Commonwealth of Australia.
That the Bill be now read a second time.
In moving the second reading of this Bill, I recognise, as we all must do, the great importance of the measure. Whilst setting a high value on the principle and purpose of the Bill, I cannot help thinking that as to its immediate practical operation it is viewed, perhaps, with an exaggerated enthusiasm on one side, and with a needless fear or apprehension on the other. I am proud to be in a position to move the second reading. I think it is an honour which any one would appreciate, and which I certainly do very fully appreciate. It will not, I think, be necessar to demonstrate to the Senate the essential principle of the measure. I regard it as a part of that very modern, salutary, and humane legislative effort to substitute in industrial diputes the arbitrament of conciliation, the peaceful arbitrament of an appropriate judicial tribunal, for the violent and barbarous methods of the strike and lock-out. I say violent and barbarous methods, bacause they bring with them all the attendant passion, and sometimes bloodshed and worse even than that—the untold misery and suffering to innocent people, to women and children. Strikes, which, in their origin, may be merely disputes as to rates of wages, may attain the magnitude of civil war. They may involve a revolt against ordered society and peaceful government. It is so, becasue we must remember that the aecustomed remedy for the trouble was force, and force in combination, and that force in combination very often resulted in conflict with the civil authority. These old methods paralyzed industry; they sometimes sxiled workmen form home and country, and gave trade over to the foreigner; they involved untold loss to the community. But beyond and above all these things which I have summarized, and which we all recognise, there were the sufferings of the innocent. Who shall count the tears of the women, or the cries of the children? I have often had in my mind in connexion with the consequences of these methods, which we are at one in desiring to bring to an end if possible, the well-known lines from The Cry of the Children. There is nothing which moves a man like the sufferings of children—there is no motive which appeals.page 2
Powerfully to a man in guiding his course of action, than the distress of the suffering child.
But the young, young children, O, my brothers,
Do you ask them why they stand,
Weeping sore, before the bosoms of their mothers,
In our happy Fatherland?
The child's sob in the silence curses deeper
Than the strong man in his wrath.
some village Hampden, that, with dauntless breast,
The little tyrant of his fields withstood.
As we go up and down the scale of social, industrial, and national life, the fighting instinct, the assertion of right, when they ought to be asserted, and the combative instinct prevail. Whilst it is, therefore, a large undertaking to subdue the combative instinct, it should not be so large an undertaking to regulate and minimize it. In international affairs we know that international arbitration has been brought about within recent years. I am afraid it only applies to minor disputes. It is, however, not a modern development, although it is largely of modern application.
Senator Higgs.—The big fellows make the little fellows agree to it; the United States and Venezuela, for example.
The history of international arbitration reached back to the earliest times of classical antiquity, and ran through the Middle Ages, and in our own time the subject had assumed proportions little dreamt of half a century ago.
Europe had fallen back upon the plain, less ambitious, but more practical arbitration resting on the consent of the parties to the dispute.
Of course in relation to these matters there must be consent.
And they might hope that its adoption, though it never could abolish war, would at least greatly diminish its frequency.
In truth, no internationla authority, with the power to inforce the decrees of the tribunal of arbitration, was either necessary or desirable.
Senator Dawson.—But there is a difference between outside disorder and disorer within one's own territory.
Senator Sir Josiah Symon.—That is so.
Senator Guthrie.—who is the authority quoted?
we are a law abiding people. The people of the Colony respect the law whether some of them like particular laws or not. I do not think the law will be set at defiance by any class of the community.
These being the principles applicable, and the objects to be gained, legislation of this sort was introduced in South Australia first in 1890.
Senator Playford.—But it was not compulsory.
Senator Sir Josiah Symon.—I was going to point that out. I remember very well that when the measure was introduced it was mentioned that there had alredy been a Bill a copy of which was not then to be obtained, introduced in the New South Wales Parliament by the late Sir George Dibbs, then Mr. Dibbs, with the same object. But there can be no doubt of this—that the true credit of having embodied a carefully thought-out scheme on this subject in a most lucid printed Bill belongs to the Right Honorable C. C. Kingston, who, if by nothing else in his public life, deserves by that measure to be permanently held in remembrance. With respect to that I think I may be excused for giving this little personal remimscence. The draft Bill was submitted to me before it was finally in print I regard that as not merely a compliment from Mr. Kingston, who was then in politics while I was not, but as an acknowledgment of a desie which I shared with him at that time, and always have shared, that some effort should be made to secure the arbitrament of a tribunal in respect of industrial disputes in substitution for the methods to which I have already alluded. That Bill was introduced at the end of the session of 1890, not for the purpose of attempting to pass it, but in order to in form the mind of Parliament and of the people of South Australia on the subject, and to give the country, from a statesman like point of view, an opportunity to study the question and to form an opinion upon it.
Senator Playford.—It was not compulsory.
Senator Sir Josiah Symon.—The Bill has re-introduced in the following year, 1891, and, finally, after other steps, which my honorable friend, Senator Playford, will recollect, and which I need [unclear: uncleared] page 4 tailing, it was in 1894 introduced in the Legislative Council. I may here say that I see no reason whatever why this Conciliation and Arbitration Bill should not, at its inception, have been introduced in the Senate. Possibly, if that had been done, many thins which have since taken might have been avoided. There is the precedent which I have mentioned. It was introduced, as I have said, in the Legislative Council in 1894, and it became law.
Senator McGregor.—With the inside taken out of it.
Senator Sir Josiah Symon.—My honorable friend Senator Playford has remarked that that measure was not compulsory. I do not agree with my honorable friend Senator McGregor that the inside was taken out of it, bacause the scheme of the Bill was carried as introduced, and the honorable senator who now says that the inside was taken out of it approved of it at that time.
Senator McGregor.—I did nothing of the kind.
Senator Sir Josiah Symon.—The honorable senator said, in the Legislative Councilthat the Bill was not all that he desired, but he concurred in its being passed.
Senator McGregor.—I could not help it.
Senator Sir Josiah Symon.—There is a difference between opposing a Bill and giving it one's blessing when it is passed by a Chamber of which one is a member. But I frankly acknowledge that many, if not all, holding the views of honorable senators opposite, and belonging to the party which my friend represents, were very slow to give their approval to any system of arbitration, compulsory or otherwise. Because, like other people, the Labour Party had not at that time reached a decisive point of judgment on the subject. I am not at all reflecting upon them. I think that it is desirable that the process of coming, to a conclusion on an important matter of this sort should be slow; and I think all parties on all sides, and all interests, might very well, so to speak, seek time for consideration before making a departure which is very grave and very vital.
Senator Best.—The South Australian Bill made a very substantial advance, though, because it gave the force of law to the enforcement of an award.
Senator Sir Josiah Symon.—I was about up point out that. We have an example to England at this moment. One of the most notable conferences of trade unionists has recently taken place at Leeds. It was presided over by a very distinguished unionist, Mr. Bell. A proposal for arbitration for the settlement of industrial disputes was defeated by a nearly three to one vote.
Senator Sir Josiah Symon.—All that I know is that it was defeated.
Senator Givens.—Because they are afraid of the constitution of the Court.
Senator Sir Josiah Symon.—They may, or may not be; but I do not agree with my honorable friend in his criticisms the other day, and those of Senator de Largie, with regard to our judicial officers.
Senator Dawson.—Not very long ago they objected to eight hours.
Senator Sir Josiah Symon.—I rejoice at the liberalism of trade conditions. I rejoice in the relief that has already been secured; and I rejoice that the efforts that have been made have, in many direction, been so successful. But I believe, at the same time, that there are no men on this planet who rise so completely above the level of local conditions and local influences, who are so absolutely free from bias and so impartial, bending neither to the one side nor to the other, as are the Judges of our country; and I do not believe there is any likelihood of a measure of this sort being defeated by an assumption that the Judges will not do even-handed justice.
Senator Dobson.—I do not think there is a word in the Times report of the Trade Unions Congress which expresses Senator Given's objection-not a syllable.
Senator Sir Josiah Symon.—I merely mention that, not with a view of suggesting that conciliation and arbitration for the settlement of industrial disputes may not be effected in the mother land, but to bear out the remark I have just made in vindication of any hesitation on the part of the labour organizations, in the early stages of this legislation, to accept it. The same slow, gradual process of conviction may, I hope, make itself felt upon the minds of those in England who, by a majority of nearly three to one in the conference to which I have referred, have just negatived a proposal for conciliation and arbitration.
