18th Parliament · 1st Session
The PRESIDENT (Senator the Hon. Gordon Brown) took the chair at 10.80 a.m.. anc! read prayers.
– Can the Minister for Tra d«? and Customs inform the Senate of the principal causes of the shortage of new motor cars in Australia and can he say whether it i within the power of the Government to remove them? Further, can lie say whether motor car bodies are being manufactured in this country in sufficient quantities to cope with the imports of chassis? If they arc not, what are the principal causes of the hold-up in t he building of the bodies, and what makes of hrxli.es are in short supply?
– I shall endeavour to obtain the information sought by the honorable senator, and shall furnish a complete reply to him as early as possible.
Protection OP Members
– I desire to direct, a question to you, Mr. President. In view of recent happenings at Oklahoma, in the United States of America, will you, sir, take steps to have all honorable senators searched for le thu 1 weapons in order to prevent such happenings in this building?
– I do not think thai: such action is necessary, although there are times when I feel tempted to shoot some honorable senators when they speak too long.
– Is the Minister for Trade and Customs aware that in South Australia, there is still a. great shortage of paper bags of the kind used by canteens and shops for workmen’s lunches! Oan the. Minister relieve the situation by supplying South Australian bag manufacturers with paper in sufficient quantities to meet the present acute shortage?
– The honorable senator wrote to me on this subject recently, and following his representations, i arranged for an inquiry to be made regarding the shortages. The matter is now receiving attention by the Import Licensing Branch of my department. i have asked for early advice on the subject to be furnished to me, and wli.cn it is received i shall let the honorable senator have a reply. uranium:.
– A s the Government proposes to undertake research in connexion with atomic energy, and as it appears that South Australia, is .the only State in which deposits of uranium, are to be found, and the known deposits of uranium in that State are owned by’ the Government of South Australia, I wish to know, in view of the possibility of the application of atomic energy to industry, whether the Commonwealth will co-operate fully with the State Government in the exploitation of those deposits, and not itself take complete control of them, but recognize the light of the State Government in the production of uranium, ore at Mount Paynter in South Australia ?
– Discussions have taken place between the Prime Minister, the Minister for Post-war Reconstruction, the Premier of South Australia ami myself regarding uranium deposits in South Australia. The honorable senator’s request is based upon the importance of uranium ore in the event of the development of atomic energy for industrial power, and is prompted by the fact that South Australia has not a large supply of coal or other resources for the production of industrial energy. However, all honorable senators will recognize that insofar as defence considerations are involved, the Commonwealth must exercise complete control over all uranium deposits in Australia. At the same time, i believe that an agreement along the lines mentioned by the honorable senator will, if necessary, be reached, and that no injustice will be done to any State in which uranium, deposits are located.
– About a fortnight ago I asked the Minister representing the Minister for Immigration a number of questions relating to immigrants who arrived on Misr, and the Minister promised to obtain the information I sought. Oan he say when the information will be available’?
Sena toy ASHLEY. - As the Minister representing the Minister for Immigration is absent at the moment, I shall bring the honorable senator’s request to his attention.
– In view t f the very great increases of the prices of jute goods, particularly sacks, chaff bags and woolpacks, .and the heavy burden which these increases represent to both producers and consumers, will the Minister for Supply and ‘Shipping refer the question of the suitability of other raw materials for the manufacture of the articles I have mentioned to the Council” for Scientific and Industrial Research? Perhaps fi suitable fibre could be produced in Australia, or in the territories controlled by the Commonwealth.
– The price of jute goods is beyond the control of the Government, because these goods are imported from India.
– i. am not blaming the Government for the high cost.
– The honorable senator generally blames the Government for everything.
-Hays. - I blame it when it deserves blame, and praise it when it is praiseworthy. (Senator ASHLEY.-.! have heard little praise but plenty of blame. I am merely clarifying the point to the honorable senator. Some time ago this matter was raised in the House of Representatives by a Government supporter and it was then pointed out that we did not have the raw material in this country for the manufacture of jute. However, I shall ask the Minister in charge of the Council for Scientific and Industrial Research to have an investigation made of the possibility of manufacturing these goods here.
– I ask the Minister representing the PostmasterGeneral whether it is the practice to send to Adelaide telephone instruments recovered from cancelled services in country districts of South Australia. If so, could these insstrumente not be made available to applicants for telephones in those areas?
– The honorable senator asked a similar question yesterday and he now seeks clarification .of the answer given. I have been informed -by the Postmaster-General’s Department that it is not the practice to send to Adelaide telephone instruments .recovered from cancelled services in country centres in South Australia unless such instruments need to be completely reconditioned. Telephones are forwarded to Adelaide only in a small n umber of cases. The honorable senator can rest assured that once a service has been disconnected, it will be allotted to a waiting applicant in the same area.
asked the Minister representing the Minister for Post-war Reconstruction, upon notice -
– The Minister for Post-war Reconstruction has supplied the following answers : -
Queensland,566: South Australia, 750: Western Australia. . 1,589: Tasmania. 432: Northern Territory, 8: total 7,909.
Supply of Information to Newspapers
asked the Minister for Repatriation, upon notice - 1.Is it a fact, as reported in Smith’s Weekly, that; the Minister instructed the South Australian Deputy Commissioner for Repatriation, Mr. Webster, or any of his officers, not to give information to that newspaper?
– The Minister for Repatriation has supplied the following answers : - !. Yes.
Bill received from the House of Representatives.
Standing and Sessional Orders suspended.
Bill (on motion by SenatorCourtice) reada first time.
– I move-
That thebill be now read a second time.
The purpose of this bill is to validate thecollections of duties of customs imposed by Customs Tariff Proposals No. 1 of the 14th November, 1946. Without this action the authority to collect duty under these proposals would expire on the 14th May, 1947. The proposals which it is desired to validate principally gave effect to the reductions of duty introduced by the Government in connexion with its “1946-47 budget. The goods covered by the proposals were methylated spirits, tobacco, dry batteries, petrol and certain, petroleum products, and carbonic acid gas. The amendment relating to tobacco did not entail’ a reduction of the . rates of duty but related to an alteration of the wording of the item. No absolute period of validationhas been prescribed in the bill. This follows the course established in previous validation hills and will secure uniformity with validation acts which are at present operative. The bill does not preclude the individual items in the proposals being debated by honorable senators, as a. tariff debate is necessary before such items can be permanently included in the Schedule to the Customs Tariff Act. A tariff debate will be held as soon as circumstances permit.
