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Tuesday, 22 June 1926


Senator PEARCE (Western Australia) (Vice-President of the Executive Council) .- I move-

That the bill be now read a second time.

This measure does not embody the entire policy of the Government in respect to industrial arbitration. The Government is, of course, delaying the introduction of such a bill until a vote has been taken on the referendum proposals, when further amending legislation will be brought before Parliament. The object of this measure is merely to amend the Commonwealth Conciliation and Arbitration Act, under the powers vested in the Parliament by the Constitution as it stands. The court now consists of the president - Mr. Justice Powers - and two deputy presidents - Sir John Quick and Mr. Webb. The president is resigning at the end of June, and the terms of the president and deputy presidents expire on the 30th instant. It is necessary, therefore, to make provision for the continuance of the court. Further, it is desired to take the opportunity to improve the constitution of the court, to extend its jurisdiction, and to strengthen its powers in certain directions. I could supply honorable senators with a list of the cases with which the court has had to deal, but I shall content myself by saying that they are more numerous than the general public is aware. There is, however, one phase of the court's activities that I should like to mention in view of certain statements made in the Senate during the discussion of another measure. There have been 41 compulsory conferences held, and 42 agreements, settling disputes, filed in the court under section 24 of the act. In addition, the court has, on occasions, by special request, settled industrial disputes other than those of an interstate character. Boards of reference appointed under awards of the court have dealt with 277 matters during the year. The employees affected by the awards of the court number. 330,000. In view of these figures the court is freely availed of, and its foundation is firmly established.

The necessity for extending the powers of the court has been fully discussed in the. recent debates. The impossibility of separate States dealing effectively with certain disputes has been universally admitted, and if we are to secure industrial peace through the medium of the law, there must be some means of settling certain disputes on a Federal basis. As I have said, the bill does not provide for anything like a complete treatment of the subject. It is really designed to deal only with the period intervening between the 30th June and the time when the proposed constitutional amendments have been voted on by the people. The Government, therefore, does not propose at present to introduce an elaborate and carefully worked out scheme for the settlement of disputes upon the basis of our present limited powers. If the industrial powers to be sought are extended, it will be possible to introduce an improved scheme providing for a common rule, and means of settling industrial disputes other than those provided under the Arbitration Act. The existing Arbitration Court can be continued, its powers extended, and other means of determining industrial differences considered. This measure, therefore, is only to provide for the continuance of the court with some immediate improvement in its jurisdiction and status.

The subjects with which the bill deals may be stated generally as follows : - It confers full judicial power not now conferred upon the Arbitration Court. In order to effect this change the bill provides for a life tenure of office, pensions to the judges, means for obtaining general decisions which would apply to any of tho awards of the court, and would be followed by the judges on all matters such as those affecting .the basic wage or the standard hours of industry. It also provides for the continuance of 'partheard matters now before the President and Deputy Presidents. As explained during the discussion on the referendum bills, the absence of judicial power affects the authority of the Arbitration Court to enforce its awards. Section 71 of the Constitution provides that .the judicial power of the Commonwealth shall be vested in the High Court, and in such other Federal courts as it invests with Federal jurisdiction. " Other courts " means State courts, which this Parliament may invest with Federal jurisdiction. Section 72 of the Constitution provides that the justices of the High Court and of the other courts created by Parliament shall be appointed by the GovernorGeneral in Council, and shall not be removed except by the GovernorGeneral in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of misbehaviour or incapacity. The meaning of section 72 has been considered by the High Court in a case that is generally referred to as Alexander's case, which honorable senators will find reported in 25 C.L.R., page 434. In that case it was held that sub-section 2 of section 72 provided that Federal judges must have a life tenure of office. The Commonwealth Conciliation and Arbitration Act provides that the President of the Arbitration Court shall have a te.nure of office of seven years, and that the Deputy Presidents shall have a tenure fixed by the Governor-General in Council. Although the President of the Arbitration Court, in his capacity as a judge of the High Court, is appointed for life, he and the Deputy Presidents of the Arbitration Court are only appointed for a limited period in relation .to arbitration jurisdiction, and they are, therefore, incompetent in that jurisdiction to exercise the judicial power of the Commonwealth. Judicial power includes at least the power to decide whether the law has been broken, and the power to impose penalties for breaches of the law. It was held in Alexander's case that the Arbitration Court had no power to impose penalties for any breach of its awards or orders. The court has imposed no fine for several years. Matters involving breaches of awards and contraventions of the act have been dealt with by police magistrates. Indeed, both sides in industry have expressed doubts as to whether it is desirable that a court, relatively unfamiliar with industrial matters, such as a magistrate's court, must necessarily be, should, in practice, have power to impose penalties in respect of breaches of awards. It is generally agreed on both sides that these matters should be dealt with by the Arbitration Court itself. In another case, commonly known as the Waterside Workers' case, the reference to which is 34 C.L.R., page 4S2, it was held that the power sought to be conferred upon the Arbitration Court by section 38 of the Conciliation and Arbitration Act to interpret its own awards was inoperative, in so far as it was a judicial power. A magistrate's court, because of the defect of judicial power, is not bound by the interpretation that has been made by the Arbitration Court; it accordingly gives its own interpretation. The interpretation may differ from that of the Arbitration Court. An improvement in this respect is desirable, and this will be corrected by conferring judicial power on the Arbitration Court. It is no longer proposed to appoint High Court judges to the Arbitration Court. The Court of Conciliation and Arbitration will be entirely distinct from the High Court. The provision that the President of the Arbitration Court must be a High Court judge will, therefore, be repealed. There are various reasons which render it advisable to have the two jurisdictions entirely distinct from each other. Serious inconvenience of a practical nature now arises from time to time, because it is necessary to enlist the services of the President of the Arbitration Court to constitute a full bench of the High Court. Again, the President of the Arbitration Court, as a judge of the High Court, has on very many occasions to pronounce upon the validity of a procedure that he has adopted as President.


