1st Parliament · 2nd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
– I - I wish to know from, the Prime Minister if he has received any official information concerning the alleged murder of the King and Queen of Servia by savage military officers ? Does he propose to communicate to the Imperial Government the abhorrence of Australia at this brutal crime, and the hope that the murderers will be brought to justice forthwith ? Does he intend, in accordance with precedent, to propose a vote of condolence with the relatives of the murdered royalties ?
– The answer to all three questions is No.
– Some trouble having arisen in South Australia with regard to the payment of duty upon a work of art - a statue of the late Sir Thomas Elder - and the matter having been referred to the Minister for Trade and Customs, I should like to ask him if he has arrived at any decision in respect to it ?
– No; but I will do so speedily. I was advised of the matter only this morning.
– I wish to know from the Prime Minister whether be intends to take notice of the policy of misrepresentation of this Parliament which is being prosecuted so vigorously in this city?
– I believe there are in this morning’s newspaper’s reports, which I have not had time to read through, of a meeting which was held in Melbourne last night, and I shall take into consideration the question whether it is necessary to make a counter-blast to what is described to me as a very gross misrepresentation.
– I wish to know from the Prime Minister if it is true that the name of the Duke of Connaught has been suggested as that of the new GovernorGeneral of Australia? If so, will he take up the position that the Government of Australia must be consulted in regard to any new appointments ; and will he give this House an opportunity of considering any proposed appointment?
– I cannot say whose name has been mentioned in connexion with this matter, or by whom. Mention has been frequent and various ; but no official communication has been made on the subject, either to the Governor-General or to myself. It is hoped that an intimation will be given to this Government before any new appointment is made ; but I hesitate to say that the question of such an appointment should be brought before this House before it is sanctioned.
– Why “ hesitate to say “ ?
– I hesitate to say that it should be brought before the House. I might have no hesitation in saying that it should not.
Sir PHILIP FYSH laid upon the table
Tasmanian Post and Telegraph Offices - Return to Order dated 2nd October, 1902.
asked the Prime Minister, upon notice -
When does the Government intend advancing the6th and 4th classes of South Australian Federal officers who have reached the South Australian State maximum of their class from the intermediate grade salary to an equality with other Federal officers at the maximum of the Commonwealth 5th and 4th classes, and will such advance date from the coming into operation of the Commonwealth Act ?
– The answer to the honorable member’s question is as follows : -
The remuneration provided under the Commonwealth Public Service Act and the South Australian Public Service Act for the several classes of the clerical division varies in many particulars, and there is no 6th class in the Commonwealth Public Service, while there is in that of South Australia. It is not possible to bring the salaries into accord until after the work performed by each officer has been valued, and the classification of the whole service has been completed. Any changes made can only date from the issue of the classification.
asked the Minister for Defence, upon notice -
– The answers to the honorable member’s questions are as follow : -
Rifle clubs in Western Australia have not hitherto been formed under regulations, and rifles have been supplied from Melbourne, where there was a stock on hand. The rifle clubs in Western Australia will be brought under the new rifle club regulations, and arrangements will be made for keeping Martini-Enfield rifles in stock for sale.
asked the AttorneyGeneral,upon notice -
With reference to remarks made by him, as reported on page 2076 of Hansard of last session ; what provision has been made for the promotion of officers of the general division who passed State clerical examinations ?
– The answer to the honorable member’s question is as follows : -
It is intended to declare a specified number of vacancies in the 5th class to be filled by officers who may be found suitable, and who have qualified by passing the State clerical examination.
asked the Prime Minister, upon notice -
Whether it has not been agreed between the British and Commonwealth Governments that letters from England bearing the full postage at the1d. rate prevailing there shall be received in Australiaas sufficiently stamped, and, if so, by what authority are such letters surcharged by the Postal Department of the Commonwealth ?
– The answer to the honorable member’s question is as follows : -
No such agreement has been arrived at between the British and Commonwealth Governments.
asked the Minister representing the Postmaster - General, upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the Minister representing the PostmasterGeneral, upon notice -
Whether complaints have been received from subscribers to the telephone at Eaglehawk respecting the obstruction to communication with Bendigo, consequent on the operation of the electric tramway which runs adjacent to the telephone wires, and what action is proposed to be taken to restore proper telephonecommunication between Eaglehawk and Bendigo ?
– The answer to the honorable and learned member’s question is as follows : -
Complaints have been received. The matter is under consideration with a view to the adoption of the best means of removing the interference with the telephone wires, and also to ascertain whether in accordance with section 142 of the Post and Telegraph Act 1901, the tramway authorities have adopted all known and reasonable precautions to avoid injurious affection.
asked the Minister for Home Affairs, upon notice -
Whether it is true that the police who collected the namesfor the Federal rolls have not yet been paid ; and, if true, when will they be paid ?
– The answer to the honorable member’s question is as follows : -
I presume the honorable member refers to the Victorian Police. The accounts received from the Commissioner of the Police have now been dealt with, and it is anticipatedthat the accounts for the eight districts still remaining will be paid before the end of this month.
Debate resumed from 11th June (vide page 795), on motion by Sir George Turner -
That the Bill be now read a second time.
Mr. THOMSON (North Sydney).When I moved the adjournment of the debate last Thursday, I did so, not altogether with the object of affording myself an opportunity to speak upon the Bill, but in order that the promise of the Treasurer might be carried into effect, and that other honorable members, some of whom had left for their own States, might have an opportunity of discussing the measure at its secondreading stage, as I knew they desired to do. However, being called upon now, I will say what little I have to say on the matter at once. It seems to me, after a perusal of the figures put before us by the Treasurer, that there are only three adoptable means for arriving at an Inter-State settlement in connexion with the rebate which this Parliament has decided shall be given upon Sugar grown by white labour. The first of these means is the adoption of the production basis, under which each producing State would be debited with the whole amount of the rebate paid on the quantity of white grown sugar which it produced. I think it will be recognised at once that Such an arrangement would be unfair to Queensland, and to New South “Wales, or to any other producing State. Furthermore, in dealing with this matter, we must not confine our attention to the present producers, because the Excise Tariff Bill provides for the granting of a rebate upon beet sugar grown by white labour, and at some future time beet sugar may be produced in States which are not now affected by our decision . If the amount Of sugar produced were taken as the basis upon which rebate should be charged, this is what would happen. If the excise were to be collected as it is at the present time, and the consuming States got credit for it, while the producing State was debited with the amount paid for rebate, certain States would be getting £3 a ton upon the sugar consumed by them and grown in Queensland or New South Wales, while the two producing States would be paying £2 a ton in rebate upon that sugar. But if the adjustment were not made in that manner, and the rebate were simply debited to the producing State, on the amount of sugar produced by white labour, then, if the quantity of sugar so produced in Queensland increases, as it was anticipated by those who supported the arrangement in the first place that it would increase, that State may be called upon to pay £200,000 or £300, 0T)0 in support of the policy adopted by Parliament to procure a white Australia. I do not think Queensland could afford to make such a sacrifice for the Commonwealth. Thesecond method of adjustment would be upon the basis of consumption, and if I could see a reasonable way of adopting that method, I should be inclined to advocate it. We now credit the States with the amount of the duties collected upon the goods which they consume, and if it were possible to do so, I think it would be in keeping with that system to debit them with any rebate of duties upon such goods. But that would be very difficult. In the first place, as the Treasurer has pointed out, it is very hard to trace white grown sugar after it has left the State in which it was produced. Some of it leaves that State in an unrefined condition, and enters the refineries of another State, is frequently mixed with black-grown sugar, and is then transferred to other States, where its origin is absolutely untraceable.
– Quite so ; there is no distinction between the two classes of sugar, and it is therefore impossible, without hampering trade operations to an extent that would be very undesirable, to trace the source from which the sugar comes when it reaches the ultimate point of delivery. There is also this consideration to be taken into account. Any State, by arrangement with its refiners, could decide which other States would have to pay the rebate on the white-grown sugar. It is perfectly certain that if New South Wales or Queensland found that by consuming their own white-grown sugar, they were losing the £2 per ton rebate, they would try to come to an understanding with the refiners that the white-grown sugar produced by them should be used to supply the requirements of other States, which would, therefore, lose the £2 per ton. If the sugar - producing States did not take any such step it would be still more objectionable to leave the refiners to decide which States should pay the rebate. I should hesitate to give to any firm or company the decision of such a question, and yet this would be the result if we adopted the consumption basis of adjustment. If it could be proved that those who consumed the sugar received an advantage of £2 per ton in the price they were called upon to pay, no adjustment would be necessary, because the £2 paid in the form of rebate would be balanced by the reduction in price. But the weakness of the. protectionist argument in regard to the operation of duties is shown most distinctly in the application now being made to the House for a different method of ad j ustment. It is quite evident that the price of sugar in each State is regulated, except to the extent of a slight shade of difference, by the cost at which similar sugar from abroad can be landed, duty paid. There is practically no difference in the price charged in the different States, because refined sugar from abroad can be landed in almost every one of them at the same price.
– That only applies to conditions in which the production does not overtake the demand.
– The honorable member has anticipated what I intended to add. Any one in favour of protective duties would say that the present production of sugar is much below the requirements of the Commonwealth, and that different results will follow when local consumption is overtaken ; that as soon as the local production rises to an export level the price will come down to the value of the article for the purposes of export. It has been proved, however - for the sugar industry is not a new one - that cane sugar cannot be grown here at a profit in open competition with the imported article. When locally-grown sugar is exposed to free competition with sugar from abroad, and has to come down to world prices, production is immediately checked. We cannot escape this fact in connexion with our sugar industry. On the other hand, when this check operates, and as soon as the production drops to any degree below the requirements of the Commonwealth, the price of the local article immediately rises to the value of the imported sugar after payment of the duty.
– That has not been proved with regard to white-grown sugar.
– If it is necessary to give a rebate of £2 per ton in order to encourage the employment of white labour in sugar growing, and it is considered desirable that all sugar should be grown by white labour, that affords sufficient proof that local growers cannot compete with the black-grown sugarproducedin other countries.
– The rebate is intended simply to enable the growers to get over the transition period.
– I do not think that the difficulty will be felt during the transition period only. I do not suppose that the honorable member for Bland believes that after the transition period has passed we shall be able to grow sugar with white labour in free competition with the imported article.
– I wish to point out that the only question raised by the Bill under discussion is whether the sugar rebate shall be charged to the States in one way or another. The fiscal question, or the desirability or otherwise of the white Australia policy, or any matters connected with either of these two questions, are not raised, and therefore I could not permit the discussion of them under the Bill.
– I should notseekknowingly to raise a question that is not in order, but I wish to point out that I am introducing this matter in a way that makes it entirely relevant to the point at issue.
– I waited for some time in order to ascertain the trend of the honorable member’s remarks.
– What Isaid was that if it could be shown that by the protection given under the Tariff the internal price of sugar would be reduced by £2 per ton, there would be no necessity for an adjustment, because the rebate the consumer would be called upon to pay would be balanced by the reduction in price.
– So far as the honorable member was proceeding on those lines, of course, I raised no objection.
– Continuing that line of argument, I submit, with all due deference to you, Mr. Speaker, that I had to Show that it was not likely that such a result would follow. However, I only wish to point out, further, that we are at present losing through the excise duty and the rebates, as compared with the import duty, £336,000 per annum. If the excise duty, and consequently the rebate, are removed in 1907, and only white-grown sugar is produced and consumed in Australia, we shall then lose an additional £787,000, or in all £1,123,000 annually, representing a capital value of £22,460,000, at 5 per cent. That is a tremendous price to pay for the industry. However, I shall now leave that branch of the subject. Coming back to the other argument, which I was at first inclined to favour, that New South Wales and Queensland would gain an undue advantage under the arrangement proposed. I find there is no such advantage.
– That might apply to this year, but not to subsequent years
– The amount might vary, because, of course, the more production there is the greater equality there will be. Admittedly, refined sugar produced within the Commonwealth is sold at practically an equal price in all the States, because, as I have already pointed out, the price is influenced by the cost at which refined sugar can be introduced from abroad. The result, therefore, would be, that the consumers in any one or more producing States would get an advantage if the amount of duty paid into their States Treasuries per ton of sugar consumed under the new arrangement were out of proportion to the amounts realized in other States. I find that, according to the Treasurer’s figures, the duty realized upon the sugar consumed in the Commonwealth averages £4 2s. per ton. This includes the consumption of both home-grown and imported sugars.
– Is that with or without the rebate?
– That is after each State has “been debited with its share of the bonus. The actual amount left in the New South Wales Treasury after its share of the bonus has been paid is £3 3s. ; in Victoria, £5 5s. ; in Queensland, £2 los. ; in South Australia, £5 12s.; in Western Australia, £4 17s. ; and in Tasmania, £3 19s. per ton. These will be the amounts left in the Treasuries of the various States under the proposal of the Treasurer.
– Or, rather, under the Excise Act as well.
Mr.- THOMSON.- Yes; under the adjustment proposed, and under the Customs Duties Act and the Excise Act.
– Of course, those amounts may vary next year.
– Yes, of course; according to the amount of sugar produced. But I do not think that the figures I have given will vary very much if the production is the same, because the growers of New South Wales and Queensland sugar naturally seek their nearest markets, unless they are forced to the other States, in order to make those States pay the rebate.
– That could be done by arrangement.
– Yes, as I pointed out before. The consumers of sugar in all these States will pay the same price for what they use, and will receive in revenue the varying amounts which I have mentioned. That being the case, it will be seen that New South Wales and Queensland will still be at a disadvantage even if this Bill becomes law. Under these conditions, I see no other course than to accept the proposal of the Treasurer. I do this reluctantly, because I should have preferred to fix the payment of the rebate on a consumption basis, and because the rebate will, under the proposed arrangement, become a bonus ; and I object to bonuses. Of course, I am aware that another proposal has been made, which practically amounts to a distribution of the payment upon the basis of consumption. It has been suggested that instead of granting any rebate or bonus, we should levy an excise duty of £1 per ton upon sugar grown by white labour, and impose an excise of £3 per ton upon that produced by black labour. That, however, amounts to the same thing as the payment of the rebate upon the basis of consumption.
– That proposal is impracticable.’ We cannot levy an excise duty until the sugar has actually been produced.
– I know there are some objections which can be urged to that proposal, inasmuch as it would be difficult to decide where the sugar is consumed. For instance, Queensland and New South Wales would be induced to export their white grown sugar - upon which they would receive an excise duty of only £1 per ton if it were consumed within their own borders - to the other States, whilst they would consume the sugar produced by black labour , which would return them £3 per ton.
– Quite right.
– No doubt it would be right if the law permitted that practice to be adopted. But I object to a system which would allow that course to be pursued, and therefore I will support the proposal which the Treasurer has embodied in this Bill.
– I take it, sir, that you have ruled that in your opinion - which of course controls the situation - the matter before the House does not involve the important question of a white Australia, or of the extent to which the legislation of last session has proved beneficial ; but that it is purely a question of whether this .is a State or a national matter. Am I right thus far ?
– I certainly have not ruled, nor should I rule, that the question before the House is one of whether this is a national nr a State matter. I merely called attention to the scope of the Bill, and intimated that I should be obliged to rule throughout that in discussing it honorable members must not go beyond its scope.
– This matter originated in a protest from the Premiers of New South Wales and Queensland against the method adopted by the Customs Department for the payment of the sugar rebate. Stripped of all technicality, it is perfectly clear that, had the original proposal of the Government been persevered in the payment of that rebate to secure a white Australia would have partaken of the nature rather of a State matter than of a national one. It is now proposed to pay the rebate out of the consolidated revenue upon a population basis. I wish to direct the attention of honorable members purely to that aspect of the case. The honorable member for North ‘Sydney made a reference to the similarity which exists between the consumption of sugar by the States throughout Australia. But I would point out that the consumption per head of the different States varies very considerably. It is remarkable - possibly honorable members may be able to furnish their own explanations for the difference which obtains - that whilst New South Wales consumes 107 lbs. per head, the consumption in Victoria is only 93 lbs. per head, whilst in Queensland it is 123 lbs. per head.
– Those figures are merely the result of guess-work. The States deducted from their total production the quantities exported, and concluded that they had consumed the balance.
– The figures which I am quoting are taken from Coghlan. South Australia consumes 100 lbs. of sugar per head of the population, Western Australia 114 lbs., and Tasmania 90 lbs. The mean consumption of the Commonwealth, therefore, is 103 lbs. Honorable members will observe that, at first sight, these variations appear somewhat remarkable. But they are not difficult of explanation, although, in deference to Mr. Speaker’s ruling, I must not attempt to furnish that explanation. It will be noted that in Tasmania the I quantity of sugar used falls 10 per cent, below the mean consumption, whilst in. Queensland it is 20 per cent, above it. If, therefore, it is conceded that this is a national, and not a State matter, it would notbe possible to secure a more satisfactory method for distributing the rebate than that which is proposed under the Bill. Let us. turn to another aspect of the case. Every honorable member is familiar with the population of the various States. In New South Wales it numbers 1,350,000, in Victoria. 1,200,000, in Queensland 500,000, in South Australia 360,000, in Western Australia 180,000, and in Tasmania, approximately, 180,000, making a totalof 3,800,000. The annual consumption of sugar within the Commonwealth is 177,000 tons. If, as the honorable member for North Sydney mentioned, the States paid an import duty of £6 per ton upon their total consumption, ‘ the revenue thus derived - assuming that-, no sugar were produced in Australia - would be approximately £1,100,000. I ask honorable members to note the enigmas connected’ with the sugar trade which are brought about by the oversea trade, by the contiguity of the producing States, by production, and the presence of refineries. If Australia received the revenue I have indicated from the sugar required for its own consumption, and that revenue were distributed amongst the States in proportion to their population, the New South Wales Treasury would benefit approximately by £390,000 ; that of Victoria by £360,000 ; Queensland by £150,000 ; South Australia by £108,000 ; Western Australia by £54,000 ; and Tasmania by £54,000. That is how the figures would work out, approximately, assuming that none of the States were producing sugar, but all were importing it from abroad. I am leaving out of consideration what may be termed the “ accidents “ of trade. But what is the present position ? Instead of receiving these amounts the revenue upon imported sugar benefits the New South Wales Treasury bv only £66,000, instead of £390,000;. Victoria by £282,000, instead of £360,000 ; Queensland by £6,000, instead of £150,000; South Australia by £96,000, instead of £108,000 ; Western Australia by £42,000, instead of £54,000 ; and Tasmania by £21,000, instead of £54,000. Honorable members must see at once that if there were no sugar produced in Australia,
New South Wales would receive £390,000 as revenue from that source, and Victoria £360,000; whereas New South Wales receives only £66,000, and Victoria £282,000. These facts conclusively prove that this is a special matter, and one which requires special consideration. Let us take the case of one State as an example. I have seen it asserted by a South Australian that this is purely a State matter, and that the Commonwealth has no right to pay the sugar rebate out of the consolidated revenue. That statement was made by a representative of a State which - although its population is one third less than that of Queensland - receives a revenue of £96,000 from imported sugar as against £6,000 received by Queensland from that source. Yet, despite the great disadvantage under which the Treasury of Queensland is placed in regard to import duties, that State is coolly informed that the payment of the sugar rebate is purely a Queensland matter, and should not have come before, this Parliament. Regarding that phase of the question, I submit that this never could have been a State matter. The whole question of the rebate is controlled - and the payment of a bonus, also, must ever be controlled - by the Commonwealth Parliament. The action which the Treasurer has taken is the only one possible under the provisions of the Constitution. If a High Court had been in existence, the right honorable gentleman could not have saddled the sugar-producing States - and that would have been the result of the action previously contemplated by him - with more than their fair share of the payment of the rebate upon the basis of population. To me that point appears perfectly clear. Sub-section (3) of section 51 of the Constitution says that the Parliament shall have power to make laws “ with respect to bounties on the production or export, of goods, but so that such bounties shall be uniform throughout the Commonwealth.” The power to pay these bounties, therefore, is specifically taken away from the States. All the States must be treated upon an absolute equality. Had the Treasurer - influenced by any of the States - been sufficiently mean to suggest that the payment involved was a State and not a national obligation, it would have been speedily ruled that such was not the case.
– Does the honorable member think that the States which produce the sugar should alone bear the burden of the payment of the rebate ?
– I am endeavouring to deal with that aspect of the case. I have already pointed out that under the Constitution all power in connexion with this matter has been taken from the States. When the people of the Commonwealth approved of the Constitution, they approved of a Constitution which makes it clear that all bonuses or rebates must be paid by the Commonwealth Government and not by the States. Any attempt to saddle any State with special responsibility in connexion therewith must be constitutionally wrong. I hope that the honorable and learned member grasps that point.
– That being the case, why did the honorable member support the original proposal of the Government t
– The question then involved was one of whether any rebate should be’ paid. I supported that proposal in the first instance, because I ‘believed - as I still believe - that it was the right policy to adopt. But this is a question of the method in which the payment shall be made. It is a question of whether the burden shall be distributed upon a national or State basis.
– Over twelve months ago the honorable and learned member for South Australia, Mr. Glynn, and myself pointed out the trouble that was bound to ensue.
– Some people are under the impression that New South Wales has had nothing to do in order to obtain the payment of this rebate, but that State is as much concerned in the matter, in proportion to the area of land under cultivation with sugar-cane, as is Queensland. According to the number of acres under cultivation with sugar-cane, the number of coloured men employed in Queensland is 1 to S-7, and in New South Wales it is about 1 to 8-8. The New South Wales people therefore on the face of it would appear to have as rauch to do with this matter as the Queenslanders.
– With black ‘labour ?
– In proportion to area under cultivation we had, and that is sometimes forgotten.
– Then both deserve to be punished.
– And we are being punished. That is exactly the positon The Federal Parliament informs the sugar grower that he must use white labour, that he must substitute for the kanaka, costing 2s.- 44d. a day, white labour. That is the mandate of the Federal Parliament, and we have said to the grower of sugar with white labour that if he does that we will give him a rebate. The growers of sugar are very much concerned in the matter, so much concerned, indeed, that some people engaged in the industry in the State of Queensland protest very loudly that the proposals which have been made will ruin the industry. It must be remembered therefore that the sugargrowers are not getting this rebate for nothing. The mandate of the Federal Parliament is that they must get rid of black labour, and that the people of Australia are willing to aid them in doing so.
– Yes ; we say to them - “We give you a protection of £6 per ton to get rid of it.”
– ‘When the honorable member refers me to the duty of £6 per ton upon sugar, I may be permitted to mention that with the exception of starch, sugar is the only article in ordinary use upon which we have thought fit to impose an excise duty. We have an import duty of £6 per ton, with an excise duty of- £’d per ton, and, therefore, at best, it can be considered a protection of only £3 per ton. The giving of a, bonus where white labour is substituted for black puts a different aspect upon the case altogether. Though we have informed the sugar-growers that they must get rid of black labour, there is still a considerable difference of opinion as to this proposal. What does it amount to 1 According to the Treasurer’s figures, it amounts to 3d. per head of- the population. From one aspect of the case, the readjustment proposed might be said to be effected at a cost of l£d. per head, but I prefer to set the amount down at 3d. That is the price that the people of Australia are called upon to pay.
– To-day ; not next year.
