Senate
6 December 1911

4th Parliament · 2nd Session



The President took the chair at 2.30 p.m., and read prayers.

page 3746

PRINTING COMMITTEE

Report (No. 3) presented by Senator Henderson, and read by the Clerk.

page 3746

QUESTION

PUBLICATION OF TERRITORIAL ORDINANCES

Senator CHATAWAY:
QUEENSLAND

– I wish to ask the Vice-President of the Executive Council

Whether he will bring before the Cabinet, or the proper authority, a suggestion to have the various Ordinances issued in connexion with Papua, (he Northern Territory, and the Federal Capital Territory, published in the same form as the Commonwealth Statutes? If they were so published, with a proper index, it would be a great convenience to honorable senators. I make the suggestion as one which the Government may possibly be able to see their way to carry out.

Senator McGREGOR:
Vice-President of the Executive Council · SOUTH AUSTRALIA · ALP

– I shall direct the attention of the Minister of External Affairs to the suggestion made by the honorable senator. I have not the least hesitation in saying that I am sure he will comply with the request if possible.

page 3746

PAPERS

The Clerk laid upon the table the following papers : -

Returns to Order of the Senate of 16th November, 191 1 -

Lands acquired by Commonwealth, fire insurance effected, &c.

Sugar : Quality, production, &c.

page 3746

QUESTION

YOUANME TELEGRAPH LINE

Senator LYNCH:
WESTERN AUSTRALIA

asked the Minister re- presenting the Postmaster-General, upon notice -

  1. Whether the contractor had exceeded the time specified for the construction of the telegraph line to Youanme?
  2. If so, what was the cause of the contractor exceeding such time limit?
Senator PEARCE:
Minister for Defence · for Senator Findley · ALP

– Inquiries are being made, and the desired information will be furnished as early as possible.

page 3746

QUESTION

WIRELESS TELEGRAPHY

Senator SAYERS:
QUEENSLAND

asked the Minister representing the Postmaster-General, upon notice-

  1. Will the Minister inform the House what steps have been taken re wireless telegraphy in Queensland ?
  2. The names of stations, if any, where wireless telegraphy is proposed to be erected?
Senator PEARCE:
for Senator Findley · ALP

– The answers to the honorable senator’s questions are - 1 and2. The Postmaster-General is not yet in a position to announce the decision of the Government regarding the scheme of Wireless Telegraphy for the Commonwealth. He hopes, however, to make a statement on the subject this week.

page 3746

DEFENCE BILL

Motion (by Senator Pearce) agreed to -

That leave be given to introduce a Rill for an Act to amend sections 127, 134, 135, and 142 of the Defence Act 1903-1910.

Bill presented, and (on motion by Senator Pearce) read a first time.

page 3746

NAVAL DEFENCE BILL

Motion (by Senator Pearce). agreed to -

That leave be given to introduce a Bill for an Act to amend the Naval Defence Act1910.

Bill presented, and (on motion by Senator Pearce) read a first time.

page 3746

KALGOORLIE TO PORT AUGUSTA RAILWAY BILL

Senator PEARCE:
Western AustraliaMinister of Defence · ALP

– I move -

That this Bill be now read a third time.

In submitting this motion I desire to intimate to the Senate that it has been found necessary to recommit the measure, in order to rectify errors in clause 20, dealing with the appropriation of money. This clausewas amended in another place, and in making the amendment somewhat hurriedly certain words were left in which are unnecessary. If honorable senators will look at clause 20 of the Bill they will find that it reads -

All moneys necessary for the payment of the cost of construction of the railway up to and including the time of the opening of the railway for traffic shall bepayable out of the Consolidated Revenue Fund or out of any moneys standing to the credit of the Loan Fund, and the Consolidated Revenue Fund, and the Loan Fund according to appropriations from time to time made by Parliament for that purpose.

It is obvious that the words “ and the Consolidated Revenue Fund and the Loan Fund are mere repetition and surplusage. They have no meaning, and it is proposed in Committee to amend the clause by leaving those words out. It is also intended to propose the omission of the words “ from time to time,” because they are also unnecessary. If a Bill is introduced to authorize a loan for this railway it will be the only appropriation from the Loan Fund. There will be no appropriation “ from time to time.” These errors are due apparently to the fact that an amendment moved upon the clause in another place was somewhat hurriedly drafted. I shall explain in Committee how the mistake arose, and my honorable colleague will move an amendment to take the Bill into Committee again to rectify the errors.

Motion (by Senator McGregor) agreed to-

That the Bill be recommitted for the reconsideration of clause 20.

In Committee (Recommittal) :

Clause 20 -

All moneys necessary for the payment of the cost of construction of the railway up to and including the time of the opening of the railway for traffic shall be payable out of the Consolidated Revenue Fund or out of any moneys standing to the credit of the Loan Fund, and the Consolidated Revenue Fund and the Loan Fund according to appropriations from time to time made by Parliament for that purpose.

Senator PEARCE:
Western AustraliaMinister of Defence · ALP

– If the amendments which I intend to move are made the clause will read -

All moneys . . . shallbe payable out of the Consolidated Revenue Fund or out of any moneys standing to the credit of the Loan Fund, according to appropriations made by Parliament for that purpose.

It will be seen that the clause, as amended, will quite safeguard what was intended, namely, that apart from this Bill there should be an appropriation by Parliament for this work whether from the Consolidated Revenue Fund or from the Loan Fund.

Senator ALBERT GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913

-Colonel Sir Albert Gould. - So that, in other words, nothing will be done until an Appropriation Bill is passed.

Senator PEARCE:

– That is so. The amendment which the Government accepted in another place was moved in order to make it clear that Parliament should have that right, but, having been accepted on the spur of the moment, these superfluous words were left in the clause. Unless they are omitted it may be awkward to construe the provision. In the first place, I move -

That the words “ and the Consolidated Revenue Fund and the Loan Fund,” lines 6 and 7, be left out.

Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [2.50]. - I wish it to be made clear that in the event of the Government making an arrangement with the two States to get land for the purpose of carrying out the railway the matter will again come before Parliament, and it will be quite competent for Parliament to approve or disapprove of the arrangement made, subject to the passing of an Appropriation Bill. In other words, suppose that the States say that the Com monwealth shall have only 3 chains of land for the route of the railway, and that Ministers suggest that its construction should be proceeded with, and tha Senate thought that a much wider strip ought to be secured, would it stillbe open to the Senate to consider the matter when an Appropriation Bill was brought forward ?

Senator McGregor:

– The Senate can refuse an appropriation.

Senator Lt Colonel Sir ALBERT GOULD:

– That is satisfactory.

Amendment agreed to.

Amendment (by Senator Pearce) proposed -

That the words “ from time to time,” line 8, be left out.

Senator CHATAWAY:
Queensland

– Do I understand that the omission of these words will not override the general rule that appropriations lapse at the end of the financial year?

Senator Pearce:

– Not in the case of an appropriation from the Loan Fund, I think.

Senator CHATAWAY:

– Any Government might be able to force through Parliament an appropriation, and Parliament would lose all power of check for a long time, in fact until the money was expended. Is the Minister taking out these words just because he thinks that they are surplusage, or is he actuated by any particular reason? What I want to understand is whether by this amendment we shall commit ourselves definitely to an appropriation which might be passed tomorrow without any chance of exercising a check later.

Senator PEARCE:
Western AustraliaMinister of Defence · ALP

– These words, if retained, will not alter the position by one iota. If it is proposed to construct any portion of this railway with money out of the Loan Fund, a Loan Bill will be introduced to appropriate the money, and no further Bill will be brought in.

Senator Chataway:

– None of that money will lapse.

Senator PEARCE:

– It will not lapse until it is expended, but, of course, if it should be found insufficient, it may be necessary to introduce another Bill. The obvious course, however, is to take such precautions as will insure that there shall be a sufficient appropriation under the Loan Bill for the purpose. The annual

Estimates will show the amount of the expenditure, but there will be no further appropriation of loan money.’ As regards the general revenue, any appropriation will lapse at the end of the financial year, and a further appropriation will then have to be made. The omission of these words will not affect either the Loan Fund or the Consolidated Revenue Fund.

Senator MILLEN:
New South Wales

– The Minister of Defence has just used an expression which has created a little doubt in my mind. Of course, I recognise that his remarks had particular reference to any payment of money which may be taken out of the Loan Fund. He said that if any moneys were required from that fund, necessarily a Loan Bill would have to come before the Senate, and to that extent this appropriation, so far as loan moneys are concerned, is really of no avail until a further appeal is made to Parliament. But I understood him to say earlier that Parliament would be appealed to for an appropriation out of the Consolidated Revenue Fund.

Senator Pearce:

– There is no appropriation made in this Bill.

Senator MILLEN:

– I am inclined to think that there is. The Minister, I understand, has stated that whether the money is required out of one fund or the other, a specific Appropriation Bill will be brought before Parliament; in other words, that the Government will not rely on any power given in this clause to draw money from either fund.

Senator Pearce:

– As the Bill was introduced’ in another place, this clause contained an appropriation. That has been taken out, and the provision does not now appropriate any money.

Senator STEWART:
Queensland

– I could not hear very well what was going on. I should like to know whether only one appropriation may be necessary for the building of the railway.

Senator Pearce:

– From the Loan Fund, yes; but not from the Consolidated Revenue Fund. In the latter case a yearly appropriation will be necessary.

Senator Sir JOSIAH SYMON (South Australia) [2.56]. - The first amendment moved by the Minister, I understand, was to omit surplusage, while the present amendment is to take out words which do not affect the power of Parliament at all, that is to make an annual appropriation or to deal with the matter by means of the

Loan Fund, to which expression the phrase”from time to time “ is inapplicable. That: is what I think the effect of the amendment is. The position of the Government, I understand, is that the clause is not intended to be, and is not in effect, an appropriation of moneys for the construction of the railway. There are two methods by which that may be done,. One is by means of a Loan Bill, which, of course, would make an appropriation once and for all specifying the amount to be borrowed for the construction of -the line. The other method is by an annual appropriation of the amount expected to be required for the financial year, and the balance, if any, will lapse at the end of the year, when there will have to be a further appropriation, so that the policy which is given effect to by the clause is that the control of Parliament will remain throughout the wholeperiod of construction.

Senator McGregor:

– Hear, hear !

Amendment agreed to.

Bill reported with amendments.

Standing Orders suspended, and Bill passed through its remaining stages.

page 3748

LIGHTHOUSES BILL

In Committee (Consideration of Houseof Representatives’ message) :

Amendment in clause 1 agreed to.

Clause 3 -

In this Act …. “ Marine Marks “ includes lightships, beacons, and buoys.

House of Representatives’ Amendment. - Omit “ and “ and add after “ buoys “ “ and submarine signal stations.”

Motion (by Senator McGregor) proposed -

That the amendment he agreed to.

Senator GUTHRIE:
South Australia

– Can the Minister give us an idea of what is meant by “ submarine signal stations”? I know what stations for the reception of messages by the Morse code are, but I do not know what is here meant.

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– Submarine signals are a class of signals that have come into use lately. One form of submarine signal is by meansof bells, which are set going in hazy or other bad weather, and which, through anapparatus connected with the hull of a vessel, indicate where they are. A vessel consequently knows her whereabouts by the ringing of a bell.

Motion agreed to.

Amendment in clause 5 agreed to.

House of Representatives’ Amendment. - After clause 7, insert the following new clauses : - “ 711. When any lighthouse has been acquired or erected by the Commonwealth, it shall as soon as practicable be connected by telegraph or telephone with a convenient telegraph or telephone office, and the expense incurred shall be charged to the Department administering this Act.”

Motion (by Senator McGregor) proposed -

That the amendment be agreed to.

Senator GUTHRIE:
South Australia

– Will the Minister explain whether it is not” possible to connect a lighthouse in some other way than by a telephone or telegraph? In my own State there are several lighthouses which it is not possible to connect in that way.

Senator Rae:

– Wireless will be useful in such cases.

Senator GUTHRIE:

– We have no promise that wireless communication will be established in these instances. There are lighthouses at such places as the Althorps and the Neptunes, which are most important stations, because all ships coming to Australia make one or other of them. I recommend to the Minister to insert the word “cable” in addition to “telephone and telegraph.”

Senator McGregor:

– “ Telegraph “ includes “cable.”.

Senator GUTHRIE:

– I doubt whether it does.

Motion agreed to.

House of Representatives’ Amendment. - After clause 8 insert the following new clauses “8b. An action or other proceeding shall not be maintainable against the Commonwealth, or the Minister, or any officer of the Commonwealth by reason of any act, default, error, or omission, whether negligent or otherwise in relation to any lighthouse or marine mark.”

Motion (by Senator McGregor) proposed

That the amendment be agreed to.

Senator Sir JOSIAH SYMON (South Australia) [3.8]. - New clause 8b seems to me to go far beyond what is necessary or desirable. It is, of course, usual to protect public Officers as well as magistrates from ordinary actions. But this clause as it stands would go the length of protecting an officer who might be guilty of gross negligence, leading to manslaughter, or, at all -events, loss of life. If a lighthouse-keeper were guilty of gross negligence which brought about disaster, he could not,under this clause, be prosecuted for manslaughter. I think the provision ought to be restricted to protecting officers against civil actions. For this purpose, the clause might be made toread, “ An action or other civil proceeding.” The insertion of the word “ civil “ would leave the criminal liability of the officer who, by reason of gross negligence was guilty of manslaughter, untouched.

Senator Guthrie:

– Would the honorable senator restrict the amount of the liability ?

Senator Sir JOSIAH SYMON:

– I think not.

Senator Guthrie:

– That was done in the Navigation Bill, where a pilot was made liable up to . £100.

