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Wednesday, 23 June 1926


Senator FINDLEY (Victoria) . - The Leader of the Government in this chamber (Senator Pearce) would have us believe that Senator Gardiner's object is to provide that the chief judge shall be a lawyer, and that the other two judges shall not be lawyers. I thought that Senator Gardiner had made it perfectly clear that if, in the opinion of those who would be' called upon to express judgment, the lawyer applicants possessed qualifications superior to those held by lay applicants, they would be appointed. Senator Pearce said that he holds to-day opinions on many subjects which are different from those he at one time held. What is the reason for his changed views ? He would have the committee believe that because the average lawyer does not employ labour he is free from those influences which affect other sections of the community. It is true that some lawyers employ little or no labour; it is true also that some of them have been without briefs for a long time. But does that mean that they are not interested in trade and commerce? Like other citizens, lawyers sometimes make investments, and, being allegedly far-seeing men, they endeavour to get the best return for their money. They are, therefore, either directly or indirectly interested in trade and commerce. Senator Pearce said that lawyers approach the various matters that come before them with minds free from all prejudice. That may be true, but may it not also be true of laymen? Can laymen not enter the court with open minds and deal with matters impartially? It is unfair for Senator Pearce to say that laymen would be prejudiced ; that they would appear in the court, not as judges, but as advocates. The honorable senator's arguments might be applied to the. wages boards, which exist in Victoria. I admit that these boards are not clothed with judicial powers, but they have the power to make awards, as has also the Arbitration Court. A wages board consists of representatives of both the employers and employees, with an independent chairman. Some boards are presided over by legal gentlemen; but, as a rule, the chairman is a layman.


Senator Sir Henry Barwell - And no lawyers appear before those boards.


Senator THOMAS (NEW SOUTH WALES) - That results in a saving of time.


Senator FINDLEY - The interjections remind me of a statement made by a big employer in England, who declared that lawyers are not concerned about the amount of time occupied in" an inquiry, though time, as we know, means additional expense. The Government is out to, if possible, prevent industrial disputes, whether they be. intra-state or interstate. I hold, therefore, that persons who have an intimate knowledge of industrial activities should not be precluded from appointment to these positions, provided they have the necessary qualifications. Senator Pearce has told us that the proper place for the worker is in the witness-box.


Senator Pearce - And the employer, too.


Senator FINDLEY - Yes. In other States laymen, sitting with legal gentlemen, are filling positions as important as those to be' created under this bill. Apparently the system is giving complete satisfaction. I have yet to learn that because an industrialist has not had the benefit of a legal training, he is not competent to deal with industrial matters. Parliament should insist on the appointment of the men most qualified for these positions. If the matter be left open, if the Government, in making the appointments, is not confined to the legal profession, a layman possessing the necessary qualifications may receive the appointment. If, however, the Government has made up its mind that only men belonging to the legal profession can be depended upon to give an impartial decision, all I can say is that I do not accept that view.


Senator THOMAS (NEW SOUTH WALES) - The assumption is that a man, to be honest, must be a lawyer.


Senator FINDLEY - According to the Minister, only a lawyer can deal impartially with industrial disputes. I venture to say that if some industrial disputes are brought before the court to be appointed under this 'bill, and if representatives of the trades halls in the different States are on the bench, with the members of the legal fraternity, the latter will be in the position of apprentices in regard to the technical details of many industries. Whilst they may know all about the law, they will have to learn all the details of the business in dispute.


Senator Elliott - Does the honorable senator think that the employers would have any confidence in men appointed from the trades halls?


Senator FINDLEY - If Senator Elliott has correctly stated the views of all employers when he suggests that they would have no confidence in men associated with the trades halls, all I can say is that it is a bad outlook for Australia. I do not share that view.


Senator THOMAS (NEW SOUTH WALES) - Did every employer have complete confidence in Mr. Justice Higgins when he was President of the Arbitration Court?


Senator FINDLEY - We know what some employers have said about that dis- tinguished judge, and also about other judges. We know, too - I thank Senator Thomas for the interjection - that if certain employers had had their way, at one time there would have been an attempt to remove that eminent judge from his position. But we can leave that on one side now. What we are trying to do is to get the very best men available for the positions that will be created. We on this side hav.e no quarrel with the lawyers, and I am satisfied that the legal gentlemen in this Chamber are broadminded enough to acknowledge that amongst other sections of the community there are persons well qualified to fill these positions. I support the amendment moved by my leader.