Senator Dawson.—Does the honorable and learned senator suggest that we ought to wait until the minds of people in England are changed?
Senator Sir Josiah Symon.—I am not suggesting that at all.page 5
Senator Best.—Otherwise the honorable and learned senator would not be moving the second reading of this Bill.
Senator Sir Josiah Symon.—Of course not. As my honorable friend Senator Playford has reminded me, there was no compulsion under the first South Australian Act. That Act, unfortunately, was, as a result, largely a dead letter. It depended on registration. Without registration there was no enforceable award. No award was to effect any one who had not submitted. The provisions against strikes were against strikes by, or on the part of, registered associations. That measure, nevertheless, was an enormous advance. In fact, it was the foundation of the subsequent legislation which has been passed elsewhere. But under the conciliation and other provisions of that South Australian measure, there has been, I think I may say, most satisfactory adjustments of various industrial disputes in South Australia.
Senator Guthrie.—Some disputes were prevented by it.
Senator Sir Josiah Symon.—There cannot be prevention unless there is a dispute.
Senator de Largie.—The Bill may have prevented strikes.
An industrial dispute is a public nuisance to be restrained by law like any breach of the peace.
I should not, myself, have put the principle quite in that form, but Mr. Wise's sentence expresses and conveys to the mind essentially the purpose we seek. To accomplish that object, there can be no doubt—and we cannot disguise the fact—that we do interfere with the liberty of the workman as well as with the liberty of the employer.
Senator de Largie.—Strikes have often been a nuisance to the public.
Senator Sir Josiah Symon.—That is exactly what Mr. Wise points out. Here I should like to say that a great deal of unnecessary comment has been made in respect of some remarks by the Chief Justice of New South Wales. With the permission of the Senate, I shall quote his words which embody his opinion of the effect of this legislation. But the question which always remains is—"Are you justified, to a certain extent, in interfering with individual freedom on the part of employers on the one hand, and employes on the other for the accomplishment of some higher abject?" That is what it all comes back to.
Senator Givens.—All law is an interference with individual liberty.
It is also beyond all question that the Arbitration Act, as enforced in this State, is an Act which is an abrogation of the common law.
Nobody can deny that.
It does encroach upon the liberty of the subject as regards person and property.
Nobody can deny that.
It creates new crimes unknown to the common law, to any previous statute.
It interferes with the liberty of action of both employer and employe. It precludes the one from giving, and the other from obtaining, employment except upon terms settled by the Court. It has the effect of preventing persons from obtaining page 6 employment at their own specific calling, except [unclear: upon] imposed by the Court. It deprives the employer of the conduct of his own business, and vests the management in the tribunal formed under the Act, and it can prescribe terms of management, which, however injurious they may be, the employer must comply with, under penalty for any breach of their order.
That is, I think, a very fair summary. But it gae rise to a very great deal of animadversion at the time. I reproduce the passage in order to say that I think that that animadversion was rather misapplied and underserved; and that the true inwardness—if I may so express it—of these observations was perfectly within the competence of the learned Judge who made them, and that they really expressed no more than we may very well admit.
Senator McGregor.—But he was expressing an opinion upon legislation which he was supposed to administer.
Senator Sir Josiah Symon.—And he had a perfect right to express an opinion on the legislation.
Senator Findley.—Not a one-sided opinion, though.
Senator Sir Josiah Symon.—My honorable friend does not agree with me. I think the opinion is not one-sided.
Senator Givens.—Thehonorable and learned senator himself said that it revealed only one side of the shield.
Senator Sir Josiah Symon.—It is not one-sided as to the Arbitration Act itself. But it does not deal with the question whether this interference with liberty may not be wise and necessary, in order to attain some higher end in the public interest.
Senator O'Keefe.—Does not the honorable and learned senator think that Chief Justice Darley's remarks created a wrong impression?
We made careful inquiries as to how the operations of the Act were viewed from both the employers' and workmen's stand-point and met leading representatives of each side. We were much indebted to the right honorable the Premier for amanging a conference for us with the members of the Court, Messrs. Thompson and Slater, representing the employers and workmen repectively, together with several members of the Board of Conciliation for Wellington, with whom we fully discussed the working of the Act. We were assured that the more reasonable class of employers regarded the Act as fairly satisfactory, but there were other employers, however, who complained they had not the same exclusive privileges of managing their businesses as formerly. The Act is certainly popular with the workmen. Speaking at a special meeting of the Dunedin Chamber of Commerce on the 19th October, 1897, to consider certain Bills then before Parliament, Mr. James Mills, the managing director of the Union Steam-ship Company one of the largest employers of labour in New Zealand, is reported by the Otago Daily Times to have said that, "personally, he thought the Conciliation and Arbitration Act was a very beneficent one. . . ."
Senator Gray.—Has he not modified that statement since then?
Senator Sir Josiah Symon.—If he has qualified the statement in any way, I am not aware of it.
Senator Best.—It is only very recently, if he has.
Senator Sir Josiah Symon.—In any case, I am merely reading the statement as it is given in this report, and I am sure that Mr. Mills, if he comes to know that I have alluded to it, will not think that I am doing him an injustice if I do not mention any qualification, if there is any.
Senator Best.—I do not think so.
Senator Findley.—The conversion has been the other way. Those who were opposed to this legislation at first, now be lieve in it.
"Personally, he thought the Conciliation and Arbitration Act was a very beneficent one, and one of the most important that had been passed, and he felt they were under a debt of gratitude to page 7 the present Governement and Mr. Reeves for maturing the Bill and passing it in its present shape. Probably the measure was capable of improvement, and it would be improved from time to time, but he was sure that compulsory arbitration was the true solution of all labour difficulties."
The whole of the report is very interesting, but that is the passage which more particularly refers to the point we are now considering. In 1900 Western Australia legislated, and in 1991 New South Wales followed suit. Before I leave this brief historical summary of State legislation on the subject, I wish to say that the objection has been taken that legislation of this character is calculated to multiply disputes. That probably is true, but I do not consider that that is any demerit or defect. It brings to the surface disputes. Of course, "the means to do ill deeds makes ill deeds done." But that equally epplies to good deeds. There might be many disputes which would not lead to strikes, yet why should they go unredressed? Surely a grievance, if it exists, should have an opportunity of being dealt with. It is better to settle it in some way or other than that there should be a sort of running sore, and a condition of permanent discontent in the minds of even the humblest of the workmen. I do not regard that objection as of any moment. There is a later Act in Western Australia to which I do not refer, but that, speaking generally, was the state of the legislation when Federation came along, The fundamental principle of our Federal union is that the States shall retain control of their social and industrial legislation. If it is intended that that principle shall be invaded in any way, that we shall take away from the States any portion of that power in respect of social and industrial legisaltion, it must be plainly expressed in the Constitution. Ours is not like the Canadian Constitution, which is what I may call a drag net king of Federal Constitution; it leaves of the constituent provinces only certain specific matters of control and legislation, and sweeps into the Federal net everything else. Our Constitution is framed on the opposite plan and specifically withdraws from the States only those matters of national import which are to be dealt with by the Commonwealth in the national interest, leaving to the States everything else. With us the drag net, so to speak, is in favour of the States. The principle, therefore, which we have to apply, and which I think we all do apply, particularly in the Senate, which is the States House, is that we must, as far as we can, if there is an ambiguity or a doubt, give the benefit of it to the States, and not to the Commonwealth. That is the initial view. I shall offer two or three other considerations directly. It will be seen that this may involve a question of the interpretation of the Constitution and of State rights in a very important fashion. Whatever view we take, we here, as the representatives of the States as States, are especially charged to protect their interests and their powers of self government. We must be careful that we do not impinge on those powers and right, at any rate, unless we are satisfied that they will be protected somewhere else.
Senator Trenwith.—But that consideration does not arise anywhere in this Bill.
Senator Sir Josiah Symon.—I think it arises in the inclusion of the railway servants.
Senator Trenwith.—If a dispute extends beyond the boundaries of a State, it is with in our power to intervene.
