House of Representatives
23 July 1901

1^st Parliament · 1^st Session

MINISTERIAL STATEMENT
- Order of Business
PETITIONS
QUESTION
- PRESS TELEGRAMS : TASMANIA
JAPANESE: NORTHERN TERRITORY
QUESTION
- COMMONWEALTH STATISTICAL PUBLICATION
CUSTOMS BILL
QUESTION
- STANDING ORDERS COMMITTEE
ADJOURNMENT
- Friday Sittings. - Members’. Railway Passes

Mr. Speaker took the chair at 3.30 p.m., and read prayers.

page 2823

MINISTERIAL STATEMENT

Order of Business

Mr BARTON:
Minister for External Affairs · Hunter · Protectionist

.-May. I make a short statement before business is called on, in. order to inform the House that I have heard from my honorable colleague the Ministerfor Home. Affairs that he;is not yet able- to leave his bed, and as I’:think:he should not be unduly hastened- back to the work of the House, I shall endeavour, if “I can, not to proceed -with the second reading, debate on the InterState Commission.Bill - during this week. To-day we shall ‘ take the Customs Bill inasmuch as it is desirable that it should go up. to the Senate as soon as possible, and if there is any time left after, the completion of that Bill we shall go on with the State Laws and Records Recognition Bill.

page 2823

PETITIONS

Mr BAMFORD:
HERBERT, QUEENSLAND

– I beg to present a petition to the Postmaster-General from278 residents of Chillagoe, praying, for. relief in a certain direction.

Mr SPEAKER:

– The petition is addressed, not to the House, but to the Postmaster-General, so that. it.cannot. be received.

Mr Barton:

– I shall take, charge of the petition for that Minister.

Sir LANGDONBONYTHON presented a petition from the South- Australian Chamber of Manufactures, representing the’ manufacturers and producers of that. State, protesting against- the proposed, inclusion of’ snipping . rates and charges within the scope of the Inter-State Commission.

Petition received and read.

page 2823

QUESTION

PRESS TELEGRAMS : TASMANIA

Sir EDWARD BRADDON:
TASMANIA

– asked the Prime Minister,upon notice-

Whether the Government will,: reconsider the question of reducing telegraph rates for press messages to Tasmania, with the- view of doing bare justice to the people and press of that State by placing them, in this respect, upon a footing of equality with those of other States.

SirPHILIP FYSH. - To reduce these charges would involve, paying, on behalf of the press, the charges for transmission by a privately-owned cable over which the Government have no control, and this the Government are not prepared to do.

page 2824

JAPANESE: NORTHERN TERRITORY

Mr.HIGGINS.- In asking the. following question standing in my name, I may say to the Prime Minister, that I am anxious to know if the information I have received is correct -

Whether any communications have been made of recent years between the Government of Japan and the Government of South Australia, or any public man of South Australia, with re- gard to introducing Japanese into the Northern territory?

Whether it is possible to obtain all such communications and to lay them on the table for the information of honorable members of this House ?

Mr BARTON:
Protectionist

– I am not aware of any such communications, but am having inquiries made respecting them, and, if any be obtained, I shall be pleased to lay copies of them on the table for the information of honorable members.

page 2824

QUESTION

COMMONWEALTH STATISTICAL PUBLICATION

Mr WILKS:
DALLEY, NEW SOUTH WALES

– , for Mr. Bruce Smith, asked the Minister for -Home Affairs, upon notice -

Whether, having regard to the importance of preserving in a compiled form acomplete record of the commercial, industrial, and social conditions of the people of the Commonwealth at the date of union, he will take into consideration the question of authorizing some competent person to collect the necessary data, with a view to the issue of a Commonwealth statistical publication as soon as possible after the appointment of a Commonwealth statistician ?
In view of the frequent conflict of statistical authority on many important matters, will he consider the necessity for makingsuch on appointment at an early date, and of submitting a short Bill as soon as the state of public business will admit ?

Mr BARTON:
Protectionist

– On behalf of my honorable colleague I have to say that the matter has not been lost sight of, and, as soon as the state of public business will allow, some action will be taken to deal with this important question.

page 2824

CUSTOMS BILL

In Committee (consideration resumed from 1 8th J uly, vide page 2800) :

Postponed clause 239 -

In every Customs prosecution the defendant shall be competent to give evidence.

In every Customs prosecution except for an indictable offence, the defendant shall be, compellable’ to give evidence and if called as a witness for the, prosecutionshall be liable to crossexamination as a witness adverse to the prosecution.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– There was very good reason for this clause not being passed when it was lost before the committee. The opinion was expressed, by some honorable members at any rate, that the clause was an entirely new departure from the ordinary course of legal procedure. It is all very well to give -the defendant an opportunity, as isdone in some of the States under local legislation, to be sworn and give evidence in the same way as an ordinary witness, but when it is asked, as this clause provides, that the defendant shall be compelled by the prosecuting attorney - or by the Customs or their representatives - to give evidence, even against himself, and be treated as an adverse witness, and cross-examined, I ask honorable and learned members to consider the position we are getting into in regard’ “to this Bill. There is a certain amount of excuse, I know, for making a Bill of this nature drastic. A Bill which seeks to protect the revenue, a Customs Bill especially, must undoubtedly be more drastic than an ordinary Bill dealing with questions in dispute between ordinary citizens. I fancy the clause goes a little too far ; indeed, I might say, it goes a great deal too far. The provision seems to go beyond any similar section in the Customs Acts or theregulations at present on the statute books of the various States. Can the Minister in charge of the Bill point to any State of the Commonwealth where a clause of this peculiarly drastic nature is in force? Having provided for the most extreme fines and penalties it is possible to impose on an offender against the Customs law, it is sought to put the - Customs department in a position to force a man in the witness box to give evidence against himself, and to treat him as an adverse witness. That is beyond anything I know of in the way of legal enactment or urisdiction in any of the States.

Mr KINGSTON:
Minister for Trade and Customs · South AustraliaMinister for Trade and Customs · Protectionist

– As the honorable member has pointed out, Customs laws stand on a very different footing from other laws. Where it is necessary to protect the revenue, large powers are given, especially in this connexion. The honorable member will find that the Bill throughout is dotted over with provisions enabling the Customs authorities to require the answering of questions in connexion with Customs matters. The second part of the clause simply goes a little further.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– A little 1

Mr KINGSTON:

– The second part of the clause simply puts it that the duty of answering questions shall not cease on the hearing of the information, but that the party who knows all about the matter shall not only have an opportunity of telling what is intended by the clause, but may be called on by the prosecution to tell what are. the facts. Why should we not get at the facts as readily as we possibly can 1

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– Why should we not put the defendant under a thumb-screw 1

Mr KINGSTON:

– If a man has not done wrong, he has nothing to fear. If he tells the truth and the facts are in his favour, so much the better for him. But we take it that if we are forced to call him, seeing that his interest is altogether against the prosecution being sustained, we have a right to examine him just as we would an adverse witness ; and the Bill draws the presumption that he is an adverse witness from the simple fact that he is there for the purpose of resisting the infliction of the penalty sought to be imposed. J do not hesitate to put it to honorable members that this clause tells for truth and justice, and that under it an innocent man has nothing to fear.

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

– If the principle laid down by the Minister is to be adopted in Customs prosecutions, it ought to be adopted in all prosecutions. It is the principle which underlies the French law, and if it be Adopted in this Bill, it ought to be adopted in other Bills. The argument used by the Minister that an innocent man has the best chance of proving his innocence, and the guilty man is more likely to commit himself, is the very argument used in favour of the principle underlying the system of French jurisprudence, under which the defendant is examined and asked either to convict himself or prove himself innocent. “Unless we are prepared to adopt the principle throughout the criminal law, we have no right to adopt it in this Bill.

Mr BARTON:
Minister for External Affairs · Hunter · Protectionist

– It would be as well to clear away any misapprehension there may be in regard to this clause, by a very simple statement. Where an ordinary witness is called for the prosecution in a criminal case, or for the plaintiff in a civil proceeding, if his evidence turns out to be adverse to the side on which he is called, it is an ordinary practice for the court to allow , an opportunity tocross-examine him. The only further step taken in the clause is that where a person or defendant compellable to give evidence is called for the prosecution, it shall be taken as a matter of course, if necessary, that he is adverse because of his position. He is there, if he defends the case, to avoid liability, and is therefore adverse to the prosecution. This is simply a provision to enable a person, under the circumstances, to be examined as a witness adverse to the prosecution, that being his real character.

Mr. V. L. SOLOMON (South Australia). - This clause is a total topsy-turveydom of the old British axiom, that every man is deemed to be innocent until he is proved to be guilty.

An Honorable Member.- That does not apply all round.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– I venture to think that it would be a disgrace if such a provision appeared on the statute-book of any British colony or dependency. With the exception, I think, of South Australia, there is no State where they permit in certain cases the defendant or accused to give evidence on oath. That is permitted by special statute in South Australia ; but here, after first of all making throughout the Bill the most stringent regulations in favour of the Government and the Customs authorities, doing everything possible to protect the revenue by, to my mind, absurd fines and penalities in some instances - - -

Mr Kingston:

– It should be protected.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– I am not arguing that it should not. But I say that after protecting the revenue fairly and’ properly, it is now proposed that if a man be accused of some offence against the Customs Act, of some endeavour to obtain an advantage to the detriment of the revenue, that man shall be taken away from his position as defendant, in which, under ordinary British law, he would be deemed an innocent man until proven guilty by the other side, and shall be compelled to go into the witness box and be cross-examined by the prosecutor, in order to prove that- he has been: guilty, and thus make himself- liable to certain pains and. penalties. It is- a departure, of a most serious nature,, and. I. ask honorable membersto consider it. very carefully. If, as an honorable member behind me just now said,, we are going toadoptthis French. system of: adjudicating, this system which British law hitherto has notrecognised

Mr Mauger:

– It is recognised at the present time.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

-Perhaps the honorable member -for MelbournePorts will take the opportunity of: telling, the committee where it is recognised.

Mr Mauger:

– I can assure the honorable member that there is a precedent.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– I admit that it is right to allow a defendant to give evidence on his own behalf: if he chooses, but to force- a defendant-

Mr Kingston:

– To tell the truth.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– Does the Minister seriously think that a defendant will be likely to tell the truth, when he has pleaded not guilty 1 The Minister might go a little further and adopt- some of the other continental modes-

Mr Higgins:

– But crimes are here exempted.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– Indictable offences are exempted.