– As this is a purely machinery measure and as I understand that the Department of Trade and Customs is anxious to have it passed, I raise no objection to it.
Question resolved in the affirmative.
Billread a second time, and passed through its, remaining stages without requests or. debate.
Bill received from the House of Representatives.
Standing and Sessional Orders suspended..
Bill (on motion by Senator Courtice) read a first time.
.- I move-
That the bill bc now read a second time.
The purpose of this bill is to validate the collection of duties of customs imposed by Customs Tariff (Southern Rhodes ian Preference) Proposals No. 1 «f the 14th November, 1946. The resolution of the 14th November, 1946, covered an amendment to the wording of the item relating to tobacco. This amendment was necessary as a complementary measure to the alteration in the wording of the tobacco item covered by the Customs Tariff Proposals of the same date.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without requests or debate.
Bill received from the House of ‘ Representatives.
Standing and Sessional Orders suspended.
Bill (on motion by’ Senator Courtice) read a first time.
– I move -
That th« hill bc now read a second time.
This bill seeks to validate the collections of the duties of excise imposed by Excise Tariff Proposals No. 1 of the 14th November, 194G. This bill has a similar effect to that o-f the preceding validation bills. The items in the resolution covered by the validation bill relate to the definition ‘of beer and a reduction of Id. per gallon on locally produced petrol. The reduction of excise duty on petrol was complementary to the reduction of Id. per gallon included in the Customs Tariff Proposals of the 14th November, 1946.
.- As this bill relates to the reduction by a penny a gallon of” the. duty on petrol manufactured in distilleries I should be glad if the Minister would inform the Senate what quantity of petrol has been manufactured at the distilleries situated at Warracknabeal and Corowa.
Senator COURTICE (Queensland Minister for Trade and Customs) [10.57 j. - im, reply - I do not know the exact gallonage; but I understand that petrol to the value of about £80,000 was manufactured. I shall obtain the information for the honorable senator and let him have it later.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without requests or debate.
Debate resumed from the Sth May (vide page 2091), on motion by .Senator McKenna -
That the bill be now read ti second time.
.- This bill will be accepted by the people of Australia as a step towards securing peace in industry. The appointment of conciliation commissioners will hasten the implementation of ideas, which have proved successful in other places. The objects of the bill are set out in proposed new section 2, paragraphs b and c of which provide -
To promote goodwill in industry and to encourage the continued and amicable operation of orders and awards made in settlement of industrial disputes.
To provide for the appointment of Conciliation Commissioners having power to provent and settle industrial disputes by conciliation and arbitration.
Any legislation designed to accomplish those ends is a step in the right direction. One of the most fertile causes of industrial unrest during the 40 years that legislation providing for conciliation and arbitration in industrial disputes has been in operation has been the long delays in hearing eases brought before the court. Those delays have, caused dissatisfaction and annoyance to both employers and employees. I remember that on one occasion when .1, as secretary of an organization, submitted a claim to the court, the organization had to wait six months before the case was heard. ‘ Should an award, when it is eventually made, be retrospective in its application some of i ho ground for dissatisfaction is removed, but the fact remains that these delays arc: disruptive of harmony in industry. I admit that the Arbitration Court has done good work, but I have not agreed with all ‘that it has done. Many of .its determinations have not pleased 11 k although, perhaps, the employers affected Iia ve been satisfied.
I desire to dispel the erroneous idea i hat -strikes are always caused by the workers in industry. I know what I am talking about when I say that strikes are sometimes engineered by employers, because at one period of my life I was a victim of a lockout. I know of strikes on the coal-fields of New South Wales being brought about by the action of the coal owners who thought that the existence of a strike prior to an election would serve their political ends, lt is easy for an employer to pin-prick his employees, and by such tactics to create dissatisfaction leading to a strike. Should that occur, capitalist newspapers appear the next day with large headlines announcing “Another Coal Strike”. Even such happenings as a break down of machinery, or a fault in the electrical supply system, is always attributed to a strike by the workers. I believe that, as ! result of this legislation, there will be. fewer .strikes in industry in the future. As an instance of the value of concilialion when industrial disputes arc pending. I mention that in 1940 when I was travelling to Canberra on the TransAustralian railway, I was approached by a number of railway workers who asked that their working week should be reduced from 4S hours to 40 hours. As a result, of my representations on their behalf their request was granted, and the men were given retrospective pay. When the present’ Leader of the Opposition (.Senator McLeay) was a Minister in a previous government I .asked him how many organizations had submitted plaints for hearing by the Public Service Arbitrator which had not been heard. The honorable senator, as .reported in Hansard Volume 163, page 195, replied that there were 43 such cases and that some of them had been- awaiting hearing for several months, and in few instances for more than two years. The honorable senator was good enough to add that he had approached the then AttorneyGeneral (Mr. Hughes) with a view to appointing an assistant in order to hasten the hearing of applications. Naturally, J. was pleased with that assurance; and for the information of the parties upon whose behalf I had taken that action I announced the reply I had received to the press in Western Australia, and it was duly published. However, within the following fortnight I was informed that a. mistake had been made, that owing to war conditions the Government could not see its way clear to appoint another arbitrator, or a conciliation commissioner, but I. was further assured that the cases would be heard as soon as possible. They were duly heard, but after a very long delay. Delays of that kind are at the heart of most of the discontent among the workers. They are thus fore-“’ to resort to direct action in order to obtain redress of their grievances. No body of workers willingly goes on strike, because the workers themselves, and their families, suffer most as the result of strikes.
