Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Wednesday, 1 September 1920


Mr RYAN (West Sydney) .- I do not propose to agree to the withdrawal of the new clause, nor do I agree altogether with the view expressed by the Prime Minister as to the effect of the recent judgment of the High Court of Australia. If it has the effect which the Prime Minister contends for, then he can surely have no possible objection to the acceptance of my amendment, which will make the matter abundantly clear. He says that if the High Court of Australia has decided that the Commonwealth Parliament has power to legislate in respect to industrial disputes with regard to State railway servants, then the power is contained in the existing Arbitration Act.. That is not free from doubt. . I should like to point out that it was upon the Act of 1904 that the railway servants' case was decided by the late Sir Samuel Griffith, the late Sir Edmund Barton, and the late Mr. Jus tice O'Connor. It is important to remember that the Act of 1904 contained these words in the definition of " industrial dispute" - " Industrial dispute " means a dispute in relation to industrial matters -

(a)   arising between an employer or an organization of employers on the one part, and an organization of employees on the other part, or

(b)   certified by theRegistrar as proper in the public interest to be dealt with by the Court - and extending beyond the limits of any one State, including disputes in relation to employment upon State railways, or to employment in industries carried on by or under the control of the Commonwealth or a State or any public authority constituted under the Commonwealth or a State.


Sir Robert Best - That is in the present Act.


Mr RYAN - The honorable member will excuse me, it is not in the present Act.


Sir Robert Best - Substantially it is.


Mr RYAN - It is not included substantially in the present Act. I invite the attention of the honorable member for Kooyong (Sir Robert Best) to the fact that, in the definition of disputes in the Actof 1904, there appeared these words -

Including disputes in relation to employment upon State railways, or to employment in industries carried onby or under the control of the Commonwealth or a State, or any public authority constituted under the Commonwealth or a State.

The Act of 1904 contained that second part of the definition of dispute as well as the first part referring to employment upon State railways.


Sir Robert Best - That is what I have said.


Mr RYAN - In the definition of disputes, in the Act of 1904, we find the words, " including disputes in relation to employment upon State Railways," which are not contained in the present Act.


Sir Robert Best - That is of no moment whatever, because those words are substantially included.


Mr RYAN - We heard a lot about lawyers in this House last evening, and now the honorable member for Kooyong, as a lawyer, tells us that, although the words I have quoted were in the Act of 1904, they were of no consequence.


Sir Robert Best - No.


Mr RYAN - Then why were they included in the Act?


Sir Robert Best - They are included in the definition of "industrial dispute " in the existing Act.


Mr RYAN - I invite the attention of the honorable member to the fact that the words I have quoted are in the 1904 Act, and they 'were specifically left out of the Act which was passed in 1910, and was introduced by the present Prime Minister (Mr. Hughes). In his secondreading speech on the Bill of 1910, the right honorable gentleman said -

The definition of " industrial dispute " is amended by omitting certain words, which exclude persons employed in agricultural, viticultural, horticultural, or dairying pursuits, and by remodelling the section so as to include " any threatened or impending or probable industrial dispute," and to exclude from persons employed by the Commonwealth or by a State those employed upon State railways.

That is quoted from the speech of the Prime Minister in 1910, and yet he tells us this evening that State railway servants are not excluded under the present Act.


Sir Robert Best - " The flowers that bloom in the spring have nothing to do with the case." What has that to do with the matter ? As a matter of law, the honorable member knows that it has nothing to do with it.