Senator Sir JOSIAH SYMON:

– I have no objection to that.

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

.- The whole object of the amendment is to protect the Commonwealth against civil proceedings for the consequences of negligence of Commonwealth officers. If, however, an officer were guilty of gross negligence which caused loss of life, the Commonwealth itself would deal with him. If Senator Symon thinks that there is a shadow of doubt I have no objection to accepting the amendment which he has suggested to insert the word “civil”; but at the same time I do not think the amendment necessary.

Senator Sir JOSIAH SYMON (South Australia) [3.11]. - I am glad that the Minister has accepted my suggestion. I think that the clause as it stands would protect an officer from all proceedings. The principal point that I had in view has been met by the Minister’s acquiescence, and I now move-

That the following words be added, “ but that after the word ‘ other,’ in new clause 8b, line1, the word ‘civil’” be inserted.

Senator ALBERT GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913

-Colonel Sir ALBERT GOULD (New South Wales) [3.13].- The clause, even as proposed to be amended, would protect a Commonwealth officer, who had been criminally negligent, from anycivil proceedings, although it might be that through his criminal negligence great loss of life and of property had occurred. While it may be perfectly right that the Commonwealth should be freed from any liability, still it must be evident that it would be unjust that a man through whose criminal neglect loss of property and life occurred should be exempt from any punishment unless he could be dealt with criminally. A man guilty of negligence should be made to accept the responsibility of his conduct.

Senator Guthrie:

– A man getting £50 a year?

Senator Lt Colonel Sir ALBERT GOULD:

– Yes, if he was criminally negligent. Under certain circumstances a man may be careless, but not criminally negligent, and his carelessness may bring about loss of life. I do not think that this Parliament should protect a man who has been guilty of serious malfeasance of that character. The question may be asked : What is the good of having a civil remedy against an officer who is in receipt of, perhaps, only ^50 a year? But another officer who is guilty of criminal negligence as the result of which life is sacrificed, may have accumulated property. Ought he to be protected ?

Senator Guthrie:

– What property can a lighthouse-keeper acquire ?

Senator Lt Colonel Sir ALBERT GOULD:

– That is scarcely the point. It is coming it too strong to suggest that because a man is poor he should be exempted from the liability which would attach to him if he were rich. The amendment, I admit, will make a great improvement in the clause, but I desire to improve it still further. I submit that this Bill ought not tb shield an individual who is guilty of negligence which leads to loss of life and property. Senator Guthrie has suggested that in such circumstances an officer should be civilly liable to the extent of .£100.

Senator Guthrie:

– No. I said that most unjustly that penalty has been made to attach to pilots.

Senator Lt Colonel Sir ALBERT GOULD:

– I protest against any provision which will relieve an officer of the Commonwealth, who is guilty of negligence, from any civil proceeding. If he is guilty of culpable negligence, why should he be protected ?

Senator St Ledger:

– The Government have power to dismiss him.

Senator Lt Colonel Sir ALBERT GOULD:

Senator Symon has raised a doubt as to that. It would be better to have the matter made perfectly clear. Unless the Minister is prepared to go further in tha direction which I suggest, I shall deem it my duty to propose another amendment.

Senator GUTHRIE:
South Australia

– I trust that the Government will not agree to the amendment. The Commonwealth has thousands of public servants in its employ, every one of whom is vested with responsibility. They make blunders day by day, but, except in one case, no attempt has been made to make them pecuniarily responsible for their mistakes. But in the case of pilots that course has been followed most unjustly. They have been made responsible for negligence to the extent of £100. The same thing is attempted here. There are many lights around our coast which are absolutely undermanned. There may be only two men charged with the duty of looking after a lighthouse, so that if one of them becomes ill, the responsibility of supervising the light rests wholly with the other. Yet it is proposed to make such a man civilly responsible if he should happen to go to sleep. ; .[

Senator McGregor:

– No.

Senator Sir Josiah Symon:

– This clause will absolutely exempt him from civil proceedings.

Senator GUTHRIE:

Senator Gould wishes to saddle him with responsibility, and I am endeavouring to show the unreasonableness of his view.

Amendment agreed to.

Senator Sir JOSIAH SYMON (South Australia) [3.22]. - I would suggest to Senator Gould that the criticism in which he has indulged strikes at the clause in its entirety. The authority whom he ought to seek to make liable - the juristic person, as the phrase is - is the Commonwealth itself. But as Senator Guthrie has very properly pointed out, the tendency of all modern legislation is to exempt an officer in the position of a pilot, for example, from unrestricted liability for any accident arising from an ordinary act of negligence. Senator Gould’s contention is that such a liability ought to attach to him, so that a person who has lost valuable property may obtain some redress. But we cannot predict that lighthouse-keepers will be in a position to pay heavy damages. It is quite just that the Commonwealth should be liable to make good any damage which may result from an act of one of its servants. That is a well -understood principle in law. Short of criminality the master is liable for the ordinary negligence of his servant. But it is useless to endeavour to retain a civil remedy directly or indirectly against a lighthouse-keeper because it would be worthless.

Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [3.25].- I recognise the ordinary rule of law that a principal is liable for the misfeasance of his servant. That is exactly the position which the Commonwealth occupies towards a lighthouse- keeper, and, according to common law, it is liable for any negligence on his part. At the same time I recognise that in a great Commonwealth like this, with the multiplicity of matters which have to be controlled, it is not in the interests of the public that the Government should be held responsible for all injuries which may result from the negligence of their officers. Otherwise interminable litigation would arise. All that we have a right to expect is that the Commonwealth will do whatever it can to protect life and property. But while we have to adopt that attitude, we must remember that according to common law the servant is just as liable as is his principal. Yet here, it is proposed, to relieve him of that liability. I ask honorable senators whether that is a proper thing to do? If I com>mit a wrongful act I have to submit to the consequences, and I fail to see why a Government employe should occupy a different position. I know that if a Commonwealth officer were guilty of culpable negligence the Government could dismiss him. But I hold that that is not sufficient. As the Bill left this Chamber it did not contain a provision of this kind. It made the Government responsible for any action which might arise as the result of negligence on the part of its servants. But the other Chamber has seen fit to insert this amendment. I do not wish to obstruct the progress of business, but I do desire that honorable senators shall be afforded an opportunity of registering their opinions upon this question. I therefore move - flint the following words be added, “and that new clause 8b be amended by leaving out the words ‘ whether negligent or otherwise.’ “

If my proposal be carried, the Commonwealth, the Minister, and the officer will be protected from any liability in respect of injuries occasioned by any act, default, error, or omission on the part of any officer. But where negligence is proved the officer will be liable.

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– I hope the honorable senator will not press his amendment, because if he suc ceeded in eliminating these words he would not- effect his purpose and would only raise a doubt. The Commonwealth is providing marine marks in the shape of lighthouses, beacons, buoys, and so on, for the benefit of the mercantile interests of the whole world, and is not making any profit out of the business.

Senator Fraser:

– Yes it is. There will be dues and the benefits derived from the extension of trade.

Senator McGREGOR:

– That may be so, but there will probably be vessels benefited by the maintenance of Commonwealth lighthouses that will not land any cargo in Australia at all.

Senator Guthrie:

– South Australia made a profit of ^35,000 a year from her lighthouses.

Senator McGREGOR:

– It is not the intention that the Commonwealth shall make a profit from the provision made for the protection of the mercantile marine, though it will, for many reasons, be necessary to levy certain dues. If the Commonwealth is not in this matter in the position of a common carrier or an ordinary employer, why should it be made liable? I remind honorable senators that under the Acts of all the States, with the exception of Western Australia, the State Governments were not made liable for damage arising from any inefficient management of their lighthouses. Under the Act of Western Australia, the State was liable, but no case was ever brought against the State under that Act, though one claim under the Act was settled out of Court. We are in this matter adopting the methods and policy which were followed in five of the States of the Commonwealth from their inception. So far as Senator Guthrie’s objection is concerned, the clause, as amended by Senator Symon’s amendment, will relieve the officer of liability for any civil action for damages. I understand that Senators Symon and Gould desire that no individual should be exempt from- prosecution for culpable negligence. Senator Symon’s amendment was proposed more for the protection of the officers than anything else. I do not think that the Government would be justified in accepting any amendment such as that suggested by Senator Gould, which would extend the liability of the Commonwealth in this, connexion.

Senator Lt Colonel Sir Albert Gould:

– Perhaps the honorable senator will address himself to the liability of an individual guilty of negligence.

Senator McGREGOR:

– Seeing that civil liability is specially mentioned in the clause, and criminal liability is not referred to, I hold, and I think Senator Symon will agree with me, that any officer guilty of culpable negligence would still, under this Bill, be liable to a criminal prosecution.

Senator Sir JOSIAH SYMON (South Australia) [3.35]- - I think that the VicePresident of the Executive Council has properly stated the position with regard to Senator Gould’s amendment. I doubt very much whether the amendment would effect the honorable senator’s purpose. There could scarcely be default under the clause without negligence, and with all deference to Senator Gould, I think that the effect of his amendment would be to raise doubt and confusion. If we leave in the words “ whether negligent or otherwise,” we shall make it clear that it is the intention to debar civil proceedings for damages against a lighthouse- keeper, whilst, if those words are omitted, it may become a subject of debate in Court as to whether any act or default involved negligence, and might make the result very doubtful. I am inclined to think, however, that it would be well to strike out the words “the Commonwealth or the Minister.” I do not see how there could be any liability upon the Minister because of negligence in connexion with any marine mark. But I think that) if possible, the liability of the Commonwealth should be retained. If Senator Gould had moved to strike out the words “ the Commonwealth or the Minister,” I should probably have supported him., always subject to the consideration that whether the exemption of the Commonwealth, or the Minister is provided for in the clause or not, it is very doubtful whether the Commonwealth will be liable to actions of this kind. I think that Senator Gould would do well not to press his. amendment.

Senator FRASER:
Victoria

.- -If I had my way, I should throw responsibility for his act upon any officer who by gross negligence causes the destruction of a ship, and the loss of human lives. The officer should, in such a. case, be responsible.

Senator Sir Josiah Symon:

– So he would be. He would be liable to be criminally punished if he were guilty of gross and’ criminal negligence resulting in the loss of life and property. If by negligence he omitted to have his light shining, and a ship were ‘destroyed and lives lost as the result, he would be liable to prosecution.. The clause debars only civil prosecutions. It does not apply to criminal prosecutions at all.

Senator FRASER:

– Then I give way to the opinion of the honorable senator.

Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [3.41].- Senator Symon has said that if I propose the omission of the words, “ the Commonwealth or the Minister,” he will be disposed to vote for such an amendment. I am not prepared to go so far as to say that the Commonwealth or the Minister should bemade liable in all cases. The Commonwealth might be mulcted in damages because of the negligence of one of its officers, who, as Senator Symon pointed out, might neglect to light his lamps. This only brings me back to my original proposition. Why should an officer who neglects to light his lamp, and thereby causes a wreck to take place and a great loss of life and property, be protected by this Parliament from the consequences of his neglect. He should be made to realize that under such circumstances Parliament would not protect him, but that he would, have to put up with the consequences.

Senator Fraser:

– I think that is right.

Senator Guthrie:

– Why not apply thesame principle to all public servants, and, for instance, make the Crown Solicitor liable if he gives bad advice?

Senator Lt Colonel Sir ALBERT GOULD:

.- If the Crown Solicitor occasionally makes a mistake, it is probably due to the fact that a case has not beenproperly put before him. I submitted my amendment in order to get an expression of opinion from the Committee, and with a view, possibly, to submitting another amendment later. I think it would probably be better to leave out the words “or any officer of the Commonwealth.” The clause would then read -

An action or other civil proceedings shall not be maintainable against the Commonwealth or the Minister by reason of any act, default, error or omission.

That would leave it perfectly open to any person to take proceedings against any individual guilty of culpable negligence, and would tend to make the officers of the Department much more careful than they mightotherwise be. It may be said that it is sufficient that an officer guilty of negligence is liable to a criminal prosecution ; but my reply to that is that he may be guilty of” a certain amount of negligence resulting inserious loss of life and property, but which might not be of such a character as would render him liable to be punished criminally. Why should a man guilty of negligence, though it may not be of criminal negligence, be entitled to the protection of an Act of Parliament? If he undertakes certain duties, he should be responsible for any act of misfeasance or malfeasance which he may commit, irrespective of whether he is rich or poor. I ask the leave of the Committee to withdraw my amendment, with the object of moving that the words “ or any officer of the Commonwealth ‘ ‘ be left out. It will then make a clear cut issue on which the Committee can give a decision.

Amendment, by leave, withdrawn.

Amendment (by Senator Lt. -Colonel Sir Albert Gould) proposed -

That the following words be added, “ and that new clause 8b be amended by leaving out the words ‘ or any officer of the Commonwealth.’ “

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– I think that Senator Gould is exhibiting an unnecessary amount of vindictiveness against the poor, unfortunate officer.

Senator ALBERT GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913

-Colonel Sir Albert Gould. - I object to being charged with showing vindictiveness against a man.

Senator McGREGOR:

– Although I make that remark, I do not believe that that is really the honorable senator’s intention. But that is how it would appear to any one. By an amendment which has been made, an officer is not exempt . from a criminal prosecution, or from the liability to be suspended or dismissed, or otherwise dealt with by the Commonwealth. If we impose so much responsibility upon the officers, instead of being able to do their duty efficiently, they will live in such a state of terror and confusion that they will not know what they are doing. Take the case of a lighthouse-keeperwho has a family, and has saved up a few hundred pounds. The loss of that money would mean a great deal to the family. The honorable senator should think of the position of the wife and family when the husband would be in gaol, because of his criminal neglect. He is only thinking of the shipowners.