I am confident that the conciliation commissioners to be appointed under this measure will fully justify the confidence of the Government. I say without hesitation that many members of the Senate, including honorable senators opposite are capable of performing the duties of those commissioners, because included among us are men who have had considerable training and experience in industrial matters. “Unfortunately, some of those honorable senators would be precluded from, appointment on account of advanced age, if for no other reason. I believe that Senator Leckie would make an ideal conciliation commissioner, because, despite of his- strong opposition to the Government, he sincerely desires to do what is best in the interests of the community as a whole. I am confirmed in chat opinion o’f Senator Leckie as the result of certain contacts I made with him while I was a member of the War Expenditure Committee. On those occasions lie readily co-operated with that committee.
I am confident that the people favour this measure, and that it will remedy many defects in the present conciliation and arbitration system. The Minister, in his second-reading speech, said -
Within a matter of days or even hours, the activities of a few individuals may hold up the industry of a continent. Every effort must lie made, therefore, to streamline the methods by which actual, and more particularly threatened, industrial disputes can be brought to the knowledge of the industrial administrators: to give as much scope as possible for the initiative of conciliation authorities themselves : and to improve the methods by which they can act in the public interest for the prevention and settlement of industrial disputes……..
Therefore, each of the conciliation commissioners will be given power, without technical and artificial hindrances, to go to the cause of impending industrial trouble, and to endeavour ‘ to remove the cause of the trouble by conciliating the disputants.
Those facilities are lacking in the present system. We must remember that employees cannot ‘be blamed for all disputes, but that employers by resorting to lockouts also cause many strikes. It is very easy for an employer to cause ill-feeling among his employees. I support the bill.
.- wi reply - The motion for the second- reading of the measure has provided a very interesting and informative debate. Honorable senators on this side of the chamber who have had considerable experience in the industrial field have contributed much information to the Senate. Honorable senators opposite have not- made any violent attack upon the main principles of the bill, but I find it necessary to contradict some of the propositions which they put forward. There can be no clear approach to the measure unless two things are realized fully. The first is that the Commonwealth labours under the disability that it has very limited constitutional power in the field of industrial relations. It has -sought on many occasions to remedy that defect. It ‘has faced, the position that this Parliament is charged with responsibility for the economic condition of ‘the whole of the Commonwealth but, at the same time, lacks power to control, or deal with, one of the most vital elements in ‘that economy, viz., the terms and ‘conditions of employment in industry. On two occasions recently, the Government has asked the people -a;t referendums to agree to amendments to the Constitution in order to overcome that defect. The people refused ‘those requests. This very limitation of power is, itself, one of the most potent causes of industrial unrest in Aus- tralia to-day. Therefore, the people of this country must accept -their -proper share of responsibility -for industrial unrest arising from the limitations placed upon the power of the ‘Commonwealth in the field of industrial relations. Secondly, there can be no clear understanding -on the bill if it is regarded as a total ‘statement by this Parliament on the subject of ^conciliation and arbitration. Some honorable senators opposite have approached the measure as though it: states the whole of the law upon the subject. That has led to various misconceptions which I shall endeavour to clear up.
The bill, in fact, mainly repeals Part III. of the principal act, and substitutes a new part and on a different basis ; hut it merely amends some of the remaining sections of the principal act. It certainly does not contain the whole of the law relating to conciliation and arbitration. That has been presented for the information of honorable senators in a memorandum which shows the bill as it will appear as finally amended under this ‘ measure.
Senator Herbert Hays was good enough to indicate that the measure was an attempt to bring about peace in industry in this country, and he generously acknowledged the Government’s belief that that end would be achieved by the bill. The Leader of the Opposition (Senator McLeay) was also gracious enough to concede the same two points. Senator Cooper, in the course of . his remarks, stated that the bill had been forced upon the Government by extremists. I take an early opportunity to controvert that statement. It is true that the Government interviewed -ail interested bodies in the Commonwealth the .trade -unions and employers’ .organizations in -their various categories. “Very Ml and frank discussions were held at Canberra, and draft bills and various suggestions iI Ul amending the .principal act, were .presented by those various bodies. All of those submissions ‘were given the (fullest consideration by the Government,; but, -as I ‘indicated in my second -reading speech, this measure represents a completely independent approach 1 Oy the .Government to the subject. Honorable senators cannot ,point to any representations made ‘by -any .of .the bodies which were -consul ted ‘which have been incorporated in toto .in .the bill. Nor does the bill .bear a close .resemblance ..to any of the various suggestions ‘that were put before ‘the .Government. T<he Government -has approached -the -matter from .theviewpoint of its .limited .constitutional powers with the clear objective not only of doing justice between employers and employees in their separate classes, but also of seeing that even-handed justice is meted out to the community at large. That .is the approach which has dominated the Government’s mind in drawing up the measure.
Senator Copper .also said that the bill stripped -the Arbitration ‘Count in f avour of conciliation -commissioners. It will pay to -review the position which has existed ‘during -the -last few years in order to .consider this matter ,in its right perspective. In 1930, the Scullin .Government proposed to introduce .conciliation commissioners into the arbitration -field. It proposed that there should be an Ull-limited number of -such commissioners. This .Senate, however, .which ;then comprised a -non-Labour majority, limited the number to three. In that, of course, it was .conservative, lt have :taken the opportunity to read the debates that took place an .this chamber when that measure was under consideration, and I have found that the fears that are expressed to-day by members of ;the Opposition as to what will happen in this country when conciliation .commissioners are given power and .scope were expressed then, and I put it to ‘the .Senate that these if ears are as .groundless to-day ,as .they were .then. I assure the Senate that the Government realizes .that. the. success of the experiment that .is ‘being embarked on under this bill in the appointment of conciliation commissioners will involve .great care in the selection -of the individuals. The Government -recognizes, of course, that a conciliation commissioner must have notonly ability, but also integrity, courage, judicial temperament and, essentially, a sense -of community responsibility. The Senate -can rest assured -that when .the time comes to make these appointments, all these factors will be borne in mind, and I am confident that the people of Australia will have no cause for comp’laint regarding the calibre of the men who will ‘be appointed.
