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Tuesday, 14 June 1904


Mr HUGHES (West Sydney) (Minister of External Affairs) . - I really do not see why any objection should be taken to the clause as it stands, because it does not appear to me to invade any State rights. Some of the objections of honorable members, notably those of the honorable and learned member for Bendigo, have been directed against the clause as it stands, and I propose first to deal with these. The clause provides -

1.   Any State industrial authority may, in manner prescribed, request the Court to deal with any industrial dispute.

2.   When in any State there is no State industrial authority, the Governor in Council of the

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

How does that invade State rights? Obviously, it may be convenient for a State Court to avail itself of such a power. Or it may be necessary for it to do so. In any case, the important point is that such a power is optional. There is no power to compel a State Court to act in the manner indicated. It may do so because it is convenient, or because it is practically necessary ; but in every case it is optional. One of the essentials of this class of legislation is that the Court must be ready to deal with a dispute whenever it arises. Clause 32 provides -

The Court shall, in such manner as it thinks At, carefully and expeditiously hear, inquire into, and investigate every industrial dispute of which it has cognisance.

One of the essentials - if this measure is to be something more than a mere name, and to have real effect in preventing and settling industrial disputes - is that the Court must always be ready to hear disputes. Now, it is notorious that, until a few days ago - and this is the month of June - the Arbitration Court of New South Wales had not settled one dispute this year. I am speaking about what I know.


Mr Conroy - What about the Fresh Food andIce Company's case?


Mr HUGHES - I am not speaking about industrial agreements that have been filed in the Court, but of disputes, properly so-called. Up till last Wednesday the Court had not really settled one dispute.


Mr Conroy - Did they not settle the bread carters' case?


Mr HUGHES - That case arose last year. The Court has not settled one of the disputes which have been brought before it during the last six months, and there are between thirty and forty cases now awaiting settlement.


Mr Deakin - And which . have been commenced this vear?


Mr HUGHES - I refer to cases which are now outstanding, and which have not been settled.


Mr Deakin - The Court has. within the last day or two, given its award in the bread carters' case.


Mr HUGHES - That is not so. I repeat that the Court has not given an award in any shape or form during the current vear.


Mr Deakin - I think that the Minister is mistaken.


Mr HUGHES - The Court has, of course, registered a number of agreements, which to all intents and purposes have the effect of awards.


Mr Robinson - What has it been doing all this time ?


Mr HUGHES - It has been settling breaches of awards, inflicting penalties, and so on. Incidentally, the Judge has been on circuit, and there have been vacations, and other examples of all those admirable methods known to the profession of passing the smiling hour. At any rate, the fact remains that although the Court has heard a great number of cases this year, it has not yet settled any of them. Now, I ask honorable members to assume that there is a state of industrial conflagration, that Australia is in exactly the same condition as prior to the 1890 strike, that the members of the various unions are in such a frame of mind that they must either go out and do something, or get something done to them by the law, or otherwise, and that they have been told to await the pleasure and convenience of the Arbitration Court. I do not say that the New South Wales Arbitration Court is to blame for the present state of affairs, or that it is to be supposed for one moment that this will always continue. I believe when a large number of the disputes which have been referred to the Court are once settled it will easily be able to keep up with the work. At all events, I assume so. One particular . reason why the Court has been prevented from dealing with the cases submitted to it is that no provision has been made to refer penalty cases to an ordinary Court. If magistrates could hear such cases, the Court would be easily able to deal with half the matters now before it within six months. More than half its time is taken up in settling the terms of awards and dealing with matters incidental thereto. Assuming such a state of affairs as I have indicated, in which we should have the beginnings of an industrial dispute which would come within the definition of subsection xxxv. of section 51 of the Constitution, it would be absurd to suppose that the matter could be at the present time conveniently and expeditiously heard by the New South Wales Court. Therefore, I say that if the Federal Court is to settle anything at all - I shall come to the question whether, a dispute can be arrested before it has actually spread beyond any one

State - it is necessary that a State Court should have power to refer a dispute to the Federal Court, if it thinks fit. That is practically what the clause provides for.


