Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Friday, 3 November 1911


Senator McGREGOR (South Australia) (Vice-President of the Executive Council) -

That this Bill be now read a second time.

I do not think that the history of any piece of legislation could be more interesting than that of the Conciliation and

Arbitration legislation which has been attempted in Australia. Almost since the inception of the Commonwealth an effort has been made by the members of the Labour party to bring into existence laws which would have the effect of permanently settling industrial disputes arising in Australia. But, although everything has been done by the members of that party to make the legislation as perfect as possible, through the persistent opposition of certain representatives of the people, both in the House of Representatives and in the Senate, it has been found to be so imperfect that effect cannot be given to the best intentions of its framers and its supporters. I might also say that, to a very considerable extent, the effectiveness of this legislation has been hampered by the Constitution itself, and by the limited interpretation which has been put on the Constitution by the Judges of the High Court. I have no desire, nor does any one on this side I am sure desire, to reflect in the slightest degree on the Judges of the High Court. They have a perfect right to interpret a law of the Commonwealth as it presents itself to them; and they have done so, although in many instances their interpretations appear to be strained in the direction of limiting the powers of this Parliament as far as the Constitution is concerned.


Senator St Ledger - Is that a fair comment on the Court?


Senator McGREGOR - Yes.


Senator St Ledger - I think not.


Senator McGREGOR - I think it is.


Senator Millen - To say that the Judges strain the Constitution?


Senator McGREGOR - If Senator St. Ledger was a Judge of the High Court, and interpreted the Constitution in a direction contrary to that in which I would interpret it, I would have a perfect right to : say so. My statement would be no reflection on the honorable senator. It might even be a reflection on myself, showing that my horizon was less extensive - if it were not even more extensive - than his. That is all that could be said, and I have no desire to say any more with respect to the Judges of the High Court. My honest opinion is that they do their duty fearlessly and conscientiously.


Senator Millen - And yet you say that they have strained the Constitution.


Senator McGREGOR - I am not going to admit that their interpretation of the Constitution is the " be all and end all " of the wisdom and knowledge of the world. I have as much right to my opinion as has any one of the Judges,, and Senator St. Ledger has the same right to his opinion. But be that as it may, it has been apparent to every one that the interpretations placed on the Constitution in respect to legislation passed by this Parliament have limited its powers as far as they could possibly be limited. There is no denying that. In the interpretation of a law, when it is not a question of fact, a good deal depends upon those who have to give the interpretation and the point of view from which they look at the law. I submit, in all sincerity, that any person has a right to criticise these interpretations, and yet admit the honesty of those who give them. This is not the first attempt which has been made, and successfully made, to widen the scope of the Conciliation and Arbitration Act. The necessity for it is to be found in interpretations of the Constitution by the High Court in connexion with industries and bodies of men organized in particular trades. Senator St. Ledger cannot deny this proposition if he looks at the Bill, and takes into consideration what has transpired. I may refer particularly to the engine-drivers' organization. A case was taken by them before the Conciliation and Arbitration Court : a decision was given there, and then it was upset by the High Court on the technical ground that, although this may be an organization, yet since its members are distributed in various industries throughout the Commonwealth they have to apply for redress, not through their own body, but through the particular industry in which they are employed. For example, an engine-driver is employed in a soap works at Footscray, , or other suburb of Melbourne, or in any city of the Commonwealth, and the engine-drivers of Australia apply to the Arbitration Court, and obtain, an award which is appealed from. According to the decision of the High Court they can only make a claim through the industry with which they are connected ; that is, the engine-drivers employed in soap works can only get an award in connection with the soap industry. To my mind, a more ridiculous position to. put an organization in could not be imagined, much less expressed. An engine-driver may work in a saw-mill or a tannery, but common sense would suggest that his case should be dealt with in connexion with the organization of engine-drivers, and not in connexion with saw-mills or 'tanneries. I am sure that Senator St. Ledger must admit that. The object of this measure is to make it clear that the organization of the craft is the principal consideration, and not the organization of a particular industry in which many individuals belonging to different organizations or crafts are employed. I could give numberless instances. Suppose that, we take a body of men which has been pretty well canvassed throughout Australia for some time. The United Labourers Union . appealed to the Arbitration Court for the redress of some grievances, either real or imaginary. I am not going to maintain that all the claims which are made by my fellow workers throughout Australia are most reasonable - although they generally are - because sometimes they may make a mistake, as the best and wisest people in "the world do. Suppose that the United Labourers Union of Australia applied to the Arbitration Court, and it was found that some members of that organization were working at buildings, some at navvying, some at fruit-picking, and some at onerhundred-and-one other callings, in which an ordinary labourer is - entitled to work; and that, after a decision had been given by that Court, in favour of the organization, the High Court turned round and -said, " No ; these men can only claim what they are asking through the fruitpickers' industry, or the saw-mill ' industry, or' the ' builders' industry, or a navvy -organization!" Cannot the ridiculousness of . 'the' position be discerned at once?