Mr Higgins:

– That is crime.

Mr.V. L. SOLOMON. - Does the honorable and learned member defend the clause as applied to the cases of - misdemeanour ?

Mr Higgins:

– Certainly.

Mr.V. L. SOLOMON.- I am extremely sorry that thehonorable. and learned member makes such an admission. I hope that other honorable members do not defend . such a departure as this clause proposes. It is a departure which should be carefully considered by every one who respects the British spirit of fair play upon which most, of our laws are framed, and I hope that the committee will hot agree to it.

Mr KIRWAN:
Kalgoorlie

– I feel inclined to support the position taken up by the honorable member forSouth Australia, Mr. Solomon. The provisions of this clause seem to. me to be contrary to the accepted principles of British law. I’ think that the first portion of the clause will meet all the requirements of the case and that the second part should therefore be eliminated. The first portion of the clause states that the defendant shall be competent to give evidence. That seems to me to go far enough, -because if we compel a defendant to give- evidence he may be required either to commit perjury or to. admit his own guilt. That seems to . be hardly a. fair position in which to place a man. If a defendant gives evidence in his own favour his testimony will be discounted, and he will thus be placed in a very awkward position indeed. I sincerely trust that the committee will carefully consider the clause and endeavour to minimize its ill effects.

Amendment (by Mr.V. L. Solomon) proposed -

Thatsub-clause (2) be omitted.

Question - That the words proposed to be omitted stand part of- the clause - put.

The committee divided -

Ayes … … … 24

Noes……… 16

Majority………8

Question so resolved in the affirmative.

Amendment negatived.

Clause agreed to.

Postponed clause240 -

In every Customs prosecution the averment of the prosecutor or plaintiff contained in the information declaration or claim shall be deemed to be proved in the absence, of proof to the contrary but so that -

When an intent to defraud the revenue is charged the averment shall not be deemed sufficient to prove the intent and -
In all proceedings for an indictable offence the guilt of thedefendant must be established by evidence.

Mr. G. B. EDWARDS (South Sydney).Here is another instance- of the extreme severity of the Bill. This clause provides that the simple averment of the prosecutor shall be deemed to be proved in the ab-. sence of proof to the contrary, and I think that goes too far, as proceedings may be instituted against a defendant who may not be able, possibly owing to some accident, to be present. I think the Minister ought not to be too stiff-necked - if I may use the term- throughout the consideration of these clauses. He has practically had his own way in nearly everything that has-been proposed in the Bill, and the provision I have referred to seems to be a useless little bit of; tyranny which might reasonably be modified in some form so that innocent persons who may be unable to be present to defend themselves, may not be declared guilty on the simple averment of the prosecution.

Mr KINGSTON:
Protectionist

– But the honorable memberfor South Sydney must see that” it is an almost inherent principle, recognised in the administration of justice in civilized communities, that when any one is prejudiced in his defence by his inevitable absence, he shall be entitled to an adjournment - subject to terms that can generally be arranged ; and possibly where the reason that the honorable member has mentioned exists the same principle would apply with all the greater force. The clause sets forth plainly what is to some extent a principle of all Customs Acts, particularly in connexion with a class of cases such as this, which we have hedged round with certain conditions, taking them out of the criminal category.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– Still they are cases where imprisonment may follow.

Mr KINGSTON:

– Yes ; in cases of nonpayment of penalty. We are bound tohave some mode of enforcing penalties ; but it is provided that no man shall have the stigma of fraud attached to him except in cases where itisabsolutelyprovedagainsthim ; and I think that we may fairly extend the principle that the burden of proof shall lie on the defendant to cases such as are contemplated here. The defendant knows all about it - it is his duty to comply with the Act, and no man can better tell whether he has complied with it or not. These are not cases where any private individual is trying to get the better of another.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– Can the honorable and learned gentleman give us: an instance of the class of: case he -hadin his - mind, when he drafted the Bill ?

Mr KINGSTON:

– A variety; of: cases. In the case of aninvoice;let the defendant prove his invoice ; and if the question is as to’ whether1 duty has been, paid, let him prove that he has paid, the duty - the defendant knows all about it. This clause- simply summarizes the principle which is contained in various other Acts, and which is necessary to. effectual administration of Customs’ laws, and, hedged round as it is here, I venture- to think that it is not likely to be attended’ with any degree of hardship.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– I asked the Minister: if : he could give us an. instance of the kind of’ case he had in view when he framed the Bill; and he has replied in an airy sort of way,- stating that he had: a variety of cases in view, such as those relating to invoices and so on. Referring for one moment, for the purpose of argument, to clause 220, we find that a person who makes an entry that is false in any particular is liable to a penalty of £100. In the event of that £100 not being paid, the defendant would be liable to six months’ imprisonment. Even though the defendant might not be aware of -.the falsity of the entry the very fact of- its being false in any particular would render him liable to six months0 imprisonment, and now we find that under this clause it is provided, against all the accepted rules of British law,, that the onus of proof that he is not guilty is to be on the defendant. The committee refused to alter a clause just now with regard to witnesses, but I am sure that- the spirit of British fair play, which I think imbues, every member of this committee, will not allow them to pass a clause like this. Referring to the clause which has just- been passed, a man may becompulsorily placed in the witness-box and cross-examined, to prove that the entry to whichhe had. signed his- name was in some way false or incorrect, and may be fined £100 or. imprisoned for six months. And now it is proposed, under’ this clause, that the mere averment of the prosecutor contained in the information shall be deemed to be proved,, in the absence of. proof to the contrary. Is there any law in any British speaking community that throws the onus of proof upon the defendant instead of on the prosecutor1?

– Not in revenue cases.

Mr POYNTON:

– There may be certain exceptions, but I think this is a very serious departure from the principle. In the previous clause we have gone beyond anything to be found in any statute-book.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– And in this clause, too.

Mr POYNTON:

– We make a man convict himself, and then under this -clause an averment of the prosecutor only is to be sufficient evidence to make a man punishable by fine.

Sir EDWARD BRADDON:
Tasmania

– The Minister has said, if I understood him correctly, that this legislation has been practically taken from other . customs laws.

Mr Kingston:

– No ; I said there were various provisions as to presumptions.

Sir EDWARD BRADDON:

– The Minister cannot point to any single customs law in winch there is such a principle as this involved. I am just as much in favour of protecting the revenue as he or any one else is, but I say, letus protect it by just methods, and not introduce into the Commonwealth legislation principles which are a danger to the people, and entirely out of keeping with all the provisions of the law, not only of the mother country, but of the different Australian States.

Mr MAUGER:
Melbourne Ports

– I know it is, but not the indictment, and the indictment is the larger word including the information. We have limited ourselves by the use of the word “ information “ here. It seems to me that there is some inconsistency in using the word “information “ in this clause, and making an exception of “indictable offence” in the preceding clause.

Mr Kingston:

– If the honorable member will move an amendment substituting “ indictment “ for “ information “ I “will consider it.

Mr. G. B. EDWARDS (South Sydney).The honorable and learned member for Indi has given an additional reason why the Minister should adopt the suggestion which has been made, and withdraw the clause for the purpose of drafting one which will be consistent with the other provisions of this Bill, and which will also, in the fullest measure to which he is prepared to go, meet those who are opposing this clause on account of its drastic nature. When it is urged that this deals with cases in which only fines may be imposed, it will be seen that whether there is to be imprisonment or no imprisonment in such cases, will depend on the defendant’s power of paying the fine, and consequently we shall have a law which will subject one man to imprisonment under the conditions of this clause, while another man who may be better off will not have to submit to those conditions by reason of the fact that he will be able to pay the penalty. The thing is so fraught with objection that I think the Minister will be acting wisely in the interests of the Bill, and in the saving of time, by withdrawing -the clause, and seeing how far in the meantime he can meet what I hold to be the reasonable objections of members on both sides, against its drastic nature.

Mr. V. L. SOLOMON (South Austrafia). - The Minister has dealt with this question in a way which is extremely clever from his point of view, but which is liable, I think, to mislead the committee. He takes, first of all, the absence of direct evidence, and the desirableness of the Customs being able to insist upon a different course ‘ of procedure from that adopted in every other case where a citizen may offend against the law. He quotes from the English Act and wants to make the committee believe that the corresponding section in that Act really justifies clause 240. What is that section ?

If in any prosecution in respect of tiny goods seized for non-payment of duties, or any other cause of forfeiture, or for the recovering any penalty or penalties under the Customs Acts, any dispute shall arise whether the duties of Customs have been paid in respect of such goods,

Of course it naturally follows that if a dispute arises whether goods found in the possession cif a man have paid the customs duties; it will be impossible for the prosecuting department to prove a negative, but it is possible if these goods have been properly and lawfully unshipped, and have paid duty in the ordinary course, for the defendant to prove that they have paid the necessary duties. or whether the same have been lawfully imported or lawfully unshipped,

If the duties have been properly and lawfully paid the goods have been lawfully unshipped under proper Customs entries. or concerning the place from whence such goods were brought, then and in every such case the proof thereof shall be on the defendant in such prosecution; and where any such proceedings ure had on the revenue side in the Exchequer division of the High Court of Justice the defendant shall be competent and compellable to give evidence.

Will any honorable member say that that section is. on all-fours with clause 240, which reads -

In every Customs prosecution the averment of the prosecutor or plaintiff contained in the information, declaration, or claim shall be deemed to be proved in the absence of proof to the contrary.

Then come two exceptions, namely, intent to defraud the revenue - and an intent to defraud the revenue would be perhaps under-valuation or misrepresentation as to the contents . of cases - or proceedings for an indictable offence. And the third exception, which is not in the Bill, but which we have the wording of from the Minister, is where imprisonment can be directly given without any fine. I do not think, as the honorable and learned member for Indi has pointed out, there is such a case in any clause of the Bill. The clause he alluded to points to imprisonment for a second offence, presumably where the fine has not been paid.

Mr A McLEAN:
GIPPSLAND, VICTORIA · PROT

– Where the offence has been repeated a second time.

