6th Parliament · 1st Session
The President took the chair at 3 p.m., and read prayers.
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Paper
– Will the Minister of Defence lay on the table of the Senate a copy of the International Articles of War which deal with the treatment of prisoners of an enemy’s country, whether combatants or non-combatants?
– In answer to the question I beg to lay on the table the following paper -
Defence : Instructions relative to the internment and treatment of alien enemies.
– Will the Minister move that the paper be printed, as it is of importance?
– I am always loth to do that because of interfering with the work of the Printing Committee.
– I do not think that they would object.
– They have no dignity.
– This question is rather an urgent one at the present time, and as there is no objection on the part of any honorable senator, I move-
That the paper be printed.
Question resolved in the affirmative.
– Has the attention of the Minister of Defence been called to the reports of recent proceedings in the Prahran Council and the Footscray Council ? Is he aware that in the former Council a certain councillor said -
I am disgusted at the way the Federal Government is treating the Germans who are interned. I am told that the Germans hold concerts and balls, and have the hall festooned with their national colours. The Minister of
Defence (Senator Pearce) is worse than a German for treating them the way he has done. The man Edwards also had a room to himself and received special consideration.
Is he also aware that in the Footscray Council one councillor said -
Interned Germans were jeering at the people who were looking after them. They were being treated to balls and parties, while many Australians were starving.
Is there any truth in the statements that interned Germans are having balls and parties and have the halls decorated with their national colours?
– As a matter of fact, the interned prisoners are given a place in which to sleep, and food which they have to cook themselves. The food is a very plain, unassuming ration, and the prisoners are allowed to amuse themselves in any way they think fit, but at no cost to the Commonwealth.
– It is about time that you arrested these councillors.
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– Have the Government yet taken into consideration the question of the Inter-State wheat trade to which I alluded on several occasions last week, and, if so, have they decided to take any action 1
– The matter alluded to by the honorable senator and others in the Senate has been referred by me to the Prime Minister. He has not yet. communicated to me the action which he proposes to take, but I will endeavour to obtain the information.
– As the matter is one of urgency, I ask that information as to the action, if any, to be taken by the Government should bo furnished forthwith.
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– With reference to statements which have appeared in the press during the last few days, is the Minister of Defence yet in a position to announce the result, if any, of the Conference recently held on the subject of unifying the railway gauges of the several States? Is it true, as stated, that the Government have in contemplation the construction of a new Inter-State railway, and, if so, can he give us some indication as to the lines which it is intended this railway is to follow ?
– I understand that it, is the intention of the Prime Minister to deal in the Budget with certain matters arising out of the recent Conferences, and, therefore, I do not propose to make a statement to-day.
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– Will the Minister of Defence take into consideration the feasibility of issuing rifles to civilians joining rifle clubs on the individual guarantee of the members, instead of, as at present, on the guarantee of other responsible citizens?
– That point has been taken into consideration, and tho course suggested by the question was that which was adopted for some years, but it resulted in a very large loss to the Commonwealth. It was found impossible, in most cases, to recover the value of tho rifles, and the Department was reluctantly compelled, for its own protection, to adopt the present system of making tho rifle clubs responsible.
– Does not the Minister think that the circumstances at the time he mentioned were entirely different from the circumstances to-day, when so many civilians in every State are being urged on all sides to join the rifle clubs for the purpose of Australian defence ?
– My answer to tho question is that at the present time we need to safeguard every rifle in the Commonwealth. The rifles are of more value than the amount of money they represent to us at present. There is an urgent need that proper .care should be exercised over all available rifles, and we have found by bitter experience that the only way to insure that is to make the riflo clubs responsible for the care of the rifles.
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Payments to Dependents: Censorship of Newspaper Reports : Sale or
Cigarettes atcnteens,
– In a statementto the press a little while ago, I pointed out to dependents of soldiers on active service that where they had found delay in payments they should make application to the District Paymaster. There has been a considerable number of cases of delay, but in most of those that have been investigated it has been found that the soldier on leaving did not complete the form necessary for the payment to be made. In all cases I have asked those who find delay occurring either to wait on or write to the District Paymaster in the State in which they reside, and instructions have already been issued that the payments shall be expedited.
– Does the Minister’s answer mean that those entitled to receive pay due to their absent husbands have to present themselves at headquarters in order to receive it?
– No. My reply was that in most cases where nonpayment had occurred it wasfound that the soldier himself, although he had told his wife that he had made the necessary arrangements, had gone away without making them, and we invited the people concerned to call at the District Paymaster’s office. When they did so the claims were looked into, and if the case was genuine we filled out the form ourselves in the absence of the soldier, and authorized the payment. As regards the cases mentioned by the honorable senator, the arrangement is that they can either call at or write to the District Paymaster’s office. But we have found that in many cases they write to the member for the district or to myself direct, in some instances from as far away as Queensland.
– Is the money sent to them?
– It is either sent to them at the nearest post-office or they canget it personally by calling at the pay-office.
asked the Minister of Defence, upon notice -
Regarding his replies of 19th November to questions relating to the censorship of events connected with the departure of the Expeditionary Force -
Is it not a fact that the order from the Censor, releasing the matter twelve hours earlier than was originally intended, did not reach a large and influential section of the daily press until eleven hours after it had been given to the morning press?
How many weekly papers made the representations that the Minister says the Censor acted on when he, without prior notice to allconcerned, altered the time of release?
How, and at what time, were such representations made?
How many weekly papers did not make such representations?
Is it not a fact that more than one prominent weekly paper in Melbourne did not receive the notification that it could use photographs or matter relating to the Expeditionary Force until after its pages of illustrations had been sent to press, namely, on the day following the night on which the notification had been given to another section ?
Why were not all the newspapers treated alike ?
Will the Minister see that in future, when news and photographs are held up by the Censor and subsequently released, such release takes place at such a time that the section of tho press which had the first opportunity of publication shall still hold that position I
In view of many complaints by newspaper proprietors regarding the censorship, will the Minister favorably consider the question of appointing some experienced journalists to the Censor’s staff, to supply the necessary knowledge of the technical side of “ the production of newspapers which at present it appears to be sadly deficient in ?
– The answers are-
asked the Minister of Defence, upon notice -
– The answers are -
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asked the Minister of Defence, upon notice -
– The answers are -
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asked the Minister of Defence, upon notice -
– The answers are -
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asked the Minister representing the Minister of Home Affairs, upon notice -
– The answer is- 1 and 2. Yes.
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asked the Minister representing the Minister of Home Affairs, upon notice -
– The answer is - 1 and 2. The matter will receive early consideration.
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asked the Minister representing the Prime Minister, upon notice -
– The answers are -
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Bill read a third time.
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The following papers were presented : -
Audit Act 1901-1912-
Transfers of amounts approved by the GovernorGeneral in Council - Financial year 1913-14- dated 25th November, 1914.
Australian Institute of Tropical Medicine, Townsville, Queensland. - Half-yearly Report from 1st January to 30th June, 1914.
Defence : Physical Training -
Report by Hon. Lt.-Colonel C. BjelkePetersen, Director of Physical Training.
Lands Acquisition Act 1906 -
Land acquired under, at -
Bendigo, Victoria - For Defence purposes.
Congwarra, Federal Territory - For Federal Capital purposes.
Glenorchy, Tasmania - For Defence purposes.
Grafton, New South Wales - For Defence purposes.
Port Augusta, South Australia - For Railway purposes.
Public Service Act 1902-1913-
Postmaster-General’s Department. - Promotion of A. Wilson, as supervisor, third class, Telegraph Branch, New South Wales.
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Motion (by Senator Pearce) pro posed -
That this Bill be now read a third time.
– I called “ not formal “ to the motion for the third reading of this Bill merely because I desired to mention a matter in connexion with which I took a prominent part in Committee. I do not intend to again debate that question, but I wish to point out how the actions of honorable senators in this Chamber may foe viewed by persons outside who do not agree with them. The following is a paragraph from a communication which I received from Broken Hill whilst the subject to which I have already referred was under consideration -
Of course, we know there is cash in it, or you would not introduce such a wastrel amendment. (Signed) Thomas Nicholls.
I do not know who Mr. Thomas Nicholls is, but when communications of this character are forwarded to honorable senators, it is just as well to state in this Chamber the position which some persons in the community think we take up. As far as my own character in this connexion is concerned, I am content to leave the accusation where it stands. So many people in Australia know me that any defence on my part is unnecessary.
– In regard to the contemptible suggestion embodied in the letter to which Senator Turley has referred, I wish to say, as one who opposed the honorable senator’s amendment, that I have not the slightest sympathy with that suggestion. It is a contemptible suggestion to make in regard to any public man.
Question resolved in the affirmative.
Bill read a third time.
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Debate resumed from 27th November, (vide page 1153), on motion by Senator Gardiner -
That this Bill be now read a second time.
– The ostensible object of this Bill is one which must commend itself to any legislator who believes that a more satisfactory method than the strike should be adopted in the settlementof all industrial disputes. If I took it upon myself to say that the ultimate objective of the Government in introducing this measure goes a little farther than that, I should not be saying anything out of place. Incidentally, I may be permitted to refer to a statement made by a legal member of the Ministry in submitting the Bill for consideration in another place. He said -
I am profoundly convinced that nothing short of an amendment of the Constitution will do what is necessary.
To that statement I subscribe, with the exception of the last word “ necessary,” for. many of us hold that the objective of the Labour party is to secure such an amendment of the Constitution as will confer unlimited jurisdiction upon the Conciliation and Arbitration Court. Now, whilst I am just as desirous as is anybody of securing industrial peace, I do not admit that it would be entirely satisfactory to attain that objective by giving complete jurisdiction to that tribunal. The same gentleman, in discussing this measure, said -
The points to be considered are the constitutionality of the proposal, and subject to that, whether it will work expeditiously and well.
Beyond question those are the immediate points to be considered, and the sponsor of the Bill evidently entertains some doubt as to whether it will be held to be constitutional and watertight in all its provisions. Iti my opinion, the objective of the Labour party, and the consideration of whether the Arbitration Court will work expeditiously and well, are in direct conflict with each other. If we confer upon the Arbitration Court jurisdiction to interfere not only in Interstate, but also in Intra-State industrial disputes, its business will become so congested that it will be impossible for it to work expeditiously and well. Even at this hour of the. day, when Federation is fourteen or fifteen years old, it may not be out of place to review the conditions which were responsible for the recognition in our Constitution of the Federal principle.
– Would it not be better to consider the difficulties which have cropped up?
– No, because those difficulties have arisen on account of a want of appreciation on the part of industrial organizations of what constitutes federalism, and because they have attempted to use the Federal Courts in the decision of causes which were not within the competency of such Courts. I need hardly remind honorable senators that Australia at one time had a unified system “of government. That system, however, was found to be absolutely inconsonant with the ideals of the Australian people. Unification, therefore, broke down, and the different Colonies were called into being with all the powers inherent in sovereign States under the British Crown. Just as we occupied an unsatisfactory position under unification, so it was found that we had gone too far in conferring unlimited sovereignty upon the different sections of the Australian people. Almost immediately decentralization had been completed, a movement was inaugurated to createsome central form of government which would exercise legislative functions of a truly national character. As far back as the fifties a movement was inaugurated in favour of the establishment of a Federation. Some politicians recognised the necessity for a Federal union, but very rarely were politicians and the people ii> accord as to what was desirable. Consequently, the establishment of a central form of government was not consummated until after we had had thirty or forty years’ experience of government under a decentralized system. The movement for the consummation of Australian nationality to a certain extentremained in the hands of the politicians; of the day. Many of them deserve all thepraise which will be accorded them by some historian, if not by us, but others amongst them acted as brakes upon thewheels for the consummation of Australian nationality. A golden mean was found. It was very soon discovered that the intention of the people was not tobring about a restoration of that condition of government from which they had escaped thirty or forty years before, but while preserving most of their selfgoverning functions for the various States, toconstitute at the same time a central government which would deal with mattersof wholly national and Australian importTo make a long story short, the Federation came into being. A Federal system of government was adopted by the people of Australia as, so to speak, a half-way house between the ideals of a unitarian system of government, favored by some, and the complete retention of thesovereign power of legislation by the different Colonies if Australian nation^ hood were not to be consummated. Although in my humble way I did what I could to bring about the establishment of Australian nationality, and fought fairly hard for the adoption of the first Commonwealth Bill, and also for the Bill which ultimately became the National’ Constitution, I was not altogether satisfied with the latter measure as an ideal’ instrument of government. It is a very fine Constitution, and reflects great credit . upon the worthy mert who drafted it, but I thought a more unified system than that which was adopted would have been better. After the experience of twelve or thirteen years of Federation, I am not now too sure that we did not confer too many functions of government upon the National Parliament, which is called upon to look after the affairs of one of the world’s continents. I think now that it is possible that if we erred it was in the direction of being somewhat too generous in the bestowal of legislative functions upon the National Legislature, rather than in the direction of too greatly limiting its powers. Beyond all doubt, whatever its virtues or defects may be, Federalism is, in my opinion, a more satisfactory method for the government of our Australian communities than would bc a more highly unified or decentralized system. The instrument of government known as the Constitution is, of course, the intention of the people expressed in language. “When human thought is expressed in language confusion at times necessarily arises as to the correct interpretation of tho language in which it is expressed. There is always a border lino between expression and intention, and it is that debatable border line which is the cause of litigation in our ordinary Courts between citizen and citizen. It is because of the existence of this debatable ground of interpretation that we are at times in a condition of confusion as regards the point where State jurisdiction ceases and Federal jurisdiction begins. No matter how great may be our desire to secure industrial peace, it will scarcely be denied that, for reasons best known to those who direct the industrial organizations of Australia, there has been a very great desire on their part to ignore State tribunals, and to seek the settlement of industrial disputes by the Commonwealth Conciliation and Arbitration Court.
