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Monday, 11 June 1928


Mr LATHAM (Kooyong) (AttorneyGeneral) (12:49 PM) .- The Deputy Leader of the Opposition has objected to all the provisions in this clause, from proposed section 85 to proposed section 86d inclusive. He has also asked a question about proposed section 85. That section has been introduced and the penalty increased because of the ineffectiveness of the- existing section, and because of an incident which recently occurred in Melbourne, when a witness gave evidence as to his financial position, setting out his income and his mode of living. The court requested that the evidence be not published, but despite that request it was specially featured in the press, thereby imposing upon that witness a considerable hardship, for which there is no remedy under the act as it stands to-day.

For that reason section 85 has been redrafted. It also extends the power of the court by allowing it to permit, if it thinks proper, one party to see evidence relating to the financial position or trade profit of another party. Up to the present that has been impossible. The penalties have been increased, because it is considered that any person who gives as evidence, or publishes, any information in contravention of this provision, or of any direction or order given or made thereunder, should be guilty of an offence, and the penalty is £500, or imprisonment for six months. That is by no means a heavy penalty for a person who deliberately flouts an order of the court, because such an action may have the most serious results to an individual, who ought not to be exposed to that risk. For that reason the penalty has been increased from three months' imprisonment to six months' imprisonment.


Mr Blakeley - Was the penalty of three months' imprisonment under the existing section ever imposed?


Mr LATHAM - That section was practically useless, and if the honorable member will read it he will see why. Then the honorable member dealt with proposed section 86a, and he read the first portion of it only. He quoted the offences for which a person may be liable - violence, threats, pecuniary penalties for injury, intimidation, abusive or insulting language, declaring or joining with other persons in declaring goods, places, or persons black, or any other form of boycott or threat of boycott.


Mr Blakeley - Everybody knows what follows.


Mr LATHAM - They do not. I have kept myself informed of the Labour party's propaganda against this bill, and I say that everybody does not know what this proposed section provides. It is being represented in many quarters as providing punishments for violence and threats, &c, . without showing the people that the real provision is that no persons shall by the means referred to prevent, or endeavour to prevent, any person from offering or accepting employment or working in accordance with the terms of an award or order of the court. The whole section is directed to the prevention, by unlawful means, of persons from working in accordance with an award or order of a court. The Arbitration Court and the High Court have recognized, and rightly, too, that no person should be compelled to work in accordance with the terms of an award, and I have introduced in this legislation an amendment which has struck out of the act, section 7, which can be said to have imposed upon an individual an obligation to work in accordance with certain terms. The law is clear that it is for any of us, as citizens, to make up our minds whether we are prepared to work upon the terms that available employers are prepared to offer us. That is different altogether from combined action in the way of a strike, which is made, an offence in certain cases under the Arbitration Act. While any person is at liberty to abstain from working in accordance with an award if he thinks" he would rather not work, or would rather work in some other industry, and while any person is at liberty to persuade another man not to work in accordance with the terms of an award of the court, for any reasons which may commend themselves to him, while that liberty must be allowed, to any citizens in a free State, yet it is a different proposition altogether from preventing or trying to prevent persons from working in accordance with awards of the court by means of violence, threat, intimidation, or the declaring of anything black. If the arbitration system is to be real, if it is to be supported by this Parliament, and made effective throughout Australia, it should be clearly laid down that the utilization of the methods referred to for the purpose of preventing people from working in accordance with the awards of the court is wrong and should be penalized. That is a sound principle which cannot be seriously contested. Surely no honorable member will say that it is right to prevent a man, by violence or intimidation, from working in accordance with the awards of the court. On the other hand, honorable members must be forced to admit that such action is wrong, and that it should be penalized. We have accepted the principle of arbitration, and the awards of the court should be honoured. The means that I have indicated should not be used for the purpose of preventing people from working in accordance with the awards of the court.


Mr West - If I think an award is wrong, why should I not have the right to express that opinion to other persons?


