House of Representatives
2 August 1905

2nd Parliament · 2nd Session



Mr. Speaker took the chair at 2.30 p.m., and read prayers..

page 468

PETITIONS

Mr. BAMFORD presented a petition from sugar cane farmers and other residents on the Herbert River, praying that the Sugar Bounties Act 1903 be amended in certain particulars, and that the bonus now being paid upon sugar-cane grown by white labour be continued for a fixed period of at least ten years after 1906.

Petition received and read.

Mr. HARPER presented two petitions from the Presbyterian Church of Victoria, and from certain residents of Campbellfield, praying that stringent legislation be enacted to prevent the importation of opium . tor smoking purposes into the Commonwealth.

Petitions received.

page 468

PERSONAL EXPLANATION

Mr SKENE:
GRAMPIANS, VICTORIA

– I desire to make a personal explanation. In the Argus report of some remarks which I made last night, an inaccuracy has occurred to which I think it necessary to refer. The report says - , “ Mr. Deakin,” declared Mr. Skene, “tried the Government before a packed jury of his own political supporters, and he decided not only to move that amendment, but to go to the Labour Party and break up the coalition.” “ When do you say he did that ? “ asked Mr. Page, to which Mr. Skene answered, “ Before the delivery of the Governor-General’s speech, and at 7 o’clock on the same evening.”

I had no intention to question, in any way whatever, the Prime Minister’s conduct prior to the reading of the GovernorGeneral’s speech, and I should like now to put myself right by reading the Hansard report of what I said -

But what did the Prime Minister do? He called together his own immediate supporters, and tried the Government before a packed jury consisting of ten honorable members, including himself. He then decided to move his amendment, and not only so, but to go to the leader of the Labour Party and enter into an arrangement with him which would have the effect of smashing the coalition. I contend that we did not receive fair Play-

Mr Mauger:

– When does the honorable member say that that was done?

Mr SKENE:

– Between the time that the GovernorGeneral’s speech wa% delivered and 7 o’clock on the same evening.

Mr Watson:

– I went to the Prime Minister - what else was there to do?

Mr Kelly:

– I understood last night that there had been no collusion between the Prime Minister and the leader of the Labour Party.

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

– - The Prime Minister did not go to the honorable member for Bland, but the leader of the Labour Party went to him - that is a fine distinction.

Mr Deakin:

– That was not, I think, on that day.

Mr Watson:

– If I did go to the Prime Minister, what harm was there in that ?

page 469

QUESTION

POWERS OF THE PUBLIC SERVICE COMMISSIONER

Mr CROUCH:
CORIO, VICTORIA

asked the AttorneyGeneral, upon notice -

  1. Can the Public Service Commissioner, under the reclassification scheme, or by any regulation or practice, interfere with or lower the salary of those letter-carriers and others who, before the passing of the Constitution Act, were entitled to receive or did receive £i$o’ yearly ?
  2. Can the salary of Mr. Bond (of Bond v. The Queen) and of other public servants similarly situated, be reduced since Federation by the Public Service Commissioner or any authority but Parliament?
Mr ISAACS:
Attorney-General · INDI, VICTORIA · Protectionist

– The answer to the honorable and learned member’s questions is as follows : -

These questions are not, I think, such as are ordinarily within the scope of Ministerial information. They are questions as to my personal opinion on very difficult constitutional and legal matters, and not as to any official knowledge or official intentions which it is desired to have communicated to the House.

Under the circumstances, therefore, I consider it would be opposed to well established Parliamentary practice to offer my personal views on the questions submitted by the honorable and learned member.

I would refer the honorable and learned member to May’s Parliamentary Practice (10th Ed.), p. 237 ; Bourinot’s Parliamentary Procedure (3rd Ed.), p. 435; where it is said “Nor are questions usually put on matters which are at the time the subject of proceedings in the Courts, or which involve a question of law.” The citations are English Hansard, 3rd series, vol. 243, p. 198 ; ib. vol. 247 ; p. 430.

page 469

QUESTION

PROPOSED TRANSFER OF VICTORIAN POSTMASTERS

Mr KNOX:
KOOYONG, VICTORIA

asked the PostmasterGeneral, upon notice -

Whether he will lay on the table a list of the transfers of postmasters in Victoria proposed by the classification scheme of the Public Service Commissioner, together with that officer’s reasons for making such transfers?

Mr AUSTIN CHAPMAN:
Postmaster-General · EDEN-MONARO, NEW SOUTH WALES · Protectionist

– In answer to the honorable member’s questions, the Public Service Commissioner advises as follows : -

The transfers are fully set out in the classification under the respective offices.

The reason for making such transfers is to enable the postmasters who are entitled to promotion to the higher offices by reason of efficiency and seniority to secure their proper positions in the service.

Matters relating to classification really come within the Department of the Minister of Home Affairs, and questions relating to them would more properly be addressed to him.

page 469

QUESTION

RIFLE RANGE FOR BRISBANE

Mr PAGE:
MARANOA, QUEENSLAND

asked the Minister representing the Minister of Defence, upon notice -

What has been done since the advent of the present Administration with respect to giving the city of Brisbane and suburbs a rifle range?

Mr EWING:
Vice-President of the Executive Council · RICHMOND, NEW SOUTH WALES · Protectionist

– I am informed that - The site has been definitely chosen, and negotiations are now in progress for the acquirement of the land.

I may also say that instructions will be given to expedite the work as fiar as possible.

page 470

QUESTION

GARRISON ARTILLERY

Mr KELLY:

asked the Minister representing the Minister of Defence, upon notice -

  1. The number of additional garrison artillerymen required to complete one relief for the existing armaments in Sydney fortress?
  2. The further number required to afford two reliefs for the quick-firing armaments in the said fortress ?
Mr EWING:
Protectionist

– The answers to the honorable member’s questions are as follow: -

  1. To complete one relief for the existing service armaments in Sydney fortress, fifteen officers and sixteen non-commissioned officers and men would be required.
  2. Six officers and 131 non-commissioned officers and men.

In case of emergency, officers on the Unattached, Reserve, and Retired Lists would be required to serve, and it is anticipated that more than sufficient officers would offer their services.

page 470

QUESTION

OVERSEA IMPORTATIONS AND INTER-STATE TRADE

Mr KNOX:

asked the Minister of Trade and Customs, upon notice -

Whether he will lay on the table of the House a return, prepared at the instance of the exTreasurer, Sir George Turner, showing under the leading items of the Tariff the effect of the uniform Tariff on importations from abroad and on inter-State trade, having special regard to the effect of the inter-State trade in goods of Australian origin, distinguishing as to separate States?

Sir WILLIAM LYNE:
Minister for Trade and Customs · HUME, NEW SOUTH WALES · Protectionist

– The answer to the honorable member’s question is -

This return is a voluminous one, and will take some time to copy. I will lay it upon the table as soon as possible.

I wish to explain to the honorable member that there are a number of comments which have been made by the various Collectors, some of’ which the right honorable member for Balaclava struck out.

Sir George Turner:

– I think that those comments ought to be omitted. The Collectors should not express political opinions.

Sir WILLIAM LYNE:

– I quite agree with the right honorable member; but I wish it to be clearly -understood1 that I am not suppressing them. I shall not give those comments, but I shall supply the figures.

page 470

QUESTION

TARIFF COMMISSION

Mr MAUGER:

asked the Prime Minister,. upon notice -

Will he ascertain from the Chairman of theTariff Commission -

Are there any items in the Tariff on which* the taking of evidence has been completed ?

If not, when is there a likelihood of any item being completed?

If there are any completed items, is thereany prospect of an early recommendation from the Commission in reference thereto?

Mr DEAKIN:

– The answers to the honorable member’s questions are as follow: -

  1. No.
  2. After the Commission have taken evidence in. Tasmania and Western Australia they will be in a position to consider whether they can present a progress report containing an instalment of recommendations relating to items in the first fivedivisions of the Tariff. (See paragraph 9 of first progress report.) If the Commission, for want of a quorum, cannot forthwith visit those States, there is no prospect (pf a further report this session.

page 470

COMMERCE BILL (No. 2)

Motion (by Sir William Lyne) agreed’ to -

That leave be given to bring in a Bill for an Act relating to commerce with other countries.

Ordered -

That Sir William Lyne do prepare and bring; in the Bill.

Bill presented, and read a first time.

page 470

ELECTION OF CHAIRMAN OF’ COMMITTEES

Mr DEAKIN:
Minister of External Affairs · Ballarat · Protectionist

– I move -

  1. That the House do now proceed to the election of a Chairman of Committees.
  2. That in the event of more than two membersbeing proposed for the position the election shall be by open exhaustive ballot, and that so much, of the Standing Orders be suspended as would, prevent the House adopting such course.

This motion proposes that we should adopt the course which has been previously followed in reference to the selection of the Federal Capital Site, and affords the Housethe best means available to make a distinct decision in favour of any candidate.

Mr REID:
East Sydnev

– I think that if there are more than two candidates for the position, there is no other course open to us but to adopt this course; but personally I object to ballots if we can avoid’ them. If, however, there are more than two candidates, I think we cannot proceed by the ordinary methods.

Mr CONROY:
Werriwa

– I object to the suspension of the Standing Orders, and I presume, therefore, that they cannot be suspended. I think it is highly desirable that a full majority of the House should assent to the Chairman of Committees selected, because after all that officer has a great deal of work to do, and it is highly desirable that no small clique or combination of cliques should be enabled to elect anybody they may choose. The sense of the House should be obtained in the fullest possible manner, but under the system proposed, I am afraid that that result cannot be secured. I think that we should proceed by way of affirming whether or not one honorable member really has the support of the House.

Mr SPEAKER:

– Upon the point of order which has been raised, honorable members must be aware, if they refer to the Standing Orders, that the suspension of those orders cannot be obtained without notice having been given - unless by leave of the House, which must be unanimous - and by vote of an absolute majority of the whole House. When notice has been given, an ordinary majority suffices to suspend the Standing Orders.

Question resolved in the affirmative.

Mr SPEAKER:

– I am prepared now to receive nominations for the office.

Mr CROUCH:
Corio

– I have pleasure in moving -

That Mr. Charles Carty Salmon be appointed Chairman of Committees.

As I understand that there is to be some slight opposition to his re-election upon the present occasion, I propose to give a reason or two which I think should influence the House in favour of his selection. It may seem rather strange that I - who, during the greater portion of the present Parliament have occupied a seat upon the opposite side of the Chamber to the honorable member for Laanecoorie - should be found proposing his re-election to the office of Chairman of Committees. In this matter, however, I am following constitutional principle rather than party allegiance or personal friendship. The principle upon which I am acting is that which should be followed in electing not only the Chairman of Committees, but Mr. Speaker - the principle of selecting always the retiring officer, if he has given to the House or Committee discreet, able, and impartial service. Under these circumstances I ask that reasons should be given to me why the re tiring Chairman of Committees, who is the candidate that Iam now nominating, should not be re-elected. I need only point to the splendid precedent which has been set in this connexion by the House of Commons, where although Conservative Governments have held office for a number of years, the last six Speakers have been Liberals. I have, therefore, to look further to ascertain to what cause opposition to the honorable member’s re-election can be attributed. The first reason for that opposition is to be found in the fact that upon a certain occasion the honorable member for Laanecoorie exercised his vote against a Government. I submit that that is no reason why the election of any Chairman of Committees should be opposed. It is a very unfortunate circumstance, no doubt, but there are occasions when the Chairmanof Committees is called upon to exercise his vote. Very often he may not desire to take any side, but it becomes absolutely necessary for him to do so. Of course in this House it is unnecessary for Mr. Speaker to vote, but the Chairman of Committees is sometimes bound to vote, and the honorable member for Laanecoorie did so. I would further point out that he is responsible purely to his constituents and to his own convictions for whatever vote he gave. For anybody to attempt to punish the retiring Chairman of Committees simply because he cast a certain vote upon a certain occasion is scarcely a proper proceeding.

Mr Watson:

– That is a very unfair insinuation to make.

Mr CROUCH:

– It is very unfortunate that any body of men should entertain that view.

Mr Watson:

– Has anybody taken that view ?

Mr CROUCH:

– If nobody has entertained it, I shall be all the better pleased.

Mr Watson:

– Why make a dirty insinuation when there is no proof of it ?

Mr CROUCH:

– If nobody entertains that view, I shall be all the better pleased, and therefore I urge that more substantial reasons should be advanced why the retiring Chairman should not be re-elected. I am aware of one reason which has been urged in favour of anothercandidate being brought forward. Under ordinary circumstances, I should have voted for that candidate, because I have been sitting with him for a long time past, and he has my personal respect. I understand that a number of honorable members admit that it is a right thing for the retiring

Chairman to be re-elected, but they claim that, upon a certain occasion a previous Chairman of Committees would have Leer re-elected if it had not been for the fact that he was defeated through no fault of his own. but through not being returned to the House within a certain period.

Honorable Members. - Hear, bear.

Mr CROUCH:

– I would point out to those who cheer that -that honorable member was defeated, not through the fault of the honorable member for Laanecoorie, or of this House, ‘ but owing to a sheer misfortune. If, upon the reassembling of the second Parliament, I had had an opportunity of voting for the re-election of the honorable member for Riverina, I should have done sd. Unfortunately, however, he was not present - not through any fault of the honorable member for Laanecoorie, or of this House, or of his own. Consequently, it becomes my duty to propose the re-election of his successor, who is the retiring candidate, and I hope that he will be re-elected. I trust that this House will act upon the principles which have guided it in the past, and not allow any honorable member to be punished by refusing to re-elect him when he has shown himself in this House to be fair, impartial, and able in every direction.

Sir GEORGE TURNER:
Balaclava

– I have much pleasure in seconding the motion.

Mr STORRER:
Bass

– I beg to move -

That the words “ Mr. Charles Carty Salmon “ he left out, with a view to insert in lieu thereof the words “ Mr. John Moore Chanter.”

I regret that charges have been made against those who favour the selection of the honorable member for Riverina. It is not because of any decision on the part of the late Chairman of Committees that I submit the name of the honorable member, but I do so merely because he was the previous occupant of that office. He was defeated at the last election, not through any fault of his own, but through the error of an officer who was responsible to this Parliament. To a certain extent, therefore, it was the fault of Parliament itself that he was not here when the Chairman of Committees was elected. Consequently, I maintain that he has a prior claim to the position, and, seeing that whilst he occupied the office he gave every satisfaction, I have very much pleasure in submitting this motion.

Mr THOMAS:
Barrier

– I second the motion.

Mr WEBSTER:
Gwydir

– If there are no other nominations, I should like to say a word or two.

Mr SPEAKER:

-Will the honorable member kindly resume his seat? I am not quite sure at the moment whether I ought to permit any debate in this case. The direction of the House upon the resolution recently adopted is that the election shall be conducted in a certain method, and that the Standing Orders should be suspended so far as to enable the House to take that course. I am disposed to think that that suspension of the Standing Orders precludes any debate upon the merits of the candidates other than that which might be offered bv their proposers and seconders.

Mr Fisher:

– But we can make nominations nil round the Chamber and speak.

Mr SPEAKER:

– There is no doubt that what the honorable member says is true. It is perfectly competent for other nominations to be made. That point I am not discussing. The question about whichI am not quite certain is, whether any honorable member ought to be permitted to speak, not with a view to proposing or seconding any candidate, but simply with a view to debating the merits of the candidates proposed. I ask the honorable member for Gwydir not to press his claim tospeak for’ a few moments, and in the meantime I will look into the point and see if further debate ought to be permitted. The interval will provide an opportunity for other nominations to be made if any are forthcoming.

Mr Reid:

– In reference to the point to which you have referred, Mr. Speaker, asto the right of honorable members to speak on this question, I should like to point out for your consideration that the right todiscuss propositions submitted to the Houseis inherent in every honorable member, unless express! v taken awa)’. A question whichhas occurred to my mind, and which I shall submit for your consideration, is whether the terms of the resolution that we havejust carried interfere in any way with theright of honorable members to debate the propositions before the House. I should’ like you to consider whether the words in paragraph r - “ That the House do now proceed to the election of a Chairman of Committees,” necessarily mean that no honorablemember shall have the right to express hisopinion on a proposition for the appointment of a Chairman of Committees when it is= submitted for our consideration. I have no wish that there should be a discussion on the question of the appointment, and do not intend to take part in one; but the suggestion that any honorable member can be debarred from expressing his opinions on a motion, in the absence of something done by the House, declaring that there shall be no discussion, strikes one as being very extreme. I do not think that the words to which I have referred necessarily mean that a debate on any proposition regarding the appointment of a Chairman of Committees shall be debarred. The right of discussion is one of the inherent rights of the House, which, in my opinion, can be removed only by the use of very strong words. However, it is a matter for your consideration, sir, and I have only to say, in conclusion, that I. feel that the rights of honorable members are safe in your hands.

Mr SPEAKER:

– I entirely agree with what the right honorable member has said ; but the question is not quite so simple as he has just suggested to the House. Procedure by open exhaustive ballot requires not the proposing and seconding of a motion - which would of course be a proper basis of debate - but merely the nomination of a candidate. I was in some little doubt a few minutes ago whether I ought or ought not to require a seconder to a motion nominating a candidate. If there had been nothing before us but an open exhaustive ballot, all that I should perhaps have asked for would have been a nomination, which would not have been in the form of a motion requiring to be seconded, and could not have been followed by debate. But I had to bear in mind the fact that the resolution to which the House had agreed provided that an open exhaustive ballot should take place only in one contingency, that is to say, in the event of there being more than two candidates nominated. I could not tell, when I spoke a- few moments ago, whether there would be more than two nominated, but I had to provide against both contingencies. I had to guard against’ the contingency of there being only two nominations, in which case there would not be an exhaustive ballot, and also to guard myself so as to be ready to put the motion from the Chair in the ordinary way, in which case debate would follow as usual. If there be only two nominations the motion must be subject to debate, and must be put from the Chair in the ordinary way. But if three nominations be made we must proceed with the open exhaustive ballot, and at this stage debate must be precluded. I had both these contingencies in view when I spoke, and they seemed to me to involve some little difficulty, which has not been taken, into account by the right honorable member for East Sydney. If there be no further nomination, the two proposals, the one in the shape’ of a motion, and the other in the form of an amendment thereto, are now before the House, and are open for discussion.

Mr Watson:

– On the question of order, I should like to point out that if the mode of election to be adopted were that of an open, exhaustive ballot, it should not be in order for an honorable member to speak on the merits of a candidate whom he had nominated. Obviously, if an honorable member were allowed to speak in support of a nomination made by him, an opportunity should be given to honorable members to put before the House anything they might wish on the other side of the question. If we are, in future, to follow the procedure now laid down, it seems,to me that it would be well to have a. rule that, if the election is to be by open exhaustive ballot, no honorable member shall be allowed to do more than nominate a candidate. Unless such a restriction be imposed, we shall witness the spectacle of one honorable member putting forward all that can be said in favour of a proposition submitted by himself, whilst there will be no opportunity to put to the House what, perhaps, are salient points against the election of the candidate proposed.

Mr SPEAKER:

– I had considered that contingency, but. in view of the possibility that the open exhaustive ballot would not be resorted to, I had to guard myself by requiring each proposal to be moved by one honorable member - of course, with the possibil it v of debate^ - and seconded by another, with the possibility of debate. After that had been done, the whole matter might have been debated at such length as the House desired. As there have been only two candidates nominated, we have not to consider the provision for an open exhaustive ballot, and the whole question is now open to debate, the amendment being -

That the words “ Mr. Charles Carty Salmon “ be left out, with a view to insert in lieu thereof the words, “Mr. John Moore Chanter.”

Mr. WEBSTER (Gwydir).- We are about to enter upon a duty which, to my mind, is one of the highest that falls to our lot, and it is important that we should review any point that may tend to strengthen or to weaken the claims of a candidate for the position that we are called upon to fill. Speech-making is not popular on occasions of this kind, but one has to consider not the mere question of personal popularity, but his duty to those whom he represents. In these .circumstances I feel constrained to offer a few observations. The Chairman of Committees should be one who is able at all ‘times to exercise the great powers conferred upon .him with discretion ; it is in the highest degree essential that he should possess a judicial mind. I propose now to refer to an incident that occurred during last session, not because of any personal feeling, but because I feel that it is a matter that affects the whole House. Any honorable member may fall under the lash of a Chairman of Committees, and the episode with which I am about to deal, to my mind, shows that the honorable member for Laanecoorie, who has been nominated for the position, does not possess that judicial mind which is essential to enable a Chairman of Committees to satisfactorily, discharge the duties of his office. While the Estimates were under discussion last session, I had occasion to refer to a matter of which I had some knowledge, and was endeavouring to faithfully do my duty to the country. Judge of my surprise when the honorable member for Laanecoorie, who was then Chairman of Committees, availed himself of a standing order which should be exercised only with the greatest caution, to call upon me to discontinue my remarks on the ground that I had been gun tv of tedious repetition and irrelevancy. I claim that I can speak for more than eighteen minutes without indulging in tedious repetition. Whatever my faults, I do not think I can be charged with tedious repetition.