Senator ALBERT GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913

-Colonel Sir Albert Gould. - I am thinking of human lives.

Senator McGREGOR:

– I know all about that. As regards the value of property, every shipping company can insure against a casualty of this description, and so protect itself. But there is no way of escape for a poor unfortunate officer who may find himself in a difficult position. On many occasions, to my knowledge, men have been placed in critical positions. There was no criminal negligence, although it might have been ultimately proved that there was. The circumstantial evidence may have been against the officers concerned, but I have known their consciences to be quite clear of any feeling that theywere guilty of negligence. Under the clause, certain penalties may be inflicted upon a negligent officer, and I think that Senator Gould might think of the position of the wife and the family of the officer, and not insist upon making him liable civilly as well as criminally.

Senator Sir JOSIAH SYMON (South Australia) [3.50].- I am afraid that I cannot support the amendment of Senator Gould, who says that it will afford a clear cut issue. It will do so by cutting the very heart out of the clause. The real effect of the clause is to exempt these men, but if the amendment is made, it will destroy the clause altogether. In my opinion, it is a beneficial and usual provision in such cases. To preserve the liability for damages would be absolutely futile. It would be a mere drop in the bucket. The sort of damage which would result through a lighthouse-keeper omitting to keep his lights brightly burning would be the loss of a ship, the cargo, and probably some lives. How could we look to any lighthouse-keeper to compensate for the loss of a large modern ship, and the cargo ? It is obvious that my honorable friend is straining at a gnat, and swallowing a camel.

Senator Mcgregor:

– The lighthousekeeper could not pay sixpence in a thousand pounds.

Senator Sir JOSIAH SYMON:

– It is not necessary. By keeping a double liability, it will add an additional terror to the carrying out of a man’s serious duty. I think that we ought to avoid that. There is a good deal of force in what Senator McGregor has said, and it was not all sentiment. A man might say, “ I am quite ready to face punishment if I am guilty of negligence, which results in the loss of life. But I do not thinkthat there ought to be superadded the taking away of my livelihood”, or the taking away of anything which I have put aside.’’’ It has to be remembered that there is no difference between the kind of negligence which renders a man liable to punishment, and that which renders him liable to an action, lt is the same kind of negligence, but the remedy is different. If we are going to have the clause at all, the only object of it is to free from liability the men who are placed in this position of responsibility. The liability to punishment is retained, but they are free from responsibility for damages. The latter responsibility, I think, ought to rest, if it rests anywhere, on the Commonwealth, but .1 do not intend to move any amendment in that direction.

Senator GUTHRIE:
South Australia

– - I was very pleased to hear the argument which was put forward by Senator Symon, and I only wish that when we were dealing with the position of pilots under the Navigation Bill, he had used the same arguments. The Government have laid down one principle for pilots and another principle for lighthouse-keepers, although they are all servants of the Commonwealth. There ought to be uniformity in this matter. I hope that when an opportunity arises, the Government will free the pilots as well as the lighthouse-keepers from liability to civil action, because the two cases are exactly on a par.

Senator Lt Colonel Sir Albert Gould:

– I think the pilot’s liability is a penalty.

Senator GUTHRIE:

– No. he is simply liable up to £100. We put no such responsibility on the Crown Solicitor, who may mislead the Commonwealth at any time. There is no liability attaching to a member of Parliament if he makes a mistake, negligently or otherwise. Why should this responsibility be applied only to lighthouse-keepers? It is absolutely unjust to saddle them with more responsibility than any other public servant has. to submit to. I hope that the amendment will be rejected, and that when an opportunity arises, other public servants will be treated in exactly the same way as light-, house- keepers.

Senator Fraser:

– A lighthouse- keeper is a very different official from an ordinary public servant.

Senator GUTHRIE:

– If there is any difference at all, it is considerably for the worse. I know some lighthouse-keepers who are placed on an island right away from human habitations, and kept there for twelve months without seeing a single individual ; and when one of them gets ill, the work is thrown upon the other, who for twenty f our hours has to attend to the lights. It is very difficult for that officer to prove that he was not negligent at such a time, and that it was the officer who put two men in the lighthouse who was really responsible.

Senator Blakey:

– -Is there not some daylight on the lighthouse?

Senator GUTHRIE:

– Yes ; but during the day the lighthouse-keeper who is well has to look to the machinery and clean the lights, so that he is virtually on duty ‘for twenty-four hours. Some lighthousekeepers have no communication with the mainland. No ships pass, and therefore they are not able to signal them.

Senator McGregor:

– We are going to connect them by telephone or telegraph.

Senator GUTHRIE:

– The men are left there sometimes for a week. We have had lighthouses reported to be without lights, and when an explanation was called for it was shown that the lighthouses were undermanned, and that the State was making a profit out of the undermanning. I hope that that sort of thing will not occur under the Commonwealth.

Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [3.57].- I certainly object to some of the remarks made by Senator McGregor with regard to my object in moving this amendment. 1 have a keen sympathy with the relatives of those whose lives may be lost through the negligence of a lighthouse-keeper. The honorable senator has attempted to draw a picture of the wife and family of a lighthousekeeper being left with nothing for their support because his savings may be taken away from him to pay damages. Carried to its logical conclusion, the argument means that we are to pity a man who commits a burglary, because he is sent to gaol. I have no sympathy with that, sort of spurious sentiment. Senator Guthrie objects to any officer of the Commonwealth being rendered liable to civil proceedings.

Senator Guthrie:

– Unless all are rendered liable.

Senator Lt Colonel Sir ALBERT GOULD:

– Has it come to this, that because a man is working in the Public Service, therefore Parliament is to protect him against acts of negligence? That is altogether repugnant to every idea of fairness and justice. Each man should take full responsibility for his own actions.

Senator Guthrie:

– You are responsible for the actions of your coachman.

Senator Lt Colonel Sir ALBERT GOULD:

-I know that; and he is also responsible for his actions.

Senator Guthrie:

– Not civilly.

Senator Lt Colonel Sir ALBERT GOULD:

– Yes, civilly too. If anybody thinks that he can get more out of my coachman, because of his negligence, than he could get out of me, he is entitled to try. The honorable senator has also fallen into another mistake. He says that if the Crown Solicitor gives bad advice, he is in no way responsible; whereas every solicitor is responsible for the. advice he gives, and may be made to pay if it is shown that he has been negligent and ignorant.

Senator Guthrie:

– He must be ignorant if he gives wrong advice.

Senator Lt Colonel Sir ALBERT GOULD:

– Not necessarily. In the legal, as in the medical, profession it is a question of opinion in many matters. 1 do not think that Senator McGregor has replied satisfactorily to the objection I raised to freeing lighthouse-keepers from all responsibility, except, of course, criminal responsibility.

Senator McGregor:

– That is enough, surely.

Senator Lt Colonel Sir ALBERT GOULD:

– I know that it is a serious thing for a man to be liable to a criminal prosecution. If an officer is negligent, the honorable senator will take away his means of livelihood by dismissal, but will not allow him, if he is in a position to do so, to compensate a person who suffers from his negligence. It is only a matter of degree as to whether my amendment is not the preferable way of dealing with a case of this kind.

Amendment negatived.

Motion, as amended, agreed to.

Clause 9 (Light dues to be paid).

House of Representatives’ Amendment -

Omit the clause and insert the following new clause : - “9. - (1.) Light dues, in accordance with the prescribed rates or scales, shall be levied and shall be payable with respect to the voyages made by ships or vessels or by way of periodical payment as the regulations prescribe. “ (2.) The regulationsmay prescribe the rates or scales of light dues to be payable by ships or vessels and all matters necessary or convenient to be prescribed to carry this section into effect. “ (3 ) When rates or scales of light dues have been prescribed under this Act, light dues prescribed by or under any State Act shall cease to have any effect ; “ Provided that nothing in this sub-section shall releaseany ship or vessel orany person from any liability in respect of any light dues prescribed by or under any State Act which be came due before the rates or scales of light dues under this Act came into force.”

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– I move -

That the amendment be agreed to, but that after the words “ State Act,” in sub-clause 3, the words “ (other than dues solely in respect to lights maintained by the State)” be inserted.

The intention of this amendment is to exempt dues collected under State Acts.

Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [4.3]. - I understand that the Government does not intend to interfere with harbor lights?

Senator McGregor:

– That is so.

Senator GUTHRIE:
South Australia

– I understand that they intend to take over only certain lights. There are other lights which it is not intended to touch. Therefore, both State dues and Commonwealth dues will have to be paid by ships. There are some lights which are practically sea lights, and for which the States will have the right to collect dues.

Senator McGREGOR:
Vice President of the Executive Council · South Australia · ALP

– - The amendment is quite clear.It applies only to lights solely maintained by States.

Senator Guthrie:

– Not harbor lights?

Senator McGREGOR:

– It is the intention of the Commonwealth Government to take over all lights other than harbor lights. I believe that Senator Guthrie has seen a list, which does not include all the sea lights. But it is not to be assumed that the Government does not intend to take over all those lights as quickly as possible. If, however, there should be a light other than a harbor light which was maintained by a State, it would not be right for the Commonwealth to take dues with respect to it. Consequently this amendment is necessary.

Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [4.6].- Do I understand that there are certain lights which will remain under the control of the States ?

Senator McGregor:

– So Senator Guthrie says, but I do not know that that is so.

Senator Lt Colonel Sir ALBERT GOULD:

– Are we to have dues paid in respect of each particular lighthouse, or only with respect to lighthouses generally? If the Commonwealth is to charge dues against ships travelling around our coasts, and is also to allow the State to charge dues with respect to other lights, we shall be double-banking the charges against the shipping people. I understood that all lights on the sea coast were to be under the control of the Commonwealth.

Motion agreed to.

Amendments of clauses 15 and 16 agreed to.

Reported that the Committee had agreed to the amendments of the House of Representatives, with the exception of proposed new clauses 8b and 9, to which it had agreed, with amendments ; report adopted.

page 3756

SEAMEN’S COMPENSATION BILL

Second Reading

Senator McGREGOR:
the Executive Council · South AustraliaVicepresident of · ALP

– It may be remembered by honorable senators that a considerable time ago a Seamen’s Compensation Act was passed by the Commonwealth Parliament. 1 am sure that every member of this Parliament was gratified that something was being done for a very deserving section of the community, namely, the seafaring folk. Later,however’, an action was brought under the Act in connexion with the steamship Kilibia, when it was found that the Commonwealth Parliament had not all the power that we imagined we possessed. The High Court decided that section 4 of the Act was ultra vires, and unconstitutional. Consequently, it could have no effect. Worse than that, the High Court decided that the section in question was not severable, and that the whole Act was ultra vires. It may be asked why we are re-introducing this Seamen’s Compensation Bill, that is to say, why we do not propose to amend the old Act. But it will be seen that, in consequence of a certain section of that Act being ultra vires and not being severable, if we simply patched up the old Act we might have the High Court declaring again that what we did was ultra vires. It has therefore been determined by the Government, under the advice of their law officers, to make sure of our position. We have introduced a new Seamen’s Compensation Bill to meet, the situation. After it is passed, it will be a new Act entirely. It is, however, an exact copy of the old Act, with the exception of section 4, which has been entirely redrafted, and section 18, which specifically repeals the old Act. Clause 4 differs materially from section 4 of the old Act. The redrafting has been undertaken with a view to meet the objections raised by the High Court, and to bring the measure within our constitutional powers. As the whole of the remainder of the clauses were fully debated when the original Bill was before the Senate, I do not think that there is any necessity to go into then again. When we get into Committee, however, I shall have a couple of amendments of a formal character to move. The first provides that where a seaman is eligible for compensation in two countries, he may only claim in one of them. That point was not absolutely clear under the old Act. If a seaman claims compensation in Australia, he cannot go to England, or to any other country, and claim, again. The second amendment requires a seaman receiving compensation in the Commonwealth to sign a declaration to the effect that he will not apply for compensation in any other country.

Senator Rae:

– Why should that be? If we pay compensation that is due, what have we to do with what a seaman does elsewhere ?

Senator McGREGOR:

– I do not think that Senator Rae fully seizes the position. It is not the Commonwealth that pays the compensation, but the ship-owner or shipping company. It would be unfair to our own, and to other ship-owners, to enact a law under which a seaman or officer would be enabled to claim compensation in Australia, and also in another country. I am sure that Senator Rae has no desire to make blackmailers of seamen, or officers, or of anybody else, and that he will have no hesitation in agreeing to the .amendment I have indicated. At this stage of the session, honorable senators do not expect me to make a long speech; and, therefore, I shall content myself with moving - 0

That this Bill be now read a second time.

Senator MILLEN:
New South Wales

– I regret very much the circumstances which have rendered necessary the presentation of this Bill. Honorable senators will recollect that I had the honour of introducing, and, with their assistance, of passing through this Chamber, a measure which was subsequently declared by the High Court to be defective.

Senator de Largie:

– We never could understand why the Government of which the honorable senator was a member did that.

Senator MILLEN:

– I can assure Senator de Largie that what was done then, was done in the best possible faith, and in the belief that we were entitled to proceed with that measure under the very large powers which are conferred upon us by the trade and commerce section of our Constitution. That Bill was not brought forward hastily. Time and again 1 referred it to the Crown Law officers; and, ultimately, upon their advice, it was decided that we ‘possessed the requisite power. That mistake has brought about a position which everybody regrets. In introducing that Bill, the desire was to confer the benefits which it offered upon as large a section of the seafaring community as possible. There is only one matter connected with the measure which is now under consideration to which I desire to direct attention. I refer to a judgment which was recently given by Mr. Justice Scholes in New South Wales. He drew attention to a difficulty which presented itself to him in a case which was brought, under State law, before the Court over which he presided. Although he was dealing with State law, it seems to me that the same difficulty is present in this Bill.

