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Thursday, 14 April 1904


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - The Prime Minister, at all events, is not in that position. He belives that it is unconstitutional to attempt to apply .these provisions to State servants, and he should therefore have made no reference to them in the Bill.


Mr Deakin - Does not the honorable member recollect the circumstances under which the Bill was drafted?


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - Whatever the circumstances under which the original Bill was drafted, it was the duty of the Prime Minister to see that this measure embodied his own fixed opinions.


Mr Deakin - So it does.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - In that case, the honorable and learned gentleman has no fixed opinions, because he proposes to exclude from the operation of the Bill a set of persons to whom he says its provisions cannot apply.


Mr Deakin - The honorable member is ignoring the circumstances under which the Bill was framed.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - The original draft contained no provision excluding State servants. A copy was obtained by the Agc, by means of a petty larceny, or in some manner which was not quite straightforward, and the summary of its provisions, printed next morning, contained no reference to State servants.


Mr Robinson - That fact does not prove that there was no reference in the draft to State servants.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - I was connected with the press for fourteen years, and I know that a salient feature such as I refer to would not be lost sight of.


Mr Deakin - The Minister then in charge of the Bill gave a copy of it to a reporter of the Age. What occurred was due to a misunderstanding.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - There was a breach of honour somewhere. When Mr. Irvine was interviewed on the subject he was in a state of some hesitation ; but if it had been proposed to include State servants we -know that he would have had nothing to do with 'such a proposal. The Prime Minister says that it would be absolutely unconstitutional to include State servants in the Bill, and yet he has inserted a provision which specifically excludes them.