– Why is that?
– I could give honorable senators a great many reasons, but they will hardly require from me a detailed statement as to why those controlling industrial organizations desire to secure judgments from the Commonwealth Conciliation and Arbitration Court rather than from the tribunals erected by the several States.
– We do not wish the honorable senator to speak for the organizations, but for himself.
– I am not going to be trapped by Senator de -Largie. I am too wary a bird to be caught by that kind of thing.
– The honorable senator would rather insinuate than speak straight out.
– I am stating what is a fact. I say that there has been a great desire on the part of industrial organizations in Australia to seek the deciding of their cases and disputes by the Commonwealth Conciliation and Arbitration Court rather than by tribunals established by the various States. I am not insinuating anything. T am stating a fact when I say that.
– Let us have some proof of the statement.
– Have not the employers done so, too?
– I do not think so. I think the employers are more sensible. They are more conversant with the troubles attendant upon the establishment of industries, and more ready to recognise the virtues of decentralization in such matters. I think they would prefer that industrial disputes, with the exception of those of an Australia-wide character, be decided by the Courts of the State in which they arise. What did the framers of the Constitution intend? They intended that disputes confined within the boundaries of one State should be decided by the tribunals of that State.
– No; their intention was to prevent disputes.
– Then why was the differentiation made by those who framed the Commonwealth Constitution? They clearly limited the jurisdiction of the Commonwealth industrial tribunal. It is a part of the Constitution that the Commonwealth Conciliation and Arbitration Court shall have no jurisdiction whatever in regard to a dispute which does not extend beyond the limits of one Australian State.
– It is intended to prevent disputes that were likely to extend.
– I am aware that honorable senators opposite desire to enlarge the jurisdiction of the Commonwealth Conciliation and Arbitration Court.
– Hear, hear !
– But there is no way by which its jurisdiction can be enlarged except by an amendment of the Constitution, to which the people of Australia must consent by a majority in the aggregate and by a majority of the States. That is a condition which must be kept in mind in any criticism t>I the industrial position in Australia, so far as it is governed by Commonwealth legislation. My honorable friends opposite say that they require unification in regard to the jurisdiction of the Commonwealth Court over industrial disputes. They desire to confer upon the Commonwealth Courts unlimited jurisdiction in regard to industrial quarrels. That is the objective of many of them, but it is not the objective of a true Federalist. After an experience of thirteen or fourteen years, I have come to the conclusion that Federalism is the only system of government that can be satisfactorily operated in this Continent, in view of the fact that in the space of a century and a quarter we have in this country had an unsatisfactory experience of the unitary system of government. The real question is very often evaded. Those who favour conferring greater jurisdiction upon the Commonwealth Conciliation and Arbitration Court say that it does not matter if an Inter-State dispute is manufactured, since the difficulty attendant upon an unsatisfactory industrial position is none the less real if the dispute is confined to one State. They claim, therefore, that the Commonwealth Conciliation and Arbitration Court should have jurisdiction over all such disputes, and that access to that Court should _ be made available to all who desire to bring their cases before it. I am not going to grant that at all. The law in regard to other matters does not grant that?
– It does in regard to bankruptcy.
– It does not in regard to matrimony. If two parties in the married state desire to separate, and decide by collusion to bring their case before a Court of competent jurisdiction, it it within the province of the Court, should the collusion be discovered, to refuse to permit the parties to separate. Have not honorable senators at times heard of nonsuits in connexion with ordinary Courts? Does.” it follow because a party to a case is ruled out of Court that a great injustice is perpetrated ?
Not at all. How many times do we hear of parties approaching an ordinary Court, and. a litigant, the absolute merit of whose case is not disputed at all, being declared to be out of Court on a nonsuit, simply because certain conditions which are considered essential by the Judge or magistrate have not been complied with ? The equity of the litigant’s claim is not decided on at that moment, but he is nonsuited. Because certain parties to a dispute assumed to be of a Federal character have been nonsuited perforce the whole principle of Federalism in regard to conciliation and arbitration must be attacked. It is a most improper position. The most satisfactory industrial situation we can create will be one by virtue of which the Commonwealth Courts are enabled to clearly indicate to parties that their disputes are not of a Federal character, and not within the purview of the Court created under the Federal Constitution, but should be decided by State authorities, which are quite competent to act.. In other words, as collusion is not permissible under ordinary law in connexion with a matrimonial cause, so the framers of our Constitution clearly did not have in their minds any desire to have collusion made permissible in regard to bringing State industrial disputes before a Federal tribunal for settlement. The whole tendency of this Bill is to provide a free and easy approach to the Conciliation and Arbitration Court by any person who desires it, or any organization whose officials desire it, irrespective of whether the original cause of dispute is of a truly Federal character or not. I desire to see industrial peace. I desire to enlarge the function of the Arbitration Court if it is possible under the Constitution, but I shall not at any time by my humble vote assist in any great enlargement of any power of the Court if that power has not been conferred upon it by the Constitution. In other words, I will not assist to bring ordinary State disputes before the Commonwealth Court for decision. I maintain that the people of Australia in the different sections known as States are quite competent *t all times to set up tribunals that willbe fully able to deal with any matter which is purely of a State kind, that is, any matter involving an industrial dispute. It is a parody on the Commonwealth Constitution, a complete subversion of all its Federal principles, to attempt to enlarge the functions of the Arbitration Court so as to permit of manufactured disputes - disputes which originally were not truly Federal in character - being brought forward to congest the Court and inferentially to throw odium on the Courts of a similar character which may have been erected by the State Governments.
– They are not of a similar character; far from it.
– In Tasmania, the tribunals which have been erected by the State Governments have, up to the present, on the whole, dealt very satisfactorily with various industrial disputes which have been put before them. In Victoria, the situation is by no means deplorable. For many years Victoria has had tribunals which have dealt with matters of an economic character as between employer and employe, and the results have been most satisfactory. The Commonwealth Constitution provides’ for a- Conciliation and Arbitration Court it is true, but from the nature of the Constitution, from the very nature- of settlementin Australia, it would appeal to any person with common sense that the proper course to take would be at all times to refrain from bringing before that tribunal cases which were not essentially and in their true spirit of an Australian character. There is an attempt at all times, and there has been an attempt on the part of this Legislature, to strain the Constitution and to permit access to the Commonwealth Arbitration Court on the part of people who were involved in disputes which were not of a truly Federal character. I must confess that honorable senators opposite, who disagree with the view of politics that I take, have on the stocks certain proposals - have had them on the stocks and sent them to the people, who have rejected them - which will have the effect of enlarging the functions of the Commonwealth Arbitration Court, in fact, of conferring absolute jurisdiction on the Court in regard to any industrial dispute, whether of an Inter-State or of a purely State character. That is their declared objective, and if they acknowledge, as the AttorneyGeneral acknowledged in introducing this measure, that an amendment of the Constitution is essential to effect that objective, we know where we are, and the thing we have to decide - we who are Liberals and helped to frame the Constitution which conferred Federal jurisdiction on a Federal tribunal to deal with disputes of a truly Federal character - is whether or not we shall attempt to enlarge the functions of that tribunal which we are now constitutionally incompetent to do. There is a point at which we must refrain from attempting to confer upon that tribunal jurisdiction where it is not constitutionally competent to exercise it.
– Who is to decide that 1
– The interpreting authority of the Constitution - the High. Court.
– No; the Liberal party !
– The Liberal party, fortunately, is not of such a character and constitution as to attempt, by its own volition, to decide anything which can be referred to an Australian tribunal perfectly competent to decide it.
– They have not decided yet what an industrial dispute is.
– The honorable senator, like many others, begs the question.
– What does constitute an industrial dispute?
– In his remarks - and I think that they were admirable in tone - the Minister introducing this measure said that rules and procedure had to be observed by any deliberative or judicial assembly. That observation is so trite as to hardlynecessitate any indorsement from me. No tribunal, no matter how free and easy may be its system of trial, can altogether dispense with rules of procedure. There must, be some form, some rule and line according to which a tribunal must regulate its hearing of any case. To say that the High Court will not at any time decide what is an industrial dispute is, to my mind, a simple begging of the question and a misuse of language. Anyhow, if it is constitutionally competent for us to endow the High Court, with jurisdiction in this matter; if it is constitutionally competent for one Judge of the High Court to decide before the merits of a case are heard as to what is an industrial dispute; if the observance of that procedure, if the enactment of such legislation, will facilitate the settlement of disputes which are really and truly of an Inter-State character, then I welcome the measure. But, reading between the lines, it is easy to see that the legal gentleman who is sponsor for the Bill does not believe that it is going to be final. He questions the constitutionality of the action which he is taking.
– It certainly will not be final.
– It certainly will not be final, for the simple reason that the Attorney-General, and the honorable senator, indeed, all .the members of his party, seek to enlarge the Constitution so as to confer on this particular Court unlimited jurisdiction.
– No; extended jurisdiction.
– Our honorable friends on the other side want to extend the power of this Parliament to legislate in connexion with any industrial dispute, whether it is of an Inter-State character or not. What does the referendum proposal mean, if it does not mean that? Is not the whole object of that proposal to confer unlimited jurisdiction on the Conciliation and Arbitration Court? That will be the practical outcome of the adoption of the proposal which has been twice rejected, and certainly I shall resist to the very last any attempt to destroy the Federal nature of the Constitution in regard to its power in connexion with industrial disputes. If, within the limits of the Constitution, it is competent for us to do anything which will so enlarge the jurisdiction of the Conciliation and Arbitration Court as to facilitate the settlement of industrial disputes of an Australian character, then my vote will be in support of the measure. But I doubt very much the constitutionality of the provision conferring jurisdiction as regards the definition of an industrial dispute upon one Judge, from whose decision there is to be no appeal. It strikes me that the weakness of all these attempts to enlarge the jurisdiction of the Court has been in the direction of taking away the power of appeal. I do not think that we can create any Commonwealth tribunal of an industrial character, from the decision of which no appeal will lie to the High Court. Unless the Constitution is very radically altered - and I hope that it will not be altered in that direction - all legislative attempts of the character of this Bill will be the very limit of futility. But, as much may be granted, as many points may be stretched in the interests of industrial peace, 1 am not going to offer any great opposition to the attempt which is being made to give the High Court power to at once, in some easy fashion, determine what is .a Federal industrial dispute. I hope that the Constitution will not have to be enlarged to bestow upon the Court that power. I hope that it does possess the power, but, at the same time, I very much doubt it. I believe that the intention of the whole Bill will be destroyed by its language prohibiting any appeal to the High Court as a whole from the decision of any one Judge. I am not a lawyer. I am only a layman. These are questions which exercise to the utmost the greatest forensic ability, the greatest legal skill and judgment. We know that there is as much difference between the lawyers who are members of this Parliament in regard to this matter as there is between eminent doctors in regard to the diagnosis of many an obscure case. One has only to read the opinions which have been formulated on the Bench, and the opinions which have fallen from the lips of legal gentlemen in Parliament, to understand that we are dealing with a very ticklish question. I am sorry that the power of appeal is not given in the measure, because I believe that it is there where a constitutional flaw will be found to exist.
– In that case we shall be just as we were before.
– Not at all.
– On that particular point.