Mr Reid:

– Is not this a great waste of public time. Let us get on with public business.

Mr WEBSTER:

– The interjection is characteristic of the leader of the Opposition. While he is prepared to waste hours in discussing something which amounts really to nothing, he does not hesitate to complain that public time is being wasted when an honorable member is seeking to point out something which closely affects the interests of the House. The position taken up by the Chairman on the occasion to which I refer did not affect me to any material extent, because under the Standing

Orders I might have resumed my seat, and have risen almost immediately to address the Committee once more. As a matter of fact, however, it had a serious bearing on the expenditure of time involved in the transaction of the business of the Parliament. As the result of his intervention, we had an all-night sitting, which would not otherwise ha.ve occurred.

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

– At what hour did the incident occur?

Mr WEBSTER:

– I .have, nothing to say to those honorable members who so highly appreciate. our liberties that they are prepared to treat an important question of this kind with such levity as the honorable member for South Sydney is exhibiting. On the night in question the Government were practically wasting the time of the Committee by baiting honorable members. I have no desire, however, to deal with that aspect of the matter. Concerning the personal attributes of the honorable member for Laanecoorie, or his parliamentary experience, I have nothing to say ; but I contend that on the occasion in question he failed to exercise the powers of his position with due caution. On the other hand, the honorable member for Riverina, who was Chairman of Committees in the first Parliament, has been eulogized again and again for the firm and impartial manner in which he discharged his duties. I have never heard any complaint against him, and a point that we should bear in mind is that he was unable either to be nominated, or to seek nomination, when this Parliament met. That, was no fault of his ; it was due to the bungling of an officer of the Electoral Department, and any one of us may have the same thing happen to him at any time.

Mr Maloney:

– It has happened to me.

Mr WEBSTER:

– I believe that if the honorable member for Riverina had been declared duly elected when this Parliament first met, he would, without opposition, have been chosen Chairman of Committees. Therefore I appeal to the honorable member for Laanecoorie to consider the claim of the honorable member for Riverina to the position, and suggest that, as an act of magnanimity he might retire in his favour. I do not oppose trie re-election of the honorable member for Laanecoorie on personal grounds, but I think that in order that the rights and liberties of the members of this House may be protected, and to insure the proper and constitutional conduct of business, we should elect the honorable member for Riverina. I am not influenced by per- sonal motives, but take my stand on the public actions of the honorable member for Laanecoorie, for which he is responsible, and not I. I say this openly, because I always like to say, to his face, what I have to say against a man. Having done what. I believe to be my duty, I leave the matter in the hands of the House.

Mr Reid:

– The honorable member for Laanecoorie did his duty that night, if ever a man did.

Mr JOHNSON:
Lang

– In reply to the observations of the honorable member for Gwydir, I would remind the House that, so far from the action of the honorable member for Laanecoorie being the cause of an all-night sitting, it was not until about three o’clock in the morning, after a declaration had been made by members of the party, to which the honorable member for Gwydir belongs, that it intended to obstruct public business, that the action complained of was taken by him.

Mr Watson:

– That is incorrect.

Mr JOHNSON:

– Honorable members declared that that party was ready to sit all night, and would obstruct public business. I was here at the time. If my memory serves me aright, the honorable member for Gwydir had spoken three or four times to the question before the Chair before he was interfered with by the Chairman of Committees.

Mr Tudor:

– That is not so.

Mr JOHNSON:

– I am not absolutely certain of the number of times which the honorable member had spoken.

Mr Webster:

– I rise to order. The honorable member is trying to make the House believe that certain things occurred which did not occur, and is making a statement which is deliberately incorrect.

Mr SPEAKER:

– That is not a point of order.

Mr JOHNSON:

– My memory may be at fault, but my impression is that the honorable member for Gwydir was in a confused state of mind which may be described as groggy - I do not apply the term to his physical condition, but to his language.

Mr SPEAKER:

– I ask the honorable member to withdraw that expression.

Mr JOHNSON:

– I did not intend to use it in an offensive way, and I understand it to be a sporting term; but I withdraw it, if you, sir, consider it offensive.

Mr SPEAKER:

-I hope that the honorable member will strive to preserve the dignity of this Chamber, to which the use of such phrases in debate - even though they may be sporting phrases - is certainly derogatory.

Mr JOHNSON:

– I had no desire, by the use of the word, to make an offensive imputation; but I could not, at the time, think of any other word by which to describe the speech of the honorable member for Gwydir, on the occasion to which I am referring. The Chairman of Committees put the Standing Orders into operation against him only when no other alternative remained. If there were qualities more than any others which distinguished the honorable member for Laanecoorie, during the period of his occupancy of the Chair in Committee, they were the qualities of patience and forbearance, and the desire to do justice to every member in the House. I say this, although I have myself fallen under his official displeasure, and have had to bow to his ruling, when perhaps I felt that I was being treated a little harshly. I believe, however, that we should, on all occasions, do our best to support the authority of the Chair. The honorable member for Gwydir may be, perhaps unconsciously, largely swayed by personal considerations in opposing the re-election of the honorable member for Laanecoorie, although he thinks that he is opposing the re-election on public grounds.

Mr PAGE:
Maranoa

– I do not think that it was right for the honorable member for Lang to say that the honorable member for Gwydir was groggy on the occasion to which he referred.

Mr Watson:

– It was a most insulting insinuation.

Mr SPEAKER:

– The honorable member for Lang withdrew the remark, and when a remark has been withdrawn, no comments should be made on it.

Mr PAGE:

– I should like to call your attention. Mr. Speaker, to the meaning of the word. What will it mean to the honorable member for Gwydir if the statement that he was . groggy is spread about his constituency?

Mr SPEAKER:

– The honorable member for Lang having withdrawn the remark, ‘the matter is ended so far as the House is concerned.

Mr Webster:

– If I had heard him say it, he would not have repeated it.

Mr. REID (East Sydney).- As I was leader of the House on the occasion to which the honorable member for Gwydir has referred, I wish to say in fairness to the honorable member for Laanecoorie, that I am perfectly clear in my recollection that the Chairman warned the honorable member at least half a dozen times.

Mr Webster:

– I deny it.

Mr REID:

– I am speaking only from recollection ; I have not had time to look up the Hansard report of the debate. My distinct recollection is that the Chairman warned the honorable member for Gwydir several times before applying to him the extreme provision of the Standing Orders. I consider that the Chairman, in the proper performance of his duties, could not, on that occasion, have done anything else.

Mr WATSON:
Bland

– I should not have said anything about the qualifications of the honorable member for Laanecoorie, because I do not think it a good thing for the House to discuss the merits or demerits of candidates for offices of this sort, had it not been for the gratuitous reflection of the honorable and learned member for Corio upon a certain section of the House, in proposing the honorable member for reelection to the Chairmanship of Committees. Although I consider that the honorable member for Laanecoorie on the occasion which has been referred to absolutely lost the discretion which usually characterizes him. and warned the honorable member for Gwydir practically before he had had time to get going, so anxious was he to ensure that the Standing Orders should not be infringed-

Mr McWilliams:

– How long did it take the honorablemember for Gwydir to get going?

Mr WATSON:

– Only a few minutes, and those who know the honorable member’s capacity, know that he can talk for any length of time without getting out of order. I cherish no resentment against the honorable member for Laanecoorie for that action, nor do I cherish resentment against him - and I think I can speak in this matter for every member of our party - for the vote which he gave in this House on one occasion. Only a small-minded man could feel resentment against an honorable member for a vote given in this House in the discharge of his duty to his constituents, and the sooner that any one who could cherish such feeling goes out of Parliament the better. In voting for the honorable member for Riverina, I shall not be influenced by any such considerations. I think that the honorable member gave general satisfaction as Chairman of Committees in the first Parliament, and that but fora mistake of the Electoral Depart ment, he would have been re-elected on the assembling of the second Parliament, and would therefore have been chosen Chairman of Committees again this session. For that reason, I shall vote for the honorable member for Riverina.

Question - That the words “ Mr. Charles Carty Salmon “ proposed to be left out stand part of the question - put. The House divided.

AYES: 35

NOES: 27

Majority … … 8

AYES

NOES

Question so resolved in the affirmative.

Amendment negatived.

Original question resolved in the affirmative.

Mr SALMON:
Laanecoorie

– I desire to express my verykeen appreciation of the honour that the House has been good enough to confer upon me, and also to convey my sincere thanks to those who have again been generous enough to express their confidence in me. I trust that, with the assistance of honorable members, I shall be able to carry out my duties in a manner befitting the dignity of the office of Chairman.

Honorable Members. - Hear, hear.

Mr CHANTER:
Riverina

– I wish to return my sincere thanks to those honorable members who supported my candidature for the position of Chairman of Committees. I bow with a good grace to the will of the House, and I need hardly say that I shall accord to the Chair all the support I can.

Honorable Members. - Hear, hear.

Mr. JOHNSON (Lang). - I desire,b y way of personal explanation, to say that just before the division took place i used am expression which may have left an impression on the minds of some honorable members which I certainly never intended to convey. When I used the term “ groggy “ as describing the mental condition of the honorable member, I did not mean to infer that the honorable member was in any way a victim to the abuse of alcoholic stimulants. I had no such intention, but I used the expression as it is commonly applied to persons who are, while speaking, searching around for ideas when they have exhausted their own supply.

page 477

PAPUA (BRITISH NEW GUINEA) BILL

Debate resumed from 28th July (vide page 347), on motion by Mr. Deakin -

That, under standing order No. 214a, the proceedings on the Bill intituled, “A Bill for an Act to provide for the acceptance of British New Guinea as a Territory under the authority of the Commonwealth, and for the government thereof,” which were interrupted by the prorogation of the Parliament on Thursday, the 15th day of December, 1904, be resumed at the stage then reached in connexion with the said Bill, and that the further consideration in Committee of the whole House of the amendments made by the Senate in the Bill be made an Order of the Day for the next day of sitting.

Mr McDONALD:
Kennedy

– My principal objection to the Bill being taken up in the manner proposed is that I understood it was agreed upon that we should wait for the report of the Standing Orders Committee, with reference to the extent to which our Standing Orders relating to lapsed Bills are affected by the provisions of section 56 of the Constitution. If the High Court should hold that our present procedure is wrong we might land ourselves in all sorts of complications, because all the measures which have been dealt with under the standing order referred to in the motion might be declared ultra vires. I should like to know whether the Government have obtained the opinion of the Crown Law officers upon that question. So far as the Bill itself is concerned, I consider that, in view of the information which we have recently received from Papua, the Government would act wisely if they introduced an entirely new Bill, embodying certain amendments which are likely to render the measure more in keeping with the circumstances of the Territory as they are now known to us. I recollect that provision was made in the Bill for the appointment of a Legislative Council, consisting partly of official and partly of non-official members, and I think that in view of the latest advices it is undesirable that the non-official members should be appointed by the Government. At least half of the non-official members should be elected by the white residents of New Guinea, and, if necessary, provision should be made that they be paid for their services. The seat of government at Port Moresby is far removed from the goldmining districts, where the greater number of the white residents of the Territory are Located, and under the provisions of the Bill, as it stands, they will have little or no representation. Complaints are continually being made by the miners who have done a great deal, and are likely to do much more in the future, to promote settlement. To my mind, there is every prospect that the miners of New Guinea will yet discover a payable field there, because gold is known to exist in many portions of the Territory. I believe it is more than likely that they will yet find something even better than what has been discovered up to the present. I think that we should afford them every possible facility to prosecute their search for new mineral fields. I trust that they will not be harassed in the future as they have been in the past, and, for the reasons I have given, I hope that the Government will have this Bill re-cast. I would also strenuously urge upon the Prime Minister the desirableness of seriously taking into consideration the point arising out of section 56 of the Constitution. I am not an authority upon constitutional questions, but I have been informed by a very high authority in this State, that he is of opinion that the introduction of the Bill in this form is a violation of our charter of government.

Mr Higgins:

– A new message has been received during the present session.

Mr McDONALD:

– That is perfectly true; but the Senate knows nothing whatever about the message from the Governor-General, which has been received here. Besides, we have no Bill; and when we come to deal with the measure it is sought to revive, we shall be dealing with practically a new one. The Senate will know nothing of the message.

Mr Higgins:

– That is not required by the Constitution.

Mr McDONALD:

– I think that it is.

Mr Higgins:

– Only the House in which the Bill is originated requires to have the message.

Mr McDONALD:

– That is true. A message from the Governor-General has been brought down to this House.For what reason? It cannot be to enable the Bill to be introduced here, because, as far as we are aware, that Bill is at an end. We can only attempt to revive the Bill here upon a motion. But in the other House we cannot attempt to revive it at all. If the measure be sent down to us with amendments by the other Chamber, to all intents and purposes it is a new Bill, of which we know nothing. I admit that this is a question which requires grave thought, and I do hope that the Government will defer its further consideration until the Joint Standing Orders Committee have submitted its report upon the whole matter of lapsed Bills.

Mr CONROY:
Werriwa

– I quite agree with the remarks of the honorable member for Kennedy. According to section 56 of the Constitution, it wouldbe not only derogatory to the dignity of the House, but highly unconstitutional to adopt the suggestion of the Prime Minister in the present instance. That section provides -

A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed, unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated.

Those words are very clear, Then, apart from the difficulties of procedure which may arise in the discussion of this Bill, we have only to look at clauses 48 and 49’ of the Papua Bill to have any doubts which may exist confirmed. Clause 48 states -

There shall be payable in every year out of the revenues of the Territory, which, to that extent, are hereby appropriated accordingly, the sum of One thousand two hundred and fifty pounds for the salary of the Lieut. -Governor, and the sum of One thousand pounds for the salary of the Chief Judicial Officer of the Territory.

The following clause provides : -

There shall be paid out of the Consolidated Revenue Fund of the Commonwealth towards the revenue of the Territory the sum of Twenty thousand pounds in each financial year up to and including the financial year ending the 30th day of June, 1906, and thereafter such sums, if any, as the Parliament appropriates for that purpose.

Honorable members will see that those clauses provide for a distinct appropriation of money - a very distinct one indeed. I confess that I should be glad to know how the Prime Minister proposes to overcome that difficulty. It appears to me that it should only be necessary to point out the great danger of allowing this proposal to pass. Let us suppose that some action is taken in British New Guinea, as the result of which a lawyer is brought face to face with this Bill. The very first thing that he would do would be to show that it was not in conformity with the provisions of the Constitution.No doubt the proceedings would be expensive, but I feel sure that if the matter were submitted1 to the High Court that body would determine that the Papua Bill had not been properly passed, that we had exceeded our powers, and that no Standing Orders of ours could override section 56 of the Constitution. My attention has now been drawn by the Clerk of the House to message No.5, by which it appears that a message from the Governor-General, relating to the Papua Bill, has been received during the present session. That fact disposes of one portion of the argument which I have addressed to the House. The other question at issue is whether it is wise to allow a Bill to be brought forward under these Standing Orders, whether it would not limit debate to suchan extent that we should find ourselves unable to deal with this measure afresh. We know that there is a good deal to be said in favour of the saving of time which might result, but I think that experience has generally shown that where a measure had been revived by resolution more time has been occupied in debating the resolution than would have been absorbed if the Bill were introduced afresh. Under these circumstances, I must object to the proposal of the Prime Minister in this case.

Mr McCAY:
Corinella

– I should like to again draw the attention of the Prime Minister to the matter which I mentioned in connexion with Bills which appropriate revenue yesterday afternoon. The honorable and learned gentleman was then precluded from replying, though I think I may say, without revealing any confidences, that he does not think it necessary to delay the consideration of this proposal. Personally, I express no opinion upon, these Standing Orders or their merits, because this House has thought the subject of sufficient importance to refer it to the Standing Orders Committee in connexion with Bills which require a message from the GovernorGeneral. I have the honour to be a member of that Committee, and therefore I do not express an opinion upon the subject either way, beyond pointing out that it was considered of sufficient importance to warrant its reference without a dissentient voice to the Standing Orders Committee of both Houses, if the Senate will agree to the adoption of that course. It seems to me, therefore, that the Bill is one which the Government should postpone for the few days that will te required to enable this matter to be considered. I am not at all sure that the contention of the honorable and learned member for Werriwa, that matters of this kind come within the purview of the High Court, could te sustained before that tri.bunal. But, apart from the merits of the Standing Orders, and their applicability to Bills of this character, I suggest to the Government the desirability - in view of the question having been raised, and of their concurrence in the decision of this House yesterday - of deferring the consideration of the Bill for the present. It is not as if they had not plenty of Bills with which to proceed. Those which the late Government left behind - even if the present Ministry had no measures of their own in hand - and I understand that they have - are numerous enough to provide this House with ample work. We know that there are Bills ready for discussion, so that the public business need not !be delayed in any way. I therefore urge that thev should allow the Joint Standing Orders Committee to report upon the applicability or otherwise of these Standing Orders to Bills which require to be originated by a message from the GovernorGeneral, before proceeding to act upon the assumption that not only do the Standing Orders apply to such Bills, but that they Apply to all Bills. I cannot understand this impetuous haste on the part of the Government - this extraordinary new-born zeal for pushing on these particular measures.

I quite admit that it is desirable that we should provide Papua with a Constitution as soon as possible. My own attitude upon that matter last session, in connexion with certain Senate amendments, clearly demonstrates that. But the shelving of the Bill at that time involved a delay of six months ; in the* present instance it may not cause a delay of more than six. Consequently, I say that it is desirable, in the interests of the proceedings of this House, to delay dealing with this matter until the Standing Orders Committee have reported upon the applicability or otherwise of these orders to Bills which require to be originated upon message from the Governor-General.

Mr REID:
East Sydney

– Since we have referred a similar matter to the Standing Orders Committee, it seems rather at variance with the course which we took - in view of that reference, which was agreed to by the Government - to proceed now as if the matter were of no consequence. If the Bill were only in its earlier stages, the point which I aim making would not, perhaps, be quite so strong. But I understand that the consideration of the Bill was almost concluded last session. I think that we were considering the final amendment of the Senate when Parliament was prorogued.

Mr McCay:

– The Bill would have been law now but for the action of the honorable member for Kennedy.

Mr REID:

– If we proceed with its consideration now, our attitude will seem rather inconsistent with our action of yesterday. It was then thought a matter of sufficient importance to warrant a meeting of the Joint Standing Orders Committee to decide what is the proper course to take; but in the meantime we are asked to adopt what may prove to be an improper course, and to pass the Bill under circumstances which the Joint Standing Orders Committee may report are unwarrantable and irregular. The Bill, I think, might well wait for the few days necessary to enable that body to submit its report. I quite agree with the honorable and learned member for Corinella, that the matter is of importance. I do not wish to express any strong opinion upon the point which has been raised, beyond saying that the question is of importance, and that we should only be showing proper respect to the tribunal to which a similar matter has been referred, if we postponed its consideration for a few days. I see that there is plenty of work upon the notice-paper, so that the adjournment of the debate would not cause any block in the transaction of public business.

Mr DEAKIN:
Ballarat, Minister; of External Affairs · Protectionist

– The motive of the reference of the standing . order under which we are acting, to the Joint .Standing Orders Committee, because it was suspected of invalidity was not in my mind, and as far as I know, it was not in the minds of other honorable members. The view which was entertained by most of us in that connexion was that these Standing Orders were possibly not expressed in the fullest manner, and were capable of being better, and more fully set forth. On that ground, I made the suggestion to the honorable and learned member who called attention to the question, and who was proposing some special tribunal for its consideration, that the Committee which had framed these Standing Orders was the proper body to reconsider them if they needed further attention.

Mr McCay:

– The question that he raised was that a message from the GovernorGeneral might be necessary. That is the point now involved.

