10th Parliament · 1st Session
ThePresident (Senator the Hon. T. Givens) took the chair at 3 p.m., and read prayers.
– Is it a fact, as- reported in the press, that there is political unrest amongst the members of the Nationalist party in South Australia and Tasmania as a result of recent ministerial changes?
– The honorable senator can rest assured that every one ishappy in this best of well-regulated families.
– In view of the combined opposition of State Treasurers to the proposed financial adjustments between the Commonwealth and the States, will the Government postpone consideration of its proposals?
– The honorable senator must know that his question cannot be answered on the spur of the moment. I suggest that he await the action of the Government in regard to the bill now before another place.
The following papers were presented : -
Public Service Act - Regulations amended - Statutory Rules 1926, Nos. 75, 77.
Return to Order of the Senate of 20th Hay, 1926-
Customs Duties - Remittance to Public Bodies on orders placed abroad, period 1st July, 1923, to 31st March. 1926.
Senator LYNCH brought up the report of the Parliamentary Standing Committee on Public Works, together with minutes of evidence relating to the proposed construction of a dam and improvements on the Molonglo River, Federal Capital.
asked the Minister representing the Minister for Trade and Customs, upon notice -
– The honorable the Minister for Trade and Customs supplies the following answers: - 1, 2, and 3. Yes.
Sale of Phosphatic Rock
asked the Minister representing the Prime Minister, upon notice -
– The right honorable the Prime Minister supplies the following answer: - 1 and 2. Article 13 of the agreement between the Governments of Great Britain, Australia, and New Zealand, which was approved by
Parliament in the Nauru Island Agreement Act 1919, provides as follows: - “ There shall be no interference by any of the three Governments with the direction, management, or control of the busiHess of working, shipping, or sellingthe phosphates, and each of the three Governments binds itself not to do, or to permit any act or thing contrary to or inconsistent with the terms and purposes of this agreement.”
The interests of the partner Governments are safeguarded by Article 10 of the agreement, which provides: - “ The commissioners shall not, except with the unanimous consent of the three commissioners, sell or supply any phosphates to, or for shipment to, any country or place other than the United Kingdom, Australia, or New Zealand.”
Debate resumed from 22nd June (vide page 3361), on motion by Senator Pearce -
That the bill be now read a second time.
– This, as we were told by the Minister, is a temporary measure to bridge a gap between the expiration of the term of office of the Deputy Presidents of the Arbitration Court and consideration of the bill which the Government intends to bring down after the referendum proposals have been disposed of. But whilst it may be a temporary measure as far as the Deputy Presidents of the court are concerned, it contains provisions which, even if the referendum questions are negatived by the people, may, and probably will, become permanent features in our arbitration legislation. It makes certain vital and necessary amendments to the Commonwealth Conciliation and Arbitration Act. Except in regard to one or two provisions, it will have the support of honorable senators on this side of the chamber.We have always stood for the principle of arbitration for the settlement of industrial disputes, and while even to-day there are opponents of the system they cannot deny that from its very inception it has done splendid work.
– Under great difficulties.
– I am coming to that. Despite all the handicaps and limitations under which the court has worked since it was constituted in 1904, the most bitter opponent of arbitration cannot but admit that it has done splendid work. No one would be foolish enough to say that, in the matter of industrial arbitration, we have reached the millennium, but until a more satisfactory means is devisedfor or ensuring industrial peace, we are justified in continuing the present system. Irrespective of the system we adopt, disputes will always arise, so long as -the present conditions prevail under which men have to barter with their labour. Under the capitalistic system which obtains to-day, conciliation and arbitration has proved the most effective and sane method of adjusting grievances between employers and employees. Although it cannot prevent disputes, it has certainly been the means of minimizing the number. Even with its limited powers the court has obtained wonderful results by means of compulsory conferences, which have often prevented industrial disputes.
– And very often the court has to complete the conference proceedings.
– After a compulsory conference has been held, and the parties have agreed on vital issues, it is sometimes necessary to transfer the case into open court to validate the agreement, and to secure an award. The bill provides for the appointment of a chief judge and two other judges. The chief judge is to receive a salary of £3,000 a year, and the two other judges each £2,500 a year. The measure also provides for the payment of liberal pensions to the judges on retirement. I desire to indicate at this stage that I am opposed to the payment of pensions in such cases, and that it is my intention, when the measure is in committee, to take certain action in this connexion.
– Is the honorable senator opposed to the principle?
– I shall indicate later my reasons for opposing the payment of pensions. The chief judge and the two other judges will not have to contribute towards the extraordinary pensions which Parliament is to provide for them on their retirement. In introducing the measure in another place, the. Attorney-General (Mr.
Latham) said that the salaries which I have just mentioned were moderate, and that to attract good men pensions must be paid to prevent them from experiencing financial anxiety. I always believe in paying good salaries to those who render efficient service, but, after having done so, this Parliament should not be asked to relieve them from financial anxiety. If the Government always kept this principle in view the position of many public servants might be much better than it is to-day. There are men at present in the Commonwealth Public Service who are not being paid a remuneration commensurate with the responsible work they are performing. In many instances, the Public Service Board, the members of which are receiving good salaries, is not giving the public servants under its control even a reasonable salary.
– The board has not yet completed a classification of the Service.
SenatorPearce. - The Commonwealth Public Service is the highest paid public service in the Commonwealth.
– It may be, but that does not say that the officers in that service are well paid. As Senator Findley remarked, by interjection, the board has not yet classified the whole of the Service. I now wish to deal with that portion of the bill which relates to the qualification of the judges. The bill provides that a judge must be a barrister or solicitor of the High Court, or of the Supreme Court of a State, of not less than five years’ standing. I do not consider that it is necessary to have a barrister or a solicitor to administer our arbitration law but, if legal training is essential, we should restrict our appointments in that direction to one judge, and make the other two appointees representatives of the parties concerned - the employers and employees. That would be a much more equitable method of determining the merits of any dispute than to have a chief judge and two other judges with the qualifications that are demanded by the bill.
– Would the lay members be changed from time to time?
– I should make the appointment of the lay members for a period. In Western Australia the President of the Arbitration Court was for merly a barrister, but he has with him on the bench representatives of the employers and employees, who are appointed for a specified period.
– Is it not a fact that in practice the two assessors can never agree, and the judge has to decide everything ?
– That is not so.
– The judges of the High Court cannot always agree.
– The presiding judge in Western Australia always gives his judgment after consultation with the representatives of both sides, and his individual opinion may be entirely changed sometimes as the result of such a consultation. Whilst I admit that a man who possesses legal training may be better able to sift evidence, it cannot be denied that the two men whose appointment I have suggested would have a practical knowledge of industry.
– Does the honorable senator suggest that they should be appointed by the employers and employees ?
– Yes ; and their appointment should be ratified by the Governor-General in Council. Barristers and solicitors are not the only persons who are competent to arbitrate in industrial matters. Laymen would be more competent.
– Would they not be partisans’?
– The Arbitration Court in Western Australia has been in existence for something like 22 years, and no one has ever suggested that any of its decisions has been of a partisan nature.
– Although there is to be a chief judge and two judges, they will constitute separate tribunals.
– That has yet to be proved. In the press recently the qualifications of Mr. Stewart were discussed. That gentleman has been the registrar of the Commonwealth Arbitration Court almost since its inception, and he is in every way qualified to adjudicate in industrial matters. The area of choice of the arbitrators ought not to be restricted. Mr. Stewart has obtained a very good grip of industrial questions during his service under the different judges who have so ably presided over the court. The bill also provides that the judges shall have a life tenure. Although I am not altogether in accord with a life tenure for Arbitration Court judges, I realize that if the Commonwealth court is to be made more effective than it has so far been, it must be clothed with judicial powers, and that is not possible unless the judges are given life tenure.
– Because under the Constitution a judge who has not a life tenure cannot exercise judicial functions.
– Why should not that power be sought at the proposed referendums?
– That would have been a wise course to adopt. I am not in the confidence of the Government, and I cannot assign a reason for the exclusion of that matter from the proposals that are to be submitted to the people. The bill further states that a judge can be dismissed only on account of misbehaviour or incapacity, and in pursuance of a resolution passed by both Houses of the Parliament in the same session. That is unlikely to happen. It is a tradition of the judiciary throughout the Empire that our judges have always been placed above party considerations, and made entirely independent. It is a wise provision, and it should be preserved. Any matter that comes before the court should be dealt with on its merits, without the slightest coercion or fear of retribution. Every judge, no matter what court he presides over, should be entirely independent of the Government of the day. If he were in any way dependent on the Government for the security of his position he might be unconsciously biased. Therefore, since it is essential to clothe the new court with judicial powers, I withdraw all opposition to the proposal to give the judges life tenure of their positions. I understand that, according to a ruling of the High Court, judicial authority can be exercised only where judges have life tenure of office. That is the reason why the judges of the Arbitration Court should be in that position. I now come to Senator Thomas’s interjection to the effect that only by amending the Constitution can the necessity for life tenure be removed.
– If we gave the people the opportunity at the next refer endum, they would readily agree to the alteration.
– I am afraid that the honorable senator is too late to have the proposal submitted at the forthcoming referendum. The Arbitration Court, under the present law, has no power to enforce penalties, nor has it any power to enforce its awards.
– Nor to interpret them, although a police magistrate can. do so.
– That, is so. Imagine the parties having to go to a police court to enforce an award of the Arbitration Court. The higher tribunal is impotent to enforce its own awards, although the lower court can not only enforce them, but also impose penalties.
– The parties can even go to the justices of the peace to have penalties imposed.
– Yes. The Arbitration Court should not be submitted to such indignity. One of the reasons why arbitration is so costly is the delay in obtaining and putting the awards of the court into operation. What should be a court of arbitration has become a court of litigation. Matters involving breaches of awards should not be dealt with by police magistrates, because they are not conversant with the merits of cases, and they are not in any way bound by the decisions of the Arbitration Court. Employers and employees may have spent months in preparing their cases, and frequently weeks, and even months, elapse before these can be heard by the court. Then an award is obtained, and when a breach takes place the case is taken to a police magistrate, who hears the evidence again. Consequently the absence of judicial power stultifies the awards of the Arbitration Court, which comes to its determination on the evidence adduced after it has made itself familiar with all phases of the dispute. The judge knows exactly what interpretation should be placed on his awards, and he ought to have power to properly interpret them in the event of any breach being committed. The grant of complete judicial power would, if I am am not mistaken, do away with the necessity for appeals to the High Court but I am not dogmatic on that point.
– The honorable senator is now on dangerous ground.
– I am speaking as a layman, and I need to be careful in discussing a matter surrounded by legal difficulties, particularly since I am confronted by a number of honorable senators who are barristers. But I give it as my humble opinion that the court, under this bill, would have complete jurisdiction. I think that it will be admitted by honorable senators opposite that the delays that have been associated with arbitration in the past will be minimized.
– And appeals, too, will probably be minimized.
– Yes. If that is accomplished as a result of the bill, we shall have gone a long way towards popularizing our compulsory arbitration system. I have had personal experience of unionists becoming restive because of the delay inseparable from getting cases brought before the court.
– It has occupied years, in some instances.
– Yes; and, after all the delay and expense, appeals in certain cases have been lodged with the High Court, and it has been held that the Arbitration Court had no jurisdiction to deal with them. I recollect the application made some years ago by the Australian Tramways Employees’ Association, which was occupied for a little over two years in obtaining an award. A case was cited in the High Court, and a ruling against the association obtained.
– Has not that difficulty as to the definition of a dispute been remedied ?
– I do not think so.
– The difficulty in that particular case may have been overcome, but there are other cases.
– Yes. The question of jurisdiction has often arisen since that time.
– Does the honorable senator favour the Queensland system of not allowing legal gentlemen to appear in the Arbitration Court?
– One of my first actions in this Parliament was to submit a proposal to prevent legal gentlemen from appearing in court at all, unless with the consent of both parties.
– I think that the honorable senator might improve upon that by providing “unless with the leave of the court.”
– In arbitration matters we should endeavour to get away from the legal aspect. The question to b.e determined is one of equity, not of law. A good deal of confusion has arisen regarding this bill and the referendum proposals. I understand that the Government has deferred introducing its main arbitration bill until the result of the referendum has been made known. In the event of the proposals being accepted by the people, it will be introduced; but, if they are defeated, a bill within the limits of the present Constitution will be submitted to Parliament. The question of a life tenure for judges has nothing to do with the referendum proposals, but in that connexion there is much confusion in the minds of not only the people, but also some members of this Parliament. Even under the existing Constitution, certain powers are conferred on the Arbitration Court, although, in some respects, those powers are limited. For instance, the question of determining a standard working week is now before the court. Yet some people are wondering what power this Parliament will have to deal with that matter.
– Would the honorable senator have Parliament to decide that matter ?
– I should like to see Parliament possessed of full powers to determine the hours of labour, and to fix wages and working conditions, and Parliament itself should determine how those powers should be exercised.
– If Parliament fixed the hours of labour, it would have to go further, and fix the price of potatoes.