Senator SirHENRY BARWELL (South Australia) [6.28]. - I entirely agree with some of the remarks made by the honorable senator, who has just resumed his seat. Senator Findley said that Parliament should see to it that the men best qualified were appointed to these positions. I agree with that. The position of the judges of the Arbitration Court is of the utmost importance. The work they will have to do will have farreaching consequences. Their decisions may affect interests running into hundreds of thousands of pounds. But that is not the only duty that they will have to perform. They will also have to sit individually to try offences under the act, and will have authority to inflict penalties up to £1,000. There is no precedent for the appointment of laymen to such positions as that. Senator Findley has said that laymen are occupying similar positions in the State courts. To a certain extent that is true. In South Australia, laymen used to sit with special magistrates in the police courts, but now the special magistrates sit alone. If a special magistrate is not available, two justices of the: peace may try cases of minor importance only. It was found that a magistrate's opinion was sometimes overridden by two laymen, and frequently such decisions were upset by the superior courts. It was not suggested that the laymen were guilty of partiality. The whole trouble was simply due to the fact that they were not trained men, and did not have the judicial mind. I do not think honorable senators fully realize the extent to which special training is necessary when weighing evidence. I could entertain them for. the whole of the evening with stories of ridiculous decisions, given by laymen in inferior courts, that have come within my own knowledge.


Senator Findley - No doubt the honorable senator could, but I submit that lawyers are not specially trained in industrial matters.


Senator Sir HENRY BARWELL - Nevertheless a judicial mind is necessary to weigh evidence, just as it is in commercial matters.


Senator Pearce - Nearly every commercial case is intimately related with industrial issues.


Senator Sir HENRY BARWELL - Exactly.

Sitting suspended from 6.S0 to 8 -p.m.

Senator Sir HENRYBARWELL.I have said that I am entirely in agreement with Senator Findley, in the belief that it is absolutely necessary that the Government should secure the services of the most highly qualified men for these important positions. I am sure that that is the desire of every honorable senator. We have to consider who are the most highly qualified. This is essentially a lawyer's job.


Senator Thompson - I do not agree with that.

Senator Sir HENRYBARWELL.Nevertheless it is. If medical attention is required the services of a medical man are obtained; For a lawyer's job we need lawyers.


Senator Gardiner - And for an honest job we need honest men.

Senator Sir HENRYBARWELL.It is possible to find honest men amongst lawyers. This work requires the services of men with a knowledge of the law which only lawyers possess. It requires men with ability to interpret statutes, which, of course, is done according to rules of law that are understood only by lawyers. The work must also be done by persons who have the ability to sift and to weigh evidence, which can only be obtained after long experience, and then only by men with a legal training. Specialized knowledge the result of long years of training and 'experience is also required. It has, therefore, been provided that the persons to be appointed must be lawyers of years of experience. The bill provides for the appointment of three judges, one of whom shall be the chief judge. Three judges are to be appointed, because the work cannot be efficiently carried on by one judge, and they are not being appointed with the intention of the three always sitting together. As a matter of fact, nearly all the work will be carried out by the judges sitting separately.


Senator Pearce - As it is to-day.


Senator Sir HENRY BARWELL - Yes; it is seldom that the three judges of the Arbitration Court sit together. One is to be termed chief judge in order to give him a higher status, and the right to preside when three judges are sitting together, but the work of the chief judge will be of no greater importance, or more onerous, than that carried on by the other two judges. Senator Gardiner disclosed the weakness of his case when he admitted that it was necessary to appoint one legally trained man. If the chief judge is to be a lawyer, why should not the other two whose duties are precisely the same, and who, as I have said, will act independently of each other, also be lawyers ?


Senator Gardiner - Occasionally they will sit as a full Arbitration Court.


Senator Pearce - Yes, on such questions as the basic wage or standard hours of work.


Senator Sir HENRY BARWELL - Yes; but applications to the court in which hundreds of thousands of pounds may be involved in a single issue, will be heard, and the awards given, by a single judge.


Senator Pearce - And so with an application for punishment for a breach of the law.

Senator Sir HENRYBARWELL.Yes, that is only a part of their work. Their duties will also involve the liberty of the subject in cases of alleged offences against the act, in which cases they will have power to inflict penalties not exceeding £1,000, or imprisonment for twelve months. There is no precedent for laymen to adjudicate in such cases. It is quite true, as SenatorFindley stated, that laymen adjudicate in the States in a certain jurisdiction, but only in minor matters. Experience has shown that it is not wise to give laymen too much authority. The South Australian Par liament has provided that a stipendiary magistrate shall sit alone, because in the past a magistrate who is a legally trained man has frequently been out-voted on the bench by laymen, with the result that on appeal to a superior court a decision has been upset, the magistrate having been right and the laymen wrong. Such decisions have not been the result of partiality, but simply because the majority were not trained men. The Minister made out an extremely good case for the retention of these words, and it is therefore unnecessary for me to labour the question. The knowledge that laymen may bring to bear on such matters as will be dealt with by the court can be submitted in the form of evidence. The men who have to give decisions and who have to exercise judicial functions, should be trained legal men of considerable experience, and possessing very high qualifications. I believe that, on reflection, honorable senators opposite will see that it is necessary for the chief judge and also the other judges to be legally trained men.







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