– We are dealing only with to-day. The honorable and learned member and myself might not be here next year. Any prophesy with regard to this question involves an “if” or an “about”. We have certain figures before us, and they are the only figures to which we can direct the attention, of honorable members as having the significance of facts. The proposal will mean about 3d. per head of. the population of the Commonwealth. In dealing with the question whether this is a State or a national question, I would ask what it is proposed that this bonus should be given for? The honorable member for South Aus tralia, Mr. Batchelor, will grant that it is given for the substitution of Australian workmen for alien workmen. I have no desire . now to discuss the protective policy at large, but when that policy was before us for discussion, what was the basis of the whole of the arguments submitted in support of that policy? Was it not that it was intended to substitute the work of Australian workmen for that of the workmen in other parts of the world ? Is that a State or national matter ? Honorable members know that we never asked whether certain industries were established at Footscray or Hobart. Possibly, with the one exception of the salt industry, no one ever asked where any industry was carried on. We regarded the question as a national one, and protective duties were agreed to in order to secure the substitution of Australian for foreign labour. The same argument applies in this case. When the honorable member for South Australia, Mr. Batchelor, voted for protective duties, he did so with that end in view. He agreed that it was a national matter, and that it should be our object to establish Australian workmen here, and to do away with the work of the alien and the foreigner. I heard the honorable member say these or similar words over ‘and over again. This matter of the sugar bonus is in exactly the same category. The imposition of protective duties was a national matter, and this is a national matter, for the object sought is the substitution of white labour for alien and foreign labour. If the honorable member for South Australia, Mr. Batchelor, justifies protection from the stand-point of labour, he must give his vote for this proposal.
– Is the honorable member going to vote for it 1
– I am inclined to think that that might have been clear even to the honorable member for Kennedy. I have no doubt that every honorable member in this House, when he next appeals to his constituents, will point out that he has assisted in a great national work in taking a forward step for the attainment of the white Australia policy.
– Every honorable member will not.
– Every honorable member ought to do so. I believe that every honorable member ought to hold that view. I am justified in making the statement that every representative of any portion of the Australian people will feel that he has done a great national work in purging various portions of Australia from black labour. If that be so, if the action taken has been national, and if it has been taken in compliance with a mandate from our constituents that was also national, how can any one now contend that this is a matter for the States ? How can it be contended that we should accept the honour and the prestige that comes from honour, and refuse to accept the responsibility? If this is a national matter the nation,and not particular States, must pay for it. The whole idea of federation from the first has been the destructionof small State interests, and the establishment of a national ideal, the building up of something approaching responsibility, not to a particular State, but to the whole continent. If this be not a case in which we get far beyond State responsibility, and if it be not a case in which the nation is interested as a nation, then no such case has yet existed. I believe that morally the Treasurer has done the only thing he could have done, and I believe that, constitutionally, no other course was open to him.I shall, therefore, be prepared to support the proposal now before us.
– I desire to say that usually in financial matters I am only too glad to follow the Treasurer. In view of the position which the right honorable gentleman has held in the past in Victoria, and which he holds in this House, and speaking for myself as a supporter of the Ministry of which he is a member, I am usually only too ready to follow his lead, feeling that the right honorable gentleman will do his best not only for Australia, but for his own State. But, in bringing this Bill forward, I think that the Government and the Treasurer have for the first time raised the question of State rights. And in dealing with the question they are not looking to the rights of the four States who have to pay, Victoria, South Australia, Queensland, andWestern Australia, so much as to the State rights and privileges, as I think I may call them, of the State of New
South Wales. When we remember that New South Wales has really done her best on every occasion to thwart the wishes of the whole of the rest of Australia, and that the cry of the leader of the Opposition, when he was trying to defeat the Commonwealth Bill, was that the other wretched insolvent States of Australia were going to ruin New South Wales, it is very strange to find that that State under the Treasurer’s proposal will receive some £22,758. The representatives of that State come to us and the Premier of New South Wales tells us that he requires that Victoria shall pay to New South Wales some £16,286; South Australia, £5,658; Queensland, £862 ; and Western Australia £846. That is surely a complete reversal of the position as it has been previously stated to us. When we remember that this rebate of £2 per ton upon sugar is, under the Braddon sections of the Constitution, to be paid to the New South Wales Treasurer, it is all the more remarkable that this Bill should have been brought forward at all. It is how proposed to alter the Tariff schedule in such a way that the whole of the amount paid in rebate, upon sugar grown by white labour, shall be paid by the whole of the people of Australia upon a population basis. I desire to point out to honorable members that for years before the establishment of federation, Victoria had pursued a strong Australian policy. Without bringing the matter into a Commonwealth balance-sheet, and asking that the whole of the Commonwealth should pay for it, Victoria for years before federation supported Australian grown sugar by taxing her own people. We imposed a duty of £12 per ton upon all beet sugar coming from the continent of Europe.
– It was grown by white labour.
– Cane sugar was imported at a duty of £6 per ton only, the desire being to encourage the growth of sugar by white labour in Queensland. Victoria at no time asked for any consideration for this action. The first movement in that direction comes very strangely from New South Wales, which State is to get the whole of the benefit of the rebate paid to growers in that State. New South Wales comes to the other States, who were said by its leaders to be almost insolvent before federation, and is the first to ask that the Commonwealth shall return money collected under the Tariff to the State of New South Wales. The Treasurer has pointed out that a large amount of sugar consumed in Victoria is imported, and upon that sugar there is imposed a duty of £6 per ton. Who pays that duty? The honorable member for North Sydney says that it is the foreigner, but I think it is the Victorian people who pay it. Tf the Victorian people continue to import sugar, they will have to pay this £6 per ton duty upon it, in addition to the rebate weare here being asked to pay to the New South Wales Treasurer. The Treasurer stated the other day that he looks upon last year as a phenomenal one, and considers that afterwards . the importations will not be so large. If, however, the people of Victoria do not import sugar, the State will lose the revenue to be derived from the duty of £6 per ton, and which is very necessary in the present condition of Victorian State finances. I tun speaking particularly of Victoria, but this applies equally to South Australia and Western Australia. We must lose that revenue, and at the same time we must continue to pay rebate to the growers of sugar by white labour on the Richmond River, in New South Wales. This, in my opinion, is unfair. I think that if Victoria chooses to pay £6 per ton on sugar through the Customs, that is quite enough to ask the people of that State to pay.
– Have we federated ?
– We have federated. The honorable, member for Melbourne Ports need not think that I am not speaking from a Commonwealth stand-point.
– The honorable and learned member is speaking from a very narrow stand-point.
– Indeed I am not. I do not think this is a fair proposal so long as that section exists by which duties that are collected in one State have to be credited to that State. While that lasts, we cannot regard the Commonwealth as an entity, but as departments. The section has an effect on the State revenues, and I think an injustice is being done to Victoria, Queensland, and Western Australia in the matter. There is another way in which Victoria, and I suppose every other State, would have an equal claim on the Commonwealth. The claim of New South Wales is that because a certain policy has been adopted - that of paying higher wages to white men - therefore the “Commonwealth should come to its rescue. ‘
In Victoria we have a whisky and brandy distillery, which is compelled to pay a higher ‘ rate of wages than is paid in the other States. Because we have approved of high wages being paid, are we, then, to refund to the distillers the excise duty which they have to pay to this State 1 The position would be exactly the same. Because we are approving of a certain policy, we are trying to override a policy which the Commonwealth has adopted, and a position which is asserted in the Constitution Act, which I do not think we can override. We have the statement from the Treasurer that next year Victoria will not import so much.
– I cannot tell that yet.
– If there was one argument that ran through the speech of the Treasurer it was that this was a phenomenal year. Referring to Victoria and New South Wales he said -
It has been the good fortune of these two States to receive a very large amount of revenue from imported sugar, an amount far more than I anticipated, and much in excess of that which will probabry be derived from the same source in ordinary j’ears.
I take it that when he made that statement he knew what he was talking about, and that next year Victoria will not import so much sugar.
– It all depends upon what Queensland produces.
– Yes. If Victoria does not import so much sugar, then it means that it will have less revenue from that source. I .am speaking of Victoria only ; but I might say that all the States except New South Wales will import less sugar, with the consequence that they will get less revenue ; that more imported sugar may go to New South Wales, and yet all the time, although we are suffering this loss of revenue, we are paying a yearly increasing amount of rebate to that State. That means that all the other States will get no increase in revenue, but will have to pay the rebate. There is another point which, I think, ought to be considered - that it is a far better thing to have white men in the State than black men. That is admitted by the fact of a white Australia policy having been adopted. A white man uses far mors taxable articles than does a black man.
– Is that the honorable and learned member’s only reason ?
– That is one reason, and it is the only reason I wish to use now. If there are a number of white men where previously black men were employed - and that is what the rebate has done for New South Wales - it means that those white men will use far more taxable articles than were previously used, and, although New South Wales may lose upon the rebate which she has to pay to white men, it will get customs duties from the articles which will have to be imported to supply those men, and which black men would not use. For instance, although white men use whisky, black men will not use so much.
– Will they not? It kills them a little more quickly.
– In view of the experience of my honorable friend, I will say that the black men use only as much whisky as their wages will permit ; that their wages are not so large as are those of white people, and that, therefore, they cannot use so much whisky as white people do. Although the State may lose slightly through the rebate, it will get a large advantage from the use by white men of taxable articles. Yet we are proposing to pay a rebate equal to that which was paid last year on white-grown sugar - £36,000. I jim sorry I cannot agree with the Treasurer. If the Commonwealth pools the rebate, it should pool the imports. The Treasurer knows that he cannot do that under the Constitution Act.
– Do not ask me to do that in the interests of Victoria.
– I think it is a fair thing.
– I am afraid that my honorable and learned friend has not seen the figures. I can give them to him if he likes.
– There is no need for the figures to be given. If we are to look at this question from a Commonwealth standpoint on one side, we must look at it from the same stand-point on the other side. It does not matter to me whether Victoria loses or gains, so long as it is fairly treated all round. It does not matter . to me if South Australia, Western Australia, and Queensland gain so long ‘as they are treated fairly in both directions. But if New South Wales is to get the rebate she should also throw into a common pool the revenue which she receives from the importation of sugar. That is the only way in which it is possible to meet this position fairly. These facts have been missed in the previous discussion. Strong advocates of the Bill have submitted their views, and, although, of course, I would not vote against the second reading, I think that the views I have expressed should be considered by honorable members. I trust that the Treasurer will be able to show that he has weighed these matters, and is dealing fairly, not only with the Richmond River district of New South Wales, but with the rest of the Commonwealth.
– On this occasion the Opposition are, I hope, going to assist the Government out of a mess which they have got themselves into in some inexplicable way, to which I need not- refer. We passed a Bill which provided that this matter should be dealt with by way of a rebate, and then it dawned upon Ministers that there was no possible way to pay the rebate, as, indeed, I think, was obvious enough, inasmuch as it was not possible to them to hand back £2 out of the £3 per ton levied by way of excise without infringing the Constitution. We are now asked to do this thing by way of a bonus, the cost of which is to be cast on the States without regard to the extent to which they consume black-grown or whitegrown sugar. We, on this side, recognise that this is a price which the various States have to pay for a white Australia, and which can only be paid, as the honorable ‘ member for North Sydney has said, equitably by being paid ratably at so much per head. We have to pay this as the price for a white Australia, not, I hope, the sort of white Australia which the last speaker referred to - a white Australia which was to be encouraged by imposing a duty of £13 per ton on white-grown sugar, and a duty of £6 per ton on sugar produced by coloured labour. That is what the honorable and learned member proposed as a splendid way of facilitating the white labour movement. I heard from him, as I have heard from other members, some curious things about that section in the Constitution with which my name is associated. I have heard all sorts of things said about that section - that it prevented this thing and the other thing from being done. The Prime Minister has himself said a great many things of that sort, casting the blame and the odium’, if there is any, on that unfortunate provision. The honorable and learned member for Corio seems to have found that under the section it is impossible to pay this bonus on sugar. There is nothing in the section which prevents the expenditure of the Customs revenue in any direction whatever. All it does is to limit the amount of expenditure within the bounds therein laid down. I presume that the Treasurer has not at his disposal funds to meet this charge out of onefourth of the net revenue 1
– Ample funds.
– I am glad to hear that at the present time there will be ample funds.
– I could spend another million and a half without running against the section, I think.
– That is so at present, but can the right honorable and learned gentleman say that will be so while the production of white-grown sugar increases, and proportionately the consumption of black-grown imported sugar decreases ?
– During thecurrency of this Bill I should think there is no doubt that it would be so.
– All I can say is that the honorable and learned gentleman is very hopeful.
– He is never very sanguine.
– I am afraid that the honorable and learned gentleman is not sanguine in the right direction. He ought to be hopeful that there will be that increase in the local production of sugar for local consumption.
– If produced at all, it will be only a fourth, .and that would not be more than £250,000 at the very outside.
– That will be considerably more than the cost of that glass of beer we have heard of to the unfortunate taxpayer. It is impossible to put away the idea that this bonus is in some sort, a direct tax. lt -is the principle, I believe, of the Ministry that they will not go in for any direct form of taxation. There is nothing in the Constitution to prevent their doing so. They can impose any direct tax they choose provided that it is the same for every portion of the Commonwealth. We are now come to this unfortunate necessity of imposing a direct tax which will be in the form of a small poll tax. I can only regret that the necessity has arisen - a necessity for which Tasmania among other States will have to pay - and that we shall have to pay more and more as the time goes on. But there is, apparently, no hope of extraction from the difficulty without passing this measure; and I can only add .that it is my intention to support it.
– Possibly I may be required to explain why I should assent to a measure which involves a sacrifice of £5,658 a year to South Australia. But I look upon the matter involved as a Federal one. Though I object to the surrender of the excise m 1907 as entailing an enormous price for the policy of a white Australia - I voted for the principle, but I object to the price to be paid - yet I do not look upon this as a matter to which that consideration applies. What we now have to consider is .a fair method of apportioning the rebate which, until the .year 1907, is granted. After considering the matter carefully, I cannot see how it can be done in any other way except by an apportionment per head of population. We must look upon it from a federal point of view. We cannot say, because Queensland and New South Wales are the only States affected by the sugar question - they will benefit by £61,267 this year by way of rebates - that they shall pay the full amount themselves. That would be an absurd position. We cannot segregate States and say that because the policy of a white Australia directly affects only two, those must be the only States which pay for that policy. We are bound, as this is a Federal matter, however obnoxious the principle may. be, to deal with it per head of population. At the same time I think that South Australia cannot complain that the Government made a mistake in her favour in their original Bill. The only true method upon which this matter could have been decided was to make the import duty and the excise duty exactly the same during the period between now and the year 1907. I think that honorable members will agree with me upon that point if they consider the matter a little. The difficulty at present is this, as has been pointed out by the Treasurer and the honorable member for North Sydney : South Australia gets credit for £6 per ton on all her consumption of sugar, except about 500 tons. New South Wales gets credit for about £3 3s. or £3 4s., without taking into consideration the amount of the rebate. The honorable member for North Sydney said that the amount for which New South Wales gets credit is about £3 3s. per ton after having credited the rebate. But at the present time, as we do not take this into account, probably New South Wales gets credit on her consumption for more than £3 3s. pelton. We in South Australia get credit for about £6 per ton. But we shall under this Bill get credit for £5 12s., although the average credit for the States is £4 2s. That is to say, we shall get credit for about 30s. more than” the average credit for the States, while New South Wales will get credit for about 25s. under that average. So that, although South Australia really hands over something like £5,658 this year, it must not be forgotten that owing to the way the Government - I will not say made a mess of the matter originally but led us into a difficult?, we in South Australia are getting something like £30,000 or £40,000 a year from sugar more than we should have done under the- old conditions. Our revenue from /sugar only - averaged about £54,000 a yea/, and we are getting £96,000 this year, simply because we are getting the full rate, while the other States only get on an average £4 2s. per ton. The whole difficulty would have been got over had the Government proposed that the excise duty should be £6 per ton, when the import duty was fixed at £6 per ton, and, had they granted a bonus on the production of sugar by white labour. There would have been no necessity to follow up the sugar when once it left the factory. All that the Treasurer had to say was - “ Here is the sugar produced by white labour; we give you a bonus of £5 per ton for its production,” which amount would be equivalent to the rebate of £2 per ton on an excise of £3, and would be perfectly uniform, inasmuch as New South Wales would get credit for £6 per ton on her total consumption, Victoria would get credit for £6 per ton, and South Australia and the other States would also get credit for £6 per ton, while the bonus expenditure would be debited per capita. We should not then have had the ridiculous position of South Australia being credited with £6 per ton, whilst the other States on an average were credited with £4 2s. The difficulty that has been created was caused by the mistake made by the Government in their leadership of the House, and it is our duty to help them to get out of the muddle. Although I am strongly opposed to the proposed abolition of the excise in 1907 - which is a matter for future consideration - still, to adjust the matter in the meantime, I shall vote for” this Bill. At the present time I believe that the States are entitled, on the basis of consumption, to receive amounts which the Treasurer holds for them in trust. He was bound under. the Constitution to pay them this money from month to month. That is clear under section 89, which says* - ‘
The Commonwealth shall pay to each State month by month the balance, if any, in favour of the State.
But what has the Treasurer done ? Instead of paying the States month by month, as the Constitution prescribes, their surplus of the sugar duties collected according to consumption throughout the States, he has kept the money in hand, and has asked us to revise the Tariff which Parliament passed. After two years, he is asking us to cancel the constitutional duty which he found he was unable to perform, because it was unfair. That is a bad principle to adopt. This is really cai POd facto legislation. We are all to some extent responsible in not having made the legislation in question satisfactory, but still it is a bad thing for this Parliament to pass an Act which is retrospective to the extent of eighteen months in regard to money which ought to have been allotted from month to month, which belongs to the States, which is held in trust for. them by the Treasurer, and which, under the Constitution, he ought to have paid over to them. But under all the circumstances I consider that it is my duty to vote for the Bill.
– As far as the object of this Bill is concerned I do not wish to say very much, except that I believe it was the idea of most honorable members when wc gave legislative effect to the principle of the payment of rebate under the Excise Act that the rebate would be borne by the whole Commonwealth. At any rate, several honorable members to whom I have spoken have expressed that view, and I myself certainly thought that the rebate would be a charge upon the whole Commonwealth, and not upon the two States of Queensland and New South Wales. But it seems, from the technical or constitutional reasons that have been given, that this cannot be done, and looking at the question in the broadest possible way from the stand-point of one who is in favour of the principle of a white Australia, I’ think, that the House will be in agreement with the principle underlying this measure. “ “What I rose for chiefly was to express the hope that when the regulations are being framed, the basis of the past year’s crushing will be carefully looked into.
– The Minister is doing that now.
– I am pleased to hear that, and I hope as a result there will be a more equitable distribution of what will now become the bonus. Although it is recognised that an honest effort has been made to deal with this complicated question, some sugar-cane growers are not quite satisfied with the distribution, or rather with the way in which the rebate has been apportioned. That is to say, their yield has been of a higher average than that on which they have been paid. 1 trust that that matter will be looked into, and that as far as possible the growers will get the full benefit of the rebate - or bonus as it will then be - in the future. 1 have no hesitation in supporting the measure, and am glad to notice that honorable members are receiving it in such a cordial manner.
– The Bill before us is, I am bound to say, one of the results of the ill-considered legislation that has been introduced, and I submit that it is a matter or which Ministers are entirely responsible, lt is a great pity that at the very inception of federation so little care was taken in considering legislation from the point of view from which statesmen ought to consider it, and of making the measures passed as elastic as possible. Difficulties of this sort were pointed out when the question was first raised. It was also pointed out that the rebate to be given exceeded the amount that was paid in labour for cutting the cane. I .find from Coghlan that there is a difference of something like 6d. to 7d. per ton between-the cost of cutting cane by black labour and white. The figures are respectively 2s. lid. and 3s. 5d. per ton. But say that the difference is quite ls. per ton. The rebate formerly proposed was 4s. per ton, taking the cane to average 10 per cent, of sugar. Advantage has not been taken of the fact that the bonus might have been brought down from 4s. to ls. to cover this difference. When we are considering the way the other States are affected it must be remembered that it is not at all improbable that the full amount of sugar used for local consumption in Australia will be locally produced. I find that a total of 194,000 tons of sugar have been raised in one year in Australia, and that exceeds the present consumption of something like 180,000 tons. When the Bill gets into Committee I shall raise a protest against the retrospective clauses of it. I do not think that we are legally entitled to pass them. As far as the Treasurer is concerned, it seems to me that the proposal now brought forward is better in many respects than the former .one. At all events it enables each State to know exactly the price it is paying. That is one great advantage that will result from its passage. As to one question raised by the honorable and learned member for South Australia, Mr. Glynn, I think that under the Constitution there will be considerable difficulty in allowing matters to remain as they are at present. When the High Court is established - or even now, if ^Federal jurisdiction were given to the local courts - if an application were made by any State interested, the money held by the Treasurer would have to be paid over. I do not think that the fact that the Treasurer holds certain moneys would enable him at any future time to retain these moneys as against the State. I trust we shall not do anything that in effect is really varying an Act passed by this House. Such an Act is of a very solemn nature, and should be rescinded only by something of similar strength, namely, another Act. If the Treasurer were to ask us to alter the. rebate duty, he would be within .his province ; but even were it within his province - I do not think it ought to be - to ask us to make a Bill retrospective, I do not think any attempt in that direction should be made by Parliament. Indeed, I am afraid that even if we did desire to make a Bill retrospective we could not do so under the Constitution. That part of the argument, however, I shall deal with in Committee “when the details are before us. I opposed the sugar rebate in the first instance, and should do so now if opposition were of any value. I certainly think the suggested method of distribution is an improvement on the previous one, and there being no hope of repealing the sugar legislation, I am bound to give my support to the new proposal.
– The remarks of the honorable and learned member for South Australia, Mr. Glynn, to some extent cover the ground it was my intention to traverse. I want, however, to ascertain from the Treasurer what the system has been in reference to the repayment of these rebates. From what I could glean from the Treasurer’s speech, the rebates in many instances have not been paid ; and the Treasurer uses the term “ paid “ as if the producers of sugar by white labour first handed over the £3 excise, and subsequently, as a separate transaction, received the £2 per ton rebate.
– The growers do not pay the excise ; the refiner pays the excise, and the grower gets the rebate.
– If such is the case, that is not in accordance with, the Excise Tariff Act. In the schedule of that Act we find that the duty per cwt. of manufactured sugar is - 3s. until the 1st January, 1902, less, from the 1st July,1903, a rebate to the grower of sugar cane and beet. The rebate in the case of sugar cane to be 4s. per ton on all sugar delivered for manufacture, and in the production of which sugar cane white labour only has been employed after the 28th February,1902. The rebateis calculated on cane gi ving 10 per cent. of sugar, and is to be increased or reduced proportionately accordingto any variation from this standard. A similar rebate to be allowed in respect of sugar-beet - the rebate to be allowed at the rate of £2 per ton on the sugar-giving contents of the beet. All rebates to be allowed at the time of delivery of the cane or beet on the ascertainment in manner prescribed of the sugar-giving contents…..
I desire to call attention to the words which provide that all rebates are to be allowed at the time of the delivery of the cane or beet to the manufacturer. It is here provided that the rebate is to be allowed - not to be paid. What is the. rebate to be allowed on? If it is ascertainable at the time of delivery what quantity of sugar there is in the cane or beet, there is an allowance on the quantity. What does “ rebate “ mean? We provide in the Excise Tariff Act that there is to be an excise of £3 per ton on Australiangrown sugar, with a rebate of £2 per ton on sugar grown by white labour, that rebate to be allowed on the delivery of the cane or beet to the manufacturer or at the mill. It is easy enough to ascertain at every mill what are the sugar-giving contents of the rough syrup after the first crushing. Does the Treasurer mean that, in the first instance, the grower, on delivery, has to be paid £2 in hard cash, and that the £3 excise has not to be received until after the article is completely manufactured? If that has been the system, it strikes at the root of the whole excise legislation. When we passed the Excise Tariff Act our intention was to have, practically, three duties - a duty of £6 per ton against foreign imported sugar, an excise duty of £3 per ton on Australian sugar grown by black labour, and an excise of £1 per ton on Australian sugar produced by white labour. That allowance on white-grown sugar was not termed a bonus, but a “ rebate “ - a discount on the £3 per ton to be allowed if it was ascertainable in a sufficiently correct manner what the sugar-giving contents of the cane or beet were at the time of delivery. The schedule in the Act goes on to say - the average sugar-giving contents of the cane or beet inany particular district shall be taken to be the sugar-giving contents of each lot of cane or beet in such district.