– Parliament should have full powers, and Parliament should determine the way in which they should be exercised. Where both a Federaland a State award operate in an industry, the Federal award overrides the other. We have had an instance of that recently in connexion with the question of a 44-hour week in New South Wales. The present Arbitration Act provides that certain questions relating to hours of labour can only be dealt with by a full bench of the Arbitration Court. One judge sitting alone cannot determine the question of hours. We are told that clause 7 has been inserted in order to obtain a determination from the full court regarding the question of standard hours and the basic wage. The proposed new section 18b reads - “ 18b.- (1) The Attorney-General on behalf of the Commonwealth may, by giving the Registrar a notice in writing of his intention so to do, intervene in the public interest in any proceeding before the court in which the question of standard hours of work in any industry or of the basic wage is in dispute, in relation to either of those questions. “ (2) Upona notice being given in accordance with the last preceding sub-section the Registrar shall cause the notice to be published in the Gazette. “ (3) Upon publication of the notice in the Gazette any person, or organization or association of employers or employees may apply to the oourt for liberty to be heard and the court may, if it is of opinion that the applicant is interested in the determination of the question, permit the applicant to be heard and to examine and cross-examine witnesses. ‘ “ (4) Upon intervention by the AttorneyGeneral in accordance with this section the court shall fix a day for hearing the question as to which he hasintervened and that question shall be heard and determined by the Chief Judge and two other Judges.”
When the bill reaches the committee stage, I intend to move for the deletionof the words “person or” from sub-section 3 of the proposed new section. The AttorneyGeneral (Mr. Latham), speaking in another place, assured us that the intervention of the Attorney-Generalin this connexion is to allow persons interested to get before the court in relation to a dispute to which they are not a party. That may be so, but the proposed new section might have been worded differently. Its object is to enable the full bench of the court, with both sides represented, to make a full inquiry, in order that a general decision may be arrived at. That decision would be binding until the court itself altered it. According to the Attorney-General, a general rule would be binding on all Commonwealth awards. We must not confuse a general rule with a common rule. They are not the same. The existing Constitution permits the full bench of the Arbitration Court to make a general rule regarding these matters, but it may not make a common rule. In order to enable it to do so, an alteration of the Constitution is necessary. Another clause empowers the Governor-General to appoint conciliation commissioners. The work of these commissioners will be of great importance; upon their decisions a great deal will depend. The commissioners may not only conciliate in relation to disputes that have arisen, but “they may also endeavour to prevent disputes from arising. In my opinion, the prevention of a dispute is of far greater importance than the settling of a dispute that baa arisen. The appointment of conciliation commissioners should relieve the Arbitration Court judges of a considerable amount of work, and obviate some of the delays that now occur. Experience has shown that, frequently, timely intervention has resulted in the settlement of a trivial matter which, if allowed to develop, might have reached serious proportions. One reason why the measure is being hurried through Parliament is that the Government wishes to re-appoint two of the judges temporarily to finalize cases that have been before them for several months. Deputy President Sir John Quick and Mr. Deputy President Webb have spent much time in hearing claims by the Australian Railways Union and the Australian Tramway Employees Union, so it is only fair to the organizations concerned and to the deputy presidents themselves that they should be permitted to finish the cases.
– No one can blame lawyers for the delays in connexion with those claims.
– I am not attaching blame to any one. I am merely stating that the claims have been before the court for a long time, and it is only right that the deputy presidents who have been handling them should bc allowed to complete them. I intend to support the bill, in the hope that it will make our arbitration system more effective than it has been in the past, and that in future there will be fewer appeals to a higher tribunal.
– I do not wish to be unfair to the Minister, but I was under the impression yesterday, when he asked the Senate to suspend the Standing Orders, that the object of the bill was to enable the Government to re-appoint two deputy presidents to the Arbitration Court so that they could complete work which they had in hand. I find, however, that the bill does more than that. It contains provisions relating to the appointment of three judges of the Arbitration Court for life, and to the payment of pensions for judges. I am strongly in favour of the principle of arbitration for the settlement of industrial disputes, and I was sorry to read the serious reflections made last week by Senator Sir Henry Barwell upon the work of the court. Though arbitration has not done all that was expected of it, it has not entirely failed. I agree with much that was said by the Deputy Leader of the Opposition (Senator Needham) concerning the irritating delays due to fighting over technicalities, for the purpose of prejudicing the principle in the eyes of employees. Many years ago I met the secretary of the Engine-drivers’ Association in Broken Hill. He informed me that he had had great difficulty in persuading the members of his union to support arbitration, because for more than two years they had been unable to reach finality in claims which they had before, the court. It is- much to bo regretted that certain employers, instead of giving the system a fair trial, have, in the past, employed the ablest lawyers procurable - amongst them Sir Edward Mitchell, who is regarded as one of the greatest authorities on constitutional law in Australia - to raise technical objections to claims before the court. As to the value of the system itself there can be no doubt. Let me illustrate what I mean by relating an incident that occurred some years ago. Whilst on my way to Broken Hill, I met, on the Adelaide railway station, Judge Cohen, Mr. Samuel Smith, a representative of the employees, and another gentleman representing the employers, who were also on their way to Broken Hill to deal with an industrial dispute that had arisen there. On the platform I met also a prominent member of the State Government. As he was travelling north, I suggested that I should introduce him to Judge Cohen and the other gentlemen mentioned. When I told him of the object of their mission, he volunteered the statement that he was entirely opposed to the system of compulsory arbitration. To convince him of its value, I reminded him of the disastrous effect upon South Australian finances of an earlier dispute in Broken Hill. For the information of the Senate I may be permitted to relate what happened then. The late Sir Frederick Holder, asTreasurer of the State Government, had introduced the budget, and on the figures presented ‘ showed a small surplus. Shortly afterwards he was defeated, and the late Sir John Downer became Treasurer in the new administration. In.th© meantime an industrial dispute developed at Broken Hill. It lasted for three months, during which time the railway traffic between Broken Hill and Port Pirie practically ceased. As that traffic to a large extent dominated South Australian finances, Sir John Downer, instead of being able to show a surplus at the end of the financial year, had to inform the people of South Australia that there was a deficit of £250,000, due entirely to the Broken Hill dispute. Having reminded the South Australian Minister of the unfortunate experience of his State during the earlier dispute at Broken Hill, I told him that Judge Cohen and the other gentlemen mentioned were on their way to Broken Hill to endeavour to settle what promised to be a much more serious matter, and I said that, in all probability, it would be settled without a single man at Broken Hill losing a day’s work, and that, therefore, the South Australian revenue would not be jeopardized. I do not agree with the provision in the bill that the three judges of the Arbitration Court must necessarily be members of the legal profession. I am’ quite prepared to concede that the chief judge should be a barrister, but there is no sound reason why the other judges should come from the legal profession. A layman should be more conversant with commercial and industrial problems. It does not necessarily follow that a lawyer is better fitted for the position than a layman. Lately I have been reading the Confessions of a Capitalist, an interesting book written by Mr. Benn, a large employer in England. Mr.’ Benn,’ I may add, is not a socialist. He has built up a big business. He states, and his opinion should be noted by those who favour the appointment of lawyers as judges of the Arbitration Court, that .the conservation of time is essential to the successful carrying on of any industry, and that he has never met but one lawyer who understands what time means. It is generally supposed that many barristers are in receipt of very large incomes, but I do not suppose there are a dozen in Australia who’ receive more than £4,000 a year. A barrister receiving £3,000 a year is considered by members of the legal profession to be doing well, and a person appointed to a permanent position at that salary for a period of ten years would, I think, have his future assured. As it is the intention of the Government to submit certain proposals to the people by means of a referendum, an opportunity is provided of ascertaining whether in the opinion of the people of Australia judges should or should not be appointed for life.
– In order to obtain the services of efficient men an attractive salary should be paid.
-The future of a judge receiving a salary of £3,000 for even seven years, is fairly well assured. There are not many members of the legal profession who would refuse such an offer. In addition to the payment of high salaries the bill also provides that judges are to receive pensions on retirement. The intention is I presume to ensure that their decisions shall be absolutely impartial. The members of the Tariff Board deal with more important issues than are put before arbitration judges, but the amount they receive is much less than is proposed to be paid in this instance. They are not entitled to receive pensions.
– Order! The honorable senator is not entitled to discuss the Tariff Board on the bill now before the Senate.
– I am using the Tariff Board only as an illustration. If you, sir, rule that I am out of order in saying that the Tariff Board is composed of three men who have to deal with more important issues than are decided by the Arbitration Court-
– I have allowed the honorable senator to refer to the Tariff Board by way of illustration. I ask him now to confine his remarks to the bill.
– I am simply using the Tariff Board as an illustration. I do not know what salaries the members of that board receive.
– They are paidso much a sitting.
– If the members . of the Tariff Board acted dishonestly they could make a fortune in a very little while.
– Order! The honorable senator must not discuss the Tariff Board under cover of discussing this bill.
– I am not.
– If the honorable senator wishes to dissent from my ruling he must pursue the proper course.
– I have no wish to do that. I was merely pointing out that the members of the Tariff Board, who are dealing with highly important issues, receive considerably less than is paid to judges of the Arbitration Court. I am strongly in favour of the arbitration system, and shall do everything in my power to make it more effective than it is at present. If the Deputy Leader of the Opposition (Senator Needham) will submit an amendment to provide that the two deputy presidents shall be laymen, I shall support him.
– I was under the impression that the Government proposed to appoint as Chief Judge a legal gentleman, who would have the assistance of a representative of the employers and also of the employees. Such a system has been in operation in New South Wales for a considerable time with highly satisfactoryresults. I cannot support the proposal of the Government to appoint three members of the legal profession at high salaries, and also to provide for the payment of pensions to them on their retirement. The position of a member of Parliament is as important as that of any citizen in the Commonwealth, but his salary is less than one-third of that proposed to be paid to judges of the Arbitration Court. In comparison with salaries paid to those occupying important positions, that received by the Prime Minister is, to say the least of it, paltry. I do not intend to support the payment of such high salaries and pensions as is proposed in this instance.
Question resolved in the affirmative.
Bill read a second time.
Clauses 1 to 5 agreed to.
Clause 6 -
Sections 12, 13, and 14 of the principal act are repealed and the following sections inserted in their stead: - “ 12. The chief judge and the other judges -
shall be appointed by the GovernorGeneral in Council; and
shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity. “13. The qualifications of the Chief Judge and of each other judge shall be as follows : -
He must be a barrister or solicitor of the High Court or of the Supreme Court of a State of not less than fire years’ standing. “14b. - (1). Where a judge has served in that office for not less than fifteen years, he shall, on retiring, be entitled to an annual pension at the rate of one-half of his salary.
That after the word “ Council “ the words “but no appointment shall be made if either House of Parliament by resolution disapproves of such appointment “ be inserted.
The clause would then read -
Sections 12, 13, and 14 of the principal act are repealed and the following sections inserted in their stead: - “ 12. The chief judge and the other judges -
shall be appointed by the GovernorGeneral in Council, but no appointment shall be made if either House of Parliament by resolution disapproves of such appointment. . . . “
The object of this amendment is to give Parliament an opportunity to express its opinion on such appointments. This is very necessary for a number of reasons. In this instance, we are about to establish a court, the functions of. which, in my opinion, are of more importance than those of any other court or institution in this country, not even excepting the H igh Court.
– Were the judges of the High Court appointed by Parliament ?
– They were appointed by the Governor-General in Council.
– Why make a different provision in regard to the judges of this court ?
– I was about to give my reasons. So far as it affects the wel fare of this country, the Arbitration Court is far superior to the High Court. Any one who has noticed the absence of judgment, good feeling, common sense, and discernment from the settlement of industrial disputes, must realize that an authority whose function it is to provide a remedy must exceed in importance the High Court of Australia. Therefore, when appointments to the Arbitration Court are to be made Parliament should be consulted. I apprehend opposition to this proposal because it is a departure from a practice that has existed for years, and has become hallowed by custom.
– Has not that practice worked well ?
– It has in some cases, but ‘in others it has not. I do not want to have appointed to this court any person who has political leanings. I believe that my amendment will prevent that from happening.
– It will cause it to happen.
– It may, or it may not.
– Can the person be found who has not political leanings in one direction or another ?
– It may be a difficult task, but I believe that such a man can be found. The traditional practice is to give to the executive the exclusive prerogative of appointing judges and other high officers ; but a departure was made from that practice when the contract was entered into for the oversea carriage of mails, because that contract was made subject to the approval of Parliament.
– That is not a parallel case.
– It is not exactly parallel, but the two are closely related. Either the executive authority did not consider itself competent, or it believed that it was inadvisable, to complete that contract without consulting Parliament. The Judiciary Act, the Interstate Commission Act, and the High Commissioner Act, gave to the Parliament the power to cause the removal of the occupants of those offices for certain well-defined reasons. The High Commissioner Act has a special proviso under which the Parliament may intervene independently of any action that may be taken by the GovernorGeneral.
– The office of High Commissioner is not a judicial one.
– But it is a high appointment under the Crown. In his case it was thought right to reserve to Parliament the prerogative, which it alone should possess, of having high offices filled by the most competent persons. I could imagine political circumstances arising in this country which would render the adoption of such a course absolutely necessary. At present there are three parties in politics, and that number might very easily be increased.
– Each party under the honorable senator’s proposal might nominate its own judge.
