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Thursday, 24 November 1927


Mr SCULLIN (Yarra) (7:52 AM) .Like the Leader of the Opposition, I am reluctant to speak concerning the judiciary, because we must endeavour to maintain public confidence in our judges. I. do not intend to discuss the details of the appointment. 1 have no quarrel with Judge Drake-Brockman personally, but although the Attorney-General spoke of his outstanding ability and suitability for his position, it was apparent that the Minister had given no evidence of it. My only reason for speaking on this matter is that I am a believer in arbitration. I consider that it has succeeded largely in this country, and has prevented many disputes that might have been responsible for great loss. T believe that industrial disputes should be settled by arbitration instead of by the brutal method of the strike or lock-out. No doubt there are times when a trial of strength is unavoidable; but we cannot make criminals of men who refuse to sell their labour at any price offered. The man who tells us that industrial disputes should always be settled by arbitration would probably be one of the first to take the law into his own hands in certain circumstances. In some cases the ordinary processes of law go by the board, and manhood comes into consideration. I tell the Attorney-General that his action, and that of his Government, whether good or bad, will strike a severe blow at the principle of arbitration in Australia. Whether all that the judge said was true or not, the fact remains that the associations of his life, industrially and politically, have been antilabour, and the Arbitration Court will practically break down .when men lose confidence in those appointed to the bench. I do not say that political service should disqualify one for appointment to the judiciary. I remember a gentleman who served with distinction to himself and satisfaction to the people, both in the political arena and in the Arbitration Court; I refer to Mr. Justice Higgins, than whom no greater man has appeared in both the public life and the judiciary of this country. The Government appointed three other judges io the Arbitration Court, and while I do not intend to throw bouquets at them, and say that they have done much to preserve industrial peace, it can be said that they, at least, have possessed splendid qualifications as lawyers. But I had seen no evidence of much legal experience in Judge DrakeBrockman before his appointment. If the Government had chosen a man who had been opposed to us politically, or with outstanding legal qualifications, that would have lifted the appointment above the suspicion of being a party one ; but as this judge has established no reputation as a practising lawyer, and was a ruling spirit in the Employers' Federation, the appointment has created distrust among the very men. whom we wish to come to the Court in order to make it a success. If the unionists of this country said to-morrow that they would have nothing to do with arbitration, the Government could pass all the crime laws that it chose and yet could not force them to accept the decisions of the Court.


Mr A GREEN (KALGOORLIE, WESTERN AUSTRALIA) - A man cannot be made to work ifhe does not want to do so.


Mr SCULLIN - That is so. We can- not make people continue in business unless it suits them to do so, and, similarly a workman cannot be forced to sell his labour at a price to which he objects. We must endeavour to set up tribunals that will win the confidence of both sides; but it will not be done by appointments such as this. I join with the Leader of the Opposition in the hope that cases of this kind will not again come under notice. The honorable gentleman referred to the appointment of conciliation officers who had had no judicial training. I submit that judicial training is not an essential qualification for a conciliation officer. I am not satisfied that he has established the claim that partisanship was displayed in relation to some of the appointments to which he referred. Even if he has, he thus accuses himself. There has been too much proneness to refer to what has been done by others. Surely this Parliament should mark out its own road without reference to what has been done in other places. I make no personal reflection upon the man who was appointed to this position, but I regret the appointment because the effect of it is to weaken the confidence of the mass of the workers in the Arbitration Court. I fear that the day is not far distant when that court will be spurned by the men to whom we look for the preservation of industrial peace. Let us appoint men in whom the workers will have confidence. Arbitration will then be made all that it should be. I shall not attempt to discuss the Mount Lyell case, to which the Attorney-General has referred. His remarks were based upon what he read in the newspapers.


Mr Latham - No. I sent for the file at the time. If the honorable member is sufficiently interested I can obtain it again and show it to him.


Mr SCULLIN - I am interested. My knowledge is based upon what I read in the Melbourne Age, which cannot be accused of partisanship. It confirmed the opinion which I held, that a stupendous blunder had been made.


Mr Latham - That was an altogether unjust criticism.


Mr SCULLIN - It was the opinion that I held at the time. The union officer had arrived from Tasmania only that day and had not had an opportunity to see any of the affidavits. He was obliged to proceed with the case immediately and during the preliminary remarks of counsel for the men, before one witness had been called in support of their case or in rebuttal of evidence that had been given against them by way of affidavit, the judge indicated clearly his opinion. That amounted to the pronouncing of a judgment. In effect he condemned the men and adjudged them guilty of the charge before he had heard one word of evidence on their behalf. That is an established fact, to which the only answer the Attorney-General has. made is that the judge was satisfied that Mr. Menzies knew he had no case and was only sparring for an opening so that he might walk out of court.


Mr Latham - Do not attribute to the judge what I have expressed as my own opinion. I said I thought that that was obvious. What the judge said was that he acted on the uncontradicted affidavits.


Mr SCULLIN -He acted on uncontradicted affidavits that had not been seen by either the counsel for the men or the person who was specially interested and who had arrived in Melbourne within a few hours of the hearing of the case and had had no opportunity to rebut the evidence that had been given against him. Any judge who knew his job would have said - "I shall wait until I hear some evidence before I find these men guilty of the charge." The attitude which he adopted must be considered in conjunction with his close association with employers as president of the Employers' Federation. That in itself would be sufficient to create distrust even if he were the fairest man living. The explanation of the Attorney-General regarding the manner in which Judge Drake-Brockman, before he went on the Bench, became president of the Employers' Federation was not convincing. He was not an employer of labour or associated with employers; he was acting only temporarily as an executor; yet his sympathies lay so strongly in the direction of the employers that he became the president of their federation.


Mr Latham - The explanation is that he was keenly anxious for the well-being of industry and the maintenance of good will between each section. That was the only way in which he could help, and he chose it.


Mr SCULLIN - I hope that that is the explanation. He has not, during the whole course of his life, done very much to bring about conciliation in industry. We rest our protest largely upon the fact that a man was appointed who had no outstanding qualificationsfor the position and who in public life, both political and industrial, held anti-labour opinions.


Mr Blakeley - And intensely conservative opinions at that.


Mr SCULLIN - The appointment has struck a severe blow at the whole principle of arbitration.







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