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Tuesday, 14 June 1904

Mr GLYNN (Angas) - I think the clause a mistake. Clause 28 is the clause which really vests jurisdiction in the Federal Court to hear these disputes. It is not for us to tell the State authority to refer disputes to the Federal tribunal. All we have to do is to declare and define the jurisdiction of the Federal Court. Whether the State authority refers or does not refer a dispute" is a matter for its own consideration'. This is not merely a technical objection ; it is a substantive one. The State authority will, presumably, deal with any dispute arising in the State, and we are now asking it to destroy its jurisdiction by handing over to the Federal authority disputes which it thinks likely to extend beyond the State. We ' are asking the State authority to destroy the jurisdiction to exercise which it was created by a State Act. If the State authority made a mistake, and referred a dispute which was purely a State dispute to the Federal authority, it might be impossible to settle that dispute. If the Federal authority had jurisdiction, the dispute would, of course, be settled by it. But if it had not jurisdiction, if the interpretation put upon the Constitution by the Government is wrong, and a " dispute likely to extend " is not a dispute within the meaning of the Constitution, the Federal Court will be unable to settle it, and in the meantime' it will have been left unsettled by the State Court. I think it is a wrong way to proceed to say that the State authority should refer a dispute if, in its opinion, it is likely to extend beyond the limits of the State. All we are concerned about is that the Federal tribunal shall have authority where its jurisdiction exists to decide the matter. For that reason I think that the clause should be struck out.

Mr Higgins - The honorable and learned member is against the whole clause?'

Mr GLYNN - Yes, as a matter of machinery, because it may lead to an unfortunate position if the State authority makes a mistake as to the Federal jurisdiction.

Mr Groom - And that mistake may be founded on a question of fact.

Mr GLYNN - Yes. Even assuming that the Federal sphere covers disputes which are likely to extend beyond the limits of any one State - an interpretation 'of the Constitution which is still open to challenge - the State authority may make a mistake of fact. It may decide that a dispute is likely to extend, while the Federal authority may decide that the dispute is n"t likely to extend, and thus we shall have two authorities coming to contrary decisions upon a question of fact.

Mr McCay - While the dispute itself remains unsettled.

Mr GLYNN - It is not provided that after the Federal tribunal has decided that a dispute is not likely to extend beyond the limits of any one State the procedure iri the State Court shall be resumed at the stage at which it was stopped when the dispute was transferred to the Federal authority. I think that we should keep to the ordinarymethods of draftsmanship, and, in creating the Federal tribunal, merely define its jurisdiction.

Mr Higgins - That is done bv clause 26.

Mr GLYNN - It is also done by clause 28.

Mr Higgins - It is necessary to distinguish between jurisdiction and cognisance. Jurisdiction has already been given. Cognisance determines the question who is to bring matters before the Court.

Mr GLYNN - If we provide in clause 27 that the State authority may bring matters before the Federal authority, why should we pass a provision like paragraph c of clause 28 ?

Mr Higgins - That paragraph has nothing to do with jurisdiction.

Mr GLYNN - I know what the AttorneyGeneral wishes the clause to prescribe, but what it does prescribe is that the Federal tribunal shall have cognisance of any dispute referred to it by a State authority. Why go beyond that? Does not that give it jurisdiction, and vest it with power to entertain the dispute? Why incur the possibility of bringing about an unfortunate position through the mistaken exercise of jurisdiction by a State Court ?

Mr Higgins - The honorable and learned member's objection is to the drafting of the late Government. Clause 27 was drafted by them, and he says that it is not necessary.

Mr GLYNN - To that extent the drafting of the late Government is faulty. The clause is not only unnecessary, but it is also dangerous. It will be more dangerous if the amendment is carried, because, although the late Government originally started with the idea that the Federal tribunal would have jurisdiction to deal with disputes likely to extend beyond the borders of one State, its members have now abandoned that idea. The honorable and learned member for Ballarat now thinks that a dispute is not capable of coming within the jurisdiction of the Federal Court unless it extends beyond the limits of a State, which i's very different from the position which he took up when AttorneyGeneral a year ago. There will be less harm in leaving the clause with that interpretation than in giving to the Court the extended jurisdiction now proposed - a jurisdiction over, what is really a -State dispute, though a dispute likely to extend beyond the limits of that State, in which case it is proposed that the State authority shall have jurisdiction to refer the dispute to the Federal tribunal. I do not think that the Constitution confers upon us the right to give jurisdiction with - regard to the mere likelihood of a dispute extending beyond the borders of a State. If die dispute does so extend, it comes clearly within the jurisdiction of the Federal Court j but if it does not extend we have no power to interfere. We might prevent a dispute from extending beyond a State by imposing what I may call an anticipatory penalty.- We might declare that any organization or employer who caused a dispute to extend beyond the limits of a State should be subject to a fine or imprisonment. We might by this means prevent a State dispute from becoming a Federal dispute ; but the Constitution does not contemplate our going beyond that. We could endeavour to prevent a dispute from extending beyond the State; but until it became, a dispute, such as is contemplated by the Constitution, we should have no jurisdiction.