If the rebate has merely to be allowed, it is an allowance and not a payment. Surely it was never contemplated that the Treasurer would pay £2 per ton in cash. The idea was rather that the Treasurer would allow a rebate or discount, reducing the duty on white-grown sugar to £1 per ton. It was pointed out by the honorable and learned member for South Australia, Mr. Glynn, that New South Wales dealt with 10,200 tons of white-grown sugar and 39,800 tons of black-grown sugar imported from Queensland. It will be remembered that section 93, sub-section (1), of the Constitution provides -
The duties of Customs chargeable on goods imported into a State and afterwards passing into another State for consumption, and the duties of excise paid on goods produced or manufactured in a State and afterwards passing into another State for consumption, shall be taken to have been collected not on the former but in the latter State.
That is to say, the excise payable on this white-grown sugar produced and manufactured in Queensland would be £3 per ton, less the rebate or discount of £2 per ton, and New South Wales ought to have been credited with the duty on 39,800 tons of black-grown sugar at £3 per ton, or £119,000 more. There is no question of this being a bonus. What is important is that this £1 per ton ought to have been collected at the time the sugar cane was brought to the mill, if the Customs authorities were satisfied that it had been grown by white labour, and the amount realized ought to be charged to Queensland on its export to New South Wales and credited to the latter State.
– Does the honorable member say that the excise ought to be collected when the cane is delivered at the mill?
– Why not?
– Because the excise is payable on manufactured sugar.
– If the rebate of 4s. per ton can be calculated on cane giving 10 per cent. of sugar, the excise can be ascertained. I cannot understand why, if the rebate of £2 per ton on sugar beet can be ascertained and allowed at the time of delivery, the excise of £3 per ton cannot also be calculated. What is the meaning of the words that the rebate is to be “allowed”? Is it that the Treasurer has, first of all, to draw a cheque, and allow the rebate on the ascertained contents, and then at some future period, he not then being able to trace the cane or beet, must trust that he may be repaid the excise of £3 per ton. Whatever may be the views of honorable members as to rejecting the original system of debiting the whole of Australia on aconsumption basis, and accepting the proposal todebitona population basis, it must be seen that clause 7 of the Billbefore us overturns legislation which was approved and passed by this House. That clause practically says to the various States, which should have received regularly month to month payments of the balance of excise on the sugar consumed - “Although you received £1 excise upon the white-grown sugar you consumed, you will have to pay back to us your proportion of the rebate of £2 per ton, in order that one or two States may obtain a benefit we did not reckon on before.” This is a Federal question of great magnitude; and I feel satisfied that if many honorable members had known the extent to which they were pledging the taxpayers of the Commonwealth, the proposal to give this rebate on white-grown sugar would have received much closer attention.
– I called attention to this aspect of the question at the time.
– The provision would have passed all the same.
– The provision might have passed, but there would have been much fuller discussion on the whole question. I am not going to argue that the proposal in the Bill - I am not now alluding to the retrospective legislation - that the whole Commonwealth shall pay in proportion to its population is unfair or inequitable. I do not think it is. I am inclined to take the view that, having discovered that the original position was a wrong one, the equitable and proper course to adopt was to bring in this Bill. But to my mind it is not fair to make the measure retrospective as is done by clause 7, and thus to charge amounts against States whose Governments had no idea that such charges would be made, and to keep from them sums of money which should have been paid to them long ago. I shall vote for the second reading, but I hope that the Treasurer will agree to the omission of clause 7, so that the measure may take effect from the date of its becoming law. It is not fair after a period of eighteen months to go back on our legislation, and make what are practically surcharges upon the States. If the clause is not omitted, there will probably be a great deal of trouble in getting the Bill through the other branch of the Legislature in which the States are specially represented. I trust, however, that the Treasurer will not oppose the attempt which will be made on this side of the Chamber to prevent the Bill from being retrospective, and in Committee I shall move the omission of clause 7.
– I do not know that I rejoice at the introduction of this Bill, but, as I have no wish to display an unfederal spirit, I suppose I must support its second reading. I fear that this is the price which the Commonwealth has to pay for a white Australia. It is rather hard on South Australia, however, because that State has in the past paid very heavily to prevent the introduction of coloured labour into the Northern Territory. I shall support the second reading.
– It must have been gratifying to most honorable members to hear the plain and open statement of the Treasurer that, in his opinion, our original legislation upon this subject was wrong, and that he is now taking the earliest opportunity to amend it. Even under the arrangement provided for in the Bill, Queensland will lose to the extent of £862 ; but the Treasurer put his finger upon the weak spot when he stated that the feeling in that State arose because of the misapprehension of the Premiers of both Queensland and New South Wales, that their States will be called upon to pay the whole of the rebate. That was not contemplated by Parliament, nor was it provided for by the Act. It is satisfactory to those who supported the white Australia policy in the beginning to find that it is now being largely indorsed. In my opinion, our enactments will produce good fruit, and will prove to be for the welfare, not only of Queensland and New South Wales, but of the whole Commonwealth. I do not agree with the honorable member for South Australia, Mr. V. L. Solomon, that the Bill should not be retrospective. I would rather enlarge its scope than restrict it, and therefore I hope that the Treasurer will take power to enable him to pay bonuses from year to year as the planters increase the areas cultivated by white labour. It is no doubt the wish of honorable members that all the sugar grown in Australia shall be grown by white labour, and I think that such an alteration of the Bill as I suggest will help to more quickly achieve that end. I regret the tone which has been adopted by some of the representatives of Victoria who have spoken upon the Bill. Although originally Queensland was called upon to pay most heavily for a white Australia, I, as the representative of a Queensland constituency, nevertheless cheerfully supported the proposal to grant the rebate upon beet sugar grown by white labour which the Victorian representatives, selfish above those of every other State, desired. I am not parochial, however, in regard to this matter. I. think there is not a State in
A ustralia which cannot produce sugar, and I should like to see Victoria undertake the production of beet sugar. Then we shall have a truly national policy which every one of us can support. I am exceedingly pleased that the Government proposal has been so well received, and I venture to think that it will be more equitable than the arrangement which has prevailed in the past. The admirable speech of the honorable member for North Sydney on the subject, however, leaves practically nothing more to be said. Many of us plainly saw, in the first instance, that the original arrangement could, by an understanding between the sugar-growers and the manufacturers, be made to work distinctly against the interests of particular States. Victorian representatives should remember, however, that while under the present arrangement their State will be £16,286 to the bad, it might have been next year, under the old arrangement, twice as much to the bad. I congratulate the Treasurer upon the plain and frank statement which he made. It is a credit to the Government, and an honour to Parliament, to have such a man in his position.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clause 1 agreed to.
Clause 2 -
There shall be paid out of the Consolidated Revenue Fund, which is hereby appropriated accordingly, to every grower of sugar cane or beet within the Commonwealth, in the production of which sugar cane or beet white labour only has been employed after the 28th day of February, 1902, a bonus, at the rates provided by this Act, on all such sugar cane or beet delivered for manufacture after the commencement of this Act, and before the 1st day of January, 1907.
– The honorable member for Wide Bay has referred to a matter in connexion with this clause which has been under my consideration since I saw the Bill in print. It is a somewhat important one, and I have, therefore, consulted the Prime Minister and the Attorney-General with regard to the effect of the clause as it stands. I take it that it is the desire of Parliament to encourage persons who are now employing black labour to substitute white labour for it. But if we provide that bonuses shall be paid only upon sugar-cane grown by white labour after a certain date, and delivered for manufacture before a certain other date, those who are now using black labour will have no inducement to substitute white labour for it in some future period. That is not our intention, and the original provision in the Tariff Excise Act was intended to mean that during each year rebate should be allowed to those who after a certain date in that year use white labour only. It was not intended that the Act should not apply to those who, after two or three years’ experience, said - “ We are going to abandon black labour and employ white labour,” or to those who will be forced by the operation of the Pacific Islands Labourers Act to do so. The effect of the clause as it stands, however, is that only in cases where white labour only has been employed after 28th February, 1902, in the production of sugar cane or beet which is delivered for manufacture before the 1st January, 1907, shall a bonus be paid. Therefore, if a grower employed any black labour after 28th February, 1902, and during this year’s operations, which will commence about July, employed white labour only, he would get no benefit under the Bill. To obviate that difficulty, I move -
That after the figures “ 1902,” line 7, the words “or such date in each year thereafter as may be prescribed 11 be inserted.
– Will the provision apply to a part, or only to the whole of a plantation ?
– It applies to both. If a man can show that he has used only white labour on so many acres of his plantation, he will be entitled to a bonus on the sugar-cane grown on the area. Of course, a careful check is kept, and any one trying to evade the provisions of the law will be prosecuted.
– A great deal of inspection will be necessary.
– It has been found, from our experience last year, that not much inspection is required. The arrangement seems to work fairly well. The effect will be to allow the Minister to fix a particular date in each ‘ year, and the growers will be informed that if after that particular date they do not use black labour they will be able to claim the benefit of the bonus. That will be in accordance with the intention of Parliament, and will operate with fairness and justice. It will offer an inducement to growers to use white labour, whilst at the same time it will be equitable to those who are forced to use white labour because the black labour has been sent away from them.
– I should like to know whether it is also intended to allow planters who have been using white labour and have reverted to black labour to again register as employers of white labour only 1
– I think that would have to be permitted, but for any year in which the grower employed black labour he would forfeit the rebate.
– But supposing he were to wish to register again 1
– I know that that has been allowed ; but the matter is not dealt with by the amendment, which only proposes to fix a date.
– I think that the Government have been imposed upon. I am informed that a number of the growers have registered as employers of white labour, have put white men on to work for a short period to cut cane, and have afterwards employed coloured labour to cultivate the ground preparatory to the next cutting season. It will be very difficult if one portion of a plantation is to be registered as cultivated with white labour and another portion as worked with black labour, to keep in perfect touch with the actual conditions.
– We could not very well refuse permission for a man to register part of his plantation as worked with white labour when he has a big property and wishes to bring about the change from black to white labour by degrees.
– At At first sight it may appear rather harsh to refuse, but we have to consider the difficulties of administration. It will not confer much benefit on the Commonwealth if we have to pay rebate to planters who use black labour, as well as white labour. I am informed that in some instances nearly the whole of the work of the plantation, except the cutting of the cane, has been done by black labour, and that the rebate has still been secured by the planters.
– If we could get evidence to that effect we should prosecute the persons concerned.
– No doubt it is very difficult to induce people to come forward and swear to the facts in such cases.
– There has been at least one prosecution in Queensland.
– Yes : and I am informed that there have been one or two cases in New South Wales also. But, in order to comply with the spirit of the law, the cane-growers should be compelled to employ white labour for the twelve months preceding the cutting of the cane, as well as during the cutting season. According to the proposal of the Minister the date could be altered to suit the growers who could cultivate their ground with black labour, and then just before the cutting season register as employers of white labour.
– The regulations could be framed in such a way- as to prevent that.
– What I desire to point out is that the growers have been allowed to again register themselves as employers of white labour after reverting to the employment of black labour, and I think that that practice should be stopped. Cane-growers should make up their minds which kind of labour they will employ, and if they once revert to black labour after having employed white men, they should not be allowed to register again. I admit that there is great reason why those who employ black labour should be encouraged to substitute white labour, and I should not care to do anything to prevent them from securing the benefits conferred by the law, but it is wrong to allow planters to shift about from one form of labour to another, because such action is in direct opposition to the spirit of our legislation, and must lead to great difficulty in adminstration.
– The honorable member for Bland is in error if he supposes that it will be possible to carry out the intentions of Parliament without allowing portions of plantations to be worked with white labour. Our desire is to encourage the employment of white labour upon territory now occupied by black labour, and to bring about this change to the greatest possible extent at an early date. It would be impracticable for the large planters to get rid of the whole of their coloured labour at one fell swoop, and at the same time secure a sufficient number of white men to enable them to work the whole of their plantations. For that reason it will be sound policyon our part to allow them to set apart a portion” of their plantations to be worked with white labour, so that they may bring about the change gradually, and under circumstances which will best suit their own purposes. No greater clanger of imposition arises in such cases than in connexion with very small holdings. We must provide for the inspection of the plantations, and upon this point I think that it would be better if we adopted a more efficient system than that now in operation. I do not think that the Commonwealth has suffered very much from impositions in Queensland, but the inspection should be a little more vigilant than it is.
– Does the honorable member think that a planter, after having registered as an employer of white labour, and having reverted to black labour, should be allowed to re-register?
– I do not know of any case in which that has happened.
– I know of one case in which a man registered as an employer of white labour, but unfortunately afterwards had to use black labour, and thereby forfeited his claim to the rebate. He was allowed to register as an employer of white labour for the following year.
– I do not think there could be any serious objection to reregistration in such a case, because the planter was actually prepared to employ white labour, but was placed in such a position that he was compelled to forfeit his claim to the rebate.
– That is not the case to which I referred.
– I am not aware of any others ; but if planters voluntarily return to the employment of black labour they should be penalized in some way when they seek to again register as employers of white labour.
– I submit that the Treasurer is perfectly right in the view which he has put before honorable member’s, and that weshould not disqualify any planters who are willing to employ white labour. It must be clear to them that they cannot claim the bonus if they employ black labour in the production of their sugar, and we should do nothing to discourage them from employing white men.
– I should like to be assured by the Treasurer that this clause does not form part of the retrospective provisions of the Bill. It may be read as if it did, because it refers back to the time of the commencement of the Excise Act.
– No ; it has no retrospective effect.
– I am willing to accept the Treasurer’s assurance ; otherwise certain amendments would be necessary.
– The Treasurer has not explained why there is any necessity to fix a date.
– We must fix some time in order to prevent planters from using white labour and then reverting to black labour.
– But the words “in the production of which sugar cane or beet white labour only has been employed,” are used, and I do not see any necessity to fix any date if white labour only has been employed in the production of the sugar. There was a necessity for fixing a date when we offered the rebate in the first instance, because there was no inspection prior to the passing of the Act. But now the planter has to register as an employer of white labour, and he has to satisfy the inspector that the cane has been grown by white labour only. .
– But they have to make their declaration early in the year, so that the inspector can keep his eye on them.
– But if the planters know that they will not get the bonus unless they can prove to the satisfaction of the inspector that they have employed onlywhite labour in the production of the cane, that should prove sufficient without fixing any date.
– But the planters have to declare the area upon which they intend to employ white labour, so that the inspector may exercise his vigilance in regard to that particular portion of the plantation.
– But that does not affect the question of fixing the date, and I do not see any reason why we should give this arbitrary power .to the Minister. It is sufficient for all practical purposes to provide that the bonus shall be paid in respect to sugar, in the production of which only white labour has been employed.
– It would appear from a casual view that the contention of the honorable member is correct, but honorable members will notice that the date fixed is the 28th February, 1902. Some of the cane upon which the growers were granted exemption prior to 2Sth February, 1902, has not yet been dealt with, and therefore the honorable member will see the necessity for the insertion of the first date. Whenever a sugargrower is prepared to substitute white for black labour, the Bill should encourage him to do so.
– But why give this exemption every year 1
– Let me give the honorable member an illustration of what I mean. A grower who is employing black labour may apply to the Commissioner, informing him that he intends dispensing with it. In such circumstances, the Bill gives him an opportunity of registering his name as a grower of sugar by white labour. The total abolition of black labour in the sugar industry must be a gradual process. By fixing the first date and making it applicable to crops which are not yet two years old, and which will come in at the next cutting, we necessarily require a second date.
Mr. CONROY (Werriwa). - I must ask the Treasurer to seriously consider this clause. Upon looking into it carefully it seems to me that in its present form the Government may be called upon to pay both the rebate and the bonus.
– We have introduced a Bill to abolish the payment of the rebate.
– But suppose it is held that the growers have a legal claim to the payment of the rebate, and that afterwards they demand the bonus 1
– They cannot do so. The Bill providing, for the payment of the rebate will be repealed before the bonus is forthcoming.
– But I understood that all claims for rebate have not been paid 1
– All have been paid. It is the other money which has been held.
– Is the Prime Minister quite sure that the words “ the 28th day of February, 1902,” will not have a retrospective effect ?
– They will be retrospective only as to our intention, which is to deal, with sugar cane or beet in the production of which white labour has been employed since 28th February, 1902.
– That question, therefore, could not arise under this clause ?
– When the payment of the rebate has been converted into a bonus, everything in the nature of rebate which has been paid will be accounted to have been paid by way of bonus under clause 7.
– Quite so; but many honorable members, though quite willing to vote for the provisions contained in this clause, are not disposed to make its operation retrospective. ,
– This clause cannot affect that matter. Clause 7 will settle it one way or the other.
– It seems to me that under this provision the matter might be open to argument.
– It is only a question of distribution that is involved. All the growers have been paid.
Mr. THOMSON (North Sydney).- In spite of the explanation offered by the honorable member for Richmond, I do not see any necessity for the amendment which is proposed. The fixing of a date might be necessary to confer exemption upon those who employed a little black labour before the Excise Tariff Act came into operation, but it will not be necessary in the future.
– Would the honorable member shut the door against every employer of black labour in the future ?
– When the Act is in operation everybody is acquainted with the fact. Are we to allow the Minister the option of granting absolution every year?
– It is not a question of absolution.
– The honorable member for Richmond explained that it was necessary to insert this date because, prior to the Act becoming operative, some sugargrowers who had employed black labour upon preliminary work in connexion with their crops might be quite willing to employ white labour. He urged that it would not be right to penalize them for having unwittingly offended. It was necessary, he urged, to fix a date so that they might be absolved from any penalty applicable to their actions before that date.
– That is not the idea at all.
Mr. EWING (Richmond). - I would point out that the employment of black labour was not an act of inadvertence on the part of a great many sugar-growers. They were employing black labour, and it was necessary to fix a period when that practice should be discontinued. Hence the necessity for inserting the first date. The sugar-growers have obtained exemption for the crops put in prior to that date. That cane has not yet been dealt with ; bonus is still to be paid upon it. Then, ‘if there is to be a gradual abolition of the employment of black labour in the sugar industry, is it not obvious that the Minister must be vested with power to allow the growers, when they so desire, to dispense with it, and become cultivators with white labour? Otherwise, we shall have the same number of sugar-growers by black labour in 1907 as we have now.
– If I understand the clause aright, the insertion of this date is by way of limitation of the bonus payable upon the sugar produced by white labour.It will prevent the bonus from being payable to any grower upon sugar manufactured by white labourprior to the 28th February, 1902.
– That is dealt with by the Act, which is already on our statutebook.
– Then this clause merely repeats that provision ?
– It also gives an extension to those sugar-growers who may desire to avail themselves of the provisions of the Excise Tariff Act in the future.
Mr. THOMSON (North Sydney).- I really think that honorable members are becoming very confused in regard to this matter. To my mind we are asked to encourage the payment of bonuses upon sugar which has been partially grown by black labour. I do not think Parliament ever intended that that should be done when once the Excise Tariff Act was in full operation. We were told that it was necessary to fix a date because the sugar-growers, when their crops were put in, could not foresee that such an Act would be passed. Now we are asked to allow the Minister to declare each year that cane which has been dealt with by white labour for only two or three months shall participate in the payment of the bonus.
– Let the honorable member suppose that a man had never grown any cane at all, and desired to start growing it by the employment of white labour. Without this provision he could not do it.
– Why not ? If he cultivated the cane by white labour he would participate in the bonus. Why is it necessary to fix a date prior to which the employment of black labour will be allowed, seeing that the Act has already been in operation for something like twelve months? Having originally fixed the date as a starting point, there is no necessity to do anything more. . We can declare that whilst up to that date some exemption would be granted, after it, weexpect the conditions imposed to be carried out. Surely that will place the matter upon a reasonable basis. We are supposed to be passing a law to encourage the production of sugar by white labour, whereas we are really giving the Minister power to say that each year a certain quantity of sugar produced by black labour shall participate in the payment of the bonus. He may say that he will allow that payment upon sugar which has been dealt with by white labour for only three months.
– If he did so, the House would intervene.
– We have experienced a great deal of trouble in connexion with options given to Ministers - options which have been used in a way that Parliament never intended. We have full power over the Customs and a host of other regulations, but we found that when we gave certain options under the Act they were used.
– What is the object of renewing the options each year ?
– To allow those who have been employing black labour to come in.
– To allow of the extension of the” employment of white labour from year to year.
– There is no necessity for any. such extension after the Act has been in force for a considerable time. The Statute itself provides the necessary encouragement. Surely we ought not to be called upon to pay a white labour bonusupon sugar which has been chiefly produced by black labour. I see no necessity for the options which are now sought. Therefore there is no occasion to . confer upon the employers of black labour that exemption which was extended to them when the Act first became operative. I shall certainly oppose the amendment.
– I think we are all hopeful that, within two or three years, black labour will not be employed in the production of sugar. Estimates have been made of the cost involved in its abolition. If it be wise to dispense with, black labour, it is equally wise to encourage the sugargrowers who have been employing it either prior to or since the 28th February, 1902, to substitute white labour for it.
– How will it encourage them to give them a bonus for sugar grown by black labour ?’
– We do not do that.
– If we fix an original date, and give -a bonus upon all sugar grown by white labour after that date, will not that be sufficient ?
– No. Because by doing that we would shut out all those who have been growing by black labour for any period after that particular date.
– Can they not come in at any time after that original date?
– Under this Bill, without the amendment proposed, they could not.
– Then the Bill is faultily drawn ?
– My honorable friend will see that the object is to allow them to come in after the original date, and the amendment proposed will effect what the honorable member apparently desires.
– What I desire is I think the simplest course to pursue - fix a date and say that any one who produces sugar by white labour after that date in any year shall be given the bonus.
– (HunterMinister for External Affairs). - The purpose is to give the bonus, to put it shortly, to growers of cane or beet sugar in producing which white labour only has been employed after the 28th of February, 1902. We thought that the Bill as printed would have carried out what is desired by the honorable member for Gippsland. But there are occasionally faults in the drafting of a Bill, and, on going through the matter again, we found that it was a sine qua non, if the clause were to stand as in the Bill without alteration, that where a person desired to get a bonus for the growth of sugar by white labour he must have started employing white labour in the growth of that sugar on or before the 28th day of February, 1902, and, if he was still employing black labour on the 1st or 2nd March, 1902, he would have no claim to the bonus, although he might on that date have ceased cultivating with black labour and have begun cultivating with white labour. The object we all have, I take it, is that persons who successively commence to employ white labour from time to time shall have the benefit of the bonus. We had, therefore, to discover in what way this clause could be amended, as otherwise it would not carry out the purpose we all have in view. After consultation between the Treasurer, the AttorneyGeneral, and myself, the only way to effect that purpose seemed to us to be the insertion of some such words as these - “ or such date in each year thereafter as may be prescribed.” It is necessary to provide some starting point, so that there might be some locus penitentice, some time allowed in each year when growers of cane by white labour alone might begin to earn the bonus. I do not see in what way this provision could be abused, except that there will probably be ‘ occasional deceptions, and in. those cases there will be no hesitation in employing the criminal law to punish anybody guilty of offences under the Bill.
– The proposal gives those who come in later no advantage over those who came in originally
Sir EDWARD BRADDON (Tasmania). - The intention of the Bill is to provide a bonus upon sugar grown only by white labour. If the words which define a certain date, the 28th February, 1902, are inserted, they will involve this complete discrepancy - that sugar which has been grown, we will say for one month by white labour and by black labour for sixteen or seventeen months, will be just as much entitled to the bonus as if it had been cultivated by white labour for the whole of the eighteen months.
– That depends upon the day of the year we fix.