Mr LATHAM - The right to advise people not to work in accordance with the awards of the court is not affected by this provision, but no one has the right to force persons by threat or intimidation, or by any other wrongful means, to abstain from working in accordance with the awards of the court. Proposed section 86b deals with a case of which I have had actual experience. If an award makes a certain provision, and if the rules of the organization impose a penalty on its members for working in accordance with that provision, surely that should not be tolerated, but should be remedied. The foundation of the system of arbitration, when once it is in operation, i3 that matters affecting industrial conditions must be submitted to the court for decision, and that organizations registered under the court must obey its awards and not have rules imposing penalties upon persons who work in accordance with those awards. The existence of any such rules, and the carrying into effect of a policy of that kind, is absolutely inconsistent with the very significance of the word " arbitration." In the same way, proposed section 86c deals with resolutions the terms of which are abusive or insulting to a judge or officer of the court. This legislation is quite justified, and the necessity for it has been shown. There is a great deal of difference between comment and the sort of criticism to which some judges have been subjected. Criticism is a good thing for all judges, as well as for honorable members of this Parliament, although we may not like it. Comment and criticism is to be encouraged, but every one knows the distinction between comment and criticism and abuse and insult. It is the duty of this Parliament to protect the men whom it places in. responsible positions. The Deputy Leader of the Opposition has suggested that it might be construed as an insult to say that a judge was weak in mathematics. If it were, I am afraid that to tell the truth about a good many of this committee would also be abuse and insult. If on the other hand any one were to say in words which showed the allegation to be deliberate that a judge had " robbed the workers," that would be abuse and insult against which he should be protected. There is only one way of dealing with judges in this country, and that is by moving an address in both Houses of Parliament.


Mr Blakeley - The honorable gentleman was a member of this .Parliament when I brought up in the House of Representatives the case to which T have previously referred in the course of this debate, that in which a judge made a mistake, and robbed the workers of what they were entitled to.


Mr LATHAM - That remark furnishes an example of what I have been referring to. If it is merely said that a judge made a mistake, and thereby gave the workers less than they were entitled to, no one could take exception to it, but if the meaning of the words used is that the judge deliberately and intentionally deprived the workers of something which he knew was their right, that would amount to insult and abuse, and responsible members of this commitee ought not to suggest that such expressions are permissible. Surely honorable members ought to recognize that in protecting the judges we are merely protecting society and ourselves. Under our judicial system we place the judges in an. independent position, and while they are subject to fair comment and criticism, they are entitled to be protected against insult and abuse. A judge has not the ordinary means of retaliation which some of us might exercise if abuse and insult were directed against us. The judges J have a very difficult task to perform, and they are entitled to this measure of protection.


Mr Fenton - What are the AttorneyGeneral's reasons for proposing this clause ?


Mr LATHAM - The honorable member asks me what are my reasons after I have already stated them very clearly. The judges of the Arbitration Court have a particularly difficult task to perform. Centuries ago, when the administration of the law on a regular basis began, I have no doubt that judges were abused whenever they decided against powerful interests, but in the realm of ordinary law that has now almost ceased to happen. No matter how powerful any interests or what their political connexions, the judgments of the ordinary court are accepted by them, perhaps with criticism but always without abuse. Yet in this century we are only beginning to enter into the realm of industrial law, and the same difficulty is occurring with regard to industrial courts as I have no doubt occurred at the institution of the regular system of ordinary law. Take, for example, the days when the land owner thought he owned the land, and the men, and the animals, and everything else on it. Conceive his indignation at the enforcement of laws by judges against what he considered his absolute rights and interests. The growth of law, as we know it, was resented by those whose interests were effected, but after centuries the system of law has become established in such matters, and decisions given under the ordinary law are accepted, the judges being subject neither to abuse nor insult, even though feeling may be acute. In industrial law we are at the beginning, relatively, of our development, and it is important to see that both sides accept the verdict of the umpire. That is all it amounts to, and surely that is the minimum we should require. I appeal to honorable members to realize the very difficult position in which the judges administering this act are placed. It is easy to throw words about concerning them; it would be much more difficult to discharge the delicate functions with which they are entrusted. Particularly in the case of the Arbitration Court judges is it the duty of all members of this committee, in making the laws which it is the duty of the judges to administer, to abstain from any comments in the nature either of abuse or insult. That still leaves open the full field of discussion as to the wisdom of a course of action. These clauses would not limit the full range of comment and criticism expressed in ordinary decent langauge; but they would very properly penalize the use of abuse or insult towards men holding the position of judges or of officers of the Arbitration Court.







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