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Thursday, 31 July 1930


Senator MILLEN (TASMANIA) - After the basic wage has been fixed, margins are to be agreed upon for skill. If any satisfactory arrangement is to bo arrived at, the parties to the conference must know the conditions obtaining in the industry. Otherwise it is utterly impossible to arrive at a satisfactory settlement. We, therefore, get back to the position that the conciliation commissioner must act as a judge. The representatives of the employers and of the employees can only put their case 10 the commissioner by calling evidence as to the conditions actually obtaining in the industry. That gets us back to where we are to-day. At one time the difficulty was to determine when a dispute existed. That matter was decided by a judge of the High Court, who held that a dispute existed if a plaint had been served. Later there was a provision for the holding of compulsory conferences. I have attended compulsory conferences - r he most futile gatherings I have ever attended in my life. As soon as the judge retired, the representatives just filled in time. They could do no other, for they had no common basis on which to arrive at an agreement. The conferonce always ended by the matter being ref erred back to the judge. No other arrangement was possible.

I am glad that the Leader of the Senate (Senator Daly) said that if honorable senators liked they could call the conciliation commissioners arbitrators, because, after all, they will be arbitrators. There can be no jurisdiction unless a dispute assumes an interstate character. I shall give the Senate one example. A big company in New South Wales wanted to approach the Federal

Arbitration Court, but could not do so, because an interstate dispute did not exist. It, therefore, sought the assistsance of a small company in Tasmania. That made an interstate dispute and the case was taken to the Arbitration Court. The Tasmanian company really had nothing to do with the plaint at all; it was not interested. But it became a party to the dispute to enable the case to reach the Federal Arbitration Court. That kind of thing will continue so long as a dispute must extend beyond the boundaries of one State before the Arbitration Court can deal with it. Unless we give the conciliation commissioners authority to delegate their powers to some persons in a particular district, company, or industry in which the dispute occurs, conciliation must fail. It is impossible in such circumstances for a commissioner to be other than an arbitrator. I shall not say more, excepting that, if we are to make the conciliation commissioners judges, there must be an effective right of appeal. I do not wish to be misunderstood. I do not want the right of appeal to be made too easy. Once a decision has been given, I want the parties to the dispute to know where they stand. The absence of certainty in that connexion has caused much dissatisfaction in industry in the past. I hope that whatever scheme is introduced will provide for some permanency in this direction. If not, confusion will be worse confounded.

Senator Sir HALCOLEBATCH (Western Australia) [6.5]. - I dissociate myself completely and entirely from the statement of the right honorable the Leader of the Opposition (Senator Pearce) that if certain amendments are made to the amendment by the Leader of the Senate (Senator Daly) members on this side will be satisfied. I certainly shall not be satisfied, for in no circumstances am I prepared to allow arbitral powers to be vested in conciliation commissioners. I tell honorable senators that if they pass this measure in its present form, they will destroy the confidence of investors, break down industry, and increase rapidly the numbers of the unemployed. In dealing with this measure I am not concerned with either employers or employees. I am not an employer, and have no connexion with employers. I ask honorable senators to consider how we have drifted. We are now considering to what extent we should allow appeals from the decisions of conciliation commissioners. But we have not yet decided whether we shall give the commissioners any arbitrary powers. That point has been evaded. During the second-reading debate, practically every member on this side of the Senate said that he was opposed to arbitral powers being given to the conciliation commissioners. What has happened since then to change their views? What has occurred to justify the Leader of the Opposition in saying that members on this side are now content to vest arbitral powers in the conciliation commissioners so long as certain rights of appeal are allowed?


Senator Sir George Pearce - I did not say that.

Senator Sir HALCOLEBATCH.Before the right honorable gentleman resumed his seat, he said that, if the Leader of the Senate would agree to strike out certain words so that the appeal would become general, honorable senators on this side would agree to the appointment of conciliation commissioners with arbitral powers.


Senator Sir George Pearce - I said that honorable senators would be more satisfied.


Senator Sir HAL COLEBATCH - I support the amendment moved by the Leader of the Opposition. But I do so without any belief that it will be of any value. I shall support the amendment only because the Leader of the Government here has stated that if it is insisted on the Government will abandon the measure.


Senator Dunn - The honorable senator is not game to support the Government.

Senator Sir HALCOLEBATCH.I certainly do not intend to support the Government. I shall support no government that proposes to break down all the best traditions of British justice by giving judicial powers to persons who are not qualified to exercise them - persons who are to be politically appointed, and are without that protection which the Constitution affords to the judges of our courts. I voted with the Government a little while ago because its Leader said that he was prepared to uphold the principles of the Constitution.


Senator Daly - So I am.

Senator Sir HALCOLEBATCH.The section which this clause proposes to qualify provides that -

No award or order of the court shall be challenged, appealed against, reviewed, quashed, or called in question, or be subject to prohibition, mandamus, or injunction, inany other court on any account whatever.

I should like to know how the Leader of the Senate reconciles that with the provisions of the Constitution.


Senator Daly - Can an appeal be made to the Privy Council without leave from the High Court?

Senator Sir HALCOLEBATCH.I am not talking about the Privy Council.


Senator Daly - The principle is the same.

Senator Sir HALCOLEBATCH.I merely asked the Minister how he could square those words with the Constitution. The High Court has held over and over again - right from the time of Sir Samuel Griffith to the recent decision given in Melbourne - that the right of the High Court in regard to mandamus, prohibitions, or injunctions is something that this Parliament cannot take away.


Senator Daly - We shall come to that clauselater.

Senator SirHALCOLEBATCH.I content myself at this juncture with saying that nothing so far as I know that has happened can in any way alter the opinion I previously expressed, namely, that the conciliation commissioners should be conciliators, and nothing more. It would be opposed to the best interests of all classes of the community if they were given arbitral powers.


Senator Dunn - The honorable senator is guided by the views expressed in his party's caucus.

Senator Sir HALCOLEBATCH.I have nothing to do with any party's caucus. I have always opposed members of this Senate subjecting themselves to the decisions of any party. I have never attended a party caucus in my life. If the Senate generally had stood by that principle, it would have discharged more effectively than it has done in the past, or seems likely to do in the near future, its functions as a house of review and a protector of the rights of the States.


Senator Daly - If honorable senators generally had adopted that attitude they would have passed more bills than have been passed since the present Government came into office.


Senator Sir HAL COLEBATCH - The Senate would not have passed a measure of this kind.







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