25th Parliament · 1st Session
The PRESIDENT (Senator Iiic Hon. Sir Alister McMullin) took the chair at 11 a.m., and read prayers.
– 1 ask the
Minister representing the Minster for Health whether he will seek immediate advice from the Minister for Health or his Department on a report by the medical authorities of the United States of America on the new wonder drug known as D.M.S.O., with which American scientists are experimenting. It is stated in the report that three scientists engaged in developing the drug have indicated to the United States Cancer Society in New Orleans that possibly it can bc used effectively in the treatment of cancer. Because this is a matter of urgency to many sufferers of this dreaded complaint, and to their families, will the Minister bring this request to the attention of the Minister for Health so that his Department may be kept fully informed on the development of this drug? If it is as successful as the claim indicates, its early use in Australia may save many lives and alleviate much suffering.
– I shall bring the honorable senator’s request to the attention of the Minister for Health so that a reply may bc furnished.
– I address my question lo the Minister representing the Minister for the Interior. Has the Minister noticed that one of the measures proposed to rehabilitate the Australian Labour Party is to release it from the control of the Party Executive - the 36 faceless men? Will the Minister assist in that rehabilitation by making it an offence for any member of this Parliament to vote in Parliament according to the direction or control of any outside body?
– I shall convey the honorable senator’s request to the Minister for the Interior.
– My question is also addressed to the Minister representing the Minister for the Interior. Has the honorable gentleman any power over a member of this Parliament who moves an amendment to legislation, to ensure that he follows the amendment through and does not make this House look rather foolish by failing to do so?
– 1 think that question is frivolous and docs not require an answer.
– I direct another question to the Minister representing the Minister for the Interior. 1 ask: Is the honorable gentleman prepared to face up to the difficulty of saving this House from looking rather foolish while Senator Kennelly remains present?
– Order! (Question not answered.)
– 1 preface my question to the Leader of the Government in the Senate by reminding him that ou many occasions 1 addressed to his predecessor questions relating lo the effect of the United States Trade Expansion Act upon the economy of Australia. I also wish to bring to his attention the forecast of the Secretary of the Department of Trade and Industry that the 1960’s would be a rough and tough decade for Australian industries. I now ask the Minister whether he has read the recent comments of the Acting Chairman of the Australian Meat Board to the effect that restrictive legislation against meat imports in half of the American States was causing serious concern to Australian exporters. The Acting Chairman instanced the differing types of legislation and said that the legislation coincided with a vigorous drive by the American meat industry to promote the sale of its own beef in Europe and elsewhere. Does the Minister agree that this type of legislation defeats the glamorous promises made a couple of years ago by the United States authorities that the other great trading partners would all enjoy a period of economic growth? Does not the Minister agree that this restrictive legislation on the part of the United States will defeat that magnificent objective? If the United States persists with this restrictive legislation against Australian commodities, would it not be possible for Australia to retaliate?
– I think it is important to understand, in any consideration of the restrictions on imports of Australian meat, that the legislation which is causing trouble or could possibly cause trouble, is not the result of any Act of the American Congress. It is the result of actions taken by various State legislatures under laws which have no application at all to the power over imports which is controlled by Congress. The States referred to are taking action under their own legislation which deals with the marketing of meat.
– It deals with our meat, too.
– It does deal with our meat. 1 merely make the point that it should not be confused with an Act of the American Congress. The other question which the honorable senator addresses to me refers in very, very broad terms to our financial and trading relations with the United States of America. It has particular reference to the Trade Expansion Act and to the Act which last year imposed a limitation or a higher rate of interest on overseas lending, and to the more recent action of the United States Government in respect of the financing outside America by American companies of certain undertakings. As the honorable senator knows, this led to a visit to the United States by our Treasurer a week or two ago. 1 noticed in the Press this morning - 1 was not aware of this until then - that the Treasurer proposes to make a statement today on his visit and I suggest that any discussion of this broad question could best be left until after Mr. Holt has made the statement.
– Will the Minister table the statement in the Senate?
– I do not know. As I said, it was a Press report. 1 assure the honorable senator that if the statement comes in the normal way and if it is proper that it should be tabled 1 shall take no action to prevent this from being done.
– I direct a question to the Minister representing the Treasurer. What has the Government done to ensure that Australia will be protected from injury in the event of a devaluation of sterling by the United Kingdom?
– It is supposition that there will be a devaluation. I notice that this has been discounted in commercial circles throughout the world. If the honorable senator will put the question on the notice paper, I shall see whether the Treasurer will supply him with an answer.
– Has the Minister representing the Treasurer noticed that the Premier of Tasmania stated that his Government would subsidise the operation of a second ferry between the mainland and northern Tasmania by either private enterprise or the Commonwealth shipping line, if it suffered losses? Would this action have any effect on the attitude of the Commonwealth Grants Commission towards recommendations it may make to the Federal Parliament in respect of Federal revenue payments to Tasmania?
– I am aware that the Premier of Tasmania has stated that his Government is prepared to subsidise losses up to a maximum of £40,000, I think, sustained in the operations of another ferry between the mainland and Tasmania, irrespective of whether it is publicly or privately owned. I am sure that if this is a commercial proposition the offer of the subsidy will have some attraction to private industry to enter this field and so provide the type of competition between private and public ownership that we have in the airline industry. I think it would be very good to have that type of competition in the ferry service across Bass Strait. I am not aware of the effect the subsidy may have on the Grants Commission, but I have a shrewd idea that the subsidy might not have been offered if the Government of Tasmania did not expect to recoup through the Grants Commission amounts paid in subsidy. However, I do not want to be uncharitable to the Premier of Tasmania, and as I am not aware of the full details surrounding this matter I will seek the information from the Treasurer.
– I ask either the Leader of the Government or the Minister representing the Minister for the Interior” whether the Government will consider tak-, ing steps to provide that servicemen who are sent overseas on active service before they reach 21 years of age may vote in State and Federal elections.
– The power to confer on anyone a right to vote in State elections does not reside in this Parliament. If a question such as that now asked by the honorable senator had been asked in any of the State Parliaments the answer given would have been the answer that I now give to the honorable senator: This matter concerns policy which it is not appropriate to deal with at question time.
– My question is directed to the Minister representing the Minister for Shipping and .Transport or to the Minister representing the Treasurer, whoever chooses to answer it. It relates to a question that I asked some three or four weeks ago concerning the effect on King Island-Tasmania freights of the Government’s decision to subsidise VictoriaKing Island freights. Has the Minister any information as to the extent of the adjustment being made in the King IslandTasmania freights in order to equalise the subsidy on King Island-Victoria freights?
– There are two aspects to the problem. First there is the matter, of equalisation of shipping freights from Tasmania to King Island and secondly there is the effect of the subsidy on air freights from Tasmania or Victoria to King Island. I understand that the original investigation into this matter was made by an interdepartmental committee, which made certain recommendations. I understand also that that committee has been reconvened to consider the matters to which I have referred.
– I ask the Minister for Customs and Excise what progress has been made in the efforts initiated by his predecessor to get the State Governments to agree to a uniform censorship law rather than have each State and the Commonwealth administer separate laws.
– Quite a deal of progress has been made in this matter in the way of consultation between the Commonwealth and the States. It is normal practice for departmental officers of the States and of the Commonwealth to confer each year on censorship matters. I hope that during the next recess further progress will be made in this matter and that another meeting of officers will be held. The last meeting was in April of last year. As to the overall subject of uniform censorship, the matter is still being considered by the Government.
(Question No. 388.)
asked the Minister representing the Minister for National Development, upon notice -
– The following answer has been provided by the Minister for National Development -
2 (a). The most recent comprehensive figures for tin production by individual operators relate to the calendar year 1963.
The tin industry is currently engaged in a major expansion of its production, in particular -
(Question No. 432.)
asked the Minister representing the Minister for National Development, upon notice -
What is the practicability of using nuclear explosion techniques in major construction works, such as those of the Snowy Mountains and Ord River schemes, and in the exploitation of Australian mineral resources?
– The Minister for National Development has provided the following answer -
Since 1957 the United States Atomic Energy Commission has been conducting a programme of research to develop a technology for using nuclear explosives for peaceful industrial and scientific purposes, including in particular engineering and mining uses. My Department and the Australian Atomic Energy Commission has kept in close touch with this developmental work which is known as the Plowshare programme. At the invitation of the United States Atomic Energy Commission a committee comprising representatives of the
Australian Atomic Energy Commission,the Snowy Mountains Authority and the Bureau of Mineral Resources has visited the U.S.A. and made a detailed study of progress. The officers’ report, which gives an evaluation of the relevance of the technology to Australian problems, was recently released for general distribution. The report is available on application to the Secretary, Australian Atomic Energy Commission, P.O., Box 41, Coogee, New South Wales.
The experimental and theoretical studies of the Plowshare programme have established the broad outline of a technology for the application of nuclear explosives to engineering and mining projects. It is, however, generally recognized that the technology is still in the development stage. Although there is very little doubt about its practicability there are some areas of uncertainty, particularly as a full scale application has yet to be attempted. Present efforts arc aimed at extending experience with nuclear explosions to a wider range of rock and earth materials and to obtaining more precise information on engineering and safety aspects.
Adequate information is now available to plan and execute nuclear explosion projects in a manner which will avoid any hazard to the public. Major successes have been achieved in limiting to relatively small amounts the radio-active material released by nuclear explosions used for civil engineering purposes and further advances are expected over the next two or three years.
I should say that in the consideration of any proposal for nuclear explosions for peaceful purposes, careful consideration would have to be given to the provisions of the Nuclear Weapons Test Ban Treaty, to which Australia is a parly, which prohibit nuclear explosions in the atmosphere, in outer space, or underwater, and which prohibit underground explosions causing radio-active debris to be present outside the territorial limits of the State under whose jurisdiction or control the explosion is conducted.
Economic considerations will in general limit the application of nuclear explosives to very large works. Australia’s interests might initially be in the excavation of harbours in remote localities and the excavation of very large channels. At a later stage the technology might be relevant to the construction of large water storages. It may also be useful in assisting in the development of some types of mineral and natural gas resources, and may enable new sources of underground water to be made available for use.
(Question No. 435.)
asked the Minister representing the Minister for the Army, upon notice -
– The Minister for the
Army has provided the following answers to the honorable senator’s questions -
(Question No. 439.)
asked the Minister representing the Minister for Social Services, upon notice -
– The Minister for Social Services has supplied the following answers -
When the permissible income for age, invalid and widow pensioners was increased from £2 to £3. 10. 0. a week in October 1954 a war penson of 80 per cent, or more would have caused a reduction in the maximum rate of a social service pension in all cases.
When the merged means test was introduced in 1961 the position was the same as at present except that the social service pension of a married person with no other means would not have been affected by a war pension up to and including the 90 per cent rate. This was also the position when the means test was reviewed in connection with the 1964 Budget.
(Question No. 443.)
asked the Minister representing the Minister for Social Services, upon notice -
In view of the proposal to establish a rehabilitation advice centre at Naracoorte, South Australia, as part of the Australian Red Cross Society’s plan for regional welfare systems to advise and assist the physically handicapped, what consideration is being given to the location of specialist officers of the Department of Social Services in South Australian country areas, where services could be available for individual disability cases in addition to those under treatment as a prelude to reemployment?
– The Minister for Social Services has supplied the following answer to the honorable senator’s ques tion -
Rehabilitation of the physically handicapped is a process which involves many governmental and voluntary welfare agencies. Within this framework the specialised function of the Commonwealth Rehabilitation Service is to assist certain categories of disabled people to engage in employment. To achieve this objective the Department of Social Services has established a number of rehabilitation centres which are equipped with facilities for medical treatment, physiotherapy, occupational therapy and vocational assessment. Each centre is staffed by a team of specialists who arrange a co-ordinated programme of treatment and, if necessary, vocational training for each rehabilitee.
Because of the complexity of the service, decentralisation is not practicable. The needs of people living in country areas have therefore been met by arranging for adequate residential accommodation in each State, thus enabling them to receive the same standard of treatment as those living in the metropolitan area. . Close liaison is maintained with the medical profession and with the numerous organisations in each State which are concerned with the welfare of the disabled. Referral to the Commonwealth Rehabilitation Service of persons who arc living in country areas, and who may benefit from attendance at its centres, is encouraged.
(Question No. 448.)
asked the Minis- ter representing the Minister for Immigration, upon notice -
– The Acting Minister for Immigration has supplied the following answer - 1 and 2. A number of Australian housing development firms have established offices in the United Kingdom, or appointed representatives there. These arrangements have not required the prior permission of the Australian Government.
The Department of Immigration provides, within its service to migrant applicants, detailed and factual information concerning housing in Australia and these official activities do not depend, in any way, upon a supplementary service from private sources. However, to the knowledge of the Department a number of these firms provide information to prospective migrants concerning specific housing possibilities in the particular States in which they operate, but the advice of the Depart- ment on this subject is that any firm contractual arrangements should be concluded only after arrival in Australia through solicitors who are expert in these matters.
Under the Commonwealth-State Agreement, the Immigration Departments of the State Governments are the authorities which accept personal nominations under the British assisted passage scheme. In some States, approval has been given for certain housing firms to lodge personal nominations in favour of British families. The conditions governing the acceptance of such nominations are laid down by the State Government authorities concerned. One common condition is that the nominated families arc not to be required to enter into any commitment for house purchase prior to departure from the United Kingdom, nor are they to be subject to any penalty should they decide, after arrival in Australia, against entering into any house purchase arrangement with the firm which sponsored their migration to Australia.
As already mentioned, these arrangements are decided upon and controlled by the State Governments concerned and not by the Commonwealth Department of Immigration, although, naturally, as in all matters affecting migration, there is a regular exchange of information. In this regard, the Commonwealth Department of Immigration is aware that approval is given to such arrangements by the Stale authorities only after careful examination and rot on a basis of preference for a particularfirm; that the operation of the arrangements is closely watched by the State authorities concerned and that these arrangements have enabled large numbers of very suitable families to migrate to Australia and become well established in a much shorter time than would otherwise have been possible.
Consideration resumed from 12th May (vide page 776).
Clause 19 (Making and disposal of service decorations).
– When the Committee adjourned last night it was considering clause 19 of this Bill which reads, in part -
Sections 80b to 80i (inclusive) of the Principal Act are repealed and the following section is inserted in their stead: - 80b.- (1.) (3.) If, in contravention of sub-section (1.) of this section, a service decoration is sold, supplied or offered or displayed for sale or supply on behalf of, or at the place of business of a person, it is not a defence for that person to prove thatthe sale, supply or offer or display for sale or supply was without his authority or contrary to his instructions.
Sub-section 3 of proposed new section 80b had attracted a good deal of notice. At the commencement of the debate on this Bill 1 tried to make clear the Government’s approach to the sale or disposal of military decorations and similar things. I had said that this particular activity had unfortunately developed about it a number of undesirable practices; that on occasions it had been carried on by people who, to say the least, were not of the highest commercial standing and repute; that it was generally an activity which was unsatisfactory; that dissatisfaction had been expressed by a number of members of the community, and that over a long period returned soldiers’ organisations and the like had made approaches to the Government to ensure that any undesirable practice, or the possibility of any undesirable practice, in the disposal or sale of military decorations should be eradicated.
We, as a government, took the view that, having particular regard to experiences with which we were familiar, this was a reasonable request. I made it quite plain at the commencement of the debate that the Government, in order to go to the limit, if I may so put it, in ensuring the suppression of these undesirable practices was prepared to legislate in a way which was not common inasmuch as the proprietor of a business or of premises at which this kind of activity occurred would be held to be responsible for the actions of his. staff. I made it quite plain that the Government, in accepting this view, had been impressed by the very special character of medals and awards that were issued to particular persons by Royal warrant from the Sovereign herself.
I could not think of any examples when we were here last night and indeed my overnight thoughts have not revealed very many examples of this kind of liability being thrown upon employers. Although I do not compare it with the sale of medals except insofar as the employer continues to bear liability, I recall that under the licensing Acts of the various States the proprietor of a business is held to be completely responsible for the conduct of his staff either in his presence or in his absence. Although I was not aware of this myself, I have been told that under New South Wales legislation the same sort of liability devolves upon shopkeepers in respect of such things as the sale of goods in prohibited hours.
– That law will not remain in existence.
– Whether or not that is so is of no importance. I am saying that it is on the statute book now. So it does seem that a number of legislatures have thought from time to time that it was desirable to place this sort of liability upon a proprietor. For my own part I still hold the view that in respect of this particular matter it is not going too far to place this liability upon the proprietor of a business where decorations are sold.
However, members of Parliament, including Ministers, have to be realists. Despite what I have said and despite the special plea that I made in respect of the kind of operation that is in question, I regret that the course of the debate last night did not support the proposition that was advanced by the Government to the extent necessary to ensure that it would be carried. For that reason, and after consultation with my officers, I move -
Leave out sub-section (3.) of proposed section 80b and insert the folowing sub-section - “ (3.) A person on whose behalf or at whose place of businesss a service decoration is sold, supplied or offered or displayed for sale or supply iri contravention of sub-section (1.) of this section is, unless he proves that the sale, supply, offer or display was contrary to his instructions, guilty of an offence punishable, upon conviction, by a fine not exceeding Fifty pounds.”.
That covers the particular situation referred to last night where a proprietor, having given instructions that certain things should not take place, is placed in the position where his employees contravene those instructions.
– I am very pleased to hear from the Minister the result of his consideration of our submissions yesterday. The amendment that he now proposes cures the very grave defect that existed in the proposed sub-section 3, the effect of which was that the proprietor of an establishment, even if he proved affirmatively and conclusively and to the satisfaction of a court that he had nothing to do with the sale, the subject of the charge, that proof would not relieve him from liability and punishment. Now that principle has been completely abdicated, and that is a good thing. I welcome the Minister’s discarding of the first proposed sub-section 3. I am fully aware of the truth of his reference to the need in special circumstances to impose the onus of proving a degree of innocence. 1 know of cases in law where that necessity is imposed. In this case I would not contest that a proprietor might carry the onus of proving affirmatively that he had nothing to do with the transaction. However, it occurs to me that in the previous sub-section 3 it was slated that it is not a defence for a person to prove that the sale, supply or offer or display for sale or supply of a service decoration was contrary to his instructions. That aspect has been picked up by the Minister in relation to the new onus that is cast upon a person, but he has deleted the words “ was without his authority”. I do not know whether that deletion was deliberate.
– What is the wording of the amendment?
– They are, “ unless he proves that the sale, supply, offer or display was contrary to his instructions “. The words “ was without his authority “ appeared in the sub-section we are now to discard, lt is a particularly tight onus of proof to prove in every case that the transaction complained of was contrary to a person’s instructions.
I put to the Minister the hypothetical case of a sale in an establishment such as a haberdashery store or a bar in a hotel. There may be a transaction in relation to a service decoration between two customers, lt may happen that in a tobacconist’s shop a customer sells a service decoration to another customer. This is not a remote possibility. It could arise. The only way that the proprietor could jump clear in relation to that sale, if he were charged, would be to prove that what was done was contrary to his instructions and that he had no knowledge of it. He could never establish that. It seems to me that he should have the advantage of the alternative of escaping by establishing that the sale was made without his authority.
I hope I have made the position clear. It seems to me that the amendment proposed by the Minister would be completely acceptable if he adopted the two elements of the discarded sub-section, namely that the person concerned could prove that the transaction complained of was without his authority or was contrary to his instructions. If the Minister were to include those two elements I think he would carry the subsection as far as we could reasonably expect him to carry it. Would the Minister indicate why the words “ was without his authority “ were not translated into the new sub-section so that the person charged would be able to have two avenues of escape, by showing that what was done was done without his authority or, alternatively, that it was contrary to his instructions? The case I submitted to the Minister is a real possibility. Two persons in a store of any category have a transaction between themselves. The proprietor of the establishment could well be caught up under this provision, in that he had given no instructions that the transaction should not take place. I think it should be competent for him to prove as an alternative that what was done was done without his authority.
– Would the honorable senator be good enough to bear with me? I did not quite follow the instance that he gave.
– 1 am citing the case of any kind of establishment at all, be it a tobacconist’s, a hotel or haberdashery store. Two customers are in the store. They are there to purchase haberdashery. One says to the other, “ I will trade you a service decoration “, or “ I will sell you a service decoration “, and the transaction takes place between the two of them.
– Between the two customers?
– Between the two customers, customer A and customer B, in the haberdashery store. While they are making their respective purchases, they have a transaction between themselves. That fits into this proposed new sub-section, which provides that a person at whose place of business there is a sale is liable, unless he proves that the transaction was contrary to his instructions. How could he possibly instruct either of those two people? He would have no knowledge of the transaction. I think that we could perfect the amendment proposed by the Minister if we just adopted the exact wording on that point, of the sub-section that we propose to reject, which reads -
AH that I am suggesting is that the two elements - being without his authority or being contrary to his instructions - would be two elements on the proof of which - the onus being on him to establish the proof - he should not be convicted. There must have been a reason for this, or it might have been sheer inadvertence.
– It was not inadvertence.
– We advance that far. I invite the Minister particularly to consider the circumstances that I have stated at short notice. Two people are in a haberdashery store. They have a transaction between themselves, not in the hearing of the saleswoman, the proprietor or anybody else at that stage.
– Would that be considered to be within the scope of the business?
– Yes. Let me read the provision to the honorable senator to make the provision plain. I shall read the relevant part of the amendment.
– It would not be considered to be within the scope of the business. I think Senator McKenna did not hear Senator Wood clearly. It will not be within the scope of the business.
– No, not within the scope of the business. I thought Senator Wood said “ within the scope of the section “ not “ within the scope of the business “. It could be and it could not be. To make the case completely clear, I have referred to a haberdashery store. Take a tobacconist’s store, which does not deal normally in service decorations. Two people are in a tobacconist’s store. Let us assume that they are customers. They have a transaction between themselves. In the terms of the amendment that we are considering, this is what would apply: The person at whose place of business this transaction took place, that is, the person at whose tobacconist shop the service decoration was sold, supplied or offered or displayed for sale or supply, would be in contravention of sub-section (3.) unless he proved that the sale, etc. was contrary to his instructions. On that ground, and on that ground alone, he should be exculpated.
I invite the Minister to deal with the case I pose: Two customers in a tobacconist’s shop conduct a transaction relating to a service decoration, such transaction being prohibited under the proposed section we are now considering. If the proprietor of the shop is charged in those circumstances he is given one way out only. That is to accept the onus of proving that the transaction was contrary to his instructions. He cannot possibly prove that. He had no knowledge of it. He had no means of acquiring knowledge of it. Surely he should have available to him the element that was included in the sub-section we are discarding, namely that the transaction took place without his authority. That should free him. 1 regret the necessity to reiterate this point two or three times, but I think the Minister should be aware of the point that I make. What I propose to him is that before the words “ contrary to his instructions “ we insert the words “ without his authority or “.
– The Leader of the Opposition (Senator McKenna) invites me to write back into the sub-section the words “ without his authority or “. There is a particular reason why those words were excluded and I will allude to it shortly.
I say with the greatest respect that in order to support his case the Leader of the Opposition fossicked around in all the highways and byways of his capacious mind to find an almost impossible situation, and then asked that we provide for that almost impossible situation. The Leader of the Opposition submitted that two people might meet, by appointment or casually, in a tobacconist’s shop conducted by a third party and that there one might say to the other: “I will do a trade in an award or a decoration “. The honorable senator then said that in that event the proprietor of the shop, not himself engaging in the sale of decorations, as was acknowledged by the honorable senator, would be subject to a charge. All I say about that matter is that as a practical application of law the Crown would not prosecute in such a case. It is ridiculous to suppose that the Crown would prosecute. If the occasion arose that the Crown did prosecute, no court in the country would convict.
But on the more substantive point the Leader of the Opposition asks me to write back into the provision the words “ without his authority or “. No, Sir. For all the reasons I have given as to the character of this trade, we say that a trader should reasonably accept certain responsibilities in the conduct of his business as it relates to the disposal of medals and awards. This provision places specifically upon him an obligation properly to conduct his business and properly to instruct his staff. That is all it does. In the circumstances, and again having regard to the character of the trade, 1 suggest that it is only reasonable that the trader, having a permit to engage in this business, should accept the responsibility of properly conducting his business and properly instructing his staff. For that reason, while we let him off the hook, if I can use that phrase, in the circumstances which were described last night, I think by Senator Wright, where he may be absent from the premises, we thought it only proper to exclude the second leg of the defence as referred to by the Leader of the Opposition.
