mr Odgers’ book ‘Australian Senate Practice’ wherein he refers to the fact that anything said in a court of justice is subject to absolute privilege. So too in Parliament everything said is subject to absolute privilege. Therefore as a matter of law none of us who might participate in this debate would be amenable to a court of law for any contempt which a statement in this debate might constitute if it were said elsewhere. In order to prevent the proper independent discharge of justice it has become a principle, as stated in Todd’s Parliamentary Government in England’:
Nothing could be more injurious to the administration of justice than that the House of Commons should take upon itself the duties of a court of review of the proceedings of an ordinary court of law.
I submit that the subject of this debate by its very expression is one which will canvass the justice of enforcing the contempt proceedings in the way in which the judge has enforced them, or canvass any possible course that the judge might think proper to order when, as I have said, it is inevitable that the matter will come before him for consideration within hours or certainly days in relation to Mr O’Shea’s imprisonment.
Stemming from the enforcement of the order last Friday there is a continuance of that enforcement until Mr O’Shea gives satisfactory answers or until the court otherwise decides, so proceedings are current from then until now and debate upon the subject of industrial justice in relation to contempt provisions clearly would be in breach of the well established principle that this House of Parliament will not permit the possibility of affecting or influencing a court of justice in its discharge in a truly judicial jurisdiction, not in the arbitral jurisdiction, of the provisions of the statute. I submit that it is most important that the Senate should uphold these principles. In all the circumstances should a debate on a particular matter be permitted at this time having regard to the appropriate way in which Dr Evatt expressed himself when, on 17th April 1947, he quoted the statement to which I have referred?
This motion is directed towards a change in the law. It is not concerned with a particular proceeding before Mr Justice Kerr. Even if it were, I suppose that the considerations which were dealt with by Dr Evatt and, I understand, also at the conference of Presiding Officers on the question of sub judice, would lead one to the conclusion that where there is a great national issue, even if it dealt with something sub judice, you balance the question of how it should be dealt with, whether the National Parliament should go ahead to deal with it, notwithstanding that there was some private litigation or public litigation in the courts, because the national welfare may require that the National Parliament should do so.
Here there is no question of a debate on the merits of the issue that was before Mr Justice Kerr. Who would be concerned with such a debate? The motion is not directed towards that. It is directed towards an alteration of the law. If what the Minister suggested were to be applied, I do not think the Commonwealth Crimes Act could be ever amended because every day the courts would have before them cases covered by the proposed amendment. We could not deal with an amendment of that Act because a case would be proceeding before the courts. The motion is aimed at an amendment of the system - an alteration of the law and other cases that have machinery, the labour injunctions and the penal clauses. 1 can assure the Senate that the motion is not concerned about the merits of the particular matter that happened to be before Mr Justice Kerr. The background of the law and other cases that that have been penalised illustrate the necessity for an alteration of the law, not the particular proceedings before Mr Justice Kerr. Mr President, I ask you to overrule the point of order.
The matters are weighty ones. There is an obvious point of urgency. The motion proposed to be moved by the Leader of the Opposition deals with matters of the greatest moment to the community. We are to be put off discussing them, if the point of order is upheld, because a particular case under the contempt provisions of the Conciliation and Arbitration Act recently was before a judge of the court and probably will come before him again. I cannot lend any support to that proposition. Mr President, I ask you to reject it and to allow the debate to proceed so that the Senate can deal with these broad and important questions which affect the whole Australian community.
– Order! The honourable senator is getting completely away from the point of order.
– I do not say anything further about my remarks previously but I pass on to say that which 1 was going to say: Surely, the offer of the Leader of the Government in the Senate is sufficient. He has indicated that other than at this particular critical time the Government would be happy and willing to have the matter fully debated and it is open to any person to have the matter raised before the Senate again. I should have thought that this is a responsible attitude te adopt. For that reason I support the point taken by the Minister. I make one ether point and that is in relation to consistency. I have no doubt that you will be interested to know that a ruling was given a short time ago in another place upholding an objection similar to the one that has been taken here.
– Order! What does the honourable senator’s last sentence about some decision taken in another place refer to?
– I thought it would be of some interest to you to know that a similar objection had been taken in another place and had been upheld there.
– I rise to say briefly that my colleagues and I would be slow and reluctant to support any motion which could be interpreted as bringing pressure to bear upon a judge of any court. We should also be slow to cut across any traditional principle that has been observed in the Senate on matters such as this but I have listened intently to the submissions of the Minister (Senator Wright) in connection with this matter and I do not think that he has - anyway, to my satisfaction - proved that this is a matter that could be classified as sub judice. The court has dealt with the person for contempt and has made its finding. It has committed him to prison for having failed to answer questions asked of him with regard to funds of his union. As a result, almost a national strike has taken place. The case for the irresponsible unionist is given full coverage and plenty of space in the daily Press of Australia while at the same time the attitude of the responsible unionists is not receiving any consideration at all.
I believe that the time is opportune for this question to be debated and discussed. We of the Democratic Labor Party are here to inform the public of what we believe are the motivating factors associated with this issue. The sooner the public is informed of this, the better. It would be better for trade unionism in Australia and it would be better for the interests of the Australian public. Furthermore I contend that though the Press is permitted - and rightly so - to publicise all the facts and even to express views for and against the question of penalties on unionists who have committed breaches of the industrial code and although the public may write letters to the Press and the matter can be dealt with through other media of publicity it is farcical to suggest that we in the Senate should not discuss the matter at all.
I believe, perhaps for reasons different from those of the official Opposition, that it should be discussed and ventilated so that the Australian public can be informed of all the facts associated with it. I cannot see where we are offending or embarrassing any part of our judicial system. If I thought I were doing that I should be the last to support any motion that would have that effect. I remain unconvinced by the Minister thai any breach is being committed by discussing the motion of the Leader of the Opposition.
– Mr President-
– Order! I cannot allow the Minister to speak again unless he wishes to make a personal explanation which he would be able to make at the end of the debate.
– I wish to speak only briefly on this matter. In view of the intimations of the previous speaker it would now appear, as far as numbers are concerned, that debate is no longer necessary. Nevertheless I believe that a most important and dangerous precedent could have been set by Senator Wright in what he was attempting to do this afternoon. The Senate should carefully consider what Senator Wright was urging. As I understood the honourable senator he was endeavouring to establish a point of order that there should not be debate on the subject matter of the motion moved by the Leader of the Opposition. His ground was that the matter was sub judice. This is what I understand the Minister to have been saying. Clearly, in any reasonable meaning of ‘sub judice’ the motion proposed by the Leader of the Opposition does not offend. It is quite obvious that the provisions of the sub judice rule which have applied in Parliament to prevent debate on matters before the courts have been designed to protect the courts and the administration of justice from undue interference. That is to say, Parliament has endeavoured to ensure that no person, under cover of privilege of Parliament, should be able to make free comments on the proceedings taking place in a court. This has been done to protect those called upon to administer justice.
The motion proposed by the Leader of the Opposition makes no reference to any proceedings currently before any court. It is a motion calling for an amendment of existing legislation. Senator Wright - and I think I am quoting him fairly accurately - said that it would be impossible to discuss the motion of the Leader of the Opposition without referring to the contempt proceedings which are at present the subject of controversy and the way in which the judge determined them. This is clearly not so. At no stage has anyone suggested there has been the slightest impropriety or anything incorrect in the manner in which the courts have administered the law which caused the present situation to arise. No-one has suggested that Mr Justice Kerr, Mr Justice Gallagher or anyone else has acted at all improperly. What has been suggested and doubtless would be suggested later in the debate if it took place, is that the law under which the courts have functioned is in itself one which is not leading to industrial justice. As Senator Murphy pointed out, if you were to say that we were unable to debate any legislation because at the time the debate was taking place some proceedings were current in relation to that legislation, it would be virtually impossible for us to debate any legislation at all. I should imagine that at almost any given time proceedings are being taken in some court in relation to some enactment of the Federal Parliament.
Mention has been made of the fact that this is an urgency motion. No-one would deny that a matter of urgency is involved in this. It is certainly a matter of urgency when one considers the present economic and industrial situation in Australia. But merely to say that the present proceedings have contributed to the necessity for an urgent debate on the law which we believe has brought about the present situation is not the same as debating the proceedings themselves. In fact, there is no mention of the proceedings in the proposal. The President would be entitled to rule out of order anyone who referred to the proceedings. If it is to be successfully submitted by Senator Wright that, merely because some litigation is taking place at the present time concerning the legislation which we wish to debate, the matter is therefore sub judice and should be ruled out of order, this would establish a most dangerous precedent.
As the precedent which would be involved in the ruling to be given by you, Mr President, should be based on principle and not on the exigencies of the moment - however desperate the present situation may be - I submit that, if Senator Wright’s point of order were upheld, the ruling would have the effect of establishing a precedent whereby, if one were so willed, one would be able to prevent debate on virtually any item relating to any of Commonwealth legislation that came before this Parliament.
This matter is clearly not sub judice. There is no reference to the manner in which the proceedings were conducted. The only reference, by implication, is to the present industrial legislation. In fact, even that is not referred to specifically. What is being called for is a new approach to industrial legislation, without casting any aspersions on the manner in which the courts have administered the present legislation, or calling for action in regard to matters currently before the court.
– 1 rise to speak to the point of order, and. in doing so 1 stress for your consideration, Mr President, that there are basically two factors that ought to be considered and which ought to be relevant to this issue. The first is the SUppremacy of the Parliament, and the ability of members of Parliament to speak in their respective chambers on any matter of public concern. I would have thought that that is one viewpoint that has been stressed by members of the Opposition, and I am sure that it is a paramount right and privilege of members of Parliament. But it is equally clear that a practice has developed over the years that the Parliament and members of Parliament will not speak if the effect of what they have, to say is to interfere with what is called the fount of justice - that words will not be uttered which, coming from Parliament, may poison the stream of justice.
I reiterate this point, which was made by Dr Evatt when he was Attorney-General in 1947:
As the years have, gone by, the Parliament, having an absolute privilege and not being bound to apply the rules of contempt of court, or even the laws of defamation, both of which are applicable to comment outside this Parliament, has taken the view which I believe has been carried out in cases like the Jerger case. That is to say the Parliament does not ask ‘Is there a proceeding pending at this moment?’, but rather, ‘In all the circumstances, should a debate on a particular matter be permitted at this particular moment?’
It has been said, I think by Senator Gair, who was supported by Senator Wheeldon, that there is at this time no proceeding current.
– I did not say that.
– If I have misinterpreted Senator Wheeldon, I apologise to him. That was my assumption, after listening to what he was saying. I appreciate that one of the issues that Parliament must consider when deciding whether or not a debate on a particular matter should be permitted at a particular moment is whether or not there is a proceeding current. But that is not the only matter. There is a proceeding current, because there is a contempt order which is indefinite in its duration. His Honour, Mr Justice Kerr, when he sentenced Mr O’Shea to the confines of the gaol, did so until Mr O’Shea- was prepared to answer questions to the satisfaction of the court, or further order. It is quite clear, therefore, that the sentence is one of indefinite duration. It is not the type of order which one normally experiences - of a person being sentenced to the rising of the court, or of a person who is sentenced for a period of, say, 30 days or 6 months, in which case it may be said that the order is a final order. The court has no power to come back at some stage thereafter and alter its order. It is true that an appeal court may set aside the order or the Executive may interfere, in the exercise of its prerogative. But in those cases clearly the order is final. On the other hand, in this case it is an indefinite order.
When one considers that what the motion asks for is a discussion on ‘the urgent necessity to achieve industrial justice’, then there is implicit in that remark the fact that industrial justice has not been given. When you deal with it in terms of urgency, you look at the existing situation. The existing situation, as everybody knows, is the position in which Mr O’Shea now finds himself.
– But thousands of workers have been unable to go to work today.
– If Senator Little seeks to weaken the force of what I am saying by referring to a host of persons being unable to go to work - which I recognise as a factor of tremendous weight - I still say that it does not expressly cover the point I am making about whether or not industrial justice has been given. Justice in our community is, by and large, to be dispensed by the courts, but that does not prevent other people giving and receiving justice. However, so far as the courts are concerned - and that is the context in which this proposal is concerned - the only matter pending at the moment concerns Mr O’Shea. The terms of Senator Murphy’s motion clearly imply that something has been lack ing in regard to the treatment Mr O’shea has received, and that something should be amended with a view to improving that treatment. Following upon what Senator Wright informed the Senate this afternoon, this would involve, presumably, some application tomorrow to Mr Justice Kerr to have Mr O’Shea released.
In those circumstances, I can only submit to you, Mr President, that this is a matter in which any words spoken, any resolution of this Senate, would in fact impinge upon what would be the course of justice as it has to be administered in respect of an order which has not yet been finalised. That, in my submission, is a very relevant consideration for you in the determination of this point of order.
– Mr President, I wish to make a personal explanation.
– Is leave granted? There being no objection, leave is granted.
– I wish to state simply that I was in error, Mr President, when I informed you that a certain decision had been taken in another place. At the suggestion of another honourable senator, I subsequently made further inquiries and found that the message I had received was inaccurate.