If this is to be carried out, it will create the greatest possible difficulty and complication, not withstanding which all it does is simply to embody page 8 [unclear: za expression of] the sentiment of kindliness and [unclear: good] Is it the desire of the repre-[unclear: sentive] State that their industrial affairs [unclear: shall placed] under the control of the Federal autherity.
If that observation can be applied in connexion with all the ordinary industrial affairs, as we understand them, that is on the part of employers, whether individuals or companies, how much more will it apply in relation to the States and their own State enterprises?
Senator Pearce.—And the honorable and learned senator recognised that there was a possiblity of it applying to State enterprises?
Senator Sir Josiah Symon.—No; that never entered my mind.
Senator Peapce.—Why bring forward the objection?
Senator Sir Josiah Symon.—What I had in contemplation was not State enterprise, conducted by the Government, but the industries of the State, in the ordinary sense of the term.
Senator Pearce.—But the honorable and learned senator just said that he meant that to be included?
Conciliation and Arbitration for the prevention and settlement of injustrial disputes extending beyond the limits of any one State.
"Industrial dispute" means a dispute in relation to industrial matters . . . and extending beyond the limits of any one State.
The guiding and governing words which we ought to bear in mind, and to which I shall invite the attention of honorable senators in connexion with another question, are "extending beyond the limits of any one State."
Senator Guthrie.—Are they not the words "prevention and settlemetn"?
Senator Sir Josiah Symon.—It is a dispute beyond the limits of any one State, and a dispute of that character only to which the words "prevention and settlement" apply. That is a point in respect to which I desire to remove and possible misapprehension. Honorable senators must not cherish the illusion that this provision enables us to interfere with a dispute while it is yet within the borders of a State. I see that some discussion took place elsewhere on this point, and the words "likely to extend" were used. I venture to say that that is no part of the definition. When we apply our minds to the Bill in Committee, or at any other time, we should avoid running away with the notion that we are dealing with disputes that are "likely to extend" beyond the limits of a State. Extending beyond the limits of a State means that the dispute must have gone outside the borders of the State and into another before this legislation can touch it.
Senator de Largie.—Unless we are invited to deal with a dispute before that takes place.
Senator Sir Josiah Symon.—I am obliged to my honorable friend for his interjection. There is a provision in the Bill which enables the Commonwealth Court to deal with disputes at the request of a State. Whatever the moral effect of that [unclear: mountness] page 9 doubt whether any State can shuffle off its own responsibilities in that way. I wish to be perfectly frank about this. The State, in its control of its own industrial disputes within its own territorial limits, must deal with them and settle them as best it can.
Senator Givens.—Could not a State appoint a Commonwealth Court to decide the matter for it?
Senator Sir Josiah Symon.—In my humble opinion, a Commonwealth Court has no power to deal with any dispute that is local—that is within the territorial limits of a State—even if requested by a State Court to deal with it.
Senator Best.—On the principle that consent cannot give jurisdiction.
Senator Sir Josiah Symon.—That is the technical reason. I wish to put it quite clearly as my view—with all deference to any opposing views which may be stated—that the word "prevention" does not enable us to interfere with the industrial troubles of a State on the pretext that they may extend, or are "likely" to extend, beyond its borders.
Senator Trenwith.—How can these words apply if they do not apply in that way? Have they no meaning at all?
Senator Sir Josiah Symon.—They may or may not have some other application, because "prevention," as used in the Constitution, can never apply to a dispute until it has arisen.
Senator Trenwith.—I think the honorable and learned senator made that point before.
Senator Sir Josiah Symon.—I made that point before. The honorable senator will remember that we were not in the Convention using words by plumb and rule. Everbody recognises that a Constituion is not bound in fetters with the rigidity of even an Act of Parliament. Honorable senators will see that whatever meaning is to be attributed to, and whatever effect is to be given to, the word "prevention," it must be an effect applicable to the kind of dispute to which it applies, namely, a dispute which has overspread into the Commonwealth area, as distinct from the State area.
Senator Dobson.—The Convention had the maritime strike in view.
Senator Guthrie.—That could not possibly have been settled by any one State.
Senator Sir Josiah Symon.—In Committee, if I can be of any assistance to honorable senators, I shall place my services unreservedly at their disposal in dealing with some points may be suggested which may not arise now, but I am giving my views as fully as possible in submitting what I think is an elucidation of the Bill.
Senator Givens.—We shall make it as good a Bill as we can.
Senator Sir Josiah Symon.—Exactly, and I say I am going to help to do so. Then we come to the next thing which we have to do, and that is to provide for the settlement of these disputes. In making this as good a Bill as we can, we have to bear in mind what it is we are dealing with, namely, disputes extending beyond the limits of a State, because though you cannot prevent a dispute, you can prevent a strike by settling a dispute.
Senator de Largie.—There is no restriction as to the kind of dispute—whether it arises under State enterprise or otherwise.
Senator Sir Josiah Symon.—That is a point on which we may not agree. My honorable friend will bear with me because I intend to deal with that in detail. I think it right to do so as it is one of the most important matters arising under the Bill. I am dealing now merely with what the Convention did. Once a dispute becomes national as distinct from State—as to territorial area, that is what it means, and not as to at nospherical disturbance—we apply the same provisions to it as we should apply if it were purely a State matter dealt with by a State. It becomes Federal and national, and I point out that there is a parallel in one part of the jurisdiction of the High Court, where we have "controversies" as they are called between States. This is exactly in the same position. We are to give jurisdiction to this newly created tribunal in respect of disputes that have gone beyond the boundaries of a State and have extended to another territorial jurisdiction. Having made these general observations on the Constitution and the fashion in which the provision got into it, I may say that those of us who resisted its being put into the Constitution cannot be charged with doing so from any antipathy to the great doctrince of consiliation and arbitration in such disputes.
Senator Guthrie.—The honorable and [unclear: learned senator's] page 10 absolutely ineffective in any Inter-State dispute.
Senator Sir Josiah Symon.—Not at all. I was merely saying, in self vindication, that the opposition to the insertion of these words in the Constitution was not due to any antipathy to conciliation and arbitration, because associated with the opposition to their insertion were such men as Mr. B. R. Wise, who is, we know, the author and one of the strongest advocates of compulsory consiliation and arbitration in New South Wales.
Senator Givens.—Men who voted against their insertion may have done so from entirely different motives.
Senator Sir Josiah Symon.—What motive could Mr. Wise have had for voting against their insertion?
Senator Givens.—he might have had one motive, whilst some one else might have had another.
Senator Sir Josiah Symon.—I shall tell my honorable friend what I think the motive was. I think it was that we should be very guarded and careful about enlarging the interference of the Federal authority with State affairs. There was in the Convention a jealousy, and a justifiable jealousy, of Commonwealth encroachment upon State rights.
Senator Walker.—Sir Edmund Barton, Mr. Justice O'Connor, and Sir Philip Fysh were also against it.
Senator Sir Josiah Symon.—In those circumstances, the provision to which I have been referring was inserted. I think, as honorable senators will see, that there may probably be difficulties yet. Quite irrespective of the provision in this Bill with respect to State public servants, the States may be brought into conflict by its operation in other regards. I do not wish to prophesy evilof any sort or description. I hope there may be none. I still, however, adhere to the view I entertained some time ago, that there are possibilities of difficulties which I hope may not arise, but that they exist I think now as I did then.
Senator Guthrie.—The honorable and learned senator will admit that disputes may arise which a State cannot settle.
Senator Sir Josiah Symon.—I am not very sure of that. I should not like to admit that now. I am rather inclined to think that State jurisdiction might settle practically everything. But now that we have this provision it is our duty to assume that [unclear: be] disputes which the States could not settle, and which may become national, and it is, therefore, for us to make this Bill as perfect as we van to deal effectively and justly with any such disputes. I do not propose to go through the various clauses of the Bill. That sould not be necessary, as we shall have an opportunity to deal with them in Committee. I wis to say, generally, that the Bill is not intended, and will not give any benefit to individual employés. It is only as members of organizations that they can secure any benefit under this Bill.
Senator Givens.—It is based on organiszation.
To prevent lock-outs and strikes in relation to industrial disputes.
