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Thursday, 24 October 1974
Page: 1958


Senator James McClelland (NEW SOUTH WALES) - I find myself in complete agreement with my colleague, Senator Mulvihill, when he says that it would be difficult to find a more blatant example of obstruction than what we are meeting in the attitude of the Opposition to this urgent and overdue measure. This Bill is very dear to my heart, if only because during my years in legal practice I was up to my ears in the very problem which it seeks to solve. I know that this is not an academic problem. It is not a problem which lends itself to a leisurely approach such as that suggested by Senator Greenwood. He says, in effect: 'Let us talk about it a little further. Let us talk to the employers, the unions and the States and let us see whether we can get a constitutional amendment'. This statement represents a curious leap from the pessimism which he confesses to feeling about the prospects of co-operation with the States -


Senator Greenwood - You were the instructing solicitor in Moore v. Doyle -


Senator James McClelland (NEW SOUTH WALES) - I will come to that. I will give the honourable senators the reasons why, with all modesty, I can claim a little more expertise in this matter than even perhaps his distinguished self. At one moment Senator Greenwood is pessimistic and says that we cannot expect co-operation from the States. I point out, by the way, that that is a curious observation by one who is constantly accusing us of dragging out feet in the matter of co-operation with the States. Yet, he goes on to express what in the light of recent history we can only regard as the most purblind optimism when he suggests that we can have a constitutional amendment passed. If there is one thing that should have become clear to practising politicians in this country, it is that the most difficult thing to do is to persuade the citizenry to amend this out-of-date document, the Australian Constitution.

The report on which this Bill is based is, as Senator Greenwood stated, the product of the labours of Mr Justice Sweeney. I thought that I detected some suggestions from Senator Greenwood that perhaps Mr Justice Sweeney was not the most competent man to comment on these problems. In my view, if we were to search throughout the country it would be very difficult to find anybody more competent to come up with a solution to this problem than Mr Justice Sweeney. Not only was he when in practice commonly regarded, at least in Sydney, as the most able and experienced practitioner in the field of industrial law; but, as Senator Greenwood knows, he was the counsel briefed by me in this vexed case of Moore v. Doyle. I happened to act for one of the parties in that case. This matter on which the Government of which Senator Greenwood was a member took such a leisurely approach happened so long ago that when I look back on the case now I find it difficult to remember whether I acted for Moore or for Doyle. In fact, I acted for Doyle.


Senator Greenwood - I understand that you won.


Senator James McClelland (NEW SOUTH WALES) -Of course we won. Mr Justice Sweeney, who was then a leading counsel at the Sydney Bar, acted in the matter and succeeded in persuading the court that the victory should go to our side.

I must join issue with Senator Greenwood when he suggests that it was the Moore v. Doyle case which uncovered this problem. This problem was one which anybody who came anywhere near the industrial jurisdiction knew all about for many years before the Moore v. Doyle case. In fact, one of the judges in the Moore v. Doyle case- the judge, who I happen to know, was instrumental in drawing to the attention of both the State and Federal legislatures the necessity for getting together to find some solution to this problem; I refer to Mr Justice Kerr, the present distinguished Governor-General of Australia- was in a position to know more about this problem than even Mr Justice Sweeney. This is because Mr Justice Kerr, as a barrister, had been briefed in many cases- some of them cases in which I was the instructing solicitor- in which this problem of the dichotomy between State and Federal law in the matter of the status of registered organisations was at the heart of the problem. It was not something that just came to light in the Moore v. Doyle case. It was the conjuncture in that case of the counsel, Mr Sweeney, Q.C., as he then was, Mr Justice Kerr on the Bench and, if I may say humbly, my presence in the case, which produced the passage in the judgment drawing the attention of the legislatures of this country to the need to do something about this festering sore.

I think it is worth while at this stage, in case there are some doubts as to what the problem is, to point out that it is adequately and fairly stated in the second reading of the Postmaster-General (Senator Bishop), as Minister representing the Minister for Labor and Immigration, where he points out that over the years, because we have this dichotomy in our industrial law, situations arose so that a State branch of a Federal union and a State union often were administered as if they were the same body, with one set of books, one register of members, one membership fee, one set of officers, one election of officers for both bodies and one system of meetings. In some cases the rules of the State union are complied with and the rules of the State branch of the Federal union are ignored and in other cases the position is reversed. The plain fact of the matter as regards the ordinary unionist is that he conceives of himself as belonging to one undifferentiated body which he calls 'my union'. This was the position in the Moore v. Doyle case which involved the Transport Workers Union. To give another example of this problem I mention that my present distinguished Leader in this Senate, the Attorney-General (Senator Murphy), and I were engaged over a long period on opposite sides in an intra-union- it could only be called that- in which this problem tore the union apart. Senator Murphy found himself on one side of the record and I on the other.