– Before you make your ruling on this point of order, Mr President, I think there are certain things that should be said in rebuttal. Much has been said today about precedents, but I think that, after your long years in this chamber, you are about to create a precedent rather than to follow one. Senator Wright and also Senator Greenwood dealt with a particular matter and many times used an expression to indicate that it was a particular matter. I suggest that if one reads the resolution which the Australian Labor Party proposes it will be seen that it relates not to a particular matter but to a general matter. There has been much talk about the gaoling of Mr O’Shea, but that is not mentioned in the proposal. Our proposal deals with the Conciliation and Arbitration Act. Senators Rae and Anderson suggested that this was not a matter of urgency, and Senator Anderson said also that he would facilitiate a debate at some other time on whatever aspect we liked to raise. Generous though this may sound, I suggest that it is the right and privilege of an Opposition to institute a debate in the manner that it thinks fit - not as the Leader of the Government in the Senate (Senator Anderson) thinks fit. Whether he is right or whether we are right as to there being a more appropriate time to debate the issue is not relevant. The relevant point is that we have decided that we want to debate this matter today and we are using the forms of the Senate to give us that opportunity. lt. has been pointed out already that our proposal is not a criticism of what has taken place in the Industrial Court and is not an attempt, to anticipate what may happen in that Court in the next few days. This is a criticism of the law itself. We are putting up to the Government the urgent necessity to achieve industrial justice and goodwill which, after all, is what the Conciliation and Arbitration Act is all about. We hope that from the debate amendments will come to the provisions of the Act which deal with the subject matter before us today. We have heard many quotations from Dr Evatt’s remarks when he was AttorneyGeneral. I am pleased that at long last Government supporters are quoting Dr Evatt with approval. However, it would be well to quote all of his statements which appear in the book which has been quoted from so freely. Government supporters have talked about it being possible to poison the wells of justice before they begin to flow, and in so doing they were quoting one of Dr Evatt’s utterances, but I think they are rather twisting his words. The wells of justice have already flowed. The well of justice that we are trying to purify is not the Court but the Act. If this expression is examined in the context of the whole page and not the half page which has been quoted we get a vastly different meaning for the expression ‘wells of justice’. This comment by Dr Evatt follows this expression by the author:
Thus, it can be said that there is no rigid rule, but rather than common sense indicates how the line should be drawn.
It is your important duty, Mr President, to decide the commonsense approach to this. A little later, in dealing with Todd’s Parliamentary Government in England’ - our parliamentary practices flow from England - the author states:
As to the application of the rule to Bills-
That is what we are dealing with, not courts but Bills: the position at Westminster is that there is no restriction on the introduction or discussion of Bills, in either House, relating to matters which are sub judice.
Mr President, need I say more?
– I do not think the motion necessarily brings into consideration the current matter before the Commonwealth Industrial Court. As a general rule the Chair will not allow references to matters which are awaking or are under adjudication in the courts if such references may prejudice proceedings. But it does not necessarily follow that just because a matter is before a court every aspect of it must be sub judice and beyond the limits of permissible debate in Parliament. That would be too restrictive of the rights of Parliament. Within those limits, the debate may proceed.
– Mr President, rise to order before the debate proceeds. Would you please clarify for me standing order 64 which states that a period of 3 hours shall be allowed for a debate of this type? As the motion was moved by Senator Murphy-
– It has not been moved.
– It was moved and supported by four senators standing in their places. Is the debate which has taken place so far part of the overall debate for which 3 hours is allowed?
– The motion has not yet been moved.
– I want to know. I am not asking Senator O’Byrne; I am asking the President.
– Order! I point out that Senator Murphy has not formally moved his resolution. I should think that common sense would indicate that the time spent in debating a point of order would not be taken out of that time.
– With great respect, Mr President, you asked whether the proposal was supported. I suggest that it can be supported only after it has been moved.
– 1 call Senator Murphy.
– I move:
That the Senate, at its rising, adjourn until tomorrow at 9 a.m.
– Is the motion supported? (More than the number of senators required by the Standing Orders having risen in their places)
– This was done before.
– I am merely making sine.
– The purpose of this motion is to enable the Senate to debate a matter of urgency, namely:
The urgent necessity to achieve industrial justice and goodwill by providing more effective conciliation machinery for the prevention and settlement of industrial disputes and by repealing the labour injunction and related contempt provisions of the present Conciliation and Arbitration Act.
Wc can well understand the desire of the Government not to have this matter debated in the national Parliament. Millions of dollars have been lost in wages in the last few days and more millions of dollars have been lost in production. Hundreds of thousands of citizens have been on strike because they believe that there is an injustice and because they believe that the Government will not correct that injustice. They have been on strike because there exist in the Conciliation and Arbitration Act penal provisions - penal clauses, as they are called - and because these clauses amount of a system of civil conscription in Australia. This has been realised more and more and it bas been shown more and more that not only are these provisions bad but also that they work against the interests of industrial justice and goodwill. It has been shown that they are so unjust that they are breaking down. One can say that the penal provisions as they now exist are finished, that they are finished because of the manifest injustice of them. The clauses have cost the trade unions hundreds of thousands of dollars and more in costs because in these proceedings heavy costs are awarded against the unions. We know from what has been said that there have been dreadful cases in which the costs have amounted to very much more than the fines imposed on the unions. We know that basically these penal clauses are bad because what they are aimed at and how they operate amounts to a system of civil conscription.
It is believed that in this country we have a system of arbitration, but that is only partly true and that is the basis of the trouble. We have arbitration in this community - for convenience I speak of the federal level - which operates only to determine the minimum wages and conditions which should apply in industry. Above that minimum we have an area into which the Conciliation and Arbitration Commission will not operate. This has been said before in this chamber and it has been said plainly in the reports of the Commission. Any honourable senator may refer to those reports. Sir Richard Kirby has made this clear. So there is an area above the minimum which is left to collective bargaining. If there were arbitration across the whole field, that would be one thing, but the unions as well as the employers are left to collective bargaining in the area above the minimum. However, the unions are left without the protections which are given under the system of collective bargaining which exists in the United States. The employers are left in the situation that, if they do not want even to discuss a matter, they need not. If they refuse to negotiate - and some of them do refuse - there is no negotiation. Some refuse even to discuss payments above the bare minimum.
It is recognised that the unions are quite entitled to enter into collective bargaining for payments above the minimum. In that area of collective bargaining, even if it is to be left at that, why should not the unions have the same protections as exist in the United States? In the United States, where there is collective bargaining over the whole field, labour injunctions, as they are called there, were taken out. Penal clauses were not introduced by statute, as happens in Australia, but arose out of the old equity law. However, it amounts to the same thing. If a labour injunction were broken contempt of court proceedings would be instituted. In practice the operation of the labour injunctions was so bad in the United States that Federal Congress stepped in and by acts such as the Norris and La Guardia Act, took the teeth out of the labour injunctions and made provision for trial by jury of charges of contempt against unions in the few cases where they arose. Congress said, in effect: ‘You cannot have a system of collective bargaining in which the hands of one party are tied behind its back and the hands of the other party are left free.’ This fundamental point is the difficulty in Australia. Those honourable senators who are familiar with the civil conscription proceedings of the Constitution and their elucidation by the High Court are well aware that the penal clauses operate by introducing what is classically a system of civil conscription into our industrial law. Those provisions ought no longer to be in the law.
How do these provisions operate? A classical case is the case of the tramways union. I ask honourable senators to forget about the proceedings in the Commonwealth Industrial Court before Mr Justice Kerr for contempt of court. I do not want to concern hnourable senators with the merits or otherwise of that case, as I said before. That matter may have sparked off great industrial stoppages and may have led to a general flaring up, but the basic problem is the operation of the penal clauses. How did this tramways union get into this difficulty? The situation is set out in the industrial information bulletins produced by the Commonwealth. On the first page of the 1966 volume it is stated that Mr Miller, on behalf of the Melbourne and Metropolitan Tramways Board, proceeded against the union for failing to comply with an order of the Court of 23rd December 1965, by committing a breach of the Tramways Employees (Melbourne) Interim Award in connection with the operation of one man buses on the Bulleen to Garden City and Fishermen’s Bend, Melbourne, bus routes. The Commonwealth Industrial Court found the union guilty and imposed a fine, in the currency of that time, of £150, or $300 in our present currency, in each of the twelve cases. The next case arose on 17th January 1966. On that occasion the Court in its unanimous judgment again found the tramways union guilty on nine summonses and fined it $200 in each case. Again the union was directed to pay the informant’s costs.
Honourable senators opposite may say: That is all right. Obviously the union committed a breach of the law. What is it all about? Why should not the union pay?’ Any honourable senator who is familiar with the background of those cases appreciates that they involved the greatest industrial injustices that have ever arisen in this community. So unjust was the situation that when the union went to the commissioner who handles tramways matters in the Conciliation and Arbitration Commission, notwithstanding the fact that the union was on strike, the commissioner deleted the bans clause from the tramways workers award. That information appears on page 19 of the 1966 volume and the commissioner concerned was Mr Commissioner Horan. I do not think any honourable senator will attack Mr Commissioner Horan. In fact, I am sure that will not happen.
In referring to the application, Commissioner Horan said that on several occasions the Association - that is the tramways union - had attempted to have the dispute over one man buses determined by the Commission. He said that each attempt had been strongly resisted by the Melbourne and Metropolitan Tramways Board. Commissioner Horan said that as far as the Commission was aware the Board had made no attempt to have the dispute settled in any other way. He went on to say that it appeared to the Commission that in those circumstances the continuance of the bans clause in the traffic section of the award, was a hindrance rather than a help to the settlement of disputes.
– Is that the existing order?
– That is the existing order, because the Board appealed to the full bench of the Commission. The Commission refused to interfere with what the commissioner had done. Honourable senators may be aware that the proceedings continued for about 5 years in which time the tramways union tried to get into the hands of the Commission the authority to settle by arbitration disputes over one man buses all over Australia. Eventually every transport authority in Australia except the Melbourne and Metropolitan Tramways Board agreed with the tramways union. Four times the tramways union obtained an award of the Arbitration Commission and four times the Melbourne and Metropolitan Tramways Board took it to the High Court. Three times the High Court set aside the matter, saying that it was not an interstate dispute, or an industrial dispute, or was not this or that. Finally the tramways union succeeded in having the matter placed into the hands of the Commission so that each time a dispute on these matters arose, instead of it being dealt with through industrial dislocation, it could be dealt with by arbitration.
Today in answer to Senator O’Byrne, Senator ‘“‘right said that it is the duty of the Government to uphold the decisions of the Commonwealth Conciliation and Arbitration Commission, but not once did the Government in the cases I have mentioned go into the High Court to endeavour to uphold the decisions of the Arbitration Commission. On four occasions the tramways union went to the High Court, but not once did the Commonwealth Government take a part. It left the matter to the union to expend its funds in trying to uphold the decisions of the arbitration commissioners who are appointed by the Government. Is that doing the right thing by the arbitration system? The tramways union had to spend its own funds. Honourable senators will appreciate that when other matters have been determined - perhaps matters that are not of such great importance as the authority of the Arbitration Commission - the Government has been prepared to go into court or to pay the costs involved, but in the cases I have detailed the union was left on its own to try to fight to uphold the arbitration system.
If ever there was a case when the tramways union was on the side of the angels in arbitration it was in this case. Yet when it came before the Commonwealth Industrial Court, for reasons with which Senator Wright is familiar, the judges of the Industrial Court said: ‘We cannot be concerned about the industrial merits of the matter. We can only look at the law. There is the bans clause. It has been broken and you are fined.’ That was the judicial consideration that operated. That was how the substantial part of the fines was imposed. 1 ask honourable senators whether that is a fair thing. When the Government was told of the events about 18 months ago and did not deny that they had happened and did not deny the injustice of the matter, it was asked to remit the fines. But the fines were not remitted and the attitude of the Government was: ‘The Court made the order.
Let the union pay.’ The union then said: If you will not remit the fines, will you let us pay them off at the rate of $100 or S200 a month?’ the Government said: ‘No.’ I am not sure of the terms of payment offered by the union. It may have offered three or four times as much as 1 have mentioned. The union was denuded of funds through these proceedings.
Whatever else had happened on other occasions, in this instance Commissioner Horan had said that the union was trying to get the matter settled by arbitration. The Melbourne and Metropolitan Tramways Board was opposing the union but was not suggesting a method of settlement. For once, by offering to use arbitration methods of settlement, the union got itself into difficulty. I do not know what the stories behind all the other matters are. But [ know that there is extreme resentment throughout this community because of the way in which these penal1 provisions are being dealt with.
– There is greater resentment at the way the unions have been approaching what they call the repeal of them.
– Does the honourable senator think that other people have not said the same as the unions are saying? Does he think that we have not had men such as the late Mr Justice Foster pointing out how badly these provisions were operating, especially in the light of the fact that now there is a division of the court so that the commissioners are trying to solve disputes and to lay down awards and, away from them altogether and not concerned with industrial considerations, is the Court, dealing with matters and refusing to be concerned with the industrial merits? Maybe that is right. I am not saying that it is wrong according to the Constitution. But it seems to be a not very satisfactory way of producing industrial harmony and of having justice and good will in industry.