Senator Cooper said that the federal parliamentary Labour party, which he called caucus, would select these men. That is unquestionably wrong. The selection .will be made .by the GovernorGeneral -in .Council, arid that means the Ca binet. The party will ‘not be consulted so far .as the recommendation and appointment of these men are .concerned. That is purely a governmental responsibility and the Government ‘will not shirk i t For the same reason, (he .Government is not prepared to . accept Senator Cooper’s suggestion that a .panel of names be referred to -judges of the Arbitration Court or of the High Court; The Government recognizes its responsibility and will discharge lit. It ‘is extraordinary to me that there should be opposition from the non-Labour parties in this .Parliament :to the appointment of conciliation commissioners. When they occupied the government benches in 1940, .when thi3 country was engaged, in war and when there was serious ‘industrial strife and an nugent situation .had to be met, they introduced the Industrial Peace Regulations. They did -not .take steps to strengthen the court as they suggest to-day by increasing the -number of judges. They did in 1940 .what the Scullin Government asked them to do in 1930. They ‘appointed a.n unlimited number of conciliation commissioners. By that. -.act in .a state of emergency, -they acknowledged the very soundness of -the principle that is the fundamental feature of this bill.
– And they appointed men with industrial experience.
– That is so, and I think that it is’ safe to say that the Opposition in this chamber and in the House of Representatives has freely and generously acknowledged the worth of the individuals appointed and the excellence of their work in the last few years. This bill does no more than enshrine in a permanent fashion the principle that had the approval of honorable senators opposite in 194.0 and against which they have directed no opposition.
Yesterday, the Leader of the Opposition (Senator McLeay) referred to an opinion expressed by a very eminent authority, Sir Robert Garran, in condemnation of what in being done under this measure. I, too, shall quote a very eminent authority. He said -
I’f members of Parliament representing all political parties could agree to bring employers and employees together, and so ensure the settlement of 00 per cent, of industrial disputes 1,v conciliation, we should be doing a groat, service to this country. I do not suggest that when n. dispute reaches the Arbitration Court the problem has been solved. In fact 1 n.ni of the opinion that the more often disputes are ventilated in this way, the wider becomes the gulf between employers and employees. That, is thu cause of much of our industrial trouble.
With these sentiments I agree entirely.
– The honorable senator has not named the eminent authority who expressed them.
– I forgot to mention that it was the Leader of the Opposition himself, on the 14th March, 1946.’ Those remarks may be found on page 255 of Mansard of that year. All T. put to the Senate now is this: Which voice of the Leader of the Opposition are we to accept? The one that says there is too much court; that there is not enough conciliation and that there should be 99 per cent, conciliation, or the other that we heard yesterday objecting to the opening up of conciliation, and saying that, we did not have enough court and that the court should be strengthened by the appointment of more judges? The Senate may please itself which of these contrary views expressed by the Leader of the Opposition it will accept:. Personally, I give my endorsement to the remarks that the honorable gentleman made on the 14th March last year, and which I, in a following speech on that occasion, approved.
I come now to something that was said by Senator Leckie. The honorable senator claimed that a conciliation commissioner could not be a legal man. Let me make the position quite clear: There is no prohibition on the appointment of legal men to the office of conciliation commissioner. It may well happen that a legal man will also possess the other qualifications that I have indicated and therefore will be well fitted for the position. I have no idea, who will be appointed but I am sure that there will not be any lack of applicants. As I said a few days ago, although applications for the positions have not yet been called, some hundreds have been received. At least there will be a wide field of selection, and I assure honorable senators that they need have no fear that legal qualifications will operate against: an applicant.
Senator Leckie made an amusing speech. It was amusing to me for more reasons than he- intended. He said that a. conciliation commissioner would be virtually a dictator. The honorable senator foresaw the danger that conciliation commissioners, having little to do and wishing to use up their flagging energies, would deliberately promote dissension in industry; that they would go abroad and seek to stir the parties up; that they would create disputes between employers and employees so that they would have something to do to justify their existence. In the next breath, however, the honor-, able senator also expressed the fear that the guillotine would be applied by conciliation’ commissioners. So, he put before us the extraordinary position that a conciliation commissioner, after rushing around the country stirring up disputes between employers and employees, would bring down the guillotine to prevent them from bringing their cases before him for hearing. I invite the honorable senator to select the alternative that he prefers.
The only difference between the conciliation commissioners who have operated under the Industrial Peace’ Regulations since 1940, and those who will function under this measure, is that whereas there was provision for appeal from the decisions of the former conciliation commissioners, there will be no- appeal from the decisions of the commissioners proposed to be appointed under this bill. There is also an important difference in relation to their tenure of office. Those appointed under the Industrial Peace .Regulations have a limited tenure. Those to be appointed under this bill will have a tenure comparable with that of the judges, and with the advantages that attach to security of tenure.
Several honorable senators opposite have said that there is no provision in the bill whereby uniformity in the decisions of conciliation commissioners can be obtained. I say at once that uniformity is neither desirable nor possible. As Senator Finlay, Senator Large, and other honorable senators on this side of the chamber who are familiar with industrial laws and conditions have said, one industry cannot fairly be compared with another. We cannot, for instance, compare the street sweeper with the skilled engineer.
– But there must be a basic wage for all people.
– I agree, but that point will be amply taken care of in respect of fundamental matters by the court itself. I remind the honorable gentleman that the court will retain complete power in connexion with everything that is truly fundamental to proper relations between employers and employees. It will have jurisdiction in the matters of the basic wage, standard hours, minimum rates for adult females, and annual leave. In respect of these fundamental things there will be uniformity from one end of Australia to the other. That is proper, and provision has been made for it. The remarks of honorable senators opposite were directed to the possibility of lack of uniformity in the decisions of conciliation commissioners in fields apart from those reserved to the court. I repeat that, in those fields, uniformity is neither desirable nor possible for the reasons that I have stated. What is desirable, however, is a standard of relativity between various industries. We’ require, not uniformity, but relativity. The Government has had full regard for this fact and, as I have said, uniformity will be achieved in relation to fundamental matters. In relation to other matters, a close examination of the bill will reveal the existence of a careful pattern to ensure that relativity shall shall be maintained. In clause IS, proposed new section SI.vb provides that the chief judge shall summon meetings of the conciliation commissioners at least every four months. Obviously, the whole field of industrial relations will be discussed at those meetings. That is inevitable. In addition, proposed new section 16, in clause S of the bill, gives to the chief conciliation commissioner power to do two things, namely, to organize - I emphasize that, word- as well as to allocate the work of the conciliation commissioners. The commissioners will be obliged under the bill to obey any directions given by the chief conciliation commissioner in the matter of the organization or allocation of their work. There will be perfect liaison in those two ways between the commissioners. If honorable senators will refer to proposed new section 43p, in clause S, they will find further provision for uniformity. The proposed new section is as follows : -
In determining an industrial dispute under this Act, the Court or a Conciliation Commissioner shall provide, so far as possible, and so far as the Court or Conciliation Commissioner thinks proper, for uniformity throughout an industry carried on by employers in relation to hours of work, holidays and general conditions in that industry.