Senator St Ledger - But that arises out' pf the. Constitution, or the Act, or out of both; but not out of the High Court.


Senator McGREGOR - It may apply to the Constitution, or the interpretation which is . placed upon it, or it may apply to the Act. or the interpretation which, is placed upon it. It does not matter whether the case is reasonable or unreasonable. As far as the High Court is concerned, it is the interpretation which decides whether a member of a craft can obtain redress through the organization of that craft. In every case which has been tried, little technicalities of this description have crept in; and the High Court has taken advantage of them to defeat what I would consider to be the humane and just decisions of the Arbitration Court.


Senator St Ledger - Is not that distinctly unfair comment' on the High Court?


Senator McGREGOR - I am not saying that it is done with the intention of doing an injustice to anybody, but advantage hasbeen taken of technicalities to defeat attempts to obtain redress of grievances or what have been proved to be clear cases of injustice.


Senator Millen - Do you say that the High Court purposely takes advantage of technicalities ?


Senator McGREGOR - I did not sayso. The honorable senator is very fond of putting words into my mouth. I say that the High Court, in the discharge of its high duties, takes these technicalities into consideration, and gives its decision according to its interpretation of the Act or the Constitution and not according to the intentions of Parliament.


Senator Millen - Your phrase " taking advantage ' ' was unfortunate.


Senator McGREGOR - It may be unfortunate as far as the honorable senator is concerned, but I know how I feel ons this question, and I know how hundreds, nay thousands, of the workers throughout Australia feel on it. Where it is merely a point regarding the dotting of an " i " or the crossing of a " t " the interpretation has' invariably been given in the narrowest sense, and it has always gone against the best interests of the class who are creating all the wealth of Australia. No ohe candeny that. In connexion with almost everyone of these decisions, it has become necessary to appeal to Parliament to so frame the Conciliation and Arbitration Act that the interpretation should be giveii in the direction which Parliament intended, and' in the direction which the people of Australia intended when they agreed to that portion of the Constitution dealing with conciliation and arbitration.


Senator St Ledger - Is not that the very thing that the people refused by the referenda ?


Senator McGREGOR - No. I will tell' the honorable senator what occurred in connexion with the" referenda. The' Common-^ wealth Parliament appealed to the electors-' of Australia for unlimited powers with respect to industrial matters. What I may call mercenary ' newspapers and highly-paid1 political touts mystified the electors tosuch an extent that they' hardly knew what they were doing.


Senator St Ledger - That is rather rough on the' whole of the Labour party.


Senator McGREGOR - The Labour party has "no paid touts. It has no touts of any description. The members of the Labour party do not go round the country endeavouring to misrepresent anything ; they tell the truthj the whole truth, and nothing but the truth.


Senator Millen - You are misrepresenting things now.


Senator McGREGOR - I am endeavouring to put matters plainly and honestly, and the more honestly they are put the more dissatisfaction members of the Opposition exhibit. They do not like things to be put plainly and honestly.


Senator Millen - You are not using a single word in any of your sentences honestly.


Senator McGREGOR - They are all honest to my mind, and if they were not I would not use them. The principal object of the Bill is to enable the Conciliation and Arbitration Court to deal with industrial disputes whether they are disputes in existence, disputes in contemplation, or even possible disputes. That is provided in clauses 2 and 3 which amend section 4 of the principal Act. In section 4 of the principal Act many of the matters contained in the Act are defined. This Bill strikes out the reference to employers and employes, and by widening the definition of " industry " merely makes the Act refer to industrial matters, so that there can be no quibble as to whether a certain employer is in a certain position, or as to whether a certain body of employes occupy a certain position. If an industrial matter is referred to, then the decision of the Court will be final. I believe that is what honorable senators and the people really want. What we desire is that when a case is brought before the Conciliation and Arbitration Court it shall be dealt with on its merits, and that the issue shall not be decided upon some technicality that has little to do with the main -question. We believe that the amendments contained in clauses 2 and 3 will give the Conciliation and Arbitration Court a far better opportunity of bringing about the conditions in connexion with labour and employment which we desire than it has at the present time. I believe that honorable members on both sides of the Senate desire that industrial disputes shall be decided in a way that will tend to the best interests, not only of a section of the community, but of the whole of the people of Australia. I believe also that honorable senators opposite have the same desire, : but I think their want of experi ence in connexion with the great body of working people of Australia very often clouds their judgment as to what is necessary to set everything on a fair footing. The Bill makes many other amendments in the existing law in connexion with minor matters. I might occupy much of the time of honorable senators in going into the details of those amendments, but Committee is the proper place to deal with the details of any Bill. I confidently place the measure before the Senate, and hope that it will be passed very speedily. .

Debate (on motion by Senator Millen) adjourned.







Suggest corrections