The ultimate denouement in this union brawl highlights the absurdity of this position. After years and years of litigation in which I succeeded in obtaining legal victory in the courts and Senator Murphy's clients remained in control of the union because they ducked from the State body to the Federal body, my client finally won an election and went down to take his place in the union office. The astute opponent he had been fighting all these years, who had been very astutely advised by Senator Murphy, sat him down in a corner of the office and said: 'Yes, you beat me in the ballot. You are now the secretary but it is an unpaid position because all the funds belong to the State registered union of which I am still the secretary. You go for your life. You have won but see what you will be able to live on. ' After a few weeks of this my client, who had scored a handsome victory in a poll of the members who believed they belonged just to the one union, had to give up and go back to work, and victory temporarily went to the man who had been rejected by his members.

I knew enough about the problems facing my client not to advise him that what this opponent of his had asserted was incorrect, because there was just no way of unravelling whether the State registered body or the branch of the Federal body owned the assets. So I had this empty victory, my client had this empty victory and the members of the union had an empty victory after showing quite clearly that they wanted my client as the secretary of the union rather than the other man. They were left having to be content with the man whom they had rejected. This is an horrendous situation cutting the ground from beneath the democratic processes in this country, something which people who are fond of railing against trade unions as the source of all the problems of this country should be worried about. I do not know how we can take seriously their constant upbraiding of the unions for their role in our society. Even after the incident I have mentioned of the man winning a ballot and not being able to take over the job this union- the Transport Workers Union which was involved in the Moore v. Doyle case- continued to provide the locus of struggle caused by the dichotomy of Federal and State industrial law and this led to the Moore v. Doyle case.

It is interesting briefly to trace what the Moore v. Doyle case was about. The union registered under the laws of New South Wales- I will refer to it as the 'trade union'- was attempting to enrol taxi drivers in its ranks. It had never been able to enrol taxi drivers because they were considered to be self-employed persons and were not covered by the New South Wales Arbitration Act until an amendment of that Act was introduced making specific provision for people like taxi drivers and lorry owner-drivers to be enrolled in the State union. This was resisted fiercely by the employers in New South Wales. In fact one case was taken as far as the Privy Council, in which also Mr Sweeney appeared. The union managed to win this case right up to the Privy Council. Finally, Counsel advising the employers hit upon the idea that he might be able to establish that the trade union registered in New South Wales did not in fact exist but had had its identity absorbed in the branch of the Federal union and that, therefore, if that State registered body did not exist it could not go out and enrol taxi drivers or lorry owner-drivers because it would have to rely on the Federal industrial laws which excluded such persons because, by definition, they were not employees.

In the result, counsel for the employers failed to establish that fact. But the case had this curious result: Although the court found after an examination of the history of the 2 separate legal bodies- the State registered union and the branch of the Federal organisation- that the State body had continued to exist, it followed that the branch of the Federal organisation had for all practical purposes become defunct. That is not the end of the story. The notion that Moore v. Doyle is some sort of an academic problem we can take our time about does not stand up, because after the Moore v. Doyle case a faction fight blew up inside the union and the organisationthis is the word used in all Federal legislationthat is, the federally registered organisation, then began to claim the bodies of persons who were covered by Federal awards. It actually came over to New South Wales. The federal secretary of the organisation sent his representative to New South Wales to set up a branch of the organisation to replace the defunct branch which the officials of the State body had believed to be the same as the State body over all these years. The result is that we now have 2 sets of officers contending for these members in New South Wales.


Senator Button - Causing the petrol strike.


Senator James McClelland (NEW SOUTH WALES) -And causing, among other things, all the cars in Sydney to go off the road for a few days in 1 972 because the oil tankers drivers who had belonged to the old body refused to accept the idea that they should join this new branch which had been set up by the organisation. As a matter of fact, I had a dramatic illustration of the continuation of this problem this morning. When I found out shortly before lunch that I was to speak on this Bill I rang the Transport Workers Union in Sydney to get a little information. I took the first number in the book and asked for Mr McBeatty, who has been referred to by Senator Mulvihill and who is the secretary of the New South Wales branch. 1 was told by the man who answered the telephone: 'He does not work here. He is in the State branch.' I had rung the wrong number. The position in New South Wales at present is that there is one body claiming to have been the anointed body with the apostolic succession from the federally registered organisation which has about 1,100 members and the State branch, the one which has not any real locus standi in the Federal organisation, has 750 oil carters, 200 drivers for Qantas, 16 Commonwealth car drivers and 80 truck drivers in the Department of Supply- all covered by Federal awards- all of whom because of their allegiance and loyalty to the old body stayed with the body which cannot legally represent them.