Mr Isaacs:

– The imprisonment may be given in lieu of or in addition to the fine.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– I thank the honorable and learned member for the correction. It is without the right of release on payment of the penalty. But clause 240, which says that in every case the averment shall be considered to be proved in the absence of proof to the contrary, would deal with all the offences under clause 220. Amongst those offences, of course, there are some which come within the four corners of the section quoted from the English Act, where it is stated by the defendant that the duties have been paid. The only man who can prove that the duties have been paid will be the defendant. It is impossible for the Customs to prove a negative in such a case. But with the exception of that case and the case of goods unlawfully unshipped, which is the same thing put in another way, there is nothing in the English Act which says that in every Customs prosecution the averment shall be deemed to be proved in the absence of proof to the contrary. There is nothing in that Act which throws the onus of proof entirely on the defendant in cases such as those coming under clause 220. lt is not an indictable offence under clause 220 to obtain drawbacks which are not payable, or to pass a document purporting to be a genuine invoice when it is not, or to make any entry which is false in any particular. These are all comparatively small misdemeanours, which are punishable by a fine of £100, and, where the man is unable to pay, it means an imprisonment for six months. In all cases of that kind the onus of proof would lie on the defendant. I feel sure the committee will not agree to such a drastic clause. We have already passed a clause which is extremely drastic, which is almost unknown, except, as I have heard from one honorable member, in connexion with the factories of Victoria.

Mr Mauger:

– And the Licensing Act.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– I believe there is a section in the Licensing Act which says the exposing of any light in the bar, or the shining of a light through the window of a bar during improper hours, shall be prima facie evidence that the licensee is guilty of selling liquor. I shall not go into the curious legislation of that State, which is different from that of any State I know of. Such legislation may or may not be necessary there, but I do not think it is necessary in the Commonwealth, even although we have the example of those two Acts. I trust that the committee will consent to strike out the clause. Of course, if the

Minister should think it necessary afterwards to put in a clause altering the provisions, which are too drastic, and which every one will admit are too drastic, he will have ample opportunity of doing so. There is no immediate hurry for a day or two to pass the Bill. It will probably have to be recommitted for the purpose of rearguing several questions, and I hope the Minister will not seriously oppose the omission of this clause with a view to giving honorable members time to frame a clause which will be more in keeping with the feelings of the committee, not only in order to do justice to the revenue, but also to the man in the street ^ who may be accused of an offence against the Customs Act.

Mr KINGSTON:

Mr. G. B. EDWARDS (South Sydney). - I recollect a Crown Prosecutor, whom I know very well, regretting that he was nc longer able to “bag” them.as.he-used to “ bag them.” If that Crown Prosecutor had had the assistance of the Commonwealth Minister for Trade and Customs, he would have been able to “bag them” to his heart’s content. If we only adopted the principle that a man charged with murder was the best able to explain whether he had committed murder or not, and that it should be put on him to prove his innocence - if we adopted the principle that a man charged with theft was best ableto explain whether he was guilty or not, then we should be consistent ; but I see no reason whatever for having a law of this kind in dealing with Customs affairs, and another law dealing with other offences.

Mr Kingston:

– It is always done.

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

– I wish to ask your ruling, Mr. Chairman. The Minister moved the adoption of the clause, and subsequently submitted an amendment whereupon I moved that the clause be struck out. Which of these two amendments take precedence? Are the committee, in voting on the Minister’s amendment, in any way bound, so that they cannot vote for the omission of the whole clause 1

The CHAIRMAN:

– The question before the Chair is that certain words are proposed to be inserted after the word “offence.” These words will be submitted to the committee, who will decide whether they shall be inserted or otherwise. Then the clause will be put, as amended or otherwise, to the” committee, and the honorable member for South Sydney will have an opportunity to vote in the affirmative or negative.

Mr FISHER:
Queensland

– I shall feel compelled to support the Minister. However much One may dislike compelling people, who are charged, to give evidence in indictable offences and serious crimes-

Question - That the clause, as amended, stand part of the Bill - put. The committee divided -

Ayes … … … 27

Noes … … … 18

Majority … … 9

Mr KINGSTON:
Protectionist

– I move-

That the following new clause be inserted, to follow clause 213 : - “ No proceeding for anything done for the protection of the revenue in relation to any Tariff or Tariff alteration proposed in Parliament shall, except as mentioned in the next section, be commenced before the close of the session in which such Tariff or Tariff alteration is proposed.”

– I thank the honorable and learned member. An ‘application was made for the purpose of testing the question, and the view then expressed by the court was to the effect, practically, that the practice was illegal, but that as they were applied to to exercise special jurisdiction for the purpose of interfering with it, they decided to hold their hand, and they did hold their hand, but if we were to read between the lines, we might come to the conclusion that if the application had been in another form they would have given a different decision. Further, as far as_ Victoria is concerned, there is a case - Stevenson’s, decided in 1865 - where the practice was held to be illegal, and the note of the case, reported in the Victorian Law -

Reports, volume 2, Wyatt, Webb, and a’Beckett, is as follows : -

Customs duties had been demanded by the agents oE the Crown, under the authority of a resolution of the House of Assembly only, and had been paid by several importers. The importers sued the Grown, under the Act No. 241, for a return of the duties as money had and received by the Crown to their use. On rule wim for nonsuit, Held, that the action would lie on the implied contract to repay that which it would be inequitable to retain.

No proceeding shall be commenced against any officer for anything done in execution of or by reason of his office, until one month next after notice in writing shall have been delivered to him.

And there is a further provision in clause 213, that the proceedings shall be commenced within a certain time. Then the new clause provides that -

No proceeding for anything done for the protection of the revenue iri relation to any Tariff or Tariff alteration proposed in Parliament shall, except as mentioned in the next section, be commenced before the close of the session in which such Tariff or Tariff alteration is proposed.

– Tes, it is only paid in trust. It is subject to our control.

Mr Higgins:

– It is only, a bookkeeping entry.

Mr KINGSTON:

Mr ISAACS:

– No. This Parliament has the right to pass legislation which creates rights, which imposes obligations, upon subjects, and this Parliament can, in creating these legislative rights and obligations, attach to them anycondi- ‘ tions it likes. It may pass any Bill, a Customs Bill for instance, in which it will say that officers are to have certain rights, and merchants are to have certain obligations, and it may in that Customs Bill do what is sought to be done in this clause, and say that with regard to any right given by that legislation, or with regard to any obligation created by that legislation, notice shall be given. . It may say that no action shall be brought, and it may do anything it likes in the matter of rights and duties created by itself; but it cannot say that in regard to rights and duties given by the Constitution. The Constitution is the paramount and supreme law. Just let us see what could be done, if this can be done. Parliament may pass a Tariff law making discriminations between every State, and providing that nobody shall bring an action in respect of them for one session or for twenty years. I want to see the distance* to which this is to be carried. “Very far back in the history of the United States this question was practically tested. In 1803 the Congress passed a law in which they gave power to the Supreme Court to issue a mandamus. There had been an appointment of a Mr. Marbury by the President of the United States as a justice of the peace’ for the district of Columbia. The seal was affixed to his commission, and everything was ready ; but a new President came in, and the commission was not delivered. Mr. Marbury then sued Mr. Madison, the Secretary of State of the United States, and applied to the Supreme Court for a mandamus under an Act of Congress to compel him to hand it over. I am not going to take honorable members through all the intricacies of the case ; but the court decided that the Constitution did not permit this mandamus to be given in the case of original jurisdiction. A mandamus could be given in the appellate jurisdiction, but not in the original jurisdiction. In the course of observations on the case the Supreme Court said : -

– It is not a clear matter to any one.

Mr Kingston:

Sir JOHN QUICK:

Mr Isaacs:

– The Parliament would never rise without adopting a Tariff.

Mr McCAY:

– We must rise at the end of three years from the 9th May, if we do not rise sooner. The session cannot last beyond May, 1903. The- honorable and’ learned member for Indi says that theHouses would never rise without agreeing to a Tariff. Now, supposing the Tariff brought down by the Government were a » protectionist Tariff, and that in this House the majority of members strongly approved of it. This is all pure supposition, but it is a possible case; Supposing, further, that in the Senate the majority strongly disapproved’ of the Tariff, and that Chamber sent us down a long series of suggestions that we should reduce our duties, saying - “ We feel very strongly that this Tariff is too high, and it must therefore be brought down.”

An Honorable Member. - Hear, hear.

Mr McCAY:

– An. honorable member on the opposite side of the House says “ Hear,, hear,” and I take that as a very reasonable indication of certain possible events, and it ‘ is on that account that I have a fear of the sessional arrangement only. We are told that if the proposals passed in this House do not meet with the approval of some honorable members here, the other Chamber will back up the minority in this House. We were told that in so many words. However, I am not discussing this question as a free-trade or protectionist matter, but I am merely assuming that a protectionist Tariff is approved of by this House, and disapproved’ of by the other Chamber - it may be the other way about. If, however, the other House feels strongly, and any difference of opinion does arise between the two Houses, we may expect that both Chambers, in the. exercise of their rights, will adhere strongly to their respective views. I know of no question that arouses a stronger feeling than does the fiscal question, and I know of none in which members consider themselves more justified in holding to their views and using whatever weapons they can to enforce them. If the Senate should disapprove of the Government proposals, and offer a lot of suggestions for alterations, they may tell us that if we do not agree to the alterations they will not pass the Bill - and it might be a perfectly legitimate position for them to take up. In such a case, where should we be at the end of the session? It is not inconceivable that we might be forced by the circumstances to .agree to alterations that we otherwise would not consent to. Circumstances might compel us to agree to a Tariff that we did not like.

Mr Higgins:

– That is the fault of the Constitution.

Mr McCAY:

– I am pointing out objections to the proposal of the honorable member for Indi.

Mr Isaacs:

– I personally have no objection to what the honorable member says, but I say what he describes would never happen, because the Senate would see that if their objections were persisted in the provisional Tariff would last for ever.

Mr McCAY:

– I was going to put that aspect of the case. If we pass an anticipatory Act covering the session only, those who approve of the Government proposals will be practically at the mercy of those who disapprove of them.

– The difference is this. Under one proposal, ‘if a dead-lock arose, and the Houses could not agree,. the-State Tariffs- would romain. The other proposal gives us-a federal Tariff- or none at all. Let us be sure of one Tariff’, until we get another. If i this- the provisional Tariff ceased, owing to the session closing without the Tariff, proposals being, settled, the State Tariffs would still: be living, and we should have them “to fall back upon. Such a position would be perfectly fair to both parties, because that is the situation to-day. We have the State Tariffs now, and, we should have the State Tariffs then.

Mr Higgins:

– Public opinion would never allow vis to sit three years, before dealing with the Tariff.

Mr McCAY:

– The point is who is to give way in regard to the Tariff - the man on the high, or the man on the low platform ? That is. the question.

