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Tuesday, 31 August 1920


Mr BLUNDELL (Adelaide) .- I move -

That the following new clause be added: - " 14. Section 27 of the principal Act is repealed and the following inserted in its stead : - ( 1. ) On the hearing or determination of an industrial dispute an organization may be represented by a member or officer of any organization, and any party not being an organization may be represented by an employee of that party. (2.) No legal practitioner, whether on the rolls or not, or solicitor's clerk, shall be allowed to appear before the Court, be heard, or attend the Court, in any hearing or determination of an industrial dispute.' "

I hope that my amendment will meet with a better reception than that accorded the amendment with which we have just dealt. In order that my position may not be misunderstood by my legal friends, let me say that, as a 'member of the State Parliament of South Australia, I availed myself of every opportunity to move to exclude members of the legal profession from the Conciliation and Arbitration Court. I recognise that in my proposed new clause I am making a most serious attack upon the strongest and most powerful trade union in the world. If it were carried, and resulted in a number of legal gentlemen being thrown out of work, I should be glad to assist the Government in establishing a bureau to find work for unemployed solicitors. I do not anticipate, however, that the exclusion of the legal profession from the Court would have that effect. We may trust the lawyers to look after themselves, and always to be able to earn a crust. I submit this amendment, in the first place, because I believe it essential to divest the Arbitration Court of any suggestion of the legal element. If I had my own way, even the President of the Court would not be a legal gentleman. My experience convinces me that the heavy expenses involved in approaching the Court constitute one of the gravest causes of dissatisfaction with the Court on the part of a great many of our trade unionists. Trade unions have made repeated efforts to reap the benefit of our industrial legislation. I remember one case in South Australia where the employees of the Tramway Trust attempted to register under the Act. A number of legal gentlemen appeared in the case; the application for registration was refused, and the asso ciation had to pay over £400 in respect of legal and other expenses. That is the sort of thing that creates among trade organizations a distrust of industrial legislation. Trade unionists are advised that the cheapest and most common-sense way of settling a dispute is to appeal to the Court. If they take that advice, with the result, which so often happens, that not only the accumulated funds of their organization are eaten up, but a special levy is made to provide for legal and other expenses, a sense of injustice is created, and an absolute distrust of industrial arbitration follows. In this way, their minds are prepared for the suggestion, which might be put to them very logically, that a lightning strike would at least cost no more than would an appeal to the Court, and that it might give them a better chance of securing a speedy verdict. Trade unions in South Australia are making levies every week to meet the legal expenses associated with an application to the Court, which involved the settlement of a question of interest to quite a number of unions. With all due respect to my legal friends, I find that lawyers appearing in the Court cannot refrain from putting before it the purely legal aspect of a dispute.


Mr Bell - Is that not necessary?


Mr BLUNDELL -No. If arbitration means anything, it means the coming together of the parties directly concerned, and the stating of their case by themselves, so that a settlement may be secured without reference to the dry and musty records of decisions given perhaps before we were born. In my experience I have known an Arbitration Court case argued for four or five days; and for this, I contend, there is no need; the simpler, easier and cheaper we make the administration of our arbitration laws the better for all concerned. I know that the Minister will say that section 27 of the Act really meets the position, because it leaves the appearance of legal gentlemen to thedecision of the parties concerned. That section provides that on the hearing and determination of any industrial dispute an organization may be represented by a member or officer, and any party not being an organization may be represented by an employer, but no party shall except by the consent of all parties be represented by counsel, solicitor or paid agent. There was a slight amendment made in that section in 1910, but it does not materially affect the principle laid down. Doubtless the Minister will contend that my proposal is unnecessary, because the matter is in the hands of the parties, but, despite that section, legal gentlemen do appear. Western Australia is the only place I know of where, under the conciliation and arbitration laws, legal representatives are absolutely excluded.


Mr Brennan - They cannot appear in the Commonwealth Court except with the consent of all concerned.