Mr Deakin - The honorable member forgets that the right honorable gentleman who shortly afterwards left the Cabinet held the opinion that if there were no reference to State servants they would be included. I differed from him.. I said that if there were no reference they would be excluded. The provision inserted in the Bill was adopted to meet the views of my colleague, and to place the matter beyond all doubt.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - I am in accord with the right honorable member for Adelaide. I think that if no reference were made to State servants the provisions of the Bill would extend to them. There is the suspicion afloat, however, that the subsequent revision of the Bill was an instance, if not of panic legislation, of panic draftsmanship. If a certain event had not occurred in Victoria we might not have heard of this exemption clause. The honorable member for Richmond last night referred a good deal to English history, and particularly to the history of the Revolution. When he was speaking the recollection crossed my memory that after the Revolution they adopted in England the Bill of Rights, and in Scotland the Claim of Rights. According to the best English lawyers, the institution of torture was always illegal in England, and consequently there was no need ro deal with it in the Bill of Rights; but, as the best Scotch lawyers considered it to be legal in Scotland, it was thought that it should be dealt with in the Claim of Rights. However, while the matter was under consideration, Lord Advocate Lockhart was murdered under circumstances of considerable atrocity, and that occurrence determined those, who were dealing with the matter that the right to torture should be maintained. They decided an abstract proposition wholly because of particular circumstances brought under their purview at the time. Thev refused to abolish torture because at that particular juncture they wished to use the right to torture. That was an instance of panic legislation ; and, similarly, I think that the Victorian strike had 10 do with the drafting of this Bill in regard to the control of State employes. It seems to me that it had a great deal to do with the proposal made here to positively exclude them. I do not for a moment doubt our power under the Constitution to do so ; but I wish to leave the whole question open, and await the considered decision of the very able gentlemen who adorn the High Court Bench. In dealing with the question whether States employes, particularly railway servants, Could be brought within the scope of our powers under the Constitution, I would point out that section 51 gives us the power to make laws for the peace, order, and good government of the Commonwealth. Nothing has a more important bearing upon the maintenance of peace, order, and good government in Australia than the vast network of railways in each of the States. The peace, order, and good government of the Commonwealth is very largely dependent upon the relations which exist between the railway employes and the Commissioners. On dissecting this important section, we find that by subsection 1, trade and commerce between the States is brought under our supreme control. Under sub-section IT. we have power to deal with taxation. A question has been raised as to whether we could tax States imports. I believe that that point is now being submitted for the decision of the High Court, but I have always entertained the view that it is absolutely essential that we should have the power to tax States imports, and I see nothing in the Constitution to the contrary. This power is clearly necessary for the protection of other States. There is no distinct provision to this effect in the Constitution, and the power is conferred only by inference. In connexon with the power of taxation, we have the right to levy excise duties on spirits and other commodities manufactured within the Commonwealth. Should we have power to tax the products of a State distillery or of a State tobacco manufactory ? I say clearly we should have such power. It is not given to us in express terms, but it is conferred by inference. We find that under section 91 of the Constitution we have power to grant bounties. Could we give bounties to a State Government? Do we make any distinction between a State Government and an individual? It has actually been proposed in this House to give a bounty to a State Government in connexion with the production of iron. Then, again, subsection XIII. of section 51 confers powers upon us to deal with banking other thai State banking, and also with State banking which extends beyond the limits of the State concerned. We are not to interfere with State banking when it does not extend beyond the limits of the State concerned. That is also the only limitation to our powers in connexion with conciliation and arbitration. As long as a dispute is kept within a State we cannot interfere. It is only when it extends beyond the limits of a State that this Parliament has power to step in and deal with it. In regard to banking and insurance, we can interfere the moment that the business of any State in these matters extends beyond its own border, and in the same way we can step in under sub-section XXXV.. which confers upon us the power to create tribunals for the prevention and settlement of industrial disputes extending beyond the limits of any one State. It has been stated, notably by the honorable and learned member for Bendigo, who, together with Mr. Theodore Fink, has contributed a long opinion to one of the Melbourne newspapers, that we cannot interfere between the State and its employes, because if the Arbitration Court raised the wages of the State employes the State Parliament might refuse to make the necessary provision. Passing by, for the moment, the assumption that wages would be raised in every case, and noting that the Court will deal with many Questions besides that of wages, I would ask if there are not many difficulties precisely similar to those indicated by the honorable and learned member for Bendigo and Mr. Fink with reference to other Federal institutions, in connexion with which the power of the Federal authorities is unquestioned. Take the High Court itself. That Court might decide in its appellate jurisdiction against the verdict of a State Court, that the State should pay £100,000 as compensation to persons injured through some accident upon the railways arising from defective mechanism or gross carelessness. Can it be contended for a moment that the State would refuse to make the necessary provision to comply with the decision of the High Court? Take the case of banking or insurance. Suppose a State entered into banking or insurance business, and extended its operations beyond its own borders, and thereby opened the way for the exercise of the undoubted power of -this Parliament to impose regulations, would the State authorities resist a provision by us that certain securities should be deposited with the Federal Government ? We can see that the decisions of institutions created by the Federal Parliament might be at variance with those of somewhat similar institutions created by the States Parliaments, and that if the latter were disposed to go to extremes they might resist the Federal authority. We do not, however, for a moment apprehend that such' a position of affairs would ever come about. The same people who created the machinery in one case would be called upon in the other case to find the funds necessary to comply with the authority exercised through that machinery. I do not see how any difficulty could arise, unless we- take a view that is not warranted by anything we know of English communities under free institutions. If a rigid interpretation is to be placed upon the Constitution, I would invite the attention of honorable and learned members to section 98, which gives power to the Parliament to make laws relating to trade and commerce, extending to navigation and shipping, and to the railways the property of any State. That is very definite', but would it not also apply to private railways? Most decidedly. They are not mentioned, but that fact does not exempt them from the operation of the section. Would not the power of the Federal authorities also apply to States shipping? Suppose a State entered into the shipping business for the purpose of competing with private firms. Does any one suppose that, under our Interestate Commission we could not submit State-owned ships to exactly the same conditions that we imposed upon private ships? In the same way is it to be for one moment imagined that we could not impose the same obligations on private railways that were intended to apply to State railways? Yet, if we were to rigidly interpret that section, as some honorable members appear inclined to treat the sub-section relating to conciliation and arbitration, we should be forced by a parity of reasoning to exclude private railways and States ships from the operation of the Federal authority. Then, again, take the case of the Swiss cantons, and the provision made for education under the Swiss Constitution where the Federal Parliament has provided for an excellent system of compulsory education, and the cantons are called upon to find the funds to carry it out. The system may be extended and rendered more expensive from time to time, and yet because of the good sense of the community there is no friction. The Prime Minister said that the case of Switzerland was not on all fours with our own. Nor is it. But we have to remember' that ever since its establishment the Swiss Federation has been moving more and more in the direction of our Constitution. Yet. in regard to the question not only of education, but of the .maintenance of roads and several minor matters, the Swiss people have experienced no difficulty whatever as the result of allowing the National Legislature to enact laws for the administration of which the Governments of the Cantons are obliged to find the money. In my judgment, what we need is a measure dealing upon broad general lines with disputes which are likely to pass beyond the limits of any one State. At the same time, our legislation should not embrace minute details such as are dealt with by State laws. If a dispute be of a Commonwealth character, it necessarily follows that it can have little to do with those minute details which occupy so much time in our State Arbitration Courts, leading to a congestion of business, and preventing the unions from obtaining those speedy decisions upon the main issues involved upon which the success of this class of legislation largely depends. If we could obtain an Act which is . capable of dealing chiefly with the broad questions involved in wages - because the matter of holidays may be settled by, local custom or by State legislation - I hold that we should secure advantageous legislation, because it could be applied to large disputes, such as maritime, railway, or shearers' disputes, all of which we know, from experience, are likely to recur sooner or later. It is for these disputes that we should prepare, and not for the minor troubles to which certain portions of the Bill refer. There are one or two other matters to which I desire to direct attention. In the first place, I observe that the' title of the Bill has been altered. That seems to me an admission of the existence of some of the difficulties which I have already endeavoured to point out. When the Bill was under consideration in Committee last year, the present Prime Minister proposed to amend clause 3, so as to make its wording harmonize exactly with the paragraph in the Constitution which has reference to this question. At the time I could not help remarking that his action was probably taken with a view to obtaining the decision of the High Court as to the powers which we possess in regard to this legislation. I pointed out that it would be far better- to adopt the phraseology of the Constitution itself in the title of the Bill. That suggestion, I am pleased to note, has now been acted upon. I think that it is wise to test our constitutional powers upon the very title of the measure. We shall then know exactly where we stand. Concerning the details of the measure, I have previously . stated that in my opinion we are committing a mistake- in refusing to appoint permanent Justices to the Arbitration Court. It is urged that we require to have Justices who are skilled in the special matters which will be submitted for their consideration. But experience has taught us that it is utterly impossible to obtain the services of Justices who will be skilled in all matters which come before an Arbitration Court. To my mind it is wrong to appoint two gentlemen, who are simply the nominees of the rival parties to any dispute. If a similar system were adopted in other Courts, chaos would be created immediately. In those Courts matters of even weightier import than those which will occupy the attention of the Arbitration Court are decided. Some of our mining courts have to determine questions which involve larger sums of money than those which will be affected by the decisions of the Arbitration Court. Personally, I am of the opinion that it would be wise to appoint three Justices to settle disputes under this Bill. The idea that it is necessary to have Judges who are possessed of, special knowledge is an erroneous one. The proper place for an expert is the witness-box. It has been stated that Mr. Justice Cohen and some members of the Arbitration Court in New South Wales have complained that they could not follow the intricacies of certain cases which came before them. But I would point out that it is no new experience to find Justices in other Courts admitting, in exceptional cases, that they have been confronted by a difficulty from an absence of technical knowledge. In such circumstances, they have to obtain the best assistance available from experts in the witness-box. We have to recognise, too, that beyond the contending parties to disputes, the public are largely interested in their settlement. The three Judges should represent the State just as much as do Judges in cases of civil or criminal jurisprudence. I hold in my hand the report of a statement made by Mr. W. D. Cruickshank in regard to his position as a member of the Arbitration Court in New South Wales. The extract is taken from the Sydney Morning Herald, of 19th January last. It reads -

