Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Tuesday, 16 May 1972
Page: 2572


Mr KILLEN (Moreton) - I do not want to upset the honourable member for Sturt (Mr Foster) but I am bound to say that the only thing upon which I can congratulate him is the fact that he has alerted the Committee to the knowledge that this is 1972. Apart from that there was very little else that the honourable gentleman said that seemed to me to be in point. Since this Committee started to debate what I have described as a very technical and difficult measure I have sought to press upon the Committee one fact and that is that in consideration of the term 'public interest' we are dealing with one of the most elusive terms known to the law.


Mr Foster - I do not disagree with you on that point.


Mr KILLEN - I am delighted to have the honourable gentleman's confirmation that he agrees with me but, having got it, I am bewildered as to why he has been so reluctant to agree with me openly. Public interest is not something which is susceptible to definition by way of political slogan. There is no shibboleth available to describe public interest. What I have tried to impress upon the Committee though regrettably, I admit, with some measure of failure on both sides, is that public interest is not something that lends itself to definition. That is why I have sought - I would hope with a tolerable measure of self effacement - to contend that it is the lawyer who at least has the discipline of training to reach out, grasp and say what are the elements today that make up public interest.

I can recall 8 years ago when the Trade Practices Act, or what passed for a Trade Practices Act, went through this Parliament. It referred to public interest and whenever there was some suggestion of an infringement of public interest some honourable members, the 'hands up' boys, were all in favour of protecting it. On that occasion I argued that public interest rests for its determination upon the body before which it is placed for adjudication. Here we are placed in what I have described as an intolerable situation. The Minister for Labour and National Service (Mr Lynch) is a man of immense goodwill and great indulgence in listening to argument on this point. Under proposed new section 28 there will be a layman, a conciliation commissioner, making the decision on what is public interest.


Mr Bennett - What is wrong with that?


Mr KILLEN - I say to the honourable member for Swan that public interest in terms of the layman's approach can vary infinitely but in terms of the lawyer's approach lends itself to the finding of some measure of agreement. This is the difference. I will not argue the matter any further but 1 want to say to the honourable member for Sturt, not with any sense of remorse or condemnation - I hope I did not put the dichotomy falsely this afternoon - .that this is the matter which divides us. The honourable member for

Burke (Mr Keith Johnson) - I must give him a commercial on these matters - took me back to the corn laws when dealing with this subject. I was not arguing this but I was arguing that there is a corporate responsibility in the community which must be acknowledged, heeded and taken into account whenever any decisions are made. I press the matter no further. I am much on the honourable member's side in saying that whenever there is an opportunity for people's wages and salaries to be increased in terms of the community's capacity to pay he will hear no complaint from me.

I come now to this point of public interest to which I wish to direct the Minister's attention in particular. Under proposed new section 28 if the conciliation commissioner takes the view that the public interest is involved, he says: 'I will refer this matter to the full bench.' It is a question of characterisation. If on the other hand the conciliation commissioner says: The consent order with which I am dealing does not involve public interest', when in fact it does, who can take it before the full bench of the Conciliation and Arbitration Commission? The Minister in his speech in December last year said:

The Government intends to provide that a full bench of the Commission must review a conciliated award or order it the Commonwealth refers an award or order on the issue of public interest.

I have heard the honourable member for Hindmarsh say repeatedly: "The AttorneyGeneral on behalf of the Commonwealth can intervene before the full bench'. This simply is not true. The Attorney-General, as I read section 36 of the Conciliation and Arbitration Act and its proposed amendments, can intervene only when the matter is before the full bench. He cannot intervene otherwise. The only way in which the full bench of the Commission can deal with any matter is spelled out in proposed new section 31 of the Act. 1 ask the Minister: What if 2 parties agree to a consent award - take the case I cited this afternoon of the glass workers award - and both parties agree under whatever the circumstances may have been and the conciliation commissioners - and this is no reflection upon those who serve or will serve in that capacity - take the view that the public interest is not involved when in fact it is? The honourable member for Burke may say: 'My understanding is that the public interest is involved. How does the Government get it before the full bench?' In my view the Attorney-General can intervene only if the matter is before the full bench. I do not know whether that is a gap in the legislation. I do not take the slightest exception to hard argument. I have heard it whispered around the corridors by way of dull rumour that I indulge in it occasionally myself. If this is a deliberate decision by the Government to say: 'We have abandoned the view that the the full Commission should have control over all matters', so be it. I will not sit down and sob for a week; I have other things in mind. What I suggest to the Minister is that he can take these steps. The conciliation commissioner may make an award under section 28 and gives a certificate. I am sorry to spell it out with such staccato; perhaps \ might be granted a brief extension of time if I run out. The Commissioner certifies that he believes that the public interest is in no way involved, so the matter does not come before the Full Bench. Indeed, the Full Bench may never hear of it. The power under section 36 (1.) to intervene is available only when the matter is before the Full Bench. If the commissioner failed to refer or the Full Bench failed to apprehend and seize jurisdiction, the matter could go by without further action.

I suggest to the Minister that there should be in proposed section 35 a provision to this effect. The Full Bench shall have power to determine that a matter dealt with under section 28 of this Act is a matter exercisable by a Full Bench and not otherwise. I am sorry to have laboured the matter before the Committee, but I believe that this is a gap. Public interest is a matter which should be controllable in its broad sense by the Full Bench of the Arbitration Commission.


The CHAIRMAN (Mr Lucock - Order! The honourable member's time has expired.







Suggest corrections