Senator Guthrie:

– This is absolutely a State measure.

Senator MILLEN:

– If the honorable senator can show me how the Commonwealth Parliament can pass a State law-

Senator Guthrie:

– It will apply to the territorial waters of the States.

Senator MILLEN:

– Whatever law we may pass must be a Federal . law. But, whether this Bill will go as far as the honorable senator suggests that it ought to go, is another matter. To revert to the question which I was previously discussing, I wish to say that Mr. Justice Scholes experienced great difficulty in determining the case which was brought before him - a case in which a workman had left dependants who were both wholly and partially dependent upon him,. If the VicePresident of the Executive Council will look at the first schedule’ to this Bill, he will find that provision is there made for the payment of compensation to the dependants of a seaman who were wholly dependent upon his earnings. Further on, provision is made for the payment of compensation to those who are partially dependent upon his earnings. Now Mr. Justice Scholes had to deal with a case in which a workman had left dependants who were both wholly and partially dependent upon him. In such circumstances, was the Judge to ignore those who were partially dependent upon the workman, or was he to allocate the compensation between the two sets of dependants? Was he to assess the compensation upon the scale which was set out for those who were wholly dependent upon the workman, or was he to assess it upon the scale set out for those who were only partially dependent upon him? These points presented themselves very clearly to the Judge, and they appear to me to be equally present in this Bill. The same terms are employed in it as are employed in the State Act, and the same provision is made as between those who are wholly dependent upon a seaman whose death is caused by accident, and those who are partially dependent upon him. I note, too, that in this Bill, there is the same absence of direction as to how the Judge shall proceed in a case in which a seaman leaves dependants who are both wholly and partially dependent upon him. I would suggest, therefore, that the Government should carry this Bill to the point at which it will be possible to recommit it to-morrow, and that, in the meantime, they should look up the judgment of Mr. Justice Scholes, with a view to seeing if it is not possible to devise some means of meeting the difficulty to which I have referred-

Senator Rae:

– Does not the Bill provide for such cases?

Senator MILLEN:

– Personally, I am of opinion that when a case under this Bill comes before the Court, the Judge will be met with exactly the same difficulty as that which confronted Mr. Justice Scholes when dealing with the State law. The measure is plain enough, so far as it enables the Judge to deal with the case of a seaman who leaves dependants who are either wholly or partially dependent upon him. But what about the case of a seaman who leaves both classes of dependants?

Senator McGregor:

– That is dealt with in schedule 1. It makes provision for both wholly and partial dependants, and leaves it to the Judge to allot the compensation.

Senator MILLEN:

– Does it do that? I am sure that the Vice-President of the Executive Council will admit that I am not speaking as an opponent of the. Bill. Seeing that we have made one false start, I am very anxious to insure that every reasonable precaution shall be taken to prevent a repetition of what has recently occurred.

Senator Rae:

– How did Mr. Justice Scholes finally deal with the case to which the honorable senator has alluded?

Senator MILLEN:

– My recollection is too vague to enable me to say. It was not his decision which arrested my attention,, but the clearness with which he pointed out the difficulty which I have emphasized. I would suggest that the Bill be advanced to the report stage, and that, in the meantime, the Vice-President of the Executive Council should invite his officers to refer to the judgment in question for the purpose of ascertaining whether the statement of Mr. Justice Scholes does not warrant some amendment of the measure. If so, the Bill can be recommitted with that object in view. I am sure there is not an honorable senator who will not afford the Government every facility to make the Bill as perfect as possible.

Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [4.25].- Whilst the Leader of the Opposition was addressing himself to this question, I took the opportunity of looking through the Bill, and I find that provision is made in the schedule for cases in which seamen leave dependants, who are wholly, or partially, dependent upon them. But the,mere fact of a seaman leaving behind him persons, some of whom were partially, whilst others were wholly, dependent upon him, would not interfere with the construction that would be placed upon the first part of the first schedule, which leaves it to the Court to determine the amount payable as being equal either to three years’ salary, or ,£200. Paragraph 8 of the schedule reads -

Any question as to who is a dependant shall, iti default of agreement, be settled bv arbitration under this Act, or by a County Court, and the amount payable lo each dependant shall be settled bv arbitration under this Act or by a County Court.

Then paragraph 9 says -

Where there are both total and partial dependants, nothing in this schedule shall be construed as preventing the compensation being allotted p :i r t 1 v to the total and partly to the partial dependants.

It appears, therefore, that the schedule makes provision by which the difficulty which has been pointed out may be overcome. At the same time I realize that the Vice-President of the Executive Council would be acting wisely if he accepted the suggestion of Senator Millen, and directed his officers to look up the judgment given by Mr. Justice Scholes. If that be done, it may be found that there are differences between the State law and this Bill which account for the difficulty which presented itself to that Judge. It is well that we should take special care to avoid any trouble in the future. I take it that no honorable senator will object to perfecting the Bill as much as possible during its passage through Committee.

Senator RAE:
New South Wales

– If there be any doubt whatever as to the meaning of the Bill, I hope that we shall make it perfectly clear before it leaves this Chamber. But I wish to place on record my opinion that the expense involved in the administration of an Act of this character, and in settling any legal doubts which may arise, is due largely to the wrong basis upon which it has been framed. Instead of the compensation payable being regulated by the number of dependants whom a seaman leaves behind, the Bill should rest upon the assumption that a human life, no matter from what cause it may be lost, is worth so much.

Senator McGregor:

– That is what it really does.

Senator RAE:

– The Bill, instead of saying that the compensation payable shall be divisible among certain persons, and that, in the event of a seaman being a bachelor, only sufficient shall be forthcoming to cover his funeral expenses, ought to provide that the amount recoverable shall be the same in all cases. We all recognise that a life lost is a life lost to the State, and if the deceased leaves no dependants, the amount of compensation which would be payable under other circumstances should be paid to the Crown.

Senator Millen:

– In most cases, the difficulty is not that there are no claimants. It is in determining the proportion of the compensation which each shall receive.

Senator RAE:

– That may be so. I think that the Bill is based upon absolutely wrong premises, because it lends colour to the idea that a human life is of no value unless somebody be dependent upon it. I say that there is a potential value attached to any life, and if ship-owners were liable to pay the same amount of compensation in any circumstances, where the deceased left no dependants, the money could go to the State.

Senator GUTHRIE:
South Australia

– I am very pleased that the Government have seen fit, even at this late stage of the session, to introduce this Bill. Every member of the Senate will agree as to the absolute necessity of some substitute for the Act we passed in 1909. I am afraid, however, that the limits of this Bill are far too narrow.

Senator Millen:

– The fault of the Bill of 1909 was that it was too wide.

Senator GUTHRIE:

– That is so. The powers proposed under this Bill have been narrowed down below the limits adopted in the Navigation Bill, and, if this Bill correctly defines the extent to which we can go in the matter of seamen’s compensation, the same objections will apply to our Navigation Act as applied to the Seamen’s Compensation Act we passed in 1909. Under clause 4 of this Bill it is provided that -

Subject to sub-section 2 of this section, this Act shall apply to the employment of seamen on any of the following ships : -

ships in the service of the Commonwealth, other than the naval or military service ;

I take it that the Bill will apply to ships in the service of the Commonwealth, no matter where they are.

Senator McGregor:

– That is so.

Senator GUTHRIE:

– The clause continues -

  1. ships trading with Australia, or engaging in any occupation in Australian waters, and being in the territorial waters of any Territory which is part of the Commonwealth. 1 take in this connexion the case which 1 have in my mind more than any other, and that is the loss of the Yongala. Let me inform honorable senators that had that vessel not been registered in Australia the relatives of the seamen employed on that vessel who were lost would have been entitled to compensation under the Imperial Act. But they would not be entitled to compensation under this Bill. We have no proof, but we are led to believe that that vessel was lost at more than 3 miles from the coast, and so the loss did not take place within our territorial waters. I was informed by the best authority in England that the relatives of the men lost on the Waratah could claim, had claimed, and were paid compensation under the Imperial Act.I think it has been laid clown by the High Court in the case of Kingston v. Gadd, which is the leading case defining our powers in this respect, that we can enforce the laws of the Commonwealth from port to port in Australia, no matter whether a ship goes beyond the 3-mile limit from the coast or not. I say, therefore, that this Bill does not go far enough, and it should have followed in this matter the decision in the case referred to. A ship leaving Eremantle, bound for Adelaide, must go outside the 3-mile limit, and if she is lost crossing the Australian Bight this Bill will be absolutely worthless as a means of securing compensation to the relatives of seamen on board. I do not think that that can be desired. The decision of the High Court is broad enough to justify a far wider interpretation of the law than is covered by this Bill.
Senator Millen:

– Does not the Imperial Act come into force to supplement this Bill?

Senator GUTHRIE:

– No, the Imperial Act absolutely excludes the Dominions and the Commonwealth. It leaves us to legislate for ourselves, and we are not doing all that we might do in this Bill.

Senator Millen:

– Surely we are with regard to Australian vessels wherever they trade? Of course, I do not mean to refer to local boats trading within the waters of one State.

Senator GUTHRIE:

– No, I do not think that we are. The Imperial Act does not apply to vessels registered in Australia.

Senator Millen:

– But this Bill does.

Senator GUTHRIE:

– The Imperial Act did not apply to the Yongala.

Senator Millen:

– What about paragraph cor clause 4?

Senator GUTHRIE:

– That paragraph includes -

Ships engaged in trade and commerce with other countries or amongst the Slates.

But that paragraph is governed by paragraph b, which says that the ship must be within the territorial waters of the Commonwealth.

Senator Millen:

– No; paragraphb deals with a separate class of ships.

Senator GUTHRIE:

– What is the definition of “Australian waters”? If I am assured that it covers anything outside the 3-mile limit of the coast, I shall be prepared to let the Bill go. But if it does not, then this Bill does not do what I think it was intended to do.

Senator de Largie:

– Does the honorable senator consider that the part of the Great Barrier Reef, where the Yongala went down, is outside the territorial waters of Australia ?

Senator GUTHRIE:

– Yes. I think it is more than 3 miles from high-water mark on the coast.

Senator Givens:

– No one knows where the Yongala was lost.

Senator GUTHRIE:

– I admitthat ; but I am referring to the place where it was supposed she went down.

Senator de Largie:

– Is the Barrier Reef outside our territorial waters? I do not think that it is.

Senator GUTHRIE:

– I will leave that altogether. I take the case of a vessel leaving Albany bound for Adelaide, and I say that, until she is nearing Kangaroo Island, she is outside our territorial limit all the time. I ask the Vice-President of the Executive Council whether he can assure the Senate that such a vessel would, throughout that voyage, be covered by this Bill?

Senator McGregor:

– Yes.

Senator Millen:

– Would not that come under paragraph c ?

Senator McGregor:

Senator Guthrie is reading paragraphs of clause 4 into each other, and is thus making trouble for himself.

Senator GUTHRIE:

– I think not. Paragraph a deals only with ships in the service of the Commonwealth other than the Naval or Military Service, and, so far, would cover only the trawler. Then paragraph b deals with ships trading to Western Australia, but within our territorial waters.

Senator Millen:

– They are foreign vessels, and we can only deal with them when they are in our territorial waters.

Senator GUTHRIE:

– Then paragraph c covers ships engaged in trade and commerce withother countries or among the States. What does “ among the States “ mean ?

Senator Mcgregor:

– The High Court has said what it means.

Senator GUTHRIE:

– That is where we failed in the Kalibia case, because the loss occurred outside our territorial waters. Sub-clause 2 of clause 4 reads -

In the case of ships not registered in Australia, this Act shall, as regards paragraphs b and c of sub-section 1 of this section only apply in relation to seamen shipped under articles of agreement entered into in Australia, and then only while the ships are subject to the law of the Commonwealth.

It will not apply to seamen who have not been engaged in Australia. My opinion regarding the Bill is that it is much too narrowly drawn. I shall do nothing to impede its passage, as it may be of advantage to some one ; but as surely as I stand here, if this measure is passed, it will be found that an amending Bill will be necessary next year. Upon the decision of the High Court, the measure might have been made to apply to ships leaving one port in Australia for any other in another State, no matter whether on the voyage they went outside the 3-mile limit or not. It is, in my opinion regrettable that the Act we passed in 1909 was decided to be unconstitutional, and that no steps have been taken earlier to put another measure of the kind on the statute-book.

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– I wish to offer only a few remarks in regard to the debate. Clause 4 of the Bill to which Senator Guthrie has referred is much more comprehensive than the honorable senator imagines. He has been reading one paragraph into another, but if honorable senators will look carefully at the clause, they will find that paragrapha refers to vessels belonging to the Commonwealth, and to these the laws of the Commonwealth will apply anywhere. Paragraph b refers to ships trading with Australia, or engaging in any occupation in Australian waters, and being in the territorial waters of any territory which is part of the Commonwealth.

Senator Guthrie:

– Only within territorial limits; that is my point.

Senator McGREGOR:

– We cannot gooutside our territorial limits.

Senator Guthrie:

– I say that, on the decision of the High Court, we can.

Senator McGREGOR:

– Paragraph c of clause 4 deals with foreign vessels and vessels engaged in the Inter-State trade. The High Court’s interpretation of the words “ among the States “ is Inter-State. This paragraph covers vessels registered in Australia and trading from State to State, and vessels whose crews are signed on in Australia.

Senator de Largie:

– Is the honorable senator satisfied that a ship leaving Fremantle for Adelaide would be coveredby this Bill?