Let me quote what Mr Justice Foster said. Do not let anybody say that this is the first time the Senate has heard this, because it has heard this before and the Government has heard it before. Had the Government set out to do something about these matters, it could have avoided this trouble. This is what Mr Justice Foster said, as contained in eighty-seven Commonwealth Arbitration Reports at page 932:
I have again and again expressed my reluctance to put ‘bans’ clauses in awards, even under the old law. The essence of conciliation and arbitration is goodwill; ‘bans’ clauses are the antithesis; not only do they jeopardise good relations, but they impede my work as an arbitrator. The present separation of the judicial from the arbitral function makes me, if possible, more reluctant than ever to concede to the applicant’s plea for this variation. I, as the arbitrator, have now lost control of the consequences which follow the insertion of bans clauses.
Surely something had to be done. It was apparent that something had to be done. So, in 1965, under pressure from the trade union movement to have a cooling off period, the Government came forward with an amendment to the Conciliation and Arbitration Act. We heard what the Minister for Works (Senator Wright), who represents the Minister for Labour and National Service (Mr Bury), said today. He said: You should not believe the unions when they say that it is unjust, because here we have this lovely cooling off period of 14 days.’ Let me tell the Senate what the Minister said on another occasion. I suppose it is fair enough to quote him. At the moment I will not tell the Senate what I said. This cooling off period amendment was a confidence trick if any kind of amendment was a confidence trick. The Government knows that it was a confidence trick because it has made no difference at all to the operation of these laws. If anything, they operate worse now than they did before the 1965 amendment, because that amendment did nothing. This is what Senator Wright himself said as reported at page 877 of Hansard of 18th May 1965:
This clause is a deplorable, weak and pitiable provision which will introduce confusion and lead to teasing delays. Instead of promoting a period of calm in which the parties may get together, it will tie the arms of the referee behind his back while the boxers box on. I should like to develop my researches a little to ascertain where the idea for inclusion of this futile clause originated.
– Who said that?
– The Minister himself; the Minister who stood up in this Parliament today and, in answer to a question, said: ‘What have the unions to complain about? They have a cooling off period. Everything that they have asked for has been done*. One only has to read the legis lation to see how correct the Minister was when he described it in the way he did. I refer to section 109a. The Government put in a new section. It is just laughable. I believe that the Minister described it in fairly apt phrases. Of course, he was not a Minister then. Perhaps he was a little more impartial. Senator Cohen and I described it in perhaps not as colourful language, but I think we also showed how useless it was, how futile it was and that it was only deceptive to put it in the Act. I said:
It says a lot for the patience and forbearance of the Australian Labor Party and of the trade union movement that they are prepared to welcome even so feeble an attempt to cut down the jurisdiction to issue labour injunctions as this Bill represents.
Of course, it was never intended to do what it was supposed to do. When one looks at section 109a one sees, as was pointed out in the debate, which was at length, that it was just a joke. It could be just walked through by those bringing the proceedings. They could avoid the cooling off period. Members of the Government parties were aware of all these matters. Let anyone who is aware of the industrial oases say where these provisions have ever been utilised to prevent the kind of dislocation that has occurred. We know that they have not been so utilised.
We live under a system of industrial conscription which, as it has been operated, is leading to more and more resentment. The people have shown that they will not tolerate it. It is of no use-
– Which people have shown that?
– The people of Australia are a law abiding set of citizens. When they become so steamed up and when it percolates through to them that there is injustice in these provisions and that we have laws which are putting the unions in a straitjacket and which enable the unions to be fined in circumstances such as those of the tramways union, how can anyone stand up in this place and justify what was done to the tramways union? What kind of a system is it which permits that to be done to the union when it is trying to uphold arbitration? If it is said that this was a special case or that this was an unusual application of the law and, of course, that it will be corrected, then how is it that the Government of the day, knowing those facts and having them brought to its attention, failed to do anything about the matter and just stood by? Ministers of this Government were well aware of the injustice that was done to the tramways union, and they let it go.
– Did anyone from the honourable senator’s Party think of having the liability to pay the fines removed? Did anyone present a petition?
– That is a very good question. Senator Greenwood is very good at this sort of thing. He has done it again. The answer is: ‘Yes, 1 did’. J went to the Attorney-General, Mr Bowen, at the request of the tramways union, and I went to the Minister for Labour and National Service, Mr Bury. I pointed this out to them. 1 asked them to remit the fines. I asked them to accede to the offer of the tramways union to pay these fines by instalments. The offer of the tramways union was rejected. But that focussed attention upon the necessity to deal with these provisions.
We must have a better system of conciliation machinery, ls the Government prepared to say that it is satisfied that this is how matters should be dealt with; that there must be great national industrial dislocations? Or will the Government turn around and do something about it? ls it satisfied that this is the way the system should be - that unions are to be denuded of their funds; that they are to be driven to desperation and their members are to be driven to desperation; and that they have to call their members out on strike? They do not want to do that. It costs their members money. But they will insist upon the right to strike because, as has been wel’l said, the right to strike is what distinguishes the free man from the slave. Many men - not only those who have come from the ranks of labour - have upheld the right to strike. President Eisenhower spoke of his upholding of the right to strike. He spoke before an assembly of labour leaders in New York. He said that the right to strike must be retained. Churchill spoke of the necessity to retain the right to strike.
No matter what is done, the Australian workers and the Australian trade unions will not give away this right to strike. What we need in Austrafia, for the sake of the workers as well as for industry, in a reasonable system in which the emphasis is placed on conciliation. The Government has to face up to the fact that it has left outside the field of arbitration the area above the minimum, lt has left it to collective bargaining and has not supplied the machinery to enable negotiations to be conducted fairly in that area. That is the root cause of the problem. That is why these issues arise and why they will continue to arise, ft is no use the Government thinking that now this $8,000 has been paid that is the end of it. lt is not the end of this matter. There will have to be an alteration of these penal provisions. Now that the trade unions and the Australian public are alerted to what these provisions mean they will no longer tolerate their continuance in this form. The Government has neglected this situation for years. It has allowed matters to get into this state.
Now is the time for the Government to face up to the matter and listen to what has been put here. Some of these submissions have been made outside. The Government should listen to what has been said and, in the interests of the nation, should be prepared to cast aside the views it may have to the effect that it is better to let these things drift on in the belief that that may help the Government; that if there is industrial dislocation it will rebound in favour of the Government. I do not know whether that is true but if it is true it is a mean and contemptible thing for any government to do to this nation. We have a problem that must be solved. The solution of that problem will necessitate exactly the action that is provided for in this motion; it will necessitate better conciliation machinery and the abandonment of labour injunctions as they have- been abandoned in virtually every field in the United States of America, because of their injustice. Therefore. Mr Acting Deputy President. I commend the motion to the Senate.
– Mr Acting Deputy President, it would be unfortunate if I were to enter into competiton .and deliver a speech on a heated, excited and irresponsible basis such as was delivered by the Leader of the Opposition (Senator Murphy). I will maintain my usual caton in the Senate when dealing with matters pertaining to industrial unrest. I remind the Senate that when asked questions on these matters as to current industrial disputes of a lesser order than those that are unhappily being experienced today, I have uniformly adopted the approach of not permitting discussion to emanate from me in any way that could inflame the minds of men acting en masse with regard to a matter that they believe justifies a sense of injustice. These things, I submit, should be well understood. lt is implied that the Government would see in an occasion of unrest something that it would desire. I should have thought that that was a suggestion too puerile for words. Nobody carrying any part of the responsibility of government could contemplate industrial unrest of the dimension reached today without a sense of great anxiety and intense regret because the Government realises that this strike action on the part of unions is creating a dislocation in the lives of our citizens that is hard to bear economically. It also creates such a sense of the lack of order and 1’aw in the community that our people just forget their pride in the community and are dismayed that we could have such disruption and chaos in Australia.
Senator Murphy has introduced this motion as a matter of urgency. He cannot escape the imputation that it is for the purpose of capturing the occasion for his own political causes, with the very great likelihood that his inflammatory speech will engender a feeling of resentment amongst the participants in the strike so that it will make it increasingly difficult to find a solution as early as would be desirable. It is quite well known that the President of the Australian Council of Trade Unions urged restraint by all sections of industry, on both sides of industry, in a public statement issued following the consultations on Sunday. It is equally well known that the President of the ACTU at the present time is awaiting a meeting of his executive at 10.30 tomorrow morning to consider most important propositions that will be put before that body which carries a fairly important responsibility in regard to these matters. Of course, that body has to come to a decision with regard to this matter tomorrow morning.
– That is only this dispute. We are talking about the future. That is why this resolution was moved today.
– I did not hear what the honourable senator said.
– We are not speaking about the present case.
– I ask the honourable senator to pardon me. With respect, I will discuss his interjection later. What I wished to say was that I want honourable senators to understand the experience that is behind Mr Monk’s attitude and his responsibility. I should have thought that everybody on the Labor Opposition side would recognise that the greatest mistake that can be made, when men en masse are considering strike action, is to have public discussion with regard to it. It is very difficult for people - even without an inflammatory tone of speech such as that used by Senator Murphy - who think they have a sense of injustice, not to have their judgment made more difficult to resolve by public discussion of industrial differences.
– What about the penal clauses?
– I will come to the substance of the penal clauses. At the moment, if you do not mind, I am presenting to you considerations which ought to persuade you to consider them rather than to interject. I will speak in my own way. These things are particularly important, having regard to the widespread nature of the disputes already announced. They are also of particular importance in respect of the vital matters that we discussed earlier on the point of order. Even if it is in order, as the President has ruled it is, to discuss this matter in this place, the tone and substance of the discussion is a matter for each individual’s responsibility. For my part, when a Justice of the Commonwealth Industrial Court has to deal with the particular order that is to come before him, most likely within the next few days, I would think it quite apparent that a debate upon this subject is calculated to produce pressures that are extraneous to true justice as a judge decides it. Let me come to the actual principle of these provisions.
Sitting suspended from 5.45 to 8 p.m. (General Business Taking Precedence of Government Business)
The ACTING DEPUTY PRESIDENT (Senator Dame Ivy Wedgwood) - Pursuant to the sessional orders, general business takes precedence over an urgency motion on Tuesdays after 8 p.m. Accordingly, the debate must be interrupted. Normally, general business would be taken first, but on today’s notice paper there is an item of business which takes precedence of general business and must be first considered.
The ACTING DEPUTY PRESIDENT -
Is leave granted?
The ACTING DEPUTY PRESIDENT -
Leave is not granted.
Motion (by Senator Murphy) proposed:
That so much of the standing and sessional orders be suspended as would prevent the motion for adjournment to debate a matter of urgency being further considered.
– The Leader of the Opposition (Senator Murphy) has moved that the standing and sessional orders be suspended. The procedure to be followed by the Senate tonight complies with the terms of a motion that emanated from none other than the Leader of the Opposition himself. The Senate will recall that last year the Leader of the Opposition requested transposition of the day upon which general business - that is to say business emanating from honourable senators and not from the Government - was debated. He sought to make it compulsory for the Senate to consider General Business on each Tuesday night of the sitting. The Senate will recall that there were several senators on this side of the House who opposed that request on the grounds that it was an undue assertion on the part of the Leader of the Opposition to claim audience at the time he chose. 1 did not share that concern. 1 hope it is without disrespect to those who shared that concern for me to say that I enjoyed my usual indifference to such matters. But that is past history. The Leader of the Opposition, with the support of the majority of the Senate, having geared the business of the Senate to his wishes, specifically provided that Tuesday night should be devoted to consideration of general business.
Notwithstanding the pendency of any urgency motion such as was entered upon this afternoon after a very cautious debate as to the propriety of such a motion, the Standing and Sessional Orders provide - and these are the Standing and Sessional Orders proposed by the Leader of the Opposition and accepted by the Senate - that on Tuesday nights at 8 p.m. senators other than Ministers, who have business on the notice paper, shall have an opportunity to engage the Senate in consideration of their proposals. But because we have not finished debating a motion which the Leader of the Opposition has espoused with the heated affection for which he has become so noted, he does not wish to see the Senate proceed on the calm, mild tenor of its ways. The Leader of the Opposition wants his motion, which is for the adjournment of this House until 9 a.m. tomorrow morning as a protest against the injustice of certain provisions of the Conciliation and Arbitration Act. to transcend the claims of private senators to have the Senate consider matters which are listed under general business. These are matters that they are entitled under the Standing and Sessional Orders to have considered on a Tuesday night. The Leader of the Opposition wishes to put the machine into gear so that his views and his views alone will be heard. This is a piece of impertinence and presumption that we should not sustain.
This afternoon we debated a motion of the most indelicate indiscretion relating to a matter affecting the lives of many hundreds of thousands of people. The Opposition wants the debate to be continued tonight, contrary to the Standing and Sessional Orders the relevant portions of which have been put into their present form by Senator Murphy himself. The Senate has laid down that on Tuesday nights general business shall be given precedence and honourable senators come here prepared to discuss the matters which are listed for consideration under that heading. The Senate should not permit motions to be put up to it by Senator Murphy according to his mood.
– And his needs.
– I prefer to call it his political exigencies. The leaders of the left wing are out to disrupt and defy the moderate section of the trade union movement. We all know that this motion is in defiance of the moderate section of the trade union movement.
– Does the Minister not wish to finish his speech?
