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Thursday, 25 May 1972
Page: 2144

Senator MURPHY (New South WalesLeader of the Opposition) - I wish to speak on clause 1 because it seems the convenient way to deal with a most important matter which has been raised and that is the nature of the bodies with which we are dealing under the Conciliation and Arbitration Act as it is proposed to be amended. Clause 1 refers to the principal Act. Sub-clause (2.) states:

The Conciliation and Arbitration Act 1904-1970 is in this Act referred to as the principal Act.

The Attorney-General (Senator Greenwood), when closing the second reading debate, made a qualified admission of an error that he made by way of interjection last night. The matter is an important one because there is no doubt that honourable senators opposite had been advised that the suggestion that the registered organisations were corporations was a lot of nonsense and was not true, that the organisations did not have a corporate entity and that they were not to be regarded as corporate bodies in the same way as other bodies have a corporate entity. Material has been put to the Attorney-General to show that for 68 years, I think - certainly for 64 years, since the decision of the High Court in the famous Jumbunna case - everyone acquainted with organisations registered under the Conciliation and Arbitration Act has been aware that they are corporations. In the face of that material he has now reluctantly conceded that the understanding of 64 years by industrial lawyers and those practising in the industrial sphere is correct and that he was incorrect. But he has attempted to qualify his admissionin some way by saying that the organisations are corporations only for the purposes of the Act and by suggesting to the Senate that in some way the incorporation is limited and that, while the registered organisations may be corporations-

The CHAIRMAN (Senator Prowse)— Order! Senator Murphy, 1 suggest that Eor the benefit of the laymen you make the connection between your line of argument and the title.

Senator MURPHY— I am referring not lo the title but to clause 1. 1 am referring to thc principal Act and taking into the Bill the reference to incorporation in the principal Act. I refer to section 136 of the principal Act in particular. Tt is to be operated upon by the Bill so that many provisions in the Bill will relate to the provisions of the principal enactment. 1 am referring particularly to section 136 of the principal Act in order to deal with this fundamental matter.

The CHAIRMAN—I t might help the Senate if the Leader of the Oppositon read ihe section.

Senator MURPHY— I will read section 136. The side note is 'Incorporation of organisation'. The section reads:

Every organisation registered under this Act shall for the purposes of this Act have perpetual succession and a common seal, and may purchase lake on lease hold sell lease mortgage exchange and otherwise own possess and deal wilh any real or personal properly.

The Senate heard what I read from the old ancl famous case which dealt with the matter of organisations when that matter first came before the High Court. I refer to the Jiimhurma case. The Senate heard the Attorney-General suggest that in some way the words 'for the purpose of this Act' limit the incorporation. ] want to answer that suggestion in order to dispel it once and for all. The incorporation of such organisations under the Act, which is effected by section 136, is not limited to matters such as the settlement of industrial disputes. The corporations which are created under the Act may own property and run businesses—fo r instance, a newspaper business. The Commitlee knows that the Australian Workers Union operates a newspaper business. Other unions operate newspaper businesses. They own cars. They do all kinds of things which have little relationship to the prevention or settlement of industrial disputes. As corporations, they can engage in a whole range of activities. Their incorporation is not limited. This matter came squarely before the High Court of Australia in the Williams v. Hursey case. If I have to read the judgment to the Committee to make the point that apparently still has not penetrated to the Attorney-General, I will read it. The point is referred to in the judgment of iVIr Justice Fullagar, which states:

The Conciliation and Arbitration Acl of ihe Commonwealth under which it is registered

That is the particular organisation—

as an organisation gives lo it what I would not hesitate to call a corporate character, an independent existence as a legal person. It is given a personality which is distinct from that of all or any of its members and which continues to subsist unchanged potwilhstanding the changes which are bound to occur from lime to time in its membership.

He referred to he Jumbunna case and then said:

What, is now section 136 of the Act provides that every registered organisation shall, for ihe put poses of the Act, have perpetual succession and a common seal and may own, possess and deal with any real or personal properly. This provision alone is, in my opinion, quite enough to give to a registered organisation tbe full character of a corporation. The words 'for the purposes of the Act' cannot be given any effect by way of qualification of ihe personification. The notion of qualified legal capacity is intelligible, but the notion of qualified legal personality is not. Probably the words are intended to do no more than lo explain the reason for the. incorporation.

There could be no more definite rejection of the proposition which the Attorney-General again endeavoured to put this evening by way of qualification of his admission of error. Does my quoting the judgment put an end to the matter, or is it necessary for the Committee to be referred to literally dozens and dozens of other statements in which the notion put forward by the Attorney-General is rejected entirely? The corporations with which we are dealing are brought into being by the provisions of the Act—i n particular section 136—an d that incorporation is not limited to the prevention or settlement of industrial disputes. The bodies have an unqualified corporate character. I would have thought that when the Attorney-General realised that he was in error last night he would have been sensible enough to read the provisions, to understand that what was being put was correct and not to compound his error tonight by admitting that he was 90 per cent wrong but then persisting with the other JO per cent of error. Let the debate proceed on the basis which all senators must accept, namely, that these corporations are corporations in the full sense in which the law can confer corporate entity on them in the same way as corporate entity is conferred on other bodies.

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