Mr DEAKIN:

– Exactly. In my opinion, section 56 of the Constitution offers no obstacle, and the procedure we are now taking is perfectly legitimate from a constitutional point of view. That is the opinion I have received, and it also happens to be my own.

Mr Glynn:

– It may probably be within the letter, but I think it is against the spirit of the Constitution.

Mr DEAKIN:

– The honorable and learned member is aware that there has been a fresh message this session.

Mr Glynn:

– Quite so, but originally a message was received with the Bill. The. message to which the honorable and learned gentleman refers was one received this session on a Bill introduced last session.

Mr DEAKIN:

– That precedes the reconsideration of the Bill.

Mr McCay:

– The reconsideration not of the Bill, but of a single amendment made by the Senate.

Mr DEAKIN:

– The course proposed by the Government will allow all amendments of the Senate to be reviewed.

Mr McCay:

– There is only one question.

Mr DEAKIN:

– Nevertheless, the mere fact that we restore the Bill to its former stage in regard to that one amendment, which is still in suspense, will afford an opportunity for all the amendments that were made to be reconsidered.

Mr McCay:

– But the Senate’s amendments fall far short of being the Bill itself.

Mr DEAKIN:

– Necessarily. Our object is to concentrate attention on those amendments, and those alone. I am confining myself at present to the technical aspect of the question. I admit that there is force in the honorable and learned member’s contention, and, in the circumstances, if I had adopted the views suggested by the honorable and learned member for Wannon, and with more doubt by the honorable and learned member for Corinella-

Mr McCay:

– I have not expressed any opinion upon the question.

Mr DEAKIN:

– If I had followed the opinion of the honorable and learned member for Wannon, and had adopted his reasons for proposing to again remit these Standing Orders to the Standing Orders Committee, there- would have been some inconsistency in the action we now contemplate ; but, with the view that I hold, I think there is none. This measure has been ‘ debated at great length in both Houses, a number of divisions have taken place upon it, and we are still open to consider all the amendments made last session by the Senate. Our failure to pass the Bill twelve months ago has resulted in great loss to Papua. I am very reluctant that there should be a single month’s delay if it can be avoided, because, even if the Bill be passed at once, some time must elapse before its full benefits can be obtained. The question to which the honorable member for Kennedy has called attention depends on ‘ the passage of the Bill. It is true that there is not embodied in it any mandate to afford the representation he desires : but when the question was raised on a previous occasion, it was pointed out that the new conditions that we hope will be established under the Bill, would lead to a reconsideration hereafter of the representation upon the Executive Council of Papua. The passing of the Bill, therefore,- is a first and the necessary preliminary, in order that the development of Papua may reach’ a stage that will call for the action to which the honorable member has referred. I would, therefore, ask honorable members to allow this stage to pass, in order that we may deal with the amendments as rapidly as possible. If, in the meantime, the Standing Orders Committee should raise any serious question, we shall have an opportunity to reconsider the matter, although, if no such question were raised, I should not regret it.

Question resolved in the affirmative.

page 481

JURY EXEMPTION BILL

Second Reading

Mr GROOM:
Minister of Home Affairs · Darling Downs · Protectionist

– In rising to move -

That the Bill be now read a second time,

I may explain that it is simply a small machinery measure intended to complete the judicial machinery already created by this Parliament. It was laid upon the table by my predecessor in office, and was the first to be introduced during the present session. By section 15 of the High Court Procedure Act, it is provided that the laws of a State relating to the qualifications of jurors, &c, shall be binding upon the High Court when it sits in that State. The principle is this : that when the High Court is sitting in a certain State, and it is necessary for the purposes of a trial to have a jury, the law prevailing in that State in relation to the qualification or disqualification of jurors, shall be binding on that tribunal. Under the laws of the States, certain classes of persons, consisting of army officers, members of the Legislature, executive councillors, civil servants, municipal councillors, and various other public officials and classes of persons are exempted from serviceat jury trials. By reason of their position in the community, and the importance of the particular callings or offices they hold, they are exempt from the duty which falls to the lot of an ordinary citizen to serve upon a jury.

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

– Why are public servants to be exempt?

Mr GROOM:

– Because they are already performing public services which require their attention. If a public servant were liable to serve on a jury he might practicallybe taken away from the performance of one class of public work to discharge another which is carried out by certain classes of citizens who, by reason of their connexion with the commercial life of the community, are selected to act in that capacity. It would be highly undesirable, for example, to ask public servants of the Commonwealth to serve on a jury to be called upon to decide whether the Commonwealth is liable upon a certain set of facts. The Bill provides that -

The following persons shall be exempt from serving as jurors whether summoned so to serve under the law of the Commonwealth or of a State : -

The Governor-General.

The members of the Federal Executive Council.

The Justices of the High Court and of other Courts created by the Parliament.

The senators and the members of the House of Representatives.

The members of the Inter-State Commission.

The officers ofthe Public Service of the Commonwealth.

The members of the Permanent Naval and Military Forces of the Commonwealth.

It is quite possible that some of the persons enumerated may be already exempt under State laws; but inasmuch as it is highly desirable to have a distinct and clear statement of their position in this respect, this Bill has been introduced. It is practically an addition to the provisions of the High Court Procedure Act.

Mr Reid:

– Does it affect the State law in State Courts, or only State Courts exercising Federal jurisdiction ?

Mr GROOM:

– The Bill will exempt the persons named, so far as the Commonwealth is able to do so, from all services, either Federal or State.

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

– How far can we go?

Mr GROOM:

– We are merely proposing to exercise whatever constitutional powers we possess. This is not an attempt to override any State law.

Mr Kelly:

– We possess the power to override the laws of a State which are in conflict with a law ofthe Commonwealth.

Mr GROOM:

– Only in matters in respect of which we have jurisdiction. We can override State laws only in respect of those matters with which we are expressly authorized to deal. This Bill purports to be only the exercise of such legislative power as we absolutely possess.

Mr McCay:

– Will the Minister kindly tell us, before he resumes his seat, whether he thinks that it goes beyond the constitutional power?

Mr GROOM:

– My own opinion is that it will exempt Commonwealth officers from serving upon State juries.

Mr Glynn:

– And very properly so.

Mr REID:
East Sydney

– I think that the object of the Bill is a very good one. The only question that has occurred to me is whether we are now assuming to legislate for matters of State concern, with respect to which we have really no power to legislate. I do not wish to raise any objection to the Bill, but the question to. which I have just referred occurred to me while the honorable and learned gentleman was moving that it be read a second time. The Bill was introduced by the late Government, so that I admit that we were responsible for it before. But the point that has occurred to me, after further consideration of the question, is whether, by the language of the Bill, we are proposing to interfere with State powers, over which we have no jurisdiction. Would such a thing be convenient? lt might give rise to strong objections in the States. It might be said that we were assuming to exercise legislative powers that we did not possess. There is another reading of the Bill - that the rule is to apply in Federal Courts or in State Courts exercising Federal jurisdiction. To that extent, I think it is perfectly valid. In providing that the members of the Executive Council shall be exempt, I presume our intention is that Federal Executive Councillors on active service - under summons to the Executive( Council - should be exempt. Under our Constitution Executive Councillors do not resign their positions after they leave office; they continue to remain members of the Executive, but are not summoned. The number of such persons, however, would be so small that I do not think it is necessary to suggest any alteration in that respect.

Mr. HIGGINS (Northern Melbourne).This Bill must be a good one, because it had not only the imprimatur of the late Government, but of the ante-penultimate Government. It was in- preparation while the Watson Government were in office, and is absolutely necessary in order to prevent interference with the public duty of Federal officers. The list of exemptions contained in the Bill is much smaller than that with which we are familiar in the Victorian law. Shire councillors and various other functionaries are exempt from serving on juries under the law of this State, and a policeman or other officer engaged in the work of getting a jury together often finds the task a very confusing one. As to what has been said ‘with regard to the Bill interfering with State Courts, I do not see why we should not interfere with them to the extent of providing that th’e work to be done by Federal officers shall not be hindered in order that State Courts may be served. I think that we have power to isolate our officers ; that we have power to say that States duties shall not touch them; It is certainly not unreasonable to lay it down that our public servants shall not be dragged away from their duties to serve for seven,, fourteen, or .twenty-one days on a juryI shall support the second reading of theBill, and hope that it will be passed through, all its stages as soon as possible.

Mr ISAACS:
Attorney-General · Indi · Protectionist

.. - I should like to say a word or two with, regard to what the leader of the Oppositionhas said as to interference with State jurisdiction and State law. It might well becontended, and no doubt will be contended,, on behalf of the Commonwealth, that it is beyond the jurisdiction of State legislation to impose duties as jurors, upon any of these Commonwealth officials. At the same time it is as well to have it upon the statute-book of the Commonwealth that it is the will of Parliament that they shall not be so required toserve, because there are cases well known in American law in which the fact that Congress had intimated its will in regard to certain matters determined whether thosematters were beyond the competency of the Legislatures of the States. The measurecannot do harm, and it may do good.

Mr WILKS:
Dalley

– Although I am somewhat nervous in addressing myself to this question after several ex-Ministers and all the lawyers in the House have expressed themselves in favour of the measure, I wish to say on behalf of the citizens of theCommonwealth that I know no reason why senators and members of the House of Representatives should be exempted from serving on juries. The general body of electorsare not glad to serve on juries, and would individually evade the duty where they could, although they are told that it is their highest privilege.

Mr Isaacs:

– What would happen if Mr.. Speaker were summoned to serve on a jury ?”

Mr WILKS:

– A better man could not besummoned. Either the members of theSenate and the House of Representatives are not competent to serve on juries, or they should not be exempted from giving their services in the law courts of the country when required so to do. It seems to methat the passing of this measure will givethe public occasion to say that we avail ourselves of every opportunity .to create a closepreserve for our own advantage.

Mr Reid:

– We are depriving ourselves of the opportunity to earn juror’s fees.

Mr WILKS:

– The average juror doesnot think much of the fees which he gets. Why should the Commonwealth be deprived” of the service on juries of members of the Senate and the House of Representatives?”

I do not think it can be thought that we would not give a just verdict. If what is sought is to the convenience of members of the two Houses of the Federal Parliament, I ask why similar consideration is not shown to the convenience of those belonging to the trading classes, and of the public generally. I can understand the proposed exemption of the Governor-General and the Justices of the High Court ; but I protest on behalf of the public against the exemption of the members >of the Federal Parliament.

Question resolved in the affirmative.

Bill read a second time.

In Committee :

Clause 1 agreed to.

Clause 2 -

The following persons shall be exempt from serving as jurors whether summoned so to serve under the law of the Commonwealth or of a State :-

The Governor-General.

The members of the Federal Executive Council.

The Justices of the High Court and of other Courts created by the Parliament.

The senators and the members of the House of Representatives.

The members of tlie Inter-State Commission.

The officers of the Public Service of the Commonwealth.

The members of the Permanent Naval and Military Forces of the Commonwealth.

Mr GLYNN:
Angas

– Is the Minister of Home Affairs quite sure that the clause will apply to jurors summoned to serve in State matters, as. well as to jurors summoned to serve in Federal matters? Indictable offences have, under the Constitution, to be tried before juries. There may therefore be juries which are Federal juries, and, prima facie, when we legislate we legislate in Federal matters. There may be a doubt whether the word “’ jurors “ covers jurors sitting in all cases, whether tried under the Federal laws or under State laws. The Juries Acts of the States provide for the summoning of jurors, and the point I raise is whether, if the trial were the trial of a matter having no relation to the Federal Constitution or the Federal laws, ‘ the clause is sufficiently explicit to cover persons summoned to serve as jurors? Is not the term “ juror,” as used in the clause, confined to a person summoned to serve at the trial of an indictable offence under the Constitution ?

Mr GROOM:
Minister of Home Affairs · Darling Downs · Protectionist

– The clause purports to apply to persons summoned to serve as jurors under both Commonwealth and State laws, and I think that its language is explicit enough to cover all cases.

Mr Glynn:

– Does it apply to persons summoned under the Juries Acts of the States? Does it apply to persons summoned to serve in connexion with the trial of State offences, as well as in connexion with the trial of Federal offences?

Mr GROOM:

– A man may be brought up on a charge of simple larceny, and the jurors summoned to serve at the trial will be summoned under a State Act, but this measure will say that the persons described in the clause shall be exempt from such service. At present the only laws we have for the summoning of jurors are State laws.

Mr Glynn:

– A man would be summoned under a. State law to serve as juror for the trial of a. Federal offence.

Mr GROOM:

– The Commonwealth law says that a person summoned to serve as juror for the trial of a Commonwealth offence shall be summoned under a State law, and this measure provides .that the persons described in the clause shall be exempt from serving at the trial of either Commonwealth or State offences. I think that the clause is sufficiently explicit.

Mr McCAY:
Corinella

– The clause, by specifically setting out what persons shall be exempt, says, by implication, thai all others shall not be exempt. Now, although the Justices of the High Court, and of other Courts created by this Parliament, are specifically exempted, I suppose it is not intended that the Judges of States Courts shall be summoned to serve as jurors at the trial of Commonwealth offences.

Mr Isaacs:

– That is provided for by section 15 of the High Court Procedure Act, which adopts for Federal* offences the State laws as to jurors.

Mr WILKS:
Dalley

– On the second reading I protested against the passing of this measure. I should like now to add that, when the Socialism advocated by the Labour Party arrives, every one will be a public servant, and as the officers of the Public Service are exempt from serving as jurors, it will be impossible to summon juries, at all. As I still see no reason for exempting senators and members of the House of Representatives, I move -

That the words “ The senators and the members of the House of Representatives, The members of the Inter-State Commission,” be left out.

Mr REID:
East Sydney

– I am afraid that there would be a strong objection to a member of the Commonwealth Parliament serving as a juror at a trial in which the Commonwealth was interested.

Mr Wilks:

– Such a person could be challenged.

Mr REID:

– The objection, to my mind, is a serious one. The point I raise is whether, in the event of the passing of the Bill) if some person belonging to a class named in the clause were summoned as a juror under Slate laws to try a State proceeding in a State Court, the exemption could be claimed. If it were claimed, the presiding Judge would have to decide, as a matter of law, whether the measure applied to a State proceeding. Do my learned friends opposite think that his decision would be that it did apply? To my mind, there is room for considerable doubt. The strict reading of the Constitution1 seems to be -that, whilst our legislation sets aside inconsistent State legislation, it does so only in regard to certain specified subjects.

Mr Isaacs:

– Not in regard to certain specified subjects, but in regard to any subject on which we have power to legislate.

Mr REID:

– Quite so. Have we power to legislate as to the qualifications of a juror in a State Court? As the Bill was drafted by the late Government, I do not wish to raise difficulties in connexion with it, but to me it is doutbful whether our powers extend so far as some honorable members appear to think, they do.

Mr ISAACS:
Attorney-General · Indi · Protectionist

– I quite see the importance of the point raised by the right honorable gentleman, but, as I said before, I think it would be held, even without this provision, that Commonwealth functionaries are not to be dragged from the performance of their duty by any provision under a State law. For instance, could it be thought for a moment that the Justices of the High Court were to be dragged into a State court as jurors in a criminal case. Surely, without any provision in a Commonwealth Act, it would be held that they were exempt from such service. At the same time, there is no harm in including in a Bill dealing with exemptions from service as jurors the reference to States Courts, because it could never then be argued that the mention in the exemption of the Courts of the Commonwealth, and the failure to mention the Courts of the State, was an indication of the intention of ‘ Parliament that the Act should not extend to the Courts of the

States. The provision is an indication of the will of Parliament that our functionaries shall not be called upon to serve asjurors.

Mr Reid:

– The object is perfectly clear and proper.

Mr ISAACS:

– Not only so, but it iscarried out as far as we can by legislation carry it out. We cannot do more.

Mr. GLYNN (Angas). - I do not think there can be any question as to our power to deal with this matter. Even if we did not make provision such as that now included in the Bill, there would be no power on the part of a State, under its laws, to compel a member of this Parliament to serve on a jury or to attend at a court of justice. May says -

The privilege of freedom from arrest has alsobeen construed to discharge members and their servants from all liability to answer subpoenas, in other Courts and to serve on juries.

That has been the privilege of members of Parliament for many years, and I think that, apart from legislation, the same rule will hold good so far as the Federal Parliament is concerned. We are carrying out an immemorial practice, which has been tosome extent cut down recently by some of the States.

Amendment negatived.

Mr. WILKS (Dalley). - Federal members already enjoy immunity from the payment of income tax, and it is now sought to exempt them from service as jurors. Perhaps the best thing to do would be to> exempt them from the operation of every law, whether of the States or of the Commonwealth. Honorable members appear tobe very anxious to exempt themselves from liability to any service, and at the same time to push other people forward and compel them to perform their duties as citizens.

Mr CONROY:
Werriwa

– The point is whether a man who is called up:>n toperform certain public duties should be exempted from the necessity of attending tocertain other duties which might interfere with those which he is specially appointed’ to carry out. We are merely determiningthat the duties which Commonwealth officers and others are. called upon to dischargeshall not be interfered with, owing to their being required to act in other capacities.

Clause agreed to.

Bill reported without amendment; reportadopted.

Bill read a third time.

page 485

TEMPORARY CHAIRMEN OF COMMITTEES

Mr. SPEAKER, in pursuance of standing order 25, laid upon the table his warrant nominating Mr. Batchelor, Mr. Mauger. Mr. McDonald, and Mr. Wilks, to act as Temporary Chairmen of Committees.

page 485

EVIDENCE BILL

Second Reading

Mr ISAACS:
Attorney-General · Indi · Protectionist

– I move -

That the Bill be now read a second time.

This Bill, like the preceding one, is vouched for by three Governments.

Mr Wilks:

– So many hatchings should spoil it.

Mr ISAACS:

– I am sure that the honorable member for Dalley will heartily support this Bill, in the interests of the bleeding citizens of the Commonwealth, because it proposes to save their time and money. The measure is a very useful one, and quite in line with many others of the same class on the statute-books of the States. It aims at shortening the procedure and lessening the expenditure involved in mere formal proofs in the Law Courts. It requires that the Federal Courts, including the Inter-State Commission, and the Commonwealth Conciliation and Arbitration Court, and the State Courts exercising Federal jurisdiction, as well as all persons authorized by the law of the Commonwealth, or of a State, or by the consent of the parties to take evidence, shall take judicial notice of and recognise without any proof the seal of the Commonwealth, the fact that certain functionaries hold their positions when documents purporting to bear their official seals are presented, and take cognisance of the proclamations and other formal documents issued by the Governor-General, or under the authority of a Minister of the Commonwealth. It also provides, as in the States laws for the admissibility of copies of public books and documents, under certain circumstances, and for facilitating proof of the votes and proceedings in Parliament, of the Government. Gazette, and of the judicial proceedings of the High Court, or other Federal Courts, or any Justice or Judge, by means of the production of a copy of such proceedings. What I have described represents practically the whole of the Bill. The measure presents no contentious features whatever, but is intended to simplify and facilitate legal proceedings, and as such I hope that it will receive the very strenuous support of honorable members.

Question resolved in the affirmative.

Bill read a second time.

In Committee :

Clause 1 agreed to.

Clause 2 -

In this Act, unless the contrary intention appears - “ Courts “ includes the High Court, the Commonwealth Court of Conciliation and Arbitration, all Courts exercising Federal jurisdiction, the Inter-State Commission, and all Courts of the several States and parts of the Commonwealth, and all Judges and Justices and all arbitrators under any law of the Commonwealth or of a State, and all persons authorized by the law of the Commonwealth or of a State or by consent of parties to hear, receive, and examine evidence.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– I should like to have an explanation in regard to one matter concerning which I am in some doubt. It appears to me that an attempt is being made in this clause to regulate the law of evidence in the States Courts, apart from the occasions upon which such Courts are exercising Federal jurisdiction. I should like the Attorney-General to say whether the Federal Parliament has jurisdiction to lay down additional rules of evidence for the States Courts when they are dealing with purely State affairs. It will be seen that the word “ Courts “ includes -

The High Court, the Commonwealth Court of Conciliation and Arbitration, all Courts exercising Federal jurisdiction, the Inter-State Commission -

Those are, of course, Federal Courts; but the clause goes on to say - and all Courts of the several States and parts of the Commonwealth.