– The Leader of the Opposition is trying to rile me by imputing that the Government does not want to debate the penal sections of the Conciliation and Arbitration Act. As the Prime Minister (Mr Gorton) announced in the other place this afternoon, the Government will give the earliest opportunity for the fullest debate that the Opposition requires upon the principles of the penal sections, but it will not allow the debate to be held in the context of industrial unrest and disruption that can so damage the equities and the lives of our community.
Those who exercise responsibility in the trade union movement are due to meet tomorrow. In the light of events that have occurred today and in the light of the whole problem let them make a decision in the quiet of their councils. They should not be agitated by debate from a section of a political party. These are considerations that should induce us all to comply with the Standing Orders and the sessional orders which provide for the sequence of business. I submit that Senator Murphy is not entitled to dominate this place with a caucus decision supporting him when we have a sequence of procedures by which our business should be considered. I urge all sections of the Senate not to support him in his effort to interrupt the procedures that are laid down by the Standing Orders and the sessional orders.
– I support the point of view which has been expressed by the Leader of the Opposition (Senator Murphy). I am rather surprised to see Senator Wright cast in the role of an advocate of the moderate trade unionists because, if I remember his history in the Senate correctly, he has been a very militant and aggressive member of the Government. Until he became a Minister I could not see any prospect of Senator
Wright’s becoming moderate. He has no permission to speak for the trade union movement. I suggest that his comments about Senator Murphy are quite unwarranted because, after all, Senator Murphy is speaking on behalf of members of the Australian Labor Party in this chamber. He is entitled to do that and, what is more, in doing so he is carrying out our policy which is to modify and in fact eliminate the penal provisions of the Commonwealth Conciliation and Arbitration Act.
– There is no question of modification. You want them repealed.
– If you will just listen to me I will tell you-
– Why do you not state what your platform-
– I am telling you what our platform is. We have another very militant member on the Government side who wants to make Cabinet rank. Every time a matter affecting the trade unions is discussed in this chamber he becomes the most reactionary person in the Parliament. All he does is attack Senator Murphy who is simply putting forward the role and aims of the Labor Party. As most honourable senators know, in the States which have a Labor government-
– Where is that?
– When we were in power in South Australia we started a process of conciliation. That is on the parliamentary record. When given the opportunity we will continue that process. On behalf of the Government Senator Wright attacked Senator Murphy. What is the present situation? You would think that we were having a minor industrial stoppage which concerned the waterfront, the railways or the metal industries. In fact, we are having a national stoppage against the Commonwealth Conciliation and Arbitration Act. This is not an issue which concerns a minor industrial stoppage. This is a major national matter - a matter which this Parliament should be discussing despite the fact that negotiations are going on at the present time. In the past when the Act has been amended there have been many occasions when this matter has been debated. Today we have been debating the penal clauses. Negotiations have been going on in relation to sections 109 and 119 of the Act and we have debated them in this Parliament but not in an atmosphere of criticism of the Government. It seems to me that today the Government raised every obstacle that presented itself to stop debate on an issue which should be debated in this Parliament.
– The Government has said that you can have a debate whenever you like except at a time of crisis.
– Senator Rae would not know much about working for his living or about the Act. The contribution he will make will not be worth very much but there are senators on his side who will make a worthwhile contribution. The Government should give the Opposition the opportunity to canvass the propositions that it has put to the Senate. As 1 have pointed out, there have been other occasions when action has been taken in the Commonwealth Conciliation and Arbitration Commission and in the Commonwealth Industrial Court relating to sections of the Conciliation and Arbitration Act and the Parliament has continued to discuss them. On this occasion, however, for some reason the Government feels that this matter should not be debated. As everyone knows, there is widespread industrial unrest throughout the States. Workers in New South Wales, Victoria and South Australia are on strike. Almost all workers in those States, moderates as well as so-called left wing trade unionists, are involved.
There is an additional aspect which should be raised. One of the things for which we owe a debt to Senator Murphy is that after many years he negotiated a facility which provides that on Tuesday nights we may discuss General Business. It is obvious that the Government feared what the Opposition might do if it were given the opportunity to raise General Business. It is true that some honourable senators may waste the time of the Senate but primarily we owe a debt to Senator Murphy for giving us the opportunity to raise General Business on Tuesday nights. Today we embarked on a very important debate which might continue for days. Why should not this Senate avail itself of the opportunity to canvass the issues in dispute and provide a vehicle whereby the Government may be induced to announce that it intends to eliminate some of the penal provisions of the Act?
– I should like to reintroduce a little restraint into this discussion because we are dealing with a matter relating to the procedures of the Senate. As Senator Wright very properly pointed out, on Thursday 21st March 1968 Senator Murphy, following a motion that I had proposed in relation to the conduct of general business which was to be held on Thursday evenings, moved an amendment in these terms:
– Before you read that tell us what the motion was.
– My motion was as follows:
That on all sitting days of the Senate during the present Session, unless otherwise ordered, Government Business shall take precedence of all other business on the Notice Paper, except Questions and Formal Motions, and except that General Business take precedence of Government Business on Thursdays, after eight p.m.
– Will you read that part again about ‘unless otherwise ordered’?
– Do not anticipate me. I will come to that. This is reflected in the amendment which the Leader of the Opposition (Senator Murphy) moved and which was carried. It provided:
Leave out - ‘and except that General Business takes precedence of Government Business on Thursday, after eight p.m.; and that, unless otherwise ordered, General Orders of the Day take precedence of General Notices of Motion on alternate Thursdays’, insert, ‘and except that Genera! Business take precedence of Government Business and any motion for Adjournment to debate a matter of urgency-
Note this - under Standing Order 64 on Tuesdays, after eight p.m.; and that, unless otherwise ordered, General Orders of the Day take precedence of General Notices of Motion on alternate Tuesdays’.
If I may use a well known phrase, Senator Murphy is hoist on his own petard. He cannot have his cake and eat it too. Now he is confronted with the situation in which, on a Tuesday night, he wants to continue debate on an urgency motion.
– As otherwise ordered.
– As otherwise ordered. I presume that after he and others have spoken there will be a division. That is a simple solution of the problem. At least it will preserve the dignity of the Senate in relation to the Standing Orders and the sessional orders. I am perfectly happy that that should happen, I only want to make one reference - I do it with some reticence - to statements that have been made by honourable senators who have spoken since 8 o’clock tonight. I repeat that in a different atmosphere - in an atmosphere in which the Government considered that such a debate could not prejudice matters before the Court in any conceivable circumstances - T as Leader of the Government would be happy to facilitate a debate in terms of the motion moved in the Senate this afternoon by Senator Murphy.
– I rise only because I am rather intrigued by the attitude of the Minister for Works (Senator Wright) tonight. He reminded me of the days when, occupying other seats in this chamber, he became rather florid and opposed practically everything put up by anyone except himself. He was really his old self again. He certainly brought back memories, to me, of when he used to speak against the Government and then walk out on the votes on those debates. T thought 1 had forgotten those times. Of course, when it suits bini to adopt this attitude to win a point, he will revert to such action to win the point. Those things readily came to my mind. He talked about the specious case presented by Senator Murphy, who moved the motion. I do not think anyone could say that the speech made by Senator Murphy on this occasion was specious in any way.
Last year the Senate did decide that general business would be debated on Tuesday night. If one examines the general business on the notice paper - I suppose one would start at No. 1 - one sees that Senator Murphy has the first item on the paper. Therefore 1 think that surely, with the nation as it today, we should debate the urgency morion. We all regret the present state of affairs. I regret that Senator Wright saw fit to adopt the method he usually adopts when he has a bad case, of accusing everyone except himself of being near enough - I do not know whether he actually used the words often used by bis Party when campaigning prior to an election - to a Communist or sympathisers of that Party, which is what his Party calls those who oppose it. I see no reason why the Senate should not continue with the debate. 1 believe it is important that we should. The matter should be debated so that the people outside will have at least an opportunity of judging the views and the expressions of those honourable senators who are fortunate enough to get the call to debate the matters that are affecting us today. 1 do not want to continue much longer. 1 would like the debate to continue. I recognise that to suspend the standing orders a certain number of votes have to be obtained. I hope that those on the other side who want to take part in the debate will give the Senate the opportunity to continue the debate. I hope that in future Senator Wright will continue on in the manner in which he has acted since he has been on the front bench because 1 think that suits him much better than the bad tactics he adopted prior to his being on the front bench.
Senator McMANUS (Victoria) [8.25J- 1 will not detain the Senate for very long, but on behalf of the Democratic Labor Party I want to say that we believe that this debate should continue. Australia is under the spell of a very severe national crisis which ought to be discussed in the Parliament of this country. We know that discussion on this very important question by most of the media of the country has been focused on the attitude of the small rebel group of unions which precipitated the trouble in Victoria, while the stronger and more moderate section of the trade union movement, to a large extent, has been deprived of a voice. We hope to have the opportunity to put their case. I point out that one union has been fined probably as much if not more than any other union in this country. I refer to the Federated Ironworkers Association. I understand that the leaders of that union find it practically impossible to get any publicity in the Press because they are not on the side of the rebel unions which caused the trouble. I think an opportunity should be given to the other side - of responsible unionism to put its case and we ought to continue this discussion.
– 1 can well understand the attitude of Senator McManus, who is speaking on behalf of the Democratic Labor Party in the House, because his argument has a certain validity. Matters of high crisis are evolving in Australia, but the*; matters of high crisis that are evolving in Australia are in the stage connoted by the verb I have used - evolving. The situation has not reached a crisis point at present, as was demonstrated this afternoon. The point 1 wish to make - and I wish to make it with all the emphasis that I have at present - is this: There is, and we are all aware of it, a violence abroad in Australia at present. This violence that is abroad in Australia at present can be most easily seen - not because it wholly relates to this element to which 1 shall refer in a moment - as what 1 describe as the student violence in Australia at present. I am not singling out the students for this because of their expressions of violence. The expression of student violence - I shall return to the position of the Senate in relation to this in a moment - is expressed in the belief that if one desires to overthrow a law that exists one must overthrow that law by violence. That is the problem confronting Australia at present. I shall translate that statement into terms of Senate practice. The Senate has a law by which its procedures shall be maintained in a lawful way. The Senate has a practice by which its procedures and the good government of this country shall be conducted in a lawful’ way. But Senator Murphy introduced into the Senate a new concept that the law of the Senate can be overthrown by violence - by the mere numbers that exist from time to time.
– Because some persons reading the record may take the facetious remarks of the honourable senator seriously, I ask that those remarks be withdrawn.
– Order! I shall not ask the honourable senator to withdraw his remarks because of the way in which they were said.
– He said that I have introduced a concept that the law of the Senate can be overthrown by violence. 1 ask that he make clear that that is a facetious remark. If he is serious I ask that he withdraw it.
– I think we must ask Senator Cormack to state whether or not his remark was facetious.
– I am well known for not being facetious. I add that the violence was a violence of numbers. By a simple situation that occurred in the Senate an opportunity was taken, by numbers, to change the law of the Senate in contradiction to the law that had existed for 67 years. To illustrate this - and it is within my province to do so - I point out that for the convenience of Senator Murphy in the pursuit of that which he may honestly believe, the procedures of the Senate were changed. Though senators sitting on this side would not agree with the beliefs of the Leader of the Opposition (Senator Murphy) they freely agreed that he should have the opportunity to deal with general business on Tuesday night instead of on Thursday night. The situation arose as a matter of personal convenience for Senator Murphy in the first place and the personal convenience of honourable senators sitting behind him. 1 suggest that he now wishes to distort the orders and procedures of the Senate to suit the convenience of the personal political point of view that he and the senators sitting behind him represent.
– How does the Democratic Labor Party get into this?
– I am addressing myself not to the Democratic Labor Party but to Senator Murphy.
– We are the numbers.
– This is the numbers game. It is not possible to conduct the affairs of this nation when the laws of the Senate which have met such a situation from time to time for over 60 years, as was foreseen by those who determined the laws of the Senate, are being distorted, overthrown or destroyed in the personal interests of politicians - whether senators, or those outside behind the senators is not a matter at issue. The Senate itself is not the House of Government. This is a House of review. Senators are expected to stand above the hurly-burly of events and examine what is produced in another place - the House of Government. It has been freely stated tonight by the Government Leader of the Senate (Senator Anderson) that he, representing the Government here in the Senate, will provide an opportunity for full debate on the matters which apparently now concern the Opposition. Adequate and ample time will be allowed for this matter to be thoroughly debated. This is not convenient to the Leader of the Opposition or to those who sit behind him. Having established an authority to deal with these matters on Tuesday night senators opposite now wish to tear up the law of the Senate once again, in order to provide themselves with political advantage, j suggest that this is not to be tolerated. This destroys the functions of Parliament. It may be permissible in another place, the House of the people, but it is not appropriate in the House of review, this Senate. I suggest that Senator Murphy, having had his say earlier this evening, should abide by the offer of the Leader of the Government in the Senate that he will provide in due form and under the law of the Senate an opportunity for the Opposition adequately to express the views that it wishes to put before the Senate.
– I should like to join in this debate because I propose to support the resolution that this debate proceed. I think it is a most important debate which will take place during the time of an industrial crisis.
– lt is a social crisis, not an industrial one.
