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Wednesday, 15 June 1904


Mr EWING (Richmond) - The application of a common rule is no new' thing. At common law it is precedent which governs, and which forms the common rule until altered or over-ruled. The Prime Minister's contention that the Court cannot deal with every dispute similar to one which has been adjudicated upon occurring in an industry, and that, therefore, we must have a common rule, is, of course, the correct one. But although we have a very pure brand of democracy in the representation of Western Australia in this Chamber, those members are willing to concede that, in regard to the application of the Navigation Bill, there are conditions to be taken into consideration. They say - " We believe in applying the provisions of that measure to shipping after it reaches Adelaide; but until the railway from Port Augusta to Kalgoorlie is made it should not apply to shipping between Western Australia and that port." They wish for a common rule with variations.' So, under this measure, we must have a common rule which will take into consideration the circumstances of every individual case. The question has already been thrashed out in New South Wales and New Zealand, and I should like to read what has been written upon it by a very real democrat in every sense of the term, Mr. W. P. Reeves. I do not say that he is quite as rabid as some of my honorable friends, though, since the decease of the last Government, many of them have bucked off their brands a great part of their democratic trappings, so that one cannot be sure that their democracy is now of the same brand as that which they possessed when sitting on the other side of the chamber. I wish to cite a passage from page 159 of Mr. Reeves'State Experiments in New Zealand and Australia. Speaking of the New Zealand Act he says : -

Perhaps the Act's most interesting feature is the " common rule." This is an effort to improve upon the tentative New Zealand method of extending the regulative scope of their Court decisions, so that, instead of merely binding specific employers, they are made rules virtually dealing wilh whole industries. The New Zealand plan lias been to proceed through district after district, citing all the employers in the industry under review in each ; then, after an award has been given, any one subsequently entering the trade had to be cited too, unless he was prepared to comply with the award voluntarily.

I do not think that the Prime Minister made that point as clear as it might have been' made, though it was evident that he understood it. Before making a common rule in- New Zealand, the surroundings and conditions of every district are taken into consideration. This Bill, however, does not contemplate' the creation of districts, and the word "district" does not appear in it. The environment of a Chinaman at Port Darwin is not the same as that of a Cingalese in Melbourne. The difficulty in applying a common rule to diverse conditions, which is perplexing us, has struck the New Zealanders, and they endeavour to remove it by the exercise of extreme care and caution, and consistent and persistent investigation. I take it that we are all agreed that a common rule made in Melbourne should not necessarilv apply to Perth or Coolgardie. 'Speaking of the New South Wales legislation, Mr. Reeves says, on page 160 -

On paper the New South Wales method looks to be a short cut to the goal which in New Zealand has to be reached more slowly and tediously. In practice we must wait to see to what extent the Court in New South Wales has to fix limitations, allow exceptions, and deal with protests of individuals and localities. In any case Mr. Wise's common rule is an experiment to be watched^ If successful, it may tempt the New Zealanders to simplify a portion of their law.

I take it for granted that every man who believes in arbitration sees the need for a common rule. But none of us wish for common rules which will mar, and perhaps destroy, the usefulness of the measure, because of the dissimilar conditions to which they are applied. Our difficult" is to harmonize dissimilar conditions. The speech of the Prime Minister made it clear that he wishes to be reasonable, and therefore I appeal to him to see that his legislation is made so. The Bill provides that there shall be a common rule.


Mr Watson - If the Court so determines. '


Mr EWING - Let the honorable gentleman go further, and make it absolutely imperative that before imposing a common rule the Court shall consider the surroundings of the individuals and organizations concerned. I intend to ask him to consider the propriety of inserting some such provision as this -

No award shall be binding unless it takes into consideration the local conditions of each person and each organization.

No one wishes to destroy the Bill. Some of us may not approve of many of its provisions', but every sane man in the community wishes our laws to be reasonable. Sir Henry Maine has written that every law on the statute-book which is not used or' is not reasonable helps to destroy the fibre of the whole body of legislation. Mr. Bryce, too, in his American Commonwealth, speaks of law as being the life-blood of the democracy.


Mr Watson - Law often drains its life-blood.


Mr EWING - The value of law to a democracy is the value of protection to the weak. Under law progressive reform becomes possible; without law it is impossible. Therefore, I appeal to the Ministry not to place upon the statute-book a Jaw which appears unjust to any, or which would allow a common rule to be imposed without taking into full consideration the condition of every man bound to obey it.







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