Mr RYAN - I think that I know just about as much law as does the honorable member for Kooyong (Sir Robert Best). I know that if the words which I propose are inserted in the Bill, there will be no doubt at ail about the matter, but if they are not inserted, I can see that there will be ample ground upon which the Court may hold that, by reason of the fact that those words were in the 1904 Act, and that Parliament deliberately took them out in 1910, and that Parliament deliberately rejected an amendment for their re-insertion in 1920, "it was obviously the intention of Parliament that the railway servants of the States should not be included. And, upon that, they may give a decision that, notwithstanding that the Commonwealth Parliament has the power to include them within the scope of the Commonwealth Conciliation and Arbitration legislation, it has deliberately expressed its intention not to include them; and, thus, they would uphold the view of the Treasurer (Sir Joseph Cook). The right honorable gentleman does not think that State railway employees are included. He has approached the question by assuming that there is power to include them ; but, he says, if there is that power he will not include them or be a party thereto. I can understand and appreciate that attitude ; it is, at least, honest. But the Prime Minister (Mr. Hughes), after having deliberately taken out those words from the 1904 Act - in the course of dealing with the Act of 1910 - now says those words are included if the High Court says there is power to include them.


Mr Brennan - The Prime Minister says they are either included or not included.


Mr RYAN - Yes, and that, whether they are or are not, he will not accept my proposition. I intend, however, that the railway employees of Australia shall have justice, so far as it is possible for this Parliament to confer justice upon them. And, if there is any quibbling about the inclusion of particular words, then it should be the objective of every . honorable member, as it is mine, to make his position clear. 1 do not want it afterwards to be said that honorable members, who are lawyers, as lawyers, deliberately left this Bill in such a form that the relief which should have been given to railway servants could not be given at all. Lawyer members of this Legislature should be more concerned than any others to see that the words of an Act are beyond any doubt. I desire to see that in respect of this particular piece of legislation; and the only way to do so is to secure the inclusion of specific words in such form that there shall be no doubt that we mean to embrace in our Statute the employees of the State railway services. Let us say either that we do or do not intend to include them.


Mr Maxwell - Why not include the State coal miners?


Mr RYAN - They do come in, under the existing definition, because theirs is an industry carried on by a State.


Mr Maxwell - I do not think the honorable member has looked at the definition of "industry" in the Act.


Mr RYAN - Then, let us look at the definition and see to it that the coal miners are provided for, if they are not already included.


Mr Maxwell - The honorable member will find the phrase, " Any undertaking."


Mr RYAN - If the coal-miners are not included I shall do all that is possible to have them included, and I hope the honorable member will do likewise.


Mr Maxwell - If the judgment of the High Court is as the honorable member says, then they are included now.


Mr RYAN - Then what is the honorable member troubling himself about, if they are included?


Mr Maxwell - What are you troubling yourself about?


Mr RYAN - I desire that there shall be no doubt whatever, and I want to prevent law suits, and great expense to the railway employees.


Mr Maxwell - There is no doubt.


Mr RYAN - The honorable member says so now; but if, at some later stage, the High Court of Australia were to give a judgment and say they are not included for the reason that the Federal Legislature did not trouble to insert words specifically including them, then I want the public to know exactly why such a situation arose, and, specifically, what happened. His Honour the late Chief Justice Sir Samuel Griffith, in delivering judgment on a preliminary point in the Railway Servants case, said -

The point arises under paragraph xxxv. of section 51 of the Constitution, under which the Commonwealth Parliament has powers to make laws with respect to " conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State," and section 4 of the Commonwealth Conciliation and Arbitration Act 1904, which defines an industrial dispute for the purposes of that Act, as " including disputes in relation to employment upon State railways."

The Chief Justice referred to those specific words, although other words were contained in the section which are still in the existing Act. He called attention to the fact that those words, ' ' including disputes in relation to employment upon State railways," were in the 1904 Act. For these reasons we should see that there is no doubt in the mind of anybody - layman or lawyer - concerning what we mean. We mean to include the employees of State railways, or we do not. Which do we mean ?


Mr Maxwell - The honorable member means to include the employees in every State instrumentality.


Mr RYAN - I mean to include, in addition to the words in the principal Act to-day, all State railway employees - as they were included in the 1904 Act.


Mr Maxwell - The honorable member cannot mention any class of State employee which is not included in this section.