There is other evidence of the fact that regard has been paid to the need for relative uniformity. Proposed new section 43-sr provides for consultation with industrial tribunals in the States in order to secure relative uniformity throughout the country. To complete the pattern that I have outlined, I refer to sub-section 1 of proposed new section IS, which imposes upon the conciliation commissioners the plain duty of informing themselves upon industrial conditions. Proposed section 81AA. which will be found in clause IS of the bill, provides that the commissioners shall have the most up-to-date information on industrial conditions. The Government proposes to appoint what is described in the bill as a “ Bureau of Research and Statistics “. In committee, I shall move that the name of the bureau be altered in order to prevent confusion with the Bureau of Census and Statistics.
However, the purpose of the bureau will be to collate and .disseminate all information relevant to industrial conditions. From what I have said, it is plain that ample provision is made for co-ordinating the work of the conciliation commissioners and for ensuring that they shall bc kept up to date in all relevant matters, that they shall be informed on a basis of accuracy, and that full information shall be readily available to them.
Reference was made to appeals and to the fact that there will be no appeal from the decision of a conciliation ‘commissioner. I point out that the parties in opposition in the Senate in 1930 emasculated the arbitration bill introduced by the Scullin Government by inserting, foi1 the first time, a provision whereby appeals could be made from decisions of conciliation commissioners to the Arbitration Court. The Opposition achieved that end by inserting, despite the government’s opposition, section 31a of the present Commonwealth Conciliation and Arbitration Act. They went further on that occasion, and amended section 31 of the principal act dealing with appeals. By means of a very clumsy alteration, they opened the way for appeals from the Arbitration Court to the High Court not only on questions of law but also on questions of fact. Incidentally, I point out that the then Opposition in the Senate effected 30 amendments to the Scullin Government’s hill. The provision of these avenues for appeal by the Senate in 1930 led the workers of Australia down the tortuous and costly path of litigation from conciliation commissioners to the Arbitration Court, and then from the Arbitration Court to the High Court. This has helped to bring the whole system of arbitration in Australia into disrepute. If there he one element that is badly needed in industrial relations, it is provision for speedy decisions. Anything that militates against speedy decisions must act detrimentally to the interests of industrial peace. I understand that there will be further discussion on the subject of appeals in committee, and I shall not deal further with the matter now.
I pass now to the subject of penalties. The Leader of the Opposition ‘ (Senator McLeay), has. said that penal laws should be introduced to outlaw strike.?. That suggestion shows a total disregard of what has happened since 1904. From 1904 to 1928 there were provisions in the Commonwealth Conciliation and Arbitration Act for the severest penalties against strikes and lockouts. They included provision foa- fines amounting to £1,000. In 192S, the Bruce-Page Government varied the penalties somewhat, providing for. fines of £.1,000 for organizations. Two years later, after the Bruce-Page Government, had attempted to enforce those penalties, the Seullin Government proposed their complete repeal. The extraordinary thing, having regard to what the Leader of the Opposition has said, is that those penal provisions were repealed wilh the concurrence of the Opposition in the House of Representatives and with the full assent of the Senate.
– Only as a compromise after both Houses had. disagreed and had then met in conference.
– I am afraid the honorable senator is not properly informed on that point, because although there was a conference between the two Houses - one of the few which have taken place - the subject of penal-. -ti.es was npt an issue. I am confirmed in my recollection by what Sir John Latham, the present Chief Justice and former Attorney-General, said on the 18th June, 1930. Sir John Latham was then in Opposition and when the Commonwealth Conciliation and Arbitration Act was amended by the .Scullin Government lie said, vide page 2839 of Wansard -
The one part of the present bill which I approve is that repealing the sections imposing fines in the case of strikes or lockouts. These penalties are, as a general rule, ineffective, as ex’perience has shown. I ha.ve always been doubtful of the principle which “they cmbody. If there had been any encouragement at all from either side of industry in 1927. 1 think that there would have been little difficulty in bringing about their repeal then.
He went on to say -
The best method of enforcing industrial law is not by imposing penalties on strikes andlockouts, but by giving effective protection to those who are prepared to carry, on industry in accordance with- the terms of the award’s made by. the Arbitration Court or oilier tribunals.
And in committee on the 1st July, 1930, he said,vide page 3495 -
I believe that it is not sound to make either a lockout or a strike a criminal offence. I am, and have long been, of the opinion that such penalties tend to bring the. law into contempt.
He further stated -
These sections have been in the act for a long time, more or loss as placards. 1 doubt whether their real significance has been realized until recently; and I do not think that for many years they have had the honest support of. the public as a whole. . . .
Further I say, as others have said, that these particular penalties are ineffective, and because they are ineffective, they necessarily bring the law into disrespect.It is impossible by any form of legal process to compel large bodies of men to work on terms, unacceptable to them. The penalties provided are ineffective to restore operations in industry; and,I think, experience has shown that whenever an effort has been made to enforce these sections there has always been disappointment in the practical effect of restoring operations in industry. Nothing is gained by the mere imposition of a penalty ina case unless it makes the wheels of industry revolve again, and, it appears to me. that these penalties do not do that.
There is the clearest possible indication of the considered opinion of a former Attorney-General, who, incidentally, was responsible for varying the penalty clauses in1928 after two years of attempting to enforce them. On that occasion he declared that they were futile and ineffective, and he supported the Scullin Government in its desire to delete them from the act. The Opposition, in the person of Senator McLeay in this chamber, seeks to restore a system which has been outmoded and discredited since as far back as 1930.