.- I am pleased to see that the Leader of the Government in the Senate (Senator Paltridge) has proffered an amendment to the Bill, but I regret he has said so firmly that he will not accede to the suggestion made by the Leader of the Opposition (Senator McKenna). I want to put to him another example of what might happen, even under the amendment that he proposed today. I refer to the case of a business establishment having a number of employees. There may be half a dozen, there may be a couple of dozen or there may be hundreds. The business establishment is not concerned with the supply of medals or similar articles. The proposed section does not refer only to persons in the business of dealing in medals or decorations of any kind. It applies to places of business of any kind.
Take the situation where one of a large number of employees sells a medal over the counter to a customer or to somebody entirely outside the scope of the business of the employer and entirely without his knowledge. Under the amendment that the Minister now puts to the Senate, such a person would not be able to escape liability even if he established those matters. I suggest that is a case in which, provided the bona fides are accepted and that the person has proved affirmatively that the whole thing was done without his knowledge, he should be entitled to the benefit of the exception. He has proved his good faith, an absence of knowledge and an absence of authority on the part of the employee.
The contrary view, which is implicit in the Minister’s amendment, is that an employer who does not deal at all in matters like decorations and medals in the course of his business would be required at his peril positively to instruct each employee that in no circumstances must he, whilst in his employment, sell, offer or supply any service decoration.
– So he should.
– To every employee?
– Should he line his employees up at any stage, particularly his new employees, and specifically warn them that in case they are thinking of selling a service decoration at any time in the future, they can take this warning as express notice that that would be contrary to his instructions? It seems to me to be going a long way. 1 have given an example of a retail establishment, lt could be a factory, a petrol station or any one of a large variety of places of business. ls it incumbent on a person who employs a large number of workmen in a factory, as it would be under the amendment, to issue a positive instruction to everyone coming into his employ in the factory? Must he say to (hem: “One thing 1 want to tell you is this: I will never consent to your disposing of or selling any service decorations that you might have. You can accept this now as express notice that I instruct you never to do so.”? That would be reducing the thing to absurdity.
I can understand, and I fully appreciate, what is in the Minister’s mind. He does not want to make it easy for people to dispose of service decorations, I would not go beyond what my leader said, that this is the exceptional kind of case in which one can conscientiously agree to place the onus of proof on the defendant. It is a question of what he has to prove and whether what he has to prove is reason* able. I ask the Minister to consider those examples and to turn his mind again to the question of whether he would not be prepared to put before the words “ contrary to his instructions “ the words suggested by Senator McKenna “ without his authority or “.
– I enter this debate at the risk, perhaps, of showing that I have not a legally trained mind. However, I should like to bring to the debate the mind of the average citizen who will look at this legislation. Surely this legislation is being directed at the person who is in the business of selling, or displaying for sale, or supplying service decorations. I think so. We could sit here for the rest of today and each honorable senator could think up some remote possibility of which both the Leader of the Opposition (Senator McKenna) and Senator McClelland have given examples. For the type of transaction that Senator McKenna has mentioned to take place, someone would have to say to the tobacconist, the proprietor: “ You have let this transaction happen on your premises. I am going to lay a charge against you.” Before that could be done, the person charging the proprietor would need to have a strong enough case to know that he was going to obtain a conviction. I venture to state that if 1 were a proprietor and the Leader of the Opposition were the person who was going to charge me, 1 would say to him: “ This transaction took place without my knowledge, lt took place behind that particular counter. This is the first I know of it “. I do not think that this position would arise. This provision is directed to protect the holders of the service awards against a person who is in the business of selling them, displaying them or having them for the purpose of display or offer for sale to people who are entitled to have them.
– Where does the Bill say “ in the business “?
– I am sorry. The Bill provides- . . at the place of business of a person, it is noi a defence for that person to prove that the sale, supply, offer or display for sale or supply was without his authority or contrary to his instructions
The point I am making is that this provision is directed to the person who is in the business of selling the decorations in order to keep him in line.
– The Bill docs not say that.
– That is my interpretation of the proposed sub-section. That is what I think it means. This provision is to keep in line the person who is in business to supply the decorations or to have them for sale, and is not to apply to the tobacconist to whom the Leader of the Opposition referred. If the transaction did take place in the tobacconist’s shop, then the Crown, it it was prosecuting, would not stand a chance of getting a conviction.
.- 1 derive a great deal of pleasure from being a member of a Parliament which can address itself to this matter in the way in which the Committee of this Senate has done both last night and today. I appreciate immensely the consideration that has been given to our submissions by the Minister for Defence (Senator Paltridge). He has taken time to examine them and he has produced an amendment which is an improvement on the proposed sub-section. The Leader of the Opposition (Senator McKenna) has postulated an extreme case. A tribunal which heard a charge based on the amendment would be likely to decide that, although the matter might bc within the letter of the law, it was outside the true meaning of the provision because it was contrary to the spirit of the amendment. I appreciate the explanation given by thu Minister of his reason for not making it possible for the defendant to escape by proving only that the sale was made without his authority. If it were not so, there could be all sorts of illicit practices carried on, and, on the balance of probability, the defendant, on saying they were without his authority, would escape conviction under this Act.
Despite the imperfections of the amendment, I am prepared to support it unless the Minister is willing to consider a matter which has come to my mind as the result of a reference by. him. I say with respect that I do not think his advisers looked at this point. The Minister was good enough to offer the Committee, by way of an example, the licensing laws of the States. I immediately sent for a copy of the Tasmanian Licensing Act. I have great respect for Senator Branson’s contribution to the debate. The lawyers in this place have not a monopoly in respect of these matters. We are tedious people but only because we are expressing the actual content of matters upon which other people could be convicted for an odious offence and desire to protect the precious service decorations which are so valuable to the rightful possessor. But if precedents and the labours of past legislators had been examined, we would have an amendment in terms which I read from section 110 of the Tasmanian Licensing Act-
Any contravention of this Act committed in any licensed premises by any person exercising in such premises any authority, or acting, or purporting to act, for or on behalf of the licensee, or with his permission performing any of his functions; shall be deemed to have been committed by the licensee, as well as by such person as aforesaid, unless it is shown to the satisfaction of the Court before which the proceedings are heard that such contravention was committed without the authority, and contrary to the orders or directions, of such licensee.
Every one of the objections to the original proposal and the imperfections of the amendment would be met perfectly by the straightout adoption of that section. In the case of the person acting for the proprietor there is the master-servant relationship. Therefore, this section makes it obligatory for the defendant proprietor to show that a sale was made not only without his authority but also, as the Minister properly insists, contrary to his positive orders and directions. I bring that section to the notice of the Committee, having recited it only for the purpose of giving the Minister the opportunity to consider it, because its incorporation in the legislation under consideration would be a great improvement upon the amendment that is proposed. Nevertheless, in deference to the consideration that he has given to the submissions we made last night I will be prepared, in the same spirit, to accept the amendment, despite its imperfections, if he asks us to do so.
– I am very interested in what Senator Wright had to say. When he started I was not too sure whether I was pleased or sorry that I had referred to the licensing legislation in the various States, but having heard him I am glad I did, because his argument throws up a matter that might well be considered. I see the force of the argument and I would like the opportunity to examine it more closely. I ask the Senate to pass the amendment I have submitted today. As I have indicated, this legislation is even now under review and this matter, together with the proposition regarding Aboriginals, will be among the things that will be examined more closely with a view to improving the amendment which I have submitted.
.- Like other honorable senators, I listened with keen interest to what Senator Wright said. I think we found, last night, that we had an extremely unsatisfactory and almost meaningless provision to deal with. As the result of overnight consideration the Minister for Defence (Senator Paltridge) has come forward with an amendment which is a very substantial improvement, in that it recognises a defence, while still placing the onus of proof on the defendant. It contemplates circumstances in which a defence may be established, and I think that is proper.
I do not feel that the analogy put forward by Senator Wright is an exact one in any way. First, to my mind the addition of the the words “ without his authority and contrary to his instructions” would not greatly improve the situation, because if the action were contrary to instructions that would appear to be the larger offence and would comprehend the smaller, encompassing the phrase “without his authority”. I do not think there would be too many cases where something that was contrary to instructions of the proprietor would not also be without his knowledge or authority. But, secondly, my substantial point of objection to using as an analogy the State licensing acts is that this is an altogether different kind of situation from that covered by those acts. The various licensing acts deal with the proprietors of establishments selling liquor. All of the liquor laws are directed towards securing compliance with the liquor laws, by all those who deal in liquor as a matter of business, so that publicly accepted standards on the sale of liquor will be protected and the law vindicated throughout the ramifications of the liquor industry. It seems to me that what is contemplated here under the provision which creates this offence is not the case of the person whose business it is to sell medals but that of the person who passes or sells medals and service decorations furtively because they have some value to someone who wants to obtain them improperly and illegally. With the greatest respect,, and appreciating the importance of preventing trafficking in Service medals, I cannot see why a person who is innocent of any knowledge of a matter and who can prove his innocence on the balance of probability - which is the standard in all civil courts - should be convicted and subjected to the stigma attaching to conviction for this son of offence. That is why 1 would not find any great satisfaction in the adoption of Senator Wright’s proposed additional test expressed in the words “ without his knowledge and contrary to his instructions “. I believe that if the defendant can establish affirmatively that he did not know anything of the sale - if he can establish innocence of any knowledge or complicity in the sale - there is no reason why he should not he acquitted of the charge and cleared of any stain on bis character.
– I come into this debate with great diffidence, but I do so because I listened with interest - as did most honorable senators - to the various opinions expressed during yesterday’s debate. I say quite definitely that the Minister for Defence (Senator Paltridge) has looked most thoughtfully at the comments made and 1 support, without reservation, the amendment he has moved. 1 want merely to add that, having listened to the illustration given by the Lender of the Opposition (Senator McKenna) and to Senator Cohen’s argument, 1 would say that, in my experience, when there are people within a Committee who want to advance what are, in practical experience, the most preposterous proposals, they go on, ad infinitum, building up a theoretical case regarding something which we, as practical men, know will never happen. I venture to say that even in the minds of the two honorable senators to whom I have referred the illustrations they advanced were quite preposterous and unrealistic. Surely most of us will accept without reservation the amendment moved by the Minister. That is my opinion on this matter.
– I think the Committee has benefited greatly by the dis cussion. The illustration 1 gave was a thought which occurred to me, although the case I dealt with was a remote possibility. [ concede that the other possibilities mentioned are also remote, but the duty of the Parliamentary Draftsman and our duty as legislators is to provide against possibilities, not just to legislate on probabilities. As long as there is a possibility that a person with a completely innocent mind may be wrongfully convicted - no matter how remote that possibility is - 1 think it is our duty to address our minds to it. I do not want to carry this discussion any further and I am genuinely grateful to the Minister for what he has done and for his undertaking to look at this question again in the future. I appreciate that very much and I do not want to rush him at the moment. I invite him to give this matter some further consideration, perhaps in the time between the passing of the legislation in this chamber and its being debated in another place. In order to put on record the viewpoint of the Opposition T will move, as an amendment to the Minister’s amendment, that after the word “ instructions “ the words “or without his authority” be added. That will plainly leave on the record the viewpoint of the Opposition in this place in regard to this matter. I am content that my proposed amendment will be put - it may be rejected - leaving it to the Minister to consider the matter further in the next few days. This course will also serve to alert our colleagues in another place to our line of thinking.
– In view of what I have already said I am sure it will be understood that I will oppose the amendment advanced by the Leader of the Opposition (Senator McKenna). As to his invitation that I might do something while this Bill is in flight, so to speak, between this chamber and another, I merely say to him that I just cannot give him that undertaking in the present circumstances.
-(Senator DrakeBrockman). - Order! We cannot consider this matter. It is out of order.
.- Having widely canvassed this particular matter and having had the considered opinions of various honorable senators whose minds are trained to look into these questions, lel me express the view briefly that what the Minister has done is to place on record his views which, I believe, accord with the spirit of the amendment but have left the letter of the amendment open to hypothetical and theoretical construction. On what the Minister has said in reply to the various queries which have been raised, I do not believe it can be taken that those who will interpret this amendment will take into consideration that when it was being debated it was intended that no innocent person should suffer because of the wording of the amendment. I hope that, finally, that intention will be expressed in the measure in the best possible way.
– Order! Senator McKenna suggested an amendment and I said that it was .not in order. I based my ruling on Standing Order No. 149 which states -
When it is proposed to leave out words in the Original Question in order to insert or add others, no Amendment to the words proposed to be inserted or added can be entertained until the Question that the words proposed to be left out be left out has been determined.
That question has not yet been determined. The question now before the Committee is -
That the words proposed to be left out be left out.
Question resolved in the affirmative.
– The question now is-
That the words proposed to be inserted be inserted.
Seantor McKENNA (Tasmania - Leader of the Opposition) [1 2.22]. - I now move, as an amendment to the Minister’s proposed amendment -
After the word “ instructions “ add “ or without his authority “.
– For reasons already stated and, 1 am sure, well understood, even if not accepted, the Government opposes the motion submitted by Senator McKenna. I take the opportunity also to inform him that I just cannot give him an undertaking that I will look at this matter while the Bill is in passage between the Senate and another place, but I repeat the undertaking I. gave earlier that this will bc studied when a general review is being made of the legislation.
– Order! The question is -
That the words proposed to be inserted (Senator McKenna’s amendment) be inserted.
Question resolved in the negative.
Amendment of amendment negatived.
– Order! The question now is -
That the words proposed to be inserted (Senator Paltridge’s amendment) be inserted.
Question resolved in the affirmative.
Clause, as amended, agreed to.
Clauses 20 to 22 agreed to.
Clause 23. (Repeal of Part XII).
– Clause 23 seeks to repeal Part XII of the principal Act. The relevant section of the principal Act relates to the re-establishment of servicemen. According to clause 2 sub-clause (2.) of the Bill, the provision in question will not come into operation until proclaimed. The purpose of the amendment and the intervention of the proclamation is to enable a redraft of the re-establishment provision to be submitted to the Parliament. We believe that the procedure is not correct. We believe that we should not agree to the repeal of the existing reestablishment provisions to enable the Government to make it effective by proclamation at any time until the provisions of the new Bill are before us. This is more a matter of procedure than a matter of substance. Quite frankly, I have information that a re-establishment bill is to be introduced, probably during this sessional period, but I have not yet seen it. We will record a vote against the procedure at this stage for the reason that I have given.
– If this clause is agreed to and a case arises before the regulations are promulgated, I take it that in those circumstances an individual would not be affected in any way. Certain things are being taken out of the Act which could help a person who is entitled to certain benefits. The new Bill may be brought down during this sessional period or during the next, but in the meantime there will be nothing in the Act to cover any case that may arise. In the circumstances, I take it that anyone who is entitled to any benefit will not lose by that lapse of time.
– Replying to both Senator McKenna and Senator Kennelly, the position is that this act of repeal does not occur until, as stated in clause 2 sub-clause (2.), a proclamation is made repealing it. No such proclamation will be made until after the bill which is to replace Part XII has been presented to the Parliament, approved by the Parliament and becomes law.
Question put -
That the clause stand as printed.
The Committee divided. (The Chairman - Senator T. C. Drake-Brockman.)
Majority . . 4
Question so resolved in the affirmative.
Clauses 24 and 25 agreed to.
Title agreed to.
Bill reported with an amendment; report adopted.
Bill (on motion by Senator Paltridge) read a third time.
Debate resumed from 6th May (vide page 625). on motion by Senator Paltridge -
That the Bill be now read a second time.
– The Bill before us is supplementary to a measure that was passed by the Senate last year when for the first time in Australia conscription was introduced in time of peace. It will be recalled that the legislation passed last year provided that a certain number of men who had attained the age of twenty years would be conscripted to serve full time for two years. It was stated at the time that they would first undergo training for six months, but yesterday the Minister for Defence (Senator Paltridge) said that that period could be extended. It was provided thatthey would then serve full time for another 18 months in the Regular Army Supplement, and would then be transferred to the Regular Army Reserve in which they would do part time training. That means that those men will be out of industry altogether for the first two years of their service. Then, if we are not engaged in war, I take it they will be able to follow their normal vocation for the next three years and no doubt undergo night training and certain weekend training and a ten day camp or two each year.
The Bill now before us is designed to alter that situation. It provides that in two sets of circumstances the conscript can be compelled to perform full time service for the full period of five years. The first of these contingencies is a time of war and the second is a time of defence emergency. I intend to deal with the latter. To my mind it is a nebulous sort of thing; nobody seems to be able to offer a definition of it. If a defence emergency exists for the last three years of a conscript’s term of service, it will mean that he will be out of industry for the full five years of his service.
When the Government submitted its conscription proposals last year the Opposition opposed them. We did so on many grounds. We believed that if the Government made the voluntary system sufficiently attractive it would be able to obtain sufficient volunteers to meet the requirements of the Army. I am still of that belief. I admit that in June last the Government did raise the pay of male members of the Army. I do not know whether the Minister for Defence, the Minister for the Army (Dr. Forbes) or the Treasurer (Mr. Harold Holt), who is concerned with the payment of Army personnel, has yet considered increasing the pay of female members of the Army. The Labour Party has been accused, in a half serious fashion, of knowing something about a report that was tabled about a week before the question arose in the Senate. The consensus of this chamber was that women in the armed Services should receive at least 75 per cent, of the male rates of pay, as is the practice outside of the Services. The Government has had a long time to make that change but I have read nothing in the Press to indicate that it has even considered the matter. Senator O’Byrne, who raised the point as a matter of urgency, proved conclusively that women in the Services were receiving 59 per cent, of the male rates of pay. I concede that the Government has demonstrated that it does not want men in the Army on the cheap, but the same cannot be said of women in the Army. It is not to be wondered at that very few women are joining the Services.
The Government proceeded with the National Service Bill. The Labour Party warned that if conscription were introduced it would greatly reduce enlistments through the voluntary recruiting system and that in the end it would be necessary to depend largely upon conscripts to raise sufficient men for the Army’s needs. We submitted also that sooner or later conflict was inevitable between conscripts and those who volunteered for the Australian Regular Army, the Regular Army Reserve and the Regular Army Emergency Reserve, and that such a situation would be detrimental to the Services.
The Government did not say when introducing the National Service Bill that the men called up would be sent to fight overseas before the Government had even declared that a defence emergency existed or that we were at war. When it was announced that the Government planned to send 800 soldiers to fight in Vietnam, a Labour senator asked whether we were at war. The answer was, in effect: “ No, we are not at war. We are not even in a state of defence emergency “. But 800 men are being sent to Vietnam. Unfortunately, replacements will be needed and no doubt they will be obtained from the conscripts after they have concluded the six months training referred to by Senator Gorton when he introduced the National Service Bill. If my memory of it is correct, he said then that those called up would receive six months training. Despite its shortcomings, the National Service Bill was passed and a Senate election followed. I suppose it is fair to say that the people supported that legislation, amongst other things such as Commonwealth aid to build science blocks. Whether the people voted for conscription or for Commonwealth aid to build science blocks is a matter of opinion. I notice that the Minister is giving a kind of grin.
The Bill before us changes the situation created by the introduction of the National Service Bill. The conditions created by that legislation last year are now to be altered. I would like to know why conditions are now to be substantially different from those created by legislation introduced about six months ago.
Sitting suspended from 12.46 to 2.15 p.m.
– As I said prior to the suspension, there is a very substantial difference between the Bill that we are now discussing and the National Service Act of last year. Under the Act of last year a conscript, upon completing his two years service, will be discharged from the Regular Army Supplement and be deemed to have enlisted in the Regular Army Reserve for the remainder of the period of five years. That is provided in section 27 (2.). What is proposed is that if, during his two years full time service with the Regular Army, the Government proclaims in the “ Gazette “ a state of defence emergency, he will not be discharged but will be deemed to have been re-engaged in that force until the defence emergency expires or until he has completed five years service. Some may say - and it is true - that this Bill at least provides that he will not do more than five years service and that at present he is liable to serve full time for two years and part- time for three years. In certain circumstances - the one in which I am interested is the state of defence emergency - he could be a full time conscript for five years.
Under the legislation enacted last year, a man who was compelled to join the Army would be trained for six months. No doubt he would then he placed in a Regular Army battalion and would serve in a combat area. After the beginning of next year he could possibly be serving in Vietnam. Upon having completed two years service, he would then have to be discharged and become a member of the Reserve. If, after that, the Government declared a state of defence emergency, he would be liable to be called up for full time service, which would include service overseas. If the Army needed men for a combat area, as no doubt it would if a state of defence emergency existed, it would, 1 suggest, have a look at the other serving members of the Australian Regular Army. It would have a look at conscripts who had completed six months training but had not seen service overseas and then at members of the Regular Army Emergency Reserve who had volunteered for service overseas. Finally, if it still needed men, it would have recourse to the Special Army Reserve of which the conscript who had completed two years service was a member. Under the existing arrangements I should say call-ups for service would be made in something like that order.
But what will be the position if this Bill is passed? A conscript who has completed six months training would be attached to the A.R.A. If the unit to which he is attached is overseas, he will bc kept there if a state of emergency exists. Therefore, instead of being the last to do a double issue, if I may put it in that way, he will become the first. Under the existing legislation. I should say that he would be the last. Under this Bill he could be the first to do a double issue if needed. Instead of facing the necessity to obtain volunteers or enlarge the intake - whether we call them national servicemen or conscripts - the Government, by proclaiming a state of emergency, will be able (o extend the full time service of a conscript from two years to five years.
Listening to the debate on the Defence Bill last year I believed - as no doubt everyone else did - that the declaration of a state of defence emergency would be the last desperate resort prior to a declaration of war. I admit that we have had to form our own thoughts about it, because we have no definition of what will happen. All that we are told is that the Government, per medium of the Governor-General, will declare a state of defence emergency, which will be notified in the “ Gazette “. I am afraid that under this proposition, instead of a declaration being the last desperate resort, it could become a resort for keeping the men in a combat area rauch longer than last year’s Bill suggested. By the declaration of a defence emergency the conscript may be called upon, if the Government so desires, to serve 4± years in a combat area. Remember that we are in a most peculiar situation today. Some weeks ago the Government announced that it would send 800 soldiers to fight in Vietnam.
– To serve.
– Well, Senator Cormack knows more about the Army than I do; but can he tell me what these mcn will be doing in Vietnam? Are they being sent just because they are good looking? Last night Senator Sir William Spooner, who, I understand, was a gallant soldier-
– Hear, head
– I know he was a gallant soldier; I cannot say more.
– He won the
– I said that he was a gallant soldier. He said last night that it was foolish for anyone to say that the 800 troops would not make a worthwhile contribution to the situation in Vietnam, and Senator Cormack has said that the troops are going there only to serve. The honorable senator may have an opportunity later in the debate to argue the difference between serving and fighting.
If this Bill is passed the position so far as conscription is concerned, will be vastly different to the position that existed last year. If a state of defence emergency is gazetted a conscript may serve five full years instead of two full years. This could mean that instead of a maximum of 18 months in combat service, as would have been the case under last year’s legislation, he could now have 54 months in combat service, or three times as long as he would have had but for this legislation. Instead of taking two years out of a young man’s life - perhaps the most important years of his life - you now propose to take five years.
– Was not one circumstance related to peacetime and the other to a time of emergency?
– The honorable senator may have his say later. I said earlier that, among other things, the electorate endorsed at the last Senate elections the principle of compulsory national service training; but it did not endorse the proposition that a young man should lose, by the Government’s declaration of a defence emergency, five years out of his life. The Government will not define a defence emergency for us. The Government proposes to send 800 men to serve if we adopt Senator Cormack’s term, in Vietnam. As Senator Sir William Spooner said, they are the flower of our Army. I say they are going to fight. Can any honorable senator opposite tell me the difference between serving and fighting in this case?
– I see. At the last Senate elections there was no thought - let us hope there was no thoughtof our troops going to Vietnam, but now they are to go. In introducing the conscription measure last year Senator Gorton said that the conscripts would train for six months and then would be drafted into battalions of the Australian Regular Army. Now, I understand that one battalion of the A.R.A. is in Malaysia. Another is about to go to Vietnam. I am too frightened to guess how many remain in Australia.
These are the reasons why we oppose this Bill. This Government does not appear to care a rap what it does to these young fellows
– Did the Labour Government care a rap in 1943?
– Yesterday I heard somebody ask what the Labour Government did in 1943. I thought that he should have been ashamed of himself. In 1939, 1940 and 1941, when you people were elected to govern this country, and you had a majority in both Houses, you walked out.
– Do not be silly.
– Yes you did. If you did not walk out, how did Curtin get in?