This is the sort of problem which occurs even in this one union, the Transport Workers Union. As Senator Button points out, this is not something about which we can twiddle our thumbs while we wait for a constitutional amendment and say that it is only of interest to the lawyers and does not really matter. As Senator Button said, it is something which stopped all the traffic in Sydney for a few days in 1972 because the oil tanker drivers would not accept the proposition that one set of officials was entitled to represent them in court rather than the other set of officials. I have noticed that in the last few days another brawl has blown up involving a large important union- the Shop Assistants Union- in which the Federal Secretary, a Mr Egan, has been tipped out of his job, From my experience in this field I can read the signs that there will be a long and bloody battle which will be costly to the union, costly to the community and something to which I would have thought the legislators of this country must immediately advert.


Senator Greenwood - How is the current matter of Mr Egan a Moore v. Doyle problem.?


Senator James McClelland (NEW SOUTH WALES) - I do not know the full ramifications of the matter but I know that on a television program the other night Mr Egan suggested that this struggle had overtones of the Moore v. Doyle matter. I do not presume to know much of the detail of it but I know Mr Egan. I know his acquaintance with these legal problems and I have accepted at face value that it does have those overtones. But even if it does not, we can rest assured that there will be no shortage of union struggles raging around the Moore v. Doyle problem. As I said, it is as old as the existence of unions in this country. As soon as a faction fight flares up and a union or a group of employers sees some advantage in exploiting the dichotomy between State and Federal industrial law, as happened in the Moore v. Doyle case, we will get similar litigation. If the union officials of this country were to look to their actual legal positions a great number of them would find that they just do not occupy those positions in law at all. That is all right so long as the union is flowing smoothly enough, but as soon as a faction fight blows up somebody goes to a lawyer, somebody sees a man of the industrial acumen of Senator Murphy, and before we know where we are a free-for-all has started.

There are enough problems to worry honourable senators opposite arising out of the existence of trade unions and their belief that they should look after their members' rights- an impression that certainly cuts across what honourable senators opposite have been conveying to us in recent years- so I cannot see why they should be selfsatisfied about letting this additional irritant in trade union affairs go uncured. It is suggested by Senator Greenwood that we should not be doing this because we cannot do it on our own. There is no mystery about that matter either. This is something which is spelt out in great detail in the judgment of Their Honours in the Moore v. Doyle case. Mr Justice Sweeny has said constantly that this is a problem that cannot be solved by the Australian Government alone. But is that a reason why we should do nothing until the High Court does something? Somebody has to start these things going. I do not believe that we can afford the luxury of waiting for constitutional change, which is Senator Greenwood 's solution to this tangled problem.

As to the constitutionality of the proposals, I thought Senator Greenwood made a very curious remark, for a lawyer. He said that no doubt there will be some uncertainty about the constitutionality of this solution until the High Court passes on the matter. He must know that the High Court does not pass on these matters in a vacuum. It cannot really let us know what it thinks about the matter until it has an Act before it to construe. It does not seem to me to be a bad starting point to push this case up to the High Court which perhaps will let us know whether it stands up. Frankly, I cannot understand how a consistent advocate of co-operative federalism like Senator Greenwood can express such pessimism about the possibilities of our securing the co-operation of the States. He is not borne out by the attitudes of the States in my experience.

As a matter of fact I received a little gentle mauling myself for expressing opinions based on misinformation, I must confess, at the constitutional convention held in Sydney in September last year. I took the opportunity, as a man who is somewhat obsessed by this problem, to express certain views. I found myself in a constitutional gathering with the Attorneys-General and the Ministers for Labour and Industry of the various States present. I thought: 'Here is a good opportunity to prod these chaps into doing something about the Moore v. Doyle problem'. So I stood up and accused the State representatives of more or less dragging their feet. 1 promptly met with this rebuke from Mr Hewitt, the Minister for Labour and Industry in New South Wales. He said:

If I recount, for the benefit of the honourable senator -

He was referring to me- a few happenings 1 think he will be compelled to agree with me. In April last -