2. To constitute a Commonwealth Court of Conciliation and Arbitration having jurisdictionfor the prevention and settlement of industrial disputes;
3. To provide for the exercise of the jurisdiction of the Court by conciliation, with a view to amicable agreement between the parties.
4. In default of amicable agreement between the parties, to provide for the exercise of the jursidiction of the Court by equitable award.
5. To enable States to refer industrial disputes to the Court, and to permit the working of the Court and of State industrial authorities in aid of each other;
Perhaps I may say, parenthetically, that the reason why I doubt the constitutional efficacy of that provision is that this Commonwealth Court and Commonwealth Legis- page 11 lation being restricted by the Constitution to disputes extending beyond the territotial area of a State, we cannot by legislation enlarge a power which is so limited.
senator Fraser.—We must amend the Constituion first.
6. To facilitate and encourage the organization of representative bodies of employers and of employès, and the submission of industrial disputes to the Court by organization, and to permit representative bodies of employers and of employès to be declared organizations for the purposes of this Act.
7. To provide for the making and enforcement of industrial agreements between employers and employès in relation industrial disputes.
These are the objects. I pass by the definition of "industrial dispute" for a moment, because, to a controversial portion of that, covering the inclusion of public servants of the States, I shall refer presently. The first part of the objects which I have enumerated is carried out by clause 6, which prohibits anything in the nature of a lock-out or a strike. There is a penalty provided under the clause, but as honorable senators will find on referring to clause 50, it also involves certain disabilities in addition to the penalty set out in clause 6.
Senator Pearce.—Particularly applying to employès.
Senator Sir Josiah Symon.—Theyapply to any person adjudged to be guilty of any contravention of Part II. of the Bill, or of wilful default in compliance with any award, if the Court, in its discretion, so orders.
Senator Pearce.—But the disabilities are of such of character that they will apply particularly to the members of a trade society.
Senator Sir Josiah Symon.—They do not apply exclusively to members of trade organizations, as my honorable friend will see.
Senator Trenwith.—That is a committee matter.
Senator Sir Josiah Symon.—It is a Committee matter, and I am merely calling attention to the fact that it is proposed that the Legislature on one hand shall carry out its compulsory mission, so the speak, by enacting the prohibition of lock-outs and strikes, not merely under penalties, but under disabilities which honorable senators will find set out in clause 50.
Senator Pearce.—Perhaps the honorable and learned senator will allow me to say that my object in calling attention to their special application to trade organizations is to rebut the statement that has repearedly been made that no penalties are provided against workmen under the Bill.
Senator Sir Josiah Symon.—Senator Pearce is quite entitled to make that observation. No one can view the Bill with an unbiased mind without seeing the extent to which the penalites and disabilities go and the persons on whom they fall. Then we have to consider how the other part of the objects of the measure are to be given effect to the next thing is the constitution of the Court, and under clause II the Conciliation and Arbitration Court is to be appointed. In connexion with that appointment, I remind honorable senators that, under clause 35, the Court is to be constituted with the appointment of a President. The original proposal to have two permanent members of the Court, in association with the President, does not now find a place in the Bill. The remainder of clause 35 refers to the appointment of assessors, or experts, to assist the President.
Senator Lt-Col. Gould.—They are not members of the Court?
Senator Sir Josiah Symon.—No. I think that assessors, along with the President, who will be a trained Judge, will be the more satisfactory tribunal. Put I may say—I do not propose any alteration—that I concur with a remark made by Mr. Deakin on this point. I do not know that it would be possible, but I think it would be better if the President of the Court were a high judicial officer, who was not at the same time a Judge of the High Court. Personally, I do not like the idea of—I was going to say, entangling, but I shall not use that word, because it might be misunderstood—transferring a Judge to an atmosphere in which questions of a totally different king are dealt with—to an arena in which there are elements not ordinarily present in the High Court. Whatever we may say to the contrary, all of us recognise that in that arena there are elements of heat—
Senator Sir Josiah Symon.—I shall not say discord; but there are elements of heat and irritation, which, as I know from long experience, affect unsuccessful litigant in any Court, but which will be infinitel more in evidence when the litigants number page 12 hundreds or thousands. Smouldering resentment at an adverse decision on the part of an individual litigant is liable to assume much greater intensity under the circum stances which will proceed, accompany, and follow a reference to the Arbitration Court with a view to having a Judge, who, in this tribunal, shall be above suspicion—in whom there will be a most perfect confidence on all sides, but who, at the same time, will be limited in his powers by the particular class of cases—it is not desirable to run the risk of his being subject, in another tribunal, to complaints of an unpleasant kind, arising out of his duties in another sphere. In this Bill, and, I believe in every Bill on the subject, there is a limitation as to the tenure of office, the term in the present case being seven years. A Judge of the High Court is appointed for life and good behaviour, but if, at the end of seven years, we, all being human, experience on one side or the other a feeling which we would not express but one of dissatisfaction, and he is not re-appointed—then all I can say is that such a Judge might go back to his other duties with a blemish.
Senator Pearce.—That has not been our experience in Western Australia, where the present Chief Justice was the first Judge of the Arbitration Court, and there is no one more repected.
Senator Best.—A big crop of disputes must be contemplated, if it is thought they will constantly employ one Judge.
Senator Sir Josiah Symon.—I was going to say that I hope it will be a long time before this Bill has to be put into operation. But when it is placed on the statute-book, we shall know its shape, and will be able, if necessary, to deal with that question. On the other hand, as Senator Best has said, we hope that the office will be a sinecure, because there would be great difficulty, even if we desired, in having a Judge exclusively for this Court.
Senator Best.—The term of seven years would probably have to be altered if there were a separate Judge.
Senator Sir Joshiah Symon.—I prefer, as I said before, that the Court should consist of a President and assessors, because there might be disputes in a particular branch of industry, about which one man knew a great deal, and another man knew nothing.
Senator Best.—If either party demand assessors. I suppose they will be appointed; put can the Judge act alone?
Senator Sir Josiah Symon.—According to clasue 35 a Judge may "without such application" appoint assessors. Having constituted a Court the Bill confers jurisdiction, and the President is charged with the duty of doing his best to bring about an amicable arrangement. Under clause 19 the Court is given cognisance of three kinds of disputes—first, those certified by the Registrar, which are quite independent of proceedings started by an organization; secondly, those industrial disputes submitted by organizations; and, thirdly all industrial diputes on which any State industrial authority may request the Court to adjudicate, and which, under the Bill, the Governor in Council of a State may refer to the Court.
Senator Lt.-Col. Gould.—And the latter are what the Minister thinks the Constitution does not allow?
Senator Sir Josiah Symon.—No; what I doubt is the power of the State Court, under the definition clause, to refer a local dispute to the Commonwealth Court. The clause with which I am now dealing refers only to industrial disputes within the meaning of the Constitution. Then I call particular attention to clause 25, under which, it will be observed, the Court is not bound by rigid technicalities or by rigid rules of evidence.
Senator Guthrie.—A bit of law reform.
In the hearing and determination of every industrial dispute the Court shall act according to equity, good conscience, and the substantial merits of the case, without regard to technicalities—
Senator Guthrie.—The language is beautiful!
or legal forms, and shall not be bound by any rules of evidence, but may inform its mind on any matter in such manner as it thinks fit.
I beg honorable senators to bear that clause in mind when they come to consider a subsequent provision to which I shall refer. This clause is further amplified in clause 28, which declares that a decision of the Court "shall be framed in such a manner as to best express the decision of the Court, and to avoid unnecessary technicality."page 13
We have here a Court which, I think, should confidence, and the functions of which ought to be successfully exercised. We have a Court whichis expressly emancipated from those rigid rules and technicalities which, some honorable members may think, occasionally embarrass, if they do not frustrate, the ends of justice. I think I have said enough, without going into the other clauses, to inform honorable members as to the constitution and jurisdiction of the Court. Then clause 30 provides that when a State law or award is inconsistent with an award of the Court, the latter shall prevail. In another place a question was asked by way of interjection as to how far this clause aplied, and I am disposed to think—and I suggest this for the consideration of honorable senators—that this clause will not apply, as many have supposed, to a decision of the Court given before a dispute has overspread into another State. That is to say, if there is a dispute with which a State Court has dealt effectively, I doubt whether, even if the dispute may subsequently travel into another State, this provision would enable the Commonwealth Court to practically reverse the decision of the State Court, or modify it in any respect. I mention these matters so that honorable senators may think them over, and not with any view of laying down a rule. If any honroable senators are under the impression that the Commonwealth Court is to have power to plunge itself into conflict with a State Court whichhas already done justice in a particular dispute, they will probably find themselves under a misapprehension.
