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Thursday, 21 June 1906


Senator DE LARGIE (Western Australia) . - I think that after Senator Pearce's very impartial statement of the case, and the Minister's promise of an inquiry, it would have been better to have allowed this matter to drop for the present, but certain statements have been made to which I think it only right to make some reply. For instance, Senator Gould said that it is a mere farce to bring the case before the Senate. Senator Gould may look upon the matter as a far:e, but to this man, who has to seek employment in an industry which is in the hands of a monopoly, it contains very little of the farcical element. It is rather a tragedy than a farce to him.


Senator Gray - Otherwise it would have been a tragedy to the foreman.


Senator DE LARGIE - I do not know sufficient of the case to be able to comment upon the position of any one. I look at the matter from the stand-point of Mr. Stone. He gave the evidence before a Royal Commission, which practically was appointed by the Senate, and before which witnesses were supposed to be safe in giving evidence. We know how difficult it was to get witnesses. The retailers in this trade were actually afraid to come forward. Why ? 'Because they realized that they could be shut down upon. Mr. Stone was put forward by his Union to give evidence, and for that act he was afterwards boycotted. He has not an opportunity of going to another firm, because the whole of this tobacco business is practically in the hands of a monopoly. Is that a farce to Mr. Stone? It is a very serious matter, and the Senate is quite justified in getting a review of his treatment.


Senator Walker - He should have given the names of his informants?


Senator DE LARGIE - When the evidence was given, Senator Gray, who was on the Royal Commission, did not question Mr. Stone, nor did the people directly interested challenge his statements. Again, the statements which were made before the Arbitration Court were not challenged there.


Senator Pearce - Where the firm were represented bv counsel.


Senator DE LARGIE - Would not Mr. Stone have acted very foolishly if he had made statements outside which were likely to lead to the initiation of legal proceedings against himself? On two occasions he made the statements in places where his employers could have refuted them if ' false, or taken whatever action they thought fit, but they did' not do so. The man is now boycotted, and we have a just right to ask that his case should be investigated by the Government. I do not wish to say who is right or who is wrong, but I think that the Government would be failing in their' duty if they did. not come to the rescue of a witness in this position.

Senator Sir JOSIAHSYMON (South Australia) [3.40]. - Although I agree with a good deal of what Senator Trenwith said, the substance of this motion involves a good deal more than the immediate question in connexion with Stone. Every one of us is so imbued with the sentiment and determination that a witness, honestly giving his evidence, shall be protected in all circumstances, as he is in our Courts, and as he is in bodies which institute inquiries analogous to those heard in our Courts, that the temptation to bring forward matters which may concern the Chamber in relation to an infringement of that good sound rule is very great. Although, having heard the facts, I think it would, perhaps, have been wiser if the matter had not been brought before the Senate, still, as I have said, the temptation to take that course is very great, and the necessity of calling attention to any infringement of that old .rule is an excuse for any one doing it. No one can complain of the moderation of tone and statement which Senator Pearce displayed. It is what we expected from him : in this instance, the expectation has been fully realized. He stated the facts, read the letters, and mentioned what his desire was. I should have said nothing on the subject, probably, but for the remarks of Senator Smith. He did not exhibit that judicial mind, and quite that fairness in apprehending the facts, which we should have expected of him. When he stated emphatically that Stone was dismissed simply because he had given before the Royal Commission evidence which he believed to be true, he stated a point which Senator Pearce did not put forward and one which the facts submitted by that honorable senator do not support. Again Senator Smith was mistaken when he said that de facto it was a Royal Commission of the Senate. It may be de jure a Royal Commission of the Senate, but certainly it did not owe its power or authority to the Senate.


Senator Staniforth Smith - No Royal Commission is appointed except at the instance of Parliament.


Senator Sir JOSIAH SYMON - The appointment of a Royal Commission is a purely Executive act, and it is made entirely irrespective of Parliament.


Senator Staniforth Smith - Is it not always initiated bv Parliament?


Senator Sir JOSIAH SYMON - No; it is the exception for a Royal Commission to be initiated by Parliament. It owes no allegiance to Parliament in any shape. Its reports are not presented to Parliament except after they have gone to the GovernorGeneral, and then no doubt they are presented with a view to acquainting Parliament with the contents of the reports and the nature of the evidence. The Executive may bring down the reports to Parliament if they choose. A Royal Commission has in its essence and in its proceedings no relation to or connexion with Parliament, and no doctrine as to the privileges which concern a Select Committee has anything to do with a Royal- Commission.


Senator Staniforth Smith - Have there not been motions made in the Senate that a Royal Commission be appointed, and have not Ministers said "that it would be appointed? Practically a Royal Commission is initiated by Parliament though actually it is appointed bv the Crown.