Senator McGREGOR:

– Certainly I am. In the same way there are Australian shipsgoing fromMelbourne to Queensland or in the opposite direction that would be equally so, so far as our powers under the Constitution enable us to meet such cases. As Senator Guthrie has referred to the Navigation Bill, which is still before this Parliament, I point out to him that if he looks at section 98 of the Constitution he will find there a full explanation of the attitude assumed by the High Court, not only in connexion with legislation of that description, but in connexion with a Bill of this kind also. The section reads -

The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.

That does not extend the powers contained in section 51, but it is explanatory of them. It is because the trade and commerce powers of the Parliamentare limited that the powers in section 98, with regard to navigation and shipping, are also limited to the extent of such limitation. According to the interpretation given by the High Court, we cannot, in this or any other Bill, go outside the. trade and commerce powers. That renders it necessary, in clause 4, to deal in three separate paragraphs with the different conditions which are created under those powers. We cannot do any more than we are doing in the Bill. If we attempted to do so we should contravene the Constitution, and might have the Bill thrown upon our hands again. I hope that it will be read a second time, and become law as speedily as possible.

Question resolved in the affirmative.

Bill read a second time.

In Committee :

Clauses 1 to 4 agreed to.

Clause 5 - (1.) If personal injury by accident arising out of and in the course of the employment is caused to a seaman, his employer shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.

  1. if it appears that the claimant has a claim for compensation for the injury under any law of the United Kingdom or of any other part of the King’s Dominions, compensation under this Act shall only be allowed upon the claimant undertaking not to claim compensation for the injury under any such law……
Senator McGREGOR:
South AustraliaVicePresident of the Executive Council · ALP

– I move -

That after the word “ Dominions,” line 10, the words “ or of any foreign country “ be inserted.

In our taxation legislation we endeavour to avoid double taxation, and in this case we want to endeavour to prevent the duplication of damages. We desire to prevent a seaman, or an officer, or anybody else, from getting compensation in Australia under this measure, and then, under the law of a foreign country, claiming compensation there. It is to make it quite clear that a seaman cannot obtain compensation twice that the amendment is proposed.

Senator Guthrie:

– He could not do it in any circumstances.

Senator McGREGOR:

– The amendment is proposed to remove any doubt.

Amendment agreed to.

Senator McGREGOR:
South AustraliaVicePresident of the Executive Council · ALP

– I move -

That the following new sub-clause be added : - “ (4.) Any undertaking given in pursuance of paragraph e of sub-section 2 of this section shall have effect as a contract between the claimant and the person from whom the compensation is claimed.”

The object of the amendment is to insure that a seaman claiming compensation shall enter into a contract that he will not apply for compensation in any other country.

Senator RAE:
New South Wales

– I really cannot understand the reason for making this provision. I admit that I did not understand the matter when I made an interjection during the debate on the second reading. While I recognise that it would be blackmailing for any person to claim damages twice, this amendment appears to me to be overloading the Bill. How can a man recover compensation except by making a claim against his employers ? I suppose that he could not, in any case, get compensation from anybody else. As his employers are one firm or company, no matter what country they do business in, if he was foolish enough to enter an action in another country the fact would be at once a bar and throw him out of Court.

Senator Millen:

– He might enter an action against the same people in two countries; for instance, in Australia and England.

Senator RAE:

– Would it not be madness to do so? There is no Court which would grant a claim made in such circumstances.

Senator de Largie:

– His employer might be a stevedore in Australia, but a shipowner in the Old Country.

Senator Guthrie:

– He could not be a stevedore here, because he would be on the articles of the ship.

Senator Millen:

– I think that the clause brings the Bill on all-fours with the Imperial Act.

Senator Guthrie:

– I do not think that it does.

Amendment agreed to.

Clause, as amended, agreed to.

Clauses6 and 7 agreed to.

Clause 8 - (3.) There shall be included among the debts which are in the distribution of the property of a bankrupt and in the distribution of the assets of a company being wound up to be paid in priority to all other debts, the amount, not exceeding in any individual case One hundred pounds, due in respect of any compensation the liability wherefor accrued before the date of the sequestration order. . . ! .

Senator RAE:
New South Wales

– - I should like to know the reason for limiting the amount to .£100. Why should it not be equal to the liability, whatever it may be? I cannot see why in a case of bankruptcy a possible claimant should not have the right to the maximum amount which he otherwise would have. I can understand why we should have such a provision, but not with this limitation.

Senator McGREGOR (South Australia - Vice President of the Executive Council) [4-‘53l- - I think that Senator Rae will see that without this provision a claimant might get only a few pounds, or perhaps nothing. It gives him priority over other creditors. We have made the clause as liberal as we can do. No matter what amounts may be due to other creditors, a claimant for compensation under the Act will have priority to the extent of at least £100. Seeing that in ordinary circumstances a claimant might only get two or three pounds or nothing, and that a number of persons are placed under a disability, it is, .1 think, a very generous allowance to make.

Senator RAE:
New South Wales

– I think I can understand the object of the provision, namely, that a claimant shall get something, but, as a rule, shipowners are large companies or firms. An ordinary householder who goes bankrupt mav have assets to the amount of only half-a-crown, but when a shipping firm goes bankrupt it must have some substantial assets if it has only one ship. Consequently, this provision does not appear to me to be so generous as the Minister states it is. I think- that we should entitle the claimant to get the full amount of his claim. Is there any ship-owning firm which, it it went bankrupt, would not have ships of some kind in its estate? The employment of seamen implies the ownership of ships, and therefore the possession of considerable assets in the case of bankruptcy.

Senator Pearce:

– Suppose that the firm has only chartered a snip r

Senator RAE:

– We know that from a pecuniary point of view persons engaged in shipping are not in the same position as ordinary householders.

Senator McGregor:

– Some of them may go down for a shilling in the pound.

Senator RAE:

– If they do their liabilities will be very large.

Senator Guthrie:

– No ship-owners in Australia have gone bankrupt, except one.

Senator RAE:

– To test the feeling of the Committee I shall move for a larger amount to be paid, because I think it will be found that the majority, if not all, of the shipping firms of Australia which have gone into liquidation have been possessed of “substantial assets, besides which any claims made under this measure would be a flea-bite.

Senator McGregor:

– I would remind the honorable senator that seamen may have claims for wages too.

Senator Guthrie:

– This is an insurance question.

Senator RAE:

– We know that these matters are always provided for by way of insurance. In fact preceding clauses deal with the liabilities of insurance companies. The wages of all seamen employed plus the claims against, the owners for any accident would represent a very small proportion of the total assets of any shipping firm which is doing business in Australasian waters at the present time. Is it not a fact that claims for accidents would be a very small percentage of the total assets of any shipping company that went insolvent? I can quite understand that in an ordinary case of bankruptcy, if you secure anything like a total payment to one set of creditors you may deprive another set of any share whatever. But to meet all possible claims under this Act would absorb so small a percentage of any company’s assets that I cannot conceive that we should be doing any injury to any set of creditors by providing that the full amount that can be claimed should be secured to seamen. T therefore move -

That the word “ One,” line 6, be left out, with a view to insert in lieu, thereof the word “ Five.”

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– I think that Senator Rae is proposing an unnecessary extension of the provisions of the Bill. There may be hundreds of cases where /,00 , would be all that was necessary. In many instances small amounts would be claimed, but the amendment would provide for compensation to the extent of ^500 in every case, large or small.

Senator RAE:
New South Wales

– In the event of one claim being made £25 and another for ^500, would not the fact of £100 being provided for in this clause be injurious to the interests of the person claiming the larger amount? Suppose that a number of people make claims, some of whom are only entitled to£50 compensation; the fact of only £100 being kept back from an insolvent’s estate to meet all claims would’ be very hard on others of them. In dealing with a humanitarian measure of this kind, in which we make provision for those who have no means of subsistence, we should see to it that they get the full amount to which they are entitled. I do not think that the Vice-President of the Executive Council has given anything like an adequate answer to my argument. He says that there may be cases in which the claim only amounts to . £50, and that my amendment would insure £500 being laid by to meet that liability. But under the Bill as it stands only £100 would be laid by to meet a£500 liability. Which is the better course, to have the larger amount at hand to meet the claims, or to make it impossible for a person entitled to£500 to get more than one-fourth of that amount?

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

Senator Rae does not desire that a man entitled to . £50 should get more than£50, or that a man entitled to £500 should get less. I think we could meet his object by striking out the words “ not exceeding in any individual case £100.” That would leave the amount to be that which was really due.

Senator NEEDHAM:
Western Australia

– The Vice-President of the Executive Council has suggested a way out of the difficulty. I was exercising my mind as to whether or not I could vote for the clause with the £100 limitation in it. I can picture a case where a seaman may have lost his life, and where his widow is entitled to compensation. Surely the value of a man’s life is more than£100. In the event of injury the compensation may be more than £500. It would be far better to leave out the amount than to stipulate that it shall be only £100. What I am desirous of is that the full amount shall be obtainable by the relatives of injured seamen, or those who lose their lives.

Senator RAE:
New South Wales

– I accept the suggestion of the VicePresident of the Executive Council, and therefore ask leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Amendment (by Senator Rae) agreed to -

That the words “ not exceeding in any individual case One hundred pounds “ be left out.

Clause, as amended, agreed to.

Clause 9 (Compensation to be paid in full).

Senator Stewart:

– I wanted to get some information about sub-clause 5 of clause 8.

The CHAIRMAN:

– Clause 8 has been passed. I put the question deliberately.

Senator Stewart:

– I did not hear you, Mr. Chairman. If people will mumble-

The CHAIRMAN:

– It is not my fault if the honorable senator did not hear me. I put the question distinctly.

Senator Long:

– I heard you distinctly.

The CHAIRMAN:

– We should get our business into a tangle if we were to go back to a clause which had been passed. The honorable senator will have another opportunity of raising the point which he desires to bring forward.

Clause agreed to.

Clauses 10 to 16 agreed to.

Clause 17 (Regulations).

Senator STEWART:
Queensland

– I think there ought to be some provision in the Bill that regulations shall be submitted to Parliament within a certain period of their issue.

Senator McGregor:

– That is provided for under the Acts Interpretation Acts.

Clause agreed to.

Clause 18 agreed to.

First schedule.

Senator STEWART:
Queensland

– Sub-paragraph a of paragraph 1 of this schedule reads -

Provided that -

if theincapacity last less than two weeks no compensation shall be payable in respect to the first week.

I fail to see why compensation should not be payable from the very hour that an accident occurs, and I think the schedule ought toprovide for that.

Senator Guthrie:

– It does provide that compensation shall be payable if the incapacity lasts more than two weeks.

Senator STEWART:

– It does not matter whether it lasts two weeks or two months. Upon what ground canthe honorable senator assertthat a seaman who is injured is not entitled to compensation during the firstweek ensuing upon his injuries. I move -

That sub-paragraph a of paragraph 1 be left out.

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– I think that Senator Stewart is rather late in moving this amendment, because clause 5 of the Bill provides -

The employer shall not be liable under this Act in respect of any injury which does not disable the seaman for the period of at least one week from earning full wages.

This schedule merely declares that if a seaman be incapacitated for more than two weeks he shall be entitled to compensation for the whole of the term covered by his injuries, the first week included.

Senator Stewart:

– We have done nothing in clause 5.

Senator McGREGOR:

– We have provided that a seaman shall not get compensation unless he is injured for more than a week. We cannot override that clause in this schedule.

Senator Rae:

– Recommit it.

Senator McGREGOR:

– It would not be wise to do that, seeing that we provide in the schedule that if a seaman be incapacitated for more than a fortnight as the result of an accident, he shall receive compensation for the whole of the period covered by his injuries. That is the general principle that is laid down in all Workmen’s Compensation Acts. Even in the unions with which I have been associated a member has to be incapacitated so many days before he can claim any compensation.

Senator NEEDHAM:
Western Australia

– I have no intention of supporting the amendment which has been so crudely moved by Senator Stewart. Under our various Workmen’s Compensation Acts it is the law to-day that a workman must be incapacitated for a fortnight as a result of his injuries before he can claim compensation. But I think we ought to set a better example, particularly in the case of seamen whose claims for consideration have so long been neglected. It was my intention to move an amendment upon this schedule, but I shall not do so now. At the same time 1 should like an assurance from the Vice-President of the Executive Council that compensation will be paid to a seaman from the time that he sustains any injury.

Senator Guthrie:

– So it will be, after he has been incapacitated a fortnight.

Senator NEEDHAM:

– That is the whole point. If the seaman be incapacitated for a fortnight no compensation will be paid to him for the week following upon his injuries.

The CHAIRMAN:

– I would point out to Senator Stewart that paragraph a of sub-clause 2, of clause 5, reads -

Provided that - the employer shall not be liable under this Act in respect of any injury which does not disable the seaman, for a period of at least one . week, from earning full wages.

Now the effect of the honorable senator’s amendment would be to annul that paragraph, and, therefore, I cannot accept it.

Senator Rae:

– Clause 5 does not say anything in regard to the duration of the incapacity of a seaman. The schedule provides that if a seaman’s incapacity lasts for less than two weeks no compensation shall be paid to him in respect of the first week, whereas clause 5 sets out that the employer shall not, in any case, be liable for an accident which incapacitates a seaman for less than a week.

Senator Stewart:

– I wish to point out that the two things are quite distinct. The meaning of paragraph a, of sub-clause 2, of clause 5, is that if a seaman be injured, but is able to return to his work within a week of sustaining his injuries, he shall receive no compensation whatever. Now, the schedule provides that if his incapacity should last less than two weeks no compensation shall be payable in respect of the first week. In other words, paragraph a, of sub-clause 2, of clause 5, refers to an accident which affects a seaman for only a week or less, whereas sub-paragraph a, of paragraph 1 of the schedule, refers to an accident which incapacitates a seaman for a fortnight or less. The two things are entirely distinct.

