THE ARBITRATION SYSTEM

Hokitika Guardian, 21 January 1930, Page 2

THE ARBITRATION SYSTEM

AUSTRALIAN COURTS

EXPLAINED BY AIR JUSTICE

PIDDINGTON

CHRISTCHURCH, January 18

An interview dealing with the industrial arbitration system in Australia was given by his Honour, Mr Justice Eiddjngton when in Christchurch. His Honour is a student of industrial problems,'! and as a president of the Industrial Commission of , New South Wales, speaks with high authority. “In New Zealand,” his Honour said “I was' impressed with the difficulty everybody seems to have in understanding ~ the constitutional position that arises from our haying in Australia a federal constitution instead of the unitary constitution' under which New Zealand is governed. It is the federal character of Australia’s constitution that gives readers of your Dominion’s newspapers some difficulty in understanding how, in Australia the powers of the courts and of the legislatures seem to be frequently brought into abnormal relationship.

FEDERAL AND STATE LEGISLATION.

“In New Zealand, 'under its . system no question arises, or .ever can arise as to the power of the Dominion Parliament legislating on any subject or legislating to alter' a law as expounded, or applied , by any of the common courts! That is not the case with us. Under Australia’s constitution certain subjects of legislation are specifically allocated to the Federal Parliament, while all other .subjects are left within the control of; the State legislatures. As the Federal, legislature might' attempt to encroach beyond the proper limits olf the legislative authority it was authorised to exercise over specific subjects'it was necessary that there' should be some tribunal to determine when there had been such an encroachment on the permitted legislative power. Similarly. State legislatures might overstep the powers left to them to make laws on subjects not specifically allocated to the . Federal Parliament, The High Court is the tribunal which secures the observance of limits on the part of both the Federal Parliament and the State Parliament. "It is’so to speak, the umpire of the constitution. '

“Ever since that arrangement was! made—i.e;, for about thirty years—the question of legislating within permitted powers or beyond those powers has led to the High. Court being frequently invoked as such a constitutional umpire to say that Acts of Parliament whether of the Commonwealth or a St.ate, are not Acts of Pariiament. By far the greater number of that court’s decisions have been concerned with the ever present subject matter' of Labour and Labour legislation.. This subject matter, under the constitution, is not allocated ’to the Federal Parliament.

WANT OF UNIFORMITY

“.The State Parliaments are the only Parliaments that can legislate in regard to such questions as the employment of children ,or apprentices, or establish a standard working wage, and deciding whether it should be 44 hours or 48 hours, or the amount, of the living wage, or ' the w r av it should be arrived at. These are all questions on which the . six State- legislatures alone and-,, separately can legislate. At the same time, since inter-State free trade was postulated by the constitution itself, there is always present the difficulty,, df securing any uniformity of industrial conditions on account of the impossibility of the six, States agreeing on one'and the same line pf legislation Still unformity in -Labour conditions is essential in order that the manufacturers or the producers of one State may not have a disadvantage or a

heavier. burden, that those of another State, or the manufacturers or producers of one State have a lighter burden than' is ’borne by the makers or producers of the..same article in another State.

.“Although the Federal Parliament cannot legislate to make any industrial law, it c.tn legislate , for industrial arbitration provided that employers and employees in more than one State are engaged in an industrial dispute over the same matter. The Federal Parliamen has. set up a‘Commonwealth Arbitration Court and, with the same powers as tnat court, certain special tribunals to deal with particular industries— tlie coal industry, for instance. The Commonwealth Arbitration Court and the special tribunals in making awards, lay down the rights of the parties 'in fail inter-State dispute.. When these awards are made, it is now held that the terms of such awards are the law of the Commonwealth' as much as if thoTe /terms were incorporated in an Act \gi The. Federal Parliament. lire final' point of development was reached in 1926 and it may have conduced to the timber strike last year so .tliat, as a matter of practical'working', the Federal Constitution may easily lpad to industrial difficulties as a result of the very power that was intended to dimish those difficulties.

THE COAL INDUSTRY. ‘.‘The Federal special coal ■ tribunal for example, made an award for the coal industry establishing certain rates of pay for miners.'Coal owners are dissatisfied with these rates and they stop ped operations about nine months ago

and have refused to resume operations except at lower rates of wages. The Federal Parliament can do nothing to determine the rates of wages or to enact what it would think lair condition of settlement. “The result is that there is no Parliament in Australia that can directly assert the will of the people in this respect. “The only law in operation is a Federal award but the power of the Federal Parliament, which made the award possible, to amend the law thus created does not exist in the way Parliamentary rule exists in every other part of the Empire. Thus, in the timber dispute last year, a Federal award was made for a 43-hour week which annulled the provision for a 44-hour week made in Queensland and New South Wales by Acts o'f their Parliaments. Yet the Federal Parliament was powerless to legislate one way or the other, so that no means existed anywhere to bring the will of the people to bear by the ordinary process of Parliamentary law.” Asked as to what would happen in the future, his Honor said: ‘‘lt is a matter on which I cannot express an opinion.” Asked as to what were the provisions affecting a referendum, he said: “The Federal constitution can be altered by passing a Bill with that object through both Houses of the Federal Parliament and submitting the measure so passed to a referendum of the people for approval or disapproval An alteration of the constitution can be made .only by means of such a referendum, and if there is a majority of the total voters in favour of the pro posal, and here are also majorities in its favouv, in a majority of the States, that is in four out of the six States, then the alteration becomes part of the constitution.”