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Wednesday, 31 May 1972
Page: 2351


Senator MURPHY (New South WalesLeader of the Opposition) - Mr Acting Deputy President, it may suit the convenience of the Senate to have a general debate covering this Bill and the Northern Territory (Administration) Bill 1972 as they are associated measures. Separate questions may, of course, be put on each of the Bills at the conclusion of the debate. I suggest that the subject matter of the 2 Bills be discussed in this debate.


Senator Greenwood - I think that is a sensible course to follow and I concur with it.

The ACTING DEPUTY PRESIDENT (Senator Lawrie) - Is it the wish of the Senate that the Seat of Government (Administration) Bill 1972 and the Northern Territory (Administration) Bill 1972 be debated together? There being no objection, that course will be followed.


Senator MURPHY - These 2 Bills are of very great importance. They deal with a vexed position which has arisen under the industrial laws because of the operation of the Constitution which, in general, restricts the Commonwealth conciliation and arbitration jurisdiction to the prevention and settlement of disputes which extend beyond the limits of any one State. That is not the only power involved. There are other powers. There is the interstate trade and commerce power, the power relating to trade and commerce with other countries and, in various special areas, the legislative powers which provide the basis for the operation of the industrial jurisdiction. But the main basis on which the Commonwealth has proceeded hitherto has been the conciliation and arbitration power. That has been shown to be defective - in fact. I think it has been made to be defective in some significant respects - by the decisions of the High Court of Australia. Each of the words in the constitutional provision is a word of limitation. It appears that, because the Constitution says laws can be made with respect to conciliation and arbitration, they cannot be made outside those limits. Because the expression 'industrial disputes' is mentioned they must be industrial in their nature.

The High Court has put what seems to be a very artificial meaning on the word industry'. We know that in a series of cases it has held that, for example, teachers are not in industry and that fire fighters are not in industry. There was the fairly recent case of Pitfield v. Franki. The Conciliation and Arbitration Commission is limited and hedged in by these difficulties. It re therefore reasonable, if we want awards to be made and the industrial processes to operate in other fields, that every endeavour should be made to make that possible. It can be done in the Territories of the Commonwealth because one can use the power to legislate with respect to the Territories. That power is not subject to the limitations I have mentioned. It is possible that other powers will be used in the future that will go beyond the limitations involved in the use of the conciliation and arbitration power. For example, the external affairs power may well be a source of legislative power in carrying out decisions of international bodies to which Australia is a party. Where we enter into some agreement it may well be - there is a great deal of learning on this - that this Parliament could legislate to carry out the terms of some such arrangement. But in this area the extension to the Australian Capital Territory and the Northern Terriory of industrial jurisdictions, free of limitations, is desirable in principle. We will therefore support this legislation.

Perhaps I should say that this legislation may not be without implications that would be worth looking at. In dealing with the notion of industry in the way in which it is dealt with in this Bill some surprising results have been obtained which may not have been intended. However, we think that in principle the legislation is satisfactory. One result may be that the industrial tribunals could in a proper case move even into the domestic scene in the strict sense. Hitherto it has been thought that the industrial tribunals should not attempt to regulate what occurs in the home itself by way, for example, of domestic service. I am open to correction, but it would seem to me that in a proper case, anyway, that barrier will no longer obtain in the Australian Capital Territory and Northern Territory. That may have its disadvantages. I think it may have advantages.







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