– Many thousands of Australians-
– Never mind that; I am talking about what is happening today. What is the reason for changing the legislation that was introduced last year? I think the change is dramatic. It is dramatic insofar as it affects the lives of the young men. The legislation now before us will take five years out of their lives.
– They could be corpses if they did not go.
– What do honorable senators think of that statement. “ They could be corpses if they did not go “? If you do not go you may be a corpse and if you go and you may be lucky enough to come back alive. So therefore, in the Government’s view, all should go.
– Hobson’s choice.
– It looks that way. We should ask ourselves the reason for this dramatic change - because it is a dramatic change.
– It is.
– One at a time. Do not be like married magpies. If you interject one at a time I do not mind. Why does the Government consider this legislation is needed?
– Because you say the country is worth defending.
– It is not that. The Government says that the reason is classical.
– Do you say the country is not worth defending?
– Senator Mattner may make his own speech later. Let us look at the Government’s reason for this dramatic change - and my friend Senator Cormack agreed that it is a dramatic change. No one minds dramatic changes if conditions call for them.
– Such as within the Labour Party.
– Well, we shall doubtless have changes as time goes by, just as there will be changes within the Liberal Party. What are the reasons for the dramatic change in this legislation? One reason is given as administrative difficulties. Let me quote from the second reading speech of the Minister for Defence (Senator Paltridge). This is a real classic.
– It was a good speech.
– I do not think it was. It was not the honorable senator’s speech, because he would have done much better. The Minister said -
It could lead to unacceptable administrative difficulty in a time of defence emergency if a member has to be discharged from the Regular Army Supplement and must then be served with call-up papers for full-time duty as a member of the Regular Army Reserve, particularly if he is serving in a forward area.
So the Government believes that he will be serving there. The Government does not say that the conscripts will not go overseas. What could be more stupid than to say that these men will have to serve for only two years? If a defence emergency exists for five years they will have to serve for five years.
– What would the honorable senator do to replace them? Would he withdraw them and send other men in their place?
– I do not claim to he a military strategist, but I do’ claim to possess a little common sense. Whatever the Government puts up, honorable senators opposite march in line. The Government intends to call up some 4,000 youths in the first six months. After the beginning of next year, what percentage of them will be liable to join the Regular Army units in combat areas?
I can think of nothing worse than to say that the matter of relief could lead to administrative difficulties. I suggest that however able these young men might be, they will have to be relieved. They cannot be kept in the front line the whole time. I shall not refer to the corpses which were mentioned the other day, but if these young men are wounded they will have to be brought out of the line. They will have to be relieved. I have never heard of a more pitiful and, may I say, a more shocking reason why they should not be relieved. We are not discussing a situation of war; we are discussing a defence emergency. The Government will not tell us when a state of defence emergency will be declared other than that the declaration will appear in the “ Gazette “.
Because extra work may be involved, the young men are to stay on service. Even if it did cause some upset in the administrative work would it not be better to get them out and to send in other people who had not been there? Surely the Government does not expect to keep them there the whole time.
– I have great respect for my friend Senator Cormack. Why can they not be relieved? It is said that administrative difficulties would arise. The trouble is that honorable senators opposite have been led for too long and they are tired. They will not follow their own reasoning. I would not mind so much if they did. But I cannot think of a weaker reason why they should not be relieved. As I said previously, this will mean that the Government will be able to keep them there. I think that this Bill is wrong in principle. Where no state of war exists the Government is not entitled to do what it is attempting to do under this measure. It is not right to take five years out of a young man’s life. I do not think that the Government is enhancing Australia’s prospects in the troubled world situation which exists today. I do not know how long you will be in Vietnam. You may not be there as long as you think because your allies may not be there as long as they think they will be. I am not speaking about military defeat. I am speaking of the things that could happen on the home front. What will the Government do in that situation?
I ask honorable senators opposite not to support the Bill. I think that the Government is already taking enough time out of a young man’s life. If this country is ever in danger there will be no need for conscription.
– We might not have the time to train them, as we had in the past.
– We did not have too much time at the beginning of the Second World War, or at the beginning of the First World War either. Reference was made during the debate on the Defence Bill to the men who served at Gallipoli. They did not have too much time for training, either. I think Senator Branson will agree with me when I say that possibly the methods of warfare in the next war will not be the same as they were in the First World War and the Second World War.
I again ask the Government to tell us when it is likely that a defence emergency will be declared. We all know what it means when war is declared. Either we are about to be attacked or some other member of the Commonwealth of Nations is about to bc attacked. I. do not think anybody can say that there will be a falling off in the number of men who will volunteer.
– Did the Americans know that Pearl Harbour was to be attacked?
– No, and neither did they know that the “ Lusitania was to be sunk in 1917, although Great Britain had been at war since 1914. With the situation as it was when the Japanese made a surprise attack on Pearl Harbour, it would not have helped anyone, even if there was power at that time to declare a state of defence emergency, and a state of defence emergency already existed. Therefore I say that the Government is doing something behind the backs of the people. lt has got away with introducing two years full time national service. Now it is trying to get away - and undoubtedly it will - with five years national service under certain conditions. 1 think this is wrong. T do not think it is needed. If it is needed, it is up to the Government to tell us why it is needed.
.- Mr. President, I think I must tell the Senate a little story before 1 begin my speech on this Bill. Undoubtedly there are great numbers of people in another place who from time to time have decided that they were spared the infliction of my presence in that place. What honorable senators do not know is that out of the kindness of his heart Senator Kennelly was responsible for preventing me adorning the House of Representatives and so compelled nic eventually, in the process of political time, to enter into the Senate, where I find myself face to face with him.
– One can always make mistakes.
– I think Senator Kennelly would be the first to agree that we have been at opposite poles of politics in (he State of Victoria from which we both come. There is a vast area in terms of the social requirements of the community in which we live and which we represent in the Senate, but he is at the south pole, at is were, and I am at the north pole as far as the problem of defence is concerned.
– The honorable senator has never had a chance to test the Government’s policy in wartime. The Government has never been in office in wartime.
– I am not talking about wartime. The honorable senator is talking about wartime. [ am talking about defence. Wartime is the end extension of the problem of defence. In this debate we are involved, nol in a problem of war in this debate but in a problem of defence. That is what the Defence Bill, which was passed through the Senate this morning was concerned with, and the secondary Bill, which we are discussing at the present time, is a second expression of the defence problem. But in the debate which has taken place on the Defence Bill and the current debate, this matter has been taken straight into the problem of war. Surely, in the very use of the expression “ defence “ we are involved in a problem of trying to prevent war. That is the essence, I suggest, of this Bill.
I now turn to a phrase which I read in a newsletter that I found lying in the Senate Government Party room. The phrase, perhaps, sums up the attitudes of both the Leader of the Opposition (Senator McKenna) and Senator Kennelly to the whole of this problem. Both honorable senators are descended from people for whom I have not only a great affection but also immense respect. This race of people, which came from Ireland, has done more to sustain the concept of law, order and justice in the Anglo-Saxon sense than any other race in the world, and these people have given more to the political life in Australia than perhaps any other migrants who came into Australia in the early days. I refer with the greatest of respect to both Senator Kennelly and also Senator Sir Alister McMullin, who are descended from Ireland-
– Senator McKenna?
– Yes, that is right.
– The honorable senator, said Senator Sir Alister McMullin-
– Yes. I meant our esteemed President who is also a descendant from Ireland. It is an unusual point of
I contact between the President and Senator Kennelly. This newsletter to which I have referred says that one of the characteristics of the Irish, whom I love, as I said, unreservedly, is that when they are involved in an argument or dispute, they are too polite, so it says here, to say that the other person is wrong. In another way, the newsletter says -
Instead, he will turn to a third party and say that it’s a rare thing indeed, to see a cat with a saddle on him.
I say without any attempt to be facetious that Senator Kennelly and other members of the Australian Labour Party are involved in a matter of immense difficulty, because that Party traditionally is a Party which does not want, and did not want, to get itself involved in what it called the quarrels of (he old world. This was a characteristic of the qualities that distinguished the Australian Labour Party, I suggest, for the last 60 or 70 years.
Because of the change of circumstances that exist in the world today, we in Australia find ourselves suddenly rocketed into responsibilities that relate to the defence of this country in isolation. In other words, we are now involved in the problem of setting up a defence structure by which this country may exist on its own if need be. If it cannot exist on its own if need be, then it has to seek allies. We have them. But, on the other hand, we cannot have an ally unless we are willing to serve in the common interest of ourselves and our ally on the same terms in which our ally is involved. We cannot expect American soldiers, airman or naval men to defend Australia unless we are willing to do that which they are prepared to do in the wider interest. We are not involved in the problem of the defence of Australia as an island continent. We are involved in the problem of morality which exists and which we have in common with our ally, the United States of America. I feel that this has to be said.
Senator Kennelly, I think with some justice, riding this saddled cat that I have just mentioned, has been talking about the problem of when do you commit your forces? The honorable senator makes a rhetorical distinction as to what is a state of war, what is a state of emergency, and suggests a third factor which exists in relation to, and is harnessed with, the problem of the dispatch of an Australian battalion to Vietnam. The oddity of this situation is that in all our lifetime, and in the lifetimes of our fathers and grandfathers - and even long before them - the problem of what constitutes a state of war was always easily discernible, because, in the western European philosophical concept at least, a war did not take place until there was a declaration of war. But a new morality has been introduced into world affairs in the 20th century which may be described, if there is such a morality, as the Communist morality - that is, that you can have a war that is not a war. There is no caucus belli. There is no proclamation of the war in the formal sense which we have known for some hundreds of years.
The people of our race, and our concepts in terms of law, order and justice, are now involved in a totally different problem - that there can exist a war which is yet not a proclaimed war. This is not something which has been invented by the people of the United States, the people of Great Britain, the people of Australia and the people of New Zealand-
– It is continuous.
Senator CORMACK__ This is the new morality, relating to armed conflict, which has been invented by the Communist powers: You can have a war which is not a war. It is not a proclaimed war; yet, in fact, it is a war. If this situation is admitted - I think it must admitted because it is axiomatic and self-evident - then the state of affairs exists where there is no proclaimed war but there is a situation which is at least precedent to the proclamation of a war. It is a state of emergency, which must be an act of judgment. You therefore arrive at a situation relating to the defence of Australia not based on what Senator McKenna, with his traditional knowledge of constitutional law, said it was based. Senator Kennelly, with his background and experience in these matters, supported his lender. As I see it, we have a situation in which the physical integrity of the people of Australia, New Zealand or the United States of America may be prejudiced, not by a proclaimed war but by a situation so dangerous as to be antecedent to war. lt is therefore necessary for the nation concerned - whichever it may be - to adopt a posture of readiness to meet what might become, in common parlance, a hot war.
These are inescapable factors of the situation in which we in this world find ourselves. Instead of the old concept of circumstances advancing towards a proclamation of war, we are in a secondary phase - a situation of high emergency precedent to war - and therefore nations must adopt a national defence posture which will put them in a position of readiness should a slate of war come about. But the whole of our defence legislation in the past has been based on meeting a situation of declared war. Because of lack of adequate communications and the short range of the then existing weapons there was always in the past a period in which you could at least begin to assemble your armed forces to meet a situation that you could reasonably anticipate. Those circumstances do not exist today. There is no declared war, but instead a period of danger in which the nation could face annihilation overnight. Therefore this impetus which has been engendered by the Communist morality - to use a purely philosophical term - is one from which we cannot escape. We are involved in this problem. Whatever the political nature of an Australian government any government would be recreant to the duty for which it was elected if it did not put the people of Australia in a state of readiness to meet the position which I have just outlined. In essence that is the problem in which we are involved in relation to these two Bills.
I cannot refrain from mentioning Senator Kennedy’s statement that this action has been taken by the Government in two stages. I thought I detected in Senator Kennelly’s remarks - with all my admiration for him as a very able political organiser - a suggestion that the Government has brought in these two Bills as an act of chicane against the electors. I do not accept that. I think the problem we are facing has always been inherent to defence. The change in Australia’s defence requirements has been so vast, so intensive, that the necessary action had to be taken in at least two steps, and the Minister for Defence (Senator Paltridge) indicated this morning that there is a third stage yet to come. I repeat, there has been such a vast change in the technicalities of meeting our defence requirements that the necessary action cannot be taken in one bite. We are now only in the second phase.
I cannot allow the honorable senator’s implied criticism of the Government’s action lo pass without commenting on it. We have passed from a period of what might be described as political immaturity - at the time of the first settlement of Australia - through the period of growing and establishing our nation under the wing of the more powerful force from which our nation is derived - Great Britain - to a situation where, from 1942 onwards, we have been able to survive because the most dominant force in the Pacific basin has been the United States of America. We have now reached full acceptance of the responsibilities of nationhood which, in the terms of the privileges involved, we were’ all too willing to assume, and we must pay the penalties involved in attaining the stature of nationhood, ft is this which caused this able senator, the Minister for Defence, to bring into full perspective the whole problem of the responsibilities of nationhood as related to defence. That is what these two Bills are for.
It is all very well for my friend, Senator Kennelly, to ask, “ What is meant by an emergency?” Earlier in my remarks I said that the problem of what is an emergency is a matter of judgment and not of fact. A declaration of war is a matter of fact. If the Chinese People’s Republic declared war on Australia, that would be a matter of fact. But under the modern concept which has been educed and enunciated by the Communists of the world and, as Senator Mattner reminds me, not only in terms of theory but also in terms of practice, we have a situation of high danger which the Government, in its legislation, expresses as a matter of emergency. This is not so much a problem of fact as a matter of judgment and the judgment, under our social system, must rely on the executive government of the country, composed of men drawn from the Parliament. We must therefore not deprive this or any other Government of the Crown the right to decide, on the best information available, what is a period of emergency. So we are faced with the problem, brought willy-nilly into our lives, of meeting a situation precedent to the declaration of war - a situation of high danger, which is an emergency. I go further and ask: “ When is the actual period of emergency reached?” I think we must at this stage admit that we cannot state when the real emergency arises. But at least the defences of New Zealand, the United States of America and Australia must be so postured that their armed forces are so disposed that we are not taken unaware in the event of a sudden flaring up of the emergency. The problem of South Vietnam has been bandied around the Senate and undoubtedly will be bandied about in another place. I suggest South Vietnam is a textbook case because of the lack of morality with which we are involved.
At what stage are we to decide that the situation in South Vietnam has become one of emergency? It is not impossible to foresee that the beginning of an emergency could relate to the irrational behaviour of our neighbours to the north, in Indonesia. We can follow this line of argument a great deal further and see that the emergency period short of war can create a third situation in which we must dispose of our defence forces so that we will not be taken completely unaware by aggression.
The second part of Senator Kennelly’s argument during this debate, foreshadowed, ] suggest, by the remarks of the Leader of the Opposition (Senator McKenna) yesterday in regard to this legislation, related to our ability to reinforce our defence services. As honorable senators will recall, Senator McKenna pictured a situation in which, being involved in war, you gradually take in more and more men until you have no manpower left to reinforce your Army, Navy or Air Force or the logistic elements of your defence.
We are not involved here in the problem of war, which is a problem of proclamation. Nor are we involved in the problem of the emergency situation, but we are involved in a moral and a physical responsibility in the long term or the short term defence of Australia for which we must set up a defence posture which is able to produce a defensive effort even in the event of an emergency situation. The Bills now before us sets out to develop the Australian defence posture and, of course, the defence posture of any nation is based on manpower.
Senator Kennelly said that involved in the Bill we are discussing is the man who has been called up for national selective military service, who has undergone his training, who is then put into the Regular Army or the Regular Army Reserve and who, at a subsequent stage when we are involved in an actual collision, is returned to civil life because he has served bis two years and because the implied contract was that he had to serve only two years. This leads, of course, to that portion of the Minister’s second reading speech to which Senator Kennelly referred. It states -
It could lead to unacceptable administrative difficulty in a time of defence emergency if a member has to be discharged from the Regular Army Supplement and must then be served with call-up papers for full time duty as a member of the Regular Army Reserve.
This creates an intolerable administrative problem because, when a situation of high danger which may be defined as an emergency period arises, or when there is a proclamation of war, or when there is a situation antecedent to war which, based on the judgment of the Government of the day - it does not matter whether it is a government of which Senator Kennelly is a distinguished Minister or whether it is the present Government of which its leader in the Senate is also a distinguished Minister and one charged with the responsibility of defence - is likely to result in the clash of war, whatever form it takes, you cannot have a statutory limit. Perhaps there would be a battalion or half a dozen air crews in a squadron or a percentage of the seamen in our warships who would have to be discharged. This is an intolerable administrative difficulty which no government, whatever its nature and its views, can resolve.
The government of the day, therefore, whether it is a government based on the existing opposition or a government based on present Government supporters in this chamber and in the other place, must be given the option of deferring the necessity to withdraw our troops, our sailors and our airmen. The country must not suffer defeat because, by statute, its government is required to release certain personnel from the Services. There must be a latitude to enable the Government to discharge its fundamental responsibility to the Australian people, charged as it is with. the defence of this country and its people.
Now I turn to the other misconception which seems to exist constantly in the minds of honorable senators, particularly opposite but probably on this side of the chamber as well, that a navy, an army or an air force is a static concept. I want to put a point of view to honorable senators to let them see how this problem exists. The defence effort required of this nation is in the form of a pyramid. At the very top of the pyramid is the fighting man. I am giving my illustration in the context of the Army. Immediately beneath the fighting man in his unit is what is known as the “ left out of battle “ group - the reserves. It is fundamental in war that as fast as you create righting men you must create reserves. So in the Navy, the Army and the Air Force you have what is known in the Army as the “ left out of battle “ group. Beneath this group which is in actual contact with the enemy you have in the pyramid the reinforcement depots with fully trained men. Beneath the reinforcement depots you have the training formations where men are being trained. Then below the training formations and the depots you have, in the Navy and the Air Force as well as in the Army, your draft intakes from compulsory selective national service or from the voluntary trainees because ours is a dual system. Finally, at the bottom of the pyramid, is the machinery of the draft which is imbedded in the Department of Labour and National Service. So there is the pyramid with the fighting man, whether he be a naval seaman, an infantry man or a member of an air crew, sitting at the apex and beneath him, as I have demonstrated, is this great system. But the government of the day must have the power to put the foundation beneath this great pyramid. This is what the National Service Bill seeks to do.
Let me return to this final problem of the intolerable administrative difficulty which the Minister mentioned. Such has been the immaturity of our approach to the problem of defence that I think every man and woman in this Senate and in another place who, as a result of the compulsions of the days in which they lived, has had to serve in the defence forces of this country, has seen these fantastic administrative difficulties which have arisen because people have had to be withdrawn from the armed forces in the actual battle situation or in the collision course. Certainly, in the latter stages of the last war this situation arose because servicemen may have done a tour of duty extending to 12 or 15 months and it had been decided administratively that after having served for 15 months a serviceman had certain entitlements. This is an intolerable situation unless you are the victor. But who can assume the victory? Victory is not won until the war is over. if I have talked too vehemently about this 1 apologise. I suggest that I have not introduced a partisan note into this debate. All I am begging honorable senators to do. and, through honorable senators, the people who elect them, is to acknowledge the fact that we have reached a situation of national maturity, nationhood and adulthood and that the full responsibilities which derive from this must be accepted and sustained by the Australian people. These Bills are the means by which this can be assumed and the obligation carried through.
.- I like the title of this Bill which is “ National Service Bill “. It relates to national service to our own country, and I am really sorry that it has been misconstrued. I. make a brief explanation relating to the youth of Australia. I believe Senator Kennelly miscontrued the whole thought behind my interjection. He is keen about the future of the youth of Australia. I am’ too. Let us suppose that Australia was overwhelmed. Then what would be the future of our youth? I said, by way of interjection, that they could be corpses. I have never been a corpse, of course, but I imagine that being a corpse would be much worse than performing national service for the defence of the country. If we do not wish the country to be overrun, how are we to prevent it? Who is to prevent it? It is the sacred duty of the people of Australia to defend their own country. We talk about this great country and its freedom. Are they not worth fighting for? The Opposition is not paying due credit to the youth of Australia when it says that our young people will not agree to this proposal. I believe that they have welcomed the proposal for this one reason: What one should do for one’s country is difficult to decide. This decision has been taken from them and they are to be called up for national service. Nothing could be fairer than that. I repeat that we are considering national service.
Let us look at the Bill. Clauses 27 and 28 form the keystone of the measure. As
Senator Kennelly has said, last year legislation was passed which provided that young men could be called up for two years service in the Regular Army Supplement, which is an adjunct of the Australian Regular Army. Members of the Regular Army are volunteers who have signed on usually for six years. If they so wish they may re-engage for either three years or six years. Some people may say that these men have chosen the army as a career. Good luck to them if they have. It is a most honorable career to choose. As I have indicated, side by side with the Regular Army we have the Regular Army Supplement. Until the National Service Bill 1964 was passed the old Regular Army reserves consisted of soldiers who had enlisted for three years only. When it was decided to call up the youth of Australia for two years service under the terms of the National Service Bill 1964, it was decided to put those people and those who had volunteered for three years service into the Regular Army Supplement. As the name suggests, that force is designed to supplement the Regular Army. Under the legislation passed last year national servicemen were obliged to serve for two years in the Regular Army Supplement to be followed by three years in the Regular Army Reserve.
The Bill now before us does not alter that position in any way. However, under the provisions of the National Service Act 1964 and the Defence Act 1964, considered together, a national serviceman in the Regular Army Supplement, like his comrade who had volunteered for service in the Supplement, was not entitled to be discharged from the Supplement if the end of his engagement occurred during a time of war or a time of defence emergency. The present position is a little different from that stated by Senator Kennelly. It is now proposed that, if a national emergency is declared or if unfortunately we are at war, the national serviceman will be required to serve for five years. Senator Kennelly said that the national serviceman should not have to serve for a further term but should be able to go back to civilian life after serving the first two years. I do not want to refer to all that happened in 1941 and 1942, but I do wish to say that had it not been for the Australians who volunteered in 1939 and the divisions that we had in Egypt and elsewhere which ensured the security of India and kept Japan out of the war for many months we in Australia would not be here today as Australian citizens. The Opposition has had the temerity to say that the Government of the day and the people of Australia did nothing to ensure the defence of this country until Labour assumed office in 1941.
We know some of the administrative hardships that were experienced when Labour assumed office. Let me mention one or two instances of which I have some knowledge. Soldiers who were transferred from the Australian Imperial Force to the militia and who went to New Guinea in 1942 did not know that they were expected to change their allotment of pay. The result was that their wives and families were left without one penny of allotment. We were told that the soldiers themselves should have changed their allotment. That is the kind of administrative difficulty that occurred.
– Members of the Opposition are not listening to the honorable senator.
– I know that. Let me go a little further. Labour’s ideas about the calling up of youth in 1942 split this country from stem to stern. We almost had civil war in our training camps. I can provide facts and dates to support my statement that militia troops were taken from camps in South Australia down to the beaches and elsewhere in order to prevent this horrible feeling that existed between the two branches of the Army from erupting.
I emphasise that we are discussing national service. Surely we have grown up since 1942. The volunteer will have to face exactly the same sort of danger and to go into exactly the same engagements as the men who are to be called up. Nobody on the other side of the Senate has been able to prove that the duty to preserve the safety of Australia does not devolve upon every man and woman in the country. This legislation takes that duty a little further. Let me refer to the sort of problem that arose during the 1914-18 war and to a lesser extent during the last war. In World War I the volunteers included the cream of the professions. They could ill be spared from our war effort at home. They were used as infantrymen. I am not seeking to belittle infantrymen, artillerymen, or any members of the Services, but the talents of such volunteers could have been utilised, in my opinion, to much better advantage at home.
By introducing the National Service Bill, the Government said, in effect: “ We will have a searching look at our manpower. This legislation is designed to defend Australia and therefore we will allot men and women to the jobs of work for which we think they are best suited.” Honorable senators opposite chide the Government by saying that it has no thought for the defence of this country, that it does not plan. But the moment the Government produces a tangible plan for our defence, which should earn the gratitude of every Australian, it is again chided by members of the Opposition because the plan does not please them. 1 would have thought that the Opposition would have come in four-square behind the Government on this question. For years members of the Opposition have been saying, quite untruthfully, that the Government has left Australia undefended. That statement is made inside and outside this chamber. But whenever the Government puts forward proposals to strengthen our defence, the Labour Party opposes them.
