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Tuesday, 14 June 1904


Mr HIGGINS (Northern MelbourneAttorneyGeneral) - I should like to say a few words with regard to the contingencies arising under this clause, which has. been so widely attacked. But before doing so, I may say that it does not add one iota to the power which the proposed Court will possess. Honorable members may take it that there is not in this clause, nor in the amendment to the clause, any fraction of power added to the Court of Arbitration.


Mr Deakin - If the Court has no power, what is the use of it?


Sir John Quick - It seems to give an interpretation.


Mr HIGGINS - I wish, first, to have it understood that, if my honorable and learned friend wanted to attack this interpretation oE the Constitution, he ought to have attacked it under clause 26, which has been passed. That is the only clause which gives jurisdiction. These clauses merely state who can bring the case before the Arbitration Court. One of the authorities which can bring the case under the Arbitration Court is an organization ; another is the registrar ; and another is a State industrial authority ; and clause 27 simply says that a State industrial authority shall have the power to bring the case under the attention of tha Arbitration Court.


Mr Deakin - That is all that it did say.


Mr Glynn - The amendment is a limitation of the clause as it stands, because if a dispute extends it cannot be referred.


Mr HIGGINS - I am afraid that I must have possession of the chair for the time being, and leave my honorable friends to fight it out. The honorable and learned member for Ballarat exceeded fair limits, I think, when he spoke of our allowing trivial disputes to be brought before the Court. What does it mean ? Is it a trivial dispute when a State Court of Arbitration says that a local dispute is too wide-spreading for it to deal with, that the dispute is likelv to go beyond, the limits of the State?


Mr Deakin - It may arise in two shops in two border towns, separated by a river.


Mr HIGGINS - Are we not to trust the State industrial authority ; are they fools? We must trust the State industrial authority to be fairly constituted of sensible men, and if they think that a dispute is so grave and so serious as shortly to be passing out of their control, they can sav to the Federal authority. "It is time for you to take it up."


Mr Groom - Can they decline to exercise jurisdiction on that ground?


Mr HIGGINS - They can exercise a discretion; there is no obligation to send it on.


Mr Groom - They are under an obligation to settle the State dispute.


Mr HIGGINS - I have no doubt that my honorable and learned friend will bear me out in this statement, that there is no obligation on the part of a State industrial authority to send to a Federal Court a dispute that is likely to extend beyond the State.


Mr Groom - Can they refuse, on that ground, to determine a State matter that is before them ?


Mr HIGGINS - That is, I think, confusing two ideas.


Mr Groom - No.


Mr HIGGINS - I think that they can say, " We do not think it is a matter that we should send to the Federal Court." But admit that they would be bound' if the matter were brought before them, to consider whether they ought to send it through or not. I have disposed - at all events to my own satisfaction - of the idea that trivial disputes are brought before the Court.


Mr Deakin - They, may be trivial.


Mr HIGGINS - I intend to trust the Arbitration Courts.


Mr Deakin - They cannot make them great.


Mr HIGGINS - What is the history of this clause? As it originally stood, it provided that -

Any State industrial authority may request the Court to deal with any industrial dispute.


Mr Deakin - "An industrial dispute," as it was then defined.


Mr HIGGINS - That is the way in which the clause stood in the Bill of the \ate Government at the time of my second reading speech. I pointed out that there was no good in the provision, if a State industrial authority could refer a dispute only after it had extended beyond the boundary of the State, because the Federal Court would already have jurisdiction. Then it was that the late Prime Minister put it to me with a great deal of force that it was advisable, so far as we could, to get the two sets of industrial authorities into touch by any means in our power. 1 acceded to that. ' Our principle in the drafting of amendments has been, as far as we possibly could, to avoid changes in the proposals of the late Government except where, in our opinion, they were absolutely essen- I tial. Therefore, having regard to other and substantial reasons, we determined to keep to this clause as closely as possible. The only way in which I saw that the clause could be made useful was by saying that a State industrial authority should be allowed, if it thought fit, to send to the Federal Court any dispute of which it had cognisance, if it extended, or was likely to extend.


Mr Deakin - Those are the words - "or is likely to extend."