Senator Millen:

– No, where a manis injured for a fortnight or less he cannot receive compensation for the first week.

Senator Stewart:

– Then we can get the Bill recommitted.

The CHAIRMAN:

– That would be the best way out of the difficulty.

Senator NEEDHAM:
Western Australia

– I thought that the object of Senator Stewart would not be achieved by his amendment. I am still of that opinion, and I believe that the best way out of the difficulty would be to recommit that particular portion of the Bill.

Paragraph 19 verbally amended.

Senator RAE:
New South Wales

– I should like to know the meaning of paragraph 21 of this schedule, which reads -

Where under this schedule a right to compensation is suspended, no compensation shall be payable in respect of the period of suspension.

Does that mean to cover the case where a claimant has not proved his claim, but is waiting for further evidence? I could understand a case not being decided for lack of evidence, but if subsequently the claimant is able to prove his claim a good one. it seems to me only fair that he should receive payment of compensation from the time at which it would have fallen due if the claim had been proved when first submitted.

Senator NEEDHAM:
Western Australia

– I am anxious to know whether it is the intention of the VicePresident of the Executive Council to recommit the schedule for the purpose of reconsidering sub-paragraph (a) of the proviso to paragraph 1 of the schedule. This reads -

Provided that -

if the incapacity lasts less than two weeks no compensation shall be payable in respect of the first week.

That, it seems to me, is in conflict with clause 5 of the Bill, and under that proviso I contend that a seaman would not even get one week’s compensation allowance.

Senator de Largie:

– We have passed that part of the schedule.

Senator NEEDHAM:

– I am aware of that; but I desire that the Vice-President of the Executive Council should undertake to recommit that part of the schedule before I am asked to consent to the passage of the schedule.

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– I cannot undertake torecommit the Bill in order to reconsider a paragraph of the schedule. I have already referred to the provision contained in clause 5 of the Bill. Let me remind Senator Needham that if he consults the rules of nearly every trade union or trade society in existence he will find an exactly similar provision to that to which he objects in this schedule.

Senator Needham:

– And I have always been opposed to it.

Senator McGREGOR:

– For the protection of their own interests, trade unions have made such a provision in their rules, and surely, in dealing with a matter in which the general public are concerned, we should exercise the same care. We must be just and fair in all our legislation. If we follow the rules laid down by trade unionists for their own protection and benefit, we cannot go far wrong. I would just as soon that our legislation was based on them as on the Ten Commandments. Referring to Senator Rae’s remarks concerning paragraph 21. of the schedule, let me say that it covers a case, for instance, of a seaman refusing to submit himself to the examination provided for in thisAct. It mustbe clear that if a man refuses to submit himself to that examination, there must be something wrong about his claim, and it is not unreasonable that, while his right to compensation is suspended during such a refusal, there should be no payment in respect of the period of suspension.

Senator Rae:

– Is that the only case that would be covered by the paragraph referred to?

Senator McGREGOR:

– There are three cases of the kind provided for, but that is the principal case.

First schedule, as amended; agreed to.

Second schedule and title agreed to.

Bill reported with amendments.

Standing Orders suspended.

Motion (by Senator McGregor) proposed -

That the report be adopted.

Senator STEWART:
Queensland

– I move -

That the Bill be recommitted for the purpose of reconsidering sub-clause 2 of clause 5, and paragraph (a) of clause1 of the First Schedule.

The PRESIDENT:

– Is the motion seconded? There being no seconder, the motion cannot be received.

Question resolved in the affirmative.

Report adopted.

Bill read a third time.

page 3765

POST AND TELEGRAPH RATES BILL

Senator PEARCE:
Western AustraliaMinister of Defence · ALP

– I move -

That this Bill be now read a second time.

When the Bill inaugurating penny postage was going through in another place last year, the Postmaster-General accepted an amendment permitting books printed in Australia to go through the post at the cheap rate of1d. Since that Bill became law, a number of people - commercial people principally - have claimed the right to send trade circulars, catalogues, pricelists, and publications of that character through the post as books printed in Australia, and claim that they should be sent through the post at a rate of 8 oz. for1d., instead of as commercial papers at the rate of 2 oz. for id. Of course, it was never intended that such publications should be regarded as books. It was intended that ! books “ should refer only to Australian literature ; such books, for instance, as the one which Senator St. Ledger published. Previous to the alteration made by the Bill referred, to, this class of matter went through the post-office at the rate of 4 oz,. for id., and under the Postal Rates Bill of last year, at a rate of 2 oz. for a Jd. The other clause of this Bill is introduced for the purpose of securing a better definition of “ magazine,” and also to give a preference to magazines and catalogues printed in Australia over imported magazines and catalogues, or such matter printed in Australia from imported stereotypes. As the matters dealt with in the Bill are of a highly technical character, and I do not profess to have an intimate knowledge of them, I quote the following official interpretation of the alterations which the Bill will effect -

This amending Bill is rendered necessary owing to the fact that advantage is sought to be taken of the Rates Act 1910 to send catalogues and other similar matter in book form at the cheap rate of postage provided therein for books. Under that Bill, as originally submitted to Parliament, books would have come under the head of printed papers, as is the case in all the principal countries of the_ world; but when the Bill was under discussion it was urged that encouragement should be given to Australian writers, and that the rate for books should be made the same as that for magazines. This was agreed to by the Postmaster-General, and the same rates were adopted for books as for magazines, the intention clearly being that books should mean books in the ordinary literary sense of the term.

Under State arrangements the “book” rate of postage was applicable to catalogues, prospectuses, and generally to anything printed and bound in book form, and the persons who had been in the habit of issuing these publications claimed that they should still be regarded as “ books “ and be allowed the benefit of the reduced rate under the new conditions, notwithstanding that the rate for printed papers, to which category they properly belong, under the Commonwealth regulations is, except in one State, not greater than the book rate was previously, and in the other five States is less than it was previously for certain weights because of the progression under the State rate having been at the rate of id. per 4 ounces as against id. per 2 ounces under the Commonwealth - thus, 6 ounces and 10 ounces in one case would cost 2d. and 3d. respectively as against 1½d. and 2½d. respectively in the other (the Commonwealth).

Further, confusion arose in the minds of Departmental officers as to what should be allowed the benefit of the reduced book rate, in view of the definition under State regime, and the dictionary definition of what is a book, and it is consequently necessary in order to protect the revenue that Parliament shall enable it to be laid down distinctly what articles are not to get the benefit of the book rate. This is found by the Crown Law Officers to be more easy of accomplishment than defining what are to be regarded as books.

Similar trouble has been caused through the definition of the articles which may be sent at the magazine rate, it having been claimed on behalf of catalogues and other trade publications which are issued periodically that they are “ serials,” &c, and therefore entitled to the reduced rate. It is now proposed to omit the word “ serials,” which is unnecessary, and to amend the definition in such a way as wi!l,_ it is thought, effectively exclude publications which were never intended to come within the scope of the magazine rate. The- words “ for each magazine “ have been added to the rate, so as to make the intention clear in that regard. The Crown Law Officers have advised that as the Act at present stands more than one magazine could be placed under one cover, and postage would have to be charged on the gross weight of the packet at the rate of id. per 8 ounces instead of at that rate for each magazine contained in the cover, on the principle applied to newspapers. The anomaly therefore now exists that, while the rate for newspapers is id. per 10 ounces, as against id. per 8 ounces for magazines, five newspapers, each weighing 4 ounces, or 20 ounces in all, sent by n private individual under one cover would cost 2½d. (i.e., Aid. each), three magazines, each weighing 8 ounces, or 24 ounces in all, would cost only i±d.

That is the official explanation as to the necessity for altering the rates. A further concession is given which will allow catalogues which are wholly set up and printed in Australia, to be carried through the post at the rate of Jd. for every 4 ozs. or part thereof. It will be seen that the object of the Bill is to carry out the intention of Parliament, and in certain respects to liberalize the rates on Australian printed matter. I anticipate that little opposition will be offered to its second reading.

Senator ST LEDGER:
Queensland

– - As the Minister has said, the Bill does meet the departmental objections or difficulties; and I am very pleased to say that, so far as the printing trade is concerned, it meets with their approval. I think that, to some extent, it has arisen out of a very small deputation which I had the honor of introducing to the late PostmasterGeneral, Mr. Thomas. Various matters were discussed on that occasion, and this measure makes good the Minister’s declarations. So far as I know, as the result of inquiry, the Bill is satisfactory. There are some matters which are not connected with the Bill, but which possibly the present Postmaster- General will also consider.

Question resolved in the affirmative.

Bill read a second time, and reported from Committee without amendment; report adopted.

Standing Orders suspended, and Bill read a third time.

page 3767

LAND TAX ASSESSMENT BILL

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– - I move -

That this Bill be now read a second time.

Everything was done to make the Land Tax Assessment Bill of last session as clear as possible; but as .we live in a fallible world, the Government and their supporters do not possess all the knowledge, and of course it is not the duty of the Opposition to come to their assistance and put them right, as they ought to do when omissions and mistakes are sometimes made. Therefore it has been found necessary, for the proper administration of the Act, and also in the interests of joint owners, trustees, agents, and other persons of that description, that certain amendments should be made. When the Government found in the administration of the Act that there were provisions which were not perfectly clear, and that in some instances the High Court placed on the Act an interpretation which they did not consider was exactly what was meant by Parliament, they realized that it was necessary to amend the law. I am not saying that any fault rests with the High Court, because the Judges must administer the laws as they find them. It was probably the fault of the Government, in the first instance, and then of Parliament in not making the measure more perfect. This short amending Bill contains thirteen clauses. Some of them, of course, are of a very technical character ; in fact, without taking up very much more time than I desire to occupy in presenting the measure, I could not go into all the technicalities. I shall leave that to honorable senators, who have a copy of the Bill in their hands, and can see where amendments are proposed to Le made in the Act. I hope that the Bill will be speedily passed. The rapid way in which we are proceeding shows that there is an inclination on the part of honorable senators to finish the work as expeditiously as possible. At the same time, I believe that they are giving every consideration to the provisions of the different measures. I have much pleasure in submitting the motion.

Senator STEWART:
Queensland

– I think that the Vice-President of the Executive Council ought to have given us more information with regard to the effect which the measure will have. I have been trying to spell it out, but the clauses are of a very technical character, and I have not had the advantage of legal assistance. No doubt, the Bill will affect the revenue from the land tax, but that is not the principal objection which I have to it, if I have any. What I want to know is whether under the new definition of “ joint owners “ it will be possible for a large estate to be held by a joint- stock company. That is a matter which I think the Minister should have made clear to the Senate. If my reading of the Bill is correct, and I hope that it is not, it will be possible for a joint-stock company to hold hundreds of thousands of acres, and to monopolize them just as effectively as a single individual could do, and yet escape land-value taxation if the number of its shareholders be sufficiently large. If that is the case, it is a pernicious proposal, and is out of harmony with one of the purposes of the principal Act, which was to break down land monopoly. Perhaps Senator McGregor, or some other member of the Government, will give the Senate some information on that point.

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– - At the present time it is possible tor a joint-stock company to hold a large estate, but that does not enable the company to evade taxation ; and the more shareholders or beneficiaries there are the more taxation they have to pay. Senator Stewart can be easy in his mind on that account.

Senator Stewart:

– What about joint owners sharing an estate under a will?

Senator McGREGOR:

– Under the principal Act, provision is made to grant relief to a certain extent. I am sure that Senator Stewart has no desire to penalize people unfairly. They will, however, have to pay their fair share of taxation.

Question resolved in the affirmative.

Bill read a second time.

In Committee:

Clause 1 agreed to.

Clause 2 (Definition of joint owners).

Senator WALKER (New South Wales) [6.2”). - Would the Minister in charge of the Bill kindly explain the expression “ and includes persons who have a life or greater interest in shares of the income from the land “ ? Does that mean a reversionary interest in a freehold?

Senator McGregor:

– Either a life interest or the fee-simple.

Senator W RUSSELL:
SOUTH AUSTRALIA · ALP

– I arn not at all satisfied with the way in which this Bill is being handled. I understand that it is intended to remove anomalies and to prevent injustices. If that be the intention, we ought to know. We cannot afford to rush Bills through without understanding them. Though I am a supporter of the Government, I do object to this procedure. The Bill ought to be explained so that every honorable senator can understand it. If anomalies are to be rectified, let the Minister explain what they are. I know that some injustices have occurred. I have heard landholders complain of them. I believe that some have hod reason to complain. But it is most unsatisfactory to have a Bill introduced as this has been by my worthy friend Senator McGregor.

Senator DE LARGIE:
Western Australia

– I quite agree with what Senator W. Russell has said ; but, at the same time, he must realize that the rapid manner in which measures have been rushed through this afternoon has deprived the Vice-President of the Executive Council of the time to give as much attention to Bills as he would like. He has been kept very busy, and supporters of the Government cannot expect him to do impossibilities. It is true that he introduced the Bill very briefly ; but, no doubt, he thought it was not necessary to make a long explanation, inasmuch as he could explain any point upon which information was desired in Committee.

Senator McGREGOR:
South AustraliaVicePresident of the Executive Council · ALP

– I am very sorry that Senator W. Russell is not satisfied.

Senator W RUSSELL:
SOUTH AUSTRALIA · ALP

– Who could be satisfied ?

Senator McGREGOR:

– I do not know that it is always necessary, in moving the second reading of a Bill to amend an Act with which everybody is familiar, to make a long speech. I am prepared to give any explanation that is required on any clause. As to joint owners, the provisions of the Bill are practically the same as those of the principal Act, except that the new definition makes it more clear that those who receive any benefit from an estate shall pay the full tax in the aggregate, whilst individually they pay only a fair share according to the amount they hold.