Mr.W. D. Cruickshank, employers' representative in the Arbitration Court, attended the last meeting of the Council of the Employers' Federation, and made a statement in reference to the general principles by which he is guided in adjudicating upon arbitration matters. The President, Mr. H. Hudson, in introducing Mr. Cruickshank, said that Mr. Smith, the representative of the employes, made it appear by his actions that he and Mr. Cruickshank sat only as advocates for the parties they represented. Therefore, it was suggested that the employers' case was prejudiced, as Mr. Cruickshank was unacquainted with the circumstances before they came before him as a Judge. Other members of the Council said that some of the employers felt it would be in their interests if Mr. Cruickshank would follow more the lines of Mr. Smith, as they thought he sat there not as a Judge, but as an advocate. It was also thought that it would be desirable for Mr. Cruickshank to be approachable for advice by employers, as Mr. Smith was for the employes. It was also stated that if certain matters had been brought before Mr. Cruickshank prior to the hearing by the Court, the award might have been different. In reply to these remarks, Mr. Cruickshank made an unequivocal declaration of policy. He said that the importance of being " in continuous touch " and being " posted up " was very much over-rated. In fact, he was quite satisfied, in his own mind, that any and all such posting up would be of very fractional and doubtful advantage, because employers' counsel, from his experience and training - if properly instructed - could, and no doubt would, put all the points before the Court much better than he could, and the sworn evidence must of necessity be the principal factor in determining any award.