– There will be increased expedition in regard to the matter. The honorable senator knows that the law’s delays are proverbial. For any one to expect that anything in the nature of a judicial tribunal will proceed with lightning-like velocity in regard to its deliberations and decision, is to expect something which is not likely to come to pass. The very nature and merit of any judicial investigation or deliverance is to be calm and temperate in tone. Any verdict proceeding from a competent tribunal must necessarily be slowly pronounced if it is going to be well considered. There can be no violence in legislation, or in any judicial procedure, without producing very bad results. I think that there is no matter to which the old proverb, “ The more hurry the less speed,” would more neatly apply than this. If a case is well considered by those who have the responsibility of bringing it before the Court; if there is no artificial element in the case, it can be safely considered by any Commonwealth tribunal such as the Conciliation and Arbitration Court, and the High Court. But it the element of artificiality is introduced, if there is a looseness in regard to the constitution of those associations which are the litigants, then we must understand, in accordance with ordinary legal practice and judicial procedure, that those parties, as a consequence of their own negligence, misreading of the Constitution, and, perhaps, intentional wrong action, will be nonsuited. No matter what is dons in regard to this business, we shall never reach the stage which some honorable senators regard as ideally desirable, when the plaint will be entered on one day, the whole question reviewed next day, and the decision handed out on the third day. If by any constitutional alteration we too greatly enlarge the functions of the Arbitration Court, Ave shall produce a condition of things absolutely opposed to that desired by the Attorney-General, by myself, and by every other well-wisher of the community, a condition which will not permit of legislative processes being worked expeditiously and well.
– Before a cause is entered on, should it not bo settled whether the Court has power to deal with it or not?
– The same argument might apply to any ordinary case brought by the honorable senator against myself. He cannot ask any ordinary tribunal whether he should institute the action or not; he has to take his chance if he thinks he has against me a grievance which should be judicially decided.
– We want certainty, not chance.
– You will get certainty from tho law in the long run. Although Shakespeare has put it in a humorous way that a man may claim a knowledge of the law and be writ down iia ass, my experience of the law is that, at its best, it is the very personification of common sense.
– You have been happy in your experience.
– If the honorable senator has been unhappy in his, it was probably because he did not select his legal adviser very judiciously. The law would not be endured by the community if it were not the personification of common sense.
– Does not the community curse ifc day and night ?
– The community, in the aggregate, is very much like the community divided into units. It is never a competent judge of its own case as affecting individual interests. If the honorable senator brought a case against me and lost it, he would, in all probability, be dissatisfied with the Judge or the jury. That is human nature. It is altogether at variance with the essence of things for us to expect, either in the State or the Commonwealth, to be successful at any time in erecting a tribunal that will be able to hand out a decision satisfying everybody. No competent tribunal -worthy of the name will ever do anything in as hasty a fashion as some industrial organizations in the community and some individuals desire. T 3hall not offer any opposition to the measure. The Minister introduced it in a very conciliatory fashion, as was meet and proper ; but I am afraid that the language of some of the clauses renders it almost certain that ultimately the Bill, if it becomes an Act, will be declared to have produced a situation which this Legislature is not competent under the Constitution to produce.
– I am very pleased that the Ministry are making a further attempt to put arbitration upon a workable basis. Senator Bakhap seemed to blow hot and cold on the measure. He did not give it exactly his benediction ; neither did he give it his malediction. He was not prepared to say whether it was the work of an angel or of an evil spirit. He says the time is not ripe for anything to be done.
– I do not think I made use of any such phrase.
– Whatever were the honorable senator’s exact words, his general advice was to hasten slowly with the measure. He did not strike a very original note in giving that advice, because it has been given by every apologist for reaction and standing still since the institution of parliamentary government. When will the time be ripe ? Will it be in a couple of years when, if matters remain as they are, arbitration will be brought into such contempt as to be completely wiped off the statute-book, or when employers and employes are at death grips, as they were in the nineties, at the time of the maritime strike and the shearers’ strike ? The honorable senator says in effect that the time is not ripe now. I ask him when it will be ripe. It will never be ripe for his shade of politics, because those who think with him are not now friendly to arbitration in any shape or form. They are trying to befriend it, so to speak, in an unfriendly and unsympathetic way by means of unsympathetic administration. I do not know why, but I have had the greatest difficulty in securing a copy of the report of the Registrar of the Court, which is full of useful information to every honorable senator. I wanted to see it particularly to make myself acquainted with the position up to date, the difficulties that have been surmounted in the past, and particularly the manufactured difficulties that have been put in the way by those who do not want the law of arbitration to work satisfactorily. So far as my knowledge goes the Registrar’s report has not been placed on the table. I have made inquiries and find that the last Government, who were in office when the report was tendered, did not think it of sufficient importance to lay it on the table, and I have, therefore, been much in the dark as to what has ‘really happened. Senator Bakhap went back even beyond the beginning of arbitration in this country. He dwelt, not only upon its origin; but on the power vested by the Constitution in this Parliament to frame arbitration laws. We came to a decision to employ arbitration in preference to the old method of settling industrial disputes. They were to be settled, not by haphazard means, but by slow and deliberate steps. We were forced to take that course by dint of circumstances alone. We did not get the whole-hearted support of the honorable senator’s party when we first proposed that arbitration should be introduced to do away with strikes.
– Was not the provision inserted in the Constitution) originally adop’ted in the very teeth of the honorable senator’s party leaders?
– No; we did a lot to get the Constitution agreed to.
– The honorables John Christian Watson and W. M. Hughes did a lot, did they not?
– There may have been in some States objections to theConstitution on special grounds, but tha Labour party in other States were wholeheartedly in favour of Federation, and. of the acceptance of the Constitution. While the honorable senator may find an isolated case here and there of members of the Labour party opposing the Constitution, I can supply him with dozens of equally strong cases to show that the Labour party worked hard for the acceptance of the Constitution by the people.
Arbitration has been tried in this country, and has been hampered in many ways. We attempted to put an Act on the statute-book in the simple belief that the Arbitration Court would be clothed with sufficient powers to carry out its work without interference from any quarter, even including the High Court itself, but this belief was vain. No sooner was the Act brought into operation than we found that the power which we thought was vested in the Court was not vested in it at all, but that the High Court was still free to interfere with its work in many ways as it has done for the last eight or nine years. Senator Bakhap may be satisfied with that condition of things. He may be pleased to let the Arbitration Court be fettered more and more by the High Court. Every appeal that is made shows with greater clearness that the High Court has imposed on the Arbitration Court additional handicaps, and placed in its path additional obstacles. The honorable senator says that that is right, that that state of things was ordained, and should continue, whereas we on our side say it should not continue, but that an effective stop should be put to it. The stop that we propose is this further attempt to prevent the High Court from impeding the useful work of the Arbitration Court. That is the reason for the introduction of the measure.-
– You might use the same argument in connexion with every Court of original jurisdiction.
– From no other Court in the land have so many appeals been made to the appellate jurisdiction of the High Court.
– Appeals are made every day from magistrates’ Courts, and even from Supreme Courts. Would you check them ?
– But there is no other Court from which appeals are made so consistently and at such cost. Besides, the difference between other Courts and the Arbitration Court to my lay conception is that, whereas other Courts have been recognised as Courts from which an appeal should lie as a matter of course, it has been laid down in an Act of Parliament, as clearly as possible, that no appeal could, or should, lie from the decision of the Arbitration Court. Yet appeals have been made from its decisions again and again, and upheld by the High Court. We laid it down as clearly as language would let us that no appeal whatever should, or ought to, lie from the Arbitration Court to the High Court. Senator Keating was a member of the Government which passed that provision, and will recall it. It is section 31, and reads as follows: -
No award of the Arbitration Court shall be challenged, appealed against, reviewed, quashed, or called into question in any other Court, or on any account whatsoever.
It would seem that language was given to men in these latter days, as has been well said, to conceal their thoughts. In that case we endeavoured to employ language to express our intention by Act of Parliament as plainly as we could, yet we find the High Court asserting and establishing its jurisdiction over the Arbitration Court, although absolutely prohibited by that Act from doing so. One case was tried, and it .was found that the High Court arrogated to itself the right to (exercise jurisdiction over this tribunal, notwithstanding that a special Act of Parliament avowedly prevented it from doing so. I can only sympathize with those honorable senators who took wart in the framing of that Act. Senator Millen was one of them, and Senate* Keating was another. I should like to know what they now think of their handiwork.
– We did then what we had no legal power to do.
– And the honorable senator took a hand in it?
– We have lived and learned since then.
– Probably. But -I am not going to repeat the mistake now.
– Honorable senators upon this side of the Chamber are of opinion that these mistakes can be remedied. Senator Bakhap has urged that we ought to go slow in regard to this kind of legislation, and that the time is not ripe for it. We think that the time is ripe to apply a further remedy if the existing remedy has proved ineffectual. Thus we hope that the Arbitration Court will exercise jurisdiction, within its own sphere, by means of an appeal to a single Judge of the High Court, on whatever question may come before it. But the High Court will be shorn of the power which it has exercised in the past, to occupy days in considering a measure, and thus to land the contending parties in a huge bill of costs.
What has been the history of arbitration during the past four years? From the records I find that there has been no fewer than eleven appeals to the High Court by employers, or at the instigation of employers. In nearly all of these cases our opponents have triumphed. The first case was that of an appeal against the registration of the Jumbunna Coal Miners. In that instance the Registrar had registered this association of workmen. He had laid the position before the President of the Arbitration Court, who had assented to its registration. Yet the employers attempted to secure the cancellation of that registration. It is true that they did not gain a victory. But the employes were subjected to a large expenditure, notwithstanding that they had been led to believe that no appeal lay to the High Court, and that when once their association had been registered it would remain registered, independent of what view might be held by that tribunal. The next case was that of the Broken Hill miners. There the employers appealed to the High Court on a question of jurisdiction, and while they did not gain a complete victory they at least secured a partial one.
– The appeal in that case was made on the ground that the award went beyond the jurisdiction of the Court in some particulars.
– The question of jurisdiction was all the time involved.
– The whole of the award was not appealed against, but merely the excessive part of it.
– The question of jurisdiction was all the time involved in these appeals. In the case of the Broken Hill miners, the employers gained a partial victory, but, again, the employes were subjected to very heavy costs in resisting that appeal. I need hardly remind honorable senators that industrial organizations have not unlimited cash at their disposal, and that the expense incurred and the exasperation caused by the want of faith exhibited by the employes in the Arbitration Court have supplied them with their main grievances. The next anneal was in the Boot Trade case. In that the employers appealed to the High Court on a writ of prohibition, and the employes obtained a partial victory, but only after they had incurred a large expenditure in resisting the appeal. In the next case the issue of the common rule was discussed before the High Court. Notwithstanding that that had been one of the main features of arbitration, and that the application of the common rule bound employers on one side and employes on the other, the fact remains that when this issue was included in an appeal to the High Court that tribunal completely nullified it. The common rule was knocked out, and the employes thus suffered a further defeat at the hands of the High Court. The fifth case was that of the Tramways badge, in which the employes insisted upon exhibiting on their clothing the badge of membership of their union. The Tramway Company held that they must not do that, and the matter was made the subject of an appeal to the High Court, over the head of the Arbitration Court, which was specially charged to deal with all matters of this kind. In that case the employes had a victory, but their costs were very great indeed.
– All the appeals have not gone against them.
– But the employment of lawyers means money. A man cannot meet a lawyer on a staircase without being mulcted in a fee.
– Not if he consults the lawyer. Many persons endeavour to meet him on a staircase, and to consult him there, or wherever they may think fit.
– I do not say that lawyers, as a class, are to be condemned, but there are some “bright” specimens amongst them. Then there is the case of the Merchant Service Guild. That was a case in which certain ship-owners in New South Wales appealed to the Arbitration Court, where the men succeeded in gaining an award ; but, when the employers were called upon to observe that award they appealed to the High Court on the plea that the Arbitration Court had no jurisdiction. The High Court concurred in that view on the ground that the dispute did not extend beyond the limits of New South Wales.
– What other result did the honorable senator expect, seeing that the men had brought a State dispute before the Federal Court?
– That is beside the question. We had laid it down in an Act of Parliament that no appeal should liefrom the decision of the Arbitration Court except upon points of law.
– -Parliament . was suffering from legislative swelled head at the time. That is what was the matter.