Mr WILKS:
Dalley

That is the gist of the clause. Clause 212 provides -

It shall be lawful for any officer to whom notice of proceeding shall have been given at any time within one month after such notice to tender amends to the plaintiff, his attorney or agent, and in case such amends be not-accepted to plead Such tender. . . .

In the case of any collections, it may prove by the ultimate action of Parliament in regard to the Tariff to have been excess collection. It may be that all the duties proposed in the Tariff will not be carried exactly in the shape proposed, and then there would have to be refunds. A limitation is placed on actions or suits against officers with respect to the general objects of the Bill, and opportunity is given to tender amends. Whether actions or suits are brought against officers or against the Crown is immaterial so far as the proposed new clause is concerned. In either case it is intended that protection shall be given for two reasons. The first reason is that what is called the overcollection of the duty is really only the taking of a security which does not go into the permanent revenue, but is recoverable in the event of the Tariff’ not being finally passed. In the next place there ought not to be taken away from the authorities the opportunity of making this class of amends instead of waiting until the case gets into court, lt has been urged, however, against the clause that because it imposes a limitation on the right of procedure, that being a right conferred by the Constitution, the limitation is therefore unconstitutional. The remedy is not affected. If amends are not made - and every person against whom a demand is made should have an opportunity of making amends - the remedy of the person to whom amends are not tendered is to bring an action. The principle of postponing such an action has already been established hy this committee in clause 210 with the limitations put upon it by clause 212. The object here is in the case of excess Tariff collections to postpone action not for a month but for the session. If there is the greater opportunity allowed to make amends by a refund, pending the legalization of the collection, there is no harm in that. If the result is that the collection is legalized, then the

Constitution by that legalization has been complied with, and there ought never to have been any right of action at all. I submit, therefore, that whichever way we look at it, this clause is in all its aspects just, and, that in the second place, there is no offence against the Constitution. If there be any doubt on the part of honorable members as to its justice, that is one thing. But I cannot conceive that there could be any doubt as to that. As to its effect under the Constitution, that has been well considered by Ministers. I admit the importance and good faith of the objections that are offered, and 1 admit that they are offered by high authorities. We have done the best we can to consider this matter ; we have arrived at a certain conclusion, and I think we are bound to maintain our opinions with respect to the constitutionality of the course proposed. Therefore, we must support this clause. I wish, before I forget, to make it quite clear that a particular course of action with reference to the Tariff is not to be assumed from any shape in which this clause is proposed. That is to say, the course which the honorable and learned member favours - and which I should strongly favour if I could feel that it was a safe one to the country - will still be considered, and if found to be safe it will be adopted. Otherwise I cannot promise.

Mr Isaacs:

– In regard to the provisions of clause 212, I would point out that they rather relate to actions against an officer for a breach of his power under the Act, and of course Parliament may put any limitation it likes upon that. I was drawing a distinction between offences against the provisions of this Bill and ‘those of the Constitution.

Mr BARTON:

– I can quite see that clauses 210 and 212 are as the honorable and learned member describes them. In the first instance he suggests an illegality, which he says is a breach of the Constitution. I cannot see that in a matter of procedure - and this is a matter of procedure I take it - there is any distinction in principle. As to the case of Marbury v. Madison I would point out that that case arose out of the following circumstances : - Mr. Marbury, amongst other gentlemen, had been designated a Justice of the Peace. He was to be appointed, but his commission was retained in the hands of the Secretary of State - James Madison. Mr. Marbury took proceedings in the Supreme Court of the United States to obtain an order to compel the Secretary of State to issue the commission. Upon his case a number of others hung. Under the Constitution the whole of the judicial power of the United States was “vested in one Supreme Court, and such superior court as Congress from time to time shall ordain or establish.” In the distribution of this power it is declared that “ the . Supreme Com-t shall have original jurisdiction in all cases affecting ambassadors and other public Ministers and consuls, and those in which the State shall be a party. In all other cases the Supreme Court shall have appellate jurisdiction.” After that, Congress passed a.n Act which, of course, either had to be within the Constitution, and, therefore, valid, or without the Constitution, and, therefore, invalid. That Act gave the courts authority “ to issue a mandamus in a case warranted by the principles and usages of law in courts appointed or persons holding office under the authority of the United States.” The jurisdiction to issue a mandamus was invoked in this case as if it were an original jurisdiction. The difficulty in the case was that the Supreme Court finding that, except in cases to which the State was a party, it could have nothing but appellate jurisdiction, not original jurisdiction, held that it had no power to issue a mandamus because no Act could authorize the breach of the Constitution which would be comprised in giving the Supreme Court original jurisdiction in one of those cases in which the Constitution virtually said it had not such jurisdiction. That was. the case of Marbury v. Madison, and that is the case which the honorable and learned member for Indi applies here. But I fail to see that such a case applies to a matter like this in which the question is one of procedure, not one which prevents any action being brought, or -which denies the effect of the Constitution, but one which imposes on the suitor simply those liabilities to certain forms of procedure which might be imposed by any legal procedure Act in the world. I admit that there is much to be faced in the argument ; but at the same time it does not seem to be a conclusive one, because I believe that this clause can, and would be read by the High Court of Australia as one imposing merely a limitation .with regard to procedure, and in that respect I think it would be held to be good. Upon that, of course, I do not speak with the enthusiasm of a partisan. We do not need to be partisans in . a matter of- thissort. We mustendeavour to advise the House as well as we cam I do not see that the objections which. have been urged ‘as- to the power of this Parliament- which -is plenary within the wholeambit of.the Constitution . gran ted to us- destroy the power of Parliament to impose this limitation in the public -.good, for the purpose of protecting the revenue and as a matter of mere justice to those who are trustees of that revenue. Justice to the trustees . means justice to the people.

Mr.HIGGINS (Northern Melbourne).I have waited until I could find out what could be said upon the other side of the House in regard to the alternative proposals before the committee, because I feel that if an attempt be made to take any party advantage of the difficulty created by the Constitution*, it will be a lamentable thing for the country. I have had the advantage of hearing not only the speeches- of three members of theOpposition, but also that of the Prime Minister, and if the latter be taken to be final, I apprehend that it is the intention of the Government to push through these clauses at all hazards. It is a matter for regret that we have not the presence during, this very momentous ‘discussion of the leader of the Opposition, who, by his ability and skill-, could not only enlighten the committee, but could also assure us of the attitude which he would recommend his friends to take in this difficulty. I have, however, been exceedingly gratified to find from the utterances of two ait least of the Opposition speakers that they do not desire to take any advantage of a difficulty which, if they were on this side of the House, they would have to face themselves. The sentiments of the honorable member for South Sydney and of the honorable member for South Australia, Mr. Poynton, will I think be appreciated. not onlyby honorable members on this side, but by Australia as a whole. I gather that there is no desire whatever to take advantage of this problem forparty purposes, or even for the purpose of pushing.one’s views- on the- fiscal question. The utterance of the Prime Minister has mademe considerwhat will be the worst . result weshall have to apprehend, assuming that it is the intention of the Government to push through these clauses, and that their view is- wrong. If there is anything certain in this world, it is that there will be a tremendous- strain on the part ofimporters and merchants to obtain trade advantages an connexion with the –new duties, . and 1 think it . is almost as certain . that this- question- -will be tested in the law courts-. The proposal made bythe Minister for Trade and Customs has strong grounds of expediency to support it. He has argued that.it wouldbe . moreexpedient to follow his method.; but the honorable member for Indi has argued that whether it would be expedient or notit would not be legal, andthere is wherethe difficulty arises. I have always- felt that it is one of the drawbacks of our Parliament that our debates will turn so much upon the question of legality and illegality in placeofexpediency and- inexpediency.

Mr Mahon:

– We have too many lawyers.

Mr HIGGINS:

– The position is that too much is- being put upon the lawyers, and that is what I object to. I say that itwould be to the best interests of the country that we should as far as possible do what is expedient and notwhat is legal for the country. It is the unfortunate result - and perhaps, having, a weakness in that direction, I may be allowed to say it- of a want of elasticity in the Constitution. If our Constitution were more flexible, as I urged it should be, we should lean less upon the question of legality or illegality - less upon the courts - and more upon the people.

Mr Winter Cooke:

– How would the - honorable member have met this difficulty ?

Mr A McLEAN:
GIPPSLAND, VICTORIA · PROT

– By putting language in the Constitution which could be interpreted.

Mr HIGGINS:

– Exactly ; if it. were possible to put in such language ; but we have made our bed, and on it we must lie, and I shall do my bestto get over thedifficulty as well as circumstances will allow. The proposal Of the Minister for Trade and Customs is to legalize the system which has been adopted in England and” in Victoria and in other . places, and to say that no action shall be brought against the authorities until the end of the session, except under certain conditions:That seems very plausible, bu t the Minister has not ‘.told u s whether, after he brings down his- Budget resolution, he will collect duties onthe basis of . the new Federal Tariff, or upon the basis of the highest duty, whether it isunder the old Tariff orunder the new Tariff. I. admit 1 there is a good deal of reason for his not disclosing his intention. In the meantime, however, before the uniform -Tariff is imposed, before the end ‘of the session, duties will have to be collected. Now, what I understand to be the intention of the Minister for Trade andCustomsis, that having by the end of the session fixed’ what shall be the duties and the uniform duties, he will refund the excess duties - if any excess: duties have been collected-to those who have paid them. I may pass by the incidental fact that that money will not get back into the pockets of the consumers. Every one admits that atax upon kerosene or tea will increase the prices of those articles to the consumer. They do not make that admission with regard to protective duties, but still there is no doubt whatever that the prices of various articles will be enhanced by the imposition of revenue duties, and thatthe refunds of duty on such articles will not go back tothe consumers. The idea of the Minister for Trade and Customs, as I understand it, is to make his Federal Tariff retrospective to the date of the bringing inof the Budget.

Mr Kingston:

– Yes.

Mr.HIG GINS.- Very well. That seemed to me to be a very ingenious way of meeting the case - and I congratulate the Minister for Trade and Customs on an ingenuity which exceeds the ingenuity of most men - but in the firstplace I do not think we can make a uniform Tariff retrospective. That isa. conclusion I have come to aftera good deal of thinking out of. this Constitution. It is very much a legal question, and I ask honorable members to look at a few sections of the Constitution Act, which deal with it. In the first place, the Constitution provides, in section 86, that when the Commonwealth is established, all the duties of customs and excise are to pass over to the federal power ; so that, ashas happened, the Commonwealth has been collecting all the taxes which the States have hitherto collected, including the Inter-State taxes. Then the Constitution says, in section 88, that -

Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth.