– Why should there be any day fixed by which sugar grown chiefly by black labour may be brought under the provisions of an act intended to encourage the use of white labour? We need not have .any date fixed, and I submit that if all reference to the date is omitted the clause will carry out the purpose of Parliament in a way which will do injustice to nobody.
Mr. EWING’ (Richmond).- I have already explained why it would not do to leave- out all reference to a date. I am satisfied that the honorable members for Gippsland and North Sydney approach this question fairly, and desire only to be convinced.
– We have no desire to pay a bonus for sugar grown by black labour.
– We are not dealing with that aspect of the case now. We are en- deavouring to prove that the action taken by the Treasurer in introducing this amendment is correct. The end in view is the attainment of a white Australia, and the abolition of black labour in the sugar industry.
– Yet, it is proposed to give a bonus for black labour.
– If the honorable member will bear with me for a moment, I will state a case for him : Suppose the honorable member is a sugar-grower in Northern Queensland, and has been employing 200 kanakas on the date set out in the clause, the 28th February, 1902. On that date the honorable member finds himself with certain responsibilities to, say, 200 kanakas, and with no white men available. Obviously it is not possible for him on that date to register as a grower of sugar by white labour. It is equally obvious -that he must remain for all time a producer of sugar by black labour, or else he must be given a subsequent opportunity to register. Is that clear
– It is not clear that he will not have a subsequent opportunity.
– If he fails to come “in on the date specified, he must permanently remain a producer of sugar by black labour or he must be given a subsequent opportunity.
– Does one crop last a life-time 1
– One planting may last for seven years. In fairly good soil, from the time the cane is first planted, it may last seven years.
– How often will the honorable and learned member find it lasting longer than two or three years ?
– I know exactly what I am talking about in this matter. Honorable members make the mistake of confusing years with crops. In New South Wales, generally, sugar-growers cut their cane once in two years, and a sugar-grower who will get three crops from tolerably good soil will get them from cane which has been planted for six years.
– Then under this clause he could not get a bonus for years to come 1
– Yes, because he is exempted prior to the date we have already referred to. I pointed out that this exemption was necessary in the first instance, because the cane crop might last for seven years. A crop put in two years ago, prior to this date, is not yet cut, and that difficulty had to be overcome. To continue the argument ad hominem, the question arises : what is the honorable member for North Sydney to do when, on the date referred to, he finds himself with black labour of various descriptions, and, therefore, unable to register ? Clearly if he is going to have fewer kanakas in 1907 than he has to-day we must give him a subsequent opportunity to come under the Bill. What we are fighting for now is that subsequent opportunity. The honorable member desiring to employ white labour in the growth of sugar, finds a little later on an opportunity of doing so. He applies to the Department and says that he has now made arrangements for getting rid of his kanakas as there are white men available for the cultivation of sugar. The Department must be placed in a position to meet him, and how can that be done unless we give him the opportunity of a subsequent date upon which he can come under the provisions of the Bill ? As has been explained by the Prime Minister and the Treasurer, if that is not done we shall, in 1907, have as many kanakas employed as we have to-day. If the sugargrowers do not get the benefits of the Bill, they will not get rid of their kanakas. If the contention of the honorable member for North Sydney is correct, we should pass a Bill which would be absolutely inoperative beyond its first effect. The idea was a gradual abolition of the employment of black labour, as we knew it was not possible for the people of Queensland to obtain all the white labour they required at once. How often have we, in discussing the matter here, pointed out that Queensland had 8,000 kanakas which must be gradually got rid of? If the contention of the honorable member for North Sydney is correct, what is proposed will be a refusal to allow those kanakas to be gradually got rid of. If the bonus is to lead to the gradual abolition of the use of black labour, there must be various dates provided for registration, and the person who must be allowed to decide the dates must be the Minister for the time being.
– I am one of those who have not seen the necessity for the subsequent dates. It does appear to me that the whole intention is to get a bonus for a crop grown partly by black labour. That must be the general conclusion from the speech to which we have just listened.
– Members have admitted that.
– Is that theintention of honorable members? Is it the desire of members of this House that these people should be encouraged to put in a crop and nurse it for two or three years with black labour until it begins to yield, and then say that they wish to come under the Bill and secure the bonus for sugar grown by white labour?
-What are they to nurse it with if they cannot get white labour ? They have started the crop; we are dealing with a going enterprise.
– I take it that without any reference to dates in the clause, if I were a sugar-grower in Queensland and started to plant cane to-morrow with white labour I should be entitled to the bonus if I continued to comply with the conditions as to labour.
– Then, what is the necessity for fixing this date if it is not to give people the advantage of using black labour in the production of the sugar up to a certain date ?
– Where is the advantage ?
– They have been using black labour for some time, and we desire now to whitewash them; but honorable members appear to me to wish to give them the benefit of the bonus for sugar which is only partially the product of white labour. I do not like this Bill at all. I believe that under it we shall require as many inspectors as there are plantations. If a man is to be allowed a bonus upon sugar grown upon an acre in this plantation and an acre in another, a great many inspectors will be required.
– This amendment does not affect that question.
– I grant that.
– My honorable friend will see that many of these planters have kanakas under contract for one, two, or three years, and they cannot at once get rid of them. Gradually they will get rid of them and employ white labour, and from the time they employ white labour they ought to get the benefit of the Bill.
– Will these planters never plant again ? Have they got in a crop which will last for all time ? If the bonus is to be paid on the sugar which is grown by white labour, it must mean that it is to be given from the time when the crop was put into the ground, otherwise we are giving a bonus for the employment of black labour. Suppose that I was a grower of beet ; that I used coloured labour up to the time when the beet was fit for conversion into sugar, and that I used white labour for that purpose, should I be entitled to get the bonus under this amendment ?
– No ; because the date would be prescribed in such a way as to prevent any of those frauds being brought about.
– I am afraid that the clause is very loosely worded.
Mr. FISHER (Wide Bay). - I am as keenly alive as any one else . to the danger of any sugar-grower getting at the
Treasury. It seems to be obvious, as all the planters could not put the whole of their plantations under white labour to begin with, that, from time to time, as they intend to increase the area to be planted with cane, and worked with white labour, it is advisable that there should be a date fixed - each year if you like - after which they must use white labour wholly in the production of cane to earn the bonus. That is practically what the amendment does, with this difference, that it allows the Minister to prescribe the date. It is absolutely impossible to do other than to allow the planters some of the advantages which may have accrued to them by using black labour up to a certain point. They are not going to root out their cane for the mere purpose of earning the bonus. I do not suppose that honorable members would be so absurd as to say that the planters should root out the latent capital which had accrued from the employment of black labour with the sole idea of having the whole work done again by white labour. The honorable member for South Australia might as well say that if a plantation had been ploughed and trenched in past years by black labour the work should be re-done now by white labour. It is perfectly clear that those planters who may come in at a later stage will reap no greater advantage than those who came in at first.
– Yes, because they have had to pay lower wages to their blackfellows.
– I submit that those who come under the Act next year will have no greater advantages than those who registered during the first year of its operation. If it is a question of policy, why should we differentiate? I hope that honorable members will see that it is the right thing to make this amendment.
– I have tried to explain that the object of the amendment is to keep open the door of repentance to those who have been growing cane with black labour, and desire to come under the provisions of the Act. In addition to that, some planters could not help themselves, because they had labour contracts with one, two, or more years to run, and we are giving them an opportunity to come under the Act. A fear has been expressed that a date will be fixed which would allow nearly the whole of the work to be done with black labour, and that just as the last stages were being reached, white labour would be employed. No Minister would be foolish enough to fix any such date. As the 28th February has been fixed after full inquiries as the proper date in the year when we should stop the employment of black labour, I have.no objection to alter the amendment by inserting the words “ or the same day in the year,” so that if the Minister during a year chose to prescribe that after that year the bonus may be allowed, then he must fix upon the 28th February. That date would allow for a very large amount of employment to the end of the year in cleaning the cane, trashing and cutting, and taking to market. All that work has to be done after the 28th February. If it is feared that a misuse might be made of the power by the Minister fixing a wrong date, the amendment I suggest would meet that objection. Parliament always has control over the regulations ; they have to be laid upon the table, and if any tiling unfair has been done, a regulation can be annulled.
– Will the same date suit Queensland as will suit New South Wales ?
– Apparently the same date has been fixed. I think that it had better be left to the discretion of the Minister, who will act as circumstances may require him to do. We have two difficulties to face. Either we are to shut out those planters who have been forced to use black labour for a portion of the time, or we are to run the little risk of allowing them to come in. That is a risk which we may well afford to run, leaving the controlling power in the hands of the Minister, who in his turn will be controlled by Parliament. I wish to encourage the growing of sugar by white labour.
– It seems that this is rather a difficult question to deal with. It certainly appears that the owner of land which has been prepared, planted, and cropped with black labour during the first year may come under the Act at the end of that time when there is no planting to be done, and when a second crop is being grown from the stools. There we run the risk of allowing the bonus to be paid on a crop of cane that had been planted by black labour in ground which had been tilled and worked by black labour up to the time when the trashing had to be done. I think the honorable member for Richmond will admit that in some places the growers get not only a crop from the first planting, but two, and even three successive crops from the stools. In fact, the third successive crop is very often better, stronger, and denser in sugar contents than the earlier crops. It is very difficult to get over the danger of paying a bonus on sugar produced from cane that was originally planted by black labour in ground which had been tilled by black labour, and upon which little or no work had béen done by white labour. The only way I can see out of the difficulty is by not passing this amendment, but by omitting the words “the 28th day of February, 1902.”
– That cannot help us. If a man has employed any black labour at all, he cannot come in at any time.
– It strikes out the necessity for white labour to have been employed ever since the date stipulated.
– That does not get over a case where the cane was planted by black labour.
– It does entirely.
In the production of which sugar cane or beet white labour only has been employed.
Surely those words are definite enough ?
– If the cane was planted by black labour, the grower could not get the bonus under the suggested amendment.
– How long does that last 1
– That lasts for five years.
– I do not wish to go, nor do I think that we shall go as far as that, by omitting those words. I believe that in most instances the original stools are rooted up after three years.
– Very far north that may be so ; but about Bundaberg they can get seven crops.
– Then we are placed in this position - that on sugar-cane which was planted three or four years before the principal Act was passed, and’ worked by black labour, we may be paying this bonus. ‘
– We have paid it.
– What proportion, of the labour is represented in the planting 1
– The preparing of the ground and the planting of the cane represent a very large proportion of the labour.
– The kanakas do not plough.
– It may not be necessary to plough the ground. In many instances they only dig holes in which to plant at short distance the pieces of cane for each stool. I have seen the cane planted. A very large portion of the cost involved is in clearing and preparing the land, and planting the cane. I have not gone into the proportions of expenditure, but I know that the processes of preparing the ground and planting the cane cost more than any other processes in sugar production except the milling. I am certainly against giving extended powers to the Government to work a Bill like this merely by issuing a proclamation each year.
Mr. CONROY (Werriwa). - I think I can suggest an amendment which will meet all the circumstances. I would suggest making the clause read -
In the production of which crop of sugar cane or beet white labour only has been employed.
This would get over all the difficulties.
– During what period of the year is the crop produced 1 Surely after the 28th February ?
– The cane is planted in one year and harvested in another.
– I suppose, it is harvested in July, August, and September ; and it is planted certainly before the 2Sth February.
– But the effect of the proposal of the Bill as it stands would be that, if the cane had been planted before the 28th February, had been attended to for eighteen months, and was cut in July the following year, the grower might be able to obtain the bonus, although his crop had been grown by black labour for the first nineteen or twenty months. He might have stopped short in the employing of black labour on the 28th February, and might be able to obtain the bonus of £2 per ton, although the earlier part of his operations had been carried on with the aid of black labour. I presume that the intention of the Treasurer is to insure that each crop on account of which the bonus is paid shall have been sown and produced by white labour only. But if what is now proposed were carried it would mean that for the first eighteen or twenty months black labour might be employed.
– So would the honorable and learned member’s suggestion mean that.
– Oh, no ; the amendment I suggest would refer only to a crop that had been produced by white labour exclusively.
– The object of having a date was to enable us to fix a reasonable time each year. I think it is wiser to leave the matter to the control of the Minister.
– There seems to be a fear as to the administration of the Minister; the Committee does not seem to care to leave the matter to be decided by him.
– The honorable and learned member will not trust the Minister ; that is the long and short of it.
– It means that to a certain extent. But the objection refers to any Minister. The Committee declines to allow the Minister to legislate when Parliament itself ought to legislate. Therefore no particular Minister should object to the limitation now proposed
– Surely the honorable and learned member would not ask us to pass a Bill fixing a date for each year 1
– We could so fix the date that it would be beyond the control of the Minister to say what the date should be each year, and every man in the Commonwealth who was growing sugar would be able to know upon what date the operation of this clause would take place. We might so amend the clause as to secure the employment of white labour for nine months.
– I am prepared to trust the Minister whoever he may be under the control of Parliament ; I will not put in any limitation of which I do not understand the effect.
– The effect of my proposal can be understood, because it prevents the Minister from altering the date. It says the bonus shall not be paid on account of any sugar in the production of which white labour shall not have been employed for nine months. We must remember that over 180,000 tons are produced in Australia, and that £360,000 may be paid away ; so that the amount of money to be paid away in bonuses is worthy of our consideration. I would urge the Treasurer to accept some such amendment as I have suggested.
– I do not think we should tie . our hands, because Parliament can control the Minister for the time being if he is wrong in the regulations he makes.
– What I ask is that the House, not the Minister, shall legislate. With every respect for the Treasurer, I would suggest that this provision will have to be administered by other Treasurers in the future. Probably he would object to control of this kind being exercised by a Treasurer .upon this side of the Chamber.
– I would trust the honorable and learned member if he were Treasurer.
– I .admit that there is a saving clause in the proposal in one way, inasmuch as it provides that the regulation shall be laid on the table of the House. That is a sort of safeguard. But I should prefer to see the matter dealt with in another manner altogether.
Mr. L. E. GROOM (Darling Downs).I cannot understand the objection that is made to the position put by the Treasurer. He has put a very fair,- just, and reasonable proposition before the Committee - that is, that it shall be left in the discretion of the Minister to fix a date in each year. The. Minister administering the Act would make inquiries from his officers as to which was the best date, and would act on that experience which his officers would bring to bear. The question has .been raised as to whether we ought to trust the Minister with these powers. What are the powers which we are asked to intrust to him 1 We have been, passing a series of Acts of Parliament, the object of which is to encourage sugargrowers to employ white labour. We are asked to intrust to the Minister the power to declare from time to time other dates, to enable those now employing black labour and those who wish to follow out the policy which Parliament has declared to be a wise one for Australia, to register themselves as growers by white labour. The Minister could not restrict the policy that has been inaugurated by anything he could do under this Bill ; all he could do would be to extend it.
– It would enable him to pay a bonus for the production of sugar from black labour.
– No ; only to those who were prepared to do away with black labour and to employ white labour, provided they did so before the prescribed date. We know that there was at first a great deal of hostility in regard to the employment of white labour in the sugar-fields. But now a change has come over the minds of the growers. We find that at places like Mackay, and other leading sugar centres, the growers are taking up the position that they should endeavour to make the white Australia policy a success. I notice with pleasure that Mr. Philp has given that advice - that the sugar-growers should do all they can to take advantage of the provisions of the Commonwealth Act, and to make the policy of a white Australia a success if possible. The point is, therefore, whether, as a Parliament, we should endeavour to give them every assistance we can, in order to carry out the policy we desire to see promoted. Here was a large national industry in Queensland, in which coloured labour had been employed. Our desire was to have ‘that industry carried on without any coloured labour being employed in it. When the growers themselves are expressing a desire to come under these provisions, if we can in framing this Bill give to the Minister power to enable him to further the policy we desire, it is our duty to do so. The proposal is perfectly reasonable, and does not ask us to take out of the hands of Parliament any power which it now possesses.
– We can fix provisions to cover what is proposed.
– I submit that is all that is proposed under the Bill. As the Treasurer has pointed out, under the operation of the Pacific Islands Labourers Act, the importation of kanakas will diminish every year, and finally cease ; and we know, further, that these coloured men are continually leaving the Commonwealth. There were a certain number of contracts in existence prior to the passing of that Act, and those contracts from time to time expire. What is desired is to enable planters, as their contracts expire, to set aside, under regulation, certain specified lands which they declare will in the future be worked by white labour only. As contracts expire it becomes more difficult to get coloured labour ; and if planters are desirous of making an honest effort to carry on with white labour we ought to extend a helping hand and preserve the sugar industry for Australia as a whole. There is no proposal to deprive the House of any power : on the contrary, there is an attempt to honestly and justly carry into effect the existing law.. We ought not to do anything to place obstacles in the way of a policy to which we are pledged and which we desire to see carried into effect. All that the Treasurer proposes are such powers as will enable the Minister, after consultation with his officers, to fix a date which will tend to the efficient carrying out of the policy. I hope the Committee will grant the powers asked for, because I am sure they will render valuable assistance to the industry, not only in Queensland, but throughout the Commonwealth.
Mr. THOMSON (North Sydney). - I have no objection to give the Minister any powers which we cannot properly define ourselves. So long, however, as we can accurately define the powers we desire to see exercised, we have no right to place in the hands of a Minister, who may now or in the future administer the Act, any such option as that proposed. By the change of a single day the Minister, under this Bill, would be able to put into or take out of the pockets of the people in this community thousands of pounds. There are honorable membersonboth sides of the Committee whose intention is similar and easily defined ; and we haveno right to remitextraordinary powers to any Minister when our intention can be made clear in words. The honorable member for Richmond desires the removal of any restriction which would prevent the bonus being paid in the case of a crop produced by white labour but grown from roots which, it may be, had lain in the ground for four or five years. That is my desire, and the desire, I believe, of other honorable members who may object to the proposal as it appears in the Bill. We have, in the words of the honorable member for Richmond, given absolution in the case of a crop partly produced or grown by coloured labour prior to February, 1 902. But I am against giving the bonus in the case of any crop - by this I do hot mean the root or stool from which the crop is grown - on which black labour has been employed after that date. I do not think that the Minister proposes that the bonus should be paid in the latter case.
– I do not.
– But the powers asked for would enable the Minister to give the bonus under such circumstances. Why should we give the Minister powers which he says he does not propose to exercise ?
– Because we cannot fix the date here.
– There is no need to fix the date. I do not profess to be a draftsman, but surely we have sufficient legal skill in the Chamber to make it clear that, whilst there will be no restriction in the case of cane coming from an old root or stool, there will be no bonus for a crop which has been produced by black labour for any portion of the time.
– What does the honorable member mean by “ crop “ ?
– Has the Minister never heard of a crop of peaches ? Does such a crop mean the peaches, or the trees from which they come ?
– I have never heard of a “ crop “ of peaches, or of a “ crop “ of sugar.
– Without using strict legal phraseology, I suggest that words such as the following be inserted in the clause after the word “ Commonwealth “ - in respect of each crop in the growth and harvesting of which white labour only has been employed.
Is not that the meaning of the Committee ?
– No ; the Committee want to go further.
– It is not exactly the meaning of the Committee, because the suggestion of the honorable member for North Sydney would apply to a crop planted, say, this year by black labour, and harvested perhaps two years hence by white labour.
– That is the very thing to which I am objecting. This legislation becomes a sham when we encourage people to employ black labour in planting, and then to ask the Minister to so fix the date that they may employ white labour for a short period, and qualify for the bonus. It must be remembered that aftei- the period to which the Pacific Island Labourers Act applies there will be a lot of floating black labour in Queensland, and that planters will have opportunities of employing either that or white labour. I do not object to the employment of black labour if it is there, and planters wish to have it; but I object to the bonus for white labour being given in any case except where white labour is used. The reason for originally fixing the 28th February, 1902, as the date was that no notice had been given to people who would 3o use white labour but had had a certain amount of work done by coloured men ; and it was considered unfair to exclude these people if they chose to dispense with the latter Joy that date. Now it is proposed to fix the 28th February for every year, and to give the bonus although it may be a two years’ crop and black labour may have been employed for twelve months or more. That is a most extraordinary proposal. The crop, properly speaking, is that which is cut from the sugar cane at a given time.
– The cutting of the crop commences about June or July. I should go further back.
– The Treasurer would not go further back than I should, because I say that all the crop ought to be produced by white labour. It is proposed to fix the date in February, and it is only from February to July that white labour would be necessary.
– The honorable member would go back to the original planting.
– I would not go back to the original stools or root. Sometimes sugar-cane is left in the ground, and like other trees - because it is a kind of tree - it branches out, and may be cut after a period varying from a year and a quarter to two years. This is the cutting of the crop ; and here lies the objection to the proposal of the Treasurer. The right honorable gentleman suggests the 28th February as a suitable time to fix each year, and if this be done, black labour employed prior to that date on the year’s crop would be absolved, leaving only about four months for white labour. That is an extraordinary proposal after all the flourish of trumpets about encouraging the use of white labour. Whatever we may think on the question of white v. black labour, we entered into this legislation on certain conditions ; and yet we are now asked to extend the operation of the Act to a degree never contemplated - to continue indefinite!)’ up to 1907 the payment of a bonus on sugar on which white labour has been employed for only four months out of sixteen, or even 24 months. I am not prepared to give the Minister the powers asked for ; especially am I not prepared to give powers which may affect residents of the Commonwealth to the extent of £2,000 to £4,000 on each crop. This might be the effect of the difference of a single day, or a week, or two or three weeks, or a month in the gazetting of the notice. Such powers ought not to be given unless absolutely necessary ; and they are not necessary in the present case. The proposal of the Minister would seem to mean that only four months of white labour need be given to earn the bonus ; and, if that be so, it is a most extrordinary proceeding to which I do not see my way to agree. It will be an acknowledgment of incapacity if we are not capable of expressing our meaning in the Bill.
– I quite agree with the honorable member for North Sydney, that if we can possibly express in the Bill what we mean we should do so, and not give power to any Minister to make regulations for carrying out what are the main principles of the measure. My suggestion is that we should leave the clause precisely as at present only adding the following words : -
Provided that, after the coming into operation of this Act, the grower registershis intention to grow with white labour only twelve months prior to such delivery.
The season varies in different parts of Australia, and each grower knows when his season commences. This applies alike to the grower in Northern Queensland and the grower on the Manning River ; and, under my suggestion, it would be left open to them to register twelve months before delivery. But we certainly should ask the Government to put into the measure some guarantee, because I can assure the Committee that I have suffered more heavily, perhaps, than any man in the Commonwealth from the operation of the “ white Australia policy.” I am not prepared to make that sacrifice again for growers who employ black labour to within four months of the delivery of the cane to the mill. It may be that, as the Bill makes no provision for registration, it will be necessary to insert in it a clause providing for registration under the regulations. The words -
Provided that after the coming into operation of this Act apply only to future cases. Persons will be able to go to the nearest Custom-house, and there apply to be registered as growers who intend to employ white labour only for the twelve months preceding their next delivery. If that provision is made, the Minister will not have to seek expert advice in regard to delivery, because the growers themselves will declare when they intend to deliver. I think the adoption of the proviso which I suggest will meet the wellfounded objections to the clause.
Amendment, by leave, withdrawn.
Mr. THOMSON (North Sydney).- I move -
That after the word “ Commonwealth,” line 4, the following words be inserted : - “in respect to each crop.”
That amendment will test the whole question.
Mr. CONROY (Werriwa). - I think that an excellent reason why the Committee should not go further than the provisions of the Tariff Excise Act is that the whole matter was there settled according to a certain agreement, under which the rebate upon sugar-cane was to be 4s. a ton, for all cane delivered for manufacture in the production of which white labour only had been employed, after 28th February, 1902. Both the excise and import duties were settled on the basis of that agreement, and therefore when dealing with the Bill, which was introduced merely to alter the manner of payment by substituting a bonus for a rebate, we should not try to alter the original arrangement. I hope that the Treasurer will upon consideration see his way to withdraw this debatable provision.
