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Thursday, 21 May 1942


Mr BRENNAN (Batman) .- The ignorance of the honorable member for Moreton (M!r. Francis) as to the genesis of arbitration is understandable and even forgivable, but none the less calls for correction. While he was speaking, I was looking at the right honorable gentleman sitting alongside him. 1 refer to the right honorable member for North Sydney (Mr. Hughes). I can imagine him saying : " It is curious what the whirligig of time produces in political circles. It is strange that this neophyte and anti-Labourite should be standing alongside me to declare that the Labour party is sabotaging the principle of arbitration for which I, the right honorable member for North Sydney, as a leading member of that party, strove so hard and so valiantly for many years to inaugurate against the opinions and the eloquence of gentlemen of the same political outlook as the honorable member for Moreton ". I have been a member of this Parliament for many years and a Minister of the Crown for a relatively few years. I gratefully acknowledge that I was a Minister of the Crown by reason of the fact that gentlemen like the honorable member for Moreton had made a frontal, deliberate, and even cold-blooded attack upon the principle of arbitration. That was how and why the Labour Government of which I was a member for over two years came into being. The right honorable gentleman who does himself so little credit by sitting on the other side of the House to-day will recall that arbitration was introduced- into the Commonwealth Parliament by reason of the fact that " sweating" conditions then existed in industry and because the infant Labour party was able to get liberal and courageous spirits like the late Mr. Henry Bournes Higgins, who became a judge of the High Court in later years, and the then honorable member for Ballarat, Mr. Deakin, to assist it to put into operation the policy, not of the United Australia party, but of Labour.


Mr FRANCIS - That is the claim that is always made when some one else has done something worth while.


Mr BRENNAN - That is a short account of how the Conciliation and Arbitration Act became law, and of the part taken in regard to it by honorable gentlemen with the outlook of the honorable member for Moreton. They have accepted arbitration because they have bad no choice; but they have never, in fact, manifested' any sympathy with a policy which undermines untrammelled competition in employment, and consequently to that degree they have been consistent champions of " swea ting " and the right to " sweat ". I did not rehearse those observations as part of what I proposed to say. This motion by the right honorable member for Kooyong (Mr. Menzies) is for the disallowance of National Security (Employment of Women) "Regulations under Statutory Rules 1942, No. 146. As one would expect, we on this side have a comfortable feeling that whatever could be said against the regulations was well said by the right honorable gentleman, because he does know something about arbitration, its history and its application, and he has the distinction of occupying, by common consent, a position of eminence at the Victorian Bar. However, I oppose the motion, and I do so for the reasons so admirably stated, first by the Minister for Labour and National Service (Mr. Ward) and later by the Minister for Social Services (Mr. Holloway). Regulation 6 is as follows: -

Where an employer, because of a shortage or impending shortage of male labour, desires to employ females on work for which a rate of payment for mule employees has been determined by any industrial award, order, determination or agreement and for which a rate of payment for female employees less than the rate for male employees has not been so determined, the employer or an organization to which he belongs shall, before the employer employs female? on any such work at a rate of payment less than that so determined for male employees, make a.ri application to the board, getting out fully the nature of the work on which it is desired to employ females.