Mr RYAN - Yes, I can; and there are some classes of State employees which we could not bring within the scope of our arbitration legislation, because I do not think the decision of the High Court goes so far as to enable this Parliament to legislate for conciliation and arbitration covering all State employees. Under the Act, they must be employees in an industry carried on by or under the control of the Commonwealth or a State, or any public authority constituted under the Commonwealth or a State.


Mr Groom - But what is the definition of " industry "?


Mr RYAN - " Industry " includes-

(a)   Any business, trade, manufacture, undertaking, or calling of employers on land or water;

(b)   any calling, service, employment, handicraft, or industrial occupation or avocation of employees on land or water; and

(c)   a branch of an industry and a group of industries.

Well, that does not carry us any further.


Sir Robert Best - Oh, does it not?


Mr RYAN - It does not carry us any further, so far as this particular matter is concerned. I have the honorable member for Fawkner (Mr. Maxwell) on my left, and the honorable member for Kooyong (Sir Robert Best) in front of me - trained lawyers, both - and they say that these words are unnecessary; the honorable member forFawkner, for the reason that railway employees are already in, and the honorable member for Kooyong, becausethey are already not in.


Sir Robert Best - I say they are already included.


Mr RYAN - Does the honorable member for Kooyong say that State railway employees are included?


Sir Robert Best - In the definition.


Mr RYAN - Under the jurisdiction of the Commonwealth Arbitration Court?


Sir Robert Best - If--


Mr RYAN - Cannot the honorable member say " yes," without any " if s " ?


Sir Robert Best - If the Court held yesterday that we have jurisdiction, then they are included; but, if not, then the honorable member's proposed new clause cannot include them.


Mr RYAN - Then why were the words included in the 1904 Act, in addition to the existing words? Does the honorable member for Fawkner say that those words were unnecessary in the 1904 Act?


Mr Maxwell - Yes.


Mr RYAN - Yet their Honours Mr. Justice Griffith, Mr. Justice Barton, and Mr. Justice O'Connor hinged their judgment on the fact that those words were there. Does the honorable member for Fawkner now say that the railways are an " industry " ?


Mr Maxwell - Yes, they are an industry within the meaning of the definition of "industry.'' Does the honorable member for West Sydney say that the railways are not a State undertaking?


Mr RYAN - Will the honorable member tell me what is his objection to the' insertion of the words included in my proposed new clause?


Mr Maxwell - I am always opposed to the introduction into an Act of unnecessary words.


Mr RYAN - But if they are merely unnecessary, what objection has the honorable member to their inclusion?


Mr Maxwell - If the honorable member desires to be consistent, he must enumerate every State undertaking.


Mr RYAN - No; for the reason that, as I have moved my amending clause, it leaves the definition as it was in the 1904 Act.


Mr Maxwell - What meaning does the honorable member attach to the words, " Any dispute in relation to employment in an industry carried on by or under the control of the Commonwealth or a State"?


Mr RYAN - I attach the plain meaning which is on the face of the words; but I would draw the attention of the honorable member to a rule of construction which is followed sometimes by Courts, namely, that if one finds that there are certain words in a Statute which are the subject-matter of judicial interpretation - as are these words which I have moved to re-insert in our legislation - and, subsequently, by an Act of Parliament, one were to take those words out of the Act, one would be assumed to be removing what was the subject-matter of the judicial decision, just as was done in 1910. The Prime Minister (Mr. Hughes) himself said, in 1910, that he was excluding railway servants.


Mr Maxwell - They were taken out in the light of the then judgment.


Mr RYAN - Then why were they taken out if they are still left in?The honorable member now says that they were still left in.


Mr Maxwell - No.


Sir JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) (Treasurer) - They were taken out in the light of the then referendum.


Mr RYAN - They were taken out, and the words that are now found in the principal Act were left in. Were the railway servants left in?


Mr Maxwell - No.


Mr RYAN - Then I want to put them in, and that is why I have moved as I have done.







Suggest corrections