The present proposals are to prevent war from coming to this country, as far as is possible. They are designed to preserve the security of Australia. As Senator Cormack said, in our present situation Australia must be prepared to play a very great part in defending herself. We must be true to our allies. I believe that we must follow the lead of the United States of America and Great Britain in calling up our young people for national service. No honorable senator opposite has said that ‘he is prepared to be defended by the young people of Great Britain and the United States who are called up for compulsory national training. How can wc, with justice and national pride, say to our allies in time of peril: “ Come to our aid. We are not prepared to call up our youth as you are doing, but come to our aid.” If we are to keep faith with our allies, in common decency it is necessary to implement national service training.
The National Service Bill is fair and just. It gives to our youth an opportunity to defend Australia and places in its correct perspective (he effort we must all make in time of war. It destroys the power of the awful saying so often heard in time of war in relation to somebody who is not in uniform: “Why didn’t he go?” Obviously it cannot bc clear why some people did not go to World War I or World War II, but with the introduction of national service training it will be plain that any person of eligible age who is not called up for service will have his abilities utilised to far better advantage. I welcome this Bill because it is fair to every Australian. I repeat what I said at the start of my speech: This legislation provides for national service in which everyone should be proud to participate. I support the Bill.
– in reply - 1 am indebted to my colleagues. Senator Cormack and Senator Mattner, for their informative contributions to this debate. Their speeches have simplified my task in replying to the case submitted by the Deputy Leader of the Opposition (Senator Kennelly) on behalf of the Opposition in opposing this measure. In the last year, as might be expected, in this chamber and in another place members of this Parliament have had very many opportunities to review our defence policy and our defence needs. I well recall that when I presented the 1964 defence review, one of the surprising criticisms of me and the administration of my department was that I was presenting too many reviews too frequently. 1 have had some difficulty in understanding that criticism because, in my view, in these times the questions of defence and defence policy might well be almost continuously before the Parliament.
During discussions of our defence situation, I have attempted to explain to the Parliament the quite different situation which has existed in the world in recent years. I think it is necessary to explain this new situation. If we do not understand it, we fall into all forms of confusion. I strongly suspect that the Deputy Leader of the Opposition fell heir to confusion when he addressed the Senate today. I refer to that part of his address in which he spoke of “ a time of defence emergency “ and “ a time of war”, and pointed particularly to the imprecise factors which created a time of defence emergency. I cannot but agree with him that the factors which make for a time of defence emergency are imprecise, because they, will alter from situation to situation according to geography, time, and the nations and the strength of the forces involved. Although this imprecision exists, surely no-one would deny the proposition that in times short of war a need lies heavily upon every nation desiring peace to take precautions to ensure that it is prepared to meet the developing situations which, of themselves, fall short of war.
As I considered what the honorable senator was saying, I was prompted to recall a statement I made in October of last year about the progression of events which could occur in Australia to make it necessary for us to take certain definite actions at certain definite, though presently ill-defined, times. I shall refer to a speech I made in October last year. I said -
First, the permanent forces of each Service will be available at all times. Secondly, if the defence situation requires it the Governor-General may, by order, call out the Emergency Reserves of each Service.
In other words, as the situation deepens so we can by executive act call out the Emergency Reserves. I continued -
Thirdly, if the military situation deteriorates, the Governor-General may then by proclamation declare a time of defence emergency. The effect of such a declaration is that, as well as continuing the liability of members of the permanent forces and Emergency Reserves to render continuous full time service for an indefinite period and enabling the Minister to call out the Regular Army Reserve. . . .
That is important in respect of the Regular Army Supplement, and I shall come back to that -
I refer back to that part in which I stated that in a time of defence emergency the Regular Army Reserve could be called out. A national serviceman who has, for example, served two years in the Regular Army Supplement and has in fact become part of the Reserve, does not just become part of the Reserve, as was stated by the Deputy Leader of the Opposition, to attend camps and to do some part time service. There remains upon him, and always has, under the legislation that we passed, an obligation to serve in time of defence emergency. There is nothing new about that. This is in the Bill and it always has been in the terms of the Defence Act. Those men who may now be called up from the Reserve could in fact have been called up under the Defence Act.
I notice that my colleague, the Minister for Labour and National Service (Mr. McMahon), in introducing his measure into the House of Representatives in October or November last, said: “ In time of defence emergency, under the provisions of the Defence Act, national servicemen may be called up for further continuous service “. The Deputy Leader of the Opposition asks what is different, what is changed about this Act. Sir, the thing that is changed is this: If the provisions of the Defence Act had been enforced and there was no provision in the national defence act in relation to national service recruits, the national service trainee who had become a member of the Reserve could in fact have been called up, not for the balance of the period of five years for which he was liable but for the whole time of defence emergency, no matter how long that time of defence emergency may be. The purpose of the amendment which the Senate is considering is to make it completely clear that the total service of the national service recruit shall be limited to a period of five years and shall not go beyond five years, irrespective of the period of defence emergency.
The other point that seemed to trouble the Deputy Leader of the Opposition about the service of the national service recruit was that he might, under the arrangement that we are proposing in this Bill, find himself liable for a longer period of service than was originally contemplated as a member of the Regular Army Supplement. The Deputy Leader of the Opposition attempted to make quite a point of the fact that we saw the need for this for administrative convenience, particularly so far as it applied to national service trainees who. might be in regiments in the front line or in an active service area. The fact of the matter is that under the terms of the existing legislation, as I have explained, in time of defence emergency, the national service trainee about whom we are talking is liable to be called up from the Reserve. The situation when he is a member of the Supplement is this: He is serving in the Supplement, his two years expire - this is the real meaning of .the administrative inconvenience - and he is transferred from the Supplement to the Reserve, but this being a time of defence emergency he can under provisions that now exist be called up again and re-enlisted in the Supplement. We say that in time of defence emergency, not at any other time, to overcome what are obviously a lot of unnecessary administrative procedures, he shall be deemed to remain a member of the Regular Army Supplement.
– Fair enough.
– And he shall continue his service. That, as my colleague interjects, is fair enough. I can see nothing wrong with that at all. The other aspect to which I want to refer is the apparent trouble which the Deputy Leader had in respect of the declaration of a time of defence emergency. As I have indicated earlier, a time of defence emergency is governed by very many factors indeed. It cannot be defined in clear terms. That fact has been acknowledged as recently as yesterday by no less a person than the Leader of the Opposition in this chamber who, when addressing himself to this matter, said -
Despite the fact that we have armed forces fighting in Malaysia to meet the confrontation of the Indonesians, that we have certain plant, equipment and personnel in Vietnam - the personnel at the moment acting as advisers - and that we are on the point of sending a battalion of our Australian Regular Army to fight against the North Vietnamese, I take it, on the one hand and against the recalcitrant members of the South Vietnamese population on the other band, the Government has not see fit to declare either a state of war or a state of defence emergency. The latter term is one that I concede may be quite indefinable with any precision. A defence emergency obviously has to be assessed in the light of what are the current facts when the decision about it is made. The facts can change.
It is a matter of judgment, as is recognised by the Leader of the Opposition. That it is a matter of judgment and that over recent years it has been difficult to define it is certainly thrown into relief by what may appear to the honorable senator to be an equally strange fact, namely that war was not declared when fighting was taking place by formations in Malaysia against the Communists during the time of the insurgency. War or a time of defence emergency was not declared in respect of the Malaysian-Indonesian confrontation, in which are engaged - if that is the word - on the Malaysian side formations from a number of countries. The MalaysianIndonesian situation is not called a state of defence emergency in this country just because we have troops committed or involved and it is not called a state of defence emergency by anyone else as far as I know. In the same way, the Korean operation was not declared a state of defence emergency or a state of war.
– Were we not in Korea as part of the United Nations force?
– We were, and the fact that we were in Korea as a member nation of the United Nations, fighting a war approved by the United Nations, if “ approved “ is the word to apply to that situation, may well be a reason why all of us might have taken a more formal view of the matter and declared war. But this was not done. None of the situations to which I have referred was described as a time of emergency or a time of war for the simple reason that it is recognised that all of the situations which we have faced in recent years are part and parcel of the new disruptive technique that has been indulged in in a number of places around the globe. For that reason the present situation in South Vietnam is not a time of war.
I feel that my friend’s apprehension about this matter stems from the fact that the Government may declare this to be a time of war. If that is to be the case - if it is to be declared a time of war - it will be done by proclamation and within 10 days of that proclamation being issued the whole situation will be discussed by the Parliament and will continue to be discussed by it.
– It is a fundamental reserved right of the Parliament.
– It is, and if we are not engaged in an active war but if a state of defence emergency is said to exist, then on the issue of a proclamation the Parliament will assemble and the behaviour of the Government will come under close and continuing scrutiny.
I have dealt with the two matters raised in the second reading debate which I felt needed some comment. Again I express my gratitude to my two colleagues who made what I considered to be very informative contributions to a most important subject.
Question put -
That the Bill be now read a second time.
The Senate divided. (The President - Senator Sir Alister McMullin.)
Majority . . 3
Question so resolved in the affirmative.
Bill read a second time.
.- One matter that I would like to refer to concerns the administration of the National Service Act. Now that the Minister for Defence (Senator Paltridge) has put real life into the defence mechanism, which includes the compulsory recruitment of men, it does not seem to me that to commit the administration of that recruitment to a department which essentially deals with civilians, conflicts with the purpose for which those men are committed.I would like some information from the Minister as to whether consideration has been given or is being given to the advantages - it may be that the disadvantages are quite apparent and overwhelming - of having the administration of these provisions placed directly under the control of the Department of Defence. It seems to me that all the activities in relation to recruitment would be more fully understood by the officers of that Department than by the officers of the Department of Labour and National Service.
If there is no substance in that suggestion, it may be appropriate to consider staffing the branch of the Department of Labour and National Service which will deal with these defence activities with servicemen and ex-servicemen. I raise this matter because it is necessary when government servants come into contact with the people that those concerned should have a proper outlook with regard to the nature of their service. To my way of thinking, the administration of these matters by the Department of Labour and National Service gives a quite different perspective to the idea of military service than would be the case if recruitemnt were under the direct supervision of the Department of Defence or a Service department. If the relevant branch of the Department of Labour and National Service were to be staffed exclusively by exservicemen it would engender a greater spirit of understanding and respect between the recruits and the Department.
– I would like to comment on the very interesting matter which Senator Wright has raised. I think I should say at once that the cooperation which exists between the Department of Labour and National Service and the three branches of the Armed Services is first class. The degree of co-operation which exists gladdens my heart. The Department of Labour and National Service is the Department, in the postwar context, which has had actual experience of this kind of thing. During the earlier national service campaign the Department carried out all the recruiting arrangements. In those years the officers of the Department acquired a familiarity with the matters which the officers in the Service departments did not have an opportunity to acquire. It developed, I am pleased to say, a degree of efficiency which was well worth while.
Another comment which I feel I should make refers to the fact that the Services are not carrying out this function. I want everyone to understand that the officers in the Service Departments today are pretty busy people. If one looks at the Army, onefinds aprogramme of expansion which is requiring the concentration of all personnel. For example, by the end of 1966 the manpower strength of the Army will have increased by about SO per cent. I think I have only to state that figure to indicate the degree of activity which is taking place within the Army in order to effect that expansion. Expansion is taking place in the other Services - although not to the same extent as in the Army. There is also a high degree of activity in the other Services, particularly as new ships and new aircraft are brought in, and the activity is increasing.
In those circumstances, and having regard to the total job that has to be done and the total resources that are available, it was clear that the Department which could best administer the task of raising the personnel before transferring them into the Services was the Department of Labour and National Service. Having said that, I would not like it to be felt that servicemen cannot and should not play an active part in recruitment for their own Services. Indeed, they are frequently the medium by which an immediate interest is inculcated in the lads coming into the Services. They could, probably better than other people, transmit a degree of enthusiasm. As men become available this is one of the matters which might well be looked at in order to ensure that their services are used to the best effect.
– I wish to draw the Minister’s attention to clause 5 dealing with the proposed new section 27 (8.) (b). I would like the Minister to clear my mind on this matter. I refer to the position of a young man at a university who, during his time there, becomes eligible for call up. Does the provision mean that if he joins the Citizen Military Forces for a period of, say, three years - or five years if his course at the university is for five years - he is exempted from two years compulsory service? If he is not exempted and has to undergo the two years compulsory service, what advantage is there in his joining the Citizen Military Forces for a period of three years in lieu of staying in the Reserve for three years?
The second matter which I raise relates to school cadets. I refer to young men who devote their school holidays and also perhaps Saturdays and Sundays to cadet training and eventually become underofficers in the cadet corps. If they are called up subsequently, is the cadet training taken into consideration? Does it give them a greater chance of appointment as officers? I read in the Press today that more than 200 young men will be promoted in rank during their national service training.
– It was my experience - and I assume it was also the experience of most other servicemen during the last war - that prior service was a factor which gave the member concerned an advantage of which the Army was not slow to avail itself. It does not confer on that former under officer any preference. The honorable senator would not expect that it would. But I think that, as a matter of course, the fact that a man had previous experience would weigh in the balance when questions of promotion were later being discussed in the service which he joined. For that reason, if for no other, this underlines the advantage of young lads at school joining their cadet units where the opportunity is available so to do.
I refer to the first part of the honorable senator’s question. Clause 5 relating to proposed new section 27 (8.) reads-
If, upon or before the expiration of the period of his engagement to serve in the Regular Army Supplement . . .
That is, he has served his two years in the Regular Army Supplement -
That is, he has served in the Supplement and is eligible for discharge to the Reserve -
. after his discharge from that force in -
. he is not liable to render further service under this Act . . .
In other words, his period of service after three years with his C.M.F. unit, after Ms discharge from the Supplement, would count as bis service in the Reserve to which he would be liable in normal circumstances.
Bill agreed to.
Bill reported without amendment; report adopted.
Bill (on motion by Senator Paltridge) read a third time.
Motion (by Senator Paltridge) agreed to -
That Government business take precedence of general business after 8 p.m. this sitting.
Debate resumed from 12th May (vide page 736), on motion by Senator Gorton -
That the Bill be now read a second time.
– This is a Bill for an Act to exempt certain persons from liability to serve as jurors. It is in the same tenor, broadly speaking, of the Act which has existed for many years, the Jury Exemption Act 1905- 1950. It brings that Act up to date by making certain changes. Those changes are by way of adding to the specific classes of exempted persons and also by dealing with another class of exempt persons in such a way that the content of the class of persons who might be exempted might be varied by regulation. The effect paradoxically, will be that more persons will be liable to jury service because, in the former Act, there was the exemption of the officers of the Public Service of the Commonwealth. Under the Bill which is before the Senate, that will be altered so that regulations may be made in relation to those persons in the Public Service. Some of them may be exempted from jury service and some may not be exempted.
The Bill provides also that the regulations may be applied to persons not in the ordinary concept of a public servant, who are employed under the various enactments which cover bodies such as the Commonwealth Scientific and Industrial Research Organisation. So, this is a valuable Bill because it deals with an important subject. It enables Hie Government by regulation to exempt those carrying out the higher functions of administration and leaves other persons in the Public Service liable and privileged to undertake jury service. It has been explained that the Government will introduce regulations which will widen very much the liability to jury service of persons in the Public Service of the Commonwealth. This is good.
Once upon a time, it was thought that persons employed in the Public Service - that is, employed by the Government - should not be liable to jury service because persons would be brought into the courts who were closely connected with the Government, and they might be subject to influence by the Government. That was in the days when the sphere of government was much more restricted than it is today. But we have now a great fraction of the working community employed in the Public Service. It is only right that those persons should be liable and privileged to undertake their part in the administration of the law. In our system, we do that through the juries.
The Australian Labour Party welcomes this Bill. We do not oppose it. We support the motive which is behind the Bill. We do this because the jury is an integral part of the administration of law in our community. The Bill which seeks to enable the Government to widen the liability to jury service is a good one. The jury system is one of the great things that we have inherited from the British peoples. The common law of the British Isles is the great legacy which the British people have handed to mankind, and mankind will always be grateful for this gift.
We often praise the British people for their achievements in many spheres, such as their great industrial achievements. They were the people who ushered in the Industrial Revolution. We praise them also for their military achievements but, above all, mankind will praise them for that which will endure when other achievements have become obscured by the passage of time - that is, this great legacy of the common law.
The common law is the essence of the wishes of the people, as they change from year to year, enshrined in the rules observed in our community. It is through the jury system that the common law has been able to flower. We in Australia ‘have the jury system, although early in our history, of course, we did not have it. At the beginning, in Australia, we had a system of trial by military tribunals, even in civil matters. In criminal and civil matters unconnected with military affairs our citizens, early in our history, were judged by tribunals comprised of military officers, and it was not without considerable struggle that the jury system was established in Australia. It would have been a great tragedy had we not taken and spread the jury system, because it is in the jury system that we find one of the reasons for the high regard which our citizens have for the law. Under this system great numbers of our citizens are able to take an actual and personal part in the administration of the law. They see its operation at close quarters. They become identified with it. They act as judges in a cause between their fellow men or between a fellow man and the Government. This is most desirable because in a democracy such as this we have three great branches of government; the legislature, the executive and judicial branch of government.
So far as the legislature is concerned, democracy is preserved by the electoral method. The citizen takes part in the legislative process by voting for the persons who come to Parliament to make our laws. In the United States of America the citizens also take part in the election of the executive - the presidential elections and similar elections for governors of the various States. We do not have this system in Australia, because our executive is drawn from the legislature, but the elections for the legislature enable the citizens to take part in selecting the members of the executive and, thereby, to influence the executive branch of government.- Additionally, citizens are entitled from day to day to approach the legislators - and the members of the executive - and to ask for things to be done, thus enabling the democratic will to be carried out in both those spheres.
So far as the judicial branch of government is concerned, the jury system is the way in which democracy operates in this community. Citizens are called for jury service and it is they who apply the law in accordance with directions of judges and sometimes not in accordance with directions - and the right to do the latter is also a very valuable part of the jury system as those who have studied our history understand. If you take away the right of citizens to serve on juries and to administer the law you have removed democracy to that extent. This would be a great tragedy, because it, was through the verdicts of juries that many of our great liberties were secured. It is through the verdicts of juries that many of those liberties are maintained to this day, and this applies not merely to the criminal law but also to the civil law. Those who are familiar with the great struggles which took place in the United Kingdom are aware of the way in which juries brought about changes in the law.
If I may refer to the criminal law, Mr. President, those who know the law and the history of prosecutions for .treason in Great Britain are aware of the dramatic way in which juries brought about an amelioration of the criminal law because, for decade after decade, juries refused to find any man guilty of treason while the punishment for that offence was hanging, drawing and quartering. When that punishment was changed juries were prepared to find offenders guilty. Again, when the criminal law was so savage that persons who stole goods or money to the value of 40s. or more were liable to capital punishment the juries, in case after case where they found men guilty of stealing, adopted means of evading the imposition of the death penalty. Even where the amount involved was obviously more than 40s. and the theft was of 100 golden sovereigns, a jury would find a man guilty of stealing 100 golden sovereigns “ to the value of 39s.” At first this was regarded as perversity on the part of the juries, but the judges came to approve of it. Those who understand this see that what are sometimes erroneously condemned as perverse or foolish verdicts by juries show, if they are consistent, that the community is demanding some change; and it is historically correct to say that juries have brought about such changes. For a long time we have seen, in connection with our road accident laws, justices telling juries that they should not find for an injured person if he has been guilty of some contributory negligence - that is, in States such as New South Wales, where contributory negligence would be a complete defence. Of course juries, using their commonsense, decline to follow such direction unless the negligence on the part of the injured person is so outrageous that he should be deprived of a verdict in his favour.
This might be thought to be wrong and perverse but it is an illustration of the working of a system which has brought most members of the judiciary to the stage of agreeing with the outlook of the jury that the law should not be in this state, that it should be altered and that it should be made to accord with what juries have been applying consistently year after year. The juries have done this in many other fields. When juries depart from the written letter of the law or from what is told them by the judges, and apply a consistent standard, they really are making the law in this community. This has been the way in which our common law has changed. It is not the only way but it is one of them. Then comes the registration, through our legislature, of what the juries have already made the law in our community. The way in which the jury system has worked so that our democratic processes oan operate in the courts of law is admirable. This system should be extended rather than constricted.
There are some who would worry about the cost of jury actions. For myself, I would prefer that there were no costs in litigation and even that there was no counsel in litigation rather than that there should be no juries in our serious civil or criminal actions, because the jury is the instrument of democracy in judicial matters. The jury system has been examined by many of the wise men of the law. Outstanding judges like the late Sir Frederick Jordan and many of the great English jurists have supported the jury system. I think one may say that the vast majority of the great judges have been its supporters. Those who study it and those who understand it know what a magnificant part it has played in the development of liberty in our community.
– Is the honorable senator thinking of civil or criminal litigation?
– I am thinking of both. The jury system is one of the great products of British common law. It is no accident that the places to which the British common law has extended, such as the great United States of America, have been the source of the surge to have the rule of law extended throughout the whole world. One of the great revolutions in which we are now engaged is the revolution for justice. The rule of law is being taken throughout the world, lt is being introduced into most of the newly developed countries. The impetus for the acceptance of the rule of law throughout the civilised world has come from the common law countries, and the jury system has been bound up historically with the development of the rule of law.
The jury system has been the bulwark of the citizen in his constant struggles against over-reaching by the executive. It is good to see that in Australian law we are recognising the importance of the jury system and seeking to extend its privileges to a vast body of persons in the Public Service of the Commonwealth who hitherto have been denied the opportunity to take their democratic part in the administration of justice. Our constitution contains a chapter which deals with the judicature. This chapter provides for Federal courts and the jurisdiction that those courts shall exercise. It is to be remembered that a great part of the law which is administered in this community is law in the exercise of Federal jurisdiction, not only in the Federal courts but also in the State courts, being jurisdiction which is conferred on courts by the Judiciary Act. Included in that chapter of the Constitution is section 80 which provides -
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament perscribes
That means that whenever there is an indictment for an offence against the laws of the Commonwealth there must be a jury. Unfortunately, in a much criticised decision of the High Court, that section has been given a restricted interpretation. I trust that in some future case it will be given an interpretation which will enable it to have the operation which no doubt was intended for it by those who included it in the Constitution because, as has been said by that great jurist, Dr. Evatt, and many others, the interpretation which has been given to it renders it really meaningless.
The interpretation of the High Court is to the effect that if the trial is on indictment it is to be by jury, but there is no necessity to have an indictment. The judgment may be smumed up in this way: If you institute a criminal proceeding for trial by jury then the trial must be by jury. This made nonsense of the section. It was intended to provide the safeguard to the citizen of this community that in all serious matters, a trial by jury would be preserved; and that in matters which traditionally had been heard on indictment there should continue to be trial by jury.
Fortunately there is, in fact, trial by jury for most serious offences against the laws of the Commonwealth, but that is provided by statute and by the appropriate ordinances. So it should be, because we would not want in our community any departure from the system which has been the basis upon which our liberties have been built and upon which our democracy works in practice.
Today in this chamber we have heard discussion on the part of honorable senators, including Senator Branson and Senator Wood, about the interpretation of Bills. We have heard the Minister for Defence (Senator Paltridge) say that nobody would prosecute in certain circumstances. In reality a jury, exercising commonsense and the proper standards of the community, would ensure that there would be a conviction only in proper circumstances. That is the great principle upon which we stand. It does not matter what are the words in our laws. The question is: Who is going to apply them? When we have the verdict of a jury as the ultimate determinant we have a system that is conducive to our welfare. It is the system that our citizens want; it is a system that inculcates in them a high regard for the law.
– Does the honorable senator regard juries as being judges of the law or judges of fact?
– I should say that under our system juries have been judges of fact and standards, and that is what traditionally they are told. But throughout history juries have always exercised the function of judges of law in cases where they thought that the law as stated to them by the presiding judge was out of line with the standards of the community. That has been their historical function. Presiding judges tell juries that they must decide only the facts and must take the law from the judge. But I believe that juries - that means the community - have never accepted that view. Whenever the law has been put to juries in such a way that it has been con.pletely opposed to the standards that prevail in this community those juries have declined to accept the judge’s direction. That is why changes occur. It means that day after day over the years a subtle process operates which brings about an amelioration of our law, whether in humble road accident cases, cases of libel against individuals or criminal cases where liberty is at stake. Day after day juries, by their verdicts on the facts, are changing the application of the law. They are really changing the common law.