– The executive for the time being would fill the traditional role of making the appointment, and Parliament would be powerless to prevent it. Ifmy amendment is accepted that practice will be altered, and no person will be appointed unless Parliament has first been consulted. If one House objects to any proposed appointee it will be a clear proof that in the opinion of that House he is an unsuitable person. Parliament is superior to the executive or to any other authority in this country.
– Except the High Court, because it defines the powers of Parliament.
– The High Court is only a creature of Parliament; therefore it cannot be above Parliament.
– It interprets the Constitution, and Parliament is bound by its decisions.
– That is a subordinate function. Let me return to my main point. The Arbitration Court is more closely concerned with the social and economic welfare of Australia than any other authority. The social and economic fate of this country reposes in the hollow of its hand, and unless we have upon it the best men who can be found, and the approved of Parliament, we shall run the risk of bringing into severe contempt this method of settling our industrial troubles. I do not want that to occur. We must ask ourselves whether we are to continue to be guided by precedent. When the question of appointing a High Commissioner was first raised the Senate discussed the matter, and at the instance of Senator Higgs it was resolved that the appointment should be decided by a vote of both branches of the Parliament. Fifteen honorable senators voted in favour of the motion, and ten voted against it.
– Has a High Commissioner ever been appointed by Parliament ?
– I presume that there was a majority of Labour men in the Senate at that time, and a majority of Liberals in the other place.
– Senators Fraser, Gray, and SirWilliam Zeal were not Labour men, butthey voted for the motion.
– The honorable senator has exhausted his time.
– I am quite sure that Senator Lynch is actuated by the highest motives, but I point out to him that the Constitution presents an insuperable barrier to the acceptance of his amendment. Section 72 of the Constitution reads as follows : -
The judges of the HighCourt and of the other courts created by the Parliament shall be appointed by the Governor-General in Council.
No law that we pass can either add to or take from that provision. If Senator Lynch will study the Judiciary Act he will find that it does not provide for the appointment of judges by the Parliament, the reason being that the Constitution forbids it. If we in this measure made such a provision it would beultra vires the Constitution.
– The amendment would not take from the executive the power to appoint judges.
-Most decidedly it would. The amendment reads -
But no appointment shall be made if either House of Parliament by resolution disapproves of such appointment.
There is a contradiction in terms. How could Parliament disapprove of an appointment that had not been made? The amendment is intended, no doubt, to provide for disapproval of an appointment that has already been made; but the words employed do not express what is intended. At what stage would the Executive know that it could make the appointment? Obviously, it could not make it on the chance that by resolution either House might nullify it, because once an appointment is made it will stand for life. Therefore, the’ only way in which Senator Lynch’s object could be achieved would be by a subterfuge; that is, by the Executive, before appointing the judges, submitting their names to both Houses. Then a vote of Parliament would have to. be taken upon the matter. But what would follow? Senator Lynch said that the Arbitration Court is a tribunal of great importance. I think we shall agree with him, but we may not endorse his statement that it is of greater importance than the High Court. If it is advisable that the Executive should have the appointment of the judges of the High Court, and that there should be no preselection by Parliament, I contend that the same procedure should be adopted in regard to the appointment of judges to the Arbitration Court.
– If we agreed to the amendment, the matter of the appointment pf High Court judges could be dealt with in the same way on another occasion, although I do not say that I favour the adoption of the course suggested so far as the High Court is concerned.
– I am glad that my thoughts are running in the same direction as those of such an astute member of the committee as Senator Thomas. I am pleased that he appreciates the point that if we adopted this course in appointing judges of the Arbitration Court, then, to be logical, we should have to do so in the case of the judges of the High Court.
– What harm would there be in that?
– It would mean the election of our judges by the Parliament. Their names would then be canvassed in the Parliament, because I have never known any election for the filling of positions by Parliament in which canvassing has not taken place. Canvassing is going on now in connexion with certain positions in this chamber; and it would take place in regard to the appointment of judges of the High Court and the Arbitration Court.
– Does the Minister suggest that no canvassing takes place at the present time in connexion with judicial appointments?
– I am not aware of any. I have never been approached in such a matter, although I have been associated with governments that have made many judicial appointments. Those governments have had to approach certain gentlemen, and, on account of the low salaries offered, they have had great difficulty in inducing them to accept appointment; that is the only form of canvassing that I have noticed. Surely such appointments should not be the subject of political canvassing. Once we allowed judges to be elected by Parliament, the positions would become the subject of party canvassing; and I ask whether that would be desirable. Senator Lynch remarked that his amendment involved a departure from existing practice. It does not. It would be a departure from existing practice in British communities, but not in the United States of America, where judges are elected. In the circumstances, it would be wise to consider what has happened in the United States of America in connexion with the election of judges. I spent five or six months in that country, and everybody who has been there, or has read of the system in vogue, agrees that the Federal judiciary, which is appointed by the Executive, compares favorably with the judiciary of any other country. But the State judiciaries, which are elected, are the subject of contumely even in their own country. They are not respected, because they are party and biased tribunals.
– By whom are they elected? Not by the State Parliaments’.
– By the people, on party tickets. Once wc adopt the system of electing judges in this Parliament, where we have parties, they will be elected on party tickets. The state judiciaries of the United States cf America are beneath contempt, and deservedly so. They are the mere tools of party organizations.
– Is there not a world of difference between the power of veto sought under my amendment and the mandatory power exercised in the United States of America?
– No executive could proceed to make an appointment if the next day it might be faced with a resolution of Parliament disapproving of it. The appointments are to be for life, and no government would dare make them unless it could be assured of the approval of both branches of the legislature. An election by Parliament is not an election by the people, but the inevitable result wouldbe a party election. No better test could be applied than that of the result of two systemsworking side by side in the United States of America, one - that of appointment by the Executive - showing good results, and the other the terrible results of popular election. Then, again, the system for which the amendment provides might not mean an election by Parliament, but an election by one House of the Parliament. Let us assume that we had a government in power, as we have had in the past, that had a majority in the popular House, and was unable to command a majority in the Senate. If that Government proceeded to make an appointment, the Senate, which would be of a different political complexion, could nullify it. It would mean that the popular House by itself would be impotent, and that the Senate would have the making of the appointment. What happened a few years ago might easily occur again. If Labour won the next election it would then have a majority in the popular House, but it would not have a majority in this chamber.
– It might have a majority in both branches of the legislature.
– Not unless death came to its assistance. It would then be in the position that it could not make an appointment. We should not drag the appointment of the judiciary down into the arena of party strife. If the Executive makes a wrong appointment, Parliament has its remedy by punishing the Executive. I appeal to honorable senators not to mix up the judiciary with the legislature. Under the Constitution the legislature, the Executive, and the judiciary have their respective functions, and to make the judiciary the tool of the legislature would be unwise and wrong. I ask Senator Lynch not to press his amendment.
– The arguments of the Minister (Senator Pearce) always command respect, but I think that hehas exaggerated the case he presented in opposition to the amendment. He commenced by stating that the Constitution provided for the appointment of judges by the Governor-General in Council, and, therefore, the Senate could not exercise the power of veto. If he wished to give effect to the amendment, he could do the same in regard to the appointment of judges as we do with the statutory rules that the Government frames from time to time. These are laid on the table, and if, within a certain period, no exception is taken to them, they become law. Similarly, the appointment of judges couldbe laid on the table, and, if within a certain period no exception was taken to them, those gentlemen would take their places on the bench. I think that that would be a most desirable course to adopt, because it would make the Executive very careful whom it appointed. I am prepared at all times to support the extension of the power of this Parliament, and to vote against any encroachment upon that power by the Executive. The Minister described the method of electing judges of State courts in the United States of America,but I think that he exaggerated the position. I have formed a very high opinion of those judges, many of whom have won leading positions in the public life of America, and arc among the best judges in the world.
– Of course, there are exceptions, but the system is bad.
– The Minister stated that some of those judges were beneath contempt; but under any system some men worthy of contempt will attain high positions. Senator Lynch’s proposal is not one for electing the judges. He has put forward a suggestion which the Senate, before I entered this chamber for the first time, declared should apply to the appointment of the High Commissioner.
– That is not a judicial position.
– Senator Pearce said that if the party to which I belong obtained a majority at the next election these appointments could, if this amendment were adopted, be cancelled. I do not believe that. I challenge Senator Pearce to mention one instance in which the Labour party, with a majority in this
Senate,while a Liberal or National Government was hanging on in another place with a majority of one, in a party spirit, rejected any statutory rule introduced by the Government.
– This legislation was not then on the statute-book.
– My experience of the Senate convinces me that honorable senatorsare prepared to shoulder their responsibilities. I have not yet met in this Senate any body of men who would object, merely on party grounds, to any appointment made by another political party.
– The honorable senator’s own party in New SouthWales recalled an Agent-General who had been appointed by another government.
– The Minister’s interjection is timely. The appointment was made by a government which had been defeated at the polls. In the circumstances, I consider that the recall of the Agent-General was justified.
– To which AgentGeneral does the honorable senator refer?
- Mr. Hall.
– What about Sir Arthur Cocks?
– Those appointments do not come within the scope of this clause.
– I was expressing the opinion, formed after a fairly long connexion with this Senate, that honorable senators will not use, for party purposes, any power that the passing of time may give them. During my connexion with the Senate there has generally been one party with an overwhelming majority, but that majority has never tried to thwart the will of the Government in important matters. And the appointment of judges is an important matter. There is much to recommend the proposal of Senator Lynch. If in its present form it is not in order, it could easily be altered to provide that, after the appointments have been made by the Governor in Council such appointments shall be laid upon the table in both Houses, and that should a majority of either House take exception to the person appointed, he should not take his seat upon the Bench. That could easily be done. I have in mind an instance in which a gentleman was appointed to the High Court of Australia. In my opinion, he was as well fitted by reason of his integrity and ability to occupy a seat - on the High Court as any man who has ever held such a position. But, because there was a discussion among the legal fraternity regarding his appointment, he immediately resigned his position.
– Who was that?
- Mr. A. B. Piddington. He was in every way fitted for the appointment; but because dissatisfaction was expressed at his appointment, he resigned it.
– What a fool he was !
– I can quite understand the interjection of Senator Thomas. Nothing would induce him to resign from a position to which he had been appointed. I can also appreciate the sentiments of the gentleman who declined to accept the position when his appointment was questioned. The facts which I have placed before the Senate regarding Mr. Piddington’s appointment should be well known to all honorable senators.
– The reason given by the honorable senator for Mr. Piddington’s resignation might or might not be correct.
– I do not suppose, Mr. Chairman, that you would permit me to enter into argument with honorable senators opposite as to the reason for Mr. Piddington’s resignation?
– The honorable senator has already gone far enough in that direction.
– I should not have done so, but for the unruly interruptions of honorable senators. I thought, however, that I was mentioning a fact which was known to every one. If a person were appointed to a judgeship, and his appointment were attacked in this Senate by a minority, who produced evidence which was not in the possession of the Governor-General when making the appointment to show that the person appointed was not qualified for the position, Senator Lynch’s amendment would provide an opportunity to remedy a wrong before irreparable injury was done. The amendment has much to recommend it. I can understand Senator Pearce saying that party government has reached such a state of fierce antagonism that nothing practical can arise from it. In this Federal Parliament I must admit that the party spirit has reached so high a level that I am unable to approach it. As a member of the Opposition, I could never assist the Government, as honorable senators in opposition did assist it, in connexion with the tariff recently dealt with in this chamber. In another place some Government supporters became somewhat rebellious, but the Government was saved by the action of those who should have opposed it. That is a standard of generosity and good feeling to which I do not pretend I could attain. Nevertheless, I am capable of appreciating it.
– If the Government had introduced freetrade proposals, would the honorable senator have supported it?
– I do not want to enter into a discussion of fiscal questions now. I merely referred to the tariff debate to refute the statement of Senator Pearce regarding the evil effects of the party spirit. The honorable senator exaggerated the dangers that would accrue from giving parties the opportunity to display that spirit. I can imagine such a high-minded and statesmanlike view having been taken by the Labour party had it been in control of the British fleet when it was rumoured that the German navy was in revolt. Had they been in Admiral Jellicoe’s place, they might have communicated with Admiral Von Tirpitz, giving him advice as to the best manner of getting his navy ready to fight them.. Senator Pearce referred to the canvassing which would take place in connexion with elective positions. While under the present system canvassing may not be done openly, I am of the opinion that many of the appointments made by the Government during recent years are the result of what practically amounts to canvassing in the Melbourne Club. Neither common sense nor breadth of vision has been displayed in connexion with some appointments which have been made. Looking at the Government benches, I should say that social standing, rather than intellect, or services rendered, has been the reason for the appointment of some members of the Cabinet. It is all very well for Senator Pearce to say that if persons were elected to these high positions a great deal of wickedness would be associated with the appointments. These things probably should not be left to a canvass; but at present they are the result of the friendly chat during a game of bridge or the drinking of a glass of champagne at the Melbourne Club. Have we become so sensitive that men whom the Government think fit to occupy high positions are not to have their qualifications inquired into by men who have been sent here to speak for the whole of Australia? What a dreadful thing it would be for a man appointed by the Governor-General in Council to have his character subjected to discussion by such men. I do not want to say any more about that aspect df the question. If Senator Lynch’s amendment in its present form is out of order, I hope that he will amend it, and press his amendment to a division. Parliament is rapidly losing its functions.
