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Tuesday, 12 July 1904


Mr ISAACS (Indi) - I feel myself in accord with the honorable and learned member for Ballarat in the statement that members of the legal profession are liable to be misunderstood when they speak on a question of this kind; but I do not think that, that consideration should deter us from saying what we think is right in the public interest. I feel that I should not be doing my duty if I did not support the views which he has expressed. Should the proposal of the Government be carried, I believe that the warnings now given by members of the legal profession will be thoroughly borne out.. As the honorable and learned member for Ballarat has said, the measure under consideration is quite different from a State Arbitration Act.- No question of constitutional power can readily be involved in the administration of a State Act. Such a thing as the questioning of the legality of an Act under which proceedings have been taken is almost unknown in State jurisprudence. All that a State Parliament has to do is to frame its legislation in as workmanlike terms as possible, and leave its interpretation to the Courts. For these reasons it would be unwise to adopt the New Zealand' practice. The New South Wales system is much better. Costs can be regulated by rules and regulations, and made the lowest possible under the circumstances. Such rules could be made thoroughly consistent with the employment of legal assistance. I do not wish to complain of the wording of the provision, which is probably as good as it could be under the circumstances, but I would point out that it displays unfairness to the employers. It is proposed that any organization may utilize a member or officer for the purpose of representing its case before the Court. Of course that would apply to an employers' as well as to an employes' organization ; but the member of an employers' organization would not stand in as good a posi tion for the purposes of advocating a case before the Court as would a member of an employes' organization. We could hardly expect an employer - in the case of a limited company it would be impossible - to devote himself to threshing out the various questions of fact involved to the same extent as would be possible to the member of an employes' organization. If, as is possible - and very probable, in certain cases - a single employer were the party to a dispute the provision would absolutely prohibit his representaton before the Court except by himself or by an employe. If an employe were chosen, he would probably have sympathies with the other side.


Mr Watson - Oh, no. The employer would most likely have a manager or other trusted servant who would have no interests in common with the .employes generally.


Mr ISAACS - But the employer might not have a manager.


Mr Watson - He would be certain to have a manager or some other reliable servant.


Mr ISAACS - It strikes me that the provision is a little unfair to the employer. Practically, he is told, " You shall have' no assistance except what you can get from one of your own employes." Some employers, at all events, will be placed in an unfair position. I think that if the Prime Minister has not already considered this question, he ought to do so, and that some less restrictive provision should be made. It is proposed that no party shall, except with the consent of all parties, be represented by counsel or solicitor. That practically leaves it to the one side to say whether legal assistance shall be obtained by the other in a case, perhaps involving the decision of very difficult questions. I should like to point to another practical obstacle. I understand that the Prime Minister has agreed that clause 39 shall be amended. At present it provides that, subject to the Constitution, all the awards of the .Court shall be unchallengeable. It is conceivable that the Arbitration Court might be called upon, without legal assistance, to conduct a very lengthy arbitration case, and that afterwards its decision might, by means of legal assistance, be upset by the High Court on the ground that it was opposed to the Constitution. Having regard to' that contingency, would it not be better to permit the employment of legal assistance in some form before the Arbitration Court ? We could restrict the cost by providing that neither party should be called upon to bear the expense of any special legal assistance employed without their consent. The Court should certainly have the benefit of legal assistance in deciding not only the merits of the cases brought before it, but the question whether certain matters come within the scope of its constitutional powers. This is not a plea for the legal profession, but is intended, whether or not honorable members may so regard it, as an argument in the direction of making the measure work more smoothly in the public interest. I trust, therefore, that the Prime Minister will see his way to moderate the restriction sought to be imposed.







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