– It is a singular thing that the decisions of the High Court in these appeals have been mostly adverse to the employes. They have sustained defeat after defeat at its hands. In ite latest decision it has inflicted a blow upon the Arbitration Court from which that tribunal can never recover, unless the attempt to remedy that evil which we are making in this Bill proves successful. The next case was that of the Engine-drivers. There we witnessed the ingenuity of our opponents in endeavouring to appeal to the High Court on the question of whether engine-driving was an industry or not. The moment the engine-drivers obtained an award from the Arbitration Court, the employers appealed to the High Court on the ground that engine-driving was not an industry. The High Court held that this view was a sound one, and, after a long process of litigation, the engine-drivers found, to their dismay, that the award which they had been at such pains and expense to obtain went for naught. On that occasion, this Parliament, in its wisdom, came to the rescue bv passing an Act declaring that engine-driving was an industry, just the same as is mining, carpentering, plumbing, or any other class of labour. After that Act was passed, an award was again obtained by the engine-drivers, and the employers once more appealed to tho High Court with a view to having the validity of the law tested. The High Court thereupon declared that the amending law was perfectly valid, and, consequently, to-day engine-driving is recognised as an industry. Then the builders’ labourers went before the Arbitration Court. They subjected themselves to a lot of trouble and expense, and with what result? The employers appealed to the High Court, and said, “ The Arbitration Court has no jurisdiction in this case.” The builders’ labourers secured a victory on thai? occasion, and the employers have now appealed to the Privy Council, where they will very probably secure a favorable verdict, seeing that the possession of the long purse tells in most of these contests. The tenth case to which I desire to direct attention is that of the Merchant Service Guild, in which an award was appealed against by the shipowners of the Commonwealth. The employes did not gain a complete victory there, although they approached very closely to it. Nevertheless the expense and trouble of getting that case before the Court nearly resulted in failure. The last case on my list is that of the Tramway companies. That was before the Arbitration Court for ninety days, and, at the end of that term, the employers appealed to the High Court. With what result? After the employes had incurred all the expense of securing evidence before the Arbitration Court, their labours went for naught, because an appeal was made to the High Court, and that appeal was upheld. The result is that we do not know where we are to-day. We are in a mist. We do not know whether an association of workmen can or cannot get a cas© brought before the Court, when, in their opinion, a dispute exists. The object of this Bill is to more clearly define the position of the rival parties in connexion with arbitration. I am supporting the measure in the belief that, though it may not be entirely successful, it is a step in advance of anything we have previously attempted to do. It will restrict the powers of the High Court in dealing with appeals from the Arbitration Court. If the measure is successful, as we all hope it will be, it will be the means of paving the way for more peaceful relationships between employers and employes. It will bo the means of making arbitration more respected in Australia than it is to-day. Up to date, we have had, in connexion with arbitration proceedings, nothing but the piling up of expenses by associations. I believe that I am fairly within the mark when I say that, as the result of the repeated appeals to the High Court in connexion with arbitration proceedings, not less than £50,000 has been spent by the various unions throughout Australia. We wish to avoid that enormous and unnecessary expense. We desire, above all. that the principle of arbitration shall in this country be given a fair trial. Up to the present it has not had a fair trial, because of the powers which have been usurped by the High Court. This Parliament said that the High Court should not interfere with the Arbitration Court. It has interfered, in a very material way, in the eleven case’s to which I have referred. We have had three victories, and a few partial victories, but in the majority of vital cases the decisions have unquestionably gone against us. The result has been that arbitration in -Australia, with the great bulk of employes and with very many employers, has become almost a by-word. We know that the bulk of the employers are not favorable to arbitration. They favour the Wages Board system, which enables them to victimize the members of Wages Boards if they do not act in conformity with their wishes.
– There are fewer strikes under the Wages Board system.
– I feel sure that Senator Bakhap would favour Wages Boards.
– I would.
– Just as Mr. Holman does.
– I helped to establish them in Tasmania.
– Nearly every worker who acts on a Wages Board in Tasmania is dismissed.
– Mr. Holman may be in favour of Wages Boards in New South Wales, but he does not embody all the wisdom of the Labour party. He may have his own opinion, just as we have ours. It cannot be contradicted that when an employe is placed in a position in which he is called upon to adjudicate on a case, if, in the exercise of an independent mind, he runs counter to the wishes of his employer, there is more than the average sense of justice to be found in human nature in that employer if he does not visit that employe with some punishment for his action. We say that a tribunal to deal with industrial questions in a just and equitable manner must be raised far above the possibility of victimization by either employers or employes. That type of arbitration may be expected from a Federal Arbitration Court, or, for that matter, from a State Arbitration Court composed of persons entirely removed from, and independent of, the parties to the conflict. Senator Bakhap and the members of his party chiefly favour Wages Boards, whilst we stoutly favour independent arbitration tribunals. We want to ha ve. the principle of arbitration respected, and to have both parties in the industrial field contented. Our only course is to favour a competent tribunal, and not a partial or dependent tribunal, some of the members of which must rely for security in their positions upon the good graces of their employers if they dare to exercise independent judgment on the matters brought before them . Senator Guy has informed me that members of Wages Boards in Tasmania have frequently been victimized.
– Yes; over and over again.
– I have heard a similar statement made with respect to Wages Boards in Victoria. If it were not so, it would be in direct defiance of general experience. For my part, I say that employers are against arbitration, and particularly against that type from which an independent and equitable award may be obtained, and they are in favour of Wages Boards, for the reason that their employes cannot be sure of getting a fair deal from those tribunals. They are in favour of a form of arbitration under which the independence of the Court may be undermined. We cannot expect an impartial judgment from a Court that is not lifted above the sphere of the influence exercised in the past by employers. I feel that the arbitration principle is worthy of a further trial. We have met with many disappointments in our efforts to give the principle a trial in Australia, but I think it is our duty to give it a more extended trial before finally deciding to put it on one side; For my part, I have not yet lost hope of arbitration in Australia. We know that employers have put very large sums of money into efforts to defeat arbitration. The Colonial Sugar Refining Company spent £12,000 in an effort to defeat an application to the Arbitration Court for the fixing of the wages of its employes. When we find a company of that kind spending money in the effort to be relieved from the effects of our arbitration laws, we may be satisfied that the principle of arbitration is not working in their favour. As one who has been a good deal in the turmoil in the past, I say that, in the interests of employes, of fair employers” and of the community generally, arbitration is worthy of a more thorough and more careful trial than it has been given up to date. In the Federal sphere of action it has not been given a fair trial, because it has been exposed to the repeated interferences of a higher tribunal. The last decision of the High Court has reduced arbitration in the Federal sense to an. absurdity and an absolute farce. We do not know where we stand now. When a body of workmen become dissatisfied with their conditions, they do not know whether they can approach the Commonwealth Conciliation and Arbitration Court or not. I am in favour of this further effort in the direction of arbitration, although I am not too confident that it will prove satisfactory. It is only by continually trying that we can finally reach success. I support this further trial in the hope that the Federal Arbitration Court will be made allpowerful within its domain, and will thus be the means of exercising a beneficent influence in securing reasonable and just relationships between employers and employes.
– I do not know whether I was more shocked or amused to hear the wholesale denunciation of Wages Boards which we had from the honorable senator who has just resumed his seat. I heard an interjection to the effect that they were not working too well in the Labour-controlled State of Tasmainia ; and I may inform the Senate that in New South Wales, where the Wages Board system is in existence, it is operating, not only under the supervision of a Labour Government, but apparently with the entire approval of that Government. That being so, one must assume either that the Labour Government of New
South Wales is recreant to the interests which it is supposed to look after, or that the verdict which it feels compelled to find upon the working of Wages Boards in that State is entirely different to that pronounced by Senator Lynch.. I do not claim to have been very intimately associated with these matters, but, being rather anxious to discover the best lines along which we may hope for a larger measure of success in the peaceful settlement of industrial disputes, I must say that, so far as I can judge, Wages Boards in New South Wales have given a larger measure of satisfaction than has been obtained from any other effort in that State in the direction of arbitration.
– They have not.
– I say that they have given more satisfaction than any other effort yet made in that direction.
– To employers.
– Not only to employers. If what Senator McDougall says is correct, how is it that a Parliament controlled by the Labour party have made no attempt to alter the system ?
– They are making it.
– Why are they not altering it? ‘
– Because the Upper House is stopping them.
– They could not stop anything which Mr. Holman made a determined effort to carry.
– Of what use is it to make the effort there 1
– That kind of thing may be all very well for the platform, but it will not convince members of this Chamber. I do not say that the Wages Board system is entirely satisfactory. There have been occasions when its operation has not given a great deal of satisfaction, but I do say that, on the whole, the Wages Boards in New South Wales have given more satisfaction than has any other effort yet made to deal with industrial disputes in the arena of the Law Courts. If that is not so, what have my honorable friends opposite to say to their political brothers-in-arms - the Labour party in the New South Wales Parliament?
– What have the members of the honorable senator’s party to say to their friends in South Australia who established a Conciliation and Arbitration Court to supplement the Wages Boards?
– I am not concerned just now with what may have been done wrongfully in the State of South Australia, and. judging from the representatives of that State here, I am quite prepared to believe that there may be all kinds of wrong-doing in that State. 1 am speaking of a State about which 1 claim to know something. I say that in that State we have Wages Boards operating under the auspices, and with the sanction, of a Labour party armed with a considerable measure of parliamentary strength. I know the Labour party of New South Wales, and I refuse to believe that, if they saw in the Wages Board system all the evils which my honorable friends opposite profess to see in it, they would not make an effort to remove them.
– The Labour party in New South Wales have to reckon with the Legislative Council of that State.
– - I say that that sort of rejoinder may do very .well for the public platform, but it can have no influence upon any one here, because we know perfectly well that if the Labour party in New South Wales or in any other State, strong in its majority in the popular Chamber, was convinced that it should take a certain course of action in the interests of those whom it represented, it would take it. whether the Legislative Council liked it or not.
– And the Legislative Council would reject it.
– Suppose they did ? The Legislative Council in New ‘South Wales has never persistently opposed any measure which has been reaffirmed by the Lower Chamber in that State.
– They have done so in South Australia.
– I am speaking of my own State, where we conduct things in a proper and orderly fashion.
– Why is there not a Land Boilers Inspection Act in New South Wales?
– Because the Labour party of New South Wales have in that matter been recreant to their pledges.
– Because the Legislative Council of New South Wales has refused to sanction such legislation.
– No; it is because the Labour party there have not had the pluck to put the issue to the test. On one occasion in New South. Wales the Legislative Council did venture to reject a measure passed by the Legislative Assembly.
– Only on one occasion ?
– I am referring only to one occasion now, when the Government, strong in the Lower Chamber and in the support of the electors, carried their point against the Legislative Council. I refer to the Bill introduced by Sir George Reid in 1894, dealing with the land and income taxes. The Legislative Council at that time, if they did not reject the measure, at least so mutilated it that it was practically destroyed. What was Sir George Reid’s answer? It was an immediate dissolution of Parliament, fie went to the country and came back with a slightly larger majority than he had before. He passed the measure in the Lower House, and the moment he did so the Legislative Council of the State said, “ Our function has ceased.”
– What will the Legislative Council do with the Wheat Bill this week ?
– I cannot tell my honorable friend what the Council will do with such an iniquitous measure. The Legislative Council of New South Wales will not persist in opposition to a Government that is prepared to take its fortune in its hands and appeal to the electors. There is no case on record in New South Wales of the Legislative Council persistently opposing a measure which the Lower House has passed.
– Or in any other State.
– I am not speaking of States where the Legislative Council is elected upon a narrow property qualification. I have not a kind word to say of them. I repeat that the Labour party of New South Wales, strong in their parliamentary majority, have countenanced the Wages Boards in that State. If they believe them to represent the iniquity which Senator Lynch has suggested, they have the remedy in their own hands. The fact that they have so far refrained from putting that remedy into operation is indicative to me that they regard those Boards, if not as entirely satisfactory, as st least giving a greater measure of satisfaction than any of the other expedients hitherto resorted to. Listening to Senator Lynch’s address, I could only regard it as a plea for an alteration of our law, not because the law is wrong, and not because the principle upon which it is based is wrong, but because a majority of the Judges of the High Court have taken a different view from that taken by a single member of the Court. In other words, if the position were reversed, and the Judge of the Arbitration Court had given a decision against the union, and the High Court had ruled against the Judge of the Arbitration Court in favour of the union, Senator Lynch would be the last in the world to ask us to pass this legislation. The honorable senator does not ask us to pass this Bill because the existing law is wrong, and he does not venture to prove that the majority of the High Court have been wrong.