– I think the Committee are pretty well at one in their desires in this matter. No one wishes to see black labour employed to within two or three months of the delivery of the sugarcane.
– As we know what we want, we ought to provide for the carrying out of our intentions.
– I am certain that no Minister would prescribe such a date as would enable the course to be taken to which honorable members object.
– We are not sure of that.
– The Minister should not have the power.
– I do not see why not. In every Act we have passed, the Government of the day have been intrusted with far larger powers.
– We should not repeat the mistake we made when we passed the Customs Act.
– We should not trust any Minister if we can express our intention in the Bill.
– I feel certain that if the amendment is agreed to no one will be able to say what the words mean. I do not wish growers to obtain bonuses for sugar-cane which has not been grown wholly by white labour, and I am, therefore, prepared to ask the Attorney-General to frame an amendment to provide that if black labour has been used in connexion with the production of cane within nine months previous to its delivery no rebate shall be given.
– Why not make it twelve months?
– Nine months is only half the time the crop is growing.
– I am not an expert in the cultivation of sugar-cane, and therefore I am prepared to accept advice from those who represent constituencies in which cane is grown as to what is the proper term to provide for.
– Let each grower register.
– Why not provide that a bonus shall not be paid in respect to any crop in the production of which black labour has been used?
– The trouble is to frame a. definition.
– I do not think we can frame a satisfactory definition. I think that the original provision, giving the Minister power to make regulations subject to the approval of Parliament is the best. At the same time, I do not object to the fixing of some reasonable period.
-I think that the proposed amendment involves a very serious innovation upon the compact upon which our “ white Australia” legislation was adopted, and I am surprised that the subject has been introduced in Committee as if it were an after-thought on the part of the Minister. I understood that the Bill was introduced merely to substitute bonuses for rebates, so that the expense of maintaining a white Australia should be federalized by being divided equally among the States, and although the proposed change imposes an additional burden on the State which I represent, I am willing to agree to it on that ground. But I think that before we make any alteration in the original compact we should take time to consider the whole matter. There seems to be great difference of opinion as to what is the proper form for the proposed amendment, and I, for one, should not like to vote on the question this evening. I doubt, indeed, whether it is wise to amend the Bill at all. I think it would be better to confine its provisions to their original scope, and let this new matter stand over. I object to the granting of bonuses to those who go on growing cane for a considerable time with black labour. There will be great difficulty in obtaining support in the sacrifice which we are making to create a white Australia if growers who employ black labour up to within a short time of the delivery of their cane are to be allowed to obtain a bonus.
– I agree with the honorable and learned member for Bendigo that it would be as well if the Committee had more time to consider the amendment. For my own part, I am much in favour of the clause as it stands. Those who know anything of the subject are aware that the Commonwealth has been imposed upon to some extent in this matter.
– I undertake to prosecute any case brought before me. We have done so already, and some persons have been fined.
-There have been cases in which the cane was cut with white labour and then black labour was put on to the field again, and yet the growers were able to obtain rebates. I gave the Minister a specific instance in which this had been done, and he framed a regulation to prevent it. Within the present month the Premier of Queensland has been in the northern part of that State, and has advised cane-planters to bring over Chinamen from the Northern Territory, because there is no restriction which can prevent their introduction.
– I thought he advised them to endeavour to grow cane with white labour only.
– He gave both kinds of advice. He often does that.
– That is not my experience of him.
– Perhaps the honorable member’s experience of him is limited. I advise the Treasurer to leave the matter as it stands. I am sorry that the Minister for Trade and Customs is not here, because he could throw a great deal of light upon the subject. The extension of the time to the 1st March was declared by some of the northern newspapers to be a sign of weakness on the part of the Federal Government. They said that the Parliament had no faith whatever in its own legislation, and that we extended the time for registration because we recognised that white men could not do the work. If the time is extended as is now proposed, they will say that the cry for a white Australia is a sham, and, unless the clause is allowed to stand, and the regulations are very drastically administered, our law will not be worth the paper upon which it is written. I might be expected to support the amendment, because I represent a sugar-growing district ; but my experience has been such that I feel called upon to resist any proposal unless it takes the direction I have indicated.
Mr. FISHER (Wide Bay). - I also represent a sugar-growing district, and I entirely differ from the honorable member for Herbert. I had not previously heard of the case which the honorable member has cited, and I very much regret to learn that any one was allowed to do as he has described, and to obtain the rebate. I do not know under what authority Ministers acted in paying the rebate if black labour were employed. The Minister for Trade and Customs could very well have refused registration. If the clause is allowed to stand, no one will be. permitted to come in.
– Yes, they will, because the regulations already provide for that.
– The crop may be ploughed out, but still the planter will not be able to escape the fact that black labour has been employed on the land. Does the honorable member seriously argue that the results of the’ employment of black labour must be destroyed before the planter is entitled to earn the rebate ?
– Yes, I do.
– Then I cannot agree with the honorable member. Reasonable opportunities should be allowed to those planters who have labour contracts to discharge. They have entered into contracts under the statute law and the regulations of the State relating to the employment of kanakas, and are bound to employ the islanders for the term for which they were hired. These agreements terminate from time to time, but the honorable member apparently desires to compel the growers to break their agreements. I cannot agree with him in that view, because I think that the planters should be permitted to employ the kanakas for the full term necessary to enable them to complete their contracts.
– But the honorable member would not give the employers of the kanakas any bonus.
– Not while they are employing black labour ; but I should allow any one and every one to come in if they employed white labour from the taking off of one crop to the production of another.
– That would be for twelve months.
– It might be for twelve months, or a little more, or a little less. I think very few crops are taken off within less than twelve months, but there may be exceptional instances. It would be wrong for us to enact that no other planters should be allowed to register their plantations, and I hope that the Committee will not follow the suggestion of the honorable member for Herbert. The impression left upon my mind is that, if the honorable member has his way, any planter who is now employing black labour will not be able to obtain the bonus offered for the employment of white labour unless he ploughs up every vestige of vegetation upon the cultivation of which black labour has been engaged.
– I am entirely against the honorable member on that point. Why should we destroy the results of the employment of capital and labour in that way?
– Why did the planters not take advantage of tile Act before?
– For the reason which I have stated. They have to carry out certain contracts in connexion with the employment of kanaka labour. I do not suppose that the honorable member will follow up the line of argument which he has adopted, because he must see that the Committee could not support him. I think that such a period should be fixed as would afford every reasonable facility for earning the bonus, and that we should not destroy the results which have been brought about by the employment of much capital and labour for the sake of mere sentiment.
– I can bear out what the honorable member for Herbert has stated, because while I was in Northern Queensland, I had brought under my notice cases in which notwithstanding that black labour had been employed in the cultivation of the cane up to a certain point, the growers had registered on the 30th March and had been able to secure the rebate. In view of these circumstances such restrictions should be imposed that if planters desire to earn the bonus they must cultivate their cane wholly by means of white labour. Upon all the plantations a large area, is annually set out for a new crop, and if growers ‘ desire to obtain the rebate they can start by employing white labour solely upon the newly planted area. Then they will obviate the necessity of having to plough out the results of previous cultivation. I was very much surprised when it was pointed out to me that it was possible to cultivate cane with black labour, and still to obtain the rebate. I thought that was simply ridiculous, and when the instances mentioned by the honorable member for Herbert were quoted, I was perfectly staggered. I know that this cannot be clone now under the regulations, but it has been done. We should put our foot down very firmly, and make the planters understand that they must use white labour wholly in the cultivation of sugar upon which ‘any rebate is to be claimed.
Mr. BAMFORD (Herbert).- I think that it was principally through my intercession with the Minister for Trade and Customs that the time for registration was extended to 1st March last. When I was in Northern Queensland during the recess, I was waited upon at Cairns and other places by planters, who asked me if I would use my influence with the Minister to have this concession granted. I consented to do so, but told them plainly that, so far as I was personally concerned, I would not go one day beyond 1st March. I told them that they were’ not entitled to any further extension of time ; that they had had every opportunity of taking advantage of the provisions of the Act, if they had chosen to do so, but that they were so wedded to black labour that they would not give it up. Therefore, I said that if they wanted the rebate they would have to make another start. I hold that view still.
– So far as I can understand the original amendment and all the suggested modifications, they lead to the one result, namely, a very large increase in the bonus towards which all the States will have to contribute.
– Not the amendment - that leaves the matter in its present position.
– The proposal of the Government does, but the amendment of the honorable member for South Sydney will extend the facilities offered under the Bill.
– No : because the Government have already been paying the rebate under that system.
– That is just the point. The Government have been paying the rebate under a system not authorized by the Excise Act.
– Not paying the rebate. I have held back the balance which might in strictness have been paid. to the States, but I have not paid any rebate.
– The Treasurer proposes to make payments which are at present not authorized by the Excise Act, which forbids the payment of any rebate in regard to sugar produced hy the employment of black labour after 28th February, 1902. As I understand, the Government has extended the time of repentance to 1st March, 1903, or rather they have promised to do so. Perhaps the Treasurer can inform the Committee whether a promise has been given to the growers that they shall be entitled to the payment of the bonus on sugar produced bv white labour from the 1st March, 1903.
– As far as I have been able to make inquiries, I understand that that is so. A regulation to that effect was passed and laid upon the table of the House.
– Honorable members do not always see regulations which are laid upon the table, nor do they always read them when they appear in that interesting publication, the Government Gazette. I should like to know where the legislative authority for such a practice is to be found. The Excise. Tariff Act declares that the excise duty upon manufactured sugar shall be “ 3s. per cwt. until the 1st January, 1907, less, from the 1st July, 1902, a rebate to the grower of sugarcane and beet. The rebate in the case of sugar-cane to be 4s. per ton on all sugarcane delivered for manufacture, and in the production of which white labour only has been employed after 28th February, 1902.” It then goes on to explain how the rebate is to be calculated. To my mind that is a specific legislative decree that no sugar-cane shall be entitled to the rebate unless it has been whitegrown from the 2Sth February, 1902. If a promise such as that to which I have referred has been given, and if people have .acted upon the faith of it, Parliament might feel bound to give effect to it. But I am very dubious of the propriety of adopting any such amendment as that suggested by the Trea.suror, which would vest the Minister with power to fix dates, so that the bonus might be claimed upon sugar which had been worked by white labour only after those dates. It seems to me that under such an arrangement it would be possible for a great many growers - seeing that they cut their cane at different periods - to cultivate it by black labour till it had reached a very advanced stage, and then to cut it by white labour, so that they might claim the bonus upon it.
– It all depends upon the date fixed by the Minister.
– I do not think so, because I understand that cane is cut as early as May and as late as September.
– It depends on the season.
– It depends upon the season and the locality in which the cane is grown. The same date would not be applicable to all districts. If the Minister is to fix different dates for different districts - that is an exercise of Ministerial discretion which is open to objection because the Minister cannot be like Cresar’s wife, above suspicion.
– Parliament has already empowered him to pay a rebate upon cane according to standard.
– The rebate is based upon the practical result of the cane crushing. Parliament could not determine what per- centage of sugar was contained in sugar- < cane. Both in this House and elsewhere I have protested against vesting the Executive with what is practically legislative authority’ which can be exercised by Parliament itself. If we could dispense with regulations altogether it would be a good thing in many ways. That, however, is impossible, and therefore we have to abandon the principle to a certain extent because of the necessities of, the case. At the same time we should strive to guard against the chance of any grower taking advantage of the exact wording of an Act of Parliament or a regulation. I suppose there are growers, even in Queensland, who would consider it right, so long as they kept within the letter of the regulation, to draw bonuses which Parliament never intended to give them. It behoves us to be careful that we do not allow the growers to employ black labour, and at the same time to participate in the benefit conferred by the operation of a bonus. That is the danger against which we have to guard. The Committee have been taken by surprise by the proposal to extend the terms of the bargain which was made at the time that the Excise Tariff Act was passed. No question of this kind was then raised. I do not think that any of the honorable members, who now point out the desirableness of making an alteration, recognised this disability or suggested any proposal in connexion therewith. “Whilst all the States - even Victoria - which is the biggest sufferer by the nationalization of these bounties - are prepared to pay their share of this “new” expenditure for the sake of the Commonwealth as a whole, it is only right that they should be protected against any possibility of results such as those to which I have referred. It would have been much better, I think, if this matter had been brought before honorable members earlier, so that they might have been allowed an opportunity to give it more careful consideration. The amendment which have been suggested this afternoon show that the mind of the Committee is not crystallized on the matter. Personally, I am in some doubt as to what action ‘I should take. Under the circumstances, I feel inclined either to abide by the Bill as it stands, or, at the utmost, to go to the length of the concession which the Minister for Trade and Customs seems to have promised, namely, to extend the right to participate in the payment of the bonus to growers who have employed white labour since the 28th February of this year. Even of that I am dubious, but beyond that I am not disposed to go, though I am open” to conviction as to the wisdom of the course which I at present fear.
– The Excise Tariff Act, I would remind honorable members, has been administered by the Minister for Trade and Customs. He is exceptionally, busy upon some other measures, and as it partook somewhat of the nature of the Treasury matter, I agreed to take charge of this Bill. I knew that some alteration had been made under the Excise Tariff Act with regard to the date after which the bonus should be payable on sugar produced by white labour. I was under the impression that the desire was to allow those who had been using black labour to get rid of it gradually, and to come under the provisions relating to the employment of white labour. I still feel that that is the right course to pursue if it is practicable. But many difficulties have been raised during the course of this discussion which I should like time to consider. I also desire to consult the Minister for Trade and Customs, who is charged with the administration of the Act. Therefore, if the honorable member for North Sydney will withdraw his amendment, I shall be prepared to allow the clause to pass in its present form, and to recommit it to-morrow, so that honorable members may have a further opportunity of discussing it. Perhaps I may then be able to tell the Committee that the alteration proposed should be made, or that it should be effected only to the extent mentioned by the honorable and learned member for Corinella, or that it should go further.
– Why not postpone the clause?
– I would much rather pass it, and have it recommitted.
Mr. THOMSON (North Sydney).- After the remarks of the Treasurer, I have much pleasure in withdrawing my amendment, and allowing the clause to pass in its present form.
Amendment, by leave, withdrawn.
– The Committee occupies very much the same position in regard to this clause as it did when the discussion commenced. The honorable and learned member for Corinella has referred to an extension of the provision contained in the Excise Tariff Act to 1st March, 1903. Practically, that is an extension for one year. I understand that it applies only to the crop for the ensuing year. It was never intended that the Excise Tariff Act should debarsugar-growers who produced their sugar by black labour in 1902 and 1903 from participating in the rebate granted by Parliament, provided that they grow their sugar by white labour in 1905.
– My remarks referred to sugar which has been planted by black labour since 28th February, 1902, and from which a second crop will be taken in 1905.
– The Act states that the rebate shall be payable upon sugar cane or beet in the production of which white labour only has been employed. I should like to know whether the word “ production “ includes every operation that is necessary in the cultivation of the land for three or four years prior to the harvesting of the crops ?
– I understand that under that provision rebate has already been allowed.
– Because the Act provided for it.
– There was an original provision that nothing done before a certain date should invalidate the claims.
– The amendment suggested by the honorable member for North Sydney is in line with my own views upon this question, as it would insure that black labour would not be utilized in the cultivation at any time in a particular year of a crop on which the bonus was paid.
– That if it had been, we should not pay the bonus upon that crop.
– So far my views are in line with those expressed by the honorable member, and the difficulty is to find words to convey that intention in such a way that it shall be open to no doubt, and that there can be no extension whatever of the concession beyond the desire of this House. ‘The section in the Excise Act leaves a doubt in my mind as to the possibility of the sugar-grower coming in at some period subsequent to 1.902 if he has made use of any black labour at all in the planting of a crop, and, if he ceases to use black labour in 1903 or 1904. I think that under that section he would be debarred from taking advantage of the bonus provisions of this Bill, and I do not think that that was ever contemplated. What was contemplated was that no sugar-grower should be entitled to a bonus upon sugar in the production of which black labour had been employed. It was not intended to apply where black labour was employed only in the preparation of the land and planting of the cane, provided that subsequently white labour had been employed in the cultivation of the Crop, and for a period of at least twelve months before the time when the cane was carted to the mill.
– The Excise Act as it stands would shut that sugar out.
– That was the doubt in my mind, that as it stands the Excise Act would shut out any sugar in the production of which black labour was employed at any time after the 28th February, 1902.
– Yes; the grower would have had to cease the use of black labour on that date.
– Does that mean that any sugar cane on which black labour has been employed after that date could nob take advantage of the rebate provision?
– That is the meaning of the law as it stands. If any black labour whatever has been used after the 28th February, 1902, no rebate can be granted upon the crop so produced. What is meant by the law as passed is that a man must prepare his ground afresh, plant his cane, and cultivate it entirely by white labour, and that I think is too harsh.
– That was not contemplated.
– The Act is not administered in that way.
– No operations under it have yet arisen.
– I should think that when we have regulations, providing for an extension of the time from February, 1902, to March, 1903, that is an indication that the Act is not going to be administered in that direction.
– That applies to the coming crop; but those regulations are being challenged as being outside the Act.
– What I desire to get at is whether the Excise Act prevents our extending the provisions of the Bonus Bill to sugar in the production of which, after 1902, no black labour has been employed.
– The date has already been extended.
– Yes, by regulations, which are challenged as being outside the Act.
– I should like to know whether those regulations are valid, and whether the Excise Act is to be so interpreted that a bonus may be paid upon sugar manufactured in 1903, and in the production of which no black labour has been employed for say, twelve months prior to the cutting of the cane and its being carted to the mill.
– A rebate could not be granted upon that sugar under the Excise Act as it stands.
– Is there not power under the Act to extend the provisions ?
– There is the general power to make regulations.
– I believe that the consensus of opinion in the Committee is that that should be allowed. My impression when the Excise Act was under consideration was that power was given under that Act to pay the bonus upon sugar grown in any particular year up to 1907, if it had been grown entirely by white labour. To confirm that opinion I would point out that the Excise Act was simply a corollary of the Pacific Island Labourers Act, under which we took power to restrict the importation of kanakas. No one who discussed that measure lost sight of the fact that a number of sugarplanters had black labour under contract, and could not dispense with it prior to 1902, 1903, or even 1904, and it was felt that as soon as they could dispense with that labour and substitute white labour for it, they should receive consideration under the rebate provisions. I never for a moment imagined that the Excise Act would debar us from extending the provisions of the rebate to sugar grown by white labour after 1902.
Clause agreed to.
Clause 3 (Calculation of bonus on sugar cane).
Mr. CONROY (Werriwa). - I would point out that as it is suggested that we shall depart from the original scope of the Bill, which was merely to convert the rebate previously provided for into a bonus, we might as well consider this clause under which the bonus is proposed to be 4s. per ton. I remind all who are interested in the sugar business, that according to the figures taken both from Queensland and New South Wales, the cost of treating a ton of cane varies from something like 2s.11d. for cane produced by black labour to 3s.5d. a ton for cane produced by white labour. There is therefore a difference of only 6d. per ton in the cost of cane produced by white labour as against that produced by black labour. We might go further, and admit a difference of 1s. per ton, and yet honorable members will see that by this clause it is proposed to allow4s. per ton. If this Bill were merely intended to provide for a bonus instead of the existing rebate, I scarcely think that I should press my objection ; but if it is proposed to go very much further than the original Excise Act, and practically enter upon an entirely new understanding, it is high time that the people of the States who are being asked to contribute should know what they are contributing for. They should understand distinctly that according to Coghlan they are being asked to contribute just eight times as much as is necessary to cover the difference in the cost of production between the employment of white and black labour.
– Coghlan’s figures apply to New South Wales only.
– According to Coghlan the position is slightly worse for Queensland than it is for New South Wales, because he shows that in the total cost of production of a ton of sugar there is a difference of 39s. in favour of Queensland as against New South Wales. He points out that this is partly due to the difference in the cost of labour, and is due also to one or two other considerations. At that rate Queensland could afford to take 3s. 6d. per ton less.
– The honorable and learned member will perhaps explain to the Committee that Coghlan is dealing only with the growing of the cane, and not with the cutting and crushing.
– The figures given by Coghlan deal with the growing and cutting, not with the treatment in the mill, but with the total cost up to the time the cane is received in the mill. The honorable and learned member will probably recollect that Coghlan includes in his figures something like 9d. per ton of cane as the cost of transport from the field to the mill. He explains that the cost of transport is less in Queensland owing to the better facilities there provided by small railways and tramways and the proximity of central mills. He gives figures showing a cost of something like 12s. 2d. for Queensland and 16s. 3d. for New South Wales.
– That is for the growing of the cane.
– It is for the growing of the cane and its whole treatment until it reaches the mill, and the figures given include the price paid for the cane, which is something like 10s. or11s. per ton.
– Those figures refer to the growing of the cane, and do not embrace thrashing and cutting in which black labour is employed.
– If the honorable and learned member will again refer to Coghlan he will find that his figures cover the cost of thrashing and cutting and the transport of the cane to the mill. He points out that 2s.11d. is the lower rate for black labour, and 3s. od. is the rate for white labour, the difference being 6d. per ton. In this Bill we are asked to vote as a bonus eight times that amount. If we say that instead of 6d. the difference in cost between sugar produced by white labour and that produced by black labour is ls. per ton, we are then being asked to vote four times as much as we should. If it is intended to depart from the provisions of the old rebate arrangement in the way which has been proposed we should certainly consider whether we should not also depart from the provisions of clause 3 of this Bill.
– I referred only to the method of contribution.
– If the honorable member for Moira, as indeed I understood him, only referred to the method of contribution, I cannot include him amongst those who appear to desire that the whole question should be re-opened. Under the last clause the suggestion was made that despite the provision in the Excise Act we should extend the bonus to allsugar produced by white labour after February, 1902, and if there is to be a re-opening of the whole question, I think I shall be justified in raising the matter of the amountof bonus to be paid, and in suggesting that 4s. per ton is too much. If the Bonus Bill is brought forward, as I understood it was to be, purely in the place of the existing rebate provision, and if, so far as possible, exactly the same conditions are to prevail, I shall not discuss the matter further ; but if we are to go into the whole question again, I submit that it is our duty to consider the present position, and not to act as we acted in times past, hurriedly and without the consideration that a measure of this sort should receive. If I am assured by the Treasurer that in the event of clause 2 being altered in the way which has been suggested, we shall be given another opportunity of discussing clause 3, I shall be satisfied.
– I shall try to meet the honorable member.
Clause agreed to.
Clauses 4 to 6 agreed to.
Clause 7 -
All rebates of excise duty on sugar paid before the commencement of the Act shall be taken to have been paid as bonuses under this Act.
– I intimated when speaking upon the second reading of this Bill, that I think it proposes the introduction of a very bad system in our legislation. Utterly irrespective of the sentimental aspect given to the question by some honorable members, it is misleading to make a surcharge virtually upon the various States for sums of money which they have received, and which the Government now think should be contributed by them towards making up this rebate of excise duty. Some honorable members have said that when the rebate was proposed, they were under the impression that it was to be divided per capita amongst the people of the Commonwealth as the establishment of a white Australia and the encouragement of white labour on our sugar-fields was a national question, and to this extent I have no doubt that many honorable members did consider that some sacrifice on the part of the States was necessary. It is pointed out in the papers which the Treasurer has kindly handed to us that one of the States which would be in a somewhat bad position owing to the existing system of making a reduction in the rate of excise merely on whitegrown sugar, is New South Wales - a State which from the figures before us appears to have consumed by far the largest quantity of Australian-grown sugar. I would point out that when the Excise Tariff Bill was before us the question of the relative contributions by the States under its provisions did not arise. Those States which were likely to consume, and have consumed, the greater portion of the white-grown sugar of Queensland have been placed in this position - that instead of receiving a credit of £3 per ton excise duty on blackgrown sugar, or £6 per ton Customs duty on imported white-grown sugar, they have received a credit to their revenue of only £1 per ton excise duty on white-grown sugar. I am not aware of the method which has been adopted by the Treasurer in the payment or distribution of this rebate to the growers. The Excise Tariff Act distinctly says -
The rebate to be allowed at the rate of .-£2 per ton on the sugar-giving contents of the beet. All rebates to be allowed at the time of delivery of the cane or beet on the ascertainment in manner prescribed of the sugar-giving contents.