– Order ! The honorable senator’s timehas expired.
– May I move for an extension of the Minister’s time?
– There has been a previous ruling that unless the Standing Ordersare suspended an honorable senator may not proceed with his remarks.
– I am. sure that the Senate would agree to the suspension of the Standing Orders to enable the Minister to complete his reply to the debate on this important bill.
– There would have to be present an absolute majority of the Senate to enable the Standing Orders to be suspended.
Question resolved in the affirmative.
Bill read a second time.
Clauses 1 to 4 agreed to.
Clause 5 -
Sections two and three of the Principal Act are repealed and the following sections inserted in their stead: - “ 2. The chief objectsof this Act are -
to constitute a Commonwealth Court of Conciliation and Arbitration having exclusive appellate jurisdiction in matters of law arising under this Act and limited jurisdiction in relation to industrial disputes; and
.- Will the Minister explain whether it is proposed to confer on the commissioners to be appointed or the courts further power by way of regulation to ensure that awards shall be observed ? I am aware of what. Sir, John Latham said in 1930, but J think that the remarks of Sir George Pearce made about that time are much more in point. Sir George Pearce indicated that the appointment of commissioners such as those now proposed to he appointed and the repeal of penal provisions would result in an increased number of strikes. Having regard to the forecast and our experience since 1930, and particularly during the last five and a half years when the Labour party has been in office in the Commonwealth and in the States of New South Wales, Victoria, Queensland and Western Australia, I think that the committee should be given some assurance by the Minister that steps will be taken to ensure that decisions of the proposed commissioners shall be obeyed and the law observed. I would remind honorable senators again of the statement made by His Honour Mr. Justice Davidson, who was appointed by this Government to investigate and report on the coal industry. Mr. Justice Davidson has had considerable experience of industry, and he said that the chief reason for the continuance of strikes in Australia was that this
Government was not prepared to ensure that industrial law and the orders of courts were observed. I am not sure whether this is an appropriate stage at which to raise this matter, but it has an important bearing on the problem.
– The Leader of the Opposition (Senator McLeay) has referred to a statement made by Mr. Justice Davidson. It is only fair to say that that statement was made in connexion with a report and could have applied equally to any government.
– I agree with the Leader of the Opposition (Senator McLeay) that the point is important.’ I also think that it is appropriate to discuss it here. The honorable senator has given me an opportunity which I should have taken in the course of my reply to the second-reading debate had time permitted. If honorable senators will study clause . 13, they will see that it proposes to insert, in the principal act the following new section : - “ 50AA. The Registrar or an Inspector appointed under the last preceding section shall, whenever so directed by a. Judge or a Conciliation Commissioner, and such an Inspector shall, whenever so directed by the Registrar, institute proceedings for an offence against this Act or for the recovery of a. penalty under section forty-four of this Act.”.
There is a plain duty cast upon officers of the court to take action for breaches of awards. It is clear under this legislation that every breach of an award is an offence under the act, whether committed by an employer or an employee. Lest it be thought that there are no coercive or punitive provisions in the act, I refer honorable senators to sections 5, 15, 29, 33, 40c. 58, 62, 64 (7), 73, 78, 80, 81, 83, S9, 91, 92, 96, 102, 111, 113, 114, 116 and 123. If honorable senators will consider what is involved in those sections they will, I think, be amazed at the punitive and coercive powers in the act. I draw particular attention to two provisions, which although not connected with penalties have a drastic effect. I refer, first, to the power of the court to cancel or suspend an award and, secondly, to its power to deregister a union. The court may act in those matters through the registrar or on the application of an inspector or of any person interested. The consequences of the suspension or cancellation of an award, or the deregistration of a union, are exceedingly drastic upon the members of an organization. It means that they are debarred from the benefit of not only the particular award under which they were operating but also any other award of the court. Should they leave that industry and go to another, the ban still applies to them. I mention this to indicate that there is great coercive power in the hands of the court. A perfect illustration was given in Melbourne recently when the mere threat of deregistration brought the engineers back to the court. That incident also provides a sound argument for conciliation, because it was the conciliatory power rather than the arbitral power of the Commonwealth Arbitration Court that settled the engineers’ strike and the metal workers’ strike which had continued from October, 1946.
– As Senator Leckie has been prevented, through illness, from being present this morning, I now move -
That, in proposed new section two, paragraph (/), the words “exclusive appellate jurisdiction in matters of law arising under this Act and limited” be left out.
I draw attention to the following remarks of the Minister for Health (Senator MeKenna) in his second-reading speech -
The bill proposes to make the court the only and final court of appeal in all judicial proceedings concerning the act and awards and orders mode under it. That is to say, any proceedings in State courts for an offence against the act, or for claims based upon an award or appeal, will lie to the Arbitration Court and not to the Supreme Court or the High Court. The decision of the Arbitration Court on such an appeal will be final. The present appeal to the High Court from the Arbitration Court in relation to questions of law will be abolished.
Despite cheap jibes against technicians, experts and specialists, I believe that the Minister is as well versed in matters associated with this problem as is any other member of the-committee, and that he will agree that this is a major change of the law. If there is one thing that is pre-eminent in British countries, it is the respect in which the people hold British law and British justice. The Minister said that one of the things that caused grave dissatisfaction among workers, arid was responsible for manystrikes, was the tortuous’ procedure associated with matters brought before a conciliation commissioner - the necessity to go from, a conciliation commissioner to the “court on points of law and, on points of law, from the Arbitration Court to the High Court. I should like the Minister to inform the committee of the number of appeals that have been made to either the Arbitration Court, or the High Court on points of law. If we take into consideration the number of cases that have bee?), dealt with since 1930, when the Scullin Government amended the act, and have before us also the number of appeals, we shall better understand to what degree the statement is correct. I speak from memory, but I think that very few cases arising out of points of law have been tested. It; must be remembered that the system of compulsory conciliation and arbitration has been in existence for only about 40 years, and therefore it is of the greatest importance that there shall be the strictest interpretation of the law as it stands. I regard as a. retrograde step the proposal to refuse to bring a decision of a conciliation commissioner to the Arbitration Court or to subject a decision of the Arbitration Court to the judgment of the High Court. No good reason has been given for the change.