– It is at least a singular thing that the decisions of the Courts should always be against the workers.
– And on technicalities.
– These interjections merely mean that the unions are to have their way, whatever the law or the Constitution may say.
– The cases are not decided by the law, but on mere technical objections.
– The honorable senator forgets that the technical objections have been raised upon legal points. Senator Lynch has quite correctly stated the facts.
A number of unions have approached the Arbitration Court, many of them misled by faulty legislative work, for which the Senate must share the responsibility. The Parliament did place in the Act a provision, in which, I venture to say, it exceeded its powers. I am afraid that there has been in the past a tendency on the part of the Commonwealth Parliament, and one which has not even yet exhausted itself, to overlook the fact that it is in. a different position from any Parliament which existed in Australia before. Previous Parliaments, like the Imperial Parliament, have been free to legislate how, when, and where they would. They were not operating under a Constitution written in the sense in which ours is written. We have to accustom ourselves to this fact, that we are working with limited powers, which are set out in the Constitution. We are not going to overcome that disability, if it is one, by any laws which we may pass here.
That is the point I want to make. The correct thing for my honorable friends, and those who think that our powers are circumscribed, to do is not to go on placing futile laws on the statute-book - further invitations to Labour unions to test their cases in Court - but to proceed with another plank in their platform, and that is the referenda proposals. This Bill, in my opinion, is lacking in honesty, both to the Parliament and to the people, who expect so much from it. They have already made one effort by Act of Parliament to override the Constitution. I refer to the. Act in which they sought to take away the appellate jurisdiction of the High Court. I am only a layman, but I venture to express the opinion that nothing which this Parliament may do, so long as the Constitution retains its present shape, will enable us to do that. The limitation is there, consequently, if my opinion is sound, what my honorable friends are now doing is giving a further invitation to the unions to spend another £50,000. That is not honest to the unions. There is not a member of the Government party to-day who is prepared to affirm that he does believe sincerely that the Bill will meet the difficulty which it is supposed to meet.
– Nor, in view of the past, what will happen.
– Exactly, and what is more, we are warned in this case by the Attorney-General himself that he had the gravest doubts as to whether the Bill will be effective; in fact, whether it will be intra vires. In these circumstances, is it honest to the members of unions, the expenditure of whose money Senator Lynch professed to deplore, to help to place the Bill on the statute-book, knowing that the moment it is placed there further briefs will pour into the lawyers’ chambers to test the work which every honorable senator opposite in his heart regards with the greatest doubt?
– After this the deluge.
– Does the honorable senator believe, without any doubt, that the Bill will meet the difficulty?
– I do not, and I will reply to the honorable senator when I get up.
– My contention is that my honorable friends opposite are not frank with those on whose behalf they are pretending to pass, this measure. It is put forward ostensibly for the purpose of clearing away the difficulties, the existence of which I admit, in order to give to unions and others concerned a definite assurance that when they so to the Arbitration Court they will be freed from the liability of appeals and other difficulties which have confronted them. Honorable senators opposite do not believe that it will do that, and, therefore, I say that they are not frank to the unions they profess to represent.
– That is scarcely the proper way to put it.
– He is putting it in his usual way.
– I want nothing better than the admission of Senator Needham that he believes that the BiT) will not do what it purports to do.
– What would you advise?
– I would advise my honorable friends to face the position boldly. They have time and again pinned their faith to their referenda proposals.
– Time and again we have asked for an enlargement of our legislative powers, and you have rejected the proposals.
– The honest thing for my honorable friends opposite to do is, not to fool with legislation of this kind, not to throw out spurious invitations, by futile legislative efforts further misleading the unions, but to say frankly, “ Nothing that we can do, so long as the Constitution remains as it is, can help you, and therefore we propose to proceed with our efforts to amend the Constitution.”
– That would hardly be true. We can do something to help the unions, but not all that we would like to do.
– I have expressed some doubt on the point as to whether the Bill will help at all, and I venture to say that most honorable senators who have listened to me share that doubt. That being so, I do submit that my honorable friends would have dealt much more frankly, and I think, in the end, much more beneficially, with the unions they have taken under their special care if, instead of occupying time with this Bill, instead of adding to the measures which are going, in my judgment, to be declared ultra vires, they had said to the country at large, “ We donot believe that, under the Constitution, we have power to do what we think ought to be done. Until you alter the Constitution, as we have invited you to do, we can do nothing for you,” and then proceeded with their referenda proposals. That would have been an entirely frank and, in my opinion, a business-like course to pursue. There can not be any doubt that if the country approved of the proposed alterations the field would be perfectly free for the Parliament to legislate as it likes in industrial matters. Regarding their proposals, I, of course, take up the same attitude now as I did before. I am not favorable to the major portion of them.
– To all of them 1
– Not to the major portion.
– To none of them. The honorable senator wants arbitration to be a failure.
– That remark, of course, is entirely without warrant, but, as it proceeded from Senator de Largie, the Senate will take it at its proper value.
– Hear, hear ! Just as it will take your remarks at their proper value.
– I do not want arbitration, nor will arbitration last in Australia long, unless it is based on lines fair to each side. When I see this persistent claim that arbitration shall be centred in the hands of one man, and that not even the High Court shall traverse the judgment of that man, that is not fair arbitration, but arbitration which will suit one side.
– One man is the High Court for the time being.
– As regards the referenda proposals of the Labour party, I do not alter my attitude one iota. At the same time, it does seem to me that my honorable friends, to be logical, ought to proceed with them instead of with this Bill. Instead of patching with quite ineffective patches the defective legislation of the past, it would have been much better for them, and in the long run much better for the unions, if they had immediately proceeded to grapple with what is the real difficulty in the way, and admitted that, from their stand-point, the difficulty is not in altering legislation, but in the limitations imposed on our efforts by the Constitution. If they hold the views they profess to hold, the correct remedy is to try to widen the Constitution. Although I do not view their proposals favorably, I feel constrained to admit that, after the results of the last election, they will be quite entitled to proceed with them again. I make no secret of that fact. It was put before the electors as one of tho things they proposed to do, and, having got electoral warrant for proceeding with it, and that being the only way which will give them thereal remedy they seek, it does appear to me that they are in an entirely illogical, position at present. They are wasting our time and misleading the unions by placing on the statutebook other laws which I venture to say will share the fate of preceding ones. I have only dealt with two matters, compared to which the other matters involved in the Bill are comparatively insignificant. I do not propose to touch on the minor questions at this stage, but there are one or two details which I would like to discuss in Committee. In conclusion I only wish to emphasize the point as strongly as I can, that my honorable friends opposite are going to land the unions, if the doubts they sharewith me are founded on fact, in another series of expensive lawsuits and another series of very bitter disappointments. I do submit for their consideration whether it would not be more honest on their part, and better for the country, and certainly better for the unions, if, instead of wasting time in passing legislation of this more than doubtful character, they were to at once proceed with their efforts to secure those wider powers, without which I am quite satisfied they will never be able to carry their objective.
– I admit that the concluding portion of Senator Millen’s address somewhat astonished me, and that was his anxiety regarding further expense in which the unions may be involved should the measure become law. I am somewhat surprised at the sudden anxiety on his part, because I know that in the past he has expressed no anxiety on that score. He has given us a lecturette this afternoon; he has said that, instead of introducing legislation of this nature, wo should have proceeded with our proposals to alter the Constitution. On each occasion that we submitted our referenda pro- posals to the National Parliament there was no stronger opponent of them than the honorable senator, and so, too, on the platforms in the country, I venture to say that when they are resubmitted here there will be no stronger opponent of them than the honorable senator. Consequently, where is the logic of his argument? n fail to find- it. The principle of this measure is to make the Commonwealth Arbitration Court the final arbiter in cases of industrial dispute. I admit frankly that it may not enable the various organizations, be they employers’ or employes’ organizations, to reach the desired goal. But, in view of recent decisions, it is imperative that at least one more attempt be made to find out whether or not some machinery can be invented to put an end to costly litigation in connexion with industrial disputes. That litigation is costly to both parties to the disputes, with this difference, that one party is better able to bear the cost than the other. I refer to the employers’ organization. The spirit of the Constitution in this matter is that industrial disputes should be settled with the least possible cost to the parties engaged in- them. Whether it is the letter or not is another matter, and it has certainly been proved that it is not the letter. I speak with experience of the Australian Tramways Employes Association, with which I have been connected - one of the youngest associations registered under the Act. It is in connexion with the award given by Mr. Justice Higgins in .the Tramway case, and the further litigation before the High Court, and the High Court’s judgment, that this Bill has been introduced. It cost that young organization about £5,000 from the time its case was first filed until the High Court gave its decision. If that is going to be the fate of every organization registered under the Act, what encouragement do we give to organizations to discard the old weapon of the strike?
– Is there no industrial tribunal in Western Australia to which the tramway organization could have appealed ?
– There is one, but as free citizens of the Commonwealth they elected to join a Federal organization under the law of the land.
– That is the question. The Constitution may not provide them with the means which the honorable senator desires to. see them use.
– If the honorable senator reads up the principal Conciliation and Arbitration Act he will find that men engaged in industries can register themselves with the Court.
– But certain portions of that enactment are not constitutional.
– That is not the point at issue. The spirit of the Constitution was to invite the workers to lay aside the weapon of the strike and settle their disputes peacefully, cheaply, and without stopping the revolutions of the commercial and industrial wheels of the nation. The workers of the Commonwealth have accepted that invitation and have registered themselves under the law of the land. What has been the result? The cases quoted by Senator Lynch this afternoon prove that whilst the worker has thrown away the weapon of the strike and submitted himself to the law of the land, the employer, on the other hand, has gone on strike, and there are many ways of doing so. The Australian Tramways Employes Association obtained an award from the Conciliation and Arbitration Court. Several tramway systems settled their differences by agreement under the compulsory powers possessed by the President of the Court. The Adelaide Tramway Trust and the Brisbane Tramway Company refused to enter tho Conference as ordered by him. There was nothing left for him to do but to give an award in the case of those two systems. Its effect was to increase wages, shorten hours, and grant to the men holidays they had never had before. It made their conditions of employment better in every way ; but as soon as it was given, the Adelaide Tramway Trust and the Brisbane Tramway Company raised the technical point of jurisdiction, and any one who goes into the history of the case will see the truth of Mr. Justice Higgins’s statement that the approaches to the Court lay through a veritable Serbonian bog of legal technicalities. All that the Bill asks for in clause 6 is that the unions may know before they take their case to the Arbitration Court whether they have a case or not. That is the point. But Senator Millen did not mention that clause in his second-reading speech. He was simply anxious about the expense to which the unions might be put. He- has not been anxious on that score during the past few years, and, as I interjected as he was leaving the chamber-
– Now the honorable senator has made that statement, would he mind mentioning that I have returned to the chamber) It is a habit of his when a senator leaves the chamber to get the fact into Hansard.
– I give that statement an emphatic denial. It is not a habit of mine, and I defy the honorable senator to prove that it is. I did not mean what I said in any offensive way, for I knew the honorable senator was called out on business. I was simply going to repeat for his benefit, now that he has returned, an interjection that I made when he was leaving. If he is not gentleman enough to accept” that explanation, I cannot help it. The history of the Tramway case is sufficient to prove to those of us who are on the side of the employes that it is absolutely imperative for this Parliament to make a further effort to save, not only the unions, but the employers, from the cost of litigation. The present situation means that when an award is given in favour of the employes, the employers organizations begin to play battledore and shuttlecock with them. That is the wrong way to preserve industrial peace. I said when Senator Millen was speaking, “ After this the deluge,” meaning that the workers of the Commonwealth were getting very restive under the repeated galling action of the employers in taking tho cases to the High Court on technicalities. The Labour party advocate the settlement qf industrial disputes by peaceful methods. That is true not only of members of the National Parliament and State Parliaments, but also of the leaders of the various organizations; but, if this kind of business is to go on, there is the danger of resort to the old weapon of the strike, and, hearty advocate though I am of the peaceful solution of disputes, it will be very difficult for me, or any of my colleagues, to continue to advocate it if all the unions have to stand the costly process of appeal in order to get their disputes settled, only to find, in the end, that they are no better off than when they started. It took some little persuasion to keep the Adelaide tramways running, not only during the hearing of the case, but after the High Court had given its decision. I appeal to all who desire the continuance of industrial peace to give this measure a trial. I think it will minimize present difficulties, although I agree with its opponents that it will not go the whole length. The only way to bring about absolute security in this regard, and to make the Commonwealth Conciliation and Arbitration Court the final industrial Court of Appeal, as I think it ought to be, is by means of an alteration of the Constitution; but, whilst we are waiting for this, there may be a danger of an industrial upheaval, which the majority of the members of this Chamber are desirous of avoiding. It is for these reasons, and many others, that I am supporting the second reading. I sincerely hope that, if it is not as effective as we desire it to be, when the time comes for us to submit the referenda . proposals once more to the people our friends opposite will be just as anxious for the welfare of members of trade unions as they are to-night, and will carry that anxiety from within the four walls of this building to the platforms of the country. I trust that they will advocate then, on the public platform, an alteration of the Constitution which will give us lasting industrial peace in Australia.