Senator McGregor.—I do not think any one ever thought such a thing.
Senator Sir Josiah Symon.—The honorable senator is mistaken; but I am very glad to think that he agrees with me. Clause 38, which deals with the powers of the Court, refers to the principle of the common rule; but I do not propose to say anything on that subject now. The fundamental object is to prevent the frequency and multiplication of applications to the Court. Where the Court, in the exercise of its judgment, subject to the qualification imposed by the clause, considers it may bring in the other parties affected, soas to establish a common rule, it is given power to do so. In Committee, we may or may not discuss this point; but as the provision stands, it seems to me to carry out the intention of the Bill.
Senator Pearce.—Does the Minister think the Court will have power to vary a common rule under sub-clauses (f) and (o)?
Senator Sir Josiah Symon.—It appears to me that every effort has been made, so far as this provision is concerned, to intrust the Court with the widest jurisdiction; and no jurisdicion can be complete in this or any other Court, if it has not the power, first of all, tomake orders, and, next, particularly in a jurisdiction of this sort, to vary those orders as varying conditions require.
Senator Givens.—The Bill contemplates trusting a good deal to the discretion of the Court.
Senator Sir Josiah Symon.—It is not so much trusting to discretion, as giving the Court ample jurisdiction to deal fairly and justly with the conditions which are presented. If the conditions alter in the intrvals between the making of the order and the application to vary, there should be power to reconsider that order. What could be fairer or more just? The orders of the Court are not to be like the laws of the Medes and Persians, absolutely immutable, because conditions may change and cause suffering to both employers and employès We all desire that in those settlements there shall be evenhanded justice. Clause 51 provides for the registration of organizations, and this is hedged in so as to prevent injustice. Then come the provisions with regard to industrial agreements which are only important in this connexion in so far as they are to be intrusted to the Court. There are two other points to which I promised to refer at a little greater length. The first arises under the definition of "industrial disputes," and hs reference to railway servants, or, as I shall call them henceforth, public servants. The provision referring to railway servants or others employed in industries carried on by or under the control of the Commonwealth or State, has given rise to a great deal of controversy. There are two classes—one consisting of railway servants, and the other consisting of persons employed in industries carried on by or under the control of the State, or any public authority constituted under the State. It seems to me that those two classes are specifically mentioned, because otherwise they would be outside the Bill. It probably is felt, or was felt—and it is well this should be distinctly stated—that unless they were ex page 14 pressly mentioned, the definition of industrial dispute," which is imported from the Constitution, would not apply to State servants. At any rate, it is expressly mentioned; and therefore we are in a position to deal with it, and it is not left to mere construction hereafter. That is a very grave question, and it appeals especially to the Senate as the States House. Whatever view we may take of many questions, as to party politics and so forth—whatever view view we may take as to issues which are constantly arising between us, and in which individual opinions andthe views of parties may be expressed—this question, I think, may well be considered apart from party influences as much as possible. We should look upon it to some extent from the stant-point that we are the representatives of the States—that we are senators charged with the safeguarding of States rights.
Senator de Largie.—Does the honorable and learned senator propose to strike out the clause?
Senator Sir Josiah Symon.—No, I do not propose to strike it out.
Senator McGregor.—This is a "Yes-No" attitude.
Senator Sir Josiah Symon.—I do not take any notice of that intrruption, except to say that my honorable friend occupies a position in this Senate whichis only second to that which I occupy, and he may well refrain from interruptions which do not usefully assist the discussion. I am going to tell the Senate what I think of the clause, and what I propose to do. It is our duty to look at it from the point of view which I have stated, to consider the position which we occupy, and the redress which the States may have in respect of this provision, if they take exception to it, and whether that redress will be efficient or otherwise. There are three considerations. The first is, is it expedient? The second is, would it be operative—I mean in respect of the public servants of the States? And the third is, is it constitutional? I am going to take the same course as my friend Mr. Deakin took, and say that in my humble view as it originally stood in the Bill the provision was not expedient; and that the reasons applicable in respect of individual ordinary employers do not apply in the same spirit to a State or to State employment. Private employers are moved by self-interest in respect of their lobour bargains. A State is not supposed to be moved by self-interest. It is under the eye and control of its representatives, and, in point of fact, the States servants are really their own employers.
Senator Pearce.—In States where the railways have been handed over to Commissioners?
Senator Sir Josiah Symon.—I was going to say that that is so where the employers are directly employed by the States. It is also the case, but not to the same extent, where they are under the control of Commissioners. A Railway Department is equally a State Department, and it is equally a department contributing to the revenue of the State.
Senator Findley.—It is run an commercial lines.
Senator Sir Josiah Symon.—Of coure it is run on commercial lines; but it is under the control of the people, of whom the public servants are part. It is under the control of Parliament, which is elected on a franchise which these public servants are entitled to exercise. I am merely pointing out that there is that difference, and that also it must never be forgotten that States servants—and these are considerations which affect the constitutional eapect, as well as the other, and that is why I am putting it now—enjoy privileges which other employès do not enjoy. The States offer inducements which cause State employment to be run after.
Senator Gray.—Not necessarily so; there is the State factory in New South Wales for instance.
Senator Sir Josiah Symon.—I have in mind the railways at present. At any rate, there are certain privileges attached to the service of the State, and if in exchange it may be said that State servants suffer from a disability in regard to Commonwealth legislation of this kind, from which other employès do not suffer, they are recompensed in other directions. The position was exceedingly well put in a journal which lately referred to a very remarkable railway strike which took place in Hungary. The railway servants struck. But these railway employès also belonged to the railway regiments of regulars, and the way the strike seems to have been brought to an end was be their being called out and embodied as a railway regiment of regulars to put down their own strike. That was a kind of compulsory conciliation.
Senator Pearce.—It was compulsory conscription, I should say.page 15
The event has been a most instructive instance of a kind of impasse which the nationalization of great industries is bound to lead to. When a workman is a servant of the State he loses his right to combine, and the ordinary tactics of labour become for him criminal offences. The difficulty is still graver under a popular Government—
where the coercive power which opposes the workers is simply themselves organized in another form.
Senator Givens.—What is the name of that journal?
Senator Sir Josiah Symon.—The London Spectator. The second point to which I shall merely allude is, "Can a dispute in a State railway service extend beyond the limits of that State"? Now, I venture to say, with my friend, Mr. Higgins, who is a close student of the matter, that it cannot. I think that is not one of the conceivable conditions under which this measure will operate.
Senator Guthrie.—May not a dispute upon the railways of one State have a detrimental effect upon another State?
Senator Sir Josiah Symon.—I am glad that my honorable friend has made that remark, because it enables me to point out that the Constitution has not given us the power to legislate in regard to strikes in one State, which may have a detrimental reflex operation in another State.
Senator Pearce.—Can we not imagine that the railway men of New South Wales might refuse to take goods any further than the border when they knew that there was a strike on the part of the railway men in Victoria.
Senator Sir Josiah Symon.—I do not know what we should call that.
Senator Playford.—It would be boycotting.
Senator Sir Josiah Symon.—That would not be striking, in the true sense of the word; it would be boycotting in sympathy; and every one agrees—I think I may say that the leader of the Opposition in another place, equally with those who dissent from him on other matters, agrees—that this Bill does not apply to what is called a sympathetic strike. And what my honorable friend Senator Pearce refers to would not be even a sympathetic strike; it would be a sympathetic boycott, to adopt Senator Playford's term. Therefore, I do not object to this provision in the form in which it stands in the Bill, for the reasons which I will mention. One of them is that I agree with Mr. Higgins, with Mr. Deakin—and, perhaps, with others, for all I know—that there is not likely to be any conceivable case to which it could apply. But I must ask honorable senators to consider the question also in connexion with its constitutionality in respect of what are the industries of a State. What are those industries to which this measure would apply? Does it mean water supply or deep drainage, such as we have in South Australia, or anything of that kind? When we come face to face with these matters, we shall find that there are considerations which perhaps will lead to some difficulties in settlement. In the couse of the debate in another place, Mr. Deakin said that, in these matters—
The President.—The honorable and learned senator will not be in order in refer ring to what has been said during the session in a debate in another branch of the Legislature.