I agree with the honorable and learned member for Indi, that there is no ‘power to impose anything butuniform duties in this Parliament ; and I read the section I have quoted with section 51, which- is to the effect that all taxation by -the Federal Parliament is to make no differentiation between the States. There is to be no discrimination whatever. Then section 89 says -

Until the imposition of uniform duties of customs there is to-be a certain -bookkeeprag.’between the States. Itwillberecollectedthatunder section 90, as soon as the uniform duties of customs are imposed, the power of the Federal Parliament to impose duties becomes exclusive. The Constitution says, in section 90, that -

On the imposition of uniform duties of customs all laws of the several “States imposing duties of customs or excise . . . shall cease to have effect.

– It means management, not imposition.

Mr HIGGINS:

– It is mere management. If honorable members look at section 108, they will see that it is there laid down that -

Every law in force in a colony . . . relating to any matter within the powers of the Parliament of the Commonwealth shall, subject to this Constitution, continue in force in the State ; and until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and repeal in respect of any such law as the Parliament of the colony hud until the colony became a State.

That is most express and most distinct that up to the time that there is a law of the Federal Parliament - a law, mark you, not a mere regulation of customs or anything of that sort - imposing duties - -the States are to say what shall be the duties, although the Federal Government has to collect thom. Then under section 109, if a law of the Federal Parliament conflicts- in this matter with a law of the States, our law prevails.

Mr Piesse:

– When it has been properly made.

Mr HIGGINS:

– Quite so. What I say) in short, is this: - Up to the precise moment when the Governor-General’s signature makes the law, with regard to the Tariff operative, the State law must prevail, altered or unaltered; for the States can alter if they think fit. Therefore, not only have we no power to impose any but uniform duties, but I say, also, that we cannot make our first uniform duties retrospective. We must make them future, as the Constitution means that until they are actually imposed, the States duties shall prevail. Now, of course, if that be the correct view, it would,

I am afraid, knock the proposal before the committee kite-high. I should like to see the Minister’s proposal successful, and it is only because I wish to see it successful that I have gone into the subject with such care, to see if we could not by any means under the Constitution, avoid the serious disaster which would occur in case this course should be found in the courts of law to be impossible. But, says my honorable and learned friend, the member for Bendigo - and the right honorable the Prime Minister corroborates him - “ Here we are simply dealing with a matter of procedure ; we ure simply saying under what conditions there may be an action against an officer of the Customs or against His Majesty.” A corporation with power to make by-laws cannot limit the actions brought against itself and its officers. A corporation like the London County Council has certain powers given to it by the Imperial Parliament. The County Council could not introduce regulations or by-laws making a provision that its officers and its servants are not to be sued for a certain time if they are doing an illegal act. And I say that the relation of our Federal Parliament to this written Constitution is very similar to the relation of a municipal corporation to the supreme Legislature. We who are to .be controlled by the High Court cannot say that there shall be no action brought against us. That is a matter for the Constitution. To bring it to the test, suppose a specific case. Suppose the case of a cargo of kerosene brought to Melbourne. There is no duty on kerosene at present. Supposing that the Minister begins to collect under this clause 3d. per gallon on that kerosene, I say that if the importer paid the duty and brought an action against th King, or against the Customs officer, to recover the money so paid, this clause would not be a defence to the action. That is the very test. The importer would say - “I paid you 3d. per gallon on this kerosene, and you had no power to exact that 3d. from me.” “But,” the Minister would reply, “ here is this provision in an Act of the Federal Parliament that no action .is to be brought.” The importer would reply -

II What have 1 to do with that? I stand upon the Constitution, which is higher than an Act of Parliament. That is the point. The Constitution provides that until uniform customs duties are imposed, and are made law by Act of Parliament, the State duties are to prevail, and under the laws of the State I am entitled to import that kerosene free.” I think that there is a great deal of force in what was put by the honorable and learned member for Indi. It is not a matter of procedure which we can control. It is for some one else to control it, and the Constitution is the controlling power. I say that no person who is under an obligation as a debtor, or in any other capacity, can dictate the conditions under which he is to be sued.

Mr A McLEAN:
GIPPSLAND, VICTORIA · PROT

– Could the local courts consider that question 1

Mr.HIGGINS.- I thank the honorable member for the interjection. I have gone into that matter, and I think that the local courts could. I was hoping that we could get out of the difficulty by saying that there was no harm done. I have alluded to the local courts, and I may say that I do not think the High Court will be constituted until the end of the session, even if it is then constituted. I have my own views as to the expediency of postponing its creation for at least a year or two. Looking at the probabilities the customs duties will be made law before the High Court is constituted, but then comes the question, and a very pertinent question it is, which the honorable member for Gippsland asked, could the local court look into this thing 1 I think it could.

Mr Isaacs:

– Suppose the Tariff were passed two years before the date on which it was made retrospective, there would then be no two years’ period possible under thatsection at all.

Mr HIGGINS:

– I take it there is a feeling in the committee that we are not going to take any party advantage of this. It is not that the Ministry in the least are suppliants to the committee. They-have put their views before us. The honorable member-for Dalley will, no doubt, recollect the sentiments and the aspirations of the-, great man whose name is given his district, and I think he would’ be the last person to take an advantage of this sort which is not. a difficulty created by the Government, but a difficulty created by,the Constitution under which we are determined to wonk as well as wre can. The honorable member -for Dalley said to-night that he had himself no suggestion to offer, but he would oppose both of the proposals brought down- by the Government. May I «ay with. all respect to the honorable member, that that is not the attitude in which. we ought to face this particular problem. Ever, if the Government is not entitled to the help of the Opposition, the country is entitled to it ; and if there is a proposal i which appear?, reasonable to solve the difficulty we may fairly ask the Opposition to help us out of it. If we could resolve that a Bill should, be passed making the Tariff as laid upon the table law until the end of the session - if we could agree to a self-denying ordinance that we would not discuss it, but would let it pass through both Houses in one evening. , allowing the standing orders to be suspended for the purpose, it would be a tremendous gain to this country, and it would be no loss to either- side in thi-; Tariff debate which is impending.

Mr Isaacs:

– Treat it like a resolution, of the House to protect the revenue.

Mr HIGGINS:

– Exactly, treat it .in the same spirit ; but of course the Constitution compels us to go further than a. resolution of one House; we must get the concurrence of both Houses, as to an Act of Parliament. Then I think we ‘should solve the difficulty. As I have watched him working this Bill through, I do not think the Minister is the man to absolutely and obstinately adhere to a position which he has taken up distinctly, if he sees a better position. At the same time I should like from some responsible leader of the Opposition a statement that he will use the utmost of his influence with his followers to get the resolution carried.

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– Does not the honorable and learned member think it would bo a fair thing to adjourn this matter until the leader of the Opposition can be here?

Mr Kingston:

– Surely some of his lieutenants can speak for him.

Mr HIGGINS:

– I would not like to say anything about the proposal to adjourn the matter. This Bill has been discussed for some weeks. This is only a clause in the Bill, and it was well known that it would be on this week. We would like very much to have the assistance of the leader of Opposition. His acuteness would help us, and I feel sure it would assist the Ministry and the country very much if we could only be assured that he would use his influence’ to prevent any parliamentary advantage being taken of the matter. If that were understood, we could go through this without much difficulty. I may state that if the Government is determined to try this experiment, rather than have any party advantage taken of it, I will vote with them. But at the same time I can see clearly that there is a national solution which, can only be reached by a national union.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– We are willing enough to make the best of it, but not to make the best of it in such a way as to give an undue power to the Government and their supporters in this House and in the Senate-

Mr.PIESSE (Tasmania). - I think we-, are practically in regard to this question where we were some days ago when it was . discussed and a suggestion made, which has . been made during this debate, that the only safe way out of the difficulty was to endeavour to pass a Bill which would validate the Tariff when it was laid on the table,, and that the Bill should have currency for the session only. The honorable member for Corinella has made the best admission in favour of such a course, while he has also raised some considerable objections to it He has told us that it is the best proposal, and that it is the only proposal made which will satisfy the people of Australia. If that be the case it seems to me that, despite all the difficulties, it is the proposal we ought to try. If we do not try it, and we find ourselves in great difficulty by-and-by, we shall have to reproach ourselves for not having taken the course which was pronounced to be the best, and the only course which would satisfy the people of Australia. I do not see how the Ministry, the Government, and Parliament will be free from very serious difficulties in the way they are proposing to proceed. We all sympathize with the Government. They will, from the tone of the debate, see that no one desires to do anything else than assist them in the difficult circumstances in which we find ourselves placed. But I do not know what would be the effect of passing the Tariff in the way the Minister proposes. He proposes, I understand, that the Tariff Bill shall be, as Tariff Bills usually are, ante-dated to the date at which the resolution was brought in,; and that all duties which at the time of passing the Tariff are altered shall be subjected to be accounted for to . those who paid them - that there shall be a refund, if there has been paid more than is ultimately demanded in the Tariff Bill.

Mr Kingston:

– The usual course.

Mr PIESSE:

– The usual course ; but I want to know, what is to be the course in regard to duties which are sure to- fall out of the Tariff directly Inter-State free-trade comes into force? We might, perhaps) look with some degree of equanimity on a proposal which had reference only to new duties, for, although there might, be the- great objection that money would be taken from the people of the country which would be returned to the importers, and not to the real taxpayers, that would be, perhaps, comparatively only a small sum. But, if this Tariff be dated back, will the collection of the Inter-State duties be valid for the time, or will these also be subjected to be accounted for in the light of- the Tariff which, is ultimately passed ? If that be : so, we shall have- a very much larger sum in jeopardy, and we- will have to be very careful indeed. The honorable and learned member for Northern Melbourne has clearly pointed out to us that if there is to be a continuance of the State Tariffs until the uniform duties are imposed, many serious questions will arise- in that connexion. Take for instance the Tariff’- for spirits, which varies from 12s. to15s. or 16s.

Mr Kingston:

– Yes, it is 16s. in Western Australia.