I think that Mr. Cruickshank's opinion did him honour. It will be seen, from the above extract, that the opinion exists amongst the organizations of labour and capital, that their nominees upon the Bench are really advocates. That being the case, it should be pointed out that wherever there is room for a difference of opinion, the case is decided by the Judge. In such circumstances, I hold that we are wasting money in appointing these two additional men to the Bench. If any case is so intricate as to require the possession of special knowledge, that knowledge should be supplied through the medium of the witness-box. I do not think that any legislation of the character proposed has gone far enough in the direction of ascertaining how much can be achieved by means of conciliation. Some of our State Acts provide for the reference of industrial disputes to arbitration alone, and others for their reference to a Conciliation Board in the first instance. In the latter case, conciliation fails utterly. In the New South Wales Act - and it is likely to be the case under this Bill - the arrangements made for bringing conciliatory methods to bear upon industrial disputes have practically no effect whatever. Up to the present time comparatively little has been done by means of conciliation. It seems to me that the chief hope engendered by legislation of this character has been admirably summed up by a writer in the Argus, who says -

No Court, whether voluntary or compulsory, is to be considered successful unless it promotes the preliminary settlement of disputes by friendly meeting around a common table. The smaller the number of cases which come up for arbitration, because they cannot be settled by conciliation, the greater is the success of the Court. The business of the whole machinery of industrial conciliation must be preventive rather than curative.