Senator Sir JOSIAH SYMON - That Parliament may request that a Royal Commission be appointed no one doubts, but the Governor-General or the Executive Government may 1 or may not make the appointment. In England the Government appoint Royal Commissions by the thousand without reference to Parliament. Therefore the Imperial Statute to which reference has been made has no bearing on this subject, and1 the sooner we disabuse our minds of any idea of that kind the better. If we want 10 legislate on the subject so as to have a specific law we can do so, though I really cannot see what the Government mean by saying that they are going to have an inquiry. Of course that is a very easy way of getting over a motion of this kind. I cannot understand what inquiry there can lie unless they appoint a Royal Commission or get a Select Committee of the Senate to investigate - what? Whether an employe of a tobacco company has been dismissed for just cause or not. Surely nothing of the kind will be done ! My honorable friend said that the Attorney-General would be consulted. What can the latter do? He can do nothing apart from a specific violation of a law. If an employer discharges an employe the latter has his remedy, but it is not a matter for Parliament to interfere with. Parliament may legislate and the Arbitration Court may inquire, but short of the tribunals which Parliament has appointed it does not seem to me that any inquiry can be more than a mere caprice. No result can possibly follow from it in this or any similar case. Let me recall the simple facts of Senator Pearce's statements. I feel strongly that a witness before a- Royal Commission should be protected absolutely.


Senator O'Keefe - A - According to the honorable senator's statement there is no power to protect him.


Senator Sir JOSIAH SYMON - There is plenty of power in another way. The particular portion of Stone's evidence which was referred to was entirely gratuitous. As Senator Pearce has said it was quite irrelevant to the subject-matter of the inquiry. Probably it was so regarded and Iras not further pursued. It certainly had no bearing on the question of the tobacco monopoly. Whether it was an honest statement made in good faith or not, it was a gratuitous and wanton statement, irrelevant to the subject-matter of the inquiry.


Senator Pearce - It had an indirect bearing on it.


Senator Sir JOSIAH SYMON - I will say that it had a little bearing on the matter, and to that extent it was at least gratuitous. Let us be fair. What was the gratuitous statement? It was a statement imputing dishonest practices to the manager or foreman in this establishment. Nothing could have been more gross. Senator Pearce will, I am sure, admit that the statements, if true, not merely warranted, but demanded, the dismissal of the foreman.


Senator Pearce - He was acting by direction.


Senator Sir JOSIAH SYMON - If my' friend says that the foreman did this dishonest thing by direction of his employer that is a diabolical insinuation which the witness did not make. Every one of us must admit - even Senator Smith, who insinuated that we on this side are advocates of trusts, and I do not think that that was a very nice thing for him to say - that that statement was slanderous in the last degree.


Senator Staniforth Smith - I apologize for saying that.


Senator Sir JOSIAH SYMON - It did a wrong to a fellow workman, and if it had been proved, the employers would not only have been justified but bound to dismiss their foreman. It was not merely an allegation of a dishonest practice, so far as the firm was concerned, but of a gross fraud ; a fraud committed for a purpose. That was the kind of charge that was made by Mr. Stone - made, it is admitted from hear -say. If that evidence had been tendered before a court of law, it would not have been admitted, but before a Royal Commission there is, as Senator Pearce very properly said, greater latitude, and sometimes we might say, perhaps, a little less regularity. And necessarily so. No one can complain of it. Making these statements on hear-say evidence, Mr. Stone did not give the name of his informants. The next step was that the employers did a right and proper thing. I am bound to say that they did what they ought to do. They wrote, saying, " You must substantiate these statements. If you substantiate them, the foreman must go, but if you do not substantiate them you must go." They had a perfect right to do that; and, Mr. President, there is not a fair-minded and just man in Australia who would not say that the employers were perfectly justified in tasking that course. If an employe gives evidence, in the course of which he imputes dishonest practices to a fellow-workman, he must either substantiate them or he must go. How could business be carried on otherwise? How could an employer keep a perjurer in his employment? He could not possibly do such a thing.


Senator Staniforth Smith - How could Mr. Stone substantiate the statements?


Senator Sir JOSIAH SYMON - I am afraid that my honorable friend's mind is not as judicial as it ought to be. This Mr. Stone was asked to make a statement publicly, not sheltered under the cloak of privilege, as a witness before a Royal Commission, but so that an action might be brought against him for slander. If he had taken that course it would have been possible for him to call his informants, and to' substantiate what he had said. That was the only way in which it could be done. My honorable friend, Senator

