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Thursday, 25 October 1973
Page: 1475


Senator James McClelland (NEW SOUTH WALES) - I commend Senator Little for a sensible and pragmatic approach to this problem. I wish to comment first on the curiously tortuous logic which we have heard from Senator Greenwood on this question of the need for additional judges. I remind him that section 104 of the Conciliation and Arbitration Act, as it stood before amendments were introduced by the then Attorney-General on behalf of the then Government last year, read:

(   1 ) Subject to this Act. the jurisdiction of the Court shall be exercised by not less than two Judges.

The amendment to that section, sponsored by Senator Greenwood, altered 'two' to 'three'. The next amendment to be moved by Senator Greenwood to this Bill seeks to omit an amendment which we are suggesting, namely that in proceedings under section 119, that is, for the imposition of penalties, jurisdiction should be capable of being exercised by one judge, not by three. Senator Greenwood proposes to ask the Committee to omit the words 'proceedings under section 119'. In other words, he proposes that it shall be necessary for 3 judges to hear proceedings under section 119. It must be clear that that move will increase the workload of the Industrial Court. He asks us to agree to increase the workload of the Court.


Senator Greenwood - The Government has told the unions that there will not be any applications for penalties while it is in office.


Senator James McClelland (NEW SOUTH WALES) -Look at the matter logically. The honourable senator is asking that 3 judges hear any applications for penalties. If the honourable senator thinks that there will not be any applications for penalties while we are in government, why does he bother to seek the removal of the words 'proceedings under section 119'?


Senator Greenwood - Because you will not be in government for very long.


Senator James McClelland (NEW SOUTH WALES) -This is one of those pious expressions of hope which are not a real substitute for logic. Senator Wright who I am sorry to see has left the chamber, asked us in the rather eccentric prose to which he resorts when his overheated temperament causes him to get a little excited to give him a word of averment. I take it that what he meant by that was that we should provide some evidence of the need to increase the membership of the Court. Apart from the fact that Senator Greenwood is insisting that 3 judges should sit in proceedings under section 1 19 of the Act, there is the fact that several of the judges of this court are engaged, more or less permanently, on other duties. There is Mr Justice Woodward who is engaged on an investigation into Aboriginal land rights. There is Mr Justice Nimmo who has been loaned to Fiji to help set up its Supreme Court. These are relatively new departures. There is Mr Justice Eggleston who is more or less permanently engaged on the Trade Practices Tribunal. I do not want to embarrass the other member of the court by naming him, but it is well known that there is another justice of this court whose work capacity is gravely affected by illness. We believe that this court already has been depleted in its strength and that it is reasonable to bring it up to strength. I am sorry that Senator Wright is not here to hear this explanation. He may not be familiar with the workings of this court. He may not know these facts. I am sure that if he did know them he would agree that these facts alone constitute sufficient reason for increasing the strength of the court.

The example that Senator Greenwood gave, without citing any figures, that this court is not overworked, that it is a court, I think he said, whose hours of work would be the envy of most Australians is, I feel, rather unworthy of him. As Senator Little justly said, it is not a true yardstick by which to judge the work of this court. This court has to deal with very complex matters, matters which take a long time to resolve. At the risk of being tedious the case of Moore and Doyle, to which I have often referred, is I think an example of the work with which this court is concerned. It is serious, complex legal work in which there is a need to weigh complicated facts and to wade through conflicting legal precepts. I make bold to suggest- I know this from my personal knowledge- that the time spent out of court in writing judgments on cases that may have occupied court for two or three weeks, such as the Moore and Doyle case did, accounts for infinitely more time than the time which is apparently spent in court itself. I do not think that this is an under-worked court. The tasks it takes on are of vital significance to the community and to the industrial peace of the community, to which the Opposition claims it is so dedicated. We are short-changing ourselves and the community generally if we take a miserable attitude towards the question of bringing this court up to the desirable strength. I think that the amendment moved by Senator Little will just about satisfy the requirements of this court.

As Senator Cavanagh has said, there was never any intention on the part of this Government to do the dire things that Senator Wright feared, such as stacking the court in order to achieve some ulterior social objectives. Even though ideally we would have liked more freedom of action in the number of judges that we could appoint, I firmly believe that if the amendment sponsored by Senator Little is adopted by the Senate we will have gone a long way towards satisfying the pressing need for more judges in this court.







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