In this Bill no provision is made to induce conciliation in case of industrial disputes. I hold that we can induce conciliation if we can compel it by making use of the selfinterests of the parties to disputes. In Committee I intend to submit a proposal having for its object the bringing about of a settlement of a larger number of industrial troubles by means of conciliation, and thus avoiding what I regard as the chief blot upon the New South Wales Act, namely, "the splitting" of differences. It is a principle, which in my opinion is fraught with great injustice. It allows questions to be settled in a haphazard fashion, and is one which would not be recognised in any ordinary Court of law. I feel that I may safely appeal to the lawyers of this House to support my statement, that the system of " splitting differences, " which has been adopted to a large extent by Arbitration Courts, would not be countenanced in any other tribunal. A case is brought before the Court, in which the men demand for example, ns. per day, while the masters offer only ios. After wasting a great deal of time in hearing evidence, the Court settles the dispute by fixing the wage at i os. 6d. per day. The effect of this system must be that the workers on the one hand will recognise that, if they fail to ask for a sufficiently high wage, they will be awarded a rate of pay less than they expect to receive, while the employers on the other hand will feel that if they do not make a sufficiently low offer, they will be called upon to pay more than they would otherwise be required to do. The result of the system is that parties are forced wider and wider apart. If we Could introduce the principle of equity we ought to do so. On one occasion, a comrade and I were in the bush, and our supplies were reduced to a very small piece of bread. We had had nothing to eat for ten hours, and my comrade, turning to me, said - " I will halve the bread, and you may choose." I have held the opinion ever since then that that was the most absolutely equitable method of division that could have been devised. The nicety with which my friend divided the bread really left no advantage to be gained by making a choice. It seems to me that if we could bring a principle of that kind to bear under our Arbitration law we should effect much good. I consulted the right honorable member for Adelaide, whose absence I am sure we all regret, in reference to my desire that we should embody a principle of this kind in the Bill. He agreed that it was worthy of consideration, and assisted me in drafting an amendment which at a later stage I shall place before the House. The amendment embraces to a considerable extent the principle I have named, and I desire that it shall be ventilated at this stage. If it were brought into operation it would materially reduce the work which must otherwise flow to the Arbitration Court; it would also avoid such a congestion of business as now exists in the New Zealand and New South Wales courts. My proposal is, in effect, that the workmen on the one side and the masters on the other should come together in the conciliation stage of the proceedings provided for in this Bill, and that after they had fully discussed the points at issue they should be called upon, if unable to arrive at a satisfactory settlement of their differences, to place on the records of the Court the last offer made by the masters and the latest demand made by the men. That record should be under the control of the registrar or the president of the Court, and they should be able, if necessary, to return 'it to the parties, in order, to clear up any ambiguity in the language employed. The question at issue might relate not only to the rate of wages, but to holidays, overtime, the supply of tools, and other matters, and each party should be required to make a final offer in regard to every point at issue. When the dispute had passed On to the Arbitration Court, the Judge, after hearing all the evidence,, would say, unless he saw some strong reason for departing from this principle - "On points A, B, C, and D, the offer of the masters, or the demand of the men, should be conceded, and nothing else.:' In this way we should bring the parties so closely together in the conciliation stage of the proceedings that they would hasten to settle their differences. After giving the matter much consideration, it appears to me that it is only by some such means as these that we shall be able to induce conciliation, and so avoid the immense amount of work which must otherwise be thrown on the Court.. The principle which I have outlined is. not altogether new to jurisprudence. It is that underlying the old law of the Athenian democracy. We know that they had a system by which a person who instituted proceedings before the jury or dycastery was called upon to name the penalty to be imposed. The defendant had an opportunity to name some other penalty ; and, in the event of his conviction, the jury had to determine which of these two penalties should be imposed. It will readily be recognised that, in a state of- society such as that of the old Grecian democracies, it was necessary to have some such power to prevent political animosity being pressed to extremes, and the persecution of men even to the death. We see the operation of this, law in the historic trial' of Socrates. Socrates was charged by Miletus, the poet, Anytus, the tanner, and Lycon, the orator,, with denying the gods of Athens, and corrupting the youth. The charge was brought before the dycastery, and these three citizens were constituted the public' prosecutors. In those days they did' not have regular public prosecutors. Nostatutory penalties for crimes of this kind - and they were regarded as crimes - existed. Socrates had three courses open to him. He could plead guilty and throw himself on the mercy of the court by naming a lower penalty, he could plead - "I am not guilty, but even if I am, the penalty named is excessive for such an offence" ; or he could plead " not guilty," and rely upon obtaining acquittal. As we all know, he was found guilty, and in a contemptuous spirit proposed an alternative- fine of one mina. His friends, fearing that he would be put to death for making so contempuous an offer, expressed a readiness to pav thirty minas. Even that penalty, however, was considered insufficient, and Socrates went to the cup of hemlock. This principle, although now out of date, possesses features of which use might be made in our Arbitration "Courts, and which would certainly reduce the number of cases now being brought forward. The business of both the New Zealand and the New South Wales Courts is in a most congested state, and this has an irritating effect on all parties. If we laid down some principle on the lines which I have suggested, we should be able to induce conciliation, and do away with the excessive demands and unreasonable offers that we see, from time to time, in connexion with cases that now come before the States Courts. The less friction we have in the working of our Arbitration Court, and the speedier and the more just the decisions of the Court the better.' Let us, then, endeavour to secure these desirable ends, and pass a piece of legislation which will set a good example to the States.







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