The word “ rebate “ has a common every day meaning. It is simply an allowance in respect of white-grown sugar, and instead of charging £3 per ton excise duty to the grower, or producer, or manufacturer - thatis, to the man who last handled it - as we do on black-grown sugar, we charge only £1 per ton. We charge £3 per ton virtually, but we make an allowance of £2 per ton, and that allowance was to be calculated on its sugar contents when the sugarwas brought to the mill. I am a little in the dark by reason of the fact that I missed hearing a portion of the Treasurer’s, speech the other day, and I do not think that he has really explained the modus operandi which has been adopted with regard to the rebates. It appears to me that the clear reading of the Excise Tariff’ Act is that, having ascertained when the sugar-cane or beet was ‘brought to the mill for treatment, and discovered by analysis thesugar contents of the sugar-cane or beet, it is then a question of whether its owner should pay an excise duty of £3 a ton, or whetherhe should pay an excise duty of £3 per ton with a rebate of £2 per ton - in other words, £1 per ton on the ascertained sugar contents. Whatever may have been understood by some honorable members, whatever may have been thought of” the mode in which this loss of revenue by States consuming the white-grown sugarwas to be regulated, it was not embodied in the Act, and the proposal to go back upon that legislation, and to ask the States to pay a sum of £60,000 in order to recoup to the States which have used thewhitegrown sugar the sum of £2 per ton rebate on that sugar seems to me grossly unjust. It is a bad departure in principle. It is extremely dangerous to go back on a legislative enactment which has been on the statute-book for twelvemonths, and under which certain suras have been paid and certain accounts have been adjusted with regularity between the States, and ask those States, for a surcharge provided for by new legislation. It is a departure which, asregards the past, I cannot understand, but which, as regards the future, may beperfectly just, now that the question is. raised for the first time in Parliament. That appears to me to be a strong point. I should like the Treasurer, by interjection, toenlighten me as to the manner in which therebates have been paid or allowed. It is. clear that the Excise Tariff Act contemplated a mere rebate or virtually the- collection of £1 per ton on the sugar contents instead of £3 per ton. It provides that the rebate shall be allowed at the rate of £2 per ton on the sugar-giving contents of the cane or beet, at the time of the delivery of the cane or beet on the ascertainment of the sugar-giving contents in the manner prescribed. Where is the delivery of the cane or beet to be made? Undoubtedly it is to be made to die mill or place of treatment where the sugar contents are to be ascertained, and the excise duty of £1 per ton collected from the producer of the sugar, which would give him the advantage of a protection of 5 per ton against foreign sugar. That was considered by many honorable members on this side to be a very high rate of protection - such a rate as would encourage the growth and production of sugar by European labour. Section 93 of the Constitution Act distinctly says that -
The duties of excise paid on goods produced or manufactured in a State, and afterwards passing into another State for consumption, shall he taken to have been collected, not in the former but in the latter State.
That is to say, that the State where a ton of this sugar is consumed shall be credited with the excise duty. What excise duty ? Surely the Treasurer will not tell me that he has first credited the States with the £3 per ton excise duty, and then debited them with the £ 2 per ton rebate - that a host of financial operations have had to be gone through, instead ‘of .the simple operation contemplated by the Excise Tariff Act of collecting and crediting to . the States only £1 per ton on the sugar contents of white-grown cane, instead of £3. I cannot understand the Government not seeing that - whether this policy is one which Australia will approve of in the future or not - it is an injustice to pass retrospective legislation, and to go back on our previous legislation. I trust that the good sense of the Committee will see that it is inadvisable and unfair at this very early stage of our existence, not only to amend our legislation, but to go in for a retrospective surcharge on the various States, which will be a tax on some of their revenues.
– The question of fixing the mode of dealing with the rebate, as it was unfortunately called, on whitegrown sugar gave the House a considerable amount of trouble. We were all anxious that the rebate should go to the grower of the cane, and we knew well that, if we had an excise duty paid by the manufacturer of the sugar and allowed the rebate off the duty, then there might be a little difficulty about the whole of the rebate getting back to the grower. The Act provides for an excise duty of £3 per ton on the manufactured sugar, and we are bound to collect that sum. We cannot collect only £1 per ton. The Act tells us that on the manufactured sugar we are to collect the excise duty. My honorable friend opposite seems to think that we ought to collect the excise duty from the grower when he takes his cane to the mill, but that would be utterly impracticable.
– Or from the mill.
– We collect the Excise duty when the sugar produced from the cane goes into consumption, and it is not collected for many months after we have had to pay the rebate to the growers - in some cases probably fifteen or eighteen months, because a considerable stock is carried over from one year to the other.
– At what stage is the rebate paid ?
– We pay the rebate to the grower immediately the sugarcane is delivered at the mill. Our authorised officers at the mill give a certificate which is equal to cash. It is cashed on presentation at the Treasury or other convenient places throughout the State.
– The rebate is paid on a sum which has not been collected ?
– Certainly. “ Rebate “ may not have been the right word to use, but it was very difficult to find a word which would have better answered our purpose. But the object was perfectly clear - that the grower immediately he delivered his cane at the mill should be entitled to receive his certificate, and to get that certificate cashed as quickly as possible afterwards. The mode adopted in administration has enabled him to get that money within a day or two of the delivery of his cane at the mill. The excise itself can only be collected on the sugar produced from the cane, and that is collected from persons entirely different from those who grow the cane. There is no other means of carrying out the Act in a fair and reasonable manner than by adopting that practice, which gives to the grower what Parliament intended, 4s. per cwt. for sugar grown by white labour.
– As a subsidy.
– As a subsidy to enable the grower to make up for the loss - though the honorable and learned member for Werriwa says there is very little loss - supposed to be caused by the employment of white labour instead of black. When we had to pay this rebate we had no money appropriated by Parliament for that purpose; and the only course open to me was to take whatever excise was collected, put it in a trust fund, and pay the rebates out of it.
– What about section 89 of the Constitution, requiring that money to be paid to the States 1
– I continued to do that until I saw how the matter was working out. I quite admit that, in strictness, I might have been bound to hand the money over to the States as collected.
– Bound by the Constitution, in exclusive terms.
– No doubt.
Mr.- V. L. Solomon. - The Treasurer still has that money ?
– Yes ; and shall hold it until Parliament directs it to be distributed. But what is the difference 1 Suppose I had paid the money over to the States, I should still have asked Parliament to allow the charge to be borne on a population basis. What I did made not the slightest difference to the States, except that if I had handed the money over to them, they might have spent it and might have found it very awkward at the end of the year, when they expected to receive a certain amount, to discover that they were not to get’ any money from the Treasury at all. Looking at the matter from a fair and equitable point of view, I thought that I was perfectly justified, until Parliament had an opportunity of dealing with this matter - because the matter arose after Parliament had ceased to sit at the end of last session j it came under my notice in the middle of the next January - in saying - “ In the interim I will place this money in a trust fund until Parliament has an opportunity of saying whether the charge shall be distributed on a population basis or not.” I took the proper course. When Parliament deals with the matter the money which is still in the trust fund and amounts to a considerable sum will be distributed within 48 hours. While it was not in strict compliance with the terms of the Constitution to do as I did, I think it was the right and proper thing to do under the circumstances. No one is injured, because, as I have pointed out, had I paid over the money to the States and Parliament directed that the charge was to be borne on a population basis, 1 should simply have had to make a charge against the States after they had had the money and spent it. That would have been much worse for them.
– The Treasurer would never have got it. back from them.
– I should have . got it back by taking it out of the next money to be paid to them.
– Parliament would never have permitted that to be done.
– The determination of the question rests with Parliament, whose hands are not tied. It is quite possible for Parliament to say that for this year the distribution shall be made on the old system, and that the new system shall apply only in the future. Parliament is not injured in any way. In fact, no one has been injured by the action which I took ; and I consider that that action was amply justified, and was in the best interests of all the parties concerned in the’ distribution of the money. The question as to whether we ought or ought not to make this change apply to this year is one which has to be considered by the Committee. I think it is admitted on all hands that it is unfair to compel the States to pay in the mode in which the Act would have compelled them to pay. If it is unfair for the next and the following ‘ years, to my mind it is equally unfair for the past year. If it is wrong in principle, as we admit it is, to make the charge in one way, and- we say that it is to be made in another way, surely we should begin by making the charge in’ a proper manner from the start. That was the object which I had in view - so that the hands of Parliament should not be tied, and so that the money should not be paid over to the States, with the consequence that it would have to be taken from them afterwards. I thought that the fairer plan was to keep the money in hand, so that Parliament might have an opportunity of dealing with the question.
– What money has the Treasurer kept in hand ?
– The whole of the excise collected, less rebate paid ; with the exception that Queensland was anxious to have a certain amount of the sum due, and I advanced £25,000.
– The Treasurer has only kept in hand £1per ton for whitegrown sugar?
– Yes ; I took the excise as it came into the Treasury, and charged the rebate to the trust fund. Then there were two of the States which required a sufficient amount of money by way of transfer to enable the rebate certificates to be honoured when they were produced.We had no other course open to us. We could not expect the growers to wait until the amounts were collected on the sugar produced from the cane - even if we could have distinguished which was the sugar produced by particular growers at that time, which we could not have done. We thought that they ought to have the money due to them at once, that the remainder of the money should be kept in a trust fund, and that Parliament should say whether the charge for this year was to be made on a population basis or a consumption basis. I say that we should adopt the same plan all through, whatever we do. We made a mistake at the beginning, and should rectify it from the beginning.
– The principle upon which we are acting is not sound. It is a bad thing for Parliament to go in for retrospective legislation. To Victoria alone, what is proposed makes a difference of £16,000, which I think the Treasurer of the State might very fairly expect to receive. It is true that very little difference is made to some of the States, but a marked difference is made in the case of others.’ The difference is on the plus side in regard to New South Wales. I think, however, that it will be very unwise of the Federal Parliament, especially at such an early stage of its history, to indulge in retrospective legislation, and I, for my part, shall oppose it. Therefore, I shall vote against the clause.
– I am not aware that this clause is in the nature of retrospective legislation in the slightest degree, because this is the first opportunity that we have had of determining upon what basis the rebate charge shall be distributed throughout the Commonwealth.
– We had that opportunity when the primary legislation was framed.
– That legislation only says that a rebate shall be paid to the growers from the revenue of the Commonwealth, and does not say in what manner it shall be charged. As far asI can understand, the Act is silent on that point, and this is the first opportunity that Parliament has had of determining it. So far as Victoria is concerned, she is quite prepared to deal with the question in that Federal spirit which, from time to time, we have been advised to adopt. From that point of view, I hope that the honorable and learned member for Werriwa will not press the question to a division. Victoria is quite preprepared to bear her share of the cost of the policy of a white Australia. She is not going to suffer an irreparable loss even if this Bill is made retrospective to the extent of asking her to part with £16,000 out of last year’s revenue.
Question - That the clause be agreed to - put. The Committee divided.
Majority … … 26
Question so resolved in the affirmative.
Clause agreed to.
Clause 8 agreed to.
Clause 9. - Application of Regulations in respect of rebates.
Clause agreed to.
Bill reported without amendment.
Debate resumed from 11th June (vide page 795), on motion by Sir George Turner -
That the Bill be now read a second time.
– As we have already passed a Bill to provide for a bonus on sugar, it seems to me that the measure before us is absolutely necessary ; and, under the circumstances, I do not propose to discuss it. No matter what steps honorable members might think fit to take in regard to the Sugar Bonus Bill, we are bound to vote for the present measure.
Question resolved in the affirmative.
Bill read a second time, and reported without amendment ; report adopted.
In Committee (Consideration resumed from 11th June, vide page 842).
Clause 1. - (Short Title and Divisions.)
– I move -
That clause 1 be postponed.
This is simply an index clause, the significance of which depends on what follows. Consequently, it would be better to deal with matters of substance as they arise, and to afterwards alter this clause to agree with the final determination of the Committee.
– I ask the Attorney-General not to postpone this clause unless he also consents to postpone clause 3, which fixes the number of Judges who shall constitute the High Court. There is far more in the motion of the AttorneyGeneral than will perhaps be at once grasped by honorable members. Unless we at once raise the question of the jurisdiction we are to vest in the Court, we cannot determine the number of Judges, and the AttorneyGeneral, probably feeling that, asks us to take the extraordinary course of postponing the clause in order to prevent the possibility of the question of jurisdiction being raised at this stage. I desire to propose an amendment on clause 1, with a view of testing the question of the original jurisdiction of the High Court, but I shall not do so at this stage if clause 3 be also postponed. In the absence of any promise as to the postponement of the latter clause, the sooner we test the question of the. original jurisdiction the better.
– Some honorable members would, in any case like to see the question of the original jurisdiction raised on clause 75.
– I have given notice of an amendment on clause 1 which will immediately raise the question of the original jurisdiction, and this may have something to do with the anxiety of the Attorney-General to have the clause postponed. When the Bill was before us last week, the AttorneyGeneral was particularly anxious that clause 1 should be passed at once as a merely formal clause, but I immediately asked that it should be discussed, with a view to its improvement by the omission of certain words. The amendment of which I have given notice would have the effect of confining the original jurisdiction of the High Court to the matters contemplated by section 75 of the Constitution.
– We ought first to settle the jurisdiction.
– And this is a convenient clause on which to do so.
– In this matter I am entirely in the hands of the Committee. If honorable members are of opinion that we are in a position to deal with the questions raised on this purely index clause, I am prepared to deal with it, though to me that course appears most undesirable. When the Bill was last before us, I regarded it as a clause which might have been passed without question, because it must necessarily be amended to correspond with any alterations the Committee may make in other parts of the Bill. If clauses are altered substantially, the index to the Bill must necessarily be altered, and consequently I then regarded it as a matter of no importance. But the honorable and learned member for South Australia, Mr.
Glynn, sought on this clause to raise the question of the jurisdiction, with which the court was to be invested, and that appeared to me so undesirable a course that I now propose a postponement of the clause instead of asking honorable members to pass it as a matter of form. If we deal with the question of jurisdiction, surely we had better deal with it on the clauses which :specifically endow the court.
– What clause 1
– The clauses a3 we come to them. If the Committee prefer, however, to deal with the question of jurisdiction before touching the question of the number of Judges, I am prepared to postpone clause 3 along with clause 1. But I do not think that the most desirable method of procedure. I fear that the connexion or proportion to be established between the jurisdiction and the strength of the Bench cannot, even in the minds of professional members, be clear and beyond dispute. It is a matter on which every two professional men, in the Chamber or out of it, may well entertain different opinions. One professional man might say that if we gave the whole original jurisdiction asked for, it would mean another Judge or another two Judges, while a second professional man of equal experience might be of opinion that we could give that jurisdiction without adding a single member to the Bench. So far as I can judge, the discussion of the jurisdiction, and we must discuss it - the Bill - is not likely to effect the minds of honorable members in regard to~ the strength of the Bench in any precise way.
– It will very materially.
– If so, I am prepared to bow to the decision of the Committee ; but my own opinion is that the discussion will not and cannot have such an effect. I will take no unfair advantage of the Committee, even though honorable members are under what appears to me to be a misapprehension. Therefore, if it be the general desire, I will agree to the postponementof clause 3 until the clauses dealing with the jurisdiction have been disposed of. If honorable members believe that the consideration of those clauses will afford them a better foundation for a specific decision as to the number of Judges to- be appointed, I bow to their wish, though I think they are mistaken.
– Before we determine the number of Judges to be appointed, we should make up our minds as to the amount of work which they are to be called upon to perform. It is of no use to decide to appoint five Judges, and then to determine what work they shall do ; we must determine the work to be done before we say how many Judges are to be appointed. I disagree with the AttorneyGeneral when he says that the number of the Judges is not relevant to the amount of work to be assigned to the Court.
– I did not say that.
– If ‘we assign to the Court only the constitutional original jurisdiction and an appellate jurisdiction, it will not have the same amount of work to perform as if the additional and optional jurisdiction relating not only to Federal matters, but to such matters as Admiralty cases and disputes between residents of the States, which belong absolutely to the States Courts, were assigned to it. The Bill also provides for the removal of suits in Federal matters from the States Courts to the High Court.
– I am prepared to omit that provision.
– If that provision is not omitted, and power to try criminal cases is also given to the Court, the Judges will have to be even more numerous than is now proposed. Five Judges will not be enough, and before the end of a year there would be a demand for an addition to their number.
– Would it not be better to test the question of jurisdiction upon this clause?
– I do not think it would be convenient to do so.
– If we do not test it on this clause, it will be necessary to postpone a great many clauses.
– I suggest the postponing of clauses 1, 2, and 3. Before we proceed further, we should deal with the question of jurisdiction. Afterwards we can decide how many Judges will be required.
– In support of the view put forward by the AttorneyGeneral, I would remind the Committee that if we come to a decision as soon as possible as to whether the Court is to be merely an appellate court or a court of large original jurisdiction as well, we shall know how to deal with a number of subsequent clauses. I think we cannot too soon determine the jurisdiction of the Court. If it is to be almost wholly an appellate jurisdiction, many of us will say that three Judges are enough ; but, if it is to exercise the wider jurisdiction provided for in the Bill, all legal members know that more than five Judges will be required. It will, however, be difficult to consider many of the clauses until we know what the jurisdiction of the Court is to be. I can understand honorable members saying that five Judges would be required even for an appellate court, on the ground that it would be better that the Judges should have a certain amount of spare time than that suitors should practically be denied justice by the delay and consequent expense in hearing causes. On the other hand, if the jurisdiction provided for by clause 40 is conferred, five Judges cannot be enough. If the Committee intend to determine the question of jurisdiction on clause 1, well and good. But if before dealing with the question of jurisdiction it is decided to limit the nnmber of Judges, a great many of the clauses will have to be re-drafted, and the Attorney-General could not be expected to say on the spur of the moment what clauses should and what clauses should not be amended.
– I agree with other honorable members that the question of jurisdiction is the vital substance of the Bill, upon which its other provisions hinge, and I suggest to the Attorney-General that, to get at the root of the matter, Parts I., II., and III., should be postponed, and that we should commence at clause 31 in Part IV. Although those parts are in their proper places, so far as the’ drafting of the Bill is concerned, they involve a hundred questions our decisions upon which will depend upon our determination in regard to Part IV.
Mr. GLYNN (South Australia).- I ask the Attorney-General to accept the suggestion of the honorable and learned member for Corinella. It would be better to test the question of jurisdiction on clause 31 than, for reasons into which I need not enter now, to meddle with clause 1.
– I hope that the Attorney-General will agree to the postponement. I am sure that we do not think that he would take advantage of the Committee, but it is known that the question of jurisdiction and the number of the Judges are both agitating the minds of many honorable members, and as, if we decide to limit the jurisdiction of the Court and to reduce the number of the Judges, the reconstruction of a large portion of the Bill will be necessary, I tfiink it would be well to postpone all clauses which might require redrafting until we have dealt with those questions.
– According to the legend inscribed on the pavement in the vestibule - “In the multitude of counsellors there is safety,” but that saying is not borne out by what we have seen this evening. I am anxious to do what is right in connexion with this Bill, but the conflicting counsels of the legal members of the Committee leave me very much in a quandary. I do not agree with the honorable and learned member for Bendigo that if the Court were merely an appellate one there would not be enough work for five Judges, because my experience of Judges is that they are always overworked, and that the Bench is always undermanned. I think it would be better to decide the question at issue now, and thus save the waste of time which would be involved by dealing with clauses which might afterwards have to be re-considered.
Motion agreed to ; clause postponed.
– I have looked through the Bill, and have come to the conclusion that the suggestion of the honorable and learned member for Corinella is, under the circumstances, the right one to adopt. My only apprehension is that there may be a disposition to determine the questions raised by the provisions of PartIV. without the full apprehension of the consequences which attach to any amendment of them. However, the responsibility in that matter will be mine, and if I am not able to bring my own conclusions home to honorable members in connexion with those clauses, I should be unable to do so in connexion with other clauses. I move -
That clauses 2 to 30 be postponed.
Motion agreed to ; clauses postponed.
Clause 31 -
In addition to the matters in respect whereof original jurisdiction is conferred on the High Court by the Constitution, the Court shall have original jurisdiction in respect of all matters -
arising under the Constitution, or involving its interpretation ;
arising under any laws made by the Parliament ;
of Admiralty and maritime jurisdiction ;
relating to the same subject-matter claimed under the laws of different States.
Provided that, with respect to matters which are by the laws of the Commonwealth required to be instituted in courts of summary jurisdiction or other courts of inferior jurisdiction, the original jurisdiction of the High Court shall not be exercised except by way of removal of the matter from the Court in which it is pending into the High Court and thereafter hearing and determining it in the High Court.
– I wish to remind honorable members, before they commence to discuss this clause, that it is not proposed to make the jurisdiction herein conferred exclusively that of the High Court. The proposal is to allow the Judges of the High Court to deal with the subject-matters set forth in the clause, but not to exclude the (States Courts from dealing with them. The original jurisdiction conferred on the High Court by section 75 of the Constitution is printed in small type at the foot of page 7. It is not competent for us to either reduce or alter that jurisdiction. But section 76 gives us the right to extend it by adding the subject-matters set forth in the clause. Our first intention was to give to the High Court all the original jurisdiction with which it was possible to endow it; but, upon further consideration, and having regard to the debate upon the second reading, I propose to move the omission of paragraph (c), which confers jurisdiction in respect of Admiralty and Maritime causes. The effect of the amendment will be that all such cases must be commenced, in four of the States in the Supreme Courts, and, in New South Wales and Victoria., in Admiralty Courts. We realize, even in regard to the provision allowing the power of removal from the States Courts to the High Court, the arguments for leaving Admiralty and Maritime jurisdiction - which may involve the detention of a ship, and should be exercised with extreme rapidity - with the States Courts. It is true that, even if paragraph (c) remained in the clause, the States Courts would not bedeprived of their jurisdiction in respect to those matters, but the arguments of honorable members, when the second reading was under discussion, showed that, in their opinion, the States Courts are so circumstanced that they are well able to deal with this class of cases, and the omission of the paragraph does not amount to more than a convenient reduction of the original jurisdiction of theHigh Court. But I hope the Committee will not strike out the remainder of the clause, because all that it does is to provide that when we have a High Court in existence litigants may commence suits of this kind before that tribunal. It does not do away with any of the jurisdiction at present existing in the States Courts, but leaves litigants free to take their choice.
– But that liberty is taken away by clause 41.
– I propose to ask the Committee to strike out clauses 42 and 43, and. the greater part of clause 44, retaining only such parts as it may be necessary to attach to the remaining clauses. I want the Committee to carefully consider before they amend the clause, what will be the effect of their action. They will prevent the Judges of the High Court from dealing in the first instance with cases which arise under the Constitution, or which involve its interpretation, or cases which arise under the laws of the Commonwealth, or cases which relate to the same subject-matter claimed under the laws of the different States. Surely in many instances it is likely to prove most desirable, if not necessary, that cases which arise under the Constitution or involve its interpretation, or cases which arise under the legislation passed by this Parliament, should be brought before the High Court, not only on appeal, but in the first instance. It is not intended to compel litigants to go to the High Court, and we shall not impose any inconvenience upon them if they wish to resort to their own States Courts ; but if the Committee strike out the clause they will deprive the High Court of an opportunity of dealing, in the first instance, with cases arising under the Constitution, or involving its interpretation, or cases arising under the laws made by the Commonwealth Parliament.