Mr BLUNDELL - That is true, but, still, the legal men get there; the members of the legal profession have a happy knack of getting to any place where there are fees to be earned. I am not so much concerned about the employers, who are very well able to look after themselves, but the employment of legal practitioners involves the workers in considerable expense. Men whose wages are not too high are called upon to find the means of protecting their interests, and to pay special levies for the purpose of meeting legal expenses. It is true that no legal men can appear if any of the parties object, but the circumstances are such that the men are given the idea that they get a better " deal " if they are employed. Even under the section of the Act the employers cannot be prevented from having the advice and assistance of legal gentlemen. In cases in which it is decided there shall be no legal men, it is true that no lawyer stands up and pleads openly, but a lawyer may sit immediately behind the representative of the employers, and every action and question in a particular case I remember was but an echo of the legal mind. That was in a case in which I was directly interested, and in which, in my simplicity, I thought the parties alone would fight the matter out. That sort of thing creates amongst the unionists a feeling of unrest, and they determine, in many cases, to have a lawyer, involving, as I say, considerable expense. In my opinion the wisest thing to do would be to insert a clause which would not allow the Judge to sit in any place that even looked like a Court. The moment the parties get into a place with a legal atmosphere a feeling of antagonism is raised between the parties, whereas a gathering, consisting entirely of - laymen directly interested, would prove a cheaper and better method of settlement. I have made it very clear in the clause I propose that no legal representative shall be allowed to sit behind the chair of the representative of either employer or employee. I tell honorable members quite frankly that the clause aims at the exclusion from the Court of all legal practitioners while, a case is on, for, otherwise, the lawyers cannot be prevented from giving their advice and assistance, with the effects I have indicated. That particular portion of my amendment is copied from Western Australian legislation, and represents a step towards the ideal of a gathering of laymen directly interested. I look to the Treasurer (Sir Joseph Cook) to vote with me on this occasion, because, on looking up the records, I find that when, that gentleman was a member of the" New South Wales Parliament, and an Arbitration Bill was before the House, he moved to the effect that no person connected with the legal profession should be allowed to be even the Judge in an Arbitration Court. That, of course, goes a good deal further than I propose; but I think I can look for the honorable gentleman's support. There is another phase which I might incidentally mention, and of which I ask the Minister to take note. A few days ago representatives of a particular calling were summoned by the Court from all over Australia to appear at the hearing of a case. In South Australia the union concerned was put to an expense of over £20 in order to send the secretary and representatives, and the employers also had to find a good deal of money to cover their expenses. The Committee will agree that it is a scandal that all these representatives and witnesses should be called together from all parts of the country, and, in ten minutes, told that they could go home again. I do not blame the legal profession for what took place on that occasion, and merely mention it incidentally, with a hope that the Minister will see that such a thing does not occur again. The clause I propose will result in great saving to the employees, and eventually be the means of making both parties recognise that it is better for them to settle their own disputes without the intervention of the legal profession.

Mr. GROOM(Darling Downs - Minister for Works and Railways [4.50]. - I ask the honorable member not to press his amendment, and I do so in the interests of the litigants in the Arbitration Court. The first part of the proposed new clause is now the law, and no party, except with the consent of all parties, may be represented by counsel, solicitor, or paid agent. If all parties desire to be represented by the legal profession, why should they not have the right to be so represented ? The honorable member for Adelaide (Mr. Blundell) proposes that the parties shall be deprived of legal assistance, even if they wish to have it.


Mr Brennan - He takes the view that industrialists are not compos mentis - that they " do not know their job."


Mr GROOM - I think they "know their job " pretty well. The peculiar point is that, while it is proposed to exclude lawyers, a number of men are permitted to appear who are just as keen as any lawyer in raising objections and prolonging cases by calling witnesses. I do not say that these men cause delays wilfully, but they have not the same knowledge or appreciation of the relevancy of evidence that legal practitioners have. Giving my own individual opinion. I think it was a mistake to prevent the Court from having the advantage of the assistance of counsel if desired. Lawyers, by their training and experience, have a knowledge of what is relevant and what is not relevant, and their employment would shorten the proceedings, more clearly define the questions to be decided, and, on the whole, make the administration much better. However, Parliament has taken a contrary view, and it is not now proposed to reverse it. In the interests of the parties concerned, however, I ask the Committee to retain the provision that by the consent of all parties counsel may appear. In cases where employers or employees are not trained advocates, and are devoid of experience, why should they not have assistance? Such men, we know, have not always the requisite ability to put cases clearly and concisely, and it would be monstrous to prevent an employer or any organization which felt itself deficient in this regard from obtaining the best assistance possible. To prevent them from employing legal representatives places such organizations at a disadvantage, and, even now, they cannot have them unless all parties consent.

The honorable member for Adelaide speaks of the great expense entailed by the employment of lawyers, but if he analyzes the balance-sheets he will find that all the money is not spent in that direction, but is mostly required for the payment of witnesses, and of persons moving about to obtain evidence. The honorable member for Hindmarsh mentioned a few days ago a heavy legal bill, the bulk of which, I understand, was represented by witnesses' fees. Even the costs of an ordinary common law action often consist mostly of Court fees, and witnesses' fees ; the remuneration for the profession often is relatively small. It would be very unjust to pass the amendment, and to prevent either party from getting, with mutual consent, the legal assistance it desires.







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