I wish to know whether it is intended to make provision additional to that which already exists in the States in regard to Courts dealing with State matters only ; because if so I can see some danger. If it were held that we had exceeded our powers in attempting to provide additional laws of evidence in the States Courts, dealing with State matters only, some very lengthy proceedings might at some future time be set aside on the ground that evidence had been admitted under this Act which was ultra vires.

Mr GLYNN:
Angas

– I think very grave doubt is raised by the honorable and learned member for Parkes as to the constitutionality of the Bill, so far as its provisions extend beyond merely Federal proceedings. The Bill has, of course, been copied from State Acts, in regard to which no such question could be raised. The rules made under a State Act of Parliament would have to be taken cognisance of by the various courts of that State, but here we are seeking to prescribe that the seal of the Commonwealth and certain other things shall be taken cognisance of by the courts of the States. How can we direct the courts of the States as to the evidence they are to accept with regard to certain matters. It would not be competent for the Imperial Parliament to prescribe that the seal of the Imperial Government should, without any proof, be recognised throughout the British Possessions.

Mr Crouch:

– Surely they have the power to do that.

Mr GLYNN:

– I do not think so. Prior to Federation, one State Government could not prescribe that the seal of its Executive Council should be taken cognisance of by other States. We are now practically prescribing that the signature of a Federal Minister must be accepted as proved in a certain manner in a State court, and I do not think we have any jurisdiction in the matter. How canwe prescribe the way in which various State Courts are to take cognisance of Federal documents in purely State matters?

Mr ISAACS:
Attorney-General · Indi · Protectionist

– I quite agree with my honorable and learned friends that there is a doubt in this matter. This Bill has been inherited, and the question raised is one that is not quite clear under our Constitution.

Mr Glynn:

– It is evidently a Bill which the Cabinet agreed to take as read.

Mr ISAACS:

– There is no doubt that we have power to legislate upon certain subjects which are mentioned in the Constitution, and that we have power to bind every individual in the Commonwealth by our legislation upon those subjects. Section5 of the covering sections of the Constitution provides that -

This Act and all laws made by the Parliament of the Commonwealth under the Constitution shall be binding on the Courts, Judges, and people of every State, and of every part of the Commonwealth, notwithstanding anything in the laws of any State.

Since we have power to legislate upon certain subject matters, and since our power of legislation extends to binding the

Courts, as well as the people of the States, I can quite understand that we ought not, as a Commonwealth Parliament, to assume that we cannot compel everybody to recognise our Acts. That is the idea I think which led to the insertion of these words. I quite agree that it is a subject which is not free from doubt ; but I think that we ought to assert our power in this way ; that is, for instance, as we have power to make a Commonwealth seal we have power to say that every person shall take notice of that seal, and that every Court in Australia shall recognise it.

Mr Skene:

– The Attorney-General means that they shall recognise it as the seal of the Commonwealth.

Mr ISAACS:

– Yes.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– The honorable gentleman is selecting the one feature of the Bill under which difficulty is least likely to arise.

Mr ISAACS:

– I take that as an instance because it is a clear instance. Clause 4, which mentions such persons as the Governor-General, Ministers of State, and Members of Parliament, and other officers, stands upon exactly the same footing. If we appoint a certain person to be President of the Court of Conciliation and Arbitration, why cannot we, in the one instance, as well as in the other, declare that every person in the Commonwealth shall recognise his position? If it is a good Federal law, it must be recognised all through the Commonwealth.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– That is a layman’s argument.

Mr ISAACS:

-I am not putting this view as a definite final opinion. I merely say that in this Bill we are safeguarding, as far as we can, the power of this Parliament. We wish to lessen costs in these matters if we can. If we cannot, it will be for the High Court ultimately to say that we cannot. The same remarks are applicable to the proof ofcertain documents, with regard to the proceedings of Houses of Parliament, and the judicial proceedings of the High Court. While I am quite at one with those who urge that the matter is not by any means free from doubt, I say that it is a provision which we should, if we can, retain in the Bill for the purposes I have mentioned.

Mr. HIGGINS (Northern Melbourne).I appreciate what has been said by way of criticism of this measure; but I confess that I do not feel so strongly as does the

Attorney-General the doubt which he has expressed. The position is simply this ; we have certain officers and certain books; and we do not wish those officers and books to be dragged into Court at the will of a private individual, unless it is absolutely necessary to do so.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– We all admit the utility of the provision.

Mr HIGGINS:

– I was developing that line of argument. What is proposed is that certain officers shall be dealt with in the same way as we dealt with them in the Jury Exemption Bill. In the case of evidence, we also have power to say to every individual in the Commonwealth, “You shall not drag our public documents, our Cabinet minutes, or our public officers ‘into Court when we have, provided you with a summary means of proving the facts which you desire to establish.” There is nothing in this Bill beyond protection of the Commonwealth procedure, and protection of our Federal servants and Federal documents. Let us take the matters mentioned in it in their order. Clause 3 relates to the official seal of the Commonwealth. We provide that that seal shall speak for itself. We say that it shall not be necessary to drag an officer from the Commonwealth service to prove that that seal was affixed to any particular document. The next clause relates to the signature of the Governor-General and other officials. Surely we do not want to drag the Governor-General into any court to attest his signature ! In this Bill

Ave simply give litigants a means of proving their case at less pains. Then we relieve our officers of the need of proving certain signatures. Then we come to certain documents, proclamations, commissions, orders, or regulations which are issued or made by the Governor-General, or by the authority of a Minister. Under the provisions of this measure these can be proved simply by producing a copy of the Commonwealth Gazette, certified to by the Government Printer. (These clauses do not impose disabilities upon the powers and privileges of litigants. On the contrary, they confer a privilege upon them, and enable them to avoid expense by proving certain things without the necessity of calling upon original persons or original documents. We have full control over our own officers and documents for our own purposes. We could, if we liked, put the whole of them upon an island and declare that nobody shall touch them. But we do not go so far as that. We simply say that it is to the advantage of litigants and for the protection of our officers and documents that these provisions have been inserted. Take the proof ‘ of judicial proceedings. We do not purport to say that a judgment by a State Court must be proved in a certain way, but we do say that the judgment of a Federal Court must be proved in a certain way. It can be proved by the production of a document purporting to be an examined copy. If the Committee choose to pass this measure I do not think that it will be found to be invalid, and, as the Attorney-General has very properly, said, it can do no harm. To say the very least, it is well for us to assert our powers over our Federal officers and documents as far as we can. I do not entertain the doubt which has been expressed, but I defer to those who do. I repeat that the passing of the Bill can do no harm, and will probably effect some good.

Mr REID:
East Sydney

– I think that there is a very great deal of force in the point which has been raised by the honorable and learned member for Parkes. If we possess power to do what is proposed in this clause we also have power to alter and regulate the procedure of State Courts in every conceivable manner. If we have the power to do this we can alter their laws of evidence and their methods of administering justice.

Mr Higgins:

– This is an additional power.

Mr REID:

– I think that the Bill follows upon lines of well-considered legislation. I do not see any objection to it at all on the surface, but 1 think there is the serious point that we are, for certain Commonwealth purposes, taking to ourselves the power of regulating the procedure of the Courts of the States.

Mr Isaacs:

– Suppose that those Courts declared that the Commonwealth seal could be proved only by the oath of the man who affixed it?

Mr REID:

– In a matter of State procedure ?

Mr Isaacs:

– Yes. Surely when we have the power to legislate on that subject we ought to have power to declare that the seal’ shall be recognised throughout the Commonwealth.

Mr REID:

– If we have power to legislate on the subject the objection vanishes. Given that power, there would be no trouble, because upon every conceivable subject upon which we have the power to legislate, our laws would set aside any State law, and set aside every inconsistent State law. The main point at issue is that if we possess jurisdiction to prescribe the methods by which the State Courts shall be conducted, we have the power under the Constitution to regulate the laws of evidence in those Courts and in State proceedings. That is the serious question, andi I see nothing in the Constitution which enables us to go into a State Court and make a law in regard to the conduct of its business in State matters which is not covered by any defined power in our Constitution. There aTe some very large rules in this Bill, no doubt all well intended. These may relate to an order of a Minister on any conceivable subject, or a notice in the Commonwealth Gazette, which may be a private notice, having nothing whatever to do with the Commonwealth Government or with the Commonwealth Courts. Some person mayhave inserted in the Commonwealth Gazette, or some document which he alleges is the Gazette, a notice upon a private matter, and under this Bill we should make that notice evidence in a matter which may be .a private one, with which the Commonwealth has nothing to do, and which forms the subject of litigation in a State Court. If we can do that, we can regulate the procedure of State Courts, not only in matters which concern the Commonwealth, but in all matters, because the document in question may be produced in a State Court, and in private litigation, between A and B. These are conceivable circumstances, and I am not prepared to say - even if it were Commonwealth procedure - that we could make the thing good.

Mr Isaacs:

– But all these matters must have reference to Commonwealth! action.

Mr REID:

– In the sense of affecting an advertisement in the Commonwealth’ Gazette ?

Mr Isaacs:

– Oh, no.

Mr REID:

– That matter is included in this Bill.

Mr Isaacs:

– That does not ‘make the thing more relevant.

Mr REID:

– We must not carry our searches for power loo far in Acts of Parliament, which may raise endless points or trouble and difficulty. The excellent object pf the Bill is manifest. It has been thoroughly well considered in every way.

Mr. BRUCE SMITH (Parkes).- In answer to the observations’ of the Attorney-

General and the honorable and learned member fori Northern Melbourne, I should like to say .a few words. I entirely agree with the honorable and learned member for Northern Melbourne as to the utility of this measure. I should be very glad if I could think that we have power to pass it, in order that we might bring about some unison in regard to certain branches of the law of evidence. But the honorable and learned member stated that we ought to “ assert our power.” I think that is rather a dangerous doctrine. We cannot make power by asserting it.

Mr Higgins:

– I did not say that. I said that I echoed what had been stated by the Attorney-General to the effect that we ought to assert our powers as far as we could constitutionally.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– We are all agreed upon that. I intend to show presently that this measure differs very materially’ from the last Bill with regard to the idea of “ chancing it.” The last Bill dealt with jurors, and its only effect would be to lead to the withdrawal of certain persons from doing duty as jurymen , and their withdrawal could never have invalidated any proceedings. But I think it is clear that if this Bill be passed in its present form it may operate with very great hardship upon suitors in State Courts. If it might, then we should pause. I can easily imagine a case, extending over a week or two in a State Court, to which the law of evidence laid down here for Commonwealth Courts was applied. In such a case the point might be taken, on appeal to the High Court, that the State Judge had no right to admit evidence in accordance with the principles contained in this measure.

Mr Isaacs:

– That is the way in which the point might arise.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– If the High Court ultimately determined that we had no power to pass additional rules for the States Courts, the whole of the proceedings might be upset, to the great cost of some individual citizen. There would be little chance of his being reimbursed from the Commonwealth; funds on the ground that the Parliament had passed a measure that was ultra vires. The difficulty might be remedied, however, by negotiations with the States. If this be such a desirable Bill, and I admit that it is, negotiations might be entered into bv-and-by with a view to the Legislatures of the States passing measures, that would have the same effect. We are all agreed, I believe, that this is one of those measures, of which we have had very few in this Parliament, that just come upon the border line - between the circle of rights of the Commonwealth and the circle of rights of the States. The principle of “ chancing it “ should have no application to such a measure as this, which differs from that with which we have just dealt, in that proceedings in which resort had been had to its provisions might be invalidated. The Attorney- General has drawn attention to one or two instances which might arise under the Bill that are perfectly fair, and arenot likely at any time to create a difficulty. I wish to point out to him, however, that there are provisions in the Bill that might easily give rise to difficulties.I refer now to clause 6, which provides that -

Whenever any book or document of the Commonwealth is of such a public nature as to be admissible in evidence on its mere production from the proper custody, any copy thereof or extract therefrom shall be admissible in evidence in all Courts if … .

it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is intrusted.

Let us take the case of an action of an entirely State character, tried, say, in Western Australia - an action between citizens with which the Commonwealth itself has no concern. Let us suppose, further, that, in order to prove the case on behalf of the plaintiff or defendant, it is necessary to show some entry in a Commonwealth book. According to this Bill, it would be possible to put in as evidence what purported to be a copy of an extract from a Commonwealth book purporting to be signed merely by the officer who had charge of that book.

Mr Isaacs:

– A copy or an extract.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– An extract would have to be a copy ; it would be an extract consisting of a copy of part of the book. I do not know what the law of evidence is in Western Australia, and I doubt whether the Attorney-General does.

Mr Isaacs:

– I am sure that I do not.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– The supposititious case, which I have just taken, might engage the attention of the Court for a week, and if this Bill were law, the Judge might say, on his attention being drawn to it, “ The document put in purports to be a copy of a Commonwealth book. It purports to be signed by the officer in charge of the original. Under our law, it is not evidence without further proof, but under this Act it is, and I shall admit it.” The proceedings might involve an expenditure of some thousands of pounds, and if ultimately the High Court held that that portion of the measure applying this law of evidence to State Courts was ultra vires, the whole proceedings would be upset. I have taken a probable case.

Mr Isaacs:

– It is a fair one.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– The AttorneyGeneral will admit that my argument is not affected by any suggestion as to the case of the Governor-General’s signature. Cases of that sort, I am sure, would be provided for by the laws of the State: We are concerned in seeing that evidence which touches the Commonwealth machinery shall be provable as easily as possible; but I do not think that we are sufficiently interested to pass this measure on chance. There should not be any difficulty, if the Bill were passed without the provisions as to State Courts, in inducing the Governments of the different States to introduce separate Bills carrying out those provisions of this measure to which exception may be taken. It would be highly desirable if we could make this law, but it seems to me that this part of the Bill is a vulnerable one.

Mr ISAACS:

– We are indebted to the honorable and learned member for ventilating this matter, which is one of very great importance. As to the remedy which he has suggested, however, I think that we ought not to express our dependence upon the laws of the States in these matters, unless we are absolutely sure that we are in that position of dependence. The Congress of the United States of America has taken the same course as we propose to take in this Bill.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– That leads one into a consideration of the Constitution of the United States.

Mr ISAACS:

– I do not think there is more reason in their case - perhaps there is not as much - than there is in ours for saying that the necessary power is granted. It is provided by section 908 of the Judiciary Act of the United States that a certain edition of the laws of the Federation - I am omitting immaterial words - as well as treaties, shall be competent evidence of the several public and private Acts in all Courts of law and equity, and of maritime jurisdiction, and in all the tribunals, and public offices of the United States, and of the several States, “ without any further proof or authentication thereof.” I am not aware that any difficulty has arisen under that provision, and I think that our Constitution affords, certainlyby parity of reasoning, much more hope of our proposal being effectual than does the Constitution of the United States. If the honorable and learned member will turn to section 51 of the Constitution, which enumerates the powers of the Commonwealth, he will find that by sub-sectionxxv., we are empowered to legislate for the recognition throughout the Commonwealth of the laws, the public acts, and records, and the judicial proceedings of the States. That is to say we can say that the laws, records, public acts, and judicial proceedings of one State shall have judicial recognition in every other State. If we can do that, it is difficult to imagine that we cannot make the same provision in respect of Commonwealth Acts, records, and judicial proceedings.

Mr Reid:

– It may be very difficult, but as the one power was specifically given, why was not provision made for the other ?

Mr ISAACS:

– I recognise the point of the right honorable member’s argument ; but when we have in addition to that power the right to legislate on “ matters incidental to the execution of any power,” and so on, as provided by sub-sectionxxxix., I think it must be admitted-

Mr McCay:

– To what power does the Attorney-General say that this is incidental ?

Mr ISAACS:

– I hold that we have power to say that there shall be Commonwealth public books and records, and that they shall have the effect, if honorable members like, of appointments. Suppose we said that when a person’s name was recorded in a certain book, he should be deemed to be appointed to a certain office, the production of such a record would be evidence that he was properly appointed. I am taking the case to which the honorable and learned member for Parkes has referred. If a copy of some public book were produced, in accordance with this Bill, in an action tried between A and B, citizens of the same State, in Western Australia, I take it, that it would be going a long way to say that we had not the power to provide that public recognition should be taken all over the Commonwealth of a certain fact, if it were evidenced in a certain way.

Mr Glynn:

– It would relate to the Executive. We have power to legislate with regard to the Federal Executive.

Mr ISAACS:

– This will be a law of the Commonwealth, giving effect to certain Commonwealth documents.

Mr Higgins:

– Are our books to be dragged all the way to Perth?

Mr ISAACS:

– The utility of our proposal must be recognised. We surely have power to say that a copy of, or extract from, a public book shall have the same effect as the production of the book itself. If we can do that, it is going very little further to provide-

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– But this provision goes further than that, because it provides that, if a copy purports to be a copy by the signature of a person purporting to be the officer in charge of the book, it shall be evidence.

Mr ISAACS:

– I think the one point is involved in the other ; if we can do the one thing, we can do the other. I am taking the simplest case, because while not free from doubt, I think the probability is that this provision will be effectual.That is only my personal opinion, and I give full weight to that which has been expressed by the honorable and learned member for Parkes. If we can say that a public book is to have a certain efficacy, we can surely say that an extract from that book shall also have a certain efficacy, and we can make of that extract a Commonwealth document. If we make it a Commonwealth document, our law should under the fifth covering section of the Commonwealth Constitution, be recognised by every Court and every individual throughout Australia.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– The AttorneyGeneral is taking the most obvious part of my illustration; but there is the other part, where an officer purports to be the officer in charge. However, I do not wish to persist in my objection, if he is willing to take the responsibility.

Mr ISAACS:
INDI, VICTORIA · PROT

– It is a responsibility which we have all to take. The provision is framed to save expense, and to obtain simplicity. If we cannot do what is proposed, we make the admission that the States could say that no recognition shall be given to a Commonwealth document, except in a most cumbersome way, and would put it into the power of a StateParliament to enact that no Commonwealth Act or appointment shall be recognised unless the Governor-General himself appears to swear to it.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– That is an extreme case.

Mr ISAACS:

– It is; but it proves the point. I think that it will be wise to keep this provision in the Bill. My honorable friend has put a case in which great expense might be caused to a litigant, but against that we may submit that there might be very little expense in any case, and that the probable saving of expense for all time is a good set-off to the problematical expense to one individual in some single instance.

Clause agreed to.

Clauses 3 to 10 agreed to.

Clause 11 (Proof of judicial proceedings).

Mr CROUCH:
Corio

– I ask the AttorneyGeneral why should evidence of any judicial proceeding of the High Court or of any Federal Court, have to be given by the production of a document purporting to be a copy thereof, and - purporting to be certified as a true copy by a registrar or chief officer of the Court - when, under clause 6, it is sufficient for a copy of or extract from any book or document of a public nature to be proved if- it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted?

Mr ISAACS:

– So far as clause 6 is concerned, it is impossible to say what book or document may be required in evidence, and to define those to whose custody such books or documents have been entrusted. Clause 11, however, deals with judicial proceedings the records of which are in the custody of the registrar or chief officer of the Court.

Mr Crouch:

– Does not “ Court “ include any Court exercising Federal jurisdiction ?

Mr ISAACS:

– It does not include a State Court. As this document would be in charge of a registrar or chief officer of the Court, it is not too much to ask that a copy shall be certified to by him. If it is desired to prove without producing the original proceedings that judgment was given against an individual it is surely not too much to ask for this certificate. I think that the same provision is contained in the Acts of the States.

Mr Crouch:

– I understand that a minor Court, say a Court of Petty Sessions, becomes a Federal Court when it exercises Federal jurisdiction.

Mr ISAACS:

– There is the High Court, and there may be other Federal Courts created by the Federal Parliament, and there are State Courts exercising Federal jurisdiction; but State Courts exercising Federal jurisdiction are not Federal Courts, and section 26 of the Acts Interpretation Act defines a Federal Court as the High Court, or any Court created by the Parliament.

Mr Crouch:

– Then I am to understand that clause 11 does not refer to State Courts exercising Federal jurisdiction?

Mr ISAACS:

– No.

Mr Crouch:

– Why not?

Mr Glynn:

– Because they have their own laws.

Mr ISAACS:

– The Judiciary Act provides that the State laws shall apply.

Clause agreed to.

Mr. CROUCH (Corio).- I move-

That the following new clause be inserted : - “ 12. Affidavits, declarations, and affirmations, in all Courts, may be sworn, made, or declared before any Court or person which, under any law or authority of the Commonwealth or of a State, has power to administer oaths.”

