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Tuesday, 14 June 1904

The CHAIRMAN - The honorable and learned member must confine- his remarks to the amendment itself.

Sir JOHN QUICK - I submit that the proposal of the. Government, instead of conducing to the settlement of industrial disputes, will tend only to their multiplication. It will foment trouble and create litigation. Under its operation the State authority, if it be confronted with an industrial dispute which is within its own jurisdiction, and which it anticipates will extend to another State, is practically encouraged . to dispose of it by referring it to the Federal authority. Such a proposal will not tend to the settlement of disputes, but rather to tha enlargement of their area, and the multiplication of the difficulties which are incidental to them. The amendment seems to me to be a very subtle and well designed attempt to interpret the Constitution in a manner that will expand, if it possibly can, the limited meaning of sub-section xxxv. of section 51. We can put nothing in this Bill that can in any way enlarge the Fede.ral jurisdiction. If that be admitted, where is the utility of inserting these words? Undoubtedly, they are intended to give a special signification to the words "prevention of." It is certainly a very well planned proposal, but I venture to say that it will prove quite abortive, although the purpose in view may be a very laudable one. The insertion of the words proposed cannot add in any way to the powers conferred upon us by the Constitution.

Mr Watson - Their non-insertion may limit those powers, and that is what the honorable and learned member is striving after.

Sir JOHN QUICK - I wish to adhere to the words of the Constitution itself.

Mr Watson - Some honorable members who are opposed to this Bill wish to limit it in every possible direction.

Sir JOHN QUICK - I am merely desirous of seeing that no indirect attempt is made to exceed our legitimate powers, or to incorporate in the Bill a placard which will tend to foment disputes rather than to settle them. Clause 26 provides -

The Court shall have jurisdiction to prevent and settle, pursuant to this Act, all industrial disputes.

If the Government proposal is merely intended as a hint to the State industrial authorities that they may refer to the Federal authority disputes which come within the jurisdiction of the latter, I ask why do they nol adhere to the words of that clause? Why not provide that the State industrial authorities may refer to the Federal authority industrial disputes extending beyond the limits of any one State? But the Government do not adhere to the language of clause 26. They propose to insert new words, and thus to effect an enlargement of the powers conferred by the Constitution, rather than a limitation of them. Whilst I do not seek any limitation. I protest against any attempted enlargement of those powers. From time to time the Attorney-General and the Prime Minister have dwelt upon the meaning of the word "prevention," and it is quite right that they should do so. The whole struggle centres around the meaning of the words " for the prevention and' settlement of industrial disputes." I quite concur in the view which is entertained by the honorable and learned- member for Ballarat, that the words " prevention and settlement " should be read together - that they are analogous expres-sions - and that " prevention," in its allocation with " settlement," means merely the adoption of legislative measures, to stop, or thwart, or settle industrial disputes. It does not mean anticipatory action-

Mr Watson - That is certainly a good lawyer's definition. It fines the matter down to the disappearing point.

Sir JOHN QUICK - This is not a lawyer's question, because, in Webster, of two meanings which are given of the word " prevention " one meaning is " anticipatory action," and another " to stop, to thwart or impede action." In this case, I hold that the word is capable only of the latter signification. Otherwise, where is to be the limitation? Is any Judge or authority, who imagines that there is likely to be a strike in a certain industry, to be vested with power to intervene? I would further point out that the prevention of a " dispute " does not necesarily mean the prevention of a " strike." A " dispute " is a very different matter from a " strike." The former may mean merely a controversy. This clause, therefore, proposes to make provision for the stoppage, thwarting, impeding, or settlement of a controversy that may arise between parties, not one which has arisen. I submit that a controversy of some kind - not necessarily a strike - must exist before the Federal authority is vested with any jurisdiction. If no controversy exists, there can be no jurisdiction. Therefore, to incorporate in this provision the words " likely to occur," is a most serious enlargement of the Federal powers. It means that the States authorities are to be vested with jurisdiction to refer to the Federal authority any controversies which are likely to occur, because the word " disputes " means "controversies." Surely it is not intended to give the Federal or State authorities, or any legal tribunal, jurisdiction over controversies which are " likely to occur !" Surely the jurisdiction must be over something in esse - something actually in existence - otherwise it will be found to have a most shadowy foundation. I admit that the Government are not responsible for this clause, and I do not think it is essential to the integrity of the working of the measure that it should be retained. All that is necessary is that provision should be made for the Federal tribunal acquiring jurisdiction either by a summons or by a certificate of some kind. Paragraphs a and b of clause 28 provide two very simple methods by which the Federal Court can acquire jurisdiction. One is by means of a certificate from the Registrar, and the other is by submission. Certainly the best method of acquiring jurisdiction is bv the submission of one of the parties to a dispute. If the parties themselves can give the Court jurisdiction by submitting their dispute to it, what more is required? Why vest in a State authority, which may want to get rid of its own work, the power to refer a dispute to the Federal authority ? If the parties do not appeal to the Federal Court, why should the State Court have the power of sending them on to the Federal Court ? Surely it is quite sufficient to allow the parties themselves, bv the adoption of some procedure, to appeal to the Federal Court. By this clause, for which the Ministry, as I say, are not responsible, an outside body is to refer parties in a matter in which, perhaps, the Federal Court will say it has no jurisdiction, a dispute or controversy not having arisen. My advice to the Government is to strike out clause 27, and leave the mode of inquiry and jurisdiction as defined by sub-clauses a, b, and c of clause 28. That would meet all the requirements of the case, without impairing the integrity, power, or efficiency of the Federal tribunal.

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