The regulations are to be administered by a board which shall be representative of employers and employees. The purpose of the regulations, as I understand them, is to disturb as little as possible the existing conditions of employment under determinations of wages boards and awards of arbitration courts, but to take such action as has been rendered necessary by the influx of female labour into war industries to prevent females from being exploited. For that reason the regulations prescribe that the board shall not fix wages at a rate less than 60 per cent., nor more than 100 per cent., of the male rate applicable to an industry. It would appear that one of the board's duties is to decide whether it has the right to deal with a particular case, that is to say, is it a case in which the rate for female employees, being less than that for male employees, has not, nevertheless, been fixed by any arbitration court award or determination of a wages board, or by agreement between the parties? The board is also to determine whether the particular occupation under review is one in which females should in any circumstances engage. It is particularly in regard to that aspect of the matter that I would refer an inquirer to the speech of the Minister for Social Services, who dealt with it in a very interesting and informative manner. The right, honorable member for Kooyong divided his argument into two parts, the less important and the more important, and he dealt with the less important part first. But when he came to deal with the mom important portion, it was obvious that his charge was not against the form, i»r structure, of the regulations, or their spirit, but against the personnel of the board. It was a charge that the regulations would be administered with bias and unfairness; that the choice of the personnel of the board had been dictated by political, and improper, considerations. That is a very serious charge, indeed, to make against Ministers; but in this case, I submit, a groundless charge so far as it refers to the regulations themselves. He mentioned th*; personnel of the 'board, dealing with it in detail, commencing with the gentleman who occupies the position of County Court Judge in Melbourne, Judge Foster. With reference to him, he used the extraordinary phrase that he was sure that, " Judge Foster would do his best to be impartial ". I want to know what the right honorable gentleman intended to convey by those words, unless he wished to convey that he had no great confidence that the judge would, in fact, though he would do his best, succeed in being impartial. Partial means that a man v; biased; that he is influenced less by the substantial merits of the case, than by a prejudice in favour of one of the parties to the issue that is being decided. It is psychological; and I feel, therefore, that a person who does his best to be impartial is either impartial, or he is not. Therefore, at would have been much more graceful, and, I think, much more accurate, to say that one had confidence 6'hat Judge Foster would be entirely impartial. Anybody who knows the history of the judge upon the Bench could hardly come to any other" conclusion, but that he would be entirely free from any kind of improper bias in favour of one side or the other. It has been said that Judge Foster was once a Labour candidate. I should like to say more about Judge Foster than that. I should like to say of him that he rendered great service over many years to the Labour movement ; that he was a loyal believer in Labour politics. And I could tell something to the Opposition that would strike even deeper horror in their bosoms than that he was a Labour candidate. I tell them that he stood his trial in the last war for certain words and actions which were considered to be detrimental to the war effort. His spirited and entirely successful defence on that occasion, far from lowering him, elevated him a great deal in my judgment. But that was many years ago. Since then he has achieved a position of distinction and honour on the Bench and hardly any one who is familiar with his work would venture to impugn it in any way on the ground of bias, than which no graver charge can be made against anybody occupying a judicial position. The more distinguished of the judges of the High Court were engaged in politics before they were elevated to the Bench. A gentleman who was Governor-General of Australia, and, I venture to say, our greatest GovernorGeneral, Sir Isaac Isaacs, and the late Mr. Henry Bournes Higgins, were both engaged in politics before their elevation to the bench. Neither of them was a member of the Labour party. Few judges have been actively associated with Labour politics. The greatest of them achieved fame before Labour was organized as a political party. Further, from time to time, the reigning executives would not touch a Labour man with " a 40-f t. pole ".

Mr. Wallis'sfitness as a representative of the employees on this tribunal is not questioned even by honorable members opposite. Consequently, they have concentrated their attention on Miss Cashman. The Minister for Labour and National Service knows the history of her appointment better than I do. I no not know anything about Miss C ashman. If she is famous as a Labour advocate, I commend her skill and ability; but I have no personal knowledge of her, and, therefore, I shall say nothing about her appointment, except that the fact that she was chosen for this responsible office by the Minister for Labour and National Service satisfies me that she is suitable for the office. In any case, the appointments made to this tribunal are not really germane to the issue as to whether the regulations should be disallowed. If bad appointments have been made, that is a proper matter for complaint; but it is not a matter in respect of which the regulations as such should be disallowed. When I interjected something to that effect when the Tight honorable member for Kooyong was speaking, he affected to misunderstand me, and asked whether I was submitting a point of order through the Chair to him. I was not. I was merely conveying to his receptive mind the fact that, under many excellent acts of parliament and regulations, appointments have to be made to important offices. Sometimes, the discretion is vested in a Minister, or a commissioner, or, as in this case, a board. If the Minister or the commissioner bo corrupt and dishonest, the law will be administered in an evil and onesided manner, and no good will come out of it. I do not admit that that is likely to be the case in this instance. I merely say that the various acts which have vested the discretion in a Minister, commissioner or board are not bad laws, and should not be repealed simply because they have been improperly or dishonestly administered. There is a good deal in the historic saying, "I do not care who makes the laws, so long as I have the authority to administer them ". Any law that is dishonestly or corruptly administered by a corrupt government will be a failure; but that is not to say that the Parliament which approved the law, or which has tolerated regulations, is in itself bad, and that the regulations should be disallowed. The remedy is to replace the persons who administer the law. I have not applauded all the regulations that the Government has promulgated. Many of them, I have openly condemned.







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