The Bill was printed only last night, and a copy of it did not reach me until this morning, so that I have had no opportunity to circulate copies of the proposed new clause. I have proposed it because I know, as a legal practitioner, that country suitors are put to great inconvenience at times to get a person qualified to take their affidavits, declarations, or affirmations.

Mr Robinson:

– Would the honorable and learned member give this power to any justice of the peace?

Mr CROUCH:

– Yes, because all he would be required to do would be to witness a signature. At the present time the taking of affidavits has occasionally to be delayed for as much as three weeks until a commissioner for the taking of affidavits visits the country town near which the person wishing to make an affidavit resides, and suitors are often put to great expense in order to get affidavits made at places distant from large centres of population.

Mr Higgins:

– The honorable and learned member’s proposed new clause is not confined to Federal evidence.

Mr CROUCH:

– I take it that the words “all Courts” are defined in clause 2.

Mr Higgins:

– Then they include all the Courts of the several States.

Mr CROUCH:

– I do not think that we shall be going beyond our powers in agreeing to my proposed new clause. The passing of the clause may entail the loss of certain small fees to persons practising as commissioners for the taking of affidavits - and I myself am one, both for the State and for the High Court - but I feel that it will serve the public interest in making for economy and the convenience of litigants.

Mr ISAACS:

– I think that the honorable and learned member will see that the proposed new clause is foreign to the nature of the Bill.

Mr Crouch:

– In my opinion it is covered by the title.

Mr ISAACS:

– Nearly all that it provides, if not all, is already law. Section 79 of the Judiciary Act provides that -

The laws of each State, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising Federal jurisdiction in that State in all cases to which they are applicable.

Mr Crouch:

– Does the honorable and learned gentleman mean to say that under that section a country justice of the peace could take an affidavit?

Mr ISAACS:

– If he could do so under the State law.

Mr Crouch:

– He cannot do so under the State law.

Mr ISAACS:

– The matter is one which we should carefully consider. Section^ 22 of the High Court “Procedure Act provides that -

The Chief Justice may issue commissions to persons within pr beyond the Commonwealth, authorizing them to administer oaths and take affirmations for the purposes of the High Court and proceedings therein.

  1. think that the matter is covered absolutely, so far as the High Court is concerned, and that there are just as great facilities, so far as the State Courts exercising Federal jurisdiction are concerned. Whether we should go further, and provide that for Federal matters these facilities should be extended over a wider area than exists in regard to State matters deserves consideration. I. suggest that the honorable and learned member should withdraw his amendment, and I will take the matter into consideration, and See him in regard to it. I shall be glad to do everything I can, even by introducing, a special measure, to provide facilities for procuring evidence under proper safeguards at. the smallest expense. I shall give the matter my most careful consideration, and I trust that the honorable member will not press his amendment, as we are anxious to forward the Bill to the Senate.
Mr ROBINSON:
Wannon

– I would point out that if the suggestion of the honorable and learned member for Corio were carried out, an affidavit in a Federal matter which was being tried in a State Court invested with Federal jurisdiction could be sworn before a Justice of the Peace. lr» Victoria that practice would probably lead to the belief that an affidavit could be similarly sworn in an ordinary State matter before the Supreme Court. Practising, solicitors in Victoria would then be in a worse position than ever, because when they sent affidavits to the country to be sworn they would probably be made before Et Justice of the Peace, and would be rejected by the States Courts. I think we should aim at uniformity of practice as far as possible.

Mr PAGE:
Maranoa

– After listening to the remarks of honorable and learned members, it seems to me that they desire to complicate matters as much as possibleIt is all very well for members to laugh, but from the layman’s point of view I can quite sympathize with the view presented by the honorable and learned member for Corio. A case in Queensland, in which I was interested, was hung up for nine months because we could not get affidavits filed.

Mr Robinson:

– Perhaps the personsconcerned would not make the affidavits that were required.

Mr PAGE:

– Yes, they were quite ready to do so; but the difficulty was to find a commissoner before whom they could be sworn. The honorable and learned member for Corio is proceeding in the right direction to perform a great public service, and if he presses his amendment I shall support him. I shall certainly not allow the matter to pass without calling for a division.

Mr. HIGGINS (Northern Melbourne’).. - I think that the honorable and learned member for Corio has performed very good service in calling attention to a public want. I have frequently heard of the difficulties that are experienced in getting affidavits sworn in outlying districts owing, to there being no provision in Victoria under which Justices of the Peace can take affidavits. I understand that such power does exist in Queensland, but that in New South Walesthe practice is similar to that, followed in Victoria. We had proof of that only last year in connexion with’ a painful petition which was presented in connexion with one of the honorable members of this House.

I would commend to the honorable and learned member for Corio the suggestion that he should give the Attorney-General an opportunity to considerthis matter, which is not to be dealt with lightly. The responsible law officers should look into the question before an amendment is accepted.

Mr McWilliams:

– In most of the States, Justices of the Peace are authorized to take affidavits.

Mr HIGGINS:

– But inasmuch as in New South Wales and Victoria that practice does not exist, the proposed reform is a very important one.

Mr McWilliams:

– Cannot affidavits be sworn before Justices of the Peace in New South Wales?

Mr HIGGINS:

– I understand not; but certainly in Victoria they cannot be so sworn.

Mr Robinson:

– Not so far as they relate to matters before the Supreme Court ; but when they relate to cases in County Courts affidavits can be sworn before Justices of the Peace.

Mr HIGGINS:

– I understand that one of the principal difficulties that arose in connexion with a disputed election for Riverina, was due to the fact that a certain affidavit was sworn before a Justice of the Peace when it ought not to have been so sworn.

Mr McCay:

– A Justice of the Peace was, I believe, prosecuted for administering an oath that he had no right to administer.

Mr HIGGINS:

– I speak with a knowledge of only the Victorian law, and I submit that the proposed amendment would involve a very important reform. I think the Attorney-General is right in stating that this Bill is not the place in which such a provision should be made, and that the amendment proposed would not be valid. The objections raised by the honorable and learned member for Angas and the honorable and learned member for Parkes with regard to our exceeding our jurisdiction, would very strongly apply to this case. It is proposed that affidavits may be sworn in any matter before a Justice of the Peace in any part of Australia.

Mr Crouch:

– For use in all courts, as defined by the Bill.

Mr HIGGINS:

– That would include any State Court, even a court of petty sessions.

Mr Crouch:

– How does the honorable and learned member reply to the statement of the Attorney-General, that this practice has already largely been provided for?

Mr Isaacs:

– After reading the amendment again, I think that it is already the law.

Mr HIGGINS:

– The truth is that, toa large degree, it is law by virtue of the Judiciary Act, which incorporates as part of our Federal laws certain State laws, permitting of affidavits being made before Justices of the Peace. Still there is a gap left which the honorable and learned member for Corio wishes to fill, because in certain States no power is given to swear affidavits before Justices of the Peace.

Mr Isaacs:

– The amendment does not carry us any further, so far as that is concerned.

Mr HIGGINS:

– Exactly. I do not think the amendment should be pressed, because we should not proceed rashly. We sympathize with the object of the honorable and learned member, which we say has already been attained in part by other legislation. As to the balance, we contend that the amendment would not carry him any further.

Mr GROOM:
Minister of Home Affairs · Darling Downs · Protectionist

– I think that the proposal of the honorable and learned member for Corio would be better dealt with in a special Bill dealing with oaths and affirmations generally. The Queensland law carries out the idea suggested by the honorable and learned member, by providing that any affidavit may be sworn before a Justice of the Peace ; and all Justices are qualified to take affidavits without a commission being issued for that purpose. Therefore, so far as Queensland is concerned, what the honorable and learned member desires has been accomplished, because the Judiciary Act provides that the laws of the States as to procedure and the admission of evidence and competence of witnesses shall prevail in the courts invested with Federal jurisdiction. If we deal with affidavits solely in one clause of this measure, we shall be legislating piece-meal upon a very large branch of the law. I believe that it will be necessary to introduce a Bill dealing with statutory declarations and affirmations in Commonwealth proceedings generally, and that it will be more fitting to introduce a provision, such as that proposed, in a measure of that kind. In any case, it is desirable that the effectof thesuggestion should be considered, because we should be introducing diversity of practice in some of the States, whereas our object should be to, as far as possible, harmonize the practice of the States and the Commonwealth. In Queensland, where the practice of swearing affidavits before Justices of the Peace is followed, some justices very strongly object to the work thrown upon them without any fee or charge, which in some cases occupies two or three hours a day. We should also consider whether, in all matters, justices of the, peace should be authorized to take affidavits. From what I know of the circumstances under which affidavits are sworn, the signature is often regarded as a mere formality, and the justice does not always recognise the importance of the act that is being performed. I think that it is highly desirable that the whole matter should be carefully considered, and made the subject of a provision in a special Bill at a later stage.

Mr. CROUCH (Corio).-I should like the honorable member for Maranoa to agree to the arrangement which I have made with the Attorney -General, who has promised that he will inquire into the matter, and, if possible, introduce an amendment in the Bill when it is before the Senate.

Mr Isaacs:

– We shall consider the matter, and see how far the honorable and learned member’s desire can be achieved. I shall give the matter my fairest consideration.

Mr Reid:

– The amendment does not fall within the scope of the Bill.

Mr CROUCH:

– At present I merely desire to reply to two statements that have been made during the course of the discussion.. It has been pointed out that the HighCourt issues commissions, but perhaps it is within the knowledge of the AttorneyGeneral that each of these commissions costs £1. There are many persons who do not care to pay this fee, and in the country it does not pay to take out a commission, and much delay and inconvenience result. The honorable and learned member for Wannon answered his own objection. He stated that it was desirable to avoid diversity of practice, so far as the States Supreme and the Commonwealth Courts were concerned, and he pointed out that if affidavits in Commonwealth matters in Victoria could be sworn before Justices of the Peace, great confusion might arise from the conflict of practice in the States and the Federal Courts. Immediately afterwards the honorable and learned member pointed out that affidavits in Victorian County Court matters could be sworn before Justices of the Peace, and I submit that, if any confusion were likely to arise from diversity of practice, it would have occurred before to-day between the Supreme and County Courts. This is not only a layman’s question, but one which vitally affects the fair and economical administration of the law, and also the interests of lawyers. The greater the facilities offered for prompt decisions in our courts, and for reducing the expenses in connexion with such matters as those which have been under our consideration, the larger will be the number of litigants and the greater the fees earned by the lawyers. Therefore, members of the legal profession need not be eager to retain the small fees which are derived by them from the swearing of affidavits. In view of the promise of the Attorney-General to consider the matter, I desire to withdraw the clause.

Proposed new clause, by leave, withdrawn.

Bill reported without amendment.

Mr. ISAACS (Indi- Attorney-General). - With the permission of the House, I should like to pass this Bill through all its remaining stages to-day. so that it may be forwarded to another place.

Mr SPEAKER:

– Is it the pleasure of the House that the Attorney-General have leave to pass the Bill through all its remaining stages forthwith ?

Honorable Members. - Hear,hear.

Bill read a third time.

page 494

SECRET COMMISSIONS BILL

Second Reading

Mr ISAACS:
Attorney-General · Indi · Protectionist

– I move -

That the Bill be now read a second time.

The Bill, of which I now have the honour to move the second reading, is one which the Government consider a measure of urgency, so far as this country is concerned. It is a Bill which is intended - in conjunction with other measures, such as the Commerce Bill, which has been introduced by my honorable colleague, the Minister of Trade and Customs - to assist in promoting the welfare of the producers of this country. The necessity for some such measure is, I think, evidenced very strongly by the revelations which have recently been made in this State, and which appear in the exhaustive and valuable report presented by the Butter Commission. Regrettable as are those revelations, I think that it speaks well for this community that they have aroused in our midst a feeling of indignation that such practices as have been disclosed by the evidence, and which are summarized in the report of the gentlemen who composed that Commission, should have been possible. Its members, I may say,” were men of experience - representative men. They consisted of a gentleman who, for a considerable time, occupied the position of Police Magistrate, and who now fills a high office in the State service of Victoria; of another gentleman who is a member of the State Legislature, and a representative farmer - a man who has served in various Ministries in Victoria, and who undoubtedly has the welfare of the primary industries, as well as of other industries, at heart. The third member was a man of great banking and commercial experience, and. therefore, we cannot imagine that any of the Commissioners wished to promote what some of my honorable friends opposite are pleased to term” socialistic “ measures. The zeal, ability, and industry which the Commissioners displayed demand the recognition of their country. They have done very great service in exposing practices which certainly militate against the well being of any community. But although those practices were carried on upon a large scale, and were extremely detrimental to the great industries of Australia, they were, I believe, confined to comparatively a few. It is the moral sense of the community rebelling against such practices which demands such a Bill as that we are now submitting. It will be well, I think, if I read from the final report of the Commission on the butter industry, which was constituted a Federal body by the Government ‘of which the honorable member for Bland was the leader. Whilst he filled the office of Prime Minister, the Commission was constituted a Federal Commission, in order that its inquiry might be given greater scope, and that it might be invested with a larger measure of jurisdiction than it originally enjoyed. Amongst other matters, the final report of that, body points out that -

For a considerable period prior to 1904 it was observed that there was a marked unrest in the trade and amongst the dairymen.. This gave rise to murmurings of disapproval of the methods adopted by certain agents in the disposal of the butter sent through them, and also of the manner in which certain companies which, at their inception, augured well for the promotion of the best interests of dairymen, collapsed to the disappointment of the shareholders and suppliers, and eventually passed into the hands of persons who worked them in their own special interests, and not in the interests of the producers engaged in this national industry. Such an industry., which has progressed so rapidly, and which was assisting materially to enhance the wealth of this State, was threatened with an upheaval, owing to the reprehensible practices which it was openly stated had developed.

They proceed to show that their sittings occupied a considerable time, and that they examined witnesses both in Victoria and’ New South Wales, besides examining into the butter industry in the latter State. Upon page 32 of their report, they deal’ with the question of secret payments to directors and officials. They say -

The voluminous and confirmatory evidence taken on the subject of secret payments to directors and of officials demonstrates conclusively that this reprehensible practice is prevalent roan alarming extent, in the dairying industry, and we find upon this evidence that -

commissions have been secretly paid by butter agents to secretaries, managers, and directors of factories ;

commissions have been solicited by officials from agents and others in return for influence to be used on their behalf ;

contractors and suppliers of factory requisites have paid and been induced to pay a percentage on the amount of the supplies to directors and officials;

the business of traders and agents who have withstood these solicitations for commissions has consequently suffered from such refusal to make secret payments.

Mr Higgins:

– I understand that copies of the report of the Commission have not been circulated amongst honorable members. It is possible to have copies circulated?

Mr ISAACS:

– I will endeavour to have that done. The last statement which I read constitutes a highly important feature, because it shows that although there were agents who were indulging in nefarious practices to their own pecuniary advantage, there were others - and I am proud to say that I believe they formed the vast majority of. the agents throughout Australia - who adhered rigidly to the honest course. But these, it must be recollected, had to submit to the result which followed their adherence to that course, because there were others less scrupulous, who did not hesitate to do what the Courts, as well as commonsense and moral sense, designate as unfair, unjust, and improper. It is for the protection of the honest agents of the producers, and of the public generally, that this Bill is introduced. The Commissioners say -

In eliciting evidence on this subject, it was only to be expected that the utmost efforts would be made by the donors and recipients to withhold information that would assist us in coming to a decision on the facts. Whilst some principals adopted the view that these payments were matter of concern only to the giver and receiver, and others maintained that any payments made were for bona fide services rendered, they all admitted that the payments were secret, and took the precaution, when made in coin, to demand no receipt or acknowledgment. It will be seen by the evidence that the practice had become, so universally regarded as a recognised custom that factory officials made application in writing to agents and contractors for commission on the trade extended to them, only considering it necessary to mark their, communications “ private.”

Honorable members will be good enough to bear that fact in mind, because we have included in this Bill provisions which make it penal to make these offers, irrespective of whether they are acceded to or not. It is not the fault of the man who attempts to bribe an agent if his attempt is not successful, any more than it is the fault of the individual who endeavours to commit murder if he does not succeed. The Commissioners then proceed1 -

Besides the immoral effect of the practice, it has certainly limited the competition for the factories’ business. Scrupulous agents, who refused to prejudice employes and directors on their behalf by making substantial concessions or payments, failed to obtain or retain the business which was given or transferred to some less scrupulous competitor. This purchase of the officials’ good-will had also the effect of depriving the factories’ interests of that protection which an honest servant would observe towards his real principal. To these secret payments, therefore, may be traced the licence and liberty given to agents and speculators, ‘and, consequently, the abuses to which the trade in factory butter has been subjected.

The Commission reports that the necessary result of agents receiving these bonuses and commissions, is that their principals have to pay more for the services rendered. It stands to reason that if out of the price charged for the services rendered, there is a sufficient margin to remunerate trie agent, on the other side there must be a sufficient margin to enable a reduction in the price to be made, if no such illicit commission were given. In truth and in fact it is the principal who always pays in such cases, although he does not know it. I wish to refrain as far as possible from referring to particular individuals, because it is well known that this matter is still under the attention of the State Attorney-General, and that recommendations were made by the Commission that the position of the persons who engaged in these practices should be taken into consideration by the .Crown Law authorities. Therefore, I am careful not to refer to specific individuals, and I hope that no more reference than is necessary will be made to those persons who are named in the Commission’s report. It will be sufficient for me to say that the Bill deals with illicit commissions, and with illicit secret buying and selling by the agent to or from himself. These aire the two main features of the Bill. We include in the term “illicit commissions” all phases, and forms, which a secret commission may take, whether it be in the shape of a bonus, or a deduction, or a rebate, or a discount. Whatever form it may take - and we know that, owing to the ingenuity of the persons who engage in these practices, it is able to assume many forms - we intend to strike at it as far as we can. If we have omitted any phase by which escape can be afforded to those whom we wish to check, we shall be very glad to have the assistance of honorable members in supplying the deficiency.

Mr Higgins:

– The honorable and learned gentleman might buy an article for a much lower price than its real value.

Mr ISAACS:

– If the honorable and learned member will allow me I should first like to put the general case.

Mr Higgins:

– When I interjected the Attorney-General was speaking of the Government intention to endeavour to check the payment of all sorts of commission.

Mr ISAACS:

– With regard to secret commissions and secret selling, I should like honorable members to understand that in every case we deal with the position of an agent in relation to his principal. This Bill is an endeavour to prevent the betrayal of a principal bv his trusted agent. In every case of secret commission we imagine a triangle - the principal at the top, the agent at one angle of the base, and a third person at the other angle. It is when there are illicit transactions between the two persons at the base - the agent and the third party - to the detriment of the principal, that this Bill will come into operation. It is only in such cases that its secret commission provisions will apply. When an agent offers or goes beyond an offer to betray his principal, or when a third party attempts to seduce the agent, or succeeds in seducing him, theY will come into operation. Honorable members will see that the whole position, so far as that branch of the Bill is concerned, is summarized as far as possible in clause 4. Instead of adopting more cumbersome phrases and provisions we seek, in that clause, to put in analytical form the practices that we seek to prevent and suppress. It is provided that -

Any person who, without the full knowledge and consent of the principal -

I shall stop for the moment at those words. If an agent desires to obtain a commission from his principal’s antagonist, as well as from his principal - or any substantial commission or remuneration in addition to that which he is to get from his own principal - he may obtain it without incurring any responsibility, so far as the Bill is concerned, provided that he tells the principal, fully and faithfully, of the circumstances, and secures his consent. If he says to his principal, “ You need not pay me if you will allow me to deal with this third party, and to get my commission from him.” arid if, at the same time, he tells his principal of the material circumstances, so as to place him in a position to judge whether or not he ought to consent to the remuneration coming from the other side, and gains his consent, he may do so. But this Bill provides that no man intrusted by his principal or master to do his best for him shall, behind his principal’s back, say to a third party, with whom he is dealing in opposition t to his principal, “ You pay me for doing this.” One cannot serve two masters with honour. In such a case, the agent would be placing himself in a position in which his interests would conflict with his duty, and where he might be tempted to make a less advantageous bargain for his master or principal’ than he otherwise would. I, therefore, draw the attention of honorable members to the words “the full knowledge and consent,” which appear in clause 4. In the interpretation clause “ full knowledge “ is denned as meaning “knowledge of all material facts and circumstances.” If an agent, without the full knowledge of his principal, directly or indirectly accepts or offers to accept-

Mr HUME COOK:
BOURKE, VICTORIA · PROT

– Does the consent require to be in writing?