– 1 do not know what the unions are if this is not an industrial crisis. However. 1 cannot understand why the Government should stand shivering on the brink of saying something on this question. This is the time when strong leadership should be given and for that reason this Parliament should have the right to express itself. That opportunity should be given. I might want to express an opinion for reasons different from those held by people on the other side. This is a democratic house of Parliament and the Senate, despite what Senator Cormack said, is not merely a House of review. It is a House with all the powers, of the other House excepting those involving financial legislation. It has the right to initiate legislation and it is not meant to be a rubber stamp. As far as I am concerned, this is a crisis which should be debated. As Senator Gair so ably put it. one side has had all the publicity. As far as I am concerned, this is a serious matter. To me it indicates a studied effort by certain leading Communists like Aarons and the man who is in gaol, O’Shea, to upset the peaceful way of life and industry in this country. It is for us here to say what we think and to give some leadership to the people. I am quite confident that the great bulk of the Australian people are strongly opposed to this industrial action and by speaking strongly on behalf of the rightthinking people we shall certainly be speaking on behalf of the majority of the people of this country.
– Two factors concern me, which is the reason I want to take a little time in this debate. One is that last year, I think, we had the spectacle of the Senate refusing to uphold a ruling that you, Mr President, gave in strict conformity with Standing Orders. This related to standing order 448, which provides that if no notice is given and Standing Orders are to be interfered with there must be a majority of at least 31 to 30. What happened? This majority was not obtained. You ruled rightly against the motion and your ruling was disagreed with, to the undying shame of the Senate. I have never been so disgusted with the happenings in the Senate as I was that night. If we find tonight that the Opposition has not its 31 votes and the President rules against it I hope that honourable senators opposite will have regard to the decency of the Standing Orders of the Senate and uphold the President’s ruling.
The second point is that the Leader of the Government in the Senate (Senator Anderson) has told the House firmly and without equivocation that opportunity will be given to debate this serious and important matter. He has given this undertaking. To carry on debate of the motion that we started to discuss this afternoon would have in the present circumstances and under present conditions a most serious effect indeed on the ultimate decision that will be reached in the negotiations that are taking place to try to effect a settlement of the present industrial dispute - a settlement in the interests not of the Australian Labor Party, the Liberal Party or the Australian Country Party, but in the interests of Australia. I say to senators opposite that if they are worth their salt they will put their country first and recognise this. That is another reason why I say that the motion moved by the Leader of the Opposition (Senator Murphy) should not be supported. I sincerely hope that we shall find that the
Government’s view on this matter will be upheld and that the Government and the trade unionists - not the Commos and leftwingers but the big majority of responsible trade unionists - will have an opportunity to try to get industrial peace in this country.
– in reply - Mr President–
– The honourable senator will be closing the debate?
– Yes. I understand that no-one else wishes to speak on the motion. Has anyone ever before seen the spectacle of the Government of the country being conducted in such a fashion? We say that the Government’s policy has produced industrial dislocation on a grand scale, involving hundreds of thousands of our citizens and millions of dollars in lost wages and lost production. After the case was put, the Minister for Works (Senator Wright), representing the Government, spoke for about a quarter of an hour opposing the continuance of the debate. He does not want us to hear what he has to say on behalf of the Government; that is what he is doing. He has the opportunity to speak. We are prepared to have the general business of the Senate invaded in order to hear what the Government has to say and what this House has to say on this great national crisis; but the Government wants to run away from it and the Minister wants to censure himself. Have you ever seen such a spectacle? The Minister comes in and talks nonsense about the Leader of the Opposition - that is, myself - representing some section of the Labor Party. I was elected by the Federal Parliamentary Labour Party, on a free and democratic vote. That is more than the Minister can say. Who elected him? He was appointed by one man. Do not talk to the Senate about anyone representing sections of a party.
Senator Cormack rose and said: ‘You are interfering with the law of the Senate.’ Does he know that the Senate has the power to order its own business, and that on 21st March last year it passed a motion saying when we would sit and when general business would be heard, unless otherwise ordered. Those are the critical words - unless otherwise ordered. This would involve the Senate changing it by a simple resolution. This has been done many times on Government initiation. Sometimes the Government has wiped out general business altogether. We have sat at different hours and have done what we thought fit, according to the majority in the Senate. That is what is proposed tonight. However, Senator Cormack went further and said:’That may be; but we made that decision, and we freely agreed to it.’ They quite freely agreed to it, Senator Cormack did. But I note on page 24 of these journals that there was a vote on general business being dealt with on Tuesday night, and Senator Cormack voted against the motion I put - as did the rest of his colleagues. Is that not right? The Senator now is conceding that what he put to the Senate was wrong. I am glad to see that he has the decency at least to admit that.
This is a great national issue and the Senate is entitled to decide how its business will be conducted. I agree with the Leader of the Government when he says that the sensible thing to do is to put this to a vote so that we can decide what we think is important for us to consider. If a great national crisis is confronting us, this chamber along with the other chamber should give leadership to this country. This is the proper mode of doing it, and I ask the Senate to support the motion.
That the motion (Senator Murphy’s) be agreed to.
The Senate divided. (The President - Senator Sir Alister McMullin)
Motion (by Senator Murphy) proposed:
That the ruling be dissented from; (Senator Murphy havingsubmitted in writing his objection to the ruling)
Motion (by Senator Murphy) proposed:
That the question requires immediate determination.
– No debate is allowed.
That the question requires immediate determination.
The Senate divided. (The President - Senator Sir Alister McMullin)
Question so resolved in the affirmative.
– If I may speak to the motion very shortly, this is a matter which arose once before in the Senate on almost precisely the same kind of motion to suspend the Standing Orders. On that occasion the same kind of ruling was given by you, Mr President, but the question was resolved in the negative because of the provisions of standing order 448, which states:
In cases of urgent necessity, any Standing or Sessional Order or Orders of the Senate may be suspended on motion, duly made and seconded, without Notice:
Then follows a proviso:
Provided that such Motion is carried by an absolute majority of the whole number of senators.
On the last occasion the Senate look the view, and the President so ruled in accordance with the decision of the Senate - although we all understand that it was not what he had originally ruled - that the standing order prevailed. After a vote of the Senate was taken he ruled, in accordance with that decision, that the question was resolved in the affirmative. Honourable senators will recall that debate which was in relation to the site for the new and permanent parliament house. The question was whether the debate should proceed on the Wednesday after the Government had changed its mind and decided that the debate would not take place on the Wednesday. The basis of the contention of those who argued that an absolute majority was not needed was the provisions of section 23 of the Constitution which states:
Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote.
The section then goes on to state what should happen when there is an equality of votes. The Constitution of the Commonwealth commands that questions arising in the Senate shall be determined by a majority of votes. If anyone wanted to amend the Standing Orders to provide for notice or for all sorts of things he could do so, but if a question is put to the Senate it has to be decided by a majority of votes. In our contention that is the law of the land. We contend that it is the Constitution, that it is binding on this Senate as well as on all courts, judges and people of the Commonwealth, and that that law should be observed. I ask the Senate to support the motion, consistent with what was decided by the Senate at the end of last year after a full argument on the matter which went on for many hours.
– Like the Leader of the Opposition (Senator Murphy), I want to speak only briefly on the matter. I have in my hand a copy of a legal opinion given on this very issue by the learned Attorney-General, Mr Bowen, Q.C., and by the Solicitor-General for the Commonwealth. This document, which has been circulated to all honourable senators, negatives the arguments stated by the Leader of the Opposition. If this matter is going to develop into a legal argument, at some stage I shall ask a Minister who may follow me in the debate to read the whole of the legal opinion. However, I do not think that will be necessary. I believe that there is some validity in the argument in favour of bringing this matter to a vote, but I would not want to be provoked into reading the legal opinion that has been given in respect of this situation. I hope that what I shall say will be to the point. Here we have a situation in which the Presiding Officer has ruled in accordance with standing order 448. The Leader of the Opposition has dissented from his ruling.
I would have thought that when there is a law, it should be obeyed. If the law of the jungle is to be followed, the Standing Orders will be thrown into the waste paper basket and it will be a case of rule by guess and by God. I suggest that is the situation in which we now find ourselves. We were confronted with it once before, in the course of debate on 22nd August 1968.
At that time an almost identical situation was created. The President acted according to the Standing Orders to which we all give service, or lip service, according to how it is looked at. Senator Murphy moved a motion of dissent and with the weight of numbers he succeeded. I remind honourable senators that the next day the President pointed out that he at no stage accepted the vote of the previous night and maintained the position that until standing order 448 were amended he regarded it as being a valid standing order. So that all honourable senators, and not merely members of my Party, could be well informed of the true position in relation to standing order 448, I sought a legal opinion. I did not seek it in Phillip Street, Sydney, or in the streets of the other capital cities where lawyers have their chambers. I sought it from the Attorney-General who, in his own right, is a Queen’s Counsel.
– He is a member of your own Party.
– I also sought it from an officer of the Commonwealth who was not a political officer. I sought the opinion of Mr Mason, who was then Solicitor-General. The opinion I obtained has been circulated. I do not want to be provoked into reading it in full. I think it can be accepted that the Attorney-General and the Solicitor-General came down on the side that the Presiding Officer was completely right and that standing order 448 should stand.
– You would not expect them to say otherwise.
– Senator Georges who, no doubt, has a legal background, has a perfect right to say that they are not correct.
– Senator Georges has the same legal background as you have.
– The only difference is that when I do not know the answer myself, I go to the people who do know. I do not rely on my own judgment. I rely on the judgment of the Attorney-General and the Solicitor-General, and the opinion that they give acts as my bible in relation to these matters. I will quote to honourable senators paragraph 13 of that opinion:
Where Standing Order 448 has not been complied with and leave has not been given the notice required by Standing Order 115 will not have been brought forward in accordance with Standing Orders. In the present case, a majority of Senators (though not an absolute majority) voted in favour of a motion to suspend Standing Orders. It appears to us that this resolution was ineffective, not for lack of votes but for lack of notice.
With the concurrence of honourable senators, I will incorporate in Hansard the complete legal opinion furnished by the Attorney-General and the Solicitor-General.
SUSPENSION OF SENATE STANDING ORDERS: CONSTITUTION SECTIONS 23 AND 50; SENATE STANDING ORDER 448 JOINT OPINION
In the course of the debate in the Senate on 22nd August, 1968, concerning the site for the new Parliament House, the Leader of the Opposition moved, without notice “That so much of the Standing Orders be suspended as would prevent my moving a motion forthwith that order of the day No. 2 relating to the new and permanent house site take precedence this day over other business of the Senate.’
That motion was agreed to by a majority of 24 to 22. The President of the Senate then ruled that, as there was not an absolute majority of the whole number of Senators in favour of the motion, the question was resolved in the negative. The ruling of the President was based on Standing Order 448.
Until such time as the Senate itself specifically alters the Standing Orders, I must, as President, continue to rule that they be complied with. In so staling the position us I see it, I ask the Senate to be appreciative of the situation in which I am placed.’
On the motion of the Leader of the Government the Senate took note of the paper and the debate was adjourned.
Each House of the Parliament may make rules and orders with respect to -
10th September 1968.
Notwithstanding all that I have said, we will come to a vote. If the Senate has a will, and the Opposition has a will, again to deny the Standing Orders, honourable senators opposite must accept full responsibility for it.
– Before the debate closes-
– Another legal eagle.
– I am not a legal eagle. I know my limitations and 1 wish to goodness that the honourable senator knew his limitations. While I am a senator 1 will continue to fight for the rights of the Senate. This is the second occasion on which the Opposition has attempted to make a travesty of the rules of the Senate. Once again it is to the shame of the Senate that this should have occurred. If Senator Murphy’s argument were carried to its logical conclusion we would not need any Standing Orders at all because the Senate could make its own decisions. That is the logical conclusion to his argument.
– Ad hoc decisions.
– That is so. If the Standing Orders are no good, we should change them. Tonight honourable senators opposite are acting in the same way as O’Shea did and the left wing Commo unions have done, by defying the law.
– I ask that that remark be withdrawn. A motion has been properly put before the Senate and accepted. For the Minister to suggest that that is defying the law is a reflection on the Senate and on you, Mr President, as you have accepted the motion. To say that it is defying the law to put forward a motion in the Senate is a reflection upon yourself and the whole Senate.
– Speaking to the point of order, I amend my remarks to say that members of the Opposition are defying the law of our Standing Orders. I will go that far. That is the truth and nothing less than the truth. That is the reason why I stand up here and fight for the rights of the Senate and for what the Senate should represent. I wish to goodness that the gentlemen on the other side of the chamber could see it in the same light.
– I support the motion of the Leader of the Opposition (Senator Murphy). I say very definitely that the performance of the Senate today is something of which we have no reason to be proud. We have wasted our time arguing whether we should debate a matter of national importance which involves the lives of hundreds of thousands of workers who have been forced out of employment because of a calamitous strike that is taking place. Yet Government supporters are frustrating an effort to have a discussion on this very important question and deliberately wasting the time of the Senate, rather than proceeding with the discussion.
– I rise to order. The motion which is before the Senate is in relation to whether your ruling, Sir, is correct. My submission is that Senator Gair is debating an issue other than the question of whether your ruling is correct.
