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Friday, 25 July 1930

Senator McLACHLAN (South Australia) . - I am glad to hear that the Minister is not concerned which way the Senate votes in this matter. The provision under discussion is a purely practical one, and is of moment from that point of view. It has been pointed out that there have been a large number of what are really " paper " disputes so far as their inter state extension goes and, in the interests of common sense, if for no other reason, the Senate should retain this provision. It enables a judge of the Arbitration Court to decide whether a dispute is one that should be dealt with by a State rather than by a Federal tribunal. Is it not better that the judge should be entrusted with the power to say " I think that, on the facts, this should be dealt with by the Commonwealth Arbitration Court?" or "There is really not much of an interstate matter in this. As local conditions are affected it is better thai it should be dealt with by a State tribunal ". I do not see the connexion between this and the other clause referred to by Senator Daly, but perhaps the honorable senator will elaborate that later. If in a proper case, a judge refuses jurisdiction then mandamus will lie to the High Court. That right is not debarred by section 38c of the principal act. I venture to suggest that it has proved in the past to be a very useful provision indeed, and has rid the court of small cases with which it should not be called upon to deal, cases that were of a really intra-state nature, brought before the federal tribunal only because " paper " disputes had been manufactured. The provision is a guard against fictitious and insignificant disputes being brought before the federal court. 1 suggest that whatever else we do we should endeavour to facilitate the work of administration of the Federal and State courts and try, so far as we can, to keep them in their proper respective spheres. I shall vote against the clause.

SenatorDALY (South Australia VicePresident of the Executive Council) [11.58]. - There is one point on which I do not wish to be misunderstood. I told the Senate that I was not very much concerned whether this clause was retained - provided that, the postponed clause to whichI have referred is accepted. If that is done I see no particular necessity for this clause. The very fact that mandamus or prohibition is possible was one of the arguments suggested last night in favour of our not introducing anything that was ultra vires of the Parliament or that would attempt to cloak somebody with certain powers.

Senator McLachlan - Where is this provision ultra vires of the Constitution?

Senator DALY - Section 38c itself is not ultra vires. The Commonwealth Parliament gives to the industrial court the right to decide whether it shall procried with an industrial dispute. Does i lie honorable senator deny that proceedings could be taken to the High Court if a State industrial court declined to proceed with a dispute that was interstate in character?

Senator McLachlan - I suggest that rhey could.

Senator DALY - Of course they could. This section of the act has to be read with the limitations that I have already suggested have to be applied to section 21aa, to the extent that, so far as it is intra vires of this Parliament, we hereby enact that the court shall do so and so. That is its only effect. The honorable senator admits that classes of disputes which would appear to come under this provision could be made the subject matter of mandamus to the High Court; in other words, this particular section would not affect them. We have heard a lot of talk about legal entanglements, [nstead of assisting the Government to put up a barbed wire entanglement to keep out lawyers, the honorable senator suggests that we should pull down some of the wire.

Senator Cox - Why not postpone the clause until clause 12 is dealt with?

Senator DALY - The suggestion is a good one.

Clause postponed.

Clause 33 (Cancellation of award).

Senator SirGEORGE PEARCE (Western Australia) [12.2]. - This is an important clause because its purpose is to repeal section 38d of the principal act which permits of an application to be made by any organization or person interested, or the Registrar, for the cancellation of an award in the case of a lockout or strike. We have already agreed to the deletion of the provisions which provide penalties for strikes and lockouts, but this section is on quite a different plane. It would be farcical to permit an organization of employers or employees to register under the act, go to the court, obtain an award, and then promote a strike or lockout and still re main registered. An organization should make up its mind whether it is to be under the Arbitration Court or not, and, having decided to be under the Arbitration Court and having obtained an award, it should not be entitled to say that it is not going to obey that award. Why should it remain registered under an act with the provisions of which it does not intend to comply?

Senator Daly - Assuming that the Port Adelaide waterside workers were wrong in striking against Judge Beeby's award, would the honorable senator suggest that the award should be cancelled and the workers of Fremantle and Sydney who did not go out on strike be deprived of its benefits.

Senator Sir GEORGE PEARCE - I am speaking of the power to apply for cancellation ; the cancellation itself would naturally be decided upon the circumstances. If section 38d is removed from the act there will be no power to apply for cancellation. Obviously, if shearers in five of the States are working peaceably under an award and the shearers in the sixth State have rejected it, it would not be wise to appeal for the cancellation of the shearers' award; but if the men are striking against an award in every State, then, I contend, opportunity ought to be afforded for an application for the cancellation of the award. Provision is made in sub-section 3 of section 38d, that the order for suspension or cancellation may be limited to persons named therein, to classes of persons of any branch of the organization, or to particular localities, but with the deletion of the section no power would exist to apply for the cancellation of an award as affecting a branch of an organization.

Senator Reid - That power has been exercised in the past.

Senator Sir GEORGE PEARCE - I ask the committee to vote against the clause, and thus retain section 38d.

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