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Tuesday, 29 May 1928


Mr SCULLIN (Yarra) . - I suggest that consideration of this clause be postponed. If it means what the Attorney-General says it does, the committee will no doubt accept it later.


Mr Latham - It only operates in mitigation of a penalty imposed by virtue of another provision.


Mr SCULLIN - In determining the guilt of an organization, the judge who tries a case will undoubtedly be guided by the words of this clause. Notwithstanding that it might be shown that the whole of the members of. the. committee of management of a union acted in good faith to prevent a strike, the judge could find the union guilty. This clause is to be taken into consideration only in regard to the mitigation of a penalty. That is anticipating the provisions of clause 8. Section 6 sets out what shall be done if a union or a person is found guilty. In this clause we are notifying the court of the intention of Parliament.


Mr Gregory - Only after a certain event.


Mr SCULLIN - The honorable member suggests that the judge will read section 6b only after he has found an organization guilty under section 6. But a judge when trying a case under section 6 would not ignore the rest of the legislation.


Mr Prowse - The guilt would already have been determined.


Mr SCULLIN - I am speaking of a stage before guilt has been established. At that stage the judge may read what Parliament has passed to guide him in imposing penalties.


Mr Latham - I am agreeable to withdraw the clause if it is objectionable.


Mr SCULLIN - It would be better to withdraw the bill.


Mr Latham - I am not prepared to do that.


Mr SCULLIN - The AttorneyGeneral shows a wonderful willingness to withdraw this clause and throw upon the Opposition the responsibility of its withdrawal.


Mr Latham - Because it appears not to be wanted.


Mr SCULLIN - I merely asked the Attorney-General to agree to the postponement of this clause in order that we could make sure whether the interpretation he set upon it is correct. He should not endeavour to throw upon the Opposition the responsibility of rejecting a clause the object of which is to mitigate penalties. The clause should be postponed and, if necessary, redrafted in order to make it clear that it provides for the mitigation of a penalty without there being any implication of guilt in regard to a union when it is not guilty. The AttorneyGeneral is willing to withdraw this clause ; but will he or the Prime Minister show the same willingness when we come to clause 8 ? Will they say that it is not wanted, and can therefore be withdrawn? The clause with which we are now dealing clearly provides for the mitigation of penalties; but there is also the implication of a union's guilt. That will influence the judge when trying the union under section 6. Rather than make the position clear, the Attorney-General suggests the withdrawal of the clause. No honorable member can accuse the Opposition of having been unreasonable today; but we will fight for the repeal of clauses 7 and 8 and others. In this clause there may be the intention to do the fair thing ; but it is couched in language which may allow an unfair thing to be done.


Mr Theodore - The Attorney-General could not do the fair thing towards the unions.


Mr SCULLIN - I have merely asked that the clause be postponed in order that we may satisfy ourselves that the AttorneyGeneral's explanation is correct. While I am not prepared to take the responsibility of voting against a clause which mitigates penalties, I should fail in my duty if I did not show its defects. I have not been dogmatic; I have merely pointed out that, in my opinion, it is capable of a different interpretation from that placed upon it by the AttorneyGeneral.


Mr J FRANCIS (MORETON, QUEENSLAND) - It says " When they are found guilty."


Mr SCULLIN - Before a judge finds them guilty, he will doubtless read proposed new section 6b. He may read into that provision that a union may be found guilty even though its committee of management has done its utmost to prevent a strike. The Attorney-General says that that is not intended.


Mr Brennan - That is the law that is being passed.


Mr SCULLIN - The AttorneyGeneral assures us that it is not. I gather that in the opinion of the AttorneyGeneral the clause does not imply what I suggest.


Mr Latham - That is so.


Mr SCULLIN - I think the implication is there. The Government should see that there is no cause for doubt regarding the meaning of the clause. There should be no implication of guilt in circumstances in which no court should find a union guilty. I again ask the AttorneyGeneral to agree to the postponement of this clause.







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