– If two or thr.ee more royal commissions are appointed, we shall have nothing left to do.
– The more powers we confer upon the executive, the more we reduce our own powers.
– The honorable senator has exhausted his time.
.- During this discussion it occurred to me that I could give the Senate an example of the nature of the appointments that might be expected under Senator Lynch’s amendment when party feeling runs high. While I believe that there is a good deal in the honorable senator’s suggestion, I have a high appreciation of the judiciary of Australia, and of other countries within the British Empire. On the whole, the men appointed as judges have been a credit to the country whose laws they have administered, but in Queensland we had recently a glaring example of what can be done in this connexion.
– That is why I submitted my amendment.
– On the death of a judge of the Queensland Supreme Court, it was necessary to appoint a successor. One member of the Cabinet - an honorary minister - was anxious to receive the appointment, but the other members of the Cabinet did not consider him to be fit for the position. Nevertheless he canvassed the caucus; and because others were anxious to obtain his position in the ministry, he obtained sufficient votes to secure tho judgeship, notwithstanding that the other members of the Cabinet were against him. He secured the position by one’ vote. When he approached one minister for his support he was almost kicked out of his room.
– When did that happen ?
– Last year. The person to whom I have referred, and who now occupies a position on the Supreme Court Bench of Queensland, obtained it by manoeuvring. The interests of the public were ignored.
– Where did the honorable senator obtain his information ?
– It was published in the Queensland newspapers. I obtained it also from persons who were acquainted with the facts. That man not only has received an appointment to a very high position, but, should he retire, he will, receive a pension. I am anxious that such a thing should not be possible in connexion with the Commonwealth Arbitration Court. Parliament is not the place where the merits of applicants should be discussed. In Queensland, also, recently, Ave had men appointed to the Arbitration Court, who should never have been placed in positions of authority.
– Who were they?
– I shall not mention names.
– The honorable senator probably refers to Mr. Dunstan, who is one of the best industrial experts in Australia. The honorable senator ‘ is endeavouring by innuendo to . besmirch the characters of honest men.
– If they are honest, my opinion will not hurt them. The people of Queensland know me, and they know the men to whom I have referred. I am content to let them be the judges. The honorable senator’s opinion carries no weight with me. I mentioned these instances to show what might be the effect of Senator Lynch’s amendment, if agreed to. I do not think that Parliament should have this right. The making of appointments should be vested in the executive, and the executive should be responsible to Parliament. The illustration I nave given indicates how pernicious political influence may become. There was a time when the Queensland Supreme Bench commanded the respect of people throughout Australia. At present, owing to the manner in which appointments have been made within the last six or seven years, the public has absolutely lost faith in it. Whether or not there is any justification for this feeling is another matter, but it is b.ad for every, one. I am opposed to the. amendment.
– I support the amendment submitted by Senator Lynch. Personally, I have the highest regard for the judiciary of Australia. Senator Reid has just suggested that appointments may, with justice, be made by every other party but the Labour party. My answer to that is that not many judicial appointments have been made by Labour governments in Australia, but those members of our judiciary who owe their appointments to Labour Governments are just as honest and just as high-minded as are judges appointed by Tory Governments. ‘ Senator Reid also had something to say about caucus canvassing in connexion with an appointment to the judiciary in Queensland. I do not know to whom the honorable senator refers, but we have a right to the name of the judge. If the honorable senator is not satisfied with the appointment - he has. alleged that the gentleman is incompetent - he should agitate for his removal from the bench. Senator Reid has said that, if Senator Lynch’s amendment is carried, there will be canvassing. What really will happen will be that the full light of day will be allowed to play upon all applicants, so the honorable senator really furnished an argument in favour of the amendment. The alleged objectionable practice to which Senator Reid referred just now will be impossible if the names of applicants for appointment to a judicial bench are placed before Parliament. If any attempt is made to appoint an incompetent person, public opinion will be so stirred that no government will be “ game “ to go through with it. As far as the Queensland industrial court is concerned, I happen to know one member of it - Mr. Justice Dunstan - and I can say truthfully, and without fear of contradiction, that no man in Australia has had greater industrial experience, and no mau has reached a higher level of probity. Therefore, I resent very much this personal and unjustifiable attack made upon him and one of his colleagues by SenatorReid.
– I made no personal attack upon the judges. I did not mention any name.
– The honorable senator said that they were political appointments. I deny that and I repeat that Mr. Justice Dunstan had as wide an experience in the industrial movement as any other man. For many years he held a responsible position in the Labour movement, not only in Queensland, but also in other States, and he is eminently qualified to discharge the duties of his high office.
– On the honorable senator’s own showing, he must be partisan.
– No more partisan than judges appointed by conservative governments.
– I am afraid that the Minister has misunderstood the purpose of my amendment. He says that if it is carried it will mean the election of judges.
– I base that view on the language of the amendment.
– I do not admit that it will lead to the election of judges. If I had thought it would, I should not have submitted it.
– Howcan it be otherwise ? Parliament must know the names of candidates before the appointments are finalized.
– If my amendment is carried it does not necessarily follow - and this is where the Minister and I part company - that there will be any canvassing of candidates for appointment. Certain names would be placed before Parliament and members, if they cared to do so, would have an opportunity to express their opinion upon their fitness or otherwise.
– In that case until Parliament had expressed its opinion the appointment could not be made.
– I do not apprehend that there will be anycanvassing, for the simple reason that if a government is wise it will take good care to present the names of persons best fitted for the position. There will then be no danger of Parliament undoing the work and vetoing the selection of the Executive. The purpose of my amendment is to retain for Parliament its undoubted prerogative in the selection of persons for these positions. The Minister says that if Parliament has an opportunity to express its opinion regarding the fitness of certain persons, that that will be equivalent to a canvassing of candidates. As a matter of fact Parliament now has that power - I cite the position of our Supreme and High Court Judges and the members of the inter-State Commission - and it has not been abused.
– But Parliament has never had the power of election.
– It has had the power of re-call.
– No. Parliament has only the right to remove a judge for proved incompetence or misbehavior.
– Parliament should control its public servants in high places, and deal with them if they misbehave themselves. Parliament, I repeat, has this right and has not abused it.
– That is because no judge has misbehaved himself.
– Surely it is desirable that Parliament should be consulted in regard to such appointments. The inherent right of Parliament to interfere is not challenged. Opponents of my amendment would not dare tosay that Parliament has no right to interfere up to the time of appointment. I do not want these appointments to be made without Parliament being consulted. Senator Reid himself supplied the strongest argument in favour of my amendment. He said that he did not want appointments to be made behind closed doors. Is not that so?
– I want such appointments to be decided here. Another weakness in Senator Pearce’s case is the assumption that members of Parliament are not on the same moral plane as members of the Executive.
– Not at all.
– That is the assumption. Let there be no mistake about it. Senator Pearce would have us believe that there is nothing wrong about the appointments that are made by the executive, but once they are moved into the arena of Parliament then, according to Senator Pearce, something sinister is likely to happen.
– There will be party canvassing. That is the point.
– Is there canvassing of the Executive? We have Senator Pearce’s declaration that, as a member of the Executive, he has never been ap- proached. I was a member of a Government in Western Australia, and also of a Federal administration, and I too bad no experience of canvassing ; that is not to say that where appointments are made by the executive, canvassing never takes place. In so far as some appointments in the past are concerned, canvassing has taken place. We have that from an authentic source. The object of my amendment is to ensure that a selection will be made in the light of day, and not behind the closed doors of Cabinet. When the qualifications of proposed appointees are scrutinized from every angle, there is a better chance of a proper selection being made than is possible behind the closed doors of the Cabinet. I regard with abhorence such a system as that which operates in the United States of America, where subordinate officers, including postal officials and others in receipt of $1,000 a year, are elected. That is carrying the proposal to the other extreme. There is every reason why, in this particular case, Parliament should make the appointments, because the Arbitration Court stands above all other courts. Its decision will have a more important bearing upon the social, domestic, and economic life of the country than those of any other similar institution. We should therefore be very careful in the selection of the judges. These appointments should be made by Parliament in the broad light of day. I am not suggesting that Parliament should take away from Cabinet the right to make appointments, because if any proposed appointees are not favoured by Parliament, the Government can submit the names of others. I stand behind this proposal, and if it is defeated, I shall submit another under which it will be mandatory for the Executive to place before Parliament the names of the persons to be appointed, although the decision of Parliament may not be acted upon. In the meantime I am asking that Parliament shall be made paramount in the appointment of judges of the Arbitration Court.
– I am opposed to the amendment moved by Senator Lynch, which, if carried, will be a reflection upon the Government. How could a government secure the services of men capable of filling a seat on the High Court bench if it had to obtain the sanction of Parliament before appointments were made? The Government is placed in a position of trust, and it is its responsibility to make such appointments. In this instance it should have the power to appoint judges just as it has in the case of the High Court. I am conversant with the scandalous case to which SenatorReid referred, but the Commonwealth itself has had no such experience in the 25years of its existence.If those in authority in one State have so fallen from grace as to use their position to provide spoils for the victors, that is no reason why we should depart from the practice of the Executive making appointments to high offices. Although there issome reason in the arguments submitted by Senator Lynch, I think the clause should be passed as it stands.
- Senator Lynch is, I know, actuated by the best of motives, but if appointments to such important positions are made in the manner he suggests, considerable trouble will arise. Is it likely that highly qualified legal practitioners would submit their names for consideration if their suitability for the positions to be filled was to be canvassed in Parliament? Men possessing the necessary qualifications would not submit to such conditions. In these circumstances I cannot support the amendment moved by Senator Lynch.
Question - That the amendment (Senator Lynch’s) be agreed to - put. The committee divided.
Majority . . . . 9
Question so resolved in the negative.
– I mover-
That the proposed new section 14 (b) be left out.
The proposed new section which I desire to omit provides for the payment of pensions for judges. The bill provides that the chief judge shall receive a salary of £3,000 a year, and the two- other judges each £2,500 a year. The Attorney-General (Mr. Latham), when introducing the bill in another place, said that the purpose of this clause was to remove from the mind’s of the judges any possibility of future financial anxiety. I realize that the Government is anxious to ensure the financial security of the persons to be appointed, but that should be done by paying a salary sufficiently high to enable the recipients and those dependent upon them to live in comfort without a pension. I do not say that the salaries provided in the bill are adequate, but, if they are not, we should make them sufficiently high to enable the judges to provide for the future. .Some future government may decide to provide for the payment of pensions to other highsalaried officials.
– I have an amendment which is prior to that of the honorable senator, and I suggest that he obtain the leave of the committee to withdraw his temporarily.
Amendment, by leave, withdrawn.
.- The clause provides that the judges of the Arbitration Court shall be appointed for life, and may be removed from office only upon an address by both Houses of the Parliament, passed in the same session, praying for such removal “ on the ground of proved misbehaviour or incapacity.” It is an .open question whether it is wise to appoint a judge for life; but whilst the Parliament has the right to remove that judge no objection can be raised to a life appointment. So long as he can be removed only on the ground of proved misbehaviour or incapacity, however, he is secure in his position for life, because it is almost impossible to prove those disqualifications. I have had experience of legislation that contained a similar provision. Neither House of this Parliament would pass a resolution praying for the removal of a judge, except for a just and serious cause. Parliament may be placed in a grave difficulty in the future if it is compelled to prove misbehaviour or incapacity.
– Has the honorable senator considered the point as to who will be the judge of the misbehaviour or incapacity?
– The matter might be referred to a court.
– No; Parliament is always the judge.
– i The Government can be taken before a court to prove misbehaviour or incapacity. Such a position arose in Tasmania in relation to a high official. The words of the State act were identical with these. The matter was taken to the Supreme Court, and neither misbehaviour nor incapacity could be proved. The State had to pay substantial compensation to get rid of him. I move -
That the words “ on the ground of proved misbehaviour or incapacity,” paragraph b, proposed new section 12, be left out.
– The clause follows, word for word, section 72 of the Constitution, and we have not the power either to add to or take away from that provision.
– It does not apply to Arbitration Court judges.
– The Arbitration Court is one of the ‘ ‘ other courts “ to which section 72 of the Constitution refers. Even if the amendment were agreed to a judge could not be removed except in accordance with the provisons of the Constitution. I point out to Senator Ogden that this Parliament will be the judge as to whether misbehaviour has been proved.
– There would be nothing to prevent a test case from being brought in the High Court.
– Nothing can be accomplished by the omission of these words.
.- I was not aware that the provision in the Constitution related to other than High Court judges. In the circumstances it is useless to persist with the amendment, and I ask leave to withdraw it.
Amendment, by leave, withdrawn .
Senator GARDINER (New South
Wales) [5.43]. - I move-
That the words “ and of each other judge,” proposed new section 13, be left out.