Senator Elliott - "Will there be an appeal to the High Court on certain subjects ?


Senator PEARCE - The members of the Arbitration Court will be Federal judges, but not High Court judges. It is not proposed to allow an appeal from the Arbitration Court to the High Court, but the Arbitration Court will be able to state a case for the High Court. That is provided for in section 21aa, and also in the Judiciary Act.


Senator Elliott - Supposing they refuse to state a case ?


Senator PEARCE - In such cases there can be no appeal. In clauses 4 and 5 of ' the bill it is made clear that Parliament intends the new judges to have all the powers that were sought to be confererd oh the court by preceding legislation. The title " President " is to be changed to " Chief Judge," and that of "Deputy President" to " Judge," to emphasize the change that is being made in the character of the court. Clause 6, which repeals sections 12, 13, and 14 of the act relates to tenure, and provides that the judges shall have a life tenure. Under the Constitution, as interpreted by judicial decision, judicial power cannot be conferred upon any judge whose appointment is for a limited period. The salary proposed for the chief judge is £3,000 per annum, and that for a judge £2,500 per annum. These are considered moderate salaries, having regard to the important nature of the work that will have to be performed. It is proposed that the judges shall be entitled, after fifteen years' service, to retire upon a pension. The same proposal is made also in relation to the High Court judges in the Judiciary Bill. The object of the pension scheme which is embodied in this proposal, and which follows precisely the existing provisions with relation to the Supreme Court judges of New South Wales, is, in the first place, to attract good men, and, when they are appointed, to save them from financial anxiety. It is not proposed to apply the provisions of the Public Service Superannuation Act to gentlemen who have reached the age at which men are usually appointed to the bench. The contributions would vary very greatly, and it would be quite impossible to work out a scheme upon an actuarial basis. Clause 7 furnishes a means for obtaining a determination from the full bench of the Arbitration Court upon the questions of standard hours and basic wage. There is a section in the Arbitration _ Act which provides that certain -questions relating to hours must be dealt with by the full bench of the Arbitration Court. But it must be remembered that that court can deal only with particular disputes. In order to make it possible to obtain a considered judgment from the whole court, it is proposed to insert in the act a new provision that .the AttorneyGeneral may, in the public interest, intervene in the hearing of any dispute that involves the question of standard hours or basic wage. The court will publish a notification in .the Commonwealth Gazette that the AttorneyGeneral has intervened, and that any person or organization, 'whether registered or not, having an interest in the matter, may apply to the court for liberty to be heard on it. That answers the question which Senator Thompson raised earlier in the day. Such an application may be made by a single union or a body of unions, a particular employees' association,, or an employers' federation.


Senator Lynch - Will the court be free to refuse the application ?


Senator PEARCE - I dare say that it will. It must have the right to decide' the matter, because frivolous applications may be lodged. If the court is of opinion that the applicant is interested in the question, it may allow him to examine and cross-examine witnesses, and to address the court. No unlimited right to be heard is extended to an unlimited number of persons ; the whole matter will be under the control of the court. If the court is of opinion that an applicant is interested, it may, in its discretion, allow him to be heard. That is to say, the AttorneyGeneral will have nothing to do with the matter, other than to send the notice to the court, which will itself determine whether a particular applicant is sufficiently interested to be heard. These are big questions involving general principles that ought not to be determined unless both sides have the fullest opportunity of being represented. The only object of this provision is to allow both sides in industry to have the fullest opportunity to be represented. If that opportunity were not afforded, a determination might be reached in favour of one side or the other, and a binding rule might be laid down by theFull Arbitration Court to operate for an uncertain period, although the case had not been sufficiently stated on either side in view of the extent of the interests affected. The next proposal is designed to relieve the judges of the court to some extent of the burden of work which they have at present, by making provision for the Governor-General to appoint conciliation commissioners to facilitate the conciliation jurisdiction of the court. This is a means of increasing the exercise of the powers of the court in the direction of conciliation. The power of conciliation is one of the most important powers of the court, and the Government is of the opinion that it should be developed and extended. The powers of the commissioners will be found in sections 16 and 16a of the act.


Senator Elliott - Will that provision enable bodies similar to wages boards to be set up ?


Senator PEARCE - It might be applied in that way, or to a tribunal such as a Whitley council. Anything in the nature of conciliation can be operated under those sections. The last clause of the bill provides that the present deputy presidents may continue to exercise in relation to part-heard matters all the powers which exist under the present act. It would be a great mistake to cut off everything on the 30th June. The Railways case, for example, is being heard before Sir John Quick. It is a very complicated inquiry, and the deputy president has heard the case in relation to about 75 out of 300 or 400 grades.


Senator Thompson - In how many States ?


Senator PEARCE - All of the States. At the present moment there are no fewer than 105 matters before the court, so provision must be made for the completion of part-heard matters in order to save the time and money of the parties, and to secure the services in these cases of the deputy presidents before whom they have been conducted. Honorable senators will see that the bill by no means completely covers the field that will have to be covered if extended industrial powers are granted by the people to the Commonwealth. This is an interim measure, but it proposes to give to the court many powers that it has not possessed in the past, and which are very necessary for a full exercise of effective arbitration jurisdiction.


Senator THOMAS (NEW SOUTH WALES) - Under this measure will the judges be appointed for life?


Senator PEARCE - When this bill becomes law, we shall be able to appoint judges for life, but they need not necessarily be the present judges.

Debate (on motion by Senator Needham) adjourned.







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