The function of juries does not stop at reaching a. simple decision on the facts as though juries are a machine into which you put a lot of evidence and out of which comes a factual answer. That might be so in theory but it has never been so in practice. The history of the operation of the jury system here, in the United States of America and in every other part where the common law has held sway demonstrates that. May I say further in answer to Senator Gorton that that does not mean that in ordinary cases juries would depart from what the judge told them. Our juries have consistently carried out their duties in a manner that has commanded the respect of the community. They apply themselves to their duty with diligence, fairness and impartiality. But in cases where what has been put to juries by judges as part of the common law seems to the ordinary man to be inconsistent with justice and common sense, then historically juries have taken the stand that they would not be bound by what they have been told. The history of our law shows that this has been an extremely valuable function of the jury system.
It is in this way that our law comes close to what is required by the community. That is why our laws do not get out of step with what is required by the community as they do in countries that do not share this common law tradition. In countries that do not have this tradition the law becomes set and stiff and day after day the community moves away from it, whether it be at the constitutional level or other levels, until the community and the legal structure are so far apart that the only way in which the gap can be bridged is by revolution or some violent upset. The wisdom of our system lies in evolution; changes in our legal structure are achieved day by day in the courts by the decisions and verdicts of juries.
It follows that no significant part of the community ought to be kept outside the operation of the system except for very good reason. The Bill provides for specific exemptions such as the Governor-General, members of the Federal Executive Council, Justices of the High Court and other courts established by the Parliament and members of this legislature. It is only right that those who are part of the Executive or the legislature should not be involved in the administration of justice. But leaving aside those who are at the top of the structure, it is only proper that this Parliament should enable the Government to make regulations, which are subject to the approval of both Houses, to enable the greater part of our Public Service to undertake the obligation and exercise the privilege of temporarily becoming part of the judicial system, thereby adapting it to the wants and needs of our society.
Question resolved in the affirmative.
Bill read a second time.
– I was very interested in the remarks of Senator Murphy at the second reading stage. I hope that action will be taken at an early stage to bring juries back to hear certain matters in the divorce jurisdiction. It seems to me to be most peculiar that judges who seem to know nothing about family discord should be made the sole judges of domestic disputes. I say that in passing.
I should like the Minister for Works (Senator Gorton) to give some consideration to clause 4 to assist me in my understanding of its application. Sub-clause (1.) provides that persons who are referred to in the Schedule shall be exempt from serving as jurors in a Federal Court, a court of a State or a court of a Territory of the Commonwealth. There is specific mention in the Schedule of the Federal Executive Council, justices of the High Court and other courts created by Parliament, senators, members of the House of Representatives, members of the
Commonwealth Conciliation and Arbitration Commission, members of the Tariff Board, Commonwealth police, and members of the defence forces, with some qualifications. They are all exempted from service in any Federal or State court.
Clause 4 (2.) provides that the regulations are to be made under parapraph (a) for exemptions in Federal courts and under paragraph (b) for exemptions in State courts. I understand that it is the intention of paragraph (b) to provide for exemption of Commonwealth employees in State courts in those three States which have not yet applied an obligation to their public servants to serve in the courts of the States. I ask: What is the position under this legislation with regard to judges of the Supreme Courts of the States, police magistrates of the States and members of the State police forces? Are they obliged to serve on juries in Federal courts?
– I am advised that the jury laws of the State in which the Federal court is sitting would apply.
Bill agreed to.
Bill reported without amendment; report adopted.
Bill (on motion by Senator Gorton) read a third time.
Debate resumed from 12th May (vide page 739), on motion by Senator Gorton -
That the Bill be now read a second time.
– Any bill dealing with the subject of conciliation and arbitration is an important bill. On this occasion, for two reasons I propose to address myself to the subject with unusual brevity. The first reason is that the Opposition is not opposing any of the provisions contained in the Bill. The second reason is that I am to be followed, I understand, by quite a number of my colleagues who are skilled in industrial matters and will adequately present the viewpoint of the Opposition.
The Bill before us deals with a variety of matters which are quite dissociated in many respects. I merely mention some of them. lt is proposed to facilitate joint sessions of the Commonwealth Conciliation and Arbitration Commission in relation to matters that are described as common to two or more divisions of the Commission. That is an improvement.
– What does the honorable senator mean by “ joint sessions “?
– If two sections of the Commission are dealing with particular matters and a matter becomes common to both of those sittings, one hearing combining the two tribunals will deal with it. The Commission, as the Minister pointed out in his second reading speech, has followed this practice before being specifically authorised by the provision in this Bill to do so.
It is also worth mentioning that jurisdiction is now to be conferred upon the Commonwealth Industrial Court to review the taxation of costs and expenses in relation to matters that come before it. A new provision is included that the Court may award costs or expenses, but subject to the regulations. In other words, the hitherto wide power of the Court will be subject to limitations. The regulation making power is expanded to enable the regulations to deal with the subject of costs and expenses. The Minister has told us that those regulations will contain provisions which limit the appearances of counsel to junior counsel except in cases approved by the Court.
– The provision will not limit appearances; it restricts costs.
– That is so. The provision will operate to limit the costs connected with the appearances of junior counsel unless the Court certifies that it was proper for senior counsel to have been engaged.
There is a proposal to expand the number of inspectors. The intention is to authorise inspectors who are public servants in departments other than the Department of Labour and National Service to function as inspectors under the Act. An additional facility is provided so that those inspectors may proceed to recover amounts payable under awards within 12 months of the time the payments became due. The new provision extends the period from six months to 12 months. A further provision widens the power of the Attorney-General to pay costs and expenses in connection with proceedings related to irregularities in elections.
The central feature of the Bill is contained in the proposed new section 109a which is to be interpolated in the Principal Act. lt will act as a qualification upon section 109 and the contempt proceedings that follow from it pursuant to section 111. At present, for instance, under section 109 an organisation or person may apply for an injunction to restrain a union from striking. The applicant may obtain an injunction. The decision of the Government is embodied in the amending Bill after consultation with the employers federations and the Australian Council of Trade Unions. The intention is to provide a breathing space before the injunction proceedings are invoked. Under the new provision the Court is forbidden from commencing to hear such an application unless it is satisfied that the Commission has been notified that the breach or non-observance is likely to occur, and that the notification was given without delay or within such time as the Commission deems to be reasonable. Finally, a period of 14 days must elapse from the giving of the notification before the Court may proceed. The idea underlining all of that is to interpose a period for conciliation before invoking the very drastic provisions of section 109.
There is one qualification to what I have said. If an applicant for an injunction is able to satisfy the Court that a breach or non-observance of an award is likely to occur within the next 10 days, the waiting period of 14 days is by-passed. That provision, taken in conjuction with what is now proposed regarding the costs that may be awarded in respect of senior counsel, makes a concession to a viewpoint that has long been expressed by the trade union movement, namely, that too free use has been made of the provisions and too ready recourse has been had to the Court for injunctions, instead of treating that section as a place of last resort. That is one aspect upon which I agree with the statement made by the Minister in his second reading speech. The other one acknowledges a complaint that has been made now for many years, namely, that some employers were using the court process to place the greatest possible burden in costs upon the trade unions against which they were proceeding.
The fact that in both these respects the Government has gone part of the way to meet these objections, to recognise - if 1 put it at the lowest level - a valid base for the objections, is a matter upon which we can be a little happy. But, of course, the Opposition and the trade union movement are not approving sections 109 and 111 because they are approving the relatively small amelioration that is provided in this Bill. They are very responsibly saying: “ Let us see these provisions in force. Let us see what brake they place upon undue recourse to section 109 and the invocation of heavy costs against unions.” Very responsibly, they are suspending judgment until they see the working of these new provisions, but they are prepared to give them a reasonably fair trial.
The fact that the trade union movement and the Opposition in this Parliament concur in that does not indicate any approval of sections 109 or 111. We have always contended that those sections were unduly harsh and quite unnecessary in the context of conciliation and arbitration. Carrying an injunction to a breach thereof and invoking contempt proceedings under section 111, we reach a position at which unions and unionists may attract two types of penalty for breach of the injunction. First, they may suffer the normal penalty provided under the Act, or under the award if the penalty is ensconced there. Secondly, they encounter the unlimited jurisdiction of the Court to fine for contempt. In that way, they are subject to two types of penalty.
The history of the matter, including the introduction of sections 109 and 111, is rather interesting. In 1950 or 1951, in the case, R. v. Metal Trades Association, which is reported at 82 C.L.R., 208, the High Court of Australia held that the then Court of Conciliation and Arbitration did not have the power to fine registered organisations for contempt of court simply by virtue of the fact that it was a superior court of record. The High Court held that the Act gave the Arbitration Court specific powers to deal with breaches and non-observance of orders and awards and that the Court could not assume the common law right of a superior court of record re contempt of court in addition to those specific legislative provisions. In other words, whilst the constitution of the Court as a superior court of record gave it unlimited authority in contempt proceedings, the fact was that particular matters, including breaches of orders and awards or agreements under the Act, had attracted specific penalties at the instance of the legislature, and that specific provision was deemed to cut down the Court’s otherwise wide power of action in relation to contempt.
Section 109 or its predecessor was born because of that decision. It was born to correct the position which was intended by the legislature, that there should be no contempt proceedings where specific penalties for particular acts had been provided. In 1951 we encountered what was the predecessor of section 109. That, of course, restored the position for which the employers had contended, that there should be dual penalties, that there should be the normal provision and penalty for breach of the conditions of an award, and if there was failure to obey an injunction in relation to such a matter there should be, in addition, a penalty for contempt.
The history of the matter is that whilst one cannot point to a vast number of unions being affected or a vast number of cases being heard per annum, the provisions nevertheless have had a significant and particularly heavy financial impact on quite a number of unions, mostly militant unions. The point that I want to emphasise here is that in one year, 1962, the amount of costs awarded against unions in respect of applications under section 109 exceeded even the heavy penalties that were inflicted on the unions. So one might say that there was a treble penalty, not merely the penalty for breach of an award pursuant to the ordinary provisions of the Act, but also a penalty for breach of the injunction and contempt, and then costs. This all added up to a burden produced by too free an invocation of section 109 that has provoked great hostility on the part of the trade union movement. The concessions, slight as they are, that are being made now are a belated recognition of the adverse effects of this type of legislation.
I want to make it quite clear that whilst we are not opposing the particular provisions - we are working in conjunction with the Australian Council of Trade Unions in relation to that matter - we are not to be deemed to give any kind of approval to the sections that they purport to break down. For that reason, I move -
That the following words be added to the motion that the Bill be now read a second time - “ but the Senate is of opinion that the Government should immediately introduce legislation to repeal the injunction and contempt provisions of the Act in relation to awards.”
Because all the publicity these days is in relation to injunction and contempt proceedings, the general impression is that they constitute the main penal or restrictive measures in the Conciliation and Arbitration Act. The impression is that they constitute the head and front of the sanctions which necessarily accompany the imposition of obligations and duties under any Act.
A year or two ago I had the privilege of working with officers of the A.C.T.U. in drawing up a complete list of what might be termed the penal provisions of the Conciliation and Arbitration Act. I have in my hand a copy of that document. It forms part of a paper distributed at the 1963 A.C.T.U. Congress. I am sure that it is readily available to any interested member of the public on application to the A.C.T.U. A number of honorable senators may be surprised to know that some 30 or more sections of the Act are devoted to the imposition of sanctions of various kinds. In addition, there are specific penal provisions in the regulations. They are imposed not for major matters but for relatively minor matters in about four occasions. I am now developing the theme that the provisions of which we complain - sections 109 and 111 of the existing Act - are completely unnecessary in the light of the many sanctions already imposed under the Act.
I refer to just two of them. I point out that under section 41 the Conciliation and Arbitration Commission has power to insert in awards provisions for penalties for breach or non-observance of awards. The maximum penalty may be £100 for an organisation and £10 for a member. Those are not light penalties. Under section 119 the courts of the land are empowered to inflict those penalties. They are quite substantial penalties. They may be applied for any breach of an award. They may be written into the awards themselves. They are enforceable in courts.
It seems to me that, having regard to the relatively limited number of cases in which section 109 is invoked, the Government has taken a sledgehammerto crack a nut in introducing into the arena of conciliation and arbitration the rigorous penal provisions of sections 109 and 111. In short, the Government’s action has the effect, one might say, of making breaches of an award not merely a civil matter but a quasi-criminal matter - contempt of court. It introducesan element of legalism and criminality into an arena that should be left completely free of those things and which should be confined to consideration of matters of an industrial nature. I advance that argument to indicate that, in the view of the Opposition, whilst sanctions are necessary, sanctions of the type to which we object are completely foreign to the whole spirit of conciliation and arbitration and are not only unnecessary but also ineffective, because the number of applications under the sections to which we object has not receded down the years through the presence on the statute book of those sanctions. The cases have increased in number. It may be that the application of those sanctions is confined to relatively few unions, but the sanctions certainly have not been effective. The passage of time merely indicates that what we said at the outset is right - first that they were unnecessary and secondly that they would be ineffective in achieving the purposes at which they were aimed.
The other point I make is that although we have a wonderful system of conciliation and arbitration, which has been constantly under review and amendment by all governments, the ultimate objective is to make an award between conflicting parties not for a maximum payment but for a minimum payment. Thereafter the parties are free to negotiate for any additional amount, either under the jurisdiction of the Commission or a conciliation commissioner or just between themselves without any intervention from the Commission. That type of thing is particularly contemplated by section 31 of the principal Act, which provides -
That agreement may be filed with the Commission and if it is certified by the Commission it has the same effect as an award made under the Act invoking all the safeguards and protections of the Act and enforceable in the same way as an award could be enforced under the Act. So quite clearly this Act has in mind the matter of discussions and agreements between the conflicting parties to an award for changes inthe award. Sub-section (3.) of section 31 provides -
The Commission may refuse to certify such a memorandum if it is of opinion that -
the agreement is not in settlement of an industrial dispute;
the agreement contains provisions which the Commission has no power to insert inan award; or
it is not in the public interest that the agreement should be certified.
Under section 33 the powers of the Commission to certify an agreement relating to the standard hours of work in an industry, the basic wage for adult males, the provision of long service leave or the determination or alteration of the basic wage for adult females are exercisable by the Commission in presidential session only. So the Act as it now stands contemplates that discussions, agreements and negotiations culminating in an agreement in writing, if certified by the Commission, may have the effect of an award made under the Act. i have not considered this matter before, but 1 would assume that if such an agreement effected between the parties is not certified by the Commission it would not cease to be effective as between the parties. In other words, whatever normal civil processes of the law are available to the parties could be invoked to enforce the agreement. I think many cases of that may be found.In negotiations for better accommodation for employees than is available under an award inevitably there is conflict and inevitably heavy pressure will be exercised on behalf of the employees. Sooner or later one may encounter the threat of strike to enforce the demand. While on the subject of strikes, since these penal provisions were introduced into the Act it has become the practice in many cases for commissioners and for the Commission itself to write into awards clauses banning strikes. That is the origin of the jurisdiction that led to section 109. Nearly all the proceedings seek either an injuction to restrain employee organisations from proceeding with a threatened strike or a mandamus to compel them to abandon a strike that is under way.
The real trouble originated, first in the concept of the Government to close the gap, as it saw it, that was created by the decision in the Metal Trades case in 1950, and secondly, in the question of bans on strikes. If there were no such bans written into the agreements there would be very few applications for injunctions under section 109. I would say that the Commission and the conciliation personnel attached to. the Commission should be very chary of writing into awards provisions banning strikes. As Senator Murphy said in relation to another matter today, when laws, awards and orders of tribunals are unjust and are not acceptable to the minds of men they will not take any notice of them. They commit breaches and then injunctions and contempt proceedings follow which involve dual penalties and heavy costs.
– That is an absurd proposition when stated absolutely like that.
-I am not putting it in any narrow sense. [ ask the honorable senator to withhold his judgment until I conclude what I am about to say. I am not saying that the right to strike is unlimited. I say that it should be exercised in a most responsible manner, having regard not merely to the interests and the purpose of the employees, but also to the interests of the community generally. In that respect the Australian Council of Trade Unions is playing a very substantial part in community service in itself outlawing strikes that are not approved by it. No trade unionist will ever agree that a strike is in no circumstances to take place.
I can do no better than to express the very colourful terms which were used by the late Mr. Clarey when he was a member of this Parliament. He was a former president of the A.C.T.U. He said that the right to strike was the thing that differentiated the free man from the slave. That is completely true. No trade unionist will ever surrender that right. Relatively very few of them invoke it, as was shown by the statistics quoted by the Minister. The great bulk of them act responsibly. The A.C.T.U. uses its great influence to see that strikes that concern the trade union movement are kept within reasonable proportions. It concerns itself with truly industrial matters and it does not go outside that field. 1 am not suggesting, as might have appeared from my first sentence, that there should be an unlimited right to strike - I am speaking of a moral right to strike - on any issue that occurs to a trade unionist. We do not contend that at all. I do not want to say any more on the matter. 1 have done no more than to point out briefly that our support of the Bill - in particular, our lack of opposition to clause 6 - does not indicate that we are in any way in agreement with section 109, which clause 6 seeks to ameliorate. I conclude by indicating again to the Senate that we will not oppose the measure that is before us.
– I support the amendment that has been proposed, and the sentiments that have been expressed, by the Leader of the Opposition (Senator McKenna). The first point that we should recognise about this legislation is that it is the result of tripartite discussions, which is a good thing in itself, but the proposals are not entirely satisfactory to the trade union movement. This is a form of discussion which should take place. There should be discussions between the Government, the employers and the trade unions on matters of top arbitration policy, and also on other industrial matters. But we feel that the kernel of the complaint of the trade union movement, which relates to the injunctions and contempt proceedings, has not been dealt with. I refer particularly to sections 109 and 111 of the Conciliation and Arbitration Act.
It has been stated that this legislation will provide a sort of cooling off period. In this respect it probably follows very closely the legislation that was passed in the New South Wales Parliament some years ago. Over the years the complaint, as everybody from the Opposition side and the trade union side recognises, has been that the penal powers provided in the Conciliation and Arbitration Act and in other acts have been used to the extent where they are not a deterrent. In fact, they cause resentment in the trade union movement. They do not cover the position that the Government sought to cover, that is, to dampen industrial activity.
The Bill provides, as the Minister put it, that the Commonwealth Industrial Court shall not commence to hear an injunction unless a notification has been received. It must be forwarded at least 14 days prior to the proposed non-observance of an award, and a shorter period shall not be allowed unless reasonable cause is shown to the Commission. The idea of the Government is to provide a period in which conciliation might be resorted to. Of course, that is a good thing. It will help to provide a medium by which discussions and negotiations can take place about a dispute, and perhaps produce a useful result. Other related matters, such as provisions regarding costs, which have not been acceptable to the trade union movement are also covered to some extent by the Bill. For instance, if an employer does not notify the Commission of threatened action, he will not be able to recover costs. In other actions which are brought under section 109, costs will only be allowed to junior counsel. These matters, I think, partly meet the complaints of the trade union movement.
The real issue which still remains is whether the penal clauses should apply to the trade union movement, which is pursuing a legitimate course in society by improving employees’ conditions, particularly where no controls exist in respect of prices and profits. If, as the Government contends, the measure is an attempt to meet the logical aspirations of the trade union movement, if not in whole then in part, I should have thought that the Minister would recognise the very useful purpose that the trade union movement plays in the community. In this regard I refer, as Senator McKenna did, to the Australian Council of Trade Unions. We know that the edifice of arbitration is not simply confined to the courts. In fact, all the labour organisations play an important role in maintaining industrial peace. Their role in our society ought to be recognised. Their great influence in maintaining industrial peace and in prosecuting the aims of their members to secure reasonable wage rates ought to be recognised. So the opportunity should not be seized to criticise what are claimed to be militant moves and Communist moves.
The lesson we must learn from this sort of activity is that the more we impose penalties by legislation upon trade unions. the greater is the advantage that is taken of the position by the Communist sections of the trade union movement. The Opposition agrees with the Minister when he says that reasonable men will act responsibly. Now, if reasonable men are acting responsibly and if the great trade union centres of the country are adopting this attitude, they ought to be recognised and more weight ought to be given to their submissions when they meet the Government. In the existing circumstances, we feel that full weight has not been given to their submissions and that the real measure of improvement which we thought we should obtain has not been achieved yet.
The Government argues that sanctions are important parts of the arbitration system. We contend that that is not necessarily so. While we could say that in other parts of the world the situation is different, somebody on the Government side could argue that the situation in Australia is entirely different historically, and that we have a different set of relationships in the industrial field. So we have. There is no reason why we should not move towards more conciliation in a positive form. I accept the proposition that there has been some move towards conciliation. In fact, we know that legislation was introduced into this Parliament by the Chifley Labour Government in this regard. Since the introduction of that legislation, efforts have been made to meet requests from the trade union movement to improve conciliation by the appointment of conciliators. This was a request from the Labour movement which came from the Australian Council of Trade Unions. Conciliation commissioners today are performing a very useful function, so much so that the President of the Commonwealth Conciliation and Arbitration Commission has made a point of mentioning this fact in his reports in 1957 and 1962. He has expressed satisfaction with the role of the conciliators. This is true, but the process is not strong enough. I mention here that the New South Wales Labour Government also appointed conciliators and provided the sort of cooling off process which we are now discussing.
We differ from the Government on the issue of sanctions. It is argued that the Commonwealth Conciliation and Arbitra tion Commission cannot perform its duties without the power of sanctions or penalties. There are those of us who have had the responsibility of organising and representing workers in the matter of settling disputes. When I refer to settling disputes, I want to emphasise again that the terms of settlement proposed by those responsible bodies are not always accepted by all the members of the union concerned. A union may give a direction to its members which is not accepted by certain sections of them. The organisation is then subject to action under section 109 of the Act and is finally dealt with under section 11 1 by which a penalty of £500 today can be imposed. We have complained of this situation. We feel that there is a great need to reassess the position.
I am aware that this situation is known to the Department of Labour and National Service whose job is, as far as possible, to smooth out the industrial disputes which occur in a community particularly at a time of economic expansion. By the same token, I believe that the Department does understand that many of these disputes are a direct result of management policy. Most disputes are. Not only do these disputes concern claims for wages and conditions, but also, on many occasions, disputes occur, because of bad factory conditions or because of some small factor which results from bad supervision and bad management.
It has become the practice to recognise in these days of expansion and of a so called welfare state the importance of human relations within the industrial movement. If we can continue to give this recognition, we ought to be prepared, if only as an experiment, to accept what has been put forward by the Leader of the Opposition (Senator McKenna) on behalf of the Australian Labour Party. We should do what the trade union movement asks and get rid of these punitive sections in the Conciliation and Arbitration Act once and for all. I have made reference to the position in other countries. In the United Kingdom where these matters have developed in a different fashion because of the historical aspect, the approach to industrial relations differs from our approach. For example, the United Kingdom uses a form of collective bargaining in some cases which is similar to the system in the United States of America. The unions negotiate with national bodies and contract national agreements for wages and working conditions. In some areas, this system operates in a smaller way. A system of industrial awards is also in existence. In this situation, there are no penal clauses in the awards in the general sense in which they are spoken of here. I believe that these facts are known to the Department of Labour and National Service.
I want to read to the Senate, as I may make reference to it later and also in order to include it in the record, a statement concerning arbitration and industrial conditions in the United Kingdom. This is the annual report of the Ministry of Labour and National Service for 1955 which is prepared by Her Majesty’s Stationery Office, London. I have a reference to the 1960 report but, unfortunately, the 1955 report is the latest one available here. This report refers’ to the sort of industrial relations that exist in the old country. At page 108 there is the heading “Negotiation, Conciliation and Arbitration “. The report reads -
Conciliation. - Under the Conciliation Act, 1896, and the Industrial Courts Act, 1919, the Minister may take such steps as seem to him expedient to promote a settlement in any trade dispute reported to him by or on behalf of one of the parties. No action is normally taken until any suitable negotiating machinery has already been fully used; even where there is no formal procedure the parties are expected to attempt to reach a settlement by negotiation. Subject to these considerations, the services of the Ministry’s Conciliation Officers are available to the parties.
Under the heading “ Arbitration “ the report states -
Both of the above Acts provide for arbitration by consent of both parties. . . Arbitration awards under the two Acts are not legally binding on the parties but since they are the result of joint application to the Minister, they are almost invariably implemented.
In respect of “ Inquiry and Investigation “ it says -
The Industrial Courts Act, 1919, empowers the Minister to inquire into any trade dispute, whether reported to him or not, and if he thinks fit, to appoint a Court of Inquiry. A Court of Inquiry has no power to enforce a settlement. . .