Mr PIESSE:

– Then the excise varies from 8s. to 10s. or 12s. The Tariff on spirits might not be las. nor 12s., but it might be 14s.; and ifit were 14s. would the Minister collect in Western Australia 16s. on spirits, and would he collect 14s. wherever the duty was less than 14s.? If he did that he would, in effect, collect a differential Tariff. The law might not. state it to be a differential -Tariff, but in effect it would . be so. The excise duty would possibly be less than the customs- duty. Would spirits which had paid the excise in Victoria, where brandyis manufactured, be free to go into a State without further duty, or what would be the position ? These are difficulties,, and there are many others I could state if I chose to refer to them, which face us in the way in which the Government desire to go. But all these difficulties could be got over if the Government were to accept the proposal already made to validate the Tariff. If this proposal be accepted, we get the further advantage of the settlement, for a time at any rate, of the question, and every one concerned, both taxpayers and traders, will know where they are, and that there will be no alteration until there is a final settlement of the Tariff. We shall also have what we desire; namely, a definite date on which Inter-State free-trade will commence. It seems to me that although there are grave defects whichever way: we look, we shall not have doneour duty unless we try to get thissolution accepted, and put the responsibility on those who see it to be their duty to oppose it.

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– I propose to say one or two words on this point; and I recognise the difficulty just as other honorable- members- do. I may say at once that I do- not agree with the proposal of the Minister as last submitted. It does not seem’ to me that that proposal, will- have any effect, even if it be passed. That is tosay, -the Constitution, as has been clearly pointed out by so many honorable and learned members to-night,, will override any Bill we may pass in this particular direction. As I view this proposal of the Minister, it simply means that we ask men who- may beaffected by the Tariff to forego any legal rights they may have, while the Minister during the session tries- to put it out of their power to take any action whatever. The- Minister has- told us that what he proposes is to bring in a clause validating all that has been done for the period of the session, so taking away any right of action, whatever it may be. I take it that the right of action contemplated by the Minister is the right of action as to the validity or otherwise of the collection of the duties. There can hardly be any other seriousaspect of the Tariff question that could come within the purview of the law. All other considerations are minor, and the question is : is a man boundto pay the duties or is he not.? That, is more likely than* any mother- to be the -question submitted tothe law courts’. The Minister wants to take away from the citizens of the Commonwealth the right to- appeal to the law courts.. In other words,. he seeks to take away a constitutional right undoubtedly possessed by every trader in the Commonwealth- under the Constitution.

As lias been pointed out by various honorable members, we cannot do any suchthing. That seems to me so clearly a common sense reading of this matter that I do not see how the Minister can take any other view. However, the Government consider that they can override the Constitution, which is what is contemplated by this new clause, and it is for us to say whether we shall follow them in the course they propose, and if not what other course we shall adopt. I admit that the question is one full of difficulty, and it seems to be full of. difficulty because of something which, the Conventions have left undone. I think there is no doubt that if this difficulty had been put clearly before the different Conventions they would have got over it. However, they have not done so. They have created tlie difficulty and left it for us to deal with. What is the course that we ought to takeunder the circumstances ? Various appeals have been made to the patriotism of the Opposition. As the Opposition are appealed to to treat the Government fairly in this matter, and as they are asked not to take any party advantage of it, would it not be fair to give the Opposition as a body time to consider it and to arrive at a ‘ definite conclusion concerning it 1 The leader of the Opposition is absent to-night. He was unavoidably detained. We expect him here to-morrow. It does seem, therefore, that it would be a fair thing under the circumstances to. adjourn this debate until to-morrow, so that the leader of the Opposition, and possibly some other legal gentlemen, may be present to assist in solving what is undoubtedly a very serious question.

Mr Kingston:

– What is the honorable member’s idea about it ?

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– I will tell the right honorable gentleman. 1 dare say that my opinion about a legal matter is not of much value.

Mr Kingston:

– I mean as to the Opposition’s attitude ?

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– I am. going, to state my attitude. Before doing so I should like to refer to what the. Ministry would gain by the proposal whichhas been suggested by the Government, and by honorable members on the other side of the House who have criticised their actions. Undoubtedly it seems to me theMinistry would gain from the fiscal point of view. The imposition of this law would certainly result in the destruction of our Inter-State Tariffs. Inter-State freetrade would come immediately into operation, and with the State Tariffs destroyed in. what position should we be ? Honorable members who suggest that we ought not to take into contemplation the possibility of any difficulty arising. in connexion with this Tariff, are asking us to bury our heads in the sand. That is undoubtedly a contingency to be reckoned with, particularly in view Of the fiscal opinion of another place. It is of no use shutting our eyes to the fact that there may be some difficulty in getting this matter settled by both Houses. Undoubtedly the Ministry therefore would have a point of advantage in their favour if we absolutely destroyed our State Tariffs before we came to finally consider the Commonwealth Tariff. Under all the circumstances, therefore; what is the best course to take is, I admit, a matter of some difficulty. I cannot help feeling that since this proposal of the Ministry would be worth nothing in the law courts - as has been testified to by every legal member of the House- who .has spoken outside of the Ministry - the proper thing to do is to stick to the old-time custom and. to introduce the Tariff on a resolution of Parliament.

Mr Mahon:

– That would be illegal, too.

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– That remains to be seen. It has not been seen to be illegal in connexion with the State Tariffs. The matter has been taken to the law courts in connexion with the establishment of the Tariffs of the various States, and so far no difficulty has been interposed which has prevented the Government from carrying out its course of action in that regard. I believe that if we follow the old practice which has governed the action of the State Governments for generations past, and under which all our Tariffs have been imposed up to date, we shall be- following a course which is more likely to receive the approbation of the Supreme- Court than is a proposal of the kind contemplated in this clause. If there were a doubt in the matter the J Judges would inquire, what has been the custom- in regard to these, things, and what was the intention of Parliament. If they found that the intention; of Parliament was to impose a Tariff and to abolish the Inter-State. duties at the same moment, it seems to me they would rule that the imposition of duties by resolution was legal, since there is no other course specifically mentioned in the Constitution. That is my view of the case, and I think that the Government ought to take upon themselves the responsibility of their own action in this matter, and impose the Tariff the moment the resolution has been submitted to this House. The question of passing a Bill through Parliament, such as has been suggested, as a way out of the difficulty, does not seem to be the proper thing to do. If any flaw occurred in connexion with the Tariff, and the case were taken to the Supreme Court, and the Supreme Court came to consider the fact that the Government had legalized by an Act of Parliament a Tariff which they had no intention of adopting as a permanent Tariff, I think that the case for the Ministry might be seriously prejudiced. If we legalized a Tariff which we believed solemnly was not going to be the permanent Tariff, that would prejudice any case which this ‘ Parliament might have in the law courts of the country. Th safest course would be to follow the lines of experience, and in the absence of any specific point in the Constitution controlling this matter, adopt the old well-worn custom of imposing these duties by resolution of ‘the two Houses.

Mr Isaacs:

– Not a resolution of the two Houses.

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– By the resolution of Parliament.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– By resolution of one House only

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– Yes; by resolution of one House only. That seems to be a far better course to adopt than that of going through the farce of enacting by Bill a Tariff which we do not mean to be permanent, because that would be the position in which we should be placed if we adopted the suggestion of the honorable and learned member for Indi. We should be passing a law saying, “This is the Tariff of the Commonwealth Parliament,” when we knew at the same time that it was not intended to be the Tariff of the Commonwealth Parliament, but to have effect only until we could frame a Tariff, conformable to the opinion of the majority of the two Houses of Parliament. I therefore think that the more straightforward course, as well as the safest course, will be to impose the duties by resolution of the House.

Mr. WINTER COOKE (Wannon).It seems ‘ to me that the proposal of the

Government is much more likely to bring about a uniform Tariff than the suggestion put forward by the honorable and learned member for I ndi. What I. mean is, that if the committee adopts the proposal of the honorable and learned member for Indi, there will undoubtedly be a great discussion upon it in another place, and in all probability very many weeks will elapse before a conclusion is arrived at. If we accept the proposal of the Government, we shall be no worse off, at all events, than if we adopt the course suggested by the honorable member for Parramatta. Following the legal view taken by the honorable and learned member for Indi, the honorable member for Parramatta says that the proposal of the Government is contrary to the Constitution; but even if that be so, we shall be in no worse position than if we adopted the immemorial practice of Great Britain and of the” various States in collecting the duties.

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– Only that the Ministerial responsibility would be preserved.

Mr WINTER COOKE:

– The proposal of the Government is simply that we should give legal sanction to the collection of the duties, and that the Government officers should be protected from having any action brought against them by those who import goods. Ontheotherhand,if the proposal of the honorable and learned member for Indi is adopted, we shall probably bring about the situation indicated by the honorable member for South Australia, Mr. Solomon, and honorable members who believe in free-trade will be placed in a very difficult position, because we shall have swept away the Tariffs in the various States, and we shall be in fear of losing the Tariff altogether.

Mr Isaacs:

– You prefer the advantage of a party to the integrity of the Constitution.

Mr WINTER COOKE:

Sir Edward Braddon:

– Would the right honorable and learned gentleman kindly translate that phrase?

– I am not asking that it should be. I think, however, that pending the consideration and final decision of a matter of this description by the High Court of Parliament, adherence to the usual constitutional practice which prevents the interference of courts for a short time until a final decision has been come to, may well be followed without going outsidethe four corners of this Act as we propose in the Bill. All we ask is that and nothing more. In view of the largeness of the issues which will shortly be involved in connexion with the Tariff, we ask in the interests of the Australian taxpayers that what is a judicial practice shall receive legislative sanction, and that we shall not be exposed to the risks to which we should be open in the absence of a provision such as this. I trust that the committee will agree to this clause.

Mr. ISAACS (Indi).- I have put my observations before the Ministry as a friend, and I have not heard anything up .to thepresent to alter my opinion. I recognise, however, that the Ministry, having heard all that is to be said, are not only willing but anxious to take the responsibility of this particular course. I think it may -lead to a lot of confusion; but to reject it sifter the strong pronouncement of the Minister might lead to other confusion of a worse sort. I am willing to vote with the Ministry on this matter, throwing the. whole responsibility upon them.

Mr Fisher:

– Is there danger ?

Mr ISAACS:

– LI think it will - lead to a great deal of danger, but I doubt even now whether it will ever become law. I think the Ministry might.have adopted the clearer and wiser course-

Mr Kingston:

– We do not forget the honorable and learned member’s suggestions We are grateful for them.

Mr ISAACS:

– There is no occasion for that; but I am sorry that the Ministry have not seen their way clear to adopt the other course. At the same time, the Ministry, notwithstanding the advice given to them, are not only willing but anxious to take this particular course, and therefore I am prepared to support them.

