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Wednesday, 15 June 1904


Mr DEAKIN (Ballarat) - I must say that I have not hitherto taken the view of this clause that has just been submitted by the honorable and learned member for Indi, and supported by the AttorneyGeneral. I have read it as if the words in the preceding clause, " lawfully made by the Court," were to be taken as included. I admit that .the very fact that they appear in the preceding clause, and not in this, tells against that supposition ; but I have hitherto considered it to refer to " an award or order lawfully made by the Court."


Mr Higgins - That would open the whole matter.


Mr DEAKIN - I admit that it would ; but do not think that it would open it too widely. This clause was. not drafted by me; but I discussed it with the right honorable member for Adelaide, who, so far as my memory serves me, did not take the view which has been submitted to-night. I understood him to read the clause as meaning - " Subject to this Constitution " no award of the Court which had been lawfully made should be challenged. I have always regarded the word "award" as implying an award that it would be in the defined power of the Court to make. If it were not within its expressed powers it would be beyond the jurisdiction of the Court, and would, therefore, come within the class of cases that has already been held to be open to appeal.


Mr Isaacs - If clause 38 stood alone, no doubt it would ; but clause 39 does not mean an award that is lawful. It simply means an award that is constitutionally possible.


Mr DEAKIN - I admit that until the honorable and learned member suggested it I did not read this clause in that light, but invariably interpreted it in the way I have mentioned. While I agree with the Attorney-General that even if the clause were read as is now suggested, the causes of complaint that would arise under it would be extremely rare, I very much doubt whether it conveys what the honorable and learned member for Adelaide intended. I am sure that it does not express what I desired. My intention, had it been fully expressed, would have made the clause read as follows : -

Subject to the Constitution " and to this Act " no award of the Court shall be challenged . . . and so forth. I have never considered, and I hesitate now to believe, that an order that was made without the specific authority of this measure, could be called an award.


Mr Higgins - It could not be challenged, appealed against, reviewed, quashed, or called in question.


Mr DEAKIN - It could for excess of jurisdiction.


Mr Higgins - Then the clause is of no use.


Mr DEAKIN - It has already been determined that an award of the New South Wales Arbitration Court may be challenged for excess of jurisdiction. In the case of the Hotel, Club, Restaurant and Caterers' Employes' Union v. the Caterers' and Restaurant Keepers' Association, reported in the New South Wales Industrial Arbitration Reports, vol. ii., page 196, it was held that there was power to issue a prohibition to restrain the Court of Arbitration from exceeding its jurisdiction. I have a record of the case, as well as of two similar cases, which, sp far as my notes show, follow that decision.


Mr Higgins - They have not in the New South Wales Act the words which appear at the beginning of clause 39, " Subject to the Constitution," which will be the only limitation to the rest of the clause.


Mr DEAKIN - I can say, from my own knowledge, that the words, " Subject to the- Constitution," were not introduced with the object of limiting the power of appeal which exists under the New South Wales Act. I discussed this matter with the right honorable and learned member for Adelaide, and these words were introduced in order to make it perfectlyclear that in this prohibition against appeals of any kind there was no attempt to evade the clear meaning of the Constitution. It was pointed out at the time, both by the right honorable member and myself, that their introduction would not alter the law in any respect - that they were simply an intimation- but the Cabinet thought the clause, as expressed, so extreme that it was desirable to introduce it with these words. I must confess that the possibility of their being construed as an extension of the power of making awards outside this Bill was not presented to my mind. In these circumstances, I shall feel myself at liberty, when this clause is recommitted, to accept the excellent proposal made by the AttorneyGeneral. On its own merits, and quite independent of the clause, his proposal is very desirable. The power to refer a difficult question of law to the Full Court of the Commonwealth will mitigate many other difficulties that might arise.


Mr McCay - Why not omit the first four words of the clause?


Mr DEAKIN - I admit that the cases will be' extremely rare, but, having regard to the serious view of this clause which has been presented, I certainly think that when it is recommitted we shall do well to review, first of all, these introductory words, and if we retain them-


Mr Lonsdale - They ought not to be passed.


Mr DEAKIN - But the AttorneyGeneral asks, as any Attorney-General is entitled to do, for time to reconsider this proposal, and for an opportunity to mature his proposition, instead of drafting it at the table. I am very glad that attention has been called to the matter, so that we shall be able to put beyond doubt exactly what we intend to provide.







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