In 1960, there was a departure from this procedure but not to the extent of bringing it into line with the situation in Australia where every action within the confines of the Commonwealth Conciliation and Arbitration Act is subject to penalties. I. read again from the annual report of the Ministry of Labour and National Service for 1960. This section deals with “ Arbitration “, is the same as the section which I have already quoted, but makes another point and refers to another proposal. It says -
In addition, the Terms and Conditions of Employment Act, 1959, required the Minister to refer to the Industrial Court claims that an employer was not observing the recognised terms or conditions of employment appropriate to the industry in which he was engaged. The employer’s consent was not necessary.
I had the experience in 1959 - no doubt other honorable senators have had the experience too - of seeing a major strike being pursued in the United Kingdom. I was somewhat astounded to see that, in the Old Country, people accepted this situation of settling their disputes on the industrial front. I refer to the motor industry strike. At the same time as there were stoppages of work, the various negotiating bodies went in to settle the dispute, and the Ministry of Labour offered the parties whatever facilities it could make available to them. There were some unusual developments in relation to the trade union movement in the United Kingdom, but nothing which alters the main proposition of the Opposition, namely, that these measures are too often used by employers to do the same sort of thing as the Government and the employers claim the unions are doing. Great penalties are inflicted upon the unions which, like their members, cannot afford to meet the costs and the penalties imposed. They have been used in circumstances where they should never have been used. I have had the experience of being involved in such a case as secretary of a Trades and Labour Council. I am grateful to know it was the only case where a settlement could not be reached properly through the normal processes of arbitration. It was a case involving negotiations with the Electricity Trust of South Australia on the question of bus transport in Port Augusta.
There had been a long established system of providing bus transport for the men, and when it was withdrawn they went on strike. As the result of the failure of the Electricity
Trust to continue negotiations the unions were brought before the Industrial Court and were heavily fined. The unions and the Trades and Labour Council were then instructed to order the men back to work. So we have the situation that the Industrial Court can, in effect, draw up a programme and instruct the trade union movement to carry it out, very often in the face of strong objections from the workers in industry. ] had the very unsatisfactory task of having to instruct a great number of workers to go back to work in a situation where I was satisfied that the instruction was not justified. The Minister in another place made reference to what he claimed to be the very high percentage of time lost in industrial disputes in Australia. He said that over a period of 15 years there had been an average of 2 k hours lost per man in industrial disputes. This is not an extremely high percentage of time lost when one considers the problems that occur in a modern community where one is dealing not just with automations but with men. You are dealing with unions; people with great experience of negotiation, and also some people on the employers’ side who have a lot of sense and try to negotiate reasonable settlements. This is not a great percentage of time lost at a time when industry is suffering from growing pains and when it must meet the problems of introducing new machines and production devices as well as adopting modern methods of management in order to get the best use out of its employees. When you consider the great amount of time lost through industrial accidents the amount lost through disputes is a minor matter.
In the Senate over the years I have tried to get some sort of summary of the incidence of industrial accidents in Australia, but there are no statistics available except those from one State, South Australia. Some attempt ought to be made here to produce such figures so that we could examine the incidence of industrial accidents. Some compilation of the figures should be made, and probably the Bureau of Census and Statistics is working on this. But at least we have a start, with South Australia’s figures, which were obtained as the result of a safety drive. The South Australian Government legislated for improved safety devices and there was a great deal of publicity by the employers, the Government and the unions in a drive to improve industrial safety.
I want now to refer to the figures compiled by the Commonwealth Bureau of Census and Statistics for 1963-64 in relation to industrial accidents. Table 1 of these figures refers to fatal and non-fatal accidents in all industrial groups, and gives the time lost and the amounts of compensation paid. The figures show that in that year for nonfatal accidents 43,705 weeks were lost with a work force of 298,688. This- means that on the basis of a five day week there was a total of 218,525 days lost, or, on the basis of a 5i day week - which is probably the more accurate measure - a total of 240,775 days were lost as a result of- accidents. This is a position we should all endeavour to correct.
When there is an industrial stoppage the occasion is always used to point to some political factor in the stoppage which is quite incidental, and not usual, in order to show that the sanctions should not be removed from the Arbitration Act. When you look at the time lost through disputes in Australia the picture is good compared with that shown by the figures for the United States of America and the United Kingdom. Despite the situation I have pointed to and the fact that in .those countries there are not the overall controls and penalties which apply here, our figures are comparatively low. I want now to read out some figures which I think should be used in this connection. They are taken from various source including Her Majesty’s Stationery Office, and are available from the Parliamentary Library. I quote the figures from 1963 downwards, which show that the average working days lost in 1963 in the United Kingdom on account of industrial disputes were 0.08 per cent., while for the United States of America, the figure was 0.23 per cent, and for Australia 0.18 per cent. In 1962 in the Unted Kingdom the figure was 0.25 per cent., in the United States of America 0.27 per cent., and in Australia 0.16 per cent. In 1961 the figure for the United Kingdom was 0.13 per cent., that for the United States was 0.24 per cent, and the Australian figure was 0.19 per cent. With the concurrence of the Senate I incorporate the complete list of figures in “ Hansard “. They are as follows -
The essential point of difference between us and the Government - and we accept it as the ground upon which we cannot agree - is that we say that this application of penalties, either through the Act or by other means, does not induce industrial peace, but in fact arouses a lot of resentment in the organised labour movement and allows people who want to make political capital out of the bad parts of an act to use these factors for agitation purposes. Both the trade union movement and the Government say that the workers have a legitimate right to organise and improve their standards. Mention has often been made of the waterside workers, both here and in another place. Nobody can tell me that the fining of the Waterside Workers Federation of Australia in a sum of £17,100 in the 1954- 1964 period would lead to the establishment of peace in industry.
There can be a situation where a group of men have determined on a course of action, not necessarily about wages, but perhaps about amenities or transport and where; as a result, the unions have been heavily punished. In the period from 1954 to 1 964 the unions paid a total of £50,255 in fines. We suggest that this is not a situa tion which will help the industrial complex of Australia to proceed without trouble. I want to refer - though not in a very specific sense - to the fact that the waterside workers, for instance, are subjected to penalties in various directions. They are subjected to penalties not only under the Arbitration Act but also under the Stevedoring Industry Act, and the transport workers can also be fined under more than one act. Strong regard should be paid to the representations of the Australian Council of Trade Unions to the Government in an attempt to remove from the Act the penal provisions I have referred to. We say those provisions will do no good and if the Government agrees that reasonable men will act responsibly, all the more power to it, because the men should receive from the Government consideration of their overtures. These are principles which we must support.
Sitting suspended from 5.45 to 8 p.m.
– Mr. President, I ask for leave to make my remarks at a later stage.
Leave granted; debate adjourned.
Bill received from the House of Representatives.
Standing’ Orders suspended.
Bill (on motion by Senator Anderson) read a first time.
– 1 move -
That the Bill be now read a second time.
Recently, while introducing Customs Tariff Proposals relating to acetyl products in another place, the Minister for Housing (Mr. Bury) indicated that the Government had decided, on the recommendation of the Tariff Board, to continue bounty payments on the production of rayon grade cellulose acetate flake for use in the manufacture of cellulose acetate yarn. The period of operation of the Cellulose Acetate Flake Bounty Act .1956-64 is to be extended for a further three years, effective from 19th March 1965 and the Bill now before the Senate is to implement this decision. Cellulose acetate fluke is produced in conjunction with other acetyl products such as acetic acid and cellulose acetate moulding powders, using ethyl alcohol, a by-product of the sugar industry, as a raw material.
The Government considers that local production of acetyl products, taken collectively, is definitely worthy of encouragement. Tariff assistance is considered the best method in the case of all these products except cellulose acetate flake where a bounty is regarded as more appropriate. This is based on the fact that protective duties would lead to increased costs of acetate yarn, which is manufactured from cellulose acetate flake, and could cause some diversion of demand to viscose yarn. The Government has also decided, on the recommendation of the Tariff Board, to reduce the rate of bounty from 7d. per lb. to 6d. per lb., but to increase the annual limit of bounty payable from £90,000 to £112,000. These changes are designed to coincide with the imposition of revised rates of duty, and apply as from 19th March 1965.
The revised rate and limit of bounty have been fixed, bearing in mind current annual demand for the cellulose acetate flake, which approximates 2,000 tons. The rate of 6d. per lb., and a maximum total payment in any- one year of £112,000, are considered necessary to support the ex-factory price for rayon grade cellulose acetate flake of 37. 5d. per lb. which continues to be appropriate having regard to prices overseas.
A provision for delegation of powers by the Minister or the Comptroller-General has been inserted in this Bill. This is the current practice followed with other bounty legislation. The only recipient of this bounty at present is C.S.R. Chemicals Pty. Ltd., of Rhodes, New South Wales. This, company has sustained a substantial level- of investment and employment and has continued its successful efforts to reduce costs and increase productivity. A product balance in keeping with market requirements has been maintained. Further assistance to the industry is considered warranted. As I have pointed out, if this is to be so, it is necessary that the bounty on cellulose acetate flake be continued. I commend the Bill to honorable senators.
Debate (on motion by Senator Benn) adjourned.
Bill received from the House of Representatives.
Standing orders suspended.
Bill (on motion by Senator Henty) read a first time.
– I move -
That the Bill be now read a second time.
The purpose of this Bill is to seek the approval of Parliament to the signature and acceptance by Australia of the protocol extending by one year the International Wheat Agreement, 1962. Parliament in 1962 approved the acceptance by Australia of the International Wheat Agreement which had been drawn up in that year in Geneva. That agreement runs until 31st July, 1965. In normal circumstances, it would have been renegotiated this year so that a new agreement would take effect on 1st August, 1965.
At the present time, however, most of the trading countries of the world are engaged in the Kennedy Round of G.A.T.T. negotiations in Geneva. In these negotiations, the G.A.T.T. Cereals Group has been entrusted with the task of drawing up new world-wide arrangements which would regulate international trade in all major cereals and which, it is expected, would make redundant an international wheat agreement of the present type. In these circumstances, the International Wheat Council recently agreed unanimously that the most practical procedure would be to extend the existing International Wheat Agreement for one year, that is, until July 1966. Before this time runs out, it should be clear whether it will have been possible for the world’s cereals trading countries to reach agreement on new international trading arrangements for wheat and other grains.
As the proposed one year extension of the current International Wheat Agreement is a direct consequence of the negotiations going on as part of the G.A.T.T. Kennedy Round of trade negotiations, it is appropriate that I should take this opportunity of informing honorable- senators - of the objectives of these negotiations insofar as wheat is concerned.
It will be recalled that upon the initiative of the late President Kennedy, comprehensive negotiations were to be conducted among G.A.T.T. countries with the objective of expanding world trade, through the reduction of tariff and other barriers to trade and the creation of acceptable conditions of access to world markets. Significantly, these objectives were to be equally applicable to the agricultural sector of world trade and not only the industrial sector as had been the case in previous G.A.T.T. negotiations. The G.A.T.T. Cereals Group was established to negotiate international arrangements for cereals, including wheat, as part of the total Kennedy Round objectives and negotiations.
Since 1949 there have been a series of International Wheat Agreements, each of which Australia has adhered to. The provisions of these agreements have been debated in the Senate on a number of occasions. I have arranged for copies of the 1962 agreement to be available on the table of the Senate for those honorable senators who may desire to study the text of the agreement. Honorable senators will recall that the main purpose of the agreement is to ensure some degree of stability in the range of prices within which wheat is traded commercially. In this respect the Internationa] Wheat Agreement has served a useful purpose even though the actual range of prices designated within it has not been totally satisfactory from our viewpoint. It has long been recognised, however, that the International Wheat Agreement type arrangement does not adequately cover all the problems encountered in the international wheat trade.
In the first place the International Wheat Agreement does nothing to inhibit the protection afforded to high cost wheat production. Highly protectionist wheat policies pursued by most industrialised countries have led to a shrinking or, at the best, a stagnation of their import requirements for wheat. The Kennedy Round presents an opportunity to negotiate for the containment of high cost production, thereby preventing the erosion of the commercial markets for wheat.
Secondly, the price level at which wheat is traded internationally is far from satisfactory. The so-called “ world price “ for wheat, which exporters of wheat are obliged to accept, bears no sensible relationship to prices being paid for the great bulk of the world’s wheat production. At the present time, for example, the price of Australian wheat landed at German ports is about £25 sterling per ton. But when imported into Germany, this wheat attracts a levy of £25 sterling per ton so that the price paid to German producers of about £50 sterling per ton may be maintained. The same kind of disparity between ‘ the prices realised by exporters and the prices paid to highly protected producers occurs in many industrialised countries.
Over recent years world prices for exported wheat have been determined by the subsidy and dumping practices associated with the level of protection afforded high cost wheat production. In these circumstances, competition is not between producers, or exporters, but between national treasuries. A satisfactory world wheat agreement must ensure a better and more sensible price situation. What is needed is an effective floor price which will assure efficient wheat producers a remunerative return for export wheat.
Another important area of the international wheat situation is the position of manyless developed countries which need to import a great amount of wheat and which will need to import much more in the foreseeable future. Because of their foreign exchange position, such countries are unable to secure their requirements unless wheat is made available to them on concessional terms. The Government takes the view that, whilst the needs of such countries must be recognised and ought to be attended to, the reponsibility should not fall only on those countries which happen to produce wheat. There is a clear case, on the grounds of equity, that the burden of meeting the legitimate needs of these countries should be shared by all countries which have the capacity to contribute. This is another important sector of the international trade in wheat to which the G.A.T.T. negotiations are directed.
Honorable senators will appreciate that an international arrangement which adequately deals with all the issues I have referred to is obviously not a simple matter to negotiate. A satisfactory outcome to the negotiations requires Governments to assume commitments and obligations which impinge on their freedom of action in respect of national policies. Obviously, therefore, the negotiations are bound to be time consuming. Much groundwork has been done, however, and in preparation for the resumption of the G.A.T.T. Cereals Group in mid-May or thereabouts a strong delegation led by the permanent head of the Department of Trade and Industry has recently taken part in discussions in Washington with representatives of other wheat exporting countries. It may well be that as the negotiations gather momentum, negotiations at ministerial level will be necessary.
Meanwhile, the Bill before the Senate, which provides for the extension of the current International Wheat Agreement for one year, is a straight-forward measure which will no doubt command the support of all honorable senators. Australian participation in the successive International Wheat Agreements has consistently had the support of the Australian Wheatgrowers Federation. I commend the Bill to the Senate.
Debate (on motion by SenatorKennelly) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator McKellar) read a first time.
– I move -
That the Bill be now read a second time.
The Australian poultry industry, through its principal producer body, the Council of Egg Marketing Authorities of Australia, has drawn the attention of the Government to the critical economic situation that has developed in the industry, and has submitted proposals to the Government which will introduce a measure of stability into the industry - a stability which so far this industry has been unable to obtain under State government legislation. In order that honorable senators will fully understand the situation, which is rather complex, I propose to touch briefly on the egg marketing system practised in Australia, and then to explain the problems that have arisen and the action that the Commonwealth Government proposes to take to rectify the situation.
The marketing of the eggs produced in Australia is primarily the responsibility of the State egg marketing boards which are constituted for this purpose under State legislation. In an endeavour to assist the producers with the disposal of that portion of their production which is surplus to local demand, the Commonwealth Government has established the Australian Egg Board to market export surpluses. All State egg boards are enabled to use the facilities of the Australian Egg Board, to avoid export competition amongst themselves, if they so desire. The net prices which the boards pay producers for their eggs are normally comprised of two components. These are the relatively high returns from local sales and low returns from export sales. All producers who market through their State egg boards incur deductions, commonly called equalisation levies, from their gross payments to meet the losses experienced from sales by the boards in export markets. In recent years export prices have been very low
Indeed and in some years production surpluses have been high. A high surplus means high equalisation levies and a lowering of the net returns to producers.
When equalisation levies are high, many producers avoid paying their levies by illegally selling their eggs intrastate or legally selling them interstate under the protection of section 92 of the Constitution. This means that any losses from export sales have to be met by those producers who market through their boards. Obviously, the greater the number of producers Who avoid paying the levy the higher the unit rate of levy has to be on the remainder. The effect of this higher levy is to encourage even greater numbers to trade outside their boards and this in turn necessitates a further rise in the levy. The chairman of one of the State egg boards recently stated that his board had lost one-third of its local market to interstate operators.
The end result of this type of situation will be chaos in the egg marketing system and the State egg boards themselves will be forced to trade interstate in competition with their own producers if they are to survive. No board or individual will be prepared to sell on the export market, and cut throat competition on the Australian market will force prices down until eventually they are at approximately the same level as the export prices. The industry as we know it today could not possibly survive under these conditions, and only some of the very large operators would be able to carry on in the hope that their losses could be recouped at a later date when there was a general famine in eggs. The egg industry would be a speculator industry with recurring gluts and famines and consequent violent fluctuations in prices to consumers. The quality of eggs would also suffer.
It was with these facts in mind that the Council of Egg Marketing Authorities of Australia, known as C.E.M.A., approached the Commonwealth Government with its stabilisation proposals, which are designed to ensure that all producers bear their share of the losses experienced in the disposal of the export surplus which they help to create. The purpose of this Bill is to impose a levy in respect of hens which are kept for commercial purposes and which have reached six months of age. This is the means sought by the industry as the most practical way of achieving an equal contribution by all producers towards the losses mentioned above, and it is the principal feature of the stabilisation proposals submitted by C.E.M.A.
Other legislation is necessary to implement these proposals. This other legislation concerns the collection and distribution of the levy, and I shall deal with these aspects in two other bills which I propose to introduce in conjunction with this Bill. However, I would like to emphasise now that all the proceeds of the levy will be repaid to the industry through the State egg boards. The boards will use the proceeds to meet trading losses on exports in place of the proceeds they had previously obtained from their equalisation levies.
The levy proposed is to be applied at the end of each fortnight at a rate to be laid down by regulations, after recommendations in this respect by C.E.M.A. have been considered. The rate may be no higher than that recommended by C.E.M.A. The President of C.E.M.A. has foreshadowed that the rate it will recommend to operate from 1st July 1965 will be 3£d. per fortnight, which on an annual basis is. approximately 7s. per hen. There is provision for a maximum levy of 10s. in any financial year. The levy is not to be applied to the first 20 hens. This number of hens is chosen as it is considered adequate to provide sufficient eggs to meet the need for a producer and his family. The levy is payable by the owner of the hen and there is provision for exemption from the levy of prescribed classes of hens, with specific exemption for owners of broiler-type breeding hens in respect of the national proportion of their broiler type hens whose production is used solely for hatching broiler type chickens.
As the introduction of this Bill implies, the Commonwealth Government has endorsed the C.E.M.A. stabilisation plan; however before doing so, State Governments were canvassed to ascertain if they would be prepared to implement a basically similar scheme. The States, after examining this proposition by the Commonwealth, declined to undertake the implementation of such a scheme on the grounds that a levy similar to that proposed held legal problems for the States, and in any event, the industry needed stabilising on a Commonwealth rather than a State basis. After endorsing the C.E.M.A. scheme, the Commonwealth
Government agreed to prepare draft legislation for the State Governments to examine and the Commonwealth also gave an undertaking that if the States supported the draft legislation, it would be placed before the Commonwealth Parliament for consideration at the earliest opportunity. All State Governments have now indicated their support for this legislation.
The industry itself has shown its support for the scheme which was unanimously endorsed by the Council of Egg Marketing Authorities. The Council is a body comprised of all the members of all the State Egg Marketing Boards and a substantial majority of its membership consists of producers elected by their fellow producers. The Bill, together with the other two Bills 1 have mentioned previously, gives an important Australian industry the opportunity to stabilise itself. It places the affairs of the industry virtually in its own hands but does not involve the Commonwealth in any residual financial liability. It is a measure devised by the industry for the industry, and, if passed, its successful continuation rests with the industry. I commend the Bill.
Debate (on motion by Senator 0’Byrne adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator McKellar) read a first time.
[8.22]. - I move -
That the Bill be now read a second time.
The purpose of this Bill is to provide the machinery for the collection of the levy imposed under the Poultry Industry Levy Bill. The Bill makes provision for the Commonwealth Government to make arrangements with the State Governments for the State Egg Marketing Boards to collect the levy on behalf of the Commonwealth and for the money collected to be paid to the Commonwealth. At present the State Egg Boards impose equalisation levies and either collect them from the producers whose eggs do not pass through the Boards’ floors, or deduct them from the amounts which the Board owes the producers whose eggs do pass through the Boards’ floors.
Under the new stabilisation proposals which this legislation helps to implement, the State Egg Boards will cease collecting equalisation levies, and on behalf of the Commonwealth will collect instead the levies imposed under the Poultry Industry Levy Bill. As the State Boards will need to continue to make charges on producers for administration purposes, producers can have both State and Commonwealth charges deducted by the State Egg Boards, or can pay these charges to the State Boards, instead of making separate payments to State and Commonwealth authorities. The methods provided for in this Bill have been agreed to by the State Governments and endorsed by producers as the most convenient means of payment of the proposed levy. I commend the Bill.
Debate (on motion by Senator O’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator McKellar) read a first time.
– I move -
That the Bill be now read a second time.
This Bill provides for the creation of a Poultry Industry Trust Fund and for payment into this Fund of amounts equal to the amounts collected under the Poultry Industry Levy Collection Bill. Payments out of the Fund are to be made to the State Governments for financial assistance to the poultry industry. These payments for financial assistance to the poultry industry are designed to meet the trading losses experienced by th» State Egg Boards in the disposal of surplus eggs. The Minister for Primary Industry (Mr. Adermann) is to authorise the amounts to be paid to the. States, after taking into account any recommendations of the Council of Egg Marketing Authorities of Australia.
The Council is a predominantly producer body comprised of all the members of all the State Egg Boards, and is the body best fitted to make recommendations in respect of the trading losses experienced by the State Egg Boards. As the State Egg Boards will cease collecting equalisation levies when this legislation is implemented, they will need finance to enable them to continue paying producers for their eggs. To meet this requirement, this Bill provides for arrangements to be made with the Reserve Bank of Australia to loan money when necessary to the State Egg Boards under Commonwealth Government guarantee. If the Commonwealth Government is ever called on to meet the guarantee, money standing to the credit of the Poultry Industry Trust Fund shall be used to meet the guarantee.
There is also provision in the Bill for an annual report on the operation of the Act and for the making of regulations. The Bill is supported by the State Governments and by the poultry industry, and, as part of the legislation aimed at stabilising the Australian poultry industry, will fulfil a need in the industry which has been evident for many years. I commend the Bill.
Debate (on motion by Senator O’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Henty) read a first time.
– I move -
That the Bill be now read a second time.
This Bill has for its purpose the obtaining of the approval of Parliament to an agreement between the Commonwealth and Western Australia for the provision of financial assistance to the State to accelerate extensions to the comprehensive water supply scheme in the south-west of the
State. The Commonwealth Government’s decision in this matter was announced in the last Budget speech by the Treasurer (Mr. Harold Holt) when he said that the Commonwealth would provide advances to the State, up to a maximum of £5,250,000, on a £1 for £1 basis with the State’s expenditure on the scheme. He also indicated that the Commonwealth’s contributions would not begin until the financial year 1965-66.
The comprehensive water scheme was originally planned, in 1946, to extend over 12 million acres, but was subsequently restricted to 4 million acres. The Commonwealth Government of the day agreed to assist the modified scheme, and for this purpose the sum of £5 million was provided of a £1 for £1 basis with the State under the Western Australia Grant (Water Supply) Act 1948-1957. The modified scheme was completed in 1961-62.
The Government of Western Australia sought further financial assistance in 1963 to accelerate desirable extensions to the Scheme, which the State had been financing from its own resources since termination of the Commonwealth assistance. The proposed extensions consist of additional pipelines and pumping equipment to supply water to towns and farms in two main areas amounting to 3.7 million acres in the southwest. One area consists of 2.3 million acres between Dalwallinu and Quairading and will be fed from the Mundaring Weir. The other, which will draw its water from the Wellington Dam, consists of 1.4 million acres extending for about forty miles east of Narrogin. In addition to these two areas, there are several small areas in the north which will also be supplied. The purpose of the Scheme is to provide water for stock and domestic purposes only and not f0 irrigation.