Clause agreed to.

Clause 3 (Tenants for Life).

Senator LYNCH:
Western Australia

– I should like the Government to take into consideration the hardship imposed upon persons under the section of the principal Act which this clause amends. I am aware of cases where under the terms of a will persons have been appointed tenants for life; and simply because trustees have been appointed, they have been called upon to pay their full share of the land tax, whereas, if trustees had not been appointed, they would have escaped taxation entirely. Under the circumstances, the Government might see the desirableness of abolishing the provision requiring the appointment of trustees in such cases. That would allow persons who were beneficiaries under a will to escape the heavy burden of taxation which they are called upon to pay at present. This Bill has been brought in to give relief in certain directions. If care had been observed in its preparation, it would have been found that there are cases in which positive hardship has resulted owing to the principal Act requiring the appointment of trustees. We expected great things to follow from the principal Act, but, of course, in this, as in every Act of legislation, defects have been revealed.

Senator W RUSSELL:
SOUTH AUSTRALIA · ALP

– There have been great results as well.

Senator LYNCH:

– I recognise the benefits that have followed from the Act, and that they far outweigh the trifling disadvantages that have come to light. But I have pointed out one case of injustice that has occurred of my own knowledge. When the Government were preparing this measure, I think they might have given relief in such cases as I have referred ta

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– This clause is really intended to give relief to tenants for life where trustees have been appointed. In such cases, the tenant for life may not be able to make full use of the land, although trustees could do so. Therefore, the tenant for life will pay only in proportion to the use which he can make of the land which he holds.

Clause agreed to.

Clauses 4 to 6 agreed to.

Clause 7 (Joint Owners).

Senator WALKER:
New South Wales

– In a case that has come under my knowledge, a. gentleman left property some years ago to two or three persons. One of them died, and left his share to two nephews and two nieces’. At the present time, those persons are not exempted, though it is doubtful whether they are getting any benefit. If the owner of an original share under a settlement wills that share to other persons, will those persons be entitled to the £5,000 exemption?

Senator STEWART:
Queensland

– It appears that this clause has been designed to exempt beneficiaries under a will. I am not sure whether it is a good provision or a bad one from the point of view of dealing with the land monopolist. Take an estate which is valued at £40,000, and which has been left by will to eight relatives of the testator. Each of these beneficiaries will be exempted to the extent of £5,000; so that, while the estate during the testator’s life was liable to taxation on £35,000, upon his death no tax will be payable, notwithstanding that the estate has not been cut up. I object to allowing an estate to be managed as a whole without payment of any tax. This clause seems to favour the holding by families of large areas against settlement, with a view to appropriating the community-created values. In it the words “ by blood, marriage, or adoption “ are used. What is the meaning of the term “adoption”? My principal objection to the clause is that it permits an exemption of £5,000 in the rase of each beneficiary under a will, notwithstanding that the estate continues to be administered as a whole.

Senator McGREGOR:
South AustraliaVicePresident of the Executive Council · ALP

– ] would like to explain to Senator Stewart that this provision was contained in the principal Act. The honorable senator will recollect that some little concession was made to those persons who had executed their wills years ago, before there was any prospect of the imposition of a progressive land tax. But no will which was made after the month of September in the year that that tax was imposed can come under the operation of this clause. Its scope is confined to wills made in favour of blood relations, or of adopted children. I do not think that there are more than two or three of these in existence, and their provisions will naturally soon die out. In the case which has been referred to by Senator Walker, it would be impossible for me to express an opinion in the absence of knowledge of the contents of the will. But I can assure him that the persons interested will be treated no worse under this Bill than they were treated under the principal Act. If a hardship has been inflicted upon them, it cannot be remedied here. I would also remind the honorable senator that, no matter what legislation we may enact, some injustice is bound to be done. If we were to attempt to legislate for all cases of hardship, we should have to pass very peculiar Statutes indeed.

Clause agreed to.

Clause 8 (Mutual Life Assurance Policy).

Senator WALKER:
New South Wales

– I should like to know whether the beneficiaries in the estate to which I have referred will be entitled to an exemption of £5,000?

Senator McGregor:

– Each separate trust estate will enjoy an exemption.

Clause agreed to.

Clause 9 -

Section 43 of the Principal Act is amended - (a) by omitting the words “ the amount by which the tax payable by the primary taxpayer is increased by the inclusion of the land or interest in his assessment.”

Provided that the amount of the deduction shall not exceed the amount by which the tax payable by the primary taxpayer is increased by the inclusion of the land or interest in his assessment.

Amendment (by Senator McGregor) agreed to -

That the word “ primary,” line 8, be left out, with a view to insert the word “ secondary “ in lieu thereof.

Clause, as amended, agreed to.

Clauses 10 to 13 agreed to.

Title agreed to.

Bill reported with an amendment.

Standing Orders suspended, and report adopted.

Motion (by Senator McGregor) proposed -

That this Bill be now read a third time.

Senator WALKER:
New South Wales

– I would like to ask the VicePresident of the Executive Council if he cannot see his way clear to allow the third reading of this Bill to stand over until tomorrow ? The lawyer who is representing the estate to which I have already referred has telegraphed inquiring whether it will be necessary for him to come to Melbourne.

Senator VARDON:
South Australia

.- I wish to ask the Vice-President of the Executive Council whether it is not possible to give better notices throughout the country of what taxpayers are required to do under the Act. A great many persons are liable to heavy fines because they have not made the necessary returns, although they did not know that they were obliged to make them. One man came to me some time ago in a great state of excitement, and told me he had been served with a notice that he was liable to a fine of £100 for having failed to furnish a return. I accompanied him to the office of the Deputy Commissioner, where I discovered that he was not only liable to a fine of £100, but to a second fine of a similar amount because of his neglect to supply a return in respect of the previous year. He assured me that he had not received any notice on the matter, and that he was unaware that he had to make these returns. I have heard of a great number of complaints of a similar character. Indeed, I nearly fell into error myself last year because I failed to observe the notice which was published in the Gazette. If the Government can give more publicity to what is required of taxpayers it will greatly facilitate the working of the Act.

Senator McGREGOR:
South AustraliaVice President of the Executive Council · ALP

– I wish to explain that I should have no objection to postpone the third reading of this measure until to-morrow ; but, unfortunately, I am prevented from taking that course now, seeing that I have already submitted the motion.

Senator Walker:

– I merely asked a question.

Senator Vardon:

– The debate may be adjourned.

The PRESIDENT:

– It is open to any honorable senator to move the adjournment of the debate. %

Debate (on motion by Senator Lt.-Colonel Sir Albert Gould) adjourned.

Sitting susp ended from 6.32 to S -p.m.

page 3770

PURCHASE TELEPHONE LINES ACQUISITION BILL

Bill received from the House of Representatives.

Motion (by Senator McGregor) agreed to-

That so much of the Standing Orders be suspended as would prevent the Bill being passed through all its stages without delay.

Bill read a first time.

Senator PEARCE:
Western AustraliaMinister of Defence · ALP

– I move -

That this Bill be now read a second time.

I understand that, prior to 1883, certain persons in the State of New South Wales were allowed, at their own expense, to be connected with the Government telephone exchange. Lines then erected at private expense have been continued under the orginal arrangement up to the present time. It is found that this makes it difficult for the Post and Telegraph Department to carry out their desire to make the telephone service more efficient. This Bill provides that the Postmaster-General, after giving two months’ notice to the owner of one of these lines, may acquire it. This power is sought particularly in regard to the metropolitan area. It is anticipated that the exercise of the power conferred by the Bill will entail an expenditure of between £3,000 and .£4,000 in the acquisition of these purchase telephone lines. The Bill provides that if the amount of compensation to be paid for one of these lines cannot be agreed upon, it is- to be settled by arbitration in accordance with the laws relating to arbitration of the State in which the line is situated. I have stated practically the purpose of the Bill, and T do not think there is occasion for any further explanation of it.

Senator MILLEN:
New South Wales

– It seems to me that this measure is entirely desirable in the public interest, for the reason that we have affirmed that the Commonwealth shall be seized of a monopoly of the telephonic and telegraphic services of the country. Some difficulty has arisen, and this was evident even before Federation, from the existence of a few privately owned lines working in with the State-owned lines. That is a difficulty which should be overcome, and for that reason this Bill is to be commended. I have no doubt that if the private owners of these lines were consulted, they would be as ready to approve of this measure as are the Government officials.

Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [8.5].- The explanation given by Senator Millen is perhaps more pertinent to the object of this Bill than is that given by the Minister. I do not know in what way, if at all, these purchase telephone lines interfere with the working of the general telephone system, but I am aware of the fact that the men who erected these lines at their own expense many years ago have been, and still are, charged a lower rental than are those who have had telephones put into their places for them by the Government. It is as well to state plainly that the object of the Bill may not be so much for the purpose of the efficient working of the telephone system as for the purpose of providing a larger revenue from the telephone branch of the Post and Telegraph Department. Whether that is a proper object is for honorable members to consider. It may be very desirable that all telephone lines should be under State control, but the fact remains that the people who own these lines pay a lower rental than those who use lines supplied by the Government, and it is entirely misleading to say that the Bill is introduced merely to enable the telephone system to be more efficiently worked. I have seen no evidence to justify one in coming to the conclusion that these purchase telephone lines are not worked just as efficiently, or, should I say, as inefficiently, as are the lines which have been erected at the Government expense? I do not oppose the measure, because I presume that the Government have satisfied themselves that it is a desirable Bill to pass in order that the Commonwealth may enjoy the absolute monopoly of the business. I shall not oppose the second reading, but I object to the Bill being submitted to the Senate in a way which did not disclose what I think is the real object of the Government in submitting this legislation.

Senator PEARCE:
Minister of Defence · Western Australia · ALP

– I may be allowed to say, in reply to Senator Gould, that I have, of course, no personal knowledge of the matter, and the statement I made was the statement given to me by the Postmaster-General. I have given his explanation of the reasons which have prompted the Department in submitting this measure to Parliament.

Question resolved in the affirmative.

Bill read a second time.

In Committee :

Clause 1 (Short Title).

Senator ALBERT GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913

-Colonel Sir ALBERT GOULD (New South Wales) [8.9].- The document handed to honorable senators is the Bill as reported from the Committee of the whole on the 5th December, to the House of Representatives. I assume that it is exactly the same as the Bill which was sent up to the Senate with the message.

Senator Pearce:

– Yes. No subsequent amendment was made. The Clerk of the Senate has checked it, with the Bill sent up with the message.

Clause agreed to.

Clause 2 - (1.) The Postmaster-General may, after giving three months’ notice to the owner, acquire any purchase telephone line which was erected by the Department of Posts, Telegraphs, and Telephones of any State at the expense of the owner or constructed by the owner prior to the year 1883 or his predecessor in title, and in respect of which the owner pays an annual maintenance fee. (2.) On the expiration of the time specified in sub-section (1.) of this section, the purchase telephone line specified in the notice shall become the property of the Commonwealth and vest in the Postmaster-General. (3. ) The compensation, if the amount cannot be agreed upon, shall be settled by arbitration in accordance with the laws relating to arbitration of the State in which the line is situated.

Senator PEARCE:
Western AustraliaMinister of Defence · ALP

– This clause requires verbal amendment to make it more clear. I move -

That after the word “ owner,” line 5, the words “ or his predecessor in title “ be inserted.

The present owner may not be the person who erected the line.

Amendment agreed to.

Senator PEARCE:
Western AustraliaMinister of Defence · ALP

– There is another little alterationrequired in the clause. I propose to move that after the word “constructed” the words “ by the owner ‘ ‘ be left out with a view to moving a further amendment proposing the insertion of the words “ by the owner,” after the figures 1883. That portion of the clause would then read “ or constructed prior to the year 1883 by the owner.” I move now -

That the words “ by the owner,” line 6, be left out.

Senator MILLEN:
New South Wales

– I should like to be quite certain as to the full extent and effect of the amendments now proposed. I take it that there are two classes of privately-owned wires, one covering wires erected by the Department for private individuals and at their expense, and the other covering wires erected by private individuals at their own expense. The purpose of the proposed amendments is to apply the same conditions to both classes of wires?

Senator Pearce:

– That is so.

Amendment agreed to.

Senator CHATAWAY:
Queensland

– I wish to ask the Minister of Defence why the words “ prior to the year 1883” are used in this clause? Their use will mean that telephones erected since 1883 cannot be acquired by the Government.

Senator Pearce:

– None have been erected.

Senator CHATAWAY:

– I know of one telephone line about 3 miles in length which was erected by private persons after 1883. I think it was erected about the year 1891, under an arrangement with the Department, by private owners at their own expense, and they control the line at the present time. It connects two residences with the general , telephone exchange of a certain town. So far as ‘I know that line belongs to the people who erected it, and they can prevent any one else from using it. Why should we not say in this clause “prior to the year 1911”? That would make it quite clear that all privatelyerected lines under the old purchase telephone system in whatever part of Australia they may be, may be acquired by the Government. I think that if the Minister will look into the matter he will see that it would be better to leave out all mention of the year 1883.

Senator PEARCE:
Minister of Defence · Western Australia · ALP

– I understand that the reason why the year 1883 is mentioned is that since that time no telephones have been constructed under the system which we are trying to do away, with. It is quite true, as Senator W. Russell says, that under the Commonwealth Act private telephones are erected, particularly on sheep stations; but all of these are erected under licences. The telephone and telegraph systems of the Commonwealth are a monopoly, and no private person can erect a telephone to-day, even at his own expense, except under a licence given by the Department. Up to 1883, private telephones were erected by the Department at the expense of the owner, or by the owner at his own expense ; but since that year they have been erected by the Department at the expense of the owner.