Mr Watson - But if there is a dispute, we can take steps to prevent its extension.

Mr GLYNN - We cannot apply this machinery to prevent the extension of a dispute.

Mr Watson - I think we can, if it is likely to become a Federal dispute; otherwise the word "prevention" has no mean-, ing.

Mr GLYNN - The Arbitration Court could not take cognisance of anything excepting a dispute extending beyond a State; but a State dispute could r>e prevented, by means of anticipatory penalties, from becoming a dispute within the meaning of the Constitution.

Mr Watson - How could we do that ? : According to the honorable and learned member's argument it would not be within'' our jurisdiction to deal with the dispute until it extended beyond the State.

Mr GLYNN - We could impose penalties in this case in the same way that the States impose penalties by way of prevention. We do not prescribe, after he has committed a murder, that a man shall be hanged, but we specify beforehand the consequences which shall be visited upon him if he commits that crime

Mr Watson - But we have no tribunal, except the Arbitration Court, to determine what is a dispute.

Mr GLYNN - Oh, yes ; the High Court could determine it.

Mr Watson - But primarily the Arbitration Court must determine whether a dis pute comes within the purview of that tribunal.

Mr GLYNN - No doubt ; but the Arbitration Court is subject to the High Court. The High Court could declare that the discretion exercised by the Arbitration Court was bad, and that the dispute never extended in such a way as to bring it within the Federal jurisdiction. Until a dispute extends beyond a State we cannot apply the machinery of the Federal Court. But we can impose a penalty upon those who are responsible for its extension beyond the State, and when it has so extended we can call upon the Court to settle it. All we can do, by way of prevention, is to impose penalties upon those who are responsible for the extension. Before a Federal dispute is precipitated certain proceedings have to be taken, because we have inserted provisions similar to those contained in the States Acts, regarding certain submissions which have to be made by majorities of those employed, and so on.

Mr Watson - -Still we should have to rely on the Arbitration Court to say whether Brown, or Jones, had been guilty of an attempt to extend a dispute.

Mr GLYNN - No ; that is not necessary, because we could apply to the ordinary Criminal Courts to impose fines upon the organizations or individuals who were concerned.

Mr Watson - Without providing any means for settling the dispute itself?

Mr GLYNN - When a dispute has extended beyond a State, it comes within the jurisdiction of the. Federal Court, and can be settled by that tribunal. It would be within the province of the States Courts to impose penalties upon those persons who were responsible for the extension of the dispute, and upon such extension the Federal Arbitration Court would have power to effect a settlement.

Mr Watson - All we say is that it is wrongful to foster disputes, when we provide machinery by which they can be adjusted. We cannot say that it is wrong to merely foster a dispute when there is no machinery provided for its adjustment.

Mr GLYNN - But we are creating machinery for the settlement of disputes. The Attorney-General says that we are also "creating machinery to prevent disputes. I contend that that is not the intention of the Constitution, the object of the sub-section being to enable us to settle disputes when they have arisen. In order to prevent disputes in the States being extended, and coming within the jurisdiction of the Federal Arbitration Court, we can apply a series of penal provisions. The Federal tribunal cannot take cognisance of any dispute that does not extend beyond the limits of any one State, but we can by means of a Federal Act provide for penalties to be imposed upon persons who are responsible for the extension of a dispute. Assuming that a dispute has once been extended, we can do the two things. We can settle it, because, owing to its extension, it " has been brought within the purview of the Federal Arbitration Court, and we can punish the organization or employer responsible for its becoming a Federal dispute. We could apply to the Criminal Courts to punish those responsible for the extension, and could invoke the power of the tribunal created under the Bill to settle the dispute. That is a reasonable interpretation of the provisions of the Constitution, and it obviates the necessity of extending the operations of the Arbitration Court into the State jurisdiction. What right have we to interfere in the settlement of States disputes ? Under the amendment we should actually have the power to take States disputes entirely out of the hands of the States authorities.

Mr Higgins - No, no.

Mr GLYNN - It is proposed to give power to a State tribunal to decide whether a dispute is likely to extend beyond that State.

Mr Higgins - But it is one thing to give power to a Court, and another to take it away. The honorable and learned member states that we propose to take disputes out of the hands of the States authorities.

Mr GLYNN - We propose to confer all the power that is necessary under clause 26, and clause 28, sub-section 111. Now, it is proposed in an intermediary clause 27 that we, shall actually interfere with the province of the States, because it is contemplated that we shall instruct the States tribunals as to what' they shall or shall not do. We ask the States authorities to determine on the facts or the law, whether a dispute is of a Federal character' or not, and if they make a mistake the result may be to leave unsettled a dispute cognisable by those authorities.

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