The area covered by the proposed extensions of the Scheme lies wholly within the sheep raising and cereal growing districts of the State, the principal commodities produced being wool and cereal grains. It was represented to the Commonwealth that this area of the State has considerable potential for increased production, by virtue of its natural fertility. Unfortunately, however, attainment of (his potential has been restricted by the inadequate natural water supply for stock. This stems from several factors such as the lightness of the summer rainfall, the extreme variability of annual rainfall, the paucity of underground water supplies and the difficulties in ensuring adequate surface water storage. The State claimed that the water available on most farms was only just sufficient for the sheep already being carried and that reticulation of water to the farms would lead to a substantial increase in stocking rates and would encourage substantial pasture improvement.
The proposed extensions were the subject of an economic appraisal by the Bureau of Agricultural Economics. The Bureau’s survey showed that, on certain reasonable assumptions about such things as the response of farmers to the reticulated water, the areas sown to pasture, the likely increase in carrying capacity and the levels of prices and costs, the extensions to the Scheme would be fully economic and would result in significant additional production of an export-earning nature.
Against this background the Government decided to agree to the State’s request for Commonwealth financial assistance to enable the project to be completed in a shorter period than the State would otherwise have found possible. The terms on which the assistance is to be provided are set out in the Agreement. The assistance will be on an interest-bearing loan basis, and will be payable to the State, subject to an upper limit of £5,250,000, to the extent of one-half of expenditure by the State on the project during the period of eight years commencing on 1st July next. Payments so made will be repaid by the State over a period of fifteen years commencing ten years after the payments are made by the Commonwealth. No repayments by the State will thus be required until after completion of the project.
The areas to be supplied with water are referred to in the First Schedule to the Agreement and are fully shown in the map attached to the document described in the Schedule. The particular works in respect of which financial assistance is to be provided are listed in the Second Schedule, and are also fully described in the same document. There is provision in the Agreement for variation of the works to the extent that the State may propose and the Commonwealth approves. The Agreement also contains the usual provisions included in other comparable agreements relating to such matters as the efficient execution of the works, the payment to the State of working advances, the supply of information by the State and the auditing of expenditure.
The Government is satisfied that the measure before the Senate will make a significant contribution to the development of an important pastoral and grain-growing region of Western Australia and will lead to a substantial increase in export earnings. 1 have pleasure in commending the Bill to the Senate.
Debate (on motion by Senator Cant) adjourned.
Debate resumed (vide page 823).
.- In addressing myself to the Bill, I can only think that the author of it is a willo’thewisp. It is a Bill that is not only futile; it is silly, it is mischievous and it is misconceived. I shall offer my comments with regard to the actual content of the Bill after taking notice of the wide range covered by Opposition speakers in the debate. The discussion has developed on the submission of the Leader of the Opposition (Senator McKenna) that there is a right to strike. He certainly concedes that this right is not unlimited, but he asserts it in the Australian context, in which the right to strike should not be restrained in any way by the conciliation and arbitration tribunals that we have set up and maintained for half a century. On the other hand, I should have thought that it was Government policy, which all bills introduced by this Government would support, that the right of employer or employee organisations or members of those organisations to strike should be restrained and qualified by our tribunals, arbitral or judicial, according to their judgment. It is an essential part of our Australian way of life that we have implicit faith in the impartiality of those tribunals whose special interest is in the industrial field.
It is to me an indication of the backward thinking of the Australian Labour Party that it advances this argument in relation to such a Bill as this. Let me make just one reference to the history of these matters. We do well to remind ourselves that the trade union movement is a great movement which could, under proper leadership, confer immense benefit upon the community and which, even under the present handicapped leadership which it suffers, does confer great benefits on this community. Despite the Communist component of the Australian Council of Trade Unions. I pay my tribute to the generally well balanced viewpoint that that body exerts in the general industrial field in Australia. But, “ Mr. President, when we hear an argument advanced so vigorously by the Leader of the Opposition, it is well to remind ourselves that the trade unions gained strong recognition in the industrial field about 1900, when the Taff Vale case reminded them that under the law, if they pulled on a coal strike, as they did in that instance, causing about £100,000 damage to the coal company, the amount of the damage was recoverable from the union.
– Men were sentenced to imprisonment for the term of their natural lives for forming a union originally, so it was a long way from the Taff Vale case. Men had to strike to get their rights and they must never give up that right.
– I do not gainsay what Senator O’Byrne says, but that is the previous century’s history. Goodness gracious me, I do not yield to the honorable senator in proudly paying this tribute, that they earned the recognition of which I am speaking. I am just mentioning the fact, if the honorable senator will permit me to present my theme, which to me is of some interest and which, I hope, is not of dis* interest to the Senate. The Taff Vale decision established, as I have said, the liability of the trade unions for any damage caused by illegal action in prosecuting an industrial strike. The decision led to an enormous political campaign in England between 1900 and 1906. Tt culminated in a decision of the Liberal Government of the day, which made a bargain in order to secure the support of about 40 of the original Labour members who had entered the House of Commons up to that time. The Liberal Government passed the Trades Disputes Act which in England - the cradle of the common law - gave complete immunity to trade unions from any legal liability for illegal action in the course of prosecuting an industrial dispute.
I mention those things because it always makes my blood run a little more freely to remember what we have achieved. We in this land of convict settlement established our system of law, as Senator Murphy told us this afternoon, on the original tribunal of justice - a military court. A century later England was releasing the trade unions from any liability for any illegal action in the course of industrial disputes. But two years before England took that step, Alfred Deakin had brought into this Parliament the original Conciliation and Arbitration Bill, which brought the organisations of employers and employees in this country under a system of industrial law to which all sections of the community and all sections of political thought in this country have from that time onwards paid tribute. The system had to grow with all its complexities. It has developed an extreme complexity, and that is a disadvantage. But under the supervision by tribunals of the industrial law we have developed an economy which has narrower gaps between the rich and the poor than exist in any other economy in the world. No responsible leader of the trade union movement in this country would deny that members of that movement have, by means of this system, gained enormous advantages.
So, while England was releasing its trade union movement from the providence of law, Australia submitted its trade union movement to supervision by industrial tribunals under the law, to the great advantage of our system. Let us reflect for a moment on the sad position of the shipping industry and the aircraft industry in Great Britain. Those industries have been eroded and corroded by the inter-trade union disputes that have prevented Great Britain competing with Germany and Japan in the shipping field and with America in the aviation field. But in Australia, on the contrary, the people have created an economy that is the envy of all. There is unlimited prosperity in the country. We have ample prospects of building up industry with some assistance from our conciliation and arbitration system.
Having said that, let me now work myself into a proper and reasoned consideration of the Bill. Our Constitution limits the power of this Parliament to conciliation and arbitration in industry in the Federal sphere. One of the great defects in this regard is that no proper consideration has been given to the recommendation of the Constitutional Review Committee that that power should be greatly extended. We recently witnessed a strike at Mount Isa which, due to our Federal deficiency in this respect, was allowed to continue at a time when copper was a pregnant item in our economy. The country lost between £30 million and £40 million because of the strike. The High Court and the Privy Council demonstrated in 1955 that the limited power that we had under the Act was a power to create arbitration tribunals. Having regard to the judicature chapter of the Constitution, if we wished to enforce the law within that realm we had to have separate judicial tribunals. The Government of the day reasoned that it had six or seven judges on the old industrial court. It had to have one tribunal that was judicial and one that was arbitral. It decided to divide the number of judges into two groups. It decided that it would call the first group of judges the Industrial Court and the second group the Conciliation and Arbitration Commission. The arbitral functions would belong to the Commission and the enforcement functions would belong to the judicial tribunal called the Industrial Court. So you have in section 109 of the Act a jurisdiction committed to the enforcement tribunal - the Industrial Court - composed ofjudges to administer the law.
The section, so far as it is relevant, provides two things. It empowers the Court, first, to order compliance with an award and, secondly, to issue an injunction against committing or continuing a breach of the award. First, the Court has jurisdiction to issue an order, “ Positively you shall comply with the award.” That is a mandatory order. Secondly, the Court has power to say, “You shall not commit or continue a breach of the award.” It may be an overstatement of the position to say that the first power is Tweedledum and the second is Tweedledee. If there is a breach of the award, under the first power the Court says, “ Comply with that provision of the award “, and under the second power it says, “ Cease to continue the breach of that award.” Each power, if enforced achieves compliance.
We are toldthat a provision embodied in the Bill hearkens to the resentment that the trade union movement feels over the jurisdiction possessed by the Industrial Court. The Bill provides for a cooling of period, if you please. I have read of legislation in the United States of America called I think, the Taft-Hartley Act, which provides in certain cases that the right to strike shall be suspended if an order is issued that you shall not enter upon your strike for 28 days or 14 days, as the case may be, after a dispute occurs. Everybody knows the substantial provision in the American legislation to which I refer. Prima facie it appeals to those who think that workmen, as well as employers, enjoy prosperity from continuity in industry and the least possible dislocation of industry consistent with equitable treatment of workmen. When we speak about that situation, the precept to postpone a strike is addressed to the participants in the strike. It is addressed to either the employer, in the case of a lockout, or to the employee organisation in the case of a strike. In this Bill we do not have the precept to postpone a strike or lockout addressed to the participants in the dispute. The Bill precludes the Commonwealth Industrial Court from commencing to hear an application to enjoin the parties not to continue with the strike.
In this Bill we have the machinery to protect the inception of the dispute. It states that the Industrial Court shall not commence to hear an application in respect of a breach of the award unless a commissioner or a presidential member has been notified that the breach or non-observance of the award is likely to occur. Restraint and patience are not to be indulged in. Unless the parties are prompt in notifying the commissioner, or a presidential member, the parties are not entitled to receive an order for injunction from the Court. Clause 6, which seeks to insert the new section 109a provides, amongst other things, that the Court shall not commence the hearing of an application for an order unless the Court is satisfied that -
subject to the next succeeding sub-section, that a period of fourteen days or such longer period as a Commissioner or a presidential member .of the Commission has determined, has elapsed since the notification was given.
A period of 14 days has to elapse - it could bc longer - during which a conciliation commissioner may entertain the hope that he can achieve a result by conciliation. The Mount lsa dispute continued for six months on that basis.
In 1956 the Industrial Court was set up for the specific purpose of enforcing the provisions of awards according to its judgment and ils ideas of industrial justice and equity. But during the time lapse this tribunal, by virtue of the provisions of this Bill, will be prevented from commencing lo hear an application. This is what is called a cooling off period. To me it appears to he a provision which ties the hands of the Industrial Court behind its back while the parlies get hotter and hotter.
If 1 need any certificate for the inanity of such a measure it is provided by the amendment that was introduced as a last thought in the Committee stage in another place. I invite the Senate to examine the proposed new section 109a (3.1, which embodies the amendment introduced in another place. I think that the proposed subsection (3.), wilh all the paraphernalia, shows the stupidity of the Bill. It provides that where an application for an order for compliance with an award is made at the same time as an application for an injunction to restrain the committing of a breach or the continuance of breach, the preceding provisions of the proposed new section do not apply. Having provided that the Industrial Court shall have no jurisdiction to commence hearing an application for ari injunction to restrain the continuance of a breach during 14 days or such longer period as an industrial commissioner might determine, the provision then says to forget all about it if the applicant for the injunction has at the same time lodged with the Court an application for a mandatory order. To paraphrase “ Alice “, it seems to me that this is a case when little oars with little hands and little skill are plied. I shall leave the Bil! on that basis for the consideration of the Senate.
I only want to add one further comment and that is in regard to the odious question of vertiginous costs. In 1956 we were simple enough to say to the Industrial Court: “ You shall have jurisdiction, in relation to any matters before you, to order such costs as in your judgment are just “. I refer to section 116 of the Conciliation and Arbitration Act. It states -
The Court may make such orders as it thinks just as to the costs and expenses (including the expenses of witnesses) of proceedings before the Court, including proceedings dismissed for want of jurisdiction.
Do not let it be thought that I do not have immeasurable respect for the performance of the Court, having regard to the respect that is due in a House of Parliament to any judicial court in the land. I shall leave it at that. On another occasion, when the administration of justice is before us with reality, I shall point out how some tribunals are overloaded and lagging in their work because they have five times too much work to do, whereas this Court scarcely gets enough work to occupy one-fifth of its time. But that does not entitle anybody to impute to it a want of justice when it comes to the question of dealing with costs. Oh, the irony of these things. I am quite incapable of summoning to my soul any feeling of resentment, malice or prejudice over these matters. My patience has enabled me to study them objectively over 15 years with full awareness of the draftsmanship that is available to our Ministers. I want to draw attention to clause 8 of the Bill and the inoffensive little way in which the whole provision is subordinated to government decision as announced by these words -
Section 116 of the Principal Act is amended by omitting the word “ the “ and inserting in its stead the words “ subject to the regulations, the”. . . .
The regulations are to enable the Government of the day to prescribe the measure of costs as it thinks fit, subject to that prescription by regulation. The Court is entitled to make such order as to costs as it thinks just. I mention that matter for two purposes. I submit that honorable senators will not find a precedent where such an affront has been offered to any court of justice, which is always given the proper jurisdiction to award, according to its discretion and judgment, such costs as are just.
Mr. President, the judges of the Court themselves make rules which are submitted to Parliament for disallowance if need be.
They prescribe the scale of costs. That is not the position here. Nor is the position here that which is stated in the second reading speech of the Minister, that the law we pass tonight is going to ensure that in applications under section 109 of the Conciliation and Arbitration Act before the Commonwealth Industrial Court, the costs of junior counsel only shall be allowed unless the court certifies that the case was proper for the employment of senior counsel. That is to be dealt with in the regulations. But it is not written into the Bill, as one might have gathered from statements that have been made with regard to this matter, although the second reading speech clearly sets it out.
It is showing less than respect for the intelligence of this chamber to submit to honorable senators the Bill either in its original form or amended form. I submit that the provisions insofar as they restrict the jurisdiction of the Industrial Court in relation to its proper function, which is the enforcement of awards, the issue of an award, the compelling of compliance with an award or the issue of an injunction to prevent parties from continuing to breach an award. That is the Court’s proper function. To handicap the Court in the way in which this Bill originally intended, ever, though that handicap is made completely illusory by the amendment, is not appropriate in legislation that governs a tribunal that is expected to do industrial justice in this sphere.
– Senator Wright began his address by referring to the backward thinking of the Australian Labour Party when it asserted the right to strike. The trade union movement will not surrender the right to strike or the right to bargain for something better than the tribunals provide. I think it would have been more appropriate if Senator Wright had referred to the Government’s action in continuing to impose penalties that have been ineffective over a period of 60 years, while still thinking in the dim days of the turn of the century. Summing up what Senator Wright had to say, honorable senators will see that it is a plea for a continuance of the sanctions despite the fact that they have been completely ineffective. The honorable senator went on to say that the trade union movement had gained enormous advantage under the industrial law. I think it is without question that some advantage has flowed to the trade union movement since the enactment of the law, because the law of the jungle applied prior to that.
I think it is worth mentioning that the enormous advantages that are referred to would not have been gained without the supplementary right to strike. This is a provision that the industrial workers have had to use to bring pressure upon the employers to accede to their just demands. Whilst there have been advantages gained from the industrial law, there have also been large advantages gained from the right to strike. Senator Wright went on to be critical of the Bill as it reduces the authority of the Commonwealth Conciliation and Arbitration Commission to impose the provisions of section 119 and section 111 on an application. The honorable senator mentioned that the Court’s hands were tied in preventing the continuance of a breach of an award. This interpretation is evidence that he has completely misread the Bill. If a breach of an award has been committed, the provisions of proposed new section I 09a do not operate. The provisions operate only if the threat of stoppage is made.
I am not satisfied that this Bill will perform the act that the Minister for Labour and National Service (Mr. McMahon) is of the opinion it will perform. But this Bill arises from some discussions between the Minister, the Australian Council of Trade Unions and employers’ organisations. The Bill was foreshadowed last November. I think it is interesting to note a couple of passages in a statement presented by the Minister for Labour and National Service to another place on that occasion to show that he did not understand the legislation with which he was dealing at the time. At page 2789 of “Hansard” of 11th November 1964, the statement of the Minister is reported as follows -
This is particularly so in a community where there is highly developed machinery for the determination of wages and conditions of employment and where the unions use that system to secure the maximum benefits for their members.
The reason I say that the Minister does not understand the legislation is that it is well known in Australian industrial regulation that the prescriptions of the courts when dealing with these matters do not at any time provide the maximum benefits for members. The awards, agreements and orders that flow from the Commission prescribe the minimum rates of pay and the conditions under which workers shall be employed. The Minister, having arrived at this conclusion, misdirected himself in respect of the whole of the rest of his arguments regarding the legislation that is brought down from time to time. I believe the result of this is that the Minister has not brought before the Senate anything that will be of great assistance to either the Australian Council of Trade Unions or the employer organisations. I hope to be able, as I proceed, to show that this will be the case.
The history of the arbitration system shows that it is the Commonwealth Conciliation and Arbitration Commission which prescribes minimum rates of pay. At no time was it intended that the arbitration system should impose repression upon the working people. It imposed on employers responsibility to pay minimum rates of pay and left the field wide open for workers to negotiate for something over and above the minimums prescribed by awards or agreements. Of course this immediately brings in the right of a union to use its industrial strength to gain the advantages that it thinks its members are entitled to. In his statement on 11th November 1964 the Minister for Labour and National Service (Mr. McMahon) said -
The Government therefore proposes to introduce, in the next session, legislation which will provide, in clearly defined cases, where there is a threatened breach of an award, a 14 days cooling-off period before the sanctions provisions can be used.
Later in his speech the Minister said -
I mentioned a moment ago that our proposals concerned threatened breaches. There will be no change in the law when advantage is not taken of our legislation and a union resorts to strike action to force concessions.
I think that if Senator Wright had read that passage before he spoke he would have understood a little more of what the Bill purports to do. The “Year Book”, No. 50 of 1964, sets out at page 502 the causes of industrial disputes for the years 1959 to 1963. In 1959 wages, hours and leave caused 105 disputes. In 1960 the figure was 213, in 1961, 123, in 1962, 290 and in 1963, 279. Physical working conditions and managerial policy caused dis putes numbering 556, out of a total of 869 in 1959; in 1960, 648 out of a total of 1,145; in 1961, 525 out of 815; in 1962, 707 out of 1,183 and in 1963, 748 out of a total of 1,250. These are the disputes that worry the Australian Council of Trade Unions and they are the spontaneous disputes that occur on the job. They are rattier short in duration but, nevertheless, they tend to disrupt industry. They are not, generally, disputes authorised by the registered organisations concerned. These are the disputes that the legislation proposed by the Minister will do nothing to cure, because there would be no time in which to notify the court of the impending dispute and there would be no 14 days period during which the dispute could be considered. Most of these disputes are caused by employers refusing to meet workers on the job and discuss their industrial differences. A dispute builds up until the workers decide that they will stop work in support of their demands. These are not the sorts of disputes that will be cured by the legislation. The type of dispute that has a possibility of being cured by the legislation is what could be called - if 1 may be permitted to use term - the legitimate strike; that is, the strike called by a union after due consideration of its claims and of the attitude of the employers towards its claims, and after having held a meeting of its members and decided that if its demands are not met industrial action will be taken in support of the claims.
Unions enter these disputes with a full knowledge of the provisions of the Act and of the sanctions that may be applied to them and in these circumstances the calling of a strike is quite a responsible act, although some people would refer to it as being irresponsible. It is quite a responsible act because the union acts with a full knowledge of the consequences. In these circumstances it is possible to apply a 14 days cooling off period and the legislation may have some opportunity to work. Whilst the legislation provides that the 14 days cooling off period may be extended, it also provides that if it is shown that the dispute will come to a head and that strike action will be taken within 10 days of the notification of the court, the cooling off period does not operate at all. So the period is to be not less than 14 days and it can be more than 14 days. I feel that this will defeat the object that the Minister set out to achieve.
We ask, in our amendment, for urgent legislation to repeal the injunction and contempt provisions of the Act in relation to awards. I think this is an advanced step for a legislature of this kind to take, because it has been amply - shown throughout Australia - which commenced this experiment in arbitration and is continuing it - that the penalties weapon is not the cure for the industrial actions that are taken by unions in support of their demands. I venture to suggest that no repressive legislation can be devised that will prevent workers from insisting upon their just demands. All sorts of things have been tried up to date - even up to jailing the workers’ representatives - but none of them has been successful. It is time that the Government took a broader view of this issue and removed the provisions in this legislation to which we object. In fact, this was done in 1930 but subsequent action by Conservative governments has put them back into the legislation or, if not into the legislation, then into the awards by prescription.
We know that when a court makes an award that award may run for a very long time. The waterside worders award prior to the one under which the watersiders operate now ran for almost 36 years. That award was amended continually. It contained provisions which had been in the original award. Penal provisions can be written into awards and, while the court is not allowed to prescribe an award extending beyond a period of five years, by virtue of the Act the award can continue indefinitely and therefore the penal provisions contained in it can also continue indefinitely, despite any action that the unions might take.
I think there would be more industrial peace if the Government adopted a more enlightened attitude towards the problems of the workers and really got down to prescribing some conciliation measures which would allow the parties to get together to settle their differences. Simply to provide for a cooling off period of 14 days and expect negotiations to settle a dispute within that period is not good enough. We know from practical experience that negotiations go on for months and sometimes years before they are finally settled. This is why interim awards are made while disputes continue. Although the 14 day period can be extended, it is not a sufficiently lengthy period in which to settle major industrial disputes by negotiation.
The legislation does not provide any machinery for conciliation over and above that which the present Act contains. If the Minister has any faith in the legislation that he has brought before the chamber and if he believes that it will be effective and permit more negotiation to settle industrial differences, there will have to be a wider field of negotiation and more conciliation commissioners, or mediators - call them what you wish - will have to be appointed to deal with disputes. That is the only way in which this legislation will be at all effective. Over all, I cannot see that it will have any industrial benefit and reduce the degree of industrial unrest which exists at the present time.
Quite recently the Opposition introduced an urgency motion relating to prices control. Since I have been in this chamber I have heard honorable senators on the Government side cry us down on many occasions for wanting to impose controls - for wanting to impose price fixing in this, country. Senator Wirght was pretty right when he said that both sides of the chamber and all sections of the community supported the system of industrial arbitration. Of course, the Conservative senators who sit opposite support price fixing when it concerns the price of labour but they do not support price fixing when it concerns the price of something else. So long as the proposal is to fix the price of labour it is supported. They go to the extent of supporting a minimum price, not a maximum price.
Any one who had knowledge of the price fixing legislation which was administered by the Commonwealth Government during and just after the war knew that the prices fixed were maximum prices and that there was no ambit for anyone to bargain above the prices which were fixed. But the prices which are fixed by the industrial tribunals are the minimum prices, and this leaves an ambit for bargaining outside the tribunals. You cannot have it both ways. If. you are not prepared to agree that price fixing should apply generally you cannot, support price fixing on a minimum rate basis in the field of labour. This is another, matter that the Government has to consider.
The Australian Labour Party and the trade union movement are not the only people to assert that the workers have the right to strike and that this right is inherent in the industrial system. In 1917 Mr. Justice Isaacs, as he then was, had this to say -
If a party while bound to arbitrate attempts to decide the matter for himself, it is an inconsistent act, and is a breach of his obligation which binds him to abide by the decision of the disinterested third party, lt substitutes “ might for right “ and insists on submission irrespective of justice. 1 think all honorable senators will agree that Mr. Justice Isaacs was pretty well acquainted wilh the industrial laws of Australia, particularly within the jurisdiction in which we are interested. In 19.19 Mr. Justice Higgins, another noted jurist, said -
The Act gives power to prescribe a minimum rale, and the object of that power would be defeated if a man who thinks that his services are worth more than the minimum rate were not free to hold out for a higher rate.
In 1926 Mr. Justice Higgins expanded that statement in this way -
I wim! now to guard against the impression that compulsory arbitration means wage slavery. The system does not involve that the employee is compelled by law to take work under the conditions which the Court fixes. The Award does not compel an employer to give work to any man; nor does it compel any employee to take work offered lo him. . . Any man who thinks that he is not being offered as much as he is entitled to, or in proper conditions, is as free as ever he was to refuse the employment offered; he is as free as ever he was to sell his time and labour for the highest price he can get. The fixing of a minimum rate is a restraint on the employer not the employee.
Although both Justices were well versed in the field of arbitration, it might be said that Mr. Justice Higgins was the father of the system under which we operate at the present time. But he was never prepared to say that the worker did not have the right to strike. Without making any threats, I assure the Senate that the trade union movement as I know it will not surrender that right very freely. 1 believe that the Minister for Labour and National Service (Mr. McMahon) attempted in his second reading speech to mislead the Parliament when he quoted certain sets of figures to show that the sanctions sections of the Act had not been used to any excessive extent. It will be recalled that the trade union movement has contended over the years that the employers make capricious use of the penal provisions of the legislation. The Minister said in his speech -
The following sets of figures covering the last IS years illustrate the extent to which the sanctions provisions have been used: The number of strikes per annum has averaged 1,248 and the number of applications under section 109, and its predecessor section 29, have averaged 26.