Senator Millen:

– Or under a licence granted by the Department.

Senator PEARCE:

– Yes. There is no necessity to interfere with any of the private telephones erected since 1883.

Senator ALBERT GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913

-Colonel Sir Albert Gould- - The Commonwealth has the power to take them over.

Senator PEARCE:

– We have the power to take them over, either under the State Acts or under the Commonwealth Act.

Senator CHATAWAY (Queensland) it is safeguarded in every way, it is not for me to complain. Probably the Government will have to come along with a Bill by-and-by to cover the case which I have mentioned, and which I believe the Minister will find has been overlooked.

Amendment (by Senator Pearce) agreed to -

That after the figures “ 1883,” line 7, the words “ by the owner “ be inserted.

Clause, as amended, agreed to.

Title agreed to.

Bill reported with amendments, and passed through its remaining stages.

page 3772

ARBITRATION (PUBLIC SERVICE) BILL

Bill received from the House of Representatives.

Motion (by Senator McGregor) agreed, to -

That so much of the Standing Orders be suspended as would prevent the Bill being passed through all its stages without delay.

Bill read a first time.

Senator McGREGOR:
Vice-President of the Executive Council · South Australia · ALP

– In moving -

That this Bill be now read a second time,

I must congratulate the Senate on the progress which it is beginning to make.

Senator Millen:

– I thought you were going to say the time which you are giving us to consider these matters.

Senator Sayers:

– We are getting one Bill on top of another.

Senator McGREGOR:

– There is plenty of time to consider this Bill. I hope that honorable senators will not lose their opportunity of giving fair consideration to an important measure dealing with the Public Service. We know that in connexion with Conciliation and Arbitration laws there may be disabilities which affect some sections of the community, and the public servants of the different States. The Commonwealth stands in an entirely different position, as it has the power to make laws which will be likely to bring about peace and harmony between the public servants of Australia and the officers who may have the duty of fixing the rates of wages, the hours and the conditions of labour, and other matters of that description.

Senator Millen:

– You are very sanguine.

Senator McGREGOR:

– I think it is always best to be sanguine, and never to try to meet the devil half-way, never to try, as Sir John Forrest has said, to take the fences before one comes to them. If members of Parliament will follow that principle I am sure that they will get along much better than they will if they try to do more than is really necessary at any particular time. The members of this Parliament have had various complaints from time to time with respect to the treatment of the Public Service, not only under the Public Service Act, but by the officer who was appointed for the purpose of classifying the Public Service, deciding the fates of wages, and fixing other conditions in accordance with the Act. We know that in different places complaints have been made, and honorable senators must acknowledge that, in some instances, they have been justified.

Senator W RUSSELL:
SOUTH AUSTRALIA · ALP

– Especially in South Australia.

Senator McGREGOR:

– I am not going to say in South Australia more than in any other State.

Senator W RUSSELL:
SOUTH AUSTRALIA · ALP

– I say it.

Senator McGREGOR:

– Of course, the honorable senator is perfectly at liberty to say in South Australia. But the senators from other States have received similar complaints. In travelling through the States I have heard complaints that the public servants are not satisfied with the present wages and conditions.

Senator Sayers:

– They are not satisfied with this Bill.

Senator McGREGOR:

– We shall see about that. It is an honest attempt to give them an opportunity of getting satisfaction. In the Conciliation and Arbitration Act provisions had to be made for dealing with larger bodies of employes than may exist in some branches of the Public Service. Under that Act the minimum number of employes who can register as an association is 100. In the Public Service it would be found rather difficult, in some instances, to find 100 employes engaged in a branch or calling, and consequently provision is made in thisBill to obviate that difficulty. Any number of employe’s can band themselves together as an association. But it must be remembered that they can only obtain the benefits of conciliation and arbitration through an association just the same as the employes in any other industry can do.

Senator Stewart:

– What about an association of over 100 persons?

Senator McGREGOR:

– The principal Act provides for an association of 100 persons or over. But this Bill only requires that there shall be an association, and threefifths of those comprised in an association can appeal to the Arbitration Court. Suppose, for instance, that the heads of the seven Departments formed an association, and that five of them felt that they had a grievance, the latter could go before the Arbitration Court.

Senator Millen:

– If three out of five form an association?

Senator McGREGOR:

– Yes ; only the Bill provides that any number can form an association. I think that honorable senators will see that, under the Bill, there is ample opportunity for those following every occupation in the Public Service, if they have a grievance, to get it adjusted before the Court. The Public Service stands in an entirely different position from the employes of a private individual, and the public servants have a right to expect Parliament to do them justice, and to see that, in all circumstances, justice is done by them. The general public have also a right to look to Parliament to see that fair play is meted out to them, and that they are not burdened to any serious extent by any decisions which may be given in the Arbitration Court with respect to public servants. Consequently it is provided that when an appeal is made to the Court by any body of public servants, and a decision is arrived at, the decision shall be reported to the AttorneyGeneral, and to the Prime Minister, and then laid on the table of each House within fourteen days, ‘if Parliament is sitting, or if it is not sitting, within fourteen days after it re-assembles. If the members of Parliament see that by that decision full justice is not done, any member of Parliament can move to disapprove of the award.

Senator ALBERT GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913

-Colonel Sir Albert Gould. - So that after you get an award from the Court, Parliament can reject it if it sees fit. An extraordinary position altogether !

Senator McGREGOR:

– It is not an extraordinary position.

Senator ALBERT GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913

-Colonel Sir Albert Gould. - What is the good of going to the Court at all?

Senator McGREGOR:

– Because Parliament would never be able to deal with the complaints of the Public Service in the same way as the Court could deal with them.

Senator ALBERT GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913

-Colonel Sir Albert Gould. - What is the duty of the Public Service Commissioner?

Senator McGREGOR:

-I will deal with him in a minute or two. The Conciliation and Arbitration Court, under this Bill, can take cognizance of any appeal or complaint that is made by any bodyof public servants. That Court can even make an award which is not or may not be in accord with any law or regulation of the Commonwealth. But when such an incident occurs, such decision has to be reported to the AttorneyGeneral, and the President of the Court has also to furnish a report showing in what respect his award goes beyond the laws of the Commonwealth- The matter has then to be reported to the Prime Minister, and the papers must be laid upon the table of both Houses of this Parliament. They are to remain upon the table for thirty days. Honorable senators will see the necessity for allowing for a fairly long time in connexion with any decision of the Court which goes beyond the laws of the Commonwealth. If within the thirty days any member of either House of the Parliament moves a resolution, which is carried, disapproving of the decision of the Court, it cannot take effect. But if, at the end of the thirty days, neither House of Parliament sees any reason why such a motion of disapproval should be carried, the award will have the force of law, notwithstanding any other law existing in the Commonwealth at the time. The consent of Parliament will be regarded as having been given to the award. Senator Gould has asked why the decision of the Public Service Commissioner should not be all that should be required for the government of our Public Service.

Senator ALBERT GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913

-Colonel Sir Albert Gould. - Subject to the control of Parliament.

Senator McGREGOR:

– I have already explained that it would be impossible for Parliament to deal with all the difficulties and grievances that might arise in the Public Service. By this Bill, an opportunity is afforded to public servants collectively to lay their grievances before the Conciliation and Arbitration Court. All the aspects of those grievances can be reviewed by the Court, and evidence taken. We in Parliament cannot take evidence. We cannot do a number of things that the Conciliation and Arbitration Court can do. What position does the Public Service Commissioner occupy? He stands in the position of an authorized employer on behalf of the Commonwealth. He is placed there by the Government to represent the Commonwealth. Through him., the Commonwealth employs its public servants. The Commissioner may be the wisest and best of men, and yet, in dealing with the ramifications of the Public Service, is it not possible that he may make mistakes sometimes? It is possible that the public servants and Parliament itself may consider some of his actions to be mistakes. Nevertheless, he may be firmly convinced that he has done the right thing, and the public servants may be unable to get redress when they appeal to him. He can say, “ That is my decision, and you will have to abide by it.” The only remedy which the public servants then have is to come to Parliament. But they cannot come to Parliament as a body. They can only approach some member of Parliament, or some member of the Government. According to the Public Service Act, however, it is not within their province to do so. They have no right to appeal to members of Parliament.

Senator Millen:

– What will happen if the public servants are dissatisfied with the decision of the President of the Arbitration’ Court ?

Senator McGREGOR:

– The public servants. I say, are debarred by the regulations of the service from laying their grievances and complaints before members of Parliament. Of course, I know that they do so.

Senator Sayers:

– What will happen if they do not accept an award of the Court?

Senator McGREGOR:

– I have every confidence in the wisdom and foresight of the members of the Public Service. Whenever they have a grievance, whenever they suffer from any disability, and they find that Parliament has provided them with a Court to which they can appeal, and when they realize that that Court has the confidence of the people of Australia, it will be wise on their part to say, ““Let us go and lay our grievance before this Court.”

Senator Sayers:

– Will they not have to accept the decision of one man?

Senator Vardon:

– The South Australian officers went to the Court, and they were not satisfied.

Senator McGREGOR:

– What Court did they go to?

Senator Vardon:

– The High Court.

Senator McGREGOR:

– They went to the High Court, not for a rectification of grievances, but for an interpretation of the law. The question of law at issue was decided against them. Consequently, they were not satisfied. I am sure that Senator Vardon does not expect that any body of public servants, or any body of the public, when they have a grievance, and go to the High Court, will be perfectly satisfied- if, in consequence of a legal technicality, the decision is against them. We have to accept decisions of the High Court as final. Our personal opinion may be that a particular decision is wrong. But we must have finality. The only other thing that can be done in regard to the Public Service is to amend the Public Service Act. That probably will be a very tough job when it takes place, because the diverse opinions held by members of the Senate and another place as to how public servants ought to be treated, would render it -almost impossible for us to come to a conclusion on that point. As in regard to all legislation, a compromise would be effected, and it would not give satisfaction to all the public servants. But here we place a Court at their disposal.

Senator Sayers:

– And they say that that will not be satisfactory.

Senator McGREGOR:

– The Arbitration Court is an authority which all other employes in the Commonwealth have to be satisfied with. Does the honorable senator imagine for a moment that all employe’s are satisfied with all the decisions of the Conciliation and Arbitration Court?

Senator Sayers:

– No, I do not.

Senator McGREGOR:

– Does the honorable senator imagine that the people of Australia are satisfied with all the decisions of the High Court? What do they do when they are not satisfied. They just have to grin and bear it.

Senator Millen:

– Or strike.

Senator McGREGOR:

– I do not advocate strikes. Strikes may be necessary sometimes; but we deprecate them. If Senator Guthrie liked to open his mouth wide enough, he could tell us that the seamen of Australia were not altogether satisfied with everything they got under an Arbitration award lately given.

Senator ALBERT GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913

-Colonel Sir Albert Gould. - They did not do so badly.

Senator McGREGOR:

– I know that they did not do badly ; and for what they did not get, they will just have to wait patiently until another opportunity offers, when perhaps they will be able to make out a better case.” The Constitution probably would not allow the President of the Court to give them all they wanted. Probably the same thing will occur in connexion with the public servants when they go to the Conciliation and Arbitration Court. They will be like most other members of this enlightened community. They will ask for a great deal more than’ they really want, hoping to get a near approximation to what will be satisfactory to them. I do not justify anything of that kind ; but we know that it is done in connexion with Wages Boards and Arbitration Courts. We are now doing all we possibly can to provide a tribunal to do justice to the public servants, and to enable them to get fair play. We are also providing, by this legislation, that the measure of justice and fair play meted out to them will have to come before this Parliament in order that we may see that nothing is done in behalf of one section of the community which will be to the prejudice of another. When we consider that the Public Service Commissioner has been endeavouring to do his best, and has not given satisfaction, we may hope that by this legislation the Arbitration Court will be able to take a hand in endeavouring to adjust those grievances and complaints. That will be another step towards effecting a remedy. If that fails, there will be Parliament to appeal to. If the public servants require more than that, I am afraid that they will have to wait until they die,and get it at the great Judgment Day. We are doing the best we can for them under present conditions ; and I am sure that no body of legislators could do more. I therefore have much pleasure in moving the second reading of the Bill

Debate (on motion by Senator Millen) adjourned.

page 3775

BUDGET

Debate resumed from 26th October (vide page 1857) on motion by Senator McGregor -

That the papers be printed.

Senator ST LEDGER:
Queensland

– May I be permitted to make a personal explanation? It is apparent to all that we shall shortly have the Estimates before us in the form of the Appropriation Bill, and, consequently, it seems to me that it would be a waste of time, at this stage - of the session, to debate the Treasurer’s Budget. I therefore propose to defer any remarks that I might otherwise wish to make on that subject until the Estimates are under review.

Senator McGREGOR:
. Vice-President of the Executive Council · South Australia · ALP

– May I be permitted to point out to honorable senators that this is about the only opportunity that they will be afforded of discussing the Budget. In the very nature of things, the Estimates cannot reach us till very late in the session. If no honorable senator has any desire to speak upon this motion to-night, the Government cannot help that. If honorable senators wish to postpone its consideration, it will be necessary for one of them to move the adjournment of the debate.

Senator MILLEN:
New South Wales

– In falling in with the suggestion of the Vice-President of the Executive Council, I would like to say that the rapidity with which business has been dealt with by this Chamber has taken the Opposition somewhat unawares. Indeed, I understand that even the Government themselves are shocked. In these circumstances, I beg to move -

That the debate be now adjourned.

Question resolved in the affirmative.

Senate adjourned at 8.48 .p.m.

Cite as: Australia, Senate, Debates, 6 December 1911, viewed 22 October 2017, <http://historichansard.net/senate/1911/19111206_senate_4_63/>.