I wish the Government to have a free hand in deciding whom it shall appoint to the two subordinate, positions. If my amendment is agreed to, only the chief judge will require to be. a barrister or solicitor. There may be in the community nien who are not barristers or solicitors, but who are otherwise qualified by experience, character, and attainments for appointment as arbitrators. The Government seems to place lawyers on a pedestal. I have met many lawyers, and without wishing to show any unfriendliness towards them, I must say that with a few brilliant exceptions they have not impressed me. I have generally found them to be most impractical. A business man is brought into contact with the whole of the community, and his mind is broadened. Lawyers are trained in a groove which is altogether different from that of tradesmen or business men. Until recent years this chamber has been fairly free from the influence of lawyers. When 1 first entered it one of its most distinguished members was Sir Josiah Symon, and prior to that Mr. R. E. O’Connor - afterwards Mr. Justice O’Connor - was a member of the Senate.. They were both distinguished lawyers. For a lengthy interval the Senate conducted its business smoothly, without the aid of lawyers, although Senator Keating was a barrister who could have filled any position with distinction. The latest batch of legal men have never displayed exceptionally practical tendencies. When matters of law have to be determined, barristers and solicitors will always be appointed ; but in selecting a man for a position on the Arbitration Court bench the Government should look’ for the one who is best fitted to discharge those duties, irrespective of his knowledge of law. A lawyer has not attributes of learning, ability, or distinction that entitle him to preferential .treatment over other members of the community. Confidence in the individual appointed is the chief consideration, and if the executive appointed a person calculated to have the confidence of the community the court would be invaluable. If a practical man were appointed to assist the chief judge it would be of great value to the court, because important points are often entirely overlooked by lawyers. Why should the appointments be limited to lawyers, when the matters at issue are not questions of law, but of arbitration, requiring that the scales of justice shall be held evenly between employers on the one side and employees on the other? In the event of disputes concerning industrial conditions in coal or gold mines, I venture to say that numbers of laymen associated with those industries could be found who, because of their practical knowledge, would be- more capable than any lawyers of adjudicating in those disputes. The men appointed to the bench should have a knowledge, too, of the motives of those participating in industrial disputes. Judging by recent debates in this chamber, compulsory arbitration has its opponents even at the present day. I have watched its progress since 1891, when a royal commission was appointed to inquire into industrial grievances. Governments were then beginning to feel their way in the direction of compulsory arbitration, but we still have men among us who are incapable of understanding, not merely the value of what arbitration has done, but its advantage to the community because of the industrial turmoil that it has prevented. My amendment would enable the executive to appoint the most suitable persons available for the positions.
– I hope, with Senator Gardiner, that the matter will be considered calmly. At one time I shared the view expressed by the honorable senator, but I confess that riper experience and further consideration of the subject have caused me to change my opinion entirely. We must remember that the court is to be a body of three judges; it is not to be composed of one judge and two advocates.
– Why does the honorable senator say “two advocates”?
– Because, if Senator Gardiner’s amendment were adopted, the- court would be composed in that way. These are to be judicial appointments in each case. Lawyers are trained to interpret the law, to weigh the evidence presented, and to take an impartial view.
Industrial cases will be presented to the Arbitration Court in exactly the same way as that in which cases are submitted in a civil court. Evidence will be adduced by each party, and the judge should be a man capable of impartially sifting that evidence and coming to a right conclusion. The place for the practical business man and the worker with a technical knowledge is not the bench, but the witness-box. No other class of individual in the community is so competent to take a position on the bench as the lawyer. I have known mining cases of an intensely technical character which would be quite beyond the understanding of the average citizen. In one instance, mining men told me, after the judge’s summing-up, that they were astonished that any person, other than a technicallytrained mining man, could have such a grasp of the case as that judge did. The life training of judges qualifies them for this class of work. “Moreover, very few barristers are employers, and no other section could be less suspected of partisanship. Barristers, like doctors and clergymen, are not as a rule either employers or employees, although a lawyer may employ one or two clerks.
– They may be interested in industry.
– Yes ; but in many cases are they not. They have the great essential of trained minds that enable them to sift and weigh evidence, and they are not directly concerned in industry as employers or employees. The average layman is influenced largely by his predilection for or against an individual, but the lawyer is trained to brush aside such considerations and merely considers the merits of the case. Senator Gardiner unconsciously admits that lawyers are more fitted for judicial positions than any other class of individuals, since he agrees that the chief judge should be a lawyer. I point out, however, that thp three members of the bench are in a sense to have equal authority. It is true that they will sit together to determine such questions as the basic wage and standard hours; but in other matters, they will adjudicate individually, and matters decided by the junior judges may be just as important as those dealt with by the chief judge.
– Senator Gardiner did not say that they are not ordinary judges.
– He has moved to leave out the words, “ and of each other judge,” which would make proposed new section 13 read: -
The qualifications of the chief judge shall be as follows : -
He must be a barrister or solicitor of the High Court, or of the Supreme Court of a State of not less than five years’ . standing.
If the amendment were carried, it would be necessary to appoint two judges who were not barristers or solicitors.
– I do not say that.
– That is in the mind of the honorable senator, judging by his amendment. In Western Australia the Arbitration Court is presided over by Judge Dwyer, who is assisted by two laymen. Mr. Bloxome, as soon as he was appointed, was looked upon as the representative of the employers, and Mr. Somerville was immediately regarded as the representative of the employees.
– They are advocates ?
– Yes. Both are honorable men, and as good as could be obtained for those positions; but nobody inWestern Australia regards them as other than advocates for their respective sides. Nor do they pretend to be anything else.
– Has that court been successful ?
– Not so successful as it might have been. All its judgments are those of Judge Dwyer, the other two members being always on opposite sides. Recently, an important judgment was delivered in connexion with the basic wage. The judge found that the basic wage should be £4 3s. a week.
– That was the finding of the court.
– It was the finding of one man; I have seen the summing up of the three men. Mr. Somerville said that, in his opinion, the rate should have been £4 5s. a week, but that, in order to obtain a judgment, he had agreed to £4 3s. Mr. Bloxome said that it should have been £4 ls.
– Does the honorable senator suggest that, if the other two men were lawyers, there would always be unanimous decisions ?
– No; butI do suggest that each of them would be re- garded as judges and not as advocates, and that, because of their training as barristers and solicitors, they would be better fitted to decide the matters that came before them. A layman is always allied with one side or the other.
– Is it not possible to get independent laymen?
– It is very difficult to do so, because they are nearly always connected with industry, and are regarded as partisans. Senator Gardiner said that we placed lawyers on a pedestal. I do not regard lawyers as being better than other men; but I hold that men who are trained in interpreting the laws arc better fitted for judicial positions than are politicians whose duty it is to make the laws.
– The legal mind is trained to weigh evidence.
– A lawyer may not be a better man than a layman, but his training makes him better fitted to act as a judge. A lawyer’s whole training has the effect of giving him a judicial mind, and of making him impartial. No other occupation in the community does so to the same extent. Judges may hold strong opinions on various subjects, political and otherwise; but that these opinions do not weigh with them when dealing with the matters that come before them in the courts a case which came before the High .Court ‘recently, and which did not end satisfactorily from the Government’s point of view, is sufficient to show. Will honorable senators say that the personal political opinions of the judges of the High Court were not in accord with the Government’s proposals in that case? Yet they interpreted the law impartially, and the decision went against the Government. They weighed the evidence without regard to their political predilections or ‘the political predilections of others. The whole community, whatever their view of the Government’s action, was of one mind regarding the court’s impartiality.
– -How many different decisions were given? I understand that there were five different decisions delivered by six men.
– I do not know how many different decisions they gave, but I do know that no one attributed partiality to any of them. I ask the
Senate to remember that the three judges of the Arbitration Court will have to decide great industrial questions, such as the basic wage and a uniform working week. We do not want the advocate, but the judge, when decisions are being framed. The function of the advocate is to present evidence and plead his cause, but a judge is wanted to sift that evidence and make a decision.
– Is not the position the same in the case of the Tariff Board ? Does it not sift evidence?
– The honorable senator is obsessed with tariff matters. Let us concern ourselves with what is before us. For the Arbitration Court, we want three men, who will be judges, not advocates. We want men who will weigh the evidence, and give impartial decisions, unaffected by their personal industrial or political predilections. Above everything else, we want a tribunal in which the people will have confidence. They have confidence in the judiciary of this country both Federal and State, whose decisions they accept without a murmur. While litigants may not always consider that they have received mercy at the hands of our judges, they believe that they have obtained justice.
– Yet they sometimes appeal to the Privy Council!
– In the appointment of the men to comprise the Arbitration Court, it would be unwise to make a departure from the established practice.
. - The Leader of the Government in this chamber (Senator Pearce) would have us believe that Senator Gardiner’s object is to provide that the chief judge shall be a lawyer, and that the other two judges shall not be lawyers. I thought that Senator Gardiner had made it perfectly clear that if, in the opinion of those who would be’ called upon to express judgment, the lawyer applicants possessed qualifications superior to those held by lay applicants, they would be appointed. Senator Pearce said that he holds to-day opinions on many subjects which are different from those he at one time held. What is the reason for his changed views ? He would have the committee believe that because the average lawyer does not employ labour he is free from those influences which affect other sections of the community. It is true that some lawyers employ little or no labour; it is true also that some of them have been without briefs for a long time. But does that mean that they are not interested in trade and commerce? Like other citizens, lawyers sometimes make investments, and, being allegedly far-seeing men, they endeavour to get the best return for their money. They are, therefore, either directly or indirectly interested in trade and commerce. Senator Pearce said that lawyers approach the various matters that come before them with minds free from all prejudice. That may be true, but may it not also be true of laymen? Can laymen not enter the court with open minds and deal with matters impartially? It is unfair for Senator Pearce to say that laymen would be prejudiced ; that they would appear in the court, not as judges, but as advocates. The honorable senator’s arguments might be applied to the. wages boards, which exist in Victoria. I admit that these boards are not clothed with judicial powers, but they have the power to make awards, as has also the Arbitration Court. A wages board consists of representatives of both the employers and employees, with an independent chairman. Some boards are presided over by legal gentlemen; but, as a rule, the chairman is a layman.
– And no lawyers appear before those boards.
– That results in a saving of time.
– The interjections remind me of a statement made by a big employer in England, who declared that lawyers are not concerned about the amount of time occupied in” an inquiry, though time, as we know, means additional expense. The Government is out to, if possible, prevent industrial disputes, whether they be. intra-state or interstate. I hold, therefore, that persons who have an intimate knowledge of industrial activities should not be precluded from appointment to these positions, provided they have the necessary qualifications. Senator Pearce has told us that the proper place for the worker is in the witness-box.
– And the employer, too.
– Yes. In other States laymen, sitting with legal gentlemen, are filling positions as important as those to be’ created under this bill. Apparently the system is giving complete satisfaction. I have yet to learn that because an industrialist has not had the benefit of a legal training, he is not competent to deal with industrial matters. Parliament should insist on the appointment of the men most qualified for these positions. If the matter be left open, if the Government, in making the appointments, is not confined to the legal profession, a layman possessing the necessary qualifications may receive the appointment. If, however, the Government has made up its mind that only men belonging to the legal profession can be depended upon to give an impartial decision, all I can say is that I do not accept that view.
– The assumption is that a man, to be honest, must be a lawyer.
– According to the Minister, only a lawyer can deal impartially with industrial disputes. I venture to say that if some industrial disputes are brought before the court to be appointed under this ‘bill, and if representatives of the trades halls in the different States are on the bench, with the members of the legal fraternity, the latter will be in the position of apprentices in regard to the technical details of many industries. Whilst they may know all about the law, they will have to learn all the details of the business in dispute.
– Does the honorable senator think that the employers would have any confidence in men appointed from the trades halls?
– If Senator Elliott has correctly stated the views of all employers when he suggests that they would have no confidence in men associated with the trades halls, all I can say is that it is a bad outlook for Australia. I do not share that view.
– Did every employer have complete confidence in Mr. Justice Higgins when he was President of the Arbitration Court?
– We know what some employers have said about that dis- tinguished judge, and also about other judges. We know, too - I thank Senator Thomas for the interjection - that if certain employers had had their way, at one time there would have been an attempt to remove that eminent judge from his position. But we can leave that on one side now. What we are trying to do is to get the very best men available for the positions that will be created. We on this side hav.e no quarrel with the lawyers, and I am satisfied that the legal gentlemen in this Chamber are broadminded enough to acknowledge that amongst other sections of the community there are persons well qualified to fill these positions. I support the amendment moved by my leader.
Senator Sir HENRY BARWELL (South Australia) [6.28]. - I entirely agree with some of the remarks made by the honorable senator, who has just resumed his seat. Senator Findley said that Parliament should see to it that the men best qualified were appointed to these positions. I agree with that. The position of the judges of the Arbitration Court is of the utmost importance. The work they will have to do will have farreaching consequences. Their decisions may affect interests running into hundreds of thousands of pounds. But that is not the only duty that they will have to perform. They will also have to sit individually to try offences under the act, and will have authority to inflict penalties up to £1,000. There is no precedent for the appointment of laymen to such positions as that. Senator Findley has said that laymen are occupying similar positions in the State courts. To a certain extent that is true. In South Australia, laymen used to sit with special magistrates in the police courts, but now the special magistrates sit alone. If a special magistrate is not available, two justices of the: peace may try cases of minor importance only. It was found that a magistrate’s opinion was sometimes overridden by two laymen, and frequently such decisions were upset by the superior courts. It was not suggested that the laymen were guilty of partiality. The whole trouble was simply due to the fact that they were not trained men, and did not have the judicial mind. I do not think honorable senators fully realize the extent to which special training is necessary when weighing evidence. I could entertain them for. the whole of the evening with stories of ridiculous decisions, given by laymen in inferior courts, that have come within my own knowledge.
