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Wednesday, 15 June 1904


Mr McCAY (Corinella) - I confess that I cannot follow the contention of the honorable and learned member for Ballarat that this power is limited. So far as I understand the provision, the power is limited in this way : that no one except those who originally might have been affected by the award may ask to have it varied. That is not a limitation in substance, although it may be in form. There is the limitation that perhaps the Court itself cannot exercise this power, but that is just such a limitation as I would not impose if I had to make a selection.


Mr Watson - The honorable and learned member will see that the Court has power to act under paragraph 0 of clause 46.

An Honorable Member. - Would the Court know of the altered conditions unless some one took action?


Mr McCAY - The theory of this Bill is that the Court is omniscient.


Mr Watson - We have to assume that to give it an independent power


Mr McCAY - Quite so.


Mr Mcwilliams - Unless application were made, the Court would not be aware of the varying conditions.


Mr McCAY - It is assumed that it will be cognisant of so many other matters that it might possibly become aware of these variations without application being made to it. Clause 47 provides that no order or award shall be made " except on the application " of an organization or person affected. I presume that means a compliance with formalities, or, in other words, that the Court will not become informed of the necessity for a variation of an award in the informal way in which it will be able to inform itself in regard to every other matter.


Mr Ewing - Any one affected by the award might take action.


Mr McCAY - Any one that the award might possibly reach. As the result of this provision there would be no finality, not even in regard to its smallest detail, associated with any award.


Mr Ewing - Does the honorable and learned member see any way out of the difficulty ?


Mr McCAY - That is another matter. I am not responsible for the drafting of the Bill. I consider that the limitation should be somewhat more stringent than the alleged limitation which now exists in the Bill. .


Mr Deakin - The honorable and learned member will have ample opportunity to frame one before we reach clause 47.


Mr McCAY - I do not accept responsibility for drafting, except in. regard to a Bill which is in my charge. In my opinion, this provision will open the way for persons to continually raise certain questions, and leave disputes practically unsettled. It certainly could be made most fertile in the continuance of disputes by any party who was not satisfied with a decision of the Court. It is a kind of general commission to an unsuccessful litigant to continue litigation. That would not be a desirable state of affairs in connexion with even an Arbitration Court.







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