Mr Conroy - Which industrial authority would refer the matter - the Court itself?


Mr HUGHES - I presume that in New South Wales the Court itself would be the referring authority. Under this Bill the Registrar has certain powers which ave notconferred upon the corresponding officer in New South Wales, but I suppose that in New South Wales the Court itself would act. I do not know- that the Judge of that Court has any powers other than those which the Court itself possesses in this particular. I believe that the Arbitration Court would refer the matter to the Federal tribunal. Iri such a case, what injustice would be done to New South Wales? How could that be regarded as an invasion of State rights or prerogatives? This matter ought to be looked at impartially. It is easily understood that the proposal is repugnant to those who do not believe in the principles of the Bill, but in view of the fact that the principles of the measure have been accepted, honorable members should bend every effort to make it a good one. This clause proposes to confer an authority which appears to me to be essential to any satisfactory working out of the measure. I confess that I do not see what power the industrial authority in New South Wales would have to remit a dispute to the Federal Court, even if we inserted this clause. It would have to get that power from the State. Supposing, however, that the Court has no power now. it is very obvious that under sub-section xxxvn. of section 51, the State Government could confer upon the Federal authority the right to deal with such matters.


Mr Conroy - But how would the Federal Act confer upon the State industrial authority power to remit disputes to the Federal Court?


Mr HUGHES - The State Government would have power, under sub-section xxxvii. to confer the necessary authorityThere is now no virtue in the New South Wales Court to refer any matters to the Federal tribunal, but the clause takes one of the steps necessary to effect that purpose. If the Parliament of New South Wales decides that it is expedient to take action under sub-section xxxvn., we shall have done our part, and their wishes can be carried into effect. With regard to the amendment, the question as to what " prevention " means has been dealt with by the honorable and learned members for Corinella and Darling Downs.I do not propose to attempt to do anything more than say that in my opinion one thing is abundantly clear, and that is that " prevention " and "settlement" do not mean the same thing. I think that majr be admitted by the most rabid opponents of this measure. What is a " settlement ?" It certainly involves something in relation to an existing dispute; something that is in esse. Now, what does " prevention ' ' mean ? Does it mean something exactly the same; that is to say, something in existence? If it does, then " settlement ' ' and " prevention ' ' are synonymous terms, and presumably the use of such terms was not contemplated by the framers of the Constitution. We may then safely assume that "prevention" means something else. I shall not go so far as to say that it means everything that the honorable and learned member for Corinella deduced from the statement of the Attorney-General. But I do say that " prevention " and " settlement " mean two entirely different and almost opposite things. ' The onus is upon those honorable members who urge that ' prevention " in sub-section xxxv. of section 51 of the Constitution means something other than the ordinary interpretation which is placed upon that term to establish their case. It has been clearly laid down that in the interpretation of Statutes the ordinary meaning attaching to any term is to be accepted, unless its acceptance will render any provision absurd or ungrammatical. Here the generally accepted meaning of the word " prevention " does neither of those things.


Mr Hutchison - If we " prevent " a dispute, there is nothing to " settle."


