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Monday, 19 October 1970


Mr ENDERBY (Australian Capital Territory) - After having heard the honourable member for Hindmarsh (Mr Clyde Cameron) I found myself thinking that some of what I would say would be repetitious, but after having heard the Minister for Labour and National Service (Mr Snedden) I found myself thinking that repetition would not be a bad thing because either he did not hear what the honourable member for Hindmarsh had to say or he did not understand it. I found myself thinking, after having heard the honour able member for Stirling (Mr Webb), much the same thought until I heard the honourable member for Canning (Mr Hallett) and then I thought that perhaps none of the honourable members opposite had understood the purpose of the motion which has nothing to do with the way in which the Conciliation and Arbitration Commission works. It mounts an attack, a serious attack, on the pronouncements of the Prime Minister (Mr Gorton), the Treasurer (Mr Bury) and the Minister for Labour and National Service which are calculated to embarrass, compromise and prejudice the Commonwealth Conciliation and Arbitration Commission. The only answer that honourable members opposite have given to our criticism has been to attack the workings of the Commission. They have not answered any of the charges made by the motion.

It is interesting to refer to the history and the beginning, as far as my researches go, of the Government's attack on the Commission. It was in about 1967 that the first attack that I can trace was made. It drew forth the reply from Mr Justice Gallagher and Commissioner Winter and which has already been mentioned. They replied to the attack that had been made on them by the then Minister for Labour and National Service. The House has been told what that comment was and it bears repetition. They said that they would not be influenced or intimidated by any party, including Ministers. That was a clear indication of where the emphasis lay. They added:

All extraneous utterances, whatever their source or nature, will be ignored.

This goes to the whole intent of this motion. The Commission must be protected. It must not be made liable to attack from government at this level. Sir Richard Kirby had to say much the same thine to protect himself. This motion seeks to add to that protection. In response to another attack, Sir Richard Kirby is reported in the 'Australian' of 5th June 1968 to have said:

My colleagues and myself make our decisions on the material and the submissions made to us in the court room and not otherwise.

No-one from this side of the House suggests that they should be influenced. The ideal situation is that they should sit in their adjudications independently and with as much impartiality as they can muster but that is almost impossible when Ministers of the Crown subject them to pressure. No-one denies that the role of the Commission is very difficult. Its role has been made difficult. No-one can deny that it has been allowed and encouraged - one might say even forced - to depart from the original concept of Mr Justice Higgins who, years ago. expressed the hope that it should be a new province for law and order. There can be no doubt that in its present day role it makes rules that have extremely wide application and . consequences for Australia and which should be a matter for economic policy determined at the highest level. lt has gone a long way from its original idea of being a conciliator and adjudicator in debates between parties. When one says this one must not lose sight of the fact that it still is, as the honourable member for Hindmarsh pointed out, an adjudicator of disputes. Its power flows from section 51, placitum XXXV of the Constitution. We all know that the Government has no direct power to make laws controlling prices or wages or implementing price or wage policy. This is not to say that it should not have the power and should not work out such policy in a proper way. We all know that the Commission is not really equipped by its training and by the nature of its adversary process to determine and implement an economic policy that determines wages and prices, and yet this is what it has been allowed to do, encouraged to do and even forced to do by government. Of course, in purporting to do that, it has worked out principles, not in any sort of pragmatic way but principles as courts of law work them out when they make judge made law. This is the way the common law grew up. So the Commission has tried to follow a similar sort of evolutionary process of developing principle because government has abdicated the field and forced the Commission to extend its field of operations. Government has left a void that the Commission has had to try to fill.

Notwithstanding that it is not a court, and notwithstanding that it has extended its functions far beyond the mere offering of conciliation to disputants, and an adjudicator of disputes, the Commission does have many of the features of a court that should be protected and respected by outside bodies. There must be parties to bring a dispute before it. There must be a dispute, and outsiders like the Commonwealth Government can appear only as third parties. It functions in the traditional adversary type system that is found in our courts, and for this reason many of the rules applicable to our courts apply to it and should apply to it. As the honourable member for Hindmarsh has pointed out, a rule, contained in section 182 of the Act, makes it a serious offence for a person to use words either in writing or in a speech that are calculated to influence improperly a member of the Commission or the Commission. The reasoning behind this section is very similar to the reasoning that lies behind the sub judice rule in courts of law - which is to ensure that justice appears to be done, and that the parties appearing appear to get a fair go, that the tribunal itself is protected and not subjected to pressures, because if it has to make a decision, and it has to make a decision sooner or later, it must appear, above all else, that when it does give that decision, it is made on the evidence before it and the submissions that are put to it and which can be answered before it; and not by what someone like the Prime Minister or any other Minister has said outside the tribunal and which cannot be answered before the tribunal. People with suspicious minds may think: 'Well, the Commission may have been influenced'. This would be a departure from the high standards and high status that should be accorded to it. Sometimes, of course, in our courts we do cut corners a little. We do not give the same strict application of the principle to all courts, but it is an ideal that should be followed.

It seems to me that 3 things could really happen to the Commission with its problems and its future. Firstly, we could follow the present policy. We could take the Commission, with its principle of adjudicating on disputes, with its existing machinery, with its existing background of an adversary system with people trained essentially in the law and with experience of industrial conditions, and allow it to extend, by development of principles, into the industrial field as, indeed it has done, to make common rules for industry. If that is to be the test, then government has abdicated its principle, abdicated its role and abdicated the part it should play. If that is to be the situation then it is predictable that one should see a government of that sort seeking to come in and influence and pressurise the Commission, saying: Well, you must do this or you shall not do that otherwise it will be a disaster'. If that happens then the whole standard of the tribunal drops.

The alternative is to have a proper realisation of the workings of the Commission and a proper approach to the Commission in its present form, with proper submissions put to it by counsel for the Commonwealth, properly documented showing what the Government does say should be done and not in the generalities that have been referred to today as having been resorted to in recent years. Reference has been made already to the speech by counsel, Mr Justice Kerr as he is today, back in the 1966 national wage case when he said that they only wanted a moderate wage increase. When he was asked: 'What do you mean? Please help us more' - I think it was Mr Justice Wright who said it - there was no assistance from the Commonwealth at all. In other words the Commonwealth makes a general purposefully vague decision, hands it over to its counsel, puts up the generality to the tribunal, does not give the Commission adequate assistance and then criticises it later for its decision and blames it. The Government tries to have the best of both worlds. It abdicates it responsibility and then seeks to have a scapegoat it can blame when something goes wrong or something happens of which it does not approve.

The third alternative, of course, would require constitutional amendment or a more imaginative legislative scheme that would enable the Government to legislate in a policy arena in a policy way so as to fix wages and prices. It may not inevitably require constitutional amendment but we have had a number of recommendations on this matter from responsible bodies. The Government has done nothing about any of them and so the present system limps along. The real fact of the situation is that the Government, having done nothing constructive in the area for so long, allows the Commission to develop its principles with the best will in the world and with the utmost skill it can muster - as common law courts have developed principles and law over the years in developing systems of common law - but the Government does not accord the Commission the independence it is entitled to and which it gives to the Government. It seeks to say: If you go wrong or do something we do not approve of we will rap you over the knuckles and we will let you know well in advance so that you can give the decision that we want you to give'. That, it seems to me, is the real fault that should be sheeted home to this Government. It has nothing to do with the other difficulties of the Commission. The Commission has done a wonderful job and speakers on this side of the House recognise that. But what is wrong, and what is the purpose of this motion, is to criticise the Government's attack on the Commission.







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