– The Constitution contemplated that possibility.
– Yes, just in the same way that it contemplated the possibility of there being only three Judges. But many of those who voted in favour of both these possibilities did so, not because they believed that to be the best course to pursue, but because they knew that the Parliament of Australia would be intrusted with the creation of the Federal Courts. Now, I am submitting to the Parliament of Australia reasons not why it should exclude States Courts from jurisdiction, but why it should not exclude the High Court from jurisdiction in two classes of cases which, besides questions of appeal, it might prove desirable to submit for the opinion of the High Court. If a Justice of the High Court happened to be available in any State, and a question affecting the Constitution arose, why should we direct that a case must, in the first instance, be taken before the State Court? Why, in a matter peculiarly of Federal jurisdiction, should the doors of the High Court be closed against litigants ? A litigant might consider that the case in which he was interested was one specially suitable for reference to the High Court, and one which it might be very undesirable to submit to a State Court.
– Probably the other party would think otherwise.
– Why allow the plaintiff the choice of his court under the States laws and deny it here?
– The defendant has the second choice under the Bill.
– Yes ; but that provision is to be altered. The ordinary choice of courts under the States laws is not to be departed from. What is now proposed is not contrary to the ordinary practice. It seems to me necessary to advance special reasons when the Committee are asked to say that cases arising under our Constitution, and involving its interpretation, must first be taken before a State Court and not direct to the High Court.
– Is it proposed to give power to litigants to bring their cases before the States Courts?
– Yes, under the amendments which we intend to propose, the amplest opportunity will be afforded to litigants in cases arising under the Constitution, or involving its interpretation, or arising under the Federal laws, to go first to the States Courts, if they prefer to do so. While that liberty is left to every person who believes himself aggrieved, why should we shackle their choice ?
– Why should the litigant be allowed to go to the State Courts in cases such as those described and not in other cases ?
– Because we cannot provide Federal Courts in all the States. If the Treasury could bear the strain of the expenditure involved, the proper course would be to provide Federal Courts in all the States, but we accept the existing jurisdiction, and take the utmost advantage of it. Therefore, following the dictates of economy, we do not propose to close the States Courts against suits which arise in this manner. At the same time I would ask honorable members why they think it necessary to close the High Court against original jurisdiction in these cases?
– Why open it?
– Because the High Court is the most suitable tribunal to determine questions arising under our Constitution or under the laws of the Commonwealth.
– Let the High Court determine those questions as a Court of Appeal.
– It will still be a Court of Appeal, but there is no reason why it should not deal with these cases as a court of original jurisdiction with the same freedom as if it were a Court of Appeal only. Consequently, if we endow the Justices of the High Court with this original jurisdiction we shall enable those who prefer the High Court to bring directly before it any cases arising out of the Constitution, or involving its interpretation. If the litigant is not satisfied with the decision of the single Judge on circuit before whom the case may first be tried, he may appeal to the High Court sitting in Banco.
– How does the AttorneyGeneral propose to get over the difficulty if only three J udges are appointed ?
– If honorable members decide at a later stage not to go one step beyond what the Constitution requires, and to appoint only three Judges - if they will not take the further step which I think is necessary and desirable and appoint five J udges - all we can do is to provide that in the case of an appeal from the decision of one J udge, the remaining two Judges must be in agreement, or the original judgment shall stand. . That is the only recourse we have. In that case we shall have the matter tried before the whole Federal Bench ; first by the one Judge, and then by the remaining two J udges, andat least two Judges must be in agreement. Consequently, the number of Judges is not directly involved in this question. The point is whether honorable members are willing to give litigants an open choice between their own State Courts and the visiting Justice of the High Court, who may be on circuit in a State, or to shut the doorof the High Court and declare that litigants must in the first instance repair to the States Courts.
– If the work of the Court is increased, will it not involve an increase in the number of Judges?
– That may happen hereafter.
– Then why not say at once that it is intended to appoint five Judges?
– The difference is this - that, before the number of Justices can be increased beyond that fixed in the Bill, it will be necessary to come down to Parliament and satisfy it that other Judges are necessary.
– That will have to be done.
– Opinions differ. I am confronted by two absolutely antagonistic statements from the opponents of this Bill. One section say that there will be no business for the High Court to transact, whilst other honorable members say that there will be so much business that we shall have to double the number of Judges. Who am I to believe? I prefer to follow my own opinion, namely, that the whole of the business likely to be done in the High Court for some years to come, under the measure as framed, can be transacted by the number of Judges proposed.
– Why open two shops in order to sell the same article?
– Why should we, when we have to open a shop to carry on a wholesale business - that of hearing appeals - prevent it from carrying on a retail trade as a court of original jurisdiction ?
– Because it will involve more expense.
– It will involve no more expense. It may be the fault ofmy comprehension, but I cannot see how the expense will be. increased. Supposing the honorable member had a case which involved the interpretation of the Constitution, he could, under our proposal, avail himself of his own State Courts, and from their decision appeal to the High Court.
– I mean that there will be more expense involved in providing the High Court withall the necessary paraphernalia.
– I beg the honorable member’s pardon. May I, at this early stage of the debate, put in one modest but earnest appeal that the blessed word “ paraphernalia “ shall not find a place in this discussion, unless its meaning is first defined. When I endeavoured to induce some of the critics of the Bill to indicate in what way the cost of the Court would be increased to the large extent they represented, I was told that the extra expense would be involved in providing “ paraphernalia.” When I asked the meaning of that word, I was told “ paraphernalia.”
– Will not the Circuit Courts involve great expense? They will be part of the paraphernalia.
– The word “paraphernalia “ cannot apply to the Circuit Courts. It may be, in one sense, made to apply to certain necessary parts of the machinery of the Court, but it always has a secondary meaning suggesting unnecessary and expensive ornamentation. I may say at once that there is no proposal for any unnecessary or ornamental expenditure in connexion with the High Court. The only proposal here is for the provision of the necessary machinery.
– For sending Judges all over the continent to exercise primary jurisdiction.
– That depends on the number of Justices. If honorable members decide to cut down the number, the original jurisdiction of the High Court will be available to only a limited extent, because three Judges cannot go on circuit as often as five. The circuits and their extent will be determined by the number of Judges, and not by the jurisdiction of the Court. By conferring this additional original jurisdiction upon the High Court, honorable members will not necessarily increase the expense, but they will increase the opportunities enabling litigants to avail themselves of the Court. Very few opportunities will, however, be afforded in the more distant States for the exercise of the original jurisdiction of the High Court if the number of Judges is reduced”.
– That is to say, if we appoint fewer Judges than is proposed, the original jurisdiction conferred on the Court will be practically a dead letter.
– No. I do not mean that, but the original jurisdiction can only be exercised to a limited degree because the J udges cannot visit the various States with the same frequency as if the Bench were stronger, and, therefore, fewer opportunities will be presented to local litigants. If the number of Judges is cut down from five to three, I shall still argue in favour of the endowment of the Judges with original jurisdiction, because wherever they may be they should have it. Where they are, litigants should be able to take a constitutional case before them in the first instance, should such a case arise. If they are not there it cannot be put before them then.
– They could deal with those cases under section 75 of the Constitution.
– But I wish the Court to be able to deal with these cases under section 76 in addition. If the suitor does not desire to wait for the visit of a Justice of the High Court, he has the option of taking his case before his own State Court. The Justices of the High Court will visit the different States at regular intervals, so that litigants will have their choice between that tribunal and the States Courts.
– Will the Judge have any knowledge of what cases are to come on?
– Then proceedings must have been commenced previously.
– At certain dates there will be regular visitations by a Justice of the High Court. If occasion requires, there may be visitations at other times, but there will be certain fixed dates upon which a Justice of the High Court will visit different States. When he is there, why should we say to litigants, “You shall not go to him. If you wish to commence an action involving a constitutional question, which is pre-eminently a Federal question, you must do so in a State Court ? “
– What is the object of giving that opportunity only to a small percentage of suitors ?
– In answer to the honorable member I would point to the experience of the Justices of the different States Courts when upon circuit. As honorable members know, it occasionally happens that a Judge of a State Court upon circuit arrives at a town in which he is presented with a pair of white gloves to symbolize the fact that there are no criminal cases to be tried, and. often there may be only two or three civil cases listed. When High Court Justices visit some of the less populous States, it is just possible that they may be presented with white gloves, and have only a short appellate list with which to deal. But such contingencies, if they ever arise, will be much rarer if we allow suitors an opportunity of bringing their cases in the first instance before visiting Justices of the High Court, because, then, the possible range of jurisdiction will cover not only the appellate, but this extraoriginal jurisdiction. Thus suitors who prefer the Federal to the State Court will be able to come before the Justices of the High Court, and there will be fewer instances of visits being made at which few suitors present themselves.
– Is there some mysterious attraction about these visiting J ustices ?
– If not, there is no harm done.
– But more money is spent.
– No. If we have a Court it must sit at certain times and places. We do not increase the expense of that tribunal by enlarging its original jurisdiction. The only argument that can be urged against me, is that if we give this original jurisdiction we may find the High Court circuit and other sittings crowded with business, and have an application from the Government of the day to Parliament to appoint additional Judges. In such a contingency it will rest with the Parliament to say whether it prefers to appoint additional Judges or to decrease the jurisdiction of the Court.
– It cannot do that.
– Why not? Do honorable members who make that statement believe that the High Court will be called upon to transact a great deal of business ?
– We had better begin on a small scale and expand.
– I would rather see the High Court begin its existence by having to transact a large amount of business than by having a smaller amount than it is able to deal with. Let us give litigants the choice between the States Courts and the Federal Court.
– It will involve unnecessary expense.
– In what way ? If we have only three J udges armed with appellate and certain original jurisdiction, we must still make arrangements to allow of their visiting the States at various times. What extra expense would be involved in empowering the Court to deal with a little more business than it could otherwise transact ? It will cost a suitor no more to pay a barrister to appear before this Court than it will topay him to appear before one of the States Courts.
– What special convenience will be conferred upon suitors under the Government proposal?
– The convenience of having, in addition to the ordinary States Circuit Courts, the Federal Circuit Courts.
– If we vest the court with this original jurisdiction, does the Attorney-General think that three Judges will be sufficient ?
– If the Committee insists upon the appointment of only three Judges the extra amount of original jurisdiction vested in the Court will not overburden them. If honorable members reduce the number of Judges to three, I still prefer to vest them with this original jurisdiction in the interests of the suitors.
– Evidently the Attorney-General is beginning to think that the sooner these clauses are eliminated the better. This is the first occasion upon which I have seen a Minister rise - before a single word has been said against a clause - to enter upon an elaborate defence of it.
– There were one or two interjections.
– Evidently the suspicions of the Attorney-General are aroused, and he is becoming doubtful of the wisdom of retaining the clauses relating to the original jurisdiction which it was proposed to confer upon the High Court. Since last week, acting upon the excellent suggestions of the honorable and learned member for Bendigo, he has “ caved in “ to some extent by cutting out of the Bill, without a single word of further debate, the provisions which sought to centralize jurisdictionin Admiralty and Maritime matters. Those provisions meant nothing more than the centralization of justice. The Attorney-General talks about giving litigants the option of going to the High Court, or to the States Courts. But the Government proposal simply means that a suitor in a distant State, instead of having recourse to the Judges of his own State, will be dragged before the High Court which will probably be sitting in the very heart of Australia. It is really a question of centralization with itsaccompanying great expense. The Attorney-General has shown that he is doubtful of the expediency of conferring upon that tribunal all the powers that we can confer under the Constitution, because he has given notice to eliminate some of the provisions relating to the power of removal of causes - provisions which were expedients adopted to extend the jurisdiction of the High Court. He is now willing to excise clauses 42 to 44 inclusive, under which a defendant is given power, before a defence is entered, to remove as of right a cause from the jurisdiction of the States Courts to that of the High Court. The AttorneyGeneral has made an elaborate defence before being attacked. He has yielded to the suggestions put forward by the honorable and learned member for Bendigo, and, on his own initiative, he proposes to excise the clauses relating to the power of the removal of causes.
– The honorable and learned member for Indi supported the suggestion to limit the power of theremoval of causes.
– Then why not go further, and accept the suggestions of the honorable and learned member for Indi in their entirety ? In his speech that honorable member suggested cutting down the original jurisdiction of the Court to the matters referred to in the Constitution.
– I said that I agreed with the honorable and learned member for Bendigo as to the removal of causes, and as to the wisdom of not depriving the States Courts of any jurisdiction which they already possess.
– That practically means that we should not confer upon the High Court any greater jurisdiction than is already assigned to it. Under the Constitution that Court is given original jurisdiction in regard to five matters. The AttorneyGeneral has said that the Judges must go to the various States to sit, because we must give them original jurisdiction irrespective of whether we like it or not. But I do not suppose that one case will arise in two years, perhaps not one in ten years, under section 75 of the Constitution.
– What about cases in which a writ of mandamus or prohibition is sought?
– Very few cases will arise under that section. None will arise under any treaties or as affecting Consuls. There may be cases against the Commonwealth, but these can be dealt with by the States Courts. This is an original jurisdiction that is not exclusive
Under this Bill actions may be taken in the States Courts, so that very few cases will arise under section 75 of the Constitution, because though the original jurisdiction cannot be taken away from the High Court to the extent that it has been vested by the Constitution, in most of these matters jurisdiction is actually possessed by the States Courts. That is so in cases of State against State, or even in the case of an action against the Commonwealth.
– Surely the States Courts could not entertain an action in which State was against a State.
– Yes; they could do so even before the Constitution was passed. It has been the opinion of the highest Judges that a suit could have been brought in any State if that State had been made the defendant. There may have been- a disinclination to do anything of the sort, but the power existed before this Constitution was framed. Any State could sue another State in its own Court, and any citizen of a State could sue another State in its own Court. It is true that actions of the kind may be very infrequent. Although wearealwaystalking of these matters it this House, I do not remember a single case in which a State has taken action against another State. So far as that provision is concerned, its exercise will be very infrequent ; but it will be concurrent with a power already existing in the case of States, though, of preference, no doubt a suitor may occasionally wish to go to the High Court. Perhaps, a writ of mandamus may be asked against an officer of the Commonwealth, but up to the present we have not conferred the power under any Act of Parliament to issue a mandamus against the Commonwealth. Last year, when I tried, during the discussion upon the Claims Against the Commonwealth Bill, to have a provision inserted under which the Minister for Trade and Customs might be made to deliver up documents, upon which he had been sleeping perhaps for months, the Government were horrified at the idea of a power being given by prerogative writ to compel action by a Minister of the Crown.
– There would not be the same objection to giving the power to the High Court of the Commonwealth.
– I do not see that the change of Court would make the slightest difference. Suppose an application were made to compel a Minister to disgorge moneys he held over - and in this connexion I need only refer to the proceedings of this afternoon in connexion with the Sugar Bonus Bill” An application of that kind may be made by a State to proceed f gainst the Commonwealth.
– To a State Court? I object.
– I would remind the honorable member that there might be us great a chance of a Federal leaning in the High Court as of a State leaning in a State Court.
– I should prefer the Federal leaning.
– We should have an applicant representing, as it were, the State and a defendant representing the Commonwealth, and why, if wedesireequality of opportunity, should we say that the Federal Court is to be the one in which proceedings must be taken ?
– Because it concerns Federal affairs ?
– Not Federal affairs exclusively, but affairs arising under the Constitution which cover, not the rights of the Commonwealth alone, but the- rights of the Federation, which includes the States.
– Such cases should be decided by an Australian Court.
– I think the honorable member sometimes confuses the Constitution with the Commonwealth. The Federal Courts are to be the guardians not of the Commonwealth, but of the Constitution, and the Constitution declares the right not only of the Federal Executive, or of the Federal State, as we may term it, but the rights of the States which are units in the Federation. A Federal court therefore is no more a court of the Commonwealth - though it is a court of the Constitution - than is a State Court. The obligation of the laws is as imperative upon the States Courts as upon Federal Courts, because as a matter of fact they all have their source in an Imperial law equally binding upon all.
– There must be a wide margin for the personal equation in every instance.
– If we follow the lead of America in this matter we shall find that original jurisdiction is there confined to cases in which a State sues a State or a State sues the Commonwealth or where Ambassadors, public Ministers, or Consuls are concerned. In no other case is original jurisdiction given to a Federal Court in America.
– Cases arising out of Federal laws.
– T - The Circuit Courts have original jurisdiction.
– In no other cases is original jurisdiction given to the Supreme Court of America. Original jurisdiction is given to the Federal Circuit Courts for reasons which are not applicable here. In America, there was no power under the Constitution to confer Federal jurisdiction upon States Courts, and for that reason they were obliged in the first year, I think in 1789, at the same time as they created the Supreme Court of America, to create a series ofFederal Courts to localize justice. But under our Constitution, anticipating that there would be no necessity for many years to come to create Federal Courts, power is expressly taken, to vest jurisdiction in the States Courts. Still it is true that the Supreme Court of America has original jurisdiction in exceedingly few cases. We have, by our Constitution, given original jurisdiction to the High Court in those cases, and in one or two more. Surely it will not be said that the efficiency of our existing courts is not adequate for the discharge of original matters that may arise? Surely it would be far better for honorable members to allow the Supreme Court of a State, for instance, to hear an appeal from a court of summary jurisdiction upon a matter involving some point arising under the Customs Act? Whether we give original jurisdiction or not to the High Court in matters arising under section 76 of the Constitution summary jurisdiction will still remain in the summary courts of the States, so that a Customs information would be heard, not by a Federal Court, but the court of summary jurisdiction. Would it not be better, therefore, that in the first instance an appeal from a conviction in a Customs case should be heard by the Supreme Court of a State than by a Federal Circuit Judgegoingonce in four or six months to a State to hear cases ? In the first place we should get the point decided by three Judges, and the chances would then be that unless there was a divergence between the decisions of various States upon some question the matter would not be taken to the High Court of Australia. But, if the matter is taken before a single Federal Judge on circuit, in nine cases out of ten the chances are that it will go on to the High Court.
– N - No, it is the other way according to the experience of America.
– The honorable member is again bringing in the experience of America, forgetting that under our system we shall have one circuit Judge, whilst in America the Circuit Court consists of three Judges. In America the Circuit Court is practically a court of final appeal.
– In some cases.
– In nearly all cases.
– What is the full strength of the Supreme Court of America?
– There are nine Judges of the Supreme Court of America, but the Circuit Courts act as courts of appeal and courts of original jurisdiction. I think there are three Judges sitting at these Circuit Courts - the District Judge and two Judges of the Supreme Court of America. In all cases where they do not certify that a point ought to be reserved or unless the Supreme Court of America on special application, as of grace, grants an appeal, which very seldom occurs, the decision of the Circuit Court in America is final. So that really in America the Circuit Court would be equal to our proposed High Court.
– Indeed it would not.
– I think it would, because as I have mentioned in nine cases out of ten an appeal would not gobeyond the Circuit Court.
– That does not make it equal.
-Iam not contending that it would be of equal ability, but that it would be equal in point of efficiency, which means expedition and cheapness. The question of ability is a matter of the personnel of the court, and we cannot predicate that the Australian Court will be better than the American Court or, say, that the American Court is better than the Australian Court will be. Before we can speak upon that point we must wait until we see the calibre of the Judges appointed to the High Court, and the less political such appointments are the better they are, as a rule.
– Iwas speaking of their jurisdiction.
– Of course they are not equal in that respect, because they have not the ultimate appellate power. But, in addition to the powers they have to which I have already referred, and the fact that the tribunal consists of three Judges, nearly all the removals in America are not to the Supreme Court, but from the States Courts to the Circuit Courts. Nearly all the removals there are from District Courtswhich are Federal Courts or from States Courts, which are allowed to exercise Federal jurisdiction under certain conditions, to the Circuit Courts. This shows that they are tribunals of almost equal importance to the High Court which we propose to establish. It is shown also that in America these tribunals promote the decentralization of justice. It is certain that if we allow original jurisdiction here we allow it to be exercised by a single Judge upon circuit, and the cases must wait until the circuit is made, which in America occurs only once in six months. Consequently if the decision is to be that of a single Judge in a majority of cases it will mean the carrying of the cases on to the High Court with consequent additional expense. The Attorney-General will surely be influenced by an authority such as Cooley on this question. Cooley is a writer on purely constitutional measures, not like Story and some others who are general writers on American laws, and who incidentally deal with constitutional questions. Books which are directed purely to matters of constitutional interpretation and constitutional rights will, I think, be admitted as authorities of greater weight than those in which such matters are incidentally referred to in a general discourse upon law. After mentioning that as an interpreter of the Constitution that must be a Court of Appeal, that the Supreme Court is necessary to secure uniformity as an appellate tribunal, and that the same principle does not apply to original jurisdiction, Cooley says : -
These reasons do not, however, apply to the original jurisdiction over a case, but only to the formal application in the case of the rule of law that shall govern it. The full purpose of the Federal jurisdiction is subserved if the case, though first heard in the State Court, may be removed at the option of the parties, for final determination, to the Courts of the States.
That is the opinion of one of the chief constitutional writers in America on the working of their Constitution, and surely honorable members will accept that as a weighty authority - that justice, except in a few matters arising under the Constitution, should be left to the
States Courts. There is another authority, who should to some extent influence the Attorney-General, and that is Mr. Garran. I am not referring now to the work which has so justly merited the eulogium of every one who has looked at it - Messrs. Quick and Garran’s work on the Constitution - but to a little work entitledTheComing Commonwealth, published before the inauguration of the Commonwealth, by Mr. Garran, who is now secretary to the Attorney-General, and who probably has had something to do with the framing of these Judiciary and Procedure Bills. What does Mr. Garran say? -
In practice it will probably be found that the original jurisdiction will only be required in a limited class of cases ; for instance, where the Commonwealth is a party, where one State is proceeding against another, or where the representatives of other countries are affected.
These are, of course, cases in which original jurisdiction is given under section 75 of the Constitution. Mr. Garran goes on to say-
In othercases it will probably be better to leave the original jurisdiction wholly to the State Courts subject to the right of appeal to the Federal Court.
That is what we are asking for, andI give it on the authority of the Secretary to the Attorney-General. That appears in a book published just before the Convention began to sit in order to influence the judicial provisions of the Constitution.
– Those were his first thoughts.
– I think that his first thoughts happen to be his best thoughts in this case. Let us look at what would be the effect of conferring this jurisdiction upon the States Courts. It would mean that in every case where legislation had been passed under section 51 of the Constitution the Federal Circuit J udge would have equal power to hear disputes with State Judges. That would include all taxation matters–
– Jurisdiction has been given in the Customs Act and the Excise Act.
– Original jurisdiction is given as a temporary provision, but in summary matters it is given absolutely. The Government have up to the present time point-blank refused to bring in a Bill conferring full . original jurisdiction on the Courts of the States. In a piecemeal way they have given jurisdiction in various Acts. They have given jurisdiction in the Customs Act, and - forced upon them by the House - in the Post and Telegraph Act. It was a jurisdiction, as at first proposed, only conferred until the High Court was created. Surely honorable members will remember that in several Bills - the Property for Public Purposes Acquisition Bill, the Post and Telegraph Bill, and others - the Government proposed to give only temporary jurisdiction to the States Courts, and that the provision was that automatically on the establishment of the High Court the Federal jurisdiction conferred on the States Courts was to cease? The Government have not proposed to give the States Courts the full jurisdiction. As a matter of fact, I believe that the States Courts have jurisdiction, in spite of them ; but they have shown a disinclination to absolutely confer the jurisdiction so that it should be beyond all doubt. If we confer this original jurisdiction on the High Court, and a question on a promissory note arises, the jurisdiction will be vested in the Circuit Courts as well as the States Courts. . I ask honorable members to say how can matters of Insolvency and Bankruptcy be determined by a Circuit Judge1? It is not an ordinary issue, to be determined at a single sitting. It is not a question of fact which goes before a jury. Bankruptcy proceedings extend over months. There are the adjudication, the first hearing, various examinations before receivers and accountants, occasional references to the Bankruptcy Judges, and the final hearing. Generally the proceedings extend over many months, and require very elaborate machinery. How, then, can it be said that in a matter of that sort the Federal jurisdiction can be properly exercised by the Federal Circuit Court? It cannot be done unless you go to the HighCourt. The result will then be as has been indicated - a complete centralization of jurisdiction. So far as the Bill is alleged to give more efficient decisions in Federal matters, or to expedite proceedings, or to secure economy, it is a perfect farce. It will be inefficient for the reasons I have mentioned j it must be more expensive, and as the. J udges cannot go on circuit more than, perhaps, once in six months without delaying the appellate jurisdiction, it will lead to considerable delay in the meting out of justice. I should like to refer the Attorney-General to a very recent authority. In the Annals of t/te American Academy oj Social and Political Science for March last - a volume which only came out by the last post - I find a very excellent article by Professor Harrison Moore, who has already published a very fair work on our Constitution.
– It is an admirable article, which I have read.
– I am sorry that the honorable and learned gentleman had not an opportunity to read the article last week. If he had then thought it an admirable article he would have proved his conviction by not bringing in the Bill. Professor Harrison Moore points out, as we have endeavoured to do, that there is no immediate necessity to create the High Court ; at all events to arm it with very extensive jurisdiction. He says -
The establishment of the High Court is likely to be deferred.
He mentions that probably the country would not stand the appointment of political Judges - I do not know what right he had to make tb.at remark, because, of course, there is no talk about doing that - and he goes on to say -
Again, the legal issues presented to the courts can hardly be of the same supreme importance as those which have arisen in the United States, where again and again the courts have been faced with problems affecting the national security. Finally, the Constitution can be amended with comparative ease.
In fact, the object of his article is to show that the problems which are likely to affect us for many years to come will be very few, and are not likely to be big national ones, which require extensive jurisdiction in our courts, and he says that the work can be properly done by the States Courts. Qf course, we shall be told again that we want a purer tribunal. Let us not idealize the Supreme Court of America too much. Mr. Woodrow Wilson, whom I am sure the Attorney-General respects as an authority, has stated that it has almost invariably taken its colour from the prevailing political opinion of the day. We have heard an apostrophe from the Attorney-General on two occasions to the genius of that court. Even in Marshall’s time it was federalist, because the federalist party was then in power. In his work on Congressional Government, Mr. Woodrow Wilson says -
It has been during comparatively short periods of transition, when public opinion was passing from one political creed to another, that the decisions of the Federal Judiciary have been distinctly opposed to the principles of the ruling political party.
Let us not be led too much by this excessive eulogy which has been given to the High Court, and imagine that the States Courts are not likely to be free from undue influence in coming to their decisions. We know that the Supreme Court of America, for ten years after Marshall’s time, a democratic Government being in power, gave decisions that were purely democratic. I have not endeavoured to impugn the purity of the Federal Court, but whenever the States Courts are mentioned, we are immediately met with the statement that we cannot trust the interpretation of the Federal laws to them. When honorable members use. that class of argument, I ask them to prove the assertion that the Federal Court is likely to be purer than the States Courts in the administration of justice. When I go to authorities in America, I find that the Supreme Court there has not been so absolutely pure. Being a single court, and having a final voice, it did of course reconcile decisions. Whether the judgment was sound or unsound, it had to give the last word, and therefore it did lay down finally what was the interpretation of the law, but it was sometimes affected by the prevailing opinion of the party in power- in Marshall’s time by Federal views, and for ten years afterwards by purely democratic views. That is a class of argument which we have not used, but it has been used by the Government, and for that reason I refer to it. I hope that honorable members will excise the clause, and confine the original jurisdiction of the High Court to matters arising under Section 75 of the Constitution. By doing so they will justify a smaller Bench, expedite justice, render it cheaper, and, on the whole, secure the requisite Federal efficiency.
– I sincerely hope that the Committee will not eliminate the clause except to the extent which the AttorneyGeneral has indicated. I think we ought to consider also some of the concluding words. I do not know whether he really intended to include the question Of removals in his observations with regard to some later clauses. I think it is rather consequential on what he said.
– I propose to ask the Committee to retain the power of removal for special cause - that is why I did not mention those - but to delete the power of removal as of right.
– The honorable and learned gentleman does not mean that he is going to retain the concluding words with regard to removals - at all events, in their present form 1
– That is another matter.
– Confining my observations to the substance of this clause, I think it is only right that it should be retained. Under the Constitution the High Court has original jurisdiction in all matters -
Arising under any treaty.
That is to say, no’ matter between whom they may arise or under what circumstances -
Affecting Consuls or other representatives of other countries.
In which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party.
No matter what the question is or under what law it arises - whether it arises under the Customs Act, or the Post and Telegraph Act, or the Excise Act, or under the Constitution itself - if the Commonwealth or any person representing the Commonwealth sues an individual, the High Court will have original jurisdiction, and vice versa., if any individual sues the Commonwealth under any circumstances the High Court will have original jurisdiction. So that nearly all the cases with which we have been familiar in the past under Federal law will be within the original jurisdiction of the High Court, whether we give this additional .jurisdiction or not. Honorable members will not eliminate original jurisdiction if they strike out this clause. We shall require to have the opportunities for deciding these cases ; we shall require to have the Judges in sufficient number - whether it be three, four, or five - and with sufficient opportunities to decide these cases, and all that these other clauses do, as far as I can see, is to give the same opportunity to private individuals as between themselves or between corporations and private individuals,’ to go to the High Court to get decisions that an individual suing the Government, . or the Government suing an individual . would have. Therefore, I think it means very little difference, if any, so far as I can see as regards expense. You must have the Court sufficiently equipped, furnished with means, and established with the proper opportunities to decide these cases, in original jurisdiction, mark you, as between the
Government and the private individual. And it seems to me only to be right to alford litigants the opportunity, if they so desire, to go to the High Court in the first instance, when they will, perhaps, be quite satisfied without any further appeal ; and if there is any further appeal, it cannot go to the Privy Council.
– What is the use of duplicating courts ?
– If I have succeeded in conveying my meaning aright, we are not. duplicating any court. The High Court mustbe there in any event ; it ‘ must be there for the purpose amongst others’ - a purpose that cannot be taken away, because it is embedded in the Constitution - of deciding such cases as we have heard of in the past.
– It does not follow that we need provide a High Court in every State if the States Courts are invested with the jurisdiction.
– Perhaps I have not conveyed my meaning yet. I have no intention to support a proposal to prevent the States Courts from deciding these cases, and to make this jurisdiction exclusive in the High Court.
– The Bill does that.
– Not in this clause. While I should support the States Courts having the fullest means of deciding these particular cases, because it is impossible, with the . means at our disposal, to provide a High Court- machinery to sufficiently cover the ground ; on the other hand, I say that we cannot take away from the High Court the power of deciding questions arising under the Federal laws, and under the Constitution. Whether it is a civil or a criminal matter, we cannot deprive the High Court of the jurisdiction, and we must furnish it with the means of deciding the cases. Supposing that we have the High Court; supposing that we have a Judge there with inalienable power to decide these cases as between the Commonwealth and the individual, we are not increasing the expense, so far as I can see, by one penny by saying that the same Judge, with the same opportunities before him, shall decide any similar question between two private individuals. That is all I mean to convey.
– We cannot take the Judge to the individual.
– He is there. .
– The Supreme Court of the State where the individual is, has also the power, so that this Bill is duplicating power.
– The Supreme Court of the State is located in the capital. It has to visit various parts of the State. So that the honorable and learned member might as well say - there being local courts in the different parts of a State - “Why take the Supreme Court to those parts?” The same argument would deprive all the Supreme Courts of the States of their original power, because you have in the various parts of the States, Courts of General Sessions, Courts of Quarter Sessions, District Courts, and County Courts, all doing the same work. It is impossible for an honorable member to look at the jurisdictions exercised in his own State without seeing that there is an alternative power given to act to the various courts ; but at the same time you do not shut a man out from going to the Supreme Court. And it seems to me, that you should say to litigants - “ You are not forced to go to the State Court ; you are not forced to go to the High Court ; you can go to which you like. There it is. The doors are open. There is not a penny more expense. The Judge is there.”
– The honorable and learned member cannot convince me that there will not be a penny more expense.
– You have the jurisdiction in all these local courts. Do not forget that. We have had in the past cases which would have come under the jurisdiction of the High Court, as given in the Constitution. All Customs cases such as those of which we have heard would be within the original jurisdiction of the High Court in any event.
– What court would carry on the appeals if the Judges were occupied with other matters ?
– What courts carry on the appeals in the States Supreme Courts when the Judges are on circuit ?
– If we are to have the same number of Judges as the States Supreme Courts have, I agree with the honorable and learned member.
– I must try to keep within the bounds of the clause before the Committee. We were told that we were not to discuss clause 3 - that we were not to consider the number of Judges until we had decided the work that they would have to do. My honorable and learned friend now wants to draw me into a discussion upon clause 3, irrespective of that. I am prepared to discuss the question of the number of the Judges if we are in order in doing so. As to that, I agree with the Attorney-General, that to do the work set out by the Attorney-General himself, we cannot do with less than five Judges. We cannot do justice to the smaller States without that number. It seems to me that to say that there shall be three Judges sitting in one of the larger States, and that people shall be compelled to bring their appeals to that Court, will be wrong to the other States. To make the High Court a peripatetic Court of three Judges, wandering around without doing other work, is almost impossible to contemplate. When we come to the clause in question, I shall be prepared to deal with it, but I am talking of this question of jurisdiction ; and it seems to me that we do not sufficiently’ recollect the new jurisdiction that already exists by virtue of the Constitution. It is not as though we were taking a class of cases- say cases arising under Federal Acts of Parliament or under the Constitution - and giving them absolutely to the High Court for the first time; because, as I have pointed out, the vast number of these cases, perhaps the majority of them, will be within the grasp of the High Court whenever it is constituted.
– Are they not mostly matters of summary jurisdiction - under section 75, sub-section (3) for instance.
– Does the honorable and learned member mean cases in -which the Commonwealth is a party? Surely that embraces all cases in which those conditions occur.
– They will be mostly cases of individuals.
– They may not be. They may be cases of great importance where, say, under the Customs Act, a person sues for a refund of customs duties paid.
– Many of them are matters concerning individuals.
– I happen to be engaged in one or two cases myself, and I know perfectly well their nature.
– There may also be cases for the recovery of duties paid under the Excise Act.
– They are very rare actions; the majority of them are otherwise.
– No one can tell what the majority of such cases will be. I know that there are a number of important actions pending now, in which the High Court would have jurisdiction. Therefore, I say that by voting against this clause, honorable members will be cutting away the rights of individuals in suits between themselves, whereas we cannot help giving the right - we are in presence of a right which we cannot take away - in cases where an individual is a party on the one side or the other, and the Commonwealth is the opposite party. Then there are cases between States and the Commonwealth in which a writ of mandamus or injunction is sought against an officer of the Commonwealth. That is a matter in which the High Court will have jurisdiction in any event, and it is a class of case in which the Commonwealth ought to be represented as a Commonwealth. It seems to me that we shall be doing a wrong, and doing something anomalous unless we pass this clause. Without referring to the larger consideration to which the AttorneyGeneral alluded it seems to me that we should not be doing right if we did. not permit the High Court - the grand expositor of this Constitution in Federal matters - to have the opportunity of hearing cases if litigants choose to come to that tribunal and say - “ We desire to have this matter determined bythe High Court.” Thelitigants may be perfectly ready to abide by the judgment of one Judge of the High Court. They may not want to go any further.
– One of them will be content.
– Of course in one sense my honorable friend is right. But both parties may be content, and may not want to go any further with the case. Persons are very often satisfied, and say - “I have had this case fairly fought out ; I am satisfied to have had a judgment of a Judge of the High Court,” and no appeal is taken. I think that the extra expense involved is infinitesimal. That is the view which I wish to put before the Committee.
– I have listened with great interest to the view of the honorable and learned member for Indi, but I think that throughout the whole of his remarks he has been assuming the real point tit issue between the two parties in connexion with this clause. He has really not only been assuming that it is desirable to give to the High Court what we cannot stop it from having, the original jurisdiction conferred by the Constitution ; but also to put that jurisdiction into active operation by providing courts and Judges to hear these suits, and thereby, so far as possible, taking the jurisdiction away from the States Courts, to whom we can give original jurisdiction at the present time.
– Did not the second reading of the Bill assume that ?
– It did not assume it as far as I am concerned.
– Does the honorable and learned member contemplate a court without original jurisdiction?
– I contemplate doing without a High Court for the present. The second reading of the Bill has affirmed the principle that there shall be a High Court, but this Committee has a perfectly free hand to decide what the character of that Court shall be, within the limits prescribed by the Constitution. What I say is, that if we are to have a High Court, let us limit it to the functions so magnificently described during the second-reading debate, when we were told that the Commonwealth Court was to be constituted to harmonize all the conflicting currents of judicial decision throughout Australia. We want only an appellate court to do that; and not a court of original jurisdiction, where the jurisdiction ls exercised by individual Judges. To . say that we are giving the High Court original jurisdiction in these matters, is not correct. We cannot help the High Court from having that jurisdiction. But the Court may be so constituted that the original jurisdiction will not, as a matter of fact, be exercised by it, but primarily by the Supreme Courts of the States, if we give the jurisdiction to them.
– Surely litigants ought to have the opportunity of going to the High Court in the first instance if they choose.
– Litigants will not want to go to the High Court in 99 cases out of 100 unless it is as convenient to them as the Supreme Court of their State will be. That Court for all practical purposes is at the door of most litigants, and continually at their demand; and unless you make the
High Court of Australia as available as the Supreme Court of a State it will not get the original jurisdiction. Suits involving original jurisdiction will not be brought before it. Every additional piece of jurisdiction you confer upon the High Court means a very considerable increase of expense to the Commonwealth - that is, to the States and to their constituents. Unless you are going to say that the Judges of the High Court exercising original jurisdiction are to be such a superior class of persons as compared with the Supreme Court Judges of the States, that their decisions will be accepted as final without appeal, there will be no new benefit offered to litigants going to the High Court in the first instance. The Attorney-General is on the horns of a dilemma in this matter.
– I think he is on the wrong horn.
– If he has five Judges of the Supreme Court he will not be able to provide enough Circuit Courts to make the attendance of the High Court Judges sufficiently frequent to enable them to compete - other things being equal - with the States Courts so far as the personal convenience of litigants is concerned.
– The States Courts are not equal. The honorable and learned member is looking only to Victoria.
– The Attorney-General is wrong if he refers to the calibre of the Judges.
– Both the calibre and the number.
– In South Australia they have only three Judges.
– In Tasmania only three.
– There is not the same population in either South Australia or Tasmania, and three Judges for the latter State form a larger proportion than do five or six Judges for Victoria. If we are to have sufficient Judges to make the visits of the High Court to the various portions of the Commonwealth sufficiently frequent to suit litigants, I am afraid that five Judges will not be enough, assuming, as the AttorneyGeneral seems to assume, that all the business will flow to the High Court. If, on the other hand, there are not sufficient Judges to provide sufficiently frequent Circuit Courts, the business will not flow to the High Court. It seems to me that five is a betwixt and between number - not sufficient for the one purpose, and too many for the other. I am influenced by the view I take of the Bill as a whole; and, although the second reading has been carried, we are still in a position to question the extent of the jurisdiction. Every additional piece of original jurisdiction is an additional excuse for increasing the expense, either with regard to the number of Judges or with regard to the frequency pf the Circuit Courts, with, if I may be permitted to use a forbidden word, all their “paraphernalia.” It is quite true, as the honorable and learned member .for Indi pointed out, that a very large number of the cases which occur are already within the original jurisdiction of the High Court under the Constitution. So- far as one is able to judge, I should say that, at any rate, twothirds of the cases up to the present- are within that original jurisdiction. These cases have been dealt with by the States Courts, and I have not heard any excessive complaining about the decisions given. The point has been emphasized that a .State Court might decide one way, whilst another State Court decided another way.
– That has happened.
– There have been differing decisions ; but it is not original jurisdiction, but appellate jurisdiction which is required to cure that difficulty, always assuming that appeals will- go to the High Court and not to the Privy Council. For myself I do not think that appeals will go to the High Court in preference to the Privy Council, but I am assuming they will, for the purpose of argument. If it be urged that, considering all the original jurisdiction already conferred on the High Court, it will not matter rauch if we do confer a little more, that must be on the assumption that courts of sufficient frequency and sufficiently widely distributed are to be provided in order to transact all the business instead of leaving it to the States Courts. The argument is that, with all this jurisdiction, more Judges are wanted. The proper question ought to be - What is the least number of Judges with which we can do 1 There is no need to provide for frequent Circuit Courts to enable the jurisdiction to be exercised, so long as we have States Courts able to exercise it, and so long as the financial circumstances of the States are as at present. We should be exercising a wise discretion if we did not confer extra jurisdiction, not so much from the point, of view of the expense, as from the point of view of the excuse for expense that would be offered. We Lave heard a great deal about the mandatory character of the section in the Constitution as to the establishment of the High Court; but there is nothing mandatory as to the . constitution of the Court. It seems to me that every option the Constitution gives, is being exercised in connexion with this Bill, except the option of denying until a convenient time the establishment of the High Court.
– Th There is a saying to the effect that - “Fools rush in where angels fear to tread.” It seems to me that the specially organized and particular opponents of this Bill, who voted against its second reading, are determined to make the measure as inefficacious as possible. Honorable members from New South Wales would appear to know a tremendous lot about the working of such courts as that under discussion, but I venture to wager £50 that no man here has been in a Federal Court, or had a law suit there, except myself. The honorable and learned member for South Australia, Mr. Glynn, described the American Supreme Court as poisoned by political influences before its construction. But we ought to remember that Lord Salisbury, the late Prime Minister of England, said that if there was one thing he envied America, it was her Supreme Court ; and I heard Lord Rosebery, one of the ablest men to-day in England, express similar sentiments in Pittsburg years ago. Why should I or any other citizen of the Commonwealth be deprived of the right to commence an action in a Federal Court? Is it because my legal friends wish me to run up such a bill in a State Court that I shall not be able to give security on appeal to the High Court 1 Why should litigants, say, on the West Coast of Tasmania, be deprived of the right to have their cases heard in the Federal Circuit Court in preference to the Supreme Court of that State ? In the case of Sarah Hill against Sharon, heard in the Supreme Court, California, the plaintiff was successful in having herself declared the wife of the defendant, and on that decision would have participated in the division of over five millions of money. Mr. Justice Field, of the United States Supreme Court, came to Sacramento and upset that decision. Did Mr. Terry, the counsel for plaintiff; appeal to Washington? No; he at once surrendered on the ground that as the question had been decided by one of the United States Judges, it was not worth while appealing.
– Did that court consist of one Judge or three Judges ?
– T - The court consisted of one Judge from Washington. Then honorable members may remember the case of the United States marshal who shot Terry, because the latter threatened to shoot the Judge. Legal members, with very few exceptions, know nothing about Federal judicial power. In the United States, in case of doubt, the Supreme Court always overrides the State Court. The whole must be greater than the part, and the State is only a part ; but the great misfortune is that the majority of Victorian representatives still believe that Victoria runs the Commonwealth, and do not seem able to reason beyond the bounds of that State. In Western America we had land cases, horse-stealing cases, murder cases, and constitutional cases tried in these Circuit Courts, and I have never known a case which was presided over by a Judge from Washington appealed’ against. My contention has been that Federal jurisdiction ought to be given to the States Supreme Courts, and that three Judges are all that is necessary for the High Court ; but, if in the judgment o£ the Committee five High Court Judges are necessary, I am not going to stand in the way of their appointment. In the United States, if a citizen of Arkansas has a law suit with a citizen of Texas, he takes it into the Federal Circuit Court. Why? Because he knows ‘that when he gets a decision it will, be to the satisfaction of both parties. But some honorable members want the democrats of Australia to fight their cases through every State Court before bringing them to the High Court. Many a man, however, would be too poor to be able to put up the requisite security for an appeal to the High Court, although he could get an attorney to appear for him if he could go to the Court direct, and it would be n denial of a fundamental right of democracy to prevent him from doing so. Surely, every one of the Judges whom the Ministry appoint will have the confidence df the people? The honorable and learned member for South Australia, Mr. Glynn, spoke of men being biased, but . do honorable members remember the Dred Scott case in America ? At that time the people of the States were almost in arms, and there was immense excitement. Charles Sumner, Wendall Phillips, and others declared in the grand old Fanuel Hall in Boston, where hang the pictures of Washington, Hancock, and Otis, that they would never surrender a fugitive slave, but Chief Justice Taney, of. the Supreme Court, decided that they must send the niggers back from Massachusetts. Was that an instance of yielding to popular clamour 1 And the same firmness has been shown in many other instances. Such a case occurred only the other day. The Goulds, the Rockfellers, the Vanderbilts, and the Pierpont Morgans - people who could buy up Australia, and yet have enough afterwards to be rich - formed a syndicate called the Northern Securities Company, hut when the legality of such a trust was questioned before Judge Thayer, he upset the whole business, though the States Courts were afraid to tackle the case. All the newspapers in the States, with the exception of Randolph Hearst’s, are in their hands, yet this Judge gave a decision in a case involving billions against the monopolists and in favour of the people. The honorable and learned member for Werriwa is trying to upset an institution which will be the climax of the Federation. We must have the Executive, the Legislative, and the Judiciary to complete the Commonwealth power. The present Chief Justice Fuller gave up a practice of £30,000 to accept his present position at £2,100. All the Judges of the United States Courts are men who were successful practitioners for at least 25 years. Perhaps some of our friends here think that they are men who could be bought for a £5-note. There is the feeling in some countries that if you are an American you can be bought. Only the other day a big business man told me that President Roosevelt could be bought for a few thousand pounds, and yet I suppose the President could buy and sell any five men in Victoria, and have money enough left to throw at the birds. I hope that honorable members will awake from their parochialism and their narrow provincialism, and stand up for a High Court which will be a credit to the whole Commonwealth.
Motion (by Mr. Deakin) proposed -
That the House do now adjourn.
– I wish to know from the Attorney-General when we are likely to have the Estimates. It is now the 16th day of the last month of the financial year, and it is highly desirable that they should be laid before us as soon as possible. If we continue to drift as we have been doing we shall lose all control of the expenditure. In England, and at one time it was so in nearly all the States, the Estimates for the forthcoming year are always laid on the table at the beginning of the year. I do not ask for a detailed account of the revenue and receipts during this year, but the latest figures on that subject, so far as they are obtainable, should also be put before us. When we are asked to vote money after it has nearly all been expended, our supervision is practically worthless.
– I I have to complain, Mr. Speaker, that the Melbourne Herald is not placed in the labour members’ room on the days upon which Parliament is not sitting. If it is considered necessary, the members of the labour partywill take up a collection in order to provide the funds necessary to insure the regular delivery of the newspaper in their room.
– In answer to the honorable and learned member for Werriwa, I may say that the Estimates have been in preparation for some little time, and will be ready shortly. As the honorable and learned member must be aware, it is not the custom to lay the Estimates upon the table until they can be accompanied by the returns of the expenditure for the financial year immediately preceding. These returns cannot be completed till after the end of the current month.
Question resolved in the affirmative.
House adjourned at 10.40 p.m.
Cite as: Australia, House of Representatives, Debates, 16 June 1903, viewed 22 October 2017, <http://historichansard.net/hofreps/1903/19030616_reps_1_13/>.