– I have always thought that in respect of a motion to dissent from my ruling it would not be very wise, providing a senator keeps reasonably within bounds, for me to prevent discussion on that motion. It is a very awkward position for me.
– I can easily understand the sensitivity of the honourable senator opposite. I can understand why many Government supporters today are afraid to face up to a discussion on this all important question. However, I will not proceed on those lines any further. On the question of the Standing Orders, many months have passed since Senator Murphy allegedly emasculated the Standing Orders of the Senate. I ask: What has the Standing Orders Committee done about the matter since? Nothing. Who is to blame if it occurs a second time? Is Senator Murphy to blame if he repeats the dose when nothing has been done to prevent such an event? Of course not. I think that the performance is altogether a disgrace. Without question the Government has done everything possible to engage in delaying tactics and to prevent discussion of this matter. It is now 10 minutes past 9, which means that time will permit very little more discussion of this matter, if any. The public, who will be judges of this position, will certainly find the Senate failing in its duty if it does not debate this national crisis.
How frequently have we read, when industrial strikes have taken place and when Parliament has been in recess, of advocacy for Parliament to be called together to deal with the cause of the strike? I contend that the Parliament is the appropriate place in which to deal with these matters and to discuss the pros and cons of them. First of all it was alleged that any discussion on the matter would be interpreted as pressure on the judiciary; that the matter was sub judice. There was not an atom of evidence to support that claim. It was only an attempt to prevent the discussion of this all-important question.
Now what do we find? We find further discussion resulting in further delay in permitting the Senate to discuss this question. I say that members of the Government parties stand charged with carrying out a campaign of frustration. It reminds me of the old saying: ‘Nero fiddled while Rome burned’. They are content to pursue this attitude while hundreds of thousands of people are out of work through no fault of their own and industry and commerce have been disorganised because of an unfortunate national crisis.
– But for the remarks of Senator Gair, I would not have intervened in this discussion.
– Speak up.
– If honourable senators opposite will be quiet, I will speak so that I may be heard; but I do not intend to shout against them. I rise to my feet because of remarks that have been made by the Leader of the Australian Democratic Labor Party (Senator Gair). 1 suggest that he would do well to concede to other members of the Senate the right of modest judgment of which he Ls an exemplar. 1 think it is possible, on a sober consideration of today’s events, to accept as considered and sound the point of view that parliamentary debate pending discussion by responsible officials of terms of settlement of this dispute may be of disadvantage to the nation. It is in that view that the Government has acted today - not for the purpose of prolonging debate unduly.
Senator Gair said that the point of order as to the impact upon the judiciary had no substance. I listened to his statement and I will consider it. But I think he might further consider the point of view represented in the point of order because his understanding of the relationship between the judiciary and the Parliament might improve with further consideration of it. This evening we are engaged in a discussion of a proposition not as to this particular incident but as to a matter that involves the procedure of the Senate. Senator Anderson, when he opposed Senator Murphy’s proposition in a brief speech, said that we thought it should go to decision. But the debate was continued, mainly by Senator Gair. 1 wish to protest against the suggestion that our view that today parliamentary debate is inappropriate but as soon as this strike is settled it will be appropriate and will be facilitated is not legitimate.
Having said that in defence of a point of view which is legitimate and which should not be the subject of insulting remarks, I want to add on the substantive question as to the propriety of the President’s ruling that it has been said that nothing has been done . by the Standing Orders Committee. I venture to suggest that the person who made that statement has not inquired as to what has been done. The fact is that the matter has been considered very purposefully but the Committee is not yet in a position to report to the Senate.
– How would I know that?
– Except for not inquiring, the honourable senator would be excused. To make such a statement without inquiry is of no advantage to the argument.
– Why don’t you give it to the nightwatchman to deal with?
– That interjection comes from a critic who says that today’s debate has done no credit to the Senate. Since the Senate took it upon itself to overrule the President’s ruling on this matter, this subject has been taken by our energetic Clerk of the Senate to no less a body than the Association of Secretaries-General of Parliaments at the Fifty-sixth Interparliamentary Conference held at Lima between 5th and 1 3th September 1968. [f some members of the Senate have not possessed themselves of this knowledge, perhaps that is due to lack of inquiry. It would do us all good just to hear the conclusion. I will not go through the considerations that are recorded here. If I were minded to spend the time, I could do so: but I am anxious that, if the Senate so orders, the substantive debate should be continued. I trust that in that debate I shall have adequate time to state the Government’s point of view on this industrial unrest. I hope that I will be given an extension of time, if need be.
The position is that the body to which I have referred and whose decision, 1 would have thought, would command some little consideration concluded as follows - I abstain from referring to the arguments that were used in the discussion:
As a result of the above discussion, the Association came to the following conclusion: That any provision allowing a suspension of rules without some qualifying requirement that due notice of a suspending motion should be given and/or that a substantial, qualified majority is necessary to carry such a motion would be a dangerous weapon in the hands of a majority in any chamber.
– Mr President, I rise to support your ruling. In doing so, I wish to say only that I believe that Senator Gair has done less than justice to the viewpoint of the Government in the attitude it has adopted today. I believe that, if reflection is cast on the words that were used by Senator Anderson, as Leader of the Government in the Senate, and by Senator Wright, it will be seen that the clearest possible justification was given for the attitude the Government is adopting.
The Australian Democratic Labor Party has no responsibilities in this dispute. The Australian Labor Party has no responsibilities in this dispute. But the Liberal Party and Country Party are in Government and have the responsibility of governing in a way which takes account of the fact that there is a segment of opinion which opposes part of the Government’s legislation and that there is a tremendous majority of people in the community which is opposed to that small segment. Out of all this the Government surely must consider what is the best way of resolving this dispute. What is the best way of minimising the difficulties and what is the best way of assuring for the future some modus vivendi by which these people can work together?
If it is thought that the best way to do this is to have a public debate of the character which the Opposition and the Democratic Labor Party are wanting, then those who think so are entitled to that viewpoint. All I ask is that it be recognised that the Government does have a justifiable viewpoint in saying that it is far better for negotiations to be continued privately within secret rooms without there being inflammatory statements which are likely to cause people to want to adhere to preconceived and pre-existing conditions. And this is only for less than 24 hours. Yet, for Party political purposes the Opposition has been prepared to try to make some capital out of this; and the Democratic Labor Party, because it believes that the end justifies any means, has been prepared to do what it wants in order to achieve its purpose. I feel strongly that the views brought against this Government, which is tremendously earnest in what it is trying to do in order to reach some solution of this problem-
– I rise to a point of order, Mr President. If the honourable senator is still continuing to deal with the point of order, then in spite of your delicate position I think he might give one word to the question that is before the Chair. After all, there is a rule.
– I will not stand for offensive language but really I cannot stop any honourable senator when my own ruling is being questioned.
– I was saying that I feel this ought to be stated because I believe, quite strongly, that the Government has acted earnestly in trying to reach a solution. Do the members of the Opposition and of the Democratic Labor Party think that there are no honourable senators occupying the back benches on the Government side who would like to speak strongly because they have strong views on this issue? I certainly would like to speak. But if we on our side have put to us that the Government is striving to reach a solution, then we are prepared to accept that there is merit in what the Government is doing and therefore we shall not, by expressing our strongly felt views, hinder the attainment of those Government objectives. All I am doing in making these statements is to reply to Senator Gair and to suggest that he has done less than justice to the viewpoint which the Government has been adopting. The Government has made an earnest and sincere attempt to try to resolve a difficult situation without imflammatory utterances.
I turn now to the ruling which you have made, Mr President, in accordance with the
Standing Orders. Standing order 448 is as clear and precise as any words could be. lt states:
In cases of urgent necessity, any Standing or Sessional Order or Orders of the Senate may be suspended on Motion, duly made and seconded, without Notice: Provided that such Motion is carried by an absolute majority of the whole number of Senators.
If that is not clear to any honourable senator then I do not know what words could make the position clearer. An absolute majority of the number of senators is 31. The voting on the resolution carried was 29 affirmative and 24 negative. You, Mr President, ruled, as the Standing Orders direct you to rule. The Leader of the Opposition (Senator Murphy) then said that your ruling should be dissented from and that this standing order has no validity. I can only say, with deference to him and his legal background, that that is tantamount to applying lawlessness in this Senate corresponding to the lawlessness we see in other places. I know that Senator Murphy seeks to justify that viewpoint by saying that there is a provision contained in section 23 of the Constitution. Section 23 states:
Questions arising in the Senate shall he determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the voles are equal the question shall pass in the negative.
The issue is simply whether these procedural matters are to be regarded as ‘questions arising’. The Standing Orders, after an initial challenge in 1903 on the precise point which Senator M Murphy has taken, have been upheld and recognised in the Senate for a period of 66 years. The point which Senator Murphy has raised is one which obviously, by just looking at those two sections, clearly is arguable. But this is a point which has for its support nothing more than Senator Murphy’s opinion, backed by an opinion in 1935 by Sir George Knowles, not adopted by the Senate and not adopted by the House of Representatives, as well as the decision made in August last year, notwithstanding strong opposition to the proposal at that time. I hope T have expressed all those points which Senator Murphy would express in support of the reasoning he has adopted today.
– There is one more point.
– Then I will be interested to hear what Senator Murphy has to say. I maintain that there is strong authority for the view that the words ‘questions arising in the Senate’, as appearing in section 23 of the Constitution, do not apply to questions of a procedural nature such as we have before us. If there be any further authority required for that view, it is the authority of the Attorney-General (Mr Bowen), a Queen’s Counsel and a very eminent counsel recognised by lawyers throughout Australia-
– He is a member of your own Party.
– And also - and I think Senator Georges cannot cast any aspersions on this person - Mr A. F. Mason, Q.C., who until recently was the SolicitorGeneral of the Commonwealth. They have indicated that these matters covered under the standing order are not matters to which section 23 of the Constitution has any application.
– The honourable senator had better sit down before he makes the position much worse for him.
– I heard what Senator Murphy said. am not one who is going to submit simply to what I feel is a travesty of the rules and the Standing Orders of the Senate. J have no hesitation in castigating what Senator Murphy has done as a travesty because it is not right, when the Senate has Standing Orders which have survived and have been accepted for 66 years, to pursue some temporary advantage and to regard these particular matters as having no weight or no relevance whatsoever.
There is a further point, Mr President, which was not raised before the Senate last August and for all I know it has not been adverted to by the members of the Democratic Labor Party; that is that if you look at standing order 448 and regard the proviso to it as having no validity, does that. mean, that the balance of the standing order ought to remain? There is a general rule of law, to which Senator Murphy undoubtedly will give his unquestioning acceptance, that, for example, if there is a clause in a contract or a clause in a statute from which you decide to sever some part because it is of no validity, the question of whether what remains has any validity depends upon whether what you have severed goes to the substance of the clause.
Standing order 448 provides for suspension of the Standing Orders without notice whereas standing order 449 provides for suspension of the Standing Orders with notice. To suspend the Standing Orders without notice requires an absolute majority of the Senate. If we remove that provision we remove entirely the justification for suspending the Standing Orders without notice. I do not know how Senator Murphy seeks to overcome that view, which is a view that has been expressed by the Attorney-General and the Solicitor-General. I sense a feeling in the Senate that the issue has already been resolved, and that your ruling, Mr President, will be dissented from. But I regard it as a tragedy that the forms of the Senate should be overridden in the cavalier way in which they are sought to be overridden. 1 submit that the law is in support of your ruling and that the practice of the Senate for the last 66 years is in support of your ruling. Those who support the motion are seeking to set aside the law and set aside the practice.
– I wish to put my views to the Senate. 1 am not convinced by the waving of the family bible - the joint opinion of the Attorney-General (Mr Bowen) and the Solicitor-General. We are all aware that one Queen’s Counsel can take an opposite view to another with great ease. If this were not so, litigation would not be so prevalent in Australia.
– It is like medical opinions, vague.
– No. It is fortunate that medical people sometimes disagree. If it were not so some of us might be exterminated. It is a sad occasion when we are asked to support a motion of dissent from your ruling, Mr President. I voted for such a motion on a previous occasion because I believe in democracy and majority rule. I voted against your ruling because I believe that the view of the majority of the Senate should be upheld.
– Does the honourable senator still hold that view?
– I will try to explain my present position. Nearly 10 months have elapsed since the Senate dissented from your ruling, Mr President. Actually, the Senate had no right to rule against you on that occasion. I blame the Standing Orders Committee for not resolving the matter. I do not know who are the members of that Committee, but they do not seem to have done anything about resolving the problem. Therefore the fault lies with them. You have no option but to uphold the Standing Orders, Mr President. Having once voted against you, I must say that I have now changed my mind. I made my protest on the previous occasion, but I cannot keep on protesting. You are quite correct in your ruling. Therefore, I must support you.