Mr ISAACS:

– No. Clause 4 provides that-

Any person who without the full knowledge and consent of the principal directly or indirectly -

being an agent, accepts or obtains or agrees or offers to accept or obtain from any person for himself . . . any gift or consideration as an inducement or reward - for doing any act or forbearing from any act or for obtaining or having obtained - I am leaving out the words that are immaterial at this stage - for any person an agency or contract for or with the principal shall be guilty of an indictable offence. Again, if any person who is not an agent tries to bribe an agent - I am summarizing the effect of these clauses - to swerve from the service due to his . by offering or giving him a gift or consideration for doing any act in relation to his master’s business, he himself will be guilty - the briber as well as the bribed - of an indictable offence. It is useless to penalize an agent unless we say to the third person who is going to benefit by his secret action, “You shall suffer in like curcumstances.” The honorable member for Bourke has drawn my attention to the words, ‘’ At the request of an agent,” at the close of paragraph b of clause 4. The object of those words may be briefly stated. A man might give a gift or consideration not to the agent himself but to the agent’s wife. If he did so at the request of the agent, he would be guilty, under this Bill of an indictable offence. Then a gift or consideration may be deemed to be a gift or reward if its receipt or any expectation thereof would be likely to influence the agent contrary to his duty. Clause 4 is intended to apply to the four different cases that are summarized there. By clause 5, we provide that any person who gives to an agent, or any agent who receives or uses a false document, a false receipt, or a false account, intended to mislead, or likely to mislead his principal, shall be guilty of a misdemeanour if he does so with intent to deceive. Clause 6 goes to a class of cases, many of which have been dealt with in the report of the Butter Commission - cases where an agent who is commissioned to sell his principal’s goods necessarily at the best price, or to buy goods for him, necessarily at the lowest possible price, and on terms most advantageous to his principal, either buys his principal’s goods from himself or sells them to himself. Honorable members will see that the provisions of the Bill in regard to all cases of this kind are guarded by the words that if such action be taken “ without the full knowledge and consent “ of the principal, the agent shall be , guilty of an indictable offence. If an agent chooses to say to his principal, “ I cannot get a purchaser for your goods, on such good terms as you desire, but am willing to buy them myself,” he may buy them with the consent of the principal. But he is not to say to :his principal, “ I sold your goods ; here is the best price I could get; pay me my commission,” when he has really purchased them himself.

Mr Johnson:

– He can sell to himself with his principal’s consent.

Mr ISAACS:

– Yes.

Mr Johnson:

– He would not be entitled to commission in that case.

Mr ISAACS:

– By secretly selling to himself or to a firm of which he is a member, or to some other person in whose affairs he is really interested, or who might be acting as a trustee for him, he would commit a double wrong. He would be sure in such a case to sell at the lowest possible price, and in addition to that he would charge his principal commission for work that he had not performed. In clause 7 it is provided-

Mr Reid:

– Before the honorable and learned gentleman turns from clause 6, I should like him to consider one point. Clause 6 provides for three classes of cases in which an agent might secretly buy from or sell to himself. He must not sell to himself or to a firm or company in which he is interested. But there is another case - the case of the individual who is not a member of a company or a firm in which the agent is interested.

Mr ISAACS:

– Why should he not sell to another person? His services are retained for that purpose.

Mr Reid:

– But this clause is to prevent secret sales.

Mr ISAACS:

– Yes.

Mr Reid:

– As the clause stands, there could be a secret sale by an agent, so long as he did not sell to himself, or to a firm or company in which he is interested.

Mr ISAACS:

– I recognise the case which the right honorable member has in -mind, but I do not think it quite comes within the same category. A man who was intrusted with goods for sale might sell them to another person without knowledge on the part of the principal as to the identity of the purchaser. There would be nothing injurious in that, if the sale were a fair and honest one. But what this clause is designed to prevent is the act of an agent who purports to sell to some other person, although in reality he is selling to himself, or to some firm or company in which he is interested.

Mr Reid:

– The Attorney-General will find that there is a loophole.

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

– All that the agent has to do is “ not to know.”

Mr ISAACS:

– The object of the clause is to prevent an agent from selling to himself in whole or in part, directly or indirectly.

Mr Reid:

– Or to any one else, without the full consent or knowledge of his principal.

Mr ISAACS:

– If his principal intrusts him with goo’ds for sale, he must necessarily sell to others with the knowledge of that principal, or he would not have the authority to sell. Clause 7 provides that the principal may recover the amount of any secret gift. Not only do we provide that there! shall be criminal liability, but we say that if any two men engage in what after all is a conspiracy to defraud, the third person who corrupts the agent and pays him certain money, shall be liable to pay that money over to the principal whom he has defrauded. If a third person chooses to hand to the agent money which really ought to go to the principal, and thus corrupts the agent, he must pay the principal that which ought to have been, received by him in the first instance. This is not a new principle. It is one that has been emphasized in more than one case in the English counts, and it is put in this clause only in a clearer and more drastic form than it appears in some of the decisions. Clause 8 is one that is -very necessary, because it provides1 that no person shall be excused from answering questions, put either viva voce, or by interrogatory) or from making any discovery of documents, on the ground that by doing so he might incriminate himself. The principle of this provision may be briefly stated. If we wished to recover money from an agent who had improperly taken it, and put him in the witness box, he might decline to answer certain questions on the ground that by doing so he might incriminate himself. The result would be that we should not be able to obtain any evidence. As Lord Justice Fry, in a valuable paper that he read on this subject, said, there would be no fear of making innocent persons suffer - the difficulty would be in making guilty persons answer for their deeds. The difficulty will be to sheet home these nefarious practices. It is not every day that we have a Commission sitting that brings evidence to light, as the members of “the Butter Commission, with the assistance of the able counsel who conducted the inquiry, have done. This clause is absolutely necessary. “Under it a man will not be excused from answering questions, but in common fairness it is provided that his answer will not be admissible as evidence against him in any criminal proceeding unless he tells lies, and, of course, if he does that he may be prosecuted for perjury. But so long as he tells, or tries to tell the truth, his answer will not be admissible -against him in any criminal proceeding, though it may be used against him in any civil proceeding, because that is what the admission is for. Clause 9 is an important one. It says that, in answer to any civil or criminal proceeding, no man shall successfully say, “ It was quite right for me to receive this commission, because it was not illicit, since it was given in accordance with a custom in the trade.” If there is a custom in certain trades countenancing secret commissions, the sooner an end is put to it the better. We are not going to perpetuate a fraud because it has become customary. Then I invite honorable members’ attention to clause 10. We can apply the Bill only to matters over which the Commonwealth Parliament has jurisdiction- ; *e cannot apply it to purely internal dealings in the States. It applies only to what we may call foreign and inter-State commerce, and is intended to apply principally to the export of the millions’ worth of commodities that are produced in Australia and sent abroad. It affects chiefly the primary producer.

Mr Reid:

– I am glad that he is to get a “ show “ at last.

Mr ISAACS:

– We intend to give him many “shows.” This clause relates in general form to the aiding and abetting of any offence against the measure; but subclause b is aimed at a state of things to which I am about to refer, and I hope that, if there is a flaw in it, honorable members will help us to correct it. Let us suppose that there is an export of butter, apples, or of anything you like, from Australia, and the agent here does not receive an illicit commission, does not make the offer of one in Australia, does not complete the offence in Australia, and therefore ordinarily would not be liable. What he does is to set the matter on foot. He merely writes from Australia, or in some other way procures that the receipt of an illicit commission shall take place, we will say, in London. We intend to reach him in that case, by providing that any act whatever that he may do in Australia in furtherance of his object shall be dealt with as if he received an illicit commission here. ‘ He will not be able toescape by saying, “ I merely wrote a letter which was posted in Australia, despatched from our shores, and received in London, so that the offer was not complete until it got to London.” We provide that in writing the letter in Australia and despatching; it he shall be guilty of the same offence a* if he made the offer on our territory. That is what we want to provide, and we hope that we have done so. We apply the Bill, also to the agents of, and contractorswith, the Commonwealth or any department thereof. No doubt we shall have inthe future of this Commonwealth very many and very great contracts. . We have jurisdiction in regard to them, and we intend to apply this law to those who will enter into such contracts. The contractors with the Commonwealth who have to supply goods to it, and the agents of the Commonwealth who have to procure goods for us, shall not indulge in these practices to thedetriment of the Commonwealth any more than any other people. Of course, at the present moment the instances in which that provision can be applied are few, but it is right that we should provide for itsextension.

Mr Henry Willis:

– Are not the Government going on with “the Federal Capital?

Mr ISAACS:

– The honorable memberasks a very pertinent question. When the construction- of the Federal Capital is-, actively entered upon, this portion of the Bill will be very valuable. I should likehonorable members who think that the buying or selling of goods by an agent in theillicit way which we intend to condemn is not extensive, to refer to page 30 of the Butter Commission’s report. They saythere that -

The agents who were examined by us did not hesitate to state that they had purchased largequantities of the butter consigned to them as. agents, and had charged commission on the quantity they purchased.

No one could defend that. The farmers and other producers of the country haveenough to do to contend with hard seasonsand other difficulties, in addition -to thelow prices of their commodities in London and other centres of competition, without having to put up with the sapping of their returns in the way that has taken, place in the past.

Mr Kennedy:

– The measure will not affect those cases.

Mr ISAACS:

– Certainly it will.

Mr Kennedy:

– Will it affect dealings between the farmer and the agent here?

Mr ISAACS:

– It will affect dealings with agents here who export. ‘ Any agent connected with the export of produce to England will be dealt with.

Mr Webster:

– The Bill will not be retrospective.

Mr ISAACS:

– No. We shall be no party to creating criminality by retrospective legislation. Agents who have entered into contracts for freight for the despatch of commodities to England, are engaged in traffic, trade, and intercourse within the meaning of the Constitution.

Mr Kennedy:

– Wrongful practices in that connexion constitute practically only a minor portion of the- trouble.

Mr ISAACS:

– They represent a very large portion of it.

Mr Kennedy:

– They are an item, but only one of many.

Mr ISAACS:

– Yes. An agent intrusted with goods for sale, if he sends them to England, and sells them to a firm or company in which he is interested, or of which he is the practical owner, or if he bv any letter or any act in Australia procures that which is unlawful to be done, is struck at by the Bill. The honorable member knows that that will remove one of the deep-seated evils unearthed by the Butter Commission.

Mr Henry Willis:

– Will the Bill have an Inter-State application?

Mr ISAACS:

– Yes; it is intended to apply to the trade and commerce of other countries and between the States. That is provided in clause 2, and is as far as we can go. It is not our fault that we cannot go further. I am verv glad to see that the Parliament of Victoria is dealing with this subject, so far as it can, and we hope that by the combined operation of the Parliaments of the States and our own Parliament we shall be able to cope with the whole evil, wherever it may exist. Of course. I do not adopt all the statements which have been made in regard to these wrongful practices. I take up the position that we have too many traducers of our Commonwealth, both inside and outside our borders. We should be careful that we say nothing impeaching the honesty or honour of our people. The Bill is necessary, not because our people are dishonest or immoral, but because they are honest and moral, and reprehend certain practices which are indulged in by comparatively few among us. I think that I have now put before the House the gist of the measure. It is a measure which undoubtedly concerns the welfare of the Commonwealth in more ways than one. It will link itself to other measures of which we have given notice, or have in preparation, and we hope that, with the assistance which we shall give to the producing community by it and other measures which I have indicated, we shall do a great deal for the welfare of the Commonwealth. It is. no doubt, to a large extent, a Bill for consideration in Committee. It is short, and I trust that it is clear. Its object is palpable, and I think will be acceptable to honorable members. We shall be very glad indeed if, in. the course of the progress of the measure through the Chamber, honorable members will afford us the best assistance they can in improving its provisions, to better achieve the end we seek.

Mr REID:
East Sydney

– The Bill was presented only yesterday, and therefore, although its object commands my heartiest sympathy, its importance and the novelty of legislation, of this kind demand a reasonable adjournment, so that honorable members may carefully study the provisions of the measure, together with the report which has been referred to. This is not like the other measures with which we have been dealing to-day, a Bill which has been considered; and practical] v settled by more than one Ministry. It creates a new offence in connexion with the transactions of selling and buying, and “it is important that the public shall have the fullest knowledge of the proposed alteration of the law. Therefore, the more publicity. and even notoriety, that we can give to its provisions, and to the liability that will attach to those who infringe them, the better from every point of view.

Mr ISAACS:

– The Government are willing that the debate should be postponed until Tuesday. We do not wish to hurry the House in disposing of the measure, but we desire that it shall be proceeded with as soon ‘as possible, and I apprehend that there can be no objection to continuing the debate on the second reading on Tuesday next. Ample time will be afforded to the commercial community- and to honorable members for the consideration of the Bill when we reach the Committee stage, be- cause then the most important points will arise in connexion with the proposed amendments of its provisions. As the leader of the Opposition has stated, the general principles of the Bill must commend themselves to the community and to the House generally, and it will facilitate the ultimate consideration of the measure if the educative forces of the second-reading debate are permitted to operate at an early date.

Debate (on motion by Mr. Reid) adjourned.

page 501

TRADE MARKS BILL

Second Reading

Mr ISAACS:
Attorney-General · Indi · Protectionist

– - I move -

That the Bill be now read a second time.

This measure, which has reached us from the Senate, is intended to place on a uniform basis, as far as possible, and in a manner analogous to that winch has been adopted in regard to patents, all the trade marks in the Commonwealth. As honorable members know, this is one of the subjects committed to our jurisdiction bv the Constitution, and I think we shall all agree that it is eminently desirable that the <commercial community should have as much uniformity as possible in the legislation relating to trades marks throughout Australia. At the present time, there are, in the various States, Trade Marks Acts more or less based - except in the case of New South Wales - upon recent English legislation. The New South Wales Act. which is of long standing’ although re-enacted by way of consolidation, I think, in 1900, follows the older form of legislation in England. I may mention - the fact is not material at present, but it may become so when .we reach the Committee stage - that in the other States there is practical uniformity in the method of dealing with trades marks, and that that method follows to a large extent the legislation now standing on the statute-book of the mother country. We propose, in this measure, to follow English legislation with certain important modifications. In England, an ‘attempt has been made by certain very- eminent members of the House of Commons - eminent in the legal profession, and with a considerable experience of patent law - at the head of whom is Mr. Mou I ton, to alter by legislation some of the provisions and some of the principles which are at present embodied in the English patent law. We nave had the benefit of inspecting Mr. Moulton’s Bill, which is backed up by a great number of legal authorities, and the Senate have incorporated in this measure many of Mr. Moulton’s suggestions. When honorable members see in the margin references to “ Moulton’s Bill 1904,” they will understand that they relate to the measure introduced into the House of Commons by the honorable and learned gentleman named, in order to place the trade mark law upon a more advanced and appropriate footing, having regard to the later developments of commercial requirements. This measure consists of eight parts, seven of which honorable members I think will regard as uncontentious That is to say, they are simply proposals for legislation which do not raise any such question as that involved by part VII. relating to union marks. I propose to deal shortly and in general terms with the uncontentious parts, and to afterwards deal specially with part VII. Honorable members will see that the Bill proposes to put an end, as soon as possible, compatible with the protection of existing rights, to the State Acts dealing with trade marks and to bring the whole subject under the control of the Federation. Clause 6 provides that the States Trade Marks Acts shall, with certain exceptions, on the commencement of the Federal Act, cease to apply to trade marks. If a trade mark is registered under a State Act, that Act shall continue to apply to the trade mark as long as registration continues in force. Again, if any proceedings under a State Act are pending when the Federal Act comes into operation, such -proceedings may be continued and completed under the State Act. In other words, they are not to be thrown away. The third exception applies to applications for the registration of trade marks under a State Act made by virtue of some right acquired before the commencement of the Federal Act, in pursuance of an International Convention for the protection of industrial property. Under some International Conventions, protection is given to certain trade marks registered within a certain time, and if they are not registered within that time the protection ceases. Therefore, we protect the right to make an application under the State law. We say that a person may proceed under the State law, and register, in order to preserve a right which might otherwise expire by effluxion of time. Trade marks, which are already registered under States Acts, are to expire after fourteen years from the commencement of the Federal Act. In other words, after fourteen years there will be no registration in existence under anyState Acts. Some of the registrations may terminate before that period has expired.

Mr Conroy:

– It is not intended that the right acquired under the States Acts shall cease altogether?

Mr ISAACS:

– No. The proprietor of a trade mark will not lose his right to it at the expiration of the period mentioned, but he will have to bring it under the Federal Act. Certain trades marks registered under States Acts may require renewal in order to retain the rights conferred by registration. As soon as that occasion arises the proprietor will have to renew under the Federal “Act, and no fee is to be charged for such renewal. The owner of a trade mark will be permitted to retain his State registration if he chooses, but he may prefer to abandon his State registration and bring his trade mark under the Federal law at once, which will give him a wider field for operations. Provision is made that the proprietor of a trade mark properly registered under any State Act may make application for , registration under the Federal Act. Then provision is made for cases in which conflicting rights may exist, owing to the fact that one man may have the right to a certain mark in one State, and another man may have the right, through user or otherwise, to the same mark in another State. The fact of one proprietor of the mark registering under the Federal Act is not to exclude another person from the right to use the mark in another State in which he owns it. The ninth clause deals with the registration of unregistered marks, and provides, just as it would in the State, that the proprietor of a trade mark in use in any State at the commencement of the Federal Act, may make application for the registration of his mark under such Act. Certain provisions are inserted which refer to the registrability of marks under the Trades Marks Acts in force. Then we come to the provisions dealing with ‘administration. It is provided that the Minister of. Trade, and Customs, or any other Minister, may administer the Act. It is also proposed that the Commissioner of Patents shall, in the first instance, be the Registrar of Trades Marks, and it is further provided that deputy registrars may be appointed.

Mr Watson:

– I presume that it is intended to utilize the services of the officials in the Patent Office.

Mr ISAACS:

– Certainly. It is provided that the Commissioner of Patents shall be the Registrar of Trade Marks until the Governor-General otherwise determines. That sufficiently indicates the intention of the Government to avoid incurring any unnecessary expense. There is no reason why the” administration of the Trades Marks Act should not be in the same hands as the Patents Act. Clause 14 provides that when the Bill comes into operation the whole administration of the States Acts is to pass to the Federation. The nature of the marks which may be registered are set out in Part III., and honorable members, by reference to that portion of the Bill, will see what are the essential particulars of a registrable trade mark. They practically follow the English law, and are set out inclause 16. I do not intend to ask honorable members to traverse the highly technical language of the provisions of Part III. I would only say that, when the expression “ registrable trade marks” is used, it has this signification : Any man may use any mark to indicate his trade, but it is not every trade mark which he may choose to employ that he can register, because a man, without any permission of law, may use any word in the English language. For example, he might choose any word from the dictionary - the word “ delicious “ if he liked - and put it upon any article of anedible or potable character on the market. But he could not register that word, because it is an ordinary part of the English language ; and nobody is entitled to go into the great domain of the English language and enclose a portion of it for his own exclusive benefitWhen .a trade mark is registered, it means that it is the exclusive property of the man who registers it. When honorable memberscome to read that portion of the Bill, they will understand why such care is taken toset out what shall not be included in a registrable trade mark. For instance, the words “copyright” and “registered,” and the Royal arms, cannot be used, because they are common property. Part IV. of the Bill deals with the registration of trade marks. In it - and especially in clause 24 - there will be found some deviations from the existing law, which can be more properly dealt with in Committee. The remainder of that part deals with thelegal position of making applications, opposition, and decisions. Division 4, I may specially mention, provides that the registration shall be for fourteen years, but may be renewed. The registration of a trademark is -prima facie evidence of the right of the registered proprietor to the exclusive use of that trade mark. Clause 51 states -

The registration of a person as proprietor of a trade mark shall, after the expiration of five years from the date of registration (in the absence of fraud), be conclusive evidence of his right to the exclusive use of the trade mark in respect of the goods in respect of which it is registered, upon the registered proprietor proving that he or his predecessors in title have continuously used the trade mark, in respect -of the goods, to a substantial extent for the five years immediately precedin’g the commencement of the legal proceedings.

For the purposes of this section user shall be deemed to be continuous, if there has been no actual interruption thereof for a longer total period than twelve months.