Mr HUGHES - That is so. The word "prevention," I hold, must be interpreted according to its ordinarv acceptation. To " prevent " means to anticipate something. In this case it anticipates the condition of affairs contemplated under the. second portion of sub-section xxxv. of section 51 of the Constitution, namely the " settlement of industrial disputes." We cannot " prevent " a dispute and " settle " it at the same time. Therefore, the word " prevention " must have reference to something which, under ordinary circumstances, would precede a " settlement." Obviously we cannot prevent a thing from occurring after it has happened. Those who urge that the words of sub-section xxxv. of section 51 of the Constitution were not intended to confer upon the Commonwealth power to prevent disputes from re-arising are, I claim, straining the meaning of. the words of that sub-section. Under this Bill, any person who commits a breach of an award, or of a registered agreement, is. liable to a penalty. Therefore, the mere settlement of a dispute will prevent it from re-arising. The word " prevention " must refer to something other than a " settlement," because a " settlement " in the ordinary sense of the term will prevent a dispute from re-arising. When once an award has been made a dispute cannot legally recur, because it has been settled. What, then, is the meaning 'of the word prevention " ? Looking at the matter by and large, was it not the desire of the framers of the Constitution to prevent the recurrence of that terrible industrial struggle - the maritime strike - which was responsible for the insertion of sub-section xxxv. of section 51 ? I take it that there were no subtly drawn distinctions present in the minds of the delegates at the Federal Convention. The thought did not; occur to them, "Oh, we cannot 'prevent' industrial disputes from arising; we can only settle' them." I hold that we can prevent industrial strife better by intervening in its earlier stages than by deferring action until it has developed into a violent conflagration. I take it, therefore, that subsection xxxv. of section 5:1 of the Constitution was intended to anticipate an industrial dispute, and thus to render a settlement of it unnecessary. A dispute may be in one of its " earlier stages " when it is confined to one State. I admit, however, that the question of whether the Government proposal comes strictly within the powers conferred by the Constitution, is open to argument. Nevertheless, it cannot be established that simply to permit of any State referring an industrial dispute to the Federal Arbitration Court infringes the Constitution, other than in the way that was urged by the honorable and learned member for Darling Downs. If the States Courts have the power to refer disputes to the Federal authority, this clause will give that authority the power to hear them. There are manyreasons why it may be absolutely necessary for a State Court to refer ' these matters to the Federal Court. As I have already pointed out, the New South Wales Arbitration Court is not in a position to determine any of the larger issues with which this Bill is intended to deal. If the contention of the* honorable and learned member for Darling ' Downs be correct, the) States Parliaments must first invest their own Arbitration Courts with power to refer industrial disputes to the Federal authorities. Therefore, I fail to see. why the proposal of the Government should not be adopted. The honorable and learned member for Corinella whittled down a supposititious case till only one person in one shop in one town of. a State was affected ; but of course anything may be reduced to an absurdity. The honorable member for Darling has shown pretty clearly - and', indeed, during the last Parliament, Sir William McMillan agreed with him upon this point - that industrial legislation should be uniform throughout the Commonwealth. Certainly, it is most desirable that an award dealing with anyparticular trade should be uniform. During the hearing of the tailoring dispute in New South Wales, evidence was tendered which showed conclusively, that one of the effects of an award bv the Arbitration Court there had been to cause work to be sent from Sydney to Brisbane, where no arbitration law is in operation.


Mr Conroy - That does not augur very well for the success of this Bill.


Mr HUGHES - It does not say much for Queensland, where sweating, which does not obtain in New South Wales and Victoria, is permitted with impunity.


Mr Conroy - There men are allowed to obtain work which they cannot get elsewhere.


Mr HUGHES - In last night's Herald I saw an extract from an English newspaper, setting forth the lamentable condition -of the women who made clothes in the East End of London. Those employed in making shirts receive as payment 1¾d per dozen. According to the honorable and learned member for Werriwa, that is an admirable state of things, because those women obtain work which they could not secure elsewhere. Whatever may befall New South Wales, T think that State may congratulate itself that it has not yet been reduced .to that level, although I recollect trousers being made there for 4½d each.


Mr Hutchison - In South Australia people are doing work for New South Wales firms at the present time#.


Mr HUGHES - That is another haven of refuge. In South Australia also people are not prevented from working at the lowest possible rates. Therefore, I think it desirable that there should be uniform industrial legislation throughout the Commonwealth. While it is not possible to secure such legislation without the assent of the States legislatures, the proposal of the Government will accomplish all that is necessary upon our part, leaving it to the States to perform their part. In Victoria, such legislation may not be necessary, but obviously it is in Queensland and South Australia. The Committee might very well agree to the amendment, which certainly does not aim at accomplishing anything which is constitutionally impossible, and which inflicts no grievous wrong upon the States.







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