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Friday, 27 August 1920

Mr BRENNAN (Batman) . - I hope the amendment of the honorable member for West Sydney (Mr. Ryan) will be agreed to by the Government on reflection, because it will bring the clause into complete harmony with what I give the Government credit for being at least their present intention. That is that, an award having been made, if facts or circumstances of any kind are brought before the responsible expert authority, and are thought by him on examination to be sufficient justification for varying or setting aside the award, he may do so. It will, no doubt, be contended that the amendment goes very far in that direction, and it is because it does go some distance in that direction that I ask the Government to be logical and to give effect to what apparently is their intention in this matter. It has been urged by the honorable member for Wakefield (Mr. Richard Foster) that, if we give to a dissatisfied party the right to approach the Court at any time to vary or set aside an award during its currency, we shall do something which will tend rather to unsettle than to stabilize industries.

Mr Richard Foster - No; you have misunderstood me. What I said was that we should not make such a concession without some reasonable limitation.

Mr BRENNAN - What more reasonable limitation could be put upon the power to vary awards than the condition that a Judge of the, High Court, appointed to consider these questions and. expert in considering them, must hold that a variation or setting aside should take place?

Mr Richard Foster - But I never believed in a Judge deciding matters of this kind alone. I have always believed in a Judge plus two assessors, one on each side, because those men possess a technical knowledge which the Judge does not.

Mr BRENNAN - I should like to meet and help the honorable member to have assessors appointed for that purpose. Under the Act the Judge already has power to call assessors in aid, but I am quite preprared to support the honorable member in any reasonable proposal to increase that power. I agree that it would be wise to support the Judge by expert opinion and assistance in regard to the particular industry, or its conditions, upon which he has to come to a determination; but that is not the point before the Committee. I ask the Minister to consider seriously what may happen under the clause as it stands. Assume that, taking advantage of the amendment which the Bill proposes to make in the principal Act, an organization of employers or employees, because what applies to one must logically apply to the other, approaches the Court and asks the Judge to vary or set aside an existing award. The Judge immediately turns to this section, and asks himself: "Have abnormal circumstances arisen which affect the fundamental justice of any of the terms of the award?" The honorable member for Fawkner (Mr. Maxwell) and the honorable member for Kooyong (Sir Robert Best) are apparently satisfied that that is a question of fact. I think it is a mixed question of fact and law. I should like my honorable friends opposite to remember that this Act is being administered by no less a person than a Judge of the High Court, and although some of their friends have" a good deal of suspicion regarding the present President of the Arbitration Court, which I do not share, they may find consolation in the reflection that he will not always be there. Honorable members opposite should not reflect, by these restrictive proposals, upon the High Court as a whole. It surely cannot be said that the High Court as a whole is unduly partial to the claims of the industrialists. I can well imagine a Judge of the High Court asking himself: " Are the circumstances which have arisen abnormal, and, if they are, do they affect the fundamental justice of the award?" I can see the possibility of the Judge saying : " There is a number of things about this award which make me feel inclined to abrogate some of its terms, but I hardly like to go the length of saying that abnormal circumstances have arisen which affect its fundamental justice. That point might be arguable."

Mr Maxwell - Would it meet your view to strike out " abnormal " and " fundamental?"

Mr BRENNAN - That might go a long way in the direction for which I am arguing, but why not leave the matter to the discretion of the competent tribunal created for the purpose of settling it? Why do the Government first indicate the principle which they think should govern these things, and then so restrict it by the wording as to make the application of the principle doubtful of fulfilment in a number of cases? Having set up this expert and highly-informed tribunal, we should be prepared to say: "If the Judge is satisfied upon the materials before him that the award should be varied or set aside, then let the Judge do it." I know there exists in the minds of some honorable members opposite the mistaken impression that organizations and their representatives find fun in creating disputes and going to Court and arguing these matters. No greater mistake could be made. It is safe to say that the less thev have of the Court and of litigation the better they like it. and the better it suits them, and the simpler that litigation is when they must have recourse to it, and the clearer the terms of the laws under which they appeal to the Court, the better for them and the better for the general public, lt may be a nice point, whether this is a question of fact or a question of law, but I can easilypicture the seven Judges of the High Court sitting and arguing whether a circumstance is abnormal, or whether it affects the fundamental justice of an award, however fundamental justice may differ from ordinary justice.

Mr Richard Foster - Do you not think that, with a lay mind on each side, the Court would quickly arrive at a proper solution, and give more confidence outside?

Mr BRENNAN - Probably, but I do not think that affects the point with which I am dealing. I would welcome anything the honorable member could do in that direction, and assist him to do it. I ask the Minister -not to insist upon the form of words used in the Bill, which, on the face of them, are likely to lead to protracted litigation and discussion. I only ask that the matter should be left to the judgment of the authority who is created for that purpose. I hope the honorable member for West Sydney (Mr. Ryan) will stand by the amendment, and I am not without hope that the Minister may see his way to accept it. We are making a most reasonable request, and I think the Minister ought to accede to it.

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