I have read that clause, because in it will be found a considerable alteration from the existing law of Victoria, and perhaps of some -of the other States : in my opinion a just alteration. Clause 52 provides that -

No person shall be entitled to institute any proceeding to prevent or recover damages for the infringement of a trade mark unless in the case of a registrable trade mark it is registered under this Act or a State Trade Marks Act.

In other words, a man may have a trade mark. He may register it, if it is registrable, or he may not choose to. do so. If he does not register it, he is not entitled to sue for any infringement of the trade mark. He is, of course, entitled to prevent other persons from deceiving the public by passing off their goods as his own, but he is not entitled merely to say, “ You must not use that trade mark.” If he says that he has the exclusive right to it, he must register it. As in the case of land he has to get, so to speak, a certificate of title, by getting a. certificate of registration under this Bill. It may be renewed, and it may be assigned. “Then, provision is made for keeping a register, but I do not think that it is necessary, in moving the second reading, of this Bill, to traverse the complicated and technical provisions which are contained in the next two parts. Part VIII., which deals with miscellaneous matters, gives powers to “the Governor-General to make regulations, and certain powers are also vested in the Court. The rest of the measure consists of consequential, machinery, and penal provisions. In clause 99 honorable members will see that -

If the King is pleased to ‘apply to the Commonwealth any law of the United Kingdom for carrying into effect any arrangement made with the Government of any foreign State for the mutual protection of trade marks, then any person who has applied for protection for any trade mark in the United Kingdom or the Isle of Man, or in any foreign State with which the arrangement has been made, shall be entitled to registration of his trade mark under this Act in priority ;to other applicants, ‘and such registration shall have the same date as the date of the original application in the United Kingdom or the Isle of Man, or such foreign State as the case may be.

Then certain qualifications are mentioned. Honorable members will understand that I have not gone very minutely into these various clauses, because they are already fully acquainted with the general nature of a Trade Marks Bill, and with- the design of this Bill, which is intended as far as possible to consolidate and unify the law relating to trade marks, because it is of manifest convenience that a man in one State should know that he has the right to the exclusive use of any trade mark if he registers it in any State, no matter where his goods may go throughout the Commonwealth’. He is not required to make six registrations and to fight six oppositions. I know of some cases in which men have made several applications in different States, with varying success. In one State, perhaps, a trade mark has been registered, and in others the applicant has been refused registration. In some cases he has had to undergo a severe legal contest, and in others he has not. Further, cases sometimes occur in which a man is entitled to the registration of a trade mark in one State, but not in another. Each State has power to protect its citizens within its own territory, but its registration has no effect beyond its own borders. This Bill is intended to obliterate these divergences, and to place Australian trade marks upon the same footing. Honorable members will find in the amendments which I have circulated a considerable number of suggested alterations. I have gone very carefully through Part VII. of the Bill, and I have endeavoured to examine the English law and the text books upon the subject. As a result, I think that we have simplified the matter to a large extent. These amendments I shall be prepared to explain in detail in Committee. Concerning trade union marks, about which there has been a good deal of discussion, I wish to say that honorable members will find that considerable alteration has been made in the scheme now submitted as compared with that which reached us from the Senate. I may add that I went through the Senate discussions very carefully. I considered this matter to the best of my ability, and I found that the principle of workers having the goods which they make stamped with their own mark is no innovation in English law.

Mr Conroy:

– For three or four centuries each little guild and corporation had its goods so marked.

Mr ISAACS:

– Exactly. For centuries that was the case, and it is the case at the present time. The Cutlers’ Company do it now.

Mr Glynn:

– But a trade mark to indicate a guild is quite a different matter from a trade mark to indicate a union.

Mr Conroy:

– In the case of the guilds, the goods were their own production.

Mr Watson:

– So they are in the case of the unions.

Mr Reid:

– They may be made partly bv union labour and partly by non-union.

Mr ISAACS:

– Honorable members, no doubt, will fully express their views upon this subject in Committee; but I wish now to succinctly put before the House the ideas embodied in this Bill. Looking at the English statutes for a long time back - which will be found enumerated in the wellknown text book, Sebastian on Trade Marks, - it will be seen that in statute after statute the workers’ mark has been applied with authority. It may be applied in various ways, and in some companies each member of the company or guild or trade has had his own special mark to identify his workmanship. In various Acts of Parliament - I do not wish to occupy time by enumerating the details of them - the principle has been recognised in England for centuries back of having goods stamped with the workers’ mark. In the existing Act of New South Wales, No. 19, of 1900 - which is, I think, a repetition in a somewhat more modern form of the Trade Marks Act of 1865 of that State, which itself was an application as closely as possible of the English Act of 1.862- there will be found words to which I invite the attention of honorable members. In that Act, “ trade-mark “ is defined as follows: - “ Trade mark “ includes any mark lawfully used by any person to denote any goods to be goods of the manufacture or merchandise of such person, or to be goods of any particular description made or sold by such person.

In the same section “ manufacture “ is defined to include “ workmanship and production.” That closely approximates to the mark which may be placed upon various goods bv any worker. It will thus be seen that there is no novelty in the proposal that goods may be so stamped as to identify the workmanship, or the guild bv which they are produced. I can see very little indeed in the nature of an innovation in the provision that a trade union may have a mark to indicate its work ; but independently of any precedent, I have asked myself whether there is any fair reason for the course proposed. Even if there were no precedent, is there any fair reason for saying that a trade union should not have a mark to indicate the goods made, sold, or selected by its members? I can find no reason for saying, for example, that any company or firm, or federation of employers or of employes, should not have some mark to designate their goods. I fail to see why they should not have a mark of their own if they choose, provided that it is not to be used for the oppression of another person.

Mr Wilson:

– Has the honorable anr) learned gentleman read of the American experience ?

Mr ISAACS:

– I have; and have given it verv careful consideration. The question raised by the honorable member is a very pertinent one, and I shall deal with it at once. The experience of the United States, put shortly, is that a union mark is only to be employed when its use is permitted by the union concerned.

Mr Conroy:

– But the Government propose to go further; they propose to compel’ a union to allow a mark to be used.

Mr ISAACS:

– Quite so. In the United” States no one is allowed to use a unio/i label without the permission of the unionaffected, and the Bill as sent down from the Senate is framed on similar lines. It provides, as passed by another place, that a union mark must not be used by any person unless he is authorized. Clause 76 provides that upon registration of a trade union mark, the union by which it is registered shall be deemed: to be the proprietor, and shall be entitled1 to the exclusive use of the mark. Then in sub-clause (2) it is provided that -

The rights of the proprietor of the trade unionmark - that is the union - shall be deemed to be infringed by the unauthorized use, in respect of the goods in respect of which it is registered, of a mark identical, or substantially identical, wilh the trade union marie or so nearly resembling it as to be likely te* deceive.

Mr Conroy:

– The Government do not propose to accept that provision.

Mr ISAACS:

– No. An amendment has already been circulated by us. I can see perfectly well that the difficulties experienced in the United States were very severe. I recognise that if the Bill were passed in the form in which it comes to us from the Senate, it might be said that this power would be used to exercise undue pressure upon persons who employed union labour, paid union prices, and who might feel that they should not even then be allowed to affix the union label. I do not think the power would be so used, but there might be a fear that it would. The view I took of the matter was that we ought to consider, not any one section of the community, but every section of it. We are here to advance the general interests of the community so far as we can, and at the same time, we are to protect the rights of unions of . manufactures and of employes - the vendors of the goods, and of the consumers. I know of no reason for refusing to do our best to allow a union to have a trade mark if we can secure the due protection of the rest of the community, and, in my opinion, we shall be able to protect the rest of the public if we adopt the provisions that I propose to insert in the Bill. What is the object of a union label ? The unionists may say, “ We stand banded together to prevent sweating, and in the majority of instances, the very best: workers in skilled trades are members of unions. In the various States, strenuous and laudable efforts are being made by means of Factory or Arbitration Acts, to see that work is carried on under sanitary and wholesome conditions, and in all these circumstances, the mere fact that goods are made by union labour is, in most cases, a guarantee that they are made under conditions, in respect of wages, hours of labour, and health’ requirements, of which the community need not be ashamed. The union mark will be a guarantee of wholesomeness to the consumer of the goods upon which it is placed.” There are some reasons why it is advisable to allow the use of a union label, if we can do so without any probability of its being unfairly used. If we felt that a certain mark on an article afforded a fair assurance that it was made under reasonable conditions both in regard to the wages and hours of labour of the men or women employed in manufacturing it, and as regards proper sanitation and health requirements, I think we should be disposed to purchase that article. Whatever the price might be, if we felt that the State was guarding against sweating, we should not be afraid of purchasing it. I recognise that the Bill in the form in which it has been sent to us from the Senate, would give absolute authority ‘to a union to agree or to refuse without any reason, to allow its union mark to be used. That would be too great and powerful a weapon to place in the hands of the unions. What we propose is that, in the case of goods made exclusively under union conditions no one shall be required to obtain permission to inform the Commonwealth that they are so made. If I am a manufacturer, employing union men or women to make a certain article for me at union rates, and in conformity with State regulations as to the proper ventilation and sanitation of buildings and so forth, I should have a perfect right to tell the public that my goods are made under such conditions. I ought not to be required to pay a still further price to any union for permitting me to make that fact known.

Mr Tudor:

– The unions in America and England have never made a charge for the use of their labels or marks.

Mr Conroy:

– I join issue with the honorable member so far as the unions in the United States are concerned.

Mr ISAACS:

– I am not making any allegations against unions; but I wish to guard against the possibility of the unfair use of this power. If goods be made under the conditions that I have described, the manufacturer should have the right to say so.

Mr Knox:

– Does the honorable gentleman think that is the whole object of the proposal ?

Mr ISAACS:

– Can the honorable member say that there is anything improper or unfair in that object ? A trade union label is exactly analogous to every other trade mark which is placed on commodities offered for sale. If a man vends pure sugar or milk, he has a right to put a mark on his goods to indicate that fact ; if goods be made by a certain process, the manufacturer has a right to inform the public of it ; and if goods be made by union labour, the manufacturer has also a right to say so. Then, again, if unions be allowed to select a label that will be an indication to the world at large that the goods on which it is placed are the workmanship of members of a union, they have a right to use that label. There is no coercion involved. If a. manufacturer who employs the members of a union chooses to affix that union label to his goods, he ought to be allowed to do so without asking ‘for permission. As long as this be provided for, I see no danger of oppression. ( But there is another class of case for which provision will have to be made. It is not always possible to make goods wholly by union labour. I am not sufficiently acquainted with the details of trade to be able to go fully into all particulars ; but let us take the case of caps, which, with the exception of the peaks, are manufactured wholly by union labour. In such circumstances, it would not do for any manufacturer to be able to say that the complete article was made by union labour, because that statement would not be true. A man has no right to make a statement that is untrue, and the manufacturer of a class of caps coming within the category to which 1 have just referred would not be , able to say that they were made wholly by union labour. In such circumstances, however, a. union might give him permission to so use its label as to show the extent to which the goods were made by union labour, but not to deceive the public by causing them to believe that the goods were made wholly by union labour. This is not as cogent an instance as can be found in many trades. Many goods are made partly by union and partly by non-union labour, and I think that a manufacturer might well be required to obtain the permission of a union to the placing of its, label on such articles.

Mr Tudor:

– What clause of the Bill provides for such cases?

Mr ISAACS:

– Provision is made for them in the list of amendments that has been circulated. The proposed new clause 77 in the list of amendments provides that -

The application of the union trade mark to goods shall be deemed to be unauthorized -

Where the use of the mark was authorized, no man could be said to be committing a breach of the Act - unless -

  1. It is applied to goods which are the manufacture or workmanship or the product of the labour of members of the union exclusively, and is so applied by the employer of those members of the union ; or by a member of the union by direction of the employer.

In other words, if the goods are exclusively the product of union labour, the employer himself will have a tight to place the union label upon them without asking leave to do so, or a member of the union may place it on the goods by direction of the employer. In the next case, it is provided by the amendment in question that the ap plication of the union trade mark to goods shall be deemed to be unauthorized unless -

  1. It is, by or under the authority of the union, applied to goods by the employer for whom they are made or manufactured, or by a member of the union by direction of the employer.

This is put elastically, because it is felt that no union would give a manufacturer permission to put a union label on nonunion goods, and the public will therefore be protected. In the case of goods that are substantially, but not exclusively, the product of non-union labour, it might be unfair to the union concerned to allow its trade mark to be applied without permission. In that case, I have made a strong attempt, and, I think, a fair one, to safeguard the interests of every one, although I shall be glad to have the assistance of any honorable member who can show that the provision fails to carry out the object at which I have aimed. I think that I have answered the question of the honorable member for Corangamite about the American boycott. I believe that if this clause* had been in force in America there would not have been the difficulties that have been made manifest there, and which I gather, have arisen through the action of unions, in saying to manufacturers, “ No matter how you conform to union conditions, you shall not have the right, under any circumstances, to put the union mark upon your goods unless you submit to some further terms.”

Mr Wilson:

– I think that the whole Act has now been declared ultra vires.

Mr ISAACS:

– I am not aware ; but, in any case, that is beside the question, which is whether any wrong could be perpetrated under this Bill.

Mr Tudor:

– Does the AttorneyGeneral know of any case such as he has referred to, in which a manufacturer who has conformed to union conditions has been prevented from using the union mark?

Mr ISAACS:

– I do not; but I have read certain complaints of a general nature which have been made, together with the objections of some honorable senators, who thought that the Bill might be used in an oppressive way. I have endeavoured to meet those objections, and I do not think it likely that the Bill will be used in an oppressive way ; but that the clause which I shall propose will do substantial justice to all. A union will have the right to register its trade mark, and a manufac- turer who hasconformed to its conditions will be at liberty to tell the public so by using that trade mark. He will not be compelled to do so ; but if he chooses to pay the union rate of wages, and to make his goods according to union principles, I think he should have the right to sell them as union-made goods. Thus, while it is not compulsory on him toadopt union methods, or, if he has adopted them, to tell the public so, he will be free to adopt them, and, if he chooses, may then tell the public that he has adopted them.

Mr Hutchison:

– Will he have to submit to a union proof that he has conformed to its rules?

Mr ISAACS:

– No; but he must pay the penalty if he uses the union trade mark without having conformed to the rules of the union. The union trade mark may be put on goods by a manufacturer or by a union ; but may, under certain conditions, be improperly applied. It may be asked, “ What is meant by applying the mark to goods?” It will be deemed to be applied to goods if it is applied to the goods themselves, or to any covering, label, reel, or thing in or with which the goods are sold or exposed, or if it is used in any manner likely to lead to thebelief that it refers to, describes, or designates the goods, or that the goods are the manufacture or workmanship, or the product of the labour of the members of a union. For those provisions I refer honorable members to proposed new clause 78a.

Mr Reid:

– Does the Attorney-General say that his amendment will enable a manufacturer who has complied with the conditions of a union to use the union trade mark without applying to the union?

Mr ISAACS:

– Yes; that is provided for in proposed new clause 77. The provision in proposed new clause 7 8a is intended to apply to a case like this: A man might put a union trade mark, or something like it, in a shop window, so that any one might take it to apply to the goods there; but he might afterwards say, if it were not for this definition of application which is meant to preventthe indirect breach of the Act, that it was not intended to apply to those goods. I would like to draw attention to two other provisions in the Bill which are new. The first is proposed new sub-clause 2 of clause 78B, which provides that the Court, if satisfied that the union which has adopted a trade mark, is not a bond-fide union of workmen or employes, may order the removal of that union from the register. We have heard of so-calledunions of employes which were not bona - fide unions of employes, and without some such provision as this, it would be quite easy for a make-believe union of employes to adopt a union trade mark, and for employers to use it. So long as a union of employes is bona-fide, it has power to register a union trade mark, but if it is not bona- fide, it will have no right to parade as such. Proposed new clause 78c is a very important section, and I invite the particular attention of honorable members to it, because it aims at an indication of the intention of this Parliament that no use shall be made of this power with regard to union trade marks, which shall at all countenance the idea that there may be in future a breach of the ordinary criminal laws of the State.

Mr Watson:

– How could Part VII. convey that impression ?

Mr ISAACS:

– I do not know particularly how it might be so used, but arguments are often used which are surprising.

Mr Watson:

– I do not find much objection to the clause to which the honorable and learned gentleman is about to refer, but I do not see a reason for it.

Mr ISAACS:

– I think that it is a proper clause to have in the Bill, because, without it, it might be saidthat the new power given to unions to register union trade marks would inferentially give them the power to do more in the direction of exerting pressure than they were entitled to do before.

Mr Hutchison:

– I hope that the Courts will not be able to set up common law rights against the rights given in the Bill, as was done in the Taff Vale case.

Mr ISAACS:

– The common law rights preventing any unfair use of the powers of the Bill in the way of oppression or coercion, will be preserved. The clause does not give any new power, but it prevents the weakening of existing powers.

Mr Glynn:

– I do not suppose that it can give any new power of this class.

Mr Conroy:

– It merely says that the statutory rights here stated shall be those given.

Mr ISAACS:

– It means that no trade union, or member of a trade union, shall be able to argue from the rest of Part VII., that there is anything in it making it lawful for any person or combination of persons to do any act which it would have been unlawful for such person or combination of persons 10 do before the Bill was passed; and “person” includes a union. So that no argument can be drawn from other portions of this part which would exonerate any person if charged with an illegal act on any ground of inferential extension of power to do that act. Part VII. is, to a certain extent, an innovation. I have shown already that in principle there is no innovation in the idea that a workers’ mark may be put on goods - that is, a mark showing the persons who made them, as distinct from the persons selling, selecting, or vending them. What I mean to say in this connexion is that I think that proposed new clause 78c will be, and should be looked upon as an indication of the intention of this Parliament that there shall be no weakening of those general provisions of law, whether contained in the Statute-book, or deducible from the common la*w, which prohibit any unlawful combination to oppress or operce.

Mr Wilson:

– Would proposed new clause 78c prevent the boycott?

Mr ISAACS:

– It does not add to any law which prevents a boycott, but it prevents any argument being ‘ introduced which says that such laws are in any way weakened. We are not in this part, or in the Bill, framing a criminal code. It would be improper, as the honorable and learned member for Angas said a few minutes ago, and out of place to attempt to put in here any provision relating to the law of conspiracy, or anything of that sort.

Mr Glynn:

– We cannot give powers to do what the Bill says must not be done. We cannot give the power that we negative here. We can prevent these things being done, but we cannot give power to do them.

Mr ISAACS:

– It is a’ wise thing to put into a Bill such a clause as 78c, so that no argument adverse to the position I am now putting may ever be deduced from this part,

Mr Glynn:

– The clause assumes a power that we have not got, by negativing it.

Mr ISAACS:

– That is a matter for argument. If we cannot give (he power, there will be no harm in putting in the clause. A “ union “ is defined in clause 73, though there is a word in the definition which honorable members will see was not in the definition in the Bill introduced in the Senate. A union is .not an “ organization or association of workmen or em ployes,” but an “organization or association of trade workmen or employes registered under the law of a Commonwealth or a State.” There are some differences be, tween the definition of a “ union trade mark,” now proposed and that originally proposed. A union may select- a trade mark, adopt and register it, and prevent its improper use. lt will not be an improper use for an employer who has conformed to union conditions to apply the union trade mark to his goods if he chose to do so, and such action is entirely at his own discretion. If he chooses to conform to union conditions there’ will be nothing to prevent him from telling the public so by using the union label, and in other cases not so provided for he may succeed, and no doubt in all proper cases will succeed, in getting the permission of the union to use it for their mutual benefit, and, I think, in the interests of the public. Only a bond fide union will have this power, and the union trade mark is not capable of assignment, either by act of party or by operation of law - that is, it cannot be passed on to any one else or taken from a union. Lastly, there is the provision which indicates the intention of Parliament that no unfair use shall lie made of this power. With all these safeguards, I think that the measure is not to be feared. I trust that it will do good, and I believe that it will. I believe that it will advance the cause of true trade unionism. By that I mean that it will tend to better the condition of the workers without injuring others, that it will improve the conditions under which work is done, and will give a guarantee to the public that the goods they buy are such as may be used without the fear that the users are improperly trading, so to speak, on the necessities or the sufferings of their fellow creatures.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– Does the AttorneyGeneral think that the working classes will buy such goods if they are dearer than goods sold without the union trade mark? If he does, he is living in a fool’s paradise.

