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Thursday, 16 June 1904

Mr EWING (Richmond) - The intention of the Committee is clear. There has been no doubt during the last two hours as to the desire of honorable members; but the AttorneyGeneral, astute and able lawyer that he is, has given us a dissertation on something that we do not wish to consider. The honorable and learned member for Wannon has proposed the omission of certain words, and all that the Committee wish, and all that we have endeavoured to impress upon the Ministry for the last two or three hours, is that words should be inserted providing that the fine, less the costs and the damages, shall be paid into the Consolidated Revenue. That is a simple statement of what honorable members desire, and it seems to me that there is no room for further discussion. We need not enter into the consideration of "bloodmoney." We know that the Government does not wish to be called upon to pay " bloodmoney," and that it certainly does not desire to establish an industry of pimps. We wish to have the maximum penalties fixed, and to provide in. the Bill the method in which they shall be dealt with. The Committee is of opinion that no sum in excess of the costs and damages should be paid to any organization or informer.

Mr Knox - We do not wish any organization to be enriched as the result of taking action.

Mr EWING - Exactly. We know that the Government have no desire to establish a system under which " blood-money " would be paid, or under which it would be possible for litigants to be enriched.

Mr Watson - If they had to depend on this Bill for 'their enrichment, they would not' get much.

Mr EWING - The honorable and learned member for Wannon, in that enthusiastic and democratic way in which he approaches every question, has seized upon the statement made by the Minister of External Affairs that a certain union received £50.

Mr Watson - And there were about 4,000 members of that union.

Mr EWING - There are over 66,000 unionists in New South Wales, and the granting of that penalty of £50 to the union would not mean the enrichment of the unionists of New South Wales to the extent of even one penny each. Thus, while there is a possibility of a charge being made against the Government, that they are endeavouring to create means for the enrichment of the unions, they are really unnecessarily exposing themselves to blame. \ I desire that the words proposed to be omitted shall be replaced by a provision that the fine, less the costs and damages, shall be paid into the Consolidated Revenue.

Mr. JOHNSON(Lang). - I must confess my inability to follow the subtleties of reasoning indulged in by those who fail to see any distinction between the term "penalty" and the word "damages," and who hold that they are really synonymous terms. 1 can conceive of a case occupying the attention of the Arbitration Court, which would be sufficiently serious to warrant the imposition of a penalty, although a technical breach of an award involving no great damage had been committed. In such a case, 'the penalty certainly would not partake of the character of an. award for damages. A fine would be imposed that properly ought to go to the Crown. The desire of most honorable members who oppose the clause in its present form is that, wherever the term " penalty " appears in the Bill, is . shall be made clear that, unless otherwise provided, it means a fine which shall go to the Crown, and that it shall be left to the discretion of the Judge to determine, in the circumstances of each case that comes under his review, whether either the whole or any portion of the penalty shall take the nature of damages to be awarded to either party to the dispute. That is a point that requires to be made perfectly clear. Some provision should be made whereby, except, in those cases, the penalty, when it is in the nature of a fine, should go to the Crown. It should always be understood as a fine which should go to the Crown, unless, in the opinion of the Court, the breach of the law complained of is of such a character as to entail damages on one side or the other, in which case the Court should have power to say what portion of the penalty or whether the whole of it should take the form of damages granted to the party aggrieved.

Mr WATSON - I think there is a good deal in the suggestion of the honorable and learned member for Corinella. I am m- 'clined to the view that it would pernios be better to give the Court power in the first instance to say to whom penalties shall be awarded, if, in its discretion, it should be necessary to do so. That is why I was willing to put in the words "if the Court' thinks fit," because that would leave the matter to the discretion of the Court.

Mr Johnson - There is no mention in the clause of the penalty" going to the Crown in any circumstances.

Mr WATSON - That is so, and we propose to put the matter in this form - " and to specify to whom such penalties shall be paid." That would include the Crown within the discretion of the Court.

Mr Johnson - Would not "whom" in that case refer only to persons or organizations ?

Mr WATSON - Not when no words, such as " persons or organizations " areused to indicate that the word " whom " should have any other than its ordinary meaning. It was not our intention to confine the discretion of the Court in this matter to persons or organizations. That can be seen from the amendment appearing in our printed list.

Mr Johnson - The words of the amendment suggested, read in conjunction with the words of the Bill, would appear to me to imply that " whom " means persons and organizations.

Mr WATSON - The honorable member will see that our proposal was by way of amendment of the Bill after the elimination of the words " organizations or persons." That would leave the "discretion of the Judges construing the law quite uninfluenced by any suggestion which the words "organizations or persons " might convey. In view of the suggestion that, if this language were employed, the Court might feel that it was bound to make some such direction when making an award, I see no great objection to confining it to paragraph d. I do not see that very much will be lost. But when we come to deal with paragraph d, we propose to follow the language of our own amendment, and leave out the words " organizations or persons," and thus allow the Court full liberty to award the penalties to the Crown, if it thinks fit.

Mr Kelly - Will the word "whom" cover the Crown ?

Mr WATSON - I think so.

Mr Johnson - That is the point about which I am in doubt.

Mr WATSON - I do not advance my cwn opinion merely in the matter, as I am fortified in the opinion I hold by that of the Attorney-General. I am prepared to consent to the amendment iri paragraph c, and later to provide that power shall be given .to the Court under paragraph d, to specify to whom tlie penalties shall be paid.

Mr Robinson - Does the honorable gentleman propose to recommit paragraph d.

Mr WATSON - We have not reached it yet ; but I may -say here that it is probable we shall have to recommit paragraph c, with a view to provide that an individual employer or employe, who is not included in an organization shall be subject to the same penalty if the Court thinks fit. At present, because of the amendment submitted by the honorable and learned member for Wannon, we cannot go back in paragraph c to make that amendment. Honorable members will see that the paragraph contemplates that the parties dealt with will be either organizations or individual members of organizations, but as many employes and employers are altogether outside of organizations, it is well to include them in the maximum penalty. I cannot be certain on the point, but if they are not so included I think it might be contended that they would be liable to a penalty outside the maximum.

Mr Skene - Is that the honorable gentleman's own law ?

Mr WATSON - I dare say that in putting forward a supposition I am likely to be as close to the law as even a lawyer would be, because nearly everything appears to be possible in the construction of language. I am prepared to accept the amendment in paragraph c, without of course, agreeing to the principle the honorable and learned member for Wannon has advocated.

Mr. GROOM(Darling Downs). - In view of the fact that the clause will require to be recommitted, I ask the Attorney-General to make it clear by the Bill who are the persons and organizations entitled to sue for an award.

Mr Watson - Any party to an award! who is aggrieved, I presume.

Mr GROOM - - I have a reason for asking that the Attorney-General will look into the matter.

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