I stand by what I said in my secondreading speech on the subject of conciliation. If the Government thinks that by appointing conciliation commissioners and clothing them with great powers it will introduce a system of conciliation, ir. is making a great mistake. The part of the duties of the commissioners which may be described as conciliation will be small compared with the duty of making decisions. With this legislation in operation, the time will not, be far distant when men like Mr. Thornton and Mr. Cranwell will look upon the commissioners as dictators and will describe them as “big bad wolves”. I do not think that it is fair to the people to lead them to believe that these men will be merely conciliators. They will be dictators. I said last night that the best form of con ciliation was that which took place between employers and employees and that they should not be forced to go to the court. I said, too, that there would be instances ‘when agreement would not be possible, in which event action along the lines proposed in this legislation would be necessary. The committee should not pass this clause without a proper realization, of the seriousness of the step. It should know that acceptance of the clause will mean the denial of any right of appeal to a Supreme Court or to the High Court of Australia. The people of this country have a high regard for the High Court, and I am looking forward to the day when they will have the same regard for and appreciation of the Arbitration Court. In spite of the fact that appointments to the High Court have been made by Liberal and Labour governments, and in spite of the fact that Sir John Latham, the present Chief Justice, was a distinguished member of our party and played a prominent part in the political part of this country-
– Mr. Chairman, T ask whether the honorable senator is confining his remarks to the question before the chair.
– The honorable senator is. discussing the subject of appeals, and he is quite in order.
– It is important that people of all shades of political thought, should have the highest possible regard for the High Court so far as impartiality is concerned. Whether the, court be dealing with legislation passed by a Labour, or a Liberal government, and regardless of the politics of the governments responsible for the appointment of the justices, the court will in all circumstances give an impartial decision in interpreting the law of the land. This Government is making a. great mistake if it believes it can maintain industrial peace by “ Rafferty’s rules by making short cuts, and by appointing butchers to do the work of doctors, blacksmiths instead of dentists, and labourers to do the work of experts. By refusing the right of appeal on questions of law from th-j Arbitration Court to the High Court, it is doing something which will be found to be a retrograde step. I conclude by asking ‘ the Minister in charge of the bill to inform the committee of the percentage of cases dealt with during the hist 40 years by the Arbitration Court .which were taken on appeal to the High Court on questions of law.
– The Leader of the Opposition (Senator McLeay) apparently does not understand the difference between questions of law and questions of fact. His attempt to drag the High Court into this matter is illogical, because the duty of the High Court is to interpret the Constitutional law, whereas no such issue arises in this instance. This measure is in conformity with the Constitution, and it provides that in respect of points of law there shall be the right of appeal to the Arbitration Court, but it delimits the right of appeal to the High Court. The Minister for Health (Senator McKenna), in his second -reading speech, explained that under the amending act passed in 1930, provision was made for appeals to the High Court in respect of questions of fact. The present -Government takes the view that appeals to the High, Court should be confined to questions of constitutional law. Under this measure there will be no appeal from the decisions of the conciliation commissioners in respect of questions of fact and the final court of appeal in respect of questions of law will be the Arbitration Court. There will be no appeal in respect of awards made by conciliation commissioners. Therefore, the Leader of the Opposition has no grounds for claiming that the- Government is ignoring the High Court when it confines appeals under this legislation to .the Arbitration Court. The real effect of the measure is to delimit appeals to the High Court in respect of questions of fact. Such appeals are allowed at present, but in recent years that provision has been ‘taken advantage of to the detriment of the principle of our -system of industrial conciliation and arbitration. I oppose the amendment.
– I am unable to follow Senator O’Flaherty’s .reasoning when he says that appeals should not be allowed from the decisions .of the Arbitration Court to the High Court. I recognize that under the measure there is to be no right of appeal from decisions of conciliation commissioners to” the Arbitration Court in respect of questions of fact; but the matter raised by .the Leader of the Opposition (Senator McLeay) is entirely different. By delimiting appeals to the High Court we -shall abolish a privilege and a safeguard already in existence. The Leader of the Opposition has -presented . a very strong case in favour of the amendment. On grounds of common fairness and justice the right of appeal in matters of law should extend beyond a purely industrial court. That is all that the amendment seeks to achieve. Provisions should be made for appeals not only to the Arbitration Court but also to the High Court, because the latter is the highest appellate tribunal in the land and our last safeguard against violation of the Constitution. The High Court exists for the purpose of giving final judgment on such matters, but ‘that right is being abolished under the measure. The amendment ireasonable.
Senator McKENNA (Tasmania - Minister for Health and Minister for Social Services) [12.10 1. - I can understand .the necessity which .rested upon the Leader of the Opposition (Senator McLeay) to wander into the past somewhat astray from the point under discussion in :Order to reconcile the .statements he ‘made in March, 1946, -with those which he made in ‘this chamber yesterday. ‘That accounts for his ‘meandering :into fields not connected with the clause, and I do not propose ‘to follow him down those paths. Section 73 of the Constitution reads -
The High Court shall have jurisdiction, -with such exceptions and .subject to such -regulations as the Parliament prescribes, .to hear and determine appeals from all judgment?, decrees., orders and sentences-.