– in reply - The Senate has engaged in a delightful if somewhat frustrating debate. Reference has been made to the Standing Orders Committee. Of course, Mr President, you are a member of that Committee and I am not. Senator Greenwood said that the questions mentioned in the Constitution do not include the kind of question we are now considering. He conceded that in 1935 the then Solicitor-General, Sir George Knowles, expressed the view that all questions were included. This opinion is set out in ‘Australian Senate Practice’. But Senator Greenwood claimed that back in 1903 somebody gave a ruling that questions such as this were not included. So, we have the position that although in 1935 the Solicitor-General said that this kind of question was included in section 23 of the Constitution, Senator Greenwood informs us that there has been a change since then because the Attorney-General (Mr Bowen) and the former Solicitor-General agree with the opinion that was given in 1903 and disagree with Sir George Knowles. The joint opinion, the context of which was kindly supplied to me by the Leader of the Government (Senator Anderson), says:
We may add that we are inclined to agree with the interpretation by Sir George Knowles in his opinion of the word ‘questions’ in section 23.
That is the exact opposite of what Senator Greenwood has said.
– Read the next sentence.
– I will read the next sentence. That is the exact opposite of what Senator Greenwood led us to believe. The joint opinion continues:
However, we do not express any concluded view on this, since it does not appear to be decisive of the present issues and we are conscious that a contrary ruling was given by the Chairman of Committees in the Senate on 17th June 1903.
SenatorMcManus - Why did he leave that out?
– I do not know. These two learned gentlemen went on to say:
The importance of the role of the Senate as the arbiter of its own internal procedures is too well known to require elaboration by us.
What could be more important than the last decision of the Senate on this matter? It is binding on everyone, including you, Mr President. In deference to that decision of the Senate you changed your ruling and held that the question had been decided in the affirmative and not in the negative. There is another interesting point. These two learned gentlemen further say, at page 13 of the document to whichI have referred:
In the present case, a majority of senators (though not an absolute majority) voted in favour of a motion to suspend Standing Orders. It appears to us thatthis resolution was ineffective, not for lack of votes but for lack of notice. The exculpatory provisions of standing order 448 not having been fulfilled, the requirement of notice posed by standing order115 still stood and had not been met.
What does that mean? Those learned gentlemen are saying that the motion should not have been entertained because of lack of notice. But the motion was put to the Senate and there is nothing in that opinion which says that you, Mr President, were entitled to do anything other than rule in accordance with the Constitution that the question was decided in the affirmative. I would like the Leader of the Government or anyone else to show me anything in that opinion to indicate that you must rule, as you have now ruled, that the matter is resolved in the negative. Honourable senators opposite are saying that the previous decision was ineffective. There was no ineffective decision. On this occasion we have before us what is said to be a most important consideration. Senator Cormack keeps telling us what the law of the Senate is. We decided this precise matter in August of last year after a great debate and that decision is now the law of the Senate.I ask that the law of the Senate, consistent with the law of the Constitution, be observed. I ask the Senate to act consistently with its previous decision. The Standing Orders can be amended and should be amended. Proper provision should be made for notice. The situation has never arisen and it should not be permitted to arise where anybody can stand up and endeavour to have matters put through without everybody knowing what is going on. The sense of the Senate would not permit this to happen. Even so, the Standing Orders should be corrected, but as the Standing Orders are at present and as the Constitution stands, I submit that the Senate should adhere to its previous decision and decide the matter in the affirmative.
That the ruling be dissented from.
The Senate divided. (The President - Senator Sir Alister McMullin)
Question so resolved in the affirmative.
Debate resumed (vide page 1374).
– Prior to the suspension of the sitting I had dealt with certain preliminary matters and then said that I would turn my attention to the matters of principle that rose out of this legislation. In the first place I remind the Senate of the terms in which the legislation, the principles of which are objected to, is couched. Section 109 of the Conciliation and Arbitration Act provides: 109. - (1.) The Court is empowered -
So the provision in the legislation that is impugned is that the court is empowered to order an organisation not to continue a contravention of the Act or a breach of an award. If this Parliament exists for the purpose of passing legislation and the Commonwealth Conciliation and Arbitration Commission exists for the purpose of making awards after hearing both parties, one would be forgiven for thinking that it would be appropriate that the court should have power to require parties to comply with the Act and the award. Then it is to be remembered that before that injunction from the court takes effect the Arbitration Commission already has received an application to insert, as one of the express provisions of the award, a bans clause, that is to say, a clause providing that while the award is in operation a trade union should not strike for the purpose of breaching the provisions of the award. I should have thought that that provision, so far from attempting to abolish the right to strike, was a most appropriate provision to regulate the right to strike and to bring it in some degree into conformity with the principles of ‘arbitration.
The next thing that is to be considered in relation to this urgency motion alleging a lack of industrial justice in the provision to which I have referred, is that the trade union movement of Australia has grown to its strength and its stature by reason of the provisions of this legislation which have enabled trade unions to organise and avail themselves of its advantages. Apart altogether from the advantages of growing in organisation, the benefits that the trade unions have received under the system of advantageous awards on their behalf would be acknowledged by the great majority of trade unions. All of those advantages would be jettisoned if a militant or disaffected minority were not the subject of a court injunction and, therefore, could disrupt industry and promote unrest so that the award provisions would not operate.
It is to be remembered that these principles in the Australian Act are to be construed in the light of the history of the arbitration system in this country where it has been established in legislation to which the Australian Parliament has given attention on numerous occasions. The legislation has been the expression of our own Parliament. Therefore I would suggest that any other means than parliamentary means should not be employed for the purpose of changing legislation that is on the statute book. Certainly we do not want to attract the idea that pressures by great masses of industrial unrest are the appropriate influences to persuade an elected parliament to alter the law.
– What should be done?
– I have a limited time only, so I shall proceed to the next observation. That is an observation directed to the remarks of Senator Murphy when he quoted from a speech of mine in 1965. We were debating some provisions which modified those provisions to which I have referred in section 109. I referred to it this afternoon and again I wish to make reference to section 109a which the Government introduced in 1965 after, as we were told this afternoon, consultation with the trade union movement. The effect of that provision was to require the court not to issue an injunction order until and unless the party applying for it had notified the Industrial Commission of the imminence of a dispute and 14 days or such longer period as the Industrial Commission itself had ordered had intervened so that conciliation could take place in the period and that would give a proper opportunity to resolve the dispute without an injunction order.
I was quoted as opposing that provision and I did, but not on the basis that Senator
Murphy would imply to the Senate. My opposition was that the modification was an unjustified weakening of the original provision. Today the Australian Labor Party complains of industrial injustice under the modified provision. It would complain much more about the absolute provision for which I contended in 1965. But I am one who puts a bona fide argument according to my knowledge and, when Parliament has passed a provision to which I objected being put into law, then for the purposes of regulating industrial disputes, I am content to abide by it until a specific amendment is introduced. I do object to being misrepresented in the chamber as to the real intention of my attitude then.
But that is not as serious as the other argument that Senator Murphy advanced when, in an inflammatory, heated and assertive speech, he had the indiscretion to assert to this chamber that no such provision as those contained in sections 109 and 109a is contained in the American legislation and that America had the sense, after the new deal came into operation, to remove all legislative restrictions upon strikes and unrest in that country. He sought to give the impression that our legislation was an objectionable and isolated instance which was contrary to American experience. The position was that the Norris-La Guardia Act was passed in 1932. It gave considerable liberties to industrial unions. The law came under review by Congress in 1947 in the Taft-Hartley Act. The result of that was that Congress added many more restrictions to the collective bargaining system.
– Which are infrequently used.
– The law declared certain types of union activities to be unfair labour practices against which the National Labour Relations Board might request temporary injunctions pending the completion of the Board’s process and set out other illegal activities of unions against which the Board was required to seek an injunction. Furthermore, in so called national emergency disputes, the President of the United States of America is permitted to direct the Attorney-General £0 seek an injunction for an 80-day period to permit mediation while avoiding an interference with protection affecting the national welfare. The union’s use of strike action in America was circumscribed by making the improper use of strikes an unfair labour practice under the Act, and by describing certain activities as unlawful. Certain other activities were made criminal offences.
– All the way with LBJ!
– The honourable senator’s leader tried to get on the LBJ band wagon, but he represented the LBJ band wagon as a golden carriage whereas it is only a hackney coach. The American Act declares that strikes, boycotts and picketing are unfair labour practices and also unlawful if they are engaged in for certain purposes. These unlawful purposes are four in number; firstly, to bring economic pressure upon an employer to make him cease doing business with any person - a secondary strike or boycott; secondly, to try to force an employer to deal with a union unless that union has been certified as the bargaining agent of the workers in that plant; thirdly, to try to force an employer to deal with one union when another union has been selected by his employees; fourthly, to try to force an employer to assign work to a particular craft unless the employer himself is failing to conform to an order of the Board determining the bargaining rates for employees doing such work. Strikes against the Federal Government including its wholly owned Government incorporations are illegal. In America the law provides that any strikers shall be discharged immediately and shall not be eligible for re-employment for 3 years. I protest - again with restraint and in the mildest form I can - at the misrepresentation of the American legislation, which I have sought to correct now.
– Can the Minister suggest any reason why Senator Murphy did not put those points to the Senate?
– No. I do not wish to develop that. Having dealt with the American position I want to say a word about the position in Great Britain. Those who have studied this problem with anxiety will have read Lord Donovan’s report issued this year, after a very long inquiry by a large and representative committee on the subject of trade unions and employers’ associations in Great Britain. If anybody believes that Great Britain has not been bedevilled in its economy and undermined in its industry by irresponsible strikes post war so as to lose its great industries to its former enemies, he is misled. Even Mr Wilson and Mrs Barbara Castle have now come to the conclusion that penalties must be imposed upon industrial unions for breaching the industrial law.
– England has a Labour Government, has it not?
– Yes. Even Mr Wilson has been forced through the torture.
– Like Mr Chifley was.
– Yes, like Mr Chifley was. If these people are unregulated and incited to irresponsibility they will crucify everybody who works for them. The reason why these things are bedevilling England is recorded in the report which states that, although there has been an improvement between 1956 and 1966 in the mining world, strikes in other industries have risen from 572 in 1956 to 1,384 in 1966 and provisionally 1,694 in 1967. The Labour Government of Great Britain felt compelled to bring in legislation providing penalties for breaches of industrial law. The only thing I wish to say as I conclude my speech, having abstained so far as I could from debating the issues in a manner which might prejudice the successful conclusion of negotiations, is that now 1 can inform the Senate that the Attorney-General Mr Bowen, in another place this evening was able to inform another place of the payment, to which I referred this afternoon. He went on:
In these circumstances 1 have given instructions for an application to be made to the industrial court to discharge the order against Mr O’Shea for his examination and for production of the unions’ books. The question of his release will then be a matter for the Court. It is understood that this application will be heard in the Industrial Court by Mr Justice Kerr at 10.30 tomorrow morning. My colleague, the Minister for Labour and National Service (Mr Bury) and 1 will be continuing with our discussions wilh officers of the Australian Council of Trade Unions.
This statement and this course of action have been taken in pursuance of the expressed desire of all parties to the dispute to exercise restraint while conferences are taking place which have the prospect of finding a solution by peaceful discussion. The Minister, for the Government, and I, speaking for the Government, have already with restraint but firmness affirmed that the Government adheres to the principle of these provisions upon which Senator Murphy has erected an emergency motion.
– The speeches that we have heard from Senator Wright and the Leader of the Opposition (Senator Murphy) who moved this motion have clearly indicated the very great need for this Senate to discuss this question tonight so that the real reasons lying behind the sacrifices that have been forced upon such a large number of Australians today and those which it was threatened would be forced upon others - although the action mentioned in the concluding paragraphs of Senator Wright’s speech may prevent this - may be disclosed. People have no real knowledge from the discussions that have taken place tonight why they have been faced with the situation that has been thrust upon them. I am one of those who believe, irrespective of the solution put forward by Senator Wright in this specific instance of the gaoling of one person for contempt, that the issue remains unresolved and the reasons behind the conflagration still remain. These will still be exploited by the people who have already exploited them. Even if the sitting duck who got into gaol quite deliberately to set off the explosion has been rescued as a result of the philanthropy of one person in Sydney another issue will soon be found so that the dispute can be raised on another occasion. This is not a discussion of the matter raised by Senator Murphy as to whether the penal clauses should be removed.
– It should be.
– If I require assistance I shall look for it from someone competent and not from Senator Hendrickson. If he will be quiet he will be educated in industrial matters - something he knows little about.
– I am talking to the butcher, not the block.
- Senator Sandford used to say that until everyone got sick of it. This is not a question of whether penal powers should go, as suggested by Senator Murphy. This is a question that has blown up in the past few days. It is whether the present campaign to challenge the penal clauses of the Conciliation and Arbitration Act is a legitimate one for the authorised trade union movement in this country or a campaign carried on for political and other reasons by people outside the trade union movement - a small segment in the trade union movement, unfinancial as they are, seeking to push their own leadership of the trade union movement and to take it over unofficially. They had to have an issue to do so. This is the issue. Only some of the reasons put by Senator Murphy indicate there is in this question an essence of a case which could be made to sound much more serious than it is and, indeed, a legitimate trade union argument. I say ‘much more serious’ because if we go through the number of unions that have been affected by the penal clauses we can understand the reasons why congresses of the Australian Council of Trade Unions have failed to accept specific propositions put before them that action similar to that which has occurred in this last week should be taken to get rid of these penal clauses. Why? Because the great majority of trade unions have never been affected by the penal clauses. They have never caused a situation where action has been taken against them and penal provisions applied. These provisions have affected only a minority of trade unions. It could be because of the nature of their specific industries; it might be because of the nature of the employers in those specific industries.
