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Tuesday, 12 July 1904


Mr SPENCE (Darling) - The honorable and learned member foi Parkes has complained that it is unfair to prevent members of the legal profession from practising before the proposed Court.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - No. I was speaking on behalf of the general public.


Mr SPENCE - The honorable and learned member claims that lawyers should be permitted to appear before the Court. He knows that members of the legal profession cannot appear before any tribunal unless somebody engages them to do soThis Bill does not debar them from appearing before the Court; it merely provides that the consent of both parties to any dispute shall first be necessary. The question which we have to consider is whether the proposal of the Bill is best calculated to insure justice being meted out to all parties concerned.. Certain remarks have been made concerning the limitation of' costs, but I would point out that, irrespec- tive of whether those costs be limited 01 not, they must be paid , by the parties concerned. Would it not be manifestly unfair to permit of the costs of eitherparty being imposed upon the other side, seeing that both have entered the Court for the purpose of having their differences settled? Further, it will very often happen that awards of the Court will partake of the nature of compromises between the parties. Under such circumstances would it not be manifestly unfair to charge the costs of the investigation to either one side or the other? I think- honorable members will recognise that the proposed Court cannot be placed upon the same footing as that occupied by ordinary Courts of Law. If lawyers are to be permitted to appear before it, I maintain that each side should be called upon to pay its own costs. One of the arguments in favour of prohibiting lawyers from practising before this tribunal is that their employment would operate in favour of the richer litigant. Those possessed of the most money would be able to employ the most brainy professional man, and thus a severe handicap would be imposed upon the poorer side. In a discussion of this kind, it is something novel to hear that under the Bill the employers will be handicapped. I have always been told that the employers, as a class, possess a very high standard of intelligence. It is unfair, therefore, to assume that they have not sufficient intelligence to enable them to state their case before the Arbitration Court, which will be called upon to decide it, not from a technical stand-point, but from that of equity and good conscience. I do not think that is a fair argument to employ.


Mr Kelly - The honorable and learned member for Parkes said that the employers would be too busy to go before the Court.


Mr SPENCE - They will not be too busy to look after their own interests. The Court will consist of a Justice of the High Court, who will act as umpire, and two arbitrators, who will represent each of the parties to any dispute.


Mr Groom - Not arbitrators, but assessors.


Mr SPENCE - No, they are practically arbitrators. Surely, they will elicit all the facts which are material to" the issue. Nobody can be expected to possess a wider knowledge than they will have. Consequently, there is no need for the employment of lawyers. The facts relating to disputes will be adduced very much better in the absence of counsel, and certainly there will be Iess probability of either side securing an advantage of the other by reason of specious arguments. Too frequently, we find that unsound decisions are arrived at as the result of the specious reasoning of some hired advocate. I hold that in many cases the awards of the Court will probably partake of the nature of a compromise. The only argument which, to my mind, is worthy of consideration is that relating to the ability of the parties to a dispute to deal with a question of jurisdiction in the absence of professional assistance. It is said thai constitutional questions will undoubtedly arise, and that lawyers will be required to deal with them. On every constitutional question that has been raised in this House a difference of opinion on the part of the legal members has occurred. T cannot recall any instance in which they have been unanimous in relation to such matters, although in dealing with them here they ex- press their views, not as mere advocates, but according to the opinions at which they have arrived, as the result of "a study of the whole history of the Constitution. The only constitutional question likely to arise in the Arbitration Court is that relating to its jurisdiction. Such a question would doubtless be promptly raised whenever there was an opportunity ; but I contend that it could be adequately dealt with by the representatives of the organizations concerned, who would have the advice of their respective solicitors. The question having been raised, it would be for the Judge to deal with it, and possibly an appeal would follow to the High Court, which would finally determine the matter. Whether the parties are allowed' to be represented by counsel or not, we shall not escape appeals to the High Court. Wherever there is any strong difference of opinion, or any material advantage to be gained, an appeal to the High Court will, in all probability, occur. I recognise, of course, that a Judge often receives assistance from counsel, and that his decision is based upon their arguments and his own knowledge of the law. It is said that in cases in which counsel are permitted to appear, the Judge has a better opportunity to arrive at a correct decision than when counsel are not permitted to take part in the proceedings.


Mr Isaacs - If a point that had not occurred to the President were raised, the I party might not have to go to an expensive and lengthy investigation oi facts that might subsequently be upset.


Mr SPENCE - I have already pointed out that cases might occur in which counsel would be of material assistance to the Court, but that if either party were dissatisfied with the decision it would appeal to the High Court. It does not, therefore, seem to me that an appeal to the High Court on a question of jurisdiction would be escaped if in the early stages of the proceedings the parties were allowed the right to be represented by counsel. The objections to the permissive provisions of the clause have not, in my opinion, been supported.


Mr Henry Willis - Why does the honorable member object to the parties being represented by counsel?


Mr SPENCE - Because I think that counsel often confuse the issues by the introduction of legal technicalities. Reference has been made to the statement made by Judge Cohen, that counsel had been of assistance to him in the New South Wales Arbitration Court. Could we have reasonably expected anything else ? Solicitors are expected to assist the Court in sifting evidence. I have read of cases in which "Judge Cohen has also thanked witnesses for the very great assistance they have given him, so that it would appear that the learned Judge has been aided in the discharge of his duties by laymen as well as lawyers. A solicitor might be able, in some cases, to raise questions and bring out points that would not occur to a layman > but to my mind a dispute could be dealt with just as well in the absence of counsel as with their assistance. Something has been said as to the unfairness of this proposal in its application to employers. We seem frequently to forget that the only cases with which the Court will be able to deal will relate to Inter-State disputes, and that such disputes can occur only between organizations of employers and of employes. These organizations have among their ranks men well qualified to state . their case before the Court, and therefore it is scarcely fair' to say that a person employing only a few workmen, and not having the ability or training necessary to enable him to adequately state his case, would be placed at a disadvantage by the Government proposal.


Mr Watson - In dealing with another phase of the question honorable members who now raise that objection have said that no small employers are likely to come before the Court.


Mr SPENCE - That is so. Organizations will be interested in the disputes brought before the Court, and those organizations have in their ranks men who are just as well qualified to put evidence before' the Court as is any member of the legal profession. I recognise, of course, that a lawyer is specially trained for the work. I have the. greatest respect for the course of study which men have to undertake in order to qualify themselves for admission to the profession.; but my contention is that there are many laymen who would be able to deal far more thoroughly with the practical details of a dispute brought before the Court than any professional man would be. We have always been told that it is the poor man who suffers in law proceedings, but doubtless as the result of the advance of the labour movement we are now asked to consider the employer. I hope that we shall do so. I do not wish to see an injustice done to any one. My desire is that the Court shall be so constituted that it will deal impartially with every case. The experience of trades unions in New South Wales is adverse to the appearance of lawyers in the Arbitration Court. Under the . existing State system, which allows parties to any dispute to be represented by counsel, many of the unions have been put to enormous expense, and, in some cases, nearly the whole of their funds has been swallowed up by law costs. If we imposed no limitation on the representation of parties by counsel it would be a god-s,end to many lawyers. I do not, of course, advance that as an argument in favour of the Government proposal, but I think that the proposed new clause would work well. The probability is that in most industrial disputes of a serious nature both sides would agree to the appearance of counsel, and it is possible that in other cases one side or the other would give way and allow counsel to be retained. In my opinion, it would be' well to leave the presentation of disputes before the Court to the representatives of the organizations directly _concerned. and to allow the President to determine, without the assistance of counsel - unless the parties agreed to be represented by them - the merits of the case, as well as the questions of law arising.







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