– No doubt the honorable senator could, but I submit that lawyers are not specially trained in industrial matters.
– Nevertheless a judicial mind is necessary to weigh evidence, just as it is in commercial matters.
– Nearly every commercial case is intimately related with industrial issues.
Sitting suspended from 6.S0 to 8 -p.m.
Senator Sir HENRY BARWELL.I have said that I am entirely in agreement with Senator Findley, in the belief that it is absolutely necessary that the Government should secure the services of the most highly qualified men for these important positions. I am sure that that is the desire of every honorable senator. We have to consider who are the most highly qualified. This is essentially a lawyer’s job.
– I do not agree with that.
Senator Sir HENRY BARWELL.Nevertheless it is. If medical attention is required the services of a medical man are obtained; For a lawyer’s job we need lawyers.
– And for an honest job we need honest men.
Senator Sir HENRY BARWELL.It is possible to find honest men amongst lawyers. This work requires the services of men with a knowledge of the law which only lawyers possess. It requires men with ability to interpret statutes, which, of course, is done according to rules of law that are understood only by lawyers. The work must also be done by persons who have the ability to sift and to weigh evidence, which can only be obtained after long experience, and then only by men with a legal training. Specialized knowledge the result of long years of training and ‘experience is also required. It has, therefore, been provided that the persons to be appointed must be lawyers of years of experience. The bill provides for the appointment of three judges, one of whom shall be the chief judge. Three judges are to be appointed, because the work cannot be efficiently carried on by one judge, and they are not being appointed with the intention of the three always sitting together. As a matter of fact, nearly all the work will be carried out by the judges sitting separately.
– As it is to-day.
– Yes; it is seldom that the three judges of the Arbitration Court sit together. One is to be termed chief judge in order to give him a higher status, and the right to preside when three judges are sitting together, but the work of the chief judge will be of no greater importance, or more onerous, than that carried on by the other two judges. Senator Gardiner disclosed the weakness of his case when he admitted that it was necessary to appoint one legally trained man. If the chief judge is to be a lawyer, why should not the other two whose duties are precisely the same, and who, as I have said, will act independently of each other, also be lawyers ?
– Occasionally they will sit as a full Arbitration Court.
– Yes, on such questions as the basic wage or standard hours of work.
– Yes; but applications to the court in which hundreds of thousands of pounds may be involved in a single issue, will be heard, and the awards given, by a single judge.
– And so with an application for punishment for a breach of the law.
Senator Sir HENRY BARWELL.Yes, that is only a part of their work. Their duties will also involve the liberty of the subject in cases of alleged offences against the act, in which cases they will have power to inflict penalties not exceeding £1,000, or imprisonment for twelve months. There is no precedent for laymen to adjudicate in such cases. It is quite true, as SenatorFindley stated, that laymen adjudicate in the States in a certain jurisdiction, but only in minor matters. Experience has shown that it is not wise to give laymen too much authority. The South Australian Par liament has provided that a stipendiary magistrate shall sit alone, because in the past a magistrate who is a legally trained man has frequently been out-voted on the bench by laymen, with the result that on appeal to a superior court a decision has been upset, the magistrate having been right and the laymen wrong. Such decisions have not been the result of partiality, but simply because the majority were not trained men. The Minister made out an extremely good case for the retention of these words, and it is therefore unnecessary for me to labour the question. The knowledge that laymen may bring to bear on such matters as will be dealt with by the court can be submitted in the form of evidence. The men who have to give decisions and who have to exercise judicial functions, should be trained legal men of considerable experience, and possessing very high qualifications. I believe that, on reflection, honorable senators opposite will see that it is necessary for the chief judge and also the other judges to be legally trained men.
.- The Minister (Senator Pearce) endeavoured to convey the impression that I was anxious to prevent barristers or solicitors from being appointed to the position of judges of the court. I do not wish to do anything of the kind. I am only anxious to provide that the persons best fitted for the work shall be appointed, even though they may not be barristers or solicitors. I am not endeavouring to be logical, but am only using a little common sense. Senator Thomas said that if an amendment were moved to provide that the chief judge should be a legal man and the other two members of the court laymen he would support it, and I therefore submitted an amendment to suit his views. For many years the minor courts in New South Wales have been presided over by laymen. I do not say that there has not been instances in which their decisions have been upset.
– Many of the magistrates are lawyers.
– I do not admit anything of the kind. The honorable senator will agree that for every one who is a lawyer there are 100 who are not. Many of them are men of a fine type, some of whom, unfortunately, have not had very much education, but they possess a judicial mind.
– I was referring to stipendiary magistrates.
– All stipendiary magistrates are not trained lawyers. I remember a story told in my boyhood days of a magistrate who had to deal with the case of a man who had been brought before the court for stealing potatoes. He looked under the letter “ T “ in the index to the Magistrates’ Guide, and finding something about turnips said “ It is a good thing he did not steal turnips, because for that offence he would have got three months. There is no penalty for stealing “ “taters.” A few months ago a gentleman of high legal attainments informed this Government that a certain measure was constitutional, but, after the expenditure of a large sum of money and an appeal to the court, it was found that the advice then tendered was worthless. I do not think one layman in ten would make such a blunder. Are lawyers trained to weigh evidence or to cloud it? I have very great respect for lawyers. I realize that we joke about their honesty, but that is only because it will stand joking about. I recall the story of a lawyer named Strange on whose tombstone was inscribed these words, “ Here lies an honest lawyer.” Every one who read the inscription said “ That is Strange.” I question very much whether it is possible for many lawyers to put up a better case for a client than laymen could if they only applied themselves to the task. One half of the inmates of our prisons would be free to-day if it were not for the incompetence of lawyers. To merely place a halo round the head of a lawyer and appearing before him on bended knees is not to make him a great man. I recall another story which was often repeated in my boyhood. Many years ago we had in New South Wales a very good lawyer named David Buchanan, who in the old court house at Orange, with the snow beating upon the window pane, was often to be seen with perspiration pouring off his face, as he pleaded for a client, and very frequently got him off. We also had at Orange another lawyer named McLachlan, who appeared on one occasion for a Chinaman in the local police court. The case was sent by the magistrate to a higher court. The
Chinese did not wish to incur the cost of engaging legal advice, so he decided to defend the case himself. He obtained a copy of a local newspaper containing, every question which McLachlan put to the witnesses for the prosecution in the police court. When the case was tried in the higher court the Chinese repeated these questions word for word, and the judge, realizing the unfortunate position of the foreigner, helped him considerably, and eventually the jury acquitted him. Coming down the steps of the court Mr. McLachlan patted the man on the back and said, “ John, you did your work well. I could not have done better.” The man replied, “ See me makee big fellow on bench think me innocent man just like Mr. Buchanan.” He was not a trained man, and yet he used his ability to his own advantage. We are living in an age when more than the higher classes are educated. I have been in contact with men on committees at the Trades Hall and at other places who possess a judicial mind, and who, if appointed to the Arbitration Court bench, would deal out justice irrespective of the consequences. I have no desire to have representatives of different classes upon the bench of the Arbitration Court, although among the trade unionists, as among the employers, there are high-minded men who are fitted to fill any position, and would prove an ornament to the bench. I do not want the hands of the Government to be tied. I wish it to be at liberty to appoint the best men, whether they are lawyers or not.
– Does the honorable senator think that a layman could fill the position of judge of the High Court?
– The chief function of the High Court is to interpret law, particularly constitutional law. Arbitration Court judges are principally concerned with bringing about peace between conflicting interests. I want to make the Arbitration Court a court of justice ; but honorable senators opposite, apparently, want to make it a court of law. There is a vast difference between the two. I can quite understand lawyers wishing it to be a court of law, because they understand very little except law. Their whole training is along the lines of showing points to their opponents and judges, and winning on points, if they can. The Arbitration Court can be made a useful institution. If it can be shown that lawyers are better qualified than laymen for appointment to these positions, my amendment will not prevent them from being so appointed. We have had a long list of very excellent judges. They have gained that reputation principally because the temperament of the people is such that judicial decisions are accepted without question, whether they are right or wrong. I give pride of place to no man in my esteem and respect for those gentlemen who have adorned the bench; but I could quote decisions that have been given in every State, which, to-day, would be laughed to scorn. Go back to the year 1890, and studythe decisions that were given in Queensland, New South Wales and Victoria. When a man was tried in. New South Wales for complicity in a riot, it was proved beyond doubt that, at the time of the alleged offence, he was 100 miles away from the place at which it was said to have occurred. The judge ruled that he had attended a strike meeting, which was an illegal gathering, and said that if he had been present for only ten minutes he was guilty of the offence. He was found guilty, and sentenced. I could quote a number of similar decisions that have been given by learned judges. I respect these men, when they discharge their functions worthily and well; but, until the contrary is proved, we must treat lawyers as merely the equal of other men. When a lawyer, on his merits, exhibits superior qualities, we can treat him with a little extra respect; but very rarely, outside his own profession, does he show himself even the equal of ordinary men. Of course, there are exceptions. Mr. R. E. - afterwards Mr. Justice - O’Connor, Sir Josiah Symon, and Mr Keating were prominent members of this Senate, and an ornament to the legal profession. The young lawyers who are now members of this chamber have not been here sufficiently long to enable me to form an opinion as to their greatness. Possibly in a few years’ time we shall be able to compare them with those men who have made their reputations and departed from us. With the exceptions that I have mentioned; I have not been associated in this chamber with a lawyer by whom I should care to have my case judged. On the other hand, I should have no hesitation in allowing my fate to be decided by dozens of honorable senators who have not been trained in the law. If the amendment is agreed to, the Executive will be able to make its choice from the whole of the community, instead of being restricted to barristers and solicitors. I commend it to honorable senators.
Question - That the words proposed to be left out be left out (Senator Gardiner’s amendment) - put. The committee divided.
Majority …. … 10
Question so resolved in the negative.
– I move -
That the proposed new section 14b be left out.
Every important position should carry a salary that is commensurate with the responsibility of the office and the duties that have to be performed, so that a sufficient margin will be allowed for the proper maintenance of the officer after his retirement. Many men and women in the Public Service to-day are not being paid such a salary. If the salaries which the bill specifies for the chief judge and the other two judges are not sufficient to provide for their future, they should be increased by this Parliament to the point at which they will give a sense of security.
– Is the honorable senator altogether opposed to the principle of pensions ?
– I am not. On the contrary, I am a supporter of the prin- ciple of universal pensions, under which every citizen of this Commonwealth would receive a pension upon reaching a certain age. We have upon our statute-book a Pensions Act, under which the aged in our community receive the paltry sum of £1 a week when they attain the age of 65 years in the case of males and 60 years in the case of females. But those persons, before receiving a pension, were on the bread line. We should fix a proper salary for the position, and the responsibility would then be on the occupant of the office if he did not provide for his retirement.
– I feel sure that the committee will not accept the amendment. Pensions are provided for Supreme Courtjudges in every State except Queensland. I thoroughly agree with honorable senators on both sides who have emphasized the importance of having qualified men as judges; but I point out that in order toget the best men we must make the positions attractive. The salaries proposed are not as high as those paid to some Supreme Court judges, and the pensions proposed are equal to those given to judges in New South Wales. Surely the calibre of the Commonwealth judges should be equal to that of the judges attracted to the Supreme Court Benches of the States. It will be found that the leading members of the legal profession earn salaries at the bar far exceeding those provided in the bill. Unlike lawyers in private practice, the judges would not be at liberty to increase their income by doing outside work. The positions must be made attractive, and the judges must be assured of a pension that will be sufficient to enable them to maintain the same position in the community upon their retirement as they occupied when members of the Bench. They must have a pension commensurate with the income that they would probably have provided for themselves if they had continued in practice at the bar. I do not think that the proposed salaries are excessive; but, with the nensions attached,we should be able to make our choice among members of the legal profession. We need the most highly-qualified judges available, so that Australia may entrust to them with confidence the mighty issues with which the Bench will have to deal.
– It seems extraordinary to provide a pension of £1,500 a year for a judge who will receive £3,000 a year for a long period, Avhen one recollects how reluctantly the invalid and old-age pension was increased to the nominal sum of £1 a Aveek. What is the difference in make-up between a judge and an ordinary citizen? Although some members of the legal fraternity have incomes of over £3,000 a year, thousands of them do not receive anything approaching that sum.
– Some of them earn £10,000 or £15,000 a year.
– But there are many briefless barristers throughout the country. No ordinary public servant will receive a pension equal to that proposed to be given to these judges. When members of Parliament, even after they have served the public for practically a lifetime, are defeated at the polls, they receive no pension whatever. Considering the m,anner in which some half-dozen judgments of the Supreme Court in Queensland have been upset by the Privy Council, one cannot help thinking that a number of the judges are not quite free from the class bias from Avhich they are supposed to be immune. If the people were given an opportunity to express their opinions they would strongly oppose the granting of a pension of £1,500 a year to a judge.