Indeed, some of those penal provisions, as was clearly illustrated by Senator McManus in this House about a month ago, have been exploited by certain unscrupulous employers for the purpose of creating the very kind of thing that has occurred - the unfair imposition of costs on the unions themselves. Let us look at the statements that have been made by the authorised trade union movement arid its leadership on this question and at the statements that have been made by the people who have really caused the trouble that has occurred this week. I have no hesitation in saying to this House - and I shall produce the evidence to show this - that the activity that has culminated this week in the gaoling for contempt of O’Shea was a deliberate seizing of an industrial issue that existed and using it to attain political influence of the Communist Party in this country and to create the very type of disruption we had here today, lt will not be wiped away by the fact that the present issue has been resolved, in spite of the Communist Party. Let us look at what the authorised leaders of the trade union movement have had to say on handling the anomalies that do exist in relation to the penal clauses of the Arbitration Act. None other than Albert Monk, President of the ACTU had this to say:
Penal legislation in this, or other countries, cannot be removed by the use of strike action. What is placed on the Statute Book of a punitive character, can only bc removed by legislative action.
There is need for more responsibility by a section of unionists and unions - particularly some of the more powerful organisations and their members. . . Instances have occurred recently where unions themselves have not attempted to guide workers on the job in a number of work establishments as to the irresponsible action that is taken which leads to the organisations being involved in penal applications before the Commonwealth Industrial Court.
That was the statement of the President of the Australian Council of Trade Unions. Is that backed up by the Australian Council of Trade Unions?
– You did not support him in 1965.
– If we follow the decisions of the ACTU we find that in 1965 it reduced the effectiveness of the stand that the Australian Council of Trade Unions had taken against penal clauses of the Act. At the 1967 congress there were two distinct proposals to put teeth into the policy of the industrial movement to get rid of the penal clauses in the Conciliation and Arbitration Act, but these two proposals were defeated. They were two specific propositions to take the type of action taken this week, but they were defeated by the ACTU Congress.
What are the changed circumstances today? Changes are taking place in the trade union movement. It is even accepted in the arguments placed by Senator Murphy here tonight on behalf of the twenty-seven unfinancial scab unions in the State of Victoria who will not pay their dues to their own trade union organisation. How it can be suggested that the ACTU can handle a dispute of the Victorian tramways union is beyond my comprehension as a unionist. So far as I am concerned, when a trade unionist is unfinancial’ the union refuses to handle his case. This would probably be a rule in the book of almost every trade union that is represented in this chamber by a senator. The fact is that these unions are unfinancial, and the Victorian branch of the tramways union is one of them. How can the national body of the trade union movement, with which the Victorian Trades Hall Council is affiliated, act on behalf of the Victorian tramways union? lt does so, of course, out of the wisdom of the leadership of the trade union movement as it is at present constituted, knowing that the national interest, and indeed the interests of thousands of other good trade unionists whose unions do pay their recognised fees to the general’ trade union movement have to be protected from the irresponsibility of the type of strike action that took place today. They go along and try to negotiate the dispute.
However, where do we get the evidence of the real reasons behind the dispute that has taken place today? Who are the people who have been able to gaze into the crystal ball, right back last January, and tell us that it had to happen and that it would happen?
– You do nol know them.
– I do know, and you also will know in a moment, for I shall read to you and let you know who it was. 1 shall read what Mr Aarons said. We have a tape of what Mr Aarons said on this question, and f can make this offer to the honourable senator: We shall play a tape for you, if you care to hear it at some date. Mr Aarons of the Communist Party - not as a recognised trade unionist - had this to say right back in January of this year: ti is also evident in the new and most radical demands advanced, including demands for democratic control as well as radical economic claims.
A bold confrontation of the penal powers has to be made if this movement is to develop its full potential . . .
Workers are looking for a new policy now that the deadlock is broken on the ACTU executive.
This refers, of course, to the left wing gaining a majority on the ACTU executive. Mr Aarons went on:
A new stage of industrial struggle may emerge in which the arbitration system itself is challenged.
The immediate consequence of this directive, of course, was that a new tide of industrial action sprung up from that moment, and now has culminated in the action that took place this week. Therefore, we have had two distinct statements by the recognised trade union movement of this country. There have been attempts by the left wing at ACTU congresses to suggest that strong action is the way to get rid of the penal clauses in the Conciliation and Arbitration Act, but they have been defeated by a majority of the delegates to the conference. There have been statements by the President of the ACTU, warning against this very type of industrial action to get rid of the penal clauses in the Act. Also, I have read the statement by the leader of the Communist Party in this country on how action should be developed and carried out. Of course, we have had the resultant action of Communist trade union officials, who have not followed the directives and majority decisions of the trade union movement, to which they ought to owe responsibility as trade union officials; they are following the directive and campaign of the Communist Party, which seeks to get the sort of situation in this country that they feel is in the best interests not of trade unionists but of the Communist Party.
This action by the Communist Party in this country has been tremendously assisted by the irresponsibility of various employers who have taken wrongful action under the penal clauses of the Act. They have engaged expensive counsel and have deliberately inflated the costs that could be charged against the unions, so that they themselves could take a form of action against the unions with which they have some disagreement. That is. of course, an abuse of the penal provisions of the Act, and this is the sort of thing that could be improved. This could be done by consultation wilh the responsible trade union movement - the unions that are affiliated with the various trades and labour councils and pay their fees. The Government could confer with the ACTU with a view of improving the penal clauses in the Conciliation and Arbitration Act. Improvement can be effected to any Act by applying common sense.
– Is the tramway union a scab union?
– Of course it is in Victoria. It is unfinancial with the trade union movement in Victoria. It is the same as any ordinary, individual unionist who can pay his dues but deliberately refuses to pay the dues that are levied on him by the trade union movement. However, if responsible trade unionists are demanding a complete repeal of the penal clauses in the Conciliation and Arbitration Act they should bear in mind the tremendous dangers that exist in such an irresponsible approach when they seek to repeal all the parts of the Act that do not seem to suit them at the moment. Take, for instance, a provision that a person can be found guilty of contempt of court if he fails to produce the books of the union when he is directed to do so by the court.
Let us consider the position of a trade union official who, at some time in the future, seeks to prove a breach of award in respect of the non-payment of, say, long service leave or sick leave. Let us suppose that the only evidence that exists in favour of the employee, covering the number of years that he has served with the employer, is the written evidence in the books of the company. In order to solve a situation that is being deliberately developed - where a person almost deliberately, if not of his own volition at least at the volition of the political party to which he belongs, gets himself into gaol under the penal clauses of the Act - are you going to advocate the repeal of a clause that would make it impossible for a trade union official to prove the employer’s responsibility under the Act? Do you want the employer to be able to say: ‘I refuse to produce the books of my company, and I fail to recognise that this man has had 10, 12, 15 or 20 years service’? If it is impossible to force him to produce the books of the company, how can any trade union official here suggest the case can be proved in the court?
– It can be done by getting the evidence of witnesses.
– Suppose a man has served for 20 years in a small establishment, with about three or four employees. You would have to dig up half the cemeteries to find the people who were employed there when he first started in employment. Members of the Opposition know that as well as I do. The only evidence to which you can resort is the written evidence in the books of the company.
Gauging from interjections from members of the Opposition, we are now going to push it all the other way, and we are going to say that one side should have all the responsibility and the other side should have none. It is reasonable to provide in the Act that where the court decides that something - whether it be the books of a company or the books of a union - can be of assistance to it in the matter being dealt with it should be available to the court. If a union is properly run and is run in the interests of its members, I cannot imagine a set of circumstances in which the unionist could fail.
The ACTING DEPUTY PRESIDENT (Senator Bull) - Order! The honourable senator’s time has expired.
– Senator Murphy has moved that the Senate at its rising adjourn until tomorrow at 9 a.m. for the purpose of debating a matter of urgency, namely:
Speaking to that motion, I stress that it is beyond question that Australia at the present time is faced with a wave of industrial stoppages and prospective industrial dissension which far exceeds anything which this country has experienced in recent years. It is undoubtedly a matter of the gravest public concern. I share the view which has been expressed by Senator Wright on behalf of the Government that the Government desires to have the utmost freedom with which to negotiate with the persons concerned to endeavour to achieve a settlement, if possible, of this dispute. It is therefore surprising that members of the Opposition have decided to make this an occasion for a public debate.
I well remember in November of last year raising in this Senate an issue upon which I felt strongly. I refer to the rights and wrongs at that time of prospective Government action in th> post office at Redfern. At that stage there were allegations that a person was acting as a scab - I think that was the expression used - and the Amalgamated Postal Workers Union of Australia was objecting to the employment of this person. I felt that there was a matter of principle involved and I spoke on the subject. 1 remember well that there were six members of the Opposition who spoke after me and every one of them castigated roe for raising a matter of the character which I had raised. They said that what I was doing was likely to inflame a dispute. They asked why I could not leave this to be resolved by the Government and the union without saying something which might prevent a settlement. I suggest that there is tremendous inconsistency between what the Opposition said then and what the Opposition is saying now.
Having said that, and recognising that by a vote of the Senate this matter is to be debated tonight, I am prepared to indicate where I stand. 1 hope that some solution is arrived at which is satisfactory from the unionists’ viewpoint but which, above all, does not sacrifice certain standards, certain principles and certain values upon which I think governments should be prepared to make a stand. I share with Senator Little, who has spoken already, a belief that a great amount of the agitation which has been built up in recent months around these so-called penal clauses has been built up by what I describe as left wing extremists among which a number of active members of the Communist Party figure very prominently.
– lt has been supported by a lot more.
– 1 have no doubt that what these people have done is supported by a number of people. I believe that the support which is given is often indiscriminately given by people whose responsibilities should urge them to take a different point of view. We have heard from Senator Murphy in support of his proposal that these so-called penal clauses are breaking down by reason of their manifest injustice, that a form of civil conscription is imposed. These are emotive words which ignore the reality of the situation. If we have a conciliation and arbitration system - I only say that that is the name of the Act and that is the way in which the system is described, even though Senator Murphy constantly referred to it as simply the arbitration system - those pro cesses of conciliation and arbitration must have at their base some sanctions. There is no point in making awards which are designed to resolve disputes if in the resolution of disputes there exists no power whereby a party may recognise that if it does not observe the award there may be a penalty for non-observance. This has been the pattern over the years. ft was the Australian Labor Party in 1947 which introduced the provision to give a superior court of record a power to impose fines for contempts. That was the same power, essentially, as the power which the Commonwealth Industrial Court has under the present legislation.
If the Labor Party now differs with the viewpoint of the Labor Party in 1947, that is not altogether inexplicable. After all, there is one section of the Labor Party here tonight which since 1955 has represented, as it claims, and I think with some justice, more of the principles of the Labor Party of those days than the official Opposition. In 1949 the Labor Party Government reluctantly, but of necessity, passed possibly the most drastic anti-strike legislation that this country has ever seen. It did so because it recognised that there was a danger. If since that date the Labor Party has put into its platform the total abolition of all penal powers and a disapproval of the use of troops for the settlement of any industrial dispute, that merely indicates that the Labor Party is not prepared under its present leadership to do what the Labor Party was prepared to do in 1949.
If one looks at the figures given in Economic and Scientific Affairs’ of 17th January 1969 one finds that the Australian conciliation and arbitration system serves Australia far better than many other countries have been served by their system with regard to days lost per 1,000 workers through industrial disputes. In 1967 Australia lost 310 days, but ahead of it were Canada. Finland, India, the Republic of Ireland, Italy, New Zealand and the United States. There is a similar number of countries which, when you take the annual average from 1963 to 1967, show a similar pattern. This simply demonstrates that the allegations that because we have penal powers in our legislation we have a system which is not working are not provable. It simply shows that Australia is not faring worse than many other countries. I think it is equally maintainable that the existence of these powers indicates that Australia is being well served by these provisions. If we did not have these provisions the position could be a great deal worse.
If I may take up a point raised by Senator Little, I also feel that what has been happening has much of its background in statements made early this year by Communist Party officials. Senator Little referred to a statement by Mr Aarons which came from a tape which he had. I refer to the ‘Tribune’ of January this year in which Mr Aarons said:
An industrial showdown is looming this year. The employer-arbitration-government power structure is determined on pushing through its economic strategy, enforced by the penal powers.
There is clearly there a linking of the capitalist class, as viewed by the Communist Party, with the arbitration structure, and the Communist Party has been part and parcel of the one objective which has been criticism and condemnation. It is this structure which is referred to as being determined to pursue a particular policy. There are other statements in the same article. It states:
Workers are looking for a new policy now that the deadlock is broken on the ACTU Executive. If a firm stand is taken now, when a new tide of industrial action is on the flood, the government’s bluff can be called.
The PRESIDENT (Senator the Hon. Sir Alister McMullin) - Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question:
That the Senate do now adjourn.
Question resolved in the affirmative.
Senate adjourned at 10.30 p.m.
Cite as: Australia, Senate, Debates, 20 May 1969, viewed 22 October 2017, <http://historichansard.net/senate/1969/19690520_senate_26_s41/>.