Mr Watkins:

– The working classes are more likely than are those of other classes to buy such goods.

Mr ISAACS:

– I am willing to take the risk. I think that good will accrue from, and that no harm will be done by, the passing of the Bill. I have done my best to explain the amendments which I intend to move. I have endeavoured to be fair to

Jill parties concerned, in relation to this newpart which will be introduced, but the measure, apart from Part VII., is a Bill for consideration in Committee. Part VII may be the subject of controversy, but I believe that the House, when it comes to consider the matter fully, will in the end, without difficulty, and, I hope, without hesitation, adopt it.

Mr REID:

– I do not wish to interfere with any honorable member who may desire to continue the debate this evening, but I should like an adjournment to enable me to consider the speech which has just been delivered.

Debate (on motion by Mr. Reid) adjourned.

page 509

ADJOURNMENT

Preferential Railway Rates : Home Rule : . Disability or Federal Members in State Elections and State Members in Commonwealth Elections.

Mr DEAKIN:
Minister of External Affairs · Ballarat · Protectionist

– The request preferred by the leader of the Opposition was so reasonable, in view of the amendments of a serious character which are proposed to be made in the Trade Marks Bill, that it was impossible to deny his wish. As we have passed two Bills this evening, and have made some progress with another, I move: -

That the House do now adjourn.

Mr GLYNN:
Angas

– I take advantage on this occasion to refer to a question which I addressed to the Minister of Home Affairs last Wednesday, with reference to competitive railway rates. I asked the Minister whether he had any information as to the stage that had been reached in the negotiations between the States, with a view to coming to an agreement to abolish preferential railway rates. He made answer that New South Wales had been trying for years to arrive at a settlement, but without success. -Ke mentioned that, in 1895, the Commissioners of New South Wales, Victoria, and South Australia arrived at an agreement, but it was rejected by the Victorian Government. So far as Victoria was concerned, it was stated that si number of conferences had been held, but all had failed to arrive ‘at a satisfactory settlement. In regard ,to Queensland, it was stated that no action had been taken, as that State had never been approached by any of the other States. In the case of South Australia, the reply was that other States had been approached, but that no finality had been reached’. It was further stated that so far as Western Australia was concerned, the matter Was now under consideration. Judging from these answers, the Minister has not been supplied by the officers of his Department with the facts which really ought to have been brought under the notice of the Government. As far back as November, 1901, I drew the attention of the then Minister of Home Affairs to the violation of the spirit, if not the letter, of the Constitution, by the fierce competition for the trade of certain districts. I particularly directed attention to a rate that had been introduced by the Victorian Commissioners, which was alleged to be intended to counteract a similar rate charged bv South Australia - the existence of which I denied. This Victorian rate was applicable to the section of railway between Dimboola and Servicetown, and its object was to prevent the .trade of that district from going to South Australia, or to hamper the trade of the settlers in that part of Victoria with the adjoining State, and induce them to go to Melbourne. I asked the Minister to direct the attention of the Premiers of the States to the existence of these rates, and suggest a renewal of the attempt made in 1895 to come to an agreement to ‘abolish the rates, and thus render it unnecessary to institute an Inter-State Commission. The Minister promised that something should be done, and, in answer to a question asked by me on the 28th May, 1902, he stated that it was his intention to call the attention of the Premiers of the States to the matter, with a view to an agreement being entered into by the Railways Commissioners. Nothing seems to have been done - at least no substantial effect followed. Communications of a somewhat ambiguous character passed between the Ministers of some of the States, but nothing was done. On several occasions I called the attention of Ministers to the existence of competitive rates, but no attempt was made to bring about their abolition by agreement. The upshot was that In March, 1904, a meeting took place in Melbourne, at which the Commissioners and general managers of the railways of New South Wales, Victoria, South Australia, and Queensland decided to appoint a board to formulate some scheme for readjusting the rates. That board met several times in Melbourne, and its report was presented and adopted at a meeting which was held in Melbourne on the 1 2th September, 1904. A further meeting of the Railway Commissioners was held in January, 1905, and it was then arranged to adopt practically all the resolutions as regards the competitive rates in certain districts, called competitive districts, that were embodied in the report of the board. An agreement was entered into which was dated May, 1905, but which came into operation as from some date in March. It would appear from the answer given by the Minister that the officers of his Department are to some extent ignorant of what is passing on this very important matter between the Railways Commissioners of the States, because he made absolutely no reference to the fact that in January last an agreement based upon the report of experts was adopted, and that that agreement, which was dated 28th of May, had operated retrospectively as from 1st March, 1905. I may say that Queensland1 had backed out of the arrangement. So far from Queensland not having been approached by the other States, and so far from that State having occupied the’ position of simple innocence that has been assumed, it was represented at the meeting held in March, 1904, at which the board of experts was appointed. When, however, the report of that board was presented in September, 1904, Queensland backed out of the arrangement; it withdrew as soon as the resolution was submitted that all secret rebates should be disclosed for the information of all the States concerned.

Mr Groom:

– The answers quoted by the honorable member are not those which I read in the House. The wrong particulars have, through some inadvertence, been inserted in the first edition of Hansard. The correct answers will, I understand, be found in the second edition.

Mr GLYNN:

– I had only Hansard to rely upon, and certainly the answers astonished me. Queensland refused to become a party to the agreement dated May, 190,5. One would imagine from the information given from time to time that preferential rates upon our railways had been virtually abolished. N6 doubt the rates between ‘Serviceton and* Dimboola, ;to which I previously referred, have been abolished, but the Commissioners have not abolished such rates as do not recognise the geographical position of the competitive districts. Notwithstanding the agreement entered into, in which Queensland refused to join, I find that the rail way authorities of that State are advertising the fact that they are carrying wool from Longreach! to Rockhampton,, a distance of 428 miles, and from Charleville to Brisbane, a distance of 483 miles, for £2 per ton, the same rate that is charged upon the railway from Hergott to Port Augusta, in South Australia, which is over 200 miles shorter. It is all very, well for apparently inspired statements to be made from ‘time to time to the effect that preferential railway rates have been; abolished.

Mr Groom:

– What is the date of the Queensland advertisement referred to by the honorable and learned member?

Mr GLYNN:

– I do not know, but my information is derived from a reliable source. The Queensland lines referred to compete with the South Australian railway, from Hergott to Port Augusta, and1 the low rates charged are evidently intended to divert traffic from the proper outlet at Hergott. I ask the Minister to look into the whole matter, and ascertain what really has been done. Apparently the agreement which has been entered into merely provides that the rates are to be raised all round, but that the existing volume of traffic is to be in all cases regarded as sacred. In other word’s, whatever advantage has been gained by any State under the competitive system is to Be preserved to it. That is one of the resolutions which were arrived at in September, 1904, and which’ I believe were adopted by the agreement of May, 1905. I have a copy of that resolution, which reads as follows: -

That the Commissioners in Conference, having given careful consideration to the question of rates in traffic to and from territory where competition exists, and with the object of obtaining such increase in revenue for the service rendered as the conditions will permit, and, at the same time, maintaining the status quo in respect of the tonnage of each class and description of goodsto and from such territory as is carried by each of the States concerned, hereby enter into the following agreement as a modus vivendi.

They then proceed to set out certain rates, which are to be applicable for the future. Those rates might be increased up to the limit of the ordinary rates ; but the Stateshad the right, if necessary, to keep them down at or near the old limits, if by raising them they were likely to lose any volume of the traffic which had been acquired under the competitive rates. In other words, the old evil was, as far as necessitated by, maintenance of the volume, to be perpetuated. If a State by (reason of its geographical position, possessed an advantage in connexion with certain trade, it was still denied that advantage. It was not intended that these rates should be lowered so that trade might flow in its natural channel. If that be so, I say to the Minister that the existing rates are a violation of the Constitution. We shall either have to force the States to come to an agreement upon this question, or to create the Inter-State Commission. Personally, I do not think that that Commission is necessary, and I believe that an agreement can be arrived at. Unfortunately, we are in this position : That unless an agreement is come to, and unless the Inter-State Commission is appointed, we cannot legislate effectively upon the question here. We may pass an Act declaring that these competitive rates shall cease, and that, as far as possible, the rates shall be mileage rates. But we cannot apply that legislation, except the InterState Commission declares the existing rates to be unfair and unreasonable, and, inasmuch as we have not passed the Inter-State Commission Bill, it is incumbent upon the Minister of Home Affairs to see that some agreement is arrived at to abolish these long-distance rates. The present position is particularly unfair to South Australia, which ought to possess trade that is being diverted elsewhere. I thought I would draw .attention to this matter, because, from the answers to questions which have appeared in Hansard, it would seem that documents, which are easily accessible, have not been looked into.

Mr WILKS:
Dalley

– I rise to complain of the adjournment of the House at such an early hour. It is especially unfair to honorable members coming from long distances. I appreciate the kindness of members of the Opposition in allowing the discussion upon a number of measures to be adjourned. But I would point out that there is other business of some moment upon the notice-paper- For example, there is the motion in reference to Home Rule, which is to be submitted by the honorable member for Northern MelbourneI am most anxious that we should arrive at a consideration of that motion, and I am. certain that the honorable member for Bland is equally anxious in that direction, in view of the warm letter in favour of the proposal which he forwarded to Sydney a few nights ago. The honorable and learned member for Angas has dealt with a most important question of an Inter-

State character. Here is an international question awaiting our consideration. I cannot understand why the House should desire to adjourn at such an early hour as 8.50 p.m. Personally, I .intend to give all the assistance I can to pushing the motion relating to Home Rule forward, and the way in which I shall push it forward is by knocking it backward.

Mr Webster:

– Then why does the honorable member wish to bring it forward?

Mr WILKS:

– I desire to do so, in order that the opinion of this Parliament upon an international question may be obtained as speedily as possible. I know that I should be out of order in discussing the details of that motion. The expense to the community of printing it day after day is, I urge, sufficient excuse to warrant its removal from the business-paper. Now is our opportunity to deal with the matter. If the Prime Minister will not deal with it to-night, I should be glad if he would intimate to us whether he intends to grant Government time for its discussion. Out of respect to his able and powerful ally, the honorable member for Bland, he should afford an -opportunity of considering It without delay. The class of support which I shall extend to it is well known, both inside and outside this . House. I trust that the Prime Minister, whilst dealing with Inter-State affairs, will not forget this -Empire - this international - question to which I have referred.

Mr WEBSTER:
Gwydir

– I wish to draw attention to a reply which was given by the Prime Minister to a question having reference to the disqualification which at present applies to members of certain State legislatures, and to members of the Commonwealth Parliament. I claim that the Commonwealth is founded upon a democratic basis. All the elements of democracy are to be found in the Constitution under which we are elected. The granting of adult’ suffrage, to my mind, entails the granting of the greatest liberty to the people in the choice of their parliamentary representatives. The Prime Minister has declared that the disqualification imposed upon Federal members in regard to their contesting elections for the State Legislatures stands upon the statute-book of several of the States, and that if New South Wales removed that disability, it would not simplify the matter in the least. Until the .whole of the States have taken action to remove the present embargo, he says that this Parliament should not do likewise. I do not think that two wrongs make a right, or that- the Commonwealth Parliament is justified in establishing a precedent of that character, even though the States Legislatures may not remove the disability imposed upon Federal representatives. In New South Wales the clause to which I refer was inserted’ in the Bill after a long sitting, which extended over twenty-three hours, and when the House was weary. There was not a word of discussion upon that amendment which deprived Federal representatives of the right to become candidates at the State elections. Some prominent members, who are pretty active in most debates, admitted that they had no knowledge of the presence of that provision in the Electoral Bill.

Mr Conroy:

– Was it not a convenient ignorance ?

Mr WEBSTER:

– If it were, it was general, and that would not be complimentary to the House as a whole.

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

– That ignorance was not so general as the honorable member imagines.

Mr WEBSTER:

– I know that the honorable member is fairly well versed in matters behind the scenes, and no doubt he could shed some enlightenment upon what actually did happen. At any rate, the New South Wales Hansard does not show that there was any general knowledge of the proposal to insert such a provision in the Bill. As a matter of fact, there was not a great deal of discussion in this House when a similar provision was submitted. It was dealt with in a very gingerly fashion, which evidenced that honorable members did not think too seriously about it. The honorable and learned member for Angas did state his opinions, and I believe that the honorable and learned member for Werriwa raised objections, but he did not urge them very persistently. When the Bill reached the Senate that Chamber was of opinion that the provision was not a fair one to place upon the statutebook, because of the embargo which it imposed upon members of the States Legislatures. As a result, it was actually defeated in the other House. During the interval I appealed to the Premier of New South Wales to repeal the law which the Parliament of that State had enacted. Sir John See accordingly entered into communication with the Prime Minister of the Commonwealth”, urging him not to force the objectionable provision through both Houses of the Commonwealth Legis lature, and promising that if it were not placed upon the statute-book, he would immediately proceed’ to repeal the law on the subject in New South Wales. The present Premier of that State has also intimated his anxiety to remove the barrier of which I complain, so as to allow the people the widest choice in the election of their parliamentary representatives. He has intimated that if this Parliament will take similar action, he will introduce a Bill to repeal the arbitrary provision which obtains in the law of that State.

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

– Has the New South Wales Premier promised to do that?

Mr WEBSTER:

– He has.

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

– Only conditionally.

Mr WEBSTER:

– He has given a definite promise that if the present embargo be removed from the Commonwealth law he is prepared to take similar action in regard to the State law. Either we are democrats or we are not. If we are what we profess to.be - advocates of democratic laws - we should carry our policy to its logical issue, and so amend our laws that members of the Legislatures of the States will not be ineligible for election to this House. Why should we place an embargo upon a member of the State Parliament who might desire to become a member of this Legislature, and who might be an acquisition to the political life of the Commonwealth ? The States Houses are supposed to be .? training ground for those who wish to reach the higher and rarer atmosphere of Federal politics, and I contend that to debar a member of a State Legislature from1 entering this House is to adopt a most undemocratic course. I tried to secure the removal of this embargo when the question was before the Senate, and also when it was discussed in this Chamber a second time, but was unsuccessful. In these circumstances, when I decided to enter Federal politics, I had to resign my seat in the State Legislature of New South Wales.

Mr Wilks:

– I put all these points before the House two years ago.

Mr WEBSTER:

– I have read the Hansard report of the debate, but do not know that the honorable member put these considerations before the House.

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

– He did, and put them very much better than the honorable member has done.

Mr WEBSTER:

– Probably that is so, but I do not seek any credential from the honorable member for Parramatta, either as to the matter of any of my speeches, or the manner in which I handle it. I was disappointed with the reply made by the Prime Minister. I recognise that we have in the honorable and learned gentlemanone who has been at the back of many democratic reforms in Victoria, and who was one of the strongest supporters of the democratic provisions of the Commonwealth Constitution Bill. In view ofthese facts, I think I have a right to expect him to adopt a logical attitude in regard to this matter, and to say that he is prepared to ask Parliament to remove the present embargo. As the honorable and learned gentleman has had time for reflection since answering the question that I put to him, without notice, I hope that he will now give me a reply that will be in conformity with the democratic professions of this Chamber, and the democratic aspirations of the people of the Commonwealth.

Mr. JOSEPH COOK (Parramatta).The honorable member who has just resumed his seat has a penchant for playing the role of the hero. To-night he seems to have indulged in another exhibition of that kind, and has professed to be very anxious about the members of the States Parliaments. May I suggest that they are quite able to take care of themselves? While the honorable member has gently gibed at all. those who, while in this Parliament and in the Parliaments of the States, did not, according to him, look after their own business, I would remind him “that they were quite as vigilant in the discharge of their duties and obligations as he is - a fact that he will be able to prove on further ransacking the pages of Hansard. Whatever complaint may be lodged against the exclusion of members of the States Parliaments from this Legislature, it certainly cannot lie in the mouths of States legislators themselves to make that charge. The way is open to them to take the first step by removing the embargo they have placed on members of this Parliament. If they did so, we should probably follow suit.

Mr Hutchison:

– The South Australian Parliament has already done so.

Mr Webster:

– Why cannot the Commonwealth Parliament give them a guaran - tee that that will be done?

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

– I speak more freely on this question, because I believe, with the honorable member, that this greater liberty should operate both in the State and Federal arenas. But I do say thatthe States Parliaments have no ground for complaint. Whatever was done in the Federal arena was simply in emulation of the example set by nearly all the States Parliaments. The honorable member for Gwydir is very anxious about the rights of. honorable members, but would it not to much better for him to display alittle of his remarkable energy in advocating the rights of the electors who, after all,are particularly concerned in this matter ?

Mr Webster:

– I am dealing now with the one question.

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

– The question I have raised is of infinitely more consequence than the point affecting honorable members. The honorable member for Gwydir has talked of the rights of members of Parliament, but we have not heard a word from him about the rights of the electors. The embargoes placed on members of the Legislatures of the Commonwealth and the States are not a matter of nearly so much moment, and I have yet to learn that there is any strong demand on the part of electors of the country for the change which the honorable member advocates. We have nothing before us to show that any vigorous demand for this reform is being made by public meetings in the States.

Mr Webster:

– Many things are done at times by this House with which the, people are not concerned.

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

– Quite so; but we ought to be more concerned with the rights of the voters outside than with the privileges of honorable members themselves.

Mr Webster:

– I agree with the honorable member.

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

-Then, I trust that the honorable member will assist me in urging on the Government to the work of equalizing the Federal voting power of the Continent. When we have plucked the beam out of our own eye in this respect, we may fairly turn our attention to the infinitely less important question of the rights and privileges of the members of the various States Parliaments. If the honorable member would assist us in the apparently impossible task of looking after the interests of the electors of Australia, I should give him my best support in dealing with the matter to which he has alluded. As the Prime Minister is present. I should like to ask him a question. I notice that some correspondence relative to the Federal Capital has been recently laid upon the table of the Legislative Assembly of New South Wales.

Mr Deakin:

– That occurred last night.

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

– I presume that the Prime Minister is’ in possession of most of the correspondence.

Mr Deakin:

– I shall be to-morrow. The Government of New South Wales are kindly sending us a supply of copies of their printed paper.

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

– Will there be any objection to laying that paper on the table of the House?

Mr Deakin:

– None whatever.

Mr GROOM:
Minister of Home Affairs · Darling Downs · Protectionist

– With regard to the remarks that have been made by the honorable and learned member for Angas, I am sorry that, owing to a slip, the. wrong answers appeared in reply to the questions whicli were put by him. Had he seen the correct answers, I do not think that he would have said what he did with respect to the Department of Home Affairs. The matter of preferential railway rates received the very careful attention of the late Minister of Home Affairs. Just prior to his retirement from office, he sent letters to the various Railways Commissioners, and the replies which I read in the House had in some cases been received only. a short time before.

Mr Glynn:

– The late Minister of Home Affairs took a strong interest also as a private member in this question, and in the light of that fact the answers seemed inexplicable.

Mr GROOM:

– Quite so ; and, instead of the Department being behindhand in this matter, it has the latest information that it is possible to obtain. The honorable and learned member for Angas, however, has put certain aspects of the question before the House that are worthy of serious consideration and I shall give them my careful attention. I have only to add that, as a matter of fact, the correct answers to which I have referred have appeared in the press.

Mr Wilks:

– I should like to know when it is proposed to ask the House to proceed with the consideration of the motion on the notice-paper relating to Home Rule.

Mr. DEAKIN (Ballarat- Minister of External Affairs). - I Have had no request from the honorable member in charge cf that motion for any Government time to be placed at his disposal, but have reason to suppose it possible, from the state of the notice-paper, that the honorable member for Dalley may have to-morrow the opportunity for which he yearns. I donot propose to enter into a consideration of the whole of the points touched upon bv the honorable member for Gwydir, but thestep to which he refers was taken with the most cordial feeling to members of ‘theStates Legislatures. It was felt, however that a distinction should be drawn between the Federal and the States spheres, in order that there should be no clashing one with the other, and that one of the best methods to avoid any clashing of interests, was to make it clear that, so long as members held a seat in one Parliament or 1 heother, it should not be open to them to become rivals.

Question resolved in the affirmative.

House adjourned at 9.14 p.m.

Cite as: Australia, House of Representatives, Debates, 2 August 1905, viewed 6 July 2017, <http://historichansard.net/hofreps/1905/19050802_reps_2_25/>.