That is in April 1973- the Ministers for Labour met in Melbourne and the Hon. Clyde Cameron agreed on behalf of the Commonwealth to submit to the federal Parliament legislation with a view to rectifying, as well as one can by legislation, the situation that arose from the Moore v. Doyle case. This proposal was based on a recommendation from New South Wales and I might state that we had some of the best industrial legal advice available to back our proposition. The Ministers met again in Melbourne last Friday and when the State Ministers asked the Hon. Clyde Cameron why the Commonwealth had not acted as had been agreed -

That is a curious reversal in that here we have the States reproaching the Australian Government with dragging its feet- he said that the pressure on the Parliamentary Draftsman to get legislation through meant that his legislation in this area had been delayed and would not come on until 1974. In the meantime the States have delayed their back-to-back legislation until the Commonwealth legislation, which was agreed to at that conference, has been enacted. I trust that Senator McClelland will take the trouble to ascertain the facts from his colleague, the Minister for Labour in Canberra, so that he may verify that what I say is indeed the case.

This is a rebuke which I am glad to accept but which, I suggest, completely refutes the proposition that is put up by Senator Greenwood, that we should wait, that we should delay until we are more sure that the unions, the State governments and presumably the employers will back us up in what we are undertaking.

Just before I rose to speak I had placed in my hand a document which comes from Mr Polites who, I think it will be agreed on all sides, is the authoritative spokesman on industrial matters for the employers of this country. The document reads:

The provisions of a Bill to amend the provisions of the Conciliation and Arbitration Act designed to implement the report of the Sweeny inquiry into the problems illustrated by the decision in Moore v. Doyle appear to be generally satisfactory.

Then Mr Polites goes through the more important provisions of the Bill in detail and indicates his assent on behalf of the employers of this country to what is proposed in the Bill.

Of course, it is worthwhile to recapitulate briefly the history of what has transpired, between Mr Clyde Cameron and his Department and his counterparts in the States, to rebut the proposition that there had not been sufficient time or that the unions or the States have not been able to consider the matter and, therefore, this should be deferred in some way. It is worth recalling that the Moore v. Doyle case is now5½ years old. As I recall it, the judgment was given some time early in 1969. Proceeding in leisurely fashion, the previous Government had a series of conferences. There is no doubt that it was seized of the fact that there was a problem here, but it proceeded at a very leisurely pace. As in so many areas of government, it was necessary for a Labor Government to be elected to power in this country before any serious attempt was made to grapple with this problem. I ask honourable senators not to forget that the Sweeny report, if I may call it that, on which this Bill is based was tabled here and in the other place in August this year. There has been plenty of opportunity for honourable senators opposite to read it and to digest it. Of course, the Bill is based primarily on the recommendations in that report. Copies of the report were distributed to all the States and to major unions and employer bodies. The Prime Minister (Mr Whitlam) formally sent copies to each State Premier in July. The Minister sent copies to each of the State Ministers concerned in July. Copies also were sent to the relevant departmental heads. In all over 1,000 copies have been distributed to interested parties since publication in July.

So, the provisions of this Bill, incorporating the amendments contained in the report, are not new. Moreover, at a conference of Ministers for Labour in Brisbane on 30 August this year- I think I heard something fall from Senator Greenwood which suggested that such conferences had ceased in recent months- draft copies of the Bill were distributed to the State Ministers. The recommendations in the report were discussed there.


Senator Greenwood - What did the State Ministers say at conference? Do you know?


Senator James McClelland (NEW SOUTH WALES) - I am informed by the Minister that they indicated their support for the proposition that a Bill should be introduced- apart from the representative of Queensland who, not surprisingly and very consistently, dissented from the general unanimity of the gathering on the ground that he could not understand the propositions.


Senator Button - Not surprisingly, again.


Senator James McClelland (NEW SOUTH WALES) -Not surprisingly at all. Otherwise, these Ministers indicated general agreement with what is being done here. The working party established in 1970 by the National Labour Advisory Council examined the matter in detail over a period of nearly 3 years, as Senator Greenwood knows.

Being a Government which is prepared to grapple with problems and to attempt to find a solution, we believe that it is about time somebody grasped the nettle and did something to solve this problem, rather than wait until the tanker drivers of Sydney or Melbourne, or some other batch of workers, in frustration because of a brawl between officials of their Federal body and of a State registered union do something which will inconvenience millions of people. We think that, rather than wait for that or for some mythical consensus between the major parties which will promote the possibility of a constitutional reform going through, it is about time we did something about the problem. That is the basis of this Bill. That is why it is introduced into this Parliament. In the light of what has been said here today, I suggest that that is a fairly good indication that we are a Government which believes in attempting to solve problems rather than just using problems as some sort of a weapon with which to beat our opponents over the head. For those reasons I earnestly commend the Bill to the Senate.







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