– I realize, like others who have spoken, that it is desirable that we should have effective means of conciliation and arbitration for the settlement of industrial disputes. Those who took part in framing the Constitution, as Senator Bakhap reminds us, made provision for the establishment of Conciliation and Arbitration Courts in connexion with industrial disputes extending beyond the limits of any State. We passed in 1904 a Conciliation and Arbitration Act, which has since been amended in the light of experience. These amendments have not always achieved the end aimed at, but we must remember that Parliament is not the only authority in this matter. The Commonwealth was founded, like all other self-governing communities of the highest order, as consisting of three distinct parts - a Legislature, an Executive, and a Judiciary. Not one of these, in origin, is dependent on the other; none is the creature of the other. Each derives its existence, its virtues, its powers and effect from the Constitution. The High Court is provided for, and was brought into existence by the Constitution itself.
Parliament has certain powers with regard to the High Court, but does not absolutely define or limit its jurisdiction. Parliament, under the Constitution, has certain powers to clothe the High Court and other Courts which it may create with jurisdiction, but apart from that the High Court has original jurisdiction under the Constitution, of which nothing that this Parliament may do can deprive it. That is largely the cause of the position in which we find ourselves to-day.
– The people outside can make an alteration, and they will not stand much longer the sort of thing they have had to stand for the last ten years.
-.- The people can make an alteration in that regard, but this Parliament cannot. We must recognise our limitations when we proceed to exercise our powers. If the power lies with the people, and not with this Parliament, all our efforts to do what lies within the people’s’ province, and not within ours, will be absolutely futile. But those efforts, however futile, may generate in the minds of certain persons outside hopes and beliefs that are not at all well-founded, but that may lead them to courses of action involving enormous expense, and perhaps ending in ultimate disaster. I have always hoped that a Commonwealth system of conciliation and arbitration in relation to industrial disputes would be expeditious, comparatively inexpensive, and certain. I fondly believed and hoped that access to the tribunal which would deal with these’ matters of conciliation and arbitration, would be easy and satisfactory. But, in common with the majority of people, I must confess to a feeling of disappointment. Resort to the Arbitration Court so far as the parties to industrial disputes are concerned, has not been attended with the success, inexpensiveness, and certainty for which we all hoped. To-day certain criticism has been levelled at the Commonwealth law in regard to conciliation and arbitration. Some of that criticism has been merited, and some of it unmerited. We have been told that the approach to the Court is, in the words of Mr. Justice Higgins, through it Serbonian bog of technicalities. We have been assured by Senator Lynch that the invoking of the powers of the Arbitration Court, with a view to the settle ment of industrial disputes, has been attended with considerable expense and uncertainty, and that the High Court has been appealed to against its decisions, with the result that those decisions have been reversed.
– That is stubborn fact.
– -I am not disputing it. But I ask honorable senators whether they did the right thing when they provided that parties to disputes, before the Conciliation and Arbitration Court, should be deprived of legal assistance. I venture to say that many cases have been taken to that Court which lawyers would have told the parties were doomed before they were ever submitted to it.
– The Tramways Employes Association had the advantage of legal assistance from the start.
– Not in the Court itself.
– In the Court itself.
– I ask honorable senators whether they may not have contributed to the failure which they allege against the Arbitration Court? I have not the slightest doubt that the provision to which I referred was inserted with the most excellent intention. But I believe that the result has proved in a measure disastrous.
– The road to the Arbitration Court is paved with good intentions.
– No doubt. Incidentally I wish to refer to a casual remark by Senator Lynch in regard to lawyers generally - a remark which he subsequently qualified to some extent. He said that one could hardly meet a lawyer on a staircase without realizing how businesslike the latter was. To that statement I replied that .the lawyer certainly is, and should be, business-like if one meets and consults him as a lawyer. I have had persons consult me as I have been coming down the steps of a bank, and in all sorts of out-of-the-way places. They have asked my opinion upon matters, and they have afterwards had the goodness to obtain tho advice of another member of the legal profession, and to inform him of the opinion which I had expressed without telling him of the circumstances under which it was obtained. I have known of cases in which clients have seized the opportunity of consulting solicitors when they met them outside their offices, thinking that thereby they would escape the consultation fee. It is quite a common practice amongst many persons in the community to endeavour to obtain a little cheap law.
– But they generally fall in.
– No. Thus it may sometimes happen that a client may find in an itemized bill of costs the following, “ To attending and advising you,” in some out-of-the-way place. These particulars are inserted to bring back to the recollection of the client the time, place, and circumstances of the consultation. I have known instances in which clients have shown such items to other persons without realizing that such persons have then become aware that they have attempted to (take advantage of their own lawyers.
– I never met a man who could take advantage of a lawyer.
– The main provision of this Bill is clause 6, which proposes the insertion of a new section in the principal Act. It provides that any party to a dispute -before the Arbitration Court may make an application to the High Court for a declaration of the existence of a dispute. I quite recognise that it is most desirable that a Court, before dealing with any matter on its merits, should be satisfied that it has jurisdiction. Any steps which may be taken to have that question determined as early and as finally as possible will meet with my approval. The procedure outlined in the proposed new section, in its intent and purport, is one to be commended. But I very much doubt whether the provision will give effect to the intention of the framers of the Bill. If the measure passes in its present form, I believe it will merely ‘be a misleading post to a good many persons who will be disclosed to invoke the jurisdiction of the Arbitration Court. The clause provides that when an industrial dispute is submitted to the Court, any party to the proceeding may apply to the High Court for a decision on the question of whether the dispute or any part thereof exists; that such application may be dealt with by one Justice of the High Court, and that his decision as to whether there is a dispute cognisable by the Arbitration
Court shall be final and conclusive, and “ shall not be subject to .any appeal tothe High Court in its appellate jurisdiction, and shall not be challenged, appealed, against, reviewed, quashed, or called m question, or be subject to prohibition,, mandamus, or injunction, in any Court on any account whatever.” As Senator Lynch observed, these words were used in previous legislation. He referred to the fact that possibly I was a Minister at the time that legislation was introduced. My reply, by way of interjection, was that we had lived and learned since. We know now, from the decisions of the High Court, what are the limits of our powers in regard to these matters. Nothing that we can put on the statute-book in the nature of an attempt to exclude the High Court from issuing orders of prohibition in matters possibly of this kind will be of any avail whatever. Senator Lynch, ia dealing with the history of our arbitration, law, cited a number of appeal cases, and apparently would have us believe that the High Court in the most casual fashion has been in the habit of determining issue* quite contrary to common sense. I propose to refer only to one or two of thecases which he quoted, but what I say iu, regard to them might be said with equal force in regard to all the others. One of the cases which he mentioned was that of the Broken Hill Proprietary Company Limited. In regard to that case, the Digest of the Commonwealth Law Report says -
Where the employes engaged in different branches of one industry carried on in different States by a single employer take concerted action in making a common demand on their employer for certain conditions of employment, and the employer, understanding that the demand is so made on behalf of ali the employes, refuses to accede to it, there arises an industrial dispute extending beyond the limits of one State within the meaning of section 51 (xxxv) of the Constitution cognisable by the Commonwealth Court of Conciliation and Arbitration. The Commonwealth Court of Conciliation and Arbitration cannot exercise jurisdiction under section 19 of the Commonwealth Conciliation and Arbitration Act 1904 unless there is, in fact, such a dispute, which has been submitted to the Court for settlement in one of the methods stated in that section, and, in the case of a dispute submitted by plaint, the plaint should be sufficiently definite to indicate to the Court and to the other parties the subject-matter of the dispute.
When Senator Lynch was referring to this case I interjected that the High Court had overruled the finding of the Arbitration Court only to the extent to which the latter had exceeded the plaint itself and had gone beyond the matters in dispute. The Digest goes on to say -
Though the Court is not bound to award the particular form of relief claimed in the plaint, and though it may, under section 38 (sub-sectionu) deal with all matters incidental and ancillary to the dispute submitted to it, and make such order as it deems expedient for the settlement of the dispute, it has sio jurisdiction to make an award as to matters not substantially involved in, or connected with, the dispute.
In that case the Conciliation and Arbitration Court went beyond the matters in the plaint, and made an award in regard to other matters which were not in dispute. To the extent to which it exceeded the matters in dispute, the High Court ruled that it had exceeded its jurisdiction.
– That is common sense.
– Yes ; but Senator Lynch said that the employes had gained a partial victory. The fact was that they put in their plaint, that the Arbitration Court made an award in respect of the matters mentioned therein, and then proceeded to deal with other matters outside of the plaint. The Digest proceeds -
So, where the Court embodied in its award for the settlement of an industrial dispute properly submitted to it directions making important changes in conditions of employment, as to which no claim had been made in the original plaint-
– Was that plaint amended ?
– No. as to which there had not been, in fact, any dispute between the parties, which were altogether unconnected with the matter submitted to the Court, and which the Court had refused on those grounds to incorporate in the plaint by amendment: field, that the Court had exceeded its jurisdiction in so far as it purported to deal with those matters, and should be restrained by prohibition quoad hoc, from proceeding to enforce its award.
The power of the High Court with regard to prohibition is not a power given to it by any legislation of this Parliament. It is a power given to it by the people of the Commonwealth, and by the Constitution. Senator Lynch made reference to the Federated Engine-drivers and Firemen of Australasia case. I should not refer to that case were it not for the fact that because of the way in which Senator
Lynch stated the decision of the High Court, it would be believed that the High Court again, against all principles of common sense, decided that men who drive engines are not engaged in an industry. That was not the decision of the High Court. That is not a fair way in which to put the decision which the High Court gave in that case. It was a case such as that to which I have just now referred. I venture to say that almost any lawyer in Australia would have told those men that they had not a hope of ever getting their case before the Arbitration Court, because such an associated body as they were was not contemplated by the Act. The judgments in this case are very long. It was held that this body was not a body related to “an industry “ as defined by the Commonwealth Conciliation and Arbitration Act. I do not propose to quote at length the judgments given by the Chief Justice, Sir Samuel Griffith, Mr. Justice Barton, and Mr. Justice Isaacs, but in order that what the Court did actually decide may be understood, I do propose to quote some parts of the judgments. I shall not wrench these parts from their context so as to give them a meaning other than the meaning of the judgment generally, but I shall draw from them the salient features which the Justices elaborated as their arguments proceeded. Sir Samuel Griffith began in this way -
The facts relevant to this question are thus stated - “ The claimant is an association of employes, which is, in fact, registered as an organization under the Act in, or in connexion with, what is styled the industry of ‘ land enginedriving and firing.’ Members of the association are employed, for the purposes of engines, in many undertakings of various characters, e.g., in mines, in timber yards, in tanneries, in soap and candle works.”
Further on he said -
The term “ organization “ means an organization registered pursuant to the Act, section 4. Section 55, which describes the condition of registration, is as follows: - “55. (1) Any of the following associations may, on compliance with the prescribed conditions, be registered in the manner prescribed as an organization -
Section 4 defines the term “ industry “ as follows: - “Industry” means business, trade, manufacture, undertaking, calling, service, or employment, on land or water, in which persons are employed for pay, hire, advantage, or reward-
Then he went on to say -
It is to be noted that the words are not “ persons engaged in any industrial vocation,” or “ engaged in industry,” but “ employes in or in connexion with any industry.”
Later on Sir Samuel Griffith said -
The respondents, for whom Mr. Starke appeared, contend, on the other hand, that the term “ industry,” as used in section 55 ( 1 ) b, connotes an entirety different from, and outside of, the mere personal vocation of the employe, and should be construed objectively, ns denoting a collective enterprise in which, to use the words of section 7, employers and employes are associated. . . . The claimants do not deny that in section 55 (1) a, which speaks of “ employers in or in connexion with any industry,” and of “ employes in that industry,” the word “ industry “ must bear the meaning put upon it by the respondent. The respondent very naturally asks why should the same word, twice used in the same section in the same phrase “ in or connexion with any industry,” have a different meaning according as the phrase is used to qualify the term “ employer “ or “ employe.”
Members, of the Federated Engine-drivers and Firemen’s Association were employed in different industries. Some were employed in mines, some in factories, some in hotels, and some in tanneries. The unit of organization as contemplated by the Commonwealth Conciliation and Arbitration Act would be illustrated in mining employers and mining employes, hotel employers and hotel employes, tannery proprietors and tannery employes. This association cut right across the lines of division of the several units contemplated by the Conciliation and Arbitration Act. For the purposes of that Act they were, therefore, not engaged in “an industry.” They were engaged in various industries. Different members of the Association would come under the term “ employes “ as applied to different industries. The Chief Justice went on to say -
If ordinary rules of construction are applied, the terms “ calling,” “ service,” “ employ? ment,” and the word “ employed,” used in connexion with them, must receive the same construction. On the contrary view, there is a sudden change of meaning of the same word in the same sentence, and the phrase “ in which persons are employed,” which, as to part of the subject, means “ in which persons are employed by an employer,” means, as to another part, “ in which persons engage.”
They might be treated as persons following one industry, but their several employers could not be dealt with as though they were banded together in one organization. The manufacturer of certain goods might be, in one employer’s organization, prepared to deal with all his employes, and another employer might be in a different association altogether - such as the Hotelkeepers Association. The same applies with regard to every industry with which engine-driving was associated. Later on - page 411 of this volume - Sir Samuel Griffith said -
A good illustration is afforded by the present case, in which the award as proposed would extend to employes engaged in industries of all possible kinds, from drivers of locomotives or of winding-engines on mines, to men in charge of small gas-engines used in industries in which the use of engine-power is merely subsidiary, and to employers engaged in equally diverse industries.
In the second place, that is not the schema of the Act. The unit of aggregation for the purpose of industrial agreements and proceedings in the Court is not the handicraft, but the collective enterprise in which employers and employes arc associated.
– Under that interpretation there would have to be a separate association for each industry.
– Yes, as they were. The quotation proceeds -
Provision is accordingly made for the grouping together of employers engaged in the same industry, as well as of employes similarly engaged.
You could not group the employers of all the engine-drivers in the Commonwealth, because they were engaged in so many various industries. There was no means of grouping them. It was contended that, though the employes might be grouped, they could not deal with a grouped body of employers.
– That is common sense again.
– It is common quibbling.
– I can assure Senator de Largie that it was not quibbling. It was our own law. What Sir Samuel Griffith said was -
Provision is accordingly made for the grouping together of employers engaged in the same industry, as well as of employes similarly engaged. In either case the parties associated presumably have a common interest in the matter in dispute.
I remember that, after this decision was given, legislation was introduced to alter the unit of organization in connexion with the Arbitration Act. It was proposed then to make the basis of organization not an industry but a handicraft. When that measure was before another place, one honorable member, a member of the Labour party who has devoted a considerable amount of time and attention to this subject, strenuously opposed that proposal. He objected to grouping the employes under handicrafts rather than in industrial groups. I refer to Mr. Catts, a man who has been very conspicuous in his attention to this matter. When he took up such a strenuous and positive attitude in confirmation of the principle which the High Court recognised as the principle underlying the Act, it may be reasonably inferred that there is, at least, even as a matter of policy, room for difference of opinion as to whether it is better that employes should be associated in groups of handicrafts or in groups of industries. At any rate, what we did in 1904 was to group them in relation to industries, and not in relation to handicrafts. That is what the High Court pointed out. They considered that the Judge of the Arbitration Court could not deal with a group of engine-drivers because there was no corresponding group of employers with whom he could deal. It would be necessary for the Court to deal with them separately.
– Take the case of a stonemason employed in the building of a brewery.
– I am not going into the merits or the demerits of the matter, but am merely stating the true position. I am endeavouring to show that the High Court did not give a senseless decision to the effect that a man who was an engine-driver was not engaged in an industry. The decision of the Court was that this Parliament had laid down in the Conciliation and Arbitration Act a definition of “industry” for the purpose of a system of conciliation and arbitration. They gave their interpretation of it, an interpretation which I submit is borne out by common sense. We adopted the principle, and the High Court could only deal with the Act as they found it, and as we left it. The proof of the pudding is in the eating, because we subsequently amended the Act to make such an association as the Engine-drivers and Fire- men’s Association justiciable under our conciliation and arbitration law.
– It was a strange decision that they extracted from the law, nil the same.
– In my opinion, the decision was not in the least degree strange.
– I put this case to the honorable senator : Since the High Court said that they could only deal with grouped industries, how would he regard the case of a stonemason employed in building a factory, a hotel, or wor.ks on a mine? Would not the man be engaged in each case in the same industry ?
– I take leave to say that I am not here to give an interpretation of a hypothetical case. I am merely dealing with the criticism levelled at the High Court by the honorable senator. His remarks would lead to the inference that the High Court decided that persons engaged in engine-driving were not engaged in an industry. What the Court decided was, on the contrary, that they were engaged in a number of varying industries, but not in “ an industry “ in the sense in which the term is used in the Conciliation and Arbitration Act. Further on, Sir Samuel Griffith said -
I adhere to what I said in Federated Satomill, &o., Employes of Australasia v. James Moore and Son Propty. Limited: Woodworkers’ case (1) on this point-“ The dispute must be single in the sense that there must be a substantial community of interest amongst demandants and amongst those who refuse the demand.
The dispute must be associated with a certain industry, and not with a number of varying industries. He further said - It seems to mc as impossible to deny that the employers and employes concerned in au industrial dispute must bc engaged in the same industry, as to affirm that every person who employs a carpenter or engine-driver is, in any relevant sense, engaged in the industry of carpentry or engine-driving, or to say that there is a community of industrial interest between a. farmer who employs an enginedriver to drive a stationary engine in Queensland, and a company which employs drivers of locomotive engines in Tasmania.
He said, and rightly, that there is no community of interest between an employer in Queensland who may be a farmer employing an engine-driver in connexion with a stationary engine and a company in Tasmania employing enginedrivers in connexion with mining machinery.
– Do you say that the original Act laid down that there must he a community of interest as a definition of what an industry is?
– I “do not say that it used those words. I do not want to take up the time of the Senate by again reading what are the definitions. I read them very carefully and slowly when I was proceeding to quote from this argument. The whole of the judgment is based on the wording of the sections, and the argument and the conclusion of the Chief Justice is supported by Mr. Justice Barton and Mr. Justice Isaacs. Later the Chief Justice said -
Nor, in my opinion, was the Act, any more than the provision in section 51 (xxxv) of the Constitution, designed to facilitate the manufacture of disputes for the purpose of bringing them before a Federal tribunal. On the contrary, it was designed, however it has: been sought to be applied, to promote industrial peace.
That was standing in the report as the decision of the Chief Justice in this case when the Tramways case came on, to which I intend to refer presently -
For these reasons, I am of opinion that the opinion tentatively expressed by my brother Isaacs in the Jumbunna case, is sound, and that “ an industry contemplated by the Act is … . one in which both employers and employes are engaged, and not merely industry in the abstract sense, or, in other words, the labour of the employ! given in return for the remuneration received from his employer.”
He dealt with other questions which arose for the determination of the Court on that occasion. I do not propose to quote so lengthily from the judgment of Mr. Justice Barton. He said -
Before beginning to discuss question 1, it is well to advert to one of the general rules for tho. construction of Acts of Parliament, that “ the same words must be prima facie construed in the same sense in the different parts of the Statute.”
He went on to say that there is only one sense in which the word “ industry “ can be construed as regards employers, and the same sense must be the sense in which the word is construed in the same section and the same phrase as regards employes. He continued - An “ association “ is defined as “ any trade or other union, or branch of any union, or any association or body composed of or representative of employers or employes, or for furthering or protecting the interests of employers or employes.”
Later he said -
An industry, therefore, is looked on as an entirety, existing only by the relation of em ployer and employe. If any other meaning of an industry can bc found which will fit the employe, it certainly will not fit the employer. To adopt any other meaning, therefore, would result in applying the word to each in a different sense, which, in the absence of a compelling context, is against the rule of construction.
In regard to the words “ calling, service, or employment,” used in the definition, he said -
They depend for their full meaning, as the earlier words do, on the condition that in them “ persons are employed for pay “ or other recompense. The thing meant is the whole enterprise; the “service” in which “persons are employed for pay “ ; and it is that enterprise which an industry is defined to mean.
Later he said -
The meaning of an industry is further indicated by a phrase in the definition of “ industrial dispute,” and as it is referred to by my learned brother Isaacs in his judgment in the Jumbunna case, in a passage highly applicable to the definition section (1), I quote his words -
Then he quoted a long paragraph from the judgment of Mr. Justice Isaacs in the preceding case, a portion only of which paragraph I will quote -
Turning to the specific definition of “ industry,” it rather appears to mean a business (as merchant), a trade (as cutler), a manufacturer (as a flour miller), undertaking (as a gas company), a calling (as an engineer), or service (as a carrier), or an- employment (a general term like “ calling “ - embracing some of the others, and intended to extend to vocations which might not be comprised in any of the rest), all of these expressions, so far indicating the occupation in which the principal, as I may call him, is engaged, whether on land or water. If the occupation so described is one in which persons are employed for pay, hire, advantage, or reward, that is, as employes, then, with the exceptions stated, it is an industry within the meaning of the Act.
That was the decision of Mr. Justice Isaacs in a case preceding this one, quoted with approval both by Mr. Justice Barton and the Chief Justice. Later, in. his own judgment, Mr. Justice Barton said - “Industry,” therefore, as defined in the fourth section, and as used elsewhere in the Act, means a concern or concerns carried on by employers, in which the employes work with the employers for wages or other recompense. It does not mean the mere vocations of sections of workmen not bound together in respect of their connexion with an enterprise or enterprises of the same kind, but carrying on, in widely diverse undertakings - for example, “ in mines, in timber yards, in factories, in soap and candle works “ - one out of the many classes or divisions of work which are necessary for completely constituting and conducting such undertakings. Such sections of work- men may form associations for their mutual support and protection, and nothing that has been said in this case casts a doubt on the legality of such bodies, but they are not associations of employes “ in or in connexion with any industry,” as the term “ industry “ is used in the Act.
So much for Mr. Justice Barton, although there are still many pages of his judgment. Mr. Justice Isaacs began his judgment by dealing with the question as to whether these were organizations as contemplated in the Act in connexion with an industry -
With regard to the first question, I am clear, as may be gathered from what I said in the Jumbunna case, that the Constitution, by section 51 (xxxv), enables the Parliament, if it so desires, to empower the registration of organizations such as the claimants in this case. That is to say, it may empower workmen to associate and register as organizations having regard only to the nature of the work they personally do, and entirely disregarding the class of industrial operations in which they and their employers are mutually engaged.
A power which, I may say, we afterwards exercised.
But while entertaining no doubt that Parliament possesses that power, the only question here is whether, in fact, it did so by the Act of 1004. That depends on what is meant by “ an industry “ in that Statute. I shall presently indicate why I prefixed the article to tho word “ industry.”
I need not go through the_whole of the judgment. Mr. Justice Isaacs further said -
The true meaning, then, of section 55 is not, I think, difficult to grasp. First, it dealt with employers’ associations by allowing any association of employers in any industry to be registered, provided that during the preceding six months, the employers associated employed, on an average, per month, not less than 100 employes in that industry.
The next paragraph gave tho corresponding right to the employes by permitting that same 100 employes - or more - to register also as an organization, and so protect the right of tho workers in the industry, as against the employers.
In other words, where the employers were allowed to register, so were the employes
Later he said -
The special definition was not to discriminate between employers’ industries on the one hand, and employes’ industries on the other, leaving the public out of consideration, but it was to embrace all industries in which both could be said to participate in meeting the demands of the people of the Commonwealth.
His decision is the same as that of the Chief Justice and that of Mr. Justice Barton. I have read at length from these judgments, because it might appear to those who may read this debate that the High Court had given a decision that persons engaged in engine-driving were not engaged in an industry. They decided that the men were engaged in varying industries in the particular case before them. They decided that the men could not be regarded as a grouped body in connexion with “ an industry “ as the term is used in, and for the purposes of, the Conciliation and Arbitration Act. As Mr. Justice Isaacs said, he had no doubt that we have the power under paragraph 35 of section 51 of the Constitution to enable such bodies to form associations, to organize and to register; but the rea question which the High Court was determining was whether this Parliament, in 1904 did exercise its power to enable* such an association to register and obtain the benefit of the Act. He, like Mr. Justice Barton and the Chief Justice, held that, in the exercise of our legislative powers in the Arbitration Act in 1904, we did not go so far, and he was compelled, as they were compelled, to hold that the association was not an organization in relation to “ an industry “ as provided for in that Act. They did not decide baldly that the men were not engaged in industry, but in “an industry” defined and provided for by the Act.
– A consistent following of that would mean that it would be necessary to have an association for every separate industry in the land.
– I am not dealing with that question, but with what the High Court decided. I think, when a statement is made of the kind which was delivered here this afternoon, it is due to the Justices of the High Court that some little time should be given, as I am glad to see members of the Senate are giving me, to put, even though it be only in the form of extracts, some presentation of the facta from their point of view. Reference has been made to the Tramways case. I will only refer to the case for the purpose of showing how, I think, our efforts, so far as portion of an important clause of this Bill is concerned, will be futile. I do not think that anything we may put into the Act to prevent the High Court from exercising its jurisdiction of prohibition will have any effect whatever. The High Court derives its authority from the Constitution. The Judicature is dealt with in chapter III., sections 71 to 80, both inclusive. Section 71 reads -
The judicial power of the Commonwealth–
As I said before, there must be the three powers - the Executive, the Legislature, and the Judiciary - and the Constitution provides for each of the three. The Legislature does not establish the High Court, but the Constitution does.
– Who has the defining of what is the High Court?
– The Constitution defines the High Court as it defines the Parliament.
– Will you please read the section of the Constitution which says how many Justices shall constitute the High Court?
– That is not the definition of the High Court. The honorable senator is talking of personnel.
– That is so far as this Bill is concerned, anyway.
– Section 71 reads -
The judicial power of the Commonwealth shall he vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other Courts as it invests with Federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.
The High Court is provided for by the Constitution. Once the Commonwealth is established it has a Legislature: it has an Executive, and it must have a Judiciary. The Constitution provides for the Judiciary, just as the Parliamentis provided for. The Judges’ appointment, tenure, and remuneration are provided for in section 72. The appellate jurisdiction of the High Court is dealt with in section 73, which reads -
The High Court shall have jurisdiction, with such exceptions, and subject to such regulations, as the Parliament prescribes, to hear and determine appeals from all judgments, de- crees, orders, and sentences- of various Courts. Then there is a provision for an appeal to the Queen in Council, and next comes the important section for the purposes of this Bill, namely, section 75. This confers the jurisdiction that no Parliament can affect.
In all matters -
Arising under any treaty;
Affecting Consuls or other representatives of other countries;
In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
Between States, or between residents of different States, or between a State and a resident of another State;
In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth ; the High Court shall have original jurisdiction.
That is not, so far as this Parliament is concerned, statutory jurisdiction. It is jurisdiction in a sense inherent in the High Court from the moment that it is constituted. Even if there was no Judiciary Act, directly the High Court was constituted under section 72, without any action on the part of this Legislature or of the Bench itself, it has attached to it immediate jurisdiction in mandamus, prohibition, or injunction against an officer of the Commonwealth. That jurisdiction is absolutely original, and analogous to the inherent jurisdiction of the Courts in the Old Country, which have not derived their existence from any statutory authority. It is a Court created by a Statute of the Imperial Parliament itself - the Commonwealth Constitution. Matters affecting its personnel are dealt with locally, but the moment the appointments are made its original jurisdiction attaches to ‘it. It was decided in the Tramways case No. 1 that original jurisdiction was conferred by section 75, sub-section 5, of the Constitution upon the High Court, to issue a prohibition to the President of the Commonwealth Court of Conciliation and Arbitration, and that section 31 of the Commonwealth Conciliation and Arbitration Act 1904-11, so far as it purported to take away from the High Court the power to issue prohibition in respect of an award or order of the Commonwealth Court of Conciliation and Arbitration, was invalid. That decision was given on 24th March last, and that is what I meant when I said, in reply to Senator Lynch, “ We have lived and learned.” The provisions in this Bill were put into the 1911 Act. The 1904 Act contained a provision making certain decisions unappealable, but the words prohibiting mandamus, prohibition, or injunction were not in that Act. They were put into the 1911 Act. As recently as 24th March of this year, we were reminded by the ruling of the High Court that its jurisdiction in relation to mandamus and prohibition is not, so far as this Parliament is concerned, statutory and derived from this Parliament, but original as expressed in the Constitution, and that nothing that this Parliament can do can alter it. Only the alteration of the Constitution can affect it. In the decision in the Tramways case, the Chief Justice ia reported, at page 59, vol. 18, Commonwealth Law Reports, 1914, Part I., as follows : -
In the case provided for by section 51 (xxxv) there are three limits: The subjectmatter of the legislation must be (1) a dispute, (2) an industrial dispute, (3) an industrial dispute extending beyond the limits of any one State. If it does not fall within these limits, the Parliament has no authority, and it is a mere truism to say that Parliament cannot confer on a Court of its creation authority to .deal with matters not within its own power. … By the Commonwealth Conciliation and Arbitration Act 1904 it was provided (section 31) that no award of the Court should be challenged, appealed against, reviewed, quashed, or called in question in any other Court on any account whatever. The section stood thus when Whybrow’s case (1) was decided in 1010. In 1011 Parliament inserted the words “ or bc subject to prohibition or mandamus “ after “ called in question.” It is objected that the power to grant prohibition has now been taken away. The answer to that question depends upon the authority by which it was conferred. . . . In my opinion, the jurisdiction of the superior Courts in England to grant the common law writ of prohibition ‘ was original and not appellate jurisdiction. An examination of “ the origin and reason of the writ,” as well as “ the history of the procedures by which it has at different times been enforced,” to use the words of Brett, J., in Worthington v. Jeffries (2), seems to put this beyond controversy.
– Order ! There is a continual buzz of voices from the gallery, which makes it almost impossible for me to hear the honorable senator. Unless the interruption ceases, I shall order the gallery to be cleared. Conversations carried on in the galleries not only interfere with the proper conduct of business in the Senate, but are also unseemly to a degree.
– The Chief Justice, proceeding in that strain, from history and legal learning, came to the conclusion that-
Section 75 (v) confers upon the High Court original jurisdiction in all matters in which a writ of mandamus or prohibition, or an injunction, is sought against an officer of the Commonwealth, lt is urged that the word “ officer “ does not include judicial officers pro perly so-called, but only officers who, although not judicial, exercise judicial functions.” So it was held by the High Court, Mr. Justice Barton concurring, that the attempt on the part of Parliament, by legislation, to prevent the decision of the Arbitration Court being the subject of prohibition by the High Court was futile; because the jurisdiction of the High Court to grant mandamus or prohibition arose, not from any Commonwealth statutory authority, but from section 75 (v.) of the Constitution conferring original jurisdiction on the High Court, in all matters in which a writ of mandamus, or prohibition, or injunction, was sought against an officer of the Commonwealth.
– Would prohibition lie against an officer of a Court having original jurisdiction ?
– The Arbitration Court is one of the Courts created by tho Commonwealth Parliament, and all Courts of the Commonwealth, so far as the High Court is concerned, are subject to prohibition in regard to the exercise of jurisdiction. I do not know whether it .is intended by this Bill to endeavour to overcome the difficulty that the honorable senator suggests, but it is provided that the question whether there is a dispute may be determined by application to the High Court. The language of proposed new section 21aa is -
When an alleged industrial dispute is sub mitted to the Court . . . any party to the proceeding, or the Registrar, may apply to the High Court for a decision on the question whether the dispute or any part thereof exists, or is threatened, or impending, or probable, sis an industrial dispute extending beyond the limits of any one State . . .
– What is the object of that?
– I sympathize entirely with the object, and if it can he effected I shall be very pleased to do anything that will help, but the application has to be made to the High Court, which “shall have jurisdiction to hear and determine the question.” It is also provided that “ jurisdiction under this section may be exercised by any Justice of the High Court.”
– Can it vest in any Judge ?
– We can vest tha jurisdiction where we like, but the question is whether, when the Judge has exercised his jurisdiction, his decision is appealable. We say it shall not be appealable, but -whether or not the High Court can exercise in its original jurisdiction powers of prohibition in respect of that decision is a matter that is very much in doubt. I am inclined to think that the High Court would still have the power by a prohibition order to restrain proceedings upon a decision given by a single Justice. The argument used against that would nui in this way: “A single Justice is, for the purposes of this section, the High Court. The application in the terms of the section is made to the High Court. The High Court is invested with jurisdiction to decide the application, and in the exercise of that jurisdiction a single Justice may be the High Court.” There is, at the very best, a considerable amount of doubt as to whether, by framing our legislation in this form, we can substantially effect what the High Court decided on the 24th March last that we did not effect.
– And on many other occasions. It would be too much to expect that this would get over the difficulty.
– I have tried to reason the matter out dispassionately, and do not purpose to deal at any greater length with the implied reflections made by interjection upon the High Court. We have our powers; the High Court has its jurisdiction, its duties, and its responsibilities, just as this Parliament has. I should be very sorry to see a state of affairs established which would generate in the minds of the public at large the idea that there was friction between two such important bodies, both established by the Constitution. I have had a considerable amount of practice in reading judgments, and have read the decisions of the High Court extensively, but have seen nothing in them which would in the slightest suggest to a dispassionate observer that the High Court was desirous of aggrandizing itself or belittling this Parliament. On every occasion that it has had to interpret the will of this Parliament as expressed in Statute form it has gone into the most careful analysis of the Statute, and, so far as I can see, has exercised its jurisdiction in accordance with the highest traditions of such tribunals throughout the world. It is- a
Court whose decisions on all matters are justly and properly held in the highest esteem and regard, not only within Australia, but far beyond our shores.
– The effect has been toextend its own powers and contract those of the Parliament.
– It cannot extend its own powers and cannot contract the powers of this Parliament. We cannot extend our own powers and cannot contract the powers of the High Court.
– Who is to decide those points?
– Those arefacts. The Court cannot go beyond its own powers. There is even a Court behind it - the Privy Council-
– It is the last Court of appeal in many things.
– Why should my honorable friend reflect on this tribunal? He made a statement this afternoon in regard to its decision in the Enginedrivers case which was absolutely incorrect, and which, read by anybody outside in cold print, as it will appear in Hansard, would be calculated to convey the impression that this tribunal had given a decision which was repugnant to common sense.
– The honorable senator ought to give chapter and verse whenhe quotes like that.
– I have done so. The honorable senator’s statement would! lead people to believe that the occupantsof the High Court Bench, so far from possessing legal and judicial attainments, were absolutely destitute of common sense.
– If the honorablesenator’s statement is correct, how doeshe account for the difference of opinions which exists amongst members of the High Court Bench themselves ?
– Upon these matters there will be a difference of opinion.. Al] persons 4o not think and reason alike. The very fact that there has been, a difference of opinion amongst the Justices of our High Court is one of its greatest merits.
– Then why accuseSenator Lynch ?
– I said that Senator Lynch stated this afternoon that tha High Court had given a decision which; was an offence to the most elementarycommon sense. I have already pointed out that tha Court did not say that the engine-drivers were not engaged in an industry, but that they were npt engaged in “an industry “ as defined by the Arbitration Act. But Senator Lynch stated that the Court had held that the engine.drivers were not engaged in an industry; and many persons outside would interpret : such a judgment, if given, as not only an offence to common sense, but as an insult and a reflection upon their calling. I defy the honorable senator to show that the High Court has been guilty of such an insulting reflection on an honorable calling.
– My own opinion has keen sustained by at least one Justice of the High Court.
– I say again that aao member of the High Court Bench affirmed that the engine-drivers were not engaged in industry. The Court merely declared that they were not engaged in “an industry “ as defined by the Conciliation and Arbitration Act. I am sorry to have occupied the attention of honorable senators so long, but I felt called upon to put the position of the other side. T say again that any efforts put forward in this Parliament to simplify our arbitration law, to make our Courts of Conciliation and Arbitration more accessible to litigants, and to have the issues placed “before it decided as early and as satisfactorily as possible, will receive my whole-hearted support. But I fear that the results which will follow from the passing of this Bill will not be of such a beneficent character as the framers anticipate.
Debate (on motion by Senator de Largie) adjourned.
Senate adjourned at 6.16 p.m.
Cite as: Australia, Senate, Debates, 2 December 1914, viewed 22 October 2017, <http://historichansard.net/senate/1914/19141202_SENATE_6_75/>.