– The principle proposed by the Government to be embodied in the bill marks a distinct departure from precedent, so as far the judiciary is concerned. Federation has been in existence for a quarter of a century, and although Avhen the Judiciary Bill Avas before the other branch of the legislature many years ago an effort was made to provide for pensions, the principle was not accepted. Party lines were not draAvn then as they are to-day; but a division was taken and the question was decided on its merits, there being a substantial majority against the proposal.
– We had to give Chief Justice Griffith a pension by special act.
– The salaries provided under the bill cannot be said to below. The chief judge is to receive a minimum wage of £60 a week, and there is a somewhat smaller sum for the other judges. But it is seriously proposed, at this period of the history of the Commonwealth, not only to appoint the judges for life and pay them substantial salaries and adequate travelling allowances, but also to give them large pensions. The chief judge will receive, on retirement, £30 a week, and the other two judges will be paid pensions of £25 a week.
– After fifteen years’ service.
– But during the whole period of their appointment they will be in receipt of substantial salaries; and they should be able to do what opponents of Labour tell people on the bread line to do, that is, to make provision for a rainy day. Those who battled along in industry and did much to make Australia what it is to-day are receiving only a little more than they did a few years ago. It is indeed problematical whether the pension now paid to them is equal to the smaller pension which they received before the war.
– It is not worth so much.
– The Labour party has never opposed the payment of good salaries to men qualified to hold important positions in any sphere. But members of that party hold that, instead of granting pensions to judges on retirement, the Government should pay them a salary sufficient to enable them to make provision for the winter of their lives. If the salary provided in the bill be insufficient for that purpose, it should be increased; but there should be no pensions. If we agree to the payment of pensions in this instance, it will not be long before the Government will ask Parliament to approve of pensions being paid to members of the High Court.
Honorable Senators. - Hear, hear !
– I am opposed to the granting of pensions, and I hope that the committee will hesitate before it agrees to them in this case. The Government has advanced no reasons for paying pensions to the judges of the Arbitration Court. The only justification for their payment would be that the men would be unable from their . salaries to make sufficient provision for their future. The Government does not take that point into consideration in the case of men on the bread-line with big families to keep. It pays no heed to their future. Awards are made to meet their present needs, without regard to their requirements 10 or 15 years hence. The principle underlying the payment of pensions is wrong. I thought that we had seen the last of the payment of substantial pensions in Australia, but apparently this Government is making a fresh start in that direction. In Victoria, some men have been in receipt of pensions for many years, and the taxpayers have had to find the money. Speaking in another place in connexion with old-age pensions, one honorable member said that such doles sap the moral fibre of the community. Since that time the gentleman referred to has been elevated to a high position. Should he later receive an even higher appointment he would probably not think that the payment of a pension of £1,500 a year to him would sap his moral fibre. I rose to .offer my objection to the principle of paying pensions - a principle with which I hope the committee will not agree.
Senator ABBOTT (New South Wales) f8.50]. - From the remarks of Senator Findley one would imagine that it was proposed to appoint as judges of the Arbitration Court junior’ barristers and inexperienced members of the legal profession. The offer of the salaries provided in this bill should induce some of the more experienced members of the profession to seek the appointments; otherwise the outlook is certainly not one for optimism. If we are to induce the right type of men to accept these important offices, they must be made sufficiently attractive. If at the end of a few years the judges of the court have to retire without a pension the right type of men will not now be induced to accept appointment.
– We have good men on the High Court, and they receive no pension.
– The personnel of this court is of the greatest importance. With a court consisting of a judge and two laymen, representing employers and employees respectively, the final decision is left with the judge. The best results are not obtained in that way. The salaries proposed in the bill are not excessive. A judge who has rendered fifteen years’ loyal and efficient service should be entitled to a pension for the rest of his life.
– Few judges retire after fifteen years’ service.
– No ; most of them remain in office until they are about 70 years of age. We have never yet had to remove a judge from the bench. The only time that the question of a pension to a judge arose was in connexion with the late Chief Justice Griffith ; and in his case the granting of a pension was agreed to almost unanimously. I think that the committee will agree that it is only right to pay to a judge after fifteen yeaTS of service on the bench a pension equal to one-half of his salary.
– I rise to defend the legal profession from the imputations of Senators Pearce and Abbott, who told us in effect that, unless a bribe was offered we should not obtain the right men as ‘ judges of the Arbitration Court. That, in my opinion, is unfair to the legal profession, many hundreds of members of which would willingly sacrifice themselves for a salary of £2,000 or £3,000 a year, without a pension. I cannot become enthusiastic about not giving pensions, because I believe that every man is entitled to a pension. They should not be reserved for judges only. The principle should apply to all. The argument that the best type of men will not be obtained for these positions unless a pension is offered is unsound. Did we not have in Chief Justice Griffith, Mr. . Justice Barton and Mr. Justice O’Connor, who constituted the first High Court of Australia, the best men for the position? I say, without hesitation, that no man who would have refused the position because no pension attached to it was the equal of those men.
– These judgeships are not nearly so attractive.
– I do not know about that. I am not impressed with the statement that many members of the legal profession make £3,000 or £4,000 a year. At the zenith of his career a man’s income may exceed that amount by thousands of pounds, but not over a period of years. Senator Thomas once quoted the opinions of Mr. Crick regarding the incomes earned by distinguished barristers in Sydney. Mr. Crick ridiculed the idea that many of them earned the enormous incomes which the general public was led to believe they received.
– How long ago was that?
– Twenty-five or thirty years ago. Since that time the legal profession has become a great deal more crowded. Thirty years ago, not only in the legal profession but in Parliament and elsewhere, a few men stood head and shoulders above their fellows, for the reason that competition was not then keen. The position to-day in every profession is vastly different. Even in Parliament we do not see the giants that we saw in the past, because pigmies are almost of their stature. For a year or two lawyers specializing in a particular line, might earn enormous fees ; but in a period of fifteen years not many of them would average £3,000 a year, which is the salary proposed in this bill for the chief judge, to say nothing of travelling and other expenses. We cannot place a value on the services rendered to the Commonwealth by the men who constituted the first High Court.
– -They were patriots.
– Yes. and statesmen also. What Sir Samuel Griffith recommended 30 years ago was greatly in advance of what we have to day. I rose to rebut the statement of Senators Pearce and Abbott that we shall not obtain the best men for these positions unless a pension is granted. Our experience is sufficient to disprove that statement. I challenge honorable senators who are members of the legal profession to name any man in Australia who, when the first High Court was formed, was superior to the men who accepted office as judges of that Court without a pension.
– A salary of £3,000 a year then would be equivalent to about £5,000 a year to-day.
– Exactly. The cost of living has gone up. A wage of £3 a week in those days would be the equivalent of about £15 to-day. This is a proposal to pay pensions to certain judges. Are the judges of the High Court to be treated similarly ? If not, then the persons to be appointed to preside over the Arbitration Court will be in a better position than the High Court judges. The first duty of this Government is to introduce a bill to rectify that anomaly.
– There is a bill before another place.
– I take the view that men who serve Australia, particularly in high places, should be provided for. No treatment can be too good for them when they have terminated their careers. Senator Abbott and Senator Pearce belittle the legal profession by suggesting that unless pensions are offered it will be impossible to get the best men for these positions. Hundreds of men, well qualified to preside over the court, are prepared to sacrifice themselves for £2,000 or £3,000 a year. At all events, that was our experience in connexion with appointments to the High Court. Senator. Pearce has been long enough in office to know that there was hardly a man in the legal profession who would have refused a seat on the High Court had it been offered to him.
– Mr. Piddington did.
– That was not because there was no pension attached to the position, but because certain people objected to his presence on the bench, and being a sensitive and high-minded gentleman, he decided not to inflict himself on the community. Possibly I am in a peculiar position. I am under the impression that when the proposal to pay a pension to the late Sir Samuel Griffith came before this chamber I supported it. As I do not wish to appear inconsistent on this occasion I shall not exercise my vote.
Question - That the amendment (Senator Needham’s) be agreed to - put. The committee divided.
Majority … … 17
Question so resolved in the negative.
Clause agreed to.
Clause 7 -
After section eighteen a of the principal act, the following sections are inserted : -
Gazette any person, or organization, or association of employers or employees may apply to the court for liberty to be heard and the court may, if it is of opinion that the applicant is interested in the determination of the question, permit the applicant to be heard and to examine and cross-examine witnesses.
– I move -
That the words “ person or “ be left out.
Under the clause any person not necessarily a member of an organization, may apply to the court for liberty to be heard. If the matter in -dispute is a question, say, of hours of work, any person, including a solicitor, may claim that he is interested, and, if the court so determines, he may be heard. Why not leave this matter to an organization of either employers or employees.
– Is the individual to have no say at all ?
– The individual will be included in the organization. The carrying of my amendment will not, in any way, interfere with the rights of the individual. The ultimate decision will rest with the court. If the court determines that what the applicant has to say is vital to a case, the court, being a reasonable body, will not refuse to hear him, so there is not the slightest danger of the rights of individuals being overlooked.
– An employer may not be affiliated with any organization of employers.
– That would not be the fault of the organization. My amendment will cut both ways. It will apply to an employee who may not be a member of a trade union, and to an employer who may not be a member of an employers’ organization. Under the clause a person applying to be heard may also be a solicitor representing an organization, so he would appear before the court in the dual capacity of advocate and an interested person. No injustice will be done to any interests by the carrying of my amendment, because the court will determine who shall be heard.
Senator PEARCE (Western Australia - Vice-President of the Executive
Council) [9.15]. - This clause gives the Attorney-General power to intervene only in cases in which the standard hours of work in any industry or the basic wage is in dispute. When such cases -come before the full court - the Attorney-come before the full court - the AttorneyGeneral may intervene in the public interest, and the notification of his intention to do so will appear in the Gazette. Upon the publication of that notice any person or organization or association of employees or employers may apply to the court to be heard, and the court may, if it is of the opinion that the applicant is interested in the determination, permit the applicant to be heard, and to examine and crossexamine witnesses. Under the principal act “Association” means any trade or other union, or branch of any union, cr any association or body composed of or representative of employers or ememployees, or for furthering or protecting the interests of employers or employees. “ Organization “ means any organization registered pursuant to this act, and so far as applicable it also includes any proclaimed organization to which the Governor-General declares this act to apply. “ Person “ covers not only the generally accepted meaning of the term, but may also include a company. There are many companies which are large employers of labour which are neither associations nor organizations, and which are not registered under the Commonwealth Conciliation and Arbitration Act. For instance, the Broken Hill Proprietary Company has only recently become a registered organization under the act. Would any one suggest that the only persons interested in the question of fixing a basic wage or the standard hours of labour for Australia are members of organizations or associations registered under the Arbitration Act?
– That has been the weakness up to date.
– Yes ; it affects every employer and employee throughout Australia. There are other persons whose living will be vitally affected by the awards of the court and who should not be prevented from asking the court for the right to appear. That is all that is provided.
– After publication of the notice in the Gazette, 10,000 persons representing the flock-masters of Australia might ask to be heard.
– The court would say that they were already represented by the Pastoralists Association. The words are included to cover organizations, associations, companies, or, it may be, the Commonwealth itself. For instance, the Postmaster-General’s Department and the Department of Works and Railways, which employ labour, should have the right to be heard on such questions as a basic wage or the fixing of the standard hours of work in any industry. Without these words State instrumentalities, to which reference has previously been made, could not be represented before the court unless they came within the definition of “ association “ or “ organization.”
– Only organizations or associations registered in the court and responsible to it should be heard.
– The Arbitration Court will make awards which will bind not only the persons who come before it, but also other persons.
– It may make a general rule.
– A general rule laying down a basic wage and fixing standard hours. The decisions of the court on these points will be accepted by other arbitration courts throughout Australia.
– As is done under the present act.
– Yes; what is known as the Higgins standard was accepted as a standard by other arbitration courts throughout the Commonwealth. It is only right to give those vitally affected by the decisions of the court the opportunity to be heard. It will be for the court to determine whether such persons should be heard. I therefore ask the committee to retain the words “person or” in the clause.
– I do not see the necessity to retain the words “ person or,” as only associations or organizations registered in the court should have the right to appear. The members of the organization which I represent are following various occupations in different parts of Australia, and are responsible tothe court, but the position would become chaotic if any person had the right to appear. Under the present law the court deals with organizations and associations of employers or employees, but under the clause as it stands any person engaged in, say, the pastoral or mining industry could claim the right to be heard before the court.
– But the court would have to decide whether he had that right.
– I trust the committee will take a sane view of this proposal, and will prevent other than representatives of organizations or associations from appearing before the court.
– If the cost of living is to be increased, in consequence of an award of the court, should not the people have the right to appear?
– There may be something in that; but the right to appear should be given only to representatives of organizations and associations. The employees in a certain industry might be seeking an award from the court involving the expenditure on the part of the employers of perhaps £500,000, and if this word “ person “ were allowed to remain, individuals could claim the right to be heard, with the result that a final decision might be delayed for perhaps years.
– Why should persons be compelled to join organizations before they can be heard?
– Possibly, there may be something to be said on behalf of the individual, but, in my opinion, every one should belong to an organization or an association, the representatives of which can be heard before the court. The Australian Workers Union has a membership of 150,000. Each of those men could apply to be heard, and probably be able to advance very strong arguments in opposition to any proposed action in a case affecting their interests. Similar steps could be taken by the whole of the members of employers’ organizations, and there would be no end to the matter. Industries would be hung up, and a large number of men might be thrown out of employment.
– Surely the community has some interest in the matter !
– The members of the community are in either the em ployers’ associations or the organizations of employees. I admit that industrial disputes must be settled according to the laws of the land, but that object will not be achieved under the clause as it stands. I therefore urge the Government to accept the amendment
– The honorable senator has exhausted his time.
– Some misapprehension exists in the mind of Senator Barnes. This provision has no connexion with the ordinary plaint that is heard by the Arbitration Court. The proposed new section 18b provides that the Attorney-General, on behalf of the Commonwealth, may, by giving to the registrar a notice in writing of his intention so to do, intervene in the public interest in any proceeding before the court in which the question of standard hours of work in any industry or of the basic wage is in dispute. Sub-section 2 provides for thepublicationof the notice inthe Gazette.Only in those circumstances may the court allow any person, or organization, or association of employers or employees, to appear before it and be heard. Senator Barnes’ contention, therefore, goes by the board.It is fit and proper that every member of the public should have the right to be heard when the questions of standard hours and the basic wage are in dispute, because those matters are vital to the economic lite of the community.
– It is quite true that the clause provides for the intervention of the AttorneyGeneral, but that provision would not be. destroyed if my amendment were accepted. Whom does’ the AttorneyGeneral represent?
– The AttorneyGeneral will not appear before the court. He will send a notice to the registrar merely for the purpose of giving persons an opportunity to appear before the court.
– A plea has been made for the representation of the community. If the Attorney-General, who represents the community, desires to protect the public interest, it is his duty to appear in person or by counsel.
– The honorable senator misunderstands the clause. The AttorneyGeneral will intervene only in order to enable the public to make application to appear.
– Senator McLachlan said that Senator Barnes was under a misapprehension. 1 would pit the practical experience of the court that is possessed by Senator Barnes against the legal knowledge of Senator McLachlan, and have no fear of the result. The keynote of the second-reading speeches upon the bill was that it would prevent delay in the settlement of industrial disputes, and do away with appeals to a higher tribunal. If the clause is passed in its existing form the “resent delays will continue, because one individual after another will be able to claim the right to be heard. Senator Pearce referred to companies that are not embraced by either associations of employers or organizations of em- .ployees. It would be quite an easy matter for them to be heard, through the medium of the advocate who represents the employers’ association, when the questions of standard hours and basic wage were being determined. The right honorable senator went further and referred to works and railways and other governmental activities. There is a Public Service Association, whose duty it would bo to appear on behalf of any Commonwealth employee who otherwise would not be represented. I have heard no effective reason advanced against the. amendment, anient, and I therefore intend to press it to a division. ‘
.- I protest against the amendment, for the reason that has been given by Senator McLachlan. I regard the provision in the bill as the most valuable addition to the act. Under the existing law an award was given to the seamen which raised their basic wage practically to the level of that of the marine engineers, with the result that there was a tremendous dislocation in that industry. This provision if in operation at the time would have enabled the engineers to appear before the court and state their case. Then the whole matter would have been disposed of in one proceeding, instead of having another long case, causing tremendous delay and dislocation.” The fear expressed by Senator Barnes that there would be a procession of persons anxious to appear before the court is too childish for serious contemplation. They would have to appear through counsel.
– No; they would appear in person.
– The court, no doubt, would classify them according to their occupations, and would refuse to listen to a large number of persons who told the same tale. The parties would soon be narrowed down to a very few groups, who would naturally combine and share the expense of obtaining good counsel to place their case properly before the court. It would be ridiculous to imagine that a large number of farmers or sugar-growers would attempt as individuals to put their case before the court from their own particular aspect. In connexion with almost every application by a union, notices are served on hundreds, if not thousands, of employers. Theoretically, each employer has the right to be heard as a respondent, but in practice, groups of individuals combine and state their case through counsel or representatives. As has been already pointed out, the Attorney-General would not intervene unless he was convinced that persons other than the parties to the dispute were concerned in the case.
– I favour the amendment. I notice that the Attorney-General, under this clause, may “ intervene in the public interest in any proceeding before the court in which the question of standard hour3 of work in any industry, or of the basic wage, is in dispute in relation to either of those questions.” We do not know how often the Attorney-General may intervene, nor do we know how eccentric an individual he may be. .Senator Elliott stated that persons appearing before the court must employ counsel; but that is not so. After the AttorneyGeneral has given notice in the Gazette, any person or organization or association of employers or employees may apply to the court for liberty to be heard. It would be dangerous to allow one person to appear before the court, and to exclude another. Any person so entitled is to be permitted to examine and crossexamine witnesses, and I remind honorable senators that some laymen are even more competent than lawyers to examine witnesses in industrial cases. Supporters of the Government have referred to the necessity to expedite the work of the court; but if lawyers are to be allowed to appear there is bound to be further delay and consequent industrial trouble in future. The bench will be composed of men of probity and ability, and it can be relied upon to do the work entrusted to it. If the amendment were not agreed to, it would be possible for some persons, that are prepared to spend a lot of money on industrial matters, to hold up awards by making a large number of applications to the court. I suppose that at least one of the judges would have to spend much of his valuable time in dealing with such applications. The industrialists of this country have a suspicion, at any rate, that the words complained of have been inserted with some ulterior motive.
.- It would be inadvisable to retain the words to which exception has been taken. Ifthe organization with which I am associated were in a mischievous frame of mind, it could take advantage of the clause as its stands, and I venture to say that it would in certain circumstances do so. It recently obtained an award in the pastoral industry. Next year the employers may consider themselves entitled to apply for a rehearing of the case, or for an alteration of that award. I contend that the Australian Workers Union could, if it chose, allow 10,000 men to appear personally before the court. I can understand my legal friend opposite claiming that the parties should be represented by counsel. My union does not desire to see the spectacle of ten thousand persons appearing individually before the court. It claims to be a responsible body. The award that my union recently obtained was made for a year; but circumstances next year might warrant an alteration of that award.
– The honorable senator is repeating his arguments. Unless he breaks some fresh ground I shall ask him to resume his seat.
– A provision of this character should not be placed on the statute-book. An organization, whether of employers or employees, can be brought before the court andmade responsible; but that is not the case with individuals.
– I wish to refer to two points mentionedby Senator Barnes. The honorable senator mentioned the possibility of the court being crowded by “ persons “ as defined in this clause. As head of an organization comprising 150,000 men, the honorable senator must know that it has repeatedly been represented in the court by half a dozen men.
– Generally by one; but the organization has been responsible.
– The same argument should apply in other cases. Senator Barnes is of the opinion that the community is divided into two hostile camps - employers and employees - and that they are as distinct as the sexes. That is not the position. There are, it is true, two sections represented in every dispute; but, in addition, there is another section - the general community - which in the past has been sadly neglected. The opportunity is now being taken to consider its interests. Senator Barnes, from his own mining experiences, will know that 4,000 or 5,000 miners support a population of probably six times that number, whose interests are bound up with those of the miners! To protect them, this legislation has been introduced.
Question - That the words proposed to be left out (Senator Needham’s amendment) be left out - put. The committee divided.
Majority . . . . 18
Question so resolved in the the negative.
Clause agreed to.
Clause 8 agreed to.
– I move-
That the following new clause be in serted : - 8 (a). “ Section 27 of the principal act is amended by inserting after the word ‘dispute ‘ the words ‘ or of any proceeding for the variation of an award.’ “
This amendment can be accepted without in any way impairing the efficiency of the bill. Section 27 of the principal act reads -
On the hearing or determination of any industrial dispute an organization may be represented by a member or officer or any organization, and any party not being an organization may be represented by an employee of that party; but no party shall (except by the consent of all the parties) be represented by counsel or solicitor or paid agent.
That condition obtains when the original plaint is before the court, and it continues until an award has been given. But, as honorable senators know, application is sometimes made for the variation of an award. It will be admitted that the variation of an award is as important as the award itself, yet on such occasions the provisions of this section are not always adhered to. The proposed new section is merely to make these provisions operate when variations of awards are being dealt with, as well as when the original plaint is before the court. If, in the original hearing, no member of the legal profession is entitled to be present without the consent of both parties, the same conditions should apply when the court is dealing with variations of an award.
.- It will probably be found that the Arbitration Act could, with advantage, be amended in several directions, but, as I informed the Senate earlier, this bill has been introduced to meet requirements until the referendum proposals have been submitted to the people. There are some merits in the honorable senator’s amendment, and in other circumstances I do not say that the Government would not accept it. At this stage, however, it would mean delay in passing the bill, and I, therefore, appeal to the honorable senator not to press his amendment. I can assure him that the Government will take into consideration the amendment which he has proposed with a view of embodying it in subsequent legislation brought before Parliament. That legislation will not depend on the acceptance or otherwise of the referendum proposals, because, if they are rejected by the electors, it will be necessary to introduce further legislation, to amend and revise the arbitration law, within the existing powers conferred by the Constitution. The Government does not desire to return this measure to another place with amendments, but should the honorable senator press his amendment, we should be compelled to oppose it. I am informed that even as the law now stands in nearly every case when variations of awards are applied for, counsel does not appear, except with the consent of all the parties. The practice which obtains in connexion with the main hearing is followed in dealing with applications for variations, so that there is no likelihood of any trouble occurring. I promise the honorable senator that his suggestion will receive the earnest consideration of the Government.
– I thank the Minister for his promise that the Government will consider this matter when, perhaps, a further amendment of the Conciliation and Arbitration Act is introduced. Still, I consider the new clause I have submitted so reasonable and necessary, that it should be accepted. I understood the Minister to admit that there have been some cases in which legal gentlemen have appeared without the consent of both parties to the dispute.
– No; I do not know of any.
– Some such cases have occurred, otherwise I would not have proposed this new clause. This part of the act requires to be tightened up. The principle involved in my clause is admitted by both parties to industrial disputes. It would not take more than twenty minutes for another place to consider it, and its insertion in the bill would not delay its passage. Honorable members on this side regard this as an urgent measure, and are endeavouring to assist the Government to pass it. Whilst I appreciate the remarks of the Minister, I feel compelled to test the feeling of the committee on this proposed new clause.
Question - That the proposed new clause be inserted - put. The committee divided.
Majority . . . . 12
Question so resolved in the negative.
Proposed new clause negatived.
– I move-
That the following new clause be inserted : - “8 (a). The principal act is amended by inserting after sub-section (1) of section 22 the following: - “ Upon a registered organization lodging a claim as to any matter upon which the court is competent to deal, the court shall cause such matter to be published in the Gazette which shall be deemed to be sufficient notice to the respondents involved in the matter lodged in court, and the court will, in accordance with any further publication in the Gazette fixing a date for the hearing of the matter so lodged, thereupon proceed to hear such matter.”
Sub-section 1 of section 22 of the principal act reads -
No industrial dispute shall without the approval of the President be submitted to the court by an organization unless theRegistrar certifies -
that he is satisfied that the consent of the organization to the submission has been given in manner prescribed by the rules of the organization; or
that the consent of the organization to the submission has been given by resolution of a general meeting of members convened in manner prescribed for the consideration of the question, or as the result of a poll of members of the organization on the question taken in manner prescribed; or
that consent to the submission has been given in writing under the management of the organization.
The new clause I have submitted would not of itself provide for sufficient notice, but my intention is that it should follow sub-section 1 of. section 22. The requirements of paragraphs a, b, and c of that sub-section having been complied with, it is contended that notice in the Gazette as provided for in my proposed new clause would be sufficient notice to all respondents in any matter brought before the court.
– This amendment, like the last, has some merit in it, but it is only one of a series that could be submitted if we were amending the principal act in detail. Since we are not doing that, I ask the honorable senator not to press it. It is under consideration, and it will be further considered when it has been decided whether we are to have extended powers or whether we shall have to be content with existing powers in the Constitution. About a dozen similar amendments could be brought forward bythe Government. They have been considered, but the Government thinks it inadvisable to insert them in this measure.
.- - For a number of years I have been concerned about the cost involved in getting cases before the court. It has cost my union about £900 in postage alone to serve demands on employers. For this reason I think the Government would be wise to agree to an amendment of the act as suggested. A notice, published in the Gazette should be regarded as sufficient for the court to hear and adjudicate upon claims. Such notices would cost only about £1 or £2.
– That is the practice in Queensland.
– There should be no need for all this circumlocution. The country does not want it.. The country wants to have these matters settled simply and expeditiously.
– Very few people read the Gazette.
– If employers and employees knew that they would not be served with notices by post, they would take good care to read the Gazette. I wish this business of arbitration to be conducted on common sense lines.
Question - That the proposed new clause be inserted - put. The committee divided.
Majority … … 14
Question so resolved in the negative.
Proposed new clause negatived.
Clauses 9, 10, and 11 agreed to.
Schedule agreed to.
Title agreed to.
Bill reported without amendment ; report adopted.
Bill read a third time.
Assent to the following bills re ported : -
Science and Industry ResearchBill.
Science and Industry Endowment Bill.
Senate adjourned at 10.39 p.m.
Cite as: Australia, Senate, Debates, 23 June 1926, viewed 22 October 2017, <http://historichansard.net/senate/1926/19260623_senate_10_113/>.