Question - That the clause be agreed to - put. The committee divided -

Ayes……… 30

Noes………11

Majority……… 19

Question so resolved in the affirmative.

Amendment (by Mr. Kingston) proposed -

That the following new clause be inserted, to follow the last new clause : - “ The High Court, of Australia or the Supreme Court of any State, on the application of any person who desires to commence any proceeding mentioned in the last section against an officer, may require the officer to give security to the satisfaction of the Court to abide the result of the proceedings, and in default of the giving of such security may sanction the immediate commencement of the proceedings.”

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– I fancy that this clause will require to be altered in view of the alteration that has been made in the previous one. There is no allusion in the clause just passed to “ an officer.”

Mr Kingston:

– Yes, there is.

Sir EDWARD BRADDON:
Tasmania

– The word “ officer “ having been left out of the new clause just passed, is not the use of the word in this clause a little bit hazy ?

Mr KINGSTON:
Protectionist

– No; I think the clause as it stands is quite right. It speaks of “an officer.” Actions may be against the State, or they may be against an officer. This proposed new clause provides that where a person desires to commence an action against an officer, the court may require that officer to give security, and, if he does not do so, the court may sanction the immediate commencement of proceedings. Where the action is against a State, no security is necessary.

Mr ISAACS:
Indi

– I would point out to the Minister that, although the limitation to “officers” has been omitted from new clause 213a, that clause has been inserted in a division of the Bill headed “ Powers of officers,” and, as by the Acts Interpretation Act such a heading is part of the Bill, it would seem that those words would govern the whole of the clauses in the division, so that, unless some alteration is made, there is a danger of the clause still being limited to actions against officers.

Mr Kingston:

– I shall look into the matter again.

Mr PIESSE:
Tasmania

– As I understand ‘the object of this clause is to continue, as to Western Australia, what is the rule now. Jam,- when it is exported to Western Australia from Victoria or Tasmania, will be allowed drawback on the value of the sugar which is contained therein. When the article reaches that State it is there subject to a particular duty, and the only doubtful point in the clause might be made a little clearer by the insertion of the words “ in the State in which the goods are sent and” before the word “whilst.” With that alteration the clause will provide that there shall be drawback allowed in the State from which the goods are sent, so long as duties are imposed on such goods in Western Australia under the powers reserved to it in the Constitution.

Mr.HARPER, (Merrida). - I can scarcely understand how the clause will effect the object which the Minister has in view. When he stated the case he referred, as an example, to Queensland sugar. When the Federal Tariff has come into force, Queensland sugar will be duty free, unless there be an excise duty imposed ; but section 95 of the Constitution provides that Western Australia is to have the privilege of imposing certain duties of customs, apart from the Federal Tariff, upon, goods passing into that State, and not originally imported from beyond thelimits of the Commonwealth.

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

– That is on InterState products and manufactures.

Mr HARPER:

– On the products of the StatesWestern Australia will have the privilege of imposing a duty, and the Minister proposes, I apprehend, that such articles on being sent into that State should be subject to drawback, but inasmuch as the Customs department will have received no duty on the goods unless it be an excise. duty - and according to the clause, drawbacks are limited to import duties - there is no drawback apparently provided for in the case of an excise duty. I can scarcely see how the clause applies, and what is the use of it, because goods, the production of any of the States, will necessarily not pay any duty to the Government at all.

Sir George Turner:

– On the material they will have paid the duty, and surely a refund of that ought to be made.

Mr HARPER:

Mr Kingston:

– Sometimes it will.

Sir EDWARD BRADDON (Tasmania). - The honorable and learned members for Corinella and Indi have a facetious way occasionally of sounding the “view-halloo,” and starting a hunt of some Ministerial proposal, and when the hunt is in full cry dropping those who follow and running with the pursued. That has struck me as humorous and amusing in its way. I am not going to join in the hunt. I look on the proposal in the new clause as a very just and proper one. Surely, under the special circumstances conceded to Western Australia - that of being allowed to continue to impose import duties - it is right and proper that goods subject to duty on importation to any other part of the Commonwealth should be subject to drawback when sent to Western Australia. Happily, it is not for all time that Western Australia will have to be regarded as a foreign State, but it has to be so regarded at present, and goods sent there should be subject to the same conditions as to drawback and otherwise as goods sent to New Zealand or any other part of the world.

Mr E SOLOMON:
FREMANTLE, WESTERN AUSTRALIA · FT

– Western Australia will not be placed in a position different from that it is in at the present time. When goods come in in bulk, and they are afterwards sent away in bulk, the duty is allowed as drawback. With regard to spirits, I do not think, when once spirits are cleared and exported, that any duty can be allowed, because there will be great difficulty in recognising the same class of spirits that has been imported. In reference to sugar, there is at present no duty whatever in Western Australia, so that there could be no drawback. If, however, at some future time a’ tax was levied in the way of duty on sugar, then, no doubt, when it was exported drawback would be allowed. I think this is a very fair clause. It is a provision that is in existence at the present time in Western Australia, and, representing that State, I do not think it would cause any hardship.

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

– I think the clause fairly meets the question I brought forward, but I would suggest that the Minister should insert the words “ imposes or has imposed.” The present Tariff in Western Australia might have the effect of preventing the manufactures of other States going in.

Mr Kingston:

– But “imposes” would mean at the time the thing is done.

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

– But the duties might be already in existence.

Mr McCay:

– Those duties are done away with by the uniform Tariff.

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

– Not in Western Australia.

Mr McCay:

– Western Australia only differs from the other States in that one respect - that she can- tax colonial goods coming from the other States ; and, if she does not tax such goods, why is she different ?

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

– Because she is a foreigncountry, and the proof of what I say is afforded by the concrete example that I have given- - that England would be in the position to send jams into Western Australia, made out of duty free sugar, whereas we would, not. If we were to export jams to South Africa, we would get a refund of the duty on the sugar used, but if we were to export to Western Australia, we would get no drawback at all. Under the common fiscal system, after the five years’ term has elapsed, we shall have nothing to complain of, because we shall have Inter-State free-trade. As. a free-trader, I am then willing to compete with- England, but if you are going to tax- our sugar you must allow us to go practically, free of- duty in regard to the sugar that is used in the manufacture ofgoods that are exported.

Mr Harper:

– When you speak, of duty, do you mean either excise or import duty ?

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

– We want to make this Bill as perfect as possible, and when a position has been placed beforethe committee, such as- that indicated by the honorable member for South Sydney, Lam sure that honorable members will see that it is a. matter worthy of consideration. It may be a very large ‘matter.

Mr.G. B. Ed wards. - It is a very large matter.

Mr.V. L. SOLOMON.- Even though

Western Australia does not put a duty on colonial-made jams and fruits, is that any reason why the man who manufactures them-, and uses a certain amount of sugar which has paid duty, should not get a refund? If the Bill as . at present drafted does not provide for a case of this kind, some amendment should be introduced in order to secure common justice to the manufacturer of articles in which . a certain amount of dutiable sugar is used, and which are’ sent to a State outside the pale of intercolonial free-trade.

Mr. PIESSE (Tasmania). - I think there is some misapprehension in this matter. In the case of jams sent to Tasmania or Queens- land, there would be no customs duties levied, and there would be nothing except a record of the amount and value of the goods so passed into the State. There would be no need for thepayment of a drawback where the jam was made. A record will be kept ofthe consumption of goods in Tasmania, and Tasmania will be credited with the duty on the goods consumed. The honorable member has said that if Western Australia does not impose a duty on jam, why should not the manufacturer of jam get a drawback ? There would be no question of a drawback from Western Australia at all, because Western Australia- will be in the same position as the other States of the union. We should make such provision that while Western Australia exercises her . right under the Constitution to impose duties upon Inter-State goods, such drawbacks would be allowed as would equal the amount . ofthe duty she imposed. That is- the only difference between the export of goods to Western: Australia and to any other State - the amount Western Australia puts upon those goods - and then the amount of sugar duty, collected in Victoria, where the jam was made - should be credited to Western Australia.

– The honorable member for Ammonia has raised some bogey about the duty on sugar not entitling any one to this drawback. He seems to think that it is not possible for duty to have been already paid on sugar which has been used and is still being used for the manufacture of jam.

Mi*. Harper. - I did nothing of the sort.

Sir EDWARD BRADDON:

– I am glad the honorable member does not, but he spoke as if he did. I shall be glad if he will eliminate that idea entirely from his mind and assist us in doing justice to those who are entitled to it under this particular clause.

Mr. HARPER (Mernda).- The right honorable member who has just resumed his seat has referred to me as holding a certain idea. I think I know a little more about business than the right honorable member does, and also about the working of the Tariff. I have called attention to the fact that, according to the Bill, drawback does not admit of being given in any case unless an import duty on goods from abroad has been paid. That is what the Bill provides ; and if the right honorable member would apply his gigantic intellect to trying to improve the Bill itself instead of finding fault with those who are trying to do what they can to get over the defects of this clause, which does not meet the object he has in view, he would be more likely to attain his purpose. The clause provides that certain drawbacks have to be given on certain goods, the produce of the States other than Western Australia, but which are produced in the Commonwealth. If they do not pay duty there can be no drawback. How there can be a drawback upon goods that have not paid duty passes my comprehension. If the right honorable member proposes that there shall be drawbacks on excise duties, let him propose an amendment to that effect ; but that raises a very important question of principle. That, however, is the only thing that will meet the right honorable member’s object. We can only have an excise duty on sugar produced in Australia; and inasmuch as the Federal Act will not permit the Western Australian Government to put exceptional duties on goods other than those produced within Australia, it can be seen at once that it is only to that class of goods that the provision applies. Mauritius sugar would be in an entirely different position. The Western. Australian Government cannot impose exceptional duties upon goods which are imported from abroad. With respect to them, that Government has to accept the Federal Tariff. I trust I have now made my meaning plain. I say that this clause will not meet the object, with which I sympathize, of the honorable member for South Sydney. The right honorable member thought it was a good joke to refer to my district as “ Ammonia.” That may be Tasmanian facetiousness, but I resent it.

Sir John Quick:

– Does the honorable member approve of allowing a drawback on goods produced in Victoria if excise has been paid - say on Victorian beer - and the goods are exported to Western Australia ?

Mr HARPER:

– That raises the whole question of drawbacks on excise duties. As far as I can see the Bill makes no provision for granting drawbacks with respect to excise upon the exportation of goods to places beyond. this country.