Senator Sir Josiah Symon.—I will not quote what Mr. Deakin said in another place, but I may remark that it was said elsewhere, that the High Court would decide, and Mr. Mauger interrupted, "Is not that a solution of the difficulty?" I think it is a solution of the difficulty. But I feel bound, at the same time, to give the Senate, very briefly, the benefit of the considerations which I think will operate to decide that it is not a constitutional provision. But of course, as say again, it is for the High Court to decide; and I personally adopt exactly the same course as I took up in connexion with Tattersall's, when, without dealing with the expediency of the question, and so on, said that I regarded our legislation as anunconstitutional interference with the right of Tasmania, and that it was for the High Court to decide. I put it, briefly, in this way. Federation, honorable senators will recollect, is, as was said by Chief Justice Chase, the indestructible Union of Indestructible States. The States are sovereig States. They surrender only certain self governing powers, and they give up certain page 16 specific matters to the Commonwealth Government, keeping what they do not surrender. The States, of course—as the Commonwealth can also do—can bring their own servants under the jurisdiction of a Conciliation and Arbitration Bill. They can appoint any tribunal for the purpose of dealing with them. That is perfectly within their own powers. But we have no power by legislation to enlarge the scope of the Constitution or to take to ourselves powers which are not expressly given to us in the terms of the Constitution. What we are trying to do by this provision, is to bind the Crown, or the Crown's servants in another jurisdiction, in a sovereign country, over which, as far as this subject is concerned, we have no express control. The Crown is not bound unless it is expressly mentioned, even as regards the Commonwealth. How, then, can we make the Crown, as a State employer, pound without it being mentioned, and in another jurisdiction? We are asked to declare that the Crown, in another State, and in respect to its own servants, is to be an employer or an organization. That, it seems to me, cannot be constitutionally done. I call the attention of honorable senators to the matter, and it is for these reasons that I feel perfectly satisfied, as a representative of South Australia, to leave this question, instead of involving it where it ought not to be involved in the heat of party strife, to the decision of the tribunal which is charged under the Constitution with the duty of determining between the relative powers of State and State, and State and Commonwealth.
Senator Best.—The honorable and [unclear: earned] senator is willing to leave it in the Bill, although he believes it to be uncontitutional?
Senator Sir Josiah Symon.—This is not the place to determine this constitutional question.
Senator Playford.—Yes, but the question [unclear: s:] if we have the power, would it be right and proper to exercise it?
Senator Sir Josiah Symon.—I have referred to two things, and it seems [unclear: o] me, as Mr. Mauger says, that [unclear: the] true solution of the problem is [unclear: the] decision of the High Court. I do not think that a matter of this kind ought to be left to be the sport of heated party politics, when we have a tribunal specially constituted to determine it.
Senator Pearce.—It would place certain Government supporters in a very awkward position if the Government went back on the proposal.
Senator Best.—That is a most unkind remark!
Senator de Largie.—It might place the Government in an awkward position.
XIII. Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks and the issue of paper money;
XIV. Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned.
Honorable senators will see the care with which the Constitution deals with the question of taxation, and the relative powers of State and Commonwealth in section 114, and in connexion with the railways of the States in sections 98, 99, 102, and 104.
Senator Pearce.—But is it any more correct to say that this Bill would bring the railways under Federal supervision than it would be to say that the municipalities are brought under Federal supervision, because the High Court gives a verdict which affects them?
Senator Sir Josiah Symon.—That is a very fair argumentative parallel to suggest; but it is not exact, because there is no comparison between this matter and the High Court dealing with municipalities on appeal on a question of imposing municipal rates under a jurisdiction expressly given to it by our Judiciary Act.
Senator Pearce.—This Bill will give the power.
Senator Sir Josiah Symon.—But the Judiciary Act is within the limits of the Constitution, and we have the power.
Seantor Pearce.—It interferes with State institutions.
Senator Sir Josiah Symon.—It is a perfectly fair argumentative parallel; but it is not complete or exact. I think the honorable senator will find that it will befallacious as an argument on which to found as a constitutional right a power on the part page 17 of the Commonwealth Parliament to interfere by means of legislation such as this with State employès or servants.
Senator Best.—The honorable and learned senator thinks this clause is unconstitutional, but does he think it expedient to insert it?
Senator Sir Josiah Symon.—On its expediency there may be very great difference of opinion, and if it will avail and is applicable, I shold be very sorry to see the provision struck out. If it will avail and is applicable, and there are disputes which will come under its operation, why shold it not be brought into play? I think it would be a monstrous thing, if it were a matter on which there was any doubt, that the doubt should be solved by its exclusion if it merely rested on the question of what one side or the other thought was expedient. And when we find that question of expediency made, as it must necessarily be made, a party question, it appears to me that in a Bill of this sort, which I look upon as a machinery Bill—we may differ as to deatails, but in essence it is a machinery Bill—imperiled by the party conflict.
Senator Givens.—It has led to the defeat of two Governments.
Senator Sir Josiah Symon.—On its details we should seek to make its ambit as large as we can consistently with what we may think to be the object we have in view.
Senator O'Keefe.—The honorable and learned senator believes that it will be a good thing to leave the provision in the Bill if it is constitutional.
Senator Sir Josiah Symon.—Yes, if it is constitutional. I have been taunted here before with having said that something was unconstitutional, and with the Court having decided the other way. I dare say, sir, I am very often wrong in giving an opinion, but if I have an opinion it is my duty to express it, and I hope I may be forgiven if it turns out that I am mistaken. I should feel that I was not discharging the trust which is reposed in me, in common with other honorable senators, if I did not point out these things, and decline to take upon myself the obligation of deciding the question, and voting in accordance with that decision, when in the Constitution we have created a tribunal to decide it for us. The thing would be absurd; at any rate, it is a course which I do not intend to follow on this any more than I have done other occasions, whether my view is right or wrong. I may mention that on a former occasion my friend Mr. Kingston referred to the language of the Constitution, and said that the terms would have been much more elastic had it been possible.
The granting of preference in itself is, undoubtedly, the most serious and most far-reaching power in the Bill. . . . Preference means the power of alloting employmen to members of an organization, who can only obtain that priority of employment by the opportunity being taken away from others outside the organization to precisely the same extent.
As the matter originally stood, it existed without qualification, and without any rule being laid down in respect of the principles which the Parliament representing, or supposed to represent, the feeling of the country, had in view for the guidance of the Court. We now have it in a form in which it seems to me, after as exhaustive an examination of the views on both sides as I have been able to give, to literally express what every one thinks is a fair principle, namely, majority rule. And safe guarded in that way, and embodying in the Bill a principle on which Courts have already acted, I confess I am unable to understand the objections which have been taken to [unclear: it] by my honorable friends opposite, or the opposition which they propose to give it.
Senator Pearce.—We shall try to explain it later on.
Senator Sir Josiah Symon.—I shall be most pleased to hear the explanation and there is no one whose mind is [unclear: moore oper] to conviction than mine.
Senator Guthrie.—Is that the Government mind?
Senator Sir Josiah Symon.—The Government mind is as it is in the Bill, and page 18 if any honorable friend can suggest improvement in the same direction, I shall welcome any suggestion, do my best to consider it, and if I am not convinced, I hope honorable senators on the other side will be open to conviction from this side.
Senator Pearce.—We hope that the honorable and learned senator will not forget his admiration for majority rule.
Senator Sir Josiah Symon.—I have never departed, I think, from that great principle.
Senator Dobson.—Are they going to kill the Bill.
Senator Sir Josiah Symon.—I hear a suggestion to kill the Bill.
Senator Drake.—No, it was a query.
Senator Sir Josiah Symon.—I am glad that it was only a query; it must have been an aside which was not meant to be heard and commented upon.
Senator Givens.—Senator Dobson said the Bill was going to be killed.
Senator Dobson.—I was only asking a question.
