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Thursday, 30 August 1906


Senator DRAKE (Queensland) .- It appears to me that the use of the word " probably " in a clause of this nature is rather inapt, because it relates to things which would have to be proved. It is first used in paragraph a of sub-clause 1. It does not appear to me that it should be used there if it is intended to serve any useful purpose, because the Court would have to decide whether under ordinary circumstances of trade the competition would lead to certain results. The use of the word " probably " could only tend to confuse matters. But the objection to it is stronger when we come to sub-clause 2, because there it deals with cases in which competition shall be deemed unfair unless the contrary be proved, and thus throws upon the defendant at once the onus of proving something. What he would have to prove would be that the competition would not " probably " result in an inadequate remuneration for labour. Clearly, a person should not be called upon to prove that something was not probable. It is not necessary to use the words " would probably or" in paragraph a of sub-clause 2.


Senator Millen - I agree with the honorable senator's objection, but I would remind him that the word is used also in clause 6.


Senator DRAKE - I shall not make up my mind as to whether I shall move the omission of the word " probably " from paragraph a of sub-clause 1 until I know the views of the Government on the point. But in that sub-clause I find a provision which I think very unsatisfactory, in that it would create a complication with regard to States legislation, and that is the reference to an " inadequate remuneration for labour." If we turn to the interpretation clause, we find that - "Inadequate remuneration for labour" includes inadequate pay or excessive hours, or any terms or conditions of labour or employment unduly disadvantageous to workers.

By what standard would the Court have to be guided? Suppose that the prohibition we have spoken of related to the whole of Australia, then the recognised rate of payment for labour in each State might be different. Some States have Wages Boards and others have not. 'The Court would have to interpret a Federal Act according to a standard which had been set up byStates legislation. If the' rate obtaining in one State were different from the rate obtaining in the other States, in some cases it might force the Court into the position of over-riding State legislation, in deciding what was an adequate remuneration for labour. If it were to decide on the higher rate, it would be enforcing a high rate in one State, where, perhaps, a lower rate obtained.


Senator Pearce - Does not the honorable senator think it quite possible that the Court would differentiate between the States ?


Senator DRAKE - I do not know whether it could do that..


Senator Pearce - Why not? In one State the rate of wages might not be fair.


Senator Millen - Even within a State the Arbitration Court has allowed a variation.


Senator Pearce - In almost every award the Arbitration Court does that.


Senator DRAKE - Quite so; but it would be very injudicious to require a Federal Justice to say what was an adequate remuneration for labour in the different States.


Senator Pearce - No; the wage would be already fixed, and he would say whether, in his opinion, it was an adequate wage.


Senator DRAKE - By doing so, the Justice would be practically saying that in his opinion a certain rate of remuneration was adequate or inadequate. And if that rate were to be followed in all the States, it is quite clear that the Court might be jamming itself up against State legislation. It is very undesirable, if it can be avoided, that there should be anything like conflict between Federal and State legislation.







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