If one were to stop there, one would believe that in relation to 1,248 stoppages there had been only 26 applications and would come to the conclusion that the employers had been acting responsibly and had not been making capticious use of the penal provisions. But the Minister went on to say -
The figures relating to sanctions are, of course, confined to proceedings under our Act -
That is the Commonwealth Act -
To build up the number of stoppages and the amount of time that had been lost the Minister searched all over Australia to get as high a figure as he possibly could, but when it came to applications under the penal provisions he did not bother to look at the number of applications that had been made in State jurisdictions. He referred only to actions that had been taken in the Commonwealth Court, they being 26 in number.
– ‘But is not the Court the judge of the justice of the application? It does not automatically grant every application.
– I did not say that it did.
– But the honorable senator is implying that just because applications have been made the employers are acting capriciously. The Court decides whether the application shall be granted.
– That is true. I cannot argue with the honorable senator on that; but I say that when a dispute extends over a week and an employer makes an application under the penal provisions in respect of every day of the week he is being capricious. In such a case there is only one offence; there is only one strike. But the legislation has continuing application. That sort of thing has been done on several occasions. Quite recently the Amalgamated Engineering Union was fined £2,000. On top of such penalties costs are always awarded.
Senator Wright dealt with the subject of costs. T agree with him when he says that costs should not be fixed by regulation but that this Parliament should determine how they are to be awarded. If the Minister wants to have the method of determining costs altered., then this Parliament should review it. Nevertheless, it is extending a measure of justice to the trade union movement to say that costs should be restricted. Costs are not to be restricted to costs of junior counsel, because the Minister has said that in appropriate cases the court will be able to award costs for senior counsel. However, in cases where only junior counsel should appear but senior counsel is engaged the Court will award only costs for junior counsel. At least that is a step in the right direction. One of my colleagues will develop the argument that costs should not be awarded in the industrial jurisdiction. So I shall not deal with the matter at length. Nevertheless if, as the Minister has said, this matter will be attended to in the framing of the regulations - I have no reason to doubt that it will be - at least that will be a step in the right direction in giving a measure of justice to the trade union movement.
When I look at the history of our arbitration system and the application of penal provisions over the years, I wonder why the unions ever embraced the system. The only conclusion that I can come to is that the law of the jungle in earlier days must have been pretty bad. Prior to the introduction of legislation to fix wage rates and conditions the headstones of industrial workers were carved in gum trees in the back of New South Wales and Queensland. But the provisions that were included in the 1904 Act were provisions that one would not have expected to be applied to workers who sought justice. That state of affairs continued until the first move was made in 1920 to have the provisions improved. Then we had the famous Bruce-Page Act of 1928 in which an attempt was made to destroy arbitration altogether. In 1930 the Labour Government sought to clear up the mess, and in 1935-36 it was clearly shown in the seamen’s case that the power to punish workers for taking strike action still lay with the Court. Over the intervening years the Government has enlarged the number of penalties that could be imposed on workers. The inclusion of more penalties in the Act - at the present time there are 35 or 36 of them - has only given the employers greater scope to make application to the Court to repress the workers. The sooner that this type of legislation is dispensed with the sooner there will be industrial peace in Australia.
.- I have heard various opinions expressed here tonight about the provisions of the Bill. I have deduced that as a Senate we are prepared to try any means at all to settle the industrial unrest that occurs at different times in the Commonwealth. There have been strikes in past years, there have been strikes quite recently, and I am sure that there will be strikes again in the future. But I believe that the people of Australia more or less have become accustomed to industrial conciliation and arbitration and that they do believe in such a system. I do not think they could have any alternative to believing in it. It is interesting to look back over the years and see how wages and working conditions were fixed. We did not always have the system of wage fixation that is now operating. It has been built up, piece by piece, just as tonight we are dealing with provisions which will be added to the Conciliation and Arbitration Act. I have said before that if good people in the community believe that these provisions in the Conciliation and Arbitration Act are worthwhile, there is no reason why they should not become law and be given a fair trial. It seems to me that anything which will prevent the loss suffered by wage earners in industry, employers and the economy of the country generally when strikes occur is preferable.
It is interesting to turn back to 1903 and examine what was then the attitude of the Australian Labour Party to industrial arbitration and the fixing of penalties. In 1903 Mr. Watson was the Leader of the Australian Labour Party. He supported compulsory arbitration then and said that 12 years before he had formed a different opinion. He said -
It seemed to me that considering the class bias which prevailed in the Legislature of those days, and bearing in mind that that bias was to some extent reflected in the appointments to the Judicial Bench, it was not a wise thing for us - when we had some chance of winning by means of a strike - to hand over to a body in which we were unrepresented the power to determine all the industrial troubles which arose. Further I had doubts at that time as to how we could insure that a strike would terminate with the pronouncement of any judicial decision. In this connection I am glad to acknowledge that the first inkling which I gained of a satisfactory way out of that difficulty was … the proposals to make trades unions responsible … to make their funds responsible. . . .
That seems remarkable to us now, but in 1903 it was the opinion that unions should be penalised in some way or other when members of the unions failed to observe an award.
I have examined some provisions of the Bill and I have noted that the Minister for Works (Senator Gorton) in his second reading speech referred to the proposals of the Government. He said that they were discussed last year with the Australian Council of Trade Unions and that they related to the sanctions provisions contained in sections 109 and 111 of the Conciliation and Arbitration Act. I shall now read section 109 so that its provisions will be available in “ Hansard “ for those people who wish to read them. It states - (1.) The Court is empowered -
Those are the provisions that have caused so much trouble in the past, together with those contained in section 1 10. In his second reading speech the Minister said -
First, sanctions in one form or another are an essential part of our arbitration system. The Government has no intention of removing them. Secondly, proceedings before the Commonwealth Industrial Court under sections 109 and 111 should be used only as a last resort.
Those sections have been invoked considerably in recent years. I shall continue to quote from the Minister’s speech to indicate to what extent they have been invoked. He continued -
It is necessary that we keep the sanctions provisions of our legislation in perspective . . . Over the last 15 years the average time lost by every wage and salary earner in Australiahas been just under21/2 hours a year. Of course, there have been fluctuations. Last year, the figures showed a worse record than the previous seven years.
I ask honorable senators: Is not the whole purpose of the Conciliation and Arbitration Act first to establish industrial peace and secondly to maintain that peace? To my mind the major step toward establishing industrial peace is the award made by an industrial tribunal. If an award prescribing wages and working conditions is not satisfactory from its introduction, it is impossible to establish industrial peace. The provisions of the Act should aim at maintaing industrial peace. Have the sanctions operated successfully? The fact that the Government is introducing this legislation tonight is concrete evidence that they have not. If the sanctions have operated successfully, why proceed with this legislation?
I believe that it is necessary to have legislation in respect of industrial conditions. It is unwise to have industrial awards made by industrial tribunals breached with impunity. I cannot see how the system could operate without such legislation authorising prosecutions in respect of breaches of awards and the Act. However, the sanctions should not be the dominant feature of an industrial conciliation and arbitration system. The Minister admitted in his speech that the sanctions have become, more or less, a bugbear in the minds of workers engaged in some industries. He referred to the stevedoring industry and said -
The stevedoring industry is a notoriously bad example of an atypical performance.
Honorable senators appreciate that he was saying that the Waterside Workers Federation is not inclined to observe the award. Over the Easter period a strike occurred on the waterfront in Brisbane.
If one examines the cause of the strike it will be found, I feel sure, that management in that case was at fault. In past years, the employees in the industry had been granted a certain amount of leave over the Easter period; but when application was made to the Australian Stevedoring Industry Authority in Brisbane for a certain amount of leave to be allocated to employees over the recent Easter period, the request was refused because of the extra shipping business in the port. In the industry, a custom of allowing a certain number of waterside workers to take leave over the
Easter period had been established. Suddenly, the practice was curtailed and the industry had a strike on its hands. I feel sure that if that matter had been referred to me when it arose I could have settled it in a matter of minutes. It was not something that was insoluble. However, the matter was not settled and the strike caused some people a great loss.
The Minister, giving some information about holdups in industry, said that over the past 15 years the average time lost by every wage and salary earner in Australia had been just under 2i hours a year. He went on to say -
Of course, there have been fluctuations. Last year the figures showed a worse record than the previous seven years.
That is what I commented on a while ago. Here we have sanctions. They are easily applied. The law is very easily brought into action and made to apply, and somebody has to pay a penalty. Because it has been so easy, the Government is trying to undo the sanction provisions of the Act. Of course, it would not be relevant to this matter for the Minister to supply us with information relating to unemployment over the past seven years. If he had given us the unemployment figures for 1960, 1961 and 1962, they would have been very illuminating. If time has been lost through strikes and holdups in industry in the past seven years, there has also been a considerable loss of working time because of unemployment, due lo the inability of honest workers to obtain employment.
At various times a question has arisen as to whether judges should be the persons to decide industrial questions, whether they should be appointed to hear applications from unions in respect of wages, working conditions and so forth. It is rather interesting at this stage to look back and see that the propriety of judges acting as industrial arbitrators was sharply criticised by Justices Stone and Hensman, in a document printed in the Western Australian “ Hansard “ for the year 1900, at page 1001. In the course of their statement, they said -
The duty of the judges is to administer justice, according to law, to decide upon the legal rights and duties of litigants, according to the established rules of taw and of legal evidence and procedure. By this Bill it is proposed that the judges shall assist in the decision of disputes between workmen and their employers, not as to their mutual rights and obligations under contracts of service or at Common Law, but rather as to what ought to be their relation to each other, according to tho principles of natural justice, or of expediency, or political economy. . . The judges have devoted their lives to the study and practice of the law, and they do not profess to have made a study of those innumerable social and economical questions which will arise in the near future in disputes between capital and labour.
Many people in a community would agree wholeheartedly with every word that I have said. The Minister said -
Now it is difficult to argue from these figures that there has been an excessive resort to sanctions.
That is a matter of opinion. I should like to see the sanctions modified considerably. I know that we cannot extirpate them, but I should like to see them modified for a trial period of five or six years. We might then get better observance of the law. We do know that when a body of men working in an industry make up their minds to go on strike because of some grievance nothing in the world will stop them from going on strike. It is such an easy matter for them to do it; they have only to withhold their labour and a strike occurs. Everything is done by the Government to prevent that.
The Government honestly thinks that by establishing sanctions which can be readily applied to the unions and to the employees engaged in industry it is doing something in the best interests of the country, whereas when sanctions are created and administered harshly, as I should say they were in some cases, something is presented to a group of men which appears to them as a challenge. They meet that challenge and they do not care a snap of the fingers for the sanctions. When they feel that there is some grievance which should be corrected immediately, they take the only action which they can take promptly, and that is to go on strike.
Senator Wright has returned to the Senate chamber. I heard him speak a while ago about the strike at Mount Isa carrying on for five or six months. I thought that he might have been using that as an illustration for some purpose, but I do not think that he really meant that the sanctions embodied in the Commonwealth Conciliation and Arbitration Act could have been used against the strikers at Mount Isa.
– I was complaining that the Federal Parliament was without power to extend its jurisdiction to that type of strike.
– That is quite true. 1 know that. It did not have the power. The Minister continued -
In some cases real grievances exist.
Of course they do, and it is a costly way of getting them remedied. Applications to the Court and hearings are not free of charge. There are fees to be paid. These continue and they have created further unrest. One thing that causes more unrest than anything else in industry in the Commonwealth at the present time is the operation of different basic wage rates. There is a Commonwealth basic wage. Operating in Queensland is a State basic wage which is considerably more than the Commonwealth basic wage. Another basic wage rate operates in New South Wales, and so on throughout the Commonwealth. Employees doing similar classes of work are receiving different rates of wages. An employee may be sinking post holes, or doing labouring work, a carpenter’s job or some other kind of skilled work. If he is engaged in Queensland under a Commonwealth award he will be receiving a lower rate than the employee governed by a Queensland State award. Does it not promote dissatisfaction and industrial unrest when several rates of wages operate in respect of one class of work? I cannot think of anything more likely to cause a measure of industrial unrest than that situation. I deal with this matter because it has been brought up before and evidently it is not the function of anybody in the Commonwealth to deal with the situation. The late Mr. Justice McCawley, one time President of the Queensland Industrial Court, has written -
The desire to follow in the footsteps of Mr. Justice Higgins was one of the reasons which induced Judge Heydon of New South Wales to urge the abolition of unco-ordinated wages boards. Mr. Justice Higgins resigned from the presidency of the Arbitration Court in 1920 as a protest against the creation of special tribunals under the Industrial Peace Act of 1920. He made a statement as to his reasons for resignation, in which he criticises this Act -
Part IV of the Act enables the Government to appoint a special tribunal for the prevention or settlement of any industrial dispute. This is to be a temporary tribunal for a particular dispute, and it is to be the creature of the Executive Government. From the nature of the case, any such temporary tribunal must be merely opportunist, seeking to get the work of the particular industry carried on at all costs, even the cost of concessions to un just ‘demands from other quarters. On the other hand, a permanent court of a judicial character tends to reduce conditions to system, to standardise them, to prevent irritating contrast. It knows that a reckless concession made in one case will multiply future troubles. . . . Nothing creates more industrial troubles than contrasts in conditions, unless it be an intermeddling and pliable Executive.
That was something that occurred years ago, but the matters that were commented on by Mr. Justice McCawley are still with us.
I wish to refer to another aspect of the Bill. Some time ago I asked a question about the welfare of two youths who were charged in the court at Alice Springs with a misdemeanour. They had been employed on a cattle station and had been ill treated. They had been threatened by the manager of the station, They were forced finally to clear out from the station. There was nobody in Alice Springs to whom they could complain about their bad treatment and non-receipt of wages. I ascertained that there was no officer in the whole of the Northern Territory to whom they could turn for assistance. Much to my pleasure I find that this Bill will overcome that deficiency. Under the Bill the Government may appoint ex officio inspectors to deal with complaints as they go about their daily tasks. The inspectors will not be required to invite complaints or to unearth complainants at the various places at which they call. It will be known that they have authority to deal with complaints relating to wages and working conditions. Employees who have a grievance may approach them. This work will not cost the Government one extra penny, because the Government employs stock inspectors, road inspectors and other officials who travel around the Northern Territory, all of whom are capable of doing this work. I am pleased to see this provision in the Bill.
I conclude my remarks by referring to some of the things that have guided people in a general way in the fixation of wages and the establishment of working conditions. When the United Nations came into being the old League of Nations passed out of existence, but the International Labour Organisation continued to function. It is still functioning in Geneva. To guide the peoples of the world in applying proper working conditions and rates of wages and in giving a measure of common justice to all human beings the I.L.O. laid down the following principles -
Of course, these principles were laid down a long time ago - or a 48 hour week as the standard to be aimed at where it has not already been attained.
Although those principles were laid down many years ago the principle that men and women should receive equal pay for equal work has not been recognised to any great extent in the Commonwealth or in other countries.
I am prepared to give a fair trial to anything relating to industrial conciliation and arbitraton, no matter what it is. If there are any steps that we can take to permit ships to be loaded with Australia’s produce for overseas markets, or to permit overseas vessels to be unloaded in our ports, without hindrance or industrial unrest, let us take those steps. I have always advocated that the waterside workers should be put on a substantial weekly wage. There is no reason why they should not be on a weekly wage. As conditions apply on the waterfront today, once a ship is loaded the waterside workers may be out of work. A man may be unemployed three or four times in the one week. If ships enter a port less frequently than usual, if they carry fewer goods than usual, or if fewer goods are exported from this country, there is less work for the waterside workers and they suffer a measure of unemployment. Give them good working conditions and substantial wages and you will not have the industrial unrest on the waterfront that we occasionally read about.
– It is not my intention tonight to deal with this amending Bill clause by clause. Nor do I intend to traverse and examine many of the decisions that have been made by judges and members of our industrial courts and commissioners. I intend merely to look at the Bill as a simple man and to express what I believe is the simple approach to the amendments that we are considering tonight.
I have always tried to do everything in my power to bring harmony into the industrial life of Australia or that section of Australia with which I am most concerned and most associated. Some honorable senators opposite may have a little difficulty accepting that statement. Having held the position of Minister of Labour and Industry in Queensland, I wouldlike to tell honorable senators that one of the very first things I did on assuming office was to invite representatives from all the trade unions in Queensland to come and meet me and also meet the representatives of the employers’ bodies in Queensland. That was for the sole purpose of trying to establish a basis of understanding and a basis of greater friendship between the two great sections of industry in order that, perhaps, some contribution could be made towards reducing industrial strife which to me always has been a great tragedy.
At the first meeting of this group - I repeat it was a representative group of employers and employees - I felt that we were going to make a great deal of progress. There seemed to be in evidence a spirit of co-operation and of readiness to meet the other side half way. But at the second meeting it became quite obvious that the harmony for which I had hoped was in fact missing. In the course of time certain of the union representatives advised me that they were not permitted by their organisations to continue attending the meetings. I thought that was a very narrow minded view to take. I believe that people should get around a table and discuss their problems as reasonable men. Representatives whether of employees or of employers are in their various spheres of life reasonable men. I cannot understand why they cease to be reasonable men when they sit around atable to discuss problems. But perhaps, there is a reason. On one occasion a union representative told me his views on certain industrial matters, but he said that he could not express them publicly. He said: “ Unless I am a militant, at least to some extent, in the union I shall lose popularity. I will not continue to remain in office.” I am not putting this forward in a critical way. I am mentioning it as one of the facts of life. T think it is quite important. The organisation for which I had great hopes, representing both employers and employees, gradually withered away because of the failure of some of the representatives to attend.
I hate industrial strife, and I hate it for many reasons. I think it is a very bad thing for the individual employee. We all know that it is a very bad thing for his wife and family. It is also a very bad thing for the nation, especially at certain periods. It is bad for the employer and it is bad for the general public. Industrial strife hits almost everybody in the community at some time or other. Because I realise these facts., I repeat that I hate industrial strife. But I go further. I hate injustice, too. I think that anybody is entitled to fight if he believes he is suffering a great injustice.
– That was not so until this legislation was introduced.
– I am expressing my opinion. The honorable senator may express his opinion later. I have been always very well disposed towards trying to establish better and better industrial machinery. I have tried to think of ways in which to improve industrial machinery. There is in Australia today conciliation and arbitration machinery which, though of course not perfect, has been built up progressively over a period of 60 years. It has been built up by representatives of every major political party. Each party has added its contribution to making the legislation better. 1 believe that this has been done genuinely and earnestly. When I say that I believe it is good machinery, I mean it. I believe that it is some of the best industrial conciliation and arbitration machinery in the world today. The Leader of the Opposition (Senator McKenna) said something similar when he was speaking. I think he said, without pretending to quote him precisely: “ We have a wonderful system of conciliation and arbitration.” I think he is right, but I repeat that it is not a perfect system. Every year we will seek ways and means of making it a little better. That is our duty.
While all of us probably agree with that, I am afraid we often cease to agree when we look at the means of improving the legislation. If we could remove from the industrial sphere the extremists on both sides of industry, I think we would find that the present machinery is very good. Up to this point there probably is not much disagreement between us, but I am afraid that we shall start to disagree drastically from here on. The members of the Labour Party feel that there should be no penalties attached to an infringement or a breach of our industrial laws. I cannot go along with that view because I have always believed that democracy is, of necessity, governed by the rule of law. If we are to have laws it is inevitable that we must have penalties for infringement of those laws. There is not a member of this Senate who does not agree with that proposition in a broad way. So why in the name of heaven do our opponents in this chamber agree with this as a general proposition, and almost as a complete proposition, but exclude the thought of penalties insofar as industrial law is concerned?
– I indicated some 35 penalties to which we were not objecting.
– Perhaps I should have been a little more precise when I said this.
– The honorable senator was imprecise before.
– As a layman I plead guilty to the charge. First of all, we need to recognise that there must be laws and penalties for the infringement of those laws. If we are on common ground in that respect and, apparently to a degree we are, we must look at the next step. The next step is that there must be someone who administers the law. I do know that governments, irrespective of their political colour, have been unanimous - in some places anyway - on the choice of those who are placed in charge of administering these laws.
I again use Queensland as an illustration, and say that those who were members of Queensland’s former Industrial Court and arc now Commissioners of the State’s Industrial Conciliation and Arbitration Commission were appointed by a Labour Government. Every one of them was retained by the Liberal-Country Party Government w:len it took office. At least some Oi them - I am not sure about all of them - have hae their terms extended during the period of office of the Liberal-Country Party Government. If other Commissioners have not. it is because their terms have not expired. The only change that has been made to the bench of the Commission in Queensland has been the addition of one more Commissioner.
If we are going to have judges - and we must - we need to have a charter. That charter is our Commonwealth Conciliation and Arbitration Act. My view of this amending Bill - not the amendment moved by the Leader of the Opposition because 1 just cannot go along with that - is that the measure will make our industrial machinery better. It will no:, I repeat, make the machinery perfect. But in my view, the Bill will make the machinery better. If in conjunction with this amending Bill we could have legislation which would take the step of which I spoke a little while ago and remove the extremists from the ranks of both sides, wc could see the end of the trouble we are having.
There are extremists on both sides. Unfortunately, we see too many examples of their work. I have here a cutting from the “Townsville Daily Bulletin” of 9th November 1964. It refers to a strike by 250 meat workers. The men were on strike over a matter which was so stupid - I say it deliberately and repeat it - that it is impossible to realise that adult males would use it as an excuse to strike. One man came to work wearing thongs instead of the regulation issue boots. I should mention that the regulation issue boots were to be worn in accordance with the recent tightening up of hygiene measures in our meat works as a result of the shipment of beef to the United States of America. The employee was told he could not work in the thongs. He was given the opportunity to go home and get his regulation boots. He did not do so. The next day, he again wore thongs and he was not allowed to work. Surely no honorable senator would disagree with such a decision in the circumstances.
– The honorable senator knows that is not the cause of the strike.
– I say that this is no basis on which a strike should occur.
– We all agree with that statement, but this was not the cause of any strike.
– I tell the honorable senator that it was the cause.. Mr. President, here is one of the problems that we face. There are none so blind as those who do not want to see. The point regarding the wearing of the thongs has been made an issue. It would be reasonably easy to find a dozen, 20 or maybe even 50 examples of strikes - major strikes - that began on bases as stupid and as simple as this one I am quoting.
Commissioner Gough visited this area. According to the newspaper report, he said that - . . it would never occur to him to doubt the competent, dignity, and dynamic approach of the unions’ officers in Sydney, Brisbane and Townsville to a dispute and their wholehearted devotion to the best interest of their members.
The report continues -
On the other hand, he said, at the level of Merinda meatworks itself, where the dispute had grown to enormous size from quite small beginnings- and they were small - . . it was hard to find any element of caution, judgment, or even common sense, in the way the case of the union members had been handled.
I had not intended to quote the whole report but I think it is necessary for me to do so in view of the interjections 1 have had.
– Tell us about the boot.
– Is the honorable senator making this speech, or am I? If the honorable senator thinks he can make it better than I can, he will get the opportunity to do so. I will say what I want to say. I continue with the quotation -
Apparently negotiations with the management and conduct in a large part of the case before the Commission had been placed in the hands of local representatives working at Merinda. “ The elected officers of the union were given a minor role, if any,” he said.
Commissioner Gough said conduct of the dispute had been extraordinary. Lack of flexibility in the approach to the dispute in face of reasonable concessions by the employer, failure to understand the relative positions of management and the employees in conduct of a meatworks, and the essential minimum of co-operation and give and take, and the almost complete inability to see the wider picture of the unions’ interest outside the small number of members involved- and I remind honorable senators that there were only 250 men involved -
. had characterised the dispute.
In conclusion, Commissioner Gough said - “ All these add up to an incompetent amateurishness and a lack of understanding in award and trade union affairs that are almost incredible where a union like the A.M.I.E.U. is concerned.”
Here is a man who, I remind honorable senators, had spoken in terms of the highest of praise for the union’s officers in other parts of the country.
– Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
Question resolved in the affirmative.
Senate adjourned at 10.30 p.m.
Cite as: Australia, Senate, Debates, 13 May 1965, viewed 22 October 2017, <http://historichansard.net/senate/1965/19650513_senate_25_s28/>.