Senator Sir Josiah Symon.—From my point of view, of course, this question of preference does involve in its bare form the whole matter of freedom of contract, of whether, if unionists decline of work with non-unionists, the penalty of being out of work should fall on the non-unionists only. It covers the whole area of the States, with diverse conditions of climate, different scales of living.
Senator Pearce.—And as to whether employers should have the right to boycott unionist workmen?
Senator Sir Josiah Symon.—There are all sorts of elements with which we shall deal in qetail.
Senator Pearce.—I thought that the honorable and learned senator would mention that along with the other.
Senator Sir Josiah Symon.—I do mention it. The bald principle is said to be essential to the Act. I do not think it is. I was going to use the expression "unadulterated," and I hope I may be allowed to say, without offence, that unadulterated preference is not essential to the measure. I take an illustration which has been given before. There is in Victoria an Act which is really an Act for compulsory arbitration in relation to trade disputes. I refer to the Factories and Shops Act of 1896, in which [unclear: here is no] preference.
Senator Pearce.—And because of the absence of it many men have suffered persecution.
Senator Findley.—That Act recognises only organized bodies.
Senator Sir Josiah Symon.—So does this Bill, and the honorable senator and I are therefore on the same plane.
Senator Findley.—But under this Bill we consider some persons who are not members of organized bodies.
Senator Best.—The Victorian Factories Act is not confined merely to organized bodies.
Senator Sir Josiah Symon.—Then we have here a conflict of opinion on the subject.
Senator Findley.—Employès cannot get the benefit of the Wages Boards provisions unless they are members of organizations.
Senator Best.—The Act has nothing to do with organized bodies in any way.
Senator Sir Josiah Symon.—I was under the impression which Senator Best confirms, because I had noted proceedings under the Act reported in the newspapers which certainly did not bring home to my mind the idea that the Act was confined to organized bodies. However, it embodies a system of complusory arbitration in relation to the matters within its scope, and so far as I am aware it contains no provision as to preference as an element in its efficacy, and its efficacy has been great. It has been fought for, and, I think, it is valued highly in this State. That appears to me to afford a strong argument in support of the contention that we may have complusory arbitration for the settlement of industrial disputes as to wages, and so on, without having preference as an essential.
Senator Findley.—The analogy is hardly fair.
Senator Sir Josiah Symon.—It may not be. I am putting it with submission and argumentatively, and honorable senators who disagree will be able to show the difference. The illustration has been given before, and it struck me as very forcible. It is alluded to, I think, in the speech in which Mr. B. R. Wise moved the second reading of his Conciliation and Arbitration Bill in New South Wales, and in this connexion, as illustrative of the beneficent effects of a certain kind of compulsory arbitration. But what I desire to point out to honorable senators is that this Bill concedes preference. The only controversy is as to what are fair terms.page 19
Senator Playford.—Why not leave it to the Judge?
Senator Sir Josiah Symon.—I will give my honorable friend the reason. One Judge may have a certain idea—
Senator Playford.—There are varying climates and varying conditions in the Commonwealth.
Senator Sir Josiah Symon.—I prefer in this matter to do what is done by the law, except in dealing with matters of fact, in connexion with every Court in the world. Every Judge who sits in any tribunal is guided in his decision, so far as matters of law are concerned, by principles which have been established for all time.
Senator Givens.—Musty old precedents, the half of them.
Senator Playford.—Judge made law.
Senator Sir Josiah Symon.—As my honorable friend suggests, it is Judge-made law, but Senator Playford knows that the common law of England is the finest body of jurisprudence in the world. It is the essence of the jurisprudence of two continents, and it consists of Judge-made law.
Senator Givens.—And under it you could lag a man for shooting a rabbit.
Senator Sir Josiah Symon.—Senator Playford must know that in establishing a tribunal, which is not to be governed by common law, we should lay down, so far as we can, as we do in the case of ordinary tribunals, the principles upon which the decision of the Court shall be arrived at. We cannot regulate it as to matters of fact, but we can as to matters of principle.
Senator Playford.—We do not propose to tell the Court what wages they shall allow.
Senator Sir Josiah Symon.—Of course not because that is a question of fact.
Senator Playford.—Then why tell the Court what preference it shall give?
Senator Sir Josiah Symon.—It is not proposed to tell the Court what preference it shall give.
Senator Playford.—It is proposed to tell the Court that it shall not give preference unless in certain circumstances.
Senator Sir Josiah Symon.—Unless a majority of those affected agree. That does not effect the giving of preference, but we propose to lay down the principles or conditions by which the Court is to be guided before it can give a preference in any case brought before it.
Senator Pearce.—If it is asked for?
Senator Sir Josiah Symon.—It has to be asked for first, of course. Senator Playford should know that we are merely embodying in this Bill a principle by which we have been guided in dealing with all Courts.
Senator Playford.—it was not in the orignial Bill.
Senator Sir Josiah Symon.—It was not in the original Bill, but it is in this Bill, which is a great improvement on the original Bill, because it is a broad principle, laid down by other Courts after experience. It will comment itself quite as much to my honorable friend to learn that it is embodying a principle which has practically been assented to by the leaders on the other side.
Senator Sir Josiah Symon.—I will give honorable senators chapter and verse for it. It appears to me that the question is really: What are fair terms? What is a fair principle by which the Court shall be guided? In what way and subject to what limitations shall the Court exercise that particular function, which is so far-reaching and important? I say that it is our duty, having regard to the difficulties of the Court in many other directions, woing to its new and complex jurisdiction, to make these governing lines as clear as we possibly can. There is really, as I have said no difference of opinion as to the basis or conditions of this preferece. I make certain references simply with a view to substantiating what I say as to the views of the leaders on the other side. We know that this provision for a preference was inserted in the New South Wales measure. In an article published in the National Review for August, 1902, long after the New South Wales Act came into operation, Mr. B. R. Wise refers to the subject.
Senator Guthrie.—The honorable and learned senator would not class Mr. Wise as a leader on the other side.
Senator Sir Josiah Symon.—I think so.
Senator Guthrie.—I thought he was on the honorable and learned senator's side?
Senator Sir Josiah Symon.—I should have thought that my honorable friend opposite accepted Mr. Wise as their guide, philosopher, and friend on this question of preference. There may be no page 20 foundation for it, of course; but I was under some impression that that gentleman had some hand in framing the amendment which was proposed in substituion for the amendment submitted in another place by the present Minister for Defence, and which now appears as a part of this Bill. A very excellent piece of handiwork it was, although it does not appear to me to differentiate much between the insertion of the two amendments.
Senator Pearce.—Our leader is Mr. J. C. Watson.
Senator Sir Josiah Symon.—No one can have a higher esteem for Mr. Watson than I have, or, in fact, than everybody has.
Senator Findley.—That is why some persons tried to put him out of office.
Senator Dobson.—He put himself out.
Senator Givens.—That is what the present Prime Minister will not do. It will take a team of bullocks to drag him out.
Should an employer in one of these industries attempt to introduce non-union labour for the purpose of destroying unionism, a case would, I apprehend—
arise for the use of this provision, just as the Court would certainly refuse to apply it in a case where the majority of the employès were nonunionist, or where the union was not able to supply a sufficiency of labour.
Senator Lt.—Col. Gould.—When was that expressed?
Senator Sir Josiah Symon.—In August, 1902.
Senator Pearce.—In the Legislative Council of New South Wales.
Senator Sir Josiah Symon.—No, this was written in the calm deliberation of the study.
Senator Pearce.—I thought, perhaps, it had been said to make the pill sweet for the New South Wales Legislative Council.
The Court's authority would be exercised for the most part, if not wholly, in regard to disputes in which large Inter-State organization are involved. The unions that will come within the scope of this Bill are so strong that there are practically no men engaged in the same industries outside their ranks.
Mr. Spence is one of the most thoughtful men and highest authorities on these great question; and, if the position be as he states, surely honorable members will agree that whatever qualification be imposed on preference, we should practically have unanimity of desire and unanimity of application.
Senator Playford.—And no preference is wanted.
Senator Sir Josiah Symon.—Of course, and the nearer we get to that condition of things the nearer we shall be to do no injustice to anybody. But does my honorable friend think that it would be fair, if there were two unionists and 500 non-unioists, that preference should be given to the former?
Senator Playford.—Certainly not.