It was plainly in contemplation that the High Court ‘-should not be the only court of appeal in this land, and, accordingly, the Government in delimiting appeal to the High Court and setting up .another body as an appellate tribunal is merely complying with the Constitution. In the second place, the Leader of the Opposition spoke well of the .judges of the High Court. I agree with what he said. I agree that of necessity men who have figured in polities or in any other walk of life adopt the judicial mind and are quite impartial after they take their places on the bench. But does the Leader of the Opposition suggest that, because these attributes of impartiality belong to occupants of the High Court Bench they al’c not also qualities of judges of the Arbitration Court, which, in addition to being an industrial court, is also a court of law? It is in fact, so far as its status is concerned, on a par with the High Court. It is appointed under the Constitution itself. The bill enhances the status of the Arbitration Court by making it for the first time a superior court of record which enables it to take the same action for contempt of its procedure, or of itself, that the High Court can take. Its status is enhanced by reason of the fact that it is made a final court of appeal in particular matters; and, surely, the Leader of the Opposition does not suggest that judges of the Commonwealth Arbitration Court, who have . to possess the same qualifications as judges of the High Court in order to be elevated to their office, will not do as well in this appellate jurisdiction as the High Court has done. Representation.? have been received from the judges of the Arbitration Court itself on this very point. The Leader of the Opposition referred to British justice, and Senator Cooper, I think, also adverted to the same matter. I assure the committee that the judges of the Arbitration Court themselves have made representations to the effect ‘that justice has been defeated on many occasions by appeals which went from the Arbitration Court to the High Court in matters, for instance, concerning propriety of appointments to executive positions in trade unions. Such elections take place annually, but in some -cases, before the position could be remedied in accordance with the order of the Arbitration Court, an appeal has been lodged with the High Court. It takes many months before the matter reaches the High Court, and many more months elapse before that court gives its judgment, with the result that the position which the Arbitration Court sought to remedy has gone beyond repair. The Government’s decision to delimit appeals to the High Court has been made after full consideration, and after consultation with the judges. Let me tell the committee what happens to-day. A person who is convicted of an offence under the principal act or of a breach of an award before a police magistrate can appeal, in many States, to a district court or county court, a.nd from that court to a single judge of the Supreme Court, and then to the Full Court of a State Supreme Court, and from there to the High Court. That long and tortuous path can be followed arising out of a simple breach of an award.
– And when the defendant is a union it may not have sufficient money to reach the High Court.
– Yes; that is a very live factor in the situation. We now propose to remedy that position. If there is a conviction under this law before a court of summary jurisdiction there will be an appeal to a completely competent, body of the same status as that of a Full Supreme Court, but direct to the Arbitration Court. A litigant will not be obliged to follow the devious paths laid down in the past involving heavy expediting, and, which, in effect, amounted to a negation of justice. That is the idea underlying the Government’s thoughts in this matter, and, accordingly, -the Government cannot accept the amendment. The Leader of the Opposition asked me how many appeals had been made to the High Court from the Arbitration CourtObviously, he . would not expect me to have the exact information available, but. I can say that there have been many such appeals, and that judges of the Arbitration Court have commented on the fact that the opportunity to appeal to the High Court has been used on many occasions to defeat the ends of justice. In these circumstances, I trust that the committee will reject the amendment, and I feel sure that, in the light of the explanation that I have given, the Leader of the Opposition will not be so aggrieved. if it be rejected.
.- The discussion of this clause has revealed that a layman is at a great disadvantage compared with a specialist when dealing with the technicalities and finer points of law, and for that reason I wonder why the Minister for Health (Senator McKenna), Who is a. specialist in law, supports a government that believes that when mattors of law are brought before conciliation commissioners it is not right that there should be a barrister or lawyer present, to assist in arriving at the truth. That, however, is by the way. I do not expect the Minister to be in a position to give th<« exact figures of the cases in which appeals have been made to the High Court from Arbitration Court decisions in the last 20, 30 or 40 years, hut I am sure that he will agree that the percentage of cases in which a. point of law has arisen is very small. When the honorable member for Batman (Mr. Brennan) was Attorney-General in the Scullin Ministry the most important amendment of the Commonwealth Conciliation “ and Arbitration Act was introduced. I ask the Minister for Health whether the right of appeal to the High Court was provided in the original act? If not, when was that right inserted in the act? Why was it that when such a distinguished industrialist and lawyer as the honorable member for Batman was considering vital amendments to the act in 1930 the question of disallowing appeals to the High Court on points of law was not considered ? We should all jealously guard changes of this character and I suggest to the Minister that the debate on this mattor be adjourned to give the committee an opportunity to further investigate it over the week-end.
– The question has been thoroughly thrashed out in the House of Representatives. Why waste time?
– Although I am but a layman, I do not think we are wasting time in asking a responsible legislative body to give due consideration to such an important innovation. Whilst the proposal may seem insignificant to some untrained minds, those who have made a study of arbitration matters will realize its importance.
.- The Leader of the Opposition (Senator McLeay) asked me when the High Court was introduced as an appellate body in relation to the Arbitration Court. That was done in 1930.
What actually happened was this : Section 31, sub-section 1, of the act at that date road -
No award or 01 LIe of the Court, shall lie challenged; appealed against, reviewed, ipiaslie.il, or called in question, or be subject to prohibition mandamus or injunction, in any other Court on a.ny account whatever.
So, up to 1930, decisions of the Commonwealth Court of Conciliation and Arbitration in industrial mutters could not be. made the subject of appeal. In 1930 the Senate, in opposition to the wishes of the popular chamber, inserted in that sub-section the words, “ except as in this Act provided “ and, “ other than the High Court “, and it now reads -
Except as in this Act provided, no award or order of the. Court or a Conciliation Commissioner shall be challenged, appealed against, reviewed, quashed, or called in question, or be subject to prohibition mandamus or injunction, in any other Court other than the High Court on any account whatever.
That has opened the door to even questions of fact being taken from the Arbitration Court to the High Court.
The second matter that I should like the Leader of the Opposition to consider over the week-end - I propose to accept his suggestion and adjourn the debate until next week - is. section 51, placitum (xxxv.) of the Commonwealth Constitution. If he takes the consolidated copy, he will find reference to the vast number of cases in which the High Court has been, involved in matters that have emanated from the Arbitration Court.
– Would it be 1 per cent?
– I could not undertake to give any indication of the* percentage, but I invite the honorable senator to peruse the list of cases. I do not suggest that he should read the cases themselves because that is a task that would require many week-ends.
The following paper was presented : -
Commonwealth Public Service Act - Appointments - Department, of Civil Aviation - (‘.. C. Johnson. J. W. Knee, W. H. Pickford.
Senate adjourned at 12.20 p.m.
Cite as: Australia, Senate, Debates, 9 May 1947, viewed 22 October 2017, <http://historichansard.net/senate/1947/19470509_senate_18_191/>.