Pearce very properly suggests that there was another way. If he will forgive my saying so, there was no other way. A prosecution for perjury would have been perfectly hopeless. A prosecution for making a statutory declaration in violation of an Act of Parliament would have been hopeless. The statement of Mr. Stone was made on information. The question whether the statement thus made was true or not could not have been investigated in the manner suggested. Therefore, with great respect to the view which my honorable friend, Senator Pearce hasput, I think that Mr. Stone ought to have accepted the offer made to him. He ought to have said to his employers, " Certainly; I will make the statement to Tom Smith.." It need not have been made publicly. Such a statement, so made, would have enabled an action to have been brought against him for libel, and he would then have had an opportunity to substantiate his statement. That was a perfectly fair and just offer, and Mr. Stone would have been well advised to accept it. "Unhappily, he appears to have been advised to reject it. He refused to substantiate his statement. That is what it comes to. He was ill-advised also in respect of the letter from the union, in which, I think - I do not want to use any harsh term, because we are not here to sit in judgment - he evaded the responsibility which rested upon him of either Substantiating the charge of dishonest practice or withdrawing it. He was given the alternative, and I think it was his duty - if I may say so with all respect - either to withdraw the statement, and comply with the reasonable request of his employers, or to take steps to substantiate it. The company wrote him a letter. He did not reply. He took no notice of it. He literally defied them. He said, "I will not withdraw the statement, and I will not substantiate it." In those circumstances, I cannot, for the life of me, see what other course they could have taken to protect their employes. We are not dealing with the question of trusts or no trusts, or with combinations or anything of that kind. We may ask ourselves, " What could an individual employer do under the circumstances, if he was satisfied that one of his employes had committed perjury against another?" Every one of us in this Senate would, I am sure, if a witness had been discharged for giving evidence before a

Commission, denounce such conduct, and would stand by any action taken for the condemnation of the employers who had dismissed the witness. But when, as in this case, a man refuses either to withdraw or substantiate a statement defamatory of another employe, it seems to me that no other course could have been expected to be taken.

Senator McGREGOR(South Australia) £3.52]. - One is inclined to agree with such a great legal authority as Senator Symon upon a matter of this kind ; but his opinion only proves the difficult position in which an unfortunate employe' stands under such circumstances as have been related. With respect to Senator Symon's statement that Mr. Stone's evidence was gratuitous, and had no connexion with the inquiry, I reply that it certainly had a connexion with it. Insinuations were made that women were doing the work of this monopolistic company, as it has' been called, cheaper than men, and it was attempted 'to prove that women were more efficient than men. A trial was made. Whether it was a fair trial 011 not we cannot say. It was stated by this witness before the Royal Commission that the women were given an unfair advantage over the men. The man has been dismissed on account of that statement. It is idle to argue that he was dismissed because he would not substantiate the statement. If he had never given that evidence he certainly would not have been dismissed. No one questions the fact that he gave it In good faith. Now, it is said that he was dismissed because he did not reply to the letters of the company, and prove the statement he made before the Royal Commission. I want to know what right the company had to expect him to prove it. The evidence was given before a Royal Commission appointed by the GovernorGeneral. If the witness gave it in good faith, it was the duty of the company ;o go before the Commission and rebut the evidence, not to ask the witness to make his statement outside with the threat that they would prosecute him if he did. How can witnesses be expected to go before Royal Commissions and give evidence on nath, swearing to speak the truth, if they know they are liable to be challenged by some powerful company, with a threat that it will prosecute them, and take them to the High Court, and possibly to the Privy Council afterwards? As far as I can see, the justice of the case would have been met if a representative of the company had attended1 before the Royal Commission and rebutted Mr. Stone's evidence. If he had given false evidence, it would have been shown that he had done what was wrong. I have not the least doubt that the Government will make inquiries into the case, and do all that is possible to see that justice is done. Yet, I ilo not see how they can do justice to this man. The only obvious remedy is that which has been incidentally suggested by Senator Symon - for Mr. Stone to prosecute the tobacco monopoly for unlawful dismissal. But what possible chance would he have against so powerful a company ? The expenses would be piled up. It would be a glorious thing for the legal profession, before the unfortunate man got any justice. Senator Symon, in his usual brilliant manner, took Senator Smith to task for declaring that the Senate was in any way responsible. But it must be remembered that a resolution was passed by the Senate dealing, with the tobacco monopoly. There was much discussion on the subject all over Australia. Why was the Royal Commission appointed ? Was it not in consequence of the resolution of the Senate? Most decidedly. Therefore, to talk of the Senate having no responsibility is all nonsense. With respect to the heinous crime Mr. Stone alleged against this firm, and for his evidence concerning which he was dismissed, I can speak with some amount of knowledge. I am surprised that Senator Gray, who has had much experience amongst working men, did' not ask Mr. Stone, when he was before the Royal Commission, a few questions on this subject. The same thing as Mr. Stone alleged against the company has been done by other companies and firms. It is done by working men themselves. Better opportunities are given to some men to do work for purposes of comparison than are given to others. I have seen it myself. I have seen it in the course of work on an ordinary building. A man would be engaged on trial, and I have seen the labourers give him bats to build a wall with, * whilst they gave others good bricks - just for the purpose of comparison. I have seen it done by Government inspectors and overseers. They would give a piece of soft ground to a good man to pick out in side ditching, and would form comparisons between what he did and the work of other men. Senator Fraser knows very well that it is done.


Senator Fraser - I never saw it done.







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