Senator Sir Josiah Symon.—Then why not have a provision to that effect in the Bill? Why are we to allow a Judge, who may be here to-day and gone to-morrow, to give preference to a minority, while his successor may give preference only when desired to do so by a majority? Let us lay down a rule which he who runs may read.
Senator Playford.—But the Minister says that the Judges have already laid down a majority rule.
Senator Sir Josiah Symon.—And we propose to ambody that rule in the Bill.
Senator Playford.—There is no necessity.
In the great majority of cases a majority of the men employed in a given trade or calling are within the ranks of unions relating to it.
I regard that as an additional reason, not only for the decisions of the Judges in the past, but for embodying those decisions in the Bill, so that they may be known to employers and employès alike.
Senator Guthrie.—And every unemployed man in the Commonwealth will be considered as against unionists.
Senator Sir Josiah Symon.—We have to consider that we propose to declare that by an outside power one man shall be permitted to earn his bread and butter, while another man shall not be permitted.
Senator McGregor.—Is not that the case in the legal profession?
Senator Sir Josiah Symon.—Nothing of the kind. I think we ought to try and do justice to both sides.
Senator Guthrie.—We had lawyers working as non-unionists during the maritime strike.
Senator Sir Josiah Symon.—The first rule in the selection of a man by an employer, should be that the latter is free to choose a man on the ground of competency, and not because he has fixed to him some brand of a trade union.
Senator Pearce.—That is considered where preference is given, as shown by the words, "other things being equal."
Senator Sir Josiah Symon.—I was merely dealing with the interjection. I am perfectly willing—and I think my friends opposite ought to be delighted—to accept preference on the lines already adopted, and within the limits already prescribed.
Senator Givens.—The clause must be a bad one which needs so much special pleading!
Senator Pearce.—We know the clause to be unworkable.
The practice in nearly every case in all Arbitration Courts has been to grant preference only when a majority reasonably ascertained are in favour of such preference.
That is all we have provided in the Bill.
Senator Pearce.—It isnot stated how the majority is to be ascertained.
I am not so foolish as to anticipate that the practice laid down by the Arbitration Courts of New Zealand and New South Wales will be departed from by the Judges appointed to the Federal tribunal.
The Government do not desire that preference should be granted to minorities. The Court, if it followed the precedents which have been created in New South Wales and New Zealand, would be bound to interpret the words as implying a majority.
Senator Pearce.—Is that the position which the Minister desires to maintain?
Senator Best.—Was Mr. Watson Prime Minister at that time?
Senator Sir Josiah Symon.—Yes.
Senator Playford.—Why did Mr. Watson wish to insert the words "substantially represent"?
Senator Sir Josiah Symon.—I shall tell the honorable senator in a minute, but I desire to proceed line upon line and precept upon precept. The honorable senator, I understand, agrees with me tht there ought to be a majority, and in the next place he agrees with me that those are the principles laid down by the Courts in the light of the experience of the past few years.
Senator Playford.—That is what Mr. Watson agreed with.
Senator Sir Josiah Symon.—But desire the honorable senator's vote.
Senator Pearce.—Will the Minister in dorse those words of Mr. Watson?
Senator Sir Josiah Symon.—[unclear: I] think the Bill as it stands carried out the principles enunciated by Mr. Watson.page 22
Senator Pearce.—Does the Attorney-General indorse what the late Prime Minister said?
Senator Sir Josiah Symon.—I have not quite finished, and I am using the lae Prime Minister's words as part of my speech. I confess I do not possess the vocabulary to express those views with anything like the accuracy of the late Prime Minister.
Senator Higgs.—The Attorney-General has spoken from a quarter to three to a quarter to six o'clock.
Senator Sir Josiah Symon.—I do not think that remark comes well from the honorable senator.
Senator Higgs.—I withdraw it.
In New Zealand it has been insisted that the majority, so for as that can be reasonably shown, shall be shown to be in favour of the granting of a preference.
All that is in the Bill is simply an assertion of that principle of preference, but a rule is laid down for the guidance of the Court. To that rule no one, it seems to me, can justly take exception, and it is supported by the view of Mr. Watson.
Senator Givens.—Why did another place object to Mr. Watson's amendment?
Senator Sir Josiah Symon.—I was just going to ask why there should have been all this political carnage.
Senator Givens.—Because the present Government wanted office at any cost.
Senator Playford.—I cannot understand Why Mr. Watson resigned office.
Senator Sir Josiah Symon.—And I share the honorable senator's astonishment. The late Prime Minister was not killed, out committed suicide?
Senator Pearce.—Did he fall, or was he pushed?
Senator Sir Josiah Symon.—I do not think the late Prime Minister was "pushed" at all. The fact of teh matter is, and I say it with all humility, that it was largely a fight over words without substance. [unclear: In the] ages they did that kind of thing, and it was then called, I believe, logomachy. I thought we had outlived such contests; and it would seem that the late Government must have been made the [unclear: tool of some hair—splitting lawyer.]
Senator Pearce.—so long as the rights of majorities are safeguarded, will the Attorney-General be satisfied?
Senator Sir Josiah Symon.—I think the Bill effects what everybody intends, and I prefer the words of the clause. I am with those who voted with the majority in another place—those who preferred the words now inthe clause, rather than have others much more difficult of interpretation and application. I agree with Mr. Deakin, as I said before, in regard tothe difficulty of the word "substantially," and so forth. The provision is that no preference shall be given unless the application is in the opinion of the Court "approved by a majority of those affected by the awards, who have interests in common with the applicants." I apologize, especially to my friends opposite, for speaking at such length; but the subject is so interesting that I had no idea I had been so long. Senator Playford referred to the word "Substantially," but I remind him that that is not the word in the Bill. It was in the other proposed amendment, and the difficulty as to how it would be interpreted shows the propriety of the rejection of the proposed amendment and the retention of the provision in the Bill.
Senator Playford.—After Mr. Watson had used the words quoted, why on earty did he not accept the other amendment? Why did he want to put in the word "substantially"?
Senator Sir Josiah Symon.—I really could not explain. That amendment introduces language much more calculated to created confusion, and to embarrass the Court. The provision of the Bill in the form in which—with the permission of the Senate—I shall endeavour to have in carried, will be open to no exception on the ground of difficulty as to proof. I agree entirely with Mr. Deakin and those who take the view that the principle to which I have already referred, with regard to doing away with all technicality and disregarding the rigid rules of evidence, will apply with regard to this us with regard to other parts of the measure, and that the Court will inform its mind—that is the language of clause 25—by any means in its power, and will, upon the information which it thus derives, come to the conclusion which it may think right. I again apologize to the [unclear: Se]for having occupied a longer time [unclear: that intended. There were other] page 23 which I wished to refer, but I do not propose todetain the Senate further at this stage.
Senator Higgs.—I hope my interjection has not curtailed the honorable and learned senator's remarks?
Senator Sir Josiah Symon.—Oh, no; and, on the other hand, I hope that my honorable friend will not take the remark I made to him too seriously. I agree with the observation that this has been a very fateful measure. It seemed like a portent. It weakened and shook and Ministry. As my honorable friend, Mr. Deakin, put it, it rent that Ministry asunder. It has wrecked two more Ministries. There is only one catastrophe which remains for it to accomplish, and that is to wreck a Parliament. For my part, I fervently hope that that fatality at least may be averted; and in all sincerity I say that I hope we shall quickly see this measure in the quiet haven of the statute-book. Why it has been so fruitful of disaster I am really at a loss to know. But that, after all, may be a good omen. An accompaniment of warring elements at its birth may presage a power for good and a life of usefulness. That has happened before; I hope it will happen again. And I hope that it will happen in relation to this Bill, which is, at least, the symbol of a higher civilization and a more humane spirit. I think it is big with promise, I earnestly hope that it may also be big with fulfilment. Nevertheless, I trust that the day may be far distant when such a lamentable condition will arise as shall bring it into operation; because the bringing of this measure into operation predicates a dispute of a magnitude which none of us cares to foretell, and which, I think, we should shrink from seeing. At any rate, when that time comes I earnestly pray that it may be found adequate to all needs, that it may, as we desire, throw wide the everlasting gates of a great temple of peace within whose precincts passion shall be stilled, and no sound of oppression heard, and where the healing voice of justice shall pronounce only that which is right.