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Friday, 6 August 1920


Mr BRENNAN (Batman) .- I hi,re to congratulate and even thank the honorable member for Perth (Mr. Fowler) for the spirited way in which he called attention to the grave disabilities under which the House has been forced to consider the very difficult problems involved in this Bill. I claim to have given a good deal of honest thought to what is involved, and I can candidly say that, the more I have studied it, the more I have become convinced that the operation of the Bill - if it is ever to be put into operation - is likely to lead to' something worse than confusion. It is to be greatly regretted that the Bill to amend the Arbitration Act, which it is proposed to present for the consideration of the House, was not on the table for the perusal of honorable members at least while this measure 'was being debated. I have had an opportunity only within the last few moments of seeing that Bill, and, of course, I have not been able to study it, while many other honorable members, probably, have not seen it at all. Although I regret the atmosphere created by the Prime Minister when he introduced the measure now under discussion - a carefully distilled atmosphere of acrimony and ill-will by reason of the harsh limitations placed upon debate - I "want to remark that if I could see a possibility of any real benefit being derived by the industrial community, or by the people of Australia generally, from the operation of this measure it would have my hearty support; and neither party considerations nor party animus would persuade me to oppose it. Apparently, the Bill is deemed to be within our constitutional powers, and, at all events, I do not propose, with the extremely limited time at my disposal, to attempt to discuss the constitutional aspect. A clause in the Bill points out, in effect, that where, but for this clause, the Bill might be deemed to be outside our constitutional powers, it shall be deemed to be within them. I take it that the object of that clause is to insure that where some parts of the

Bill may be found to be extra our constitutional powers, the intention of" Parliament is that the remaining parts of the measure may, if possible, be construed by the Courts as severable and within our powers.

It is proposed and hoped to operate this Bill through four different bodies. These are: Commonwealth councils, district councils, special tribunals, and local Boards. The Commonwealth council and district council may be said to occupy the relationship of parent to infant, or brother to sister - whichever simile honorable members prefer. They are two groups, namely, the Commonwealth council and district council, on the one hand, and the special tribunal and local Board on the other hand. The first mentioned are purely consultative and deliberative1 bodies. When honorable members examine the powers of the proposed Commonwealth council they will be amused at the purely academic kind of inquiry with which its members may entertain themselves. It does not seem to be out of place that they may be counted upon as having discharged their duties when they have entertained their friends at afternoon tea and at penny readings dealing in the most abstract and general way with any industrial subject whatever. They can have no power to effect anything, other than to deliberate and talk. The same reflections apply to the district councils. It is true, of course, that their members will be presided over by officers - we may presume, highly paid; and it is true also that these councils will have power to summon witnesses. In that respect, by the way, they may possess drastic means of punishment. It appears that they are to be given wide capacity for disturbing the community, but will have no power to either prevent or settle industrial disputes. The position regarding the special tribunals and local Boards is different. I desire to call attention to some peculiarities about these bodies. First, I will take the lesser of the two in order to reduce the position ultimately to a consideration of the special tribunals. The local Boards, like the special tribunals, will have the powers of an Arbitration Court. Presumably they are intended, as their name implies, to operate within narrow geographical limit - certainly within much narrower limits than any one State. It is to be assumed that they will be used to arrest industrial trouble at its inception, at any place or in any one States - wherever it may arise. The curious thing is that it seems to have been forgotten that the whole of this legislation - like the Arbitration Act itself - is restricted by the constitutional limitation that disputes cannot be dealt with other than industrial disputes extending beyond the limits of one State. Therefore, it appears to me that we are attempting the impossible when we set up a local body for the .purpose of dealing with a local dispute, seeing that it is not competent for the Commonwealth Parliament to legislate in respect of local disputes at all. Yet these local Boards are to be possessed of very great powers - powers almost as complete as those of the Commonwealth Arbitration Court itself. A dispute may be referred to them by the parties actually concerned. And, although they are, in a sense, the offspring of the special tribunals, it does not follow that they can only deal with a dispute referred to them by special tribunals, for the reason that they may be invoked direct by the parties to a dispute, without regard to the special tribunals at all. Although the local Boards will be subject to review by the special tribunals " in relation to which they have been appointed," it does not follow that they will have been appointed in relation to any special tribunal, because they may be called in aid - as I have just pointed out - by the parties themselves.


Mr Maxwell - According to the Bill, their appointment must be in relation to some special tribunal.


Mr BRENNAN - There are two means by which a dispute may be brought before a local Board. The trouble may be referred to it by the special tribunal, or by the parties themselves; and, apparently, therefore, they will be given jurisdiction, just as in the case of the special tribunal, to deal with the dispute in. the way and to the extent that the Commonwealth Arbitration Court could deal with it.

Since it will be quite impossible to attempt to address myself to the subject in the way I could have wished, I will confine myself to calling attention to the special tribunals which, apparently, will be the most important bodies brought into existence for dealing with crises as they arise. A special tribunal, although thought to have all the power of the Commonwealth Arbitration Court, will be under one conspicuous' disability; and that is that it will not possess the advantage conferred by the provisions of section 21aa of the Arbitration Act, which enables a High Court Judge to decide in advance whether there is a dispute extending beyond the limits of one State which dispute is proper for a decision by the Arbitration Court, or - in this case - by the special tribunal. Therefore, it may be that after the Commonwealth Council has considered a matter, and after the district Council has considered it, and after it has been deliberated upon by both special tribunal and local Board, it may be found that thedispute is not a dispute within the meaning of the Commonwealth Arbitration Act at all.

In regard to clause 17, which confers powers to vary awards, I have very little hope that the Judges of the present Arbitration Court will accept service under such terms. I do not believe they will undertake their duties under the conditions created by that clause. It sets up an impossible situation. A Judge will no sooner have made an award than it may be torpedoed by means of this provision.

I lodge my protest against the fact that this Bill - a most important, difficult, and intricate one - should be forced through as it is to be. I have the doubtful honour, in the absence of the honorable member for West Sydney (Mr. Ryan), to be the only member on this side of the House who can pretend to bring any special legal knowledge to bear upon the problem. I have tried to make some hurried observations where I would have preferred to speak at length. However, I am not permitted to do so. I would like to have supported the Bill if I could see that it would be of any use to the country. I think the Arbitration Act could be amended in a direction which should make of it a very useful instrument. Without amendment it does all that this Bill can do. The Bill provides for compulsory conferences. So does the Act.

The Bill provides for local Councils and district Boards. The Act provides for Boards of Reference. The Government should give the Act facilities to function, and not destroy it. I cannot resist the conclusion that the Prime Minister and the Government, and particularly that wing of the National party which is not Labour, having no confidence in the Arbitration Act and no sympathy with its operations, have decided to use this indirect method of ending it.







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