Mr HIGGINS - We wish to make this clause of some use. We will suppose that we have passed a clause giving the Federal Court the- power to prevent, as well as to settle, disputes. Well, supposing that I wish to prevent a plague as well as to settle a plague, or cure it. Surely, in order to prevent a plague, I may take precautions to prevent the plague from coming in before the ship lands her passengers. If we had power only to cure a plague we could deal only with people who were infected. So, on the same principle, we wish to treat an industrial dispute - as if it were a plague. We wish to adopt measures which will prevent industrial disputes which extend beyond the limits of any one State.


Sir John Quick - Why do not the Government follow the words of the Constitution ?


Mr HIGGINS - This is not the clause for doing that. We have done that in clause 26.


Sir John Quick - That is to prevent disputes.


Mr HIGGINS - Quite so. We have followed the words of the Constitution in clause 26, which the Committee has passed without any demur.


Sir John Quick - Why do not the Government follow them here ?


Mr HIGGINS - Because this is not the place for doing so. The honorable and learned member might as well say that we ought to follow them in the clause which enables the Governor-General in Council to make regulations. This is not the place for doing so. Under the head of cognisance of disputes. and ordinary procedure, the clause merely provides machinery by which the Federal Court of Arbitration shall have matters brought under its notice, and; in truth, if one looks at clause 27, it will be seen to be the most petty one in the series. If anywhere, it ought to come in as a subclause to clause 28. The latter says that- the Court is to have cognisance of certain industrial disputes - first, those which are certified by the Registrar; secondly, those which are certified by an organization ; and thirdly, those which are sent on by a State industrial authority. Then there might be a clause, if desired, to the effect that a State industrial authority may request the Court to hear a case. That is the tru E position of the matter, only that it is not worth while to alter the wording. If honorable members will treat clause 27 as though it came in at the end of clause 28, they will see what I mean - that it is merely a piece of machinery to make the Bill fit in with the machinery of a State industrial authority. We give no new jurisdiction here.,


Mr Deakin -" Or is likely to extend " - that is the whole contention.


Mr HIGGINS - The whole of that power we take in clause 26.


Mr Deakin - No; the words there mean " extending beyond any one State."


Mr HIGGINS - There is no meaning in the word " prevent," unless we are dealing with things before they happen. I do not see how we can get out of that position. What is the use of talking of prevention if we carnot deal with a thing before it happens?


Mr Deakin - Then, we have no need to say " extending beyond any one State."


Mr HIGGINS - I can prevent a plague from extending beyond Victoria into New South Wales : but I do so by dealing with it before it goes over to New South Wales. It is a mere question of words. It seems to me that the honorable and learned member is striking at the wrong clause. What he ought to have struck at was clause 26.


Mr Deakin - I am quite satisfied as to that.


Mr HIGGINS - And the honorable and learned member ought to have struck at the sub-section when it was being put into section 51 of the Constitution.


Mr Deakin - That is another thing.


Mr HIGGINS - Yes. Since the word " prevention " is in the sub-section we can give effect to it. The honorable and learned member has drawn a harrowing picture of all the consequences of a State industrial authority being allowed to interfere with the Federal industrial authority in this way. He says this clause" means that the opinion of a State industrial authority determines what matters may be dealt with by the Federal authority. I dispute that reading.


Mr Deakin - That is not what I said. I made two points. The first is that the Bill casts upon the State authority the new duty of forming an opinion as to whether a dispute is likely to extend, and, if they send it on, gives to the Federal Court power to deal with a dispute within a State, because, in its opinion, it is one likely to extend be- yond the State.


Mr HIGGINS - If the honorable and learned member did not mean that it will be for the State industrial authority to decide finally whether a dispute is or is not likely to extend-


Mr Deakin - The State authority decides that before making the request.


Mr HIGGINS - I gathered from the honorable and learned member's argument that he considered that the State industrial authority will be the final authority to decide whether a dispute is or is not likely to extend.


Mr Deakin - No; each body decides that.


Mr HIGGINS - Then I need not refer further to that portion of the honorable and learned member's argument, beyond assuring honorable members that the State industrial authority does not finally decide the matter. If the Federal Court finds that a dispute does not extend, or is not likely to extend, beyond a State, it can say, " We will not deal with it; " and if it did deal with such a dispute, the High Court could interfere by certiorari or injunction to prevent it. All that the State industrial authority, has to do under this clause is to say, " We think this matter sufficiently important to be brought before the Federal Court, because it is extending, or is likely to extend, beyond the limits of the State."







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