Mr Kingston:

– This is a Customs Bill, and does not deal with excise.

Mr. G. B. EDWARDS .(South Sydney). - I propose to leave the matter of excise duties until we are dealing with the Excise Bill. Coming back to the question as to drawbacks to Western Australia, let rae endeavour to make it clear to the committee in- this way. Suppose we import sugar from Mauritius or Fiji, upon which we pay Id. per pound duty, and say that that sugar is turned into confectionery, where yOu have roughly speaking about the same weight of tlie manufactured article as of the raw material. Suppose that that confectionery is exported to Western Australia, and that the Western Austraiian Tariff, or the Federal Tariff, or both of them, impose a duty of £d. per pound upon confectionery. Then I say that Victoria, where the confectionery was manufactured, would pay Id- per pound upon its raw material, turn it into confectionery, and. be shut out of the Western Australian ports, for the reason that there was a duty of $d. per pound in Western Australia, whereas confectionery coming from England would be made from duty free sugar. This I say would prevent Victoria from sending confectionery into Western Australian markets. The same tiling would apply to every Other State. . 1 put it to the committee whether, if Western Australia has certain demands for commodities which the Commonwealth can supply with this fiscal help, we should allow the Commonwealth to supply those demands, or bar it by a system of duties, and allow England, Germany, and America to send in. the goods. They could do so and undersell us, and take the trade away. If the trade can be done by the Commonwealth, then, seeing that a concession has been made to Western Australia to assist her over some financial difficulties we ought to make special provision, both in the Customs Bill and the Excise Bill, to protect the natural commerce which we have had with Western Australia, and which we shall have again at the end of ihe five years’ term. If the Minister in charge of the Bill would consent to the omission of the word “ such “ in the last line of the clause that would meet the case so far as the Customs Bill is concerned. When we come to the question of excise I believe it will be found that the feeling of the community, both here and in Western Australia, is in favour of such provisions in the Bill as will not prohibit this and other States from trading with Western Australia. I propose to move -

That the wont “such,” line 9> bo omitted.

Mr KINGSTON:

– I would ask the honorable member not to press his amendment. After carrying the clause T propose to ask the committee to report progress in order that I may look into a number of matters. Among those matters will be the remarks made by the honorable- member for South Sydney.

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

– Very well, I will not press, it.

Clause, as amended, agreed to.

Progress reported.

page 2881

QUESTION

STANDING ORDERS COMMITTEE

Mr BARTON:
Minister for External Affairs · Hunter · Protectionist

– With the’ indulgence of the House I move -

That the number of members appointed to serve on the Standing Orders Committee be increased to eight, and that the Chairman of Committees be an additional member of such committee.

The motion proposes to increase the number of members of the committee from seven to eight. I think it will meet the views of the entire House that the Chairman of Committees should be allowed to observe the whole of the work of the Standing Orders Committee as it progresses.

Question resolved in tlie affirmative.

page 2881

ADJOURNMENT

Friday Sittings. - Members’. Railway Passes

Mr BARTON:
Minister for External Affairs · Hunter · Protectionist

– I move -

That tlie House do now adjourn.

For the information of honorable members I may state that after the Customs Bill has been finished to-morrow, the State Laws and Records Recognition Bill will be taken.

Mr.MAHON (Coolgardie). - -I desire to ask the Prime Minister whether he proposes to make any al teration in regard to Friday sittings? .If the Minister will turn to the noticepaper, he will find that it is in rather a congested condition. The time is now come when there might be some alteration in the hour of meeting on that day. We might sit in the morning as the other House does. That would give us an additional hour or two for private members’ business, without interfering with Government matters.

Mr O’MALLEY:
Tasmania

– Would it not be better to devote every Thursday afternoon and evening to private members’ business? It is really not- fair to limit private” members’ business to Friday afternoons. Honorable members want to get home on Fridays. Why should not the Government be the losers?

Mr Page:

– The honorable member has got the time for private members’ business monopolized.

Mr KING O’MALLEY:
TASMANIA, TASMANIA · IND; ALP from June 1901

– Surely the honorable member will admit that I did not take long to place my motion before the House last week. As the arrangement stands at present, private members are not able to. reach their business, and our people are thinking we are asleep.

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– I should like to support the request for a little more time for private members’ business. I really think the suggestion made by thehonorable member for Coolgardie is the proper one. I would ask the head of the Government to consider whether he could not meet us by calling the House together at 11 a.m. on Friday instead of at 2 p.m. as now. The two. additional hours in the forenoon would give us all the time that we require at present.

Mr. Y. L. SOLOMON (South Australia). Before the Prime Minister replies, I desire to ask him whether, any arrangement has yet been mode by the Commonwealth Government in reference to the payments to be mode to the various States for railway passes for members of this Parliament ? If so, I would ask whether the Minister has any objection to letting the House know exactly what is the monetary liability of the Commonwealth in regard to the matter ?

Mr. BARTON (Hunter- Minister forExteral Affairs). - With reference to the last question, I may state that the matter is in a state . of negotiation between the Minister for Home Affairs and the railway commissioners of the various States. Certain proposals have been made. They are not” yet finally settled, but when they are I shall be happy, to afford the information. In regard to the suggestion that the House should meet every Friday morning, I should like to point this out to honorable members - and to bespeak their good will in this respect - that the time allotted to Ministers for doing the vast amount of work, which must be done outside Parliament, is already very limited, especially when we consider that there must be one and sometimes two Cabinet meetings a week.

In fact, there may come atime very soon when weshallhave to sit in Cabinetpractically every day. To sit on the morning of Fridays then would result in this, that the administrative work of the Commonwealth could not be carried on by any means unless the whole of it were left to be conducted by secretaries instead of by Ministers. That is the position we find ourselves in. We have’ made an arrangement by which, instead of keeping the hours to which most of us have been accustomed in the State Parliaments, we are enabled to get away by half-past ten nearly every evening. To do that we have to sit early, and that again squeezes down to the narrowest point the time available for administrative work, for Cabinet meetings, deputations, anda hundred and one other things which the Government are called upon to attend to. That is’ the difficulty in regard to Friday sittings, With morning sittings on Fridays there might also be a difficulty in obtaining a quorum. I will consider the whole question. I will not movie at once about it, because’ I do not think that the business-paper for Fridays is yet in any state that could be called congested. I wish to meet the views and the convenience of honorable members in every way, but they must see the difficulty, and I hope that they will take this statement from me. I will consider the whole matter before doing anything, and if possible try to meet, their wishes in this regard. I hope that they will bear with me also when I be-, speak their consideration for the work of the administration of the Commonwealth. The only other matter which I desire to mention is that, after the State Laws and Records Recognition Bill has been passed through committee to-morrow, if there be sufficient time, it may beconvenient for some honorable members to give the House their views with reference to the Defence Bill-

Question resolved in the affirmative.

House adjourned at 10.30 p.m.

Cite as: Australia, House of Representatives, Debates, 23 July 1901, viewed 22 October 2017, <http://historichansard.net/hofreps/1901/19010723_reps_1_3/>.

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House of Representatives23 July 1901

MINISTERIAL STATEMENT

Order of Business

Mr BARTON:Minister for External Affairs · Hunter · Protectionist

PETITIONS

Mr BAMFORD:HERBERT, QUEENSLAND

Mr SPEAKER:

Mr Barton:

QUESTION

PRESS TELEGRAMS : TASMANIA

Sir EDWARD BRADDON:TASMANIA

JAPANESE: NORTHERN TERRITORY

Mr BARTON:Protectionist

QUESTION

COMMONWEALTH STATISTICAL PUBLICATION

Mr WILKS:DALLEY, NEW SOUTH WALES

Mr BARTON:Protectionist

CUSTOMS BILL

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr KINGSTON:Minister for Trade and Customs · South AustraliaMinister for Trade and Customs · Protectionist

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr KINGSTON:

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr KINGSTON:

Mr G B EDWARDS:SOUTH SYDNEY, NEW SOUTH WALES · FT

Mr BARTON:Minister for External Affairs · Hunter · Protectionist

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr Kingston:

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr Mauger:

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr Mauger:

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr Kingston:

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr Higgins:

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr Higgins:

Mr Higgins:

Mr KIRWAN:Kalgoorlie

Mr KINGSTON:Protectionist

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr KINGSTON:

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr KINGSTON:

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr Kingston:

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr McCAY:Corinella

Mr Kingston:

Mr McCAY:

Mr Kingston:

Mr McCAY:

Mr KINGSTON:

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr Barton:

Mr G B EDWARDS:SOUTH SYDNEY, NEW SOUTH WALES · FT

Mr Kingston:

Mr G B EDWARDS:SOUTH SYDNEY, NEW SOUTH WALES · FT

Mr PIESSE:Tasmania

Mr KINGSTON:

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr KINGSTON:

Mr KINGSTON:

Mr POYNTON:South Australia

Mr Kingston:

Mr POYNTON:

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr POYNTON:

Sir EDWARD BRADDON:Tasmania

Mr Kingston:

Sir EDWARD BRADDON:

Mr MAUGER:Melbourne Ports

Mr V L SOLOMON:SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

The CHAIRMAN:

Mr G B EDWARDS:SOUTH SYDNEY, NEW SOUTH WALES · FT

Mr MAUGER:

Mr G B EDWARDS:SOUTH SYDNEY, NEW SOUTH WALES · FT

Mr MAUGER:

Mr KINGSTON:

House of Representatives
23 July 1901

Mr BARTON:
Minister for External Affairs · Hunter · Protectionist

Mr BAMFORD:
HERBERT, QUEENSLAND

Sir EDWARD BRADDON:
TASMANIA

Mr BARTON:
Protectionist

Mr WILKS:
DALLEY, NEW SOUTH WALES

Mr BARTON:
Protectionist

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr KINGSTON:
Minister for Trade and Customs · South AustraliaMinister for Trade and Customs · Protectionist

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

Mr BARTON:
Minister for External Affairs · Hunter · Protectionist

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr KIRWAN:
Kalgoorlie

Mr KINGSTON:
Protectionist

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr McCAY:
Corinella

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

Mr PIESSE:
Tasmania

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr POYNTON:
South Australia

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Sir EDWARD BRADDON:
Tasmania

Mr MAUGER:
Melbourne Ports

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr ISAACS:
Indi

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr A McLEAN:
GIPPSLAND, VICTORIA · PROT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

Mr FISHER:
Queensland

Mr KINGSTON:
Protectionist

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

Mr V L SOLOMON:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT