1st Parliament · 2nd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
Report (No. 3) presented by Mr. Fowler read by the Clerk, and adopted.
– I would ask the Prime Minister whether he has taken into consideration the desirablenessof having the draft standing orders laid on the table and passed during this session?
– It will be remembered that I made an announcement upon this subject a week or two ago, pointing out that the differences between the provisional standing orders adopted by this House and the draft standing orders recommended by the committee were not such as to prevent the House from continuing to work under existing conditions ; and that, therefore, we did not propose to take up the time that would probably be occupied in discussing the recommendations of the committee. Since then I have had another consultation with Mr. Speaker, the chairman of the Standing Orders Committee, and, as- a result, I shall cause the draft standing orders to bo again circulated, with a request to honorable members to read them, and, within some specified time, say a month from now, to make to the chairman of the committee any suggestions they may have to offer. Then if, later on in the session, there seems to be a general consensus of opinion that the orders, as reconsidered and redrafted, in view of the suggestions made, can be adopted without very much discussion, I may then see my way clear to reconsider my former announcement, and endeavour, if possible, to have them adopted during the present session. I must, however, rely on the kindly co-operation of honorable members, so that there may be no such discussion as would interfere with the transaction of the more pressing work of the session.
– It is usual for some kind of military display to take place on the arrival of a new Governor in a State. I understand, however, that nothing of the sort occurred in Adelaide this morning when Sir George Le Hunte arrived to take up the position of Governor of South Australia. I should like to know if the Minister for Defence has any explanation to offer?
– I have no information with regard to the matter at present, but I shall be glad to make inquiries. I should regard it as very regrettable if no military display took place on the occasion referred to.
– I desire to ask the
Minister for Home Affairs if it has yet been decided whether the Parliament of New South Wales or this Parliament shall select the federal capital site?
– I did not think there could be any doubt about the matter. I noticed the statement in one of the newspapers a few days ago to the effect that the New South Wales Parliament would select the’ site, but I think that that was only another mistake on the part of a newspapor, or an attempt to “ pull some one’s leg.”
– I wish to direct the attention of the Attorney-General to a question I asked about a fortnight ago. The question was -
Why have the annual increments not been paid for the current year to South Australian Federal officers who are entitled to the same by virtue of section 60 of the Public Service Act ?
The Treasurer replied -
Mr. McLachlan explains that in certain cases the increments of South Australian officers have not been paid, pending a decision of the AttorneyGeneral.
I desire to know from the Attorney-General whether he has considered the position, and if so, what is his opinion as to the rights of the officersconcerned?
– I have to thank the honorable member for having notified me of his intention to ask this question. I replied to the Public Service Commissioner last week. Unless special reasons arc shown, it is not customary to communicate to the House particular legal opinions given in such cases. In this instance my view presents no impediment to any action of the Commissioner taken under the South Australian Act.
– I wish to ask the Minister for Home Affairs if any arrangement has been made for printing the Federal rolls for South Australia in the Government Printing-office at Adelaide ?
– Arrangements have been made with that view as far as possible. I had an intimation that the rolls would be printed in the Government Printing-office, but that they could print only two rolls at a time. I understand, however, that some arrangement is likely to be entered into by which the whole of the rolls will be printed within a very short time.
– They will be completed by the end of July.
– I have not heard that.
asked the Treasurer, upon notice -
If he will obtain andlay upon the table of this House particulars respecting the public debts of the States of the Commonwealth, showing, in reference to the various loans : Date of flotation, amount authorized, description of stock, term, rate of interest, amount realized per cent., cost of flotation, redemption date, latest market quotation ?
– I have had. prepared an important statement with regard to all the Australian States’ loans, and I have sent it to the States in order that it may be corrected wherever necessary, because a statement of that kind put forward by me officially should be as correct as possible. I cannot say that it contains the whole of the information desired by the honorable member, but it will convey a great deal of useful knowledge. I hope that the honorable member will be content to wait until the papers are circulated in connexion with the Budget. If he afterwards desires any further information, I shall be glad to supply it, if possible. The honorable member will understand that some of the information he desires is difficult to obtain, and will take a long time to collect.
asked the Minister for
Defence, upon notice -
– In regard to the first question, I may say that no recom mendations were made by this Government. Two officers received the order. In reference to question No. 2, the Royal Warrant restricts the order to commissioned officers. I have a copy of the Warrant which clearly sets that forth.
Goldring Case : Estimates : Overtime Payment : Telegraph and Telephone Services.
In Committee of Supply :
Sir GEORGE TURNER (Balaclava-
Treasurer). - I move -
That a sum not exceeding £75,000 be granted to His Majesty for or towards defraying the services of the year ending 30th June, 1904.
Honorable members will recollect that in the Commonwealth Treasury we follow what is called the cash system. Under our Audit Act the appropriation made for the year absolutely lapses on the 30th June, and the Treasurer has not one shilling left in the Treasury with which to pay accounts. At the present time I am endeavouring to settle the contents of the Estimates, and also their form and order in many respects, and. I am, therefore, not in a position just now to bring down an ordinary Supply Bill, with the various appropriations presented under their proper divisions and subdivisions. Such a Bill would provide for an appropriation of from £350,000 to £400,000. I hope before the end of the current month to be able to make the financial statement, and to bring down the Estimates. Honorable members will realize that it is not easy, even in a State, to obtain the necessary information for the preparation of the Budget, but when particulars have to be obtained from six States, the task becomes all the more difficult, and if I am able to make my financial statement before the end of July, I think I shall do very well. I am making every effort to do this, so that honorable members may know what provision has to be made for the current financial year, and in order that the States Treasurers may ascertain my views before they are called on to deliver their Budget statements. In the meantime, it is absolutely necessary that I should have at my disposal a certain amount of money, because there are contracts in progress, and payments have to be made every week or fortnight. There are also men in our employment whose wages have to be provided for from week to week. The £75,000 now asked for will form part of the Treasurer’s advance vote -last year the amount of £200,000 was granted - and will be applied solely to the payment of claims which are daily arising, such as progress payments on contracts, wages, and small advances to officers of the different departments, in order to enable them to carry on until the end of the month. . After having placed the financial statement before honorable members, I shall be able to ask for Supply to cover our ordinary expenditure for one or two months. If I were to introduce a Supply Bill which was based upon last year’s Estimates, I should create a great deal of confusion in all the Departments, besides imposing additional work upon them in making transfers from one set of entries to another. It is only within the past few weeks that we have been able to rectify the accounts for the early part of the year that has just closed. Under the circumstances, I think that the House will intrust me with the sum for which I ask, relying upon my assurance that I propose to expend it for only absolutely necessary purposes.
– I think that the explanation given by the Treasurer is perfectly satisfactory. I am sure that no honorable member desires to see the arrangements for the payment of our public servants in any way dislocated. It is pleasant to reflect that in all matters of this kind we can place implicit reliance upon the statements of the Treasurer. His position is a little different from that taken up by some Ministers, who entertain the idea that no man should be considered other than a rogue until he has proved his honesty in the police court. I should like to ask my honorable friend - because the remark is not irrelevant - whether any provision has been made in this schedule for compensating Mr. Goldring for the outrageous treatment he has received at the hands of the Customs Department? I learn from the pi-ess that his books have now been returned to him, and that, to use a colloquial expression, the Minister for Trade and Customs has been “ barking up the wrong tree.” Whether a citizen of another country, whose own Government had to intervene through the Imperial authorities, can be subjected to a system of torture, misrepresentation, and absolute tyranny by the Customs Department, without receiving any compensation for the outrage, is a matter for serious consideration. I desire to impress upon the Government the necessity for treating Mr. Goldring with the same magnanimity which is extended to every man who carries on his trade under the protection of the British flag. . I believe that serious injury is being done to him, and that a great mistake has been made by the Customs Department. I trust, therefore, that Mr. Goldring will not be forced into the law courts to fight the Government. The Minister for Trade and Customs incurs no risk in such an action, because he has millions of pounds of Treasury funds at his back. I hold that it is unfair for him to use those funds for the purpose of fighting a poor individual citizen. If injury has been done to Mr. Goldring, if he has been maltreated during the past six months, a magnanimous Government should grant him compensation for the offence thus committed. I trust that this matter will receive consideration at the hands of the Treasurer. I repeat that the Committee can accept the Treasurer’s statement in regard to this Bill as absolutely correct, and, unless some grievance requires to be ventilated, we need not occupy very much time in the discussion of this resolution.
– Personally I am not satisfied with the information given to the House by the Treasurer in regard to the sum of £75,000 for which he is now asking. At present we do not know if that amount forms a portion of the accounts of last year which have lapsed. It may be required to meet an expenditure in excess of the vote of last year. Until we have further information upon this matter we should not be asked to sanction the proposed advance. The Treasurer declares that the Estimates will be laid before the House within a reasonable time. But unless the practice of the British Parliament is followed, and they are tabled before the beginning of the financial year, I do not think that the Government are acting reasonably. It is true, of course, that occasionally a supplementary Budget has to be submitted, but if this House is not able to determine the estimated expenditure for the financial year, when that year has eleven months to run, there must be something radically defective - something which we ought to attempt to remedy. After the Estimates have been laid upon the Table, the Treasurer has stated that honorable members will be asked to sanction a Supply Bill. That measure will contain provision for carrying on the public services of the Commonwealth until the end of September, so that the Estimates may not be considered until after that period. In other words, between three and four months of the financial year will have elapsed before we have an opportunity to consider the Estimates. If we deem it advisable to make reductions in those Estimates we cannot then effectively carry out our intentions, and thus the general public are deceived. I was hopeful that this Parliament would break away from the bad practice of the States Legislatures, under which they exercise practically no control over expenditure until it is impossible to effectively check it. I protest against a Bill of this kind being introduced without honorable members being afforded the fullest information in regard to it.
Question resolved in the affirmative.
– Pursuant to notice, I now intend to move -
That the standing orders be suspended in order to enable all steps to be taken to obtain supply, and to pass a Supply Bill through all its stages without delay.
Mr. CONROY (Werriwa).- We are again asked by the Treasurer to submit to the recision of the standing orders. Those orders were framed with the object of preventing large sums of money being voted in a thin House. Whilst, under present circumstances, there does not seem to be serious objection to the course proposed, I think when measures of this sort are likely to be brought forward, it is within the power of the responsible Minister to notify honorable members to that effect a week before. Time would thus be afforded honorable members for consideration of the Government proposals.
Resolved (on motion by Sir George Turner) - .
That the Standing Orders be suspended in order to enable all steps to be taken to obtain Supply and to pass a Supply Bill through all its stages without delay .
Resolution reported and adopted.
In Committee of Ways and Means :
– I move -
That towards making good the supply granted to His Majesty for the services of the year ending 30th June, 1904, a sum not exceeding £75,000 be granted out of the ConsolidatedRevenue Fund.
– I desire to ask the Treasurer if this amount includes the payment of claims for overtime in different departments of the public service, which have recently been so much in evidence?
– No ; I will pay only the ordinary expenditure.
– Does the Treasurer mean ordinary expenditure accruing on the past year ?
– No; I refer to expenditure which it will be necessary to incur during the present month. Contracts are still in progress.
– Have the claims for the payment of overtime been met?
– I do not know anything about that matter. If the honorable member will drop me a note in reference to it I will obtain the information immediately.
– I have been asking for the information for a fortnight past. The manner in which poorly-paid civil servants are being treated is little short of a scandal. They work overtime night after night, and it is a recognised practice that they should be paid for it. For the past six months they have been working overtime, for which they have not received a single penny. No business establishment would dream of treating its employes in the way that the Government are treating these poorer paid civil servants. 1 ask the Treasure!: to look into the matter with a view to remedying the evil.
– I take this opportunity of protesting against the policy pursued by the Postmaster-General. We are continually being asked to vote supplies, notwithstanding the fact that during the past two years not a penny has been expended in New South Wales upon the extensionof the telegraphicand telephonicservices. So far as the great State of New South Wales is concerned - and I am not sure that the same remark does not apply to the other States - every extension of these services to country districts has been denied. The policy followed by the Government is so absurd that I wonder members of the House have not more thoroughly expressed their indignation. Before the Department was taken over large extensions were in progress in the country districts, but since then nothing whatever has been done. Under the circumstances, it would be just as well if the Government came down with the bold announcement that it is not intended to give the country districts throughout Australia any facilities in the way of postal or telegraphic accommodation. I can understand that during the first six or twelvemonths of Federation there might be excuse for delay in these matters ; but now nearly two and a half years have elapsed, and we have the backward state of affairs which I have described. Although the Minister at the head of affairs may be behind the times to the extent of two and a half years, he ought to remember that the rest of the people in the world are not so. backward, and that there is urgent need for increased means of communication.
– The people in Victoria are in favour of economy.
– It is false economy to starve a great public service. It is a great mistake to suppose that because a tax of so much in the £1 yields a certain sum, five times the tax will yield five times the revenue. We may suppose that the representatives of the Postal Department are astounded at the moderate charge of £5 each for telephones, and no doubt, in their opinion, it only requires to increase that charge by ten times in order to obtain ten times the revenue. But every schoolboy knows that that sort of arithmetic is not true, because such a policy diminishes the power of the people to use the means of communication provided. I trust that in the future we shall have some progress made, and that the country districts of New South Wales, Victoria, and the other States will not be starved. It is high time that the people in those country districts learned that those who are really blocking means of communication are the present Government and their supporters.
Question resolved in the affirmative.
Resolution reported and adopted.
Bill founded upon resolutions of Supply and Ways and Means presented, and read a first and second time.
In Committee :
Clauses 1 to 4 agreed to.
Mr. HIGGINS (Northern Melbourne).Has the Treasurer satisfied himself that this is a legal appropriation? It seems extraordinary that a sum should be mentioned as available to satisfy warrants in respect of any purposes set forth in the schedule, and that the schedule should set forth no purposes.
– A certain amount is annually placed at the disposal of the Treasurer, and he has afterwards to get in detail the legal appropriation by Parliament.
– I know that is the intention, but we are now dealing with an Appropriation Bill.
– This Bill appropriates £75,000 to the Treasurer’s advance, and the Treasurer has to account to the House for what he does with the advance.
– But clause 3 provides that the amount is in respect of purposes and services set forth in the schedule, and not one purpose or one service is set forth. I shall not move an amendment, but I should like to know whether this form has ever been used before.
– Yes ; it is practically the same form used in respect of ordinary advances to the Treasurer, though slightly varied to meet the special circumstances of this case.
Schedule agreed to.
Bill reported without amendment ; report adopted.
Bill read a third time.
In Committee :
Consideration resumed from 30th June, (vide page 1526).
Clause1 - Short title.
– I should like to know whether, in the opinion of the Attorney-General, clauses 32, 33, and 34, dealing with rules of court, are so worded as to remove any disability which might be created if it were not possible to alter the rules except by Act of Parliament. We desire to make the Court as elastic as possible so that it may advance with the times, and the Judges ought to be able to make an alteration in the rules when they think such a step necessary. The only condition that should be required is that any proposed alteration should be laid before both Houses of Parliament for approval ; but what I think we are doing in the Bill is to give these rules of court the same force as an Act of Parliament.
– That is done in England and in Victoria.
– But I do not know that that is always the best course. Unless the clauses to which I have called attention are sufficiently elastic to meet the contingency of desired alterations, the rules of court ought not to form part of the Bill. If, however, the Attorney-General assures me that he has looked into the matter, and does not think there is any danger of the kind I have indicated, I shall be satisfied.
– I admit that the rules of court attached to this measure constitute one of its most important parts. They deal with a very great variety of detail, which it would be almost impossible to expect this House to minutely scan, and therefore require to be taken to some extent on trust. I can only say that the rules have been very carefully framed, mainly on the Queensland revised rules. In that State, the rules of court were revised more recently, so far as I am aware, than have the rules in any other State, and the revision has taken place in the light of English experience. As honorable members are aware, there was a good deal of complaint in regard to the first. English rules which accompanied the new Judicature Act ; afterwards those rules were modified, as some thought too much, in the opposite direction. The Queensland rules were based on both sets of English rules, and took what was thought to be a middle course.
– What is the date of the Queensland rules?
– The rules before us have been revised again with the English rules, in order to take advantage of any recent additions or experience, and, as they have been subjected to a very careful scrutiny, I hope they may commend themselves to the Committee. I do not think there need be any apprehension as to the want of elasticity in the clauses which have been alluded to, inasmuch as they allow the Justices of the High Court, or a majority of them, to make rules not inconsistent with the Act for carrying it into effect.
Clause agreed to.
In this Act unless the contrary intention appears . . . “Plaintiff” includes any person seeking any relief against any other person by any form of proceeding in a court . “ A Judge “ means a Justice of the High Court sitting in Chambers . . .
– I do not think that the definition of a Judge will cover the use of the word in clause 38, where it is used to include a State Judge sitting in court.
Mr.DEAKIN.- In the Judiciary Bill I found it necessary, to avoid possibleconf usion, to restrict the application of the word “Justice” to “ Justices of the High Court,” and to apply the the term “Judge,” not by definition, but by user, to Judges of the State Courts. I think that that should be done here, and I therefore move -
That the words “‘A Judge’ means a Justice of the High Court sitting in Chambers,” be omitted.
Amendment agreed to.
– I would suggest to the Attorney-General that the definition of the word “ plaintiff “ may not cover a defendant with a counter claim. The definition in the clause differs from that in the Supreme Court Act ofVictoria.
– I think it is intended to give the same remedies to both parties.
– Yes. I think the words embrace everything.
Clause, as amended, agreed to.
Clause 3 (Repeal of Act No. 21 of 1902).
Mr. HIGGINS (Northern Melbourne).If the Judiciary Bill receives the Royal Assent before this Bill does, persons will be empowered to bring actions against the Common wealth under that name ; but as the Claims against the Commonwealth Act, which requires the appointment of a nominal defendant, will still be in force, litigants will be at a loss to know under which Act to proceed. I think that the Claims against the Commonwealth Act should be repealed by the Judiciary Bill, which gives power to litigants to proceed against the Commonwealth in that name.
– The Judiciary Bill provides for the powers which are given, while this Bill regulates the procedure to be followed, and the repeal of the Claims against the Commonwealth. Act comes naturally within its scope. The two measures deal with the same subject, and it is intended that they shall be assented to at the same time.
Clause agreed to.
Clauses 4 to 6 agreed to.
Clause 7 (Proceedings in District Registries).
– The provisions of this clause seem to me rather wide for our conditions. The clause appears to adopt to a great extent the English practice, which I do not think it is advisable to adopt here. The intention is that an action may be instituted in any registry in any part of Australia. There is no special venue provided for.
– Yes, there is.
– There is in the Judiciary Bill as regards States Courts, but I do not think that there is any as regards the High Court. The provisions of this clause have been adopted from the later English procedure, under which all local distinctions have been abolished in regard to the issuing of writs. Such an arrangement may lead to great inconvenience here. Surely it is not intended that if a cause of action arises in Queensland a plaintiff may issue a writ in South Australia, and the defendant may enter an appearance either at the principal registry in New South Wales, or in South Australia, or in Queensland. Such a state. of things would produce great confusion, and the records would be partly in one State and partly in another.
– The intention of the Bill is that the plaintiff may issue his writ of summons in any registry, and, unless an order to the contrary is made by the High Court, that the further proceedings shall be taken in that registry,
Provided that if a defendant, against whom a writ is issued in a district registry, neither resides nor carries on business in the State in which the registry is situated, hemay appear either at that registry or at the principal registry.
If he appears at the principal registry, the cause will proceed there. But under the next clause any party may at any time apply to the Court or to a Judge for an order that the cause be transferred from the registry in which it is pending, if that is not the principal registry, to the principal registry, or from the principal to a district registry. It must be assumed that actions will be brought either where the cause of action arises or where the defendant resides or carries on business. If the plaintiff commences an action in some other place, a removal may be ordered, and he will thus be put to additional expense. It seemed best to leave the fullest discretion to the Court in these matters.
– Why did not the AttorneyGeneral follow the existing rules?
– It is expected that the Court will not, without good reason, depart from the existing principles by which the venue of suits is determined. To have laid down hard-and-fast rules might have created greater difficulties than the elastic arrangement provided for here.
Clause agreed to.
Mr. HIGGINS (Northern Melbourne).The clause does not say under what conditions a Judge may order the removal of a cause from one registry to another. It is left uncertain whether he ought to do it if he is asked, or whether he must do it upon due cause shown, or whether the matter is left entirely to his discretion. I think the intention is to leave it to the discretion of the Judge, and I therefore suggest that the words “ in his discretion “ should be inserted after the word “ may.”
Amendment (by Mr. Deakin) agreed to -
That the words “ in his discretion “ be inserted after word “ may,” line 4.
Clause, as amended, agreed to.
Clause 9 agreed to.
Clause 10 (Transmission of documents by telegraph).
– This provision seems to be a very great innovation, and I should like a word of explanation with regard to it.
– We are adopting the Queensland practice, which has worked admirably.
Mr. HIGGINS (Northern Melbourne).I should like to know if there is anything in our Post and Telegraph Act, or in the regulations under that Act, which requires that telegrams shall be destroyed within a year from the time at which they are sent. The practice of destroying telegrams after the expiration of that time has been attended with many disadvantages in Victoria, as it has been found impossible in some cases to prove that certain communications have passed between the parties to an action. It would not be imposing a very great burden upon the Post and Telegraph Department if it were required to keep the telegrams in the same way that banks keep their vouchers.
– Should telegrams be available to the courts, in view of the fact that they are confidential documents?
– It would be impossible to prove the passage of certain communications in the courts unless telegrams could be produced.
– I find that under section 64 of the Post and Telegraph Act it is provided that telegrams may be destroyed within not less than two years after they were sent.
– I am glad to hear that. Returning to the point raised by the Minister for Home. Affairs, I would urge that if he desired to prove that a certain telegram had been sent, he would Have to apply to the Post and Telegraph Department for the original.
– I could prove it by the copy in my letter-book.
– That would not be accepted as evidence. I think it would be well for the Attorney-General to consider the desirability of making provision that after the original documents have been destroyed the prima facie evidence of the sending of a telegram, such as would be afforded by a press copy in a letter-book, shall be accepted.
– The honorable and learned member will notice that section 64 of the Post and Telegraph Act does not direct the destruction of telegrams at the end of the two years, but provides that they must not be destroyed for two years, after which period they may be destroyed.
– In Victoria telegrams may be destroyed after the lapse of one year, and that practice has been attended with great inconvenience.
– I presume that the object of the honorable and learnedmember would be served if telegrams relating to business transactions were preserved for a longer period than is now provided. Departmental and news telegrams, and many others, might very well be destroyed, even long before the two years have expired, but business communications might be kept for a longer time. It may be necessary, not only to alter the law of evidence, but also to suggest to the Postmaster-General that he should make a selection of the telegrams, and preserve certain of them from destruction.
-I understand, from what the Attorney-General says, that the matter will be considered.
Clause agreed to.
Clauses 11 and 12 agreed to.
Clause 13 -
In every suit in the High Court, unless the court ora Judge otherwise orders, the trial of issues of fact shall be by a Justice without a jury.
– I do not know whether the Attorney-General thinks it necessary to retain the words “ issues of fact.” We can easily understand that juries will not be called upon to decide issues of law, but there is a difference between amain trial involving issues of fact and a trial of issues of fact.
– The intention is that a case which may ordinarily be sent to a jury shall not be sent unless so ordered.
– That is not my point. A case may involve issues of fact, but that would not be the trial of issues of fact. The clause seems to point to the trial of the whole action. If it does not, there is no provision for any such case. The following clause, 1 4, speaks of a trial of ‘ any issue of fact,” which would be separate from the main trial, and it is questionable whether the clause now under discussion goes far enough. All doubt would be dispelled by omitting the words “ issues of fact.”
– I have no objection.
– This clause provides in effect that the court or Judge may order a trial with a jury, and the next clause apparently makes the order as of course on the application of either party. I would ask the Attorney-General whether he considers it wise to allow an order to go as of course for atrial by jury. Our Victorian practice is not to permit the issue of such orders except in a limited number of cases. I think the suggestion of the honorable and learned member for Indi is a good one.
Mr. L. E. GROOM (Darling Downs).The intention of sub-clause (1) of clause 14 has been referred to by the honorable and learned member for Indi. It is to provide for a case in which after a writ has been issued it may be considered desirable to have certain issues of fact tried before a jury in order to arrive at a speedy judgment. It seems as if it were intended to ask a Judge, by order, to direct that certain issues shall be tried by a jury, and that judgment is to be given afterwards.
– Thatwould be rather rough on the other side.
– The Judge would notmake an order unless he thought that the interests of justice would be served.
– After one issue had been decided the other side might make a similar application in regard to another issue.
– No; because the Judge would, no doubt, call upon the parties to settle the general issues.
Amendment (by Mr. Deakin) agreed to-
That the words “ issues of fact “ be omitted.
Clause, as amended, agreed to.
– I desire to ask the Attorney-General whether he proposes that a Justice of the High Court shall direct the trial by a jury of any issue of fact as a matter of course?
– I have no objection to the substitution of the word “ may.”
– I notice that the High Court can make rules which are not inconsistent with the Act. If sub-clause (2) be omitted, the High Court will then be able to frame such rules as experience shows are desirable. Certain classes of cases will probably come before that tribunal which it might be desirable should be determined by a jury, although State experience may have anticipated the opposite result. Is there any necessity for the retention of the sub-clause in question?
Mr. HIGGINS (Northern Melbourne).I support the view taken by the honorable and learned member for Corinella.
– Why not substitute the word “may” for “shall” in that sub-clause?
– That would mean that the court would have no power to make an order for the trial by a jury of any suit in the Admiralty jurisdiction.
– But we have no Admiralty jurisdiction.
– Then there is no occasion for the use of the phrase. As the sub-clause stands, it implies that the court possesses Admiralty jurisdiction. I would further point out that the whole tendency of recent procedure has been to limit trial by jury. The determination of most issues by a Judge is less expensive, and there is less risk of injustice in regard to findings as to fact, although I admit it is desirable that citizens should be brought closely into touch with criminal procedure, which involves issues that they understand and appreciate. Sub-clause (2) states that “Upon the application of any party to a suit for a trial with a jury of the suit, or of any issue of fact, the High Court or a Judge shall make an order for the trial of the suit or issue with a jury.” I am convinced that such a provision will be greatly abused. I know that it frequently happens that a litigant who has a bad cause asks for the trial of his suit by a jury. The freer that we leave the hands of the High Court in this direction the better. Personally, I think that we should retain the first part of this provision, and omit the second.
– I think that subclause (2) should be excised. In the preceding clause it is laid down that unless the court otherwise orders, the trial of issues of fact shall be by a Justice alone. Sub-clause (2), however, makes it compulsory for a Justice, upon the application of any party to a suit, to order its trial with a jury. If we do not desire to make it compulsory that suits shall be tried with a jury, ample power is given to the court under sub-clause (1.)
– We are following the Queensland practice.
– Yes ; and in order that we may not go too far, the AttorneyGeneral proposes to restore the right of any litigant to have his suit tried with a jury if he chooses to make an application. Upon the whole, I think it would be better to eliminate sub-clause (2).
-This is practically the English custom.
– Under this provision we deny a suitor the right to have his case tried by a jury at the outset, but restore it to him subject to an application, whereas in England the right exists to have suits tried by jury, subject to an application to take it away. I think we should be acting wisely in omitting the sub-clause, and thus rendering the provision absolute.
Mr. L. E. GROOM (Darling Downs).I agree that it is advisable to make the trial of any civil suit by a jury subject to the order of a Judge. But I would point out that if we eliminate sub-clause (2) we shall have to make further modifications in sub-clause (1 ). I also desire to direct attention to the distinction which is intended to be drawn between those two sub-clauses. Reference to section 61 of the Queensland Act shows that it isintended to apply to cases the trial of which is not in progress at the time. It is evidently not applicable to the ordinary legal procedure after a writ has been issued. It might be desirable - seeing the class of actions which are likely to be brought before the High Court - to have the procedure by which issues are to be tried determined by an order of the court.
– The insertion of the words “ the suit or “ would meet the case.
– The Queensland section is based upon experience, and I know of one or two cases in which it has been availed of.
– What is the meaning of the last words of sub-clause (1), “ pronounce such judgment as justice requires?”
– I take them to mean that the court would have power to give all the ordinary remedies, either in common law or equitable jurisdiction. If the alternative be put in the way suggested by the honorable and learned member for Indi, it will give a Justice power to decide whether any case is a proper one in which a jury should be granted.
Mr. ISAACS (Indi).- I wish to draw attention to the concluding words of subclause (1). I would point out that in the earlier part of that provision the word “justice “ is used in a very elastic way. Then it is used lower down in quite a different sense. I think that the concluding words of the provision should read “ give such decision or pronounce such judgment as the circumstances require.” In its present form the sub-clause seems to give an enormous amount of discretion to a Judge - a discretion which may not be controlled by an order.
Mr. McCAY (Corinella). - I wish to ask whether there is any significance in the fact that in the earlier part of sub-clause (1) the words “ trial by a jury “ are used, whilst the second sub-clause refers to an order for the trial of any suit or issue “with a jury.”
– It has no special signification. We are merely following the language of the Queensland Act.
– It is just possible that the words “ by a jury “ might be open to a different interpretation from that placed upon the words “with a jury.”
– When a question is submitted to a jury it is trial “ by a jury,” but the whole case is heard “ with a jury.” I move -
That the word “by,” line 4, be omitted, with a view to insert in lieu thereof the word “with.”
Mr. GLYNN (South Australia).- I would point out that by adopting the amendment proposed we may be giving a J ustice of the High Court greater latitude in reference to questions of fact than is possessed by Justices at the present time. We all understand what trial by jury means. If we use the words “ with a jury “ it seems to me that a J ustice of the High Court may have something to do with trying matters of fact. It would be as well to follow the English Orders, which have stood for many years.
Amendment agreed to.
Amendments (by Mr. Deakin) agreed to-
That after the word “of,” line 4, the words “the suit or” be inserted; that the word “justice,” in the last line of sub-clause (1), be omitted, with a view to insert in lieu thereof the words “the case.”
That sub-clause (2) be omitted.
Clause, as amended, agreed to.
Clause 15 agreed to.
Clause 16 -
– I move -
That the words” the qualification of jurors,” lines . 1 and 2, be omitted.
I submit this amendment with the view of testing the feeling of the Committee as to whether the lawsof each State relating to the qualification of jurors should be maintained. I do not know what the qualifications of jurors are in the other States ; but in New South Wales there is a property qualification. Special jurors are on a different footing from that of the common jurymen, but the practical result is that the panel is confined in either case to a comparatively small section of the people. Whether that course should be continued in civil cases involving disputes as to property, I am not at this moment called upon to say, but in view of the advance of public opinion as to the rights of citizenship being granted to all classes and conditions of men, and of the further fact that the Commonwealth Constitution provides that trials for indictable offences shall be by jury, we can only suppose that this clause in the Constitution is intended to safeguard a right which has been handed down to us, and which is very rightly regarded as one of our most essential liberties. In days gone b)’, when the franchise was more restricted, this qualification for jurymen might be proper ; at any rate, it was natural. But the property qualification for the electoral franchise has now been swept away in every State except, perhaps, that of Victoria, and it does not appear reasonable that n property qualification for jurymen should remain. The idea is, of course, that a man shall be tried by a Jury of his peers ; but, as a matter of fact, that, to a large extent, is impossible in the States where jurymen are exclusively selected from a particular class.
– This clause is not intended to apply to criminal jurisdiction, and that is the reason I propose to amend it. The amendments I propose to make are rendered necessary by the fact that the High Court has been deprived of all criminal jurisdiction.
– But unless another clause is inserted to regulate the method by which the panel is to be summoned, it is very obvious that the juries will be selected as they are now selected in the States.
– When the amendments were made in the Judiciary Bill depriving the High Court of its original criminal jurisdiction, it became necessary for us’ to take out of that measure those clauses which had been drawn to relate to that original criminal jurisdiction. When we reach the similar clauses in this Bill, I shall have to propose that the whole of Part IV. be omitted. The honorable and learned member for West Sydney is raising a question, which would have been more apt if we had proceeded with the Bill as printed. But, in consequence of the alterations made in the Judiciary Bill, I shall have to move certain amendments, and therefore the question of criminal juries in the High Court cannot arise. It is necessary to retain this clause, because it is the States Courts which are to undertake, as Courts of first instance, the hearing of all causes within the original jurisdiction of the High Court, whether exclusively or concurrently. Consequently, unless we go to the expense of preparing a jury list of our own, we must accept the laws and the jury panels as we find them in the States. As the more economical method, and the method most in accordance with the principles laid down, I propose to accept the States jury panels in the States Courts and under States law.
– The honorable member for Kennedy last night submitted an amendment in respect to the appointment of a public defender, and such an amendment could only apply in cases where Federal jurisdiction is exercised by the States tribunals. Are we unable to regulate the procedure in such cases 1
– No; I should not say we are unable, but it would be a very expensive plan, because it would involve the preparation of special panels, although the juries are to hear causes in the States Courts before States Judges and under State procedure. The amendment would mean the introduction of one piece of Federal machinery into the States Courts, when all the rest of the State machinery would be left unaltered. The method proposed by the honorable and learned member for West Sydney would be expensive, awkward, and very rarely required.
Mr. HUGHES (West Sydney).- I do not mean to say that the trial of a civil cause is as important as the trial of a criminal case, but, at the same time, there appears no good and sufficient reason - especially in these days, when the last vantage ground has gone of those who, in municipal matters, hold that there should be a property qualification- - for providing that even in civil cases juries should be summoned from those specially qualified by the possession of property. The Attorney-General may be able to afford us some reason for the continuation of the custom, other than the blind following of precedent set by existing tribunals. In criminal matters there is of course absolutely no justification for a property qualification in the jurors, even from the stand-point that in matters involving property, those who have to decide the case should have what is termed “ a stake in the country.” The qualification for jurymen should be put upon the broad national basis which is now sufficient to enable men to exercise the privileges of citizenship in this country; and my amendment is submitted with the object of removing an antiquated, antedeluvian qualification, and so that we may have a panel co-extensive with the electoral list.
– What words does the honorable and learned member propose to insert ?
– I wish first to strike out words, and then to propose to insert others.
– I shouldlike to point out to the honorable and learned member for West Sydney that he cannot attain his object in this Bill. It is true that wemay strike out the qualification for jurors, but anything beyond that imparting power would need to be dealt with in the Judiciary Bill or in a Jury Bill. Indeed, I do not think that even in the Judiciary Bill we could deal with such a matter, so that if the amendment be carried it will be necessary to introduce another measure. A good deal might be said in criticism of the various qualifications for jurors in the States - no doubt, in course of time, much will be said and alterations will be made - yet, having regard to the small number of cases in which indictable offences against the laws of theCommon wealth would occur, it would be altogether unjustifiable to goto the expense and trouble of preparing special lists on a new basis in every State.
– I see no necessity for separate lists or extra expense, seeing that the electoral rolls are available.
– It would be very simple to take the juries from the electoral rolls, but does the honorable and learned member propose to include both sexes?
– If it be desired to have women jurors, there should be power to take them.
– According to the Judidiciary Bill, we have to accept the States judicial systems.
– Why should there be a double list.If citizenship is the qualification, why should there be any difference between the jury list and the electoral rolls?
– If the citizens’ roll were to form the jury list, naturally there would be no difference, but I think the honorable and learned member will find he has a long road to travel before he induces either this Parliament or the States Parliaments to adopt his view. At any rate, this is not the time to consider it, when we have accepted the States jurisdiction and the States Courts and procedure in every respect.We should be adopting an unnecessary and troublesome, if not costly, procedure, if we now endeavoured to introduce the suggested jury panel.
-I ask the honorable and learned member for West Sydney to withdraw the amendment. The snore we consider the proposal the more we see that there is a very long road to travel before we can arrive at a satisfactory result. In the first place, as was pointed out in the interjection by the honorable member for North Sydney, the Committee, in regard to the Judiciary Bill, have said in effect that the States Courts are good enough in most cases to try Federal causes. That is a view with which I most heartily agree, and I fancy the honorable and learned member for West Sydney was on the same side as myself in those crucial divisions. If the State system is good enough, surely we should accept it as a whole. The amendment simply strikes out the words “the qualification of jurors,” leaving the State laws still to prevail in regard to the preparation of jury lists and jury panels, and the summoning and the empanelling of juries. By the time the honorableand learned member had made all the consequential amendments which are necessary to carry out his object, he would find that what is needed is really a special jury Act. He suggests that we should take the Federal electoral rolls, but they are very much in nubibus at present. I agree with him that the matter is one for serious consideration when the opportunity arises to consider it, but as this is purely a Procedure Bill, and we have deliberately substituted the States Courts for the High Court in somany instances, I think that we should avoid alterations which, at least, would mean a considerable amount of trouble and unjustifiable expense. The cases in which juries are required are chiefly libel and breach of promise cases, and surely twelve citizens with property are as able to deal with such cases as twelve citizens without property. It is rather too soon to introduce the mixed jury system into the Commonwealth.
Mr. HUGHES (West Sydney).- The arguments which have been brought against my proposal are very numerous, but. I do not think they are equally cogent. The Attorney-General says that it would be very expensive to prepare the jury lists, but the expense will not be anything if the jury lists are co-incident with the electoral rolls. As to there being but a few cases to be tried by juries, I would point out that the Attorney-General in introducing the Judiciary Bill, told us, I do not know how many times, that there were a great number of cases of the most extraordinary character awaiting trial before the High Court, because the persons concerned hesitated to risk their reputations and interests in the States Courts.
– They would not be jury cases.
– If there is only one case to be tried by a jury, why should not the jury panel be chosen from a list coincident with the electoral roll ? Why should the jurymen be required to possess landed property of a certain value, or a certain annual income, or be, as in Queensland, esquires, merchants, brokers, engineers, architects, warehousemen, or commission agents - which last term, perhaps, would cover the gentleman at Collingwood who runs the impregnable “ tote?” I do not see why there should be any special property qualification. Nor do I admit that the adoption of whatI propose would cause a lot of trouble. But even so; if the interests of justice demand it, this”ought not to prove an obstacle. If during the late war the plaintiff in a libel case had advocated a set of principles opposed to those adopted by the Judge and the majority of the gentlemen who composed the jury, he might find himself in a very awkward position.
– Would the alteration of the panel prevent that?
– I can conceive of cases, and especially libel cases, in which it would. The question is not whether a case can be conceived as probable, but whether it is possible. If a property qualification; is necessary for jurors, it is justifiable for electors. The contention against this proposal is similar to that against the English Reform Bill, when it was argued that in the pre-reform days men like Pitt, Fox, Burke, and Sheridan got into the English Parliament, and it could not be shown that better men have been chosen since. To test the feeling of the Committee, and to provide against the objections of the honorable and learned member for Corinella, I shall withdraw the amendment, and vote against the clause.
Amendment, by leave, withdrawn.
Amendments (by Mr. Deakin) agreed to.
That the words “or criminal,” lines 7 and 8, be omitted, and that the words “ and criminal,” lines11 and12, be omitted.
– What is the reason for sub-clause (2) ?
– The officers of the Commonwealth referred to will be States officers acting for the Commonwealth.
– It was the expense involved which mademe unwilling to support the amendment of the honorable and learned member for West Sydney, because I think that citizenship should be a qualification for a juryman. But as the Attorney-General has admitted that if the electors’ rolls were used, the expense would not be very great, and it is here provided that the panel of jurors should be made out, and the jurors summoned by the officers of the Commonwealth, I feel inclined to support the honorable and learned member for West Sydney. If we are going to use the StatesCourts, why cannot we use the Statesofficials in every case ? I move -
That sub-clause (2) be omitted.
– What view does the Attorney-General take of the proposed omission of the sub-clause ?
– I do not think the subclause essentia], because we have the panel of jurors provided for already.
– But provision must be made for the summoning of the jurors.
– Sub-clause (1) deals with the laws for summoning jurors.
– I think that the AttorneyGeneral should hesitate before agreeing to the omission of this sub-clause.
– I was considering subclause (2) as relating only to cases tried in the States Courts having Federal jurisdiction; but I see now that it refers to the panel for the High Court only. Therefore, under the circumstances, it must stand, although in this case as in others the officers of the States Courts will act for us.
Mr. CROUCH (Corio).- I shall withdraw my amendment, because the responsibility must rest with the Attorney-General. My only desire was to save additional and unnecessary expense.
– I do not think any additional expense will be involved.
Amendment, by leave, withdrawn.
Clause, as amended, agreed to.
Clause 17 -
The High Court may in any suit order the parties to produce any books or writings in their possession or power which contain evidence pertinent to any issue in the suit. If a plaintiff fails to comply with the order the court may dismiss the suit ; and if a defendant fails to comply with the order the court may give judgment against him as by default.
– In connexion with this clause I desire to direct the attention of the Attorney-General to the question of the laws of evidence which are to be followed by the High Court. My notice has been drawn to clause 78 of the Judiciary Bill, which provides that the laws of each State, including the laws of evidence, shall be binding on all courts invested with Federal jurisdiction in that State. According to the Acts Interpretation Act, the courts invested with Federal jurisdiction include the High Court. I am not quite sure whether clause 78 is intended to convey that the laws of evidenceof a particular State are to apply to the High Court when it is sitting in that State. When the High Court is within Federal territory, I do not think that the fact that the Federal site is situated within New South Wales will necessitate compliance by the High Court with the laws of evidence in force in that State. In any case it will be very awkward for the Judges to follow one set of laws in one State, and another set in another State. In that case the J udges would have provided for them some splendid exercises in mental gymnastics. Not only the laws of evidence, but others, such as those relating to the competency of witnesses, and so on, are mentioned in clause 78. There may be variations in the different States, and I am not at all clear but that in some cases the High Court will have to follow thecommon law of England. I am not prepared to express a definite opinion upon this matter at present, but it is one of great importance, which, I think, demands the most careful attention of the Attorney-General. If it should be found that the High Court has no law of evidence of any State to apply to it, I do not know what the exact result will be. The Justices may make laws of evidence under the rules authorized under this Act, so long as they are not inconsistent with the Act.
– They are not provided for in these rules.
– No. The honorable and learned member for Indi suggests that a paragraph should be added to the effect that until otherwise provided by rules of court, and subject to any express provision in the Bill, the laws of each State relating to evidence, competency ofwitnesses, and so on, shall apply to the proceedings of the High Court in that State.
– That would bring about the state of affairs of which the honorable and learned member has been speaking.
– Yes ; but that would be better than no state of affairs at all. Moreover, the provision would be only temporary.
– I shall consider the matter; and in the meantimeI shall be glad to see the amendment suggested by the honorable and learned member for Indi.
– I do not know whether the clause is necessary, as full provision is made in the schedule for discovery and inspection ; and the remedies applied by the schedule, under order 37, are different from those applied under this clause. In this clause the American practice has been followed, whereas the order follows that which is in vogue at present in the States. It will be better to strike out the clause and trust to the rules, which are as obligatory as the clause itself would be.
– The honorable and learned member for Corinella has called attention to a very important matter, which, in my opinion, is already provided for in clause 78 of the Judiciary Bill ; but I am glad to have his criticism, as well as the valuable suggestion of the honorable and learned member for Indi. As I read clause 78 of the Judiciary Bill, the laws of each State, including the laws relating to evidence, procedure, and other matters will, except as otherwise provided, be binding upon all courts exercising Federal jurisdiction in that State, in all cases in which they are applicable. That appears to me to introduce the not altogether satisfactory condition of affairs which the honorable and learned member for Corinella expected to arise. That is to say, the High Court will find some variations in its laws of evidence. We had, however, to face that position when this matter was under discussion two years ago. After drafting a series of clauses relating to the law of evidence,.and endeavouring to lay down general principles, it appeared at last that any proposal of this nature must be postponed. The very large jurisdiction exercised in the States Courts, to which the laws of evidence in force in each State must appropriately apply, would make it a difficult matter, even at the appeal stage, to take up a case which had been conducted under State laws of evidence, and then deal with it according to another High Court standard. It is intended that all courts, even the High Court itself, shall within a State be bound by the laws of that State, and it is because we felt driven to adopt this provision that clause 78 of the Judiciary Bill was introduced in the terras of the United States Act. Although I admit that the suggested sub-clause of the honorable and learned member for Indi puts the matter clearly, I think that it only repeats the provision already made in clause 78 of the Judiciary Bill, and therefore is not necessary.
Clause agreed to.
Clauses 18 and 19 agreed to.
– I desire to direct the attention of the Attorney-General to a very valuable provision in the English law that has been adopted in Victoria. Section 3 of the English Judicature Act 1S94 contains the following provision : -
It is hereby declared that the power to make rules conferred by the Judicature Acts 1873, 181)1, includes power to make rules for regulating the means by which particular facts may be proved, and the mode in which evidence thereof may be given.
The Victorian Legislature has embodied this provision in section 3 of Act 16 of 1896, which reads as follows : -
Power to make rules conferred by the Supreme Court Act .1890 includes, and shall from the commencement of the said Act be deemed to have included power to make rules for regulating the means by which particular facts may be proved, and the mode in which evidence thereof may be given.
When I was in England I was present in court on one occasion when an order was made under this authority. It was a case in which the letter of a continental banker was’ accepted as evidence of the fact that the sum of £3,000 was lodged with him by one of the litigants. By adopting this course the cost of a commission abroad was saved, and there could be no doubt that the banker would tell the truth. The.order was consented to in that case, but if consent had not been forthcoming, there was the power behind to enable the Judge tomake an order in writing. The Victorian rule was recently acted upon in a case in which the honorable and learned member for Northern Melbourne and myself were engaged, and it led to the saving of great expense and trouble, and undoubtedly conduced to justice. . The provision enables the court to obviate commissions and other roundabout processes by which expense is incurred, and to prove matters regardingwhich there need be no moral doubt whatever. I suggest that the words of the Victorian Act should be adopted, with certain modifications necessary to suit the altered circumstances.
Mr. HIGGINS (Northern Melbourne).I cordially concur in what has been suggested. This matter was discussed by the Law Commission to which I have previously referred. It was in consequence of the report of that body that the Act was passed by theVictorian Legislature in 1900. Clauses 77 to 81 of the report of that commission contain suggestions which should prove very useful in regulating the procedure of theHigh Court. The report is to be found in the parliamentary papers for the session 1899-1900. If honorable members take the trouble to peruse it, they will find that it emphasizes the fact that under the British system of justice the best evidence is required. There is no doubt that in the longrun that system saves expense and prevents injustice. At the same time, it is desirablethat we should have some means of making prima, facia evidence from the documents which are used, say, in a bank or in a company.
– Would not some such power as this cover the suggestion made by the honorable and learned member at an earlier stage, that the production of copiesof telegrams should be accepted as primd facie evidence ?
– The Attorney-Genera? could introduce it here if he thought fit. The English and Victorian Acts practically enable a Justice to alter thelaws of evidence. That is a tremendouspower to give to any Justice. It is a powerwhich should be controlled by some general rules that all parties can see beforehand.
In clause 79 we suggest that a provision which operates in our County Courts would be very usef ul. That is to say, if a document is produced from proper custody, and is apparently genuine, it must be admitted as evidence, and costs may be inflicted upon the offending party who had refused to recognise the document unreasonably. In the County Courts this rule has been found to work very well, because the Judge
Always holds in his hand a whip which he can use upon parties who refuse to admit documents. Still another rule which obtains, is one that a litigant may prove a fact by affidavit upon giving five days’ notice to the other side. This practice frequently saves the expense that would be involved in bringing witnesses some hundreds of miles to attend the court. In this connexion, I would point out that this Parliament can exercise jurisdiction in divorce matters, and, as most divorce cases are undefended, I think that an affidavit of the service of a divorce petition should be sufficient evidence of such service having been effected. Under the present practice at is necessary to obtain witnesses to prove that service has been made. In the Victorian Evidence Act we have a provision under which bankers’ books are regarded as prima facie evidence, Of course, such a provision must be used with very great wire, but in the ordinary course of business there is nodoubt that a banker’s books contain a correct history of all payments and withdrawals. The suggestion made by the Law Commission in Victoria was that bankers’ books should be regarded as prima facie evidence upon due notice to the other side. But even the Victorian Act does not go far enough, inasmuch as it seems to be drawn in the interests of the banks, and not of the litigants. Then I think that we might safely extend the Evidence Act in regard to bankers’ books to the case of insurance and trustee companies. Trustee companies have now become a very important element in our social and commercial life, and I do not see why their books should not be acceptedas prima facie evidence of the facts to which they relate.I understand that no amendment has been moved in this clause, and I think that in calling attention to these matters, which would facilitate the procedure of the High Court, I have discharged myduty.
Clause agreed to.
Clause 21 -
Except as provided by the two last preceding sections, or unless in any suit the parties agree to the contrary, testimony at the trial of causes shall be given orally in open court.
– I am not quite sure that there is any precedent for this clause, although in English law there is a class of cases which, to insure justice being done, the Judges think should not be heard in open court. In this connexion I might instance actions involving secret trade processes and also patent cases. A whole trade might be ruined if the suitor in any action having reference to a secret trade process were compelled to disclose that process in open court.
– We have a provision of that nature in the Patents Bill.
– It is a matter to be borne in mind.
– In connexion with the point which has been raised, I would direct attention to the fact that clause 14 of the Judiciary Bill provides that the jurisdiction of the High Court must be exercised in open court.
Clause agreed to.
Clauses 22 to 25 agreed to.
Clause 26 (Enforcement of judgments of the High Court).
Mr. HIG GINS (Northern Melbourne).I think that this provision is a very dangerous one. It practically enacts that a man may be imprisoned for debt unless the laws of the State in which he resides provide to the contrary.
– Is there any State in which a man may be imprisoned for debt?
– I do not know. Do I under stand the Attorney-General to say that the intention of the clause is to allow imprisonment for debt only in those cases in which it is permitted by the State laws ?
– The clause as drafted is copied from the law of the United States. I think that we should be very careful in these matters. I do not like the form of expression used in the clause, inasmuch as the whole tendency of legislation during the past 100 years has been in the direction of abolishing imprisonment for debt. I find that in the schedule of the rules of court, under order 36, a judgment for the payment of money into court may be enforced by writof attachment. That provision is right enough, but the AttorneyGeneral knows that the rules of court may be suspended, and there is no work which it is harder to get Judges to perform than that of framing rules.
– What amendment does the honorable and learned member suggest ?
– I suggest that subclause (b) should be omitted.
– Does not sub-clause (b) rather limit the power?
– It gives power by the rules of the court to modify even the laws of the States.
– If the AttorneyGeneral thinks the clause sufficiently expresses that imprisonment for debt is limited to that allowed by the laws of the States, a good deal of the gist is taken out of my argument.
– That is my reading.
– I did not understand the words to mean that, but I think that at least paragraph (b) ought to be altered, so as not to leave it in the discretion of a Judge whether a man should be imprisoned for debt. The object could be best achieved by providing that the enforcement of a judgment, or the procedure in case of contempt, shall be in such manner as the rules may allow.
– There is power as to contempt under the Judiciary Bill.
Mr. ISAACS (Indi).- I agree with the Attorney-General that this clause does not give a single remedy not already existing under the laws of the States. I should like to point out, however, that theword “resident” is elastic, and may give rise to difficulty in the case of a person who resides in two or even in three States.
– That point is dealt with by a clause in the Judiciary Bill.
Clause agreed to.
Clause 27 -
When any claim is made to property taken in execution upon process issued out of the High Court, the Marshal or his Deputy may take in the Supreme Court of the State in which the property is situated the same proceedings by way of interpleader as if the process had been issued out of that Supreme Court : and that Supreme Court and the Judges thereof shall have jurisdiction to entertain and determine the matter, subject nevertheless to the right of removal of the matter into the High Court if it is within the original jurisdiction of the High Court.
Mr. HIGGINS (Northern Melbourne).The idea of an interpleader clause is that, when property is taken in execution and there is some dispute as to whether the debtor owns the property, the sheriff may bring the execution creditor and the claimant together and let them fight it out. The words in the first line - “ When any claim is made “ - are vague, as they do not say by whom. As I have intimated, the idea of an interpleader clause is to bring in a party who is not a party to the suit, and then the marshal or sheriff may take proceedings in the Supreme Court. I suggest that after the word “made” in the first line, the words “ by any party not a party to the suit “ be inserted.
– Supposing there is a case against husband and wife, and the action succeeds against one and not against the other.
– That is a very remote and almost impossible case. I think it ought to be made clear that this claim must be made by some person over whom the Court has no jurisdiction, unless it be expressly given by statute. In such a case as that cited by the honorable and learned member for South Australia, Mr. Glynn, I fancy the parties could be easily bound by order of the court without interpleader. All that is wanted is to give jurisdiction over people who have not yet been summoned.
– I think this is a provision which is in force in the various States.
– There is not such a provision under the rules of court inVictoria. Under the circumstances I shall not move an amendment, but I think we should in some way qualify the kind of claim to be made.
– I have noted the objection of the honorable and learned member.
Amendment (by Mr. Deakin) agreed to.
That all the words after “ matter,” line9, be omitted .
Clause, as amended, agreed to.
Clauses 28 to 34 agreed to.
Clause 35 -
– I know that what is meant by the first sub-clause is that we shall not interfere with the laws of the States ; and that intention, I think, it would be better to state expressly. Otherwise, the clause may be open to the construction that in all cases of appeal from a State judgment, as of right under the Constitution, there must be security. I suggest to the Attorney-General that after the word “ except “ the words “ so far as required by the laws of the States,” be inserted.
– I will think over the matter.
– Is not the amount of the security fixed by sub-clause (3) rather high?
– The words “unless otherwise ordered” are used.
– But surely £100 is a very high amount to fix by statute as security.
– It used to be £50 in the old jurisdiction.
-I think that a security of £100 is prohibitive, except to persons who are very well off.
– What does the honorable and learned member suggest?
– I should say that the security should be not more than £50.
Amendment (by Mr. Deakin) agreed to -
That the words “ one hundred “ be omitted, with a view to insert in lieu thereof the word “fifty.”
Clause, as amended, agreed to.
Clauses 36 to 38 agreed to.
Clause 39 (Death of party to an appeal).
Mr. GLYNN (South Australia).- This is a provision to the effect that the representatives of a deceased person may carry on an appeal ; but there is no provision in regard to lapse of time. If the period during which notice of appeal must be given expires only three days after the date of the death, the representatives will not be in the legal position to carry on the appeal ; and I do not think that the rules of court could cover such a case.
– The rules could be made to cover such a case.
– I shall consider the point.
Clause agreed to.
Clause 40 (Arrest of person charged in indictment).
– Clauses 40 to 82 deal with criminal procedure, and, in view of the amendments made in the Judiciary Bill, I propose to negative them.
Clauses 40 to 82 negatived.
Clause 83 -
Suits on behalf of the Commonwealth may be brought in the name of the Commonwealth by the Attorney-General, or by any person appointed by him in that behalf.
Mr. HIGGINS (Northern Melbourne).This and the following clause deal with suits brought on behalf of the Commonwealth or on behalf of a State, and they confirm the view which I expressed when clause 3 was under consideration. Clause 3 repeals the Claims Against the Commonwealth Act, and I think that Act ought to be repealed by the Judiciary Bill if we retain clauses 83 and84 of the Bill under discussion. I think it would be far more convenientif provision for claims by the Commonwealth, and for claims against the Commonwealth were made in the one Bill, though it scarcely matters which. If the clauses in the Judiciary Bill, providing for claims against the Commonwealth are retained, that Bill should also, as a matter of arrangement, provide for the repealing of the Claims Against the Commonwealth Act.
Mr. L. E. GROOM (Darling Downs).Is it intended that future actions against the Commonwealth shall be brought against the Commonwealth in that name ?
– Is that the intention of the Judiciary Bill?
– Is it not necessary to provide that the Commonwealth shall be sued in its own name?
– We provide that any person making a claim against the Commonwealth shall bring an action against the Commonwealth in the High Court. I do not think that anything more is needed.
– Are these the last provisions for suits against the Commonwealth?
– The provisions of this Bill and those of the J udiciary Bill are.
Mr.CROUCH.- When the Claims against the Commonwealth Bill was under consideration, the Attorney-General promised to look into the case of Gillespie v. The Queen, whenever a permanent measure came to be drafted.
– I think that the case was referred to the Defence Department, and they were strongly adverse to any change in the law. A similar case occurred in Svdney.
– Yes. Under the law as it stands certain men are denied justice. In the case to which I. have referred, Gillespie and 46 others were promised by the Government, of Victoria that, if they retired from the military forces, they would receive 9d. a day each for rations for six months. The Chief Justice decided, however, that, although the men were entitled to receive the rations promised, it was a rule of law that no soldier or seaman could sue the Queen, on the ground that Her Majesty had such a compassionate heart that she would be only too glad to see justice done in these matters. Unfortunately, the Victorian Government did not place the amount upon the Estimates, and consequently the men have never received it. I am sorry that the Attorney-General has not provided for such cases.
– The case did not recur to my mind since I referred it to the Defence Department. I wished to know to what extent the Department considered itself committed.
– The Defence Department of Victoria would have been very glad to see the case sustained. It was a very careful Treasurer who refused to allow the money to be paid. I do not know if I shall have another opportunity to deal with the matter.
– The honorable and learned member will have another opportunity, because I have a number of consequential amendments to make.
– Shall I be precluded from moving the insertion of a new clause?
– I do not think so.
– I want to bring the matter clearly before honorable members, so that a remedy maybe provided for injustice of the kind to which I refer. Perhaps the Attorney-General will get the opinion of the Defence Department on the subject ?
– I will get the papers in the case, if there are any.
– With regard to the question asked by the honorable and learned member for Darling Downs, I think that it will be necessary to provide that litigants must sue the Commonwealth of Australia, otherwise actions will have to be brought against the King. I should like the AttorneyGeneral to consider whether provision should not be made to allow the Commonwealth to be garnisheed. The Victorian Railway Commissioners can be garnisheed, and when a specially incorporated body such as the Commonwealth is instituted, I do not see why it should not begarnisheed, though, of course, the Crown cannot be garnisheed. All the privilegesof the Crown, however, except those in regard to the issue of executions and attachments, are being abolished, so that I do not see why we should not provide for the garnisheeing of .the Commonwealth.
– Is it necessary in thepublic interest?
– Occasionally it is. I do not see why public servants should form, a separate and distinct class. It was found advisable not to renew the provisions of theAct allowing the attachment of wages inthe railway service, arid it seems very strange that the railway servants should bein a different position from that of otherpublic servants in the State. There ishardly any remedy at all, however, against the public servants of the Commonwealth. Some of us made a big fight, when thePublic Service Bill was before the Committee, to require a public servant who did not pay his debts to be dealt with by his superior officers. It is a wrong toward thosewho have to deal with public servants not to allow them to garnishee for debt. I should like the Attorney-General to givethe matter his consideration. Inasmuch asthe Commonwealth is entering the legal arena, like any private person, I do not seewhy it should retain this privilege.
– I agree with the honorable and learned member forCorio that proceedings should be capable of being taken against the Commonwealth in all cases where, in a claim against a private person, an action or proceeding would lie. Remedies should be as ampleagainst the Crown as against the subject. In most of the cases in which action will betaken, the cause will arise out of something done by the Crown as a business corporation. In regard to the point raised by thehonorable and learned member for DarlingDowns, when the Claims against the Commonwealth Bill was under discussion, I drafted a clause providing that proceedings- might be taken against the Commonwealth or a State in all eases within the limits of the judicial power in which a claim against a subject might be maintained, which, I think, would cover the whole ground. The word “ suit,” which is used in the clause now under consideration, is defined as any action or original proceeding, which seems to exclude garnishee proceedings ; but perhaps the difficulty could be got over if the interpretation clause were amended. I would point out that clause 87 provides no means of enforcing judgments against the Commonwealth or against a State ; all it does is to provide that a certificate shall be issued to the successful plaintiff.
– Would the honorable and learned member allow execution against the Commonwealth ?
– Yes. Why should not judgment be issued against the Commonwealth where it owns property, and is practically a trading organization ? Take the Goldring case, for example. Mr. Goldring is at the mercy of the Executive for a remedy for his grievances, and the Government are particularly reluctant to do justice in some of these cases where a Minister has made a big initial mistake.
– We have not refused or even delayed to comply with a single application for the appointment of a defendant.
– But for compensation this man has to come, cap in hand, to Parliament. I think that, so far as possible, the same remedies should be given against the State as against a subject. The Commonwealth could not be arrested, but its revenues or its assets could be impounded. I object to this tardy and reluctant admission of a great principle. I introduced this subject to the notice of the Convention, and provision was made that Parliament should have the power to legislate upon it. Last year an Act was passed which did not go the full length desired, and the remedy by way of mandamus has since been given.
– Is there power to issue execution against the Crown property in South Australia?
– I think so, where there is a body corporate apart from the State, such, for instance, as the Railway Commissioners.
– In Queensland execution can be issued in regard to certain properties of the State.
– In Victoria, on one occasion, a train was taken possession of.
– I do not see why any distinction should be made in favour of the State in cases where wrong has been done, or default has been committed. Under the Bill no remedy is available to a person who obtains a judgment against a State. Every one who obtains a judgment should have his remedy direct against the Commonwealth, and there should be no necessity to interpose the name of the Attorney-General as representing the Commonwealth. It is an unnecessary adherence to the old practice as distinguished from the new one.
Clause agreed to.
Clauses 84 to 86 agreed to.
Clause 87 -
No execution or attachment, or process in the nature thereof, shall be issued against the Commonwealth ora State in any such suit ; but when any judgment is given against the Commonwealth or a State, the Registrar shall give to the party in whose favour the judgment is given a certificate in the form of the second schedule to this Act, or to a like effect.
– I would ask the Attorney-General toconsent to strike out the words in the first part of the clause down to “ but,” line 3. The latter part of the clause means nothing, and it may be allowed to remain, because it might be very edifying to a man’s family if he were able to produce a certificate showing that he had succeeded in an action against the Commonwealth. The first part of the clause, however, which I desire to have eliminated is a ridiculous limitation upon the subject. By looking at the earlier clauses honorable members will see. that the Commonwealth is to have the full right of action and all remedies against the subject, but the moment we commence to deal with the remedy against the Commonwealth it is proposed not to allow execution, the sole recompense that one is entitled to under the law being a certificate, which the successful suitor can have framed if he chooses.
– But would the honorable and learned member allow execution against the furniture in a Minister’s room for example ?
– Certainly. If the law has been disobeyed there is no reason why the furniture belonging to the Commonwealth should not be seized.
– Is there any precedent for that?
– There may be no precedent, but we can kick precedents aside when we want to do justice. The honorable and learned member for Darling Downs has just pointed out to me that the Queensland Act provides that -
The Colonial Treasurer shall poy any damages or costs adjudged against the Government under this Act (Claims against Government Act) out of any moneys in his hands for the time being legally applicable thereto, or which may hereafter be voted by 1’arliament for that purpose, and in the event of any such payment not being duly made by the Colonial Treasurer execution may be had for the amount, and the same may be levied by distress and sale upon any property vested in Her Majesty except property, real or personal, used, held, occupied or enjoyed or intended so to be for or by Her Majesty’s land or sea forces, or for other Imperial purposes.
There are other exceptions which I need not specify. That exactly covers the point with which I am dealing. We have followed the precedents afforded by the Queensland legislation to a very large extent in making radical changes, and I think we should go further and adopt this provision.
– Would the honorable .and learned member seize the King’s property %
– Certainly, why not ? Why, for instance, should we not allow execution to issue against the property of the Railway Commissioners if they do not pay upon judgment? No doubt execution would be attended with great inconveniences in some cases, but that would apply equally to the cases of subjects involved in law proceedings.
– Has the honorable and learned member ever known a case in which the Crown did not pay after judgment ?
– I know where actions have not been pursued against the Crown, and I know further of cases in which the Crown has failed to do justice when a claim has been made upon it. A notable case in point is that of Mr. Goldring, which was recently mentioned in this Chamber.
– But he did not obtain a judgment against the Government.
– No; and ‘if he takes action against them he will probably be defeated. The Government resisted his efforts to obtain a writ of mandamus calling upon them to deliver up his books, which they afterwards voluntarily surrendered.
– The amendment proposed by tlie honorable and learned member would not help Mr. Goldring.
– Perhaps not, but what I contend is that we should not declare explicitly that execution shall not issue against the property of the State or of the Commonwealth. We declare in effect that even where a State allows execution to issue it shall not be done, and to that extent I think the provision is ultra vires. The provision is certainly an anachronism, because it is the survival of an old practice which is now- being very largely discontinued, and I think it should therefore be struck out.
– I do not know whether the honorable and learned member wishes me to repeat the arguments that have already been used to show that there is a broad distinction between the Commonwealth in its corporate capacity and the individual subject. We have yet to learn of a single case in which a State having had any judgment given against it has failed to discharge it without delay.
– Except where cases have have been under appeal.
– Of course. Although the honorable and’ learned member is enthusiastic in the application of the principle of universal justice, he has not been able to allege a single definite case in which a judgment has not been satisfied by a State. He has indicated only what might occur. I believe that the public conscience is more sensitive than ever it was, and that Parliament is even more ready than in days gone by to afford redress. Therefore I do not suppose that any litigant is likely to suffer owing to this clause, which it seems to me pays only a proper tribute to the dignity of the State and of the Commonwealth.
– Suppose judgment were given against one. State in favour of another upon a riparian subject, would it be left to the defendant State to please itself whether it paid the damages awarded against it.
– When such a case arises it may be necessary to deal with it, but I cannot conceive of any cases of that kind in which monetary damages would be sought or gained. I am afraid that the effect of any judgment of that kind would would involve questions much more serious. Although I admire the principles of the honorable and learned member, I think that their application in this case to the whole community would impair a dignity which should not be thus impinged upon.
– I do not see the necessity of the words “ or attachment,” because attachments always apply to persons, and therefore no attachment could be issued against the Commonwealth. I move -
That the words “or attachment “ be omitted.
Clause agreed to.
Clauses 88 and 89 agreed to.
Schedule . 1 - Rules of Court.
– I would point out to the Committee that order 12 relates to the removal of causes from the States Courts into the High Court, and, as the clauses in the Judiciary Bill which conferred that power of removal have been excised, it will be necessary to omit this order also. Consequently I move -
That Order 12, “Removal of causes into the High Court from the courts of the States” be omitted.
Amendment agreed to.
– I wish to direct attention to rule 5 of order 45, which reads -
The marshal or his deputy shall attend all sittings of a Full Court, and all sittings of the court in its criminal jurisdiction, and all sittings of the court for the trial of causes, and shall also attend any Justice of the court when sitting in court on any occasion when he is required by the Justice to do so.
That means that the marshal has to attend the court upon three occasions, in addition to which he must also be present when so required by any Justice. To my mind, if there is one official whose presence in court is unnecessary it is the sheriff, who is called upon to sit there throughout the day without any apparent purpose in life. I move -
That the words ‘ ‘ shall also attend,” lines 4 and5, be omitted with a view to insert in lieu thereof the word “of”; also that after the word “Justice,” line 7, the words “or court” be inserted.
Amendments agreed to.
Mr. HIGGINS (Northern Melbourne).I wish to direct attention to the rules relating to appeals from the decisions of Justices of the High Court. They are to be found upon page 74. To my mind one of the most important matters in connexion with appeals is that the successful litigant should be able to ascertain at what time he is free to act upon the judgment which he has obtained. When a man has obtained a judicial decision in his favour, if the other party to the suit desires to appeal, he should be compelled to do so promptly. The effect of rule 4 is to allow a litigant 21 days from the date of thej udgmen t in which to gi ve n otice of appeal, and to calculate that date from the time that the judgment is entered or otherwise perfected. Now it frequently happens that a judgment is not drawn up for a month or six months after it has been delivered, especially if it is a complicated judgment. Under this provision, therefore, an unsuccessful litigant would be able to play fast-and-loose for months before his rival would know whether he intended to appeal. Further, under order 7 the appeal cannot be heard for 42 days from its institution. I cannot understand the reason for prescribing such a long period. I would remind the Attorney-General that under the rules of appeal to the Privy Council, an appellant is allowed only fourteen days from the time that judgment is pronounced to give notice of his intention to appeal. I suggest that equal prompitude should be required in the case of appeals from the High Court.
– Of course, Australia is a big place.
– But, although, Australia embraces a large territory, we have to fix a limit within which a person who is aggrieved may announce whether or not he intends to appeal against the decision of the court. The successful litigant is entitled to the fruits of his judgment as soon as possible. I suggest that sub-clause (1) should be made to read “if the appeal is from a final judgment, within fourteen days from the date of the judgment being pronounced.” Sub-clause (3) of rule 4 provides that the court or Judge may extend the time within which the notice of appeal must be served. I think that it ought to provide for the extension before the time allowed for the notice has expired. It is very material that the successful litigant should know when he may act upon a judgment which he has obtained. I suggest adding to sub-clause (3) the words “ before the expiration of the period above stated.” I would further point out that rule 7 provides that notice of appeal from a final judgment shall be lodged at the first sitting of a Full Court after the expiration of 42 days from the institution of the appeal. In my opinion there is no occasion for this long delay. Under the Victorian Act the period allowed is ten clays, and I think that if we extended it to 21 days in the case of Australia, we should be doing all that was necessary. Of course the Full Court can always postpone the hearing of a case, if it thinks that either party to the suit is not ready to proceed. I suggest, therefore, that the words “ twenty-one “ should be substituted for the words “ forty -two.”
– I thoroughly agree with all that the honorable and learned member for Northern Melbourne has said about the necessity for promptitude in giving notice of appeal. I am glad that he is prepared to allow 21 days’ notice in the case of Australia. I do not think that that period is too long. Further, I believe that it ought to be calculated from the time judgment is pronounced. But I do not agree with the honorable and learned member for Northern Melbourne in the opinion that under subclause (3) of rule 4, the extension ought to take place within the time allowed. Under the English and Victorian rules, and, I believe, under the Queensland rules- - and certainly under the rules on page 70 - there is the beneficent provision that the court or Judge may enlarge or abridge the time whether the time be expired or not. It may be that, by some unfortunate accident, the time has been allowed to expire. It is quite true that, under the Privy Council rules, the Supreme ‘Court of a State has no power to enlarge the time; but under colonial legislation the Court has that power in Victoria. In fact, one Judge did enlarge the time,’ but on appeal that enlargement was disallowed under the Privy Council rules. It would, perhaps, be tying the Judge’s hands too closely if we provided that the notice of appeal must be served within the time allowed. One of the parties may think that he has plenty of time at disposal ; but, by some unfortunate slip, it may be on the part of a clerk, the notice of appeal may not be served in time, aud it would be regrettable if, under the circumstances, justice could not be done. It is to prevent unfortunate accidents of the kind that rule 46 has been introduced, and in the States Courts I never knew a similar rule to be a source of difficulty or abuse. In altering the rules it must be remembered that the J Judges of the High Court will be able to pass new rules providing these be not annulled by Parliament; but it would be perhaps fettering the court too much if the Judges were not allowed the same power which Judges in the States Courts and English Judges have, namely, to enlarge the time, although the period in which the notice of appeal should have been served may have elapsed. Of course, there is the discretion of refusing, but I think we ought to adhere to the practice which has been followed for a great number of years in England and in Australia.
Mr. HIGGINS (Northern Melbourne)I have not had the decision of the AttorneyGeneral as to the 21 days referred to in sub-clause (1) of rule 4 in the rules relating to appellate jurisdiction. There may be some difference of opinion in regard to the matter referred to by the honorable and learned member foi’ Indi ; but I attach a great deal of importance to the subclause I have mentioned, when taken in conjunction with the clause which follows, providing that the period shall be reckoned from the date when the judgment or order is “ signed, entered, or otherwise perfected.” I think that, in sub-paragraph (1), the words “from the date of the judgment being pronounced “ ought to be inserted, and the provision as to “ signed, entered, or otherwise perfected” omitted.
– I have noted each of the suggestions made by my honorable and learned friends. The suggestion of the honorable and learned member for Northern Melbourne, which he has just made, seems reasonable and necessary ; but I am in some doubt as to-the suggestion made in regard to sub-clause (3), not only for the reasons given by the honorable and learned member for Indi, but because, as the honorable and learned member for South Australia, Mr. Glynn, reminds me, if we make appeals to the High Court too difficult, we further encourage appeals to the Privy Council.
– Appeals to the Privy Council will not be encouraged, because the time for such appeals will have passed.
– Not under the States Acts.
– I am speaking of the Bill before us, which will abolish the States Acts, the only survival being the Order in Council.
– But special leave can be obtained. However, I propose to consider each of the suggestions made, and to deal with them as they arise in the further consideration of the rules.
– In support of the position which the AttorneyGeneral has taken up, I should like to draw attention to the Queensland Rule of Court 41, under which, in the case of appeals from the Northern and Central Courts to the Full Court, 21 clays are allowed. In appeals from the Central or Northern Court the time dates from when the judgment or order is pronounced; and I ask the AttorneyGeneral to consider whether he really thinks that 21 days are sufficient.
– There is power to extend the time.
– But every extension means a fresh application. It is evident that the draftsman’s object was to give a fair allowance of time for notice of appeals from distant places ; but, if we adopt the suggestion made by the honorable and learned member for Northern Melbourne, the time will be cut down very materially. As a rule a man cannot make up his mind whether to appeal or not until, it may be, ten days after the judgment has been pronounced.
– A man has to make up his mind in fourteen days in the case of a Privy Council appeal.
– It will be very difficult in the case of important questions arising under the Constitution to get further opinions from various parts of the Commonwealth in order to give notice of appeal in time. We know that it is not an uncommon practice on constitutional points to take the opinion of counsel in various centres. The Attorney-General has, however, consented to consider the suggestions made in order that the time may not be made too short, and parties thus put to the extra cost of applications extension.
Mr. HIGGINS (Northern Melbourne).I should like to call the attention of the Attorney-General to the fact that the marginal note to paragraph17 on page 75 - “Rule nisi on appeal from Central Court or Northern Court” - has evidently been copied from the Queensland rules, and is not appropriate.
– That is so.
– I should also like to call the attention of the Attorney-General to the rule on page 77 dealing with appeals from the Supreme Courts of the States. The provision there is that appeals from the Supreme Courts in ordinary cases shall be initiated by notice; but what is the meaning of paragraph 2, which provides that leave to appeal to the High Court “ may be given by the High Court upon motion ex parte ? “ There As the right of appeal from the Supreme Court of a State to the High Court, and it is one of our grievances that there is any option given to appeal elsewhere. The intention of the Constitution was certainly that there should be right of appeal to the High Court. It may be however, that this particular rule is meant to apply to some special cases.
– It is meant to apply in interlocutory cases where leave is required - to cases in which appeals cannot be brought on an interlocutory judgment except by leave of the High Court - and this rule provides for leave being given. The rule does” not apply to ordinary cases, and I will see if it cannot be made clearer.
– I suggest that in interlocutory applications, leave might be given either by the J udge who gave the decision, or by the Full Court, according to the practice which prevails in “Victoria. I can see now that the rule to which I drew attention refers to special cases ; but it ought to be made clearer, or people will think they must get leave to appeal. In rule 4, on page 78, dealing with the question of time, the same question arises as that to which I have previously called attention, and in this case also the period ought to be 21 clays from the time of the judgment being pronounced.
– I have noted the point.
Schedule, as amended, agreed to.
Schedule 2 agreed to.
Bill reported with amendments.
– I move -
That the House of Representatives approves of an extension, for a period of two years, of the arrangements entered into on the 5th day of June, 1899, and the 10th day of August, 1899, by the Governments of New South Wales and Queensland respectively, for the carriage of mails between Australia, Fiji, and Canada by the steamers of the Canadian- Australian Royal Mail Line, upon the following terms : -
That the amount of subsidy payable by the Commonwealth be increased by a sum of £6,363 12s.9d., being the Commonwealth proportion of a total increase of £16,000.
That provision be made for the efficiency of the vessels employed in such service.
This matter may be said to be a remanet from the agreement which was entered into in 1899 by the then colonies of New South Wales and Queensland, and which was concurrent with a similar agreement on the part of Canada and Fiji. The subsidy amounted to £44,000 per annum, divided as follows :- New South Wales, £10,000; Queensland, £7,500 ; Canada, £25,000 ; and Fiji, £1,500. If the proposal now put forward is adopted by the. House, and that adoption is confirmed on the Estimates and by an Appropriation Act - because that will be necessary to give the final approval - then the Commonwealth, on behalf of New South Wales and Queensland, will pay £6,363 12s. 9d. extra ; Canada, £9,090 18s. 2d. extra; and Fiji, £546 9s. Id. extra. These sums together will make up an additional £16,000, which it is proposed to place on the .Estimates and ask the House to grant for the extension of this service foi1 a period of two years from the expiration of the agreement on the 30th April or 1 st May.
– That is £24,000 altogether for the colonies.
– It will be £23,863 12s. 9d. instead of £17,500 on behalf of Queensland and New South Wales. Canada, who is the largest contributor, will, instead of £25,000, pay £34,090 18s. 2d.
– The extra cost is to come from all the States 1
– Yes; and the arrangement, as submitted for the approval of the House, is that each party concerned shall contribute in the same proportion which the payments previously made bore to each other. This will be, I may mention, a transferred expenditure.
– Does Canada agree 1
– Canada and Fiji agree, and. I have not heard any word of dissent from New South Wales or Queensland. At the beginning of the negotiations, Fiji intimated that she would be willing to pay £2,000 instead of £1,500. I repeat that this will be a transferred expenditure, as it is for the maintenance and continuance of a service which existed at the time of the transfer of the Post and Telegraph Departments of the States to the Commonwealth ; but, as the bulk of the advantage to be obtained from it will be reaped by New South Wales and Queensland, it has appeared to us to be right and constitutional that theexpense shall be charged back in the way proposed.
– It is £59,000’ in all.
– It will be- £60,000. The original application for the renewal of the service for two or three years,, or more, was accompanied by the request that we should increase the £44.000 contributed by the contracting parties to £72,000,. an addition of £28,000. I have not laid thepapers upon the table, because the negotiations, were mainly verbal, but honorable membersmay safely take what I say to be correct, as. I conducted them myself. It was pointedout that, having regard to deterioration and wear and tear, and the cost of the half yearly overhauls of the vessels employed in. the service, operations had so far resulted, in a loss. The service, however, is a promising one, inasmuch as the number of passengers is increasing, and a full cargo istaken from Canada nearly every trip, whilesometimes goods have to be left behind, though the trade from Australia to Canada, has not been so satisfactory as the contractors had wished, and in respect to it therehas been a loss. Having consulted my colleagues in regard to the application for an increase of £38,000 in the subsidy from all the contracting parties, I laid it down that we should not, under any circumstances, give more than our proportion of an increase of £16,000, which we thought on thewhole to be fair. It has been stated outside that the provision in the contract that the Miowera shall be brought up to thesame standard of efficiency as the two other boats in the service is the only consideration for this increase of subsidy, but that is not so. After a full consideration of the matter, we came to the conclusion that the service would have to stop unless the subsidy were increased, and I think that we have agreed to the minimum of increase to secure a continuance for two years. The provision that the Miowera shall be brought up to the same standard of efficiency as the two other boats was inserted by us. We gave the contractors the option of replacing her with another boat, and accepting, if Parliament approved, a three years’ continuance of the agreement, or bringing the Miowera uptodate and accepting a two years’ continuance, and they adopted the latter alternative. We also agreed that if they could not, by bringing the Miowera up-to-date,. continue the service with any chance of success, they should be given until the 31st August to notify us of the fact, and then they might, if they chose, discontinue the service altogether, in which case we should have to make other arrangements. I put this proposal before the House simply as a tentative one. A certain interval has tobe bridged over, as a good many contracts expire within the next year or two. Both the Suez contracts expire on the 31st January, 1905, and the extension now asked for will take the Canadian contract up to the 30th April of the same year. “Various other contracts expire in 1905 and 1906, but they are more in the nature of coastal contracts.
-Are the Canadian contractors to increase the speed of their boats ?
– The present rate of speed is computed at about 13½ knots an hour, including detentions, the contract time for the journey from Sydney to Vancouver, with stoppages at Brisbane, Fiji, and Honolulu, being 21 days. That is much about the rate of speed maintained by the Suez boats.
– Is there any arrangement for an extension of the service to Melbourne or other parts of the Commonwealth?
– No. That would mean the granting of a larger subsidy. One object which the Government have in view in asking the House to ratify this contract is that within the next two years, before the expiration of the Suez contract, provision must be made for the letting of fresh contracts for the carriage of mails from England to Australia and back again, and as the whole matter must then be gone into, I am loth to allow this route to become closed.
– The fact that this route is open may save us money when we come to bargain for fresh contracts in connexion with other routes.
– Yes, it may save us a great deal of money in the end. If the Canadian service fell into desuetude, instead of being continued at almost a nominal cost, we should have more difficulty in arranging for a new contract upon the same route, because others coming into the business would not have the good-will of the trade which has been gathered together during a number of years by the present company. I think, therefore, that as a matter of policy it would be wise to continue this contract for the time specified. The Postal Department has not yet finally drawn up the agreement which will have to be made, but it will be simply an extension pf the agreement which has just expired. The only difference will be in regard to the extension of time and the extra payment. . Thirteen trips a year have to be made each way, and the Miowera is, to our satisfaction, to be brought up to the same degree of efficiency as the other steamers in the service. The carriage of mails to England by the Canadian route at present takes three or four days longer than by the Suez route, but if a couple of years hence we can arrange for a more up-to-date service, with larger, better, and quicker steamers, as I think is possible, the Canadian-Pacific Company will, I believe, from what I was told when in Canada by people connected with it, be prepared to shorten the railway journey across the continent by 24 hours, and the Canadian Government are most anxious to secure the assistance of the Imperial Government in obtaining a contract for a service across the Atlantic equal to the American services.
– They have called for tenders.
– Yes. If we bridge over this interval of two years, we may at the end of that time, with the assistance of Canada and the participation of the old country, obtain speedier service than that which we now have by the Suez route. The existence of the Pacific cable, too, may reasonably be expected to increase business between Australia and Canada, because it has been the experience of other countries that the laying of cables has brought trade into existence where hitherto it was unknown, and has largely expanded that already in existence.
– Is there any possibility of abandoning the Suez services ?
– It is impossible to say what will happen in regard to the Suez services. When I have received an answer from England in regard to the publication of some papers which were marked private, but which I think there is no objection to make public, I shall be able to lay the whole matter before honorable members by placing all the documents in connexion with it upon the table.
– This proposal should be considered on its merits.
– Yes. When honorable members read the papers I refer to, they will see that if we wish to continue the Suez service we must enter into a contract to take effect from the 31st January, 1905; but that is a separate liability. It would be a disadvantage to lose the opportunity of maintaining the Canadian service, in view of the contracts which we may have to enter into in regard to other services, and in view of the arrangements which we may see fit to make upon the expiration of the present Suez contracts.
– It is a shrewd business-like proposal.
– I think so.
– Under ordinary circumstances, I think that the fullest information should be placed in the hands of honorable members before they are called upon to discuss an important question like that now submitted to us. The correspondence which has passed, and the history of the service up to the present time, should have been laid upon the table. Although this matter was originally arranged by the States Governments, and a tentative arrangement only is now proposed, honorable members should be made fully acquainted with the details of the service. The Prime Minister has told us that it is intended to extend the original contract for a short period, and that the Statesof Queensland and New South Wales have not protested against it, but, presumably, are content to have an additional tax placed upon them. Although this is being dealt with as a Commonwealth matter, the States which are more immediately interested will have to bear the expense under the operation of the bookkeeping system. I feel quite sure that a service like that in question must have some subsidy in the early part of its existence, if for no other reason than that it is desirable to keep up mail communication with other parts of the Empire. Where two highly protected countries like Canada and Australia are concerned, something must be done to make up for the loss of cargo, arising from the ridiculous trade restrictions imposed. The only question for consideration is whether the amount to which the subsidy has been increased is reasonable under the circumstances. Upon this point, we have no definite information beyond the statement of the Prime Minister, who, I presume, has examined the position.
– Will this not be new expenditure and be charged to the Commonwealth ?
– No, it will be transferred expenditure, and I am speaking on the understanding that the proposal now before us has been within the cognisance of the Governments of Queensland and New South Wales, and that they are satisfied to bear the increased expenditure.
– Has the honorable member been so informed?
– I have, although the language used in conveying the information may not have fully indicated all that I have stated. I understand, however, that the Governments referred to know of the transaction, and have by their silence acquiesced in it. I should think that, as this is not a purely Commonwealth affair, we ought to have the formal acquiescence of the States Governments’ who are more immediately concerned.
-But we are conducting the Post-office Department on their behalf.
-I am quite aware of that ; but we are now passing through a transition period, and, although, eventually, expenditure of this kind will be distributed over all the States, there is no reason why a tentative arrangement such as that now proposed, under which two States will be called upon to bear extra outlay, should not be the subject of negotiations between those States and the Commonwealth.
– The whole of the correspondence which has passed is known to those States, but I have not before me any letters which have passed between those States and the Commonwealth.
– As I have already said, it is very difficult for honorable members who take an interest in this matter to understand the exact position of affairs. As, however, an arrangement has been entered into by the Commonwealth and agreed to by Canada, and we have the statement of the Prime Minister that it is absolutely necessary to grant the increased subsidy in order to insure the continuance of the service for the present, I shall not oppose the motion. I do not know whether the matter is urgent, but in view of all the circumstances, I do not think we should gain anything by postponing a decision. The amount is not large, and if it is necessary in order to prevent the service from falling through, I shall be satisfied to assume that the Government have made the best possible bargain.
– I entirely agree with the honorable member for Wentworth that it is extraordinary that we should be asked to renew the subsidy at an increased amount without having before us all the particulars of the agreement, which has been tentatively entered into. At the very least, we should have been, placed in possession of the correspondence which has passed between the Government and the agents of the company. We are told that the service is not paying. It is very easy to make a statement of that kind, but we have no right to accept the mere ipse dixit of any one upon a matter of this kind. We should insist upon being made acquainted with the whole of the negotiations that have passed. The question thatoccurs to my mind is - when is the line likely to pay if it has not proved remunerative up to the present 1 It has already been in existence for eleven years, and I am not sure that there has ever been any assignment of the original contract entered into by the late Mr. James Huddart. Immediately the additional subsidy, amounting to £7,500, had been secured from Queensland, the financiers in London, to whom Mr. Huddart was responsible, stepped in and took the contract out of his hands. Mr. Huddart had sunk the whole of his fortune in the venture, and I think we should- do well to remember with every kindly feeeling the services of a man who may be said to have given his life to the enterprise. Like every business man, he entered into the contract because he thought it would pay ultimately, but I think his lines were cast in very unpleasant places, because, after nursing the service through its earlier and more troublous days, he had it taken from, him at the moment when there appeared to be a prospect of its proving remunerative.
– It was the other way about. It was because the service was becoming unprofitable that it_ was taken out of the hands of Mr. Huddart.
– I was informed by Mr. Huddart’s representative that when the Queensland subsidy was secured the service was placed upon a most satisfactory basis. However, be that as it may, we cannot but remember with the greatestpossible appreciation the strenuous and heroic efforts made by Mr. Huddart toestablish the line. Returning to the original question, if the line does not pay now, is it likely to prove profitable in the nearfuture ? I am disappointed to hear from the Prime Minister that we are sending very little cargo to Canada. It appears, that Canada is deriving all the advantage from this line of communication, and that being so, the question suggests itself whether that country should not foot the bill for the extra subsidy. The service has many features to commend it to Australia. The management is liberal, and thelabour engaged in the service is treated well j and, therefore, from that point of view, I have not one word of adversecriticism to offer. It appears to me asstrange that the Government, who have been doing their very utmost for the past twelve months to shut out products from Canada, as well as from other countries, should now ask for an additional subsidy in order tokeep open a line of communication which, we are told, is intended to enable Canada to send her goods to us, although we have very little to send in return. As a means of communication for mail purposes, theservice is of very little use to the Commonwealth, and we should, therefore, look uponthis as a trade subsidy. I doubt very much if any value is to be attached to the argument of the Prime Minister that, from considerations of prudence alone, we should continue the service until we can deal with the whole question of mail communication between here and the old country. I am afraid that, notwithstanding that the Canadian Pacific Railway Company eontemplate shortening the journey over their lines by 24 hours, they will not be able to compete with the Suez route in the conveyance of mails for England. I am sure that for many years we shall not send our mails by the Pacific route. I am now giving the House the view of this question taken by postal officials. It is not regarded as of very much consequence from that aspect. The subsidy is really paid from year to year for trading purposes. Consequently, I do not understand the eagerness of the Government, which for the past twelve months has been endeavouring to close the ports of the Commonwealth against those who desire to- trade with us, to pay this additional subsidy for the purpose of keeping open this trading route.
– It is the necessary outcome of their policy.
– I do not think so. The policy of the Government is the prevention of foreign trade as much as possible, whereas this proposal is- one to assist in keeping open a channel of communication so that that trade may be developed. We do not send much in the way of goods to Canada. According to the statement of the Prime Minister, nearly all the loading carried by these vessels is brought from Canada to Australia. Since this line of steamships is of special consequence to Canada, I atn not sure, if an increased subsidy is needed, that that country should not be asked instead of the taxpayers of Australia to foot the bill.
– Instead of the taxpayers of New South Wales and Queensland.
– =1 cannot see how the additional subsidy can be regarded as other than new expenditure. It is certainly not a transferred expenditure. This is a proposal to renew a mail contract upon different terms, and I take it, therefore, that the additional money which we are asked to vote should be regarded as new expenditure, and as such should fall upon the whole of the States. But I am not satisfied that this increased amount ought to be paid at all. Certainly, it should not be paid unless it is made, abundantly clear that otherwise this channel of communication will be closed. Upon that point all the evidence that has been submitted is a confidential communication to the Prime Minister to the effect that the service is not a paying one. I have not heard of any threat of a cessation of the service if the increased subsidy is not forthcoming. The plan that has been adopted by the Government in dealing with this matter is most unsatisfactory. I venture to say that no State Parliament would sanction what we are now proposing to do. Indeed I do not know of any State Legislature which would so quiescently provide funds for the Government as this House seems disposed to do upon the present occasion. The acting leader of the Opposition has declared that he sees no objection to the course that is proposed, and I presume, therefore, that rio action will be taken to counteract it. I protest, however, against the unsatisfactory .method adopted by the Government in dealing with the whole question. The Prime Minister has stated that it is advisable to keep this trading route open, pending the determination of the whole of the mail contracts of the Commonwealth two years hence. If that is a reason for the payment of the increased subsidy, it is certainly a reason why every State should contribute in equitable proportion. That argument is essentially a Federal one. If it is considered prudent to pay the additional money required to keep an alternative service open, surely every State in the Union should contribute towards that end in proportion to its population. Therefore, I fail to see why the New South Wales and Queensland Governments should shoulder not only the entire burden cast upon them under the old arrangement, but also their proportions of the increased vote. However, as the Government have committed themselves to this arrangement, there is not much fear of Canada paying the whole, of the subsidy herself. Rather than see the service brought to an abrupt standstill, I- am prepared to subscribe to the new arrangement, although the circumstances under which we are .asked to vote the money are altogether unfair. I know that there are collateral advantages which we gain commercially from having the terminal point of this service in Australia. At the same time, I think that the whole question has been badly handled by the Government, who have treated the House very arbitrarily by asking that the increased subsidy shall be voted for two years longer, upon the bald statement of the Prime Minister.
– When mail subsidies come up for review, it is only proper that the grievances relating to them should be carefully scanned and considered before new arrangements are made. I do not intend to offer any objection to the proposed renewal of this, agreement for temporary purposes, but at the same time I think that the House ought to have been placed in possession of a copy of it. Upon making inquiries to-day, I ascertained that no printed copy of the agreement between the States was available, but, through the courtesy of the Minister representing the Postmaster-General, I was allowed to peruse the original documents. Those documents ought to be placed in the possession of the House, so that honorable members might know what they were doing. There is one preliminary question to which I desire to draw attention. It relates to whether, under this agreement, the Commonwealth itself is to be charged with the increased subsidy, or whether that subsidy is to be debited to the original contracting States of New South Wales and Queensland.
– The Prime Minister stated that it was to be debited to them.
SirJOHN QUICK. - I understand that the Prime Minister did say so, and that that is the Ministerial view of the matter. On the other hand, we cannot settle the point at issue without reference to the original agreement, and I have not had an opportunity of perusing it long enough to say whether that view is correct. It seems to me that if the proposed increased subsidy was not contemplated by the primary agreement, it must be regarded as new expenditure, which should be federalized, and in regard to which the representatives of every State should have a voice. For my own part, I hope that the Ministerial view is correct, and that the increased subsidy will be debited to the States of New South Wales and Queensland. At the same time, it would be. just as well to examine the agreement for the purpose of ascertaining whether that view can be sustained legally as well as from an equitable stand -point.
– Why does the honorable and learned member wish the increased subsidy to fall upon two States only ?
– Because they were originally responsible for this contract. They were responsible for any advantages conferred by it, and also for any defects which it contains. . I shall draw attention in a moment or two to one very serious defect in the original agreement which should be rectified if possible at the present stage. Honorable members will recollect that this agreement was one of the outcomes of the visit to Australia some years ago of Mr. Mackenzie Bowell, a Canadian Minister, who dwelt upon the great advantages that would result from the establishment of reciprocal trade relations between Australia and Canada. We were led tobelieve that it was part of the great Pacific cable scheme that such relations should be established, and that the cable subsidies by the Eastern States should be used to promote such relations. But it appears that up to the present Canada has derived the chief advantages from this subsidy. According to the statement of the Prime Minister, most of these vessels have carried a full cargo when coming from Canada, whilst they have been very light indeed when returning from Australia. In that respect, the advantages held out by Mr. Mackenzie Bowell have not been realized by the people of Australia. Before a renewal of this agreement is granted, and an increased subsidy voted, some inquiry should be instituted as to why the balance of trade has been upon the side of Canada, and why Australia has not enjoyed some substantial trading advantage. In. granting such a subsidy we ought to be guided by the principle that trade should accompany the mail. Such a principle is quite as vital as the principle that trade should follow the flag.
– Surely the honorable and learned member would not use the fastest passenger boats to carry cargo ?
– If the honorable and learned member will take the trouble to peruse the agreement he will see that it contemplates the transport of cargo as well as of passengers. There is a distinct provision for the carriage of passengers’ freight and mails, and it is stated that the freight and passenger rates should be of a reasonable character. I should like to point out why, in my opinion, Australian trade with Canada has not been promoted as expected. I remember that Mr. Mackenzie Bowell stated, in a speech he made here, that Australia, being in one hemisphere and Canada in the other, Australia would at one time of the year produce the very class of fruit,&c., which Canada required. He further pointed out how it might be expected that, in course of time, a vast export trade of Australian fruit and other perishable products might be established by the subsidy to be given to these mail steamers. That result has not been achieved, for the simple reason that the subsidized steamers never made provision for the carriage of perishable products. There is no condition in the agreement before us requiring the steam-ship companies to provide appliances of an up-to-date character for the conveyance of produce of the kind. How, then, could it be expected that any trade would result? If we are to renew the agreement at an increased subsidy, we ought to insist on getting some consideration. But Australia is getting no consideration for the proposed increased subsidy, and, so far as Queensland and New South Wales are concerned, if they are to be solely responsible, I fail to see what they are getting in return. No increased facilities have been provided in the shape of refrigerating appliances for the conveyance of fruit, though, I believe, even very moderate provision of the kind would result in a great impetus to Australian fruit production, and provide an outlet for our perishable goods in the Canadian market at a time of the year when theUnited States cannot meet the demand. It seems to me that this company, as well as their predecessors, have been lacking in that enterprise which might have been expected when a subsidy is given, not merely for the conveyance of mails, but for the purpose of establishing trade relations. What has this company or its predecessor done to promote trade relations? An important company such as this might have taken steps to establish agencies and depots, and afforded to importers in Australia and importers in Canada inducements which would have had the effect of increasing the trade, and realizing those hopes held out to us by Mr. Mackenzie Bowell when he asked the people of the Eastern States of Australia to join in the compact.It is high time the Commonwealth took action to promote its export trade, especially in connexion with agreements such as this.
– Does the honorable and learned member really say that ?
– The honorable and learned member for Werriwa has no right to introduce the question of fiscal policy, which has nothing to do with the case before us. If we are paying for a service we ought to insist upon facilities in return for the payment. The question of the export of fruit to Canada has nothing to do with the fiscal question, and it is not reasonable to introduce that question at this stage. I insist on presenting the view which I hold. If we make the contract we are entitled to demand consideration, and this company ought to be required to provide reasonable facilities for the conveyance of perishable products. We are rapidly approaching a time when we shall have full control not only of this agreement, but also of the agreements which are expiring with the P. and O. and other shipping companies. I sincerely hope and trust that the House will insist in connexion with all such agreements, upon imposing conditions requiring the subsidized companies to present reasonable accommodation for the conveyance of Australian perishable produce. Onlylast week in some of the Australian papers we saw that accounts had been received of damage to hundreds of tons of Australian fruit consigned to London on some of the subsidized steam-ships. The damage resulted from the defective accommodation provided, or from the negligence with which the transit was conducted.
– Similar consignments have been carried fairly well before.
– It seems extraordinary that on this occasion so much damage should have been done ; and I mention the case for the purpose of illustrating how this House can assert its position. We have a perfect right to impose our own conditions, and one condition should be that the subsidized companies must not merely be mail carriers, but must be instruments for the promotion of trade, without which the mere carriage of mails is a very small matter. The mails, if they were carried to any extent in bulk, must be an evidence of the existence of trade relationships. If provision were made for the carriage of mails it ought not to be outside the scope of such a scheme to require provision for the carriage of perishable products, and in order to bring this question to an issue, I intend to move an amendment. This motion, I understand, does not represent any final contractual relations between the Commonwealth Government and this company, but is presented in a form which allows discussion, and, if thought proper, the adoption of an amendment without in any way interfering with the agreement. I move -
That the words “ and facilities for the conveyance of perishable products” be added.
An addition of this kind, while not very stringent, and leaving it practically in the discretion of the Government to determine the extent and character of the facilities, will draw the attention of this company, as well as that of other companies, to the fact that the Federal Parliament, in negotiating mail contracts, is determined to do its best to promote the interests of those engaged in the production of fruit and other Australian perishable goods.
– I cannot say I quite agree with the honorable member for Parramatta in all the strictures he passed on the Government. It must be remembered that there is more joy over one sinner that repents than over ninety and nine good persons who need no repentance. Here we have honorable members confessing that the policy which they have been advocating for the last year or two is a great mistake, and they are now trying, as far as they can, to develop trade by means of subsidized ships. Those honorable members can only be congratulated on their awakening, however late that may be, because it shows, after all, that there is some virtue in persistency. Honorable members on this side of the House were very persistent in their efforts to instil some rudimentary notion - we could not hope for more - of political economy into honorable members opposite.
– Is the honorable and learned member discussing the motion before the Chair ?
– I think so, sir. The motion speaks of facilities for trade, and I consider that I am quite in order in the remarks I am making.
– I see nothing about facilities for trade in the motion.
– The honorable and learned member for Bendigo has moved an amendment dealing with the conveyance of perishable products.
– Then the honorable and learned member for Werriwa is speaking to the amendment ?
– I am speaking on the whole question.
– I must point out that the question before the Chair is - “That the words proposed to be added be so added,” and I wish to know whether the honorable and learned member for Werriwa is addressing himself to that question?
– As a matter of order, I should like to know whether the honorable and learned member for Werriwa is not in order in addressing himself to the main question as well as to the amendment? If the honorable and learned member is not in order in doing that, will he have an opportunity later of addressing himself to the main question?
– I would point out that this is the only opportunity there will be of discussing the motion and the amendment. If the amendment be carried then I take it the question, as amended, will not be open to further discussion, and, therefore, I presume the whole question must be discussed now.
– I would repeat that the question before the Chair is - “ That the words proposed to be added be so added,” and that is, therefore, the specific matter of debate at the present moment. It is perfectly competent for any honorable member who desires to discuss both the original motion and amendment to do so, but he will be required to confine himself to those limits.
– Honorable members opposite are to be congratulated on the step which they have taken, and which, therefore, has my hearty support. This subsidy will undoubtedly lead, or will tend to the development of trade relations with Canada ; and it is highly desirable some such movement should be made. I only regret that restrictions by way of duties on our trade will prevent the opportunitybeing taken full advantage of. Had it not been for the restrictions which existed both in this country and in Canada, there would have been no reason for the subsidy now proposed. I confess that when the honorable and learned member for Bendigo expressed the opinion that all descriptions of cargo ought to be carried by the mail steamers, it appeared to me that if a regulation of the kind were imposed it would mean that all passenger boats would have to travel at the same rate as cargo boats. If we desire speed, the steamships must practically carry only passengers and a certain class of cargo. Infact, the reason why ocean tramps exist in such profusion is that they can carry our products at a much cheaper rate than that at which they can be carried by other vessels. The honorable and learned member for Bendigo got himself into a great state of excitement over the fact that a lot of goods had been destroyed in transit to England. With the excitement of the honorable and learned member I thoroughly sympathize ; but as I showed by my interjection at the time, I was absolutely astounded to hear the remarks from a protectionist who has taken such a stand in restricting trade. If all our goods that are exported were lost on the voyage, no goods would be imported in return, and, consequently, the effect of the Customs duties would be doubled. Does the honorable and learned member for Bendigo not see that such losses would form an easy way of solving the question as to what goods should be allowed, in and what goods kept out of the country ‘’ If all exported goods were destroyed, none, as I say, would be imported in return.
– And the “ money will be in the country.”
– The money, no doubt, would be in the country, seeing that every-‘ thing that could be done here in their production had already been clone, and no more work would be required on them. But the arguments of the honorable and learned member for Bendigo open such a wide prospect that I must refuse to dwell on it any longer at the present time. I compliment the honorable and learned member upon having at last realized the truth of one of the propositions which has so frequently been advanced by those on this side of the House during the past two years. I hope that we shall hear similar statements from other honorable members who support the Government. I intend to vote for the proposal, because it is a ratification of a purely executive act, and unless what has been done is so wrong as to show gross negligence or a wilful departure from sound principle on. the part of the Government which would warrant the moving of a motion of censure, individual members can hardly take the responsibility of opposing it. But I should like to see altered that part of the arrangement which provides that the extra cost of the service shall be borne by the States of New South Wales and Queensland. If, as the Prime Minister has alleged, the whole Commonwealth will gain by the continuation of the service, its extra cost should be borne by the Commonwealth, and not wholly by the two States immediately concerned.
– Those of us who have had experience in the carriage of perishable goods by sea know that it took the Orient and Peninsular and Oriental Companies a large number of years to bring their refrigerating machinery to such a state of efficiency as made it possible to efficiently and cheaply carry perishable produce. After ten years of experiments, however, they have brought their arrangements to perfection, although the cost has been very great, and the freights were consequently at the outset very high. But if we require the Canadian Steamship Company to equip their steamers with the best and latest appliances for the carriage of perishable cargo, we must considerably increase their subsidy. If we merely require them to carry perishable cargo, without compelling them to use the latest, refrigerating appliances, the public will be misled, and, if they take advantage of the arrangement proposed by the honorable and learned member for Bendigo, they will have no remedy in the event of loss or damage to their goods« Therefore, though the object which he has in view is an exceedingly good one, and should commend itself to all interested in the export of Australian produce, I think that the Governments of Queensland and New South Wales may be left to make their own arrangements in regard to the carriage of frozen meat. So far as the export of fruit is concerned, I think it will be a long time before we obtain an open market ‘in Canada for fruit.
– Paragraph (b) provides what the honorable and learned member for’ Bendigo requires.
– The term “efficiency” there used applies only to the rate of speed. Instead of requiring the use of steamers of a certain size and horse power, we have contracted for a 21 days’ run from Sydney to Vancouver, at a speed of about 13^ knots an hour. The contract, however, contains no stipulation in regard to the carrying of perishable produce.
– Has the honorable member anything to say with regard to the debiting of the subsidy? ?
– The Governments of Fiji, Queensland, and New South Wales approached the Commonwealth Government some time ago in regard to the continuance of this service, and so far back as October last Senator Pulsford elicited from the VicePresident of the Executive Council the information that the Government was then proceeding to make, arrangements for the continuance of the service. There has been very little correspondence on the subject between the Commonwealth and the Governments concerned, with the exception of the original communications, which showed their desire for the continuance of the service. They have been kept informed, however, of the objects which the Commonwealth Government had in view. ‘ With regard to the debiting of the subsidy, I may explain that the original contract was between Queensland and Fiji on the one hand, ‘and New South Wales on the other, the contracting parties agreeing to subscribe a certain amount for thirteen round trips per annum. When the Commonwealth Government took over the postal services of the States, they took with them all attaching liabilities, but the continuation of thu service is a continuation of a service for which Queensland and New South Wales were primarily responsible, and from which they will receive the major benefit. Therefore, they are to be debited with the full amount hitherto contracted for, together with their proportion, after the contribution of Fiji has been deducted, of the £16,000 increase, New South Wales paying tenseventeenths, and Queensland sevenseventeenths. I have merely to add that the service provides communication for the carriages of passengers, mails, and cargo, not merely to Canada, but also to Fiji and Honolulu, and, as we are trying to extend the sphere of our influence into the Pacific, it would bea retrogressive step if we omitted to make arrangements to keep ourselves in touch with those places. But surely since the States of New South Wales and Queensland, after weighing the matter well, came to the conclusion years ago that it would be to their advantage to make the contract, and are now desirous of having it continued, we can have no better reason for agreeing to it.
– I do not want to discuss the fiscal aspect of this matter, though that is an aspect of some importance; I shall confine myself strictly to the motion before the House. While I can quite understand the proposal to carry on a transferred service arranged for by two of the States prior to federation and debiting the cost to the original contracting parties, 1 think the House should be informed whether New South W ales and Queensland both consent to the arrangement. We should have placed before us all the correspondence on the subject between them and the Commonwealth. We know nothing in regard to it, however, except the statement of the honorable member who represents the Postmaster-General - that the contract was originally entered into by Queensland and New South Wales. that they approached the Government some time ago in regard to the renewal of it, and that a certain senator asked a question upon the subject some time last year. What we should be told is whether the two States concerned are willing to continue to pay the original subsidy and their proportion of the increase which has been agreed to. That is one view of the matter, and if thetwo States were willing to carry on the servicewith an increased subsidy, there would belittle to be said, even by the representativesof those States. The other view which thePrime Minister put most strongly was that we have here a mail contract which wasoriginally entered into by two of the States, and that it now becomes a question for usto consider whether we shall renew it in the interests of the Commonwealth. The right honorable gentleman ‘ put the mattervery shrewdly, and I think that he would have made even a greater success as a business man than as a leader of the Bar. Hesaid we should have to consider the whole question of mail communication on the’ various lines within the next two years, and that we had better keep in the field this competitor, who at present confers a favour upon us, in that he may enable us toenter into a very much better arrangement with the other companies. I can understand that view of the matter; but if weare going to continue the subsidy for the purpose of enabling us to effect a better arrangement with the companies who arecarrying mails by the Suez Canal route, this is clearly a Federal matter, and thesubsidy should not be charged to the twoStates who originally entered into the contract. I am of opinion that the time will very shortly come when we shall not require to subsidize steamers for the purpose of carrying mails. Possibly our mails will be carried by a great variety of routes, and the mail matter will be conveyed, as in some cases at present, as ordinary cargo. I believe, however, that we shall very soon, if not immediately, have to consider the question of subsidizing the “ red “ lines of steamers for trading purposes only, and as we have adopted a policy of protection, we are bound to pay full regard to that view of the matter. Even from a purely free-trade point of view, it is justifiable, in view of the great benefits they confer upon traders here and in other parts of the world, to subsidize steamers for the purposes of facilitating trade. We have to remember that British steamers are now obliged to fight against vessels subsidized by the Governments of France and Germany, and when we are considering arrangements with a view to increasing our trade, we should take into account the desirability of sustaining our own people against their competitors. The honorable member for Parramatta has referred to the fact that the whole of the benefit accruing from the running of this line of steamers has been derived by Canada, and that she therefore should bear the whole of the cost ; but I find it impossible to conceive that such means of communication between Australia and Canada could confer the whole of its benefits upon one of the parties. The advantages must be felt all round, and although I admit we have done very little trade with Canada recently, I would point out that we were approaching a very satisfactory state of affairs in regard to the trade between New South Wales and Canada, when the whole of the conditions were rudely upset by the introduction of the Federal Tariff. New South Wales in the pre-Federation days had the same treatment in Canada as had Great Britain, and her manufactured goods were admitted into that country at a rate of duty 33£ per cent, lower than that levied -upon goods imported from the United States or the Continent of Europe. Consequently, the subsidized mail service performed a satisfactory part in the development of trade relations between the two countries. On the advent of the Federal Tariff, however, all this preference was done away with, the exports from New South Wales to Canada fell off immediately, and there is very little prospect of the trade being revived on the old lines. For all that, however, I think we could not do better than subsidize a good service of boats between Australia -and Canada ; we should get a quid pro quo for what we pay, in any case. In Great Britain the Government are now considering the desirableness of taking action with regard to the subsidized lines of continental steamers which are making inroads upon the trade of Great Britain, and we should consider whether we should not derive great trade advantages from adopting a similar policy. To that extent, perhaps, the amendment of the honorable and learned member for Bendigo is probably justified. The substance of the amendment itself does not seem to effect any good, because it must be remembered that this line of steamers trades only between New South Wales, Queensland, aud Canada. If we had fruit in New South Wales and Queensland suitable for export to Canada, I am convinced that the proprietors of the steam-ships would fit up their boats so as to carry it ; but I speak from personal knowledge when I say that we should not be able to send away any appreciable quantity. Four-fifths of the fruit export trade of Australia belongs to Tasmania, and the other fifth, to Victoria and South Australia; neither New South Wales nor Queensland has any fruit worth speaking of for export. The steamship company would take very good care to cater for any specific line of cargo that might offer, particularly for goods requiring cool storage, because the freight charges in such cases are very heavy and highly payable. The mail boats have been struggling for many years to work up this class of business. Notwithstanding the fact that an accident to one of the boats recently involved considerable loss of perishable cargo, they have, taking one vogage with another, succeeded in landing their fruit cargoes in London in good condition, and the exporters are satisfied with the prices obtained. This trade, however, has been worked up without any subsidy, and in the absence of any arrangement. When we have to consider the renewal of the contracts for the mail services vid Suez, we should stipulate that the steamers should call at Hobart, because, at the present time, the question whether the boats will call there or not depends entirely upon the arrangements which can be made between the agents and the exporters in Tasmania. To that extent I think we might agree with the amendment of the honorable and learned member. We should subsidize our steamers to enable them to compete with lines which receive similar assistance from foreign countries, upon a purely commercial basis, and apart altogether from the question of the carriage of mails. I think it is highly desirable that some such motion as that now before us should be carried ; but I join with those honorable members who have complained of the slipshod and inadequate Manner in which the proposal has been placed before us. We are asked to assent to a motion which will involve the expenditure of a considerable sum of money, and as we are the custodians of the public purse we should not be asked to vote without the fullest information. We are told that the contract which is now to be renewed was entered into by the Queensland and New South Wales Governments, and that those Governments desire it to be renewed ; but no evidence has been tendered to us upon either of these points. Some honorable members have expressed a desire to see the contract entered into in order that they may know how far it commits us, and we should, at least, be made aware of the nature of the communications which have passed between the Prime Minister and the representatives of the company. However, in spite of all this,I shall vote for the motion, and once more I commend the Prime Minister for the great business capacity which he has displayed in dealing with this question.
Mr.KIRWAN (Kalgoorlie).- The honorable and learned member for Bendigo propounded a very curious theory when he spoke of trade following the flag, and then expressed the opinion that trade ought to follow the mails, or the mails ought to follow the trade - I do not quite remember which it was. If the mails were to follow trade, I am afraid they would be brought to us sometimes in a very roundabout way. If we followed that argument to its logical conclusion, we should be called upon to subsidize cargo steamers to carry the mails. That would hardly suit us, because the main object in carrying on a mail service is to secure rapid transit and so minister to the public convenience. If anything is to be added to the motion, I think some consideration should be paid to the arrangement arrived at at the Colonial Conference recently held in London. It was then agreed between the representatives of the Imperial Government and the colonies that in all future contracts for the carriage of mails provision should be made against excessive freights, to prevent any preference being given to foreigners, and to insure that the vessels subsidized should, if required, be available for service as transports or as cruisers in time of war. Noattention has been paid to that agreement in the contract now under review, although this is the first occasion upon which any subject of the kind has been dealt with since that conference was held. It is quite true that this is not a new contract, but in the negotiation for the renewal and increase of the subsidy the conditions agreed upon at the Colonial Conference should surely have received consideration. I do not say that those conditions are all that they might be ; but I hold that when the representatives of the colonies and of the Imperial Government meet together and decide upon a certain course of action, that course of action should be followed. This is not the first departure that has been made from an arrangement arrived at by that Conference ; and, if these agreements are not to be respected, people in other parts of the world will not repose much confidence in the Commonwealth fulfilling its obligations. It seems to me that the Prime Minister has not advanced sufficient reasons to justify the payment of the increased subsidy proposed. The mere fact that the company concerned declares that its business is not a paying one is not sufficient to justify the granting of a larger vote. Only a few days ago a cablegram appeared in the Argus announcing that another line of steamers is to be run between various ports of North America and Australia. It was further stated that this company possesses four steamers of 8,000 tons burden which it is intended to run regularly to Australia. If the Vancouverline of steamers is not paying, it is rather strange that another company should be anxious to come into competition with it. There is another aspect of this question to which I desire to call particular attention. In Western Australia a great deal of uneasiness exists concerning the line of steamers viâ Vancouver. As honorable members know, W estern Australia is closer to Great Britain by a week than is any other State. In Western Australia a large amount of British capital is invested, and its business with Great Britain is proportionately greater than that of any other State. Under these circumstances the fear is entertained that the Vancouver line of steamers may be utilized to compete against the service viâ the Suez Canal. We know that the section in the Post and Telegraph Act which prohibits the payment of a mail subsidy to steamship companies employing coloured crews will render the renewal of present contracts somewhat difficult. If the payment of the subsidy for the carriage of mails viâ the Suez Canal is abandoned, I trust that the same course will be followed in regard to all other lines of mail steamers.
– There is a special clause in the contract prohibiting the employment of coloured labour. It has been in force for about four years.
– If any circumstance should arise which prevents the existing contract viâ the Suez Canal from being renewed, it would be unfair, by subsidizing another service, to confer an undue advantage upon one State as against another. I trust that when the present contracts expire, nothing will be done to Western Australia, or to any of the States, which will place them at a disadvantage as compared with the position which they occupied prior to Federation.
– I am rather surprised at the attitude taken up by the honorable member for .Kalgoorlie upon this question. It seems to me to partake very closely indeed of the traditional “dog in the manger “ policy. The people of New South Wales have all along contributed to the subsidy paid to the line of mail, steamers viti the Suez Canal, and they have also paid their share of the cost of the service from Vancouver. Yet the honorable member declares that if we cannot make arrangements with the Suez Canal service to renew the existing contract, we should refuse to subsidize the line of mail steamers via Vancouver.
– That is all the more reason why we should not do so.
– Precisely. I regard the proposed arrangement as merely a tentative one. It seeks to continue the existing contract for a couple of j:ears, pending more complete arrangements being made. I quite sympathise with the suggestion which was put forward by the honorable and learned member for Bendigo, that we should insure as far as possible that refrigerating space should be provided upon the mail steamers .specially trading with Canada. To me it seems unlikely that any great amount of freight will go from Australia to Canada other than frozen meat or perishable produce. At the same time, I would point out to honorable member’s, that if we insist upon such a condition at the present time, it will most certainly lead to the breaking of the contract. It is absurd to expect that for the sake of a two years’ contract the company will go the expense of building new boats. The present steamers have only refrigerating space sufficient to enable them to carry the stores which are necessary for their own consumption. I appeal to the honorable and learned member to withdraw his amendment in order that we may be enabled to discuss the whole matter at a later stage. It is true - as was mentioned by the honorable member foi Kalgoorlie - that a new service of steamers is to be established between the
United States and Australia vid New Zealand. But that line, I understand, will be primarily a cargo line.
– It will visit ports where it can obtain cargo.
– I read in the New Zealand newspapers the report of an interview ‘ with Mr. Alley, who is the movingspirit in tire venture. He declared that the idea was to establish regular communication between Seattle, . in the United States, New Zealand and Australia. The vessels will not sail from particular ports upon fixed dates. . Therefore the new service cannot be considered as an alternative mail service. But the mere fact that such a line is being established should encourage us to hope that within a short time we shall be able to obtain better terms than those which we at present obtain. I think that the statement of the honorable member for Parramatta that the Vancouver line of steamers will never seriously compete with the service vid the Suez Canal is open to question. The boats which are now being placed upon the. Atlantic route, are increasing their speed very materially, and the Pacific Railway Company proposes to reduce the time occupied in the journey across the continent by nearly a day.
– Will the other companies sleep while all this is taking place?
– No. ‘ But it is not so easy to provide for increased speed upon a long stretch as it is upon a short stretch of ocean.
– The voyage was curtailed four days in the last contract.
– Still the speed is not, very great now. The shorter any stretch of ocean is upon a route, the greater is the likelihood of speed being increased. Consequently, I consider that within a shorttime mails from London will be delivered in Brisbane within 26 or 27 days at most. To my mind there is no doubt that the proposed expenditure is as much transferred expenditure as would be the payment of an’ increased sum for the carriage of mails between two towns in any one State. Consequently, honorable members need not fearthat States other than New South Wales and Queeusland will be called upon to bearany burden in this connexion. Seeing that the whole of the mail contracts of the Commonwealth must Vie reviewed within the next eighteen months, I trust the Committee: will see the wisdom of passing the resolution, and of seeking to obtain better arrangements at a later date.
– I wish to take your ruling, sir, upon the question of whether this proposal is in order. I submit that it should have originated in Committee, inasmuch as it involves a charge upon the people of the country. Standing Order 243 is as follows : -
If any motion be made in the House for any publicaid or charge upon the people, the consideration and debate thereof may not be presently entered upon, but shall be adjourned till such further day as the House shall thinkfit to appoint, and then it shall be referred to a Committee of the whole House before any resolution or vote of the House do pass thereon.
I take it, therefore, that the proper method in regard to this motion would have been to ask leave to go into Committee for its consideration. I submit, further, that before this contract is finally made it should come to the House for ratification. That is the course taken in the House of Commons whenever a contract is made with any company, a distinct resolution being submitted. Here there is no contract yet, and we are asked to make a charge on the people of the country without knowing what the precise terms of the contract may be. The Government seeks authority to give this company more money and to provide for the continuance of a service for another two years with some emendations of the existing contract. Clearly, therefore, this is a proposal to make a further charge on the people of the country. I admit that there would not have been so much in the point I am taking had the proposal been merely for the continuance of the existing contract ; but the proposal to make a further charge clearly comes within Standing Order 243. This is a charge on the people ; it is a motion for public aid to the company which has been carrying our mails for some time past, and therefore the matter should have been considered in Committee, and finally the contract should have come here for final approval.
– I labour under the disadvantage of not having heard the opening remarks of the honorable member for Parramatta, but gather that he is referring to Standing Order 243. I notice that that standing order occurs in the chapter relating to Committees of Supply and Ways and Means, and both by its position in that chapter and by its own form evidently relates to a motion which is practically to make an appropriation of public money and render it available by its authority alone.
– It means more than that ; it means a proposal of the sort before us.
– Clearly, this proposal is not for “ public aid,” and if it is anything, I presume, that it is “a charge” on the people.
– If that is the case, every motion proposing a scheme which involves any expenditure as one of its conditions would be a charge on the people. I venture to submit that the honorable member, from his long political experience here and elsewhere, must grant that it has continually been the custom in our States Parliaments - and in the South Australian Parliament, the standing orders of which we have adopted - to permit a motion of a general character, which proposes to sanction any particular enterprise, to be discussed by the whole House and decided upon, although in order to give effect to it some expenditure of public money may be involved.
– The amount of money is named in the motion.
– The amount has to be stated in the motion for the information of the House, because, when considering a general proposal, the financial aspect of the question is certainly one which cannot be disregarded ; and the determination of the House is certain to be largely guided by the amount of the expenditure involved. Having reminded the honorable member for Parramatta of the general practice, I ask him to observe that this motion affirms that the House of Representatives approves of the extension of an old contract for a period of two years, and proposes that the subsidy shall be increased by a certain amount. The honorable member does not say that if this motion be carried the money will be available. On the contrary, it will be necessary to place the amount on the Estimates, and have it considered in Committee of Ways and Means, when it will be accepted or rejected by the House.
– And recommended by message.
– Does the AttorneyGeneral suggest that honorable members would be free to strike the sum out of the Estimates after the contract had been made?
– That is the third point to which I was coming. I submit that this is merely a motion of a general character submitted to the House, because, when it is passed, it does not mean that the money will be available, and no effect can be given to it until this Chamber has further considered the matter. If this had been such a proposal as that which the honorable and learned member for Bendigo had in his mind when he interjected, it would have been necessary to introduce it by a message ; but the fact that the motion is not so introduced shows that it is not intended in itself and by itself to be an effective appropriation.
– Should the motion not have been preceded by message 1
– I think not, unless we propose to make a special appropriation for two years by Bill, and thus remove the matter altogether from the consideration of the House. I now come to the last and material point - that this House, by passing tho motion, does tie its hands morally, though not legally. This House is under no obligation to keep its pledge, but it is committed in a way from which there never has, to my knowledge, been any retreat. To that extent the honorable member for Parramatta is perfectly justified in raising the point ; but I again appeal to his experience as against his present logic.
– My experience in New South Wales is against the argument of the Attorney-General.
– I know from personal experience in Victoria and from information as to South Australia, that motions of the kind have continually been passed in the full House when they did not of themselves authorize any expenditure - when they only committed the House, and did not technically commit the Committee which afterwards considered the Estimates. Under these circumstances, I submit that the practice of Parliament allows us to deal with the motion before the House.
– I may say that I am not at all surprised that the honorable member for Parramatta has raised the point. When first the notice appeared on the paper I felt it was very near the border line, and looked carefully into the matter before the day’s proceedings began. Had I judged that the motion was not one to be submitted except in Committee, it would have been my duty to call the attention of the Government to the fact. But, looking into thematter carefully, I came to the conclusion,, for reasons which have been mentioned by the Attorney-General, and for some otherreasons, that the motion was properly on the paper, and could be debated in theHouse, not requiring consideration in Committee first. I simply emphasize, in oneor two words, what the Attorney-General has said. In the first place, Standing Order 243 is one of a group under the heading “Committees of Supply and Waysand Means.” In the next place this motion, if it were passed unanimously, would notwithout some sum being later voted on theEstimates, after recommendation by message, authorize the payment of one single penny, technically and really. After we have passed this motion, should it be passed, it will still be necessary to have a message recommending the voting of the sum, and to include it in the Estimates and in an Appropriation Act in order to make it effective. The honorable member for Parramatta kindly told me some minutes ago that he intended to raise the point ; and having; looked up the practice of the House of Commons, I have come to the conclusion that that practice supports the view I have taken. I shall read two short extracts to the House. In May, page 568, there is the following paragraph : -
Control Over Packet and Telegraphic Contracts. - It may be mentioned, in conclusion, that as a check upon corrupt or improvident contracts, it is provided by standing orders, that in every contract for packet and telegraphic services beyond sea, a condition should he inserted that thecontract shall not be binding until it has been approved by a resolution of the House.
Not a resolution of the Committee–
Every such contract is to be forthwith laid upon the table, if Parliament be sitting, or other-, wise within fourteen days after it assembles, with a copy of a Treasury minute setting forth the grounds upon which the contract was authorized. No such contract is to be confirmed, nor powergiven to the Government to enter into agreements, by which obligations at the public charge are undertaken, by any private Act. All such contracts are, accordingly approved by resolutions of the House.
I may say that if it had been .proposed to follow the motion by another to the effectthat the Prime Minister be authorized to bring in a Bill to give effect to it, I should have ruled such a proposition out of order, as contrary to both the standing order and the practice of the House of Commons. Onemore short extract which bears remarkably closely on the point before us should be read. I find in the British House of Commons records of the 7th August, 1900, a reference to a precisely similar matter in the following resolution, which was passed in the House, and not in Committee : -
Resolved. That the contract, dated the 1st day of June, 1900, entered into with the Pacific Steam Navigation Company for the conveyance of mails between Liverpool and South and Central America and the Falkland Islands be approved.
That resolution was submitted to the House, and ultimately carried. I am bound in fairness to point out that there is the one distinction that the motion in the House of Commons does not mention any specific amount, while the motion now before us does. In both cases, however, a specific contract is mentioned, and, as that contract must carry with it a specific sum, I do not think the omission material. I am, therefore, against the honorable member for Parramatta, and I rule that the motion is properly before the House.
– That resolution in the House of Commons seems to infer that the Ministry make the contracts on their own responsibility.
– I should like to quote a resolution which was passed under similar circumstances in reference to New Guinea, and in which a specific sum of £20,000 was mentioned.
– There is now no point of order before the Chair.
– I rise merely to draw the attention of the Minister in charge to a certain matter. Before doing so, however, I may say that as regards the subsidy generally I should not be inclined to vote the amount proposed or any other did I believe that this service could be conducted without such assistance. There are circumstances, however, which make me believe that that is not the case. Had the conditions existing at the time the subsidy was originally granted continued, I believe that this service would now be in a position to, at any rate, run under a reduced subsidy. But the fact is that the SanFrancisco service was conducted, without an American subsidy, by two vessels belonging to an American owner and two vessels belonging to the Union Company. Then the American owners succeeded in getting a very large subsidy from the United States Government, under the conditions of which the British ships then running on the San Francisco line had to retire. The considerable subsidy given by the American Government has resulted in the placing on thisline of vessels of high speed and large carrying capacity. But the position of the Vancouver service has, by the American action, not improved, but deteriorated. Then the question arises : shall we allow theseBritish boats, which now run, tobedriven out of the service by the American subsidy ? I am at one with the Prime Minister in the opinion that for the next two years, at any rate, until we have re-arranged our mail contracts, it is desirable to continue this British connexion across the Pacific with a British colony, especially since that colony is willing to so largely assist us in subsidizing these steamers’. I agree with him, too, that it is not desirable that the honorable and learned member for Bendigo should press his amendment, at all events, in its present terms. I am with the honorable and learned member in his desire to obtain something more than efficiency for the carriage of mails, but it might be altogether unreasonable to demand from the company facilities for the conveyance of perishable products. As the honorable member for Bland has pointed out, entirely new steamersmight be required to do what the honorable and learned member wants, and there is no evidence that the perishable cargo which he has in view will be forthcoming. If there were evidence that accommodation is needed for perishable cargo, I think the company would provide it, because such cargo is the most profitable that they could carry. But if there is no evidence of the need for this accommodation, it would be unreasonable to require them to provide it. What I suggest to the honorable and learned member for Bendigo is that, as we are regarding this line more as a cargo than as a mail line, he should move the insertion, after the word “ efficiency,” of the words . “for the carriage of mails and cargo.” If we carried that amendment, it would enable the Ministry to demand such efficiency as they may deem desirable in connexion with the carriage of cargo. But the point to which I rose to draw the Minister’s attention is the manner in which it is proposed to debit the subsidy. I have no objection to the method of distribution proposed, if it is the legal method to adopt. I am somewhat doubtful as to whether it is the right constitutional method or not, but
I shall not press that point. I would draw his attention, . however, to the need of establishing one method for dealing with all such additions as this to the expenditure upon transferred services. When the last Estimates were before us, we voted an additional subsidy of £2,000 for the New Hebrides service, and that expenditure was debited as “other,” or new expenditure
– There is also the case of New Guinea.
– Yes; but I prefer to rely upon the case which I have cited, as it is more particularly applicable. I am anxious that whatever is the proper and legal method of charging the subsidy should be adopted. I am not desirous of relieving the State of New South Wales from the larger share of the additional subsidy mow proposed, but I hold that the rule which we adopt in one case we should adopt in all other cases of the kind.
– We are now pledging ourselves, by resolution, to the payment of the additional subsidy by Queensland and New South Wales.
– I do not know that we do that. The statement in the motion that the arrangement was entered into on certain dates by the Governments of New South Wales and Queensland, is only a statement of fact which we cannot dispute ; but I do not think that in passing the motion we necessarily pledge ourselves to any particular allotment of the contribution. I should like the Attorney-General to give his attention to the matter I have spoken of. One of the methods adopted must be wrong, though I am not prepared to say which, and I am willing to accept for New South Wales whichever method may be considered most in keeping with the provisions of the Constitution.
– My strong inclination to support the Government on this occasion made me hesitate about addressing you, sir, because my position is such a curious one that I was hardly sure that I am on solid ground. The honorable member for North Sydney seems to be in doubt as to whether this additional subsidy should be borne by the Commonwealth or by the original contracting States. The amount at issue is not of serious importance, and could be paid by those States without difficulty dr cavil. But .what we require is a decisive opinion from the Attorney-General as to the constitutionality of - the method of contribution proposed. We could obtain such an expression of opinion from him or from the Prime Minister if the honorable and learned member for Bendigo would withdraw his amendment to permit the insertion, after the figures “£16,000,” of the words, “such increase to be equitably apportioned among all the States.”
– The honorable member can do what he desires by. amending the amendment by the addition of a new sub-clause (c).
– New South Wales and Queensland have asked the Prime Minister to renew a certain contract. That is an admission that they were satisfied with the old arrangement, and my experience as a former member of the New South Wales Legislature is that, not only were the representatives of that State willing to agree to the arrangement in the first instance, but the)’ were ready to ratify it on succeeding occasions, and even to increase the subsidy, because of the commercial advantages of the line and the improvement to State interests which the communication with Canada created. The honorable member for Parramatta spoke of the collateral advantages of the service, and it is to the collateral advantages that the practical-minded man must look. Sir James Huddart, and the company which was subsequently formed, have expended at the terminal point in Australia, upon repairs to their ‘vessels, more per annum than the subsidy paid to them ; and in one year the cost of repairing the Miowera exceeded the subsidy paid by the States of New South Wales and Queensland. Prior to Federation, the outward cargo almost filled their vessels, and the inward cargo always did so.
– But the outward cargo has fallen off now.
– Yes, because of the Tariff; though the inward trade still, continues. Prior to Federation the Company had almost become self-supporting. There are other reasons besides the commercial advantages which we gain from subsidizing the line. We subsidize companies which employ Chinese, Lascars, Cingalese, Afghans, and other alien and servile labour, whereas this company employs only white labour. Mr. Spreckles, the sugar king of the United States, has, with his San Francisco line, made the competition against these vessels very severe ; but while the Canadian company’s steamers help to keep open the all-red route, and are Britishowned and British-manned, his are owned in America, and manned largely with servile and alien labour. A good deal has yet to be said before the Commonwealth can commit itself generally to the granting of subsidies. But in paying a subsidy to this line, I think that the Government might well demand that the company shall take and train a certain number of boys from our reformatories. This would encourage our young people to take to the sea, and give us men for our ships when we become a maritime nation, as we are bound to be, and would also provide a nucleus for an Australian navy. I agree with the honorable member for North Sydney, that there is no reason why the company should be burdened during the next two years with the expense of providing a refrigerating plant. The Peninsular and Oriental and Orient Companies have been able to undertake the carriage of perishable products only after a heavy expenditure, which I do not think the trade would warrant the Canadian company in incurring. I think that the additional subsidy should be treated as new expenditure, and be equally apportioned among the States. I therefore move -
That the amendment be amended by the addition of the following words : - “(c) Such increase to be equitably apportioned among all the States.”
Mr. JOSEPH COOK (Parramatta).- I take advantage of the amendment to again protest against the way in which the matter has been brought before the House. I do not wish to traverse your ruling, Mr. Speaker - far from it; but I desire to take advantage of the reference to the practice followed in the House of Commons to emphasize the immense difference that exists between the manner in which such matters are presented to the House of Commons, and the way in which this proposal has been submitted to us. In the former case it is unmistakably shown that the contracts were made upon the responsibility of the British Government, and were afterwards submitted in their completed form to the House of Commons. In this case, however, we are asked to vote away money without any particulars. Before voting the money for the extra subsidy to the steam-ship company, or apportioning the liability to be borne by the States, we are entitled to have before us the exact terms of the arrangement entered into. I hope that we shall have no more of these slipshod Ministerial methods. As the acting leader of the Opposition has already expressed his approval of the motion, I must be content to enter my protest.
– I hope that it will not be necessary for me to address the House at any length. The honorable member for Dalley will see that the amendment he has submitted cannot have any practical effect. The money proposed to be appropriated for the payment of the increased subsidy must be treated as transferred expenditure, and must necessarily be charged as is proposed. The honorable member for North Sydney directed attention to the fact that a different course of procedure had been adopted in the case of the contract for the mail service to the New Hebrides. He was quite correct, and that case was apparently parallel, but, as a matter of fact, when that contract was considered, it was decided that that should be regarded as involving new expenditure, because one of the new conditions was that the company should cease to employ coloured labour.
– I was not referring to the £400 that was paid on that account, but to the additional payment of £2,000 that was agreed upon.
– I did not know that the honorable member was aware of the condition regarding the exclusion of black labour from employment upon steamers engaged in the service. In addition to that, we arranged for an entirely different service. Provision was made for a new boat to carry ‘ on a two monthly service to the Gilbert and Marshall Islands. This almost doubled the distance covered by the service, we multiplied the number of stopping places to the extent of nearly doubling them, and made arrangements for land settlement. Therefore the contract was practically a new one, with conditions designed to confer benefits upon the whole Commonwealth. The present proposal is for an extension of an existing contract for two years only. At the end of that time it will be necessary to take the whole of the mail contracts of the Commonwealth into consideration.
– But a new agreement has to be made.
– No, this is merely a continuation of the old agreement with very slight alterations, in the direction of providing greater conveniences. The additional sum is being granted on the ground that the former subsidy was insufficient to defray the cost of the service.
– Does not the fact that an additional sum is being granted necessitate a new agreement?
– No. Every year a number of mail contracts fall in, and they are renewed at certain rates, perhaps higher or lower, than those hitherto prevailing. The money paid in respect of them continues to .to be transferred expenditure for the maintenance and continuance of the Department as at the time of transfer. The fact that contracts fall in, and new tenders are called for the same service, does not involve new expenditure, because the contracts are intended to secure the maintenance of the Department as at the time of transfer. The mail service proposed is precisely the same in every respect as that which was formerly carried on, except that a larger sum is to be paid to the company. As time goes on existing contracts will expire, and new contracts will be made involving changes of routes or other material departures, and these will involve new expenditure j but the renewal of a contract such as this cannot come within that category. The amendment of the honorable member can have no effect in view of the provisions of the Constitution, and 1 hope, therefore, that he will withdraw it. The honorable and learned member for Bendigo has called attention to what must be a prominent consideration when .we are dealing with any new contract in regard to the present service, or any others which fall in within the next two years, and he may rest assured that it will receive due consideration at the hands of the Government.
Mr. WILKS (Dalley).- After the explanation given by the Attorney-General, I desire to withdraw my amendment.
Amendment of the amendment, by leave, withdrawn.
Sir JOHN QUICK (Bendigo).- In view of the attitude assumed by ““Ministers, and the explanation and promises given, I desire to withdraw my amendment.
Amendment, by leave, withdrawn.
Mr. JOSEPH COOK (Parramatta).- I - desire to know whether the Government will submit the contract to the House ?
– I presume so ; I know of no reason why that should not be done.
Question resolved in the affirmative.
Resolved (on motion by Mr. Deakin) -
That the Bill be recommitted for the reconsideration of clauses 1, 2, 6, 30’, 41, 46, 48, 4!), 51, 63, and 70, and for the addition of new clauses 2a. 34i’, 34g, 34h, 34t, 34j, 34k, and 34L and a schedule.
In Committee (Third recommittal).
Clause 1 (Short title and divisions).
– The alterations which I desire to make in this clause are to be found in the index portion of it. I move -
That the words “Federal jurisdiction of States. Courts,” in put VI., be omitted, and that the words “Exclusive and invested jurisdiction” be inserted in lieu thereof ; also that the words “ and pensions,” in part VIII., be omitted.
Amendments agreed to.
Amendment (by Mr. Deakin) agreed to -
That the following new division be inserted as part VIIIa. “ Suits by and against the Commonwealth and the States. “
Clause, as amended, agreed to.
Clause 2 verbally amended and agreed to.
– I propose to transfer from the Procedure Bill the clause repealing the Claims against the Commonwealth Act, so that it shall follow clause 2. Consequently, I move -
That the following new clause be inserted : - “ 2a. The Claims against the Commonwealth Act, 1902 is hereby repealed.”
Proposed new- clause agreed to.
Clause 6 verbally amended and agreed to.
Amendments (by Mr. Deakin) proposed -
That clauses 34a to 34b be transferred, and, together with clauses 83 to 89, of the High Court Procedure Bill re-numbered as clauses 34f to 34t,, be inserted as part VIIIa.
We have already passed certain clauses in the High Court Procedure Bill, which the honorable and learned member for Northern Melbourne thinks might more properly be incorporated in this measure. As it appears to be convenient that they should be so transferred, I ask permission to introduce the seven clauses I have indicated. I desire to transfer the whole of that portion of the High Court Procedure Bill, relating to suits by and against the Commonwealth and the States, to this Bill. In the measure under discussion these clauses intervene between those relating to the appellate and the original jurisdiction of the High Court, and, therefore, they do not appear to be quite in their place. In view of the alterations that have been made in the Bill, they are slightly out of their logical order.
Amendments agreed to.
Clause 36 -
The appellate jurisdiction of the High Court with respect to judgments of the Supreme Court of a State, or of any other Court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall extend to the following judgments…… but so that an appeal shall not be brought in the case of an interlocutory judgment except by leave of the High Court……..
– I move-
That the words “ but so that an appeal shall not be brought in the case of an interlocutory judgment except by leave of the High Court,” be omitted.
Possibly this provision conflicts with the requirement of the Constitution that no regulation shall be prescribed by the Parliament which shall prevent the High Court from hearing and determining appeals from the Supreme Courts of the States. It is suggested that this provision might be regarded as an infringement upon that absolute freedom.
Amendment agreed to.
– I move-
That the following new paragraph be inserted - “ (c) Any judgment of the Supreme Court of a State exercised by a single Judge sitting in Chambers.”
I would point out to the Committee that in clause 17a we gave power to the Judge of the Supreme Court of a State to hear any matter, even although such matter was then pending in the High Court. It is necessary to provide in that case, as well as in others, that an appeal shall be allowed. We have formally provided for such an appeal, but I propose the new paragraph as a preferable mode of giving it.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 41 -
Act, from a decision of any Court or Judge of a State to the Supreme Court of the State, an appeal from the decision may be brought to the High Court;
Amendments (by Mr. Deakin) agreed to -
That the words “ would lie but for this Act,” line 1, be omitted ; also that the words “if the decision is given in the exercise of Federal jurisdiction,” lines 9 and 10, be omitted.
Clause, as amended, agreed to.
Clause 46 (Proceedings after removal).
– In clause45 we allude to “ any cause or part of a cause,” but in clauses 46, 48, 49, and 51 we. only allude to “ a cause.” Since a distinction is drawn in clause 45 between a cause and a part of a cause, it may lead to some ambiguity unless the same phrase is repeated in the other clauses I mentioned.
Clauses 46, 48, 49, and 51 amended accordingly, and agreed to.
Clause 63 (State laws to apply as to preliminary proceedings in criminal cases).
– I wish to recast the clause to make it a little clearer than it is. The alteration is rendered necessary by the fact that Part IV. of that Bill, relating to criminal jurisdiction, was struck out. Previously it was only necessary to provide for dealing with summary convictions and examinations prior to indictment, but now that Part IV. of the High Court Procedure Bill has been omitted we require to make additional provision for trial and conviction on indictment, so as to enable the States laws to apply to all those matters which are remitted to the States Courts.
– Is that leading up to the appeal?
– It leaves a right of appeal. The amendments are slight, but they will enable the clause to read a little more clearly.
Clause amended to read as follows, and agreed to : -
The laws of each State respecting the arrest and custody of offenders or persons charged with offences, and the procedure for -
The several Courts of a State exercising jurisdiction with respect to -
Provided that such jurisdiction shall not be judicially exercised with respect to the summary conviction or examination and commitment for trial of any person except by a Stipendiary or Police or Special Magistrate, or some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction.
Clause 70 -
– I desire to draw attention to sub-clause (1), which makes it obligatory on the part of the Judge to reserve every question of law which’ is raised by counsel for the accused, no matter how irrelevant itmay be.
– Is not that so in the States?
– Certainly not.
– It is so in Queensland.
– I do not know about the practice in Queensland, but it is not so in Victoria. Under the clause there is no discretion in the Court or Judge to reject irrelevant, unimportant, or unnecessary points. In Victoria it is in the discretion of a Judge to reserve such points as he may think necessary, but if a point is not reserved and the prisoner is convicted, he has the right to apply to the Full Court for a mandamus to compel his Honour to reserve the point. That clause has been found to work very well, and I would suggest to the Attorney-General that words ought to be inserted to protect the Judge from irrelevant and inconsequential points of law, or that the word “may” should be substituted for the word “ must.” The clause imposes upon the Judge an absolute dependence upon the counsel at the Bar; he is absolutely powerless. As an illustration of how a court may be broken down under this indiscriminate power of compelling it to reserve points, I would remind the Attorney-General of the Marine Court of Victoria, which became almost paralyzed because counsel raised point after point, which the court had to reserve. The next matter is that this power is reserved to counsel for the accused. There is nothing about the accused person himself. It is only his counsel who can claim the right to have a point reserved. That also ought to be amended. The right should be extended to the accused, in case he should be undefended. If it is the case in Queensland that only counsel can make this application, it is rather an unconsidered piece of legislation.
Mr. L. E. GROOM (Darling Downs).With all respect to the honorable and learned member for Bendigo, I think that it would be a peculiar position toleave the Judge in, to provide that he shall certify whether in his opinion a point is or is not frivolous. After all, many of these questions are matters of opinion, and what might strike one Judge as being highly frivolous might present a different aspect to another. As regards the second point to which the honorable and learned member has called attention, he argues that if the Judge refuses to note a point, there should be a right to go to a Full Court for a mandamus. In the first place, are we going to put a State Court in the position that the High Court is to have power to issue a mandamus against it?
– I do not say that ; I said it was the practice in Victoria.
– If we are not to compel the Judge to reserve every point raised, we shall practically have a Judge giving a decision without any right of appeal. The mandamus provision in the Victorian statute operates as an appeal, and unless the honorable and learned member intends to follow up his suggestion with a similar provision in this Bill, it would mean that there would be practically no appeal in a criminal case from the decision of a J udge who refused to state a case at the request of either the accused person or his counsel. Probably the AttorneyGeneral has borne in mind the factthat the States Courts are courts possessing considerable dignity, and that it is not desirable to have anything in the nature of mandatory writs issuing from the High Court against those courts. I may mention that in Queensland, in the case of Regina v. Griffin, a matter came up by way of mandamus from the Supreme Court to the Full Court of that State, and the Full Court said that they did not want to set a precedent of the Full Court issuing a mandamus to one of its own Justices on terms of equality with itself. If the honorable and learned member intends to suggest that we should put in another clause allowing a mandamus, there may be something in his point. In Queensland, the Judge has to reserve points when requested to do so. In the case put by thee honorable and learned member for Bendigo, it means that if the Judge refused to state a point, and the person had not sufficient means, he would be practically debarred from any appeal. I prefer the way in which the clause is put in the Bill, because it would be contrary to the whole scheme to insert a clause providing for a mandamus to issue from the High Court to a Judge of the Supreme Court. It would bo bringing in a new principle.
-When I first saw the clause I felt that it was extremely strong, butI have been assured that it has worked very well in Queensland, where it has been in operation for many years. I see the difficulty of bringing in an alternative arrangement, whereby the refusal of a Judge to state a point may be made a subject of appeal. I do not propose to amend the clause in that respect now, but shall not assume that it should not be amended if some alternative can be proposed.
– What about the right being restricted to counsel ?
– I think the honorable and learned member is absolutely correct there, and I propose to make an alteration on the spot. I move -
That the words “ of counsel for “ be omitted, with a view to insert in lieu thereof the words “ by or on behalf of.”
Mr. L. E. GROOM (Darling Downs).Has the Attorney-General considered the question of the Judge’s power to state a case himself? There have been cases where, on the trial of an action where a prisoner has been undefended by counsel, it has occurred to the Judge that a point ought to be reserved.
– That is provided for.
Amendment agreed to.
Clause, as amended, agreed to.
– It is proposed to add the very short second schedule which appears inthe High Court Procedure Bill, and is simply a form of the certificate of judgment.
Schedule agreed to.
Bill reported with further amendments.
Motion (by Mr. Deakin) proposed -
That the House do now adjourn.
– The consideration of the report on the Judiciary Bill, and, if it can be ready in time, the report on the High Court Procedure Bill. There will also be the Sugar Bonus Bill when it is returned from another place.
– Is it worth while calling the House together for that business to-morrow?
– It is important to advance the two legal measures in order that they may be finally dealt with next week, if not immediately, and the Sugar Bonus Bill is a matter of moment, seeing that it involves the payment of money to the States.
Question resolved in the affirmative.
House adjourned at 10.22 p.m.
Cite as: Australia, House of Representatives, Debates, 1 July 1903, viewed 22 October 2017, <http://historichansard.net/hofreps/1903/19030701_reps_1_14/>.