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Friday, 17 June 1904


Mr McCAY (Corinella) - If I may be. permitted to return to the subject before the Chair, and not to emulate some of the second reading speeches which we heard, I may say a word or two about the amendment. The Government has suggested an alternative.


Mr Watson - The honorable and learned member may as well wait a little while ; we- may have something else to suggest.


Mr McCAY - I understood that there was some possibility of our being able to arrive at some form of expression that would be mutually agreeable. In default of that, I wish to say that I think the whole debate has shown that the idea expressed in my amendment, as to what is the justification for the application of the common rule, is practically admitted all round to be the correct basis. Consequently I am unable to understand the vigour, with which some honorable members are opposing it. The best objection raised to it so far as I have been able to understand is, " as the Court will act upon this principle in any event, what is the good of putting it in the Bill and confusing the Court?" If this is the sort of thing that the Court would do, it is just the sort of thing that the Legislature should insure being done, by directing it to be done. As I said last night, if the form of my amendment prevents the proper application of the common rule, where there is what we may call " a product df industry " in question, I am quite prepared to amend the. amendment to that extent, by, for example, inserting the words " labour or " wherever the word " products " occurs. So that it would read -

The common rule shall apply only when the labour or the product enters into competition with the labour or the product.

I would change the word " products " into "product" as a mere matter of grammar, and change the word " enter " into " enters," making the amendment read in this way -

Except where the labour or product of the industry of the persons whom the common rule is to bind, enters into competition with the labour or product of the industry of the parties to the dispute, or of the members of the organizations, parties to the dispute.'

I am prepared to offer that as a compromise to the Government if they will accept it. It should meet all their objections except, possibly, this one - that they may desire to insert the words " enters, or is likely to enter." To that proposal I could not agree, because it seems to me that the duty of the Court is to determine on facts and not to anticipate events. At the very worst, if there is some product which it is supposed is likely to enter into competition, though it does not enter into competition at the time - if it does immediately afterwards enter into competition - it only means an application to the Court to declare a common rule. Common rules' are of such potent effect that they should not be lightly made, and any reasonable- appeal of that kind, or any reasonable publicity, seems to me not undesirable, but desirable, in the interests of both sides alike. Therefore, I say to the Government, that the use of the words, " likely to enter," opens up an infinitely wider field of conjecture than either the paragraph as it stands, or the amendment as I proposed it ; and the only effect that could possibly arise from such an amendment would be, perhaps, to prevent any such application of the provision. As I said last night, I believe in the common rule. . But I believe it is an engine that must be used sparingly, and only after the fullest deliberation and the greatest care. The interpolation of words providing that the Court has to consider whether something is likely to happen, as well o.s what is happening or has happened, casts the Court entirely upon the field of conjecture. That seems to me to be undesirable. I would ask the Government if, with the insertion of the words I have suggested, they would be prepared to accept the amendment ? The course of the debate has shown that practically the whole of the Committee accepts the common rule, but wishes to put in a reasonable limitation to insure that it will not work injuriously, so far as this Legislature can insure that. The Government and their supporters themselves recognise that some such method as this will be adopted by the Court, even if it is not directed by the Legislature.


Mr Watson - My trouble is that this amendment enforces the limitation.


Mr McCAY - But it is admitted that this is a limitation which would have to be imposed by the Court. I do not desire to make the Bill inoperative. I am actuated by a sincere desire to make it operative as far as possible within safe limits. The common rule seems to me to require this limitation. I myself think that the Court would not make common rules unless some such factor as that indicated were existent in the condition of affairs. But I desire that the Legislature should say that this shall be done, and that the Court if it knows nothing else, shall know that the Legislature agrees with it. Apparently, the sense of the Committee is with me, in reference to the substance of this amendment. The Government might realize that. They are sacrificing nothing that they should not sacrifice by recognising the feeling of the Committee. I have approached all the amendments upon this Bill in a spirit of impartiality, and not with any desire to embarrass the Government. But when it is clear that the Committee thinks that this is the right line to pursue, and when even those who oppose the amendment practically oppose it on the ground that it is unnecessary, it seems to me that they offer an argument in favour of the amendment, which is of much greater force than any argument that I have been able to use. I, therefore, should be glad to know that the Government see their way to accept the proposal placed before them, in the interests of the Bill.

If they will accept it, we shall be able to proceed to the next amendment very promptly ; but so long as the Government. fights against what every one appears to regard as a proper thing - whether it happen;to be proper to express it here or not - wl shall not be likely to make any progress.







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